Mcneely, 133 S. Ct. - (April 17, 2013) - Mcneely Was Stopped by A Police

UNITED STATES SUPREME COURT REVIEW - PREVIEW - OVERVIEW CRIMINAL CASES DECIDED AND GRANTED REVIEW FOR THE
OCTOBER 2012-13 TERMS THRU APRIL 23, 2013 PAUL M. RASHKIND CHIEF, APPELLATE DIVISION OFFICE OF THE FEDERAL PUBLIC DEFENDER , S.D. FLA . I. SEARCH & SEIZURE A. Involuntary Sampling of Bodily Fluids and Genetics 1. Warrantless Involuntary Blood Test in DUI Investigation Missouri v. McNeely, 133 S. Ct. ___ (April 17, 2013). McNeely was stopped by a police officer for speeding, but based on the officers observations, the stop was converted into a DUI investigation. After McNeely performed poorly in roadside tests, he was arrested for DUI and placed in a police vehicle. While being transported to jail the officer him if he would agree to voluntarily provide a breath sample when they arrived at the jail. McNeely told the patrolman that he would refuse to provide a breath sample. Instead of going to the jail, the officer went directly to a nearby hospital. He first read him an implied consent form and, after McNeely refused, the officer directed hospital staff to draw blood despite McNeelys refusal. A later chemical analysis established a blood alcohol level of .154, well above the limit of .08. He was charged with DWI. McNeely sought suppression of the blood sample and results. The Missouri Supreme Court upheld his challenge, holding that the nonconsensual blood draw violated the Fourth Amendment. In ruling, it rejected the states argument that Schmerber v. California, 385 U.S. 757 (1966) permitted a nonconsensual and warrantless blood draw in this case based on exigent circumstances. The Missouri court found that Schmerber was limited to the special facts of that case: The patrolman here, however, was not faced with the special facts of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge. The state petitioned for certiorari review, arguing that dissipation of the blood alcohol content, alone, is an exigent circumstance implicating Schmerber. The U.S. Supreme Court affirmed (4-1-4), in an opinion written by Justice Sotomayor, holding that
SEQUESTERED AND FURLOUGHED EDITION 1
Prepared by Paul M. Rashkind
the natural dissipation of alcohol in the bloodstream does not establish a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations. Justice Kennedy concurred in the result, but not as to two sections of the majority opinion that avoided addressing potential future guidelines and data concerning guidelines to govern the need for a warrant in such cases; he thought this aspect of the opinion did not need to be decided in this case, but made it clear that it should be addressed in the future. Although he agreed with the majority that each case should be decided individually, he expressed a belief that the case-by-case approach could benefit from guidelines. Chief Justice Roberts, joined by Justices Breyer and Alito concurred in part and dissented in part, clashing with the majority on the two section of its opinion that Justice Kennedy refused to join. Justice Thomas simply dissented, contending that the natural dissipation of blood alcohol is a per se exception to the warrant requirement. 2. Involuntary DNA Sample. Maryland v. King, 133 S. Ct. ___ (cert. granted Nov. 9, 2012); decision below at 425 Md. 550 (CA 2011). Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes, but not yet convicted of any offense?
B.
Canines and the Fourth Amendment 1. Dog Sniff at the Door. Florida v. Jardines, 133 S. Ct. ___ (Mar. 26, 2013). Police received a Crime Stoppers tip that Jardines was growing marijuana in his house. About a month later, a detective and drug task force conducted surveillance at Jardines house. Observing no activity, the detective, a canine officer and his trained police dog Franky walked up the sidewalk to the front porch. Franky explored the front porch area and alerted at the front door. The handler gave this information to the detectives, who on that basis applied for a warrant. With the search warrant in hand, they searched the home, found marijuana plants, and arrested Jardines for trafficking in cannabis. He moved to suppress, arguing that the warrantless dog sniff violated the Fourth Amendment. The trial court granted the motion to suppress, but an intermediate appellate court reversed. The Florida Supreme Court then reinstated the suppression order, holding that a sniff test, such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a search within the meaning of the Fourth Amendment. The Supreme Court affirmed, in a 5-4 decision authored by Justice Scalia, holding: The governments use of trained police dogs to investigate the home and its immediate surroundings is a search within the meaning of the Fourth Amendment. The majority relied on a property-rights baseline that keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines property to gather evidence is enough to establish that a search occurred. In
a footnote, the majority makes clear, that it is not the dog that is the problem, but the behavior that here involved the use of the dog. We think a typical person would find it a cause for great alarm. . . to find a stranger snooping about his front porch with or without a dog. Justice Kagan filed a concurring opinion in which Justice Ginsburg and Justice Sotomayor joined, to emphasize that while the majority treats this case under a property rubric . . . I could just as happily have decided it by looking to Jardines privacy interests. As Justice Kagan noted, [i]t is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. Justice Alito dissented, joined by Chief Justice Roberts, and Justices Kennedy and Breyer. 2. Dog Alert to Motor Vehicle. Florida v. Harris, 133 S. Ct. ___ (Feb. 19, 2013). The Florida Supreme Court held 5-1 (one justice recused) that a dog alert alone was insufficient probable cause to justify a warrantless search of a motor vehicle, absent additional information about the degree of the dogs training and an assessment by the trial court of the dogs reliability. The Florida Supreme Court explained the issue: When will a drug-detection dogs alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle? That is the question in this case, and the answer is integral to the constitutional right of all individuals in this state to be protected from unreasonable searches and seizures. The issue of when a dogs alert provides probable cause for a search hinges on the dogs reliability as a detector of illegal substances within the vehicle. We hold that the State may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dogs reliability. In this case, we specifically address the question of what evidence the State must introduce in order to establish the reasonableness of the officers beliefin other words, what evidence must be introduced in order for the trial court to adequately undertake an objective evaluation of the officers belief in the dogs reliability as a predicate for determining probable cause. As to the evidentiary requirement during a suppression hearing the Florida Court held: We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dogs training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dogs reliability. The trial court must then assess the
reliability of the dogs alert as a basis for probable cause to search the vehicle based on a totality of the circumstances. Because in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress. The Supreme Court reversed, unanimously, in an opinion written by Justice Kagan. The question similar to every inquiry into probable cause is whether all the facts surrounding a dogs alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test. This allows the state to introduce evidence of a dogs reliability and for the defendant to challenge that evidence, but does not prescribe an inflexible set of evidentiary requirements. The Court noted that the Solicitor General acknowledged at oral argument that evidence of a dogs (or handlers) history or performance in the field may sometimes be relevant.. C. Detention Incident to Search with Warrant. Bailey v. United States, 133 S. Ct. ___ (Feb. 19, 2013). After obtaining a search warrant, but before executing the search, police followed Bailey as he left the subject premises in a vehicle. A person of a similar description was named in the search warrant application. They detained him a mile away from the premises and handcuffed him, although they disavowed that the detention was an arrest. After effecting the detention, police then commenced executing the search of the premises a mile away, pursuant to the search warrant. Michigan v. Summers, 452 U.S. 692 (1981) permits the detention of an individual in the immediate vicinity during execution of a search warrant. The Supreme Court reversed (6-3) with Justice Kennedy writing for the majority. The Court held that Michigan v. Summers, which does categorically authorize law enforcement officers to detain the occupants of the premises while a proper search is conducted without need for any level of suspicion, Muehler v. Mena, 544 U. S. 93 (2005), does not extend to the detention of a person who is not within the premises being searched or its "immediate vicinity. As a result, the detention of an individual who had left the premises before the search began and was a mile away before police detained him was not lawful under Michigan v. Summers. The Court added that [i]n closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupants location, and other relevant factors. Though the Second Circuits attempted extension of Michigan v. Summers was rejected, the Court pointed to alternative avenues for lawful detention: If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause. A suspects particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are conducting the search, including information that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention. Justice Breyer
dissented, joined by Thomas and Alito. D. Immigration Check Following Arrest. Arizona v. United States, 132 S. Ct. ___ (June 25, 2012). Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Its stated purpose is to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. Four provisions of the law are at issue. Two create new state offenses. Section 3 makes failure to comply with federal alien registration requirements a state misdemeanor. Section 5(c) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the state. Two other provisions give state and local police specific arrest authority and investigative duties. Section 6 authorizes officers to arrest without a warrant a person the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the persons immigration status with the federal government. The United States filed an injunctive action to prohibit enforcement of the law. The district court granted temporary injunctive relief, which was affirmed by the court of appeals. The question before the Supreme Court was whether federal law preempts and renders invalid these four separate provisions of the state law. In a 5-3 decision written by Justice Kennedy (Kagan recused), the Court struck down three of the provisions based upon federal preemption, but refused to uphold a preliminary injunction for section 2(B), which requires the police to check the immigration status of arrested individuals before releasing them. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume 2(B) will be construed in a way that creates a conflict with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277 (1915) (So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960) (To hold otherwise would be to ignore the teaching of this Courts decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. Justices Scalia, Thomas and Alito concurred in part and dissented in part.
