Black v. United States

Issues

Whether honest services fraud requires a showing of economic harm, and whether a preservation requirement enables an honest services fraud conviction to be upheld without analyzing jury instructions for error.

 

The United States convicted Petitioners Conrad Black, John Boultbee, and Mark Kipnis of mail and wire fraud under 18 U.S.C. § 1341. The Seventh Circuit affirmed the convictions, rejecting arguments that the trial judge erred in failing to instruct the jury that a violation of 18 U.S.C. § 1346 requires contemplation of economic harm to the party to whom one owes “honest services.” The Seventh Circuit further held that objection to the prosecution’s request for a special verdict constituted waiver of the right to challenge the trial judge’s instruction in light of the fact that a special verdict would have clarified whether the trial judge’s instruction regarding honest services fraud was the basis for the convictions. The Supreme Court’s decision will determine the limits of the honest services provision and the means by which to preserve instructional error.

Questions as Framed for the Court by the Parties

1. Whether 18 U.S.C. § 1346 applies to the conduct of a private individual whose alleged "scheme to defraud" did not contemplate economic or other property harm to the private party to whom honest services were owed.

2. Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.

Hollinger International, Inc. (“Hollinger”), owner of the Chicago Sun-Times, came under governmental suspicion in 1998 when it began executing non-competition agreements in connection with the sale of most of its smaller newspapers. See United States v. Black, 530 F.3d 596, 599 (7th Cir.

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Additional Resources

• New York Times, Adam Liptak: A Question of When Dishonesty Becomes Criminal (Oct. 12, 2009)

• Wall Street Journal Law Blog: Conrad Black, the Supreme Court, and Honest Services Fraud (May 23, 2009)

• Wall Street Journal Law Blog: It’s Not Just the Skilling Case: High Court Tackles Honest Services Fraud (Oct. 13, 2009)

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Birchfield v. North Dakota

Issues

Does a State violate the Fourth Amendment by criminalizing a driver's refusal to take a chemical test to detect blood-alcohol levels without a warrant?

 

The Fourth Amendment  of  the U.S. Constitution prohibits the government, or state governments, from carrying out “unreasonable searches and seizures” without a warrant. The Supreme Court has previously held that a chemical test for blood-alcohol content is a search. Several states have statutes that require drivers to consent to chemical tests as a condition of holding a  drivers   license,  or impose criminal and civil penalties—including revoking drivers’ licenses—if drivers refuse chemical tests during traffic stops. Petitioners Danny Birchfield, William Robert Bernard, Jr., and Steve Michael Beylund argue that these statutes violate the Fourth Amendment's protection against warrantless searches and that no exception to this constitutional protection applies. Respondents North Dakota and Minnesota contend that, by driving on state roads, drivers provide implied consent to chemical tests where police suspect that a driver is  intoxicated,  and that the governmental interest in preventing drunk driving outweighs any Fourth Amendment concerns. This case could shape how the courts consider the role of driving in Fourth Amendment jurisprudence and could either narrow or expand states' police powers in cases of suspected drunk driving. 

Questions as Framed for the Court by the Parties

In the absence of a warrant, may a State make it a crime for a driver to refuse to take a chemical test to detect the presence of alcohol in the driver’s blood?

On July 6 and July 7, 2012, drivers driving under the influence of alcohol in North Dakota lost control of their vehicles and caused several tragic deaths. Brief for Respondent, North Dakota at 4–5.  In response, North Dakota passed Brielle’s Law, named after one of the victims. 

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Betterman v. Montana

Issues

Does the Sixth Amendment’s Speedy Trial Clause apply to the sentencing phase of a criminal prosecution?

Court below

 

In this case, the Supreme Court will decide whether the delay between a criminal defendant’s guilty plea and sentencing violates the Speedy Trial Clause of the Sixth Amendment. Betterman argues that the fundamental nature of the Speedy Trial Clause, as well as the Supreme Court’s precedent, supports applying the clause to delays in a defendant’s sentencing. Montana counters that the Speedy Trial Clause was never intended to apply to sentencing and that the Supreme Court’s precedent supports this position. The outcome of this case could affect the ability of convicted defendants to mount an adequate defense at sentencing.

