 The Federal Judicial Center presents Supreme Court 1998-99, The Term and Review, an FJTN program for judges, staff attorneys, and law clerks. Now from the television studios of the Federal Judicial Center in Washington, D.C., your moderator, Russell Wheeler. Welcome back to the Federal Judicial Center's review of the 1998-99 Supreme Court term. In this second part of our program, we'll discuss this term's criminal law and procedure cases, 15 decisions, plus the other part of the media ride-along case we discussed earlier. This part of our review will last about 40 minutes. We'll begin with a discussion of five cases in which the court resolved issues involving the elements of a criminal statute. With us to discuss these cases are Evan Sen Lee of the University of California, Hastings School of the Law, and Jordan Stiker of the University of Texas School of Law. Jordan, I want to take up the case of Jones v. U.S., Nathaniel Jones v. U.S., as you recall last term in Elmendera's Tories, the court dealt with a statute that included a listing of prior convictions, and so that was a sentencing enhancement, not an element of the offense. Here we had the federal carjacking statute with its three subdivisions, and the court came out somewhat differently. The court had the statutory question in this case was whether certain provisions of the federal carjacking statute had to be treated as separate elements, as separate offenses, or whether they could be treated as mere sentencing enhancements. The court looked at these provisions, the serious injury and death provisions, which increased the maximum punishment for the offense and said they had to be treated as separate offenses. What did they say about the precedent from last year, Elmendera's Tories? The court distinguished Elmendera's Tories by saying that there's something very distinctive about recidivist provisions. They've historically been used as sentencing enhancements, and that they could therefore be used as sentencing enhancements, but for everything else, it seems anything that increases the maximum punishment for an offense for fifth and sixth amendment reasons might have to be treated as a separate offense. So the court acknowledged there could be a different view of this thing? The statute itself could have been read probably in either way, and the court said there wasn't an unambiguous answer onto the statutory question, but they clearly wanted to avoid the constitutional questions, so they construed it to avoid them. Although they did, in the Part 3 of Justice Sutter's opinion, inevitably get into that. Let's hold that discussion until we get into fifth and sixth amendment cases a little later in the program. Evan, another case came out of the same statute, a different provision, one added later this intent element causing and carjacking death or serious bodily injury. How did that come out? Right. Well, that is exactly what the carjacking statute requires is intent to commit, intent to kill or to cause serious bodily injury. And the question there is whether that intent has to be unconditional or whether it can be conditioned on a contingency like, well, it's necessary to use the violence in order to get control of the vehicle. What happened in this case was that the accomplice testified that the plan was not to use the guns unless the driver gave them a hard time. And the district court instructed the jury that that intent, conditional as it was, satisfied the specific intent requirement of this statute. And the Supreme Court agreed with that. So the bottom line here is that the specific intent requirement of this statute is met even if the intent is conditioned on something like, we need to use it in order to get the car. I got you. Thank you very much, Evan. Jordan Neater versus the United States. This grew out of a white collar prosecution of a tax fraud. And the trial judge refused, did not include in his instruction materiality as an element of a bank fraud, wire fraud, or mail fraud. The court had to sort all that out. How did it do it? Well, the court basically, this would seem like an easy question for the court. They unanimously said that there is a materiality requirement in the bank fraud, mail fraud, and wire fraud statutes. And the court did this by saying that the term defraud had an accumulated meaning that Congress presumed to be aware of. And then that accumulated meaning of defraud included a requirement of materiality. And in this case, they had no difficulty saying that the omission of millions of dollars on a tax return was material. How significant is it that the court reached this conclusion through application of harmless error analysis? Yeah, I think this was probably the most significant aspect of the case. One of the questions was, is an omission on an element of an offense and a jury instruction amenable to harmless error analysis? And the court said yes. The court said this is not the kind of structural error that automatically requires reversal. Well, that's really an intriguing point about structural error, because the court in this case lists six kinds of structural errors, for example, the complete denial of trial counsel. And what I'm wondering is, does that exhaust the field, those six types, or are there more? It's a good question. I think that the fact that they refuse to apply harmless error analysis, or that they did apply harmless error analysis here, suggests that they're moving towards an exhaustive definition of harmless error analysis. The