Supreme Court Cases of Interest

Pending Supreme Court Criminal Law & Procedure Cases to Date

Since our last update, the Supreme Court has added five new cases to its criminal docket. The headliner in that set of cases to be argued this spring is Counterman v. Colorado, which provides an opportunity for the Court to resolve a longstanding question about the level of mens rea needed to establish that a statement is a “true threat” unprotected by the First Amendment. Notably, no case in the new group presents a Fourth Amendment question, continuing a two-term absence of any such case on the docket.

As with other recent terms, a number of the Court’s cases this term raise questions of interpretation about the scope of various federal penal statutes. In the fall, the Court held argument in Percoco v. United States and Ciminelli v. United States, both of which concern the scope of the federal fraud statutes. And the Court will soon hear argument in Dubin v. United States, which concerns the scope of the aggravated identity theft statute; Lora v. United States, which raises a tricky question about the reach of the consecutive-sentencing provision in 18 U.S.C. § 924(c)(1)(D)(ii); and United States v. Hansen, which presents a First Amendment overbreadth challenge to the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain.

Those cases provide fertile ground for the justices of the majority-textualist Court to further articulate their nuanced views of statutory interpretation in the context of penal statutes. Over the last few years, the Court has repeatedly adopted narrow readings of broad and indeterminate penal statutes. But it has typically done so in an ad hoc way, declining to articulate broadly applicable standards of construction to guide lower courts in other contexts. This term’s set of statutory-interpretation cases gives the Court ample opportunity to provide that type of guidance, presenting salient issues about what materials may be used to determine the ordinary meaning of statutory text, the significance of textual indeterminacy, and the role of normative canons of construction, such as the rule of lenity and constitutional avoidance.

Section 1983—Statute of Limitations

Reed v. Goertz, No. 21-442

Argument: October 11, 2022

Question Presented:

Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals, or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal.

Capital Punishment—Jury Instructions on Parole Ineligibility

Cruz v. Arizona, No. 21-846

Argument: November 1, 2022

Question Presented:

Whether the Supreme Court’s decision in Lynch v. Arizona, 578 U.S. 613 (2016) (per curiam), which reversed the Arizona Supreme Court’s decision denying capital defendants the right to inform the jury of their ineligibility for parole where future dangerousness is at issue, applied a settled rule of federal law that must be applied to cases pending on collateral review in Arizona.

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—Fraud

Percoco v. United States, No. 21-1158

Argument: November 28, 2022

Question Presented:

Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decision-making, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.

Federal Criminal Law—Fraud

Ciminelli v. United States, No. 21-1170

Argument: November 28, 2022

Question Presented:

Whether the US Court of Appeals for the 2nd Circuit’s “right to control” theory of fraud—which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud—states a valid basis for liability under the federal wire fraud statute.

Jurisdiction—Foreign Sovereign Immunity

Turkiye Halk Bankasi A.S. v. United States, No. 21-1450

Argument: January 17, 2023

Question Presented:

Whether the Foreign Sovereign Immunities Act of 1976 confers blanket immunity on foreign-state-owned enterprises from all criminal proceedings in the United States.

Federal Criminal Law—Identity Theft

Dubin v. United States, No. 22-10

Argument: February 27, 2023

Question Presented:

Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.

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.

Venue—Remedy

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

Argumet: 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.