September 26, 2012
Supreme Court to Review Warrantless Blood Test of Drunk Driver Arrestee
Yesterday, the Supreme Court granted certiorari in Missouri v. McNeely
(No. 11-1425) to determine whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.
According to the opinion of the Missouri Supreme Court, a Missouri state highway patrolman stopped McNeely's truck for speeding at 2:08 a.m. As the patrolman spoke with McNeely he came to the conclusion that McNeely was intoxicated based on McNeely's bloodshot eyes, slurred speech, and the smell of alcohol on his breath. As a result, the patrolman asked McNeely to get out of his car and perform standard field-sobriety tests. Concluding that McNeely failed the sobriety tests, the patrolman arrested McNeely for driving while intoxicated and asked him to consent to a breath test while in the patrol car. When McNeely refused to consent, the patrolman drove McNeely to the local hospital and, directed a phlebotomist to draw McNeely's blood over McNeely's objection. At no point in the process had the patrolman attempted to seek a warrant; according to the patrolman, he thought no warrant was necessary because of a recent article he had read purportedly describing recent changes in Missouri's implied consent law.
McNeely moved to suppress the results of the blood test as a violation of his Fourth Amendment rights. The trial court sustained the motion, and the issue reached the Missouri Supreme Court on the prosecution's interlocutory appeal. In its opinion affirming the trial court's judgment, the Missouri Supreme Court distinguished the case from Schmerber v. California
, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), stating: "[t]here, the Supreme Court provided a limited exception to the warrant requirement for the taking of a blood sample in alcohol-related arrests. Id.
at 772, 86 S.Ct. 1826. The holding, which was expressly limited to the facts of that case, ultimately rested on certain 'special facts' that might have led the officer to reasonably believe he was faced with an emergency situation in which the delay in obtaining a warrant would threaten the destruction of evidence. Id.
at 770-71, 86 S.Ct. 1826. The threat of evidence destruction was caused by the fact that the percentage of alcohol in a person's blood begins to diminish shortly after drinking stops and because time had to be taken both to investigate the accident scene and transport the defendant to the hospital. Id.
These events left no time for the officer to seek out a judge to secure a search warrant. Id. Schmerber
held that these 'special facts' permitted a warrantless blood draw. Id.
, at 771, 86 S.Ct. 1826."
"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. "
September 04, 2012
Supreme Court to Address Test for Determining Whether a Prior Conviction Can Be Used for Sentencing Enhancement
On Friday, August 31, the Supreme Court granted certiorari in Descamps v. United States
(11-9540), to determine whether a state conviction for burglary that is missing an element of the generic crime may be subject to Taylor's
modified categorical approach for the purposes of enhancing a sentence under ACCA.
A summary of the case by SCOTUSblog states:
The case involves a Colville, Wash., man, Matthew Robert Descamps, who was convicted of the federal crime of being a felon who had a gun illegally. He was sentenced under that Act to 262 months in prison, based in part on a 1978 conviction — a guilty plea — for the burglary of a grocery store in California, treating that conviction as one for a “violent felony.”
In his petition, Descamps’s lawyers argued that the burglary conviction should not count in the sentencing calculation, because the California law at issue does not include the element of entering or remaining illegally at the site of the alleged crime. That omission, the petition claimed, means that the crime does not fit the definition of “generic burglary.” The Ninth Circuit, however, supplied that element, finding that burglary under the California law at issue in Descamps’s case is broader than “generic burglary,” and thus counts under the ACCA.
The U.S. Solicitor General had urged the Court not to hear Descamps’s case, even though the government conceded that there is some disagreement among lower courts on when a federal court may supply a missing element of a crime, using what is technically called the “modified categorical approach.” The Solicitor General said that conflict predates a definitive ruling on the issue by the Ninth Circuit, so Supreme Court review at this point would be premature.
June 28, 2012
Supreme Court Rules Stolen Valor Act Unconstitutional
In United States v. Alvarez
(No. 11-210), the Supreme Court today held that the Stolen Valor Act (18 U.S.C. Sections 704 (b), (c)) infringes upon speech protected by the First Amendment.
