United States Supreme Court: Criminal Law Cases in the October 2015 Term

Congressional research reportSep 27, 2016

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United States Supreme Court:

Criminal Law Cases in the October 2015 Term

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September 27, 2016

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United States Supreme Court: Criminal Law Cases in the October 2015 Term

Summary

The white collar crimes on the Supreme Court’s 2015 docket consist of three Hobbs Act cases and

one on computer fraud (Musacchio v. United States). The Hobbs Act outlaws robbery and

extortion when committed in a manner which “in any way or degree” obstructs interstate

commerce. One of the Hobbs Act cases before the Court (Taylor v. United States) involves the

robbery of suspected drug dealers. The second (Ocasio v. United States) consists of a kickback

conspiracy between traffic cops and body shop owners. The third (McDonnell v. United States)

involves a local drug manufacturer who showered a state governor and his wife with gifts in an

apparent attempt to use the governor’s office as a bully pulpit for one of his products.

The sex offense entries involve the sex offender registration obligations of an overseas resident

(Nichols v. United States) and construction of the recidivist mandatory minimum sentencing

provisions of federal law (Lockhart v. United States).

Perhaps spurred on by the result below, the Supreme Court held that stun guns used for selfdefense are not necessarily beyond the guarantees of the Second Amendment right to bear arms

(Caetano v. Massachusetts). The other firearms cases on the Court’s docket raise interpretative

issues under the Armed Career Criminal Act (Welch v. United States and Mathis v. United States)

and the firearm possession disqualification triggered by a domestic violence misdemeanor

(Voisine v. United States).

The trio of Fourth Amendment cases present questions on the exclusionary rule (Utah v. Strieff),

the warrant requirement for sobriety tests (Birchfield v. North Dakota), and qualified official

immunity in the face of use of excessive force allegations (Mullenix v. Luna).

The Court’s Sixth Amendment cases this term offer a variety of issues ranging from ineffective

assistance of counsel (Maryland v. Kulbicki), to speedy trial (Betterman v. Montana), to forfeiture

and the right to counsel of choice (Luis v. United States), to the use of uncounseled convictions as

predicate offenses (United States v. Bryant).

Capital punishment cases represent the lion’s share of the Court’s sentencing cases this term.

However, the class also includes the matter of the retroactive application of the Miller v. Alabama

prohibition on a life without parole sentence for murder by a juvenile (Montgomery v. Louisiana)

and the harmless error standard in sentencing cases (United States v. Molina-Martinez).

The menu of the Court’s capital punishment cases offers cases concerning jury instructions (Carr

v. Kansas); jury selection (Foster v. Chatman); exclusive jury sentencing prerogatives (Hurst v.

Florida); Brady violations (Wearry v. Cain); insufficient capital jury instructions (Lynch v.

Arizona); appellate court judge recusals (Williams v. Pennsylvania); and the application of habeas

corpus standards (White v. Wheeler).

The Prisoner Reform Litigation Act, designed to curb frivolous inmate suits, generated two of the

cases on the Court’s 2015 docket—one on the act’s installment payment feature (Bruce v.

Samuels) and the other on the required exhaustion of administrative remedies (Ross v. Blake).

As noted throughout the course of this report, its text draws heavily from previously prepared,

individual legal sidebars.

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United States Supreme Court: Criminal Law Cases in the October 2015 Term

Contents

White Collar Crime ......................................................................................................................... 1

Hobbs Act Cases ....................................................................................................................... 1

Taylor v. United States ........................................................................................................ 1

Ocasio v. United States ....................................................................................................... 3

McDonnell v. United States ................................................................................................. 4

Computer Fraud ........................................................................................................................ 7

Musacchio v. United States ................................................................................................. 7

Sex Offenses .................................................................................................................................... 9

Lockhart v. United States .......................................................................................................... 9

Nichols v. United States ........................................................................................................... 10

Firearms ......................................................................................................................................... 12

Caetano v. Massachusetts ................................................................................................. 12

Voisine v. United States ..................................................................................................... 13

Armed Career Criminal Act .................................................................................................... 14

Welch v. United States ....................................................................................................... 14

Mathis v. United States ..................................................................................................... 16

Fourth Amendment ........................................................................................................................ 18

Utah v. Strieff .......................................................................................................................... 18

Birchfield v. North Dakota ...................................................................................................... 21

Mullenix v. Luna ...................................................................................................................... 23

Fifth Amendment ........................................................................................................................... 25

Puerto Rico v. Sanchez Valle ................................................................................................... 25

Sixth Amendment .......................................................................................................................... 28

Luis v. United States ................................................................................................................ 29

Betterman v. Montana ............................................................................................................. 30

United States v. Bryant ............................................................................................................ 32

Maryland v. Kulbicki ............................................................................................................... 34

Sentencing ..................................................................................................................................... 35

Montgomery v. Louisiana ........................................................................................................ 35

United States v. Molina-Martinez............................................................................................ 37

Capital Punishment ................................................................................................................. 40

Kansas v. Carr .................................................................................................................. 40

White v. Wheeler ............................................................................................................... 42

Wearry v. Cain................................................................................................................... 43

Lynch v. Arizona ................................................................................................................ 45

Hurst v. Florida................................................................................................................. 46

Foster v. Chatman ............................................................................................................. 48

Williams v. Pennsylvania................................................................................................... 50

Prisoners ........................................................................................................................................ 53

Bruce v. Samuels ..................................................................................................................... 53

Ross v. Blake............................................................................................................................ 54

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Contacts

Author Contact Information .......................................................................................................... 58

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United States Supreme Court: Criminal Law Cases in the October 2015 Term

White Collar Crime

The white collar crimes on the Supreme Court’s 2015 docket consist of three Hobbs Act cases and

one on computer fraud.

Hobbs Act Cases

The Hobbs Act outlaws robbery and extortion when committed in a manner which “in any way or

degree” obstructs interstate commerce.1 One of the cases before the Court, Taylor v. United

States, involved the robbery of suspected drug dealers.2 The second, Ocasio v. United States,

consisted of a kickback conspiracy between traffic cops and body shop owners.3 The third,

McDonnell v. United States, involved a local drug manufacturer who showered a state governor

and his wife with gifts in an apparent attempt to use the governor’s office as a bully pulpit for one

of his products.4

Taylor v. United States

Holding: “In order to obtain a conviction under the Hobbs Act for the robbery or attempted

robbery of a drug dealer, the Government need not show that the drugs that a defendant stole or

attempted to steal either traveled or were destined for transport across state lines. Rather, to

satisfy the Act’s commerce element, it is enough that a defendant knowingly stole or attempted to

steal drugs or drug proceeds, for, as a matter of law, the market for illegal drugs is commerce

over which the United States has jurisdiction. And it makes no difference ... that any actual or

threatened effect on commerce in a particular case is minimal.”5

The Court, in a 7-1 decision written by Justice Alito, made it clear that Taylor was more about

drugs than about the Hobbs Act: “Our holding today is limited to cases in which the defendant

targets drug dealers for the purpose of stealing drugs or drug proceeds. We do not resolve what

the government must prove to establish Hobbs Act robbery where some other type of business or

victim is targeted.”6

Taylor, the petitioner in the case, was a member of a gang of inept home invaders who sought to

rob drug dealers of their cash and drugs.7 The two robberies for which he was convicted netted

the group a total of $40 in cash, three cell phones, a marijuana cigarette, and some jewelry.8

Federal prosecutors charged Taylor under the Hobbs Act, which condemns anyone who “in any

way or degree obstructs, delays, or affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion.”9 Taylor sought to introduce evidence at his

trial that the victim of the robbery dealt only in marijuana grown in-state, but the U.S. District

18 U.S.C. 1951.

Taylor v. United States, No. 14, 6166, cert. granted, 136 S. Ct. 26 (2015).

Ocasio v. United States, No. 14-361, cert. granted, 135 S. Ct. 1491 (2015).

McDonnell v. United States, No. 15-474, cert. granted, 136 S. Ct. 891 (2016).

Taylor v. United States, 136 S. Ct. 2074, 2081 (2016).

Id. at 2082.

See United States v. Taylor, 754 F.3d 217, 220-21 (4th Cir. 2014).

Id.

18 U.S.C. §1951(a).

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Court for the Western District of Virginia barred admission, holding that drug dealing affects

interstate commerce as a matter of law.10 Taylor was convicted and appealed.11

On appeal, he questioned whether the government had satisfied the Hobbs Act’s commerce

element, but he faced two obstacles. Lower federal appellate courts had generally construed the

“in any way or degree” language to mean that Congress intended to exercise the full extent of its

Commerce Clause powers and that the prosecution need establish no more than a de minimis

impact on interstate commerce. Second, the Supreme Court’s Raich decision seemed to reenforce

the government’s position. The Raich opinion declared that “Congress can regulate purely

intrastate activity that is not itself commercial ..., if it concludes that failure to regulate that class

of activity would undercut the regulation of the interstate market in that commodity.”

The Fourth Circuit affirmed Taylor’s conviction. It concluded that “it was entirely reasonable for

the jury to conclude that the robberies would have the effect of depleting the assets of an entity

engaged in interstate commerce.... Because drug dealing in the aggregate necessarily affects

interstate commerce, the government was simply required to prove that Taylor depleted or

attempted to deplete the assets of such an operation.”12

The Second and Seventh Circuits had expressed a somewhat different understanding. The Second

Circuit had declared that “[p]roof of drug trafficking is no longer regarded as automatically

affecting interstate commerce; instead, even in drug cases, the jury must find such an effect as

part of its verdict.”13 The Seventh Circuit indicated that proof of an individualized impact is not

necessary for prosecution under the federal drug law, but is required for Hobbs Act

prosecutions.14 The Supreme Court explicitly rejected the arguments of the two circuits.15

The resolution of the Taylor case, the Court said, “require[d] no more than ... [to] graft [its]

holding in Raich onto the commerce element of the Hobbs Act.” In Raich, the Court had

recognized “Congress’ power to regulate purely local activities that are part of an economic class

of activities that have a substantial effect on interstate commerce.”16 It also had acknowledged

there that “[t]he production, possession, and distribution of controlled substances constitute a

class of activities that in the aggregate substantially affect interstate commerce.”17 In the eyes of

the Court in Taylor, “the market for marijuana, including its intrastate aspects, is ‘commerce over

which the United States has jurisdiction.’ It therefore follows as a simple matter of logic that a

robber[, like Taylor,] who affects or attempts to affect even the intrastate sale of marijuana grown

within the State affects or attempts to affect commerce over which the United States has

jurisdiction.”18

Justice Thomas dissented. He felt that the limits of congressional authority under the Commerce

Clause required a holding that the Hobbs “Act punishes a robbery only when the Government

proves that the robbery itself affected interstate commerce.”19

See Taylor, 754 F.3d at 221.

Id.

Id. at 224 (internal quotation marks and citations omitted).

See United States v. Needham, 604 F.3d 673, 678 (2d Cir. 2010).

United States v. Peterson, 236 F.3d 848, 854 (7th Cir. 2001).

Taylor v. United States, 136 S. Ct. 2074, 2080-81 (2016).

Id. at 2080 (quoting Gonzalez v. Raich, 545 U.S. 1, 17 (2005)).

Id. (citing Raich, 545 U.S. at 22).

Id.

Id. at 2082 (Thomas, J., dissenting).

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Ocasio v. United States

Holding: “A defendant may be convicted of conspiring to violate the Hobbs Act based on proof

that he reached an agreement with the owner of the property in question to obtain that property

under color of official right.”20

Ocasio was a Baltimore police officer, who with several other officers received kickbacks for

referring accident victims to a particular auto body shop.21 For his efforts, Ocasio was convicted

of extortion and conspiracy to commit extortion under the Hobbs Act.22 The Hobbs Act punishes

anyone who “in any way or degree obstructs, delays, or affects commerce or the movement of

any article or commodity in commerce, by ... extortion or attempts or conspires so to do.”23 It

defines extortion to include “the obtaining of property from another, with his consent ... under

color of official right.”24

Ocasio argued at trial and on appeal that the Hobbs Act does not outlaw obtaining property from a

co-conspirator.25 His argument proceeded under alternative theories. First, he contended that a

statute which punishes conspirators for obtaining the property “of another” under color of law is

limited to victims who are “other” than conspirators.26 Second, he asserted that otherwise every

victim would be liable as a conspirator: “The law must require that a victim under the Hobbs Act

be a person outside the conspiracy because otherwise every victim’s ‘consent’ could be

considered an agreement to enter into a conspiracy with its victimizer, thereby creating a

separately punishable conspiracy in every §1951(a) case.”27

Ocasio claimed persuasive support from a Sixth Circuit case, U.S. v. Brock,28 which seemed to

endorse his alternative theories. The U.S. Court of Appeals for the Fourth Circuit, however, was

not convinced.29 It responded that Ocasio’s “property of another” argument was undermined by

the fact that the term “property of another” might easily mean the property of anyone other than

one acting “under color of law.”30 As for his “consent” argument, it was foreclosed by an earlier

Fourth Circuit case “which underscored the proposition that mere acquiescence in an extortion

scheme is not conspiratorial conduct. Rather, conduct more active than mere acquiescence is

necessary before a person may depart the realm of a victim and may unquestionably be subject to

conviction for aiding and abetting and conspiracy.”31 Therefore it is “wrong to suggest that every

extortion scheme will necessarily involve a conspiracy to commit extortion.”32

The Supreme Court affirmed the Fourth Circuit’s decision.33 The Court’s conspiracy case law

provided his undoing. Justice Alito wrote the opinion for the Court joined by four of his

Ocasio v. United States, 136 S. Ct. 1423, 1436 (2016).

United States v. Ocasio, 750 F.3d 399, 401-02 (4th Cir. 2014).

See 18 U.S.C. §§1951, 371; Ocasio, 750 F.3d at 401.

18 U.S.C. §1951(a).

18 U.S.C. §1951(b)(2).

Ocasio, 750 F.3d at 408.

See id. at 409-11.

Id. at 411.

501 F.3d 762 (6th Cir. 2007).

Ocasio, 750 F.3d at 410-11.

Id. at 411.

Id. at 411 (quoting United States v. Spitler, 800 F.2d 1267, 1276 (4th Cir. 1985)).

Id.

Ocasio v. United States, 136 S. Ct. 1423, 1437 (2016).

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colleagues.34 He pointed to earlier Court decisions which held “that a person may be convicted of

conspiring to commit a substantive offense that he or she cannot personally commit.”35 They

confirmed that “[i]t is sufficient to prove that the conspirators agreed that the underlying crime be

committed by a member of the conspiracy who was capable of committing it.”36 In Ocasio’s case,

the body shop owners could not commit extortion because they could not act “under color of

official right.”37 Nevertheless, “they could ... conspire to commit Hobbs Act extortion by agreeing

to help [Ocasio] and the other officers commit the substantive offense.”38 And as a consequence,

Ocasio could be convicted of conspiring with them.39

Justice Alito also responded with precedent to Ocasio’s argument that the Court’s conspiracy

theory would eliminate the distinction between extortion (coercive corruption) and bribery

(consensual corruption). Justice Alito explained that the Court had already declared in Evans that

Hobbs Act “color of law” extortion is the “rough equivalent of bribery.”40

Justice Thomas dissented, as he had in Evans, because that case “erred in equating common-law

extortion with taking a bribe.”41 Justice Breyer joined in the majority opinion, but offered a

concurrence acknowledging that he finds troubling, but binding, the Evans “extortion is the rough

equivalent of bribery” precedent.42 Justice Sotomayor and Chief Justice Roberts dissented

because they did not believe that “a group of conspirators can agree to obtain property ‘from

another’ in violation of the Act even if they agree only to transfer property among themselves.”43

McDonnell v. United States

Holding: Arranging a meeting or hosting an event does not qualify as an “official act” for

purposes of the federal bribery statute unless it involves “the formal exercise of governmental

power” with respect to some pending or anticipated “question, matter, cause, suit, proceeding or

controversy.”44

On September 4, 2014, a jury convicted former Virginia Governor Bob McDonnell and his wife

on corruption charges based on his activities as governor.45 The convictions covered wire fraud,

conspiracy, and Hobbs Act offenses.46 The U.S. Court of Appeals for the Fourth Circuit

affirmed.47 On January 15, 2016, the Supreme Court granted certiorari to review the lower court’s

definition of the term official act—a necessary element of the mail fraud conviction and by

implication of the Hobbs Act convictions.48

Id. at 1426.

Id. at 1432 (citing United States v. Holte, 236 U.S. 140 (1915) and Gebardi v. United States, 287 U.S. 112 (1932)).

Ocasio, 136 S. Ct. at 1432.

Id.

Id. at 1433.

Id. at 1434 (citing Evans v. United States, 504 U.S. 255, 260 (1992)).

Ocasio, 136 S. Ct. at 1437-38 (Thomas, J., dissenting).

Id. at 1437 (Breyer, J., concurring).

Id. at 1440 (Sotomayor, J., with Roberts, C.J., dissenting).

McDonnell v. United States, 136 S. Ct. 2355, 2374 (2016).

United States v. McDonnell, 792 F.3d 476, 493 (4th Cir. 2015).

Id.

Id. at 486.

McDonnell v. United States, 136 S. Ct. 891 (2016).

