Is the Supreme Court Too Smart for Our Own Good?

Interesting article in the New Republic by Dahlia Lithwick explaining that she believes the rightward shift of the high court is based in more than just ideology:

"But having covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for women, minorities, and workers. No, the real problem, I think, is that the Court as a whole has gotten too smart for our own good."

SCOTUS: Counsel Ineffective If Does Not Understand Resources Available to Hire Expert

Hinton v. Alabama, No. 13-6550 (U.S. Feb. 24, 2014) (per curiam)

Hinton’s guilt hinged on ballistics evidence and one eyewitness who identified Hinton as the person who robbed his restaurant and tried to kill him in 1985.  The State’s Department of Forensic Sciences concluded that the six bullets all came from the Hinton’s gun.  Hinton’s attorney filed a motion for funding to hire an expert witness.  The trial judge granted $1000, stating that he did not know how much he could grant, thinking that it was $500 per case, and instructing the attorney to file another form if he needed additional experts.  In fact, there was not a statutory cap of $500 per case at the time of the trial; the law allowed for reimbursement for “any expenses reasonably incurred.”  Hinton’s attorney never asked for more funding, though.  Instead, he found an expert for $1000, recognizing that the expert did not have the expertise that the attorney thought he needed but thinking that was the best he could afford.  The prosecutor badly discredited the expert on cross-examination due to the expert’s lack of experience.

In his postconviction petition, Hinton produced three new experts who all examined the physical evidence and testified that they could not conclude that any of the six bullets had been fired from Hinton’s gun.  The circuit court denied the petition on the ground that Hinton was not prejudiced by the trial expert’s alleged poor performance because the trial expert’s testimony did not depart from what the postconviction experts said.  On remand from the Alabama Supreme Court, the circuit court also held that the trial expert was qualified to testify as a firearms and toolmark expert.

The Supreme Court finds that “[t]he trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.”  The inadequate assistance was not hiring “an expert who, though qualified, was not qualified enough. . . . The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.”  The Court remands for reconsideration of whether the attorney’s deficient performance was prejudicial.

More analysis available on SCOTUSblog.com.

SCOTUS: Randolph Does Not Apply When Person Objecting to the Search Not Physically Present

Fernandez v. California, No. 12-7822 (U.S. Feb. 25, 2014) (Majority: Alito, Roberts, Scalia, Kennedy, Thomas, Breyer; Concurrences: Scalia, Thomas; Dissent: Ginsburg, Sotomayor, Kagan)

This decision does not change the law in the Fifth Circuit.  See United States v. Cooke, 674 F.3d 491, 498 (5th Cir. 2012).  It describes Georgia v. Randolph, 547 U.S. 103 (2006) as a narrow exception to the rule that police officers may search jointly occupied premises if one of the occupants consents.  Under Randolph, consent of one occupant is insufficient when another occupant is present and objects to the search.  Fernandez holds that the person objecting to the search must be physically present; otherwise, Randolph does not apply.

In Fernandez, the police officers removed the objecting occupant by arresting him for suspected assault.  They later returned to the apartment and obtained consent from the remaining occupant (the abused woman) to search the premises is valid.  The Court interprets the dictum in Randolph that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection” to only apply to removals that are not objectively reasonable.  The Court holds “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” 

The Court also rejects Fernandez’s argument that his objection when he was physically present remained effective until he changed his mind and withdrew his objection.  The Court explains that this argument cannot be squared with widely shared social expectations or customary social usage on which Randolph relied.  The Court claims that it would also result in the “practical complications that Randolph sought to avoid,” by inviting other questions such as duration of the objection.

In his concurrence, Scalia addresses the Fourth Amendment argument under property law, finding that there was no violation because a guest of one tenant does not trespass simply because the other tenant forbids the guest from entering.  He also agrees with Thomas that Randolph was wrongly decided.

Thomas writes separately to “make clear the extent of [his] disagreement with Randolph.”  “[N]o Fourth Amendment search occurs where . . . the spouse of an accused voluntarily leads the police to potential evidence of wrongdoing by the accused.”

The dissent emphasizes the importance of the warrant requirement and drawing only narrow exceptions to it: “[T]he Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”  “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”

More analysis available on SCOTUSblog.com.