dissent was very vehement, Scalia was very vehement in arguing that if you omit to instruct an element of offense, that has to be structural error, and the court said no. We'll see how it develops. Another jury instruction case involving jury instructions is Richardson VUS. This was an interpretation of the continuing criminal enterprise statute and what the jury has to find. This was a prosecution of Chicago street gangs. Well, as you know, under 848A, there has to be a series of violations in order for it to be a continuing criminal enterprise. And the question is, what happens when the jury unanimously finds that the defendant has engaged in a series of violations, but the jury is not unanimous on which violations make up the series? And let me just give you an illustration. Let's say that a defendant is charged with 10 violations of the drug laws. And then let's say that it takes three violations to make up a series. The Supreme Court's actually never said how many, but let's assume three. Now, in my hypothetical, let's further say that nine jurors find violations one, two, and three, that the defendant has committed those violations. The remaining three jurors find that the defendant has committed violations one, two, and four. Question is that a unanimous jury verdict. And the Supreme Court in this case held, know that it's not, that the jury has to unanimously agree on which violations make up the series. They can't cobble together violations. No mixing and matching of the violations, yeah. Does this approach apply to every element in 848A? No, the court was very clear to say that the individual violations approach only applies in bringing together the series. That once the series is established, that then the jury is free to regard the series as a whole for any further requirements in the statute. Get the series in place first. Right. Evan, last term we had a case that the special, go out of a special prosecutor case. We had another one, Secretary Espey's investigation by Mr. Smalls. This was a prosecution, not of Espey, but of a trade group that had given about $6,000 to former agriculture secretary Espey. Justice Scalia's opinion, it seems to me, is rather exhaustive in how it treats these statutes. Right. Well, the issue here was whether the government had to prove a specific relationship or a nexus, or you might even call it a traceability, between the gratuity, we're talking about the illegal gratuity statute here, and a specific official act. The district judge here had instructed the jury that it wasn't necessary for the government to prove anything like that. In fact, the district judge instructed the jury that even if they found nothing more than that, the defendant gave the gift in respect of the defendant's official position, the mere fact that he was a cabinet officer, that was enough. The Supreme Court held that that was an incorrect instruction, and found that there did need to be a specific nexus between the gratuity and an official act. That sort of inspires the question, what's the difference now between the bribery statute and the illegal gratuity statute? Right, well, Justice Scalia explained that. In the opinion, he said bribery requires a true quid pro quo, the illegal gratuity statute doesn't, so that in order to prove bribery, you have to show that the defendant hoped to influence a future act, whereas the illegal gratuity statute is violated even if it's a reward for some past act. So if you give a gift for future acts generally, that wouldn't be following either statute. Generality is the key, that's right. Interpreting these statutes. Uh-huh. Thanks very much, Evan, and thank you, Jordan. In a moment, we'll return and take up the terms cases under the Fourth Amendment, search and seizure cases. This term, like every term, had its share of Fourth Amendment cases. Tracy Macklin and Catherine Urbana returned to take us through six of them. Kathy, in part one of the program, you told us why, given the fact the media ride-along violated the First Amendment, the police still had qualified immunity. Tell us now why this media ride-along took place up in Rockville here, violated the Fourth Amendment. Well, the Supreme Court, in this case, unanimously decided that asking the media to come along on the execution of an arrest warrant to look for a fugitive in someone's home, violated the Fourth Amendment. They said that the standard is, is the presence and aid of the execution of the arrest warrant. Now, although having the media present may aid in law enforcement interests, that interest alone does not await a homeowner's interest in privacy. And in this particular case, the homeowners were, had a picture taken of them at 6.45 in the morning when they were in their nightgowns and underwear. So they said on the balance, it doesn't, it doesn't outweigh their homeowner's interest. But the Supreme Court did leave open the question of whether other third parties may be present in aid of execution of the warrant. And they also added the comment that police officers may, under the Fourth Amendment, be able to videotape themselves. The photographs here never got to the police. No. And they were never published. It would be, it would be OK to bring someone along, for example, to identify evidence in an arrest or something like that. Specifically, the court actually referred to someone who has stolen property may be able to come along in aid of the execution of the warrant. OK, thanks very much. You told us, Tracy, last, last