Petition for Writ of Certiorari — Naum Morgovsky and Irina Morgovsky, Petitioners v. United States

Supreme Court briefMay 13, 2021

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NO. 20-______

In the

Supreme Court of the United States

________________

NAUM MORGOVSKY and IRINA MORGOVSKY,

Petitioners,

UNITED STATES OF AMERICA,

________________

Respondent.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

MARISA C. MALECK

ANNE M. VOIGTS

KING & SPALDING LLP

Counsel of Record

1700 Pennsylvania Ave. NW NOAH STID

Washington, DC 20006

KING & SPALDING LLP

601 S. California Avenue

LAURA LIVELY BABASHOFF

Suite 100

KING & SPALDING LLP

Palo Alto, CA 94304

633 West Fifth Street

(650) 422-6700

Suite 1600

avoigts@kslaw.com

Los Angeles, CA 90071

Counsel for Petitioners

May 13, 2021

QUESTIONS PRESENTED

The Arms Export Control Act (“AECA”), 22 U.S.C.

§ 2778, is a criminal statute with severe penalties

that, in the government’s own words, “delegates” to

the President the power to “define the violations of

[it].” App.47. Naum and Irina Morgovsky were

indicted for conspiring to violate regulations

promulgated under the AECA. They pled guilty to

avoid decades in prison. On appeal, they raised both

constitutional and non-constitutional challenges,

which the Ninth Circuit rejected, concluding that:

(1) Congress had set forth a sufficiently “intelligible

principle” for the Executive to follow; and (2) both of

the Morgovskys had waived other challenges to the

statute. The questions presented are:

1. Whether the Executive had the authority to

issue the regulations under which the Morgovskys

were convicted; if so, whether those regulations and

the AECA violate the separation of powers doctrine,

and whether the “intelligible principle” test is the

correct analysis to apply in answering this question.

2. Whether a failure to raise a challenge under

Federal Rule of Criminal Procedure 12(b)(3)

constitutes forfeiture, and is subject to plain error

review, or waiver, and not subject to any review absent

a showing of good cause. See United States v.

Guerrero, 921 F.3d 895, 897 (9th Cir. 2019)

(recognizing a split).

3. Whether despite Class v. United States, 138 S.

Ct. 798, 805 (2018), a general appellate waiver can bar

a challenge to the statute of conviction where that

challenge implicates the court’s constitutional power

to impose judgment.

RELATED PROCEEDINGS

This case arises from the following proceedings in

the Ninth Circuit Court of Appeals and the Northern

District of California District Court, listed here in

reverse chronological order:

•

United States v. Naum & Irina Morgovsky,

Nos. 18-10486, 18-10448 (9th Cir. Dec. 14,

2020), included as Appendix B;

•

United States v. Naum & Irina Morgovsky,

Nos. 18-10486, 18-10448 (9th Cir. Sept. 22,

2020), included as Appendix A and reported

at 827 F. App’x 701;

•

United States v. Naum Morgovsky, No. 16-cr00411-001 VC (N.D. Cal. Dec. 13, 2018),

included as Appendix C;

•

United States v. Irina Morgovsky, No. 16-cr00411-003 VC (N.D. Cal. Nov. 5, 2018),

included as Appendix C.

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case within this Court’s Rule

14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 3

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED...................................... 4

STATEMENT OF THE CASE ................................... 4

Statutory and Regulatory Background ....... 4

Factual Background ..................................... 6

The Appeal .................................................... 8

The Ninth Circuit’s Decision........................ 8

The Petition for Rehearing ........................ 10

REASONS FOR GRANTING THE PETITION

AND SUMMARY OF ARGUMENT ...................... 10

This Court Should Grant Certiorari To

Consider Whether The Intelligible Principle

Test Should Apply ............................................. 12

The Intelligible Principle Test Should

Not Apply to Non-Delegation Separation

of Powers Challenges, Particularly in the

Criminal Law Context ................................ 12

Even if the Intelligible Principle Test

Does Apply in Its Current Form, AECA’s

Fill-in-the-Blank

Approach

Cannot

Satisfy It ..................................................... 17

II. The Court Should Grant Certiorari To

Resolve The Circuit Split Over Whether Rule

12(b)(3) Challenges Can Be Forfeited, And

Thus Subject To Plain Error Review, Or

Waived, And Thus Not Subject To Review At

All ....................................................................... 21

III. This Court Should Grant Certiorari To

Clarify That A General Appeal Waiver

Cannot Bar A Constitutional Challenge To

The Statute Of Conviction ................................ 26

IV. The Fact That This Decision Was

Unpublished Should Not Deter Review............ 28

CONCLUSION ......................................................... 31

PETITION APPENDIX

Appendix A

Opinion of the United States Court of

Appeals

for

the

Ninth

Circuit,

United States v. Morgovsky, Nos. 1810486, 18-10448 (Sept. 22, 2020) ................ App-1

Appendix B

Order of the United States Court of

Appeals for the Ninth Circuit Denying

Rehearing, United States v. Morgovsky,

Nos. 18-10486, 18-10448 (Dec. 14, 2020) .. App-11

Appendix C

Judgment of the Northern District Court

of California, United States v. Irina

Morgovsky, No. CR-16-00411-003 VC

(Nov. 5, 2018) ............................................. App-13

Judgment of the Northern District Court

of California, United States v. Naum

Morgovsky, No. CR-16-00411-001 VC

(Dec. 13, 2018) ........................................... App-29

Appendix D

Excerpts of Transcript of January 16,

2019 Proceedings, United States v. Naum

& Irina Morgovsky, No. CR 16-0411 VC

(N.D. Cal. filed Jan. 17, 2019), Doc. 449... App-46

Appendix E

Relevant

Constitutional

Statute, Regulation, & Rule

Provisions,

U.S. Const. art. I, § 1 .......................... App-48

U.S. Const. art. III, § 2........................ App-49

22 U.S.C. § 2778 .................................. App-50

22 C.F.R. § 127.1 ................................. App-71

Fed. R. Crim. P. 12(b)(3) ..................... App-75

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp.

v. United States,

295 U.S. 495 (1935).......................................... 14, 18

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946).................................................. 18

Blackledge v. Perry,

417 U.S. 21 (1974)............................................ 27, 28

Buckley v. Valeo,

424 U.S. 1 (1976).................................................... 12

Chem. Mfrs. Ass’n

v. Nat. Res. Def. Council, Inc.,

470 U.S. 116 (1985)................................................ 10

Class v. United States,

138 S. Ct. 798 (2018)........................................ 27, 28

Dep’t of Transp. v. Ass’n of Am. R.Rs.,

575 U.S. 43 (2015).................................................... 2

Ernst & Ernst v. Hochfelder,

425 U.S. 185 (1976)................................................ 10

Ex parte Bain,

121 U.S. 1 (1887).................................................... 25

Ex parte Siebold,

100 U.S. 371 (1880)................................................ 27

Fairey v. Tucker,

567 U.S. 924 (2012)................................................ 25

Gundy v. United States,

139 S. Ct. 2116 (2019).................................... passim

In re Watson,

161 F.3d 593 (9th Cir. 1998).................................. 10

vii

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928)................................................ 14

Johnson v. Zerbst,

304 U.S. 458 (1938).......................................... 24, 25

Louisville & Nashville R.R. v. Mottley,

211 U.S. 149 (1908)................................................ 27

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892).................................................. 1

