Amicus Curiae Brief — Johnson v. United States

Supreme Court, U.S

) FIER D

PEC o 17) / : DEC 2 1999

No. 99-5153

CLERK

In The

Supreme Court of the United States

.

CORNELL JOHNSON,

Pelitioner,

UNITED STATES OF AMERICA,

Respondent.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

+

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AND THE ASSOCIATION OF FEDERAL DEFENDERS

IN SUPPORT OF PETITIONER

S

Epwarp M. CHIKOFSKY

Counsel of Record

301 East 87th Street

New York NY 10128

(212) 289-1062

BARBARA E. BERGMAN

UNM School of Law

1117 Stanford, N.E.

Albuquerque NM 87131

(505) 277-3304

Counsel for Amici

QUESTION PRESENTED

Whether the imposition of a renewed term of

supervised release following revocation of an earlier term of

such release violates the Ex Post Facto Clause of the

Constitution (Art. I, §9, Cl. 3) where the statute in effect at

the time of petitioner’s original offense did not provide for

such a renewed term.

(I)

nie

-

TABLE OF CONTENTS

The imposition of a renewed term of super-

vised release after revocation violates the

ex post facto clause where the statute in

effect at the time of the original criminal

offense did not provide for such a renewal

TABLE OF AUTHORITIES

Cases

Calder v. Bull, 3 U.S. (Dall.) 386 (1798) ............

Calif, Dept. of Corrections v. Morales,

IED ditt ans nindnadenenneseeveooonce

Collins v. Youngblood, 497 U.S. 37 (1990) .........

Dobbert v. Florida, 432 U.S. 282 (1977) ............

Greenfield v. Scafati, 277 F Supp. 644 (D. Mass. 1967),

aff'd mem., 390 U.S. 713 (1968) .........cccceeeeeee

(111)

IV

Hicks v. Miranda, 422 U.S. 332 (1975) .......cccceeeeeees

Landgraf v. USI Film Products, 511 U.S. 244 (1994)

Lindsay v. Washington, 301 U.S. 397 (1937) .............

Lynce v. Mathis, 519 U.S. 433 (1997) ............2...2005-

Miller v. Florida, 482 U.S. 423 (1987) ..............2.04.

United States v. Collins, 118 F.3d 1394

PUI ik ch ele are eh

United States v. Dozier, 119 F.3d 239 (3d Cir. 1997)

United States v. Lominac, 144 F.3d 308

| eee

United States v. Meeks, 25 F.3d 1117 (2d Cir. 1994)

United States v. Paskow, 11 F.3d 873 (9" Cir. 1993)

Weaver v. Graham, 450 U.S. 24 (1981) ...........0.000

Miscellaneous

Krent, The Puzzling Boundary Between Criminal

And Civil Lawmaking, 84 Geo. L.J. 2143 (1996)

Zenga, Note, Retroactive Law Or Punishment

For A New Offense? — The Ex Post Facto

Implications Of Amending The Statutory

Provisions Governing Violations Of Super-

Vised Release, 19 W. New Eng. L. Rev. 499 (1997)

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS AND THE ASSOCIATION OF FEDERAL

DEFENDERS IN SUPPORT OF PETITIONER

INTEREST OF AMICI

The National Association of Criminal Defense

Lawyers is a District of Columbia non-profit corporation

with a membership of more than 10,000 attorneys

nationwide — along with 80 state and local affiliate

organizations numbering 28,000 members in fifty states.

NACDL was founded in 1958 to promote study and research

in the field of criminal law and procedure, to disseminate and

advance knowledge of the law in the area of criminal justice

and practice, and to encourage the integrity, independence

and expertise of defense lawyers in criminal cases in the

state and federal courts. Foremost among NACDL’s

objectives is to promote the proper administration of justice.

It has appeared hefore this Court as amicus curiae on

numerous occasions. See, e.g., Jones v. United States, 119

S.Ct. 1215 (1999).

The Association of Federal Defenders was formed in

1995 to enhance the representation provided under the

Criminal Justice Act (18 U.S.C. §3006A) and the Sixth

Amendment to the Constitution of the United States. It is a

non-profit volunteer organization whose membership

includes attorneys and support staff of Federal Defender

offices nationwide. One of AFD’s missions is to file amicus

curiae briefs to ensure that the position of indigent

defendants in the criminal justice system is properly

represented.

