October 26, 2020 Cert Alert

Supreme Court Cases of Interest

Anthony Franze

It will be hard to top the Supreme Court’s last term for drama. One First Street was shuttered by COVID-19. Oral arguments were delayed, rescheduled, or heard by telephone. Justices were hospitalized. Blockbuster decisions were released. And, of course, the Court issued several landmark decisions on criminal law. From holding that the president is not immune from a grand jury subpoena, to finding much of Oklahoma is Native American territory stripping state courts of jurisdiction over many criminal cases, to reversing the “Bridgegate” prosecutions, SCOTUS didn’t let a pandemic get in the way of its criminal law jurisprudence.

While the 2020–21 Term may not yet have the flash, already there are some important criminal cases on the docket, which we list below. Also, renown appellate litigator Elizabeth Prelogar gives her take on three cases that reflect some recurring themes in the high court’s criminal law decisions. A partner at Cooley, Prelogar knows the terrain. She’s served as a Supreme Court law clerk, an assistant solicitor general, and member of the Mueller special counsel investigation.

More on the Fourth

Last term, the Court issued several Fourth Amendment decisions, including Kansas v. Glover, which further refined the Fourth Amendment’s parameters in vehicle stops. This term, in Torres v. Madrid, SCOTUS will further hone the boundaries of what constitutes a “seizure”—in particular, whether a Fourth Amendment seizure occurs when police attempt to restrain an individual using physical force but are unsuccessful. “Although the case involves the intricacies of a common law constructive arrest rule dating from the 1700s,” Elizabeth Prelogar said, “both parties also draw on common sense and intuition in making their arguments. The petitioner, who was shot twice by police as she fled in a car, argues that it would be anomalous for the Fourth Amendment to simply have no application in that circumstance.” At the same time, Prelogar, who filed an amicus brief on behalf of state and local government organizations in the case, said that “the countervailing commonsense argument is that a ‘seizure’ necessarily encompasses restraint—and so cannot describe a person who wholly evades capture.”

More on the Kids

Over the last decade, the Supreme Court has considered a series of cases involving constitutional challenges to sentences of life imprisonment for juvenile offenders. This term, in Jones v. Mississippi, the question is whether the Eighth Amendment requires a sentencing court to find that a juvenile is permanently incorrigible before imposing life without parole. Prelogar said, “it’s notable that the Court has repeatedly adopted a distinct set of rules in this context in recognition of the unique considerations presented by the sentencing of children. Jones offers the Court an opportunity to clarify how sentencing courts should implement the Court’s ruling in Montgomery that a sentence of life without parole should be imposed on the rarest of juvenile offenders whose crimes reflect permanent incorrigibility.”

More on Promises of Prosecutorial Discretion

Prelogar said another case to watch is Van Buren v. United States, which involves the seemingly dull question of “whether a person who is authorized to access information on a computer for certain purposes violates section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.” But the case isn’t so humdrum and could have broad implications. In Van Buren, a police sergeant accepted money to run license plate information through a database that he was otherwise permitted to access for legitimate law-enforcement purposes. The case tees up the question whether a CFAA violation can occur when an individual accesses information for an improper purpose. “Several courts of appeals have expressed concern that a broad interpretation of the CFAA would threaten widespread liability for commonplace conduct—for example, an employee who uses her work computer to conduct personal business in violation of her employer’s computer-use policies,” Prelogar said. The government’s response, she said, is that it doesn’t prosecute individuals for commonplace conduct like that. “But the Court has frequently declined to rely solely on prosecutorial discretion to cabin the reach of a criminal statute that would otherwise produce untenable results. The outcome of this case could well turn on the hypothetical—rather than actual—applications of the statute under each side’s interpretation.”


Military Justice—Statute of Limitations

United States v. Briggs, No. 19-108, and United States v. Collins, No. 19-184
Question Presented:

Whether the Court of Appeals for the Armed Forces erred in concluding—contrary to its own longstanding precedent—that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

Immigration—Removal Proceedings

Pereida v. Barr, No. 19-438
Question Presented:

Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

Fourth Amendment—Search and Seizure

Torres v. Madrid, No. 19-292
Question Presented:

Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the Eighth, Ninth, and Eleventh Circuits and the New Mexico Supreme Court hold, or whether the physical force must be successful in detaining a suspect to constitute a “seizure,” as the Tenth Circuit and the D.C. Court of Appeals hold.

Crimes and Offenses—Armed Career Criminal Act

Borden v. United States, No. 19-5410
Question Presented:

Whether the “use of force” clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), encompasses crimes with a mens rea of mere recklessness.

Eighth Amendment and Juvenile Sentencing

Jones v. Mississippi, No. 18-1259
Question Presented:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

Computer Fraud and Abuse Act

Van Buren v. United States, No. 19-783
Question Presented:

Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

Retroactive Effect of Unanimous Jury Ruling

Edwards v. Vannoy, No. 19-5807
Question Presented:

Whether the Supreme Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020) applies retroactively to cases on federal collateral review.

Disclosure of Grand Jury Materials in Mueller Report

Department of Justice v. House Committee on the Judiciary, No. 19-1328
Question Presented:

Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.

Keep in mind, the term is young. In the Spring edition, there’s bound to be new and important criminal law cases on the docket. Until then, stay well.


Anthony Franze


Anthony Franze is a lawyer in the Appellate & Supreme Court practice at Arnold & Porter, a regular commentator on the high court and appellate law, and a critically acclaimed novelist.