Menna v. New York,

423 U.S. 61 (1975).................................................. 28

Mistretta v. United States,

488 U.S. 361 (1989)........................................ passim

Montgomery v. Louisiana,

577 U.S. 190 (2016)................................................ 27

Nat’l Classification Comm. v. United States,

765 F.2d 164 (D.C. Cir. 1985) ................................ 29

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935).......................................... 14, 18

Paul v. United States,

140 S. Ct. 342 (2019).......................................... 2, 14

Plumley v. Austin,

135 S. Ct. 828 (2015).............................................. 29

Samora v. United States,

406 F.2d 1095 (5th Cir. 1969)................................ 15

Sessions v. Dimaya,

138 S. Ct. 1204 (2018)............................................ 16

Steel Co. v. Citizens for Better Env’t,

523 U.S. 83 (1998).................................................. 27

Touby v. United States,

500 U.S. 160 (1991)...................................... 2, 14, 16

viii

United States v. Anderson,

783 F.3d 727 (8th Cir. 2015).................................. 24

United States v. Broce,

488 U.S. 563 (1989)................................................ 27

United States v. Burroughs,

810 F.3d 833 (D.C. Cir. 2016) ................................ 24

United States v. Cotton,

535 U.S. 625 (2002).......................................... 25, 27

United States v. Davis,

139 S. Ct. 2319 (2019)............................................ 15

United States v. Evans,

333 U.S. 483 (1948)................................................ 12

United States v. Fattah,

858 F.3d 801 (3d Cir. 2017) ................................... 24

United States v. Guerrero,

921 F.3d 895 (9th Cir. 2019).................................. 23

United States v. Gurrola-Garcia,

547 F.2d 1075 (9th Cir. 1976)............................ 9, 15

United States v. Henry,

888 F.3d 589 (2d Cir. 2018) ................................... 15

United States v. Hsu,

364 F.3d 192 (4th Cir. 2004).................................. 15

United States v. Hudson,

11 U.S. (7 Cranch) 32 (1812) ................................. 15

United States v. McMillian,

786 F.3d 630 (7th Cir. 2015).................................. 24

United States v. Olano,

507 U.S. 725 (1993)................................................ 24

United States v. Ramamoorthy,

949 F.3d 955 (6th Cir. 2020).............................. 3, 23

United States v. Soto,

794 F.3d 635 (6th Cir. 2015).................................. 23

United States v. Sperrazza,

804 F.3d 1113 (11th Cir. 2015).............................. 23

United States v. Vance,

893 F.3d 763 (10th Cir. 2018)................................ 23

United States v. Vasquez,

899 F.3d 363 (5th Cir. 2018).................................. 23

United States v. Walker-Couvertier,

860 F.3d 1 (1st Cir. 2017) ...................................... 23

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ................................. 13

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001)............................................ 1, 14

Constitutional Provisions

U.S. Const. art. I, § 1 ................................................ 12

U.S. Const. art. III, § 2 ............................................. 27

Statutes, Regulations, & Rules

18 U.S.C. § 371 ....................................................... 6, 7

18 U.S.C. § 3553(a)(2) ............................................... 19

22 U.S.C. § 2778 ............................................... passim

50 U.S.C. App. § 2410(a) ............................................ 5

Pub. L. No. 99-64, 90 Stat. 120 (1985) ....................... 5

22 C.F.R. § 120-130 .................................................... 4

22 C.F.R. § 127.1..................................................... 6, 7

Exec. Order No. 11958,

42 Fed. Reg. 4311 (Jan. 24, 1977) ........................... 4

Fed. R. Crim. P. 12(b)(2)..................................... 22, 27

Fed. R. Crim. P. 12(b)(3)..................................... 22, 23

Fed. R. Crim. P. 12(c)(3) ........................................... 23

Other Authorities

Admin. Office of the U.S. Courts,

U.S. Court of Appeals Judicial Business tbl.

B-12 (2019) ............................................................. 30

Advisory Comm. on Criminal Rules,

Proposed Amendments to the Federal

Rules of Criminal Procedure

(Apr. 7-8, 2014) ...................................................... 25

Rachel E. Barkow,

Separation of Powers and the Criminal

Law, 58 Stan. L. Rev. 989 (2006) .......................... 13

1 William Blackstone,

Commentaries on the

Laws of England (1765) ......................................... 13

John C. Coffee, Jr.,

Does “Unlawful” Mean “Criminal”?:

Reflections on the Disappearing Tort/

Crime Distinction in American Law,

71 B.U. L. Rev. 193 (1991) ..................................... 17

Martha J. Dragich,

Will the Federal Courts of Appeals Perish if

They Publish? Or Does the Declining Use of

Opinions to Explain and Justify Judicial

Decisions Pose a Greater Threat?,

44 Am. U.L. Rev. 757 (1995).................................. 28

The Federalist No. 47

(James Madison) (C. Rossiter ed., 1961)............... 13

The Federalist No. 48

(James Madison) (C. Rossiter ed., 1961)............... 13

Gary Lawson,

Delegation and Original Meaning,

88 Va. L. Rev. 327 (2002)....................................... 13

Merritt E. McAlister,

“Downright Indifference”:

Examining Unpublished Decisions

in the Federal Courts of Appeals,

118 Mich. L. Rev. 533 (2020) ........................... 29, 30

Merritt E. McAlister,

Missing Decisions,

169 U. Pa. L. Rev. (forthcoming 2021)

(Univ. of Fla. Levin College of Law Legal

Studies Research Paper No. 20-44 (2020)............. 30

William L. Reynolds & William M. Richman,

The Non-Precedential Precedent—Limited

Publication and No-Citation Rules in the

United States Courts of Appeals,

78 Colum. L. Rev. 1167 (1978) .............................. 29

PETITION FOR WRIT OF CERTIORARI

Naum and Irina Morgovsky were convicted and

punished based on a prohibition that Congress itself

never enacted.

The Arms Export Control Act

(“AECA”), the statute under which they were

convicted, provided the punishment, but it was up to

the Executive’s largely unfettered discretion to

determine what would constitute the crime. 22 U.S.C.

§ 2778. But that sort of choose-your-own-adventure

approach to criminal law is inconsistent with

separation of powers. Congress must do more than

provide a fill-in-the-blank form for the Executive to

complete as it wishes.

As “[t]his Court consistently has given voice to,

and has reaffirmed, the central judgment of the

Framers of the Constitution that, within our political

scheme, the separation of governmental powers into

three coordinate Branches is essential to the

preservation of liberty.” Mistretta v. United States,

488 U.S. 361, 380 (1989). Accordingly, the Framers

assigned the Legislative Branch the power to make

laws, and the Executive Branch the power to enforce

them. Consistent with that allocation of powers, the

nondelegation doctrine has long “mandate[d] that

Congress generally cannot delegate its legislative

power to another Branch.” Id. at 372; Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 472 (2001); Marshall

Field & Co. v. Clark, 143 U.S. 649, 692 (1892). At the

same time, this Court has also held that a statutory

delegation is constitutional if Congress “lay[s] down by

legislative act an intelligible principle to which the

person or body authorized to exercise the delegated

authority is directed to conform.” Mistretta, 488 U.S.

at 372 (cleaned up).