II.
FIFTH AMENDMENT RIGHTS A. Commenting on Prearrest Silence in Face of Police Questioning. Salinas v. Texas, 133 S. Ct. ___ (cert. granted Jan. 11, 2013); decision below at 368 S.W.3d 550. (Tx. 2012). In Jenkins v. Anderson, 447 U.S. 231 (1980), the Supreme Court reserved the question whether or under what circumstances prearrest silence in the face of law enforcement questioning may be protected by the Fifth Amendment. Federal and state courts are now openly and intractably divided over the issue. A majority of the
federal appellate and state high courts to address the issue ten in all have held that the Fifth Amendment prohibits the prosecutor from commenting, as part of its case-in chief, on a defendants refusal to answer law enforcement questioning before he was arrested or Mirandized. On the other hand, at least seven and perhaps nine state and federal courts of appeals allow the prosecution to use pre-arrest, pre-Miranda silence against defendants. Here, a divided Texas Court of Criminal Appeals joined two federal courts of appeals and two other state high courts in holding that such a reaction to law enforcement questioning is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies. Question presented: Whether or under what circumstances the Fifth Amendments Self-Incrimination Clause protects a defendants refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights. III. RIGHT TO COUNSEL A. Ex Parte Seizure of Assets Required to Hire Counsel. Kaley v. United States, 133 S. Ct. ___ (cert. granted March 18, 2013); decision below at 579 F.3d 1276 (11th Cir. 2012). Title 18 U.S.C. 853(e) authorizes a district court, upon an ex parte motion of the United States, to restrain an indicted defendants assets that are subject to forfeiture upon conviction. The statute does not provide for a post-restraint, pretrial adversarial hearing at which the indicted defendant may challenge the propriety of the restraints. In United States v. Monsanto, 491 U.S. 600 (1989), the Supreme Court rejected a Fifth and Sixth Amendment challenge to the restraint of an indicted defendants assets needed to pay counsel of choice but, in a footnote, explicitly left open the question by then already dividing the circuits whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed. Since 1989, the circuit courts have continued to wrestle with the issue, producing a firmly entrenched split among the eleven circuits that have addressed it. Acknowledging the widespread conflict, the Eleventh Circuit held that assets needed to retain counsel of choice may remain frozen through trial based solely on a restraining order obtained ex parte, despite a defendants timely demand for a hearing to challenge the viability of the charges and forfeiture counts that purportedly justify the pretrial restraint. Question presented: When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges? Application of Martinez v. Ryan in Capital Cases. Trevino v. Thaler, 133 S. Ct. ___ (cert. granted Oct. 29, 2012); decision below unpublished a 449 Fed. Appx 415 (5th Cir. 2011). Trevino was convicted of a capital offense and sentenced to death. His state court lawyer did not raise the ineffectiveness of his trial counsel during earlier state court proceedings. In federal habeas proceedings, his federal habeas counsel raised for the first time a claim under Wiggins v. Smith, 539 U.S. 510 (2003), that trial counsel were ineffective for failing to investigate the extraordinary mitigating evidence in Trevinos life. The federal proceeding was stayed to allow
B.
exhaustion, but the Texas Court of Criminal Appeals dismissed Trevinos Wiggins claim under state abuse of the writ rules. Thereafter, the federal district court dismissed the claim as procedurally barred, finding no cause for the default. On appeal, Trevino argued that the Court of Appeals should stay further proceedings until the Supreme Court resolved the question then-pending in several cases whether ineffective assistance of state habeas counsel in failing to raise a meritorious claim of ineffective assistance of trial counsel established cause for the default in state habeas proceedings. The Court of Appeals refused to stay Trevinos appeal for this purpose. Four months later, the Supreme Court decided in Martinez v. Ryan, 132 S. Ct. 1309 (March 20, 2012), holding that ineffective assistance of state habeas counsel in the very circumstance presented by Mr. Trevinos case could establish cause for the default of a claim of ineffective assistance of trial counsel. Martinez held that inadequate performance by a defense lawyer in state court can be used as an excuse for failing to have raised IAC in state court, at least in situations when a state did not allow such a claim until after a conviction had become final and the inmate pursued post-conviction remedies in state court. When state laws bar such a claim until the post-conviction stage, the Court ruled, the procedural bar to raising that issue in federal habeas is excused cause exists permitting a federal habeas court to consider the ineffectiveness claim. Some lower federal courts have ruled, however, that Texas sometimes allows a state inmate to bring up IAC prior to a post-conviction stage, so the Martinez decision does not apply in Texas, including death-penalty cases there. Question presented: Whether the Supreme Court should grant certiorari, vacate the Court of Appeals opinion, and remand to the Court of Appeals for consideration of Trevinos argument under Martinez v. Ryan? C. Speedy Trial Delay Caused by Failure to Fund Court-Appointed Counsel. Boyer v. Louisiana, 133 S. Ct. ___ (cert. granted Oct. 6, 2012). Whether a states delay in paying for counsel for an accused in a murder case should count against the state for purposes of the right to a speedy trial.
IV.
