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
January 12, 2015
Supreme Court to Decide Whether ACCA's Residual Clause Is Unconstitutionally Vague
On Friday, the Supreme Court ordered supplemental briefing and oral argument in Johnson v. United States
(No. 13-7120), a case that was first argued in November, 2014. In the new order
, the Court has asked the parties to address: "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e)(2)(B)(ii), is unconstitutionally vague."
December 15, 2014
Supreme Court Holds Traffic Stop Based on Mistake of Law Still Proper; Grants Cert on Retroactivity of Miller v. Alabama
Today, the Supreme Court issued its decision in Heien v. North Carolina
(No.13-604), holding that a police officer's traffic stop did not violate the Fourth Amendment even though it was based on a mistake of law.
The Court also granted cert last Friday in Toca v. Louisiana
(No. 14-6381) to determine (1) Whether the decision in Miller v. Alabama
, limiting sentences of life without parole for minors who commit murder, applies retroactively in this case; and 2) Whether a federal question is raised by a claim that a state collateral review court erroneously failed to find a exception?
In an 8-1 majority opinion, written by Chief Justice Roberts, the Court in Heien
In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can. Because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment.
December 10, 2014
Recent Supreme Court Cert Grants and Opinions of Interest to CJA Practitioners
In a unanimous opinion issued on December 8 - Warger v. Shauers
(No.13-517) - the Supreme Court held that FRE 606(b) precludes a party seeking a new trial from using one juror's affidavit of what another juror said in deliberations to demonstrate the other juror's dishonesty during voir dire. For an analysis of the opinion see this SCOTUSblog post
On December 5, the Supreme Court granted cert in Brumfield v. Cain
(No. 13-1433) to address the following issues:
(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia
has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins
and Ford v. Wainwright
and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma
Earlier in the term, the Court granted cert in another habeas case Chappel v. Ayala
(No. 13-1428) to address: (1) whether a state court's rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C.
§ 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision; and (2) whether the Court of Appeals properly applied the standard articulated in Brecht v.
And in Henderson v. United States
(No. 13-1487) the Court will determine whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under FRCP 41(g) or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.
November 03, 2014
New Sentencing Guidelines Manual Now Available
October 15, 2014
DOJ Announces New Policy: Prosecutors Should Not Request IAC Waivers in Plea Agreements
In a press release
issued yesterday, the Department of Justice announced a new policy of no longer asking "criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel."
Deputy Attorney General Cole conveyed the new policy to all federal prosecutors in this memo: Department Policy on Waivers of Ineffective Assistance of Counsel
. The memo directs prosecutors to no longer seek IAC waivers in plea agreements "whether those claims are made on collateral attack or, when permitted by circuit law, made on direct appeal." And in cases with an existing IAC waiver, "prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant's ineffective assistance claim raises a serious debatable issue that a court should resolve."