year in this program, we should watch for Minnesota v. Carter. And we did, and the case was decided, another Fourth Amendment case involving a house. Seen fairly fact-specific. Well, what happened there, the question there was whether or not a social guest or a visitor had any standing or expectation of privacy within the home of a third party. Now, speaking for the plurality of the court, Chief Justice Rehnquist ruled that basically because of the commercial nature of the defendant's conduct, the short period of time that they were there and the lack of any prior connection between the defendant and the third party who owned the apartment, there was not an expectation of privacy in this case. Tracy, what if they would have been social guests? Well, that's a good question. And of course, it's very important for district judges to recognize that Justice Kennedy, who provided the fifth vote for the majority, also agreed with Justice Ginsburg's dissent and the four dissenters that said that as a general matter, social guests do have an expectation of privacy. Justice Kennedy felt that here, under these facts, there was too fleeting a connection between the defendant and the third party to establish a privacy interest here. However, what a social guest may be like in the future we don't know from the court's opinion. These are folks bagging drugs very momentarily in an apartment. Thanks. Let's go from Holmes, Kathy, to Kars and take up the case of Iowa. Knowles v. Iowa. This is an Iowa state statute that authorized a search after a citation. Well, the court didn't spend too much time with this case. No, it didn't. What was interesting about this case is that, as you said, the search is coming on the vehicle, the searching the vehicle right after the individual being having a citation. Typically, we all just get citations, but our vehicles don't get searches. And in this particular case, the Supreme Court struck down the Iowa statute as applied to the facts of this particular case. Why did it do so? Well, it looked at the search incident to arrest doctrine for the rationale to allow searches. And it said, well, the first reason for the search incident to arrest doctrine is to disarm the suspect, because the suspect's going to be in the officer's presence. Well, although there is a security interest in police officers at traffic stops, that doesn't outweigh the individual driver's personal security interest under the Fourth Amendment. The Supreme Court said if the officer does fear, for his or her safety, he has to meet the Terry standards, which are reasonable suspicion believe the person's armed and dangerous. The second reason under the search incident to an arrest doctrine, the court said the idea of being able to find other evidence is just not present here when we're talking about a traffic offense. You're not going to find any other evidence of a traffic offense. Now, the court also said if the police officer, for some reason, weren't satisfied with the identification in this case, then the officer could go ahead and arrest the individual. And the court also added that it thought it would be remote that a police officer would find evidence of another crime. And so unbalanced under Fourth Amendment was unreasonable. Thanks. The court looked more favorably on an arrest, though, under a Florida statute of Florida forfeiture law and seizure of a car. Right. In Florida versus White, the Supreme Court ruled in a case in which state officials had both arrested Mr. White and then, at the same time of that arrest, seized his car under the state forfeiture law. Now, subsequent to that seizure, they searched the car under an inventory search and found contraband. But the question was whether the seizure with probable cause was constitutional. Now, Justice Thomas speaking for the majority of the court here ruled that so long as the police have probable cause, the same type of probable cause that we have in automobile search cases, justifies a seizure. If we have that probable cause, state officers do not need to go after and get a warrant, even though we're dealing with a state forfeiture law. And of course, they have the time to get a warrant. Justice Thomas added a paragraph at the end of the opinion also talking about the greater leeway under the Court's Fourth Amendment jurisprudence that police have when they conduct a search in public. Could you comment on that, please? Yeah, Justice Thomas basically said that this is just like arresting a person on the streets in public. Under the United States versus Watson in 1976 decision, Supreme Court said warrantless arrests with probable cause are fine under the Fourth Amendment. Justice Thomas basically analogized to that same situation here is that a warrantless seizure of an automobile is fine. OK, thanks, Tracy. Catherine, I said earlier that we take up one Purcurian decision. This was a case that came to the court, Marilyn V. Dyson, from the Maryland Court of Intermediate Appeals, which is the intermediate court in Maryland. The Maryland Court of Appeals, the Supreme Court, as it were, didn't grant certiorary. But the court did, I guess, to nip something in the bud. Yes, actually, it builds very well off of Tracy's case. It's just another automobile exception case. And what the state court had done in this case is said that courts had to make two findings under the automobile exception. The first finding is probable cause. I believe that there's contraband in the car. And a second finding