Petition for Writ of Certiorari — Carlos Herrera, Daniel Sanchez, and Anthony Ray Baca, Petitioners v. United States
Supreme Court briefFeb 24, 2023
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IN THE
Supreme Court of the United States
________________________________________________________________
CARLOS HERRERA, DANIEL SANCHEZ, AND
ANTHONY RAY BACA,
Petitioners,
v.
UNITED STATES OF AMERICA,
________________________________________________________________
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT—VOL. I OF II
________________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
________________________________________________________________
Ryan J. Villa
THE LAW OFFICE
OF RYAN J. VILLA
5501 Eagle Rock Ave. NE
Suite C2
Albuquerque, NM 87113
Counsel for Carlos Herrera
E. Joshua Rosenkranz
Counsel of Record
Thomas M. Bondy
Alyssa Barnard-Yanni
Emily W. Villano
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
(212) 506-5000
jrosenkranz@orrick.com
Josh Lee
OFFICE OF THE FEDERAL
PUBLIC DEFENDER
DISTRICTS OF COLORADO
Counsel for Petitioners
AND WYOMING
633 17th Street, Suite 1000 Theresa M. Duncan
Denver, CO 80202
DUNCAN EARNEST LLC
222 E Marcy St Suite 1
Counsel for Daniel Sanchez
Santa Fe, NM 87501
Counsel for Anthony Ray
Baca
i
QUESTION PRESENTED
Under Federal Rule of Criminal Procedure 12,
certain arguments—including those alleging “a defect
in the indictment”—“must be raised by pretrial motion,” or the argument “is untimely.” Fed. R. Crim. P.
12(b)(3), (c)(3). In contrast, “[a] motion that the court
lacks jurisdiction may be made at any time.” Fed. R.
Crim. P. 12(b)(2).
The question presented is:
Whether, under Federal Rule of Criminal Procedure 12, Petitioners were permitted to bring a facial
constitutional challenge to their statute of conviction
under the Commerce Clause by filing a post-trial motion rather than a pretrial motion.
ii
RELATED PROCEEDINGS
This petition seeks reviews of the decision of the
U.S. Court of Appeals for the Tenth Circuit in United
States v. Herrera, No. 19-2126, United States v.
Sanchez, No. 19-2141, and United States v. Baca, No.
19-2195 (consolidated judgment entered Oct. 27,
2022).
The petition arises from district court proceedings
in United States v. DeLeon et al., No. 2:15-CR-04268JB25 (D.N.M.), in which judgment was entered on
June 27, 2019 as to Mr. Herrera; on September 5,
2019 as to Mr. Sanchez; and on November 4, 2019 as
to Mr. Baca.
Other defendants from the same district court
case have appeals currently pending in the Tenth Circuit: United States v. Garcia, No. 19-2148; United
States v. Garcia, No. 19-2152; United States v. Troup,
No. 19-2188; United States v. Gallegos, No. 20-2056;
United States v. Gallegos, No. 20-2058; United States
v. Martinez, No. 22-2034; and United States v.
DeLeon, No. 22-2036.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................ i
RELATED PROCEEDINGS ..................................... ii
TABLE OF AUTHORITIES ......................................v
INTRODUCTION ..................................................... 1
OPINIONS AND ORDERS BELOW ........................ 3
JURISDICTION ........................................................ 3
STATUTORY PROVISIONS INVOLVED ............... 3
STATEMENT OF THE CASE .................................. 5
Petitioners are convicted under the
“position clause” of the Violent Crimes
in Aid of Racketeering Act (VICAR) ............. 5
The district court rejects Petitioners’ posttrial constitutional challenge to the
position clause on the merits ........................ 6
The Tenth Circuit holds Petitioners’
constitutional challenge waived under
Federal Rule of Criminal Procedure 12 ....... 8
REASONS FOR GRANTING THE WRIT.............. 11
I.
The Courts Of Appeals Are Deeply Split
Over Whether Facial Constitutional
Challenges Are “Jurisdictional.” ...................... 11
A. Five circuits recognize that a facial
constitutional challenge to a criminal
statute is “jurisdictional.” ........................... 12
iv
B. Four circuits hold that facial
constitutional challenges to criminal
statutes are “nonjurisdictional.” ................. 17
C. The issue is important, and confusion
on the “jurisdictional” character of
facial constitutional challenges persists
in the wake of Class. ................................... 20
II. The Tenth Circuit’s Rule 12 Analysis Is
Wrong. ............................................................... 24
III. This Case Is A Good Vehicle For Review. ....... 32
CONCLUSION ........................................................ 34
v
TABLE OF AUTHORITIES
Cases
Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006) ........................................25, 26
Ex parte Bain,
121 U.S. 1 (1887) ..................................................29
Blackledge v. Perry,
417 U.S. 21 (1974) ................................................27
Brady v. Maryland,
373 U.S. 83 (1963) ................................................11
Class v. United States,
138 S. Ct. 798 (2018)................ 2, 12, 20, 21, 22, 23
Hugi v. United States,
164 F.3d 378 (7th Cir. 1999)................................30
Journigan v. Duffy,
552 F.2d 283 (9th Cir. 1977)..........................14, 15
Menna v. New York,
423 U.S. 61 (1975) ..........................................21, 23
Prou v. United States,
199 F.3d 37 (1st Cir. 1999) ..................................25
Rice v. United States,
30 F.2d 681 (5th Cir. 1929)..................................20
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998) ..........................................12, 25
vi
United States v. Anderson,
783 F.3d 727 (8th Cir. 2015)................................28
United States v. Bacon,
884 F.3d 605 (6th Cir. 2018)..........................13, 14
United States v. Baucum,
80 F.3d 539 (D.C. Cir. 1996) .......... 9, 17, 18, 25, 29
United States v. Bell,
70 F.3d 495 (7th Cir. 1995)..................................14
United States v. Bishop,
66 F.3d 569 (3d Cir. 1995) ...................................16
United States v. Bowline,
917 F.3d 1227 (10th Cir. 2019)......................10, 33
United States v. Brown,
586 F.3d 1342 (11th Cir. 2009)............................15
United States v. Brown,
875 F.3d 1235 (9th Cir. 2017)..............................15
United States v. Cardales-Luna,
632 F.3d 731 (1st Cir. 2011) ................................18
United States v. Carrasquillo-Peñaloza,
826 F.3d 590 (1st Cir. 2016) ................................19
United States v. Cortez,
973 F.2d 764 (9th Cir. 1992)................................15
United States v. Cotton,
535 U.S. 625 (2002) ........................................26, 29
vii
United States v. David,
96 F.3d 1477 (D.C. Cir. 1996) ..............................18
United States v. De Vaughn,
694 F.3d 1141 (10th Cir. 2012)....................8, 9, 16
United States v. Dettra,
238 F.3d 424 (6th Cir. 2000)..........................13, 14
United States v. Dixon,
509 U.S. 688 (1993) ..............................................30
United States v. Drew,
200 F.3d 871 (D.C. Cir. 2000) ..............................18
United States v. Gallagher,
183 F.2d 342 (3d Cir. 1950) .................................20
United States v. Harcevic,
999 F.3d 1172 (8th Cir. 2021)..............................24
United States v. Hoskins,
902 F.3d 69 (2d Cir. 2018) ...................................30
United States v. Ignasiak,
808 F. App’x 709 (11th Cir. 2020) .......................22
United States v. Le,
902 F.3d 104 (2d Cir. 2018) .................................19
United States v. Manna,
92 F. App’x 880 (3d Cir. 2004) .............................16
United States v. Martin,
526 F.3d 926 (6th Cir. 2008)................................14
viii
United States v. Nueci-Peña,
