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Author: Rory Little

By on Jun 13, 2013 at 6:53 pm

Given the clear language of Federal Rule of Criminal Procedure 11(h) -- providing that “a variance from this rule is harmless error if it does not affect substantial rights” -- it didn’t take the Court long to rule unanimously that an error under Rule 11(c)(1) – directing that “the court must not participate in [plea] discussions” – has no different and unwritten “automatic reversal” standard.  The only question among the Justices was, it turns out, how clear is this, really?  Justice Ginsburg’s opinion for the Court carefully reviews the facts, the federal Rules, relevant precedents, and the “legislative history” (consisting of the Advisory Committee notes to the 1974 and 1983 amendments to Rule 11 that added the subsections at issue).  This last move unsurprisingly exhorts Justice Scalia (joined by Justice Thomas) to demur that although he concurs in the Court’s ruling, the plain language of Rule 11(h) is “the beginning and the end of this case.  We should not rely on the notes of the Advisory Committee.”

By on Jun 12, 2013 at 10:49 am

In Peugh v. United States, Monday’s significant opinion applying Article I’s Ex Post Facto Clauses, all members of the Court appeared to agree that the constitutional doctrine in this area is a bit muddled.  Still, the Justices also appeared to endorse the view, with varying degrees of enthusiasm, that “the touchstone of this Court’s inquiry is whether a given change in the law presents a ‘significant risk’ of increasing the measure of punishment.”   Two dissenters (Justice Alito, joined by Justice Scalia) left open whether the Court should “reconsider that test’s merits,” while disagreeing with its application here.  Meanwhile, the author of the “significant risk” test, Justice Thomas in California Department of Corrections v. Morales (1995), expressed his separate dissenting view that the test was an “error” that failed to apply “original meaning,” and that the constitutional doctrine should be reconsidered because it has become “unworkable.”  Finally, when it came to applying the test, only five Justices could agree that an ex post facto violation was proven here (Chief Justice Roberts joined Justice Thomas’s dissent on this point).  The result is that while it is now clear that a federal sentencing judge must apply the Sentencing Guidelines that were in effect when the offense was committed (unless new Guidelines do not significantly risk increasing the sentence), the textual mystery of what “ex post facto” generally means remains.

[caption id="attachment_164815" align="aligncenter" width="370"]Justice Sotomayor delivering majority opinion (Art Lien) Justice Sotomayor delivering majority opinion (Art Lien)[/caption]

By on Apr 30, 2013 at 12:22 pm

One might joke that Monday’s order in  Boyer v. Louisiana, dismissing the writ of certiorari as improvidently granted (“DIG”), was issued to eliminate all traces of Justice Thomas’s single recorded oral argument remark in seven years (as noted in my summary of the oral argument).  But the Justices plainly did not view this dismissal as a joking matter.  Instead, four of them dissented from the order at length (Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan), while another three (Justice Alito concurring in the order, joined by Justices Scalia and Thomas) expressed their supportive rationale.  Only the Chief Justice and Justice Kennedy remained silent – although Justice Alito’s similar silence about the Speedy Trial merits may in fact reveal some quiet support for Justice Sotomayor’s expressed views on the merits.

[caption id="attachment_163086" align="aligncenter" width="542"]Dissenting Justices shown in grey. Dissenting Justices shown in grey.[/caption]

By on Apr 18, 2013 at 4:08 pm
This little-noticed case (United States v. Davila ) was argued Monday, addressing the question whether every “judicial participation” violation of Federal Rule of Criminal Procedure 11(c) requires “automatic reversal,” despite Rule 11(h)’s direction that harmless error review should be applied to all Rule 11 “variance[s].”  As my preview indicated, the answer plainly seems to be “no,” with reversal of the Eleventh Circuit’s “automatic reversal” standard foreordained.  The only question remaining seems to be “how, exactly?”   On that question the Justices expressed a number of thoughts, although none seem likely to supplant Rule 11(h)’s existing harmless error direction.  Justice Scalia, as well as Justice Thomas, saw no need to say a word.

