FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v. 

RYAN PATRICK MICHELL, 

Defendant-Appellant.

No. 19-10059 

D.C. No. 2:17-cr01690-GMS-1 

OPINION

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted July 25, 2022

San Francisco, California

Filed February 15, 2023

Before: Susan P. Graber and Kim McLane Wardlaw, 

Circuit Judges, and M. Miller Baker,* International Trade 

Judge.

Opinion by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Baker

* The Honorable M. Miller Baker, International Trade Judge for the 

United States Court of International Trade, sitting by designation.
2 UNITED STATES V. MICHELL

SUMMARY**

Criminal Law

The panel affirmed the defendant’s 2018 convictions for 

unlawful possession of a firearm under 18 U.S.C. §§ 

922(g)(1) and 924(a)(2), in a case in which the defendant, 

relying on the Supreme Court's post-conviction decision in 

Rehaif v. United States, 139 S. Ct. 2191 (2019), argued on 

appeal that his convictions should be overturned due to the 

district court's failure to instruct the jury that the government 

must prove that he belonged to the relevant category of 

persons barred from possessing a firearm.

The defendant was convicted in 1997 of felony assault 

with a deadly weapon committed while he was a juvenile. In 

2016 and 2017, he pleaded guilty to two aggravated DUIs, 

which were felonies committed in 2003 while he was an 

adult. 

It was undisputed that the district court’s failure to 

instruct on the Rehaif knowledge element was error and that 

the error was plain. The panel held, however, that the 

defendant cannot show that this error affected his substantial 

rights. In so holding, the panel did not need to reach whether 

being convicted as a juvenile or having been incarcerated for 

more than a year as a result of a juvenile conviction satisfies 

the Rehaif mens rea requirement. The panel held that the 

defendant’s two DUI convictions unambiguously 

demonstrate that there is no reasonable probability that a jury 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MICHELL 3

would find that the defendant did not know he had been 

convicted of a crime punishable by a year or more in prison 

at the time he possessed the firearm. The panel explained 

that the defendant’s 2016 plea agreement and conviction 

documents for one of the DUIs prove beyond a reasonable 

doubt that he knew in 2017 that he had been convicted of a 

crime punishable by more than one year. The defendant 

contended that because the plea agreements were not 

presented to the jury at trial, this court cannot take judicial 

notice of judicial records reflecting the defendant’s plea 

agreement in the 2016 felony case. The panel explained that 

this contention contravenes the Supreme Court’s decision in 

Greer v. United States, 141 S. Ct. 2090 (2021) (holding that 

appellate panels reviewing Rehaif instructional errors may 

consider information about a defendant’s prior convictions 

in a pre-sentence report), and Ninth Circuit 

authority. Distinguishing United States v. Dior, 671 F.2d 

351 (9th Cir. 1982), the panel wrote that this court’s 

precedent is clear that it can and should take judicial notice 

of facts outside the record on plain-error review to answer 

the question whether there is a reasonable probability that, 

in a new trial, a jury would acquit a defendant. The panel 

wrote that additional record evidence—including the 

defendant’s repeated statements that he knew his DUI 

convictions made him a “prohibited possessor” of firearms 

under federal law—further demonstrates that the defendant 

clearly understood that he belonged to the category of 

persons barred from possessing a firearm. 

Court of International Trade Judge Baker concurred in 

part and dissented in part. He agreed with the majority that 

this court should grant the government's motion to take 

judicial notice of evidence outside the record. But in his 

view—even after taking that additional evidence into 
4 UNITED STATES V. MICHELL

account—it’s a coinflip as to whether a properly instructed 

jury would convict the defendant in a new trial. Because 

Judge Baker thinks the defendant has easily carried his 

burden of showing a reasonable probability of acquittal in 

such a trial, he dissented from the majority's affirmance of 

the conviction.

COUNSEL

Michele R. Moretti (argued), Law Office of Michele R. 

Moretti, Lake Butler, Florida, for Defendant-Appellant.

Peter S. Kozinets (argued), Assistant United States Attorney; 

Rachel C. Hernandez; Kristen Jennifer Brook; Krissa M. 

Lanham, Appellate Division Chief; Gary M. Restaino, 

United States Attorney; Office of the United States Attorney, 

Phoenix, Arizona; for Plaintiff-Appellee.
UNITED STATES V. MICHELL 5

OPINION

WARDLAW, Circuit Judge:

Ryan Michell appeals his 2018 convictions for unlawful 

possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 

924(a)(2). Relying on the Supreme Court’s subsequent

decision in Rehaif v. United States, 139 S. Ct. 2191 (2019),

Michell argues that his convictions should be overturned due 

to the district court’s failure to instruct the jury that the 

government “must prove both 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,” which he argues was plain error. Id. at 2200 

(emphasis added). We have jurisdiction under 28 U.S.C. § 

1291, and we affirm the convictions. 

I.

In 2017, FBI agents began investigating Michell’s 

possible involvement in manufacturing a chemical weapon. 

During that investigation, the agents discovered that Michell 

had been convicted of several felonies—assault with a 

deadly weapon in 1997 and two aggravated DUIs in 2017—

and found photographs on his Facebook profile showing him 

firing various firearms. On December 1, 2017, the agents 

executed a search warrant at Michell’s home and seized four 

live rounds of Lapua .338 ammunition, 50-60 spent cartridge 

cases of various calibers, and a used shooting-practice target. 

A search of Michell’s phone uncovered postings that he 

had made on Backpage.com listing firearms for sale, as well 

as text messages between Michell and a potential buyer, 

Nicholas Riddle. In the messages, Riddle expressed interest 

in purchasing one of Michell’s rifles. Michell, in turn,
6 UNITED STATES V. MICHELL

provided more background about the weapon, including that 

he had purchased it “used years ago,” that he had taken it out 

only “a few times, maybe 100 rounds” because he preferred 

to use his “other toys,” so this one was “gathering dust in 

[his] gun safe.” Michell also stated that he had a number of 

other firearms for sale. Riddle agreed to purchase a rifle, 

two high-capacity 30-round magazines, and 100 rounds of 

ammunition for $400, and Michell sent him the address 

where they could meet for the sale. Riddle later identified 

the man who met him at that address as Michell. 

Shortly thereafter, agents arrested Michell, who agreed 

to submit to a video-recorded interview. During the 

interview, Michell stated that he did not have guns because 

of his felony status: 

Michell: I gave [my ex-fiancée] money . . . to 

buy guns . . . but she’s legal to have them . . . 