711 F.3d 191 (1st Cir. 2013) ................................19
United States v. Phillips,
645 F.3d 859 (7th Cir. 2011)........ 13, 14, 25, 28, 30
United States v. Ríos-Rivera,
913 F.3d 38 (1st Cir. 2019) ............................23, 33
United States v. Rodia,
194 F.3d 465 (3d Cir. 1999) .................................16
United States v. Saac,
632 F.3d 1203 (11th Cir. 2011)............................15
United States v. Sabella,
272 F.2d 206 (2d Cir. 1959) .............................1, 25
United States v. Seay,
620 F.3d 919 (8th Cir. 2010)................................23
United States v. Skinner,
25 F.3d 1314 (6th Cir. 1994)..........................13, 14
United States v. St. Hubert,
909 F.3d 335 (11th Cir. 2018)..............................22
United States v. Swiss Am. Bank, Ltd.,
191 F.3d 30 (1st Cir. 1999) ..................................26
United States v. Turkiye Halk Bankasi A.S.,
16 F.4th 336 (2d Cir. 2021)..................................30
United States v. Yousef,
750 F.3d 254 (2d Cir. 2014) ...........................19, 30
ix
Ex parte Yarbrough,
110 U.S. 651 (1884) ..............................................28
Statutes
18 U.S.C. § 1959 ......................................................3, 6
18 U.S.C. § 1959(a)......................................................6
18 U.S.C. § 1959(a)(1) .................................................6
18 U.S.C. § 1959(b)(2) .............................................6, 7
18 U.S.C. § 3231 ........................................ 3, 29, 30, 31
28 U.S.C. § 1254(1)......................................................3
Rules and Regulations
Fed. R. Crim. P. 12(b)(2) .................... 1, 2, 3, 8, 10, 16,
25, 26, 27, 30, 31
Fed. R. Crim. P. 12(b)(3) ............. 2, 5, 8, 10, 31, 32, 33
Fed. R. Crim. P. 12(b)(3)(A) ......................................31
Fed. R. Crim. P. 12(b)(3)(B) ............................ 8, 31, 32
Fed. R. Crim. P. 12(b)(3)(B)(ii)..................................28
Fed. R. Crim. P. 12(b)(3)(B)(v) ..................................29
Fed. R. Crim. P. 12(c) ..................................................5
Fed. R. Crim. P. 12(c)(3) .....................................10, 32
x
Other Authorities
Br. for the United States, Turkiye Halk
Bankasi A.S. v. United States,
No. 21-1450 (U.S. Dec. 14, 2022) .........................30
Defect, Oxford English Dictionary,
https://tinyurl.com/4uycmp7r ..............................32
Fed. R. Crim. P. 11 advisory
committee’s notes to 1983
amendments .........................................................20
Fed. R. Crim. P. 12(b) advisory
committee’s note to 1944 rules ............................27
Fed. R. Crim. P. 12(b) advisory
committee’s note to 2002
amendments .........................................................28
Fed. R. Crim. P. 12(b) advisory
committee’s note to 2014
amendments .........................................................29
Pet. for Cert., Class v. United States,
No. 16-424 (U.S. Sept. 30, 2016) .........................21
Pet’r’s Br., Class v. United States,
No. 16-424 (U.S. May 12, 2017)...........................21
1
INTRODUCTION
A facial constitutional challenge to a statute of
criminal conviction, if successful, deprives the government of the power to prosecute and the court to enter
judgment against any defendant—even if the defendant committed acts proscribed by statute. Since the
adoption of the Federal Rules of Criminal Procedure,
courts have frequently described such a challenge to
a criminal prosecution as divesting the government
and court of “jurisdiction” to convict. And the term
lives on today in a timeliness provision that allows defendants to make a “motion that the court lacks jurisdiction … at any time while the case is pending.” Fed.
R. Crim. P. 12(b)(2).
That the term “jurisdiction” should have a particular meaning in a particular context is unsurprising:
It is a “chameleon-like” word, taking on different
meanings across the “legal lexicon.” United States v.
Sabella, 272 F.2d 206, 209 (2d Cir. 1959) (Friendly,
J.). Outside the criminal context, modern jurisprudence has cabined the meaning of “jurisdiction” to refer to “subject matter jurisdiction”: a court’s power to
adjudicate a case. But an enormous body of law predates that modern shift in terminology. Historically,
courts, Congress, and others have not uniformly used
the term “jurisdiction” to refer to “subject matter jurisdiction.” In the criminal context in particular, the
term “jurisdiction” has referred broadly to the government’s power to hale a defendant into court, and the
court’s power to enter a judgment of conviction.
In the proceedings below, the Court of Appeals
took the former approach, equating the term
2
“jurisdiction” with subject matter jurisdiction. After a
jury convicted Petitioners, they moved in the district
court to challenge the constitutionality of their statute of conviction, arguing that it exceeded Congress’s
Commerce Clause power. In other words, Petitioners
argued that notwithstanding factual guilt of the conduct prohibited by statute, the court lacked the power
to enter a judgment of conviction. The Court of Appeals determined that because a facial constitutional
challenge does not affect a court’s subject matter jurisdiction, it is not a challenge to “jurisdiction” under
Rule 12(b)(2), and instead alleges a “defect in the indictment,” such that it must be brought in a pretrial
motion under Rule 12(b)(3) or is waived.
The Tenth Circuit’s decision deepens a long-entrenched circuit split. The First, Second, and D.C. Circuits, like the Tenth Circuit, would have barred
Petitioners’ claim as “nonjurisdictional” because it
does not implicate subject matter jurisdiction. In the
Third, Sixth, Seventh, Ninth, and Eleventh Circuits,
however, Petitioners’ post-trial challenge would have
been considered “jurisdictional” because it goes to the
federal government’s underlying authority to criminalize the charged conduct. This Court granted review to resolve a closely related split in Class v.
United States, 138 S. Ct. 798 (2018), but its decision
avoided the jurisdictional issue and thus left the split
on jurisdiction intact—creating, if possible, even more
confusion.
The Tenth Circuit’s decision is also wrong: As the
history of the Federal Rules of Criminal Procedure illustrates, “jurisdiction” in the criminal context does
not refer to subject matter jurisdiction. If it did, Rule
3
12(b)(2) would serve little purpose: In light of the
broad jurisdictional grant in 18 U.S.C. § 3231, it is difficult to imagine challenges to subject matter jurisdiction, strictly construed, that could plausibly be raised
in a criminal case. Instead, as the Third, Sixth, Seventh, Ninth, and Eleventh Circuits have held, the
term “jurisdiction” in criminal law—including in Rule
12(b)(2)—refers more broadly to the federal government’s power to hale a defendant into court.
The Court should grant review to resolve the conflict.
OPINIONS AND ORDERS BELOW
The decision of the Court of Appeals is reported at
51 F.4th 1226 and reproduced at Pet. App. 1a-132a.
The relevant district court decision is unreported and
reproduced at Pet. App. 133a-574a.
JURISDICTION
The Court of Appeals issued its opinion on October 27, 2022. On January 20, 2023, this Court extended the time to petition for a writ of certiorari to
February 24, 2023. This Court has jurisdiction under
28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The Violent Crimes in Aid of Racketeering Act
(VICAR), 18 U.S.C. § 1959, is reproduced at Pet. App.
575a-576a.
4
Federal Rule of Criminal Procedure 12(b) provides in pertinent part:
(2) Motions That May Be Made at Any Time. A
motion that the court lacks jurisdiction may be
made at any time while the case is pending.
(3) Motions That Must Be Made Before Trial.