' Both parties have consented to the appearance of NACDL and AFD

as amicus curiae in this matter. No counsel for any party has authored

this brief in whole or in part, and no person or entity, other than amici,

has made a monetary contribution to the preparation or submission of

this brief. Sup. Ct. Rule 37.6.

STATEMENT OF THE CASE

On March 8, 1994, petitioner Cornell Johnson was

convicted upon his guilty plea to one count of conspiring to

defraud, produce, use and traffic in a counterfeit access

device, in violation of 18 U.S.C. §1029(b)(2). This offense

is classified as a Class D felony under 18 U.S.C.

§3559(a)(4). Petitioner was sentenced to 25 months’

imprisonment, to be followed by three years’ supervised

release. Pet. App. la.

After his release from imprisonment and while on

supervised release, petitioner left the judicial district without

permission and committed various state-law offenses in

Virginia. The district court revoked petitioner’s supervised

release and ordered him reincarcerated for 18 months, to be

followed by a renewed term of 12 months’ supervised

release. /d.

At the time of petitioner’s original offense, violations

of supervised release were governed by 18 U.S.C. §3583(e),

which provided that, upon an offender’s violation of

supervised release, the district court was authorized to

“revoke a term of supervised release, and require the person

to serve in prison all or part of the term of supervised release

without credit for time previously served on post-release

supervision.” Section 3583(e)(3).”

Effective September 13, 1994 — after petitioner

committed the underlying offenses for which he was

2

The courts of appeals reached conflicting views as to whether the

Statute authorized a district court to order an offender who violated

supervised release to serve a combined term of reimprisonment and

renewed supervised release. Nine of elever circuits determined that the

district court was limited to imposing only a new term of

imprisonment. See cases collected at Cert. Opp. 3 & n.2. As noted

infra, this statutory ambiguity was corrected by the subsequent enactment

of §3583(h).

convicted, but before he violated the terms of his supervised

release -— Congress enacted 18 U.S.C. §3583(h).°

Subsection (h) made clear that, when a defendant’s term of

supervised release is revoked and he is ordered to serve a

term of reimprisonment, the district court may now also

impose a renewed term of supervised release after the

completion of reimprisonment. For these purposes, the

defendant is not entitled to any credit for the time spent on

the original supervised release term before it was revoked.

18 U.S.C. §3583(e)(3) and (h).

The court of appeals affirmed the revocation of

petitioner’s supervised release, rejecting his argument that

the application of §3583(h) to his case violated the Ex Post

Facto Clause of the Constitution. Pet. App. la-2a. The

court nonetheless recognized that its decision was directly

contrary to the decisions of four other courts of appeals

which all concluded that the application of §3583(h) to

defendants whose underlying offenses were committed prior

to enactment of the statute violated the Ex Post Facto

Clause. /d., citing United States v. Lominac, 144 F.3d 308

(4" Cir. 1998); United States v. Dozier, 119 F.3d 239 (3d

Cir. 1997); United States v. Collins, 118 F.3d 1394 (9" Cir.

1997); and United States v. Meeks, 25 F.3d 1117 (2d Cir.

1994).

SUMMARY OF ARGUMENT

The constitutional prohibition on ex post facto laws

seeks to curb the enactment and enforcement of arbitrary

legislation and to assure that individuals have fair warning of

the potential legal consequences of their conduct in advance.

To constitute an ex post facto law, the provision in question,

first, must change the legal consequences of acts completed

> See Violent Crime Control and Law Enforcement Act of 1994, Pub.

L. No. 103-322, 108 Stat. 1796, 2017 (1994).

before its effective date and, second, must disadvantage the

offender affected by it.

In this case, the statutory provision in effect at the

time of petitioner’s original crime in 1993 provided that

revocation of supervised release authorized reimprisonment

for up to 2 years but without any subsequent renewed

supervised release. After petitioner's conviction, but before

his violation of supervised release, Congress enacted a new

statute providing for renewed supervised release in addition

to reimprisonment for violations of supervised release.

Petitioner’s resentencing to an aggregate total of

thirty months’ combined _reimprisonment/renewed

supervised release exceeded by six months the length of the

two years’ reimprisonment that was permissible under the

statute in effect at the time of petitioner’s underlying offense.

Supervised release is part of the original sentence, much like

parole or probation, and, as such, constitutes as much an

integral part of the punishment as actual incarceration. Since

the aggregate penalty imposed under the amended statute

exceeded the maximum penalty permissible under the statute

in effect at the time of the underlying offense, the penalty

imposed on resentencing violated the Ex Post Facto Clause

of the Constitution.