CRIMES A. First Amendment Limits on Criminal Sanctions for Stolen Valor. United States v. Alvarez, 132 S. Ct. ___ (June 28, 2012). The Stolen Valor Act of 2005, 18 U.S.C. 704(b), prohibits a person from falsely represent[ing], verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States. The crime is a misdemeanor, punishable by up to 6 months imprisonment. Alvarez entered a conditional guilty plea to a charge he made a false representation of having earned a military award, in violation of the Act. The district court sentenced him to three years probation. The Ninth Circuit reversed the conviction on the ground that section 704(b) is facially unconstitutional, in violation of the First Amendment, and remanded for further proceedings. The Supreme Court affirmed (4-2-2). Writing for a four-justice plurality, Justice Kennedy (joined by Chief Justice Roberts, and Justices Ginsburg and Sotomayor) concluded that the Stolen Valor Act infringes on protected speech. The plurality reasoned that, with only narrow exceptions, content-based restrictions on speech face strict scrutiny, and are
therefore almost always unconstitutional. False statements of fact do not fall within one of these exceptions, and so the Stolen Valor Act can survive strict scrutiny only if it is narrowly tailored to a compelling government interest. The Court concluded that the Stolen Valor Act is unconstitutional because the government had not shown that the statute is necessary to protect the integrity of the system of military honors the interest the Government had identified in support of the Act. Justice Breyer (joined by Justice Kagan) concurred separately, concluding that the Stolen Valor Act, as drafted, violates intermediate scrutiny. These justices concluded that intermediate scrutiny is the appropriate standard because the government should have some ability to regulate false statements of fact. However, this statute, as drafted, applies even in family, social, or other private contexts where lies will often cause little harm; it includes few other limits on its scope; and it creates too significant a burden on protected speech. The concurring justices contend that the government could achieve its goals in a less burdensome way, and so they too held the Stolen Valor Act unconstitutional. This concurrence leaves open the possibility that Congress could re-write the law more narrowly, and, when considered with the plurality, it arguably represents the narrowest reading of the Courts ruling. Justice Alito dissented (joined by Justices Scalia and Thomas). B. Constitutional Limitations on Congressional Authority to Legislate. Bond v. United States, 133 S. Ct. ___ (cert. granted Jan. 18, 2013); decision below at 681 F.3d 149 (3rd Cir. 2012). Carol Bond was a microbiologist who had access to rare and potentially fatal poison. Federal postal inspectors videotaped Bond stealing mail and putting poison in the muffler of the car of her husbands pregnant lover. She was convicted of stealing mail and violating a federal criminal law promulgated to implement an international treaty, the Chemical Weapons Convention, codified at 18 U.S.C. 229. She challenged the latter conviction as a violation of the tenth Amendment. Two years ago, the Supreme Court held that Bond had standing to challenge her criminal conviction as a violation of the Constitutions structural limits on federal authority. See Bond v. United States, 131 S. Ct. 2355 (2011). The Court rejected the argument that Congress reliance on the treaty power somehow defeated petitioners standing. On remand, however, the court of appeals held that, while petitioner had standing, her constitutional challenge was a nonstarter because the basic limits on the federal governments power are not applicable to statutes purporting to implement a valid treaty. Although it had grave misgivings about its decision, the Third Circuit viewed this startling result as compelled by dictum in Missouri v. Holland, which states that if [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government. 252 U.S. 416, 432 (1920). The court thus broadly construed Holland as allowing the Senate and the President to expand the federal governments constitutional authority by negotiating a valid treaty requiring implementing legislation otherwise in excess of Congress enumerated powers. The questions presented are: (1) Do the Constitutions structural limits on federal authority impose any constraints on the scope of Congress authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of
the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the governments treaty obligations? (2) Can the provisions of the Chemical Weapons Convention Implementation Act, codified at 18 U.S.C. 229, be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Courts decision in Missouri v. Holland? C. SORNA. United States v. Kebodeaux, 133 S. Ct. ___ (cert. granted Jan. 11, 2013); decision below at 687 F.3d 232 (5th Cir. 2012). A person who is required to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA) as a result of a conviction under federal law and who knowingly fails to register or update a registration as required by federal law is subject to criminal penalties under 18 U.S.C. 2250(a)(2)(A). Before SORNA was enacted, respondent was convicted of a military sex offense, completed service of his sentence, and was subject to a federal obligation to register as a sex offender under pre-SORNA law. The court of appeals held in this case that SORNA is unconstitutional as applied to respondent on the ground that the statute exceeded Congresss powers under Article I of the Constitution. The questions presented are as follows: (1) Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender; (2) Whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted. Hobbs Act. Sekhar v. United States, 133 S. Ct. ___ (cert. granted Jan. 11, 2013); decision below at 683 F.3d 436 (2d Cir. 2012). New Yorks Common Retirement Fund is the employee pension fund for the State of New York and various of its local governments. The State Comptroller is the sole trustee of the Fund and has final approval over all of the Funds investments. When the Comptroller approves an investment on behalf of the Fund, he issues what is known as a Commitment. Fund investments in a company are sometimes contingent on the companys attracting other investors, and a formal Commitment assists the company in doing so by signaling that the company has the backing of the Fund. A Commitment does not bind the Fund to invest, however, as the parties must first execute and close on a limited partnership. The Comptrollers Office considered investing $35 million in a fund run by a company called FA Technology Ventures. While the matter was under consideration, the General Counsel of the Comptrollers Office received an anonymous e-mail to his work account requesting that he provide his personal e-mail address to receive a report of a serious ethical issue. The General Counsel both advised the anonymous e-mailer to contact the Inspector General and provided a personal e-mail address. The e-mailer then sent an e-mail to the General Counsels personal e-mail address, accusing the General Counsel of blackball[ing] a recommendation on a fund and threatening that the e-mailer would tell the General
D.
Counsels wife that the General Counsel was having an extramarital affair if the General Counsel did not have a change of heart by a certain date. The anonymous e-mailer sent another e-mail later that night, warning the General Counsel that he had 36 hours left in which to make wrong the right. A similar e-mail arrived the following day, along with a draft letter to the Attorney General disclosing the alleged affair. Later, the e-mailer assured the General Counsel that he would never hear about this again if he could get this fixed by Wednesday. After the deadline, the anonymous e-mailer sent another message, this time referring to Tiger Woods and stating: [W]ho would have thought that a woman could get that upset . . . and over what? The FBI traced some of the e-mails to Sekhars home. He was a managing partner of FA Technology. After the FBI executed a search warrant at his home, Sekhar admitted to sending the anonymous e-mails and a forensic examination confirmed that petitioners computer was the source of the e-mails. He was indicted on, and convicted of, one count of attempted extortion, in violation of the Hobbs Act, 18 U.S.C. 1951(a), and six counts of interstate transmission of extortionate threats, in violation of 18 U.S.C. 875(d). On appeal, he argued that the indictment failed to state an offense and that the evidence was insufficient to support his convictions because his conduct did not constitute extortion -- the General Counsels recommendation was not property under the Hobbs Act, 18 U.S.C. 1951(b)(2) and 875(d). The court of appeals rejected petitioners arguments. The Supreme Court granted cert. Question presented: Whether petitioner attempted to obtain property by means of extortion, in violation of 18 U.S.C. 1951(a) and 18 U.S.C. 875(d), by seeking to exercise, through threats, the right of an attorney to make a recommendation pertaining to a pension fund investment from which petitioner sought to profit. V. TRIAL AND PLEA 1. Automatic Vacatur for Judicial Involvement in Plea Negotiations. United States v. Davila, 133 S. Ct. ___ (cert. granted Jan. 4, 2013); decision below at 664 F.3d 1355 (11th Cir. 2012). The parties agree that the magistrate judges comments pressuring the defendant to plead guilty amounted to judicial participation in plea discussions, contrary to Fed. R. Crim. P. 11(c)(1). The Court of Appeals vacated the guilty plea, holding that the defendant was not required to show any individualized prejudice in order to obtain relief. The government petitioned for cert, presenting the question: Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant's guilty plea, irrespective of whether the error prejudiced the defendant. Retroactivity of Padilla v. Kentucky. Chaidez v. United States, 133 S. Ct. ___ (Feb. 20, 2013). In Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), the Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation. Here, the district court concluded that Padilla did not announce
2.
