Appealed from the United States Court of Appeals for the Second Circuit (Aug. 14, 2008)
Oral argument: February 24, 2010
EX POST FACTO CLAUSE, CRIMINAL PROCEDURE, PLAIN ERROR
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.
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."
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.
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. 2007). Those acts began in 1999 and continued through 2001; the statute was enacted in October 2000. See United States v. Marcus, 538 F.3d 97, 100 (2d Cir. 2008).
Marcus moved, pursuant to Rule 29 of the Federal Rules of Civil Procedure, for a judgment of acquittal based on statutory interpretations and for a government failure to present adequate evidence to lead to conviction; he also moved under Rule 33 for a new trial. See Marcus, 487 F.Supp.2d at 292. The district judge denied both motions. See id. at 313. On September 18, 2007, he was sentenced to 108 months imprisonment by a judge in the United States District Court for the Eastern District of New York. See Marcus, 538 F.3d at 98.
Marcus appealed to the United States Court of Appeals for the Second Circuit on a new ground: that the TVPA had been retroactively applied to him in violation of the Ex Post Facto Clause of the U.S. Constitution, which prevents criminal statutes from applying retroactively. See Marcus, 538 F.3d at 100. Marcus noted that the TVPA was enacted in October 2000, but the indictment charging him alleged the relevant acts took place "[i]n or about and between January 1999 and October 2001." Id.
Because Marcus did not raise the ex post facto challenge at the trial level, the Second Circuit reviewed the lower court's decision for plain error, which is found when an error is "plain and affects substantial rights." Marcus, 538 F.3d at 100. The court held that the lower court decision "implicated" the Ex Post Facto Clause because the judge failed to instruct the jury of the timing of the statute's enactment. Id. at 101.
The government argued that the crimes should be considered a "continuing offense" — that is, a criminal enterprise that began before a statute's enactment but continued afterward. See Marcus, 538 F.3d at 101. Such a conviction does not violate the Ex Post Facto Clause. See id.
The court did not reach the continuing offense issue and held that the judgment violated the Ex Post Facto Clause regardless. See Marcus, 538 F.3d at 101. The Second Circuit relied on its own precedent to hold that if it was in any way possible for the jury — “who had not been given instructions regarding the date of enactment — to convict exclusively on pre-enactment conduct, then the conviction constitutes a violation of the Ex Post Facto clause." Id. (citing United States v. Torres, 901 F.2d 205, 229 (2d. Cir 1990)).
The government argued that the Second Circuit should not vacate the judgment, because there was merely a "remote possibility" that the jury relied on the pre-enactment conduct, but the court held that such a distinction had no meaning; as long as there was a possibility, which the government conceded there was, the decision was plain error and violated the Ex Post Facto Clause. See Marcus, 538 F.3d at 101. The court vacated the conviction and remanded the case to the district court. See id. at 98.
The U.S. Supreme Court granted certiorari on December 7, 2009, to determine whether the Second Circuit erred in its interpretation of the plain-error review doctrine. Justice Sotomayor, then on the Second Circuit, wrote a opinion concurring in the circuit’s per curiam judgment, and will not participate in the case.
This case will clarify the meaning and future application of the plain error doctrine and Rule 52(b) of the Federal Rules of Criminal Procedure. The rule states: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Fed. R. Crim. P. 52(b). The Second Circuit held, and Marcus agrees, that as long as there was any possibility of a conviction based on pre-enactment conduct, the judgment was plain error. See Marcus, 538 F.3d at 101. The Government contends that there must have been at least a reasonable possibility for the decision to be erroneous. See Brief for Petitioner at 9.
A ruling for Marcus would potentially imprint the Second Circuit's precedent across all jurisdictions and extend the plain error doctrine. A ruling for Marcus raises efficiency and fairness concerns, which the Government points out and which the Supreme Court has also addressed. The Government implies that such a ruling could allow courts too much power by disturbing the “careful balance” that Rule 52(b) creates between making sure trial participants seek a fair trial the first time around and redressing “obvious” injustices. See Brief for Petitioner at 9-10.
The Supreme Court has also previously warned that because extending the authority of Rule 52(b) might upset this balance between judicial efficiency and redress of injustice, creating "an unjustified exception" to the rule would be inappropriate. See Puckett v. United States, 129 S.Ct. 1423, 1429 (2009). In Johnson v. United States, the majority held that reversing decisions for error can encourage further litigation and abuse of the judicial system. See Johnson v. United States, 520 U.S. 461, 470 (1997).
On the other hand, the framers noted special importance in preventing ex post facto violations. The Supreme Court has recognized that the Ex Post Facto Clause was written to give people a fair warning of the law. See, e.g., Weaver v. Graham, 450 U.S. 24, 28-29 (1981). Marcus and amici in other cases concerning the Ex Post Facto Clause contend that a ruling limiting its scope could reduce this importance by allowing convictions to stand where a possibility existed that the jury only considered the defendant's conduct prior to the enactment of the relevant statute. See Brief for Respondent at 21; Brief for Amicus Curiae National Association of Criminal Defense Lawyers at 5–7.
