Petition for Writ of Certiorari — Graham B. Spanier, Petitioner v. Chad Libby, Director, Dauphin County Probation Services, et al.

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------GRAHAM B. SPANIER,

Petitioner,

v.

DIRECTOR OF DAUPHIN COUNTY PROBATION

SERVICES; ATTORNEY GENERAL OF PENNSYLVANIA,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------BRUCE P. MERENSTEIN

Counsel of Record

TIMOTHY K. LEWIS

SAMUEL W. SILVER

SCHNADER HARRISON SEGAL &

LEWIS LLP

1600 Market Street, Suite 3600

Philadelphia, Pennsylvania 19103

(215) 751-2000

bmerenstein@schnader.com

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED FOR REVIEW

1. May a state prosecute a defendant for violating a statute enacted after the defendant’s conduct,

without violating the Ex Post Facto Clause, merely because the statute does not indicate that it applies retroactively?

2. Does the Fourteenth Amendment’s Due Process Clause preclude a state from obtaining a conviction on the basis of a jury instruction that uses the

precise language of a criminal statute enacted after

the defendant’s conduct and that broadens the scope of

criminal liability?

ii

RELATED CASES

•

Commonwealth v. Spanier, No. CP-22-CR-00036152013, Court of Common Pleas for Dauphin County,

Pennsylvania. Judgment entered June 2, 2017.

•

Commonwealth v. Spanier, No. 1093 MDA 2017,

Superior Court of Pennsylvania. Judgment entered June 26, 2018.

•

Spanier v. Libby, No. 3:19-cv-523, U.S. District

Court for the Middle District of Pennsylvania.

Judgment entered April 30, 2019.

•

Spanier v. Director Dauphin County Probation

Services, No. 19-2228, U.S. Court of Appeals for the

Third Circuit. Judgment entered December 1,

2020.

iii

TABLE OF CONTENTS

Page

Questions Presented for Review ..........................

i

Related Cases ......................................................

ii

Table of Authorities .............................................

v

Introduction .........................................................

1

Opinions Below ....................................................

3

Jurisdiction ..........................................................

3

Constitutional Provisions and Statutes Involved ...

4

Statement of the Case .........................................

5

A.

The charges against Graham Spanier.......

6

B.

The Pennsylvania child-endangerment statute ..............................................................

7

C.

The jury instructions and verdict..............

8

D.

The state-court rulings ..............................

9

E.

The decisions below ................................... 10

Reasons for Granting the Writ ............................ 11

I.

The Third Circuit’s holding that the Ex

Post Facto Clause is not implicated unless

a legislature expressly provides that a

statute applies retroactively is in conflict

with this Court’s precedents and other

lower court decisions ................................. 11

iv

TABLE OF CONTENTS – Continued

Page

II.

The Third Circuit’s holding that the Due

Process Clause is not violated by a jury instruction that permits a jury to find a defendant guilty on the basis of a criminal

statute enacted after the defendant’s conduct is in conflict with this Court’s precedents and other lower court decisions ....... 15

Conclusion............................................................ 21

APPENDIX

Opinion of the United States Court of Appeals

for the Third Circuit (Dec. 1, 2020) ........................1a

Judgment of the United States Court of Appeals

for the Third Circuit Reversing District

Court’s Order (Dec. 1, 2020)..................................40a

Opinion of the United States District Court for the

Middle District of Pennsylvania (Apr. 30, 2019) .....42a

Order of the United States District Court for the

Middle District of Pennsylvania Granting

Writ of Habeas Corpus (Apr. 30, 2019) .................97a

Order of the Supreme Court of Pennsylvania

Denying Allowance of Appeal (Feb. 21, 2019) ......99a

Opinion of the Superior Court of Pennsylvania

(June 26, 2018) ....................................................100a

Opinion of the Court of Common Pleas for Dauphin County, Pennsylvania (Sept. 22, 2017) ......155a

Order of the United States Court of Appeals for the

Third Circuit Denying Rehearing (Jan. 4, 2021) .....190a

v

TABLE OF AUTHORITIES

Page

CASES

Bouie v. City of Columbia, 378 U.S. 347

(1964) ........................................2, 3, 11, 15, 16, 17, 20

California Dep’t of Corr. v. Morales, 514 U.S. 499

(1995) .......................................................................14

Carmell v. Texas, 529 U.S. 513 (2000) ........................13

Commonwealth v. Lynn, 114 A.3d 796 (Pa.

