Reply Brief — Seldrick Carpenter, Petitioner v. United States

No. 24-5594

IN THE

Supreme Court of the United States

_____________________

SELDRICK CARPENTER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

_____________________

REPLY BRIEF IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI

_____________________

THOMAS W. PATTON

Federal Public Defender

MICHAEL WILL ROY

Assistant Federal Public Defender

Counsel of Record

OFFICE OF THE FEDERAL PUBLIC DEFENDER

300 W. Main Street

Urbana, Illinois 61801

Phone: (217) 373-0666

Email: michael_roy@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

I.

Historical documents show that the Framers would have understood

the jury right to apply to forfeitures of recognizance, a proceeding

similar to revocations of supervised release in form, function, and

purpose. In light of this historical record, should this Court’s holding in

United States v. Haymond, 139 S. Ct. 2369 (2019), be expanded to hold

that the Sixth Amendment, including the right to a trial by jury,

applies to all revocations of federal supervised release?

II.

Does Article III, Section 2, Clause 3 of the Constitution, which

guarantees that “all Crimes” shall be tried by jury, create an additional

jury right for revocation proceedings when revocation is based on an

allegation that the supervisee committed new crimes?

TABLE OF CONTENTS

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

TABLE OF CONTENTS................................................................................................ ii

TABLE OF AUTHORITIES CITED ............................................................................ iii

ARGUMENT .................................................................................................................. 1

I.

The government’s arguments about the merits of Carpenter’s

claims are not a reason to deny certiorari. ........................................ 1

A.

The Sixth Amendment provides a jury right to federal

supervisees at revocation. ........................................................ 2

B.

Article III of the Constitution creates a jury right, distinct

from the Sixth Amendment, which applies in this case. ........ 6

II.

This case is an excellent vehicle for this Court to address the

issue. .................................................................................................... 8

CONCLUSION ............................................................................................................ 10

ii

TABLE OF AUTHORITIES CITED

Cases

Brumme v. State, 39 Tex. 538 (1873) ........................................................................ 3, 4

Callan v. Wilson, 127 U.S. 540 (1888) .......................................................................... 6

Commonwealth v. Davies, 1 Binn. 97 (Penn. 1804) ...................................................... 4

Ex parte Milburn, 34 U.S. (9 Pet.) 704 (1835) .............................................................. 4

Ex Parte Quirin, 317 U.S. 1 (1942) ............................................................................... 7

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ..................................................................... 2

Morrissey v. Brewer, 408 U.S. 471 (1972) ..................................................................... 2

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) ................ 6

Patton v. United States, 281 U.S. 276 (1930)................................................................ 7

Respublica v. Cobbett, 3 U.S. 467 (Pa. 1798) ............................................................ 4, 5

Reyes v. United States, No. 24-5944 (filed Nov. 5, 2024) .............................................. 9

Sevier v. United States, No. 24-5679 (filed Sept. 27, 2024) .......................................... 9

Smith v. United States, 599 U.S. 236 (2023) ................................................................ 7

Stradford v. United States, No. 24-5943 (filed Nov. 6, 2024) ....................................... 9

United States v. Haymond, 588 U.S. 634 (2019) ................................................ passim

United States v. Lee, 795 F.3d 682 (7th Cir. 2015) ....................................................... 5

United States v. Peguero, 34 F.4th 143 (2d Cir. 2022) ................................................. 8

Williams v. Florida, 399 U.S. 78 (1970) ........................................................................ 7

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Statutes

18 U.S.C. § 3583(e)................................................................................................. 2, 3, 9

18 U.S.C. § 3583(k) .................................................................................................... 2, 3

Other Authorities

FED. R. CRIM. P. 32.1(b)(2) ............................................................................................. 5

Jacob Schuman, Revocation at the Founding,

122 Mich. L. Rev. 1381 (2024) ............................................................................... 4, 5

Kellen R. Funk & Sandra G. Mayson, Bail at the Founding,

137 Harv. L. Rev. 1816 (2024) ............................................................................... 4, 5

Paul Lermack, Peace Bonds and Criminal Justice in Colonial Philadelphia,

100 Pa. Mag. of Hist. & Biography 173 (1976) ......................................................... 5

Records of the Federal Convention of 1787 (M. Farrand ed. 1911) ............................. 7

U.S. Const. amend. VI ......................................................................................... passim

U.S. Const. Art. III .................................................................................................... 6, 7

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ARGUMENT

I.

The government’s arguments about the merits of Carpenter’s

claims are not a reason to deny certiorari.

