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SUPREMES SPLIT ON GOVERNMENT EVIDENTIARY CAT-SKINNING
The Supreme Court last Tuesday appeared divided over a case arguing that letting a DEA agent testify that most drug mules knew they were carrying drugs across the border violated the Federal Rules of Evidence and led to an unfair conviction.
Delilah Diaz was caught at the Mexican border with over $350,000 in meth hidden in the door panels of the car she was driving. She claimed not to know the drugs had been hidden in the car. A DEA agent expert witness testified, however, that drug mule drivers as a class typically know they are transporting drugs.
Federal Rule of Evidence 704 generally states that an expert in a criminal case may not give an opinion on the defendant’s criminal intent, or mens rea. Yolanda argued that the expert’s “class” testimony was a back-door introduction of evidence not allowed by Rule 704.
While some justices appeared to favor the government’s position of allowing such testimony, others appeared to favor reining it in.
The problem for the justices during arguments Tuesday was where to draw the line on ambiguous evidentiary rules, as evidence prohibited under one rule might be permissible under another. Circuits are split on whether testimony about a class of defendants is the “functional equivalent” of testimony about the defendant being tried for purposes of Rule 704 or whether “class” testimony is permissible evidence of how drug cartels usually operate. “There’s always a way to skin the evidentiary cat,” said Justice Neil Gorsuch, who appeared firmly on the side advocating for a more limited rule.
Justice Clarence Thomas pressed the government, saying that when you testify about the probabilities that someone knows she is carrying drugs, “you are in effect talking about the defendant, that you could only be concerned about the conduct of the defendant.”
Justice Samuel Alito suggested that other evidentiary rules might knock out such evidence, like Rule 703, which allows a court to exclude otherwise permissible evidence if it is more prejudicial to the defendant than helpful to the jury.
Both sides have “line-drawing problems,” Justice Elena Kagan said. Even if the Court ruled for the petitioner, “all the expert has to do is tweak the way he says something and the exact same testimony can come in”, she said. “It just seems at that point a kind of game.”
Gorsuch observed that if the government is allowed to introduce such “class” testimony, a defendant will, too. “What’s going to be good for the goose here is going to be good for the gander,” he suggested.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
A CONSPIRACY OF DUNCES…
This website was down all day yesterday due to a dark conspiracy of the people at Bluehost, LISA’s web provider, who decided to all become incompetent at once. Not really. Incompetence has been Bluehost’s theme for years…
TEXTUALISM TAKES IT ON THE CHIN
The Supreme Court on Friday narrowly interpreted 18 USC § 3553(f), the “safety valve” provision that was rewritten as part of the First Step Act, to “den[y] thousands of inmates a chance of seeking a shorter sentence,” according to NBC News.
Many Supreme Court observers believed the Court would approach Friday’s case – Pulsifer v. United States – textually. “Textualism” is the interpretation of the law based exclusively on the ordinary meaning of the legal text. You know, like “and” means “and” and not “or.” But the Court surprised the parties and observers in more ways than one.
Justice Elana Kagan’s opinion at first blush seems to be something only your high school English teacher could love. The case concerned the “safety valve” provision, which exempts some drug defendants from mandatory minimum sentences if they meet a list of conditions. One of those (3553(f)(1)) says the defendant can’t have “more than 4 criminal history points… a prior 3-point offense… AND a prior 2-point violent offense…” (I emphasized “AND” for reasons that will become apparent).
Mark Pulsifer had a prior 3-point felony, so his sentencing judge said he was ineligible for the safety valve. Mark, however, argued that the way (f)(1) is written, a defendant is ineligible only if he fails all three conditions. That is, Mark said, he was qualified for the safety valve unless he had all three of “more than 4 criminal history points AND a prior 3-point offense AND a prior 2-point violent offense.
The Court’s lengthy ruling was little more than an English grammar lesson. In a decision surprising for scrambling ideological alliances on the Court, liberal Justice Kagan wrote for a 6-3 majority made up of traditionally conservative justices, while conservative Neil Gorsuch was joined by two traditionally liberal justices, Sonia Sotomayor and Ketanji Brown Jackson. The holding essentially holds that in the case of the safety valve, “and” means “or.”
