Boulware v. United States

 

Michael Boulware was convicted of filing false tax returns, tax evasion, and conspiracy to make false statements to a federally insured financial institution in Hawaii District Court in 2001. He appealed his conviction to the Ninth Circuit on various grounds multiple times. In his current appeal, he argues that the funds he diverted from his closely held corporation, Hawaiian Isles Enterprises, qualified under Sections 301 and 316 of the U.S. Tax Code as a non-taxable return of capital. If this is true, he argues, the government failed to meet its burden of proof in showing a tax deficiency because it did not establish that the funds Boulware diverted were taxable as income. However, the Ninth Circuit upheld his conviction based on its decision in United States v. Miller, which established that in a criminal tax evasion case, a defendant must show not only that a diversion of funds meets the requirements in the Tax Code to be a non-taxable return of capital, but also that the shareholder and/or corporation intended it to be one at the time the diversion was made. Since Boulware could not make this showing, he failed to demonstrate that the diversion qualified as a nontaxable return of capital under Miller. Boulware has challenged his conviction and argues that the Miller "contemporaneous intent" requirement has no basis in the statutory text of the Tax Code and creates a disparity in treatment of defendants in civil and criminal tax cases, and for these reasons should be overturned. The Supreme Court, in answering the question of what requirements must be fulfilled for a diversion to qualify as a return of capital, will resolve a conflict in positions between the Second and the Ninth Circuits.

 
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    Bobby v. Bies

    Issues

    Whether the Sixth Circuit's definition of "acquittal" conflicts with the Supreme Court's prior decisions defining "acquittal" under AEDPA, whether relitigation to determine if a death-sentenced inmate is mentally retarded violates the Double Jeopardy Clause, and whether the Sixth Circuit violated the AEDPA when it applied the Double Jeopardy Clause's collateral estoppel argument to prevent relitigation, even if that issue might not have been necessary to the court's decision in that case.

     

    Respondent Michael Bies was convicted of kidnapping, murder and attempted rape of a ten-year-old boy in 1992. Despite expert testimony indicating that he was functionally mentally retarded, a jury recommended and judge delivered a death sentence. On appeal, the Ohio Supreme Court recognized that Bies was mentally retarded, but held that the aggravating circumstances of the crime outweighed the mitigating factor of his mental retardation. However, in 2002 the U.S. Supreme Court held that execution of mentally retarded individuals violated the Eighth Amendment proscription against cruel and unusual punishment. Bies argues that in light of this, his death sentence should be commuted since the Ohio Supreme Court already indicated that he was mentally retarded, and re-litigating the issue would violate the Double Jeopardy Clause of the Fifth Amendment. The State of Ohio argues that since the issue of Bies' mental retardation was not necessary for the State's decision prior to Atkins v. Virginia, contesting the issue of his mental state is not blocked by collateral estoppel, or in violation of the Double Jeopardy clause. This case is important because it will help to determine whether states can have the opportunity to relitigate the issue of whether a convicted capital defendant is mentally retarded before his sentence is commuted in light of Atkins.

     

    Questions as Framed for the Court by the Parties

    1. Did the Sixth Circuit violate the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") when, in overruling an Ohio post-conviction court on double jeopardy grounds, it crafted a new definition of "acquittal" that conflicts with this Court's decisions?

    2. Do the Double Jeopardy Clause's protections apply to a state post-conviction hearing on the question of a death-sentenced inmate's mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002), that does not expose the inmate to the risk of any additional criminal punishment?

    3. Did the Sixth Circuit violate AEDPA when it applied the Double Jeopardy Clause's collateral estoppel component to enjoin an Ohio post-conviction court from deciding the issue of a death-sentenced inmate's mental retardation under Atkins even though the Ohio Supreme Court did not actually and necessarily decide the issue on direct review?

    In 1992, Respondent Michael Bies was convicted of the kidnapping, murder, and attempted rape of a ten-year-old boy. See Bies v. Bagley, 519 F.3d 324, 327 (2008). Bies admitted to participating in the murder with the aid of an accomplice. See State v. Bies, 74 Ohio St.

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    Acknowledgments

    Special thanks to Professor John H. Blume, Professor of Law at Cornell Law School and Director of the Cornell Death Penalty Project. He is serving as Counsel of Record for Respondent Michael Bies and lent insight on the most important issues that may shape the Supreme Court's decision in this case.

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    Board of Education of the City of New York v. Tom F.

