 The Federal Judicial Center presents Supreme Court 1997-98 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. Hello and welcome. This is the second part of the Federal Judicial Center's review of the Supreme Court's 1997 term. We're dealing with 52 of the over-90 decisions this term. The cases and biographies of our faculty are in your written materials. Criminal law and procedure is a staple on the court's docket. We'll discuss these cases for the next 30 minutes. First we'll take up seven cases involving elements of the offense, search and seizure and grand jury selection. Joining us to discuss them are Susan Herman of Brooklyn Law School, Evan Sun Lee of the University of California, Hastings College of the Law and Tracy Macklin of Boston University School of Law. Tracy, let's start with these cases involving elements of the offense and go to the case of Brian V.U.S. Here the word of analysis is willfully. Right. And Brian the defendant was convicted of willfully violating the federal firearm statute and the question was whether the prosecution had to show knowledge of that firearm statute. The defendant had knowledge of that or simply knowledge that his actions were illegal and the court ruled that he only had to have knowledge that his actions were illegal. And the court said in that situation we're going to go back to our traditional view of mens rea. Now in recent years Tracy the Supreme Court has had occasion to deal with the mens rea provisions of several federal criminal statutes. In this case did the court take a similar approach? No they didn't. In those cases that you refer to most of those cases involve either criminal tax cases or currency restructuring cases the court took a very narrow view of what the mens rea requirement was which helped defend in this case the court went back to traditional view of mens rea and said that simply that the individual had knowledge of what he was doing was illegal. He did not have to have the additional knowledge that he was violating the federal licensing statute. I thought it was noteworthy that the thing that seemed to really split the majority in the dissenters here Justice Scalia, Chief Justice Rehnquist and Justice Ginsburg was the rule of lenity. Three of them thought that this was really an appropriate case for applying the rule of lenity and it seems as if there's a real split among the justices about how often to apply the rule of lenity that explains the difference of opinion both in Brian and in our next case as well. Muscarello case. Muscarello. Why don't you just pick up that point. Muscarello involved an interpretation of the very frequently charged statute 924 C1 under which a defendant gets a five-year mandatory minimum if they're found to have used or carried a firearm during and in relation to a drug offense. Many elements. So of course several years ago the court in the Bailey case had very narrowly considered the term use and the question in Muscarello was whether they would apply a similar narrow construction to the term carry holding that it would only apply if the firearm was readily accessible during the drug transaction. Well the court didn't do that of course. They decided to choose the more expansive view of the word carry so that a person can be convicted under 924 C1 if they had a gun in the glove compartment or the trunk of a car that they have actually driven to the drug transaction. What I actually thought was interesting, this is a 5-4 decision and I think that what the justices talk about in their opinions is an interesting window onto the kinds of debates the court has been having about statutory interpretation lately so I think it's worth saying a word about how they get there. With a dictionary. With a dictionary exactly. The word carry has 32 definitions in the dictionary and the court talks about two in talking about what's the ordinary meaning of the word carry. They also talked about this is I think the kind of fun part of the opinion. They talk about how the word carry is used in the Bible, how it's used in the New York Times, how it's used by authors like Herman Melville, you know sort of that's their ordinary. Justice Breyer did a little content analysis of newspapers. The content, yeah he shows how broadly he reads, he has many different kinds of things. So that was the first part of the opinion. The second part they focus more on Congress talking about a little bit of legislative history what Congress would have meant and congressional purpose and conclude that what the statute was for was to encourage drug dealers to leave their guns at home which they thought argued for a broader interpretation of carry and third was comparing the use of the word carry here to usages of that word and the word transport the rival word in other statutes other than this. But again what I found actually the most interesting what I thought really split the court in Muscarello was four justices who dissent believing that the rule of lenity should have applied here. Justice Breyer says no you only apply the rule of lenity whether it's a grievous ambiguity and the court would just be guessing what the statute meant. Now I think it may be too early to tell whether this is something decisive going on and how to use the rule of lenity and interpreting statutes but maybe not and one thing I actually thought was interesting too about Muscarello was that the opinion reads very differently from the Bailey opinion. Tracy what did you think? Well that's true because in Bailey the court took a very narrow view of the term use in the defendant in Muscarello said well you should take that same narrow approach in terms of defining the word carry and the court said no because to do so would undercut the purpose of the statute and with respect to the concern that this was not going to be used or that the people would be prosecuted where guns were involved the court said that the statute's limiting phrase during and in relation to a drug crime would prevent prosecutions that were