In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-1704

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT M. TRIGGS,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 16-cr-51-jdp-1 — James D. Peterson, Chief Judge.

____________________

ARGUED JANUARY 22, 2020 — DECIDED JULY 1, 2020

____________________

Before WOOD, Chief Judge, and SYKES and HAMILTON,

Circuit Judges.

SYKES, Circuit Judge. Robert Triggs was indicted for unlawfully possessing a firearm in violation of 18 U.S.C. 

§ 922(g)(9), which prohibits firearm possession by persons 

convicted of a misdemeanor crime of domestic violence. The 

predicate conviction was more than ten years old, so Triggs

mounted an as-applied Second Amendment challenge to the 

indictment. When that argument failed, he conditionally 
2 No. 19-1704

pleaded guilty, reserving his right to appeal the Second 

Amendment ruling.

Soon after he filed his notice of appeal, the Supreme 

Court issued its decision in Rehaif v. United States, 139 S. Ct. 

2191 (2019), clarifying the elements of a § 922(g) violation.

The Court held that in a § 922(g) prosecution, the government must prove that the defendant “knew he possessed a 

firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Id. at 2200

(emphasis added). The second knowledge element is new; 

no one was aware of it when Triggs pleaded guilty. So in 

addition to his Second Amendment argument, Triggs raised 

a Rehaif claim and seeks to withdraw his plea.

The plain-error standard governs our review of the Rehaif 

issue. The government agrees that the error is plain. The 

disputed question is whether it was prejudicial, which in this 

context requires Triggs to establish a reasonable probability 

that he would not have pleaded guilty if he had known the 

government had to prove the Rehaif knowledge element.

That, in turn, depends on whether Triggs can plausibly

argue that he did not know he belonged to the relevant 

category of persons disqualified from firearm possession—

more specifically, that he did not know his ten-year-old 

conviction was a “misdemeanor crime of domestic violence” 

as that phrase is defined for purposes of § 922(g)(9).

Triggs has made the required showing to withdraw his 

plea. In contrast to some of the other categories of prohibited 

persons listed in § 922(g)—notably, felons—the statutory 

definition of “misdemeanor crime of domestic violence” is 

quite complicated, giving Triggs a plausible defense. We 
No. 19-1704 3

vacate and remand for further proceedings without reaching 

the constitutional question.

I. Background

In November 2015 Triggs was summoned to his son’s 

school in Tomah, Wisconsin, to discuss violent social-media 

threats his son and other students made against a teacher. 

Tomah police were investigating and wanted to account for 

any firearms that the students may have access to. Triggs 

acknowledged that he owned several hunting rifles and 

agreed to let the officers into his home to inspect them. 

En route to the home, Officer Aaron Hintz checked 

Triggs’s criminal record and discovered that he had a 2008 

misdemeanor battery conviction that might disqualify him 

from possessing firearms because it appeared to involve 

domestic abuse. When the officers arrived at the home, 

Triggs directed them to his three hunting rifles hanging 

unsecured in a wooden gun rack in the living room. A 

loaded rifle magazine and additional ammunition sat on a 

shelf underneath the rack. Officer Hintz inquired about the 

2008 battery conviction and asked Triggs if he had tried to 

purchase a gun since that time. Triggs said that he had tried 

and was denied but hadn’t read the document notifying him 

of the denial. Officer Hintz confirmed that Triggs was 

prohibited from possessing firearms and confronted him 

with this information. Triggs claimed ignorance of the 

prohibition and voluntarily surrendered his guns. The 

matter was referred to the United States Attorney for prosecution.

The 2008 conviction for misdemeanor battery arose from 

a dispute between Triggs and his then-girlfriend Nicole 
4 No. 19-1704

Oblak.1 According to the incident report, on September 22, 

2008, a Juneau County sheriff’s deputy responded to a 

domestic-abuse call from Oblak. She told the deputy that she 

and Triggs were not getting along so she had moved out to 

stay with a friend for a few days. When she returned to her 

residence to collect some belongings, Triggs begged her to 

stay and erupted in a fit of rage when she refused: he backed 

her up against a counter and squeezed her neck and throat, 

causing her to have difficulty breathing. He also broke two 

windows and damaged and stole items of her property.

