October 02, 2015
Supreme Court Opens New Term with 5 Cert Grants in Cases of Interest to Criminal Defense Practitioners
Yesterday, the Supreme Court granted cert in the following five cases.
(1) Taylor v. United States
(No. 14-6166) Question Presented
Whether, in a federal criminal prosecution under the Hobbs Act, 18 U.S.C. §1951, the Government is relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.
(2) Utah v. Strieff
(No. 14-1373) Question Presented:
Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later
found to be unlawful?
(3) Molina-Martinez v. United States
(No 14-8913) Question Presented:
Where an error in the application of the United States Sentencing Guidelines results in
the application of the wrong Guideline range to a criminal defendant, should an
appellate court presume, for purposes of plain-error review under Federal Rule of
Criminal Procedure 52(b), that the error affected the defendant's substantial rights?
(4) Williams v. Pennsylvania
(No. 15-5040) Questions Presented:
(a) Are the Eighth and Fourteenth Amendments violated where the presiding Chief Justice of a State Supreme Court declines to recuse himself in a capital case where he had personally approved the decision to pursue capital punishment against Petitioner in his prior capacity as elected District Attorney and continued to head the District Attorney's Office that defended the death verdict on appeal; where, in his State Supreme Court election campaign, the Chief Justice expressed strong support for capital punishment, with reference to the number of defendants he had "sent" to death row, including Petitioner; and where he then, as Chief Justice, reviewed a ruling by the state post-conviction court that his office committed prosecutorial misconduct under Brady
when it prosecuted and sought death against Petitioner?
(b) Are the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive?
(5) Duncan v. Owens
(No. 14-1516) Question Presented:
No clearly established precedent of this Court holds that it violates the Constitution for a finder of fact to infer a criminal defendant's motive when the motive is a non-element of the offense and is not directly established by the evidence at trial. Respondent claimed that the judge at his bench trial made improper “extrajudicial” findings regarding his motive and thus found him guilty based on evidence not produced at trial. The state appellate court upheld respondent's conviction, holding that the trial court's speculation regarding motive was harmless. The Seventh Circuit overturned respondent's conviction on habeas corpus review, finding that the trial court's inference about motive violated respondent's right to have his guilt adjudicated solely on the evidence introduced at trial, and that the error was not harmless. Did the Seventh Circuit violate 28 U.S.C. § 2254 and a long line of this Court's decisions by awarding habeas relief in the absence of clearly established precedent from this Court?"
September 11, 2015
NACDL Issues Report on Federal Indigent Defense System
Federal Indigent Defense 2015: The Independence Imperative
assesses the current state of the federal indigent defense system, and offers seven recommendations to address serious and persistent deficiencies revealed in its assessment.
August 12, 2015
Fourth Circuit Ruling on Warrant Requirement for Historical Cell Site Records Creates Circuit Splits
Last week, the Fourth Circuit in United States v. Graham
held that there was an expectation of privacy in historical cell site records and that a warrant is required to obtain and inspect such information. The case it at odds with several other Circuit rulings, which may lead to Supreme Court review. For an analysis of the case see: Fourth Circuit adopts mosaic theory, holds that obtaining “extended” cell-site records requires a warrant
June 30, 2015
Supreme Court Rejects Challenge to Lethal Injection Protocol; Grants Cert on Two Criminal Procedure Issues
Yesterday the Supreme Court issued its opinion in Glossip v. Gross
(No. 14-7955), rejecting an Eighth Amendment challenge to Oklahoma's lethal injection drug protocol. For more on the opinion see this SCOTUSblog post
The Supreme Court also granted cert in Musacchio v. United States
(No. 14-1095), which raises the following questions:
(1) Whether the law-of-the-case doctrine requires the sufficiency of the
evidence in a criminal case to be measured against the elements described
in the jury instructions where those instructions, without objection,
require the government to prove additional or more stringent elements than
do the statute and indictment?
(2) Whether a statute-of-limitations defense not raised at or before trial
is reviewable on appeal?
June 26, 2015
Supreme Court Strikes Down ACCA Residual Clause as Unconstitutional
Earlier today the Supreme Court held in Johnson v. United States
that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B), is unconstitutionally vague:
"We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contrary holdings in James
are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony." Scalia, J.