Agent: But you don’t have guns because of –

Michell: I don’t have guns. I’m a felon. I 

mean, I’d love to eventually expunge my – I 

mean, I – I love – I love to shoot and pick up 

another hobby like that, but I don’t have any 

guns, no, sir. 

On February 27, 2018, a grand jury returned an 

indictment charging Michell with two counts of violating 18 

U.S.C. §§ 922(g)(1) and 924(a)(2), possession of a weapon 

and ammunition by a prohibited person. The jury found 

Michell guilty on both counts, and the court sentenced him 

to 30 months in prison and three years of supervised release. 

A few months after Michell was sentenced, the Supreme 

Court clarified the mens rea requirement for felon-in-
UNITED STATES V. MICHELL 7

possession offenses in Rehaif. The Court held that, to obtain 

a conviction, the government must prove not only that the 

defendant knew that he possessed a firearm, but also that he 

knew that “he belonged to the relevant category of persons 

barred from possessing a firearm.” 139 S. Ct. at 2200. 

Because Michell’s trial occurred before Rehaif issued,

Michell did not request, and the district court did not give, a 

jury instruction requiring the jury to find that Michell knew 

he belonged to a “relevant category,” that is, that he knew he 

had been convicted of a crime punishable by more than a 

year in prison when he possessed the firearm. See United 

States v. Singh, 979 F.3d 697, 727 (9th Cir. 2020). After 

Rehaif issued, Michell timely appealed and argued that the 

failure to instruct the jury on the second knowledge element 

was plain error, requiring the reversal of his convictions. 

II.

We review the failure to give a Rehaif instruction under 

these circumstances for plain error. Greer v. United States, 

141 S. Ct. 2090, 2096–97 (2021). “To establish eligibility 

for plain-error relief, a defendant must satisfy three threshold 

requirements.” Id. at 2096. There must be a (1) “error” (2) 

that was “plain” and (3) that “affect[s] ‘substantial rights,’ 

which generally means that there must be ‘a reasonable 

probability that, but for the error, the outcome of the 

proceeding would have been different.’” Id. (citation 

omitted).

It is undisputed that Michell has satisfied the first two 

prongs of the plain error standard: there was an error and it 

was plain. See United States v. Benamor, 937 F.3d 1182, 

1188 (9th Cir. 2019) (holding that the failure to instruct that 

the jury must find the defendant knew he was a felon when 

he possessed the firearm in a § 922(g) prosecution is plain 
8 UNITED STATES V. MICHELL

error). However, Michell cannot show that this error 

affected his substantial rights. Due to at least two of his prior

convictions, all punishable by more than one year in prison,

there is no “reasonable probability” that a jury would find 

that Michell did not know he had been convicted of a crime 

punishable by a year or more in prison at the time he 

possessed the firearm. Greer, 141 S. Ct. at 2096–97.

A.

Section 922(g)(1) renders a prohibited possessor any 

person who has been convicted of a crime “punishable by 

imprisonment for a term exceeding one year.” Michell 

served two years in prison for his first conviction, an 

aggravated assault in 1997, which was committed when he 

was a juvenile. 

Michell contends that, because Michell’s 1997 

conviction was for an offense committed while he was a 

juvenile, reasonable doubt exists regarding whether Michell 

understood his aggravated assault conviction classified him 

as a felon. As Justice Sotomayor stated in Greer, “a 

defendant may not understand that a conviction in juvenile 

court . . . can be a felony for purposes of federal law.” 141 

S. Ct. at 2103 (Sotomayor, J., concurring). However, while 

it is possible that Michell did not understand that his juvenile 

conviction was a felony, we need not and do not reach the 

question of whether being convicted as a juvenile or having 

been incarcerated for more than a year as a result of a 

juvenile conviction satisfiesthe Rehaif mens rea requirement

here. Michell’s two DUI convictions, which occurred when 

he was an adult, unambiguously demonstrate that there is no 

“reasonable probability” that a jury would find that Michell 

did not know he had been convicted of a crime punishable 
UNITED STATES V. MICHELL 9

by a year or more in prison at the time he possessed the 

firearm. Greer, 141 S. Ct. at 2096–97. 

B.

In 2016 and 2017, Michell pleaded guilty to two DUIs,

committed in 2003, that occurred in Maricopa County and 

Pinal County (each punishable by up to three years and nine 

months in prison). Michell’s 2016 plea agreement and

conviction documents for the aggravated DUI in Maricopa

County prove beyond a reasonable doubt that he knew in

2017 that he had been convicted of a crime punishable by

more than a year in prison. Specifically, on the first page of

the plea agreement, the first term initialed by Michell

indicates he understood that:

The crime carries a presumptive sentence of 

2.5 years; a minimum sentence of 1.5 years; 

a mitigated sentence of 1 year; a maximum 

sentence of 3 years; and an aggravated 

sentence of 3.75 years. 

Because the plea agreements were not presented to the

jury at trial, Michell argues that we cannot take judicial

notice of judicial records reflecting Michell’s plea

agreement in the 2016 Maricopa County felony case, State

of Arizona v. Michell, CR2004-038904 (Dkt. 95), under Fed.

R. Evid. 201(d). However, this contention contravenes

clearly established Supreme Court and Ninth Circuit

authority.1 When an appellate court conducts plain-error

review of a Rehaif error, any “argument that plain-error

1 Michell does not challenge the authenticity of the documents. We 

therefore grant the government’s motion to take judicial notice of the 

records of conviction for the two Arizona DUI offenses (Dkt. 95).
10 UNITED STATES V. MICHELL

review must focus exclusively on the trial record

contravenes both logic and precedent.” Greer, 141 S. Ct at 

2098 (holding that appellate panels reviewing Rehaif 

instructional errors may consider information about a 

defendant’s prior convictions in a pre-sentence report). 

Following the Supreme Court’s lead, the Ninth Circuit has

frequently looked outside the trial record when deciding

Rehaif claims. See Benamor, 937 F.3d at 1189 (looking to

non-jury evidence of prior convictions in considering a

Rehaif claim of error); United States v. Hearns, 836 Fed.

App’x 520, 522 (9th Cir. 2020) (unpublished) (“Because the

records are the proper subject of judicial notice and declining

to take judicial notice would ‘merely be delaying the

inevitable,’ the Court grants the Government’s uncontested

motion.” (citation omitted)); United States v. ValenciaBarragan, 819 Fed. App’x 508, 511 n.3 (2020)

(unpublished) (“We grant the Government’s motion to take

judicial notice of certain conviction-related documents for

purposes of Valencia’s Rehaif-based claim.”).2

2 Indeed, most circuits have held that it is permissible to take judicial 

notice of facts outside the record for Rehaif claims on plain error review. 