2015) ....................................................................... 7

Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991) ..... 18, 19

Landgraf v. USI Film Prods., 511 U.S. 244

(1994).................................................................... 14

Lynce v. Mathis, 519 U.S. 433 (1997) .................... 12, 13

Metrish v. Lancaster, 569 U.S. 351 (2013) .......... 2, 3, 17

Miller v. Commonwealth, 391 S.W.3d 857 (Ky.

2013) .................................................................. 19, 20

Miller v. Florida, 482 U.S. 423 (1987) ........................13

Murtishaw v. Woodford, 255 F.3d 926 (9th Cir.

2001) .................................................................. 17, 18

Raske v. Martinez, 876 F.2d 1496 (11th Cir.

1989) ............................................................... 13, 14

Rogers v. Tennessee, 532 U.S. 451 (2001) ................ 2, 16

Selsor v. Workman, 644 F.3d 984 (10th Cir.

2011) ..................................................................... 18

Splawn v. California, 431 U.S. 595 (1977) .................17

vi

TABLE OF AUTHORITIES – Continued

Page

State v. Norush, 642 P.2d 1119 (N.M. Ct. App.

1982) ........................................................................20

United States v. Marcus, 560 U.S. 258 (2010) ............19

Weaver v. Graham, 450 U.S. 24 (1981) ......... 1, 2, 12, 13

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. CONST. art. I, § 10 ...................1, 2, 4, 11, 12, 13, 14

U.S. CONST. amend. XIV, § 1 ......................... 2, 4, 15, 16

28 U.S.C. § 1254(1) ........................................................4

28 U.S.C. § 2254 .................................................... 10, 11

18 PA. C.S. § 4304(a) (1995)...................................... 4, 7

18 PA. C.S. § 4304(a)(1) (2007) ..................... 5, 6, 7, 8, 9

18 PA. C.S. § 4304(a)(2) (2007) .....................................6

OTHER AUTHORITIES

THE FEDERALIST NO. 44 (James Madison) (Clinton Rossiter ed. 1961) ...............................................1

1

INTRODUCTION

1. Forty years ago, this Court rejected the notion

that the Constitution’s prohibition on ex post facto

laws barred only those laws that, on their face, applied

retroactively. Weaver v. Graham, 450 U.S. 24, 31 (1981).

Because “it is the effect, not the form, of the law that

determines whether it is ex post facto,” id., the prohibition is implicated whenever a criminal statute is applied to a defendant’s conduct occurring before the

statute’s enactment, as it was in Weaver, id. at 27 &

n.4, and in this case. Yet the Third Circuit reversed the

district court’s grant of the habeas writ in this case,

finding that “there was no ex post facto violation” because “the Pennsylvania General Assembly did not

provide that the [statute petitioner allegedly violated]

would apply retroactively.” Pet.App.17a. This holding

is contrary to both this Court’s decision in Weaver and

numerous other decisions applying that precedent.

As Weaver made clear, the Constitution’s prohibition on ex post facto laws is implicated whenever a

criminal statute is applied to conduct pre-dating its enactment, whether the retroactive application arises

from the legislature’s express command or a prosecutor’s charging decision. Indeed, excluding the latter situations from the Ex Post Facto Clause’s scope would

significantly weaken the protections of this core “constitutional bulwark in favor of personal security and

private rights.” THE FEDERALIST NO. 44, at 282 (James

Madison) (Clinton Rossiter ed. 1961). Under the Third

Circuit’s holding, the Ex Post Facto Clause provides no

protection to a defendant unless a legislature openly

2

flouts the Constitution’s limitations and expressly provides that a new criminal law applies to prior conduct.

Graham Spanier was charged with violating a

statute that went into effect in 2007 – and that broadened the definition of criminal conduct – solely on the

basis of his conduct in 2001. This Court should grant

the writ to establish that courts that – unlike the

Third Circuit – have continued to apply Weaver have

properly done so because the Ex Post Facto Clause is

implicated whenever a new criminal statute is applied

to conduct pre-dating its enactment.