ARGUMENT

THE IMPOSITION OF A RENEWED TERM OF

SUPERVISED RELEASE AFTER’ REVO-

CATION VIOLATES THE EX POST FACTO

CLAUSE WHERE THE STATUTE IN EFFECT

AT THE TIME OF THE ORIGINAL

CRIMINAL OFFENSE DID NOT PROVIDE

FOR SUCH A RENEWAL

The Constitution prohibits Congress from passing ex

post facto laws in the criminal context. U.S. Const., Art. I,

§9, Cl. 3; see also id., Art. I, §10, Cl. 1 (“No State shall ...

pass any ... ex post facto Law”). The prohibition against ex

post facto laws embodies two principle concerns. First, it

helps to prevent legislative abuses by curbing the

“enact[ment of] arbitrary or vindictive legislation.” Miller v.

Florida, 482 U.S. 423, 429 (1987); Dobbert v. Florida, 432

U.S. 282, 293 (1977); Calder v. Bull, 3 U.S. (Dall.) 386, 389

(1798); see also Landgraf v. USI Film Products, 511 U.S.

244, 266-67 (1994). Second, it helps “to assure that

legislative Acts give fair warning of their effect and permit

individuals to rely on their meaning until explicitly

changed.” Weaver v. Graham, 450 U.S. 24, 28-29 (1981);

Miller, 482 U.S. at 430.*

In Miller, this Court articulated a two-pronged test

for determining when application of a statute violates the

constitutional prohibition. Before a statute may be said to be

an ex post facto law, "first, the law 'must be retrospective,

that is, it must apply to events occurring before its

enactment,’ and second ‘it must disadvantage the offender

* — See also Harold J. Krent, The Puzzling Boundary Between Criminal

And Civil Retroactive Lawmaking, 84 Geo. L.J. 2143, 2173 n.163

(1996\(“Drawing the line to prevent retroactive application of any law

imposing greater obstacles to an inmate’s early release from prison

reflects a sensible prophylactic means to prevent vindictive increases of

punishment”).

affected by it.” Miller, 482 U.s. at 430 (quoting Weaver,

450 U.S. at 29).

With respect to retroactivity, “[t]he critical question

is whether the law changes the legal consequences of acts

completed before its effective date.” Weaver, 450 U.S. at 31.

The “events” and completed “acts” referred to in Miller and

Weaver are the defendant’s underlying criminal offenses,

whether or not a plea of guilty or a conviction occurred after

the effective date of the new law. Weaver, 450 U.S. at 30;

see also Lynce v. Mathis, 519 U.S. 433, 441 (1997);

California Dept. of Corrections v. Morales, 514 U.S. 499,

504 (1995); Collins v. Youngblood, 497 U.S. 37, 43, 50

(1990).°

Moreover, “one is not barred from challenging a

change in the penal code on ex post facto grounds simply

because the sentence imposed under the new law was not

more onerous than that which he might have received under

the old.” Dobbert, 432 U.S. 432 U.S. at 300; Miller, 482

U.S. at 432. Because “the Ex Post Facto Clause looks to the

standard of punishment prescribed by the statute, rather than

to the sentence actually imposed ... an increase in the

possible penalty is ex post facto regardless of the length of

the sentence actually imposed ....” Lindsay v. Washington,

301 U.S. 397, 401 (1937); see also Morales, 514 U.S. at 510

n.6.

In the instant case, of course, the prejudice to

petitioner was not merely hypothetical. Under the statutory

provisions governing the revocation of supervised release in

effect at the time of his original offense in 1993 --

§3£533(e)(3) — the district court was authorized to impose two

years’ reimprisonment following revocation because

petitioner’s underlying offense was a Class D felony. See

> In the instant case, petitioner’s original crime, plea and sentence all

predated the effective date of newly-enacted §3583(h) — September 13,

1994. Only the revocation violations occurred after that date.

Cert. Opp. 8-9.° Here, petitioner was resentenced to a term

of 18 months’ reincarceration to be followed by a twelve-

month period of renewed supervised release. In other words,

petitioner was resentenced to a combined “package” totalling

thirty months of reimprisonment/renewed supervised release

where he could have been sentenced to a total of only 24

months’ imprisonment simpliciter under the statutory

provision in effect at the time he committed his underlying

criminal offense.