See United States v. Ward, 957 F.3d 691, 695 & n.1 (6th Cir. 2020) 

(holding that appellate courts have authority to consult non-jury evidence 

on plain error review, including plea agreements); United States v. Reed, 

941 F.3d 1018, 1021 (11th Cir. 2019) (considering facts not presented at 

trial, including admissions that occurred at sentencing); United States v. 

Huntsberry, 956 F.3d 270, 284–86 (5th Cir. 2020) (taking judicial notice 

of conviction records to reject Rehaif claims); United States v. Payne, 

964 F.3d 652, 656 (7th Cir. 2020) (taking judicial notice of state court 

conviction documents in Rehaif appeal); United States v. Miller, 954 

F.3d 551, 559–560 (2d Cir. 2020) (holding that appellate panels could 

consider information from a pre-sentence investigation report in 

evaluating a Rehaif claim). 
UNITED STATES V. MICHELL 11

Despite this controlling precedent, Michell chooses to

rely upon dicta in a footnote in our 1982 decision in United

States v. Dior, 671 F.2d 351 (9th Cir. 1982), upholding a 

judgment of acquittal because the government failed to 

prove an essential element of the crime. Rejecting the 

dissent’s suggestion that the majority simply could have 

taken judicial notice of that element, we said for a court to

“take judicial notice of an adjudicative fact after a jury’s 

discharge in a criminal case would cast the court in the role 

of a fact-finder and violate defendant’s Sixth Amendment 

right to trial by jury.” Id. at 358 n.11. Michell contends that 

his 2016 plea agreement constitutes an “adjudicative fact,” 

sweepingly defined as any fact “concerning the immediate 

parties.” Banks v. Schweiker, 654 F.2d 637, 640 n.3 (9th Cir. 

1981) (citation omitted). But we do not review de novo here, 

and Dior did not address at all the standards for plain-error 

review. In Dior, we held that—on mandamus review of a 

judgment of acquittal following a criminal conviction—we 

may not take judicial notice of facts to close evidentiary gaps 

in the government’s case-in-chief, where the government 

failed to introduce the evidence before the jury was 

discharged. Dior, 671 F.2d at 357–58. The procedural 

posture of this case is wholly distinct: Under plain-error 

review of an instructional error, we ask simply whether there 

is a reasonable probability that, in a new trial, a jury would 

acquit a defendant. Greer, 141 S. Ct. at 2097. And our 

precedent is clear that we can and should take judicial notice 

of facts outside the record on plain-error review to answer 

that question, which is not tantamount to filling gaps in the 

government’s case in an earlier trial. To do otherwise would 

burden courts with the expense and waste of judicial 

resources on retrial, even though the outcome is inevitable.
12 UNITED STATES V. MICHELL

The dissent contends that we should not rely on the plea 

agreement because it is “hardly establish[ed] that [Michell]

read the document at the time.” Dissent at 23. However, the 

portion of the guilty plea that establishes that Michell’s 

offense “carried a presumptive sentence of 2.5 years” is the 

first initialed paragraph of the plea agreement Michell

signed just one year before law enforcement officers found 

firearms in Michell’s house. The number of years of 

presumptive incarceration are in bold and stand out starkly

in the plea agreement. Though Michell actually served less 

than a year in prison for each of the DUI offenses, this case

is hardly analogous to United States v. Werle, 335 F.4th 1195 

(9th Cir. 2022), which addressed whether a district court 

erred in summarily denying Werle’s motion to vacate his 

guilty plea for firearm possession offenses without an 

evidentiary hearing in light of Rehaif. There, Werle had a 

prior conviction for which he served a sentence of a year and 

a day. He argued that he had extensive brain damage that 

affected his memory as to the length of his incarceration and 

his understanding that he was a felon. Id. at 1203. In that 

case, the operative question was whether the district court

should have held an evidentiary hearing to allow Werle to 

introduce evidence that there existed a “reasonable 

probability that he would have proceeded to trial had he been 

properly informed of the elements of the offense.” Id. at 

1202. Here, on plain error review, we have the benefit of

evaluating the full evidentiary record—including the trial 

record, Michell’s presentencing report, and Michell’s prior 

guilty pleas—to determine whether there is any reasonable 

probability that a jury would not find that Michell 

understood his conviction was punishable by more than a 

year in prison.
UNITED STATES V. MICHELL 13

Moreover, additional record evidence demonstrates that 

Michell clearly understood, even before trial, that “he 

belonged to the relevant category of persons barred from 

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

addition to signing a plea agreement that acknowledged his 

2016 conviction was punishable by over a year in prison,

during the course of the investigation and trial in this case, 

Michell repeatedly stated that he knew his DUI convictions 

made him a “prohibited possessor” of firearms under federal 

law. For example, during a post-arrest interview, Michell 

stated that, although he had given his ex-fiancée money to 

buy guns because it was “legal” for her to have them, he did 

not have guns himself because he was a “felon.” And at trial, 

he testified that he knew that both DUI convictions were 

felonies and that he was thus a prohibited possessor under 

§ 922(g), stating in relevant part: 

Defense Counsel: So you know that there 

were aggravated DUI charges, you know to 

be a felony? 

Michell: Yes, sir.

Defense Counsel: Are you a prohibited 

possessor?

Michell: Yes, sir. After my DUI matter, 

that’s why there was no guns, no – I mean, 

I’m not going to lose my opportunity to be... 

with my daughters. 

In December 2017, when agents executed a search 

warrant at his home and found evidence of gun possession, 

Michell therefore fully understood that his DUI convictions 

were punishable by more than a year of incarceration. There 
14 UNITED STATES V. MICHELL

is no reasonable probability that a jury would find otherwise. 

18 U.S.C. § 922(g)(1).

III.

For all the reasons stated above we AFFIRM the district 

court. 

BAKER, Judge, concurring in part and dissenting in part:

The federal government prosecuted Ryan Patrick 

Michell—then a 38-year-old man with a minimal criminal 

record stemming from offenses at age 17 and in his early 

20s—for having four bullets in his garage and for his 

involvement in the private sale of a rifle. Under Rehaif v. 