The Court's majority opinion, authored by Justice Kennedy and joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor, holds under an "exacting scrutiny" test that falsity and nothing more does not fall under recognized exceptions to First Amendment protections and has no clear limiting principle (such as lying for material gain). Justices Breyer and Kagan would hold that the Act works disproportionate constitutional harm to the First Amendment and therefore fails intermediate scrutiny. Justices Alito, Scalia, and Thomas were in the dissent. The Court's decision leaves open the possibility for the Act to survive review if amended to apply more narrowly.
June 25, 2012
Supreme Court Holds Mandatory Life Without Parole for Juveniles Violates 8th Amendment, and Arizona Immigration Law Is Mostly Preempted; Grants Cert on Question of Plain Error Review
This morning, the Supreme Court handed down its opinion in Miller v. Alabama
(No. 10-9646), holding that mandatory life without parole for thouse under the age of 18 at the time of their crimes violates the Eighth Amendement's prohibition on cruel and unusual punishment. The Court also issued its highly-anticipated ruling on the Arizona immigration law in Arizona v. United States
(No. 11-182), invalidating three of the four provisions before it.
In addition, the Court also granted certiorari in Henderson v. United States
(No. 11-9307) to address the penalty enhancement provision of 21 U.S.C. § 851.
In Miller v. Alabama
, decided together with Jackson v. Hobbs
(No. 10-9647), the majority opinion focused on the harshness of a sentencing scheme that prevented individualized sentencing for defendants facing the most serious penalties. For more on Miller
see this Sentencing Law and Policy Post
, and this SCOTUSblog post
The Court's opinon on the Arizona immigration law struck down as federally preempted all but one provision before it: the provision which requires police to check the immigration status of persons whom they detain before releasing them and which allows police to stop and detain anyone suspected of being an undocumented immigrant. Summaries and analyses of the opinion from numerous commentators can be found on the Arizona v. United States case page
In Henderson v. United States
the petition raises the question: When the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, should an appellate court reviewing for plain error apply the time-of-appeal standard of Johnson v. United States,
520 U.S. 461 (1997), as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should the appellate court apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted?
June 21, 2012
Supreme Court Holds that FSA Applies to Post-Act Sentencing for Pre-Act Conduct
Today, the Supreme Court issued its opinion in Dorsey v. United States
(No. 11-5683), holding that the Fair Sentencing Act's new mandatory minimums apply to sentences for crack cocaine imposed after the Act for pre-Act crimes. The Court stated, in an opinion written by Justice Breyer, "[W]e conclude that Congress intended the Fair Sentencing Act's new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act's 'plain import' or 'fair implication.'"
In another opinion issued today, Southern Union Co. v. United States
(No. 11-94) the Court held that the rule of Apprendi
applies to criminal fines.
For more on both cases see this post
on the Sentencing Law and Policy Blog.
June 18, 2012
Supreme Court Rejects Confrontation Clause Challenge to Admission of Expert Testimony; Grants Cert on Conspiracy Issue
Today, the Supreme Court issued a pluarality opinion in Williams v. Illinois
(No. 10-8505), affirming the decision of the Supreme Court of Illinois that the admission of expert testimony about the results of DNA testing performed by non-testifying analysts did not violate the Confrontation Clause. The Court also granted certiorari in Smith v. United States
(No. 11-8976) to decide whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period -- a fundamental due process question that is the subject of a well-developed circuit split.
Below are detailed summaries of Williams
, from Paul Rashkind's Supreme Court Review/Preview/Overview
, Justice Alito announced the judgment of the Court and delivered an opinion, in which the Chief Justice, Justice Kennedy, and Justice Breyer joined. Justice Breyer filed his own concurring opinion, while Justice Thomas filed an opinion in which he concurred in the judgment only. Justice Kagan filed a dissenting opinion, in which Justices Scalia, Ginsburg, and Sotomayor joined.