The sheriff’s office referred the incident to local prosecutors as a felony strangulation/suffocation offense, but the 

assistant district attorney charged it as a misdemeanor

battery in violation of sections 940.19(1) and 968.075 of the 

Wisconsin Statutes. The former statute is Wisconsin’s simple 

battery offense. The latter imposes certain requirements on 

law-enforcement officers and prosecutors when confronted 

with incidents involving domestic abuse: the statute establishes a mandatory arrest rule—officers must arrest a suspect 

when there are reasonable grounds to believe that domestic 

abuse has occurred—and requires prosecutors to make swift 

charging decisions. The statute also imposes an automatic

no-contact order, barring the defendant from contacting the 

victim within 72 hours of arrest.

1 In addition to this conviction, Triggs has a lengthy history of arrests 

from 2003 to the seizure of his firearms in 2015, some of which resulted 

in misdemeanor convictions and others in civil citations for ordinance 

violations. In addition to the 2008 battery conviction, Triggs has four 

other misdemeanor convictions: two for bail jumping (one in connection 

with the 2008 battery), one for issuing a worthless check, and one for 

disorderly conduct.
No. 19-1704 5

In addition to the battery count, the criminal complaint

charged Triggs with three other misdemeanors: theft, criminal damage to property, and bail jumping (for violating the 

terms of his release on an earlier misdemeanor charge).

Triggs represented himself in the case. In plea negotiations the prosecutor offered to dismiss the theft and 

property-damage counts if Triggs would plead no contest to 

the battery and bail-jumping counts. The prosecutor also 

agreed to recommend a withheld sentence and 18 months of 

probation. Triggs accepted the deal. He filled out and signed

a waiver-of-counsel form and a plea questionnaire and

entered no-contest pleas to battery and bail jumping. The 

judge accepted the waiver of counsel and no-contest pleas 

and placed Triggs on probation for 18 months, as the prosecutor recommended. The remaining counts were dismissed. 

The judgment of conviction includes a domestic-abuse 

surcharge as part of Triggs’s court costs. See WIS. STAT.

§ 973.055.

Based on this 2008 misdemeanor battery conviction, in 

May 2016 a federal grand jury returned a one-count indictment against Triggs alleging a violation of § 922(g)(9) stemming from his possession of the hunting rifles in November 

2015. Triggs moved to dismiss the indictment, raising an asapplied Second Amendment challenge to the prosecution. 

His argument was largely based on the age of the predicate

conviction—it was more than ten years old—but Triggs also 

pointed to certain mitigating factors in his case, his personal 

characteristics, and social-science data to support his constitutional defense. After an evidentiary hearing, the judge 

denied the motion.
6 No. 19-1704

Triggs then entered a conditional guilty plea, reserving 

his right to appeal the Second Amendment ruling. The 

Supreme Court issued Rehaif before Triggs’s opening brief 

was due, so his appeal raises both the Second Amendment 

issue and a new claim of Rehaif error.

II. Discussion

We begin (and end) with the Rehaif error. Triggs asks us 

to permit him to withdraw his guilty plea because Rehaif 

announced a new understanding of the elements of the 

crime of unlawful firearm possession under § 922(g)—

namely, that the government must prove not only that the

defendant knew he possessed a firearm but also that “he 

knew he belonged to the relevant category of persons barred 

from possessing a firearm.” Rehaif, 139 S. Ct. at 2200. This 

issue is necessarily new on appeal, so we review it for plain 

error. United States v. Williams, 946 F.3d 968, 971 (7th Cir. 

2020).

Under the plain-error standard, Triggs must establish 

that the Rehaif error is clear or obvious and affected his

substantial rights; if he does so, we may correct the error if it 

seriously affected the fairness, integrity, or public reputation 

of the judicial proceedings. Id. The government concedes 

that the Rehaif error is clear. See FED. R. CRIM. P. 11(b)(1)(G) 

(requiring a judge to inform a defendant of “the nature of 

each charge to which [he] is pleading”). We focus our analysis on the question of prejudice—whether the error affected 