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The governor, and his wife, had been showered with gifts during the governor’s term in office.49

Their benefactor, a constituent, was a drug manufacturer who hoped to have one of his products,

an antismoking substance, approved by the U.S. Food and Drug Administration, which would

require studies of the products.50 To that end, he sought to have state university medical research

and facilities test and report favorably on the products’ efficacy.

For his part, the governor forwarded promotional material and the company’s suggested research

protocol to the state official with authority to approve the study.51 The governor’s name was used

on invitations, and he attended a promotional luncheon at the Governor’s Mansion on behalf of

the company.52 The governor also pitched the company’s product to the official responsible for

determining the products covered by the state’s employee health plans.53

The wire fraud statute under which the governor was convicted outlaws the use of wire

communications as part of a scheme to defraud another of his property.54 A second statute defines

the scheme to defraud element to include any scheme to defraud another of “honest services” to

which he is entitled.55 The Supreme Court, however, has construed this honest services definition

to encompass no more than bribery or kickbacks.56 The Court understands honest services bribery

to correspond to the misconduct described in the general federal bribery statute.57 There, bribery

is a corrupt quid pro quo—the exchange of something of value for a public official’s commission

or omission of an official act.58

The same kind of official act will upon occasion be an element of the extortion prong of a Hobbs

Act violation. Among other things the Hobbs Act outlaws obstructing interstate commerce in any

manner by extortion under color of law.59 The Supreme Court views this Hobbs Act extortion

offense as the rough equivalent of bribery—accepting something of value for the commission or

omission of an official act.60

An official act for bribery purposes is defined as “any decision or action on any question, matter,

cause, suit, proceeding or controversy, which may at any time be pending, or which may by law

McDonnell, 792 F.3d at 486-92.

Id. at 487.

Id. at 487-89.

Id. at 490.

Id. at 492.

18 U.S.C. §1343.

18 U.S.C. §1346.

Skilling v. United States, 561 U.S. 358, 404 (2010). The Court felt compelled to interpret the honest services statute

narrowly in order to avoid a void for vagueness challenge. Id. at 408. Justices Scalia, Thomas, and Kennedy would

have found the statute unconstitutionally vague, thus rendering Skilling’s conviction contrary to the demands of Due

Process. Id. at 415 (Scalia, J., concurring in part and concurring in the judgment).

Id. at 412.

18 U.S.C. §201(b)(2)(“Whoever ... being a public official ... corruptly demands, seeks, receives, accepts, or agrees to

receive or accept anything of value personally ... in return for: (A) being influenced in the performance of any official

act; ... (C) being induced to do or omit to do any act in violation of the official duty of such official or person ... shall be

fined ... or imprisoned.... ”).

18 U.S.C. §1951(a), (b)(2).

Evans v. United States, 504 U.S. 255, 260, 268 (1992) (“At common law, extortion ... by the public official was the

rough equivalent of what we would now describe as ‘taking a bribe.’ ... [O][ur construction of [Hobbs Act extortion] is

informed by the common-law tradition from which the term of art was drawn and understood. We hold today that the

Government need only show that a public official has obtained a payment to which he was not entitled, knowing that

the payment was made in return for official acts”).

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be brought before any public official, in such official’s official capacity, or in such official’s place

of trust or profit.”61

The prosecution argued that the governor had committed at least five qualifying official acts:

“(1) arranging meetings for [Williams] with Virginia government officials, who were

subordinates of the Governor, to discuss and promote Anatabloc;

“(2) hosting, and ... attending, events at the Governor’s Mansion designed to encourage Virginia

university researchers to initiate studies of anatabine and to promote Star Scientific’s products to

doctors for referral to their patients;

“(3) contacting other government officials in the [Governor’s Office] as part of an effort to

encourage Virginia state research universities to initiate studies of anatabine;

“(4) promoting Star Scientific’s products and facilitating its relationships with Virginia

government officials by allowing [Williams] to invite individuals important to Star Scientific’s

business to exclusive events at the Governor’s Mansion; and

“(5) recommending that senior government officials in the [Governor’s Office] meet with Star

Scientific executives to discuss ways that the company’s products could lower healthcare costs.”62

The governor argued that the instructions to the jury permit it to convict him without finding that

he had exercised or endeavored to influence the formal exercise of governmental power necessary

to constitute an official act. The Supreme Court unanimously agreed. It found the instructions

deficient on three grounds. First, the jury was not instructed that it must find “a ‘question, matter,

cause, suit, proceeding or controversy’ involving the formal exercise of governmental power.”63

Without such guidance, the jury may have “thought that a typical meeting, call, or event was itself

a ‘question, matter, cause, suit, proceeding or controversy’” and was enough without more to

constitute an official act.64

Second, the jury was not instructed that “the ‘question, matter, cause, suit, proceeding or

controversy’ must be more specific and focused than a broad policy objective.”65 And so, the jury

may have erroneously concluded, as the prosecution argued in closing, that “[w]hatever it was

Governor McDonnell had done, it’s all official action.” 66

Finally, “the jury was not told that merely arranging a meeting or hosting an event to discuss a

matter does not count as a decision or action on that matter.”67 And so, the jury may have thought

arranging a meeting or hosting an event did constitute an “official act,” without making the

additional finding that the governor agreed to take or exert pressure on other officials to take an

official action.68

The Court’s decision seems in line with its historic reluctance to endorse federal authorities’

policing of state and local political affairs in the absence of clear congressional directive.69 The

18 U.S.C. §201(a)(3).

McDonnell, 136 S. Ct. at 2365-66.

Id. at 2374 (emphasis added).

Id.

Id. at 2375.

Id.

E.g., McNally v. United States, 483 U.S. 350, 360 (1987) (“Rather than construe the statute in a manner that leaves

(continued...)

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decision, however, makes no such statement. Nor does it refer to the cases that evidence that

reluctance. Instead, it builds upon its “official act” precedents:

The question remains whether—as the Government argues—merely setting up a meeting,

hosting an event, or calling another official qualifies as a decision or action, [as an

official act]…. Although the word “decision,” and especially the word “action” could be

read expansively to support the Government’s view, our opinion in United States v. SunDiamond Growers of Cal. rejects that interpretation.70

Computer Fraud

Musacchio v. United States

Holding: “We first consider how a court should assess a challenge to the sufficiency of the

evidence in a criminal case when a jury instruction adds an element to the charged crime and the

Government fails to object. We conclude that the sufficiency of the evidence should be assessed

against the elements of the charged crime. We next consider whether the statute-of-limitations

defense contained in 18 U.S.C. §3282(a) (the general federal criminal statute of limitations) may

be successfully raised for the first time on appeal. We conclude that it may not be.”

The U.S. Supreme Court recently upheld a computer fraud conviction over objections that the

prosecution was not timely and the jury’s instructions were in error in Musacchio v. United

States.71 The case presented two questions. First, may a defendant present a statute of limitation

challenge for the first time on appeal?72 Second, may a conviction be undone by a sufficiency-ofthe-evidence attack on an extraneous element? The Court answered no to both questions.73

Musacchio hacked into the computer network of his former employer.74 The portion of the

Computer Fraud and Abuse statute under which he was indicted outlaws accessing a computer

system without authorization or in excess of authorization.75 The indictment charged him with

access without authorization.76 The judge’s instructions to the jury, however, suggested that

Musacchio could be convicted only if the government proved access both without authorization

and in excess of authorization.77 Musacchio was convicted nonetheless.78

(...continued)

its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good

government for local and state officials, we read § 1341 as limited in scope to the protection of property rights”);

McCormick v. United States, 500 U.S. 257, 272 (1991) (“Whatever ethical considerations and appearances may

indicate, to hold that [state] legislators commit the federal crime of extortion when they act for the benefit of

constituents or support legislation furthering the interest of some of their constituents, shortly before or after campaign

contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could

have meant by making it a crime to obtain property from another, with his consent, ‘under color of official right.’”).

McDonnell, 136 U.S. at 2370; see also id. at 2370-17 (citing United States v. Birdsall, 233 U.S. 223 (1914) and

United States v. Evans, 504 U.S. 255 (1992)).

136 S. Ct. 709 (2016). This summary relies heavily on a free-standing legal sidebar, CRS Legal Sidebar WSLG1514,

Computer Fraud Conviction Survives Delay and Erroneous Jury Instructions, by (name redacted)

Id.

United States v. Musacchio, 590 F. App’x 359, 360-61 (5th Cir. 2014).

18 U.S.C. §1030(a).

United States v. Musacchio, 590 F. App’x at 361.

Id.

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On appeal, he conceded that there was sufficient evidence at trial to convict for access without

authority, but argued without success that there was insufficient evidence to prove access in

excess of authorization.79 He also argued to no avail that the five-year statute of limitations

should have barred his prosecution, because his indictment had been filed seven years after the

commission of the offense.80

The two questions had divided the lower federal appellate courts.81 The Supreme Court took the

opportunity to answer them in a single case. First, a statute of limitations bar is ordinarily a

defense that must be claimed.82 If a defendant does not object before conviction that prosecution

of his case is untimely, the defense is lost.83 It may not be raised for the first time on appeal.84

Congress, however, is free to abrogate the general rule. It may decree that, with respect to a

particular statute of limitations, prosecution of a stale charge is a fatal flaw, which may be

brought to the attention of the courts at any time. Congress makes its intent clear in the language

of the statute, its context, and its legislative history.85 The Court found no such evidence in the

case of the statute at issue, general criminal statute of limitations, 18 U.S.C. Section 3282.86 Thus,

the delay in bringing Musacchio’s prosecution was not an issue that could be raised for the first

time on appeal.87

Second, when jury instructions contain extraneous elements, only the necessary elements of the

crime charged need to satisfy a sufficiency-of-the-evidence test.88 As the Court explained, “When

a jury finds guilt after being instructed on all elements of the charged crime plus one more

element, the jury has made all the findings that due process requires.”89

The Fifth Circuit, from which the case arose, had decided it on the basis of the rule-of-the-case

doctrine.90 The doctrine states that when a court has addressed a legal issue in a particular case it

will not revisit the matter at a later stage of the same case.91 The Fifth Circuit, however,

erroneously applied the rule with regard to a lower court ruling in the same case.92 For, “the

doctrine is ‘something of a misnomer’ when used to describe how an appellate court assesses a

lower court’s rulings. An appellate court’s function is to revisit matter decided in the trial court.”93

(...continued)

Id.

Id. at 362-63.

18 U.S.C. §3282; Musacchio, 590 F. App’x at 363-64.

See Musacchio v. United States, 136 S. Ct. 709, 714-15 (2016) (collecting cases showing circuit splits).

Id. at 717-18.

Id.

Id. at 716.

Id. at 717.

Id. at 717-18.

Id. at 716-18.

Id. at 715.

Id.

Musacchio, 590 F. App’x at 362-63.

See Musacchio, 136 S. Ct. at 716 (quoting Pepper v. United States, 562 U.S. 476, 506) (2011)).

See id.

Id. (quoting United States v. Wells, 519 U.S. 482, 487 n.4 (1997)).

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The Court left unaddressed the questions of whether the result would have been different had the

indictment contained extraneous elements or had the trial court’s instructions on the necessary

elements been in error.

Sex Offenses

The sex offense entries on the Court’s docket involve the sex offender registration obligations of

an overseas resident and construction of the recidivist mandatory minimum sentencing provisions

of federal law.

Lockhart v. United States

Holding: “[T]he text and structure of §2252(b) (2) confirm that the provision applies to prior

state convictions for ‘sexual abuse’ and ‘aggravated sexual abuse,’ whether or not the convictions

involved a minor or ward.”94

The U.S. Supreme Court in a 6-2 decision upheld imposition of a mandatory minimum sentencing

enhancement in a child pornography case.95 The case turned on a matter of statutory construction.

The statute at issue set a 10-year mandatory minimum term of imprisonment for a defendant

convicted of child pornography:

... if such person has a prior conviction under ... chapter 109A [sexual abuse of a child or

adult], or chapter 117 [unlawful sex-related interstate travel involving a child or adult], or

under section 920 of title 10 (article 120 of the Uniform Code of Military Justice) [rape

and sexual assault], or under the laws of any State relating to aggravated sexual abuse,

sexual abuse, or abusive sexual conduct involving a minor or ward.... 96

Lockhart had pleaded guilty to federal child pornography charges.97 He had earlier been convicted

of first degree sexual abuse of an adult under New York state law.98 The trial court concluded it

had no choice but to assess the 10-year mandatory minimum.99 Lockhart appealed. The U.S.

Court of Appeals for the Second Circuit affirmed.100 Its decision was in line with those of the

Fourth, Fifth, and Ninth Circuits and at odds with those of the Sixth, Eighth, and Tenth

Circuits.101 The question that divided the appellate panels was whether the phrase involving a

minor or ward applied to aggravated sexual abuse and sexual abuse cases or only to cases of

abusive sexual conduct. Did the mandatory minimum apply to Lockhart whose crime involved

sexual abuse of an adult? The Supreme Court concluded that it did.102

Lockhart v. United States, 136 S. Ct. 958, 968 (2016). This summary borrows heavily from a free-standing legal

sidebar, CRS Legal Sidebar WSLG1510, Supreme Court Upholds Recidivist Mandatory Minimum, by (name redacted)

Id.

18 U.S.C. §2252(b)(2).

Lockhart, 136 S. Ct. at 961-62.

Id. at 962.

Id.

100

United States v. Lockhart, 749 F.3d 148, 150 (2d Cir. 2014).

101

Id. at 154-55, citing in accord, United States v. Spence, 661 F.3d 194 (4th Cir. 2011); United States v. Hubbard, 480

F.3d 341 (5th Cir. 2007); as well as United States v. Sinerius, 504 F.3d 737 (9th Cir. 2007); and in opposition, United

States v. Mateen, 739 F.3d 300 (6th Cir. 2014), vac’d and rev’d en banc, United States v. Mateen, 764 F.3d 627, 633

(6th Cir. 2014); United States v. Hunter, 505 F.3d 829 (8th Cir. 2007); United States v. McCutchen, 419 F.3d 1122 (10th

Cir. 2005).

102

Lockhart, 136 S. Ct. at 961.

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Justice Sotomayor, writing for the Court, examined the text of the statute first under the “last

antecedent” rule of statutory construction, which suggests that “a limiting clause or phrase,” such

as involving a minor or ward, “should ordinarily be read as modifying only the noun or phrase

that it immediately follows; in this case “abusive sexual conduct.”103

The Justice then pointed out the symmetry between state and federal triggering offenses. The

terms aggravated sexual abuse, sexual abuse, and abusive sexual conduct used to identify the

state predicate offenses are the very terms used as captions for the federal predicate offenses in

Chapter 109A.104 She wrote, “If Congress had intended to limit each of the state predicates to

conduct ‘involving a minor or ward,’ we doubt it would have followed, or thought it needed to

follow, so closely the structure and language of Chapter 109A.”105

Moreover, the Justice was at a loss to “explain why Congress would have wanted to apply the

mandatory minimum to individuals convicted in federal court of sexual abuse or aggravated

sexual abuse involving an adult, but not to individuals convicted in state court of the same.”106

The opinion seems to have captured the seriousness with which Congress viewed repeat offenders

who engage in child pornography. Nevertheless, Justice Kagan’s Scalia-like observation in

dissent may give one pause: “Suppose a real estate agent promised to find a client ‘a house,

condo, or apartment in New York.’ Wouldn’t the potential buyer be annoyed if the agent sent him

information about condos in Maryland or California?”107

It is possible that Congress may reconsider the Court’s construction of the repeat offender

mandatory minimum in child pornography cases. There have been a number of proposals to

reduce recidivist mandatory minimums in various federal criminal statutes in the 114th Congress.

Few, if any, involve child pornography.

Nichols v. United States

Holding: The federal Sex Offender Registration and Notification Act (SORNA) requirement that

offenders notify the “jurisdiction”(state or territory) in which they reside of any change of

address does not apply to offenders who reside overseas (i.e., other than in a SORNA

jurisdiction).108

The Supreme Court granted certiorari in Nichols in order to resolve a conflict among the lower

federal appellate courts over whether an individual required to register as a sex offender must

continue to follow registration requirements when he relocates overseas.109 The Court held that he

did not, although subsequent legislation imposes a related obligation.110

The federal Sex Offender Registration and Notification Act (SORNA) requires individuals

convicted of federal or state qualifying sex offenses to register with each state (“jurisdiction”)

103

Id. at 965.

Id. at 966-67.

105

Id.

106

Id. at 968.

107

Id. at 969 (Kagan, J., with Breyer, J., dissenting).

108

Nichols v. United States, 136 S. Ct. 1113, 1117-18 (2016).

109

Id. at 1117 (citing Nichols v. United States, 775 F.3d 1225 (10th Cir. 2014) and United States v. Lunsford, 725 F.3d

859 (8th Cir. 2013). Much of the introductory material that appears here can be found in a free-standing legal sidebar,

Must an Overseas Resident Update His U.S. Sex Registration: The Courts Cannot Agree, by (name redacted).

110

Nichols, 136 S. Ct. at 1117-18, 1119 (2016).