involved or prevent cases where people had not used guns so the court took a very different approach than they took in Bailey. So what's going to be the impact on Muscarello that's the question? Well part of the impact is that it certainly limits the breadth of the Bailey decision because what the government can do in the future is any place where formerly they would have charged somebody with using an offense they can charge carry which is a much broader term although I should note it's not completely subsuming use because there was a case a few years ago where the court in the Smith case held that you can use a gun in a drug transaction without carrying it by bartering it by bartering the gun in exchange for drugs. So I think what we're going to see in the future after Muscarello is why wouldn't the government charge everybody indict everybody with carrying rather than using. Yeah I agree with that and I think for the future what it means is that federal district courts are going to be dealing with Bailey versus the United States almost exclusively in the habeas context rather than direct appeals and in fact that was what happened in the Bousley case Bousley versus the United States which we'll be covering in part three but for now I think it suffices to say that the court's decision in Muscarello effectively liberates the federal habeas courts from having to deal with the Bailey slash Bousley situation in the carry context by defining the carry element broadly rather than narrowly I'm not suggesting that that's why they did it but that has an effect. I understand and as you say we'll get to the Bousley case when we discuss the habeas cases this term on the elements of the offense though let's go to the Salinas case this was a conviction of a Texas correctional officer under both the bribery statute and a RICO prosecution and it was an institution that was taking federal grant money that gave rise to the bribery statute. The important holding here I think Russell is the RICO conspiracy it resolves a conflict in the circuits and in so doing changes the law in the first circuit the second circuit and the tenth circuit the court held here that the government need not prove that a defendant committed or even agreed to commit more than one predicate offense to make out a RICO conspiracy violation which is significant because as we all know for a substantive RICO violation the government does have to prove more than one predicate offense all the government has to prove to make out the conspiracy is that the defendant adopted the goal of furthering more than one predicate offense and that can be done in many ways other than by physically committing it then in a separate holding the court held that 18 USC section 666 which is the bribery statute does not require any proof of an effect on federal funds of course there has to be a nexus between the bribery and some organization that is receiving federal funding but there doesn't have to be any proof of damage or harm to the federal fist the money the officer got did not come from the federal grant it came from other places that's right thanks Evan the court discussed the elements of the offense in several other cases this term one of them United States the Cabralis is also in your materials Cabralis involved a circuit split over the proper venue for prosecutions under the money-wondering statutes the court said that Florida not Missouri was the proper venue for a prosecution when Cabralis laundered the money in Florida but was not involved in the Missouri drug deal that generated the money and didn't bring the money to Florida Susan every term has its fourth amendment cases this term one of them was the Pennsylvania case Pennsylvania Board of Probation versus Scott could you describe that case for us sure you write every term has its fourth amendment cases but this term actually only had two decided which I think is part of a recent trend where the court has been spending more of its time analyzing federal criminal statutes than deciding criminal procedure cases that would apply to the states and well Scott is no exception because what it does is it frees the state states up to set their own procedural rules in a five four opinion by Justice Thomas the court held that the federal exclusionary rule does not apply in parole revocation proceedings even if the parolees fourth amendment rights were violated by the search and seizure of evidence and in some ways this opinion wasn't very surprising because it followed on previous cases where the court has tried to decide on applicability of the federal exclusionary rule using a cost benefit analysis in which the court in a way is the costs said here to be that parolees go free and also that what might otherwise be a somewhat informal parole revocation proceeding would be made more formal by applying such rules against the benefits which the court the majority describes as the incremental deterrence that you would get by having an agent who's doing a search know that evidence might not be usable at a parole revocation proceeding and on balance they hold the rule doesn't apply now what the dissenters said I thought this was interesting was they thought that there was really no deterrence at all if the person doing the search knows that there's a parolee involved because if you know you're going to be able to use the evidence why not use the search which I think is not strictly true because it might be that they would still be interested in using the evidence in an actual criminal prosecution of the parolee in addition to the revocation proceeding so they're the fourth amendment rights might still matter right Tracy and that's one of the questions that the court left open and Scott because drug agents the FBI often wore a cannon glove with parole agents and the court did not decide in Scott whether one a suspicionless search of a parolee would be constitutional and then second whether or not a parolee can waive his or her constitutional rights as a condition of parole