§ 841(b)(1)(C) Enhancement Requires Proof that Drug Was But-For Cause of Death or Injury

Burrage v. United States, No. 12-7515 (U.S. Jan. 27, 2014) (Scalia for the majority; Ginsburg concurring with Sotomayor)

Under 21 U.S.C. § 841(b)(1)(C), a defendant who unlawfully distributes a Schedule I or II drug has a 20-year mandatory minimum sentence if “death or serious bodily injury results from the use of such substance.”  The death/injury “results from” enhancement is an element that must be submitted to the jury and found beyond a reasonable doubt since it increases the minimum and maximum sentences.  In Burrage’s case, the victim had multiple drugs were present in his system, and no expert was prepared to testify that the heroin Burrage sold was the sole factor for the victim’s death or that the victim would have lived if he had not taken the heroin.  Nevertheless, Burrage was convicted under the enhancement because the jury was instructed that the Government must prove that the heroin Burrage distributed “was a contributing cause” of the victim’s death.  The Eighth Circuit affirmed the conviction. 

The Supreme Court agreed with Burrage that the statute as written requires but-for causation, as a matter of common sense and given the rule of lenity.  The Court reversed Burrage’s conviction on that count and remanded for further proceedings:

We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.

Justices Ginsburg and Sotomayor concurred in the judgment but wrote separately to clarify that they “do not read ‘because of’ in the context of antidiscrimination laws to mean ‘solely because of.’”

See Scotsblog for more coverage.

Court-Ordered Psychological Examination Admissible to Rebut Mental Status Defense (SCOTUS)

Kansas v. Cheever, No. 12-609 (U.S. Dec. 11, 2013) (Sotomayor, unanimous)

In a unanimous opinion, the Court held that “where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.”

The Kansas Supreme Court had reversed Cheever’s conviction, holding that the admission of evidence form a court-ordered psychological examination violated Cheever’s Fifth Amendment right against self-incrimination.  In so doing, the Kansas Supreme Court distinguished Buchanan v. Kentucky, 483 U.S. 402 (1987), by finding that Cheever’s voluntary intoxication—his defense—was not a “mental disease or defect.”  The U.S. Supreme Court reversed and clarified that its holding in Buchanan is not limited to “mental disease or defect” defenses but rather “mental status” defenses, which would include voluntary intoxication.

For more information, see the Cheever post on www.scotusblog.com.

Recap of Recent Supreme Court Decisions

Categorical Approach Wins: No Modified Categorical Approach for “Missing” Element

 

Descamps v. United States, No. 11-9540 (June 20, 2013) (Kagan, Roberts, Scalia Kennedy, Ginsburg, Breyer, Sotomayor, majority; Kennedy, concurrence; Thomas, concurrence in judgment; Alito, dissent)

 

The Supreme Court once again reiterates its support of the categorical approach, rejecting the Ninth Circuit’s attempt to allow judges to look beyond the statute when a statute has a single, indivisible set of elements.  The statute at issue in this case is California’s burglary statute, California Penal Code section 459, which does not have as an element unlawful entry, an element of the generic definition of burglary.  The majority holds firmly that the modified categorical approach is a tool that only applies to divisible statutes to permit a court to determine which statutory phrase was the basis for the conviction.  The modified categorical approach does not provide an excuse to look at underlying facts for indivisible statutes that are broader than the corresponding generic offense.  Under the categorical approach, the key is elements, not facts.  Since section 459 is indivisible and broader than generic burglary, it categorically is not a “violent felony” under the Armed Career Criminal Act.

 

Justice Thomas concurs in judgment, arguing that, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), any judicial fact-finding that increases the statutory maximum violates the Sixth Amendment.

 

Justice Alito dissents, opting for “a more practical reading” that would allow a sentencing enhancement “[w]hen it is clear that a defendant necessarily admitted or the jury necessarily found that the defendant committed the elements of” the generic offense.  How it becomes “clear” to the district court that the defendant committed acts that are not elements of the charged offense is a little fuzzy, but, then again, that’s the majority’s point.

 

For more analysis, see the Steve Sady’s post on the Ninth Circuit Blog: http://circuit9.blogspot.com/2013/07/q-on-descamps-and-categorical-approach.html.