a new rule under the retroactivity framework set forth in Teague v. Lane, 489 U.S. 288 (1989), and consequently applied its holding to Roselva Chaidez on collateral appeal. The Seventh Circuit reversed (2-1), holding that Padilla announced a new rule that does not fall within either of Teagues exceptions to non-retroactivity. The Supreme Court reversed (7-2) in an opinion by Justice Kagan, holding that Padilla is a new rule of criminal procedure, so it does not apply retroactively to a person whose conviction became final before Padilla was decided. Justices Sotomayor and Ginsburg dissented. B. Confrontation 1. DNA Expert Testimony Not Limited by Confrontation Clause. Williams v. Illinois, 132 S. Ct. ___ (June 18, 2012). At Williams bench trial for rape, a forensic specialist at the Illinois State Police lab testified that she matched a DNA profile produced by an outside laboratory, Cellmark, to a profile the state lab produced using a sample of Williams blood. She testified that Cellmark was an accredited laboratory and that business records showed that vaginal swabs taken from the victim were sent to Cellmark and returned. She offered no other statement for the purpose of identifying the sample used for Cellmarks profile or establishing how Cellmark handled or tested the sample. Nor did she vouch for the accuracy of Cellmarks profile. The defense moved to exclude the testimony on Confrontation Clause grounds, insofar as it implicated events at Cellmark, but the prosecution said that Williams confrontation rights were satisfied because he had the opportunity to cross-examine the expert who had testified as to the match. The prosecutor argued that Illinois Rule of Evidence 703 permitted an expert to disclose facts on which the experts opinion is based even if the expert is not competent to testify to those underlying facts, and that any deficiency went to the weight of the evidence, not its admissibility. The trial court admitted the evidence and found petitioner guilty. Both the Illinois Court of Appeals and the State Supreme Court affirmed, concluding that the forensic specialists testimony did not violate petitioners confrontation rights because Cellmarks report was not offered into evidence to prove the truth of the matter asserted. The U.S. Supreme Court affirmed (4-1-4) upholding the Illinois state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, even though the defendant had no opportunity to confront the actual analysts. In a plurality opinion written by Justice Alito, the Court began by pointing out that this type of expert testimony had been permitted for 200 years before Melendez-Diaz v. Massachusetts, 557 U. S. 305, 330 (2009), and should continue to be admissible for two reasons. First, the plurality concluded that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth.
Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Second, the plurality provided an independent basis for its holding: [E]ven if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. See Perry v. New Hampshire, 565 U.S. ___ (2012). The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial. Justice Thomas provided the fifth vote for affirmance. He began by disagreeing with the plurality, finding that the Cellmark reports had been admitted for their truth. Yet, he found that Cellmarks statements lacked the requisite formality and solemnity to be considered testimonial for purposes of the Confrontation Clause, a unique analytical approach he first articulated in Michigan v. Bryant. Justice Kagan wrote a lengthy dissent, joined in by Justices Scalia, Ginsburg and Sotomayor, making clear that Justice Alitos plurality of four is really a dissent, since five justices disagree with the rationale for its holding. Critical of the plurality, Justice Kagan assessed the impact of the decision: Before todays decision, a prosecutor wishing to admit the results of forensic testing had to produce the technician responsible for the analysis. That was the result of not one, but two decisions this Court issued in the last three years. But that clear rule is clear no longer. The five Justices who control the outcome of todays case agree on very little. Among them, though, they can boast of two accomplishments. First, they have approved the introduction of testimony at Williamss trial that the Confrontation Clause, rightly understood, clearly prohibits. Second, they have left significant confusion in their wake. What comes out of four Justices desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justices one-justice view of those holdings, isto be frankwho knows what. Those decisions apparently no longer mean all that
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they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority. C. Impeachment of the Defendant vs. Fifth Amendment. Kansas v. Cheever, 133 S. Ct. ___ (cert. granted Feb. 25, 2013); decision below at 284 P.3d 1007 (Kan. 2012). Question presented: When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendants methamphetamine use, does the State violate the defendants Fifth Amendment privilege against self-incrimination by rebutting the defendants mental state defense with evidence from a court-ordered mental evaluation of the defendant? Jury Instructions re Withdrawal from Conspiracy. Smith v. United States,133 S. Ct. ___ (Jan. 9, 2013). Six defendants were charged, tried and convicted on multiple charges, including a federal drug conspiracy, RICO conspiracy, continuing criminal enterprise, murder and related crimes. The crimes were alleged to have been committed during the 1980s and 1990s. Two defendants, Calvin Smith and John Raynor, defended, in part, on the dual grounds that (1) the crimes occurred outside the statute of limitations, and (2) they had withdrawn from the drug conspiracy before any time within the statute of limitations. After deliberating for 12 days, jurors asked: If we find that the narcotics or RICO conspiracies continued after the relevant date under the statute of limitations, but that a particular defendant left the conspiracy before the relevant date under the statute of limitations, must we find the defendant not guilty? Over the defendants objections, the district court instructed the jury that [o]nce the government has proven that a defendant was a member of the conspiracy, the burden is on the defendant to prove withdrawal from a conspiracy by a preponderance of evidence. The defendants claimed on appeal that the district court instruction was erroneous because it placed the burden of persuasion with them, instead of with the government. The court of appeals affirmed, although noting a split in the circuits: Some circuits held that the burden of persuasion always remains with the defendant (2d, 5th, 6th, 10th & 11th), while others held that once a defendant has met his burden of production that he has withdrawn, the burden of persuasion shifts to the government (1st, 3d, 4th, 7th & 9th). The Supreme Court granted cert and affirmed the conviction, wiping out favorable precedent in five circuits. In a unanimous decision authored by Justice Scalia, the Court began by recognizing the withdrawal defense as it applies to statute of limitations in conspiracy cases: Upon joining a criminal conspiracy, a defendants membership in the ongoing unlawful scheme continues until he withdraws. A defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution. That said, the Court placed the burden on the defendant to establish withdrawal: Petitioners claim lies at the intersection of a withdrawal defense and a statute-of-limitations defense. He asserts that once he presented evidence that he ended his membership in the conspiracy prior to the statute-of-limitations period, it became the Governments burden to prove that his individual participation in the conspiracy persisted within the applicable five-year window. This position draws support neither from the Constitution . . ., nor from the conspiracy and limitations
D.