104

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“(a) ... where the offender resides, ... is an employee, and ... is a student.”111 It further insists that

after initial registration[s] the individual “not later than 3 business days after each change of

name, residence, employment, or student status, appear in person in at least 1 jurisdiction

involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information

required for that offender in the sex offender registry.... ”112 It is a federal crime for an individual

convicted of a federal sex offense to fail to comply.113 It is also a federal crime for an individual

convicted of a state sex offense to fail to comply and subsequently travel in interstate or foreign

commerce.114

In the case before the Supreme Court, Nichols was convicted of a federal qualifying sex offense

and upon his release from prison registered with Kansas authorities.115 He subsequently relocated

in the Philippines without appearing or returning to appear before Kansas registration officials.116

The Philippines deported him back to the United States, where he faced a federal indictment for

failing to appear and update his Kansas registration information.117 He sought unsuccessfully to

dismiss the indictment on the grounds that SORNA did not require him to register once he was in

the Philippines.118 He pleaded guilty, reserving the right to appeal.119

Nichols appealed to the U.S. Court of Appeals for the Tenth Circuit, where he contended that the

SORNA’s change of residency requirement does not apply when an individual changes his

residency in a non-SORNA jurisdiction.120 The Tenth Circuit rejected the argument on the basis of

binding circuit precedent.121 The Supreme Court in a unanimous opinion by Justice Alito

reversed.122

SORNA requires an offender to appear in one of “three possible jurisdictions: where the offender

resides, where the offender is an employee, [or] where the offender is a student.”123 It defines

“jurisdictions” as the several states, the various territories of the United States, and certain Indian

tribes.124 The Philippines is not a SORNA jurisdiction. Moreover, Justice Alito explained,

SORNA “uses only the present tense: ‘resides,’ ‘is an employee,’ ‘is a student.’ A person who

moves from Leavenworth to Manilla no longer ‘resides’ (present tense) in Kansas; although he

once resided in Kansas, after his move he ‘resides’ in the Philippines.”125 Therefore, “once

Nichols moved to Manila, he was no longer required to appear in Kansas to update his

111

42 U.S.C. §16913(a).

42 U.S.C. §16913(c).

113

18 U.S.C. §2250.

114

Id.

115

United States v. Nichols, 775 F.3d 1225, 1227 (10th Cir. 2014).

116

Id.

117

Id.

118

Id. at 1228.

119

Id.

120

Id.

121

Id. at 1229 (citing United States v. Murphy, 664 F.3d 798 (10th Cir. 2011)).

122

Nichols v. United States, 136 S. Ct. 1113, 1115 (2016).

123

42 U.S.C. §16913(a), (c).

124

42 U.S.C. §16911(10).

125

Nichols, 136 S. Ct. at 1117.

112

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registration, for Kansas was no longer a ‘jurisdiction’” where he resides, is an employee, or is a

student.126

Justice Alito also noted that Congress had addressed the issue while the case was pending before

the Court. In early February, it passed the International Megan’s Law to Prevent Child

Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex

Offenders [Act].127 The statute requires sex offenders to provide information related to any

foreign travel to “the appropriate official for inclusion in the sex offender registry ... in

conformity with any time and manner requirements prescribed by the Attorney General.”128

Firearms

Perhaps spurred on by the result below, the Supreme Court held that stun guns used for selfdefense are not necessarily beyond the guarantees of the Second Amendment right to bear arms.

The other firearms cases on the Court’s docket raise interpretative issues under the Armed Career

Criminal Act and the firearm possession disqualification triggered by a domestic violence

misdemeanor.

Caetano v. Massachusetts

Holding: Supreme Judicial Court of Massachusetts’s reasoning for upholding stun gun ban—lack

of common use of stun guns at time of Second Amendment’s enactment, unusual nature of stun

guns as a modern invention, and lack of ready adaptability of stun guns for use in the military—

does not preclude stun guns from being protected by Second Amendment right to bear arms.129

In Caetano v. Massachusetts, in one fell swoop (and without oral argument) the U.S. Supreme

Court granted a petition for certiorari and issued a per curiam opinion vacating the judgment of

the Massachusetts Supreme Court that had upheld a Massachusetts law prohibiting the possession

of stun guns.130

Massachusetts has a law that bans the possession of weapons that emit electrical currents (e.g.,

stun guns), which was challenged as unconstitutional under the Second Amendment by a woman

who had been arrested for violating that law.131 The Massachusetts court had concluded that the

Second Amendment does not encompass stun guns, and thus the statute’s prohibition was lawful,

because, among other things, stun guns are dangerous, unusual, and were not in common use at

the time the Bill of Rights was enacted.132 Additionally, the court concluded, the stun gun, as used

by the defendant, was not used to defend herself in the home.133

The U.S. Supreme Court vacated the Massachusetts ruling, concluding that its reasoning directly

conflicted with the holdings in District of Columbia v. Heller,134 in which the Court concluded

126

Id.

Id. at 1119 (citing P.L. 114-119, 130 Stat. 23 (2016)).

128

P.L. 114-119, §6, 130 Stat. 22-3 (2016), codified at 42 U.S.C. 16914(a)(7), (c). Violations are punishable under 18

U.S.C. 2250(b).

129

Caetano v. Massachusetts, 136 S. Ct. 1027, 1028 (2016).

130

Id.

131

See MASS. GEN. LAWS ch.140, §131J; Commonwealth v. Caetano, 26 N.E.3d 688, 689 (Mass. 2015).

132

Caetano, 26 N.E.2d at 692.

133

Id.

134

554 U.S. 570 (2008).

127

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that the Second Amendment encompasses an individual right to possess firearms for traditional,

lawful purposes, and McDonald v. Chicago,135 which applies that right to the states through the

Fourteenth Amendment. The Court noted that Heller stated that “the Second Amendment[’s

protection] ‘extends ... to arms ... that were not in existence at the time of the founding’” as well

as to firearms that are not readily adaptable for military use.136 Yet, the Massachusetts court

erroneously found Second Amendment protection wanting because stun guns like Caetano’s

“were not in common use at the time of the Second Amendment’s enactment.”137 And in the same

misguided vein, the Massachusetts court “found ‘nothing in record to suggest that stun guns are

readily adaptable to use in the military.’”138

Voisine v. United States139

Holding: “A misdemeanor conviction for recklessly assaulting a domestic relation disqualifies an

individual from possessing a gun.”140

Under federal law, individuals who have been convicted of a misdemeanor crime of domestic

violence may not possess a firearm.141 The statute defines “misdemeanor crime of domestic

violence” as a federal, state, or tribal misdemeanor, that has as an element “the use … of physical

force” and is committed against a person with whom the defendant was living or had lived.142

In an earlier case, Castleman, the Court held that an individual convicted of knowingly or

intentionally committing domestic violence may no longer be eligible to possess a firearm, but set

aside the question of whether recklessly committing such an offense is also disqualifying.143 Here

in Voisine, the Court decided it was.144

When federal authorities investigated Voisine for suspicion of killing of a bald eagle, they

discovered he owned a rifle and had a previous state domestic abuse conviction under state law

for beating his girlfriend.145 They charged him with unlawful possession of a firearm.146

Following his conviction, Voisine appealed, arguing that the state domestic violence misdemeanor

conviction was not disqualifying because the state statute covered reckless domestic violence.147

The United States Court of Appeals for the First Circuit rejected the argument,148 as did the

Supreme Court.149

135

561 U.S. 742 (2010).

Caetano, 136 S. Ct. at 1027-28 (quoting Heller, 554 U.S. at 582).

137

Caetano, 136 S. Ct. at 1028 (quoting Caetano, 26 N.E.3d at 1027).

138

Caetano, 136 S. Ct. at 1028 (quoting Caetano, 26 N.E.3d at 1028).

139

CRS Legal Sidebar WSLG 1445, Tying Up Loose Ends ... Supreme Court To Evaluate Federal Firearms Provision

Again, by Vivian Chu addresses the background of the case in a free-standing sidebar.

140

Voisine v. United States, 136 S. Ct. 2272, 2277-78 (2016).

141

18 U.S.C. §922(g)(9).

142

18 U.S.C. §921(a)(33)(A).

143

United States v. Castleman, 134 S. Ct. 1405, 1414 n.8 (citing Leocal v. Ashcroft, 543 U.S. 1 (2004)).

144

Voisine, 136 S. Ct. at 2277-78.

145

United States v. Voisine, 778 F.3d 176, 178 (1 st Cir. 2015).

146

Id.

147

Id. at 177.

148

Id.

149

Voisine, 136 S. Ct. at 2277-78.

136

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Justice Kagan wrote the opinion for the seven-member majority of the Court.150 She observed that

nothing in the operative “use of physical force” phrase conveys the notion that the word “‘use’

marks a dividing line between reckless and knowing conduct.”151 The word ordinarily

encompasses both. Circumstances surrounding enactment confirmed for Justice Kagan that

Congress chose its words for their everyday meaning.152 “Congress enacted [the ban] in 1996 to

bar those domestic abusers convicted of garden-variety assault or battery misdemeanors ... from

owning guns. Then, as now, a significant majority of jurisdictions ... defined such misdemeanor

offenses to include the reckless infliction of bodily harm.”153 To ignore reckless abuse

convictions, Justice Kagan reasoned, “would have undermined Congress’s aim.”154

In sum, “[t]he federal ban on firearms possession applies to any person with a prior misdemeanor

conviction for the ‘use ... of physical force’ against a domestic relation. That language, naturally

read, encompasses acts of force undertaken recklessly….”155 Moreover, “the state-law backdrop

... indicates that Congress meant just what it said.”156

Justice Thomas dissented on the basis of Second Amendment right-to-bear-arms grounds and

because he felt the term “‘use of physical force’ has a well-understood meaning applying only to

intentional acts designed to cause harm.”157 Justice Sotomayor joined the latter part of the

dissent.158

Armed Career Criminal Act

Welch v. United States

Holding: The Supreme Court’s earlier decision in Johnson v. United States, which found the

residual clause of the Armed Career Criminal Act constitutionally vague, applies retroactively to

the convictions of federal prisoners who seek collateral (habeas corpus) review.159

The Armed Career Criminal Act (ACCA) calls for a mandatory 15-year term of imprisonment for

a defendant convicted of certain firearms offenses, if the defendant has three prior drug or violent

felony convictions.160 The qualifying violent felony convictions fall within one of three clauses.161

The first clause consists of crimes that have physical force or attempted physical force as an

element.162 The second is made up of drug trafficking and other enumerated crimes such as

burglary, arson, and extortion.163 The third is a residual clause that includes offenses “that

150

Id. at 2276.

Id. at 2279.

152

Id. at 2280.

153

Id.

154

Id. at 2281.

155

Id. at 2282.

156

Id.

157

Id. at 2282 (Thomas, J., with Sotomayor, J. in part, dissenting).

158

Id.

159

Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

160

18 U.S.C. §924(e).

161

18 U.S.C. §924 (e)(2).

162

18 U.S.C. §924 (e)(2)(B)(i).

163

18 U.S.C. §924 (e)(2)(A), (e)(2)(B)(ii).

151

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present[] a serious potential risk of physical injury to another.”164 The Supreme Court declared the

ACCA’s residual category unconstitutionally vague in Johnson v. United States.165 Here, the

Court held Johnson retroactively applicable.166

Welch was convicted of unlawful possession of firearm.167 The United States District Court for

the Southern District of Florida sentenced him under the ACCA on the basis of three state robbery

convictions.168 On appeal, he contended that one of the prior convictions did not qualify as an

ACCA predicate conviction, under either the residual or the elements clause.169 The United States

Court of Appeals for the Eleventh Circuit affirmed the sentence on the basis of the residual clause

and found it unnecessary to address the elements clause argument.170

Some years later, Welch sought collateral review under the federal statutory counterpart of habeas

corpus.171 The district court denied his petition.172 No sooner had the Eleventh Circuit denied him

the certificate of appeal ability necessary for further review then the Supreme Court held the

residual clause unconstitutionally vague in Johnson.173 The Court granted Welch’s petition for

certiorari to determine whether Johnson should be applied retroactively.174 The Court ultimately

concluded it should but returned the case to the Eleventh Circuit to determine whether Welch’s

state robbery conviction qualified for ACCA sentencing under the elements clause.175

Justice Kennedy, writing for the seven members of the majority of the Court, pointed out that the

retroactivity of a decision like Johnson, which announces a novel constitutional interpretation (a

new rule), is governed by the Teague doctrine.176 The doctrine is calculated, in the interests of

finality, to encourage resolution of a prisoner’s constitutional challenges on direct appeal rather

than waiting to raise them for the first time on collateral review.177 The doctrine bars federal

collateral review to announce or apply a new rule.178

There are two exceptions, one substantive and one procedural. The procedural exception exists

when the new rule constitutes a “watershed” rule in criminal procedure, one that “implicat[es] the

fundamental fairness and accuracy of the criminal proceeding.”179 Gideon v. Wainwright is one of

the frequently cited, rarely occurring examples of the procedural exception.180 The substantive

164

18 U.S.C. §924 (e)(2)(B)(ii).

135 S. Ct. 2551 (2015).

166

Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

167

Id. at 1262.

168

Id.

169

United States v. Welch, 683 F.3d 1304, 1310 (11th Cir. 2012).

170

Id. at 1313.

171

Welch, 136 S. Ct. at 1263.

172

Id.

173

Id.

174

Welch v. United States, 136 S. Ct. 790 (2016).

175

Welch, 136 S. Ct. at 1268

176

Id. at 1264 (referring to Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion)).

177

Teague, 489 U.S. at 307-8.

178

Welch, 136 S. Ct. at 1264. See also Saffle v. Parks, 494 U.S. 484 (1990) (“In Teague, we defined a new rule as a

rule that ‘breaks new ground,’ ‘imposes a new obligation on the states or the Federal Government,’ or was not ‘dictated

by precedent existing the time of the defendant’s conviction became final.’”).

179

Welch, 136 S. Ct. at 1264 (quoting Saffle, 494 U.S. at 495).

180

See, e.g., Whorton v. Bockting, 549 U.S. 406, 419 (2007); Beard v. Banks, 542 U.S. 406, 417 (2004).

165

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exception exists when the new rule “alters the range of conduct or the class of persons that the

law punishes.”181 Johnson is an example of the substantive exception.182

Justice Kennedy explained that “[b]y striking down the residual clause as void for vagueness,

Johnson changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of

conduct or the class of persons that the [Act] punishes.’”183 He reasoned that “[b]efore Johnson,

the Act applied to any person who possessed a firearm after three violent felony convictions, even

if one or more of those convictions fell under only the residual clause. An offender in that

situation faced 15 years to life in prison.”184 In contrast, “[a]fter Johnson, the same person

engaging in the same conduct is no longer subject to the Act….”185

The lone dissenter, Justice Thomas, argued that the case was not ready for the Supreme Court

review and “undermin[ed] any principled limitation on the finality of federal convictions.”186

Mathis v. United States

Holding: “To determine whether a past conviction [qualifies as an ACCA predicate conviction],

courts compare the elements of the crime of conviction with the elements of the ‘generic’ version

of the [ACCA’s] listed offenses—i.e., the offense as commonly understood…. [O]ur decisions

have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the

same as, or narrower than, those of the generic offense. The question in this case is whether the

ACCA makes an exception to that rule when a defendant is convicted under a statute that lists

multiple alternative means of satisfying one (or more) of its elements. We decline to find such an

exception.”187

The Armed Career Criminal Act (ACCA) sets a 15-year mandatory minimum term of

imprisonment for defendants, guilty of certain firearms offenses, who have three prior state or

federal serious drug or violent felony convictions.188 The statute defines the term violent felony to

include burglary.189 Burglary, in the ACCA, said the Supreme Court in Taylor v. United States,

means generic burglary—that is, burglary as commonly understood, a crime involving “unlawful

or unprivileged entry into, or remaining in, a building or structure, with intent to commit a

crime.”190 Conviction under a state burglary statute qualifies as an ACCA predicate conviction

only when the state crime’s “elements are the same as, or narrower than, those of the generic

offense.”191

181

Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (quoting Bousley v. United States, 523 U.S. 614, 620) (“Such rules

apply retroactively because they ‘necessarily carry a significant risk that a defendant stands convicted of an act that the

law does not make criminal’ or faces a punishment that the law cannot impose upon him.”).

182

Welch, 136 S. Ct. at 1265.

183

Id.

184

Id.

185

Id.

186

Id. at 1269 (Thomas, J., dissenting) (“Today the Court holds that Johnson applies retroactively to already final

sentences of federal prisoners. That holding comes at a steep price. The majority ignores an insuperable procurable

procedural obstacle: when, as here, a court fails to rule on a claim not presented in a prisoner’s §2255 motion, there is

no error for us to reverse. The majority also misconstrues the retroactivity framework developed in Teague….”).

187

Mathis v. United States, 136 S. Ct. 2243, 2247-48 (2016).

188

18 U.S.C. §924(e).

189

18 U.S.C. §924(e)(2)(B).

190

Taylor v. United States, 495 U.S. 575, 598 (1990)).

191

Id.