of exigent circumstances. And what the Supreme Court said on that Purcurian decision is that courts do not have to make that second finding of exigent circumstances. As long as there's probable cause to believe that there's contraband on the car and the car is mobile, then the officer can go ahead and search the car. Well-settled law. Well-settled law. Announced in a page and a half Purcurian opinion. Thanks very much. Let's take up a little more complicated case. This is an interesting case with an interesting set of facts, Wyoming v. Houghton, involving, again, a search of a car and more than that, we go ahead. Well, it's a fascinating case because what this involves is when the officer has probable cause to believe that there are drugs in the car, can the officer then go ahead and search the purse in the backseat of the passenger? And the facts of this case are- Purse. Yeah, the facts of this case are unusual and that is the officer stopped, validly stopped the driver, male driver, two female passengers. And what the officer noticed in the driver's pocket was a syringe, a hypodermic needle, and asked the driver, what's this for? And he said, well, I do drugs. So at that moment, the officer has probable cause to believe there are drugs in the car. So he orders them out, one of the female passengers identifies herself as Sandra Jane. She's the criminal defendant in this case. The officer then goes into the back seat, sees the purse, he validly stopped the driver, but now he's looking at the purse and opens it and says, oh, I see the identification of Sandra Houghton in this case. Well, she then claims ownership of the purse at that time, and then the officer goes in and looks at the purse again and finds drugs, which is what's at issue in this particular case. So the question before the court is, did the officer have to have a warrant to go into the purse? Did the officer have to have probable cause to believe that there are drugs in the purse? And the court said no, all the officer had to do was to have probable cause to believe that there are drugs in the car, and you could go ahead and search the passenger's property. Now, Kathy, did the court draw a bright line rule here? Absolutely, Justice Scalia said, without a bright line rule, we would have an absolute bog of litigation for example, would the court have to look at, did she assert ownership, or what did the officer know? So it's a bright line rule. The court also did say there's a difference between searching the passenger's property and searching the person, which has had the right to personal security under the Fourth Amendment. The old deli case. Right. So a bright line rule about containers in the car anyway. Correct. Not so much about persons. Well, thanks very much, and thanks to you, Tracy, as well. We'll be back in a moment for our next set of criminal law cases. Next, we'll turn to a set of six cases involving the Fifth and Sixth Amendments, the right to appeal, and jury instructions. Our panel this time includes Tracy Macklin, Evan Lee, and Jordan Stiker. Tracy, there was a lot of popular interest in an effort by the city council of Chicago to control gangs, drug activity by gangs in that city, through an ordinance, which came to the court in Chicago v. Morales. Now, the court majority didn't agree on a lot, but there was a central holding here, which was. Right. Well, Justice Stevens spoke for a majority of the court, which included five justices, and he found that this ordinance gave too much discretion to police officers, and the reason why was the following. That the ordinance basically said that you could not loiter or gang members could not loiter with one or more persons, including non-gang members, for no apparent purpose in public. Now, Justice Stevens found that this gave police officers just too much discretion to decide whether or not a person was out on the street with no apparent purpose. Now, there were a number of concurring in dissenting opinions, in particular Justice Stevens, I'm sorry, Justice Scalia found that there was no right to loiter, which Justice Stevens had said in a plurality opinion that there was a right to loiter. Justice O'Connor and Kennedy refused to go that far, but they did agree with Stevens that this just gave too much discretion to the police. So that's the holding that this particular ordinance, as worded, provides too much discretion. That leads me to ask, are judges across the country likely to see federal or state challenges to anti-lawtering ordinances in their cities? Probably not, because this was a very unique ordinance in the sense that it not only could criminalize gang members and non-gang members, but it just criminalized loitering. Most ordinances dealing with loitering either add some other criminal element to it, like harassment or solicitation of prostitution or some other drug offense. This was a very unique ordinance, so it's not likely that you'll see these types of challenges in the future. I suppose the city of Chicago also could clean up this ordinance itself. Absolutely, absolutely. Tracy, let's stay with you and take up the case of Mitchell V.U.S. This was a case that involved a defendant who pleaded guilty at the plea hearing, and the question was whether or not she waived her self-incrimination rights, avoidance of self-crimination rights at the sentencing hearing. Another part of this, but let's do that part of it first. Right, well the government had argued that the defendant's plea wasn't in effect the