The Ninth Circuit’s decision rejecting the

Morgovskys’ challenges underscores that the

“intelligible principle” test has “taken a life of its own,”

and has “no basis in the original meaning of the

Constitution, in history, or even in the decision from

which it was plucked.” Gundy v. United States, 139 S.

Ct. 2116, 2131-48 (2019) (Gorsuch, J., dissenting,

joined by Robert, J., and Thomas, J.). The Ninth

Circuit upheld the Morgovskys’ convictions in part

because it concluded, based on its earlier case law,

that the AECA satisfied that test. But in doing so, the

court did not consider this Court’s open question of

whether the nondelegation doctrine requires greater

specificity in the criminal context. Touby v. United

States, 500 U.S. 160, 165-66 (1991).

The time to decide that question is now. Several

members of this Court have recognized the need to

revisit this test to make clear that “[w]hile Congress

can enlist considerable assistance from the executive

branch in filling up details and finding facts, it may

never hand off to the [Executive] the power to write

his own criminal code.” Gundy, 139 S. Ct. at 2148; see

also id. at 2130-31 (Alito, J., concurring in the

judgment and noting his willingness to reconsider the

delegation doctrine in a future case); Paul v. United

States, 140 S. Ct. 342 (2019) (mem.) (Kavanaugh, J.,

respecting the denial of certiorari). Indeed, some

Justices would go so far as to reconsider the test in all

contexts. E.g., Dep’t of Transp. v. Ass’n of Am. R.Rs.,

575 U.S. 43, 77 (2015) (Thomas, J., concurring)

(“Although the Court may never have intended the

boundless standard the ‘intelligible principle’ test has

become, it is evident that it does not adequately

reinforce the Constitution’s allocation of legislative

power”).

This case is an excellent vehicle to reconsider the

intelligible principle test. Indeed, the Court could also

take this case to resolve a ripe circuit split concerning

whether a challenge to the statute of conviction can be

waived (and thus not subject to plain error review), or

is instead forfeited for failure to raise it in Federal

Rule of Criminal Procedure 12 motions (and thus

reviewable only on a showing of good cause). See

United States v. Ramamoorthy, 949 F.3d 955, 962 n.3

(6th Cir. 2020) (recognizing a deep split on this issue).

This Court should also grant certiorari to address a

conflict between its case law and the Ninth Circuit’s

holding that Irina’s general appellate waiver

encompassed her challenges to the underlying statute

of conviction.

OPINIONS BELOW

The unpublished memorandum decision of the

United States Court of Appeals for the Ninth Circuit

appears at 827 F. App’x 701 and is reproduced at

App.1-10. The orders of judgment and commitment of

the United States District Court for the Northern

District of California are unpublished and reproduced

at App.13-45.

JURISDICTION

The Ninth Circuit issued its memorandum

disposition affirming the Morgovskys’ convictions and

sentences on September 22, 2020. The Ninth Circuit

subsequently issued an order denying the Morgovskys’

timely petition for rehearing on December 14, 2020.

This petition is timely under this Court’s March 2020

order extending the time to file any petition for

certiorari to 150 days from the date of any order, inter

alia, denying a petition for rehearing. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory

provisions appear in the Appendix at App.48-75.

STATEMENT OF THE CASE

Statutory and Regulatory Background

22 U.S.C. § 2778 delegates to the President the

authority “to designate those items which shall be

considered as defense articles and defense services for

the purposes of this section and to promulgate

regulations for the import and export of such articles

and services.” Under the AECA, the President has

delegated his authority to the Secretary of State, see

Exec. Order No. 11958, 42 Fed. Reg. 4311 (Jan. 24,

1977).

In response to this directive, the State

Department promulgated the International Traffic in

Arms Regulations (“ITAR”), 22 C.F.R. § 120-130,

which contain the United States Munitions List

(“USML”) and which criminalize attempts and

conspiracies to export, import, and reexport defense

articles on the USML. While the statute provides

some criteria to apply in determining whether an

export license should issue for articles on that list, 22

U.S.C. § 2778(a)(2), it provides none to apply in

determining whether an item should be on the list in

the first place. As for the supporting regulations, the

Executive is simply told that it can “promulgate

regulations for the import and export of such articles

and services.” Id. § 2778(a)(1).

The Executive’s determinations in putting

together that list are not subject to judicial review. 22

U.S.C. § 2778(h). And while the statute requires the

Executive to carry out a periodic review to determine

whether items no longer warrant export controls, it

does not specify how frequently that review must take

place, what criteria the Executive should use in

conducting such a review, or how the Executive should

determine what the list should include in the first

place.

The statute also makes any willful violation of

those regulations a felony, subject to a fine of up to

$1,000,000 and up to 20 years’ imprisonment. 22

U.S.C. § 2778(c). As the government acknowledged in

the district court, the statute thus sets forth the

criminal penalties for any violation of the Executive’s

ensuing regulations, but empowers the Executive with

virtually unfettered discretion to fill in what

constitutes such a violation and what can constitute a

basis for that criminal liability.

Making matters worse, the regulations the

Executive has promulgated go beyond even the bounds

of that broad delegation. Nothing in AECA delegates

to the Executive the authority to expand the potential

penalties (or reduce the elements the government

must prove) for conspiracy liability, 1 which is

1 Congress knows how to include conspiracy liability when it

wants to.

Take, for example, the Export Administration

Amendments Act, which it amended to add “conspires to or

attempts to violate.” See Pub. L. No. 99-64, § 112(a), 90 Stat. 120,

146 (1985); 50 U.S.C. App. § 2410(a).

otherwise governed by Congress’s general conspiracy

statute. The general conspiracy statute requires an

overt act and imposes a maximum five-year sentence.

18 U.S.C. § 371. However, 22 C.F.R. § 127.1 makes it

unlawful to “conspire to” export or import defense

articles or services, which under AECA carries a

possible 20-year statutory maximum sentence and a

million dollar fine. And unlike Congress’s general

conspiracy statute, the regulation does not contain an

overt act requirement.

Factual Background

In 1979, Naum and Irina Morgovsky arrived in

the United States as refugees fleeing the Soviet Union.

SER 151-52 ¶ 2. 2 Although Naum and Irina each had

the equivalent of a master’s degree in engineering

from institutes in the Soviet Union, Naum supported

his family at first by washing dishes in a Chinese

restaurant. SER 151-52 ¶¶ 2, 3.

In 1993, Naum founded an optics company, Hitek

International.

SER 151-52 ¶¶ 2, 3.

Hitek

International primarily worked with customers to

design night vision, thermal vision, and other optics

devices for domestic consumption, as well as exporting

some products to customers abroad. SER 151-52 ¶¶ 2,

3. In addition to design work, Hitek purchased bulk

orders of lenses, image intensifier tubes and other

components to assemble completed devices and re-sold

components of optical devices.

2 References to “ER” and “SER” refer to the Excerpts of Record

and Supplemental Excerpts of Record filed in Ninth Circuit case

numbers 18-10446 and 18-10448.

The optics industry is subject to a complicated

regulatory scheme under the AECA. Certain night

and thermal vision devices and components may be

freely exported, while others may not.

specifically, while some are designated as “defense

articles” on the USML and their export is regulated by

the ITAR, others are not. The inconsistencies between

these designations are not necessarily explained by

the item having an apparent military purpose.

