Supreme Court Review-Preview-Overview
An up-to-date outline of Supreme Court criminal cases
is available here. It covers pending cert grants and decisions from the past and current Terms. Other "cites" of interest are available here.
Monday, May 19, 2008
Congress passed the 2003 "PROTECT Act" to try to shore up federal controls on child pornography after the Supreme Court struck down a 1996 federal law on the subject in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The new law, 18 U.S.C. § 2252A(a)(3)(B) criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. The Eleventh Circuit held that the new pandering provision is overbroad and vague. The Supreme Court reversed, holding that the provision does not violate the overbreadth proscription of the First Amendment, nor is it vague in violation of the Due Process Clause of the Fifth Amendment. Justice Scalia’s majority opinion rejected both facial unconstitutionality claims on broad grounds, permitting only "as applied" challenges if, and when, the proffered hypothetical constitutional difficulties arise. Justices Stevens and Breyer concurred, but would have rested the Court’s holding on two more traditional (and less broad grounds) grounds: (1) resort should be made to every reasonable construction of a statute to save it from unconstitutionality, and (2) to the extent the text of the statute is unclear, the duty to avoid an interpretation resulting in unconstitutionality requires the court to consider legislative history and the drafters’ intent. This approach, they conclude, also leads to upholding of this statute. Justices Souter and Ginsburg dissented, insisting that the statute is unconstitutional under the Court’s precedents, New York v. Ferber, 458 U.S. 747 (1982) and Free Speech Coalition.
Ressam was arrested in 1997 as part of the alleged Millennium bombing planned for Los Angeles International airport. He attempted to enter the United States by car ferry at Port Angeles, Washington. Hidden in the trunk of his rental car were explosives that he intended to detonate at the Los Angeles International Airport. After the ferry docked, he was questioned by a customs official, who instructed him to complete a customs declaration form, which he did, identifying himself as a Canadian citizen (he is Algerian) named Benni Noris (his name is Ahmed Ressam). He was then directed to a secondary inspection station, where another official performed a search of his car, finding explosives and related items in the car’s spare tire well. Ressam was subsequently convicted of a number of crimes, including the felony of making a false statement to a United States customs official in violation of 18 U. S. C. §1001 and carrying an explosive "during the commission of" that felony in violation of §844(h)(2)(imposing a 10-year sentencing enhancement). The Ninth Circuit reversed his conviction on the latter count because it read the word "during," as used in §844(h)(2), to include a requirement that the explosive be carried "in relation to" the underlying felony. The Supreme Court reversed, holding that Ressam was "carrying" those explosives "during" the commission of the false statement, finding that Congress "did not intend to require the Government to establish a relationship between the explosive carried and the underlying felony." Justice Stevens wrote for the majority, rejecting a dictionary definition of "during," using instead the "most natural reading" of the statute. He bolstered the holding with statutory analysis and legislative history. Justice Thomas concurred in part and concurred in the judgment, joined by Justice Scalia, agreeing with only the first part of Justice Stevens’ 3-part decision; their concurrence concludes, simply, that the plain language of the statute answers the question, without the need for any further statutory or historical analysis. Justice Breyer dissented, disagreeing with both the majority decision and the Ninth Circuit holding; his concern stems from the fact that under both approaches a person who legally possesses explosives can be convicted of 844(j) if he does so at the time of a wholly unrelated felony. To avoid this anomaly, he would require a "relevant relation[ship]" between the explosives possession and underlying felony.