equivalent of testifying, and so thus she had waived her fifth amendment privilege to incriminate herself at that point. Well, the court didn't like that, and one of the reasons why the court didn't like that was the court said that, look, if this is true, and the government conceded this at oral argument, that that means that the government could go out and indict somebody, not name the quantity of drugs that they have been involved with, and then force the person to take the stand and then testify as to the amount of drugs. So the court made it clear that no, a plea is not a waiver of one's fifth amendment rights for the sentencing face. Now, the second part of the, and there were four dissenters, they didn't seem to disagree much on that part of it. The judge also commented at the sentencing hearing on the defendant's, on Mitchell's refusal to testify. That provoked a certain amount of controversy on the court. Right, well there the court basically relied on two opinions, Griffin versus California, as well as Estelle versus Smith, and both those cases dealt with the ability of judges or fact finders to take an adverse inference from a person's silence. Now the court here, and Mitchell said there's no reason to create an exception to those two cases. There were also a couple of sentencing guidelines issues in this case, weren't there? That the court didn't reach? Right, the court did not address the problem of inferring guilt from a person's silence in terms of lack of remorse, or in terms of the acceptance of responsibility which involved downward departures under the federal sentencing guidelines. Get to that in later cases, I presume. Thanks Tracy. Jordan, we talked earlier about again, the same case Nathaniel Jones versus the United States, and you told us that the three sub provisions of the carjacking statute were elements of the offense, but the court almost couldn't avoid getting into a discussion of fifth and sixth amendment implications of how Jones' rights were affected by this. Yeah, the court said that treating these provisions as other than enhancements might specifically run afoul of the due process clause of the fifth amendment, and the notice and jury trial provisions of the sixth amendment. And the court suggested that any fact other than a prior conviction that increases the maximum punishment for an offense might have to be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. It was this part of the holding or was this dictated? It was clearly dictated. The court didn't make a clear holding on this, but they said the court did suggest that some of its precedents might be read so broadly, and that would have a significant effect, not only on Congress' ability to define substantive offenses, but because the fifth and sixth amendment apply against the states in this regard, that this might have a federalism impact, that it may in fact affect states' abilities to define substantive offenses as opposed to enhancements. You're not quite concerned that the dissenters in this case. Thanks, Jordan. Evan, we have a real quickly, this case of Poguro versus the United States involved federal rural criminal procedure 32, and the defendants being advised of his right to appeal. Right, and the question here is if the district court neglects its duty, is there a per se right to post-conviction relief under 2255? And there'd been a circuit conflict on this, but the Supreme Court in this case held that there at least has to be some possibility of prejudice to the petitioner before there can be a right. Now, in this particular case, the defendant had independent knowledge of the right to appeal, so there was no possibility of prejudice. All nine justices agreed that there was no right to relief in that situation. Are there any unanswered questions? Well, sure. What about the case where the person does not have independent knowledge of the right to appeal? Justice O'Connor joined by three other justices wrote separately to stress that they didn't think the petitioner in that situation had to show that the appeal, if it had been taken, would be meritorious, but the five justices in the majority were silent on the question, so lower courts are gonna have to grapple with that for a while. And this is a narrow holding about Poguro, who obviously knew that he had the right to appeal and asserted it two years after he was sentenced. Now, Tracy, Lily V. Virginia, this is a lot more complicated case. This was the only right to confrontation cause case. I guess it'll go down in the books as a nine to nothing decision, but there's a lot of disagreement about the justices on why the defendant prevailed in this case. Right, well, all justices agreed that the issue here was whether or not a non-testifying co-defendants confession which contained statements against his penal interest, as well as statements that inculcated the defendant, whether that could be admitted into evidence. Now, the court, all nine justices agreed that that issue violated the confrontation cause of the Sixth Amendment. Justice Stevens, writing for a plurality of the court, basically relied on the 1980 case of Ohio versus Robertson, which had a two-prong test. And there, the court asked whether this type of hearsay is, one, a firmly-rooted exception under the hearsay rule. And second, whether there are particularized guarantees of trustworthiness to justify admitting the hearsay in. Now, under the first prong, Justice Stevens found that the statement against penal interest