In April 2017, the Government issued a

Superseding Indictment charging Naum and Irina, as

relevant here, with conspiracy to export image

intensifier tubes, lenses and lens assemblies in

violation of ITAR, specifically 22 C.F.R. § 127.1(a)(4)

(rather than the general federal conspiracy statute at

18 U.S.C. § 371) (Count 9).

ER 1386-87 ¶ 40

(Superseding Indictment). Counts Ten and Eleven of

the Superseding Indictment charged Naum with

receiving and transferring money in connection with

the export of defense articles without a license, based

on the conduct alleged in Count 9. 3 ER 1387-88 ¶¶ 4244 (Superseding Indictment).

The Morgovskys faced the prospect of spending

decades in prison well in their golden years. They both

entered guilty pleas to Count Nine of the Superseding

Indictment, and Naum entered guilty pleas as to

Counts Ten and Eleven. ER 303, 332-33. The district

court accepted those pleas without reading the

elements of the offense. See generally ER 301-39 (plea

hearings for Naum and Irina.) Naum moved to

3 The Government agreed to drop Count Six against Irina at

the time of her sentencing hearing, as part of her plea agreement.

ER 329-30. Other counts against Naum have been continued.

discharge his attorney, in part because he had failed

to make certain arguments, including the separation

of powers one at issue in this petition. ER 1504-10.

In October 2018, the district court held a

sentencing hearing, in which it also considered

Naum’s arguments about his attorney. The court

sentenced Irina to 18 months’ imprisonment, and

three years’ supervised release. ER 262-63. During

that hearing, Naum’s counsel acknowledged a

struggle with his client over strategy, including

disagreement over counsel’s failure to make certain

constitutional arguments, and to fully argue that the

AECA did not authorize regulations that imposed

conspiracy liability, and the resulting sentencing

disparity. ER 1504-05, 1540; see generally ER 153549. Two weeks later, the district judge sentenced

Naum to 108 months’ imprisonment and ordered him

to pay a fine of $1 million dollars. ER 157.

The Appeal

The Morgovskys represented themselves pro se on

appeal. They challenged, among other things, their

conspiracy convictions under ITAR and the AECA,

alleging that they should be vacated because

Congress, when it enacted 22 U.S.C. § 2778, did not

(and could not) delegate the authority to the Executive

to decide whether or not to expand criminal conspiracy

liability (and to increase the criminal penalties

associated with it beyond those in the general

conspiracy statute). They also challenged the district

court’s decision to accept their pleas.

The Ninth Circuit’s Decision

The Ninth Circuit rejected the Morgovskys’

challenges. As to their challenge to AECA, the court

concluded that Irina “ha[d] generally waived her

appeal rights pursuant to her plea agreement,” that

Naum had “not raise[d] this challenge in the district

court as Federal Rule of Criminal Procedure 12(b)(3)

requires, and ... ha[d] not shown good cause,” meaning

he had waived all but a constitutional challenge to his

conviction.

App.6.

The court rejected the

constitutional challenge that “under the separation of

powers, Congress had no power and thus could not

validly delegate to the Executive Branch the authority

to create new generic crimes, such as conspiracy,

separate and distinct from those proscribed by the

statute enacted by Congress.” App.6-7 (cleaned up).

In doing so, the court relied on its previous published

decisions, in which the Ninth Circuit rejected the

argument that the predecessor statute to the AECA

“constitute[d] an unconstitutional congressional

delegation of legislative power to the executive insofar

as it empower[ed] the President to criminalize attempt

conduct.” App.7 (cleaned up). “It is well established,”

the court held, “that Congress may constitutionally

provide a criminal sanction for the violation of

regulations which it has empowered the President or

an agency to promulgate.” App.7 (quoting United

States v. Gurrola-Garcia, 547 F.2d 1075, 1079 (9th

Cir. 1976)). And while the court conceded that the

district court erred by not explaining the elements of

the offense to the defendants, it concluded that the

error did not affect their substantial rights because

both had confirmed that they understood the charges

against them (without, it should be noted, explaining

what that understanding was). App.9-10.

The Petition for Rehearing

After the Ninth Circuit rejected the Morgovskys’

challenges, they filed a petition for rehearing with the

assistance of counsel that challenged the court’s

conclusion that the AECA did not violate the nondelegation doctrine, and that the Morgovskys had

waived any challenges. The Ninth Circuit denied

their petition for rehearing.

REASONS FOR GRANTING THE PETITION

AND SUMMARY OF ARGUMENT

I. One of the fundamental principles inherent in

the separation of powers is that the Constitution’s

structure prohibits giving the Executive Branch the

power both to define crimes and to prosecute citizens

for them. The Constitution limits Congress’s ability to

delegate its core legislative powers to the other

branches to protect citizens from prosecution for

offenses that their elected representatives have never

actually proscribed. Despite that constitutional

limitation, the Morgovskys were prosecuted based on

a penalty chosen by Congress, but a crime

subsequently created by the Executive Branch. 4 That

implicates two questions that this Court or members

of it have recognized as important—first, whether the

intelligible principle test is an appropriate one for nondelegation challenges, and second, whether, even if it

may be sufficient in certain civil cases, it is not

“A federal regulation in conflict with a federal statute is

invalid as a matter of law,” In re Watson, 161 F.3d 593, 598 (9th

Cir. 1998) (citing Chem. Mfrs. Ass’n v. Nat. Res. Def. Council, Inc.,

470 U.S. 116, 126 (1985)), and agencies may not make new law

in the guise of interpreting their enabling legislation. Ernst &

Ernst v. Hochfelder, 425 U.S. 185, 213-14 (1976).

sufficient in criminal ones. The Court should grant

cert to address the exceptionally important question

about (A) whether the test applies in the criminal

context. (B) No matter how the Court answers that

question, the Court should hold that the AECA and

the ITAR regulations violate separation of powers.

II. That isn’t the only cert-worth issue raised by

this petition. Although the Ninth Circuit considered

Naum’s constitutional challenge on the merits, it

refused to consider his statutory challenges to the

AECA, deeming it waived for failure to show good

cause. But the Ninth Circuit is on one side of an

entrenched Circuit split over whether such claims are

waived (and thus not subject to review) or forfeited

(and thus subject to plain error review). The Court

should grant cert to resolve this deep split.

III. Moreover, the Ninth Circuit’s conclusion that

Irina’s challenge to the statute of conviction was

waived by virtue of her plea agreement cannot be

squared with this Court’s cases like United States v.

Class. This Court should grant the petition and

reverse on that ground too.

IV.

That the Ninth Circuit’s decision was

unpublished weighs in favor, and not against,

certiorari here. Appellate courts’ increasing reliance

on unpublished dispositions has created a second tier

of decisions, less susceptible to review, and

disproportionately affecting the most vulnerable

litigants, including those, like the Morgovksys, who

represent themselves. Because this case raises

questions of exceptional importance over which there

is at least one Circuit split, this Court should grant

certiorari to consider both the Morgovksys’ claims.

This Court Should Grant Certiorari To

Consider Whether The Intelligible Principle

Test Should Apply

The Intelligible Principle Test Should

Not Apply to Non-Delegation Separation

of Powers Challenges, Particularly in

the Criminal Law Context

“The nondelegation doctrine is rooted in the

principle of separation of powers that underlies our

tripartite system of Government.” Mistretta, 488 U.S.

at 371. The Constitution provides that “[a]ll legislative

Powers herein granted shall be vested in a Congress

of the United States.” U.S. Const. art. I, § 1. (That

use of the word “all” with respect to the legislative

power contrasts with “the” executive and judicial

powers accorded the other branches.) “Legislative

power, as distinguished from executive power, is the

authority to make laws, but not to enforce them or

appoint the agents charged with the duty of such

enforcement. The latter are executive functions.”