statutes at issue . . . . Establishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the purported withdrawal took place. The Court did note that a different result might occur if Congress allocated the burdens differently by statute. But it had not done so here: Of course, Congress may choose to assign the Government the burden of proving the nonexistence of withdrawal, even if that is not constitutionally required. It did not do so here. [T]he common-law rule was that affirmative defenses . . . were matters for the defendant to prove. . . . Because Congress did not address in 21 U. S. C. 846 or 18 U. S. C. 1962(d) the burden of proof for withdrawal, we presume that Congress intended to preserve the common-law rule. E. Double Jeopardy (or not) 1. After Hung Jury as to Lesser Included Offenses. Blueford v. Arkansas, 132 S. Ct. ___ (May 24, 2012). Alex Blueford was charged with capital murder, but the state waived the death penalty. At trial the jury was instructed to consider capital murder and three lesser included offenses: first degree murder, manslaughter, and negligent homicide. The jury was instructed that, If you have a reasonable doubt of the defendants guilt on the charge of capital murder, you will consider the charge of murder in the first degree. . . . If you have a reasonable doubt of the defendants guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter. . . . If you have a reasonable doubt of the defendants guilt on the charge of manslaughter, you will then consider the charge of negligent homicide. The court also presented the jury with a set of verdict forms, which allowed the jury either to convict Blueford of one of the charged offenses, or to acquit him of all of them. Acquitting on some but not others was not an option. After deliberating a few hours, the jury forewoman announced in open court that the jury was unanimous against two charges capital murder and first-degree murder. She also explained that the jury deadlocked on the manslaughter charge and that, accordingly had not proceeded to decide the negligent homicide charge. Blueford moved the trial court to accept a partial verdict of acquittal on capital murder and first degree murder, a practice that five other states have held is required by the Double Jeopardy clause. The trial court denied the motion and granted a mistrial. Prior to retrial on all charges, the trial court rejected Bluefords motion to dismiss the capital murder and first-degree murder charges on Double Jeopardy grounds. Blueford filed an interlocutory appeal in the Arkansas Supreme Court, which affirmed the Double Jeopardy claim as to capital murder and first-degree murder. The U.S. Supreme Court granted cert and affirmed (6-3) in a decision written by Chief Justice Roberts. The Court held that no Double Jeopardy protection against retrial attaches when a jury announces in open court that it has unanimously rejected more serious charges but is deadlocked on a lesser included offense and cannot reach a verdict, even when State law required the jury to first consider the more serious charges before considering the lesser charges. The Court explained that a jury forepersons
announcement of the jurys unanimous vote on certain charges was not a final resolution of anything. After the announcement of the vote and deadlock, the jurors returned to the jury room to deliberate further, and could have changed their minds and convicted the defendant of the more serious charges. The announcement was not final. The Court also rejected the argument that the trial court erred in simply declaring a mistrial on the more serious charges, and should have taken some action through partial verdict forms to enable the jury to give effect to its votes. The Court noted that the trial court had given the jury one form to acquit, and that Double Jeopardy did not require the Court to submit a different form providing for acquittal on some offenses but not others. Justice Sotomayor dissented, (joined by Ginsburg and Kagan), contending that the majoritys decision placed form over substance, but that precedent required the opposite approach: The forewomans announcement was a plain declaration that the jury had unanimously decided that Blueford was not guilty of capital murder and first degree murder. The dissent also criticized the majority for speculating that in the 31 minutes after the announcement that the jury might have been reconsidering that decision when it returned to the jury room, before a mistrial was declared. The dissent is chock full of Double Jeopardy law, principles, and historical references that may be valuable in briefing future Double Jeopardy claims. PRACTICE NOTE: Most verdict forms only include one Not Guilty line at the end of the verdict form. Request a verdict form that includes a space for Guilty or Not Guilty next to each offense, the main charge and each lesser included offense. If used in conjunction with standard federal jury instructions (which have Blueford-type requirements for the jurys consideration of lessers), this allows the jury foreperson to enter Not Guilty as to the charged offense and individual lessers, if the jury so finds. If a jury hangs on a lesser, this verdict form makes explicit that the jury has acquitted of the higher offenses. This is arguably the type of final verdict that was found lacking in Blueford. 2. Midtrial Directed Verdict Based on Error of Law as to Elements. Evans v. Michigan, 133 S. Ct. ___ (Feb. 20, 2013). Lamar Evans was charged with burning other real property in violation of a specific Michigan statute. At the close of the prosecutions case, Evans moved for a directed verdict of acquittal, arguing that the prosecution had failed to prove that the house he had allegedly burned was not a dwelling house and thereby excluded from the definition of other real property under eh Michigan statute. Evans counsel pointed out that the evidence the prosecution introduced at trial established that the burned house was an occupied dwelling, or that it was capable of being lived in. The trial court reviewed the standard jury instructions, the commentary to those instructions, and the statute itself, then concluded that the crime with which Evans was charged contained an element that the building burned not be a dwelling house. The court orally granted the directed verdict motion: The testimony was this was a dwelling house, paid for for some forty-some-odd thousand dollars. That the folks had moved some stuff
into it, even though it doesnt matter. Motion granted. The oral order was confirmed in a written order granting a directed verdict of acquittal. The state appealed and the defendant argued, in part, that any appeal was impermissible based on double jeopardy. Nevertheless, the state court of appeals reversed the order granting a directed verdict, finding that the judges order erroneously determined the correct elements of the offense. The court of appeals determined that, based on the error, retrial was not barred by the Double Jeopardy Clause. The Michigan Supreme Court affirmed in a 4-3 ruling. The U.S. Supreme Court reversed (8-1), in a decision authored by Justice Sotomayor, holding that the Double Jeopardy Clause bars retrial (and the states appeal). The Court refused to distinguish the general rule barring retrial, even in this case involving an underlying legal error. Justice Alito dissented. VI. SENTENCING A. Mandatory Life Without Parole for Juveniles. Miller v. Alabama, 132 S. Ct. ___ (June 25, 2012). A divided Supreme Court held (5-4, with opinion by J. Kagan), that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. The holding is limited to mandatory schemes, but the majority comments: But given all we have said in Roper, Graham, and this decision about childrens diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. Roper, 543 U.S., at 573; Graham, 560 U. S., at ___ (slip op., at 17). Although we do not foreclose a sentencers ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Justice Breyer concurred ( joined by Sotomayor). Chief Justice Roberts dissented (joined by Scalia, Thomas, and Alito). Justice Thomas dissented separately, as well, (joined by Scalia); as did Justice Alito (joined by Scalia). Ex Post Facto Prohibition on Use of Guidelines Manual. Peugh v. United States, 133 S. Ct. ___ (cert. granted Nov. 9, 2012); decision below at 675 F.3d 736 (7th Cir. 2012). The U.S. Sentencing Guidelines Manual directs a court to use the Guidelines Manual in effect on the date that the defendant is sentenced unless the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the Ex Post Facto Clause of the United States Constitution. Eight courts of appeals have held that the Ex Post Facto Clause is violated where retroactive application of the Sentencing Guidelines creates a significant risk of a higher sentence. In the decision below, however, the Seventh Circuit has held that the Ex Post Facto Clause is never violated by retroactive application of the Sentencing Guidelines because the Guidelines are advisory, not
B.
mandatory. Question presented: Does a sentencing court violate the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence? C. Apprendi 1. Application to Enhanced Mandatory Minimums Overruling Harris? Alleyne v. United States, 133 S. Ct. ___ (cert. granted Oct. 6, 2012); decision below unpublished, 2011 WL 6228319 (4th Cir. Dec. 15, 2011). Alleyne was convicted of robbery affecting commerce in violation of 18 U.S.C. 1951(a), 2 (2006) and use or carrying of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. 924(c). He was acquitted of brandishing a firearm, yet the district court found that he had brandished despite the verdict elevating Alleynes mandatory minimum sentence for the firearm conviction from five years to seven years pursuant to 18 U.S.C. 924(c). The sentence was upheld under Harris v. United States, 536 U.S. 545, 556 (2002) (plurality holding that Apprendi does not apply to enhanced mandatory minimums). Harris has been heavily criticized as out-of-sync with other Apprendi jurisprudence. The fifth vote joining the plurality, Justice Breyer, actually disagreed with the plurality, but he was at that time unwilling to accept Apprendi. Last Term, Justice Breyer announced that the time has come to overrule Harris. The composition of the Court has changed since Harris was decided, but the new justices all joined last Term in expanding the protection of Apprendi to include enhanced fines. See Southern Union Co. v. United States, 132 S. Ct. __ (2012) (holding Apprendi applies to imposition of criminal fines) (below). The Supreme Court then granted cert in Alleyne. Question Presented: Whether the Court should reconsider its decision in Harris v. United States . . . because it is an incompatible outlier from the Apprendi line of decisions. Application to Fines. Southern Union Co. v. United States, 132 S. Ct. ___ (June 22, 2012). The offense of storing mercury without a permit is punishable by a term of imprisonment up to two years and a fine up to $50,000 for each day of violation. 42 U.S.C. 6928(d). Based on calculations in the PSR regarding the duration of the offense, the district court imposed a $6 million fine and a $12 million community service obligation upon the defendant company. The company appealed, arguing that the imposition of the fine based on judicial factfinding of duration violated the rule in Apprendi . The First Circuit held that the judge may find the facts necessary to increase the maximum fine, relying on the reasoning and logic of the Supreme Courts 5-4 decision in Oregon v. Ice, which held that Apprendi does not apply to the factfinding necessary to impose consecutive sentences for separate crimes under that state's statutory scheme. Drawn from the reasoning of Ice, the First Circuits theory was that, as with the question whether to impose consecutive sentences, historically, judges
2.