Kagan’s acceptance of the government’s argument relies squarely on a problem of superfluity.” The opinion focused on the fact that under Pulsifer’s reading of the provision, to be ineligible a defendant would have to have a prior 3-point conviction and a prior 2-point conviction. If that were so, the first requirement – that he or she have more than 4 points – was meaningless because to meet conditions two AND three, the defendant would already have to have 5 points. “In addressing eligibility for sentencing relief, Congress specified three particular features of a defendant’s criminal history — A, B, and C,” Kagan wrote. “It would not have done so if A had no possible effect. It would then have enacted: B and C. But while that is the paragraph Pulsifer’s reading produces, it is not the paragraph Congress wrote… [I]f a defendant has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C he will always have more than four criminal-history points under Subparagraph A.
In other words, if reading the plain text of a statute yields a result that seems at odds with what Congress must have intended, the Supreme Court’s interpretation of what Congress must have intended prevails.
To prove her grammatical point, Kagan cites both The Very Hungry Caterpillar and Article III of the Constitution. She notes that Article III extends the “judicial Power… to all Cases… arising under this Constitution, the Laws of the United States, and Treaties.” This, she says, plainly applies to cases arising under any one of the three listed bodies of law but does not require that the cases arise under ALL three.
In his dissent, Gorsuch complained that the decision significantly limits the goals of the First Step Act. “Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance—just a chance—at an individualized sentence. For them, the First Step Act offers no hope. Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result,” Gorsuch wrote. “Ordinary meaning is its first victim. Contextual clues follow. Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering.”
Besides dramatically limiting those eligible for a safety valve non-mandatory drug sentence, Friday’s decision dashes the hope of some seeking a zero-point retroactive Guidelines 4C.1 2-level reduction. One of the conditions to qualify for that reduction is that a “defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC 848.” Some read this as being that a defendant has to have both a 3B1.1 aggravating role AND a 21 USC 848 conviction. Other courts have read this as disqualifying all defendants having either a 3B1.1 enhancement OR an 848 conviction.
The decision stamps “denied” on the 5 pct of defendants annually getting a USSC § 3B1.1 leader/organizer/manager/supervisor enhancement.
Writing in his Sentencing Policy and Law blog, Ohio State University law professor Doug Berman observed that the Pulsifer “serves as still more evidence that SCOTUS is no longer one of the most pro-defendant sentencing appeals courts. I got in the habit of making this point for a number of years following the Apprendi/Blakely/Booker line of rulings during a time when most federal circuit courts were often consistently more pro-government on sentencing issues than SCOTUS… But we are clearly in a different time with different Justices having different perspectives on these kinds of sentencing matters.”
Pulsifer v US, Case No 22-340, 2024 U.S. LEXIS 1215 (March 15, 2024)
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SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS
The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Act “safety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.
A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.
Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”
Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Actdefendant’s three predicate offenses were “committed on occasions different from one another.”
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.
(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)
The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.
When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.
Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.
Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.
The Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREME COURT ENDS YEAR WITH CRIMINAL-CASE CERTIORARI BLOWOUT
In what was probably its last certiorari grant order for 2023, the Supreme Court issued probably added four criminal cases last week.
The highest profile case is Fischer v. United States, which arises from a defendant convicted of obstruction of Congress for the January 6th Capitol riot. He was convicted of an 18 USC § 1512(c) offense, which prohibits corruptly obstructing, influencing, or impeding “any official proceeding.” The district court dismissed the § 1512(c) charge, holding that Congress only intended it to apply to evidence tampering that obstructs an official proceeding. The D.C. Circuit Court of Appeals reversed that decision in a 2-1 opinion, ruling that “[u]nder the most natural reading of the statute,” the law “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the evidence-tampering language of § 1512(b). One judge dissented that the government’s interpretation of the statute would render it “both improbably broad and unconstitutional in many of its applications.”
SCOTUS also will review a 9th Circuit ruling in favor of Danny Lee Jones, sentenced to death for two murders. A federal district court in Arizona rejected Jones’s claims that his lawyer had provided inadequate assistance, but the 9th reversed that decision, upholding its position in an order denying an en banc rehearing with ten judges dissenting.
The issue is how evidence not presented by a defense attorney because of failure to investigate should be weighed in determining Strickland v. Washington prejudice in a post-conviction proceeding. Although the issue relates to an Arizona death penalty case, the outcome could provide the first new ruling on Strickland prejudice in well over a decade.
In Chiaverini v. City of Napoleon, the high court will consider whether a claim for malicious prosecution can proceed for a baseless criminal charge, even if there was probable cause for prosecutors to bring other criminal charges. In Snyder v. United States, the Supremes will consider whether the federal bribery statute – 18 USC § 666(a)(1)(B) – makes it a crime to accept “gratuities” — that is, payment for something a government official has already done, without any prior agreement to take those actions in exchange for payment.