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Mathis was convicted of unlawful possession of a firearm.192 He was sentenced under the ACCA

on the basis of five Iowa burglary convictions.193 He questioned whether his Iowa burglary

convictions qualified as ACCA burglary convictions. The Iowa burglary statute matched the

elements of the generic crime of “burglary”: unlawful entry into a building or structure with the

intent to commit a crime.194 Elsewhere, however, the Iowa criminal code provided a binding

definition of the “building or structure” element to include cars, boats, and planes.195 Mathis

argued that the Iowa burglary convictions were not ACCA qualifying convictions. The United

States District Court and Eighth Circuit Court of Appeals disagreed.196 The Supreme Court

reversed.197

Whether a state burglary conviction qualifies as an ACCA burglary conviction is a matter of

elements: “A crime counts as ‘burglary’ under the Act if its elements are the same as, or narrower

than, those of the generic offense,” wrote Justice Kagan for the Court.198 Conversely, “if the crime

of conviction covers any more conduct than the generic offense, then it is not an ACCA

‘burglary.’”199

The Iowa statute “enumerates various factual means of committing a single element” when it

“itemizes the various places that crime could occur as disjunctive factual scenarios rather than

separate elements.”200 As the Iowa Supreme Court observed, the Iowa statute sets out

“‘alternative methods’ of committing one offense, so that a jury need not agree whether the

burgled location was a building ... or vehicle.”201 This makes it broader than the generic offense

that does not encompass unlawful entry into a vehicle to commit a crime. “Because the elements

of Iowa’s burglary law are broader than those of generic burglary, Mathis’s convictions under that

law cannot give rise to an ACCA sentence.”202

Two concurring members of the Court offered less-than-ringing endorsements of the four-Justice

main opinion. Justice Kennedy wrote that the “opinion is required by its precedents,” with which

he disagrees.203 Those precedents, he observed, are matters of statutory construction that

Congress is free to wash away by amending the ACCA.204 He declared, moreover, that “continued

congressional inaction in the face of a system that each year proves more unworkable should

require this Court to revisit its precedents in an appropriate case.”205 Justice Thomas was only

slightly more enthusiastic: “I join the Court’s opinion, which faithfully applies our precedents”

and which “avoids further extending its precedents.”206

192

United States v. Mathis, 786 F.3d 1068, 1070 (8th Cir. 2015).

193

Id.

194

Id. at 1073-74 (citing Iowa Code §713.5).

195

Id. at 1074 (citing Iowa Code §712.12).

196

Id. at 1076.

197

Mathis v. United States, 136 S. Ct. 2243, 2257 (2016).

198

Id. at 2248.

199

Id.

200

Id. at 2249.

201

Id. at 2256 (citing State v. Duncan, 312 N.W. 519, 523 (Iowa 1981)).

202

Id. at 2257.

203

Id. at 2258 (Kennedy, J., concurring).

204

Id.

205

Id. Recall that either in spite of, or because of, the Court’s precedents, the Court felt compelled to declare the

ACCA’s residual clause unconstitutionally vague in Johnson, 135 S. Ct. at 2563.

206

Id. at 2258 (Thomas, J., concurring).

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Justices Breyer and Ginsburg dissented because they believed the federal court should have been

allowed to examine the charging documents relating to Mathis’s Iowa convictions to determine if

the jury there was required to find all the elements of generic burglary.207 Justice Alito in dissent

would go even further and allow the federal court to examine the entire record of prior

proceedings, not merely those that identify what the jury must have found.208

Fourth Amendment

The trio of Fourth Amendment cases presents questions on the exclusionary rule, the warrant

requirement for sobriety tests, and qualified official immunity in the face of use of excessive

force allegations.

Utah v. Strieff

Holding: The attenuation exception to the exclusionary rule “applies when an officer makes an

unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid

arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a

search incident to that arrest.”209

The national debate over policing practices stemming from the deaths of Michael Brown in

Ferguson, Missouri, and Freddie Gray in Baltimore, Maryland (and other police-related

deaths),210 made its way to the Supreme Court in Utah v. Strieff—a case about evidence

suppression in criminal proceedings.211 The novel question before the Court was whether

evidence should be suppressed (through the exclusionary rule) if it was seized after a search

incident to a lawful arrest on an outstanding warrant, when the warrant was discovered only

because of an initial, illegal stop by the police. Discussion at oral argument, at times, focused on

how the Court’s decision would impact heavily policed communities, like Ferguson, where a

significant percentage of the population has outstanding arrest warrants for minor offenses, like

failing to pay traffic fines.212

The judicially created exclusionary rule requires the suppression of evidence obtained through

illegal searches or seizures, as well as evidence later obtained as a result of the earlier Fourth

Amendment violation—the so-called fruit of the poisonous tree.213 However, this rule will be

applied only if a court concludes that suppression would deter future police misconduct and that

the potential deterrence outweighs potential costs, such as releasing a criminal into the public.214

Therefore, not all illegally obtained evidence—and derivative evidence—will be excluded. For

207

Id. at 2266 (Breyer & Ginsburg, JJ., dissenting).

Id. at 2269-70 (Alito, J., dissenting).

209

Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016).

210

See, e.g., Carrie Wells, Protesters March Against Police Brutality on Anniversary of Ferguson Unrest, BALT. SUN

(Aug. 8, 2015, 7:07 PM), http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-ferguson-anniversary20150808-story.html; Mark Berman, How the Response to Protests over Police Force Changed Between Ferguson and

Baltimore, WASH. POST (May 1, 2015), https://www.washingtonpost.com/news/post-nation/wp/2015/05/01/fromferguson-to-baltimore-how-the-response-to-protests-over-police-force-has-changed-nationwide/.

211

State v. Strieff, 357 P.3d 532 (Utah 2015).

212

See Transcript of Oral Argument at 6:3-9:18, 12:8-12:21, 21:18-23:17, Utah v. Strieff, 136 S. Ct. 27 (2015) (No. 141373).

213

See, e.g., Davis v. United States, 131 S. Ct. 2419, 2424 (2011); Segura v. United States, 468 U.S. 796, 804 (1984).

214

Davis, 131 S. Ct. at 2426-27.

208

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example, under the attenuation doctrine, a court will not suppress evidence obtained subsequent

to an illegal search or seizure if “the connection between the lawless conduct of the police and the

discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’”215 To

determine whether the intervening event was sufficiently independent of the illegal act to warrant

the evidence’s admission, courts balance three factors: (1) the temporal proximity of the illegal

police activity and the discovery of evidence; (2) the intervening event; and (3) the purpose and

flagrancy of the police misconduct.216 The Court in Strieff reviewed whether evidence obtained

from a search incident to a lawful arrest on an outstanding arrest warrant, discovered from a

warrant check (the alleged intervening event) during an illegal investigatory stop, falls under the

attenuation doctrine and thus should be admissible.

In Strieff, the police department in Salt Lake City, Utah, received an anonymous tip that there was

ongoing drug activity at a house, after which Officer Doug Fackrell surveilled the house

intermittently for approximately three hours total over a weeklong period.217 During that time,

Officer Fackrell observed short-term traffic at the house, which he believed was consistent with

drug activity.218 When the officer saw Edward Strieff leave the house, he questioned him and

asked him to produce his ID.219 Officer Fackrell then ran a warrant check and discovered that

Strieff had an outstanding arrest warrant for failing to pay a traffic ticket and searched his body

incident to arrest.220 The search uncovered methamphetamine and drug paraphernalia, and Strieff

subsequently was prosecuted for a drug crime.221

At the suppression hearing, the state conceded that the seizure violated the Fourth Amendment

because Officer Fackrell did not have reasonable suspicion to stop and interrogate Strieff.222

Therefore, the dispute focused on whether the officer’s discovery of the outstanding warrant

sufficiently attenuated the illegal stop from the discovery of the drugs and paraphernalia.223 The

trial court concluded that it did and denied the motion to suppress.224 The Utah Supreme Court

reversed, however, concluding that only the defendant’s voluntary conduct—not police conduct

(here, discovering the outstanding warrant)—can attenuate evidence obtained from illegal

searches and seizures.225

Neither party, however, appeared to agree with the Utah Supreme Court’s interpretation of the

attenuation doctrine, and on appeal to the Supreme Court both Utah and Strieff focused on the

flagrancy portion of the three-part attenuation analysis.226 For example, Utah (with the support of

215

Wong Sun v. United States, 371 U.S. 471, 487 (1963) (quoting Nardone v. United States 308 U.S. 338, 341 (1939));

see United States v. Smith, 715 F.3d 1110, 1115-16 (8th Cir. 2013); United States v. Fofana, 666 F.3d 985, 992-93 (6th

Cir. 2012); United States v. McKinnon, 92 F.3d 244, 247 (4th Cir. 1996).

216

See Brown v. Illinois, 422 U.S. 590, 603-04 (1975); United States v. Montgomery, 777 F.3d 269, 273 (5th Cir.

2015).

217

State v. Strieff, 357 P.3d 532, 536 (Utah 2015).

218

Id.

219

Id.

220

Id.

221

Id.

222

Id. at 536-37; see Terry v. Ohio, 392 U.S. 1 (1968).

223

State v. Strieff, 357 P.3d at 537.

224

Id.

225

Id. at 544-47.

226

See Brief for Petitioner at 8-9, 29-33, Utah v. Strieff, 136 S. Ct. 27 (No. 14-1373); Brief for Respondent at 29 n.4,

32-39 Utah v. Strieff, 136 S. Ct. 27 (No. 14-1373); Transcript of Oral Argument at 57:5-57:13, Utah v. Strieff, 136 S.

Ct. 27 (2015) (No. 14-1373).

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the United States) argued that an arrest warrant that had been issued previously by a neutral and

detached magistrate judge should erase the taint of an illegal stop (during which the warrant was

discovered) so long as the stop was not “flagrant,” and in this case, the state contended, it was

not.227 Conversely, Strieff contended that police activity is flagrant when, as in this case, an

officer runs a warrant check during a stop when there is no reasonable suspicion or articulable

fear for the officer’s safety.228

Notably, in response to these arguments at oral argument, the Court pondered whether there

should be a subjective component (atypical in Fourth Amendment jurisprudence)229 to the

flagrancy portion of the analysis, where a court would ask whether the officer was exploiting the

system to obtain evidence of other crimes.230 Justice Kagan asserted that this potentially could

deter illegal stops because, in some jurisdictions, “[i]f you know that there is a significant

possibility that somebody you stop is going to have an arrest warrant, that’s another reason to stop

them.”231 On the other hand, Justice Alito stressed the costs associated with ruling for Strieff,

pointing out that it would be “an unusual and unprecedented result” to suppress the fruit of a

lawful search, and thus a defendant ought to present “strong circumstances” to justify

suppression.232

The Supreme Court ultimately held, in a 5-3 decision, that the discovery of the warrant was

sufficiently attenuated from the illegal stop that the evidence discovered incident to Strieff’s

arrest was admissible. Writing for the Court, Justice Thomas concluded that Officer Fackrell, in

making the illegal stop, “was at most negligent,” not flagrant.233 The Court rejected the notion

that “this unlawful stop was part of any systemic or recurrent police misconduct.”234 Rather, the

Court concluded, “all the evidence suggests that the stop was an isolated instance of negligence

that occurred in connection with a bona fide investigation of a suspected drug house.”235 But the

dissent criticized the majority for characterizing such officer behavior as “isolated instance[s] of

negligence,” noting that it is widespread practice in many localities to stop citizens and run

warrant checks, which is especially problematic, according to Justice Sotomayor, given that

outstanding warrants for minor offenses like traffic tickets are “surprisingly common.”236 In

another dissent, Justice Kagan echoed Justice Sotomayor’s concerns, contending that the

majority’s ruling will increase an officer’s incentive to violate the Constitution by giving law

enforcement a green light to stop persons without reasonable suspicion, knowing that “[s]o long

as the target is one of the many millions of people in this country with an outstanding arrest

warrant, anything the officer finds in a search is fair game for use in a criminal prosecution.”237

227

See Transcript of Oral Argument at 15:17-15:23, 23:23-24:25, 28:11-28:17, Utah v. Strieff, 136 S. Ct. 27 (2015)

(No. 14-1373); Brief for Petitioner at 8-9, 29-33 Utah v. Strieff, 136 S. Ct. 27 (No. 14-1373).

228

See Transcript of Oral Argument at 43:1-43:15, Utah v. Strieff, 136 S. Ct. 27 (2015) (No. 14-1373); Brief for

Respondent at 32-39, Utah v. Strieff, 136 S. Ct. 27 (No. 14-1373).

229

See, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006); Whren v. United States, 517 U.S. 806, 813

(1996).

230

See Transcript of Oral Argument at 13:6-14:5, 25:1-25:5, Utah v. Strieff, 136 S. Ct. 27 (2015) (No. 14-1373).

231

See Transcript of Oral Argument at 23:1-21:8, Utah v. Strieff, 136 S. Ct. 27 (2015) (No. 14-1373).

232

See Transcript of Oral Argument at 36:11-36:15, Utah v. Strieff, 136 S. Ct. 27 (2015) (No. 14-1373).

233

Utah v. Strieff, 136 S. Ct. 2056, 2063 (2016).

234

Id.

235

Id.

236

Id. at 2068 (Sotomayor & Ginsburg, JJ., dissenting).

237

Id. at 2074 (Kagan & Ginsburg, JJ., dissenting).

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Birchfield v. North Dakota

Holding: In the absence of a warrant, “a breath test, but not a blood test, may be administered as

a search incident to a lawful arrest for drunk driving,” and “motorists cannot be deemed to have

consented to submit to a blood test on pain of committing a criminal offense.” 238

In Birchfield, the Supreme Court consolidated three cases that address the Fourth Amendment

question of the circumstances under which police who, having made an arrest for drunk driving,

may conduct a warrantless sobriety test. The three are Birchfield v. North Dakota,239 Bernard v.

Minnesota,240 and Beylund v. Levi.241

Birchfield drove his car into a ditch.242 When the police arrived, Birchfield’s speech was slurred,

he was unsteady on his feet, and he smelled of alcohol.243 He agreed to a breathalyzer test after he

was informed that if he refused he could lose his license and might be prosecuted for the failure to

comply.244 When he failed the test, the officer arrested him and took him to a hospital for a blood

test, which Birchfield refused to allow.245 Birchfield pleaded guilty to a class B misdemeanor for

the refusal, but he reserved the right to appeal the Fourth Amendment issue.246 The North Dakota

Supreme Court affirmed the conviction.247

Bernard’s truck became stuck when he tried to pull a boat out of the water.248 The police arrived

in response to a complaint of public drunkenness.249 Bernard smelled of alcohol.250 He assured

officers that he had not driven the truck although the keys were in his hand at the time. 251 He

refused to take a field sobriety test and was arrested.252 He refused to take a breathalyzer test at

the police station and was criminally charged for the refusal.253 The Minnesota Supreme Court

upheld the trial court’s decision not to dismiss the charges stemming from Bernard’s refusal to

agree to the test.254

Beylund was arrested after police saw him driving erratically.255 He agreed to a blood test after he

was told the criminal penalties for the refusal and for drunk driving were the same.256 He

238

Birchfield v. North Dakota, 136 S. Ct. 2160, 2185, 2186 (2016).

136 S. Ct. 614 (2015) (No. 14-1468).

240

136 S. Ct. 615 (No. 14-1470).

241

136 S. Ct. 614 (2015) (No. 14-1507).

242

State v. Birchfield, 858 N.W.2d 302, 303 (N.D. 2015).

243

See Brief of Respondent at 10, 136 S. Ct. 614 (2015) (No. 14-1468).

244

See id. at 11.

245

See id. at 12.

246

Birchfield, 858 N.W.2d at 303.

247

See id. at 310.

248

State v. Bernard. 859 N.W.2d 762, 764 (Minn. 2015).

249

See id.

250

See id.

251

See id.

252

See id.

253

See id. at 764-65.

254

See id. at 766-74.

255

Beylund v. Levi, 859 N.W.2d 403, 406 (N.D. 2015).

256

See id.

239

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subsequently challenged the suspension of his driver’s license.257 The North Dakota Supreme

Court upheld the action.258

The Fourth Amendment,259 in conjunction with the Due Process Clause of the Fourteenth

Amendment,260 prohibits unreasonable governmental searches and seizures.261 A search or seizure

is not unreasonable when conducted pursuant to a warrant issued by a neutral magistrate upon a

finding of probable cause.262 The Supreme Court has recognized several exceptions to the warrant

requirement. One occurs under exigent circumstances when evidence must be seized immediately

or it will be lost.263 A second consists of a search incident to a lawful arrest.264 A third occurs

when the subject of law enforcement attention consents to the search or seizure.265

Justice Alito, the author of the opinion for the Court, began with the exigent circumstance

exception. He noted the McNeely holding “that the natural dissipation of alcohol from the

bloodstream does not always constitute an exigency justifying the warrantless taking of a blood

sample,” but stated that the existence of an exigency exception “depend[s] on all of the facts and

circumstances of the particular case.”266

Justice Alito then addressed the incident to arrest exception. Here too he found answers in the

Court’s recent pronouncements. In Riley, the Court had explained that incident to arrest claims are

weighed by measuring “the degree to which they intrude upon an individual’s privacy and the

degree to which they are needed for the promotion of legitimate government interests.”267

He concluded that under such a measure breath tests qualified for the exception, but blood tests

did not. “A breath test does not ‘implicate significant privacy concerns.’ Blood tests are a

different matter.... Blood tests are significantly more intrusive, and their reasonableness must be

judged in light of the availability of the less invasive alternative for a breath test.”268 Thus,

“[b]ecause breath tests are significantly less intrusive than blood tests and in most cases amply

serve law enforcement interests, [Justice Alito] concluded that a [warrantless] breath test, but not

a blood test, may be administered as a search incident to a lawful arrest for drunk driving.”269

Turning to the consent exception, Justice Alito acknowledged that the Court’s “prior opinions

have referred approvingly to the general concept of implied-consent laws that impose civil

penalties and evidentiary consequences on motorists who refuse to comply.”270 Yet in his mind,

257

See id. at 406-07.