Statutes that alter the consequences of violations of

parole, probation or supervised release, as applied to

prisoners or parolees whose underlying offenses occurred

prior to passage of the statutes, have consistently been held

to violate the Ex Post Facto Clause because the increased

burden imposed operates to enhance the penalty for the

underlying offense. See Ryan M. Zenga, Note, Retroactive

Law Or Punishment For A New Offense? — The Ex Post

Facto Implications Of Amending The Statutory Provisions

Governing Violations Of Supervised Release, 19 W. New

Eng. L. Rev. 499 (1997). See also Meeks, 25 F.3d at 1120

(discussing Greenfield v. Scafati, 277 F.Supp. 644, 645-46

(D. Mass. 1967)(three-judge court), affd mem., 390 U.S. 713

(1968)’).

Supervised release, like parole, is an integral part of

the punishment for the underlying offense:

Under each, a defendant serves a portion of a

sentence in prison and a portion under supervision

° — Section 3583(h) expanded revocation penalties for Class D felonies

beyond the two years’ reimprisonment provided in §3583(e\(3) by

explicitly allowing the district court to tack on an additional term of one

year’s renewed supervised release. See Dozier, 119 F.3d at 241-42.

7 ~ This Court’s summary affirmance in Greenfield constitutes an

affirmance on the merits. Meeks, 25 F.3d at 1120 (citing Hicks v.

Miranda, 422 U.S. 332, 344 (1975)).

outside prison walls. If a defendant violates the

terms of his release, he may be incarcerated once

more under the terms of his original sentence. More

specifically, a defendant’s original sentence

determines the length of the term of parole

(indirectly) or supervised release (directly). It is also

the original sentence that establishes how long the

defendant may be required to serve following

revocation of both parole and supervised release.

United States v. Paskow, 11 F.3d 873, 881 cg" Cir. 1993);

see also id. at 883 (supervised release is “simply part of the

whole matrix of punishment which arises out of a

defendant’s original crimes”).

Sentencing petitioner pursuant to §3583(h) rather

than §3583(e) thus affected the resentencing to which he was

subject in at least two important respects. First, it allowed

imposition of a new term of supervised release, whereas

prior to §3583(h) petitioner would have been free of all

supervision following whatever reincarceration the district

cuurt imposed. Second, it allowed the court to impose a

“total package” of penalties stretching to 30 months — rather

than only 24 months — the maximum period of incarceration

authorized under §3583(e)(3). These effects of §3583(h)

thus “increase the penalty” to which petitioner is subject. As

the Third Circuit noted in precisely this context (Dozier, 119

F.3d at 242-43):

Supervised release is punishment; it is a deprivation

of some portion of one’s liberty imposed as a

punitive measure for a bad act. A defendant on

supervised release is subject to various terms and

conditions which rest~ct his freedom and make him

vulnerable to furthe punishment should he violate

them. Such subsequent punishment may again

include more imprisonment and more supervised

release. The length of the “total package”, therefore,

is the length of time the defendant suffers either a

total or substantial deprivation of his liberty. It is the

measure of the period to which he is subject to

government supervision. Increasing that length from

a maximum of 24 months to a maximum of 36

months clearly increases the penalty authorized upon

revocation of supervised release.

In Lynce v. Mathis, 519 U.S. at 443, this Court

reiterated its earlier holdings in Collins and Morales that

while “speculative and attenuated possibilities” of increasing

the measure of punishment do not implicate ex post facto

concerns, any increase in the “quantum of punishment” or

the length of the penalty by which a crime is punishable

runs afoul of the prohibition against ex post facto laws. See

also Lominac, 144 F.3d at 312-15.

In this case, prejudice to petitioner is neither

speculative nor attenuated. On revocation of his original

term of supervised release, he was resentenced to a “total

package” of reincarceration/renewed supervision that

exceeded by six months the total length of the revocation

penalty to which he was originally subject at the time of his

underlying crime, plea and original sentence. Accordingly,

he has made out an actionable violation of his rights under

the Ex Post Facto Clause of the Constitution. Lominac, 144

F.3d at 313-14.

10

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

EDWARD M. CHIKOFSKY

Counsel of Record

301 East 87" Street

New York NY 10128

(212) 289-1062

BARBARA E. BERGMAN

UNM School of Law

1117 Stanford N.E.

Albuquerque NM 97131

(505) 277-3304

December 1999