2. Because Spanier was charged with violating a

statute that went into effect in 2007, the court at his

trial instructed the jury – over Spanier’s repeated objections – using the language of that 2007 statute and

not the language of the statute in effect in 2001. Thus,

Spanier was convicted on the basis of a 2007 statute

for his conduct in 2001. This is contrary to this Court’s

longstanding precedents under which “fundamental

due process prohibits the punishment of conduct that

cannot fairly be said to have been criminal at the time

the conduct occurred.” Rogers v. Tennessee, 532 U.S.

451, 466 (2001). Yet the Third Circuit reversed the district court’s grant of the habeas writ on this ground as

well.

Since at least this Court’s decision in Bouie v. City

of Columbia, 378 U.S. 347 (1964), it has been clear that

the Due Process Clause precludes “an unforeseeable

and retroactive judicial expansion of narrow and precise statutory language.” Id. at 352; see also Metrish v.

3

Lancaster, 569 U.S. 351 (2013). When a court bases its

jury instructions on the broader language of a statute

enacted after a defendant’s conduct, this is a paradigmatic unforeseeable and retroactive expansion of the

precise language of the statute in effect at the time of

that conduct. Many lower courts have reached this

conclusion in applying the Court’s Bouie line of cases,

in conflict with the Third Circuit’s holding here. This

Court should grant the writ on this issue to clarify that

Bouie’s prohibition on judicial expansion of criminal

statutes applies when a court relies on a broader statute, enacted after the defendant’s conduct, to instruct

a jury on the elements of a crime.

---------------------------------♦---------------------------------

OPINIONS BELOW

The district court’s opinion granting the writ of

habeas corpus (Pet.App.42a-96a) is reported at 2019

U.S. Dist. LEXIS 72824 and 2019 WL 1930155. The

Third Circuit’s decision reversing the district court

(Pet.App.1a-39a) is reported at 981 F.3d 213. The state

trial court’s post-trial decision (Pet.App.155a-88a) is

not reported. The Superior Court of Pennsylvania’s 21 decision affirming Spanier’s conviction (Pet.App.100a54a) is reported at 192 A.3d 141.

---------------------------------♦---------------------------------

JURISDICTION

The Third Circuit issued its opinion and entered

judgment on December 1, 2020, and denied a timely

4

motion for rehearing on January 4, 2021. Pet.App.40a41a, 190a-91a. This Court has jurisdiction under 28

U.S.C. § 1254(1).

---------------------------------♦---------------------------------

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Article I, Section 10, Clause 1 of the United States

Constitution provides, in relevant part, “No state shall

. . . pass any . . . ex post facto law.”

The Fourteenth Amendment to the Constitution

provides, in relevant part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any

state deprive any person of life, liberty, or property,

without due process of law.”

The statute at issue in this case is Section 4304 of

the Pennsylvania Crimes Code, entitled “Endangering

welfare of children.” The relevant portion of the statute

in effect in 2001 provided:

A parent, guardian, or other person supervising the welfare of a child under 18 years

of age commits an offense if he knowingly endangers the welfare of the child by violating a

duty of care, protection or support.

18 PA. C.S. § 4304(a) (1995). The relevant portion of

the statute that went into effect in January 2007 provided:

5

A parent, guardian or other person supervising the welfare of a child under 18 years of

age, or a person that employs or supervises

such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

18 PA. C.S. § 4304(a)(1) (2007).

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Few of the underlying facts that formed the basis

for the criminal charges against Graham Spanier are

material to consideration of the questions presented in

this petition. Most pertinent, as the Third Circuit

noted, “Spanier was convicted solely for his actions in

2001.” Pet.App.37a. Yet, over Spanier’s repeated objections, he was charged and tried with violating a statute

that went into effect six years later, in 2007. Moreover,

despite his additional objections, the court instructed

the jury at his trial on the basis of that broader 2007

statute, rather than the statute in effect in 2001. The

state courts summarily rejected Spanier’s constitutional challenges to this course of events, but the district court granted Spanier’s habeas petition on both

ex post facto and due process grounds. The Third Circuit reversed, in a holding that conflicts with this

Court’s longstanding precedents and other courts’ application of those precedents in similar circumstances.

