United States v. Marcus
From ScotusWiki
Argued February 24, 2010.
Authorship: Jesenka Mrdjenovic of Harvard Law School and Priyanka Rajagopalan of Stanford Law School
Docket: 08-1341
Issue: Whether the Second Circuit departed from the 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 alleged ex post facto violation whether there is any possibility that the defendant could have been convicted based exclusively on conduct that took place before the enactment of the statutes in question.
Contents |
Briefs and Documents
Decision
REVERSED AND REMANDED in a 7-1 decision with an opinion written by Justice Breyer. Justice Stevens dissented, and Justice Sotomayor took no part in the ruling.
Oral Argument
Transcript (February 23, 2010)]
Merits Briefs
- Brief for Petitioner United States of America
- Brief for Respondent Glenn Marcus
- Reply Brief for Petitioner United States of America
Certiorari-Stage Documents
Opinion Recap
Priyanka Rajagopalan originally wrote the following for SCOTUSblog:
On May 24, the Court issued its decision in United States v. Marcus (No. 08–1341). At issue in the case was whether the Second Circuit’s plain-error standard of review for ex post facto violations was consistent with the Court’s interpretation of Federal Rule of Criminal Procedure 52(b). In an opinion by Justice Breyer that was joined by six other Justices, the Court held that it was not, reversing and remanding the case to the court of appeals. Justice Stevens wrote a dissenting opinion, while Justice Sotomayor – who was a member of the Second Circuit panel that heard the case below – took no part in the decision.
Respondent Glenn Marcus was indicted and convicted of forced labor and sex trafficking in 2001 under the Trafficking Victims Protection Act of 2000 (TVPA), which came into effect in October 2000. Both of Marcus’s convictions arose from (and the prosecution presented evidence regarding) conduct that began in 1998 and ended in 2001. On appeal, Marcus argued for the first time that the jury should have been instructed that his conduct before the TVPA’s enactment was not unlawful; the court’s failure to do so, he contended, violated the Ex Post Facto Clause, because there was a possibility that the jury had convicted him based solely on that pre-enactment conduct. The Second Circuit agreed and vacated Marcus’s conviction. Employing its standard “plain error” analysis under Federal Rule of Criminal Procedure 52(b), it concluded that the Ex Post Facto Clause had indeed been violated because there was a possibility, however small, that Marcus had been convicted based only on conduct which predated the enactment of the TVPA.
The government filed a petition for certiorari, which the Court granted. In its opinion, the Court held that the Second Circuit’s decision, and its plain-error analysis, conflicted with the Court’s prior decisions interpreting Rule 52(b), such as Johnson v. United States (1997) and United States v. Olano (1993). Those cases, the Court reiterated, make clear that an appellate court may correct an error that was not raised at trial only when four conditions are met: (1) there must be an error; (2) the error must be clear or obvious, rather than subject to reasonable dispute, (3) the error must affect the appellant’s substantial rights, typically by affecting the outcome at trial, and (4) it must seriously affect the fairness, integrity or public reputation of judicial proceedings.
The Court acknowledged that the trial court erred when it failed to instruct the jury as to the lawfulness of Marcus’s pre-TVPA conduct, and it recognized the risk of a conviction based solely on pre-enactment behavior. It nevertheless held, however, that the Second Circuit’s plain-error standard was inconsistent with both the third and fourth criteria in the Court’s four-part analysis. First, the third prong of the test, ordinarily requiring a showing of prejudice – or reasonable probability that the error had influenced the outcome of the trial – could not be reconciled with the Second Circuit’s willingness to set aside a conviction as long as the defendant could show any probability that the jury could have convicted the defendant based exclusively on conduct predating the statute’s enactment. Noting that errors creating the risk of a conviction based solely on noncriminal conduct could vary greatly in scope and severity, the Court stressed that the Second Circuit’s very lenient standard for vacating a conviction on the basis of such an error would be patently unreasonable and inadequate to properly address the vastly different varieties of this error. In so holding, the Court thus rejected Marcus’s argument that any such error based on a violation of the Ex Post Facto clause should warrant reversal of the conviction without having to meet the threshold standard of showing prejudice.
Moreover, the Court explained, the Second Circuit’s plain-error review was at odds with the fourth prong of the Court’s test. Focusing on the Second Circuit’s willingness to vacate a conviction based on “any possibility, no matter how unlikely,” that the jury’s verdict was based solely on pre-enactment conduct, the Court concluded that this standard would lead to reversals even when the error did not significantly undermine the “fairness, integrity or public reputation” of the judicial process. The Court thus remanded the case to the Second Circuit for it to properly apply the four-part Johnson and Olano test, with particular emphasis on ensuring that the third and fourth criteria of the test were satisfied.
