January 21, 2020 Cert Alert

Supreme Court Cases of Interest

Carol Garfiel Freeman

By the beginning of December, the Court had added five cases of criminal interest to its docket, infra. Justice Sotomayor concurred in the denial of a stay of execution and cert in Crutsinger v. Davis, No. 19-5755 (Sept. 4, 2019), but wrote separately on the question whether a change in decisional law alone might constitute an extraordinary circumstance that would justify reopening a case under Federal Rule of Civil Procedure 60(b)(6). Cert was denied in Sparks v. Davis, No. 18-9227 (Sept. 25, 2019), where a bailiff had worn a black tie embroidered with a white syringe on the day the jurors were to begin punishment deliberations in a capital murder trial. Justice Sotomayor agreed with the denial of cert because the judge, after a hearing, did not find sufficient evidence that the jury had seen the tie. She observed, however, that presiding judges, in the future, should remove similar offending items or the officer from the jury’s presence to ensure the dignity of the judicial proceedings. In a case challenging the proposed resumption of federal executions under a new Bureau of Prisons protocol, the Court denied the government’s application for a stay or vacatur of the district court’s preliminary order enjoining the executions, with the expectation that the court of appeals (which had declined to stay the preliminary injunction pending appeal) would “render its decision with appropriate dispatch.” Barr v. Roane, No. 19A615 (Dec. 6, 2019). Justice Alito, joined by Justices Gorsuch and Kavanaugh, wrote separately, suggesting that the court of appeals should be able to decide the case within 60 days.

The arguments for the first two months of the term were listed in the Fall 2019 issue; arguments through February are listed below.

This issue also discusses several cases decided during the last few months of the last term that could not be included in the Fall issue.

Further information about these cases and other cases on the Court’s docket, and transcripts of oral arguments, are available on the Court’s website.

A personal note: The 2018 Term is the 15th term for which I have written the “Cert Alert” column for Criminal Justice. I’ve learned more about the Supreme Court, its justices, and how its jurisprudence develops than I ever did as a practicing lawyer. When I took over the column, I had just retired as a staff attorney at the US district court in Washington, where I read pleadings filed by prisoners seeking federal assistance in their conditions of confinement or reporting complaints about treatment by correctional officers. Thus, I expanded the scope of the column beyond strictly criminal trials and appeals to include Civil Rights Act cases involving prisoners’ rights and cases against police and other state actors. The column has also dealt with immigration issues touching on criminal law. In the introductions to the column, I’ve noted dissents from denials of cert that reveal the interests of the justices and may suggest a future change in the law. In my summaries of decided cases, I have tried to be neutral, but on occasion my biases have entered into my writing, for example when I spend more time on a Justice Ginsburg dissent than on the majority opinion.

The column has been one of the most intellectually challenging projects of my legal career, but I think it is time to end. Anthony Franze has agreed to take it over and make it his own. I thank the board of editors for the opportunity to contribute to the magazine and to the criminal justice community, and I hope Anthony has as much satisfaction from writing “Cert Alert” as I have.


Note: Questions presented are quoted as drafted by the parties, or, in some instances, by the Court.

Crimes and Offenses

Kelly v. United States, No. 18-1059, cert. granted, June 28, 2019, decision below at 909 F.3d 550 (3d Cir. 2018), reh’g denied, Feb. 5, 2019.

Does a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision?

United States v. Sineneng-Smith, No. 19-67, cert. granted, Oct. 4, 2019, decision below at 910 F.3d 461 (9th Cir. 2018), reh’g denied, Feb. 12, 2019.

Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.

Military Justice

United States v. Briggs, No. 19-108, decision below at 78 M.J. 289, cert. granted Nov. 15, 2019, and consolidated for one hour oral argument with United States v. Collins, No. 19-184, decision below at 78 M.J. 415 (Court of Appeals for Armed Forces 2019).

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.

Prisoner’s Rights

Lomax v. Ortiz-Marquez, No. 18-8369, cert, granted limited to question posed by the Court, Oct. 18, 2019, decision below at 754 F. App’x. 756 (10th Cir. 2018).

Does a dismissal without prejudice for failure to state a claim count as a strike under 28 U.S.C. § 1915(g)?