The Court will rule on the cases by the end of its current term on June 30, 2024.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
RAHIMI ORAL ARGUMENT NEXT WEEK IS HIGH STAKES FOR SECOND AMENDMENT
On Tuesday, the Supreme Court will hear oral arguments in United States v. Rahimi, a case that will determine the constitutionality of 18 USC § 922(g)(8), the subsection of the federal firearms possession statute that bars people subject to domestic protection orders from having guns or ammo. Rahimi may well do more than that, addressing the constitutionality of all of 922(g) – including possession of guns by felons.
We hold that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s “unqualified command.
Bruen superseded the Court’s long-standing practice of allowing the government to weigh its interest in public safety against the possibility of imposing a limitation on 2nd Amendment rights.
Since Bruen, several 922(g)-based restrictions have been declared unconstitutional. Possession of guns by people who are subject to domestic protection orders, who use controlled substances – illegal under 922(g)(3), and who have been convicted of nonviolent criminal offenses, illegal under 922(g)(1), have been held to be unconstitutional under Bruen. The government has sought certiorari on all of these decisions, suggesting to the Supreme Court that a Rahimi decision can clean them all up (and in the government’s favor).
Social and public health advocates argue in essence that “validating the federal law prohibiting persons subject to domestic violence protective orders from gun possession will literally mean the difference between life or death for many victims of abuse, their family, friends, law enforcement, and the broader community,” as the Bloomberg School of Public Health puts it.
Rahimi provides the Supreme Court with an opportunity to clarify how lower courts should apply the new framework laid out in Bruen. This will significantly impact the continued viability of current gun laws and the ability of legislators to address what the Bloomberg School calls “the ongoing gun violence epidemic.”
But others suggest that 922(g)(8) looks “more like a political performance than a serious effort to reduce abusive behavior.” Writing in Law & Liberty, George Mason University laws professor Nelson Lund argues that nevertheless, “the government’s brief [in Rahimi] may look like little more than a Hail Mary pass aimed at persuading the Justices to revise or deceptively “clarify” the novel Bruen test. This gambit, however, could very well succeed. The Bruenholding has its roots in a dissenting opinion written by then-Judge Kavanaugh before he was promoted to the Supreme Court. His opinion was exposed to serious objections arising largely from the paucity of historical evidence that could support a viable history-and-tradition test. Bruen suffers from the same weakness, and it was clear from the start that the Court would find itself driven toward reliance on means-end analysis, although not necessarily the very deferential form that Bruen rejected.”
Mr. Rahimi fired off a few rounds at a fast-food joint when his friend’s credit card was declined.
Robert Leider, an assistant professor at George Mason University’s Antonin Scalia Law School in Arlington, Virginia, said at a Federalist Society forum in September that “the real legal question that everyone is interested in with Rahimi is to see how the court clarifies and applies the text, history and tradition test that it announced two terms ago in Bruen. Unquestionably, the government sought review in this case to water down the test.”
Solicitor General Elizabeth B. Prelogar took steps to expedite the review of Rahimi, citing the “substantial disruption” that invalidation of the domestic violence gun restriction would create. Meanwhile, as the American Bar Association Journal put it, Prof. Leider said the Solicitor General “slow-walked [the] cert petition in another gun case, in which the full U.S. Court of Appeals for the 3rd Circuit in June struck down the so-called felon-in-possession statute, barring those sentenced to prison for more than one year from possessing a firearm.”
That 3rd Circuit case, Range v. Atty General, involves a man convicted of food stamp fraud 25 years before who was prevented from buying a gun.
“Mr. Rahimi is the poster child for irresponsible gun possession,” Leider said. “I think the government wanted this case and not the Range welfare fraud case because this case is much easier on the judgment line.”
He’s right that Rahimi is a tough case for those hoping that Bruenmay ultimately limit the proscription on nonviolent felons owning guns (such as the case in the 3rd Circuit en banc decision in Range v. Attorney General. The evidence suggests that the presence of firearms in abusive relationships increases the risk of injury and death substantially.
After seeking cert on the Range decision, the government suggested the Court sit on the petition until a decision is handed down in Rahimi.
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SUPREMES HEAR ORAL ARGUMENT ON DRUG SENTENCING “SAFETY VALVE”
The Supreme Court opened its nine-month term last Monday hearing oral argument on the meaning of a First Step Act amendment to 18 USC § 3553(f), a subsection known as the “safety valve.”