Triggs’s substantial rights. The prejudice element of plainerror review requires Triggs to establish a reasonable probability that but for the error, the result below would have 

been different—more specifically, that he would not have 

pleaded guilty to the § 922(g)(9) charge if he had known 
No. 19-1704 7

about the effect of Rehaif. United States v. Dominguez Benitez, 

542 U.S. 74, 83 (2004).

Before addressing this question, we pause to note that 

some important follow-on Rehaif issues are now resolved in 

this circuit, with implications for this appeal. For example, 

Triggs argues that Rehaif errors should be considered structural and thus automatically prejudicial. We recently rejected that argument in United States v. Maez, 960 F.3d 949, 957–

58 (7th Cir. 2020). Our decision in Maez also answered a 

lingering question about the scope of the Rehaif knowledge 

element: does § 922(g) as interpreted in Rehaif require the 

government to prove only that the defendant was aware of 

his status—e.g., knew he had a felony conviction, see 

18 U.S.C. § 922(g)(1), or a conviction for a misdemeanor 

crime of domestic violence, id. § 922(g)(9), etc.—or must the 

government prove that the defendant knew “it was a crime to 

possess a firearm as a result of [his] prohibited status?” Maez, 

960 F.3d at 954.

We rejected the latter reading of Rehaif because it would 

impermissibly gloss the term “knowingly” in this statutory 

scheme with a willfulness requirement. Id. Instead, we

understood Rehaif to hold that § 922(g) requires the government to prove that the defendant knew he had the relevant 

status, not that he knew he was legally barred from possessing firearms. Id. at 955. Finally, we confirmed in Williams 

that “the burden of persuasion rests on the defendant seeking to withdraw his plea based on a Rehaif error.” 946 F.3d at 

973.

Applying these understandings here, it’s now clear that 

to convict Triggs at trial, the government had to prove that 

he knew he had been convicted of a “misdemeanor crime of 
8 No. 19-1704

domestic violence” as that phrase is defined for purposes of 

§ 922(g)(9) (though not that he knew he was barred from 

possessing firearms). So to establish prejudice from the 

Rehaif error, Triggs must establish a reasonable probability 

that he would not have pleaded guilty had he known of the 

government’s burden to prove this element. Id. at 971. In 

assessing whether he has done so, we can “fairly ask” what 

Triggs might have thought he stood to gain by insisting on a 

trial, though we will not “second-guess” a defendant’s own 

guilty-plea calculus “if the record shows it is reasonably 

probable that he would have taken a chance at trial, even 

foolishly.” Id. at 973.

Many prosecutions under § 922(g) involve violations of 

subsection (1), the felon-dispossession provision, which 

prohibits firearm possession by any person “who has been 

convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.” Under this simple

definition, a defendant will have difficulty establishing

prejudice from a Rehaif error because the new knowledge 

element is quite easy to prove, especially when the defendant previously served more than a year in prison. Id. As we 

explained in Williams, a defendant who previously served 

more than a year in prison for a single conviction “cannot 

plausibly argue that he did not know his conviction had a 

maximum punishment exceeding a year.” Id. A defendant in 

that situation “will face an uphill battle to show that a Rehaif 

error in a guilty plea affected his substantial rights” because 

the new understanding of the knowledge element doesn’t 

materially change the guilty-plea calculus. Id. at 974; see also

United States v. Dowthard, 948 F.3d 814, 818 (7th Cir. 2020)
No. 19-1704 9

The same cannot be said of Triggs. Unlike the straightforward definition in the felon-dispossession provision, the 

definition of the term “misdemeanor crime of domestic 

violence” as used in § 922(g)(9) is quite complex:

(33)(A) [T]he term “misdemeanor crime of 

domestic violence” means an offense that—

(i) is a misdemeanor under Federal, State, 

or Tribal law; and

(ii) has, as an element, the use or attempted 

use of physical force, or the threatened use of a 

deadly weapon, committed by a current or 

former spouse, parent, or guardian of the victim, by a person with whom the victim shares 

a child in common, by a person who is cohabiting with or has cohabited with the victim as a 

spouse, parent, or guardian, or by a person 

similarly situated to a spouse, parent, or 

guardian of the victim.

(B)(i) A person shall not be considered to have 

been convicted of such an offense for purposes 

of this chapter, unless—

(I) the person was represented by counsel 

in the case, or knowingly and intelligently 

waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this paragraph for which a 

person was entitled to a jury trial in the jurisdiction in which the case was tried, either

(aa) the case was tried by a jury, or
10 No. 19-1704

(bb) the person knowingly and intelligently waived the right to have the case 

tried by a jury, by guilty plea or otherwise.

