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.

Tuesday, June 24, 2008

Greenlaw v. United States - Appellate Court Can't Increase Sentence Sua Sponte

Greenlaw filed a direct appeal of his sentence; the government did not appeal the district court’s failure to make two sentences under 18 U.S.C. § 924(c) – a 5-year sentence and a 25-year sentence – consecutive to each other and to other counts. The appellate court nevertheless remanded for imposition of the enhanced sentence, finding that the effect of the error was not "speculative." The Supreme Court reversed, in a 7-2 (actually, 6¾ - 2¼) decision written by Justice Ginsburg. The Court held that, absent a government appeal or cross-appeal, a court of appeals does not have the power to sua sponte raise a defendant’s sentence, even if it is to correct a plain error. Writing for the majority, Justice Ginsburg relied on "that unwritten but long-standing rule" that "an appellate court may not alter a judgment to benefit a nonappealing party," as well as the express limitations on government appeals in 18 U.S.C. § 3742(b). The majority opinion also rejected the arguments that either Fed. R. Crim. P. 52(b)’s plain error rule, 28 U.S.C. § 2806, or 18 U.S.C. § 3742 confer authority to correct a legal error absent a cross-appeal, particularly for "sentencing errors that the Government refrained from pursuing," and noted that the strict time limits on notices of appeal and cross-appeal would be undermined if an appeals court could modify the judgment in favor of a party who had filed no notice of appeal. The majority opinion recognizes two important protections for defendants who seek to appeal their sentences. First, it makes clear that its holding does not modify standard practice in "sentencing package cases," meaning cases involving multiple counts and a successful appeal of some but not all of the convictions. According to the Court, an appellate court remains free to vacate the entire sentence, and a district court remains free to impose the same or a higher sentence on the remaining counts on remand so long as the new sentence is not longer than the original sentence taken in the aggregate. This provides a crucial protection because, as the Court notes, although such a defendant "ultimately may gain nothing from his limited success on appeal, . . . he will also lose nothing, as he will serve no more time than the trial court originally ordered." Second, the majority rejects the argument that its holding will produce anomalous results by permitting the district court on remand to correct the same legal error that the court of appeals was powerless to correct: "The cross-appeal rule, we of course agree, does not confine the trial court. But default and forfeiture doctrines do. It would therefore be hard to imagine a case in which a district court, after a court of appeals vacated a criminal sentence, could properly increase the sentence based on an error the appeals court left uncorrected because of the cross-appeal rule." Justice Alito dissented, joined by Justice Stevens, while Justice Breyer concurred only in part IV of the majority opinion (and the result), but joined Justice Alito’s dissent to the remainder of the decision.

Monday, June 23, 2008

Rothgery v. Gillespie County, TX - Right to Counsel at First Appearance

Rothgery was arrested without a warrant and booked into jail on suspicion he was a felon in possession of a gun. Apparently unknown to the arresting officer, there was no underlying felony because that earlier charge had been dismissed after the defendant completed a diversionary program. The arresting officer filed with the magistrate an affidavit supporting probable cause (based on his misinformation about the prior felony). Rothgery inquired of the magistrate about appointed counsel, and he was told that if he wanted counsel his bail and probable cause hearings would be delayed until counsel could be appointed; or, in the alternative, he could waive counsel for these hearings and the hearings would go forward. Given those options, Rothgery waived counsel temporarily. The magistrate found probable cause and held Rothgery. Later, he was released on bond. A grand jury indicted him for the felon-in-possession charge. Post-indictment, a lawyer was appointed, investigated the nonexistent prior conviction, and was able to have the erroneous charges dismissed. Rothgery filed a § 1983 action, alleging he was denied appointed counsel pre-indictment, but the Fifth Circuit held that he was not entitled to counsel at that stage because adversary criminal proceedings were not commenced by the officer’s filing of an affidavit of probable cause, especially in a proceeding at which no prosecutor was present. Earlier Supreme Court decisions held that the Sixth Amendment right to counsel attaches when "adversary judicial proceedings have been initiated." Kirby v. Illinois, 406 U.S. 682, 688 (1972) and when a defendant is arrested, "arraigned on [an arrest] warrant before a judge," and "committed by the court to confinement," "[t]here can be no doubt … that judicial proceedings ha[ve] been initiated." Brewer v. Williams, 430 U.S. 387, 399 (1977). Here, the Supreme court reversed, holding that the Sixth Amendment right to counsel attaches at the initial appearance before the magistrate judge where a subject learns the charges against him and is subject to a potential loss of liberty, even if the proceeding is so preliminary that the prosecutor is unaware of it and uninvolved in it. Writing for the majority, Justice Souter reasoned: "[U]nder the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused’s liberty to facilitate the prosecution. From that point on, the defendant is ‘faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law’ that define his capacity and control his actual ability to defend himself against a formal accusation that he is a criminal. By that point, it is too late to wonder whether he is ‘accused’ within the meaning of the Sixth Amendment, and it makes no practical sense to deny it." Chief Justice Roberts, and Justices Alito and Scalia concurred; Justice Thomas dissented.

