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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR44446

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** September 27, 2016
- **Citation:** R44446

## Text

United States Supreme Court:
Criminal Law Cases in the October 2015 Term
name redacted
Legislative Attorney
name redacted
Senior Specialist in American Public Law
September 27, 2016

Congressional Research Service
7-....
www.crs.gov
R44446

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

1

18 U.S.C. 1951.
Taylor v. United States, No. 14, 6166, cert. granted, 136 S. Ct. 26 (2015).
3
Ocasio v. United States, No. 14-361, cert. granted, 135 S. Ct. 1491 (2015).
4
McDonnell v. United States, No. 15-474, cert. granted, 136 S. Ct. 891 (2016).
5
Taylor v. United States, 136 S. Ct. 2074, 2081 (2016).
6
Id. at 2082.
7
See United States v. Taylor, 754 F.3d 217, 220-21 (4th Cir. 2014).
8
Id.
9
18 U.S.C. §1951(a).
2

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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
10

See Taylor, 754 F.3d at 221.
Id.
12
Id. at 224 (internal quotation marks and citations omitted).
13
See United States v. Needham, 604 F.3d 673, 678 (2d Cir. 2010).
14
United States v. Peterson, 236 F.3d 848, 854 (7th Cir. 2001).
15
Taylor v. United States, 136 S. Ct. 2074, 2080-81 (2016).
16
Id. at 2080 (quoting Gonzalez v. Raich, 545 U.S. 1, 17 (2005)).
17
Id. (citing Raich, 545 U.S. at 22).
18
Id.
19
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
20

Ocasio v. United States, 136 S. Ct. 1423, 1436 (2016).
United States v. Ocasio, 750 F.3d 399, 401-02 (4th Cir. 2014).
22
See 18 U.S.C. §§1951, 371; Ocasio, 750 F.3d at 401.
23
18 U.S.C. §1951(a).
24
18 U.S.C. §1951(b)(2).
25
Ocasio, 750 F.3d at 408.
26
See id. at 409-11.
27
Id. at 411.
28
501 F.3d 762 (6th Cir. 2007).
29
Ocasio, 750 F.3d at 410-11.
30
Id. at 411.
31
Id. at 411 (quoting United States v. Spitler, 800 F.2d 1267, 1276 (4th Cir. 1985)).
32
Id.
33
Ocasio v. United States, 136 S. Ct. 1423, 1437 (2016).
21

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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
34

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)).
36
Ocasio, 136 S. Ct. at 1432.
37
Id.
38
Id.
39
Id. at 1433.
40
Id. at 1434 (citing Evans v. United States, 504 U.S. 255, 260 (1992)).
41
Ocasio, 136 S. Ct. at 1437-38 (Thomas, J., dissenting).
42
Id. at 1437 (Breyer, J., concurring).
43
Id. at 1440 (Sotomayor, J., with Roberts, C.J., dissenting).
44
McDonnell v. United States, 136 S. Ct. 2355, 2374 (2016).
45
United States v. McDonnell, 792 F.3d 476, 493 (4th Cir. 2015).
46
Id.
47
Id. at 486.
48
McDonnell v. United States, 136 S. Ct. 891 (2016).
35

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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
49

McDonnell, 792 F.3d at 486-92.
Id. at 487.
51
Id. at 487-89.
52
Id. at 490.
53
Id. at 492.
54
18 U.S.C. §1343.
55
18 U.S.C. §1346.
56
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).
57
Id. at 412.
58
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.... ”).
59
18 U.S.C. §1951(a), (b)(2).
60
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”).
50

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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
61

18 U.S.C. §201(a)(3).
McDonnell, 136 S. Ct. at 2365-66.
63
Id. at 2374 (emphasis added).
64
Id.
65
Id.
66
Id.
67
Id. at 2375.
68
Id.
69
E.g., McNally v. United States, 483 U.S. 350, 360 (1987) (“Rather than construe the statute in a manner that leaves
(continued...)
62

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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.’”).
70
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)).
71
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)
.
72
Id.
73
Id.
74
United States v. Musacchio, 590 F. App’x 359, 360-61 (5th Cir. 2014).
75
18 U.S.C. §1030(a).
76
United States v. Musacchio, 590 F. App’x at 361.
77
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)
78
Id.
79
Id. at 362-63.
80
18 U.S.C. §3282; Musacchio, 590 F. App’x at 363-64.
81
See Musacchio v. United States, 136 S. Ct. 709, 714-15 (2016) (collecting cases showing circuit splits).
82
Id. at 717-18.
83
Id.
84
Id. at 716.
85
Id. at 717.
86
Id. at 717-18.
87
Id. at 716-18.
88
Id. at 715.
89
Id.
90
Musacchio, 590 F. App’x at 362-63.
91
See Musacchio, 136 S. Ct. at 716 (quoting Pepper v. United States, 562 U.S. 476, 506) (2011)).
92
See id.
93
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
94

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)
.
95
Id.
96
18 U.S.C. §2252(b)(2).
97
Lockhart, 136 S. Ct. at 961-62.
98
Id. at 962.
99
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.
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 reaso

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR44446. Public record. Not legal advice.