United States, 139 S. Ct. 2191 (2019), the grand jury did not 

properly indict Michell for this alleged violation of the felonin-possession statute. Nor did the district court permit 

Michell to fully defend himself at trial, where the 

government failed to prove its case and where the court 

incorrectly instructed the jury on the elements of the charged 

offense.

Having served a 30-month federal prison sentence 

following his conviction, Michell pursues this appeal 

seeking only an opportunity for a new trial to clear his name. 

Although I agree with the majority that we should grant the 

government’s motion to take judicial notice of evidence 

outside the record, in my view—even after taking that 

additional evidence into account—it’s a coinflip as to 

whether a properly instructed jury would convict Michell in 

a new trial. Because I think he has easily carried his burden 

of showing a “reasonable probability” of acquittal in such a 
UNITED STATES V. MICHELL 15

trial, I respectfully dissent from the majority’s affirmance of 

his conviction.

I

In 1997, Michell—then 17—was convicted in Arizona 

of aggravated assault. He was imprisoned for 20 months, 

first in a juvenile detention center and then in an adult section 

after he turned 18.

In 2003, when he was 23–24, Michell was charged in

Arizona with two separate DUIs. For reasons that are 

unclear, Arizona authorities waited 13 years to prosecute 

these charges, to which Michell agreed to plead guilty in 

October 2016. In early 2017 he was sentenced—as a firsttime offender—to concurrent four-month prison sentences 

with three years’ probation.

In late 2017, in response to information that Michell 

might be involved in creating a chemical weapon and after 

obtaining a warrant, federal agents raided his home. 

Although the search for nefarious activities related to a 

purported chemical weapon turned up empty, investigators 

found the four bullets and evidence of his involvement in the 

private sale of a $450 rifle at his brother’s home. Michell 

waived the right to an attorney and fully cooperated with the 

investigation.

The United States Attorney for Arizona then asked a 

grand jury to return a superseding indictment charging 

Michell with two counts of violating 18 U.S.C. §§ 922(g)(1) 

and 924(a)(2). The former makes it “unlawful for any person 

. . . who has been convicted in any court of[] a crime 

punishable by imprisonment for a term exceeding one year . 

. . to . . . possess . . . any firearm or ammunition . . . .” 18 

U.S.C. § 922(g)(1). The latter then specified that “[w]hoever 
16 UNITED STATES V. MICHELL

knowingly violates . . . subsection (g) . . . of section 922 shall 

be fined . . . , imprisoned not more than 10 years, or both.” 

18 U.S.C. § 924(a)(2).1

The grand jury obliged. Its indictment simply charged 

Michell with possession of the guns and ammunition while 

“having been previously convicted of a crime punishable by 

a term of imprisonment exceeding one year.”

Before trial, the government successfully moved in 

limine for an order barring Michell from presenting any 

argument and evidence that might suggest he did “not 

qualify as a prohibited felon for purposes of 18 U.S.C. 

§ 922(g)(1) and § 924(a)(2) because either his convictions 

did not render him a prohibited person or because he did not 

know he was prohibited.” The parties also stipulated that 

Michell was convicted in 1997 and 2017 of crimes 

“punishable by a term of imprisonment exceeding one 

year.”2

At trial, Michell testified he “didn’t perceive that the 

juvenile offense would follow me the rest of my life.” The 

1 While this appeal was pending, Congress moved the reference to 

§ 922(g) from § 924(a)(2) to a new § 924(a)(8) and increased the 

potential penalty for § 922(g) violations to imprisonment “for not more 

than 15 years.” See 18 U.S.C. § 924(a)(8) (effective June 25, 2022); see 

also Pub. L. No. 117–159, § 12,004(c), 136 Stat. 1313, 1329 (June 25, 

2022).

2 This stipulation reflected the state of circuit law as it stood as that time, 

under which the government did not have the burden of proving any 

knowledge on the part of Michell. See United States v. Johnson, 459 F.3d 

990, 998 (9th Cir. 2006) (characterizing various federal firearms laws, 

including § 922(g)(1), as “something approaching absolute liability”). 

The only defense available to Michell was whether in fact he possessed 

the rifle and ammunition.
UNITED STATES V. MICHELL 17

government objected as to relevance, and the district court 

instructed Michell’s counsel to “move on.” A few moments 

later, when Michell’s counsel sought to examine him on his 

knowledge of his legal status, the government objected on 

relevance grounds, which the district court sustained. The 

district court then instructed the jury, in the middle of trial, 

that “what the defendant’s conclusions about the law were 

as it relates to his knowledge of being a prohibited possessor 

is not relevant.” At the close of trial, the district court 

instructed the jury that one of the elements of the charged 

offense was that “[a]t the time the defendant possessed the 

[ammunition and firearm], the defendant had been convicted 

of a crime punishable by imprisonment for a term exceeding 

one year.”

After more than three hours of deliberations, the jury 

returned a guilty verdict. Although the government sought a 

sentence of almost six years, the district court sentenced 

Michell to less than half that—30 months.

The following year, the Supreme Court upended 

longstanding law in this area. It held that “in a prosecution 

under 18 U.S.C. §§ 922(g) and § 924(a)(2), the Government 

must prove both 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.” 

Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) 

(emphasis added).

On appeal, Michell challenges both the indictment and 

the jury instruction’s failure to include the mens rea element 

required by Rehaif. Because he did not raise that issue at 

trial, he forfeited the claim of error under Federal Rule of 

Criminal Procedure 51(a). Greer v. United States, 141 S. Ct. 

2090, 2096 (2021).
18 UNITED STATES V. MICHELL

Even so, we may consider “plain error that affects 

substantial rights.” Fed. R. Crim. P. 52(b). There are three 

threshold requirements for relief under such review: (1) an 

error must exist (2) that is clear or obvious and (3) that 

affects “substantial rights.” Greer, 141 S. Ct. at 2096. This 

“generally means that there must be ‘a reasonable 

probability that, but for the error, the outcome of the 

proceeding would have been different.’ ” Id. (quoting 

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05 

(2018)). “If those three requirements are met, an appellate 

court may grant relief if it concludes that the error had a 

serious effect on ‘the fairness, integrity or public reputation 

of judicial proceedings.’ ” Id. at 2096–97 (quoting RosalesMireles, 138 S. Ct. at 1905).

It is undisputed here that Michell satisfies the first two 

requirements of plain-error review. Under Rehaif, the grand 

jury’s indictment was defective, because it failed to allege 

that when Michell possessed the ammunition and rifle he 

knew that he had been “convicted in any court of[] a crime 

punishable by imprisonment for a term exceeding one year.” 