Questions as Framed for the Court by the Parties

Does the Sixth Amendment’s Speedy Trial Clause apply to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in the final disposition of his case?

In December of 2011, petitioner Brandon Thomas Betterman failed to comply with two court orders to appear pursuant to charges of felony domestic assault. See State v. Betterman, 342 P.3d 971, 973 (Mont.

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Berghuis v. Thompkins

Issues

Whether a state court’s determination that a defendant’s Fifth and Sixth Amendment rights were not violated — where he was interrogated for three hours while silent before making an incriminating statement and where his lawyer failed to request a limiting instruction — is entitled to deference under 28 U.S.C. § 2254.

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In February of 2001, Southfield, Michigan police officers questioned Van Chester Thompkins (“Thompkins”) for roughly three hours about a shooting that had occurred over one year prior. Although Thompkins remained silent for much of the interrogation, he ultimately provided police with incriminating statements. In 2002, Thompkins was convicted of first-degree murder. In a habeas corpus proceeding pursuant to 28 U.S.C. § 2254, the Sixth Circuit reversed the conviction, finding that Thompkins had not waived his Miranda rights and that he had been unfairly prejudiced by ineffective counsel. The Supreme Court will decide whether the Sixth Circuit (1) erroneously expanded the Miranda rule so as to prevent officers from persuading defendants to cooperate who neither invoked nor waived their Miranda rights and (2) violated 28 U.S.C. § 2254(d) by failing to afford the state appellate court deference with respect to the ineffective assistance of counsel claim. The decisions will likely impact the manner in which the police approach and question suspects who have neither explicitly invoked nor waived their Miranda rights.

 

Questions as Framed for the Court by the Parties

I. Whether the U.S. Court of Appeals for the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.

II. Whether the Sixth Circuit failed to afford the State court the deference it was entitled to under 28 U.S.C. § 2254(d), when it granted habeas relief with respect to an ineffective assistance of counsel claim where the substantial evidence of Thompkins' guilt allowed the State court to reasonably reject the claim.

On January 10, 2000, Samuel Morris and Frederick France were repeatedly shot while driving through a strip mall parking lot in Southfield Michigan. See Thompkins v. Berghuis, 547 F.3d 572, 575 (6th Cir.

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Berghuis v. Smith

Issues

Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established Supreme Court precedent for evaluating whether the jury was comprised of a fair cross-section of the  community,  and whether the Sixth Circuit erred in adopting the comparative-disparity test for evaluating the difference between the number of African Americans in the community as compared to the venires.

 

In 1993, an all-white jury convicted Diapolis Smith of second-degree murder and possession of a firearm during a felony. A 1990 Census showed that African-Americans comprised 7.8% of eligible jurors in the relevant county and 18.1% of eligible jurors in the relevant city. Smith challenged the county's system of jury selection, arguing it violated his Sixth Amendment right to a jury drawn from a fair-cross-section of the community. The Sixth Circuit ruled in his favor, rejecting Petitioner Mary Berghuis’ proposed “absolute-disparity test,” which subtracts the percentage of adult members of a distinct group in the venire from the percentage of eligible jurors of that distinct group in the population. It instead applied the “comparative-disparity test,” which divides the absolute-disparity by the percentage of the distinct group in the community. The Supreme Court’s decision may impact the composition of juries.

Questions as Framed for the Court by the Parties

In Duren v. Missouri, this Court established a three-prong standard for determining whether a defendant was able to demonstrate a prima facie violation of the Sixth Amendment right to have a jury drawn from a fair cross section of the community. The circuits have split on the issue about the proper test for determining what constitutes a fair and reasonable representation of a distinct group from the community within the venires (jury pool) under the second prong of Duren. The Michigan Supreme Court ultimately concluded that the small disparities at issue here for African Americans (7.28% in the community as against 6% in the venires during the time period measured) did not give rise to a constitutional violation. The question presented is:

Whether the U.S. Court of Appeals for the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply "clearly established" Supreme Court precedent under 28 U.S.C. § 2254 on the issue of the fair cross-section requirement under Duren where the Sixth Circuit adopted the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires), which this Court has never applied and which four circuits have specifically rejected.

