This morning, the U.S. Supreme Court granted certiorari review in two criminal cases raising constitutional claims. In Ellingburg, Jr. v. United States, No. 24-482 (April 7, 2025) (cert. granted), the Court will decide whether criminal restitution under the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A(a)(1) (2018), is penal for purposes of the Ex Post Facto Clause.
The government violates the Ex Post Facto Clause if (1) it applies a penal law retroactively, and (2) retroactive application of the law disadvantages the affected offender by altering the definition of criminal conduct or increasing the punishment for the crime. Ellingburg involves the first step—whether the law is penal. Four circuits (Third, Fifth, Sixth, and Eleventh) have held that restitution under the MVRA is penal and retroactive application of the MVRA thus violates the Ex Post Facto Clause if it increases a defendant’s punishment. The Seventh and Ninth Circuit hold the opposite.
Petitioner Holsey Ellingburg committed a bank robbery in 1995, when the VWPA was in effect. See Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663 (1994). He was sentenced in 1996 to 322 months’ imprisonment and the court entered a $7.567.25 restitution order. Liability under the VWPA for restitution expires twenty years after judgment is entered, i.e., November 2016 in this case. While incarcerated, Ellingburg made payments totaling about $2,000 until November 2016. But the government continues to demand and collect restitution from Ellingburg under the MVRA, which was enacted in 1996 after Ellingburg’s offense. The MVRA extends defendant’s liability for restitution from the later of two dates—the date of judgment or when they are released from prison.
In Villareal v. Texas, No. 24-557 (April 7, 2025) (cert. granted), the Court will decide whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.
In Geders v. United States, 425 U.S. 80 (1976), the Court unanimously held that a trial court abridges the defendant’s Sixth Amendment right to counsel by barring the defendant from conferring with his counsel during an overnight recess that takes place in the middle of the defendant’s testimony. The question in this case is whether the outcome is any different where the trial court’s order bars the defendant from conferring with counsel about defendant’s testimony but allows the defendant to confer with counsel about other matters. The lower courts are divided 9-4 over whether a trial court abridges the defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.
Petitioner David Villareal was on trial for murder in Texas state court. He was the only defense witness at the guilt phase. Villareal’s testimony began shortly before noon. After about an hour, the trial court declared a recess in the middle of Villareal’s testimony and dismissed the jury for the day due to another pending matter. The trial court instructed Villareal and his attorneys that during the ensuing 24-hour recess, they should pretend that Villarreal was still on the witness stand and should not discuss any topics that would be off limits in that context, particularly Villareal’s testimony. Villareal’s attorney objected under the Sixth Amendment, arguing the court’s order infringes on our to confer with our client.
The certiorari stage documents for these cases are available on the Supreme Court’s docket for Ellingburg here, and Villareal here.