6

A. The charges against Graham Spanier.

The Commonwealth of Pennsylvania filed criminal charges against Graham Spanier in November

2012. See 3d Cir. App. 46-49 (“App.”). The charges arose

from his allegedly inadequate response to a report of

an incident involving a former Pennsylvania State

University employee (Gerald Sandusky) and a minor

child on the university’s campus in 2001 when Spanier

was the university’s president. Pet.App.4a-7a. The

charges included two counts of child endangerment under Section 4304(a)(1) and (a)(2) of the Pennsylvania

Crimes Code, provisions that became effective in 2007.

App.47. Spanier eventually was convicted of a single

count of child endangerment, under Section 4304(a)(1).

App.1397.

Throughout the pre-trial proceedings, Spanier objected to being charged with violating a 2007 statute

for his conduct in 2001. App.173-74, 176-77, 459, 46162. In response to these objections, the prosecution did

not dispute that it was charging Spanier with violating

the 2007 statute; rather, it contended that Spanier engaged in a course of conduct from 2001 to 2012, and

therefore, according to the prosecution, he could be

charged with violating the 2007 statute. App.502-03.

At his trial, however, the jury found that Spanier had

not engaged in a course of conduct, Pet.App.14a, and

thus, he “was convicted solely for his actions in 2001,”

Pet.App.37a.

7

B. The Pennsylvania child-endangerment

statute.

The 2007 statute that Spanier was charged with

and convicted of violating required the prosecution to

prove a number of elements beyond a reasonable

doubt, including the one that led to this habeas petition. To find that element proven, the jury had to conclude that Spanier fell within one of four categories of

persons – “[1] parent, [2] guardian or [3] other person

supervising the welfare of a child under 18 years of

age, or [4] a person that employs or supervises such

a person.” 18 PA. C.S. § 4304(a)(1) (2007) (emphasis

added). By contrast, under the child-endangerment

statute in effect in 2001 when all of Spanier’s relevant

conduct occurred, the jury had to find that Spanier fell

within one of three categories of persons – “[1] parent,

[2] guardian, or [3] other person supervising the welfare of a child under 18 years of age.” 18 PA. C.S.

§ 4304(a) (1995).

Thus, the 2007 statute added a fourth category of

persons subject to criminal liability for violating a duty

to children, and that fourth category was sufficient in

and of itself to meet this element of the crime. Under

the 2007 statute, even if the prosecution did not prove

beyond a reasonable doubt that a defendant himself

was a parent, a guardian, or someone supervising the

welfare of a child, which the pre-2007 statute required,1

1

See Commonwealth v. Lynn, 114 A.3d 796, 823 (Pa. 2015)

(holding that, under the pre-2007 statute, where the defendant

was not a parent or guardian, “the Commonwealth had to prove

8

it could still obtain a conviction by proving that the defendant employed or supervised someone else who in

turn supervised the welfare of a child.

C. The jury instructions and verdict.

At trial, Spanier submitted proposed jury instructions based on the statute in effect in 2001 and objected

to the prosecution’s proposed instructions, which used

the language of the broader 2007 statute. App.679-80,

691-92 & n.1, 632. At a charge conference after the

close of evidence, the court indicated that it would use

the prosecution’s proposed jury instructions, including

the precise language of the 2007 statute. App.1201,

1213. Spanier renewed his objection to use of the language from the 2007 statute. App.1215.

After reading this language to the jury as part of

its final instructions, App.1306-07, the court provided

the jury with a written copy of the elements of the

charges using the language of the 2007 statute.

App.1201, 1306, 1323. During deliberations, the jury

asked the court about the meaning of the word “supervision” in the child-endangerment element at issue

here, App.1344-45, and the court then read to the jury

the definition of this element again, using the language

of the 2007 statute, App.1351.

The jury found Spanier guilty of the child-endangerment charge under Section 4304(a)(1), but found

that he fell within ‘other person supervising the welfare of a

child’ ”).

9

that he had not engaged in a course of conduct.