The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(2)(A)(ii), imposes a mandatory minimum 15-year sentence for felons-in-possession with three qualifying prior offenses. Under ACCA, a state drug-trafficking conviction qualifies as "a serious drug offense" if "a maximum term of imprisonment of ten years or more is prescribed by law" for the "offense." The Ninth Circuit held that "the maximum term of imprisonment . . . prescribed by law" must be determined without taking recidivist enhancements into account. The Supreme Court reversed, holding that the "maximum term of imprisonment . . . prescribed by law" for the state drug convictions at issue includes state recidivist enhancements, which in this case was a ten-year maximum. Justice Alito wrote for the majority, concluding that its interpretation was consistent with how the "maximum" concept was customarily understood by participants in the criminal justice process. The Court rejected the argument that a prior record of convictions has no bearing on the seriousness of an offense, and that the "maximum" punishment for a prior conviction should be the punishment unenhanced to account for prior convictions. "When a defendant is given a higher sentence under a recidivism statute – or for that matter, when a sentencing judge, under a guidelines regime or a discretionary sentencing system, increases a sentence based on the defendant’s criminal history – 100% of the punishment is for the offense of conviction." Justice Souter dissented, joined by Justices Stevens and Ginsburg, concluding that the statute’s undisputed ambiguity should have been resolved under the rule of lenity, in the defendant’s favor.
Monday, May 12, 2008
Gonzalez, a Mexican citizen who does not speak English, was represented by counsel at his federal drug-trafficking trial. After appearing before a United States district judge at several pretrial conferences, he was brought before a United States magistrate judge for jury selection. At a bench conference outside of his presence and before he had the assistance of an interpreter, defense counsel orally consented to the magistrate judge’s presiding over the jury selection process. Thereafter, the magistrate judge did not obtain the defendant's personal consent or even mention that his attorney had consented outside of his presence. No objection to this process was ever posited in the trial court. Must a federal criminal defendant explicitly and personally waive his right to have an Article III judge preside over voir dire? The Supreme Court held that such a personal and explicit waiver by the defendant is neither required by the Federal Magistrates Act, nor is it required by the Constitution. Justice Kennedy, writing for the 8-1 majority, held that express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the Federal Magistrates Act, 28 U. S. C. §636(b)(3)( "A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States."). Under Gomez v. United States, 490 U.S. 858, 870, 875–876 (1989) and Peretz v. United States, 501 U.S. 923, 933, 935–936 (1991), such "additional duties" include presiding at voir dire if the parties consent, but not if there is an objection. Although, the Court has indicated in prior cases that the waiver of certain trial rights requires the defendant’s own consent, see, e.g., New York v. Hill, 528 U. S. 110, 114–115 (2000), even in Hill, the Court held that an attorney, acting without indication of particular consent from his client, could waive his client’s statutory right to a speedy trial because "[s]cheduling matters are plainly among those for which agreement by counsel generally controls." Similar to the scheduling matter in Hill, acceptance of a magistrate judge at the jury selection phase is a tactical decision well suited for the attorney’s own decision. To the extent that judges have formal and informal approaches to jury selection, these influencing factors are best known by and sorted through by counsel, who may tactically select a magistrate over the district judge. As with other tactical decisions, requiring personal, on-the-record approval from the client could necessitate a lengthy explanation that the client might not understand and that might distract from more pressing matters as the attorney seeks to prepare the best defense. The Court rejected Gonzalez’s contention that the decision to have a magistrate judge for voir dire is a fundamental choice, or, at least, raises a question of constitutional significance so that the Act should be interpreted to require explicit consent. The majority noted that in this case there were not serious concerns about the Act’s constitutionality and the defendant conceded that magistrate judges are capable of competent and impartial performance when presiding over jury selection. Caveat–The Court notes that its decision does not address two similar but different cases: (1) Whether waiver occurs if counsel consents, but the client makes a timely objection to override counsel’s waiver; (2) Whether waiver may be inferred by failure of a defendant or counsel to object. Justice Scalia concurred, but rejected Justice Kennedy’s tactical-decision vs. fundamental-right test. Instead, he would hold that all constitutional rights are waivable by counsel, except the right to counsel itself. Justice Thomas dissented; he would overrule Peretz and hold that delegation of voir dire violates the Federal Magistrates Act. He would also have held that the unpreserved issue here is cognizable despite lack of a timely objection, in much the same way it was in Nguyen v. United States, 539 U.S. 69, 78 (2003) (reversing federal appellate decision, despite lack of objection to appellate panel consisting of a non-Article III judge). The ruling in Gonzalez overrules contrary Eleventh Circuit precedent, United States v. Maragh, 174 F.3d 1202, 1206 (11th Cir. 2007), which held that the defendant’s personal and explicit consent was required.