See id. at 407-14.

259

U.S. CONST. amend. IV.

260

U.S. CONST. amend. XIV.

261

See Maryland v. King, 133 S. Ct. 1958, 1968 (2013).

262

See, e.g., City of Los Angeles, Ca. v. Patel, 135 S. Ct. 2443, 2451-52 (2015); Illinois v. McArthur, 531 U.S. 326,

330 (2001).

263

See, e.g., Schmerber v. California, 382 U.S. 757 (1966).

264

See, e.g., Riley v. California, 134 S. Ct. 2473, 2482 (2014).

265

See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

266

Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016) (citing Missouri v. McNeely, 133 S. Ct. 1552, 1560

(2013)).

267

Id. at 2176 (quoting Riley v. California, 134 S. Ct. 2473, 2484 (2014)).

268

Id. at 2178 (quoting Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 626 (1989)).

269

Id. at 2185.

270

Id.

258

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the prospect of criminal penalties carried blood tests beyond that to which a motorist could

reasonably be said to have implicitly consented.271

As for Birchfield, Bernard, and Beylund, Birchfield’s conviction, predicated upon a refusal to

submit to a warrantless, and thus unlawful, blood test, had to be reversed.272 Bernard’s conviction,

predicated upon a refusal to submit to a warrantless, but lawful, breath test, remained in place.273

Beylund, who submitted to a blood test in the face of threatened criminal prosecution and

suffered the civil and administrative consequences, saw his case returned to state court to

determine whether his consent was voluntary.274

Justices Sotomayor and Ginsburg concurred in Birchfield and Beylund, but dissented in Bernard,

because they felt the Court too readily endorsed warrantless breath tests.275 Justice Thomas

likewise concurred in part and dissented in part, but from the opposite point of view.276 He would

have overruled McNeely and held that both alcohol tests—blood tests and breath tests—always

fall within the exigent circumstance exception to the warrant clause.277

Mullenix v. Luna

Holding: “The doctrine of qualified immunity shields officials from civil liability so long as their

conduct ‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.... [E]xcessive force cases involving car chases reveal the

hazy legal backdrop against which Mullenix acted.... [W]e ... reverse the Fifth Circuit’s

determination that Mullenix is not entitled to qualified immunity.”278

Amidst widespread concern over police use of excessive force, the Supreme Court confirmed that

under existing law police officers are entitled to qualified immunity from civil liability for the use

of force in performance of their duties, except in those cases in which they should have known

their conduct was unlawful.279

The issue arose in the context of a Texas state trooper who fired a rifle at a car involved in a highspeed chase, killing the driver.280 The chase began when local police tried to arrest Israel Leija at

a drive-in restaurant.281 He fled onto the Interstate with troopers in pursuit.282 In the course of his

271

Id. at 2185-86.

Id. at 2186.

273

Id.

274

Id.

275

Id. at 2187, 2196 (Sotomayor & Ginsburg, JJ., concurring in part and dissenting in part) (“Here, the Court lacks

even the pretense of attempting to situate breath searches within the narrow and weighty law enforcement needs that

have historically justified the limited use of warrantless searches. I fear that if the Court continues down this road, the

Fourth Amendment’s warrant requirement will become nothing more than a suggestion.”).

276

Id. at 2196 (Thomas, J., concurring in part and dissenting in part).

277

Id. at 2197.

278

Mullenix v. Luna, 136 S. Ct. 305 (2015). This entry lifted substantial portions of its discussion from a legal sidebar,

CRS Legal Sidebar WSLG1513, When Can a Defendant Use Her Own Money to Pay for Her Attorney?, by (name re

dacted)

279

Mullenix v. Luna, 136 S. Ct. 305 (2015).

280

See id. at 306-08.

281

Id. at 306.

282

Id.

272

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flight, which at times reached speeds of 110 miles per hour, Leija called the police dispatcher and

threatened to shoot his pursuers unless they gave up the chase.283

In order to stop Leija, police set out tire spikes on the approach to a highway underpass in his

path.284 Trooper Mullenix, situated on the top of the underpass, decided to try to shoot out the

engine of Leija’s car to stop him.285 There is some dispute over whether Mullenix heard the radio

dispatch from his supervisor suggesting that he wait to see if the tire spikes did the job first.286 As

the speeding car approached, Mullenix fired six shots.287 The car hit the spikes and rolled over a

couple of times.288 Leija was dead with four shots in his upper body.289

Leija’s family sued under federal civil rights laws pleading that Mullenix had used excessive

force against Leija in violation of Leija’s Fourth Amendment right to be free of an unreasonable

seizure.290 Mullenix asked the court to dismiss the case before trial on qualified immunity

grounds, which shield law enforcement officers and other officials for performance of their

official duties under some circumstances.291 The U.S. district court refused.292 Mullenix

appealed.293 The three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed with

the district court.294

The panel pointed out that “the doctrine of qualified immunity shields ‘government officials

performing discretionary functions ... from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.’”295 The test is two-fold.296 First, did the official violate a constitutional or

statutory right?297 Second, was the constitutional or statutory right so clearly established that the

official must have known that it banned his conduct?298

As for the first step, the panel distinguished two recent Supreme Court cases that had found

qualified immunity warranted in cases involving police shootings to terminate a high-speed

chase.299 They felt that “the real inquiry is whether the fleeing suspect posed such a threat that the

use of deadly force was justifiable,” and that based only on the plaintiff’s facts the use of deadly

force was not justified.300 On the second step, they concluded it was clearly established that an

283

Id.

285

Id. at 306-07.

286

See id.

287

Id. at 307.

288

Id.

289

Id.

290

Luna v. Mullenix, 773 F.3d 712, 717-18 (5th Cir. 2014), rev’d Mullenix v. Luna, 136 S. Ct. 305 (2015).

291

Id. at 718.

292

Id.

293

Id.

294

Id. at 726.

295

Id. at 718 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

296

See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).

297

See id.

298

See id. at 1866.

299

See Luna v. Mullenix, 773 F.3d 712, 720 (analyzing Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) and Scott v.

Harris, 550 U.S. 372 (2007)).

300

See id. at 720-24 (internal quotation marks and citation omitted).

284

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officer may use deadly force against a fleeing suspect only when the suspect poses a threat of

immediate, serious harm to others.301

Mullenix asked for a rehearing en banc. The Fifth Circuit denied the request, but 7 members of

the 19 judges on the Fifth Circuit disagreed.302

The Supreme Court in an 8-1, unsigned opinion agreed with Mullenix. Without reaching the

Fourth Amendment first step, the Court concluded that any Fourth Amendment right was not

clearly established.303 The standard applied by the panel of the Fifth Circuit (“was the threat

sufficient to justify the use of deadly force”) was too general.304 As for the more particularized

inquiry, the “excessive force cases involving car chases reveal the hazy legal backdrop against

which Mullenix acted.”305

Justice Scalia agreed with the result but thought the law was not clearly established for a different

reason.306 In his mind, the car-chase cases cited by the Court involve the use of deadly force in

order to make an arrest.307 He felt that Mullenix should have been seen as a question of deadly

force directed at the car rather than its driver.308

Justice Sotomayor dissented.309 She would have held that Mullenix “violated Leija’s clearly

established right to be free of intrusion absent some governmental interest,” when he failed to

wait to see if the tire spikes would disable Leija’s car.310 She also expressed a concern that “[b]y

sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of

the Fourth Amendment hollow.”311

Fifth Amendment

Puerto Rico v. Sanchez Valle312

Holding: The Double Jeopardy Clause of the United States Constitution bars the federal

government and Puerto Rico from successively prosecuting a defendant on like charges for the

same conduct.313

Luis Sanchez Vallee sold a firearm to an undercover police officer.314 A Puerto Rican grand jury

indicted him for violation of Puerto Rican law,315 and a federal grand jury indicted him for

301

See id. at 724-25.

Mullenix v. Luna, 136 S. Ct.305, 308 (2015).

303

Id. at 308-12.

304

See id.

305

Id. at 309.

306

See id. at 312-13 (Scalia, J., concurring).

307

See id. at 312.

308

See id. at 312-13.

309

Id. at 313-16 (Sotomayor, J., dissenting).

310

Id. at 314-15.

311

Id. at 316.

312

Kenneth Thomas, a legislative attorney in the American Law Division, prepared this section of the report. It is

available as a free-standing legal sidebar, CRS Legal Sidebar WSLG1427, Tropical Storm? The Supreme Court

Considers Double Jeopardy and the Sovereign Status of Puerto Rico, by (name redacted)

313

Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1870 (2016).

314

Id. at 1869.

302

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violating federal law for the same sale.316 Sanchez Valle pleaded guilty to the federal charges and

moved to dismiss the Puerto Rican charges on double jeopardy grounds.317 The trial court granted

the motion to dismiss.318 The Puerto Rican Court of Appeals reversed and was in turn reversed by

the Supreme Court of Puerto Rico.319

The double jeopardy issue is grounded in history. Acquired by treaty after the Spanish-American

War of 1898,320 the Commonwealth of Puerto Rico has been granted self-government, it has

adopted a constitution, and its residents have been given U.S. citizenship.321 The nature of the

relationship between the U.S. territory and the federal government, however, remains the subject

of a long-standing legal and political dispute.322 Based in part on statutory language providing

that the relationship between Puerto Rico and the United States is “in the nature of a compact,”323

arguments have been made that any change in Puerto Rico’s political status must be consented to

by both parties.324 Others argue that, under the Territory Clause,325 the United States has plenary

authority to legislate regarding Puerto Rico without first obtaining the Puerto Rican government’s

consent.326

In Puerto Rico v. Sanchez Valle,327 the Court was called upon to decide whether defendants in a

criminal case can be prosecuted under the local laws of Puerto Rico if they have been previously

convicted under federal criminal law for the same offense. The Double Jeopardy Clause of the

Fifth Amendment provides that no person shall “for the same offense ... be twice put in jeopardy

of life or limb.”328 Under the dual sovereignty doctrine, however, if two separate sovereigns

prosecute a person for the same offense, the constitutional protection against double jeopardy is

not triggered.329 Thus, the Supreme Court has held that state and federal prosecutions can be

brought for the same offense,330 and similarly, it has allowed dual prosecutions by the federal

government and Indian tribes.331 The Court, however, has also held that, as territories operate

(...continued)

315

Id. (noting P.R. LAWS ANN. tit. 25, §458 (2008)).

316

Id. (noting 18 U.S.C. §§922(a)(1)(A), 923(a), 924(a)(1)(D), 924(a)(2)).

317

Id. (citing App. to Petition for Writ of Certiorari, Puerto Rico v. Valle (No. 15-108), at 307a-352a).

318

Id.

319

Puerto Rico v. Valle, 192 D.P.R. 594 (P.R. 2015), ___ P.R. OFFIC. TRANS. ___ (translation available at

http://www.scotusblog.com/wp-content/uploads/2015/10/SanchezValleEnglish.pdf).

320

Treaty of Peace Between the United States of America and the Kingdom of Spain, 30 Stat. 1754, T.S. No. 343

(1899).

321

See 48 U.S.C. §§731b, 733; 8 U.S.C. §1402; CONSTITUTION OF THE COMMONWEALTH OF PUERTO RICO.

322

See CRS Report R42765, Puerto Rico’s Political Status and the 2012 Plebiscite: Background and Key Questions,

by (name redacted).

323

See 48 U.S.C. §731b.

324

Testimony on the Nov. 6, 2012, Referendum on the Political Status of Puerto Rico and the Admin.’s Response:

Hearing Before the Comm. on Energy & Nat. Res., 113th Cong. (2013).

325

U.S. CONST., art. IV, §3, cl. 2.

326

MAGGIE GRANT ET AL., REPORT BY THE PRESIDENT’S TASK FORCE ON PUERTO RICO’S STATUS (December 2007),

available at http://www.justice.gov/sites/default/files/opa/legacy/2007/12/21/2007-report-by-the-president-task-forceon-puerto-rico-status.pdf#page=12.

327

136 S. Ct. 28 (2015).

328

U.S. CONST. amend. V, cl. 2.

329

See, e.g., United States v. Dixon, 509 U.S. 688, 724-25 (1993).

330

See Abbate v. United States, 359 U.S. 187, 194-95 (1959).

331

See United States v. Lara, 541 U.S. 193, 208-09 (2004).

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under power delegated to them by Congress, they are not to be treated as separate sovereigns for

purposes of the Double Jeopardy Clause.332

The case came to the Court from the Supreme Court of Puerto Rico, the island’s highest territorial

court, which held, consistent with U.S. Supreme Court precedent, that since Puerto Rico is not a

separate sovereign, it cannot prosecute a person who has been convicted in federal court for the

same crime.333 This view, however, conflicted with an earlier opinion by the federal appellate

court with jurisdiction over Puerto Rico, the U.S. Court of Appeals for the First Circuit, which

held that Puerto Rico should be treated as a state for purposes of double jeopardy, allowing a

person to be prosecuted for the same crime under Puerto Rican and federal laws.334 There was

also a long-standing circuit split between the First Circuit decision and an opinion by the U.S.

Court of Appeals for the Eleventh Circuit on this issue.335

Puerto Rico, in its petition to the Court for a writ of certiorari, conceded that the dual sovereignty

doctrine has not previously been applied to a territory, but it argued that the nature of Puerto

Rico’s relationship with the United States changed in 1950.336 In that year, Congress passed P.L.

81-600 (Public Law 600), which contains the “compact” language that allowed Puerto Rico to

“organize a government pursuant to a constitution of their own adoption,” subject to

congressional approval. Puerto Rico argued that when Congress subsequently approved its

constitution, this approval established the sovereignty of Puerto Rico in much the same way that

other territories have achieved statehood.337 Puerto Rico analogized this legislatively created

sovereignty to the sovereignty of Indian tribes, and further notes instances where Puerto Rico has

been treated as a state in statutory contexts.338

The defendants, in their response to the petition, argued that the passage of Public Law 600 did

not change the nature of the relationship between Puerto Rico and the United States, noting

Congress’s retention of plenary authority to review Puerto Rico’s constitution before it became

effective.339 Further, the defendants argued, the legislative history of Public Law 600 provided

that nothing in the law would change Puerto Rico’s political, social, and economic relationship to

the United States.340

The Court, speaking through Justice Kagan, concluded that the Double Jeopardy Clause does not

permit the two entities, the federal government and Puerto Rico, to successively prosecute the

defendant for essentially the same crime.341 She began with the observation that the inquiry did

“not probe whether a government possesses the usual attributes, or acts in the common manner, of

a sovereign…. [but] whether [the prosecuting entities] draw their authority to punish the offender

from distinct sources of power.”342

332

See Grafton v. United States, 206 U.S. 333, 354-55 (1907).

Puerto Rico v. Valle, 192 D.P.R. 594 (P.R. 2015), translation available at http://www.scotusblog.com/wp-content/

uploads/2015/10/SanchezValleEnglish.pdf.

334

See United States v. Lopez Andino, 831 F.2d 1164, 1167-68 (1st Cir. 1987).

335

See United States v. Sanchez, 992 F.2d 1143, 1151-53 (11th Cir. 1993).

336

Petition for Writ of Certiorari, Puerto Rico v. Valle, 136 S. Ct. 28 (2015) (No. 15-108).

337

Id.

338

Id.

339

Reply Brief in Opposition to Petition for Writ of Certiorari, 136 S. Ct. 28 (2015) (No. 15-108).

340

136 S. Ct. 28 (2015) (No. 15-108).

341

Puerto Rico v. Sanchez Vallee, 136 S. Ct. 1863, 1870 (2016).

342

Id. at 1870-71.

333

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She explained that, for example, “the States rely on ‘authority originally belonging to them before

admission to the Union and preserved to them by the Tenth Amendment.’”343 By the same token,

“[o]riginally … ‘the [Indian] tribes were self-governing sovereign political communities,’

possessing … the ‘inherent power to prescribe laws for their members and to punish infractions

of those laws.’”344

In the case of Puerto Rico, Justice Kagan saw the question as: “Do the prosecutorial powers

belonging to Puerto Rico and the Federal Government derive from whole independent sources?”