Under the “safety valve” provision, judges could disregard mandatory minimum sentences for people convicted of certain nonviolent drug offenses who had limited criminal history and met a few other conditions.
At issue is how to interpret a part of the law that determines who is eligible for this provision, which could potentially lead to a shorter sentence. Three requirements under the provision involve prior criminal history, and the court is being asked to decide whether people no longer qualify if they meet one of these criteria — or if they must meet all three.
Mark Pulsifer pled guilty to one count of distributing 50 grams of methamphetamine and then sought application of the “safety valve.” To be eligible, a defendant cannot have “(A) more than 4 criminal history points… (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”
At issue is whether “and” means “and.”
The government argues that “and” means “or,” so defendants are ineligible if they fail any of the three subparts. “It joins together three independently disqualifying conditions by distributing the phrase ‘does not have.’ That’s the only interpretation that avoids rendering the first subparagraph entirely redundant,” the Solicitor General’s attorney told the justices.
Pulsifer’s lawyer disagreed. “Letting the government get to ‘or’ when Congress said ‘and’ would encourage Congress to be sloppy with the most basic English words, leaving square corners far behind, and in the criminal context, where fairness matters most. The Court should hold Congress to what it wrote.”
At oral argument, the justices spent most of their time parsing the grammar and conjunctions, trying to determine whether § 3553(f) uses the word “and” to join three eligibility criteria together or distributively across three independently disqualifying criteria. The government’s lawyer often appealed to a canon of construction rooted in “common sense,” a suggestion not that well received. “I don’t know that canon, but I guess it’s a good one,” Justice Neil Gorsuch quipped.
Pulsifer’s lawyer rejected it as well: “The government focuses a lot on common sense, but it’s common sense that if Congress wanted to say “or,” it would have said “or,” he contended. “It knew how to do that in other parts of this very sentence, of § 3553(f). The — Congress’s own drafting manual says to do so, and that would be the ordinary meaning — that would be the ordinary term to use in order to express the meaning that the government attributes to this statute.”
The court’s ruling may affect thousands of defendants with pending cases and those in federal prison. And how to read an ambiguous “and” may become important to a lot of zero-point people pretty soon, too.
The Sentencing Commission’s retroactive zero-point amendment (USSG 4C1.1) goes into effect in a month. Section 4C1.1(a)(1) directs that an eligible defendant is one who “did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.” Does this mean that no one with a 3B1.1 enhancement or who was convicted of a 21 USC § 848 continuing criminal enterprise is eligible? Or does it mean that you must have both a 21 USC § 848 conviction and a § 3B1.1 enhancement to be disqualified?
Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policyblog that he suspected Pulsifer
will end up with a 5-4 vote in favor of the government’s proposed statutory interpretation that would restrict the reach of the First Step Act’s expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms. But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant’s reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).
Berman anticipates a decision in winter 2024, although he offers the chance that “this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).”
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PREVIEW OF COMING EVENTS
With Congress careening toward a federal government shutdown (always bad news for BOP inmates), a freshly indicted Sen Bob Menendez (D-NJ) being pressured to quit, and about 300 military appointments being held up by Sen Tommy Tuberville (R-AL), it’s looking increasingly doubtful that Congress will do anything in the next 25 work days to block the Sentencing Guideline amendments from becoming effective on Nov 1.
Former Sentencing Commission attorney Mark Allenbaugh, founder of the website Sentencing Stats, has rolled out a web tool for people to use in order to determine whether they qualify for the retroactive zero-point Criminal History guidelines reduction (new USSG § 4C1.1). It can be found at https://www.zeropointoffender.com.
“The summer list is where petitions go to die,” Gregory G. Garre, a solicitor general in the George W. Bush administration, told the New York Times back in 2015. While the odds of getting the Supreme Court to grant review of a case are about one in a hundred, at the long conference, the rate is roughly half of that, about 0.6%.
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SCOTUS WILL REVIEW ACCA DRUG CONVICTION QUESTION
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.
The Supreme Court last week granted review to a pair of Armed Career Criminal Act cases addressing a question about the “serious drug offense” predicate for the mandatory 15-year ACCA gun possession sentence.
Under 18 USC § 922(g)(1), a person having been convicted of a crime punishable by more than a year in prison (generally speaking, a felony) is prohibited from possessing guns or ammo. (The offense is a little more complex than this, but for today’s purposes, let’s run with that definition). A § 922(g)(1) offense is punishable with a sentence from zero to 15 years.