App.1397. Because the jury rejected the Commonwealth’s course-of-conduct theory for charging Spanier

with violating the 2007 statute, “Spanier was convicted

solely for his actions in 2001.” Pet.App.36a-37a. The

jury found Spanier not guilty of the remaining charges.

App.1397.

D. The state-court rulings.

In a post-trial motion and on appeal, Spanier

continued to challenge application of the 2007 childendangerment statute to his conduct in 2001.

App.1505-06, 1626-29, 1634-35. The state trial court

rejected Spanier’s argument, holding that the statute

in effect in 2001 was as broad as the 2007 statute,

Pet.App.177a, 185a, despite the later statute’s addition

of a new category of persons subject to criminal liability – those who did not supervise a child’s welfare but

employed or supervised someone else who did. See 18

PA. C.S. § 4304(a)(1) (2007); see also supra note 1. In

affirming Spanier’s conviction, the Superior Court of

Pennsylvania did not address his ex post facto argument. The closest the court came to addressing the issues raised in this petition was its conclusion that, on

“the facts of this case, the trial court’s instruction on

the 2007 version of the [child-endangerment] statute

did not result in an inaccurate statement of the law.”

Pet.App.129a.

10

E. The decisions below.

Following the conclusion of the state-court proceedings, Spanier filed this timely habeas petition pursuant to 28 U.S.C. § 2254(a). App.1830. As a threshold

matter, the district court rejected the Commonwealth’s

argument that Spanier was not charged with violating

the 2007 statute, an argument the Commonwealth

made for the first time in federal court: “It is evident

that the Commonwealth charged Spanier under the

2007 statute. . . . [T]he 2007 statute was . . . retroactively applied to Spanier during his criminal proceedings and conviction.” Pet.App.44a n.3.2

The district court held that “application of [the

2007] statute to Spanier’s conduct is an unconstitutional retroactive application of the law.” Pet.App.81a82a. The court also found that, because “the jury was

instructed on the basis of the broader 2007 statute, instead of the 1995 statute in effect during 2001, . . .

there is a reasonable likelihood that the jury convicted

Spanier based on conduct that was not criminal under

the 1995 statute.” Pet.App.86a-88a. The court granted

Spanier the writ of habeas corpus, finding that he had

met his burden under 28 U.S.C. § 2254(d) for his ex

post facto and due process claims arising from application of the 2007 statute to his conduct in 2001.

Pet.App.95a-96a.

2

The state trial court reaffirmed numerous times that the

2007 statute had been applied to Spanier. Pet.App.169a-70a,

173a, 178a, 183a-85a.

11

The Commonwealth appealed and the Third Circuit reversed. Pet.App.1a-39a. The Third Circuit held

that no relief was warranted on Spanier’s ex post facto

claim because “the Pennsylvania General Assembly

did not provide that the 2007 version of the statute

would apply retroactively.” Pet.App.17a. The court also

reversed the district court’s grant of the writ on

Spanier’s due process claim. The Third Circuit held

that, given the standard in 28 U.S.C. § 2254(d)(1), it

could not conclude that the state courts’ determination

that there was no difference between the 2001 and

2007 statutes constituted an “unexpected and indefensible” interpretation of the 2001 statute. Pet.App.29a,

31a-32a (citing Bouie v. City of Columbia, 378 U.S. 347,

354 (1964)).3

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

I.

The Third Circuit’s holding that the Ex

Post Facto Clause is not implicated unless

a legislature expressly provides that a

statute applies retroactively is in conflict

with this Court’s precedents and other

lower court decisions.

This Court has made clear that the Ex Post Facto

Clause is implicated whenever a criminal statute is

applied to conduct pre-dating the law’s enactment,

3

The Third Circuit rejected the Commonwealth’s arguments

that Spanier had not properly exhausted his habeas claims.

Pet.App.19a-20a.

12

whether the retroactive application arises from a legislature’s express command or from a prosecutor’s

charging decision. Most directly, in Weaver v. Graham,

the Court expressly rejected the state’s argument that

a law was “not retrospective because, on its face, it applies only after its effective date.” 450 U.S. 24, 31

(1981). Yet the Third Circuit in this case relied on this

precise ground to deny habeas relief, holding that

“there was no ex post facto violation” because “the

Pennsylvania General Assembly did not provide that

the 2007 version of the statute would apply retroactively.” Pet.App.17a.