was not a firmly-rooted exception in the sense that it did not have the ancient pedigree that a lot of other hearsay exceptions had. And then second, Justice Stevens also found that, in this situation, admitting this type of statement was similar to admitting the ex parte affidavits that had gone on before under the common law. And so Stevens found that this was too much for the first prong. And then on the second prong of the test, Justice Stevens found that a co-defendants confession that implicates the defendant is just too unreliable. So under both prongs of Roberts, the defendant won. And so, thus, the confrontation clause was violated. And Justice Stevens made it clear that appellate courts would engage in a de novo review on these questions. So that de novo review, that makes me think this is, even though this is largely a case about the hearsay exception, it's also a constitutional dimension. Absolutely, Justice Stevens made it clear that judges are to engage in a federal constitutional inquiry on this point. Okay, thanks very much. Jordan, we have also the case, our last case into this section of Lewis Jones versus the United States. This was a case, the first case to reach the Supreme Court under the federal death penalty statute. And really involves two separate, two distinct issues. Let me ask you about the first part of it. That's the jury instruction. Now, Jones asked the judge to instruct the jury about what would happen at the sentencing hearing if they failed to agree on a sentence. The defendant wanted an instruction about the effect of a non-verdict, which in his case meant a life sentence without possibility of parole. The court rejected this eighth amendment argument saying that there is no height and reliability requirement that jurors know the effect of a non-verdict. The court also declined to use its supervisory power over the lower federal courts in this regard, thinking that there are some affirmatively good reasons for encouraging deliberation and not giving individual jurors the knowledge that they can force a certain sentence. But Jones was also concerned about a charge that the instruction itself misled the jury. Well, there was a particular claim in his case that the particular instructions and forms that were used in the case might have led the jury to believe that there was a sentencing option that wasn't really available, a sentence less than life. The majority rejected this claim. The claim wasn't presented before the instructions went to the jury, so they only applied plain error review when they found that under that standard, that certainly the defendant didn't prevail. The dissent disagreed on that point, but the most important thing that both the majority and the dissent agreed about was that in the case of a non-verdict under the new federal death penalty act, there is no second bite at the apple for the prosecution. The judge will sentence the defendant to either a life sentence or any other authorized term. So that firm holding comes out of this case. Thanks, Jordan. Let me ask you, Tracy. You're also disagreeing about the aggravating factors here, specifically some non-statutory aggravating factors in the instruction. Well, basically, Justice Thomas, writing for the court here, now had to deal with the question of whether two non-statutory aggravating factors could be submitted and considered by the jury. Now, those two factors basically fell into two categories. One, victim vulnerability evidence, and then second, the more traditional victim impact evidence. Now, a majority of the court found that this evidence going to the jury was harmless error, harmless beyond a reasonable doubt, and that basically ended it for the majority. Now, Justice Thomas, however, went further and responded to the defendant's claim that submitting this evidence was vague and overbroad, and Justice Thomas found that the government's argument to the jury made it clear that evidence that was presented dealt with vulnerability and victim impact, which Thomas felt was okay. If Justice Thomas's view prevails here, he wasn't writing for the court in this area, but if Justice Thomas's view prevails, that's gonna insulate the federal statute from a lot of the God-free and minor challenges that have been plaguing the states. We'll just have to watch for that. Thanks, Jordan. Thank you, Tracy. Thanks, Evan. If I can inject a note, federal judges, of course, have been seen in increasing number of federal death penalty cases in recent years, and they can expect to see more of them. To assist federal judges with these cases, the Judicial Center has back issues of our Chambers to Chambers newsletter on death penalty litigation, audio and video tapes from center seminars, and an extensive collection of jury instructions, orders, and other materials developed by judges who have handled these cases. Judges or their staffs can call 202-502-4153. Now, I should add, just to be clear, our release of these documents, the jury instructions, for example, does not signify our stamp of approval. You'll want to investigate their viability under the current state of the law in your circuit. Later this year we'll be publishing the first volume of a two-volume set on managing death penalty litigation, and the first volume will deal with federal prosecutions. That concludes our review of the 1998-99 terms criminal law cases most relevant to the work of the federal courts. We'll take a five-minute break and then return with part three of our program.