Buckley v. Valeo, 424 U.S. 1, 139 (1976) (per curiam)

(cleaned up). In particular, “defining crimes and

fixing penalties are legislative … functions.” United

States v. Evans, 333 U.S. 483, 486 (1948) (emphasis

added); see also Gundy, 139 S. Ct. at 2131 (Gorsuch,

J., dissenting) (“The Constitution promises that only

the people’s elected representatives may adopt new

federal laws restricting liberty”). As Chief Justice

Marshall explained, Congress may not “delegate ...

powers which are strictly and exclusively legislative.”

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43

(1825). That’s because the Framers “believed the new

federal government’s most dangerous power was the

power to enact laws restricting the people’s liberty.”

Gundy, 139 S. Ct. at 2134 (Gorsuch, J. dissenting)

(citing The Federalist No. 48, at 309-12 (James

Madison) (C. Rossiter ed., 1961). They therefore made

enacting laws a deliberately arduous process.

Allowing the Executive to both make (criminal)

laws and enforce them lies at the heart of the Framers’

separation of powers concerns. As James Madison

explained, “[t]here can be no liberty where the

legislative and executive powers are united in the

same person, or body of magistrates.” See, e.g., The

Federalist No. 47, at 303 (quotation marks omitted);

see also 1 William Blackstone, Commentaries on the

Laws of England 146 (1765) (when “the right of both

making and of enforcing the laws ... are united

together, there can be no public liberty”). Accordingly,

separation of powers plays a crucial role in protecting

liberty; and “in the context of criminal law, no other

mechanism provides a substitute.” Rachel E. Barkow,

Separation of Powers and the Criminal Law, 58 Stan.

L. Rev. 989, 1031 (2006).

1. While the nondelegation doctrine does not

prevent Congress from seeking assistance from a

coordinate Branch, there are constitutional limits.

Gary Lawson, Delegation and Original Meaning, 88

Va. L. Rev. 327, 340 (2002) (“The Vesting Clauses, and

indeed the entire structure of the Constitution, make

no sense” without such limits). Accordingly, to sustain

such a delegation against a constitutional challenge,

this Court has required Congress to, at a minimum,

articulate an “intelligible principle” to which the

person or body authorized to act is directed to conform.

See, e.g., J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394, 409 (1928); Touby, 500 U.S. at 160. An

act of Congress that fails to do so is an

unconstitutional delegation of legislative authority.

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495, 537 (1935); Panama Refining Co. v. Ryan,

293 U.S. 388, 430 (1935).

But several Justices have acknowledged that the

intelligible principle test may not be the right one—at

least not in its current formulation. See Gundy, 139

S. Ct. at 2131-48 (Gorsuch, J., dissenting, joined by

Justices Roberts and Thomas); id. at 2130-31 (Alito,

J., concurring); id. at 2131 (Gorsuch, J., dissenting)

(“Justice Alito supplies the fifth vote for today’s

judgment and he does not join either the plurality’s

constitutional or statutory analysis, indicating instead

that he remains willing, in a future case with a full

Court, to revisit these matters”); Paul, 140 S. Ct. at

342 (Kavanaugh, J., dissenting from the denial of

cert.). That test, which was first used in 1928 in J.W.

Hampton, 276 U.S. at 409, has “take[n] on a life of its

own.” Gundy, 139 S. Ct. at 2139 (Gorsuch, J.,

dissenting). From concluding that a directive to

preserve “fair competition” failed that test, A.L.A.

Schechter, 295 U.S. at 522-23, the Court has since

found an intelligible principle from a grant of

authority to regulate “in the public interest.”

Whitman, 531 U.S. at 474 (quotation marks omitted).

That watered-down incarnation “has no basis in the

original meaning of the Constitution, in history, or

even in the decision from which it was plucked.”

Gundy, 139 S. Ct. at 2139 (Gorsuch, J., dissenting).

What the test should ask, but doesn’t, is whether

the statute assigns to the Executive only the

responsibility to make factual findings, whether it sets

forth the facts that the Executive must consider and

the criteria against which to measure the facts, and

most importantly, whether Congress, and not the

Executive Branch, made the policy judgments. Id. at

2131.

Applying that more comprehensive and

appropriate test, AECA fails. 5 Indeed, it does not

articulate any specific criteria by which the Executive

is to make its decisions regarding the list, and worse

yet, it insulates that list from any judicial review. See

infra Section I.B.

2. These concerns are particularly pronounced in

the criminal law context. This Court has often

emphasized the importance of the Legislature’s role in

defining what constitutes a crime. United States v.

Davis, 139 S. Ct. 2319, 2325 (2019) (“Only the people’s

elected representatives in the legislature are

authorized to ‘make an act a crime’” (quoting United

States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)));

Liparota v. United States, 471 U.S. 419, 424 (1985)

(“The definition of the elements of a criminal offense

is entrusted to the legislature, particularly in the case

5 Notably, the cases that have rejected separation of powers

challenges to AECA or similar statutes have not asked such

searching questions. See, e.g., United States v. Henry, 888 F.3d

589, 597 (2d Cir. 2018) (intelligible principle sufficient if a

general policy is clearly delineated, the agency applying it is

identified, and the outer boundaries of the authority are

articulated); United States v. Hsu, 364 F.3d 192, 204-05 (4th Cir.

2004); Gurrola-Garcia, 547 F.2d at 1078; Samora v. United

States, 406 F.2d 1095, 1098 (5th Cir. 1969). At a constitutional

minimum, courts should require Congress to have made every

meaningful policy choice underlying a criminal statute.

of federal crimes, which are solely creatures of

statute”).

Accordingly, this case implicates another open

question—whether the intelligible principle test is

sufficient to satisfy separation of powers concerns in

the criminal context. In Touby v. United States, this

Court considered whether the 1984 amendment to the

Controlled Substances Act was unconstitutional

because it created an expedited procedure for the

Attorney General to place “designer drugs” and other

substances on the controlled substance schedules. 500

U.S. at 162-63.

Petitioners argued that the

amendment unconstitutionally delegated legislative

power to the Attorney General. Id. at 164. Although

conceding that the 1984 Amendment contained an

“intelligible principle,” they argued that the

Constitution required a higher standard when

Congress authorizes another Branch to promulgate

regulations that contemplate criminal sanctions. Id.

at 165-66.

This Court acknowledged that its

precedent was not entirely clear as to whether more

specific guidance is required when imposing criminal

liability, but determined that the amendment was

detailed enough to satisfy even a more demanding test

of greater congressional specificity, and left the

question of what standard was required open. Id. at

166. Certainly, in the context of a void-for-vagueness

challenge, this Court has recognized that the degree of

specificity required of Congress is greater for criminal

statutes. See Sessions v. Dimaya, 138 S. Ct. 1204,

1212 (2018). There is no reason to reach a different

conclusion where non-delegation concerns are raised.

This Court should grant review to clarify that

Congress cannot delegate its legislative power to allow

the Executive Branch to make unguided policy choices

about which conduct should be subject to criminal

sanction. The significance of that issue extends far

beyond this case. Thirty years ago, more than 300,000

regulations were enforceable under criminal law, John

C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?:

Reflections on the Disappearing Tort/Crime

Distinction in American Law, 71 B.U. L. Rev. 193, 216

(1991), and that number has only grown with time.