By on Apr 12, 2013 at 12:47 pm
With apologies to fifty-seven of my fellow “Criminal Law and Procedure Professors” who have filed an amicus brief in support of respondent Anthony Davila in United States v. Davila (set for argument on Monday April 15 – can that really be a coincidence for a felony tax offender?), this looks like a simple case.  “Deceptively simple,” Davila’s lawyer Josh Rosenkranz might respond – his brief does a good job of making one pause at the implications of the underlying facts.  But the Question on which the Court granted – whether “any degree of judicial participation in plea negotiations in violation of Federal Rule of Criminal Procedure 11(c)(1) automatically requires” reversal (my emphasis) – really does not require examination of these implications.  In recent years, the Court has firmly rejected endorsing “automatic reversal” rules, let alone ones based on procedural rules rather than the Constitution, rules that many states do not follow.   Expect Monday’s argument to be respectful but one-sided on the Question Presented, with the more defendant-friendly Justices perhaps focused on how best to limit a reversal so as to not endorse the disturbing implications that Davila (and his law professor amici) admirably present.

By on Mar 1, 2013 at 4:27 pm
When Congress created the Sentencing Commission in 1984 and directed it to formulate Sentencing Guidelines, it anticipated that there would be amendments, and it directed sentencing judges to “consider … the guidelines … in effect on the date the defendant is sentenced” rather than when the crime was committed.  In Tuesday’s oral argument in Peugh v. United States, the Court considered whether it violates the constitution’s Ex Post Facto Clause to follow this directive  when the Commission has amended the guidelines since the time of a defendant’s crime in a way that increases the imprisonment range.  Of course, when Congress passed the 1984 Sentencing Reform Act (“SRA”), it made the guidelines ranges mandatory.  But in 2005, the Supreme Court ruled in United States v. Booker that the Guidelines, while still relevant, cannot be mandatory, to avoid constitutional objections under Apprendi v. New Jersey.  It turns out that the unexpected Booker ruling, making the Guidelines discretionary, may save the “in effect on the date the defendant is sentenced” rule from a constitutional ex post facto demise.  This is because, as Justice Scalia pointedly observed (quoting from Calder v. Bull in 1798), the Guidelines no longer “affix a higher punishment” – they merely provide influential advice.

By on Feb 25, 2013 at 12:22 pm
The Constitution does not define “ex post facto.”  But Article I, Section 9 directs that “[n]o … ex post facto law shall be passed” by Congress.  As constitutional landmark cases go, Peugh v. United States, set for argument tomorrow has flown well under the radar.  But at issue is no less than the appropriate constitutional test for identifying an “ex post facto” law.  When the U.S. Sentencing Commission changes its (now advisory) Guidelines to treat certain sentencing factors more harshly, does it violate the Ex Post Facto Clause to apply such changed Guidelines to criminal conduct that was completed before the change?

By on Feb 25, 2013 at 11:36 am

When a criminal defendant’s sentence is plainly unlawful in light of an intervening Supreme Court decision, is “plain error” correction prohibited under Federal Rule of Criminal Procedure 52(b) because the law was unsettled when the district court imposed sentence and the defendant failed to object?  Happily, the Court answered “no” in last Wednesday’s opinion in Henderson v. United States, so that prospect of plainly illegal sentences going uncorrected on direct appeal is avoided (or at least reduced).  Still, the Court split six to three, and like most arcane legal rules, Rule 52(b) was subject to differing interpretations once placed under the Court’s microscope.  Of course, the Rule is always subject to amendment, so the majority’s non-constitutional ruling can be altered if Congress disagrees.

By on Jan 15, 2013 at 11:26 am
As the whole world now knows, the historic point in Monday morning’s argument in Boyer v. Louisiana was that Justice Thomas was recorded speaking at oral argument – and yet no one quite knows what he said, or whether he even intended to be heard.  He did not, however, ask a question, and his remark was only tangentially related to the merits.  As reported by observers in the courtroom (of which I was not one), in the middle of a discussion regarding whether one lawyer for Boyer was “competent” to try his capital case, Justice Thomas appeared to joke that being a Yale Law School graduate might or might not indicate competence.    Whether he intended his remark to be a recorded comment, or just a private aside, is unclear.  As is not atypical for the Roberts Court, so many Justices seem to have been simultaneously cross-talking -- or perhaps the reporter was asked not to fully report? -- that the transcript reports Justice Thomas’s remark only as “well – he did not – (Laughter).”   That limited version of what Justice Thomas said is surely inaccurate, and insufficient to produce “laughter.”  The entire dialogue is produced below.  But first, the merits.

By on Jan 11, 2013 at 11:01 am
Monday is apparently “Sixth Amendment Day” at the Court.  Most eyes will be on the first case to be argued (Alleyne v. United States), in which the Court will consider whether there an Apprendi right to jury trial for mandatory minimum sentencing facts.  But don’t ignore the second case, Boyer v. Louisiana, which presents a Speedy Trial question that seems increasingly important in a world of rising appointed-counsel costs funded by decreasing government budgets.