This case represents an opportunity for course correction. As multiple

members of this Court have explained, the jury trial right is derived from “historical

practices that existed at the founding and soon afterward.” United States v.

Haymond, 588 U.S. 634, 676 (2019) (Alito, J. dissenting) (collecting cases). But the

Seventh Circuit did not reject Carpenter’s Sixth Amendment claim because it

disagreed with his historical arguments. Instead, the Seventh Circuit concluded

that it was bound by its own circuit precedent holding that revocations of

supervised release fall outside the Sixth Amendment. (App. 4a.) That precedent was

not rooted in historical analysis. And, as the Seventh Circuit recognized, its

precedent also conflicts with the plurality opinion in Haymond. (App 6a.).

This Court has never held that supervised-release revocations fall outside the

Sixth Amendment. This Court has not previously considered the question of

whether the Sixth Amendment applies to ordinary supervised-release revocations.

But the question needs resolution. And because lower courts like the Seventh

Circuit are failing to conduct the necessary historical analysis, this Court needs to

step in.

No surprise then that the government’s mains argument in opposition to

certiorari are an attack on the merits of Carpenter’s claims. The government’s

arguments are half-hearted, however, and they do not show that the legal issues

presented are so straightforward that certiorari is unnecessary. Carpenter

exhaustively addressed the problems with the government’s historical analysis in

the lower court briefing. But here is a brief overview of why the government’s

counterarguments fall short.

A.

The Sixth Amendment provides a jury right to federal

supervisees at revocation.

The government insists that revocations under 18 U.S.C. § 3583(e)(3) are not

“criminal prosecutions” within the meaning of the Sixth Amendment because a

revocation merely modifies an already imposed sentence. (Gov’t Br. at 12.) But the

government makes the same mistake as government counsel made in Haymond: It

assumes that supervised release is the same as parole or probation, and so it

imports the reasoning used in parole and probation decisions like Morrissey v.

Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973). Justice

Gorsuch explained in Haymond why that assumption is wrong. Haymond, 139 S.

Ct. at 2381. The creation of supervised release was a fundamental shift from a

balance-owed system (as in traditional parole and probation) to a no-balance

system. “[U]nlike parole, supervised release wasn’t introduced to replace a portion

of defendant’s prison term.” Id. at 2382.

The government is also wrong that Justice Gorsuch’s opinion in Haymond

somehow supports the government’s position. (Gov’t Br. at 13–14.) All the

government can accurately say is that Haymond’s holding was narrow. And to be

sure, the ultimate holding was narrow. This Court decided only the constitutionality

of 18 U.S.C. § 3583(k), not the constitutionality of revocations more broadly.

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Haymond, 139 S. Ct. at 2379–2380; id. at 2369 (Breyer, J., concurring). Justice

Gorsuch’s plurality opinion accordingly included some language noting the limited

nature of that holding. Id. at 2379–2380. Carpenter does not contest the narrowness

of Haymond’s holding, nor does he contend that Haymond’s holding as to § 3583(k)

bound the Seventh Circuit to conclude that revocations under § 3583(e) are also

unconstitutional.

But at the same time, Haymond did not shut the door on challenges like

Carpenter’s. This Court merely followed judicial best practices. When faced with a

narrow question, it decided only the narrow issue before it without addressing

broader constitutional concerns. Nonetheless, the reasoning of Justice Gorsuch’s

opinion points in a clear direction: it “lay[s] the groundwork for later decisions of

much broader scope.” Id. at 2386 (Alito, J., dissenting). The Haymond plurality

recognized for the first time that supervised release marked a clean break from

parole, and that the constitutional analysis that applied to parole and probation

revocations was no longer relevant. The potential effect of this reasoning is clear:

“the plurality opinion strongly suggest[s] that the Sixth Amendment right to a jury

trial applies to any supervised-release revocation proceeding.” Id. at 2387 (Alito, J.,

dissenting).

Also unpersuasive are the government’s arguments about the history of

recognizance forfeitures. As an initial matter, the government does not dispute that

recognizance forfeitures required juries. And for good reason: founding-era court

opinions cite juries. See, e.g., Brumme v. State, 39 Tex. 538, 543 (1873) (recognizing

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jury trial on recognizance forfeiture); Respublica v. Cobbett, 3 U.S. 467, 472–73 (Pa.

1798) (same); Commonwealth v. Davies, 1 Binn. 97, 99–100 (Penn. 1804) (same).