 

 

Statutory Elements that Increase Mandatory Minimum Must Be Submitted to Jury

 

Alleyne v. United States, No. 11-9335 (Thomas, Ginsburg, Breyer, Sotomayor, Kagan, majority for Parts I, III-B, III-C, and IV; Sotomayor, Ginsburg, Kagan, concurrence; Breyer, concurrence in part; Roberts, Scalia, Kennedy, dissent)

Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact—other than a conviction per Almendares-Torres, which the Court did not address—that increases the mandatory minimum is an “element” that must be submitted to the jury and found beyond a reasonable doubt.  In a 5-4 split, the Supreme Court extends the Sixth Amendment to findings triggering mandatory minimums, thereby reversing Harris v. United States, 536 U.S. 545 (2002).  This case dealt with 18 U.S.C. § 924(c), carrying a firearm in relation to a crime of violence.  The jury did not find that Alleyne brandished the firearm, but the district court did, resulting in an increase of the mandatory minimum from five years to seven years.  The Supreme Court disagreed.  So, now, brandishing and other “elements” that result in an increased penalty range must be submitted to the jury.

 

Justice Sotomayor’s concurrence explains why overturning such recent precedent is permissible under the Court’s stare decisis precedent.  Justice Breyer concurs and states that he still disagrees with Apprendi but can no longer abide the incongruity of Harris given Apprendi.  Justice Roberts dissents, reiterating the reasoning of Harris—that Alleyne could have gotten seven years and that findings relating to mandatory minimums infringe on the judge’s discretion, not on the jury trial right, so the Sixth Amendment does not apply.

 

 

Eroding the Fourth Amendment: DNA Testing of Arrestees OK

 

Maryland v. King, No. 12-207 (June 3, 2013) (Kennedy, Roberts, Breyer, Alito, majority; Scalia, Ginsburg, Sotomayor, Kagan, dissent)

 

Anyone who does not like the idea of his DNA being taken for a simple arrest should just skip to Justice Scalia’s dissent, delight in his sharp criticism of the majority’s tortured reasoning, and then complain that the majority won out.  As Justice Scalia points out, the DNA collection permitted by the Maryland DNA Collection Act does not aid in identification but is specifically designed to aid in the investigation of crimes, for which suspicionless searches are prohibited.  Thanks to the majority, however, the Act is declared constitutional even though—since all parties concede that Maryland could have constitutionally taken King’s DNA after his conviction—it “manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations,” those who are arrested and not convicted.

 

How does the majority justify such an intrusion for someone who is only arrested, not convicted, of a crime? First, the majority places great weight on the benefits to the criminal justice system and police investigative practices.  Then, the majority characterizes the cotton-swab intrusion in the arrestee’s mouth as minimal—“a light touch on the inside of the cheek.”  Plus, since the arrestee had the misfortune to be arrested, he has diminished expectations of privacy.  Next, the majority states that the search was a tool, like fingerprints, to confirm the identity of the arrestee.  (Nevermind that King’s DNA was not tested until months after his arrest and that the Act itself prohibits the DNA to be examined until after the first scheduled arraignment date.)  Finally, the majority believes that the requirement in the Act that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored” adequately safeguards against using the DNA to find non-identity information.  This places a lot of trust in statutory protections against invasion of privacy. 

 

 

Applying SORNA to Pre-SORNA Military Offender Is Necessary and Proper

 

United States v. Kebodeaux, No. 12-418 (June 24, 2013) (Breyer, Kennedy, Ginsburg, Sotomayor, Kagan, majority; Roberts, concurrence; Alito, concurrence; Scalia, dissent; Thomas, dissent with Scalia joining as to Parts I, II, and III-B)

 

The short story is that SORNA applies to someone convicted of a sex offense by court martial pre-SORNA even though he never travelled interstate and was not on supervised release at the time of SORNA’s enactment in 2006.  The majority reasons that this is a proper use of the Necessary and Proper Clause since Kebodeaux was subject to a federal registration requirement prior to 2006 pursuant to the Wetterling Act.  The majority characterizes SORNA as merely modifying Kebodeaux’s duties under the Wetterling Act.

 

Chief Justice Roberts concurs separately to clarify that the Constitution does not grant the federal government police powers (since the majority gets very close to suggesting that it does), and that applying SORNA to someone like Kebodeaux was a reasonable and necessary to execute Congress’s power to regulate the conduct of members of the military.

 

Justice Scalia’s dissent challenges whether the Wetterling Act’s registration requirement was itself a valid exercise of any federal power and whether SORNA was actually designed to carry the Wetterling Act into execution.  He concludes that the federal power for the Wetterling Act was doubtful and that SORNA obviously was not designed to carry the Wetterling Act into execution.