On February 12, 1992, Michigan police arrested Diapolis Smith (“Smith”), an African-American man, in relation to a shooting death at a nightclub in Grand Rapids, Michigan. See Smith v. Berghuis, 543 F.3d 326, 329–330 (2008). Smith’s case proceeded to jury trial in Kent County Circuit Court. See

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Benitez v. Wallis; Crawford v. Martinez

In this immigration case, the Supreme Court once again explores the detention of non-citizens. Here, the Court will consider whether its ruling in Zadvyas v. Davis, 533 U.S. 678 (2001), which determined on statutory grounds that permanent residents could not be held indefinitely, extends to inadmissible aliens. If Zavydas does not, such aliens as Benitez may remain indefinitely detained until they can be re-admitted to their home countries.

Questions as Framed for the Court by the Parties

Whether 8 U.S.C. § 1231(a)(6) and Zadvyas v. Davis, 533 U.S. 678 (2001), compel the release of an arriving alien who was apprehended at the border of the United States, denied admission, and ordered removed from the United States.

Daniel Benitez is an inadmissible alien who has lived in the United States for over twenty years. He is one of nearly 2,300 foreign nationals who entered the country illegally and are therefore subject to deportation, but cannot be repatriated because either their countries will not accept their return, or because the U.S. does not have full diplomatic ties. See Lyle Denniston, High Court To Rule On Immigrant Detention Justice Dept. Appeal On Security Gap To Be Mulled, Boston Globe, Jan. 17, 2004, at A2.

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Bell v. Kelly

Issues

Must federal courts defer to the decisions of state courts on a constitutional claim when a criminal defendant attacks a state court decision in a federal court with a claim backed by evidence that was not developed in state court?

 

Petitioner Edward Bell claims that he is entitled to habeas relief from his death sentence for the murder of a police officer because his Sixth Amendment right to effective counsel was violated. Bell’s court-appointed attorneys did not introduce mitigating evidence to show that he did not pose a threat of future violent acts. Bell sought habeas relief in the Supreme Court of Virginia, which denied both an evidentiary hearing and habeas relief. Upon Bell’s petition for habeas corpus at the federal level, the district court granted an evidentiary hearing and held that Bell’s counsel acted unreasonably but that Bell was not prejudiced by this action. On appeal, the United States Court of Appeals for the Fourth Circuit found that § 2254(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) required deference to Virginia’s summary rejection of Bell’s ineffective assistance claim, even though certain evidence supporting Bell’s claim was introduced for the first time in his federal habeas proceeding. This case could clarify the boundaries of deference toward claims “adjudicated on the merits” under the AEDPA.

Questions as Framed for the Court by the Parties

Petitioner asserted ineffective assistance of counsel at sentencing, and the district court found that he had diligently attempted to develop and present the factual basis of this claim in state court, on habeas, but that the state court’s fact-finding procedures were inadequate to afford a full and fair hearing. After an evidentiary hearing, the district court found deficient performance but no prejudice and denied relief. The Fourth Circuit affirmed. The question presented is:

Did the Fourth Circuit err when, in conflict with decisions of the Ninth and Tenth Circuits, it applied the deferential standard of 28 U.S.C. § 2254(d), which is reserved for claims “adjudicated on the merits” in state court, to evaluate a claim predicated on evidence of prejudice the state court refused to consider and that was properly received for the first time in a federal evidentiary hearing?

On October 29, 1999 in Winchester, Virginia, Sergeant Ricky Timbrook and two probation officers encountered Petitioner Edward Bell and another man while searching for a wanted parolee. See Bell v. Kelly, No. 06-22 at 10 (4th Cir. Jan.

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Bell Atlantic Corp. v. Twombly

Issues

Is a complaint alleging that defendants engaged in parallel conduct and that they participated in a "conspiracy" sufficient to state a claim under section 1 of the Sherman act, 15 U.S.C .  § 1, even if the complaint does not assert any factual allegations that, if proven true, would necessarily establish the existence of a conspiracy?