assessed fines without input from the jury. According to the First Circuit, Ice altered any previous broad understanding of Apprendi, and the flow of its logic applies to the factfinding necessary for increasing the maximum fine under 6928(d). The Supreme Court disagreed, 6-3. In decision written by Justice Sotomayor, the Court held that the rule of Apprendi applies to fines. The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendants maximum potential sentence. Apprendi v. New Jersey, 530 U. S. 466 (2000); Blakely v. Washington, 542 U. S. 296 (2004). We have applied this principle in numerous cases where the sentence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does. Justice Breyer dissented, as he has in much of the Apprendi jurisprudence (joined by Kennedy and Alito)explicitly recounting his earlier dissents. In short, the dissent found the majoritys holding ahistorical and suggested it will contribute to problems in the administration of justice. Importantly, it appears that the new Court is comfortably adhering to prior Apprendi jurisprudence, with Justice Sotomayor writing for a majority including Justice Kagan. D. Retroactivity of Fair Sentencing Act of 2010. Dorsey v. United States consolidated with Hill v. United States, 132 S. Ct. ___ (June 22, 2012). The Fair Sentencing Act of 2010 applies retroactively. The 5-4 decision authored by Justice Breyer provides a succinct history of federal drug sentencing and explains the Courts holding: Federal statutes impose mandatory minimum prison sentences upon those convicted of federal drug crimes. These statutes typically base the length of a minimum prison term upon the kind and amount of the drug involved. Until 2010, the relevant statute imposed upon an offender who dealt in powder cocaine the same sentence it imposed upon an offender who dealt in one one-hundredth that amount of crack cocaine. It imposed, for example, the same 5-year minimum term upon (1) an offender convicted of possessing with intent to distribute 500 grams of powder cocaine as upon (2) an offender convicted of possessing with intent to distribute 5 grams of crack. In 2010, Congress enacted a new statute reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, 124 Stat. 2372. The new statute took effect on August 3, 2010. The question here is whether the Acts more lenient penalty provisions apply to offenders who committed a crack cocaine crime before August 3,2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimum provisions do apply to those pre-Act offenders. The conclusion is remarkable because the general federal saving statute (1 U.S.C. 109) requires a presumption against retroactivity of repealing legislation, absent contrary congressional intent. The congressional intent and language of the Fair Sentencing Act was confusing and contradictory. Nevertheless, the Courts majority rest[ed] [its] conclusion primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportionality in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniform and more disproportionate than if
Congress had not enacted the Fair Sentencing Act at all. The majority decision devotes substantial attention to the interaction of federal sentencing statutes and the federal sentencing guidelines. In arriving at its decision, the majority discussed [s]ix considerations, taken together, show[ing] that Congress intended the Fair Sentencing Acts more lenient penalties to apply to offenders who committed crimes before August 3, 2010, but were sentenced after that date. First, the 1871 saving statute permits Congress to apply a new Acts more lenient penalties to pre-Act offenders without expressly saying so in the new Act. The 1871 Act creates what is in effect a less demanding interpretive requirement because the statute cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment. Great Northern R. Co. v. United States, 208 U. S. 452, 465. Hence, this Court has treated the 1871 Act as setting forth an important background principle of interpretation that requires courts, before interpreting a new criminal statute to apply its new penalties to a set of pre-Act offenders, to assure themselves by the plain import or fair implication of the new statute that ordinary interpretive considerations point clearly in that direction. Second, the Sentencing Reform Act sets forth a special and different background principle in 3553(a)(4)(A)(ii), which applies unless ex post facto concerns are present. Thus, new, lower Guidelines amendments apply to offenders who committed an offense before the adoption of the amendments but are sentenced thereafter. Third, language in the Fair Sentencing Act implies that Congress intended to follow the Sentencing Reform Acts special background principle here. Section 8 of the Fair Sentencing Act requires the Commission to promulgate conforming amendments to the Guidelines that achieve consistency with other guideline provisions and applicable law. Read most naturally, applicable law refers to the law as changed by the Fair Sentencing Act, including the provision reducing the crack mandatory minimums. And consistency with other guideline provisions and with prior Commission practice would require application of the new Guidelines amendments to offenders who committed their offense before the new amendments effective date but were sentenced thereafter. Fourth, applying the 1986 Drug Acts old mandatory minimums to the post-August 3 sentencing of pre-August 3 offenders would create sentencing disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent. Fifth, not to apply the Fair Sentencing Act would do more than preserve a disproportionate status quo; it would make matters worse by creating new anomaliesnew sets of disproportionate sentencesnot previously present. That is because sentencing courts must apply the new Guidelines (consistent with the Fair Sentencing Acts new minimums) to pre-Act offenders, and the 1986 Drug Acts old minimums would trump those new Guidelines for some pre-Act offenders but not for all of them. Application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would therefore produce a set of sentences at odds with Congress basic efforts to create more uniform, more proportionate sentences. Sixth, this Court has found no strong countervailing considerations that would make a critical difference. The majority made clear, at the end of its opinion that FSA also applies to those defendants whose conduct occurred before August 3, 2010, but were sentenced before the amended guidelines took effect on November 1, 2010. Four justices dissented. Justice Scalia
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(joined by C.J. Roberts, Thomas and Alito) concluded that the Federal Savings Statute (1 U.S.C. 109) governed and, absent explicit congressional intent to the contrary, the 2010 law was not retroactively applicable. PRACTICE NOTE: The decision is fertile ground for arguments seeking to apply the Fair Sentencing Act to Career Offenders and 3582 proceedings. As to Career Offenders, AFPD Keith Donoghue (EDPA) notes: Under the career offender guideline at USSG 4B1.1, the offense level increases depending on the statutory maximum, which the FSA also lowers. Accordingly, for defendants convicted of offenses involving between 28 and 280 grams of crack who are not facing a 851 enhancement, the offense level under Section 4B1.1(b) is now 34 (statutory maximum sentence of 40 years), whereas for many of these defendants it was previously 37. For defendants convicted of offenses involving fewer than 28 grams who are not facing a 851 notice, the offense level is now 32 (statutory maximum sentence of 20 years), whereas for many it was previously 34. For defendants convicted of offenses involving between five and 28 grams of crack who are facing a 851 enhancement, the offense level is 34 (statutory maximum sentence of 30 years), whereas it was previously 37. The only career offenders for whom the FSA does not change the Guidelines range are those convicted of offenses involving 28 or more grams of crack against whom the government files a 851 enhancement. As to 3582 proceedings, AFPDs David McColgin (D VT) and Sarah Gannett (ED PA) have argued that the new FSA mandatory minimums should apply, a view that may have support in language in section II.B (pp. 19- 20) of the slip decision, which recognizes the Sentencing Commissions authority to make guidelines retroactive: [T]he Commission possesses ample authority to permit appropriate adjustments to be made in the Guidelines sentences of those sentenced after August 3 but prior to the new Guidelines promulgation. See 28 U. S. C. 994(u) (power to make Guidelines reductions retroactive); 76 Fed. Reg. 4133341334 (2011) (amended18-to-1 Guidelines made retroactive). E. ACCA: Non-Generic State Burglary Offense. Descamps v. United States, 132 S. Ct. ___ (cert granted Aug. 31, 2012); decision below unpublished. Matthew Descamps was found guilty of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. 922(g)(1). At sentencing, the district court concluded that Descamps had three predicate violent feloniesrobbery, burglary, and felony harassmentand sentenced Descamps under ACCA to 262 months in custody and five years of supervised release. Descamps appealed, arguing that his prior state felony of burglary to which he had pleaded guilty does not qualify as a violent felony under the ACCA. The generic definition of burglary is an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Taylor v. United States, 495 U.S. 575, 598 (1990). Californias version of the offense, 459, defines burglary as when a person . . . enters [various structures] . . . with intent to commit grand or petit larceny or any felony. Burglary under 459 is categorically broader than generic burglary both because it includes burglary of a tent and because California's definition of unlawful or unprivileged entry, unlike the generic definition, permits a conviction for burglary of a structure open to the public and of a structure that the defendant is licensed or privileged to