The 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:
(A) a defect in instituting the prosecution,
including:
(i) improper venue;
(ii) preindictment delay;
(iii) a violation of the constitutional right
to a speedy trial;
(iv) selective or vindictive prosecution;
and
(v) an error in the grand-jury proceeding
or preliminary hearing;
(B) a defect in the indictment or information, including;
(i) joining two or more offenses in the
same count (duplicity);
(ii) charging the same offense in more
than one count (multiplicity);
(iii) lack of specificity;
5
(iv) improper joinder; and
(v) failure to state an offense….
Federal Rule of Criminal Procedure 12(c) provides
in relevant part:
(3) Consequences of Not Making a Timely Motion Under Rule 12(b)(3). If 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.
STATEMENT OF THE CASE
Petitioners are convicted under the “position
clause” of the Violent Crimes in Aid of
Racketeering Act (VICAR)
This petition arises from the six-week joint trial
involving three New Mexico state prisoners: Petitioners Carlos Herrera, Daniel Sanchez, and Anthony Ray
Baca. Pet. App. 10a.
The government charged Petitioners and 28 other
inmates in the New Mexico state prison system with
crimes related to the operation of the prison gang Sindicato de Nuevo Mexico (SNM). Pet. App. 10a, 141a.
The charges against Petitioners alleged their involvement in the murder of a prison inmate. 1 Pet. App. 10a.
According to the government, Petitioners’ conduct in
1 Petitioner Baca faced further charges alleging his involvement in a conspiracy (ultimately unconsummated) to murder
two corrections officials. Pet. App. 14a.
6
prison violated the “position clause” of the Violent
Crimes in Aid of Racketeering Act (VICAR), 18 U.S.C.
§ 1959.
VICAR makes certain violent crimes ordinarily
prosecuted in state courts federal offenses when committed with specified connections to “an enterprise
engaged in racketeering activity.” § 1959(a). As relevant here, the “position clause” makes it a federal
crime to commit, attempt, or conspire to commit murder “for the purpose of gaining entrance to or maintaining or increasing position in an enterprise
engaged in racketeering activity.” § 1959(a)(1). The
government alleged that SNM constituted an “enterprise” as defined by VICAR: a “group” “engaged in, or
the activities of which affect, interstate or foreign
commerce.” § 1959(b)(2); Pet. App. 138a. It further alleged that Petitioners conspired to commit and aided
and abetted the murder of a prison inmate for the purpose of enhancing their position in SNM. Pet. App.
112a.
The district court severed the case into multiple
trials, and the jury convicted Petitioners at the first
trial. Pet. App. 12a, 147a-148a.
The district court rejects Petitioners’ post-trial
constitutional challenge to the position clause
on the merits
Post-trial, Petitioners joined a motion for acquittal brought by a separately tried co-defendant, Arturo
Garcia. Pet. App. 113a, 121a, 182a n.10, 260a. The
motion pressed three related arguments. First, it argued that VICAR’s position clause is facially
7
unconstitutional because it “exceeds congressional
power under … the Commerce Clause”: Although the
position clause requires proof that the enterprise affected interstate commerce, it does not require any
proof that the defendant’s conduct had any effect on
interstate commerce. Pet. App. 182a-186a. The motion further argued that VICAR’s position clause was
unconstitutional as applied because the charged conduct did not involve interstate activity, and that the
government’s failure to establish a link to interstate
commerce deprived the district court of subject matter
jurisdiction. Pet. App. 182a-192a, 250a-261a.
The district court rejected each of these challenges on the merits. Pet. App. 391a, 416a-442a. It
first held that Congress had not exceeded its authority under the Commerce Clause because VICAR’s position clause includes an interstate commerce nexus
requirement: The “enterprise” in which a defendant
seeks to maintain or increase his position must be “engaged in, or … affect, interstate or foreign commerce.”
§ 1959(b)(2); Pet. App. 422a-427a. The court then addressed together Petitioners’ remaining arguments,
finding that each was really a challenge to the “sufficiency of the evidence,” Pet. App. 433a-434a, i.e., that
the government had not established “an essential element of the crime”—its interstate commerce nexus requirement. Pet. App. 434a-438a. And the court
concluded that, to the contrary, sufficient evidence
connected SNM’s activities with interstate commerce.
Pet. App. 431a-433a, 438a-442a.
8
The
Tenth
Circuit
holds
Petitioners’
constitutional challenge waived under Federal
Rule of Criminal Procedure 12
Petitioners appealed, arguing as relevant here
that “VICAR’s ‘position clause’ exceeds Congress’s
power under” the Commerce Clause. Pet. App. 11a. In
response, the government argued for the first time
that Petitioners had waived their constitutional challenge under Federal Rule of Criminal Procedure 12 by
raising the arguments in a post-trial motion rather
than a pretrial motion. Pet. App. 113a. The Court of
Appeals agreed with the government and declined to
reach the merits of Petitioners’ constitutional challenge. Pet. App. 119a, 122a.
The Court of Appeals framed its analysis around
Rule 12. Under Rule 12(b)(2), “[a] motion that the
court lacks jurisdiction may be made at any time.” See
also Pet. App. 114a. But an objection to prosecution
based on a “defect in the indictment or information,”
including “failure to state an offense,” must be
brought in a pretrial motion. Fed. R. Crim. P.
12(b)(3)(B); Pet. App. 113a. Thus, the Court of Appeals posited, whether Petitioners had waived their
constitutional challenges depended on whether those
challenges were “jurisdictional” within the meaning
of Rule 12(b)(2), or were instead “defect[s] in the indictment” within the meaning of Rule 12(b)(3). Pet.
App. 113a-114a.
The Court of Appeals first addressed Petitioners’
as-applied constitutional challenge. Applying circuit
precedent, see United States v. De Vaughn, 694 F.3d
1141, 1153-54 (10th Cir. 2012), the court concluded
9
that an as-applied constitutional challenge does not
present a jurisdictional issue and therefore “require[s] a pretrial motion” under Rule 12. Pet. App.
114a-115a; cf. De Vaughn, 694 F.3d at 1153-54 (holding an as-applied constitutional challenge does “not
implicate a court’s subject matter jurisdiction” and
therefore does not survive a guilty plea).
No Tenth Circuit precedent, however, squarely
addressed whether a facial constitutional challenge
was “jurisdictional.” Pet. App. 115a-116a. And, the
Court of Appeals observed, its sister circuits were “divided” on the question: The “First, Second, Sixth, and
D.C. Circuits have held that facial constitutional challenges are nonjurisdictional,” the court remarked,
while “the Third, Seventh, Eighth, Ninth, and Eleventh Circuits have held that [they] are jurisdictional.”
Pet. App. 116a-117a.
Confronting the question for the first time, the
Court of Appeals sided with the minority approach
and held that facial constitutional challenges are not
“jurisdictional.” Pet. App. 117a-119a. The Court of
Appeals reasoned that “jurisdiction involves a court’s
power to adjudicate a case and … deciding the constitutionality of a statute is squarely within the power
of the federal courts.” Pet. App. 118a. Further, it observed, if facial constitutional challenges “implicated
subject-matter jurisdiction,” courts would have to resolve facial constitutional challenges in every case,
even sua sponte, in contravention of “Supreme Court
precedent declining to address constitutional issues
not put at issue by the parties.” Pet. App. 118a (quoting United States v. Baucum, 80 F.3d 539, 541 (D.C.
Cir. 1996)).
10
The Court of Appeals identified further support
for its position in Petitioners’ “presentation” of the facial constitutional challenge. Pet. App. 118a-119a. In
its view, the fact that Petitioners had raised a separate, fact-based challenge to the court’s subject matter
jurisdiction showed that Petitioners viewed their constitutional challenge as nonjurisdictional. Pet. App.