 

Justice Thomas’s dissent emphasizes the limited powers that the Constitution bestows on the federal government and criticizes the majority’s failure to identify an enumerated power that SORNA carries into execution.  He concludes that Congress’s power to make rules and regulations for the armed forces does not include sex offender registration under SORNA.

 

 

Federal Sentencing Guidelines Are Subject to the Ex Post Facto Clause

 

Peugh v. United States, No. 12-62 (June 10, 2013) (Sotomayor, Ginsburg, Breyer, Kagan, Kennedy [except for Part III-C], majority; Thomas, dissent joined by Roberts, Scalia, Alito as to Parts I and II-C; Alito, dissent joined by Scalia)

 

The majority concludes that, even though the Federal Sentencing Guidelines are no longer mandatory, the Ex Post Facto Clause applies to them.  A district court must apply the Guidelines in effect on the date the defendant is sentenced unless the Guidelines on the sentencing date violate the Ex Post Facto Clause.  If that’s the case, then the district court must use the Guidelines in effect on the date the offense was committed. 

 

Here, Peugh was charged with nine counts of bank fraud.  Under the 1998 version of the Federal Sentencing Guidelines, when the acts occurred, his guideline sentencing range was 30 to 37 months.  Under the 2009 Guidelines, his advisory guideline range was 70 to 87 months.  Since he was sentenced under the 2009 Guidelines in violation of the Ex Post Facto Clause, the case was remanded.

 

Justice Thomas argues in his dissent that the retroactive application of the 2009 Guidelines to Peugh did not alter his punishment or violate the Ex Post Facto Clause since the Guidelines are not mandatory and sentencing remains subject to the district court’s discretion.  Fortunately for us defenders, he loses that argument.

State Conviction for Possession with Intent to Distribute for No Remuneration Is Not Aggravated Felony

Moncrieffe v. Holder, No. 11-702 (Apr. 23, 2013) (Justice Sotomayor, majority)

Applying (and celebrating) the categorical approach, the Supreme Court held that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute "illicit trafficking in a controlled substance" under section 1101(a)(43) of the Immigration and Nationality Act, and is thus not an aggravated felony subjecting a noncitizen to mandatory deportation and ineligibility for certain forms of discretionary relief.

The Court concluded:

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as "illicit trafficking in a controlled substance," and thus an "aggravated felony." Once again we hold that the Government’s approach defies "the ‘commonsense conception’" of these terms. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, "does not fit easily into the ‘everyday understanding’" of "trafficking," which "‘ordinarily . . . means some sort of commercial dealing.’" Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the [Controlled Substances Act] treats as a misdemeanor should be designated an "aggravated felony." We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.
 

Here, Adrian Moncrieffe possessed 1.3 grams of marijuana, which was accepted as a "small amount." Because the meaning of "small amount" was not at issue, the Court did not define the term "small amount."

Justice Thomas, joined by Justice Alito, dissented.

Thanks to Jennifer Niles Coffin, Research & Writing Attorney for the FPD Sentencing Resource Counsel Project, for the summary. See the case page on scotusblog for more info.

Kebodeaux Argument Preview

The oral argument for the Fifth Circuit decision United States v. Kebodeaux, a SORNA case, is scheduled for this Wednesday, April 17th.  SCOTUSBlog offers a detailed argument preview in the post by Steven Schwinn, Can Congress punish a former sex offender for failure to register?, concluding with this analysis:

This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here).

Moreover, the Fifth Circuit ruling is by its own terms quite narrow, striking SORNA only as it applies in these “specific and limited facts.” The government sought review on, and the parties argue, even narrower questions. And both parties offer potential ways for the Court to dodge the core constitutional question. The government argues that the Court could simply correct the Fifth Circuit’s erroneous premise that Kebodeaux was not under a continuing federal registration obligation pre-SORNA and remand for further proceedings. Kebodeaux, for his part, argues that his failure to register occurred before SORNA applied to him, and therefore that he could not be validly convicted for failing to register under SORNA. (He says that the Attorney General had not yet issued valid regulations specifying that SORNA applied to pre-SORNA offenders when he failed to register.)

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

The LII Supreme Court Bulletin also offers a summary of the case.