18 U.S.C. § 922(g)(1). Similarly, the district court failed to 

include that element of the charged offense in the jury 

instruction.

As to the third requirement of plain-error review—

whether there is a “reasonable probability” that a jury could 

find that Michell did not know at the time of the charged 

conduct that he had been “convicted . . . of[] a crime 

punishable by imprisonment for a term exceeding one year,” 

id.—that “standard is not the same as, and should not be 

confused with, a requirement that a defendant prove by a

preponderance of the evidence that but for error things 

would have been different.” United States v. Irons, 31 F.4th 

702, 714 (9th Cir. 2022) (quoting United States v. 
UNITED STATES V. MICHELL 19

Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)) (emphasis 

in Irons); see also id. (on plain-error review, a defendant 

“does not have to show that it is more likely than not that a

[correctly-instructed] jury would have acquitted him”). 

Instead, “[a] probability is ‘reasonable’. . . if it is sufficient 

to undermine confidence in the outcome of the proceeding.” 

Id. at 713–14 (cleaned up) (citing Dominguez Benitez, 542 

U.S. at 83).

Finally, in this context of a § 922(g)(1) charge, we also 

ask whether “a defendant who is a felon [makes] an adequate 

showing on appeal that he [c]ould . . . present[] evidence in 

the district court that he did not” possess the necessary mens 

rea at the time of the charged conduct. Greer, 141 S. Ct. at 

2097.

II

Given the evident problems with relying on Michell’s 

juvenile conviction as a felon-in-possession predicate, see, 

e.g., United States v. Wilson, 853 F. App’x 297, 305–07 

(10th Cir.) (mem.), cert. denied, 142 S. Ct. 366 (2021) (court 

of appeals was “unable to conclude that the jury would have 

reached the same conclusion if properly instructed” under 

Rehaif when a § 922(g) defendant’s convictions were all 

juvenile except for an adult conviction at age 18, for which 

he served four years in the youthful offender system rather 

than adult prison) (cleaned up), the majority rests its 

affirmance solely on Michell’s two DUI convictions in early 

2017—stemming from conduct more than 13 years earlier—

for which he served only four months in prison.3 As to these 

3 Because the majority declines to consider whether Michell’s juvenile 

conviction qualifies as a felon-in-possession predicate, I likewise decline 

to do so.
20 UNITED STATES V. MICHELL

convictions, Michell asserts that he did not know, at the time 

of the charged conduct in November/December 2017, that 

they were punishable by more than one year of 

imprisonment.

My colleagues find no “reasonable probability” that a 

jury could find that Michell did not realize that his DUI 

convictions were so punishable. Majority at 8. They cite his 

2016 Maricopa County plea agreement, id. at 9, his 

statements to investigators, id. at 13, and his trial testimony, 

id. I address each of these in turn.

A

1

On October 21, 2016, Michell signed an agreement to 

plead guilty in the Maricopa County Superior Court to 

driving under the influence in 2003. This agreement is not 

included in the record of any part of this case; the 

government proffers it on appeal through a motion 

requesting that we take judicial notice under Federal Rule of 

Evidence 201(d). Michell objects, arguing that on plain error 

review we are limited to the entire record, even if we are not 

limited to the trial record. See Irons, 31 F.4th at 714 (on 

plain-error review, “we ‘may consider the entire record—

not just the record from the particular proceeding where the 

error occurred’ ”) (quoting Greer, 141 S. Ct. at 2098)

(emphasis in Greer).

I agree with the majority that we are not so limited. The 

Court in Greer reasoned that on plain error review an 

appellate court can look beyond the trial record to “the entire 

record” because such review assumes a counterfactual 

scenario where the district court gave the proper mens rea

instruction and the parties “introduce[d] additional 
UNITED STATES V. MICHELL 21

evidence” relevant to that instruction. Greer, 141 S. Ct. at 

2098. The Court also suggested that the parties could seek to 

supplement the record on appeal with evidence bearing on 

the defendant’s state of mind. See id. at 2097 (citing Fed. R. 

App. P. 10(c)). It necessarily follows that we can consider 

additional “relevant and reliable” evidence from outside the 

entire record of the proceeding itself, at least to the extent 

such evidence could have been presented to the jury in the 

counterfactual hypothetical that plain error review envisions.

Michell further argues that even if we are not otherwise 

restricted on plain error review to the entire record, our 

decision in United States v. Dior, 671 F.2d 351 (9th Cir. 

1982), precludes us from taking judicial notice of his 2016 

Maricopa County plea agreement. In Dior, a case involving 

de novo review, we explained that for “an appellate court to 

take judicial notice of an adjudicative fact in a criminal case 

would frustrate the policies Congress sought to achieve in 

providing in F.R.Evid. 201([f]) that a jury is not required to 

accept as conclusive a judicially noticed fact.” Id. at 358 

n.11.

I agree with the majority that Dior and Rule 201(f)4 do 

not bar us from taking judicial notice of an adjudicative fact 

such as Michell’s 2016 Maricopa County plea agreement.5

That rule’s purpose is to “preserve the jury’s traditional 

4 Federal Rule of Evidence 201(f) provides that “[i]n a criminal case, the 

court must instruct the jury that it may or may not accept the [judicially] 

noticed fact as conclusive.” Fed. R. Evid. 201(f) (emphasis added).

5 An “adjudicative fact . . . is a fact ‘concerning the immediate parties.’ ”

Banks v. Schweiker, 654 F.2d 637, 640 n.3 (9th Cir. 1981) (quoting Fed. 

R. Evid. 201 advisory cmte. notes). Michell’s initials and signature on 

the 2016 Maricopa County plea agreement concern him and thus are 

adjudicative facts.
22 UNITED STATES V. MICHELL

prerogative, in a criminal case, to ignore even 

uncontroverted facts in reaching a verdict and to prevent the 

trial court from violating the spirit of the Sixth Amendment 

right to counsel by directing a partial verdict as to facts.” 

Dior, 671 F.2d at 358 n.11 (citing United States v. Jones, 580 

F.2d 219, 223–24 (6th Cir. 1978); H.R. No. 93-650, 93d 

Cong., 1st Sess. 6–7, reprinted in 1974 U.S.C.C.A.N. 7051, 

7075, 7080).

On plain error review, however, we ask whether the error 

affects “substantial rights,” Greer, 141 S. Ct. at 2096, which 

requires “the showing of ‘a reasonable probability that, but 

for the error claimed, the result of the proceeding would have 

been different.” Dominguez Benitez, 542 U.S. at 81–82 

(cleaned up and quoting United States v. Bagley, 473 U.S. 