enter if the defendant enters the structure with the intent to commit a felony. United States v. Aguila-Montes de Oca, 655 F.3d 915, 944 (9th Cir. 2011) (en banc). To sidestep the categorical generic definition, the Ninth Circuit employed a modified categorical approach, holding that the guilty plea and conviction necessarily rested on facts that satisfy the elements of the generic definition of burglary. Indeed, the charging document shows that Descamps pled guilty to entering a building, and the plea colloquy establishes that he did so in an unlawful way (by breaking and entering) in the generic sense. The court of appeals rejected as fanciful Descampss argument that a building could have meant a tent. By using the modified categorical approach, the court of appeals was able to consider the combination of facts stated in the information and plea colloquy, which show that Descampss conviction necessarily rested on facts identifying the burglary as generic. The Ninth Circuits use of the modified categorical approach derives from its en banc decision in United States v. Aguila-Montes de Oca: In any case requiring the application of Taylors categorical approach, in the event that we determine that the statute under which the defendant or alien was previously convicted is categorically broader than the generic offense, we may apply the modified categorical approach. Under the modified categorical approach, we determine, in light of the facts in the judicially noticeable documents, (1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually required to find); and (2) whether these facts satisfy the elements of the generic offense. 655 F.3d at 940. This Ninth Circuit rule is an outlier, different from the majority of other circuits, which hold that the modified categorical approach should only be used when the prior conviction involves a divisible statute. See , e.g., United States v. Beardsley, 2012 WL 3641933 (2d Cir. Aug. 27, 2012) and United States v. Gomez, 2012 WL 3243512 (4th Cir. Aug. 10, 2012). The Supreme Court has now granted cert to consider the first issue presented in Descampss petition: Whether the Ninth Circuits ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it. VII. CRIMINAL APPEALS A. Rule 52(b) Plain Error. Henderson v. United States, 133 S. Ct. ___ (Feb. 20, 2013). The sentencing court imposed an upward departure to ensure Henderson had an opportunity to enroll in BoP drug treatment. Later, the Supreme Court prohibited such sentences in Tapia v. United States. Eight days after sentencing, Henderson filed a Rule 35(a) motion to correct the sentence arguing it violated 3582(a). The motion was denied. The Fifth Circuit affirmed, holding, first, that the issue was not preserved for appeal: A Rule 35 motion cannot preserve an error unless the error is arithmetical, technical, or otherwise clear. Second, the Fifth Circuit ruled there was no plain error: Although the district court erred under Tapia, Henderson did not preserve the error, and could not show that the district court plainly erred. Because Tapia had not been decided at the time of trial, the error was not plain. Yet, Henderson argued that it became plain once Tapia was decided, while his appeal was
still pending. The Supreme Court reversed, holding that regardless of whether a legal question was settled or unsettled at the time of trial, an error is plain within the meaning of Rule 52(b) so long as the error was plain at the time of appellate review. VIII. IMMIGRATION CONSEQUENCES A. Small Pot Distribution (for free) is Not an Aggravated Felony. Moncrieffe v. Holder, 133 S. Ct. ___ (Apr. 23, 2013). Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a Controlled Substances Act offense, 21 U.S.C.841(a), punishable by up to five years imprisonment under, 841(b)(1)(D). An Immigration Judge ordered Moncrieffe removed, and the Board of Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffes petition for review, rejecting his reliance on 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration, and holding that the felony provision, 841(b)(1)(D), provides the default punishment for his offense. The Supreme Court reversed (7-2) in an opinion written by Justice Sotomayor, holding that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute illicit trafficking in a controlled substance under section 1101(a)(43) of the Immigration and Nationality Act; it is thus not an aggravated felony subjecting a noncitizen to mandatory deportation and ineligibility for certain forms of discretionary relief. Applying the categorical approach, the majority reiterated the now-established precedent, concluding: This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as illicit trafficking in a controlled substance, and thus an aggravated felony. Once again we hold that the Governments approach defies the commonsense conception of these terms. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, does not fit easily into the everyday understanding of trafficking, which ordinarily . . . means some sort of commercial dealing. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 5354). Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an aggravated felony. We hold that it may not be. If a noncitizens conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA. Justices Thomas and Alito dissented. Cancellation of Removal Based on Imputed Residency of Parent. Holder v. Martinez Gutierrez, 132 S. Ct. ___ (May 21, 2012). Title 8 U.S.C. 1229b(a) authorizes the Attorney General to cancel the removal of an alien from the United States who, among other things, has held the status of a lawful permanent resident
B.
(LPR) for at least five years, 1229b(a)(1), and has lived in the United States for at least seven continuous years after a lawful admission, 1229b(a)(2). The question presented in these two consolidated cases is whether the Board of Immigration Appeals should impute a parents years of continuous residence or LPR status to his or her child. That issue arises because a child may enter the country lawfully, or may gain LPR status, after one of his parents doesmeaning that a parent may satisfy 1229b(a)(1) or1229b(a)(2), while his child, considered independently, does not. Martinez Gutierrez entered the country illegally with his family; his father later gained LPR status, but the son did not. Sawyers entered legally after his mother had already resided in the country for six years following a lawful admission. Both Martinez Gutierrez and Sawyers later were convicted, one for alien smuggling, the other for drug offenses. To avoid removal, both sought to impute a parents status because they could not qualify on their own. The Board of Immigration Appeals held that 1299 does not allow for imputation from the parents in order to cancel removal; the child must satisfy the requirement alone. The Ninth Circuit reversed in both cases, but the Supreme Court reversed (9-0), barring cancellation of removal. In an opinion authored by Justice Kagan, the Court held that BIAs approach is based on a permissible construction of the statute, so it is entitled to Chevron deference. IX. COLLATERAL RELIEF: HABEAS CORPUS, 2241, 2254 AND 2255 A. Timeliness of Filing Federal Petition. 1. Raising Statute of Limitations Defense Sua Sponte. Wood v. Milyard, 132 S. Ct. ___ (Apr. 24, 2012). The state declared to the district court that it will not challenge, but [is] not conceding, the timeliness of Woods habeas petition, under the AEDPA statute of limitations in 28 U.S.C. 2244(d). The court of appeals nevertheless applied the limitations bar, sua sponte, in denying relief to the habeas petitioner. The Supreme Court reversed, 9-0, in a decision authored by Justice Ginsburg, holding that The Tenth Circuit abused its discretion when it dismissed Woods petition as untimely. Courts of appeals, like district courts, have the authoritythough not the obligationto raise a forfeited timeliness defense on their own initiative in exceptional cases. A federal court, however, does not have carte blanche to depart from the principle of party presentation. It is an abuse of discretion for a court to override a States deliberate waiver of a limitations defense. Here, the state was well aware of the statute of limitations defense available to it in the district court, and of the arguments that could be made in support of that defense. Yet, the state twice informed the district court that it would not challenge the timeliness of Woods petition. In so doing, the state deliberately waived the statute of limitations defense. In light of that waiver, the Tenth Circuit should have followed the district courts lead and decided the merits of Woods petition. Justice Thomas (joined by Scalia) concurred in the judgment only they adhere to the position taken in dissent in Day v. McDonough, 547 U. S. 198 (2006), that a federal court lacks authority to raise sua sponte a forfeited statute of limitations defense to a habeas corpus
petition. 2. Equitable Tolling. McQuiggin v. Perkins, 133 S. Ct. ___ (cert. granted Oct. 29, 2012); decision below at 670 F.3d 665 (6th Cir. 2012). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) contains a one-year statute of limitations for filing a habeas petition. In Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), the Supreme Court affirmed that a habeas petitioner is entitled to equitable tolling of that one-year period only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. This petition presents two recurring questions of jurisprudential significance involving equitable tolling under AEDPA that have divided the circuits: 1. Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that prevented timely filing of a habeas petition; 2. If so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that he has been pursuing his rights diligently.