However, if the defendant has been convicted of three prior crimes of violence or “serious drug offenses,” he or she is subject to the ACCA. The punishment is Draconian: a minimum of 15 years and a maximum of life in prison.
A “serious drug offense,” the subject of last week’s certiorari grant, is defined in 18 USC § 924(e)(2)(A) as being a federal controlled substance offense punishable by at least 10 years in prison or
an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 USC § 802 )), for which a maximum term of imprisonment of ten years or more is prescribed by law
Federal trial courts decide whether a prior state conviction counts as a serious drug offense using the categorical approach, which requires determining whether the state drug offense elements are the same or narrower than those of its federal counterpart. If the state law is broader – such as defining a mixture of cocaine as including Coca-Cola – the state conviction would be considered too broad to qualify as an ACCA predicate.
The problem is that federal drug law often changes — such as when Congress decriminalized hemp, narrowing the federal definition of marijuana – but some state laws may not. Then, the defendant could have been guilty of an underlying serious drug offense at the time he or she caught the state case, but might not be guilty of a “serious drug offense” predicate if the statute is read next to federal law on the day he or she gets the ACCA sentence.
Under the earlier version of federal law, the state and federal offenses matched — and the state offense was an ACCA predicate. Under the amended version, the offenses did not match — and the state offense would not be an ACCApredicate. Thus, the version of federal law that the court chooses to consult dictates the difference between serving a 15-year maximum or a 15-year minimum.
The issue presented, then, in the pair of cases the Supreme Court will review is whether ACCA’s “serious drug offense” definition incorporates the federal drug schedules in effect at the time of the ACCA offense or the federal drug schedules in effect at the time of the prior state drug offense.
Expect oral argument in the fall and a decision in the winter or spring of 2024.
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SUPREME COURT NIXES FEDERAL POLITICAL FRAUD CASES
Nobody likes fraud. Prior to the 1987 decision in McNally v. United States, everyone agreed that federal wire fraud and mail fraud statutes prohibited all kinds of it, including any number of intangible frauds that the Government argued were crimes even if the object of the fraud was not to deprive the government or taxpayers of money.
Honest Services Fraud:“Honest-services” fraud is fascinating stuff. Most cases prosecuted under federal mail fraud and wire fraud statutes for honest-services fraud involve public employees accepting a bribe or kickback that did not necessarily result in a financial loss for the government or taxpayer but did deprive the government of the right to receive the “honest services” of a government official or employee. In some cases, courts have ruled that the employee did not even have to hold a public position.
The whole idea of “honest services fraud” that didn’t cost the public a dime was rejected in McNally. But Congress quickly plugged the hole with 18 USC § 1346, which defined mail and wire fraud as “include[ing] a scheme or artifice to deprive another of the intangible right of honest services.” Decades later in Skilling v US, fallout from the Enron scandal, the Supreme Court clarified that “the intangible right of honest services” in § 1346 relates to “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived.”
Joe Percoco had managed former New York Gov. Andrew Cuomo’s re-election campaign, but he was a private citizen (about to return to the governor’s office) when he called the head of a state development agency and urged him to let a real estate development go forward without the developer having to buy a “labor peace” agreement with the local unions. A day after Joe made the call, state officials reversed their decision that the developer needed to such an agreement, saving the developer a lot more money than the $30,000 he had paid Joe.
Joe was convicted of fraud for taking money in exchange for helping to facilitate the real estate construction project. The fraud was “depriving members of the public of the intangible right to ‘honest services’.”
In a unanimous ruling, the Supreme Court threw out Joe’s conviction, holding that the jury instructions used to convict him were too vague.
The Supreme Court rejected the argument that a person nominally outside public employment could never have a fiduciary duty to the public to provide honest services, but it held that a jury instruction that Joe had such a duty ‘if he dominated and controlled any governmental business and people working in the government actually relied on him because of his special relationship with the government” were too vague. The justices said the instruction did not define “’the intangible right of honest services’ with sufficient definiteness that ordinary people could understand what conduct was prohibited.”
The Court held that by “rejecting the Government’s argument that § 1346 should apply to cases involving ‘undisclosed self-dealing by a public official or private employee,’ the Skilling Court made clear that “the intangible right of honest services” must be defined with the clarity typical of criminal statutes and should not be held to reach an ill-defined category of circumstances simply because of a few pre-McNally decisions. The fact that Joe was influential was simply not enough to put him on notice that being hired to make a persuasive phone call was a federal crime.
