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Arthur Andersen LLP was convicted of witness tampering under 18 U.S.C. § 1512(b). The 5th Circuit upheld the conviction, despite Andersen's claims that prosecution did not enter evidence about the numerous documents Andersen did not destroy, that the judge allowed improper evidence of past SEC investigations of Andersen, and that the judge misrepresented the offense in the jury instructions with regards to actual knowledge that certain actions constituted a crime under the circumstances and timing of the commission of the actions. Andersen again challenges the conviction, this time before the U.S. Supreme Court.

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Brent Ray Brewer and Jalil Abdul-Kabir, the petitioners in these cases, are two inmates on death row in Texas. They are seeking writs of habeas corpus from the federal courts to overturn their death sentences. During the sentencing phase of their trials, the jury was asked to determine whether the defendant killed “deliberately,” and whether he would constitute a “continuing threat to society.” The juries in both cases returned two “yes” answers, which dictated a sentence of death under state law. The inmates argue that these questions did not give the jury a meaningful basis on which to consider mitigating evidence of childhood abuse and mental illness. The United States District Court for the Northern District of Texas denied the habeas corpus petition for Abdul-Kabir but granted it for Brewer. The Fifth Circuit, in ruling for the state on both petitions on appeal, held that the jury instruction enabled the jury to consider mitigating evidence in their deliberations on the future dangerousness question. Therefore, it held that the state court did not misapply  federal  law, and the writ of habeas corpus could not be granted. The inmates disagree with this conclusion and are now making an as-applied challenge to the Texas statute before the U.S. Supreme Court. These cases could have a significant impact on the ongoing national debate about the appropriateness of applying the death penalty on the mentally ill.

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Jack Gross sued his employer FBL Financial Group, Inc. ("FBL") in 2004, claiming that FBL had demoted him due to his age in violation of the Age Discrimination in Employment Act ("ADEA"). Under the trial judge's instructions to the jury, Gross had to prove by circumstantial or direct evidence that his age was a motivating factor in FBL's decision to demote him. The burden then shifted to FBL to prove that Gross's age was not the determining factor, and that it would have demoted Gross regardless of his age. The jury ultimately found for Gross. The United States Court of Appeals for the Eighth Circuit, however, reversed and remanded for a new trial, holding that Price Waterhouse v. Hopkins ("Price Waterhouse") requires plaintiffs to present direct evidence to shift the burden to the defendant, and that Gross had presented only circumstantial evidence. Though Price Waterhouse dealt with Title VII claims, the Eighth Circuit held that ADEA claims should be treated similarly and rejected Gross's claim that Price Waterhouse no longer applied. In this case, the Supreme Court may determine the applicability of Price Waterhouse and the burden of proof in ADEA cases.

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The Supreme Court will consider whether, in capital murder cases, jury  instructions given  in the penalty phase that  fail  to affirmatively state that mitigating circumstances need not be proven beyond a reasonable doubt violate the Eighth Amendment of the U.S. Constitution. See Brief for Petitioner, State of Kansas at i. Gleason argues that his Eighth Amendment right was violated  because  a problematic jury instruction, which lacked an affirmative statement about the appropriate burden of proof, likely precluded individual jurors from considering relevant mitigating evidence. See Brief for Respondent, Sidley J. Gleason at 11. On the other hand, Kansas maintains that Gleason’s Eighth Amendment right was not  violated,  because the jury properly applied the mitigating circumstances without confusion during deliberations. See Brief for Petitioner at 21–22. The Court’s decision could change how states instruct juries in capital murder cases and may lead courts to reexamine prior convictions. See Brief of Amici Curiae Criminal Justice Legal Foundation (“CJLF”) et al., in Support of Petitioner at 7–8.

