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You Don’t Have to Cheat Someone Out of Money to Commit Wire Fraud – Update for May 27, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

STAM’S SCAM SLAMMED

Savingmoney250527The Supreme Court last Thursday upheld the fraud conviction of painting contractor Stamatios Kousisis. Stam got two government contracts that required him to work with disadvantaged business enterprises (DBEs), companies owned by racial minorities.

Stam set up a scam, a “pass-through” DBE company that was supposed to be supplying paint but really was just a front. Stam bought the paint, sold it to the DBE and then bought it back for a small markup that the minority “front” man got to keep for his part in the scam.

The catch was that Stam’s bid – with the sham DBE “front” – was below everyone else’s. As a result, the government paid less than it would have if it had accepted a bid from one of the other contractors who put their bids together with a legitimate DBE. The government charged Stam with wire fraud under the theory that he had fraudulently induced Pennsylvania to save money by contracting with him based on his claim that he was working with a real DBE. Stam argued that under the fraudulent inducement theory, the government had to show Stam intended to harm the government financially, which the government could not do.

The 3rd Circuit held that DBE participation in the deal was “an essential part of the contract,” and that was good enough to establish wire fraud, even if the government did save money. Last week, the Supreme Court agreed.

dbe250527The Supremes held that wire fraud simply requires someone to “devise” a scheme to “obtain money or property” through “false or fraudulent pretenses, representations, or promises.” The fraudulent-inducement theory, Justice Barrett wrote, does that: By using “a pass-through entity,” she said, Stam “‘devised’ a ‘scheme’ to obtain contracts through feigned compliance with PennDOT’s disadvantaged-business requirement.” The goal of the scheme was to obtain “tens of millions of dollars” from PennDOT by “making a number of ‘false or fraudulent… representations’ — first about their plans to obtain paint supplies from [the DBE] and later about having done exactly that.”

Fraud160811Obtaining money or property must be the goal of the wire fraud scheme, SCOTUS said, but the scheme does not “depend[] on economic loss.” The unanimous Court (with three concurring opinions) acknowledged that the wire fraud statute potentially has a “broad” sweep, “[b]ut Congress enacted the wire fraud statute, and it is up to Congress—if it so chooses—to change it.”

Kousisis v. United States, Case No 23-909, 2025 U.S. LEXIS 1982 (May 22, 2025)

SCOTUSBlog, Court upholds federal fraud conviction even without economic harm (May 22, 2025)

– Thomas L. Root

SCOTUS Starts October 2024 Term With A Docket That Leaves Plenty of Space for New Cases – Update for October 8, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NEW SUPREME COURT TERM LEAVES PLENTY OF ROOM ON DOCKET FOR GUNS, ELECTIONS AND TRUMP

Yesterday was the first Monday in October, and everyone knows what that means. The Supreme Court’s new season, known as October Term 2024, began its nine-month run with a couple of dry-as-toast non-criminal oral arguments.

vacationSCOTUS180924At this point, there are not many cases of interest on this year’s Supreme Court docket for federal criminal law followers. But the ABA Journal last week reminded readers that “a year ago, the 2023-24 term looked like it might be relatively sleepy. But that was before the court added cases on guns, abortion medication and two matters involving former President Donald Trump and the Jan 6, 2021, riot…”

The SCOTUS news for readers of this blog was released last Friday, when the Justices announced 15 new cases they would hear this term, all coming out of last week’s annual “long conference,” the annual culling of certiorari petitions that marks the end of SCOTUS’s summer recess.

Four of the certiorari grants involved criminal law issues. The only substantive federal criminal statute case is Thompson v. United States, which asks whether 18 USC § 1014 — making a “false statement” to influence certain financial institutions and federal agencies — also prohibits making a statement that is misleading but not false.

In Barnes v. Felix, the court will consider (in the context of a civil rights suit) whether the 4th Amendment, which prohibits police from using “unreasonable” force, depends on “the totality of the circumstances” or just under the “moment of the threat.” The reasonableness of an officer’s actions for 4th Amendment purposes is a fact-intensive inquiry. The question is whether the entire encounter with the person who is later contesting the seizure is examined in gauging whether the officer’s force is appropriate or whether only what happened in the narrow window when the officer’s safety was threatened is at issue.

In Perttu v. Richards, the issue is the technical but consequential question of whether under the Prison Litigation Reform Act, prisoners have a right to a jury trial concerning their exhaustion of administrative remedies where disputed facts regarding exhaustion are intertwined with the underlying merits of their claim.