June 23, 2015
Recent Supreme Court Actions on Criminal Law Issues
In the past week the Supreme Court has issued opinions and granted cert in several cases of interest to criminal defense practitioners. Ohio v. Clark
(No. 13-1352) held that the introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother's boyfriend as the person who injured him did not violate the Confrontation Clause because the statements were not made with the primary purpose of creating evidence for a criminal case. For an analysis of the opinion see this SCOTUSblog post
In McFadden v. United States
(No. 14-378) the Court held that in order to convict someone of distribution of a controlled substance analogue, the government must prove the defendant knew the substance constituted a controlled substance analogue. For an analysis of the opinion see this SCOTUSblog post
The Court also issued an opinion in Brumfield v. Cain
(No. 13-1433), holding that a Louisiana death-row inmate was entitled to have his Atkins claim considered on the merits after the state court rejected his claim without affording him an evidentiary hearing or granting him time or funding to secure expert evidence.
In addition to the above opinions the Court also granted cert in Luis v. United States
(No. 14-419) to decide whether the pretrial restraint of a criminal defendant's legitimate, untainted assets needed to retain counsel of choice violates the Fifth and Sixth Amendments.
June 02, 2015
Supreme Court Issues Decisions on Internet Threats, and Drug Paraphernalia as Predicate Conviction
Yesterday, the Supreme Court handed down its decision in Elonis v. United States
(No. 13-983), overturning Mr. Elonis' conviction under 18 U.S.C. § 875(c) for posting threatening comments on Facebook. The Court held that, contrary to the jury instruction provided in this case, "negligence is not sufficient to support a conviction under Section 875(c)." For more on the opinion see this SCOTUSblog post
The Court also decided the immigration case of Mellouli v. Lynch
(No. 13-1034), holding that Mr. Mellouli's Kansas conviction for possessing drug paraphernalia to store four unnamed pills in a sock did not trigger removal under 8 U.S.C. §1227(a)(2)(B)(i). For more on the opinion see this SCOTUSblog post
May 27, 2015
Supreme Court to Hear Cases on Mandatory Minimum for Child Pornography Convictions, and Batson Challenge in Capital Trial
Yesterday the Supreme Court granted certiorari in two cases of interest to criminal defense practitioners, Lockhart v. United States
(No. 14-8358) and Foster v. Humphrey
The question presented in Lockhart
is: Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.
, the issue is whether the Georgia courts erred in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case.
May 19, 2015
Supreme Court Holds Firearm Owner Convicted of a Felony May Lawfully Transfer His Weapons
Yesterday, the Court unanimously ruled in Henderson v. United States
(No. 13-1487) that a firearm owner convicted of a felony is allowed to transfer his weapons to independent third parties, including selling the weapon on the open market. For more on the opinion see this SCOTUSblog post
April 21, 2015
Supreme Court Limits Use of Dog Sniff After Completion of a Traffic Stop
Today, the Supreme Court issued an opinion in Rodriguez v. United States
(No. 13-9972). As summarized by Justice Ginsburg, writing for the majority, the Court held the following:
In Illinois v. Caballes
, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407. The Court so recognized in Caballes
, and we adhere to the line drawn in that decision.
April 13, 2015
Sentencing Commission Votes to Promulgate Amendments to Guidelines
On April 9, 2015, the Sentencing Commission voted to promulgate amendments to the sentencing guidelines. These amendments will be submitted to Congress by May 1, 2015. Barring congressional action, they will take effect November 1, 2015. For an overview of the most relevant changes, see this Summary of the 2015 Proposed Amendments to the Sentencing Guidelines
by National Sentencing Resource Counsel. Read the language of all the proposed amendments in the Commission's Preliminary Version of the Amendments
. Practitioners may be able to use favorable amendments now in arguments for variances.
April 01, 2015
This Week's Actions by the Supreme Court: Opinions on Electronic Monitoring and IAC, and Cert Grants on Death-Sentencing Proceedings
Yesterday, the Supreme Court issued a per curiam opinion in Grady v. North Carolina
(No. 14-593), addressing whether North Carolina's electronic monitoring program constitutes a search under the Fourth Amendment. The monitoring program requires those convicted of sex offenses to wear an ankle bracelet tracking their movement for the rest of their lives. While the Court held that "a State. . . conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements," the Court declined to decide whether or not such a search is unreasonable.