667, 682 (1985) (opinion of Blackmun, J.)). This 

formulation reflects the standard adopted in Strickland v. 

Washington, 466 U.S. 668 (1984), where the Court

explained that in determining “whether the specified errors 

resulted in the required prejudice,” id. at 694,

a court should presume, absent challenge to 

the judgment on grounds of evidentiary 

insufficiency, that the judge or jury acted 

according to law. An assessment of the 

likelihood of a result more favorable to the 

defendant must exclude the possibility of 

arbitrariness, whimsy, caprice, 

“nullification,” and the like. A defendant has 

no entitlement to the luck of a lawless 

decisionmaker, even if the lawless decision 

cannot be reviewed.

Id. at 694–95.
UNITED STATES V. MICHELL 23

It follows from this reasoning that we must presume—

because Michell does not challenge the evidentiary 

sufficiency of the decision below—that if the district court 

had taken judicial notice of his 2016 Maricopa County plea 

agreement and given a Rule 201(f) instruction, the jury 

would not have exercised its prerogative to simply ignore the 

existence of that agreement, whose authenticity is 

unchallenged. Rule 201(f) therefore is no impediment to our 

taking judicial notice of Michell’s plea agreement, and I 

concur in granting the government’s motion that we take 

such notice.

2

The majority holds that Michell’s 2016 Maricopa 

County plea agreement “prove[s] beyond a reasonable doubt 

that [Michell] knew in 2017 that he had been convicted of a 

crime punishable by more than a year in prison.” Majority at 

9. Although I acknowledge that a jury might reach that 

conclusion after a new trial, it’s by no means a foregone 

conclusion.

In my view, Michell’s 2016 Maricopa County plea 

agreement is underwhelming evidence of his state of mind 

at the time of the charged conduct over a year later.6 That 

Michell signed the document and initialed its 11 paragraphs 

of fine print hardly establishes that he read the document at 

the time.

And even if we infer that Michell read the plea 

agreement, I don’t see how we can be certain that he 

understood it. As Michell argues in response to the 

6 Michell signed the Maricopa County plea agreement in October 2016. 

The superseding indictment charged Michell with possessing a rifle and 

ammunition in November/December 2017.
24 UNITED STATES V. MICHELL

government’s motion to take judicial notice, the plea 

agreement “raises more questions than it answers.” The 

passage cited by the majority provides:

Count 1: The crime carries a presumptive 

sentence of 2.5 years; a minimum sentence of 

1.5 years; a mitigated sentence of 1 year; a 

maximum sentence of 3 years; and an 

aggravated sentence of 3.75 years. Probation 

IS available.

On the face of the document, it’s not clear which of these 

sentence ranges Michell was eligible for. For all he knew as 

a layman, his maximum exposure was limited to “a mitigated 

sentence of one year,” which might not be a qualifying felonin-possession predicate.

Michell also points out the passage cited by the majority 

is neither boldfaced nor underscored in its entirety, in 

contrast to the key provisions of the agreement outlining the 

actual terms affecting him, such as the provision stating that 

Defendant shall serve 4 months in the 

Arizona Department of Corrections then 

be placed on Supervised Probation. 

Defendant shall pay a fine of $750 plus an 

80% surcharge....Defendant’s driver’s 

license shall be revoked.

(Boldface and underscoring in original.) If Michell read any 

part of the plea agreement, he was more likely to have read 

the boldfaced and underscored provisions outlining the 

bottom-line consequences for him.

And even if Michell read and understood the contents of 

his 2016 Maricopa County plea agreement, it does not 

necessarily mean that he remembered the agreement’s 
UNITED STATES V. MICHELL 25

sentencing range minutia at the time of his charged conduct. 

Cf. United States v. Werle, 35 F.4th 1195, 1205 (9th Cir. 

2022) (that “he knew of [the possible imprisonment term 

almost two] years earlier [at his sentencing hearing] does not 

necessarily mean that he remembered it at the time he 

possessed the firearm”). The only points of the agreement 

that he was certain to have remembered were the ones that 

directly affected him—his four-month sentence, his 

probation, his fine, and the loss of his driver’s license. Even 

then, over a year later he may not have remembered the 

amount of his fine, just as he may not have remembered his 

sentencing exposure range (unlike his fine, a fact of no 

significance to him).

As Greer requires, see 141 S. Ct. at 2098, Michell points 

to evidence that he can present at a new trial to show that he 

did not realize at the time of the charged conduct that his 

DUI convictions were punishable by imprisonment for more 

than one year. Most importantly, he points to his concurrent 

four-month prison sentences. “[I]n each of our published 

opinions denying relief for Rehaif errors we have cited the 

fact that a defendant actually served more than one year in 

prison as a reason for concluding that the defendant knew 

that he had been convicted of a crime punishable by more 

than one year in prison.” Werle, 35 F.4th at 1204–05 

(emphasis added). Drawing from that caselaw, we explained 

that “the length of time one serves in prison bears on whether 

one is likely to remember that one’s convictions were 

punishable by more than one year in prison.” Id. at 1205; see 

also Rehaif, 139 S. Ct. at 2198 (suggesting that 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2) do not apply to “a person who 

was convicted of a prior crime but sentenced only to 

probation, who does not know that the crime is ‘punishable

by imprisonment for a term exceeding one year’ ”) (first 
26 UNITED STATES V. MICHELL

emphasis added, second emphasis in original) (quoting 18 

U.S.C. § 922(g)(1)).

Not only does this case fit squarely under Werle, but it’s 

an even stronger case for a new trial. In Werle, the defendant 

was sentenced to one year and one day for each of his 

predicate convictions,7 but he served less than a year on 

each. 35 F.4th at 1203. Even so, we found that he could make 

“a colorable argument at trial” that he did not know at the 

time of the charged conduct—less than two years after his 

most recent sentencing hearing—that his conviction was 

punishable by more than a year in prison. Id. We did so even 

though he “was more likely to know that he had been 

convicted of a felony than another similarly situated 

defendant who was sentenced to less than one year in 

prison.” Id. at 1205 (emphasis added).

Because Michell was only sentenced to and only served 

four months for his DUI convictions, he was less likely to 

know he had been convicted of a felon-in-possession 

predicate than the defendant in Werle. Even more than that 

defendant, Michell could make a “colorable argument” at 

trial that he did not know that his DUI convictions were 

punishable by more than a year’s imprisonment. We should 

follow Werle here and not treat Michell’s plea agreement as 

conclusive evidence of his state of mind over a year later as 

the majority does.