Yet if Marcus prevails, the Supreme Court would likely have to single out ex post facto claims for a special kind of relief under Rule 52(b), implying that outcome values are slightly different in ex post facto cases. The Court may be loath to make such a distinction, because previous Supreme Court precedent has indicated that it is improper to reverse convictions when the outcome would likely have been the same despite the error. See United States v. Cotton, 535 U.S. 625, 632-633 (2002); Johnson, 520 U.S. at 470. This precedent has also applied a "reasonable probability" of error standard before overturning a conviction based on a guilty plea. See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
On the other hand, much of the discussion surrounding the inclusion of the Ex Post Facto Clause in the Constitution indicates the importance of such a clause to the proper functioning of a republican government, and a ruling for Marcus could reinforce this importance. See, e.g., Weaver v. Graham, 450 U.S. 24. Conversely, a ruling for the United States could take away the justification for the clause: the Government in this case conceded the possibility — claiming it was a remote one — that the jury might have convicted Marcus based solely on his pre-enactment conduct, a harm that the Second Circuit sought to prevent. See Marcus, 538 F.3d at 101–02. Marcus contends that no matter how remote the possibility might have been, these possibilities are the very things the Ex Post Facto Clause was written to protect against. See Brief for Respondent at 12.
The Second Circuit’s judgment that makes the outcome value on justice itself shows cracks, however: then-Judge Sotomayor and Judge Wesley concurred in the judgment but invited the Supreme Court to review the decision, stating "[W]e believe that our precedent warrants reexamination." See Marcus, 538 F.3d at 106. This uncertainty demonstrates that while the Ex Post Facto Clause was drafted with fairness to the accused in mind, precedent and Rule 52(b) have mandated a certain probability of error before warranting reversal, a balance that is not easily struck. The ruling in this case will further define the role of ex post facto claims within the purview of Rule 52(b).
*Please note that amicus briefs were not available at the time of this bulletin’s publication.
Rule 52(b) of the Federal Rules of Criminal Procedure gives appellate courts the discretion to review “plain errors” that affect the “substantial rights” of the defendant, even if not properly raised during trial. Fed. R. Crim. P. 52(b). A Second Circuit panel vacated Marcus’ convictions for sex trafficking and forced labor, because it found there was a possibility that he was convicted for conduct that occurred before Congress enacted the statute criminalizing it.
Ex Post Facto Errors: What Standard Applies?
Petitioner the United States (“the Government”) argues that the Second Circuit panel applied the wrong standard of review in vacating Respondent Glenn Marcus’ convictions. See Brief for Petitioner, United States of America at 7. According to the Government, Rule 52(b)’s “substantial rights” language requires the defendant to establish prejudice before the appellate court is allowed to consider the error. Id. at 12. The Government points out that the panel, instead, followed Second Circuit precedent that mandates the court assume prejudice in ex post facto cases “whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.” Id. at 5 (emphasis added). The Government asserts that this standard conflicts with Supreme Court precedent that requires the defendant show prejudice by demonstrating a reasonable possibility the error affected the outcome of the proceeding. Id. at 9. In support of this assertion, the Government highlights the concurring opinion filed in the case below by now Supreme Court Justice Sotomayor, which recognized the difference between the Second Circuit standard for ex post facto errors, and the Supreme Court’s standard for plain error review. See id. at 5–6.
Furthermore, the Government argues that an error must not only affect “substantial rights,” it must also “seriously affect . . . the fairness, integrity or public reputation of [the] judicial proceedings.” See id. at 9 (citing United States v. Olano, 507 U.S. 725, 736 (1993)). According to the Government, the greater threat to judicial proceedings is when defendants go unpunished, despite overwhelming evidence against them, because of an error they never objected to at trial. See id. at 19.
Marcus argues that the Second Circuit standard is consistent with current Supreme Court precedent. See Brief for Respondent Glenn Marcus at 23. He argues that the Second Circuit standard merely exercises the discretion that Rule 52(b) grants. See id. at 18. Marcus contends that the Ex Post Facto Clause of the U.S. Constitution is a fundamental guarantor of liberty, because it protects the fairness of criminal judicial proceedings. See id. at 16. Consequently, Marcus argues that a conviction based on a violation of the Ex Post Facto Clause would gravely affect both the substantial rights of the defendant, as well as the fairness, integrity and public reputation of the judicial proceedings. See id. at 19. Marcus illustrates this point by arguing that the ex post facto error allowed evidence of two years of legal but prejudicial conduct to taint the fairness of his trial. See id. at 19. He contends that there is no way to know whether the jury convicted based on evidence of behavior that was not illegal, which critically undermines the integrity of the proceedings. See id.
