Articles Posted in U.S. Supreme Court

Next Monday, the federal Supreme Court will hear arguments in Pepper v. United States. In this fascinating case, the Court will consider whether judges can take a prisoner’s efforts at rehabilitation into consideration when that prisoner is resentenced. This case is interesting both because the government has changed its stance and because of the uncommon circumstance that Mr. Pepper was resentenced to three additional years in prison after four years of freedom.

Mr. Pepper pleaded guilty to conspiracy to distribute methamphetamine and was sentenced to 24 months in prison, although the Sentencing Guidelines range was 97 to 127 months. The government successfully appealed that sentence, but the judge resentenced Mr. Pepper to the same amount of time, in part because of the prisoner’s efforts at rehabilitation following the first sentence. Prosecutors again appealed, arguing that such a consideration was an abuse of discretion. The Eighth Circuit agreed. Upon resentencing by a different judge, Mr. Pepper was ordered to return to prison to serve an additional 41 months.

After successfully appealing Mr. Pepper’s below-guidelines sentence twice, the Department of Justice has switched sides and is supporting Mr. Pepper’s contention on appeal to the Supreme Court that rehabilitation should be taken into account. As reported in this Des Moines Register article, when she was Solicitor General, Justice Kagan sided with Mr. Pepper, arguing that court rules do not prohibit “a court from considering at resentencing a defendant’s efforts at rehabilitation undertaken after his initial sentencing.” Rather, a federal law “specifically instructs sentencing courts to consider ‘the history and characteristics of the defendant.'” Justice Kagan will not take part in the Supreme Court’s decision.

In this post last week, we announced the Supreme Court’s decision in Skilling v. U.S. The Court held that 18 U.S.C. § 1346, the honest services law that the government has been using to prosecute nearly everything as a federal crime, applies only to bribery and kickback schemes.

The honest services fraud statute simply defines “scheme or artifice to defraud” as used in the mail- and wire fraud statutes to “include a scheme or artifice to deprive another of the intangible right of honest services.” Congress enacted this statute quickly after the Supreme Court, in McNally, held that the fraud statutes were “limited in scope to the protection of property rights.” Congress intended to incorporate pre-McNally case law that had recognized fiduciary duties as intangible rights to honest services and a breach of those duties as fraud.

The majority’s rationale for limiting the honest services fraud statute to only bribes and kickbacks was that such cases constituted the “core” of pre-McNally honest services fraud cases and that statutes should be construed, where possible, rather than invalidated. Because, the Court said, circuit conflicts and disagreements regarding honest services fraud cases were primarily outside the bribery and kickback scheme cases, limiting the application of the statute to those cases would avoid vagueness troubles.

This morning, the United States Supreme Court issued its opinions in three honest services fraud cases: Skilling, Black, and Weyhrauch. We have previously discussed these cases here (discussion of cases and background of honest services fraud,) here (Skilling,) here (Black), and here (Weyhrauch.) In Skilling, the Court limited the federal criminal honest services fraud statute to only bribery and kickback schemes. Based upon that opinion, the Court reversed in Black and Weyhruach. The Court also held that Jeffrey Skilling of Enron fame was not denied a fair trial due to publicity and community prejudice.

We will provide analysis of these opinions next week. In the meantime, the opinion in Skilling is available here; the opinion in Black is available here; and the single-sentence per curium opinion in Weyhrauch is available here.

The United States Supreme Court decided two important federal criminal cases yesterday. We discussed the reasonable opinion in U.S. v. Carr, a SORNA case, in this post yesterday. We must now address the disappointing decision in Berghuis v. Thompkins, which we briefly explained in this post last October.

The Court divided along traditional ideological lines, with Justice Kennedy issuing the majority opinion joined by the conservative bloc and Justice Sotomayor writing a lengthy dissent for the liberal justices. The majority held, counter-intuitively, that a person must make an unambiguous statement to invoke his right to remain silent.

In this case, Mr. Thompkins was in custody, awaiting transfer to another state. He was seated in a hard, straight-backed chair in a small room. With the exception of declining a peppermint and commenting on his chair’s discomfort, he remained silent for nearly three hours of interrogation, until asked whether he believed in God. He said, “Yes.” and began to cry. When asked if he prayed, he again said, “Yes.” He was then asked if he prayed to God for forgiveness “for shooting that boy down.” Again, he said, “Yes,” and looked away. He refused to sign a Miranda waiver form or make a written statement.