The Court also issued a per curiam opinion in the habeas case of Woods v. Donald
(No.14-618), and granted cert to review death-sentencing proceedings in three state cases, Kansas v. Carr
(Nos. 14-450 and 14-449), and Kansas v. Gleason
In Woods v. Donald
, the Court reversed the Sixth Circuit's judgement that Cory Donald's attorney provided per se ineffective assistance of counsel under United States v. Cronic
when he was briefly absent during testimony concerning other defendants.
The two Kansas v. Carr
cases involve the joint murder trial of two brothers. In Carr, the Court will decided whether it was unconstitutional for the state court to hold a death-sentencing proceeding for both brothers at the same time. The Court will also address whether a judge in a death case has a constitutional duty to tell the jury that a more relaxed standard of proof applies when the jurors are considering mitigating factors. This same issue is also before the Court in Kansas v. Gleason.
For more on all of these cases, see this SCOTUSblog post
March 25, 2015
Supreme to Determine Whether Miller v. Alabama Applies Retroactively
Yesterday, the Supreme Court granted cert in Montgomery v. Louisiana
(No. 14-280). The issue presented is whether Louisiana improperly denied retroactive application of the constitutional ban on automatic life-without-parole sentences for children, as set forth in Miller v. Alabama
March 10, 2015
Supreme Court to Examine Jury's Role in Death Penalty Sentencing
Yesterday, the Supreme Court granted cert in Hurst v. Florida
(No. 14-7505), to decide whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of Ring v. Arizona
, 536 U.S. 584 (2002) (applying Apprendi's
reasoning in the capital sentencing context). For more on the case, see this SCOTUSblog post
March 03, 2015
Supreme Court to Rule on Conspiracy to Extort
Yesterday the Supreme Court granted cert in Ocasio v. United States
(No. 14-361) to decide whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.
February 25, 2015
Supreme Court Holds That a Fish Is Not a "Tangible Object" Under 18 U.S.C. §1519
Today the Court issued an opinion in Yates v. United States
, in which it reversed the judgment of the Eleventh Circuit. In the plurality opinion Justice Ginsburg wrote, "Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information." For an analysis of the opinion see this SCOTUSblog post
January 26, 2015
Supreme Court to Hear Challenge to Oklahoma's Lethal Injection Protocol
After refusing to delay the execution of one of the petitioners, the Supreme Court granted cert last Friday in Glossip v. Gross
(No. 14-7955), to decide these questions
regarding the constitutionality of Oklahoma's three-drug lethal injection. See these articles in the New York Times
for more on the case.
January 20, 2015
Supreme Court to Rule on Mental State Required for Conviction Under Controlled Substances Analogue Act; Issues Decisions in Two Habeas Cases
On January 16, 2015 the Supreme Court granted cert in McFadden v. United States
(No. 14-378) to decide whether, to convict a defendant of distribution of a controlled substance analogue, the government must prove the defendant knew that the substance constituted a controlled substance analogue.
The Court also issued a summary reversal in the capital habeas case of Christeson v. Roper
(No. 14-6873), ruling that, pursuant to Martel v. Clair
, 565 U.S. ___ (2012), the Eighth Circuit improperly affirmed the district court's denial of the petitioner's motion for substitute counsel.
In addition, on January 13, 2015, the Court held in Jennings v. Stephens
(No. 13-7211) that a prisoner who sought federal habeas relief based on three theories of ineffective assistance of counsel and prevailed in the district court on two of them is not required to file a cross-appeal or seek a certificate of appealability on the third theory to rely on it as part of his defense against the state’s appeal. For an analysis of the opinion, see this SCOTUSblog post
January 13, 2015
Supreme Court Hands Down Opinion on Forced-Accompaniment Provision of Bank Robbery Statute
Earlier today the Supreme Court issued a unanimous opinion holding that “a bank robber 'forces [a] person to accompany him,' for purposes of [18 U.S.C.] §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance."
January 13, 2015
Sentencing Commission Publishes Proposed Guideline Amendments
On January 9, 2015 the Sentencing Commission voted to publish proposed amendments
to the guidelines and issues for comment. The Commission will hold a hearing in March and will vote on the final amendments in April.
Proposed amendments and issues for comment include:
- single sentence rule for career offenders (in cases where one offense is a qualifying offense and one is not)
- mitigating role under 3B1.2
inflationary adjustment to loss tables
sophisticated means under 2B1.1
victim table in 2B1.1
intended loss under 2B.1
- fraud on the market
- jointly undertaken activity under 1B1.3
- hydrocodone under 2D1.1
- flavored drugs