Ex Post Facto Errors Versus Other Errors: A Different Standard?
The Government argues that the Second Circuit’s “any possibility” standard for determining prejudice diverges from the traditional “reasonable possibility” standard applied to all other “plain errors.” See Brief for Petitioner at 8. It contends that Supreme Court precedent does not support applying a different standard in ex post facto cases. See id. Rather, precedent dictates that all courts should apply a uniform standard for plain error reviews. See id.
On the other hand, Marcus argues that defendants need not show prejudice when there has been a “structural error,” such as an ex post facto error, in the trial. See Brief for Respondent at 28. He claims that ex post facto errors are structural because they affect the “framework within which the trial proceeds, rather than simply an error in the trial process itself.” See id. (citing Johnson v. United States, 520 U.S. 461, 468 (1997). Because of the importance the Constitution places on prohibiting ex post facto violations, Marcus contends that ex post facto errors are egregious enough to be considered structural errors. See id. at 28–29. Consequently, Marcus argues that in cases of structural error, the court should presume prejudice. See id. at 29.
Furthermore, according to Marcus, when it is impossible to know which evidence the jury relied on to convict, it is nearly impossible for a defendant to prove a “reasonable possibility” that the jury relied on post-enactment conduct to convict. See Brief for Respondent at 22. Absent the ability to read the jurors’ minds, Marcus argues that the Second Circuit’s objective “any possibility” standard is necessary, or ex post facto errors would never be recognized under the plain error doctrine. See id. Marcus points to other Circuits that support the “any possibility” standard for ex post facto errors, including the Third Circuit. See id. at 30–31. He also points out that the Seventh and Eleventh Circuits have applied the “any possibility” standard to cases where the error was ‘less structural’ than an ex post facto violation, such as where the defendant was wrongly denied the opportunity to speak before sentencing. See id. at 32.
The Government disagrees with Marcus that courts can assume prejudice from structural errors. See Brief for Petitioner at 11. According to the Government, the Supreme Court held that courts can assume prejudice for structural errors that were properly preserved at trial, but specifically withheld judgment on that issue relating to errors the defense failed to preserve. See id. at 11, n. 2. The Government also disputes Marcus’ contention that an ex post facto violation amounts to a structural error. See id. at 12. Rather it argues that structural errors are a ‘very limited’ category, which does not include “jury-instruction errors.” See id. at 11 and n. 2 (citing Neder v. United States, 527 U.S. 1, 8 (1999)). Instead, the Government characterizes the error in this case as merely instructional, because it was a mistake ‘within the trial itself,’ rather than affecting the overall framework of the trial. See id. at 16, n. 3.
Pre- and Post-Enactment Behavior: Does this affect prejudice?
The Government argues that there is no reasonable possibility of prejudice if the pre-enactment conduct was indistinguishable from the post enactment conduct, and thus, the court should not have found that there was a plain error. See id. at 21–22. The Government cites Justice Sotomayor’s concurring opinion below, which said that Marcus’ forced labor conduct post-enactment was indistinguishable from before enactment and would therefore be affirmed under a “reasonable possibility” standard, which the Second Circuit did not use. See id.
Besides disagreeing with the “reasonable possibility” standard the Government is using, Marcus points out that the concurring opinion does not support affirming the conviction for the sex trafficking charge. See id. at 11. Marcus points to the Government’s concession that there is a possibility that the jury convicted solely on the basis of pre-enactment evidence. See id. at 9. Though this is based on the “any possibility” standard, Marcus also argues that the post-enactment behavior was materially different with regard to the forced labor charge, and therefore, prejudice was reasonably possible even under the government’s heightened standard. See id. at 35. To support this assertion Marcus points to the fact that the alleged victim got a full time job several days after enactment of the statute, and therefore, the jury may have discounted her testimony about working eight to ten hours a day on the defendant’s website. See id. at 36.
Respondent Glenn Marcus was convicted on sex trafficking and forced labor charges, under the Trafficking Victims Protection Act of 2000. Because Marcus was charged for conduct occurring between 1998-2001, a Second Circuit panel vacated for an ex post facto violation. Although Marcus failed to preserve the objection at trial, the panel rules that it was a “plain error” under Rule 52(b) of the Federal Rules of Criminal Procedure’s. Petitioner United States argues that the Court of Appeals contradicted Supreme Court precedent by applying a lower standard of review in ex post facto errors, than in other plain errors. The United States argues that the Court of Appeals cannot consider an error under Rule 52(b) unless there is a “reasonable possibility” the defendant was convicted exclusively based on conduct prior to the illegality of the offense. Marcus counters that with serious errors, such as a violation of the Ex Post Facto Clause of the U.S. Constitution, prejudice can be assumed. The Supreme Court has previously held that Rule 52(b) balances judicial efficiency against the redress of injustice, so the decision in this case will likely further delineate where that balance lies.
Edited by: Lara Haddad