7 Aside from the two predicate convictions for his felon-in-possession 

charge, the defendant in Werle had been convicted of at least 18 other 

crimes. See 35 F.4th at 1203. In contrast, Michell had no prior 

convictions other than his juvenile conviction and his DUI convictions, 

all of which stemmed from offenses that antedated the charged conduct 

by more than a decade.
UNITED STATES V. MICHELL 27

B

The majority also cites Michell’s statement, in his postarrest interview with the FBI, that “he did not have guns 

himself because he was a ‘felon.’ ” Majority at 13. 

Respectfully, the critical question here is not whether 

Michell knew he was a “felon,” a vague term nowhere found 

in §§ 922(g)(1) and 924(a)(2).8 The critical question is 

instead whether he knew, at the time of the charged conduct, 

that his 2017 DUI convictions were punishable by 

imprisonment for more than one year. His statement to his 

FBI interrogators is at most probative of that question rather 

than conclusive. Cf. Werle, 35 F.4th at 1206 (“[A] 

defendant’s acknowledgement that he has been convicted of 

a felony,” while “undoubtedly probative evidence that a 

factfinder may consider in determining whether the 

defendant had the requisite mens rea[,] . . . standing alone is 

not necessarily conclusive . . . .”) (emphasis in original).

Nor does Michell’s statement to investigators implying 

it wasn’t “legal” for him to have guns speak to whether he 

knew that his DUI convictions were punishable by more than 

one year of imprisonment. To begin with, the majority 

ignores that Michell acknowledged that the terms of his 

probation for his 2017 DUI convictions precluded his 

8 Michell correctly notes that as “a matter of convenience” courts often 

use “felon” to describe defendants who satisfy § 922(g)(1)’s lengthy 

definition, but that neither a defendant’s nor the courts’ use of that 

shorthand “adequately describe[s] the element that the Government[] has 

the burden of proving under § 922(g)(1)” under Rehaif. See also Werle, 

35 F.4th at 1205 (“Although a violation of § 924(a)(2) and § 922(g)(1) 

is colloquially referred to as being a ‘felon in possession of a firearm,’ 

the word ‘felon’ does not appear in the relevant statutory provisions.”).
28 UNITED STATES V. MICHELL

possession of firearms. His statement was not necessarily a 

reference to his status under federal law.

But more importantly, the government need not prove 

that “the defendant knew his or her status prohibited firearm 

ownership or possession.” United States v. Singh, 979 F.3d 

697, 727 (9th Cir. 2020). That necessarily cuts in both 

directions. If a defendant’s knowledge as to whether he 

could possess weapons is not relevant to his defense, then 

surely that same knowledge can’t be used to convict him, as 

we acknowledged in Werle. See 35 F.4th at 1202–03 (“That 

he knew . . . that he was not supposed to possess a firearm 

do[es] not suffice” for purposes of the government’s burden 

of proof.) (emphasis added).9 The relevant inquiry here is 

whether Michell “knew that the maximum potential sentence 

to which he was exposed for his [DUI convictions] exceeded 

one year.” Id. at 1203. That Michell understood he was a 

prohibited possessor does not matter.

C

Finally, the majority cites Michell’s trial testimony. 

Majority at 13. The first cited passage reads as follows:

Defense Counsel: So you know that there 

were aggravated DUI charges, you know to 

be a felony?

Michell: Yes, sir.

9 “There are many reasons one might be prohibited from possessing a 

firearm . . . . Thus, the fact that a defendant knows that he may not 

possess a firearm is not conclusive evidence that he knows that he has 

been convicted of a crime punishable by more than one year in prison.” 

Id. at 1203 n.4.
UNITED STATES V. MICHELL 29

(Emphasis added.)

Once again, the majority strays off course. Of course 

Michell knew at the time of trial that his DUI convictions 

were “felonies” (whatever that means, see above note 8) for 

purposes of federal law. After all, that’s what the man was 

on trial for. But the relevant question is Michell’s state of 

mind “when he possessed the firearm,” Werle, 35 F.4th at 

1205 (emphasis added) (quoting Greer, 141 S. Ct. at 2095). 

Because this question was asked and answered in the present 

tense, Michell’s response lacks probative value.

The second passage cited by the majority reads as 

follows:

Defense Counsel: Are you a prohibited 

possessor?

Michell: Yes, sir. After my DUI matter, that’s 

why there was no guns, no—I mean, I’m not 

going to lose my opportunity to be . . . with 

my daughters.

(Emphasis added.)

Unlike the colloquy discussed above, Michell’s answer 

speaks to his state of mind at the time of the charged conduct 

as well as at trial. But as explained above, it is of no moment 

if Michell knew at the time of the charged conduct “that he 

was not supposed to possess a firearm” for purposes of 

federal law,10 because that “does not suffice” to establish the 

10 Even if it were relevant, the trial testimony cited by the majority does 

not necessarily establish that Michell knew at the time of the charged 

conduct that he was a prohibited possessor for purposes of federal law.
30 UNITED STATES V. MICHELL

government’s Rehaif burden. Werle, 35 F.4th at 1202–03. 

“What matters is whether [he] knew that the maximum 

potential sentence to which he was exposed for his previous 

crimes exceeded one year.” Id.

D

As the majority points out, Michell must demonstrate 

that there exists “a reasonable probability that, but for the 

error, the outcome of the proceeding would have been 

different.” Majority at 7 (quoting Greer, 141 S. Ct. at 2096). 

The Supreme Court has explained that “[a] ‘reasonable 

probability’ of a different result is . . . shown when the [error] 

‘undermines confidence in the outcome of the trial.’ ” Kyles 

v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 

U.S. at 678).

To undermine such confidence, we know that the 

defendant need not show that he “more likely than not” 

would “have received a different verdict” without the error. 

Id.; cf. Strickler v. Greene, 527 U.S. 263, 298 (1999) (Souter, 

J., concurring) (“[T]he continued use of the term 

‘probability’ raises an unjustifiable risk of misleading courts 

into treating it as akin to the more demanding standard, 

‘more likely than not.’ ”).11 “Reasonable probability” 

therefore means some chance that is less than 51 percent at 

the high end of the range.

As discussed above, Michell acknowledged at trial that the probation 

terms of his 2017 DUI convictions precluded his possession of firearms.