the court and Scott those issues were brief for the court but the court didn't decide those cases maybe we'll see them later thanks Tracy there was a evidence term also a no knock case like last term this term's case was usv Ramirez yes what was the holding there the court held that the validity of a no knock entry has nothing to do with whether property is destroyed as you recall last term in Richards versus Wisconsin the court held that the validity of a no knock entry or a no knock entry is valid if the police have reasonable suspicion to believe that it would that announcing would be dangerous or would be futile would inhibit the effectiveness of the investigation what the ninth circuit had held in Ramirez was that there is an even higher standard that the police have to meet that they have to give an even more compelling reason if they destroy property but the supreme court rejected that heightened standard now the court noted that the unreasonable destruction of property by the police might still be actionable civilly under under Bivens but that the remedy for that would not be the suppression of evidence in a criminal proceeding there was also a holding in this case regarding section 3109 in which the court said that 3109 codifies the common law exception to the knock and announce requirement also made it clear that the fourth amendment precedents like Richards like Wilson also govern the interpretation of section 3109 thanks Evan thanks for that Susan and Tracy real quick can we say anything about what's on the horizon any any fourth amendment cases coming down to the pike two cert grants one concerns the scope of application of the search incident to arrest doctrine there's an iowa statute that authorizes officers who do traffic stops and decide not to arrest somebody but instead to give them a traffic citation the statute authorizes them to do a search incident to arrest nevertheless that's no noals versus iowa the second case rustle is a case called minnesota versus carter and there are two questions there one whether in guests or invitees have standing to raise a fourth amendment claim when they're in someone else's home and then second whether an officer is not enhanced use of visual surveillance into the home does that constitute a search under the meaning of the fourth amendment okay we'll watch for those thanks Tracy and thanks Susan Evan getting back to this term we had another decision in the bats in line this involved grand juries this is the case of Campbell v louisiana yes in which the court held that a white criminal defendant has standing to challenge uh discrimination against blacks in the composition of a grand jury you recall that in powers versus Ohio the court held that even a white criminal defendant has standing to challenge uh racial discrimination in the composition of a pettit jury this case extends that to grand juries now it is true that this case involves happened to involve a grand jury four person but that's not really integral to the holding here what's important is that this case applies to any state procedure where the selection of a grand jury four person is also effectively the selection of a grand jury member it applies to the composition of grand juries generally so it doesn't apply in the federal circumstance in which the judge picks the four person from among the juror the grand juror has already selected no okay thanks Evan and thanks Susan and thanks Tracy in just a moment we'll take up 11 more criminal law and procedure cases cases under the self incrimination clause about the attorney client privilege the right to confrontation double jeopardy sentencing joining Tracy Mackle to discuss these cases is Lori Levinson of Loyola law school in Los Angeles Lori um circuits have differed on the so-called exculpatory no and we now have the Brogan case and this says no to exculpatory no that's absolutely right the exculpatory no defenses out the window what the court held was that the exculpatory no doctrine would used to say that if all the defendant did was deny the underlying criminal conduct that's not a violation of 1001 the court said yes it is the statute says that any false statement is covered and it doesn't matter whether it impedes the investigation or not you have no fifth amendment right to lie the court i think reached this result because it looked at doj policies and said there has not been abused by prosecutors they don't usually bring these charges so in fact there will be no exculpatory no doctrine we had justice Ginsburg telling congress how it could fix that that's right the concurrent said wait a second we are concerned that there could be some abuses we think it'd be a good idea for congress to put into the statute that actual defense let me talk about that just a little later also thanks lori tracy same thing in the civil context it came out of a merit systems protection board investigation this is lachance v erickson right this involved the case in which involved some employee misconduct on the job and the question was could you punish someone for making a false statement to an investigator and the supreme court looked at both the statute as well as the due process clause and said yes you could punish someone in this situation under the statutory analysis the chief justice said there's simply no right in the statute to lie with respect to the due process clause the chief justice assumed that these employees had a property right in their jobs and said well certainly that entitles you to notice in a hearing but that does not entitle you to lie to investigators who are asking you questions about misconduct with respect to the court of appeals concern that this might coerce employees to make statements to an investigators the chief said look the chief justice said look if you're concerned about that rely on your fifth amendment right to remain silent there's simply no right to lie i think the moral of the story is if you're in trouble keep your mouth shut i think that's right with broken