But administrative authority is intentionally

exercised differently from administration to

administration.

While that flexibility may be

desirable for civil administration, it isn’t in the context

of criminal law. Accordingly, this Court should grant

certiorari to clarify that, at the very least, a more

stringent standard applies in the criminal context.

Even if the Intelligible Principle Test

Does Apply in Its Current Form, AECA’s

Fill-in-the-Blank

Approach

Cannot

Satisfy It

The criminal penalty in 22 U.S.C. § 2778(c) is an

unconstitutional delegation of power because the

statute does not contain, and Congress did not

provide, any intelligible principle directing the

Executive on how to enforce the penalty in

conformance with the goals of Congress. 22 U.S.C.

§ 2778(c) (“any person who willfully violates any

provision of this section *** or any rule or regulation

issued under this section *** shall upon conviction be

fined for each violation not more than $1,000,000 or

imprisoned not more than 20 years, or both”). That

distinguishes it from delegations upheld in other

cases, which contained clear instructions and criteria

from Congress for enforcement by the Executive.

Even under the existing test, the criminal penalty

reflected in § 2778(c) is an unconstitutional delegation

of legislative power.

1. A plurality of this Court has held that a

statutory delegation is constitutional as long as

Congress “lay[s] down by legislative act an intelligible

principle to which the person or body authorized to

exercise the delegated authority is directed to

conform.” Mistretta, 488 U.S. at 372 (cleaned up); see

also Gundy, 139 S. Ct. at 2123 (plurality) (the

“constitutional question is whether Congress has

supplied an intelligible principle to guide the delegee’s

use of discretion”). Put another way, a delegation is

permissible if Congress has made clear to the delegee

“the general policy” he must pursue and the

“boundaries of [his] authority.” Am. Power & Light

Co. v. SEC, 329 U.S. 90, 105 (1946). Conversely, a

delegation is unconstitutional if Congress fails to

articulate “any policy or standard” to confine

discretion of enforcement. Mistretta, 488 U.S. at 373

n.7; see A.L.A. Schechter, 295 U.S. at 537; Panama

Refining Co., 293 U.S. at 430. Thus, in Gundy, a

plurality of an 8-member Court upheld SORNA

against constitutional challenge because the delegated

“discretion extends only to considering and addressing

feasibility issues” but acknowledged that if the statute

had instead given the Attorney General broader power

to actually determine SORNA’s applicability to preAct offenders, “we would face a nondelegation

question.” See Gundy, 139 S. Ct. at 2123 (plurality).

2. This Court’s holdings establish that, even

under the current intelligible principle test, a

delegation in the criminal context must contain

sufficiently clear instructions.

Take Mistretta, for example, where this Court

considered whether the Legislature’s delegation of the

power to promulgate sentencing guidelines for every

federal offense to an independent sentencing

commission was unconstitutional. Mistretta, 488 U.S.

at 371. Applying the intelligible principle test, this

Court determined that Congress’s delegation of

authority to the Sentencing Commission was

sufficiently

specific

and

detailed

meet

constitutional requirements. Id. at 374. In so holding,

this Court emphasized that Congress charged the

commission with three articulable goals: ensuring

certainty and fairness in sentencing, avoiding

unwarranted disparities, and maintaining flexibility

to permit individualized sentences. Id. Moreover,

Congress specified several specific sentencing

purposes that the commission had to follow in carrying

out its mandate: “to reflect the seriousness of the

offense, to promote respect for the law, and to provide

just punishment for the offense,” “to afford adequate

deterrence to criminal conduct,” “to protect the public

from further crimes of the defendant,” and “to provide

the defendant with needed ... correctional treatment.”

Id. (quoting 18 U.S.C. § 3553(a)(2)). Congress also

prescribed the system the commission should employ,

including, among other things, outlining a maximum

penalty that could not exceed the minimum penalty by

the greater of 25 percent or six months, unless the

sentence range was 30 years or more, setting forth

seven specific factors to guide sentencing, and

directing the commission to consider these factors. Id.

at 375-76. Congress also provided more detailed

guidance about specific sentencing requirements for

certain categories of offenses and offender

characteristics. Id. The Court determined that these

constraints were more than sufficient to satisfy an

“intelligible principle” standard, because the statute

outlined the policies which prompted establishment of

the commission, explained what the commission

should do and how it should do it, and set out specific

directives to govern particular situations. Id. at 379.

Consider, too, the statute in Touby, which was far

more intelligible in its delegation than the one here.

In upholding the statute, the Court relied in part on

the fact that it meaningfully constrained the Attorney

General’s conduct by empowering him to add or

remove substances from the Controlled Substances

Act only when “necessary to avoid an imminent

hazard” to public safety; “required” the Attorney

General to consider an enumerated list of three

factors 6; and also required the Attorney General to

publish a 30-day notice of the proposed scheduling

before it would take effect, among other things. Id. at

167. Based on these “multiple specific restrictions” on

the Attorney General’s discretion, the Court reasoned

that the Act satisfied the constitutional requirements

of the nondelegation doctrine. Id.

No such restrictions or guidance exist here. All

the statute does is identify the subject matter for

6 Those factors are also concrete and include the drug’s history

and current pattern of abuse, the scope, duration, and

significance of that abuse, and what, if any, risk there is to the

public health.

delegated (criminal) lawmaking and give the

Executive complete discretion to determine what

conduct to criminalize, how and to what degree, and

including whether the statute can on its own

criminalize conspiracy (that looks nothing like generic

conspiracy requiring an overt act). That is not

constitutionally sufficient guidance.

Such a

delegation cannot survive the “intelligible principle”

analysis even in its current form.

II. The Court Should Grant Certiorari To

Resolve The Circuit Split Over Whether

Rule 12(b)(3) Challenges Can Be Forfeited,

And Thus Subject To Plain Error Review, Or

Waived, And Thus Not Subject To Review At

All

The Ninth Circuit erroneously held that Naum

waived the argument that, as a matter of statutory

interpretation, his conspiracy convictions under ITAR

and the AECA should be vacated and his sentence

overturned because Congress “did not delegate to the

Executive Branch its legislative authority ... to create

a separate crime of conspiracy.” App.6 n.2 (quotation

marks omitted). The court reasoned that Naum’s

failure to raise this argument in the district court by

pre-trial motion waived it pursuant to Federal Rule of

Criminal Procedure 12(b)(3), 7 and that absent a

showing of good cause, no review was available.

7 That conclusion also misstates the nature of Naum’s statutory

challenge, which was to both the conviction itself and to his

sentence. The latter part of that challenge was raised before

sentencing and is not subject to waiver. Moreover, Naum’s

constitutional and statutory challenges are so intertwined that it

makes little sense to consider the former and not the latter.

See id. The Ninth Circuit’s reasoning is inconsistent

with this Court’s holding in United States v. Cotton,

and conflicts with precedent of the Fifth, Sixth, and

Eleventh Circuits.

Indeed, there is a deep split among the Circuits

regarding how to interpret the 2014 Amendments to

Federal Rules of Criminal Procedure 12(b)(3) and

12(c)(3).