Finally, Gutierrez v. Sanz, a capital case, deals with standing issues in conjunction with efforts by a state defendant to secure post-conviction DNA testing.

gunknot181009One issue sure to make it onto the Supreme Court docket is the constitutionality of 18 USC § 922(g). The leading case on the question of the constitutionality of the felon-in-possession statute, § 922(g)(1) – the 3rd Circuit Range v. Garland en banc decision – was remanded by SCOTUS in light of United States v. Rahimi last spring. The 3rd Circuit will hold oral argument on Range tomorrow.

So far this past summer, three circuits have grappled with Rahimi, resulting in three different approaches. Last August, the 8th Circuit held in United States v. Jackson that § 922(g)(1) was constitutional. A few weeks later, the 6th Circuit ruled in United States v. Williams that § 922(g)(1) is constitutional on its face and as applied to “dangerous people,” but not necessarily to all felons. On Sept 18, the 5th Circuit held in United States v. Diaz that § 922(g)(1) was constitutional as applied to a defendant once convicted of stealing a car based on the fact that 18th-century laws “authoriz[ed] severe punishments for thievery and permanent disarmament in other cases.”

mario170628Meanwhile, in Greene v. Garland, a case brought against the Dept of Justice by a Pennsylvania district attorney who is a registered medical marijuana user but wants to possess a gun, DOJ attorneys argue that the nationwide ban on marijuana users owning guns is constitutional, saying it aligns with other restrictions on gun ownership by dangerous, mentally ill or intoxicated people.

The DOJ’s position makes some sense here. Everyone knows how dangerous a district attorney can be…

SCOTUSBlog.com, Justices take up “false statement” dispute and rare capital case (October 4, 2024)

Thompson v. United States, Case No. 23-1095 (certiorari granted October 4, 2024)

Barnes v. Felix, Case No. 23-1239 (certiorari granted October 4, 2024)

Perttu v. Richards, Case No. 22-1298 (certiorari granted October 4, 2024)

Gutierrez v. Sanz, Case No. 23-7808 (certiorari granted October 4, 2024)

ABA Journal, Supreme Court’s sleepy-looking docket leaves room for potentially bigger cases to come (October 3, 2024)

Marijuana Moment, DOJ Says Allowing A Pennsylvania Prosecutor Who Uses Medical Marijuana To Possess A Gun Would Be ‘Dangerous’ (October 3, 2024)

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

United States v. Diaz, Case No. 23-50452, 2024 U.S. App. LEXIS 23725 (5th Cir. Sep. 18, 2024)

Greene v. Garland, ECF 32, Case No 1:24-cv-21 (W.D. Pa., filed October 1, 2024)

– Thomas L. Root

Supreme Court Long Conference is Today – Update for September 30, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LONG CONFERENCE KICKS OFF SCOTUS OCTOBER 2024 TERM

longconf210706“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%.

The Court returns to the bench on October 7th to start a new term that includes cases on transgender rights, ghost guns, flavored vapes, and securities fraud. One case generating interest is Hewitt v. United States, which seeks to reverse a 5th Circuit holding that First Step Act mandatory minimum changes cannot be applied to people sentenced before the Act was passed but whose cases were remanded for resentencing after the Act became law. Federal circuit courts are split on this question.

Last week, a bipartisan group of senators led by Majority Whip Richard Durbin (D-IL), Chairman of the Senate Judiciary Committee, filed a brief in the Hewitt case. The Senators told the Court that in “designing the First Step Act, Congress sought to ensure that individuals who committed an offense before the Act was enacted, but who were not yet subject to a sentence for that offense, would benefit from Section 403. That group, as Congress conceived of it, includes both individuals facing an initial sentencing proceeding as well as individuals facing resentencing following vacatur of a prior sentence.”

The group, including Sen Charles Grassley (R-IA), Cory Booker (D-NJ), and Mike Lee (R-UT), argued that the 5th Circuit’s “reading of Section 403 is inconsistent with Congress’ intent as reflected in its chosen text.”

vacationSCOTUS180924The Dept of Justice has refused to argue in support of the 5th Circuit’s decision. The Supreme Court therefore has appointed Michael McGinley, a partner in the Dechert law firm, as a “friend of the court” to brief and argue in support of the judgment below, a practice that happens about once every term.