also you have no fifth amendment right to lie and it doesn't matter whether it impedes any investigation okay thanks thanks to you both lori one other self-incrimination case different context this is the balsas case and a defendant who wanted to assert the right because he was afraid to get prosecuted in a foreign country in one of the Balkans yeah well the case is a very long decision but what it boils down to is if all the defendant fears his prosecution by a foreign authority that does not trigger the fifth amendment if however he fears prosecution by either a state or federal domestic authority that does trigger the process the protection and we have this uh reference by justice suitor that in the majority opinion that the day could come i think he says when uh people may be able to invoke the self-incrimination cause in circumstances like this when's that day gonna come well i don't think it's real soon i mean the dissent thinks that the day is here now but certainly it takes more than just international cooperation what justice suitor suggests is if there's collaboration between the united states authorities and foreign authorities the same statutes and overlapping investigation then maybe you have the fifth amendment privilege but i don't see that readily on the horizon thanks let's let's turn to this case of swindler in berlin it's the name of a law firm grew out of a case the court took on an expedited scheduled hurt argument in june it decided in june at the request of the independent uh council in the whitewater investigation uh about attorney client privilege in the vinson foster suicide right i think this came at case came out exactly as people expected what justice renquist said chief justice was look the privilege survives the client's death ken stars people were looking for a balancing test saying that if you really need the information you can get it and the court said no that this would affect the attorney client relationship and stars people had not met their burden now the chief justice did not dismiss though the argument the the amendment council put forward he just i think the words were uh we have a thoughtful speculation when empirical information would be useful that's right the chief justice made a big point of saying it wasn't a frivolous argument but ironically the national law journal the same week as the opinion came out with that empirical evidence and most lawyers in this country think that the privilege should remain the way it is reported the results of a survey of the bar right thanks lori tracy the bruton rules back with us it came back in the case of gray versus maryland right tell us about that case well bruton limits the ability of a prosecutor to use a non-testifying co-defendants confession that implicates a defendant in a joint trial and what bruton requires is the prosecution is going to use such a confession it's got to redact that confession where we have a confession that is redacted either by leaving a blank space or the word deleted in place of the defendant's name is that permissible under the constitution and the court by a five to four ruling opinion written by justice bryer said that that does not pass constitutional muster in this particular case well why didn't this redaction satisfy richardson versus march good question in march the court upheld a redacted confession or the use of a redacted confession in which all reference to the defendant's name and even existence was eliminated and what justice bryer did in gray was say well we understand that certain times incrimination by inference is going to occur occurred in march where the defendant herself took to stand the question is the type or kind of incrimination that is going to occur in this case and so justice bryer said we find in this case particularly where you have the word deleted or blank space that almost involves a facial inclination so we do not have a situation here where we've got a lot of bright lines given by the court no bright lines anything about cautionary instructions always always the district judges have to give a cautionary instruction whether you have the march situation or the situation that arose in brute or now the situation that we have in gray okay thanks tracy let's turn to double jeopardy lorry we have the case from oklahoma a couple of this is hudson v us and some oklahoma bankers were penalized by the office of the controller of the currency for ice and loans i think a couple years later they were indicted for basically the same conduct and chief justice rink was wrote the opinion in this case and what the court held is that they're backing off from the helper decision that in terms of a civil statute triggering double jeopardy it's no longer you look at its effect you have to go back to the statute and see really whether on its face it has a criminal like punishment and it's going to be very unlikely it does you have to show the clearest of proof in this situation the floodgates had opened after halpert a lot of people were claiming that disbarment proceedings and other types of civil penalties were triggering double jeopardy the court wanted to stop that and has done so by saying go back to the wage standard look at the statute on its face and those were not mild penalties that the occ imposed though no these are very severe penalties but it doesn't really matter you'll have to look at the really purpose of the statute and even if the purpose is to deter conduct that alone does not make it a criminal type of statute thanks federal double jeopardy there's a state from the case in california also this is the mange case tracy this involved the california three strikes in your outlaw in a prior prior offense right in this case the defendant mr mange faced a possible doubling of his sentencing if the prosecution could prove that he committed a previous serious felony all agreed prosecution in defense that there was insufficient evidence to prove that at the sentencing hearing the question was what does the