That split means that challenges by

defendants in some circuits are reviewed, while those

of defendants in other circuits are not, and that

fundamental discrepancy substantially affects the

rights of criminal defendants across the country. The

Ninth Circuit’s holding is also unduly harsh given the

consequence of finding an argument waived versus

forfeited and is out of step with the principle

repeatedly emphasized by this Court that waiver

should be a last resort. Thus, this Court should grant

review to resolve this split and clarify that untimely

Rule 12(b)(3) challenges are forfeited, and subject to

plain error review—not waived.

Three of the 2014 amendments to the Federal

Rules of Criminal Procedure are relevant to the split.

First, Rule 12(b)(2), which pertains to “Motions That

May Be Made at Any Time,” states that, “[a] motion

that the court lacks jurisdiction may be made at any

time while the case is pending.” (emphasis added).

Second, Rule 12(b)(3), which pertains to “Motions That

Must Be Made Before Trial,” states that “[t]he

following defenses, objections, and requests must be

raised by pretrial motion if the basis for the motion is

then reasonably available and the motion can be

determined without a trial on the merits.” The section

then lists a series of the bases for such a motion, the

fifth being the “failure to state an offense.”

Rule 12(b)(3)(v). Third, Rule 12(c)(3), which pertains

to the “Consequences of Not Making a Timely Motion

Under Rule 12(b)(3),” states, “[i]f a party does not meet

the deadline for making a Rule 12(b)(3) motion, the

motion is untimely. But a court may consider the

defense, objection, or request if the party shows good

cause.”

(emphasis added).

(This section was

specifically amended to replace the language of waiver

with the term “untimely.”)

Based on these amendments, three circuit courts

have held that untimely Rule 12(b)(3) defenses,

objections, and requests raised for the first time on

appeal are merely forfeited (not waived) and should be

reviewed for plain error under Rule 52(b). See United

States v. Vasquez, 899 F.3d 363, 373 (5th Cir. 2018)

(finding purely legal claim forfeited not waived and

thus subject to plain error); United States v.

Sperrazza, 804 F.3d 1113, 1120-21 (11th Cir. 2015)

(finding argument forfeited and not waived); United

States v. Soto, 794 F.3d 635, 656 (6th Cir. 2015)

(finding failure to file a motion to sever as a forfeiture

and reviewing for plain error); Ramamoorthy, 949

F.3d at 962 n.3 (recognizing the split).

Other circuits, however, continue to apply a good

cause standard. United States v. Guerrero, 921 F.3d

895, 898 (9th Cir. 2019) (per curiam) (applying good

cause standard where defendant raises new theories

on appeal in support of a motion to suppress); United

States v. Vance, 893 F.3d 763, 769-70 & n.5 (10th Cir.

2018) (applying good cause and finding argument

waived for no good cause shown); United States v.

Walker-Couvertier, 860 F.3d 1, 9 & n.1 (1st Cir. 2017)

(applying good cause standard and deeming argument

waived); United States v. Fattah, 858 F.3d 801, 807 (3d

Cir. 2017) (declining to enforce waiver but also stating

any failure by defendant to raise was excusable for

good cause); United States v. McMillian, 786 F.3d 630,

636 & n.3 (7th Cir. 2015) (finding forfeiture based on

lack of good cause); United States v. Anderson, 783

F.3d 727, 741 (8th Cir. 2015) (applying good cause

standard and finding no good cause shown). And one

circuit court has yet to take a position. See United

States v. Burroughs, 810 F.3d 833, 838 (D.C. Cir. 2016)

(acknowledging the split without choosing a side).

The Fifth, Sixth, and Eleventh Circuits have this

right. Untimely Rule 12(b)(3) defenses, objections,

and requests raised for the first time on appeal are

forfeited (not waived) and should be reviewed for plain

error. This Court made clear in United States v. Olano

that “[w]aiver is different from forfeiture. Whereas

forfeiture is the failure to make the timely assertion of

a right, waiver is the ‘intentional relinquishment or

abandonment of a known right.’” 507 U.S. 725, 733

(1993) (emphasis added) (quoting Johnson v. Zerbst,

304 U.S. 458, 464 (1938)). “Whether a particular right

is waivable; whether the defendant must participate

personally in the waiver; whether certain procedures

are required for waiver; and whether the defendant’s

choice must be particularly informed or voluntary, all

depend on the right at stake.” Id.

An untimely challenge under Rule 12(b)(3) should

be considered forfeited and not waived, particularly

given the significant consequences of finding a claim

waived as opposed to forfeited. As this Court has

repeatedly emphasized: “courts indulge every

reasonable

presumption

against

waiver

fundamental constitutional right” and it “do[es] not

presume acquiescence in the loss of fundamental

rights.” Johnson, 304 U.S. at 464 (quotation marks

omitted); see also Fairey v. Tucker, 567 U.S. 924, 132

S. Ct. 2218, 2220 (2012) (mem.) (“a defendant’s waiver

of a fundamental constitutional right is not to be

lightly presumed”).

This approach further aligns with the Advisory

Committee’s notes on the 2014 Amendments and this

Court’s precedent in United States v. Cotton. In the

2014 amendments to the Federal Rules of Criminal

Procedure, the Advisory Committee noted its reliance

on Cotton in amending Rule 12(b)(3): “Rule 12(b)(3)(B)

has also been amended to remove language that

allowed the court at any time while the case is pending

to hear a claim that the ‘indictment or information

fails ... to state an offense.’” This specific charging

error was previously considered fatal whenever raised

and was excluded from the general requirement that

charging deficiencies be raised prior to trial. The

Supreme Court abandoned any jurisdictional

justification for the exception in United States v.

Cotton, 535 U.S. 625, 629-31 (2002) (overruling Ex

parte Bain, 121 U.S. 1 (1887), ‘[i]nsofar as it held that

a defective indictment deprives a court of

jurisdiction’).”

In Cotton, this Court held that even a nonjurisdictional failure to state an offense claim that was

not raised before trial would still be reviewed for plain

error under Rule 52(b). Id. at 631 (“Freed from the

view that indictment omissions deprive a court of

jurisdiction, we proceed to apply the plain-error test of

Federal Rule of Criminal Procedure 52(b) to

respondents’ forfeited claim.”). Thus, the Ninth

Circuit’s holding that Naum waived his Rule 12(b)(3)

challenge because he failed to raise the argument in

the district court by pre-trial motion also conflicts with

this Court’s holding in Cotton.

Because the Ninth Circuit’s holding is

inconsistent with this Court’s holding in United States

v. Cotton, further conflicts with precedent of the Fifth,

Sixth, and Eleventh Circuits, and is out of step with

the principle repeatedly emphasized by this Court

that waiver should be a last resort, the Court should

grant the petition to resolve the split in Naum’s favor.

No other percolation is necessary.

III. This Court Should Grant Certiorari To

Clarify That A General Appeal Waiver

Cannot Bar A Constitutional Challenge To

The Statute Of Conviction

The Ninth Circuit erroneously held that Irina

waived her challenge to the statute of conviction

pursuant to the general appeal waiver in her plea

agreement. App.6 & n.3. A constitutional attack on

the statute of conviction cannot be waived because

such an argument inherently calls into questions not

just the government’s ability to bring an action, but

also the court’s authority to impose judgment and is

the type of claim that can be judged on the face of the

existing record. Thus, the Court should grant review

and clarify that an appeal waiver cannot bar a

constitutional challenge to the statute of conviction.