Canine Sniff of Home is Fourth Amendment Search

Florida v. Jardines, No. 11-564, _ S. Ct. _, 2013 WL 1196577 (Mar. 26, 2013)

Majority (Scalia, Thomas, Ginsburg, Sotomayor, Kagan)
"The government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment." Here, based on an unverified tip, officers surveilled the house in question. Approximately fifteen minutes after beginning the surveillance, without having seen any suspicious activities, the officer approached the house with a canine on a six-foot leash. The canine detected an odor and alerted at the front door. The officers used the canine alert to obtain a warrant to search the house. Scalia wrote that, while background norms invite a person to come to the front door and knock,

introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.

Basically, officers have an implied license to approach a door and knock, just like other citizens. Officers do not, however, have an implied license to enter the porch to conduct a search.

Concurrence (Kagan, Ginsburg, Sotomayor)
Justice Kagan argues the case could have been decided on the reasonable expectation of privacy test to arrive at the same conclusion. She compares the canine to a sense-enhancing device such as the thermal-imaging device in Kyllo, which cannot be used to search a home without a warrant or exigent circumstances.

Dissent (Alito, Roberts, Kennedy, Breyer)
Justice Alito disagrees with the majority’s approach since the officer and canine did not commit any sort of trespass by approaching the front door, remaining there a few seconds, and then leaving. He disagrees with the concurrence’s conclusion, finding that the occupant of a house does not have a reasonable expectation of privacy in odors emitted from the house that are detectable by dogs. He distinguishes canines from the thermal-imaging devise in Kyllo by focusing on the use of technology.

Latest Supreme Court Opinions - Fourth Amendment, Plain Error, Padilla, Double Jeopardy

Florida v. Harris, No. 11-817 (Kagan, unanimous)
The government does not need to produce a dog’s training and certification records, in addition to other evidence, to demonstrate a drug detection dog’s reliability. Instead, "[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test." In so holding, the Court reversed the Florida Supreme Court’s decision.
[The other dog sniff case, Florida v. Jardines (No. 11-564), which presents the question "whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause," has not yet been decided.]

Bailey v. United States, No. 11-770 (Kennedy, Roberts, Scalia, Ginsburg, Sotomayor, and Kagan, majority; Breyer, Thomas, and Alito, dissent)The detention of an individual who had left the premises before the search began and was a mile away before police detained him was not lawful under Michigan v. Summers, 452 U.S. 692 (1981), which authorizes law enforcement officers "to detain the occupants of the premises while a proper search is conducted" without need for any level of suspicion. The Court added that "[i]n closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors." Lawful detention under an alternative avenue, such as a Terry stop, is of course still possible.
Henderson v. United States, No. 11-9307 (Breyer, Roberts, Kennedy, Ginsburg, Sotomayor, and Kagan, majority; Scalia, Thomas, and Alito, dissent)
Under Federal Rule of Criminal Procedure 52(b), error is plain if it is clear at the time of appeal.
　

Chaidez v. United States, No. 11-820 (Kagan, Roberts, Scalia, Kennedy, Breyer, and Alito, majority; Thomas, concurrence; Sotomayor and Ginsburg, dissent)
Padilla v. Kentucky, 559 U. S. ___ (2010), does not apply retroactively to cases already final on direct review. In Padilla, the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. The Court concludes in Chaidez that, "under the principles set out in Teague v. Lane, 489 U. S. 288 (1989), Padilla does not have retroactive effect."

Evans v. Michigan, No. 11-1327 (Sotomayor, Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Kagan, majority; Alito, dissent)
Retrial following a court-decreed acquittal is barred, even if the acquittal was based on an incorrect legal conclusion, as was the case here.

Defendant bears the burden of proving a defense of withdrawal from a conspiracy

Smith v. United States, No. 11-8976 (U.S. Jan. 9, 2013) (Scalia, unanimous)

Since Congress did not assign the Government the burden of proving the nonexistence of withdrawal, the Court presumes that Congress wanted to preserve the common-law rule that the defendant must prove affirmative defenses.  Withdrawal does not negate an element of the charged conspiracy, and the Government does not have to prove that all affirmative defenses do not exist.  Affirms conspiracy convictions under jury charge that once the Government proved defendant was a member of a conspiracy, defendant has to prove withdrawal from a conspiracy by a preponderance of the evidence.