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 Cellmark’s profile or establishing how Cellmark handled or tested the sample. Nor did she vouch for the accuracy of Cellmark’s 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 expert’s 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.
, 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 1980’s and 1990’s. 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.
June 12, 2012
Supreme Court Takes Up Another Double Jeopardy Case
Several weeks after rejecting a Double Jeopardy challenge to a retrial, the Court will once again take up the issue in Evans v. Michigan
(No. 11-1327). In Evans
the Court will decide whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact.
In addition to granting certiorari in Evans,
the Court also issued a summary opinion
in Parker v. Matthews
(No. 11-845), the Court held that the decision of Sixth Circuit, which set aside two twenty-nine-year-old murder convictions, 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.”
June 04, 2012
Supreme Court to Rule on Detention Incident to Arrest Exception to Fourth Amendment
The Supreme Court today granted certiorari in Bailey v. United States
(No. 11-770) to determine whether, pursuant to Michigan v. Summers
, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
On July 28, 2005, the Suffolk County police obtained a search warrant for the "basement apartment of 103 Lake Drive" in Wyandanch, New York, on the basis of information from a confidential informant. The search warrant indicated that the apartment was "believed to be occupied by an individual known as 'Polo', a heavy set black male with short hair," and identified a "chrome .380 handgun" as the principal target of the search.
Before they entered the apartment, the police saw two men, later identified as Chunon Bailey and Bryant Middleton, exiting the gate at the top of the stairs that led down to the basement of 103 Lake Drive. Both Bailey and Middleton matched the CI's description of "Polo." The police watched as Bailey and Middleton got into a car in the driveway and drove down the block. They pulled the car over after it had driven about a mile away. Meanwhile, another team of police officers began the search of the apartment.
After pulling the car over, the police patted down Bailey and Middleton and asked for identification. Bailey identified himself and showed a driver's licenses bearing a Bay Shore, New York address, but also said that he was coming from his house at "103 Lake Drive" in Wyandanch, New York. Middleton also told the police that Bailey lived at 103 Lake Drive. At that point, the officers placed Bailey and Middleton in handcuffs and — in response to Bailey's inquiry as to why they were being "arrested" — informed both men that they were being detained, but not arrested, incident to the execution of a search warrant in the basement apartment of 103 Lake Drive. To that, Bailey responded, "I don't live there. Anything you find there ain't mine, and I'm not cooperating with your investigation."
After driving Bailey and Middleton back to 103 Lake Drive, the police told them that the search team had found a gun and drugs in plain view in the apartment. The police arrested Bailey and Middleton and seized Bailey's house and car keys. Later that evening, the police discovered that one of the keys on Bailey's key ring opened the door of the basement apartment. In total, about ten minutes elapsed between Bailey's stop and his formal arrest.
The evidence obtained during the search of Bailey's home and his statements to the police provided the basis for the government's indictment. Bailey moved to suppress the physical evidence and his statements, on the theory that he was unlawfully detained and searched in violation of the Fourth Amendment.
May 31, 2012
Supreme Court Rejects Double Jeopardy Challenge and Rejects Sufficiency of Evidence Claim
On May 29 the Supreme Court issued a per curiam opinion in Coleman v. Johnson
(No. 11-1053), and on May 24 the Court handed down a decision rejecting a Double Jeoparday claim after retrial in Blueford v. Arkansas
(No. 10-1320). In Johnson,
the Court held that, taking into account the deference due to the state court's decision under AEDPA, the evidence at Johnson's trial was sufficient to convict him as an accomplice and co-conspirator to murder. In Blueford
, the Court held that the Double Jeopardy Clause does not bar retrial when the jury did not formally acquit the defendant and the trial court simply adhered to state law in declining to accept a partial verdict of acquittal and declaring a mistrial. For an analysis of Blueford
see this SCOTUSblog post
May 09, 2012
Further Analysis of TRAC Report Underscores its Flawed Assumptions
On March 5, 2012, the Transactional Records Access Clearinghouse (TRAC) announced “Wide Variations Seen in Federal Sentencing,” and stated in a press release that it had discovered “extensive and hard-to-explain variations in the sentencing practices of district court judges.” This updated report by Sentencing Resource Counsel
reveals that TRAC’s assumptions regarding cases and caseloads among judges in the same district are flawed. Further, the report discusses how TRAC uses poor quality data on sentences imposed, an unreliable method of identifying case type, and incorrect methods of reporting sentence lengths. A spot check comparing TRAC data against actual cases reveals serious errors, inconsistencies, and impossibilities in TRAC’s reported data.
