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July 15, 2023 Cert Alert

Supreme Court Cases of Interest

Joel S. Johnson


The term’s early criminal-docket decisions have favored defendants. In Cruz v. Arizona, the Court ruled 5-4 for a death-row inmate in a procedural dispute over when a state-court ruling constituted an adequate and independent state-law ground that precluded federal review of a death sentence. Writing for the majority, Justice Sotomayor reasoned that the Arizona Supreme Court’s “novel and unforeseeable interpretation” of a state-court procedural rule did not “foreclose review of the federal claim.” In dissent, Justice Barrett chastised the majority for failing to give the state court “utmost deference.”

In another 5-4 decision, in Bittner v. United States, the Court narrowly construed the maximum statutory penalty for a nonwillful violation of a tax reporting requirement concerning foreign accounts. The bulk of Justice Gorsuch’s opinion was joined by Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson. Yet only Justice Jackson joined the section of the opinion relying on the rule of lenity. That section was another installment in Justice Gorsuch’s push for a more robust conception of the rule of lenity, a view he explicated last term in a concurring opinion in Wooden v. United States. Justice Jackson now appears to have joined him in that effort.

The trend of narrowly construing penal statutes continued in a pair of white-collar cases. In Ciminelli v. United States, the Court unanimously held that the federal wire fraud statutes do not encompass a “right to control” theory of fraud, relying on vagueness and federalism concerns. And in Percoco v. United States, the Court unanimously reversed the conviction of the manager of former New York Governor Andrew Cuomo’s re-election campaign for federal honest-services fraud. Writing for the majority, Justice Alito reasoned that a broad set of jury instructions was unduly vague because it did not adequately specify when a private citizen’s conduct amounted to honest-services fraud. Justice Gorsuch’s opinion concurring in the judgment, which was joined by Justice Thomas, argued that the issue went deeper than the jury instructions, suggesting that the language of the federal honest-services statute itself is unconstitutionally vague and cannot be “rescue[d]” through judicial construction.

Finally, in Dubin v. United States, the Court narrowly construed indeterminate language in the aggravated identity theft statute to apply only to a “core” category of identity theft. Writing for eight justices, Justice Sotomayor justified the narrow construction on the basis of the statute’s text, title, and context. She also flagged that the narrow construction avoided vagueness-like concerns posed by “the staggering breadth” of the government’s reading, noting that the Court traditionally “avoid[s] reading incongruous breadth into opaque language in criminal statutes” out of “concern that a fair warning should be given to the world.” As in Percoco, Justice Gorsuch suggested in an opinion concurring in the judgment that the statute was void for vagueness. For him, it seems, once a court characterizes statutory language as vague, its only option is to invalidate the law under the void-for-vagueness doctrine; he seems to view the act of narrowly construing such language as an act of judicial overreach.

At the time of this writing, several important cases from the Court’s criminal docket this term remain undecided. Opinions in those cases are expected before July. Looking ahead, three new case have been added to the criminal docket for next term, with more likely to be added soon. One thing to watch in the coming months is whether the Court will grant certiorari in a Fourth Amendment case, something it has not done since late 2020.

Habeas Corpus

Jones v. Hendrix, No. 21-857

Argument: November 1, 2022

Question Presented:

Whether federal inmates who did not—because established circuit precedent stood firmly against them—challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

Federal Criminal Law—Inducing Unlawful Immigration

United States v. Hansen, No. 22-179

Argument: March 27, 2023

Question Presented:

Whether the federal criminal prohibition against encouraging or inducing unlawful 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 on First Amendment overbreadth grounds.


Smith v. United States, No. 21-1576

Argument: March 28, 2023

Question Presented:

Whether the proper remedy for the government’s failure to prove venue is an acquittal or a new trial for the same offense in a different venue.

Sentencing—Consecutive Sentencing

Lora v. United States, No. 22-49

Argument: March 28, 2023

Question Presented:

Whether the consecutive sentencing provision in 18 U.S.C. § 924(c)(1)(D)(ii) applies when sentencing a defendant for causing death through the use of a firearm within the meaning of Section 924(j).

Sixth Amendment—Confrontation Clause

United States v. Samia, No. 22-196

Argument: March 29, 2023

Question Presented:

Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the confrontation clause of the Sixth Amendment.

First Amendment—True Threats

Counterman v. Colorado, No. 22-138

Argument: April 19, 2023

Question presented:

Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.


Sentencing—Safety Valve for Mandatory Minimums

Pulsifer v. United States, No. 22-340

Question presented:

Whether, in order for a defendant to satisfy the prerequisite for “safety-valve” sentencing relief in 18 U.S.C. § 3553(f)(1), a court must find that the defendant does not have more than 4 criminal history points (excluding any criminal history points resulting from a 1-point offense); does not have a prior 3-point offense; and does not have a prior 2-point violent offense.

Sentencing—Armed Career Criminal Act

Brown v. United States, No. 22-6389

Question presented:

Whether the classification of a prior state conviction as a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), depends on the federal controlled-substance schedules in effect at the time of the defendant’s federal sentencing.

Sentencing—Armed Career Criminal Act

Jackson v. United States, No. 22-6640

Question presented:

Whether the classification of a prior state conviction as a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), depends on the federal controlled-substance schedules in effect at the time of the defendant’s prior state crime, the time of the federal offense for which he is being sentenced, or the time of his federal sentencing.

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Joel S. Johnson

Pepperdine Caruso School of Law

Joel S. Johnson is an Associate Professor of Law at Pepperdine Caruso School of Law in Malibu, CA. He was previously an attorney in the Criminal Appellate Section of the Justice Department, where he litigated a number of Supreme Court cases involving criminal law issues. Professor Johnson filed an amicus brief in support of the petitioner in Dubin v. United States. He also represented the petitioner in Samia v. United States at an earlier stage of litigation.