Federal courts must have proper subject matter

jurisdiction to adjudicate a case, provide a remedy,

and enter an enforceable judgment. U.S. Const. art.

III, § 2; Cotton, 535 US. at 630 (subject matter

jurisdiction is “the courts’ statutory or constitutional

power to adjudicate the case” (quoting Steel Co. v.

Citizens for Better Env’t, 523 U.S. 83, 89 (1998))). The

ability to challenge a court’s subject-matter

jurisdiction can never be forfeited or waived. Cotton,

535 US. at 630-31. To the contrary, such a challenge

can be raised at any time during criminal proceedings

by a defendant. Fed. R. Crim. P. 12(b)(2). Indeed,

“defects in subject-matter jurisdiction require

correction regardless of whether the error was raised

in district court” and therefore may be raised at any

time. Cotton, 535 U.S. at 630 (citing e.g., Louisville &

Nashville R.R. v. Mottley, 211 U.S. 149 (1908))

(emphasis added).

Where

defendant

challenges

the

constitutionality of the statute of conviction, they

challenge “[t]he very initiation of the proceedings

against,” them, Blackledge v. Perry, 417 U.S. 21, 30-31

(1974), and “thereby call into question the

Government’s power to ‘constitutionally prosecute’

[them].” Class v. United States, 138 S. Ct. 798, 805

(2018) (quoting United States v. Broce, 488 U.S. 563,

575 (1989)). This kind of argument constitutes a

jurisdictional defense that cannot be waived even by

an unconditional plea. Id. This is because “[a]

conviction under [an unconstitutional law] is not

merely erroneous, but is illegal and void, and cannot

be a legal cause of imprisonment .... [and] if the laws

are unconstitutional and void, the Circuit Court

acquired no jurisdiction of the causes.” Ex parte

Siebold, 100 U.S. 371, 376-77 (1880); see also

Montgomery v. Louisiana, 577 U.S. 190, 202-03 (2016),

as revised (Jan. 27, 2016). This is also why this Court

recently reaffirmed that a guilty plea does not by itself

bar a federal criminal defendant from challenging the

constitutionality of the statute of conviction on direct

appeal. Class, 138 S. Ct. at 803 (reaffirming rulings

in Blackledge, 417 U.S. 21; Menna v. New York, 423

U.S. 61 (1975) (per curiam)).

The Ninth Circuit’s opinion is in tension with the

Court’s reaffirmation of these principles in Class and

illustrates that further clarification is necessary.

Here, Irina brings a separation of powers challenge to

the AECA, contending, in particular, that its

conspiracy provision constitutes an unconstitutional

delegation of power by Congress to the Executive. Her

challenge thus implicates “the very power of the State”

to prosecute her at all. Class, 138 S. Ct. at 803 (citing

Blackledge, 417 U.S. at 30). Thus, the Ninth Circuit

erred in holding that Irina could not raise this

challenge at any time.

IV. The Fact That This Decision Was

Unpublished Should Not Deter Review

The fact that the Ninth Circuit’s decision was

unpublished (even though it rejected a novel challenge

to the AECA) is a reason to grant review, not to deny

it. Although “cases without published opinions are

less likely to be reviewed by the Supreme Court,”

Martha J. Dragich, Will the Federal Courts of Appeals

Perish if They Publish? Or Does the Declining Use of

Opinions to Explain and Justify Judicial Decisions

Pose a Greater Threat?, 44 Am. U.L. Rev. 757, 785

(1995), the truth is that other courts nonetheless rely

on those decisions, even though they may have been

decided and drafted with less care than a published

opinion. Moreover, some courts may use unpublished

opinions to sweep troublesome issues under the rug.

See Nat’l Classification Comm. v. United States, 765

F.2d 164, 173 n.2 (D.C. Cir. 1985) (separate statement

of Wald, J.) (unpublished decisions “increase the risk

of nonuniformity” and “allow difficult issues to be

swept under the carpet”); Plumley v. Austin, 135 S. Ct.

828, 831 (2015) (Thomas, J., dissenting from denial of

certiorari) (criticizing court of appeals for not

publishing decision “to avoid creating binding law”).

Nevertheless, because unpublished decisions are

viewed as less significant and incapable of creating an

actual conflict in the law, they are less likely to be

reviewed either by an en banc court or by this Court.

William L. Reynolds & William M. Richman, The NonPrecedential Precedent—Limited Publication and NoCitation Rules in the United States Courts of Appeals,

78 Colum. L. Rev. 1167, 1203 (1978) (explaining

reasons why unpublished opinions evade review by

courts and commentators alike).

That means that the bulk of appellate court

decisions never get any meaningful scrutiny. Federal

courts of appeals have relied more and more on

unpublished, nonprecedential decisions—even as

their caseloads have declined. Merritt E. McAlister,

“Downright Indifference”: Examining Unpublished

Decisions in the Federal Courts of Appeals, 118 Mich.

L. Rev. 533, 551-54, 561 (2020). Take one example

from one circuit: During the first week in October

2016, the U.S. Court of Appeals for the Fourth Circuit

issued 104 decisions in pending appeals, 102 of which

were “unpublished” dispositions. Id. at 534. Today,

87% of all federal appellate decisions are unpublished.

Admin. Office of the U.S. Courts, U.S. Court of

Appeals Judicial Business tbl. B-12 (2019). 8

The effects of this system do not affect all litigants

equally

either.

The

courts

appeal

disproportionately use unpublished decisions to reject

the claims of immigrants, prisoners, and other

litigants who can’t afford sophisticated counsel.

McAlister, “Downright Indifference,” 118 Mich. L. Rev.

at 548.

As a result, pro se litigants like the

Morgovskys before the Ninth Circuit too often receive

“second-class treatment” through “lightly reasoned

unpublished decisions.” Id. at 538. This in turn

creates “a two-tier system of appellate justice, which

benefits the haves at the sake of the have-nots,”

Merritt E. McAlister, Missing Decisions, 169 U. Pa. L.

Rev. (forthcoming 2021) (Univ. of Fla. Levin College of

Law Legal Studies Research Paper No. 20-44 at 66-67

(2020)9), and allows circuit splits and errors to

propagate without correction. This Court should

grant certiorari to consider the issues raised here

because they center on questions of broad importance,

regardless of the fact that the Ninth Circuit chose to

dispose of this particular case through an unpublished

disposition.

Available at https://www.uscourts.gov/statistics/table/b12/judicial-business/2019/09/30.

The courts of appeals

disproportionately use unpublished decisions to reject the claims

of immigrants, prisoners, and other litigants who can’t afford

sophisticated counsel. McAlister, “Downright Indifference,” 118

Mich. L. Rev. at 548.

9 Available at https://papers.ssrn.com/sol3/papers.cfm?abstrac

t_id=3652566.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari.

Respectfully submitted,

MARISA C. MALECK

ANNE M. VOIGTS

KING & SPALDING LLP

Counsel of Record

1700 Pennsylvania Ave. NW NOAH STID

Washington, DC 20006

KING & SPALDING LLP

LAURA LIVELY BABASHOFF 601 S. California Avenue

Suite 100

KING & SPALDING LLP

Palo Alto, CA 94304

633 West Fifth Street

(650) 422-6700

Suite 1600

avoigts@kslaw.com

Los Angeles, CA 90071

Counsel for Petitioners

May 13, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.