119a.
Having decided that Petitioners’ facial constitutional challenge was not “jurisdictional” within the
meaning of Rule 12(b)(2), the Court of Appeals determined that “[t]he challenge instead rested on a defect
in the indictment” and should therefore have been
brought in a pretrial motion under Rule 12(b)(3). Pet.
App. 119a. Petitioners’ failure to file such a pretrial
motion—or show good cause for the untimeliness—
meant that the challenge had been waived under Rule
12(c)(3). Pet. App. 119a. The Court of Appeals further
found that the government had not waived the waiver
by failing to raise it in the district court. Pet. App.
119a-122a. Under controlling Tenth Circuit precedent, even plain-error review is unavailable for issues
not timely raised under Rule 12(b)(3). See United
States v. Bowline, 917 F.3d 1227, 1231-38 (10th Cir.
2019) (acknowledging a separate circuit split on this
question). Relying on Bowline, the Court of Appeals
thus declined to address Petitioners’ facial constitutional challenge. Pet. App. 122a. 2
2 Petitioners also raised several other issues on appeal, in
addition to their Commerce Clause challenge to the VICAR position clause. They argued, for example, that the government
11
REASONS FOR GRANTING THE WRIT
I.
The Courts Of Appeals Are Deeply Split
Over
Whether
Facial
Constitutional
Challenges Are “Jurisdictional.”
As the Tenth Circuit acknowledged, the courts of
appeals are intractably divided on the question of
whether a facial constitutional challenge to a criminal
statute of conviction is “jurisdictional.” Pet. App.
116a. The Third, Sixth, Seventh, Ninth, and Eleventh
Circuits are in the majority, viewing such challenges
as “jurisdictional.” 3 Pet. App. 117a. The First, Second,
and D.C. Circuits, by contrast, find that facial constitutional challenges are “nonjurisdictional.” Pet. App.
116a-117a. The Tenth Circuit has now added its
weight to the minority side, bringing this to a 5-4
split.
This split reflects longstanding and deep-seated
confusion about the nature of a “jurisdictional” challenge. After all, “[j]urisdiction, it has been observed,
failed to timely disclose exculpatory evidence—including records
of prison phone calls by two of the government’s cooperating witnesses—in violation of Brady v. Maryland, 373 U.S. 83 (1963);
that the district court erred in declining to sever their trials; and
that the district court erred in denying continuance requests.
Pet. App. 4a-10a. The Court of Appeals rejected those arguments, which are not at issue in this petition.
3 The Tenth Circuit misread the relevant Sixth Circuit precedent and thus wrongly placed the Sixth Circuit in the camp that
considers facial constitutional challenges nonjurisdictional. See
infra at 14 n.4. In the Eighth Circuit, also mentioned by the
Tenth Circuit, the fate of a defendant’s facial constitutional challenge is uncertain. See infra at 23-24.
12
is a word of many, too many, meanings.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quotation marks omitted). The Court was potentially
poised to resolve the split on whether constitutional
challenges to a criminal statute of conviction were “jurisdictional” when it granted review in Class v. United
States, 138 S. Ct. 798 (2018). But its decision in that
case ultimately resolved the question presented on
relatively narrow grounds specific to the guilty-plea
context, and the Court did not address whether a constitutional challenge should be considered “jurisdictional” or “nonjurisdictional.” The Court simply held
that a guilty plea by itself does not bar a criminal defendant from appealing his conviction on the ground
that the statute of conviction is unconstitutional. 138
S. Ct. at 801-02. As a result, the pre-Class split over
whether a facial constitutional challenge counts as
“jurisdictional” persists in the lower courts, and indeed continues—as here—to rear its head outside the
guilty-plea context. The Court should grant review in
this case to clear up the continuing and widespread
confusion.
A. Five circuits recognize that a facial
constitutional challenge to a criminal
statute is “jurisdictional.”
In five courts of appeals, Petitioners’ facial constitutional challenge would have been deemed jurisdictional and therefore not waived by filing a post-trial
motion instead of a pretrial motion. In the view of
these courts, “[t]he term ‘jurisdictional,’” in the context of criminal procedure, “refers to a court’s statutory or constitutional authority to hale the defendant
into court; it does not refer to subject matter
13
jurisdiction.” United States v. Phillips, 645 F.3d 859,
862 (7th Cir. 2011). And because a facial constitutional challenge implicates the federal government’s
power to prosecute—even if not the court’s power to
adjudicate—it counts as a “jurisdictional” issue.
Start with the Sixth Circuit, which has recognized
that facial constitutional challenges go to “the Government’s power to criminalize [the defendant’s] (admitted) conduct.” United States v. Bacon, 884 F.3d
605, 610 (6th Cir. 2018) (internal quotation marks
omitted). It accordingly treats such challenges as jurisdictional. The Sixth Circuit established this principle in United States v. Skinner, where a defendant
sought to vacate his conviction on appeal on the
ground that the relevant criminal statute was unconstitutionally vague. 25 F.3d 1314, 1315 (6th Cir.
1994). The government argued that the defendant’s
guilty plea foreclosed this constitutional challenge.
Id. at 1317. But the Sixth Circuit disagreed, recognizing that “[a]lthough a guilty plea waives all non-jurisdictional defects and fact issues, a vagueness
challenge is a jurisdictional defect.” Id. (emphasis
added). The Sixth Circuit later applied this rule beyond guilty pleas to a jury verdict in United States v.
Dettra, 238 F.3d 424 (6th Cir. 2000) (table decision).
Even though the defendant’s challenge there had “not
[been] presented to the district court,” the Sixth Circuit held that “his challenge to the constitutionality of
14
[the statute] asserts a jurisdictional defect which may
be raised for the first time on appeal.” Id. 4
The Seventh Circuit is aligned with the Sixth Circuit’s approach. It has long held “that the claim that
the applicable statute is unconstitutional is a jurisdictional claim.” United States v. Bell, 70 F.3d 495, 497
(7th Cir. 1995). Like the Sixth Circuit, the Seventh
Circuit has been careful to explain that it distinguishes “[t]he term ‘jurisdictional’” in the criminal
context from the concept of “subject matter jurisdiction.” Phillips, 645 F.3d at 862 (“The term ‘jurisdictional’ refers to a court’s statutory or constitutional
authority to hale the defendant into court; it does not
refer to subject matter jurisdiction.”). As Phillips explained: “A jurisdictional issue is one that stands in
the way of conviction—even when factual guilt is validly established.” Id. Viewed in this way, “a facial attack on a statute’s constitutionality is jurisdictional”
because it “strip[s] the government of its ability to obtain a conviction against any defendant.” Id. at 863.
The Ninth Circuit’s approach mirrors that of the
Sixth and Seventh Circuits. In Journigan v. Duffy,
4 The Tenth Circuit misclassified the Sixth Circuit by misreading Bacon. Pet. App. 116a-117a. The court in Bacon stated
that the defendant there brought “no true jurisdictional claims,”
because the defendant’s arguments did not implicate subject
matter jurisdiction. Bacon, 884 F.3d at 608-10 (citing United
States v. Martin, 526 F.3d 926, 933-34 (6th Cir. 2008)). Reading
Bacon together with Skinner, the Sixth Circuit is clear that an
issue may be “jurisdictional” for certain purposes even if it does
not implicate subject matter jurisdiction, given the varying usages of the term “jurisdiction.” Bacon, 884 F.3d at 610; Skinner,
25 F.3d at 1317.
15
the Ninth Circuit explained that a facial constitutional challenge “go[es] to the power of the state to invoke criminal process against the defendant,” and a
guilty plea therefore does not foreclose the defendant
from raising such a challenge on appeal. 552 F.2d 283,
289 (9th Cir. 1977); see also United States v. Brown,
875 F.3d 1235, 1238-39 & n.2 (9th Cir. 2017) (interpreting “jurisdictional claims” to mean “those [claims]
challenging a conviction independently of the question of factual guilt” and to encompass facial constitutional challenges); United States v. Cortez, 973 F.2d
764, 766-67 (9th Cir. 1992) (recognizing that “jurisdictional claims” arise where “the government constitutionally may not prosecute,” including because a
“statute is facially unconstitutional”).