She confirmed that with Public Law 600 and with the Commonwealth’s subsequent adoption of a

constitution, Puerto Rico underwent a profound political change.345 The question, however, was

not about the change, but about the power to make the change.346 “Congress conferred the

authority to create the Puerto Rico Constitution, which in turn confers the authority to bring

criminal charges. That makes Congress the original source of power for Puerto Rico’s

prosecutors,” Justice Kagan reminded the parties.347 When “an entity’s authority to enact and

enforce criminal law ultimately comes from Congress,” she continued, “then it cannot follow a

federal prosecution with its own. That is true of Puerto Rico, because Congress authorized and

approved its Constitution, from which prosecutorial power now flows.”348

The Court therefore affirmed the decision of the Supreme Court of Puerto Rico that the Double

Jeopardy Clause’s dual sovereign doctrine does not permit successive federal and Puerto Rico

prosecutions for the “same offense.”349

Justices Ginsburg and Thomas joined in the Court’s opinion, but offered a concurring opinion to

reflect their view that the dual sovereign doctrine seems at odds with the spirit of the Double

Jeopardy Clause.350 Justice Thomas filed an individual concurrence in which he declined to join

that portion of the Court’s opinion that recited its Indian law-Double Jeopardy precedents.351

Justices Breyer and Sotomayor dissented, because they believe “for Double Jeopardy Clause

purposes that the criminal law of Puerto Rico and the criminal law of the Federal Government do

not find their legitimacy-conferring origin in the same ‘source.’”352

Sixth Amendment

The Court’s Sixth Amendment cases this term offer a variety of issues ranging from speedy trial,

to forfeiture and the right to counsel of choice, to the use of uncounseled convictions as predicate

offenses.

343

Id. at 1871.

Id.

345

Id. at 1874.

346

Id.

347

Id.

348

Id. at 1875.

349

Id. at 1876-77.

350

Id. at 1877 (Ginsburg & Thomas, JJ., concurring).

351

Id. (Thomas, J., concurring in part and concurring in the judgment).

352

Id. at 1884-85 (Breyer & Sotomayor, JJ., dissenting).

344

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Luis v. United States

Holding: “Pretrial restraint of legitimate, untainted assets needed to retain counsel of choice

violates the Sixth Amendment.” (Plurality).353

The Supreme Court decided in a 4-1-3 opinion that the “pretrial restraint of legitimate, untainted

assets needed to retain counsel of choice violates the Sixth Amendment.”354 Justice Breyer, in an

opinion joined by the Chief Justice and Justices Ginsburg and Sotomayor, based his conclusion

on “the nature and importance of the constitutional right taken together with the nature of the

assets” in the case.355 Justice Thomas, who concurred in the judgment, based the same conclusion

“strictly on the Sixth Amendment’s text and common-law backdrop.”356

Sila Luis was indicted for health care fraud.357 The indictment also identified certain of Luis’s

assets as property generated by the offense.358 The government initiated a civil forfeiture

proceeding based on the grand jury’s probable cause finding.359 It also secured a pre-trial freeze

order covering substitute assets (“property of equivalent value” to the tainted assets) not traceable

to the tainted assets, after the court found that Luis had disposed of some of the tainted assets.360

Luis argued before both the district court and the U.S. Court of Appeals for the Eleventh Circuit

that she needed to substitute assets to pay her defense attorney and that as a consequence the

freeze order violated her Fifth and Sixth Amendment rights.361 The Eleventh Circuit held that her

arguments were foreclosed by the Supreme Court’s Monsanto, Caplin & Drysdale, and Kaley

decisions.362 The Supreme Court granted certiorari to decide the constitutional issue.363

The Court’s Caplin & Drysdale and Monsanto cases arose under the Controlled Substances Act

(CSA). The CSA authorizes the confiscation of tainted property traceable to a violation of its

provisions. It also authorizes the confiscation of untainted property (“substitute assets”) when the

tainted property is unavailable. Moreover, it states that the United States acquires title to tainted

property when the forfeiture-triggering offense is committed. And most pertinent here, it

authorizes pre-trial restraining orders to prevent the dissipation of tainted and untainted assets.

The Caplin & Drysdale decision declared that “[w]hatever the full extent of the Sixth

Amendment’s protection of one’s right to retain counsel of his choosing, that protection does not

go beyond the individual’s right to spend his own money to obtain the advice and assistance of

counsel.” Thus, it held “[a] defendant has no Sixth Amendment right to spend another person’s

money for services rendered by an attorney, even if those funds are the only way that that

defendant will be able to retain the attorney of his choice.”

353

Luis v. United States, 136 S. Ct. 1083, 1088 (2016).

Id.

355

Id. (Breyer, Ginsburg, Sotomayor, JJ., & Roberts, Ch.J.).

356

Id. at 1096 (Thomas, J., concurring in the judgment).

357

United States v. Luis, 564 Fed. Appx. 493 (11th Cir. 2014).

358

Id. at 494.

359

Id.

360

Id.

361

Id.

362

Id., citing, United States v. Monsanto, 491 U.S. 600, 616 (1989); Caplin & Drysdale Chartered v. United States, 491

U.S. 617, 631 (1989); and Kaley v. United States, 134 S Ct. 1090, 1105 (2014).

363

Luis v. United States, 135 S. Ct. 2798 (No. 14-419) (2015).

354

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The Monsanto decision held that a judicial finding of probable cause to believe assets were

tainted and therefore forfeitable was all that the Constitution required for a pre-trial restraining

order barring disposal of the assets, even to pay attorneys’ fees. The Kaley decision held that a

grand jury’s finding of probable cause was enough for a restraining order without the necessity of

a judicial probable cause hearing.

Luis noted that each of these cases involved tainted assets and that her case involved untainted

assets. She argued that therefore the untainted assets she intended to use to finance her criminal

defense may not be frozen as a matter of Sixth Amendment right. Five of the Justices essentially

agreed.

Justice Breyer reiterated that “the Sixth Amendment grants a defendant ‘a fair opportunity to

secure counsel of his own choice.’”364 He agreed with Luis that fact that her frozen assets were

untainted represented a critical departure from the Court’s earlier cases.365 He offered three

reasons to conclude that the restraining order offended Luis’s Sixth Amendment rights. First,

Luis’s constitutionally protected right to her counsel of choice carried greater weight than the

government’s interest in forfeiture and restitution.366 Second, as a matter of legal history, seizure

of untainted property prior to conviction was virtually unheard of.367 Third, the government’s

position carried to its logical conclusion could sweep away a defendant’s right to the assistance of

a counsel of choice.368

Justice Thomas agreed the Sixth Amendment barred pre-trial restraint of the defendant’s untainted

assets, but he would stop there. He declined to “endorse the plurality’s atextual balancing

analysis.” 369

Justice Kennedy, joined by Justice Alito in dissent, bemoaned the fact that the plurality’s

“unprecedented holding rewards criminals who hurry to spend, conceal, or launder stolen

property by assuring them that they may use their own funds to pay for an attorney after they

have dissipated the proceeds of their crime.” 370 Justice Kagan dissented because she believed the

Court was bound by its Monsanto precedent.371

Betterman v. Montana

Holding: The Sixth Amendment’s Speedy Trial Clause does not apply once a defendant has

pleaded guilty or has been found guilty after a trial.372

364

Luis, 136 S. Ct. at 1089 (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)).

Id. at 1090 (“The property at issue here, however, is not loot, contraband, or otherwise ‘tainted.’ It belongs to the

defendant. That fact undermines the Government’s reliance upon precedent, for both Caplin & Drysdale and Monsanto

relied critically upon the fact that the property at issue was ‘tainted’ and that title to the property therefore had passed

from the defendant to the Government before the court issued its order freezing (or otherwise disposing of) the assets”).

366

Id. at 1093.

367

Id. at 1093-94.

368

Id. at 1094.

369

Id. at 1101 (Thomas, J., concurring in the judgment).

370

Id. at 1103 (Kennedy & Alito, JJ., dissenting).

371

Id. at 1112 (Kagan, J., dissenting) (quoting Monsanto, 491 U.S. at 616) (“No constitutional violation occurs when,

after probable cause is adequately established the Government obtains an order barring a defendant from ... dissipating

his assets prior to trial”).

372

Betterman v. Montana, 136 S. Ct. 1609, 1613 (2016).

365

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Betterman v. Montana presented the question of whether the Sixth Amendment right to a speedy

trial applies through sentencing or, instead, ends once a conviction has been obtained.373 The

Sixth Amendment states that “the accused shall enjoy the right to a speedy and public trial,”374

which the Court has described as a “fundamental right” that is “specifically affirmed in the

Constitution.”375 The Fourteenth Amendment’s Due Process Clause makes the Sixth Amendment

binding on the states.376 The right to a speedy trial is enforced, in part, by the Speedy Trial Act of

1984, as amended, which sets deadlines (with statutory exceptions) for federal courts to complete

various stages of a criminal prosecution.377 Montana has a corresponding constitutional right but

no comparable statutory provision.378 The consequence of denying this Sixth Amendment right to

a defendant is having the charges against the accused dismissed.379

Brandon Betterman was charged with bail jumping after failing to appear for his sentencing

hearing for a domestic assault conviction in Montana.380 Eventually, Betterman turned himself in,

after which he was sentenced for the domestic assault charges; he remained in county jail (instead

of being transferred to a state penitentiary to begin serving his sentence) during the criminal

proceedings for the bail jumping charge.381 Fourteen months passed between the date on which

Betterman was arraigned for, and pleaded guilty to, the bail jumping charge (April 19, 2012) and

his sentencing hearing (June 27, 2013).382 While he awaited sentencing, Betterman moved to

dismiss the bail jumping charge after nine months had passed since his guilty plea, contending

that the delay in sentencing violated his right to a speedy trial under the Sixth Amendment.383 The

trial court denied that motion, and the Montana Supreme Court affirmed.384

One of Betterman’s principal arguments for why the Sixth Amendment’s Speedy Trial Clause

should apply until sentencing concludes centers on the Framers’ intent and the text and history of

the Clause.385 Yet with Justice Scalia no longer on the bench, it was hard to predict how those

rationales would factor into the Court’s analysis. According to Betterman, when the Framers

penned the Bill of Rights, criminal proceedings were “unitary,” and so when using the word

“trial” in the Amendment’s text, the Framers “adopted protections encompassing not just the petit

jury stage but also the sentence and judgment that followed.”386 Montana disputes Betterman’s

contention, and adds that the Amendment’s text, which affords a right to the “accused”—not the

convicted—lends support to the conclusion that the right does not continue through sentencing.387

373

This section of the report was the beneficiary of contributions found in a legal sidebar, CRS Legal Sidebar

WSLG1525, Does a Defendant Have a Right to Speedy Sentencing Proceedings?, by (name redacted) .

374

U.S. CONST. amend. VI.

375

See Barker v. Wingo, 407 U.S. 514, 533 (1972).

376

Smith v. Hooey, 393 U.S. 374, 374-75 (1969); Klopfer v. North Carolina, 386 U.S. 213, 216-26 (1967).

377

See 18 U.S.C. §§3161-3174; see also UNITED STATES ATTORNEYS’ CRIMINAL RESOURCE MANUAL §628, available at

https://www.justice.gov/usam/criminal-resource-manual-628-speedy-trial-act-1974 (last visited Mar. 28, 2016).

378

See MONT. CONST. art. II, §24.

379

See Strunk v. United States, 412 U.S. 434, 440 (1973); Barker v. Wingo, 407 U.S. 514, 522 (1972); United States v.

Moreno, 789 F.3d 72, 78 (2d Cir. 2015); United States v. Margheim, 770 F.3d 1312, 1325 (10 th Cir. 2014).

380

See Joint Appendix at 10-15, Betterman v. Montana, 136 S. Ct. 582 (2015) (No. 14-1457).

381

See State v. Betterman, 342 P. 3d 971, 973 (Mont. 2015).

382

Id. at 973-74.

383

Id. at 973.

384

Id. 973, 981.

385

See Brief for Petitioner at 10-11, Betterman v. Montana, 136 S. Ct. 582 (2015) (No. 14-1457).

386

Id. at 11.

387

See Brief for Respondent at 27, Betterman v. Montana, 136 S. Ct. 582 (2015) (No. 14-1457).

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The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief in

support of Betterman, bringing a human-impact hook for the Court to consider. According to the

NACDL, many prisoners, like Betterman, spend long periods in jail awaiting trial, but those

facilities are often overcrowded and ill-equipped to handle extended stays, preventing prisoners

from accessing adequate medical care and various rehabilitation programs.388 Thus, the NACDL

argues, applying the right to sentencing proceedings could reduce the amount of time in, and

allegedly oppressive consequences of, state jail stays.389

The Supreme Court was unpersuaded by Betterman’s arguments and unanimously held that the

Sixth Amendment’s Speedy Trial Clause does not apply once a defendant has pleaded guilty or

been found guilty after trial.390 The Court, in an opinion by Justice Ginsburg, noted that the

Speedy Trial Clause helps protect the accused’s presumption of innocence by “‘prevent[ing]

undue and oppressive incarceration prior to trial ... and ... limit[ing] the possibilities that long

delay will impair the ability of an accused to defend himself.’”391 But that protection, the Court

clarified, “loses force upon conviction.”392 Additionally, the Court reasoned that its conclusion fits

with the historical understanding of the right to a speedy trial, noting that the Framers believed

that “a presumptively innocent person should not languish under an unresolved charge,” and thus

the language chosen—guaranteeing a right to the “accused”—was purposeful and distinct from

the convicted.393 Moreover, the Court added that “[t]he sole remedy for a violation of the speedy

trial right—dismissal of the charges—fits the preconviction focus of the Clause” because, the

Court reasoned, “it would be an unjustified windfall, in most cases, to remedy sentencing delay

by vacating validly obtained convictions.”394 Still, the Court noted that a defendant who

experiences “inordinate delay in sentencing” possibly may be able to seek relief through the Due

Process Clause—an issue that Betterman did not raise,395 but which Justices Thomas, Alito, and

Sotomayor noted in separate concurrence.396

United States v. Bryant

Holding: Reliance on valid uncounseled tribal-court misdemeanor convictions to prove 18

U.S.C. Section 117(a)’s predicate offense element violates neither the Sixth Amendment nor the

Due Process Clause.397

The federal domestic assault by an habitual offender law makes it a crime punishable by

imprisonment for up to five years to commit domestic violence within Indian country or U.S.

territorial jurisdiction if the offender has at least two prior federal, state, or tribal convictions for a

comparable offense.398 As a general rule, the Constitution assures indigent defendants the right to

388

See Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at

6-10, Betterman v. Montana, 136 S. Ct. 582 (2015) (No. 14-1457).

389

Id. at 2-3.

390

Betterman v. Montana, 136 S. Ct. 1609 (2016).

391

Id. at 1614 (quoting United States v. Marion, 404 U.S. 307, 320 (1971)).

392

Id.

393

See id.

394

See id. at 1615 (internal citations omitted).

395

Id. at 1612.

396

Id. at 1618 (Thomas & Alito, JJ., concurring); id. (Sotomayor, J. concurring).

397

United States v. Bryant, 136 S. Ct. 1954, 1959, 1966 (2016).

398

18 U.S.C. §117.

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an appointed attorney in any criminal case where a term of imprisonment is imposed.399 Indian

defendants in tribal courts, however, enjoy no such constitutional assurance.400

Bryant, a tribal member and reservation resident, had been convicted in tribal court of domestic

violence on a number of occasions.401 He had been imprisoned more than once as a consequence,

although always for less than a year.402 When he was indicted under the federal domestic violence

law, he asked the U.S. District Court for the District of Montana to dismiss the charges.403 He

argued that the Sixth Amendment did not permit use of his uncounseled tribal court convictions

as proof of an element of the federal domestic violence offense.404 The district court refused to

dismiss.405 The Ninth Circuit reversed.406 It felt bound by its earlier decision in United States v.

Ant decision and was unconvinced by later developments.407 It concluded that “[b]ecause Bryant’s

tribal court domestic abuse convictions would have violated the Sixth Amendment right to

counsel had they been obtained in federal or state court, using them to establish an element of the

offense in a subsequent [federal] prosecution is constitutionally impermissible.”408

The Ant decision held that the Sixth Amendment barred the evidence of a defendant’s

uncounseled tribal court guilty plea in a parallel federal prosecution.409 Soon thereafter, however,

the Supreme Court observed in the course of its Duro v. Reina opinion that in proceedings against

tribal members, a tribal court was not bound by the Bills of Rights—and that even when

reinforced by the Indian Civil Rights Act, there was no right to appointed counsel in tribal

courts.410 Still later, the Supreme Court in Nichols declared “an uncounseled [state] misdemeanor

conviction[] valid ... because no prison term was imposed,” and “also valid when used to enhance

punishment at a subsequent [federal] conviction.”411

The Ninth Circuit saw no incompatibility between Ant and Nichols because “even after Nichols,

uncounseled convictions that resulted in imprisonment generally could not be used in subsequent

prosecutions.”412 As the Ninth Circuit conceded, the Eighth and Tenth Circuits saw it

differently.413 For them, the lesson from Nichols was not why uncounseled convictions were

valid, but that the reason didn’t matter as long as they were valid convictions: “The ultimate

question ... is whether an uncounseled conviction resulting in a tribal incarceration that involved

no actual constitutional violation may be used later in federal court.... As per Nichols, then, we

believe it is necessary to accord substantial weight to the fact that [the defendant’s] prior

399

See, e.g., Scott v. Illinois, 440 U.S. 367 (1979)

See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

401

See United States v. Bryant, 769 F.3d 671, 672-73 (9th Cir. 2014); Brief for Respondent at 3, 136 S. Ct. 690 (No. 15420).

402

See Bryant, 769 F.3d at 673; Brief for Respondent at 3, 136 S. Ct. 690 (No. 15-420).

403

Bryant, 769 F.3d at 673.

404

See id.

405

Id.

406

Id. at 679.

407

See id. at 676-79.

408

Id. at 677.