Crimes and Offenses

Gundy v. United States, No. 17-6086 (June 20, 2019). The Sex Offender Registration and Notification Act (SORNA), enacted in 2006, requires that a sex offender register upon completing a prison sentence or within three days of imposition of a probationary sentence. Failure to register carries a possible sentence of 10 years’ imprisonment for someone who travels interstate. The act specifically was made applicable to sex offenders who had already completed their sentences but left it to the attorney general to “specify the applicability” of SORNA and to “prescribe rules for . . . registration” of such persons. (34 U.S.C. § 20913(b), (d).) Gundy fell into this category and was convicted of failing to register. The issue was whether SORNA unconstitutionally delegated a legislative function to the executive. SORNA was intended to establish a national system for registration of sex offenders, including those who had been convicted in the past. Because it would not be feasible to require those persons to register instantaneously, the attorney general was authorized to provide rules for their compliance with the registration requirement. Delegation of legislative authority to the executive is constitutional when Congress provides an “intelligible principle” to guide the executive’s decisions. Congress provided such an intelligible principle in SORNA. Opinion by Justice Kagan, in which Justices Ginsburg, Breyer, and Sotomayor joined. Justice Alito concurred in the judgment, although he disagrees with the Court’s long-standing approach to uphold legislative delegation of authority “pursuant to extraordinarily capacious standards.” In this case, he concluded, there was a “discernable standard” that was “adequate under [that] approach.” Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, dissented, discussing the constitutional principle of separation of powers, objecting to the policy that permits delegation to the executive of details that should be provided by the legislature, and objecting to reliance on a supposed “intelligible principle” to uphold such unconstitutional delegations. Because Congress could not agree on how to apply SORNA to past offenders, it unconstitutionally gave the attorney general unfettered authority to make rules for registration of such people, without adequate guidance. Justice Kavanaugh took no part in the consideration or decision of the case.

Rehaif v. United States, No. 17-9560 (June 21, 2019). Rehaif came to the US on a nonimmigrant student visa but flunked out of college. He lost that status by not enrolling elsewhere. After he went to a shooting range, he was charged with violating 18 U.S.C. § 922(g), which makes it unlawful for certain people, including aliens illegally in the country, to possess firearms, and 18 U.S.C. § 924(a)(2), which provides that anyone who “knowingly violates” § 922(g) is subject to imprisonment for up to 10 years. The Court held that the requirement of knowledge applies to both the possession of the firearm and the status of being an alien illegally in the country. Ordinarily, it is assumed that a defendant must possess “a culpable mental state” as to each element of the offense. In this case, the word “knowingly” in § 924(a)(2) modifies the verb “violates” and its object, which is § 922(g). Aside from the element of jurisdiction, “knowingly” applies to the person’s status (being an alien illegally in the country), the possession, and the firearm. This interpretation also accommodates the general rule that a person should know that his or her conduct violates the law, that is, “scienter.” The few statutes that do not require such knowledge are generally regulatory or public welfare statutes that carry minimal penalties. Legislative history, cited by the government, does not support its position that it need not prove the defendant knew he was illegally in the country. The case was remanded for further proceedings. Opinion by Justice Breyer, in which Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined. Justice Alito, joined by Justice Thomas, dissented.

Revocation of Conditional Release

Mont v. United States, No. 17-8995 (June 3, 2019). Mont was convicted of various federal drug and firearms offenses and sentenced to imprisonment for 84 months with a five-year period of supervised release. He was released on March 6, 2012, with the period of release to end on March 6, 2017. He was not successful on release and eventually was convicted of state court offenses for which he was sentenced to imprisonment for six years, with credit given for 10 months he had spent in state custody prior to sentencing on March 26. At a subsequent hearing, the federal court rejected Mont’s argument that the supervised release had ended on March 6, 2017. It revoked his supervised release and directed him to serve an additional 42 months, consecutive to his state sentence. Under 18 U.S.C. § 3624(e), the period of supervised release is tolled “during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” The Court held that the “imprisonment” referred to includes any period of pretrial detention for which the defendant is given credit on the subsequent sentence. Thus, although no warrant for violation of supervised release had been issued before the March 6, 2017, date, the trial court had jurisdiction to revoke the release and impose an additional period of imprisonment. Opinion by Justice Thomas, in which Chief Justice Roberts and Justices Ginsburg, Alito, and Kavanaugh joined. Justice Sotomayor filed a dissenting opinion, in which Justices Breyer, Kagan, and Gorsuch joined. The dissent argued that a person is not “imprisoned” “in connection with a conviction” before the conviction occurs, and that the supervised release statute does not permit tolling because of pretrial detention on the subsequent charge, for which a conviction may never occur. Although the court had been notified of Mont’s drug use and arrest, and he had requested a hearing on violation of supervised release, no warrant had issued until after the state sentencing, when the technical period of supervised release had ended. Issuance of such a warrant would have tolled the period, and the court would have retained jurisdiction to revoke supervised release.

Related Civil Cases

McDonough v. Smith, No. 18-485 (June 20, 2019). McDonough was an election commissioner with a responsibility to process absentee ballots. Smith was specially appointed to investigate a claim of forged ballots. McDonough maintained he had not known the ballots were forged and claimed that Smith manufactured evidence to inculpate him. A first trial ended in a mistrial; McDonough was acquitted at the retrial. The allegedly false evidence was submitted at both trials. Slightly less than three years after the acquittal, McDonough sued Smith and others for violation of 42 U.S.C. § 1983, claiming malicious prosecution and fabrication of evidence. The lower courts concluded that the malicious prosecution claim was barred by prosecutorial immunity and that the fabricated evidence claim was ripe when McDonough learned that the evidence was false and suffered a loss of liberty. The Supreme Court reversed, holding that the fabricated evidence claim was most similar to a claim for malicious prosecution and thus did not accrue until the criminal proceedings ended in McDonough’s favor. Thus, his civil suit was timely. This conclusion supports the policy of avoiding simultaneous proceedings in both civil and criminal actions. Opinion by Justice Sotomayor, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, and Kavanaugh joined. Justice Thomas, with whom Justices Kagan and Gorsuch joined, dissented. McDonough had failed to specify which constitutional right he claimed had been violated, and thus they could not conclude that a constitutional right had been violated at all. Nor had McDonough explained how the malicious prosecution claim that had been dismissed on the ground of immunity differs from the fabricated evidence claim that the majority analogizes to malicious prosecution. Cert should have been dismissed as improvidently granted.