Nonetheless, the government argues that recognizances are a poor analogue for

supervised release for two main reasons. Neither is persuasive.

First, the government argues that founding-era courts used the “generalized

power” of recognizances in cases outside the criminal context. (Gov’t Br. at 16.) The

government’s argument misses the point. Although recognizances sometimes issued

for purposes other than postconviction supervision, 1 the government does not (and

cannot) dispute that founding-era courts also used them as a form of postconviction

community supervision. See Jacob Schuman, Revocation at the Founding, 122 Mich.

L. Rev. 1381, 1411–12 (2024) (collecting cases). Indeed, “[c]ertain features of the

peace bond bear a striking resemblance to the bureaucratized supervision” of

modern defendants. Kellen R. Funk & Sandra G. Mayson, Bail at the Founding, 137

Harv. L. Rev. 1816, 1848 n.183 (2024). And forfeiture of those postconviction

recognizances required a jury trial, just like any other recognizance forfeiture

proceeding. See, e.g., Brumme v. State, 39 Tex. 538, 543 (1873) (forfeiture jury when

recognizance taken as punishment for convicted offender).

Second, the government argues that, unlike supervised release, forfeitures of

recognizance were a civil matter akin to an action to recover a civil debt. (Gov’t Br.

at 16.) The government is right only insofar that the process was formally framed as

1 For example, recognizance was used as a form of pretrial bail. See Ex parte Milburn, 34

U.S. (9 Pet.) 704, 710 (1835).

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a debt. “When a recognizor violated a condition of their recognizance, the court

could forfeit their bond and require them to pay the promised sum.” Schuman, 122

Mich. L. Rev. at 1416. But judges could manipulate the process by requiring

impossible amounts that the violator could not afford to pay, allowing the judge to

jail the violator. Id. at 1416–17. The end result was the same as a supervision

revocation: a loss of liberty. Haymond, 139 S. Ct. at 2396 (Alito, J., dissenting).

Thus, early American courts recognized that recognizance of forfeiture could be “of a

criminal nature” in certain contexts. Cobbett, 3 U.S. at 475. See also Paul Lermack,

Peace Bonds and Criminal Justice in Colonial Philadelphia, 100 Pa. Mag. of Hist. &

Biography 173, 178 (1976) (recognizances were “denials of liberty” and “modern due

process concepts would require that a peace bond could not be imposed until after

the criminal trial”).

To emphasize the supposed civil nature of recognizances, the government

further argues that recognizances were enforced through a writ of scire facias.

(Gov’t Br. at 16.) The government’s point here is not clear. As the government

explains, scire facias was an order for the defendant to show cause why a penalty

should not be imposed. See Funk, 137 Harv. L. Rev. at 1831. That procedure is

remarkably similar to how supervision revocations operate today, in which the

supervisee is entitled to written notice of his alleged violations and given an

opportunity to respond. FED. R. CRIM. P. 32.1(b)(2); United States v. Lee, 795 F.3d

682, 686 (7th Cir. 2015). Modern courts do not immediately revoke supervision upon

mere allegation of a violation. The fact that founding-era court gave recognizors a

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similar opportunity to respond to allegations of breach only strengthens the two

systems’ similarities.

Carpenter does not need to show that recognizances were a “historical twin”

for supervised release, only that they were “a well-established and representative

historical analogue.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.

2111, 2133 (2022). Nothing in the government’s response suggests that Carpenter

will be unable to meet that bar if this Court grants certiorari. Although the

government nitpicks a couple minor differences, postconviction recognizances and

supervised release remain similar in form, function, and purpose.

B.

Article III of the Constitution creates a jury right, distinct from

the Sixth Amendment, which applies in this case.

The government is wrong when it says that this Court has never drawn a

distinction between the Sixth Amendment’s and Article III’s jury clauses. More than

a century ago, this Court rejected the notion that “the [sixth] amendment was

intended to supplant that part of the third article which relates to trial by jury.”

Callan v. Wilson, 127 U.S. 540, 549 (1888). Indeed, the Callan Court described the

same distinction between the jury clauses that Carpenter furthers in this case:

Article III provides a broad jury right whenever one is accused of a “crime,” with

that word “interpreted in the light of the principles which, at common law,

determined whether the accused, in a given class of cases, was entitled to be tried

by a jury.” Id at 549. But Article III only “implie[s] a trial in that mode”; it does not

preserve the individual procedural rules of how a jury trial should function. Id. The

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Sixth Amendment provides a separate “declaration of what those [procedural] rules

were” Id.