The Eleventh Circuit is in agreement. In United
States v. Saac, 632 F.3d 1203 (11th Cir. 2011), the
court held that the defendants’ guilty pleas did not
prevent them from arguing on appeal that their statute of conviction violated the Constitution. The Eleventh Circuit explained that, in the criminal context,
“[w]hether a claim is ‘jurisdictional’ depends on
whether the claim can be resolved by examining the
face of the indictment … without requiring further
proceedings.” Id. at 1208. And if defendants succeeded on their claim that “Congress exceeded its authority in enacting the [statute],” “the government
would lack the power to prosecute” defendants regardless of their “factual[] guilt[].” Id. The court thus
held that “the constitutionality of” the statute of conviction was “a jurisdictional issue.” Id.; see also
United States v. Brown, 586 F.3d 1342, 1350 (11th
Cir. 2009) (similar).
16
In these circuits, courts have explained that the
term “jurisdiction” in the criminal context is not synonymous with the concept of “subject matter jurisdiction.” An issue is “jurisdictional” in this setting if it
would bar the government from convicting the defendant even if the defendant committed the acts proscribed by statute. Thus, in the Sixth, Seventh, Ninth,
and Eleventh Circuits, courts would have treated Petitioners’ facial constitutional challenge to their statute of conviction as “jurisdictional” for purposes of
Rule 12. 5 That is squarely contrary to the theory, relied upon by the Tenth Circuit below, that such constitutional challenges are not “jurisdictional” within
the meaning of Rule 12(b)(2) because “jurisdiction involves a power to adjudicate a case and … deciding
the constitutionality of a statute ‘is squarely within
the power of the federal courts.’” Pet. App. 118a (quoting De Vaughn, 694 F.3d at 1153-54).
5 The Third Circuit has also held that facial challenges to
criminal statutes of conviction are jurisdictional. Uni States v.
Bishop, 66 F.3d 569, 572 n.1 (3d Cir. 1995) (holding “alleged constitutional invalidity” “goes to the jurisdiction of the district
court”); United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999)
(accord); United States v. Manna, 92 F. App’x 880, 886 n.6 (3d
Cir. 2004) (accord). On that basis, the Third Circuit has declined
to hold that such challenges may be waived by a guilty plea.
Bishop, 66 F.3d at 572 n.1; Rodia, 194 F.3d at 469. The Third
Circuit has not elaborated upon its reasoning, or explained in
any detail what it means by the use of the term “jurisdiction” in
this context. Regardless, because Petitioners’ claims would have
been considered jurisdictional in the Third Circuit, this case
would have come out the other way there too.
17
B. Four
circuits
hold
that
facial
constitutional challenges to criminal
statutes are “nonjurisdictional.”
Four circuits take a contrary approach on the
question presented. These courts treat “jurisdiction”
in criminal procedure as limited to subject matter jurisdiction, and reason that a federal court “acts within
its subject-matter jurisdiction” whenever it “exercises
its power under a presumptively valid federal statute.” United States v. Baucum, 80 F.3d 539, 540 (D.C.
Cir. 1996). Because a “constitutional defect does not
work to divest th[e] court of its original jurisdiction,”
these courts hold that facial constitutional challenges
may be waived as nonjurisdictional claims. Id. at 541.
The D.C. Circuit’s decision in Baucum announced
this view. The defendant, convicted after trial on a
federal drug charge, sought for the first time on appeal to challenge on Commerce Clause grounds the
constitutionality of a “schoolyard-statute” that increased his sentence due to the proximity of his crime
to a school. 80 F.3d at 540, 544. The D.C. Circuit concluded that he had waived his challenge because “facial constitutional challenges to presumptively valid
statutes [are] nonjurisdictional.” Id. at 540. The court
analyzed whether challenges like the defendant’s “implicated subject matter jurisdiction.” Id. at 541. It reasoned that because “[s]ubject-matter jurisdiction
presents a threshold question” that “federal courts[]
hav[e] an obligation to address … sua sponte,” treating facial constitutional challenges as “jurisdictional”
would “run afoul of established Supreme Court precedent declining to address constitutional questions
not put in issue by the parties.” Id. at 540-41.
18
Baucum expressly recognized the line of authority
“referr[ing] to facial constitutional claims as jurisdictional” because they concern “the power of the government ‘to hale [a defendant] into court.’” Id. at 542-43.
But the D.C. Circuit reasoned that the defendant in
Baucum did not bring a “jurisdictional” claim in this
sense because he challenged a statute that merely “increase[d] the penalty” for his crime. Id. at 543-44. The
D.C. Circuit has since applied Baucum to hold that
facial constitutional challenges in general are nonjurisdictional and subject to waiver, regardless of
whether they target only a penalty-enhancing statute. See, e.g., United States v. Drew, 200 F.3d 871, 876
(D.C. Cir. 2000) (Second and Fifth Amendment challenges to statute criminalizing firearm possession
waived by a guilty plea); United States v. David, 96
F.3d 1477, 1482 (D.C. Cir. 1996) (Commerce Clause
challenge to statute of conviction waived on appeal after jury trial because defendant failed to raise the
challenge in district court and it was “not jurisdictional”).
The First Circuit has followed the D.C. Circuit. In
United States v. Cardales-Luna, 632 F.3d 731 (1st Cir.
2011), the dissenting judge would have overturned a
jury verdict on the ground that the statute of conviction was facially unconstitutional—even though the
defendant “never raised” that challenge “below or on
appeal.” Id. at 737-38; see id. at 751 (dissent). But the
panel majority, citing Baucum, held that the court
could not address the question sua sponte because a
facial constitutional challenge does not “involve[] the
subject matter jurisdiction of the court,” and the challenge was therefore waived. Id. at 737. The First Circuit has held in subsequent cases, citing Cardales-
19
Luna, that facial challenges to a statute of conviction
are in general nonjurisdictional for this reason and
are therefore waived by either a defendant’s guilty
plea or a defendant’s failure to raise the issue in the
district court. United States v. Carrasquillo-Peñaloza,
826 F.3d 590, 592-93 & n.3 (1st Cir. 2016); United
States v. Nueci-Peña, 711 F.3d 191, 196-97 (1st Cir.
2013).
The view that facial constitutional challenges to
criminal statutes of conviction are nonjurisdictional
because they do not implicate subject matter jurisdiction has also taken hold in the Second Circuit. In
United States v. Le, the Second Circuit held that a defendant waived a facial constitutional challenge on
appeal, after a jury trial, because he had not raised
the challenge in district court and it was nonjurisdictional. 902 F.3d 104, 109 (2d Cir. 2018). The Second
Circuit supported its decision with precedent holding
that “post-plea appeals that call into question the government’s authority to bring a prosecution or congressional authority to pass the statute in question are
generally not ‘jurisdictional’ in the sense” that those
defects would not deprive the trial court of subject
matter jurisdiction. United States v. Yousef, 750 F.3d
254, 260-61 (2d Cir. 2014).