B.
Statutory Right to Stay Postconviction Capital Habeas Where Defendant Claims He is Incompetent 1. Ryan v. Gonzales, and Tibbals v. Carter, 133 S. Ct. ___ (Jan. 8, 2013). Several years after Gonzaless counsel initiated federal habeas proceedings and filed an exhaustive petition seeking relief, counsel asserted that Gonzales was incompetent to communicate rationally and the proceedings should be indefinitely stayed pending possible restoration of competency. Based on 18 U.S.C. 3599(a)(2), the Ninth Circuit agreed, even though Gonzaless claims were record-based or purely legal. Similarly, in Tibbals, an Ohio death row inmate had his capital habeas stayed pending his disputed incompetence. The states petitioned for cert, which the Supreme Court granted. The Supreme Court reversed both cases, in a unanimous decision written by Justice Thomas: These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoners federal habeas corpus proceedings. We hold that neither 18 U. S. C. 3599 nor 18 U. S. C. 4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.
C.
Deference to State Court Determinations (aka Slapping Down the Federal Circuits) 1. Habeas Review of Sufficiency of Evidence. a. Coleman v. Johnson, 132 S. Ct. ___ (May 29, 2012) (per curiam). Johnson was convicted as an accomplice and co-conspirator in a murder by a shotgun blast to the chest of the victim. After his
conviction was affirmed in state court, Johnson exhausted his state remedies and sought a federal writ of habeas corpus. The District Court denied habeas relief but the Third Circuit reversed, holding that the evidence at trial was insufficient to support Johnsons conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (1979). The Supreme Court reversed that determination in a per curiam decision. The justices made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, it is the responsibility of the jurynot the courtto decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jurys verdict. on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. Cavazos v. Smith (see above). Second, on federal habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was objectively unreasonable. Id. (quoting Renico v. Lett, 559 U. S. ___, ___ (2010). Because the Second Circuit failed to afford due respect to the role of the jury and the state courts of Pennsylvania, the Supreme Court reversed, reinstating the denial of federal habeas relief. b. Parker v. Mathews, 132 S. Ct. ___ (June 11, 2012) (per curiam). Mathews was charged with murder and burglary he broke into his estranged wifes home, killed his mother-in-law, then his wife. He defended against the murder charge by presenting evidence (including expert evidence) that he acted under extreme emotional disturbance, which would have reduced the homicide charge to firstdegree manslaughter under Kentucky law. The jury convicted him of all charges and sentenced him to death. His state appeals challenging the sufficiency of evidence were rejected. On federal habeas, the district court denied relief, but a divided court of appeals granted relief. The Supreme Court granted cert and in a per curiam decision held: In this habeas case, the United States Court of Ap peals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales. The courts decision is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts. Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12). We therefore grant the petition for certiorari and reverse.
2.
Retroactive Application of Clearly Established Precedent. Metrish v. Lancaster, 133 S. Ct. ___ (cert. granted Jan. 18, 2013); decision below at 683 F.3d 740 (6th Cir 2012). Burt Lancaster, a former policeman, killed his
girlfriend in 1993. At that time a defendant in Michigan could raise the defense of diminished mental capacity. In 2001, the Michigan Supreme Court abolished the diminished-capacity defense in that state. At Lancasters (second) trial in 2005, the trial court prohibited Lancaster for using that defense because. The Sixth Circuit held the retroactive application of that 2001 decision was an unreasonable application of clearly established Supreme Court precedent. The state petitioned for cert, which was granted. Questions presented: (1) Whether the Michigan Supreme Courts recognition that a state statute abolished the long-maligned diminished-capacity defense was an unexpected and indefensible change in a common-law doctrine of criminal law under this Courts retroactivity jurisprudence. See Rogers v. Tennessee, 532 U.S. 451 (2001). (2) Whether the Michigan Court of Appeals' retroactive application of the Michigan Supreme Courts decision was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement so as to justify habeas relief. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). 3. Did State Adjudicate Case on Merits? Johnson v. Williams, 132 S. Ct. ___ (cert. granted Jan. 13, 2012); decision below at 646 F.3d 626 (9th Cir. 2011). The Ninth Circuit reversed a district court that denied a federal writ of habeas corpus in state prosecution in which a holdout juror was excused to avoid a hung jury. After contrasting the transcript in this case to the movie, Twelve Angry Men, Judge Reinhardt described the case. Twelve Angry Men made for great drama because it violated the sanctity of the jurys secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioners conviction became final (and exists today as well), the trial courts actions violated the petitioners Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ. The Supreme Court granted to resolve one of the two questions raised by the states cert petition: Whether a habeas petitioners claim has been adjudicated on the merits for purposes of 28 U.S.C. 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim?
D.
Applying Lafler under AEDPA. Burt v. Titlow, 133 S. Ct. ___ (cert. granted Feb, 25, 2013); decision below at 680 F.3d 577 (6th Cir. 2012). This case presents three questions involving AEDPA and Lafler v. Cooper, 132 S. Ct. 1376 (2012), the Courts recent decision expanding ineffective-assistance-of-counsel claims to include rejected plea offers: (1) Whether the Sixth Circuit failed to give appropriate
deference to a Michigan state court under AEDPA in holding that defense counsel was constitutionally ineffective for allowing Respondent to maintain his claim of innocence. (2) Whether a convicted defendants subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea. (3) Whether Lafler always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to remedy the violation of the defendants constitutional right.
X.
VINDICATING RIGHTS (OR NOT) - 1983 CIVIL RIGHTS ACTIONS A. Retaliation By Arrest for Political Speech. Reichle v. Howards, 132 S. Ct. ___ (June 4, 2012). Howards was present at a shopping center at which then-VP Cheney was greeting supporters. Howards was overheard by Secret Service agents while using his cellphone, saying he was going to ask Cheney how many kids he killed today, a reference to the Iraq war. Secret Service agents briefed each other on about this. Later, Howards joined the reception line and upon encountering Cheney, he stated that his policies in Iraq were disgusting. There is disputed evidence of a touching either Howards pushed against Cheneys shoulder or he simply touched it as he was leaving. Secret Service agents then detained and arrested him for harassing the VP, a charge that was later dropped. Howards sued the agents in a civil rights action, claiming his arrest was in retaliation for political speech. Even though there may have been probable cause to arrest him due to the touching, Howards argued that a First Amendment violation of this sort is still actionable. The district court denied the agents motions to dismiss based on qualified immunity, and the Tenth Circuit agreed as to the First Amendment retaliation claim. The Supreme Court reversed, 8-0, with Justices Ginsburg and Breyer merely concurring in the result. (Justice Kagan recused). The case presented a broad question of whether an arrest supported by probable cause could give rise to a First Amendment violation if the arrest was retaliation for political speech. Rather than decide that question, Justice Thomas opinion for the majority took a narrow path: The agents were entitled to qualified immunity because, at the time of Howards arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Justice Ginsburg (joined by Breyer) made clear that her vote was based on the fact that the arresting officers were Secret Service agents whose protection responsibilities required instantaneous judgments. She would not have applied this ruling to other law enforcement officers.
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