18 U.S.C. 921(a)(33) (in part).

Given the comparative complexity of this definition, the 

guilty-plea calculus changes. Rehaif improves Triggs’s trial 

prospects, giving him at least a plausible argument that he 

was unaware that his 2008 battery conviction is a crime of 

this nature. At the time of his guilty plea, he was facing trial 

without a clear defense as to any of the elements of 

§ 922(g)(9) as they were then understood. The Supreme 

Court’s clarification of the elements of this crime means that 

the government must prove a new and—in the case of 

§ 922(g)(9)—burdensome knowledge element. Rehaif opens a

potentially viable avenue of defense. 

Beyond the complexity of the statutory definition, the

messy nature of the proceedings that led to Triggs’s 2008 

conviction makes the government’s burden on the Rehaif 

element that much more challenging. First, and importantly, 

Triggs did not have a lawyer. Though he signed a waiver-ofcounsel form and the judge conducted an on-the-record 

colloquy before accepting it, the fact remains that Triggs did 

not have the assistance of legal counsel to explain the elements of the offense or the implications of his no-contest 

plea.

The criminal complaint, moreover, was entirely conclusory and not quite correct, labeling the charge “misdemeanor battery, domestic abuse” when there is no such crime in 

Wisconsin. Instead, the crime charged in the complaint is

simple battery in violation of section 940.19(1) of the 
No. 19-1704 11

Wisconsin Statutes. Although section 968.075 was also cited, 

that statute, as we’ve explained, does not add any elements 

to the simple battery offense; rather, it imposes certain duties 

on the police and prosecutors when domestic abuse is 

suspected.

Compounding the government’s proof problems, the

plea questionnaire that Triggs signed and submitted was 

woefully incomplete and unclear. The questionnaire has a 

box for the defense attorney to enter the crime to which the 

defendant intends to plead guilty or no contest. The box is 

empty; the offense of battery is not named, the relevant 

statute is not cited, and the elements of the crime do not 

appear anywhere on the form. (Nor is bail jumping mentioned.) A two-page document listing the elements of some 

common criminal offenses is attached to the questionnaire. 

The elements of battery are listed on this document, but the 

corresponding checkbox is not marked and there is no

indication whatsoever that the elements were made known

to Triggs. 

The transcript of the plea hearing reflects that the judge 

conducted only a brief and perfunctory colloquy before 

accepting Triggs’s no-contest pleas. The judge did not advise 

him of the elements of either of the offenses to which he was 

pleading no contest. Nor did the judge mention a firearm 

prohibition. 

We do not mean to suggest that Triggs’s underlying battery conviction was procedurally invalid. But the record of 

these proceedings is important evidence of whether Triggs 

knew that he had been convicted of a misdemeanor crime of 

domestic violence as defined in § 921(a)(33). It is unclear 

whether Triggs was ever properly notified of the nature of 
12 No. 19-1704

the battery charge or its required elements. These shortcomings in the state-court proceedings make the Rehaif element 

harder to prove. Triggs has a colorable argument that he was 

unaware that he was convicted of a misdemeanor crime of 

domestic violence as that term is used in § 922(g)(9). 

To be sure, the record contains evidence that works 

against Triggs on the Rehaif element, including the fact that 

he tried to buy a gun since the 2008 conviction and was

turned down. But it’s not necessary to weigh Triggs’s likelihood of success at trial. “[T]he reasonable probability standard is not the equivalent of a requirement that a defendant 

prove by a preponderance of the evidence that but for error 

things would have been different.” Williams, 946 F.3d at 973 

(quotation marks omitted). What matters is that in light of 

Rehaif, he has a plausible defense. Triggs has carried his 

burden to establish a reasonable probability that he would 

not have pleaded guilty had he known of the government’s 

Rehaif burden.

This is a proper case to exercise our discretionary authority to correct an unpreserved error. A conviction entered on 

an unknowing guilty plea violates “the first and most universally recognized requirement of due process”—namely, 

that a defendant receive “real notice of the true nature of the 

charge against him.” Bousley v. United States, 523 U.S. 614,

618 (1998) (quotation marks omitted). Accordingly, we

VACATE the judgment and REMAND for further proceedings.