A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust
Received: May 25, 2010.
UNITED STATES v. O’BRIEN ET AL. No. 08–1569
In an opinion by Justice Kennedy, the United States Supreme Court ruled the fact that a firearm was a machinegun is an element to be proved to the jury beyond a reasonable doubt and not a sentencing factor to be proved to the judge at sentencing.
Respondents O’Brien and Burgess carried firearms during an attempted robbery. They were indicted under 18 U.S.C.§924(c)(1)(A)(i) - using a firearm in furtherance of a crime of violence, which carries a mandatory minimum of 5 years in prison. They were also indicted with a violation of §924(c)(1)(B)(ii) - use of a machinegun in furtherance of that crime, which carries a 30 year mandatory minimum prison term. The government went on to dismiss the latter count on the basis that they could not establish the count beyond a reasonable doubt. However, the government maintained that §924(c)(1)(B)(ii)’s machinegun provision should be a sentencing enhancement to be determined by the court after conviction of §924(c)(1)(A)(i). The District Court dismissed the machinegun count and rejected the government’s sentencing enhancement position. Respondents then plead guilty to the remaining counts.
The Supreme Court granted cert and the case was argued on February 23, 2010. The Court relied largely on Castillo v. United States, 530 U. S. 120, which held that in an earlier version of §924(c), the machinegun provision was an element of the crime and not a sentencing factor (which only needs to be proved by a preponderance of the evidence). The Court previously held when Congress is not clear on whether a factor is an element or a sentencing factor, courts should examine a statute’s framework and provisions for direction. The Court followed the determination in Castillo that the machinegun provision in §924’s prior version is an element and that a substantive modification of the statute should not be inferred absent a clear sign from Congress of a change in policy. Grogan v. Garner, 498 U. S. 279, 290 (1991). The Court found that nothing in the amendment of §924 indicates such a substantive change. Ultimately, the Court held that the machinegun provision is an element that needs to be proven beyond a reasonable doubt.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. STEVENS, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.
Case is available at: http://www.supremecourt.gov/opinions/09pdf/08-1569.pdf
Written by Chaz Lehman, CJS Research Attorney
United States v. Marcus, No. 08-1341
United States Supreme Court Decision: May 24, 2010
In a 7-1 opinion by Justice Breyer, the United States Supreme Court held that the 2nd Circuit’s interpretation of Federal Rule 52(b) was inconsistent with the Supreme Court’s interpretation of the plain error rule.
Glenn Marcus was convicted of unlawful forced labor and sex trafficking in violation of 18 USC §§ 1589 and 1591(a)(1) between January 1999 and October 2001. Upon appeal, Marcus raised the defense for the first time that his statutes relating to his convictions became law on October 28, 2000. The indictment and all of the evidence used against him at trial took place earlier. Marcus argued that his conviction, therefore, violated the Ex Post Facto Clause. Marcus argued that his conviction must be overturned because the constitutional error constituted “plain error” according to Federal Rules of Criminal Procedure, Rule 52(b).
The 2nd Circuit held that plain error exists if there is any possibility, no matter how unlikely, that a jury convicted a defendant exclusively on the basis of the actions the defendant took before the statute criminalizing his conduct was enacted. The Supreme Court granted cert to decide whether the 2nd Circuit’s “plain error” approach was consistent with the Supreme Court’s own interpretation.
Federal Rule 52(b) authorizes the appellate court to recognize “plain error that affects substantial rights” even if that error was not raised in the district court. The Supreme Court held the 2nd Circuit’s interpretation improper because Marcus failed to demonstrate that “the error ‘affected the appellant’s substantial rights’”, meaning it “affected the outcome of the district court proceedings”, and that “the error seriously affect(s) the fairness, integrity or public reputation of judicial proceedings.” The 2nd Circuit’s “any possibility, no matter how unlikely” analysis is inconsistent. Reversed and remanded.
Justice Breyer delivered the opinion of the Court, joined by Roberts, C.J., and Scalia, Kennedy, Thomas, Ginsburg, and Alito, JJ.. Justice Stevens dissented. Judge Sotomayor took no part in the consideration or decision of this case.