409

United States v. Ant, 882 F.2d 1389 (9th Cir. 1989).

410

Duro v. Reina, 495 U.S. 676 (1990).

411

Nichols v. United States, 511 U.S. 738, 749 (1994).

412

Bryant, 769 F.3d at 677.

413

Id. at 678 (citing United States v. Shavanaux, 647 F.3d 993 (10th Cir. 2011) and United States v. Cavanaugh, 643

F.3d 592 (8th Cir. 2011)).

400

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convictions involved no actual constitutional violation” because the Sixth Amendment does not

apply in tribal court.414

The Supreme Court agreed. Justice Ginsburg pointed out in the opinion for the Court that

“Bryant’s tribal-court convictions ... infringed no constitutional right because the Sixth

Amendment does not apply to tribal-court proceedings.”415 What counted for Sixth Amendment

purposes was that Bryant enjoyed the full advantage of counsel at his subsequent federal Section

117 trial.416 Moreover, Justice Ginsburg observed, echoing sentiments expressed below, “It would

be ‘odd to say that conviction untainted by a violation of the Sixth Amendment triggers a

violation of that same amendment when it’s used in a subsequent case where the defendant’s right

to appointed counsel is fully respected.’”417

Bryant fared no better with his argument that the want of counsel in tribal court undermined the

validity of tribal convictions, triggering a due process bar to their use in later federal criminal

proceedings. Not so, said Justice Ginsburg. The panoply of statutory rights guaranteed there

“sufficiently ensure the reliability of tribal-court convictions.”418

Justice Thomas filed a concurring opinion.419 He agreed the Court’s precedents dictated the

result.420 He continued, however, to question the validity of those earlier pronouncements.421

Maryland v. Kulbicki

Holding: Failure to anticipate that the Comparative Bullet Lead Analysis would be discredited

did not constitute ineffective assistance of counsel.422

In its first opinion of the 2015 term, Maryland v. Kulbicki, the Court reversed per curiam and

unanimously, a decision of the Maryland Court of Appeals.423

Kulbicki had been convicted of first degree murder, based in part on the testimony of a forensic

expert whose testimony relied on a so-called Comparative Bullet Lead Analysis (CBLA).424 Some

years later, Maryland’s highest court declared Comparative Bullet Lead Analysis unreliable.425

Kulbicki filed a petition for post-conviction relief challenging both the reliability of the analysis

and the effectiveness of his attorney’s cross-examination of the forensic expert.426 The trial court

denied the petition.427 The Maryland Court of Special Appeals affirmed.428 Then, the Maryland

Court of Appeals reversed based upon counsel’s failure to unearth and exploit a report that cast

414

See Cavanaugh, 643 F.3d at 603-04.

United States v. Bryant, 136 S. Ct. 1954, 1964 (2016).

416

Id. at 1965.

417

Id. (quoting United States v. Bryant, 769 F.3d 671, 679 (9th Cir. 2014) (Watford, J., concurring).

418

Id. at 1966.

419

Id. at 1967 (Thomas, J., concurring).

420

Id.

421

Id.

422

Maryland v. Kulbicki, 136 S. Ct. 2, 3 (2015).

423

Id. at 2.

424

Kulbicki v. State, 99 A.3d 730, 731-32 (Md. 2014).

425

Id. at 732.

426

Id.

427

Id.

428

Kulbicki v. State, 53 A.3d 361 (2012).

415

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doubt on the analysis.429 The Supreme Court overturned the decision of the Maryland Court of

Appeals.430

The Sixth Amendment, made binding on the states through the Due Process Clause of the

Fourteenth Amendment, assures the criminally accused of the effective assistance of counsel.431

The assistance of counsel is constitutionally ineffective when counsel’s “performance is deficient,

meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial,

meaning his errors deprive the defendant of a fair trial.432

The Maryland Court of Appeals erroneously used hindsight to judge the effectiveness of

Kulbicki’s counsel, the Supreme Court concluded.433 The appropriate standard looks at the

adequacy of performance at the time it occurred.434 At the time of Kulbicki’s trial, the analysis

was widely accepted. Thus, Kulbicki’s “[c]ounsel did not perform deficiently by dedicating their

time and focus to elements of the defense that did not involve poking methodological holes in a

then-uncontroversial mode of ballistics analysis,” the Court explained.435

Sentencing

Capital punishment cases represent the lion’s share of the Court’s sentencing cases this term.

However, the class also includes the matter of the retroactive application of Miller v. Alabama’s

prohibition on a life without parole sentence for murder by a juvenile and the harmless error

standard in sentencing cases.

Montgomery v. Louisiana

Holding: The United States Supreme Court has “jurisdiction to decide whether the Supreme

Court of Louisiana correctly refused to give retroactive effect to ... Miller.”

“Miller’s prohibition on mandatory life without parole for juveniles [without] the opportunity to

show their crime did not reflect irreparable corruption” applies retroactively even in state

collateral review proceedings.436

Early in the year, the U.S. Supreme Court declared that the previously announced ban on

mandatory life imprisonment for juvenile crimes must apply to crimes committed before the

ban.437 The case, Montgomery v. Louisiana, has several distinctive aspects. First, it grants a 69year-old inmate relief based on a sentence imposed for a murder that occurred when he was 17.438

Second, it departs from a tradition under which groundbreaking Court decisions rarely travel back

429

Kulbicki, 99 A.3d at 734.

Kulbicki, 136 S. Ct. at 5.

431

Id. at 2-3 (quoting U.S. CONST. amend. VI and citing Gideon v. Wainwright, 372 U.S. 335 (1963)).

432

Id. at 3 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

433

Id.

434

Id. (citing Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), and Strickland, 466 U.S. at 690).

435

Id. It also noted that “[g]iven the uncontroversial nature of CBLA at the time of Kulbicki’s trial, the effect of the

judgment below is to demand that lawyers go ‘looking for a needle in a haystack,’ even when they have ‘reason to

doubt there is any needle there,’” id. at 4-5 (quoting Rompilla v. Beard, 545 U.S. 374, 389 (2005).

436

Montgomery v. Louisiana, 136 S. Ct. 718, 732, 736 (2016).

437

Id.

438

See id. at 725-26.

430

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to long finalized cases. Third, it uses the so-called Teague439 doctrine as a vehicle, even though

the doctrine was heretofore only invoked to limit state prisoner access to federal habeas corpus

review. Finally, its burdens fall most heavily upon the states because federal juvenile prosecutions

are few, and federal murder prosecutions are even more uncommon.

If the particulars of the Court’s disposal of the case were somewhat unusual, the result was

probably not totally unexpected. The Court had already stated that the Eighth Amendment’s cruel

and unusual punishment clause would not permit (1) use of the death penalty for a murder

committed by a juvenile;440 (2) a sentence of life imprisonment without the possibility of parole

for an offense other than murder committed by a juvenile;441 or (3) a sentence of life

imprisonment without the possibility of parole for a murder committed by a juvenile.442

At 17 years of age in 1963, Montgomery killed a deputy sheriff.443 He was sentenced to life in

prison with no chance of parole, the only sentence available when the jury declined to vote for the

death penalty.444 He asked the Louisiana courts to toss out his sentence when its constitutional

defects become apparent after Miller.445 They refused on the ground that the Supreme Court’s

decisions have not been carried back to the cases of inmates like Montgomery whose appeals had

long since become final.446

State prisoners may ask for review of their convictions or sentences in three stages. First, they

may appeal their convictions or sentences in state court (“direct review”). Second, they may ask

their state courts to overturn their convictions or sentences under a post-appeal procedure

available in each of the states (“collateral review”). Finally, they may ask the federal courts to

overturn their convictions or sentences under federal habeas corpus procedures.

Montgomery was at the second stage. Had he been at the third stage, the federal habeas corpus

stage, he would have encountered the Teague doctrine. The doctrine, so named for the Supreme

Court case in which it was first stated, Teague v. Lane, seeks finality.447 It provides that federal

habeas corpus review is not available to consider an inmate’s request for a “new rule,” that is, a

groundbreaking constitutional interpretation.448 The doctrine has two exceptions.449 It does not

apply to substantive new rules that void a previously valid crime or penalty.450 And, it does not

apply when the new rule is a “watershed” decision, one that “implicat[es] the fundamental

fairness and accuracy of the criminal proceeding.”451

The Supreme Court in Montgomery decided to apply Teague’s exception to the second stage, the

stage at which Montgomery found himself: “when a new substantive rule of constitutional law

controls the outcome of a case, the Constitution requires state collateral review courts to give

439

See Teague v. Lane, 489 U.S. 288 (1989).

See Roper v. Simmons, 543 U.S. 551 (2005).

441

See Graham v. Florida, 560 U.S. 48 (2010).

442

See Miller v. Alabama, 132 S. Ct. 2455 (2012).

443

Montgomery, 136 S. Ct. at 725.

444

Id. at 725-26.

445

Id. at 726.

446

Id. at 726-27.

447

489 U.S. 288 (1989).

448

See id.

449

See Montgomery, 136 S. Ct. at 728.

450

See id.

451

See id.

440

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retroactive effect to that rule.” In the eyes of the Court, the Miller decision is such a rule; it

voided a sentence of life imprisonment without the possibility of parole for a murder committed

by a juvenile who was denied the opportunity to prove that he was not irreparably corrupted.452

The Court returned Montgomery’s case to Louisiana with the option either to resentence him or to

make him eligible for parole.453

Justice Thomas in dissent disagreed with the Court’s jurisdictional assessment that the case

involved a federal constitutional issue rather than a matter of state law.454 Justice Scalia, in a

dissent joined by Justices Thomas and Alito, objected to “ripping Teague’s first exception from its

moorings, [and] converting an equitable rule governing federal habeas relief to a constitutional

command governing state courts as well.”455

Congress is free to change the result. The Court’s appellate jurisdiction is a matter of statute, but

the statute has been amended only infrequently.

United States v. Molina-Martinez

Holding: When “the record is silent as to what the district court might have done had it

considered the correct Guidelines range,” as was the case here, “the court’s reliance on an

incorrect range in most instances will suffice to show an effect on the defendant’s substantial

rights” when conducting plain-error review. And when the defendant’s original sentence had

fallen within both the incorrect and correct Guidelines sentencing ranges, courts cannot require,

as the Fifth Circuit had, defendants to provide additional evidence that the sentencing outcome

would have been different.456

In United States v. Molina-Martinez, the Supreme Court addressed a circuit split concerning how

to determine, under plain error review, whether a district court’s application of an incorrect

guidelines range affected the defendant’s substantial rights.457 When imposing a sentence, the

district judge first must calculate the defendant’s advisory guidelines range by using the U.S.

Sentencing Guidelines (the guidelines) to determine the defendant’s total offense level and

criminal history score.458 The district judge must then choose a sentence after considering the

guidelines range and weighing, among other things, aggravating and mitigating factors set forth

in 18 U.S.C. Section 3553(a).459 If the defendant does not object to the district court’s calculation

at sentencing, Federal Rule of Criminal Procedure 52(b) limits appellate review of the sentence to

plain error. To establish plain error, the defendant must show (1) that the court made an error; (2)

the error was plain (i.e., obvious); and (3) the error affected the defendant’s substantial rights,

which typically means that it “affected the outcome of the district court proceedings.”460 If the

452

See id. at 733-37.

See id. at 737.

454

See id. at 744-50 (Thomas, J., dissenting).

455

See id. at 742-43 (Scalia, J. dissenting).

456

United States v. Molina-Martinez, 136 S. Ct. 1338, 1347 (2016).

457

Id., 136 S. Ct. at 1345. Much of the discussion which follows appeared earlier in a legal sidebar, CRS Legal Sidebar

WSLG1516, UPDATED: Does a Guidelines Calculation Error Always Affect a Defendant’s Substantial Rights?

Supreme Court to Decide, by (name redacted) .

458

See Peugh v. United States, 133 S. Ct. 2072, 2083 (2013); Gall v. United States, 552 U.S. 38, 46 (2007) United

States v. Booker, 543 U.S. 220 (2005); United States v. Gibbs, 578 F.3d 694, 695 (7 th Cir. 2009).

459

See, e.g., United States v. Glosser, 623 F.3d 413, 418 (7th Cir. 2010); United States v. Blinkinsop, 606 F.3d 1110,

1114 (9th Cir. 2010); United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).

460

Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks and citation omitted).

453

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defendant makes that showing, the reviewing court has the discretion to grant relief if the court

also concludes that the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.”461 Conversely, if a defendant timely objects at sentencing to a guidelines

error, the government has the burden of proving on appeal that the error was harmless.462

In United States v. Molina-Martinez, defendant Saul Molina-Martinez, a Mexican citizen, was

convicted of being unlawfully present in the United States after having been removed

previously.463 The district court adopted the probation office’s calculation of Molina-Martinez’s

guidelines range of 77 to 96 months, based on a total offense level of 21 and criminal history

category VI.464 And though Molina-Martinez objected to the total offense level calculation, which

the court overruled, he did not object to the criminal history score.465 The district court then

imposed a 77-month sentence—the bottom of the guidelines range.466

Molina-Martinez appealed to the Fifth Circuit, contending that the district court plainly erred

when it incorrectly calculated his criminal history score.467 The government conceded that

Molina-Martinez’s criminal history score should have been category V, not VI, and with that

score, the correct guidelines range would have been 70 to 87 months’ imprisonment.468 The court

found this error to be “plain” but concluded, nevertheless, that Molina-Martinez had not

established that the error had affected his substantial rights.469 To do so in the Fifth Circuit, a

defendant must show that “but for the district court’s misapplication of the Guidelines, he would

have received a lesser sentence.”470 And “[w]hen the correct and incorrect [guidelines] ranges

overlap and the defendant is sentenced within the overlap,” as was the case here, the Fifth Circuit

requires that the defendant provide additional evidence to show that his sentence may have been

different (e.g., an indication by the district judge that the guidelines range was the primary factor

relied on in choosing a sentence).471 Because the court concluded that Molina-Martinez did not

meet that additional burden, it affirmed the district court’s judgment.472

Molina-Martinez petitioned for a writ of certiorari, limited to this question: when a district court

incorrectly calculates a defendant’s guidelines range, should an appellate court applying plainerror review presume that the error affected the defendant’s substantial rights?473 MolinaMartinez had argued to the Fifth Circuit that such a presumption should apply, but the court—in a

footnote—rejected that argument as foreclosed by circuit precedent.474

461

United States v. Olano, 507 U.S. 725, 732 (1993).

See FED. R. CRIM. P. 52(a); United States v. Vonn, 535 U.S. 55, 58 (2002); United States v. Franco-Flores, 558 F.3d

978, 980-81 (9th Cir. 2009).

463

See 8 U.S.C. §1326.

464

See United States v. Molina-Martinez, 588 F. App’x 333, 334 (5th Cir. 2014); Brief of Petitioner at 2-4, MolinaMartinez v. United States, 136 S. Ct. 26 (No. 14-8913).

465

Brief of Petitioner at 4, Molina-Martinez v. United States, 136 S. Ct. 26 (No. 14-8913).

466

See United States v. Molina-Martinez, 588 F. App’x 333, 334 (5th Cir. 2014).

467

Id.

468

Id.

469

Id.

470

United States v. Garcia-Carrillo, 749 F.3d 376, 379 (5th Cir. 2014) (internal quotation marks and citation omitted).

471

See United States v. Molina-Martinez, 588 F. App’x 333, 335 (5th Cir. 2014) (quoting United States v. Mudekunye,

646 F.3d 281, 290 (5th Cir. 2011).

472

See United States v. Molina-Martinez, 588 F. App’x 333, 335 (5th Cir. 2014).

473

Molina-Martinez v. United States, 136 S. Ct. 26 (2015) (No. 14-8913).

474

United States v. Molina-Martinez, 588 F. App’x 333, 334 n.1 (5th Cir. 2014).

462

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In urging the Supreme Court to establish the rebuttable presumption, Martinez-Molina pointed to

the Third475 and Tenth Circuits,476 which disagree with the Fifth Circuit and presume plain error

when the district court imposes a sentence after miscalculating the defendant’s guidelines

range.477 And without using the word “presumption,” the Seventh478 and Ninth Circuits479 have

also held that a sentence based on an improperly calculated guidelines range constitutes plain

error and requires a remand for resentencing.480 In arguing that those circuits are correct,

Martinez-Molina relied481 on the Supreme Court’s comments in Peugh v. United States that the

“federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are

anchored by the Guidelines” and that empirical evidence presented “indicat[ed] that the

Sentencing Guidelines have the intended effect of influencing the sentences imposed by

judges.”482 It follows, said Martinez-Molina, that miscalculations resulting in an incorrect

guidelines range fit into a “special category” of errors that should be presumed prejudicial483—a

premise that the Court raised and left open in United States v. Olano.484 Conversely, the

government opposed the presumption,485 reminding the Court that it has “repeatedly cautioned

that ‘[a]ny unwarranted extension’ of the authority granted by Rule 52(b) would disturb the

careful balance it strikes between judicial efficiency and the redress of injustice.”486

At oral argument, the Justices seemed divided over whether the Court should adopt the

presumption. For example, Justice Breyer appeared to suggest that in cases in which the

defendant proves that the district court incorrectly calculated his guidelines range, the burden of

proof should shift to the government “to rebut the common sense notion that of course using the

wrong Guideline had an effect on the sentence.”487 Conversely, Justice Scalia asked whether

sentencing policy should “establish[] a system ... that induces lawyers to make objections when

objections are proper” by continuing to make the defendant’s burden more stringent on appeal

when he fails to raise errors in the trial court.488

In its unanimous ruling reversing the Fifth Circuit, the Court, in an opinion crafted by Justice

Kennedy, declined to adopt Molina-Martinez’s requested presumption unequivocally. Instead, the

Court narrowly held that “the error itself can, and most often will, be sufficient to show a

reasonable probability of a different outcome outside the error.”489 The Court reasoned that its

holding was supported by the “Guidelines’ central role in sentencing,” as the “starting point” and

“benchmark” for sentencing decisions, thus making sentencing calculation errors “particularly

475

United States v. Knight, 266 F.3d 203, 207-10 (3d Cir. 2001).