Nieves v. Bartlett, No. 17-1174 (May 28, 2019). In a decision with multiple partial concurrences and dissents, the Court held that a retaliatory arrest claim based on the First Amendment is defeated by the presence of probable cause for the arrest. At a raucous sports festival in Alaska, Bartlett confronted Officer Nieves, who was talking to a group of attendees. Nieves left the area but returned when he saw Bartlett aggressively approach Officer Weight, who was questioning a teen. Weight pushed Bartlett, at which point Bartlett was arrested; he was released without charges later that night. Bartlett claimed that after the arrest Nieves said, “bet you wish you would have talked to me now.” To prevail on a retaliatory arrest claim based on the First Amendment, the plaintiff must show not only the retaliatory motive and his injury, but also that the motive was the cause of the injury. (Hartman v. Moore, 547 U.S. 250 (2006).) In a retaliatory prosecution case, which presents the defense of prosecutorial immunity, the plaintiff must plead and prove the absence of probable cause for the underlying charge. Retaliatory arrest cases based on the First Amendment are subject to the same requirement because of the complexity involved in speech issues. Fourth Amendment cases do not require investigation of the subjective intent of the officer (Ashcroft v. al-Kidd, 563 U.S. 731 (2011)), and a different rule in this case would make the constitutionality of arrests vary according to time and place and would deter officers from talking during an arrest. This approach is similar to the treatment under the common law of analogous claims for malicious prosecution and false imprisonment. Here, the officers had probable cause to arrest Bartlett, who had been drinking and was so close to Officer Weight that the latter pushed him. Opinion by Chief Justice Roberts, in which Justices Breyer, Alito, Kagan, and Kavanaugh joined, and in which Justice Thomas joined except for Part II-D, where the majority suggested that the probable cause requirement might not be applicable in cases in which officers generally do not arrest for minor misdemeanors (e.g., jaywalking) but did arrest someone who had been “vocally complaining about police conduct.” Justice Thomas wrote, concurring in part and in the judgment, explaining his objection to Part II-D. Justice Gorsuch concurred in part and dissented in part, suggesting that the probable cause requirement should not be engrafted onto all First Amendment retaliatory arrest claims. Justice Ginsburg concurred in the judgment in part and dissented in part, concerned about cases in which police arrest protestors for minor offenses, and objecting to the general rule announced by the majority. Justice Sotomayor dissented, agreeing that probable cause alone should defeat a First Amendment retaliatory arrest claim, but objecting to the majority’s statement that this rule would not apply if the plaintiff shows that the police did not arrest similar persons whose speech was different.


Monday, December 2, 2019

New York State Rifle & Pistol Ass’n v. City of New York, No. 18-280, Cert Alert, 34:1 Crim. Just. at 61 (Spring 2019) (constitutionality of New York City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits).

Wednesday, December 4, 2019

Banister v. Davis, No. 18-6943, Cert Alert, 34:3 Crim. Just. at 58 (Fall 2019) (whether and under what circumstances a timely Rule 59(e) motion should be characterized as a second or successive habeas petition).

Tuesday, December 10, 2019

Holguin-Hernandez v. United States, No. 18-7739, Cert Alert, 34:3 Crim. Just. at 58 (Fall 2019) (Is a formal objection after pronouncement of sentence necessary to invoke appellate review of the reasonableness of the length of the sentence?).

Wednesday, December 11, 2019

McKinney v. Arizona, No. 18-1109, Cert Alert, 34:3 Crim. Just. at 57 (Fall 2019) (Was the Arizona Supreme Court required to apply current law when weighing aggravating and mitigating evidence to determine whether a death sentence is warranted; and does the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), require resentencing?).

Tuesday, January 14, 2020

Kelly v. United States, No. 18-1059, cert. granted, June 28, 2019 (supra at 47.)

Tuesday, January 21, 2020

Shular v. United States, No. 18-6662, Cert Alert, 34:3 Crim. Just. at 58 (Fall 2019)(Determination of a “serious drug offense” under the Armed Career Criminal Act.)

Tuesday, February 25, 2020

United States v. Sineneng-Smith, No. 19-67, cert. granted, Oct. 4, 2019 (supra at 48.)

Wednesday, February 26, 2020

Lomax v. Ortiz-Marquez, No. 28-8369, cert. granted, Oct. 18, 2019 (supra at 48.)


Carol Garfiel Freeman

Carol Garfiel Freeman has been a staff lawyer with the US District Court for the District of Columbia, a deputy district public defender in Maryland, and an assistant US attorney for the District of Columbia.