Case is available at: http://www.supremecourt.gov/opinions/09pdf/08-1341.pdf
Written By: Afua A. Osseo-Asare, CJS Intern
Jefferson v. Upton No. 09-8852
United States Supreme Court Decision: Decided: May 24, 2010
In a per curiam opinion issued today the Supreme Court ruled that the appellate court (11th Cir.) failed to apply all eight exceptions to a state court factual findings (regarding constitutionality of representation) and the judgment was vacated to consider several remaining potentially applicable exceptions. See 28 U.S.C. §§2254(d)(1)-(8) (1994 ed.).
Lawrence Jefferson was facing a death sentence and claimed in both state and federal court that his lawyers were constitutionally inadequate because they failed to investigate a previous brain injury which may have impacted his impulse control. As a child Jefferson suffered a serious brain injury and at the district court level expert testimony demonstrated that the injury caused “abnormal behavior” over which he had “no or substantially limited control”. Jefferson v. Terry, 490 F. Supp. 2d 1261 at 1321. In addition, testimony from Dr. Gary Dudley prepared for trial court noted that although Jefferson’s decision making capacity was not impaired, he thought it worthwhile to conduct further evaluations to rule out brain damage which could impair behavioral patterns. Jefferson’s attorneys failed to pursue such testing noting that in later conversations Dr. Dudley had told them that further investigation would be a waste of their time (a sworn affidavit by Dr. Dudley denied such statements). Relying on findings crediting the trial attorneys own testimony with regards to their efforts to investigate Jefferson’s mental condition the trial court held that the attorneys made a reasonable investigation into his mental health. The Georgia Supreme Court affirmed, despite noting that court’s opinion relied on a witness “who did not testify” or participate in the proceedings. Jefferson v. Gant, 263 Ga. 316, 318.
A federal district court substantiated factual findings of the state court but held that counsel was ineffective and on appeal Jefferson defended these findings and argued that the state court’s factfinding was ‘dubious at best’. Noting an exception enumerated in Townsend v. Sain the Court emphasized that if a habeas applicant did not receive full and fair evidentiary hearing then federal court may hold such a hearing. 372 U.S. 293 (1963). The opinion specifically states that if any of the eight exceptions are applicable (as outlined in Townsend and later codified in §2254(d)) then the state courts factfinding is not presumed correct and the federal court is not duty-bound to accept any and all state-court findings that are supported by the record. The Supreme Court held that by only considering one of the eight exceptions the appellate court failed to correctly consider the legal status of the state court’s factual findings.
Judgment vacated and case remanded.
SCALIA, J. filed a dissenting opinion in which THOMAS, J. joined.
Decision available at: http://www.supremecourt.gov/opinions/09pdf/09-8852.pdf
Written by: Caitlin Huggins, CJS Summer Intern
Robertson v. United States ex rel. Watson No. 08–6261.
United States Supreme Court Decision: May 24, 2010
In a per curium decision with four dissenters, the United States Supreme Court ordered the petition dismissed as improvidently granted. Chief Justice Roberts wrote a dissent joined by Justices Scalia, Kennedy, and Sotomayor. Justice Sotomayor also wrote separately and was joined by Justice Kennedy.
Petitioner Robertson was convicted in the District of Columbia of criminal contempt initiated and prosecuted on behalf of Respondent Watson for violating a protective order after he assaulted her. However, before contempt proceedings were initiated, Robertson made a plea agreement dismissing any further action against him relating to the assault. Robertson appealed the conviction because it was barred by his plea agreement. The Court of Appeals affirmed the conviction, holding that Watson was acting in a private capacity and therefore not bound to the government’s plea agreement.
The Court originally granted cert to decide “[w]hether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.” Although the Court gave no reason for its dismissal in the per curium order, it apparently agreed with the Solicitor General, supporting the respondent, Watson. The Solicitor General argued for dismissal because the issue presented was not properly argued or developed by the petitioner in the present litigation. Arguing before the lower appellate court, the United States asserted that Watson was acting in a purely private capacity in bringing the criminal contempt action against Robertson and therefore no constitutional protection applied. Although the lower court found that reasoning persuasive, the Solicitor General abandoned that argument before the Supreme Court—foreshadowing the Court’s eventual dismissal.
Case is available at:
Written By: Erin Magary, CJS Research attorney