April 30, 2012
Supreme Court to Rule on Retroactivity of Padilla v. Kentucky
Earlier today the Supreme Court granted certiorari in Chaidez v. United States
(11-820). In Chaidez
, the issue presented is whether the Court’s decision in Padilla v. Kentucky,
holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement. For further details on the case, see this SCOTUSblog post
April 25, 2012
Supreme Court Holds That Appellate Court Cannot Undo State's Waiver of Its AEDPA Time Limitation Defense
Yesterday, the Supreme Court issued an opinion in Wood v. Milyard
(10-9995), holding that where the state had deliberately waived its claim that Wood's habeas petition was untimely under AEDPA, the Court of Appeals erred in raising and deciding the timeliness bar sua sponte
. For an analysis of the case, see this SCOTUSblog post
April 18, 2012
Sentencing Commission Promulgates 2012 Amendments Guidelines
On Friday, April 13th, the Sentencing Commission voted to promulgate amendments to the sentencing guidelines on a wide array of subjects. These amendments will be submitted to Congress by May 1, 2012. Barring congressional action, they will take effect November 1, 2012. View this summary of the amendments for more information. On the Commission's website you can also view the text of the proposed amendments.
April 03, 2012
Supreme Court Holds Routine Jail Strip Searches Are Constitutional; Grants Cert to Decide Aggravated Felony Issue in Immigration Case
Yesterday, the Court acted on two cases of interest to criminal defense practitioners.
Dividing 5-4, the Court held in Florence v. Board of Chosen Freeholders of the County of Burlington (No. 10-945) that any person arrested who is being admitted to the general jail population may be subjected to a strip search involving only visual inspection, even absent reasonable suspicion that the prisoner is dangerous or likely to be carrying a concealed weapon or drugs. For an analysis of the opinion see this SCOTUSblog post.
In Moncrieffe v. Holder (No. 11-702) the question presented is whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony.
March 29, 2012
Supreme Court Addresses Standard for Substitution of Counsel in Capital Cases
On Monday, the Supreme Court announced its decision in Martel v. Clair (No. 10-1265), in which it addressed the standard for replacement of appointed counsel under §3599 of Title 18. That statute entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings. While the statute provides that appointed counsel may be replaced upon motion of the defendant, it does not specify the standard that district courts should use in evaluating those motions. In an unanimous opinion delivered by Justice Kagan, the Court held "that courts should employ the same 'interests of justice' standard that they apply in non-capital cases under a related statute, §3006A of Title 18 . . . [and] that the District Court here did not abuse its discretion in denying respondent Kenneth Clair’s motion to change counsel."
March 28, 2012
Supreme Court Upholds District Court’s Discretion to Determine Whether a Federal Sentence Should Run Consecutively to an Anticipated State Sentence
Today, the Supreme Court issued its opinion in Setser v. United States (No. 10-7387), holding that the District Court has discretion to order that a defendant’s sentence run consecutively to his anticipated, but not yet imposed, state sentence. For more on the opinion, see this SCOTUSblog post and this Sentencing Law and Policy post.
March 27, 2012
Supreme Court to Address Use of Narcotics Dogs to Establish Probable Cause
Yesterday, the Supreme Court granted certiorari in Florida v. Harris
(No. 11-817). The Court has been asked to determine whether the Florida Supreme Court has decided an important federal question in a way that conflicts with the established Fourth Amendment precedent of the U.S. Supreme Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.
March 21, 2012
Supreme Court Issues Opinions on Ineffective Assistance of Counsel at Plea Bargain Stage
This week, the Supreme Court has issued three opinions and two grants of certiorari in cases of interest to criminal defense practitioners.