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In this case, the Supreme Court will decide whether an “official action” is limited to exercise of actual government power. In light of this determination, the court will then decide whether the honest-services statute and Hobbs Act sufficiently define official actions to comply with the Constitution. Robert McDonnell argues that official actions should be limited to the actual exercise of government power and that his conduct as governor was never an exercise of actual government power. Thus, McDonnell argues that his conviction should be overturned on the merits, but he also argues that the trial court’s jury instructions were erroneous based on a flawed definition of “official action” given to the jury. In addition, McDonnell argues that the honest-services statute and Hobbs Act are unconstitutionally vague. The United States argues that McDonnell construes the definition of official action too  narrowly,  and that a proper interpretation encompasses McDonnell's conduct in this case.  United States  rejects McDonnell’s jury instruction arguments based by noting that these instructions included a precise definition of “official action” from the statute, with additional information to clarify the definition. Finally, the United States rejects McDonnell’s constitutional challenges by citing a recent and similar Supreme Court challenge to these statutes that failed. 

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In this case, the Supreme Court will consider whether the United States must prove elements of a crime not contained in the relevant criminal statute but included in an erroneous jury instruction if the government failed to object to that instruction at trial.  The Court will also consider whether an appellate court may review a statute-of-limitations defense not raised at trial. See Brief for Petitioner, Michael Musacchio at i; Brief for Respondent, United States at i. Michael Musacchio was convicted of conspiracy to access a computer system without authorization. According to the relevant statute, the United States had to demonstrate “Mussachio had agreed to make unauthorized access or exceed authorized access” of a computer system. See United States v. Musacchio, 590 Fed. Appx. 360, 362 (5th Cir. 2014). However, the trial court’s jury instructions stated that the jury must find that Musacchio “intentionally access[ed] a protected computer without authorization and exceed[ed] authorized access.” (emphasis added) See id. at 361. Neither Musacchio nor the United States objected to the instruction. On appeal, Musacchio challenged the sufficiency of the government’s evidence. Musacchio contends that the law-of-the-case doctrine requires the United States to prove the elements of the crime as described in the jury instructions, even when the jury instructions were erroneous and imposed a heightened burden on the government. See Brief for Petitioner, Michael Musacchio, at 19–22. Musacchio also argues that a statue-of-limitations defense not raised at trial is reviewable on appeal. See id. at 37–39; 53. The United States contends that the law-of-the-case doctrine is inapplicable, because the jury instructions were patently erroneous, and the proper statutory elements were stated in the indictment. See Brief for Respondent, United States at 13. The United States further argues that Musacchio waived his statute-of-limitations defense by failing to raise it at trial. See id. at 40–41. The Court’s decision in this case may affect the government’s prosecutorial power, the fairness of trials, and the availability of statute of limitations defenses. See Brief for Petitioner at 19-20; Brief for Respondent at 13, 48-51.

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In 1994, respondent Cesar Sarausad was convicted of second degree murder in Washington State Court for his role as a driver in a gang-related shooting. At trial, the prosecution argued in its closing that Sarausad could be found guilty of murder under the Washington accomplice liability statute because, even though he only drove the car, if he was "in for a dime," he was "in for a dollar." After repeated requests for clarification on the accomplice liability rule, which the trial judge answered only by referring the jurors back to the Washington accomplice liability statute, the jury returned a unanimous guilty verdict. Sarausad was convicted; he argued unsuccessfully on direct appeal that the instruction relieved the state of its burden to prove each element of the offense charged. Sarausad eventually sought federal habeas corpus relief, which the Ninth Circuit granted. The State of Washington, seeking to reinstate Sarausad's conviction, petitioned for certiorari from the Supreme Court. In deciding this case, the Supreme Court may determine if a federal court is required to defer to state court determination of state law when interpreting the constitutionality of jury instructions pursuant to 28 U.S.C. § 2254.

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A jury found that defendant Recuenco assaulted his wife using a “deadly weapon,” but the jury was never asked to find whether he used a “firearm.” Afterwards, the trial judge—independent of the jury—found that Recuenco used a “firearm” and increased his sentence by three years. Where the judge’s failure to instruct the jury about a “firearm” did not influence their verdict, may a reviewing court uphold the resulting sentence if it finds the erroneous instruction was harmless? Or must the court vacate the sentence because the error tainted the entire trial? The State of Washington argues that an incomplete jury instruction qualifies as a harmless error. To the contrary, Recuenco argues that the judge's imposition of an enhanced sentence based on facts not found by the jury violates his Sixth Amendment right to a jury trial.

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