In other words, Article III says when a defendant gets a jury trial: when

accused of a “crime,” or any time “the general government can be a party against a

citizen.” Records of the Federal Convention of 1787, p. 163 (M. Farrand ed. 1911)

(James Wilson in the Pennsylvania Convention). The Sixth Amendment dictates

additional features of a jury trial, such as the vicinage requirement—but instead of

all “crimes,” it applies only to a smaller class of “criminal prosecutions”. See Ex

Parte Quirin, 317 U.S. 1, 39 (1942) (the Sixth Amendment protects “certain

incidents of trial by jury” but does not modify Article III’s declaration of when a

defendant has “the right to a jury trial”). Related but distinct protections.

The government is correct that some stray sources suggest that Article III’s

and the Sixth Amendment’s jury clauses mean the same thing. Most significantly,

at the height of the Lochner era, this Court briefly held that both clauses should be

construed as coterminous. See Patton v. United States, 281 U.S. 276, 298 (1930),

abrogated by Williams v. Florida, 399 U.S. 78 (1970). But this Court later

backtracked from this position, and modern precedent considers the two clauses as

distinct. See Williams, 399 U.S. at 92; Smith v. United States, 599 U.S. 236, 248

(2023). And as explained in Carpenter’s petition, founding-era sources corroborate

the modern precedent, not the views of the Lochner Court.

7

At this stage, Carpenter will not belabor the merits of his arguments. He

wishes to emphasize only that, even if reasonable jurists could agree with the

government’s points, Carpenter has strong authority behind his position. The

questions presented are not so weak as to render resolution of them unnecessary.

And because lower courts are failing to grapple with the historical record, this Court

should step in.

II.

This case is an excellent vehicle for this Court to address the

issue.

Carpenter’s revocation hearing looked a lot like a criminal trial. He was

accused of committing arson. He denied the accusation. Both sides put in evidence.

When the government proved that Carpenter committed the crime, the district

court put Carpenter in prison. To an outside observer, this revocation had all the

hallmarks of a criminal proceeding. See United States v. Peguero, 34 F.4th 143, 167

(2d Cir. 2022) (Underhill, D.J. dissenting.)

This procedural history is what makes his case a good vehicle to review the

questions raised. Because, although superficially similar to a trial, Carpenter’s

revocation lacked the procedural protections of a jury trial under the Constitution.

Key to the government’s ability to prove guilt was a lower burden of proof and the

use of hearsay evidence that would have been inadmissible in a jury trial. The

questions presented thus go to the heart of the district court’s finding of guilt.

The government notes that several pending petitions (unrelated to this case

or the companion case of Smith v. United States, 24-5608) raise similar Sixth

8

Amendment challenges to revocations of supervised release. (Gov’t Br. at 8.) But the

availability of these other petitions does not warrant against granting certiorari in

this case. Most significantly, the other petitions cited by the government are all

brought on plain-error review, and thus the petitioners in those cases concede that

they face “vehicle problem[s].” Stradford v. United States, No. 24-5943 (filed Nov. 6,

2024) at 7; Reyes v. United States, No. 24-5944 (filed Nov. 5, 2024) at 8; Sevier v.

United States, No. 24-5679 (filed Sept. 27, 2024) at 6. Neither this case nor Jason

Smith’s companion case face similar vehicle problems. Carpenter’s and Smith’s

cases are ideal bellwethers for this Court to assess the future of supervised-release

revocations post-Haymond.

The government also suggests that this Court should pass on the presented

issue for now so that other courts can have an opportunity to review the historical

evidence that was first presented in this case. (Gov’t Br. at 17.) But as explained in

Carpenter’s petition, the number of challenges to § 3583(e)’s constitutionality will

rapidly dwindle without this Court’s intervention. Like the Seventh Circuit,

virtually every circuit has “thirty years of contrary precedent” holding that

supervised-release revocations fall outside the Sixth Amendment. (App. 4a.)

Litigants are unlikely to risk the ire of judges by continuing to raise this claim after

it has already been soundly foreclosed by circuit law. Unless this Court signals that

the issue due for reconsideration, Sixth Amendment challenges to revocations of

supervised release will fade away.

9

CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Thomas W. Patton

Federal Public Defender

s/ Michael Will Roy

MICHAEL WILL ROY

Assistant Federal Public Defender

Counsel of Record

Office of the Federal Public Defender

300 W. Main Street

Urbana, Illinois 61801

Phone: (217) 373-0666

Email: michael_roy@fd.org

Counsel for Petitioner

January 2, 2025

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