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June 23, 2009
Supreme Court Issues Opinions on Double Jeopardy Clause, Access to DNA Evidence, and Immigration Consequences of Conviction; Grants Certiorari to Address Civil Commitment of Sex Offenders and Miranda Warnings
On June 18, the Supreme Court issued a decision in Yeager v. United States (No. 08-67), holding, by a vote of six to three, that an apparent inconsistency between acquittals on some counts and a jury’s failure to return a verdict on other factually related counts does not diminish the acquittals’ potential issue-preclusive force under the Double Jeopardy Clause.Writing for the Court, Justice Stevens explained that Ashe v. Swenson prevents the government from retrying a defendant on any charges that have as a necessary element any issue that was already decided by a jury’s acquittal in a prior trial. To identify which issues the prior jury had necessarily determined, courts should look only to the jury’s decisions, rather than its failures to decide; hung counts are unavoidably inscrutable, and “a jury speaks only through its verdict.” For more on Yeager, see this blog post.
In another June 18 decision, District Attorney’s Office v. Osborne (08-6), the Supreme Court, splitting 5-4, ruled that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence for the purpose of DNA testing to prove his or her innocence. Writing for the majority, Chief Justice Roberts stated that the task of writing rules to control access to DNA evidence “belongs primarily” to the legislature. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded. For more on the opinion, see this blog post.
On June 15, the Court issued a decision in Nijhawan v. Holder (08-495), holding unanimously that to deport an immigrant for committing an “aggravated felony” that “involves fraud or deceit in which the loss to the . . . victims exceeds $10,000,” the underlying fraud offense need not include the minimum loss amount as a statutory element of the crime. Instead, “the monetary threshold applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion,” which could be determined during removal proceedings before an Immigration Court. The Court distinguished this approach from the “categorical approach” used to determine predicate convictions in ACCA cases. For more on this opinion and its impact in criminal cases, see this blog post.
Yesterday, the Court granted review in two cases relevant to federal criminal law practitioners, U.S. v. Comstock (08-1224) and Florida v. Powell (08-1175). In Comstock the Court will address whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) “sexually dangerous” persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) “sexually dangerous” persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.
In Powell the Court will address (1) whether the decision of the Florida Supreme Court, holding that a suspect must be expressly advised of his right to counsel during custodial interrogation, conflicts with Miranda v. Arizona and (2) if so, does the failure to provide express advice of the right to the presence of counsel during questioning vitiate Miranda warnings which advise of both (a) the right to talk to a lawyer “before questioning” and (b) the “right to use” the right to consult a lawyer at any time” during questioning?
June 10, 2009
Supreme Court Defines the “Structure” Requirement of an Association-in-Fact Enterprise Under RICO; Addresses Double Jeopardy Claim Related to Atkins Hearing
On June 8, 2009, the Supreme Court held in a 7-2 ruling in Boyle v. United States (No. 07-1309), that an association-in-fact enterprise under 18 U.S.C. § 1962(c), the Racketeer Influenced and Corrupt Organizations Act (RICO), must have a “structure” distinct from the pattern of racketeering activity in which it engages; however, trial courts need not use the term “structure” in instructing the jury on the evidence needed to prove an association-in-fact enterprise.Justice Alito wrote for the majority, stating that association-in-fact enterprises must have three structural features: “a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprises’s purpose.” However, “[s]uch a group need not have a hierarchical structure or a ‘chain of command’; decisions may be made on an ad hoc basis and by any number of methods . . . . Members of the group need not have fixed roles . . . . The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence.”
Jury instructions need not use the term “structure” or specifically be framed in terms of a requirement that jurors find an “ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages,” as Boyle proposed in his case. It was sufficient to tell the jury that they could not convict on the RICO counts unless they found the government had proved the existence of an enterprise, which made clear that the existence of an enterprise is an element distinct from the pattern of racketeering activity. The Court rejected the notion that the existence of an enterprise can never be inferred from evidence showing that persons associated with the enterprise engaged in a pattern of racketeering activity.
The Court also recently issued a decision in Bobby v. Bies (No. 08-598), holding that the guarantee against double jeopardy did not preclude a hearing to determine if Bies’ mental retardation prohibited his execution under Atkins v. Virginia, 536 U.S. 304 (2002), notwithstanding the state supreme court’s prior recognition of Bies’ borderline mental retardation in upholding his death sentence pre-Atkins.
May 27, 2009
Supreme Court Issues Decision on Sixth Amendment Right to Counsel, Overruling Michigan v. Jackson; Addresses Telephone Counts in Drug Cases
In Michigan v. Jackson, 475 U.S. 625 (1986), the Court held that once a defendant asserts his right to counsel at an arraignment or similar proceeding, any waiver of that right during subsequent police initiated interrogation without counsel present is presumed invalid unless the accused initiates communication. Splitting 5-4, the Court overruled this precedent yesterday in Montejo v. Louisiana (07-1529).Montejo was arrested as a suspect in a robbery-murder. When police sought to question Montejo, he waived his Miranda rights. Three days after initial interrogation, Montejo was brought before a judge for a preliminary hearing required under Louisiana state law. At the hearing, the court ordered the appointment of counsel. After the hearing, but before Montejo met his attorney, the police visited Montejo in prison and convinced him to accompany them on an excursion to locate the murder weapon. Soon after, Montejo wrote an inculpatory letter of apology to the victim’s widow. At trial, the letter of apology was admitted over defense objection, and Montejo was convicted. In upholding the conviction, the Louisiana Supreme Court rejected the application of Jackson, reasoning that Jackson is not triggered unless and until the defendant has actually requested a lawyer or otherwise asserted his Sixth Amendment right to counsel, as opposed to passively accepting the routine appointment of counsel.