Right to Control:In the other Supreme Court criminal-law decision last week, Louis Ciminelli had steered the terms of a $750 million development project so that his company’s bid would be successful. The government could not prove that the state lost a dime over what other contractors would have bid but argued Lou had deprived the state of its “right to control” the bid process.
The Supreme Court rejected any notion that any “right to control” theory resided in the wire fraud statute. The Court expressed federalism and overcriminalization concerns in narrowing the scope of § 1343, holding that “the fraud statutes do not vest a general power in the Federal Government to enforce (its view of) integrity in broad swaths of state and local policymaking. Instead, these statutes protect property rights only. Accordingly, the Government must prove not only that wire fraud defendants engaged in deception, but also that money or property was an object of their fraud.”
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AGGRAVATED IDENTITY THEFT HAS ROUGH RIDE AT SCOTUS
The government’s habit of using the two-year mandatory consecutive minimum sentence for aggravated identity theft provided by 18 USC § 1028A as a cudgel against simple fraud took its own beating during last week’s Supreme Court oral argument.
The case concerned David Dubin, who was convicted of healthcare fraud. Dubin was accused of bilking Medicaid by misrepresenting who had conducted medical testing and rounding up the time spent carrying out each test from 2.5 to 3 hours, so that a bill submitted for services to Peter Patient was higher than it should have been.
Dubin’s sentence included a two-year mandatory minimum term for “aggravated identity theft” because the Medicaid submission included the identity of the patient but misrepresented the particulars of the test. As The New York Times put it and countless federal defendants who have been clobbered by § 1028A’s extra two-year consecutive sentence, the statute “does not seem to require identity theft in the ordinary understanding of that phrase.”
Dubin’s lawyer argued that his client had not used a patient’s identity in any meaningful way: “It has to be a lie about who receives services or who obtains services,” he said, “not a lie about how those services were rendered.”
The Supreme Court was generally sympathetic. Justice Neil Gorsuch said, “If the government’s theory is correct and every time I order salmon at a restaurant I’m told it’s fresh, but it’s frozen, and my credit card is run for fresh salmon, that’s identity theft.” The government’s position in the case, Gorsuch suggested, would transform everyday fraud into identity theft “whether it’s in a restaurant billing scenario, a health care billing scenario, or lawyers who round their hours up.”
Justice Ketanji Jackson appeared to agree. “It’s like every fraud in the world,” she told the government’s lawyer, “And you just admitted in response to Justice Thomas that it could be a teeny, teeny fraud.”
Justice Sonia Sotomayor said “the vagueness” of the statute—a due process issue—”is a problem.” She noted that it is hard to nail down the government’s definition of the crime “because every time you point to something that seems absurd, they come up with a limiting rule.” She complained that “the issue of vagueness permeates this statute,” and mentioned the rule of lenity, which favors a narrow reading of ambiguous criminal laws.
Justice Clarence Thomas asked the government where its position that any fraud, no matter how small, “stand[s] in terms of vagueness, notice to the world, fair notice to the world? I’m not sure most waiters in America appreciate that they’re committing identity theft when they bill for that bottle of wine.”
Dubin’s lawyer said said § 1028A’s mandatory minimum sentence was “a very strong cudgel to use against people to procure pleas in very low-level fraud cases. And that’s not what Congress [] aimed for in this case. Congress wasn’t trying to create a two-year mandatory minimum all of a sudden for ordinary fraud offenses. It was aimed at a particular new form of misconduct that’s simply not present in the words ‘aggravated identity theft.’”
The Supreme Court last Tuesday appeared divided over a case arguing that letting a DEA agent testify that most drug mules knew they were carrying drugs across the border violated the Federal Rules of Evidence and led to an unfair conviction.
The problem for the justices during arguments Tuesday was where to draw the line on ambiguous evidentiary rules, as evidence prohibited under one rule might be permissible under another. Circuits are split on whether testimony about a class of defendants is the “functional equivalent” of testimony about the defendant being tried for purposes of Rule 704 or whether “class” testimony is permissible evidence of how drug cartels usually operate. “There’s always a way to skin the evidentiary cat,” said Justice Neil Gorsuch, who appeared firmly on the side advocating for a more limited rule.
Both sides have “line-drawing problems,” Justice Elena Kagan said. Even if the Court ruled for the petitioner, “all the expert has to do is tweak the way he says something and the exact same testimony can come in”, she said. “It just seems at that point a kind of game.”
