# *U.S. v. Gary* When Michael Gary pled guilty to two counts of possessing a firearm as a felon, he was not informed of the essential elements of the charges against him. March 25, 2021 • Legal Briefs By [Clark Neily](https://www.cato.org/people/clark-neily), [Jay Schweikert](https://www.cato.org/people/jay-schweikert), and [James Craven](https://www.cato.org/people/james-craven) [ Download PDF ](https://www.cato.org/sites/cato.org/files/2021-03/United-States-v-Gary-Cato-amicus-brief.pdf) Learn more about [Cato’s Amicus Briefs Program](/about/cato-amicus-program). It is an axiomatic constitutional principle, reflected in the plain text of the Sixth Amendment, that criminal defendants must be “informed of the nature and cause of the accusation” against them. Even when defendants enter guilty pleas, the Supreme Court has long held that if a defendant is not adequately informed about the elements of the offense they’re charged with, any guilty plea is inherently involuntary, and must be vacated. When Michael Gary pled guilty to two counts of possessing a firearm as a felon, he was not informed of the essential elements of the charges against him. Specifically, he was not informed that the state would have to prove that he actually *knew* he was prohibited from carrying a firearm, because this *mens rea* element was first articulated in *Rehaif v. United States*, 139 S. Ct. 2191 (2019)—decided while Gary’s case was on direct appeal. Gary filed a supplemental brief in his appeal before the Fourth Circuit, explaining that he had not been informed of this *mens rea* element, and the court therefore vacated his guilty plea. But the Supreme Court granted the Government’s cert petition, which argues that the failure to adequately inform Gary as to the charges against him was “harmless error,” so his conviction should stand. The Government contends that omitting the *mens rea* element “typically makes no difference at all to a defendant’s decision to plead guilty,” and asks the Court to consider the “substantial costs” that would be imposed if these defective pleas were vacated. In other words, the Government’s implicit premise is that defendants are presumptively going to plead guilty, and that failure to inform defendants about what they are actually pleading to should not slow down this process. The Cato Institute therefore filed an *amicus* brief urging the U.S. Supreme Court to reject the Government’s argument, affirm the Fourth Circuit’s judgment, and protect the Sixth Amendment’s guarantee that defendants will “be informed of the nature and cause of the accusation” against them. The brief entreats the Court to take stock of two deleterious trends in criminal justice that make protection of this guarantee all the more imperative. First, the brief explains how the Government’s position is indicative of a long and steady erosion of the jury trial itself. Had Gary’s conviction been handed down by a jury, the Government’s failure to prove the *mens rea* element would clearly require vacatur of the judgment. Second, the brief underscores how the increasingly coercive nature of modern plea agreements make it all the more urgent that the Court recognize the *explicit* lack of voluntariness in this particular case. [![United-States-v-Gary-cover.jpg](/sites/cato.org/files/styles/serial_cover_phone/public/2021-03/United-States-v-Gary-cover.jpg?itok=7jZOr2bj)](https://www.cato.org/sites/cato.org/files/2021-03/United-States-v-Gary-Cato-amicus-brief.pdf) ### Download This Legal Brief ##### *U.S. v. Gary* [ Download PDF ](https://www.cato.org/sites/cato.org/files/2021-03/United-States-v-Gary-Cato-amicus-brief.pdf) ##### About the Authors [![Clark Neily](/sites/cato.org/files/styles/author_picture/public/2021-01/Clark%20Neily.jpg?itok=kOJs7hwY)](/people/clark-neily) ##### [Clark Neily](/people/clark-neily) Senior Vice President for Legal Studies, Cato Institute [ ](https://x.com/conlawwarrior) [ ](mailto:cneily@cato.org) [![Jay Schweikert](/sites/cato.org/files/styles/author_picture/public/2021-01/Jay%20Schweikert.jpg?itok=FlOV7Jh1)](/people/jay-schweikert) ##### [Jay Schweikert](/people/jay-schweikert) Former Research Fellow, Project on Criminal Justice [![James Craven cropped photo](/sites/cato.org/files/styles/author_picture/public/2024-10/James-Craven-cropped.jpg?itok=KazX_4J5)](/people/james-craven) ##### [James Craven](/people/james-craven) Manager of Legal Studies, Cato Institute [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/). [ Download PDF ](https://www.cato.org/sites/cato.org/files/2021-03/United-States-v-Gary-Cato-amicus-brief.pdf)