United States v. Marcus
Issues
Whether a conviction can be overturned under Rule 52(b) of the Federal Rules of Criminal Procedure if there was a mere possibility, as opposed to a reasonable one, that the jury could have convicted the defendant on ex post facto grounds.
A jury convicted Respondent Glenn Marcus on federal charges of sex trafficking and forced labor under the Trafficking Victims Protection Act of 2000. On appeal, a Second Circuit panel vacated the convictions as a violation of the Ex Post Facto Clause, because Congress enacted the statute two years after the earliest criminal conduct the indictment alleged. Although Marcus failed to preserve the ex post facto violation for appeal, the Second Circuit cited the “plain error doctrine” found in Rule 52(b) of the Federal Rules of Criminal Procedure, for authority to vacate. Rule 52(b) provides that when “[a] plain error [] affects substantial rights [it] may be considered even though it was not brought to the court's attention.” Petitioner United States asserts that the Court of Appeals’ “any possibility” standard contradicted Supreme Court precedent. The government argues that a defendant has to demonstrate a “reasonable possibility” a conviction was based on his pre-enactment conduct to violate the Ex Post Facto Clause. Marcus disputes the government’s interpretation, contending that the Second Circuit decision was consistent with Supreme Court precedent.
Questions as Framed for the Court by the Parties
Whether the court of appeals departed from this Court's interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an asserted ex post facto violation whether "there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct."
Respondent Glenn Marcus was convicted by a jury on March 5, 2007, for violating parts of the Trafficking Victims Protection Act ("TVPA"), an anti-sex-trafficking statute, in the face of evidence suggesting he had participated in graphic sex crimes. See United States v. Marcus, 487 F. Supp.2d 289, 292 (E.D.N.Y.