The statute in Weaver, like the 2007 statute here,

did not indicate whether it applied retroactively, but

the state had applied it retroactively to the petitioner

in that case. 450 U.S. at 27 & n.4. This Court explained

that “it is the effect, not the form, of the law that determines whether it is ex post facto.” Id. at 31 (emphasis

added). Thus, in “the context of [a particular] case,” a

statute implicates the Ex Post Facto Clause when it is

applied to a defendant’s pre-enactment conduct, even

if the legislature does not require such an application.

Id.; see also id. at 36 (holding that the statute was “void

as applied to petitioner, whose crime occurred before

its effective date” (emphasis added)).

Since Weaver, this Court frequently has reaffirmed its holding, whether directly or by implication,

in determining whether a statute’s application violated the Ex Post Facto Clause, even though the statute itself did not provide that it should apply

retroactively. In Lynce v. Mathis, this Court held that

13

the Ex Post Facto Clause was implicated after a state

attorney general issued an opinion interpreting a new

law as applying retroactively and, as a result, the petitioner was rearrested and returned to custody. 519 U.S.

433, 435-36 (1997). In Carmell v. Texas, the Court noted

that the state had applied a new law to the defendant,

thereby implicating the Ex Post Facto Clause, without

any indication that the law itself provided that it

should be applied retroactively. 529 U.S. 513, 518-20

(2000). And in Miller v. Florida, the Court unanimously held that a new state sentencing regime violated the Ex Post Facto Clause when it was applied to

a defendant whose crime pre-dated the new regime.

482 U.S. 423, 430-31 (1987).

In each of these cases, and others like them, the

statute itself was silent on whether it had retroactive

or exclusively prospective effect, but the state applied

it retroactively to the defendant, thereby implicating

the Ex Post Facto Clause. Lower courts have applied

Weaver’s holding in similar circumstances, finding that

a law silent on its temporal scope nonetheless implicates the Constitution’s ex post facto restrictions when

the law is applied retroactively, contrary to the Third

Circuit’s holding in this case.

For example, in Raske v. Martinez, a prisoner challenged the application of a new Florida gain-time statute to his conviction that pre-dated enactment of the

new statute. 876 F.2d 1496, 1497 (11th Cir. 1989). The

statute did not indicate whether it should be applied

retroactively, but the state agency responsible for administering the new statute “applied the method of

14

calculating gain time adopted in the [new] act to all

inmates – including those convicted of offenses that occurred before the act’s passage.” Id. at 1498. The statute therefore implicated the Ex Post Facto Clause and

the challenged provisions of the new act “constitute[d]

an unconstitutional ex post facto law as applied to petitioner.” Id. at 1502.

That is precisely the situation here. Regardless

what the statute itself said, the Commonwealth of

Pennsylvania charged Spanier with violating the 2007

statute and prosecuted him for violating that statute.

Because “Spanier was convicted solely for his actions

in 2001,” Pet.App.37a, his conviction constituted the

“retroactive application of penal legislation,” which the

“Ex Post Facto Clause flatly prohibits.” Landgraf v.

USI Film Prods., 511 U.S. 244, 266 (1994). As this

Court has made clear for at least the past four decades

and as circuit courts other than the Third Circuit have

understood, this is so even when the retroactive application is the result of prosecutorial decisions and not a

legislature’s express command. The Court should

grant the petition to reaffirm this core principle of the

Ex Post Facto Clause.4

4

Because the Third Circuit held that the lack of a retroactivity provision in the 2007 statute foreclosed Spanier’s ex post facto

claim, it did not address whether the 2007 statute “alters the definition of criminal conduct” in the child-endangerment statute.

California Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995).

It plainly does. The 2007 statute added a fourth category of individuals – those who are not parents, guardians, or supervising a

child’s welfare, but are employing or supervising someone else

who is – to the prior statute’s three categories, thereby expanding

15

II.

The Third Circuit’s holding that the Due

Process Clause is not violated by a jury instruction that permits a jury to find a defendant guilty on the basis of a criminal

statute enacted after the defendant’s conduct is in conflict with this Court’s precedents and other lower court decisions.