     

    The Individuals with Disabilities Education Act (IDEA) gives federal funding to state and local school systems to ensure that children with disabilities receive a free, appropriate public education through individualized educational programs. The 1997 Amendments to IDEA provide that parents of disabled children “who previously received special education and related services under the authority of a public agency” are eligible for tuition reimbursement if the school’s special education program is deemed inappropriate for the child’s educational needs. The New York State Education Department awarded Tom F. a tuition reimbursement for his disabled son Gilbert’s private school education, and the Board of Education of the City of New York appealed the decision. The Board argued that because Gilbert had never attended public school, he did not qualify for a tuition reimbursement under the language of the 1997 Amendment. How strictly the Supreme Court reads the language of the IDEA statute will determine if school boards are required to provide reimbursements to the parents of disabled children. The decision will affect the freedom that public schools have to allocate special education resources, as well as the autonomy parents have to direct special education placement.

    Under the Individuals with Disabilities Education Act (“IDEA”), states and local school systems obtain federal funding to ensure that children with disabilities receive a “free appropriate public education” (“FAPE”) through “individualized education program[s]” (“IEP”) developed by the school systems. 20 U.S.C.

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    Blueford v. Arkansas

    Issues

    Where a jury states, in open court, that a defendant is not guilty on a greater offense, but then deadlocks on a lesser offense, does the Double Jeopardy Clause bar a retrial of the greater offense?

     

    The State of Arkansas brought charges against Alex Blueford for the murder of 20-month-old Matthew McFadden, Jr. Initially, the forewoman told the court that the jury unanimously agreed that Blueford had not committed capital murder or first-degree murder, but that it was unable to arrive at a verdict on the lesser-included offense of manslaughter, and had not reached the lesser-included offense of negligent homicide. Ultimately, the jury announced that it was deadlocked, and the court declared a mistrial. Blueford moved to prevent retrial of the murder charges, arguing that the jury had acquitted him on those counts. Arkansas contended that there was no acquittal because the hung jury was unable to reach a verdict. The Supreme Court of Arkansas denied Blueford’s motion, and he appealed to the U.S. Supreme Court. Blueford argues that allowing a retrial on all the charges would violate the Constitution’s Double Jeopardy Clause and allow the state to overreach its authority. Arkansas asserts that barring a retrial on the capital and first-degree murder charges would result in a partial verdict, which leads to jury decisions based on compromise and coercion. The Supreme Court's decision will affect the protections defendants receive from the threat of multiple trials, the pressure on juries to reach a conclusive decision, and whether a court must record a verdict before it becomes final.

    Questions as Framed for the Court by the Parties

    Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars re-prosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.

    On November 28, 2007, Petitioner Alex Blueford was watching Matthew McFadden, Jr., his girlfriend's 20-month-old son, in their home. See Brief for Petitioner, Alex Blueford at 2. Shortly after Blueford began babysitting, McFadden stopped breathing. See 

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    Acknowledgments

    The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

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    Bloate v. United States

    Issues

    Is time to prepare pretrial motions, when requested by the defendant, automatically excluded from calculating the Speedy Trial Act’s requirement that trials occur within seventy days of an indictment, or the defendant’s first appearance in court, whichever is later?

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    The Speedy Trial Act of 1974 (“STA”) requires that a criminal defendant be brought to trial within seventy days of either his or her indictment or first appearance in court. Under the STA, several delays are automatically excluded from the seventy-day period, including delays related to pretrial motions. During the lead-up to Taylor Bloate’s (“Bloate”) trial, the District Court granted then-defendant Bloate’s request for extra time to prepare pretrial motions. At issue in this case is whether the time to prepare pretrial motions, when requested by a defendant, is automatically excluded from the STA’s seventy-day period. If this preparation time is included, the period between Bloate’s indictment and trial would exceed seventy days, and Bloate’s indictment would not stand. Conversely, if it is not included, the period would be less than seventy days, and Bloate’s indictment would stand. The Supreme Court’s decision in this case will resolve a circuit court split and will also have significant effects on federal criminal procedure, the interests of criminal defendants, the and the interests of the general public in maintaining a fair and efficient criminal justice system.

    Questions as Framed for the Court by the Parties

    Whether the time granted to prepare pretrial motions is excludable under §3161(h)(1). As the Eighth Circuit explicitly acknowledged below, this question has divided the courts of appeals. The Fourth and Sixth Circuits have answered it in the negative; the Eighth Circuit and seven other circuits have answered it in the affirmative.

    Under the Speedy Trial Act of 1974 (“STA”), a criminal defendant is entitled to a trial within seventy days after an indictment is issued, or the defendant’s first appearance before a federal court, whichever is later. See 18 U.S.C.

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    Additional Resources

    ·      Annotated U.S. Constitution: Sixth Amendment (Speedy Trial)

    ·      U.S. Department of Justice: Speedy Trial Act

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    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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