11 The reasonable probability test “is not a sufficiency of evidence test,” 

as “[t]he possibility of an acquittal on a criminal charge does not imply 

an insufficient evidentiary basis to convict.” Kyles, 514 U.S. at 434–35.
UNITED STATES V. MICHELL 31

On the other hand, we also know that plain error review 

should not be “too easy” for defendants. See Dominguez 

Benitez, 542 U.S. at 82 (noting that the policy of Federal 

Rule of Criminal Procedure 52(b) is “to encourage timely 

objections and reduce wasteful reversals by demanding 

strenuous exertion to get [plain error] relief”). To that end, 

the Supreme Court’s cases teach that “reasonable 

probability” is more demanding for defendants than a mere 

“reasonable possibility.” See Greene, 527 U.S. at 291 

(explaining that a defendant must “establish a reasonable 

probability of a different result,” not just “a reasonable 

possibility”) (emphasis in original); see also United States v. 

Agurs, 427 U.S. 97, 109–10, (1976) (“[T]he mere possibility 

that an item of undisclosed information might have aided the 

defense, or might have affected the outcome of the trial, does 

not establish ‘materiality’ in the constitutional sense.”); 

Greene, 527 U.S. at 300 (Souter, J., concurring) (explaining 

that “ ‘reasonable possibility’ . . . and ‘reasonable 

probability’ express distinct levels of confidence concerning 

the hypothetical effects of errors on decisionmakers’ 

reasoning”).12

As the Supreme Court in another context has defined a 

“reasonable possibility” as meaning as low as a 10 percent 

chance, see INS v. Cardoza-Fonseca, 480 U.S. 421, 440 

(1987) (explaining that “a 10% chance of being . . . 

persecuted” is a “reasonable possibility” of such persecution 

occurring), a “reasonable probability” is something less than 

51 percent (“more likely than not”) but more than 10 percent 

(“reasonable possibility”). In view of Justice Souter’s 

suggestion that the difference between “reasonable

12 But see Irons, 31 F.4th at 713, 715 (using “reasonable possibility” as 

synonymous with “reasonable probability”).
32 UNITED STATES V. MICHELL

probability” and “reasonable possibility” is “slight” and that 

the former is closer to the latter than it is to “more likely than 

not,” see Greene, 527 U.S. at 300 (Souter, J., concurring), 

but also keeping in mind the Supreme Court’s admonition 

that plain error relief should not be “too easy,” Dominguez 

Benitez, 542 U.S. at 82, I think we can define “reasonable 

probability” as roughly a 25 percent likelihood.13

On this record, as augmented through judicial notice, 

there is modest evidence that Michell “knowingly” violated 

§ 922(g)(1) as Rehaif requires: The government’s case rests 

on statements Michell made that do not speak directly to his 

state of mind at the time of the charged conduct and on an 

ambiguous sentencing-range provision that Michell had no

reason to focus on—much less commit to memory—when 

he signed the 2016 Maricopa County plea agreement more 

than a year before his charged conduct. The weakness of the 

government’s case, when coupled with the evidence 

negating his mens rea that Michell says he will introduce in 

any new trial—specifically, that the Arizona courts 

adjudicating his DUI offenses sentenced him to only four 

months and that he only served the same—leads me to 

conclude that the likely outcome of any new trial is a 

coinflip. Michell therefore has more than carried his burden 

13 I acknowledge that Justice Scalia condemned seeking to define 

“ineffable gradations of probability” other than “beyond a reasonable 

doubt” and “more likely than not” as “beyond the ability of the judicial 

mind (or any mind) to grasp, and thus harmful rather than helpful to the 

consistency and rationality of judicial decisionmaking.” Dominguez 

Benitez, 542 U.S. at 86–87 (Scalia, J., concurring in the judgment). But 

unless and until the Supreme Court adopts the “more likely than not” 

standard advocated by Justice Scalia, see id., lower court judges on plain 

error review must grapple with divining the meaning of “reasonable 

probability.” 
UNITED STATES V. MICHELL 33

of demonstrating at least a 25 percent likelihood “that a 

properly instructed jury would have had a reasonable doubt” 

as to whether he knew at the time of the charged conduct that 

his DUI convictions exposed him to imprisonment for more 

than one year. Irons, 31 F.4th at 715. Because that likelihood 

is “sufficient to undermine confidence in the outcome” of the 

proceeding, id. at 714 (quoting Dominguez Benitez, 542 U.S. 

at 83), in my judgment the district court’s Rehaif errors 

affected his substantial rights.

III

As Michell has satisfied his burden to show that plain 

error affected his substantial rights, in my view we should 

exercise our discretion to correct this error because it 

seriously affects “the fairness, integrity[, and] public 

reputation of judicial proceedings.” Greer, 141 S. Ct. at 2097 

(quoting Rosales-Mireles, 138 S. Ct. at 1905). Michell “was 

deprived of his basic right to have the jury decide every 

element of the offense charged. The error also led him to 

forego possibly winning defenses and trial tactics. And the 

evidence that the jury would have convicted him anyway is 

too thin for us to say that close is close enough.” United 

States v. Gear, 9 F.4th 1040, 1051 (9th Cir. 2021) (Bumatay, 

J., concurring in part and dissenting in part); see also Irons, 

31 F.4th at 715 (“Removing the key disputed issue at trial

from the jury’s consideration certainly casts doubt on the 

fairness of the proceedings, even if Irons’ own counsel failed 

to catch the error.”). And because the government’s case 

against Michell on the element of his knowledge is marginal, 

reversal is no threat to “the integrity or fairness of the 

proceedings.” Irons, 35 F.4th at 715 (quoting United States 

v. Turchin, 21 F.4th 1192, 1203 (9th Cir. 2022)).
34 UNITED STATES V. MICHELL

* * *

The constitutional right to a “public trial, by an impartial 

jury” on all elements of a charged offense is a lone citizen’s 

last line of defense against the vast power of the United 

States Government. U.S. Const. amend. VI; see also 3 J. 

Story, Commentaries on the Constitution of the United 

States § 1774, at 653 (1833) (“[T]rial by jury” protects 

“against a spirit of oppression . . . on the part of rulers, . . . 

the prejudices of judges, who may partake of the wishes and 

opinions of the government, and . . . the passions of the 

multitude . . . .”). Because the evidence (even as augmented 

through judicial notice) against Michell is modest rather than 

overwhelming, I would send this case back for a new 

indictment and new trial. In such a trial, Michell could for 

the first time fully defend himself before a properly 

instructed jury. I respectfully dissent from the majority’s 

affirmance of his conviction.