In an opinion written by Justice Scalia, the Court rejected the approach taken by the Louisiana Supreme Court, reasoning that such an approach would be unworkable given the variations in appointment of counsel procedures among the states. But the Court also rejected Montejo’s interpretation of Jackson, i.e., that no represented defendant can ever be approached by the State and asked to consent to interrogation. Instead, the Court concluded, “When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary.” In justifying the unusual step to overrule a prior decision, the Court reasoned, “[R]equiring an initial ‘invocation’ of the right to counsel in order to trigger the Jackson presumption is consistent with the theory of that decision, but . . . would be unworkable in [many states]. On the other hand, eliminating the invocation requirement would render the rule easy to apply but depart fundamentally from the Jackson rationale.” The Court declared that “when the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth-seeking process and the criminal justice system, we readily conclude that the rule does not ‘pay its way.’” In remanding the case, the Court noted that Montejo should be given the opportunity to claim that his letter of apology should be suppressed pursuant to the rule in Edwards v. Arizona, 451 U.S. 477 (1981), or on the grounds that his Sixth Amendment waiver was not knowing and voluntary.
In addition to Montejo, the Court also issued a decision in Abuelhawa v. United States (08-192), unanimously ruling that using a telephone to make a misdemeanor drug purchase does not “facilitate” a felony distribution crime under 21 USC § 843(b).
The Court has also recently granted certiorari in three cases presenting issues related to criminal law and procedure. In Black, et al. v. United States (08-876), the Court will address whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict. Beard v. Kindler (08-992) raises the question whether a state procedural rule is automatically “inadequate” under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory. And in Wood v. Allen (08-9156), the question presented is whether the state court’s conclusion – that during the sentencing phase of a capital case the defense attorney’s failure to present the defendant’s impaired mental functioning did not constitute ineffective counsel – was based on an unreasonable determination of the facts and whether the circuit court erred in its application of AEDPA to the review of the state court decision.
May 5, 2009
Supreme Court Determines That “Knowingly” Applies to All Elements of Aggravated Identity Theft
The Supreme Court yesterday issued a decision in Flores-Figueroa v. United States (08-108), clarifying the intent requirement of the federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1). The statute prescribes a mandatory two-year term of imprisonment for any person who, “during and in relation to” certain other specified crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” Flores-Figueroa, a Mexican native, worked at a steel plant in East Moline, Ill. He was accused of using a phony Social Security card and a phony alien registration card. The two numbers on those cards had been assigned to someone else; he argued that the enhanced mandatory minimum sentence contained in § 1028A(a)(1) did not apply to him because he used the documents without knowing the numbers were actual numbers assigned to another person. He was convicted and sentenced to 75 months in prison, including a consecutive 24 month enhancement required by § 1029A(a)(1). The Eighth Circuit Court upheld the sentence, concluding that it was not necessary to show that Flores-Figueroa knew he was using another person’s identifying information. In an opinion by Justice Breyer, the Supreme Court reversed, 9-0, holding that ordinary English grammar suggests that the term “knowingly” applies to all of the statutory elements. For more on the Court’s reasoning, see the case summary on the Federal Defender Supreme Court Blog.The Supreme Court also granted certiorari in two cases, Sullivan v. Florida (08-7412) and Graham v. Florida (08-7621), both of which raise constitutional challenges to the imposition of life in prison without possibility of parole on juveniles who commit crimes other than murder.
April 30, 2009
DOJ and the Obama Administration Declare Support for Eliminating the 100:1 Sentencing Disparity Between Crack and Powder Cocaine
In testimony before the Senate Judiciary Subcommittee on Crime and Drugs yesterday, Assistant United States Attorney General Lanny Breuer declared that “Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” This is the first time that the Department of Justice has supported equalization of cocaine sentencing.Noting that a complete end to the sentencing disparity cannot occur without Congressional action, Mr. Breuer offered hope for defendants currently facing sentencing for crack cocaine offenses:
[W]e recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio. Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.Mr. Breuer was one of several witnesses who testified at yesterday’s hearing on “Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity.”
Supreme Court Permits Use of Involuntary Statements for Impeachment; Clarifies Scope of Gun Enhancement
The Kansas Supreme Court yesterday issued decisions in Kansas v. Ventris (07-1356), and Dean v. United States (08-5274).In Kansas v. Ventris, Ventris was arrested for aggravated robbery and burglary. The state planted an informant in his cell, to whom Ventris made incriminating statements. The state later conceded that this was a violation of Ventris’ Sixth Amendment right to counsel and, as a result, was prohibited from using the confession in its case-in-chief. It was, however, allowed to use the confession to impeach Ventris’ own testimony at trial. Kansas held that such use was impermissible under the exclusionary rule. The U.S. Supreme Court, in an opinion authored by Justice Scalia, held that Ventris’ incriminating statement to a jailhouse informant, concededly elicited in violation of Sixth Amendment strictures, is admissible at trial to impeach the defendant’s conflicting statement.
In Dean, the Court addressed the sentencing enhancement of 18 U. S. C. §924(c)(1)(A)(iii), which provides that an individual convicted for using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime, receives a 10-year mandatory minimum sentence if the firearm is discharged. Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Although the discharge was accidental and no one was harmed, Dean was sentenced to a 10-year mandatory minimum prison term on the firearm count. In a 7-2 opinion by Chief Justice Roberts, the Supreme Court held that section 924(c)(1)(A)(iii) requires no separate proof of intent and that the 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident.
The Court also issued an opinion on Tuesday in Cone v. Bell (07-1114), in which it addressed whether a federal habeas claim is procedurally defaulted if it is presented twice to state courts and whether a federal court has the power to recognize that a state court erred in holding that its law precluded it from reviewing a claim.