In his dissent, Justice Stevens disputed the majority’s characterization of Rule 52(b)’s requirements for appellate review of convictions. Specifically, he objected to the majority’s skepticism about the effect of the trial error on Marcus’s substantial rights. In his view, the trial error was a significant one that created two risks: first, that the jury had convicted Marcus purely on the basis of his pre-TVPA conduct, and second, that Marcus’s convictions stemmed from the jury’s incorrect belief that his pre-TVPA conduct was unlawful. Thus, although he acknowledged that the Second Circuit had taken a novel approach to reviewing Marcus’s convictions under Rule 52(b), Justice Stevens maintained that the appellate court’s decision nonetheless satisfied both the third and fourth prongs of the Court’s established plain-error test, and that its judgment should be affirmed.
Oral Argument Recap
Jesenka Mrdjenovic originally wrote the following for SCOTUSblog:
During oral argument in United States v. Marcus, the Court focused on whether there was anything sufficiently special about a violation of the Ex Post Facto clause that would justify deviation from the ordinary Olano standard for Rule 52(b).
On behalf of the federal government, Assistant to the Solicitor General Eric Miller opened by arguing that the Second Circuit had applied the incorrect standard under Rule 52(b) when it held that “reversal of [Marcus’s] conviction was appropriate on plain error review if there was any possibility, no matter how unlikely, that the jury’s verdict was based entirely on conduct predating the enactment of the statute.” Instead, Mr. Miller argued, Rule 52(b) imposes a much higher burden, requiring a “reasonable possibility that the error actually affected the outcome of the case.”
Justices Ginsburg began the questioning by asking whether there are any errors “that are so basic that they would call for an automatic new trial.” Mr. Miller responded that although the Court has previously reserved the question whether structural errors automatically satisfy Olano’s third prong – which requires a showing of an effect on “substantial rights” – the error in this case was not such an error. And in any event, he continued, even structural errors would need to satisfy the fourth Olano prong – that “there was an effect on the fairness, integrity and public reputation of judicial proceedings.” Mr. Miller agreed that some constitutional violations are considered more serious than others under Rule 52(b), however, he maintained that “the test that would be applied would be the same,” even if “the result of that test might be different.” All errors are subject to Rule 52(b) analysis under Johnson, even those “errors implicating fundamental constitutional rights like the Sixth Amendment.” Mr. Miller reserved the remaining sixteen minutes for rebuttal.
On behalf of the respondent, Herald Price Fahringer opened by arguing that some errors, like the one in this case, “are so basic that they require a reversal automatically.” Justice Kennedy pointed out that because the evidence at issue was necessary background information, “most trial judges would have admitted [it] with the proper instruction to the jury,” but Mr. Fahringer countered that there was a “good likelihood that [the evidence] would have been excluded” under Federal Rule of Evidence 403 because the prejudice resulting from the evidence would have outweighed its probative value. Justice Kennedy couldn’t resist a joke, as he retorted,“Well, you can be pleased that I was not the trial judge.”
Most of the Justices’ questions focused on why this particular error justified the Second Circuit’s deviation from the normal plain error review. Mr. Fahringer argued that “the possibility standard only applies to [the] ex post facto statute, the cases, and pre-enactment conduct.” Mr. Fahringer explained that the Second Circuit’s test was justified by the “magnitude of the error here” and the need for a “bright-line rule.”
Responding to a question from Justice Alito about whether the test would be different if the jury had considered evidence of conduct that occurred just one day before the statute took effect, Mr. Fahringer argued that “that no person in this country under our Constitution should be tried for one day on conduct that did not violate a law.” Justice Breyer pointed out there were many errors under which “no person should be convicted” including convictions based on coerced confessions, evidence gained by the use of torture and evidence that was unlawfully seized by the police and asked how this error was “special.” Mr. Fahringer responded that this case was different because “In all of those cases, there was a law, at least giving the court jurisdiction, that was violated. There is a very serious question here whether there was jurisdiction when it came in.”
Justice Scalia pointed out that the error in question was really a due process violation rather than a violation of the Ex Post Facto Clause, which prohibits legislatures from enacting a law that “[makes an] action punishable when it occurred before the statute was enacted.” After a brief back and forth, Mr. Fahringer agreed that “[i]t’s through the Due Process Clause that the Ex Post Facto Clause is made — made effective in trial.”
On rebuttal, Mr. Miller made two points. First, the “the error in this case was the failure to give a limiting instruction relating to the use of pre-enactment evidence, and that’s the same sort of instructional or evidentiary error that can be considered in a case-specific analysis under prong four, and should have been considered through that analysis.” Second, Mr. Miller rebutted the suggestion that the court lacked jurisdiction in this case as “rest[ing] on an understanding of jurisdiction that this Court rejected in Cotton.”
Pre-Argument Articles
Argument Preview
Jesenka Mrdjenovic originally wrote the following for SCOTUSblog:
The Constitution provides important safeguards against government regulation of private conduct in both the civil and criminal contexts – including the Ex Post Facto Clause, which protects against the retroactive application of laws. However, a defendant must assert these rights in a timely manner at trial or risk forfeiting them. Under Federal Rule of Criminal Procedure 52(b), courts have limited discretion to consider plain errors that affect substantial rights but were not timely raised.
