“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Jamaican citizen Oniel Russell was convicted of being an undocumented immigrant in possession of firearms. Eleventh Circuit Trump judge Elizabeth Branch would have upheld his conviction even though he had not been allowed to present information to the jury that could have shown he was not guilty. The May 2020 case is U.S. v. Russell.

Under then-binding Eleventh Circuit precedent, government prosecutors did not need to prove that Russell had actually known he was in the country unlawfully, so the jury was told only that he had overstayed his initial visitor visa. Russell was prohibited from telling the jury why he thought his presence was authorized.

Russell had married an American citizen (Vanessa Hood), who filed a petition with immigration authorities designating him as her husband. He then submitted a petition for a spousal visa. Under federal law, filing the application gave him the legal right to stay in the country while the government processed his request. Hood then learned that Russell was already married to someone in Jamaica, and she withdrew her petition stating that she was married to Russell. But when the police found Russell with the firearms, U.S. Citizenship and Immigration Services had not yet acknowledged Hood’s letter or cancelled Russell’s visa application.

During Russell’s appeal, the Supreme Court reversed the Eleventh Circuit precedent cited by the trial court. The justices made clear that in order to convict someone under the law, prosecutors must prove that they knew they were in the country unlawfully. This had an enormous impact on Russell’s pending appeal: The Eleventh Circuit panel majority—which included a judge nominated by President Reagan—ruled that the trial judge had made a plain error that affected Russell’s legal rights.

Trump Judge Elizabeth Branch dissented. She wrote that since Russell had known his marriage to Hood was not legal, he could not have been under the impression that he was in the country lawfully. But as the majority explained, knowing that his marriage to Hood wasn’t legal does not tell us anything about Russell’s subjective thoughts about whether he was in the country legally. That is a question the jury should decide. Branch would have upheld the conviction without letting Russell make this basic argument to a jury.