Under 18 U.S.C. § 844(h)(2), Carrying of Explosives Need Only Be "During," Not "In Relation To," Underlying Felony

United States v. Ressam, No. 07-455 (U.S. May 19, 2008)

Title 18 U.S.C. § 844(h)(2) makes it a crime to "carry an explosive during the commission of any [federal] felony." Ressam was convicted of that offense, and a § 1001 false statements count, for carrying explosives in his car trunk when he provided false identity information on a customs declaration form at a port of entry in Washington. The Ninth Circuit reversed Ressam's § 844 conviction, holding that the "during" element requires that the explosives be carried "in relation to" the other felony. Other circuits, including our very own Fifth Circuit, had interpreted § 844 to require only that the carrying be during the other felony. Hence cert.

The Supreme Court held, in a brief opinion authored by Justice Stevens, that "during" means "during" and only "during":

The term "during" denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because repondent's carrying of explosives was contemporaneous with his violation of § 1001, he carried them "during" that violation.

The Court also found this reading compelled by legislative history. As originally enacted, both § 844(h)(2) and § 924(c)(2) prohibited "unlawful" carrying of an explosive or firearm "during" another federal felony. Section 924(c)(2) was later amended to remove the requirment that the firearm-carrying be "unlawful," and to add that it must be "in relation to" the underlying felony. A few years later, Congress amended § 844(h)(2) to remove the term "unlawful," but it did not add an "in relation to" element as it did when it amended § 924(c)(2). The Court concluded that this history demonstrated Congress' intent not to require that explosives-carrying be in relation to the underlying felony.

(Justices Scalia and Thomas did not join the legislative history portion of the opinion, which is a little strange. Their usual objection is to the use of committee reports and such. But the Court here simply compares the evolution of two initially identical statutory provisions over time, which would seem to fall outside the typical objections to consideration of legislative history.)

But this is one of those cases in which the dissent is the more interesting part of the case. Justice Breyer, writing only for himself, pointed to some potentially absurd results produced by the majority's interpretation, since the statutory definition of "explosives" includes items such as kerosene, gasoline, or fertilizer:

Consequently the Court’s opinion brings within the statute’s scope (and would impose an additional mandatory 10-year prison term upon), for example, a farmer lawfully transporting a load of fertilizer who intentionally mails an unauthorized lottery ticket to a friend, a hunter lawfully carrying gunpowder for shotgun shells who buys snacks with a counterfeit $20 bill, a truckdriver lawfully transporting diesel fuel who lies to a customs official about the value of presents he bought in Canada for his family, or an accountant who engaged in a 6-year-long conspiracy to commit tax evasion and who, one day during that conspiracy, bought gas for his lawnmower. In such instances the lawful carrying of an "explosive" has nothing whatsoever to do with the unlawful felonies. I cannot imagine why Congress would have wanted the presence of totally irrelevant, lawful behavior to trigger an additional 10-yearmandatory prison term.

One might question whether Justice Breyer's parade of absurdities is consistent with his opinion for the Court in Gonzales v. Duenas-Alvarez, which held that, for purposes of the Taylor categorical approach,

to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.

Snark aside, Justice Breyer's main argument is a very good one (and one that arguably commanded a majority of the Court in Begay): "Context matters. And if judges are to give meaningful effect to the intent of the enacting legislature, they must interpret statutory text with reference to the statute's purpose and history."

The Court, with its decision today, makes possible the strange results I describe above precisely because it resolves the statutory interpretation question by examining the meaning of just one word in isolation. In context, however, the language excludes from the statute’s scope instances in which there is no significant relation between the explosives-carrying and the felony. A contextual interpretation furthers Congress’ original purpose, is less likely to encourage random punishment, and is consistent with the statute’s overall history. As a result, like the Ninth Circuit, I would read the statute as insisting upon some (other than merely temporal) relationship between explosives carrying and "felony."

Which is not to say that Justice Breyer "agree[d] with the Ninth Circuit that the statute restricts the requisite relationship to one in which the carrying of explosives 'facilitated' (or 'aided') the felony."

In my view, the statute must also cover a felony committed to facilitate the carrying of explosives. Why should it matter in which direction the facilitating flows? Either way, there is a relation between the carrying of explosives and the other felony. Either way, one might reasonably conclude that the presence of the explosives will elevate the risks of harm that otherwise would ordinarily arise out of the felony’s commission. Either way, one might consider the explosives "misused." Thus, I believe the statute applies if the felony, here, the making of a false statement to a customs officer, facilitated or aided the carrying of explosives.

Despite the fact that Justice Breyer's opinion didn't carry the day (or garner any other votes) here, you should keep the "context matters" argument in mind. Sometimes it works.