Thursday, June 19, 2008

Indiana v. Edwards - Right to Self-Represent Limited

Ahmad Edwards was tried for attempted murder, battery with a deadly weapon, criminal recklessness and theft following a shooting incident outside a store where he had shop-lifted a pair of shoes. He sought to represent himself but the trial judge found him not competent to do so. Evidence showed he suffered from schizophrenia. He had earlier been declared incompetent, but was later found to have his competency restored following a stay at a state mental hospital. Although it appeared he was competent to stand trial, the trial judge did not believe he was competent to defend himself at trial. Appointed counsel was forced upon Edwards. The Indiana Supreme Court ruled he had a right to act as his own defense counsel, ordering a new trial under Faretta v. California (recognizing right of self-representation). Indiana argued that the states should be allowed to impose a higher standard for measuring competency to represent oneself at trial than the Supreme Court has specified for measuring competency to stand trial. Under U.S. Supreme Court precedent, in Dusky v. United States, the Court has held that the standard for competency to stand trial is whether the accused "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him." The question presented was whether states must apply the Dusky standard in evaluating competency to represent oneself, or could a state adopt a higher standard. In a 7-2 decision, the U.S. Supreme Court reversed, although it "declined" to overrule Faretta, and rejected a more specific standard that would "deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury." The majority decision, written by Justice Breyer, held that "the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Justices Scalia and Thomas dissented, arguing that "the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury—a specific right long understood as essential to a fair trial."

Friday, June 13, 2008

Irizarry v. United States: Rule 32(h) does not require notice of contemplated variance

The Supreme Court held that Fed. R.Crim. P. 32(h), which requires a sentencing court to give the parties advance notice that it is contemplating a departure from the Guidelines, does not require the court to give notice of a contemplated variance from a recommended Guideline range.
The Court explained that Rule 32(h) was premised on protecting a defendant’s expectation that his sentence would be within the applicable Guideline range. This expectation did not survive Booker, and the parties therefore did not have the kind of "expectancy" that required notice. Further, the Rule itself referred to "departures" not "variances."
The Court added that district judges should consider granting a continuance of the sentencing when a party has a legitimate basis for claiming that it was illegitimately surprised by a contemplated variance.

Monday, June 02, 2008

Cueller v. United States: Insufficency of Money Laundering Evidence

Cuellar was driving a Volkswagen Beetle south on State Highway 77 in Texas, approximately 100 miles from the Mexican border. A police officer stopped him due to his erratic driving. Upon confronting him, police observed odd and inconsistent behavior, including that Cueller crossed himself as police conducted their investigation. Searching the vehicle, police found a hidden compartment underneath the floorboard containing $81,000 wrapped in duct tape bundles inside plastic bags, and animal hair was spread in the rear of the vehicle to possibly cover the smell of marijuana. Cuellar was convicted at trial of international money laundering under § 1956(a)(2)(B)(i), which prohibits transportation of illicit funds. He was not charged with bulk cash smuggling. He was sentenced to 78 months imprisonment and three years supervised release, eighteen months more prison time than the maximum punishment available under the bulk cash smuggling statute. The Supreme Court reversed the money laundering conviction in a unanimous decision written by Justice Thomas, holding that the statute under which petitioner was convicted requires proof that the transportation was "designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control" of the funds. § 1956(a)(2)(B)(i). Although this element does not require proof that the defendant attempted to create the appearance of legitimate wealth, neither can it be satisfied solely by evidence that a defendant concealed the funds during their transport. In this case, the only evidence introduced to prove this element showed that petitioner engaged in extensive efforts to conceal the funds en route to Mexico, and thus his conviction cannot stand." Justice Alito, joined by the Chief Justice and Justice Kennedy, concurred, clarifying that the government could have proved that once the cash got to Mexico that had the effect of being concealed, but in this case the government failed to produce such evidence beyond a reasonable doubt.

United States v. Santos - Only Profits are Proceeds Under Money Laundering Statute

Santos ran an illegal lottery, from which he paid runners a commission, salary to collectors, and winnings to bettors. He was convicted under the principal federal money laundering statute, 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h), which makes it a crime to engage in a financial transaction using the "proceeds" of certain specified unlawful activities with the intent to promote those activities or to conceal the proceeds. The Seventh Circuit affirmed the conviction in 2000, but the defendant later filed a 2255 petition, relying on an intervening Seventh Circuit decision that held the money laundering statute applies only to criminal profits, not criminal receipts. Applying the intervening decision here, the district court granted 2255 relief. The Seventh Circuit affirmed the 2255 order. In a fragmented 5-4 decision, the Supreme Court held that "proceeds" under the statute means the net receipts, not gross receipts, from the unlawful activities – only the profits, i.e., gross receipts less expenses. Otherwise, every criminal venture that has overhead would necessarily be subject to the heavier sentences allowed by convictions for money laundering. The principal author, Justice Scalia, held that the word "proceeds" lacks a clear definition, especially in light of the lack of legislative history here, so the rule of lenity requires it be interpreted in favor of the defendant: proceeds=profits, not gross receipts. This view garnered only plurality support, getting a majority only with Justice Stevens’ concurrence, which offered a different view on the rule of lenity: Under this statute the rule of lenity means proceeds=profits, but that is not true for all statutes. He would find differently if legislative history supports a different view for another federal law. Justice Scalia concludes that the narrow holding of the case is, therefore, "that ‘proceeds’ means ‘profits’ when there is no legislative history to the contrary. That is all that our judgment holds." He also pointed out that a majority does not join Justice Stevens’ piecemeal view of lenity, so the decision "does not hold that the outcome is different when contrary legislative history does exist." Chief Justice Roberts and Justices Breyer, Kennedy, and Alito dissented, with Justices Alito and Breyer writing dissents: Justice Alito rests on a "fair[] read[ing]" of the money laundering law and Justice Breyer adds that the Sentencing Commission can solve any unfairness arising from the ambiguity under its authority to avoid sentencing disparity.