In No. 08-1341, United States v. Marcus, the Court will consider the circumstances in which the exercise of this limited discretion is appropriate. Specifically, the case presents the question “[w]hether the court of appeals departed from the 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 on federal charges of sex trafficking and forced labor in the Eastern District of New York. Both of the statutes at issue in Marcus’s conviction were enacted as part of the Trafficking Victims Protection Act of 2000 (TVPA). The convictions stem from a sadomasochistic relationship that began in 1998, two years prior to the TVPA’s enactment, and continued until 2001, after which Marcus was indicted.
At trial, prosecutors presented evidence regarding Marcus’s conduct during the entirety of the relationship – that is, both before and after the effective date of the TVPA. Marcus did not object to the introduction of evidence regarding his conduct prior to the enactment of the TVPA, nor did he request a jury instruction to limit the jury’s consideration to post-enactment conduct.
On appeal, Marcus argued for the first time that the TVPA had been applied retroactively to his conduct in violation of the Ex Post Facto Clause. Reviewing this argument for plain error under Rule 52(b), the Second Circuit agreed and vacated the convictions. In its view, the Ex Post Facto Clause is violated “whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.”
Then-Judge Sotomayor and Judge Wesley concurred. They agreed that the decision was “compelled by the current law of [the] circuit,” but they expressed concern that the circuit precedent “does not fully align” with Supreme Court guidance on the issue, as outlined in cases such as Johnson v. United States (1997) and United States v. Olano (1993). That case law instructs that an appellate court may correct errors that were not raised at trial only if there is (1) an error (2) that is plain and (3) affects substantial rights; and (4) the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
The United States filed a petition for certiorari, which the Court granted on October 13, 2009. In its brief on the merits, the United States argues that the Second Circuit’s standard deviates from Olano: the correct standard of review requires a “reasonable possibility,” rather than merely “any possibility,” that the jury could have convicted based exclusively on pre-enactment conduct. First, the government argues, Rule 52(b)’s reference to “substantial rights” requires “in most cases” that the error be “prejudicial” – that is, it “must have affected the outcome of the district court proceedings.” Moreover, the error in question is subject to the “same standard of plain-error review” that is used for all forfeited claims; nothing “justifies a different standard of plain-error review for forfeited ex post facto claims.”
Second, the United States argues that the fourth Olano prong for “instructional errors,” as interpreted in Johnson (1997), and United States v. Cotton (2002), also compels this result. According to the United States, a conviction “based on a forfeited error” should not be reversed when there is no reasonable possibility that the error affected the judgment – a standard that “ is consistent with the recognition in Johnson and Cotton that when ‘overwhelming’ and ‘essentially uncontroverted’ evidence was introduced on an element that the jury was not asked to find, the verdict is so unlikely to have been different that the ‘error does not seriously affect the fairness and integrity, or public reputation of the judicial proceedings.’” This standard would have to be met even for the “very limited class of cases” where the error is “structural.”
In his brief on the merits, Marcus counters that the Second Circuit applied the proper standard and properly exercised its discretion under Olano. First, he contends, the error in question meets the fourth prong of Olano: the trial was “overcome by testimony and exhibits relating to conduct that occurred before the law was enacted,” rendering the error “prejudicial” and “certainly implicat[ing] the fairness of the judicial proceedings.” Moreover, Ex Post Facto violations fall within a “special category of flagrant errors” for which “prejudice may be presumed,” and they “should be corrected regardless of their effect on the outcome.” He characterizes the government’s standard – requiring a “reasonable possibility” that the jury relied solely on pre-enactment conduct – as “virtually insurmountable for defendants because there is no mechanism to discover what evidence the jurors relied upon in reaching their verdict.”
Marcus distinguishes Johnson and Cotton, explaining that in both cases Olano’s fourth prong was not satisfied because there was “no possibility that the outcome of the trial would be affected by the error.” In this case, by contrast, the Second Circuit found that there was a possibility that the jury could have convicted Marcus solely on the basis of pre-enactment conduct. Quoting Johnson, Marcus further contends that the violation of the Ex Post Facto Clause is a structural – rather than instructional – error, as it “affects the ‘framework within which the trial proceeds, rather than simply an error in the trial process itself.’”
Finally, Marcus argues that because courts of appeals “have always been allowed broad discretion in how they supervise litigation within their own circuit,” there is no need to “impos[e] national restrictions on the exercise of their discretion.”
Links and Further Information
Media Links
- CNN: High Court Restores Conviction of 'S&M Svengali' (May 24, 2010
- New York Law Journal: Supreme Court Upsets 2nd Circuit 'Plain Error' Ruling (May 25, 2010)