At Spanier’s trial, the court instructed the jury

that it could convict him of child endangerment if the

Commonwealth proved the elements of the 2007 statute, which relieved the Commonwealth of its burden of

proving that Spanier supervised the welfare of a child,

as the pre-2007 statute required. App.1306-07. The

Third Circuit’s holding that this retroactive application of the broader statute did not violate the Due Process Clause is contrary to this Court’s precedents and

conflicts with numerous lower court decisions in virtually identical circumstances.

1. In the seminal decision of Bouie v. City of Columbia, this Court applied the Constitution’s ex post

facto principles to judicial interpretation of a statute,

finding that the Due Process Clause prohibited judicial

modifications to criminal statutes that were “unexpected and indefensible by reference to the law which

had been expressed prior to the conduct in issue.” 378

U.S. 347, 354 (1964) (internal quotation and citation

omitted). In Bouie, as in this case, the challenged interpretation of an existing statute did not arise in a

the scope of individuals subject to the law and altering its definition of criminal conduct.

16

vacuum, but was based on a new statute enacted after

the defendants’ relevant conduct.

In Bouie, the statute in existence at the time of the

defendants’ conduct prohibited entering someone else’s

property “after notice” that such entry was prohibited.

Id. at 349. Despite the “precise” language of the statute

requiring such pre-entry notice, id. at 352, the defendants were convicted on the basis of the state supreme

court’s interpretation of the statute as also prohibiting

“remaining on the premises of another after receiving

notice to leave,” id. at 350 – a prohibition that the legislature added to the state criminal code shortly after

the defendants’ conduct, id. at 361. This Court held

that the new interpretation was “so clearly at variance

with the statutory language” in effect at the time of the

defendants’ conduct and had “not the slightest support

in prior [state] decisions.” Id. at 356. Thus, the state

had punished defendants “for conduct that was not

criminal at the time they committed it,” and therefore

“violated the requirement of the Due Process Clause

that a criminal statute give fair warning of the conduct

which it prohibits.” Id. at 350.

This Court has applied the due process principles

from Bouie numerous times in the intervening years,

reaffirming that the “unforeseeable judicial enlargement of a criminal statute,” id. at 353, contravenes the

“core due process concepts of notice, foreseeability, and,

in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent

conduct,” Rogers v. Tennessee, 532 U.S. 451, 459 (2001);

17

see also Metrish v. Lancaster, 569 U.S. 351, 365-66

(2013) (noting that, in Bouie, the state court “had unexpectedly expanded ‘narrow and precise statutory

language’ that, as written, did not reach the petitioners’ conduct”); Splawn v. California, 431 U.S. 595, 599601 (1977) (noting, in the context of a challenge to jury

instructions, that Bouie held “that the elements of a

statutory offense may not be so changed by judicial interpretation as to deny to accused defendants fair

warning of the crime prohibited”).

2. Numerous circuit courts and state courts have

applied Bouie and its progeny in the circumstances of

this case – where courts instructed juries using the

language of a broader statute enacted after the defendant’s relevant conduct – and held that the defendant’s

due process rights were violated.

For example, in Murtishaw v. Woodford, a jury instruction during the penalty phase of a capital trial

used the “bare language” of a statute enacted after the

defendant’s conduct, without applying a narrowing

construction later given to the statute by the state supreme court. 255 F.3d 926, 961 (9th Cir. 2001). Because

“the trial court applied the [later] statute and . . .

quoted the exact language of the [later] statute in instructions to the jury,” id. at 964, the improper instruction violated the defendant’s due process rights, id. at

965-74.5 Similarly here, the jury at Spanier’s trial was

5

The Ninth Circuit held that the use of the later statute to

instruct the jury violated both the prohibition on ex post facto

laws, 255 F.3d at 965-67, and the Constitution’s due process protections, id. at 969-71.

18

instructed using the precise language of the 2007 statute. As in Murtishaw, the jury was given no limiting

instruction that might have mitigated the effect of using the broader language of the 2007 statute.