This morning the United States Supreme Court held that 18 U.S.C. § 2250, a part of of the Sex Offender Registration and Notification Act (SORNA), does not apply to sex offenders whose interstate travel occurred prior to SORNA’s effective date in July 2006. This case resolves a circuit court split in which the Eleventh Circuit, which hears appeals from federal cases in Georgia, Florida, and Alabama, took the opposite view.

In an opinion by Justice Sotomayor, the Court explained that the three elements of Section 2250 (requirement to register, interstate travel, and failure to register) “must be satisfied in sequence.” The interpretation that the statute does not impose liability unless a person travels and fails to register after becoming subject to SORNA’s requirements accords with the text of the statute, which sets forth the travel requirement in the present tense. The Court also noted that Section 2250 is just one of several provisions of SORNA and that SORNA’s overall structure also indicates that Section 2250 should be limited to its specific purpose, rather than expanded to tackle all of SORNA’s broader intent.

The Court noted that because Section 2250 liability could not be predicated on pre-SORNA travel, the Court needed not address whether the statute violated the Ex Post Facto Clause.

The Supreme Court has granted certiorari in Harrington v. Richter, a federal habeas corpus case out of the Ninth Circuit. The Ninth Circuit held that Richter was prejudiced by his defense lawyer’s unreasonable failure to investigate and present expert testimony on blood evidence and that the state court’s determination that he was not denied effective assistance of counsel was an unreasonable application of clearly established federal law.

The question presented is whether the Ninth Circuit denied the state court the deference mandated by AEDPA and impermissibly enlarged the Sixth Amendment right to counsel by elevating the value of expert opinion testimony to virtually always require criminal defense attorneys to produce such testimony. In addition, the Court asked the parties to brief whether AEDPA deference applies to a state court’s summary disposition of a claim, including under the Strickland test for ineffective assistance of counsel.

The facts of this case would make for an interesting episode of CSI. Both parties agreed that two defendants, Richter and Branscombe, socialized for several hours in Johnson’s house with Johnson and Klein until 2:30 a.m., when they left but Klein decided to spend the night. The prosecution and defense presented divergent theories at trial of the events occurring later that morning, when Klein was killed and Johnson received gunshot wounds.

This morning the Supreme Court issued its opinion in Bloate v. U.S. The Court resolved a circuit court split, holding that additional time granted to criminal defendants to prepare pretrial motions is not automatically excludable from the federal Speedy Trial Act’s 70-day limit under subsection (h)(1). The Eleventh Circuit Court of Appeals, which sits here in Atlanta, previously held the opposite, so this decision marks a change in the law of this circuit. We explained the issues in this case and the Eleventh Circuit case in this post last year.

The government argued that defendants could “lay a trap” for judges by requesting time to prepare motions. The Court noted that a district court judge may still exclude such time from the Speedy Trial Act under subsection (h)(7) if it finds “that the ends of justice served by [a continuance for time to prepare pretrial motions] outweigh the best interest of the public and the defendant in a speedy trial.” The judge need only place these reasons on the record.

The Speedy Trial Act is available here.

This week, the United States Supreme Court handed down its opinion in Maryland v. Shatzer. The case examined the parameters of the protections afforded by Edwards v. Arizona regarding reinterrogation of a criminal suspect after he has requested counsel. The court held that 1) a break in custody lasting more than two weeks between attempts at interrogation is sufficient to avoid the coercive pressures against which Edwards protected and 2) a return to the general prison population amounts to a break in custody for the purposes of this rule.

Justice Scalia delivered the opinion of the Court. Justices Thomas and Stevens each concurred in the judgment but disagreed with the 14-day break in custody rule. Justice Thomas would prefer Edwards be limited to “the circumstances present in Edwards itself” whereas Justice Stevens did not find the bright-line rule to provide enough protection against coerced confessions. We agree with Justice Stevens.

The facts of the case involve allegations of sexual child abuse against Mr. Shatzer while he was incarcerated for another offense. In 2003 a detective attempted to interview Mr. Shatzer about sexual abuse of his 3-year-old son, but Mr. Shatzer declined to speak without an attorney. The investigation was closed.