The Tenth Circuit in this case has aligned itself
with the latter courts. Embracing the reasoning in
Baucum, it framed the question of waiver under Rule
12 as whether Petitioners’ facial constitutional challenge implicates “subject-matter jurisdiction.” Pet.
App. 113a. So framed, it held that facial constitutional
attacks do not implicate subject matter jurisdiction
and are therefore not “jurisdictional.” See Pet. App.
20
118a. The Tenth Circuit expressly acknowledged that,
in so ruling, it was taking sides in an entrenched conflict in the circuits. Pet. App. 116a-117a.
C. The issue is important, and confusion on
the “jurisdictional” character of facial
constitutional challenges persists in the
wake of Class.
The question whether a facial constitutional challenge is “jurisdictional” has often arisen when a defendant sought to challenge a statute of conviction
after entering a guilty plea. Courts had long held that
guilty pleas “waive[] … all nonjurisdictional defects
and defenses.” E.g., United States v. Gallagher, 183
F.2d 342, 344 (3d Cir. 1950) (citing Rice v. United
States, 30 F.2d 681, 681 (5th Cir. 1929)). 6 Many cases
in the split discussed above address whether a facial
constitutional challenge is “jurisdictional” in that context. But while the Court granted review in Class and
ultimately held that a guilty plea on its own does not
preclude an appeal on the ground that the statute of
conviction is unconstitutional, 138 S. Ct. at 801-02,
the Court’s opinion did not address the question in jurisdictional terms. Following Class, the courts of appeals continue to diverge in their approaches to what
constitutes a “jurisdictional” issue in the criminal procedure context. If anything, the decision has added to
the confusion in the lower courts.
6 This formulation eventually made its way into the Advisory Committee’s Notes on Federal Rule of Criminal Procedure
11, see Fed. Rule Crim. Proc. 11 advisory committee’s notes to
1983 amendments, although not into the text of the Rule itself.
21
1. The question presented in Class was whether
“a guilty plea bar[s] a criminal defendant from later
appealing his conviction on the ground that the statute of conviction violates the Constitution.” 138 S. Ct.
at 801-02. As the petitioner there indicated in both his
petition for certiorari and merits brief, and as explained above, the lower courts’ varying answers to
that question reflected in sizeable part efforts to distinguish between “jurisdictional” and “nonjurisdictional” challenges—the source of “significant
confusion.” Pet’r’s Br. at 39, Class v. United States,
No. 16-424 (U.S. May 12, 2017); see Pet. for Cert. at
15-21, 23, Class, No. 16-424 (U.S. Sept. 30, 2016).
Class held that a guilty plea does not by itself bar
a constitutional challenge to the statute of conviction
on direct appeal. 138 S. Ct. at 802. The Court found
support for its holding in legal history specific to
guilty pleas. See id. at 804-05. The Court’s precedent
explained that “a plea of guilty to a charge does not
waive a claim that—judged on its face—the charge is
one which the State may not constitutionally prosecute.” Id. at 803-04 (quoting Menna v. New York, 423
U.S. 61, 63 n.2 (1975)). This is because a plea is “a
confession of all the facts charged in the indictment”
and “the evil intent imputed to the defendant.” Id. at
804. By pleading guilty, a defendant inherently
waives the right to trial by jury and certain procedural rights, but not other constitutional claims. Id.
at 803-04. In Class, the petitioner’s constitutional
claim did not “contradict … [his] admission that he
did what the indictment alleged” but instead “call[ed]
into question the Government’s power to ‘constitutionally prosecute’ him.” Id. at 804-05. The Court
22
concluded that “[a] guilty plea does not bar a direct
appeal in these circumstances.” Id. at 805.
In its analysis in Class, the Court did not address
the question presented in jurisdictional terms. Indeed, it made no mention of the fact that the prevailing, if not virtually universal, framework in the courts
of appeals for addressing the question presented—
whether a plea waived the defendant’s ability to bring
a constitutional challenge to the statute of conviction
on appeal—had been the framework of “jurisdiction.”
Thus, although Class made clear that constitutional
challenges survive a guilty plea, it did not resolve the
underlying split on whether facial constitutional challenges are “jurisdictional” for that or any other purpose.
2. Following Class, the courts of appeals remain
divided, the pre-existing split persists, and the lowercourt confusion continues on the jurisdictional question.
Because Class did not speak in jurisdictional
terms, courts have reached divergent conclusions on
the extent to which Class affects their prior cases on
whether issues are “jurisdictional” in the criminal
context. For example, while acknowledging that
“Class did not speak in terms of jurisdiction,” the
Eleventh Circuit reads Class to suggest that a statutory argument that the facts admitted by a defendant
in a plea “do not constitute a crime at all” under the
charged statute would be “jurisdictional” and therefore would not be waived by a guilty plea. United
States v. St. Hubert, 909 F.3d 335, 343-44 (11th Cir.
2018); see also United States v. Ignasiak, 808 F. App’x
23
709, 714 (11th Cir. 2020) (“[A] guilty plea waives all
non-jurisdictional defects …, [but] [the defendant]
may still challenge the indictment on jurisdictional
grounds.”). The First Circuit, meanwhile, has reaffirmed its view that, notwithstanding Class, facial
constitutional challenges are not jurisdictional and
may be waived where a guilty plea is not involved.
United States v. Ríos-Rivera, 913 F.3d 38, 42-43 (1st
Cir. 2019) (“Class does not contradict our characterization” of constitutional challenges as nonjurisdictional). Because the split on “jurisdiction” persists, it
continues to impact other issues in the criminal context evaluated in “jurisdictional” terms—including in
particular the Rule 12 issue here.
Class’s failure to clarify the law in this area has
also “sow[n] new confusion” in the lower courts. Class,
138 S. Ct. at 814 (Alito, J., dissenting). The Eighth
Circuit is one example. Prior to Class, the Eighth Circuit held in United States v. Seay that a defendant’s
Second Amendment challenge to his statute of conviction was “jurisdictional” and could therefore be
pressed on appeal despite his guilty plea. The Eighth
Circuit rejected the government’s argument that “jurisdiction” in this context referred to the “modern concept of jurisdiction,” i.e., subject matter jurisdiction—
a court’s “power to adjudicate the case.” 620 F.3d 919,
922-23 (8th Cir. 2010) (emphasis added). In line with
the approaches of the Sixth, Seventh, Ninth, and
Eleventh Circuits outlined above, supra at 12-16, the
Eighth Circuit explained that a “jurisdictional” argument in this context includes a claim that “the government ‘may not constitutionally prosecute’ him.” Id.
at 923 (quoting Menna, 423 U.S. at 62 n.2).
24
Yet the Eighth Circuit has retreated from this approach after Class. See United States v. Harcevic, 999
F.3d 1172, 1179 (8th Cir. 2021). In Harcevic, the defendants were charged with providing material support to terrorists; they moved to dismiss the
indictment on the ground that the Executive Branch
had granted them immunity as lawful combatants in
the Syrian civil war. Id. at 1175-76. After the district
court denied their motion to dismiss, the defendants
pleaded guilty, but sought to raise the lawful-combatant issue on appeal. Id. at 1176-77. They argued that
lawful-combatant immunity was a “jurisdictional” issue that survived their guilty plea. Id. at 1177. The
Eighth Circuit recognized that this immunity “challenges the very power of the Government to bring the
prosecution and secure the conviction.” Id. at 1180.
But it found the immunity defense did not survive the
defendants’ guilty plea, because it was not a facial
constitutional challenge, as in Class, and did not implicate subject matter jurisdiction. Id.
