A U.S. Supreme Court Case Brief: Professor Rory Little’s Perspective

United States v. Marcus, No. 08-1341, 130 S.Ct. ___(may 24, 2010).

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” — that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

FEDERAL RULES – Plain Error Doctrine, Federal Rule of Criminal Procedure 52(b).

United States v. Marcus, No. 08-1341, 130 S.Ct. ____ (May 24, 2010), reversing 538 F.3d 97 (2d Cir. 2008) (per curiam) (with Sotomayor, J., concurring [and hence recused in USSCt).

Holding (7-1), Breyer; Stevens dissenting (Sotomayor recused): “Plain error” review — for errors not objected to in the trial court but raised for the first time on appeal — requires a “reasonable probability that the error affected the outcome of the trial,” not just “any possibility no matter how unlikely” as the Second Circuit stated. (Interestingly, while on the Second Circuit, Justice Sotomayor had concurred in the judgment while pointing out the panel’s error (but following Second Circuit precedent). Here, although Justice Sotomayor recused herself, the Supreme Court effectively instituted her concurrence as its near unanimous holding.)

Facts: Marcus was indicted on federal charges that he had committed forced labor and sex trafficking between January 1999 and October 2001. He was tried on evidence showing coercive sexual bondage and dominance conduct with a number of women during this period, and convicted on both charges. On appeal, he raised for the first time the fact that the federal statute he was charged under had not gone into effect until October 2000, in the middle of the period charged by the government. The government argued that this was not “plain error” under Fed.R.Cr.Pro. 52(b), because the conduct was a continuing offense and the evidence of criminal conduct after October 2000 was sufficient. But the Second Circuit reversed and remanded for a new trial, invoking CA2 precedent that said when such a potential “ex post facto” event occurs, retrial is necessary if there was “any possibility, no matter how unlikely,” that the jury could have convicted based exclusively on pre-enactment conduct.

Justice Breyer (for 7 members of the Court): The CA2 legal standard is “inconsistent with this Court’s” plain error precedents. Rule 52(b) allows an appellate court to reverse a conviction for even an unobjected-to error, when it is “plain error that affects substantial rights.” The Court has specified a four-step inquiry to determine “plain error”: “that (1) there is an error; (2) the error is clear or obvious,…; (3) the error affected the appellant’s substantial rights,….; and (4) the error seriously affects the fairness, integrity, or public reputation” of the judiciary. (Also (5), there may (rarely) be types of “structural error” that require reversal even without this four-poart showing – but we think the error here is no more important than other errors involving constitutional rights that we have found not to be “plain” error.) The third step requires a Strickland-like showing: “prejudice,” meaning a “reasonable probability” that the error affected the outcome. Here, there was no real “ex post facto” error; rather, the error was not instructing the jury that Marcus’s conduct was not unlawful until October 2000. For this, a “showing of individual prejudice” is required. While not “intend[ing] to trivialize” the claim, this case is remanded for CA2 to apply the more demanding plain error analysis we describe.

Stevens dissenting: Although the court of appeals did (“curious[ly]”) misdescribe the test, “I find nothing wrong with [its] judgment.” To me, “the post-enactment evidence appears to have been insufficient to prove guilt beyond reasonable doubt” (citing Judge Sotomayor’s concurrence below). There is “a very real possibility” that the jury convicted Marcus “solely on the basis of preenactment conduct.” I think this “seriously undermined the integrity of the proceedings.” In addition, I think the Court’s complicated five-step analysis has “both muddied the waters and lost sight of the wisdom embodied in the Rule’s spare text.” Courts of appeal need discretion here, because they “repeatedly confront” errors that occur but were not perceived below AND [Ed. Note: this next is an unusually candid, if also accurate to practitioners, admission] “[t]hey become familiar with particular judges.” The court’s “ever-more intensive efforts to rationalize plain-error review” has “trapped the appellate courts in an analytic maze” that “is more liable to frustrate than to facilitate sound decisionmaking.”

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