On Monday, the Court granted certiorari in two capital cases to address competency in federal habeas proceedings: Ryan v. Gonzales (No. 10-930) and Tibbals v. Carter (No. 11-218). In Ryan v. Gonzales the question presented is whether 18 U.S.C. § 3599(a)(2), which provides that an indigent capital state inmate pursuing federal habeas relief “shall be entitled to the appointment of one or more attorneys,” entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel. In Tibbals v. Carter, the Court will decide whether capital prisoners possess a “right to competence” in federal habeas proceedings under Rees v. Peyton; and 2) whether a federal district court can order an indefinite stay of a federal habeas proceeding under Rees. For more on these cases, see this SCOTUSblog post.
Later in the week, the Court issued a series of opinions on the right to effective assistance of counsel. On Tuesday, the Court ruled in Martinez v. Ryan (No. 10-1001) that where, under state law, ineffective assistance of trial counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. For more on Martinez v. Ryan see this SCOTUSblog post.
In Missouri v. Frye (No. 10-444), issued on Wednesday, the Court held that the right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. More specifically, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. . . .When defense counsel [here] allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.” In its opinion in Lafler v. Cooper (No. 10-209), also issued on Wednesday, the Court again addressed the right to effective assistance at the plea bargaining stage. The Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.
March 09, 2012
TRAC Analysis of Variations in Sentencing Misses the Mark
On March 5, 2012, the Transactional Records Access Clearinghouse (TRAC) announced “Wide Variations Seen in Federal Sentencing,” and stated in a press release that it had discovered “extensive and hard-to-explain variations in the sentencing practices of district court judges.” Sentencing Resource Counsel reviewed TRAC’s report, and concluded that its analyses, and accompanying media coverage, demonstrate the danger of a little knowledge about a complex subject. For example, TRAC treats all drug cases as “similar,” regardless of the type or quantity of drug, and regardless of whether defendants were first offenders or career offenders. Read this Sentencing Resource Counsel Fact Sheet
February 22, 2012
Supreme Court Issues Opinions on Miranda, Brady and INA
On Monday, the Supreme Court issued several opinions of interest to criminal defense practitioners. In Howes v. Fields (No. 10-680), the Court addressed what constitutes "custodial interrogation" under Miranda when a prisoner is questioned about a crime that occurred outside the prison walls. The Court reversed the decision of the Sixth Circuit affirming the district court's grant of habeas relief. In an opinion by Justice Alito, the Court stated, "In this case, it is abundantly clear that our precedents do not clearly establish the categorical rule on which the Court of Appeals relied, i.e., that the questioning of a prisoner is always custodial when the prisoner is removed from the general prison population and questioned about events that occurred outside the prison. On the contrary, we have repeatedly declined to adopt any categorical rule with respect to whether the questioning of a prison inmate is custodial."
In Kawashima v. Holder (No. 10-577) the Court affirmed the decision of the Ninth Circuit. It held that violations of 26 U.S.C. §§ 7206(1) and (2), which preclude making (or assisting in the making of) a false tax return, are crimes "involv[ing] fraud or deceit" under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies for purposes of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., when the loss to the government exceeds $10,000.
The Court also issued a per curiam opinion in an unargued case, Wetzel v. Lambert (No. 11-38). James Lambert was convicted and sentenced to death in 1984 for murders committed in the course of a robbery. In a habeas petition in the Eastern District of Pennsylvania, Lambert asserted that the Commonwealth had failed to disclose a police activity sheet in violation of Brady v. Maryland. Lambert argued that the activity sheet was exculpatory because it suggested that one of his accomplices had identified a third person as a "co-defendant." The district court denied the petition, but the Third Circuit reversed, holding that the faiure to disclose the activity sheet was a Brady violation. The Supreme Court vacated the Third Circuit's decision and remanded the case for further proceedings, ruling that the Third Circuit had failed to address the state court's determination that the notations on the activity sheet were entirely ambiguous.