***
In short, the circuit split on whether facial constitutional challenges are “jurisdictional” is deep and
well-established, and continues to plague the lower
courts after Class, with impacts beyond the guilty
plea context. This Court’s intervention is warranted.
II. The Tenth Circuit’s Rule 12 Analysis Is
Wrong.
The Tenth Circuit is on the wrong side of the split
on the question presented. A facial constitutional
challenge to a criminal statute of conviction does not
25
implicate a federal court’s subject matter jurisdiction.
That is why courts are not required to address sua
sponte constitutional challenges not raised by the parties. Pet. App. 118a (quoting Baucum, 80 F.3d at 541).
But a facial constitutional challenge is nonetheless
“jurisdictional” for purposes of Rule 12 because it goes
to the government’s power to hale a defendant into
court and the court’s power to enter a judgment of conviction. 7
1. As Judge Friendly once said, “the legal lexicon
knows no word more chameleon-like than ‘jurisdiction.’” Sabella, 272 F.2d at 209; see also Steel Co., 523
U.S. at 90 (“Jurisdiction … is a word of many, too
many, meanings.”). Even “[t]his Court … has sometimes been profligate in its use of the term.” Arbaugh
v. Y&H Corp., 546 U.S. 500, 510 (2006). As Justice
Scalia acknowledged in Steel Co., “it is commonplace
for the term [jurisdiction] to be used” to mean something other than subject matter jurisdiction. 523 U.S.
at 90 (collecting examples); see also Prou v. United
7 Given the widespread semantic confusion regarding the
meaning of “jurisdiction,” Petitioners in their briefing below did
sometimes use the phrase “subject matter jurisdiction” to describe Rule 12(b)(2)’s reach. But the argument advanced was the
position adopted in the Sixth, Seventh, Ninth, and Eleventh Circuits: That a facial constitutional challenge is jurisdictional because it implicates the government’s “authority to hale the
defendant into court.” Phillips, 645 F.3d at 862; cf. CA10 Reply
at 39 (“Even though a court proceeds with jurisdiction to decide
the constitutional issue, if the VICAR position clause was found
to be unconstitutional, the district court would ultimately lose
jurisdiction over the underlying acts.”). The Tenth Circuit clearly
understood this to be Petitioners’ argument, as it identified the
split at issue and ultimately sided with the First, Second, and
D.C. Circuits.
26
States, 199 F.3d 37, 45 (1st Cir. 1999) (discussing
“[t]he unfortunate penchant of judges and legislators
to use the term ‘jurisdiction’ to describe the … court’s
authority to issue a specific type of remedy,” rather
than “the threshold requirements of subject-matter
and personal jurisdiction”).
“[I]n recent decisions,” this Court has endeavored
to use more precise language to distinguish issues implicating subject matter jurisdiction from issues that
do not. Arbaugh, 546 U.S. at 510. But an enormous
body of law predates those efforts. Thus, the question
presented is not about “what the term [jurisdiction]
means today” in its technical sense. United States v.
Cotton, 535 U.S. 625, 625 (2002). It is what the term
“jurisdiction” means in criminal procedure, particularly in Rule 12(b)(2). See United States v. Swiss Am.
Bank, Ltd., 191 F.3d 30, 40 (1st Cir. 1999) (the meaning of “[t]he word ‘jurisdiction’” must be evaluated
“depending on the context in which it is used”).
2. The original Rule 12(b), enacted in 1944, provided as follows:
Defenses and objections based on defects in
the institution of the prosecution or in the
indictment … other than that it fails to show
jurisdiction in the court or to charge an offense may be raised only by motion before
trial…. Failure to present any such defense
or objection … constitutes a waiver thereof,
but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or
the failure of the indictment … to charge an
27
offense shall be noticed by the court at any
time during the pendency of the proceeding.
The 1944 Advisory Committee notes explained
that Rule 12(b)(2) “classif[ied]” motions “into two
groups”: “In one group are defenses and objections
which must be raised by motion, failure to do so constituting a waiver. In the other group are defenses
and objections which at the defendant’s option may be
raised by motion, failure to do so, however, not constituting a waiver.” Fed. R. Crim. P. 12(b) advisory committee’s note to 1944 rules. The Committee gave
examples of what fell in the latter group of motions
that could be raised at any time: “such matters as former jeopardy, former conviction, former acquittal,
statute of limitations, immunity, lack of jurisdiction,
failure of indictment or information to state an offense, etc.” Id.
The inclusion of “former jeopardy,” “former conviction,” and “former acquittals” in the Committee
notes as arguments that could be raised at any time
under the Rule is particularly instructive. The Double
Jeopardy Clause goes “to the very power of the State
to bring the defendant into court to answer the charge
brought against him.” Blackledge v. Perry, 417 U.S.
21, 30 (1974). It provides that a defendant may “not …
be haled into court at all” in certain circumstances. Id.
A successive prosecution after “former jeopardy” in violation of the Double Jeopardy Clause is therefore not
a “failure of the indictment … to charge an offense”;
the constitutional problem has nothing to do with the
28
indictment’s contents. See infra at 32. 8 So jeopardy
must have been a “jurisdictional” argument in the
1944 Rule 12(b) framework.
Thus, in 1944, Rule 12(b) used the term “jurisdiction” in the sense of “a court’s statutory or constitutional authority to hale the defendant into court.”
Phillips, 645 F.3d at 862. It was not limited to the
court’s subject matter jurisdiction, as the Tenth Circuit wrongly concluded below. And this use of the
term was not aberrational, but was instead consistent
with its historical use in the criminal context. E.g., Ex
parte Yarbrough, 110 U.S. 651, 654 (1884) (observing,
when considering “whether [a] law of congress … is
warranted by the constitution,” that “[i]f the law
which defines the offense and prescribes its punishment is void, the court was without jurisdiction, and
the prisoners must be discharged.” (emphasis added)).
For almost seventy years, the substance of Rule
12 remained the same (although the language was rephrased and reordered). See, e.g., Fed. R. Crim. P.
12(b) advisory committee’s note to 2002 amendments
(observing “[n]o change in practice is intended”). In
2014, however, the Rule was amended, as relevant
8 A double jeopardy argument involving concurrent prosecution is different. An indictment is multiplicitous if it charges the
same offense in more than one count. Fed. R. Crim. P.
12(b)(3)(B)(ii). Technically, multiplicity implicates the Double
Jeopardy Clause because a defendant is charged twice for the
same offense, but the Rule and courts treat it as a defect in the
indictment rather than the kind of categorical bar to prosecution
that arises with successive prosecution after “former jeopardy.”
E.g., United States v. Anderson, 783 F.3d 727, 740 (8th Cir.
2015); Fed. R. Crim. P. 12(b)(3)(B)(ii).
29
here, “to remove language that allowed the court at
any time … to hear a claim that the ‘indictment …
fails … to state an offense’” in light of this Court’s decision in Cotton, 535 U.S. at 629-31, which overruled
Ex parte Bain, 121 U.S. 1 (1887). See Fed. R. Crim. P.
12(b) advisory committee’s note to 2014 amendments.
Thus, in the modern version of the Rule, “failure to
state an offense” is an argument going to “a defect in
the indictment” that must be raised pretrial. Fed. R.
Crim. P. 12(b)(3)(B)(v).
The 2014 amendments to Rule 12 did not, however, revise Rule 12(b)’s “lack of jurisdiction” prong.
Thus, today as in 1944, the word “jurisdiction” in Rule
12(b) is best read to refer not to the technical concept
of subject matter jurisdiction, but instead more
broadly to the government’s authority to prosecute a
defendant and hale the defendant into court.