 

Plaintiff, Twombly, brought a class action antitrust suit against local telephone and internet providers (Bell Atlantic) alleging the defendants had agreed not to compete with each other and conspired to prevent the entry of competitors within their respective territories. The District Court granted Bell Atlantic’s 12(b)6 motion to dismiss on the grounds that Twombly’s complaint failed to include a factual allegation that would “tend to exclude” independent self-interest as an explanation for defendants’ parallel conduct.  On appeal, the Second Circuit reversed and remanded on the grounds that a heightened pleading standard does not apply in the context of antitrust litigation. Bell Atlantic argues that application of the “tend to exclude” standard is necessary to filter frivolous lawsuits.  Twombly responds that the “tend to exclude”  standard  is contrary to the pleading requirements  under  the Federal Rules of Civil Procedure and would unfairly block meritorious antitrust suits.  

Questions as Framed for the Court by the Parties

Whether a complaint states a claim under Section 1 of the Sherman Act, 15 U.S.C. § 1, if it alleges that the defendants engaged in parallel conduct and adds a bald assertion that the defendants were participants in a "conspiracy," without any allegations that, if later proved true, would establish the existence of a conspiracy under the applicable legal standard.

Plaintiff, William Twombly, brought a class action in the Southern District of New York on behalf of all individuals who purchased local telephone and internet service in the continental United States between February 8, 1996, and the present. Twombly v. Bell Atlantic Corp., 313 F.Supp.2d 174, 176 (S.D.N.Y.

Acknowledgments

The authors would like to thank Professor Kevin Clermont for his insights into this case.

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Begay v. United States

 

Federal law prohibits convicted felons from possessing firearms, and the Armed Career Criminal Act (“ACCA”) mandates increased prison sentences for violators of this provision who have three or more prior “violent felony” convictions. Petitioner Larry Begay (“Begay”) had at least three prior convictions for felony driving while intoxicated (“DWI”) when he pled guilty to federal firearms possession charges. The trial court held that felony DWI is a “violent felony,” and therefore sentenced Begay to a lengthy prison term under the ACCA. In deciding Begay’s appeal from this sentence, the Court will consider whether the ACCA’s “violent felony” definition encompasses felony DWI. A decision favoring Begay would likely limit the scope of the definition to felonies similar to those specifically listed in the ACCA: burglary, arson, extortion, and crimes using explosives. On the other hand, a decision in favor of the United States would likely extend the reach of the definition to all dangerous felonies. 

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Beard v. Kindler

 

Joseph Kindler was convicted and sentenced to death by a Pennsylvania court for murder. While Kindler’s post-conviction motions were pending, he escaped and remained at large for years. The court then decided on the basis of a discretionally applied fugitive forfeiture rule that Kindler had waived his rights to make these motions when he fled. After Kindler was returned, he moved to reinstate his motions. The Pennsylvania courts denied this motion and Kindler subsequently petitioned the federal court for habeas review, which the district court granted and the circuit court affirmed. In this case the Supreme Court will decide if a federal court may grant a habeas petition when Pennsylvania’s highest court declared that Kindler forfeited his relief claims when he fled. Pennsylvania argues that its fugitive forfeiture rule is an adequate state ground that bars federal review. Kindler, however, claims the discretionally applied fugitive forfeiture rule was not applied with sufficient consistency in Pennsylvania courts to preclude habeas review.

Questions as Framed for the Court by the Parties

After murdering a witness against him and receiving a sentence of death, respondent broke out of prison, twice. Prior to his recapture in Canada years later, the trial court exercised its discretion under state forfeiture law to dismiss respondent's post-verdict motions, resulting in default of most appellate claims. On federal habeas corpus review, the court of appeals refused to honor the state court's procedural bar, ruling that, because “the state court . . . had discretion” in applying the rule, it was not “firmly established” and was therefore “inadequate.” 

Is a state procedural rule automatically “inadequate” under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory?

While released on bail and facing burglary charges in 1982, Joseph Kindler murdered one of the accomplices to the burglary, David Bernstein, because he was cooperating with the police and had been granted immunity to testify against Kindler. See Kindler v.

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Additional Resources

·         Criminal Justice Crime Blog: Critical discussion of Kindler’s basis for federal habeas review

·         ABC News: High Court to Rule in Pennsylvania Death Penalty Case

·         Capital Defense Weekly Blog: Justice Alito excuses himself from case

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