United States v. Sabillon-Umana, 772 F.3d 1328, 1333-34 (10th Cir. 2014).

477

See Brief for Petitioner, Molina-Martinez v. United States at 28-31, 136 S. Ct. 26 (2015) (No. 14-8913).

478

See United States v. Jenkins, 772 F.3d 1092, 1097 (7th Cir. 2014).

479

See United States v. Vargem, 747 F.3d 724, 728-29 (9th Cir. 2014); United States v. Bonilla-Guizar, 729 F.3d 1179,

1188-89 (9th Cir. 2013).

480

See Brief for Petitioner, Molina-Martinez v. United States at 30 & n.12, 136 S. Ct. 26 (2015) (No. 14-8913).

481

See Brief for Petitioner, Molina-Martinez v. United States at 36, 136 S. Ct. 26 (2015) (No. 14-8913).

482

Peugh v. United States, 133 S. Ct. 2072, 2083-84 (2013) (emphasis added).

483

See Brief for Petitioner, Molina-Martinez v. United States at 28-43, 136 S. Ct. 26 (2015) (No. 14-8913).

484

United States v. Olano, 507 U.S. 725, 735 (1993).

485

See Brief for Respondent, Molina-Martinez v. United States at 17, 136 S. Ct. 26 (2015) (No. 14-8913).

486

See Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).

487

Transcript of Oral Argument at 26:13-27:24, Molina-Martinez v. United States, 136 S. Ct. 26 (2015) (No. 14-8913).

488

Id. at 18:7-19:10.

489

Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016).

476

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serious.”490 Even so, the Court cautioned that “[t]here may be instances when, despite application

of an erroneous Guidelines range, a reasonable probability of prejudice does not exist.”491 Still,

the Court continued, “[a]bsent unusual circumstances [a defendant] will not be required to show

more” than the error, and thus the Court explicitly rejected the Fifth Circuit’s unique approach.492

Indeed, the Court added, “[n]othing in the text of Rule 52(b), its rationale, or the Court’s

precedents supports a requirement that a defendant,” in seeking plain-error review of a Guidelines

error, “make some further showing of prejudice beyond the fact that the erroneous, and higher,

Guidelines range set the wrong framework for the sentencing proceedings.”493

Capital Punishment

The menu of the Court’s capital punishment cases offers cases concerning jury instructions, jury

selection, exclusive jury sentencing prerogatives, Brady violations, appellate court judge recusals,

and the application of habeas corpus standards.

Kansas v. Carr

Holdings: “The Eighth Amendment [does not] require ... capital-sentencing courts to instruct the

jury that mitigating circumstances need not be proved beyond a reasonable doubt.... The [Carr’s]

joint sentencing proceedings did not render the sentencing proceedings fundamentally unfair.” 494

Justice Antonin Scalia wrote his last opinion for the Court in a capital punishment case, Kansas v.

Carr.495 There, the Court reversed two decisions of the Kansas Supreme Court and held that “the

Eighth Amendment [does not] require ... capital-sentencing courts to instruct the jury that

mitigating circumstances need not be proved beyond a reasonable doubt.”496 It also held that the

Eighth Amendment did not require separate trials for two of the defendants in one of the Kansas

cases.497

The defendants in one of the cases, the Carr brothers, were convicted of 4 counts of capital

murder, 1 count of attempted first-degree murder, 5 counts of aggravated kidnaping, 9 counts of

aggravated robbery, 20 counts of rape or attempted rape, 3 counts of aggravated criminal sodomy,

1 count each of aggravated burglary and burglary, 1 count of theft, and 1 count of cruelty to

animals as part of one crime spree.498 Reginald Carr was also convicted of kidnapping,

aggravated robbery, aggravated battery, and criminal damage to property committed on another

occasion.499 Both Reginald and Jonathan Carr were convicted of first-degree felony murder in

connection with yet a third episode.500 The defendant in the second case, Gleason, was convicted

490

See id. at 1345-46.

See id. at 1346-47.

492

See id. at 1345, 1347.

493

Id. at 1345.

494

Kansas v. Carr, 136 S. Ct. 633, 641, 646 (2015). Contributions from a legal sidebar CRS Legal Sidebar WSLG1512,

Justice Antonin Scalia’s Last Opinion, by (name redacted)

495

136 S. Ct. 633 (2016).

496

Id. at 641-44.

497

Id. at 644-46.

498

State v. Carr, 331 P.3d 544, 573-74 (Kan. 2014), rev’d, Kansas v. Carr, 136 S. Ct. 633 (2016).

499

Id. at 573.

500

Id. at 574.

491

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of two counts of capital murder, aggravated kidnaping, aggravated robbery, and criminal

possession of a firearm.501

Defendants in both cases were sentenced to death, and in both cases the Kansas Supreme Court

vacated their sentences on Eighth Amendment grounds.502 The Kansas court’s Gleason decision

acknowledged an apparent conflict with U.S. Supreme Court precedent, which it thought

distinguishable.503 It found constitutionally insufficient the trial court’s jury instructions that left

the jury “to speculate as to the correct burden of proof for mitigating circumstances, and [under

which] reasonable jurors might have believed they could not consider mitigating circumstances

not proven beyond a reasonable doubt.”504 The Kansas court reiterated that view in its Carr

decision, in which it also “concluded that R. Carr’s Eighth Amendment right to an individualized

sentencing determination was fatally impaired by [the] failure to” separate the capital sentencing

proceeding of the two brothers, who were thought to have antagonistic death penalty mitigating

defenses.505

Justice Scalia’s opinion for the Court rejected the Kansas court’s characterization of the jury

instructions.506 “[N]o juror would reasonably have speculated that mitigating circumstances must

be proved by any particular standard, let alone beyond a reasonable doubt.... The instructions

repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’

background or the circumstances of their offense. Jurors would not have misunderstood these

instructions to prevent their consideration of constitutionally relevant evidence.”507

The Carrs’ severance argument fared no better. As Justice Scalia phrased it, “The Kansas

Supreme Court agreed with the defendants that, because of the joint sentencing proceedings, one

defendant’s mitigating evidence put a thumb on death’s scale for the other.”508 Yet, the trial court

had impressed on the jury the importance of judging the defendants individually.509 More to the

point, vacating the death sentence required a showing that joint proceedings had been

fundamentally unfair.510 “Only the most extravagant speculation would lead to the conclusion that

the supposedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding

fundamentally unfair.”511 Justice Scalia explained that the slight prospect of relatively greater or

lesser culpability paled next to graphic evidence of the level of equally shared responsibility.512

“What these defendants did—acts of almost inconceivable cruelty and depravity—was described

in excruciating detail by [a surviving victim], who relived with the jury, for two days, the Wichita

Massacre. The joint sentencing proceedings did not render the sentencing proceedings

fundamentally unfair.”513

501

State v. Gleason, 329 P.3d 1102, 1133, rev’d, Carr, 136 S. Ct. 633 (2016).

Carr, 136 S. Ct. at 640.

503

Gleason, 329 P.3d at 1145-48.

504

Id. at 1148.

505

State v. Carr, 331 P.3d at 718-20.

506

Kansas v. Carr, 136 S. Ct. at 642-44.

507

Id. at 643-44.

508

Id. at 644.

509

Id. at 645.

510

Id. at 644.

511

Id. at 646.

512

Id.

513

Id.

502

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Justice Sotomayor, the sole dissenting member of the Court, objected that the Court should have

left the cases where they found them and deny certiorari.514 Instead, the Court had overturned a

state high court ruling, not because of a breach of any federal constitutional right, but because the

state court had applied the law more generously than would have the highest federal court.515

Justice Scalia responded that had the Kansas Supreme Court decisions been grounded in state

law, they would indeed have been “none of our business.”516 On the other hand, he said, “what a

state court cannot do is experiment with our Federal Constitution and expect to elude this Court’s

review as long as victory goes to the criminal defendant. ‘Turning a blind eye’ in such cases

‘would change the uniform “law of the land” into a crazy quilt.’”517

White v. Wheeler

Holding: “The Kentucky Supreme Court was not unreasonable in its application of clearly

established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth

Amendment.” Thus, the U.S. Court of Appeals for the Sixth Circuit’s grant of habeas relief to

reverse the death sentence is overturned.518

In mid-December, the U.S. Supreme Court announced its decision in White v. Wheeler and in

doing so reversed a lower federal appellate court decision which would have sent back for re-trial

a 1997 Kentucky murder case.519 The Supreme Court, without dissent, held that Kentucky courts

had been given insufficient deference in their application of Supreme Court precedents in the area

of death-penalty-ambivalent prospective jurors.520

Wheeler had been convicted and sentenced to death for the murder of a Louisville Kentucky

couple.521 During the questioning of prospective jurors, one initially expressed uncertainty about

whether he could vote for the death penalty but ultimately stated he believed he could consider all

of the penalty options.522 The Supreme Court has held that a prospective juror must be excused if

he states either that he would always or never vote for the death penalty.523 The prosecution asked

the court to excuse the prospective juror, which the court did after it had questioned him more

closely.524

The Kentucky courts affirmed his conviction and sentence on appeal and denied habeas-like relief

after a round of collateral review.525 The U.S. district court denied Wheeler’s petition for federal

habeas corpus review, which the U.S. Court of Appeals for the Sixth Circuit reversed.526 The

Sixth Circuit weighed the statutory standard for habeas review of state convictions: “[A] writ of

514

Id. at 646-51 (Sotomayor, J. dissenting).

Id. at 646.

516

Id. at 641 (Scalia, J.).

517

Id. at 641-42 (quoting Kansas v. Marsh, 548 U.S. 163, 186 (2006)).

518

White v. Wheeler, 136 S. Ct. 456, 462 (2015).

519

White v. Wheeler, 136 S. Ct. 456 (2015).

520

Id. at 461-62.

521

Id. at 458-59.

522

Id.

523

See id. at 460 (citing Witherspoon v. Illinois, 391 U.S. 510 (1968), Wainwright v. Witt, 469 U.S. 412 (1985), and

their progeny).

524

Id. at 459.

525

Id.

526

Id.

515

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habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in

state court proceedings unless the adjudication of the claim (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court.... ”527 The Sixth Circuit concluded that the Kentucky courts

had misapplied the Supreme Court’s “death qualified jury” case law.528

The Supreme Court disagreed. First, the Court explained that the statutory standard is a

particularly demanding one.529 It “erects a formidable barrier to federal habeas relief for prisoners

whose claims have been adjudicated in state court.”530 To overcome it, “a state prisoner must

show that the state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.”531 The task is even more arduous when it involves

jury selection challenges. There, the decision of the state judge, who questioned and observed the

prospective juror’s answers, is entitled to “double deference.”532

As for Supreme Court precedent, in jury selection cases, a prospective juror may be excused

“where the trial judge is left with the definite impression that a prospective juror would be unable

to faithfully and impartially apply the law.”533 Moreover, “when there is ambiguity in the

prospective juror’s statements, the trial court is entitled to resolve it in favor of the State.”534

In the eyes of the Court, the Sixth Circuit simply applied the test incorrectly. “A fairminded jurist

could readily conclude that the trial judge’s exchange with [the prospective juror] reflected a

diligent and thoughtful voir dire; that she considered with care the juror’s testimony; and that she

was fair in the exercise of her broad discretion in determining whether the juror was qualified to

serve in this capital case.”535

The habeas standard is one of congressional creation. Congress passed it as part of the

Antiterrorism and Effective Death Penalty Act (AEDPA) in an effort to reduce delays in capital

cases and eliminate federal-state judicial friction.536 Congress is therefore free to change the

standard. However, there have been no proposals to revisit AEDPA’s standard in recent years.

Wearry v. Cain

Holding: “Contrary to the state postconviction court, we conclude that the prosecution’s failure

to disclose material evidence violated Wearry’s due process rights.” 537

On March 7, 2016, the U.S. Supreme Court overturned a death penalty conviction because

authorities had withheld material evidence favorable to the defendant. The Court’s 6-2, unsigned

527

Wheeler v. Simpson, 779 F.3d 366, 380 (6th Cir. 2015) (quoting 28 U.S.C. §2254(d)), rev’d, White v. Wheeler, 136

S. Ct. 456 (2015).

528

Id. at 371-74.

529

White v. Wheeler, 136 S. Ct. at 458.

530

Id. at 460 (internal quotation marks and citation omitted).

531

Id. (internal quotation marks and citations omitted).

532

See id.

533

Id. (quoting Wainwright v. Witt, 469 U.S. 412, 425-26 (1985)).

534

Id. at 461 (quoting Uttecht v. Brown, 551 U.S. 1, 7 (2007)).

535

Id. (internal quotation marks and citation omitted).

536

P.L. 104-132, §105, 110 Stat. 1220 (1996); 28 U.S.C. 2254(d).

537

Wearry v. Cain, 136 S. Ct.1002, 1002 (2016).

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per curiam decision in Wearry v. Cain suggests that the Court may have been influenced in part

by the poor performance of the defendant’s trial attorney, by the defendant’s limited mental

competence, and perhaps by suspicions of a racially discriminatory jury selection process.538

Testimony at Wearry’s trial claimed that he, Sam Scott, Eric Brown, Randy Hutchison, and others

had stopped the victim’s car; driven the victim around, stopping periodically to beat him; and then

murdered the victim by running over him with his car.539 Scott and Brown testified against

Wearry, who claimed to have been at a wedding, miles away, at the time.540

Scott and Brown admitted their testimony conflicted with statements they had made to the police

earlier.541 More to the point, authorities failed to disclose evidence that would have undermined

their credibility at trial.542 Inmates jailed with Scott reported that he wanted to get even with

Wearry for telling the police of Scott’s involvement in the murder.543 Then, in spite of the

prosecutor’s assurances to the jury, the police had undisclosed evidence that Brown had sought to

bargain for a reduced sentence in exchange for his testimony.544 Finally, authorities did not turn

over medical records relating to Hutchison’s recent knee surgery, which might have cast doubt on

testimony concerning the events surrounding the murder, particularly whether Hutchison could

have engaged in the physical activities attributed to him at trial.545

The Supreme Court’s Brady v. Maryland decision and the cases that follow it require the

prosecution to disclose to the defendant material exculpatory evidence or evidence that materially

undermines the credibility of a witness against him.546 Its Strickland v. Washington decision and

related cases guarantee defendants the assistance of competent attorneys.547 Its Batson v. Kentucky

decision and its progeny bar prosecutors from conducting jury selection in a racially

discriminatory manner.548 Finally, its Atkins v. Virginia decision precludes execution of the

mentally retarded.549

The Court’s Wearry opinion found that the evidence withheld “suffices to undermine confidence

in Wearry’s conviction” and returned the case to the Louisiana courts.550 The opinion is

interwoven with signs of the Court’s want of confidence for other reasons as well, beginning with

the Court’s unflattering description of the work of Wearry’s trial attorney. His “defense at trial

rested on an alibi.”551 Yet, he failed to present impartial corroborative witnesses or to discover

additional available corroborative evidence in support of the alibi.552 In fact, “he had conducted

no independent investigation into Wearry’s innocence and had relied solely on evidence the State

538

Id.

Id. at 1003.

540

Id.

541

Id.

542

Id. at 1004-05.

543

Id. at 1004.

544

Id.

545

Id. at 1005.

546

Brady v. Maryland, 373 U.S. 83 (1963).

547

E.g., Strickland v. Washington, 466 U.S. 668 (1984).

548

E.g., Batson v. Kentucky, 476 U.S. 79 (1986).

549

Atkins v. Virginia, 536 U.S. 304 (2002).

550

Wearry, 136 S. Ct. at 1006-08.

551

Id. at 1003.

552

Id. at 1005.

539

Congressional Research Service

United States Supreme Court: Criminal Law Cases in the October 2015 Term

and Wearry had provided.”553 The Court explained, however, that the presence of the Brady error

made it unnecessary to consider Wearry’s ineffective-assistance-of-counsel argument.554

The Court’s relatively short opinion, nevertheless, took time to observe that various members of

the appellate panels below had found credible Wearry’s jury selection challenges (“Finding both

jury-selection claims credible, then-Justice Johnson dissented”)555 and his mental competence

objections (“Justice Crichton would have ... remanded for the trial court to address [Wearry’s]

claim of intellectual disability under Atkins”).556

Wearry’s case, however, did not turn on the state of the law, but on its application.557 Did the

evidence withheld undermine judicial confidence in the verdict? The majority said it did. Justices

Alito and Thomas disse

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