3. A contrary construction of “jurisdiction” in the
Rule 12 context would largely deprive the rule of
meaning.
18 U.S.C. § 3231 grants “[t]he district courts of
the United States … original jurisdiction, exclusive of
the courts of the States, of all offenses against the
laws of the United States.” As the D.C. Circuit explained, echoed by the Tenth Circuit here, a federal
court “acts within its subject matter jurisdiction pursuant to § 3231” when it “exercises its power under a
presumptively valid federal [criminal] statute.” Baucum, 80 F.3d at 540. In other words, federal courts
generally have subject matter jurisdiction over federal criminal prosecutions so long as the government
“alleg[es] that the defendant violated a federal
30
criminal statute.” Yousef, 750 F.3d at 259. Under that
theory, it is hard to hypothesize plausible challenges
to subject matter jurisdiction in a federal criminal
case. Cf. Hugi v. United States, 164 F.3d 378, 380 (7th
Cir. 1999) (Easterbrook, J.) (“Subject-matter jurisdiction in every federal criminal prosecution comes from
18 U.S.C. § 3231, and …. [t]hat’s the beginning and
the end of the ‘jurisdictional’ inquiry.”).
There are, however, many constraints on the government’s “authority to hale the defendant into
court.” Phillips, 645 F.3d at 862. For example, “double
jeopardy bars additional punishment and successive
prosecution,” United States v. Dixon, 509 U.S. 688,
696 (1993), and “the presumption against extraterritoriality bars the government from” applying U.S.
criminal statutes abroad, United States v. Hoskins,
902 F.3d 69, 97 (2d Cir. 2018). But none of those implicate subject matter jurisdiction as that phrase is
used in Baucum. Indeed, the government has argued,
and the Second Circuit agreed, that even foreign sovereign immunity does not deprive a court of subject
matter jurisdiction over a federal prosecution, in light
of “the comprehensive scope of Article III courts’ jurisdiction over ‘all’ federal criminal offenses” under 18
U.S.C. § 3231. Br. for the United States at 13, Turkiye
Halk Bankasi A.S. v. United States, No. 21-1450 (U.S.
Dec. 14, 2022); see also United States v. Turkiye Halk
Bankasi A.S., 16 F.4th 336, 347 (2d Cir. 2021), cert.
granted, No. 21-1450 (foreign sovereign immunity is
not a question of subject matter jurisdiction).
If the reach of Rule 12(b)(2) is limited to challenges to subject matter jurisdiction, the government’s position in Turkiye Halk Bankasi illustrates
31
that the universe of challenges to subject matter jurisdiction in a criminal case would be rendered so
small as to make the Rule all but meaningless. Federal district courts would lack subject matter jurisdiction under § 3231 to adjudicate a federal criminal
prosecution alleging on its face a violation of State
law, but it is exceedingly unlikely the government
would attempt to bring such a prosecution. Such a
fanciful scenario cannot be the sole reach of Rule
12(b)(2).
4. The Tenth Circuit’s decision was wrong in another respect, too. Even if a facial constitutional challenge is not “jurisdictional” within the meaning of
Rule 12(b)(2), it is not necessarily “a defect in the indictment” under Rule 12(b)(3), and is therefore not
waived even if not raised in a pretrial motion. Cf. Pet.
App. 119a. Indeed, the narrower the construction
given to the term “jurisdiction” in Rule 12(b)(2), the
more challenges cannot be plausibly characterized as
challenging either jurisdiction or a defective indictment.
As discussed above, Rule 12(b)(2) allows “[a] motion that the court lacks jurisdiction [to] be made at
any time while the case is pending.” But the Rule does
not require that all other motions must be raised pretrial. To the contrary, it provides a specific enumeration of the “defenses, objections, and requests” that
“must be raised by pretrial motion.” Fed. R. Crim. P.
12(b)(3). As noted above, the two broad categories of
such motions are those alleging “a defect in instituting the prosecution” and those alleging “a defect in the
indictment or information.” Fed. R. Crim. P.
12(b)(3)(A), (B).
32
At issue here is the category of defects in the indictment. Pet. App. 119a. Petitioners’ argument illustrates why facial constitutional challenges to criminal
statutes do not allege defects in the indictment under
Rule 12(b)(3). They argued below that Congress
lacked authority under the Commerce Clause to enact
the position clause of VICAR. Pet. App. 114a. The alleged “failing” or “shortcoming,” see Defect, Oxford
English Dictionary, https://tinyurl.com/4uycmp7r,
lies not with the prosecutor’s charging instrument,
but with Congress’s statute—or rather, Congress’s
lack of power to regulate the conduct proscribed by
statute. Unlike the (admittedly nonexhaustive) examples of defects in an indictment listed in Rule
12(b)(3)(B)—duplicity, multiplicity, lack of specificity,
improper joinder, and failure to state an offense—
there is nothing the prosecutor can do to salvage the
prosecution. No technical amendment to the charging
instrument will cure the problem: Congress’s lack of
authority to enact the position clause.
In sum, it would severely distort language and
grammar to say that the “defect” here is in the indictment. And if Petitioners’ facial constitutional challenge is not a defect in the indictment, Fed. R. Crim.
P. 12(b)(3), then it is not waived under Rule 12(c)(3)
by failure to file a pretrial motion, whether or not the
issue is jurisdictional.
III. This Case Is A Good Vehicle For Review.
Two factors make this case an ideal vehicle to review the question presented.
33
First, Petitioners’ facial constitutional challenge,
although not raised in a pretrial motion, was raised to
the district court in a post-trial motion. Supra at 6-7;
Pet. App. 113a, 182a n.10, 260a. It is thus unlike
other (more common) cases where the defendant
never presses an argument in the district court at all
and then seeks to raise it for the first time on appeal—
which adds a complicating forfeiture overlay to the issue. E.g., Ríos-Rivera, 913 F.3d at 42. Because there
is no forfeiture problem, this case cleanly presents the
Rule 12 question for review, and thus provides an
ideal opportunity to address the meaning of the word
“jurisdiction” in this criminal procedure context.
Second, the Tenth Circuit did not reach the merits
of Petitioners’ facial constitutional challenge. To the
contrary, circuit precedent holds that the Tenth Circuit cannot review arguments not timely raised under
Rule 12(b)(3) at all—not even under the plain-error
standard. Bowline, 917 F.3d at 1237-38. 9 There is
thus no alternative holding that would preclude this
Court’s review of the question presented.
9 As Bowline acknowledges, there is a separate circuit split
on this question. 917 F.3d at 1236-37 (collecting cases).
34
CONCLUSION
This Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
Ryan J. Villa
E. Joshua Rosenkranz
THE LAW OFFICE OF
Counsel of Record
Thomas M. Bondy
RYAN J. VILLA
5501 Eagle Rock Ave. NE Alyssa Barnard-Yanni
Suite C2
Emily W. Villano
Albuquerque, NM 87113 ORRICK, HERRINGTON &
SUTCLIFFE LLP
Counsel for
51 West 52nd Street
Carlos Herrera
New York, NY 10019
(212) 506-5000
Josh Lee
jrosenkranz@orrick.com
OFFICE OF THE FEDERAL
PUBLIC DEFENDER
Counsel for
DISTRICTS OF COLORADO Petitioners
AND WYOMING
633 17th Street
Theresa M. Duncan
Suite 1000
DUNCAN EARNEST LLC
Denver, CO 80202
222 E Marcy St
Suite 1
Counsel for
Santa Fe, NM 87501
Daniel Sanchez
Counsel for
Anthony Ray Baca
February 24, 2023
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.