New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

Time, The Biggest Supreme Court Cases to Watch (September 25, 2024)

Senate Judiciary Committee, Durbin, Bipartisan Group Of Senators Urge Supreme Court To Maintain Strength Of Landmark Criminal Justice Reform Provision In Hewitt v. US (September 24, 2024)

Hewitt v. United States, Case No 23-1002 (Supreme Court, oral argument pending)

SCOTUSBlog, Justices appoint former clerk to argue First Step Act cases (July 26, 2024)

– Thomas L. Root

“In My Expert Opinion, You’re Guilty” – Update for March 25, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES SPLIT ON GOVERNMENT EVIDENTIARY CAT-SKINNING

catskinning240325The 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.

expert160905The 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.

game180103Both 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.

Diaz v. United States, Case No 23-14 (Supreme Ct, argued March 19, 2024)

Reuters, US Supreme Court appears split over appeal by convicted border drug ‘mule’ (March 19, 2024)

Sentencing Law and Policy, A little interesting coverage of an interesting SCOTUS argument on drug mule case experts (March 20, 2024)

Bloomberg Law, Justices Search for Sweet Spot on Testimony on Criminal Mind (March 19, 2024)
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– Thomas L. Root

Supreme Court Decides What Congress Really Meant on Safety Valve – Update for March 19, 2024

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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.

caterpillar240319Many 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.

grammar240319The 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.”

SCOTUSBlog.com reported that

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.

and-or240319In 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)

Reuters, US Supreme Court says thousands of drug offenders can’t seek shorter sentences (March 15, 2024)

Sentencing Law and Policy, In notable 6-3 split, SCOTUS rules in Pulsifer that “and” means “or” for application of First Step safety valve (March 15, 2024)

SCOTUSBlog.com, Supreme Court limits “safety valve” in federal sentencing law (March 15, 2024)

NBC, Supreme Court denies ‘thousands’ of inmates a chance at shorter sentences (March 15, 2024)

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The 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 Act defendant’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.
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.

expert160905Last 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.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root

Supremes Will Review Four More Criminal Cases – Update for December 19, 2023

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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.

blowout231219The 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.

goodpros170330In 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.

Sentencing Law and Policy, Four criminal cases of note in latest SCOTUS cert grants (December 13, 2023)

Fischer v. United States, Case No. 23-5572 (certiorari granted December 13, 2023)

Thornell v. Jones, Case No. 22-982 (certiorari granted December 13, 2023)

Chiaverini v. Napoleon, Case No. 23-50 (certiorari granted December 13, 2023)

Snyder v. United States, Case No. 23-108 (certiorari granted December 13, 2023)

– Thomas L. Root

Gunning for Bruen – Update for November 3, 2023

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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

scotus161130On 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.

The Supreme Court’s 2022 New York State Rifle & Pistol Association v. Bruen adopted a new originalist 2nd Amendment standard:

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).

sexualassault211014Social 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 Bruen holding 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.
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 Bruen may 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.

United States v. Rahimi, Case No. 22-915 (oral argument November 7, 2023)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022)

Johns Hopkins University, Bloomberg School of Public Health, Questions and Answers on U.S. v. Rahimi, the Major Gun Case Before the Supreme Court During its 2023–2024 Term (October 10, 2023)

American Bar Association Journal, Supreme Court takes on first major gun case since landmark ruling last year softened regulations (November 2, 2023)

Law & Liberty, Domestic Violence and the Second Amendment (November 1, 2023)

USA Today, Domestic violence abuse victims need more protections — not less stringent gun regulations (November 2, 2023)

– Thomas L. Root

SCOTUS Tackles the ‘And/Or’ Debate in Pulsifer Case – Update for October 6, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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.

andor210524At 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.”

words221110At 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.

zeropoints230420The 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 Policy blog 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).”

New York Times, On First Day of New Term, Supreme Court Hears Debate Over First Step Act (October 2, 2023)

The Hill, Supreme Court opens term with case on prison terms for drug offenders (October 2, 2023)

Slate: The Supreme Court’s Oddest Pairing Comes Out Swinging on Behalf of Criminal Defendants (October 2, 2023)

Transcript of Oral Argument, Pulsifer v. United States, Case No. 22-340 (October 2, 2023)

Sentencing Law and Policy, Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case (October 3, 2023)

– Thomas L. Root

Supremes Are Back From the Beach, Guideline Amendments Lurch Toward Effective Date – Update for September 26, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PREVIEW OF COMING EVENTS

events230926With 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.

vacationSCOTUS180924Meanwhile, the Supreme Court returns to work after a 3-month vacation for its annual “long conference.” At today’s long conference, the Justices will decide which of some 950 petitions for writ of certiorari – about 15% of all petitions filed during the year – should be granted review.

“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%.

Zero Point Offender

The Hill, All eyes on ethics as Supreme Court justices return to Washington (September 26, 2023)

The New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

– Thomas L. Root