In addition to the Ninth Circuit, the Tenth and

Eighth Circuits have held, in conflict with the Third

Circuit, that an instruction based on a statute enacted

after the defendant’s conduct violates due process. In

Selsor v. Workman, the jury was instructed on the basis

of a statute enacted after the defendant’s conduct and

that “required fewer elements of proof ” than the prior

statute. 644 F.3d 984, 1013 (10th Cir. 2011). Thus, “the

state trial court’s instructional error clearly had an ex

post facto effect on [the defendant],” thereby violating

his due process rights. Id. The court held that, in reaching a contrary conclusion, the state court “unreasonably determined that no constitutional error resulted

from the state trial court’s first degree murder instructions.” Id.6 And in Jones v. Arkansas, the Eighth Circuit

6

The court ultimately denied habeas relief, finding that the

constitutional error was harmless because the element missing

from the jury charge was “essentially undisputed.” 644 F.3d at

1014. By contrast here, there can be no doubt that the court’s reliance on the broader 2007 statute to instruct the jury prejudiced

Spanier, as it allowed the jury to find him guilty even if it concluded that he did not supervise the welfare of a child but that he

supervised someone else who did. The jury heard undisputed evidence that Spanier supervised two other university administrators who had pled guilty to child endangerment and who, unlike

Spanier, directly addressed the 2001 incident by meeting with all

of the involved parties. Indeed, in its post-trial opinion, the state

trial court expressly found that Spanier was “a person who employed or supervised persons who supervised the welfare of children,” Pet.App.177a, precisely the category added by the 2007

19

held that a habeas petitioner was entitled to the writ

where the trial court had instructed the jury on the

basis of a statute enacted after his conduct and that

had reduced the number of prior felonies required for

application of a habitual offender law. 929 F.2d 375,

377 (8th Cir. 1991) (holding that petitioner “was denied

due process because he was sentenced under a statute

that was not in effect at the time he committed his

crime”).

3. A number of state courts have reached the

same result, again departing from the Third Circuit’s

holding in this case. In Miller v. Commonwealth, the

Supreme Court of Kentucky held that a statute enacted after some of a defendant’s allegedly criminal

conduct had “been applied in an ex post facto manner.”

391 S.W.3d 857, 863 (Ky. 2013). The jury in Miller was

instructed using the new statute, which increased the

grading and penalty for the charged offense, even

though some of the alleged conduct occurred prior to

enactment of the new statute. Id. The court held that

the defendant’s due process rights were violated because he could not be convicted or punished for conduct

pre-dating the statute applied to him. Id. at 864-65.

Notably, the Miller court, relying on this Court’s

decision in United States v. Marcus, 560 U.S. 258

(2010), held that the outcome might be different if

the statute at issue criminalized a “course of conduct” and some of the defendant’s conduct occurred

statute and improperly included in the jury instruction on the

child-endangerment charge.

20

after enactment of the new statute. Miller, 391 S.W.3d

at 865-66. But the statute in Miller did not criminalize

a course of conduct, just as the statute at issue here

effectively did not, after the jury found that Spanier

had not engaged in a course of conduct. Pet.App.36a37a. See also State v. Norush, 642 P.2d 1119, 1121

(N.M. Ct. App. 1982) (vacating defendants’ convictions

because jury instructions, which eliminated a potential

defense, were based on a change in law occurring after

their conduct).

* * **

The Third Circuit’s decision in this case, which

permits the imposition of criminal liability “for conduct

committed at a time when it was not fairly stated to be

criminal,” Bouie, 378 U.S. at 362, conflicts with the decisions of other circuit courts and state courts on the

precise same issue – whether due process precludes a

conviction on the basis of a jury instruction using the

broader language of a criminal statute enacted after

the defendant’s conduct. The Court should grant the

petition to address this important due process issue.

---------------------------------♦---------------------------------

21

CONCLUSION

The Court should grant the petition.

APRIL 2021

BRUCE P. MERENSTEIN

Counsel of Record

TIMOTHY K. LEWIS

SAMUEL W. SILVER

SCHNADER HARRISON SEGAL &

LEWIS LLP

1600 Market Street, Suite 3600

Philadelphia, Pennsylvania 19103

(215) 751-2000

bmerenstein@schnader.com

Counsel for Petitioner