double jeopardy clause apply at sentencing and the supreme court speaking through justice o'connor said no it didn't I think the court gave two reasons first the court ruled that as a historical matter the double jeopardy clause doesn't apply at sentencing because the defendant is not in jeopardy within the meaning of the clause and then second the court found as a traditional matter sentencing enhancement does not involve a punishment for a previous offense the second reason the court gave concerned a case called bullington versus Missouri which is a 1981 case in which the court did apply the double jeopardy clause to sentencing the difference however was that justice o'connor said bullington involved capital a capital case and the court has very special rules about capital sentencing and what can and cannot occur o'connor made clear that bullington is going to be limited to capital sentencing proceedings and so we go back to the traditional rule that double jeopardy unless we deal with a capital case does not apply in a non capital sentencing proceeding okay thanks to you both for the double jeopardy discussion tracy federal sentencing law got its attention this term this matter of punishment varying punishment for crack cocaine and cocaine bedeviled federal criminal justice policy throughout the decade we had the edwards case where that issue arose tell us about that case edwards involved the case where there was a conspiracy to distribute a controlled substance the jury came back with a guilty verdict except for their verdict was a general verdict they didn't determine or didn't decide whether crack cocaine or powdered cocaine was involved the judge gave a higher sentence based on the crack cocaine based on the crack cocaine on the on the sentencing guidelines the defendant objected to that the 7th circuit affirmed supreme court affirmed the 7th circuit and the supreme court said two things they said first of all under the sentencing guidelines the judge is required to find for sentencing purposes whether crack or cocaine or both were involved so that was the first point and then second the court said with respect to the defendant's argument that the judge should assume that a powdered cocaine was involved because that of course would involve a lesser sentence the court said no the judge is supposed to determine both the type and amount of cocaine involved as well as the relevant conduct involved in this situation and so there the court said what the judge did here was perfectly legal under the guidelines okay thanks another sentencing case this whole business of recidivist elements and statues are they new crimes or are they enhancements or the almond dory's case of involved immigration deportation right in this case almond dory's torres what the court took a look at is a statute that says if an alien returns after being deported it's usually a two-year penalty however if they return after being convicted of an aggravated felony it's all of a sudden 20 years and the question is does the prosecution have to allege that in the indictment improve it beyond a reasonable doubt the court said no this is just a penalty enhancement and in making that decision in a five to four decision the court took a look at the language of the statute it's history but most of all that this involved recidivism and when you have recidivism the court is much more likely to say this doesn't require a separate proof we're going to see more of these these kinds of sentencing provisions do you think I think you'll see more of these provisions more likely to be upheld what's interesting however is that there's a suggestion in the opinion that even at the sentencing proceeding you might need a higher level of proof to show that aggravating factor okay good thank you much less attention to the provision on x-case this is the excessive fine cause in the 8th amendment and this is a pretty important case a usv bajakajan here we had a rather strange lineup but in a five to four case what was the decision well I think this case is one of the most important decisions of the term mainly because it's going to create a lot of work for our district court judges for the first time the supreme court has said that a forfeiture violated the excessive fine provision and now the courts have to figure out when do other forfeitures do so you can take a look at the facts of this case you had an individual who failed to report over $350,000 he was leaving with what happened is that the government wanted to forfeit all of it the district court said judge said no only $15,000 of it and the supreme court upheld the district court judge in doing so basically they tried to give some standards but they're not much of standards first you look at legislation and say and give difference to that but in fact the court didn't do it but then the court set out some factors that in fact district court judges can look at primarily was this just a reporting violation or was it tied to some other type of illegal violation you also look at the sentencing violation sentencing guidelines and then finally you look at if there was any harm really caused but we can expect there are going to be many more allegations of the violation of the excessive fine clause the majority of the minority disagreed quite strongly on what kind of defendant we had here as a matter of fact right the dissent in fact says that the drug lords are going to be thrilled by this decision and you had somebody here who did know what was going on in fact gave contradictory statements in fact ironically going back to our broken case you probably could have charged this person with a violation of 1001 but coming out of this case the court has set up this grossly disproportionate standard what the dissent warns is that congress might come back and say forget the forfeitures let's throw all of these people in jail some more prosecution we'll watch that case thanks very much Laurie Tracey we had a capital sentencing case that came up on habeas we want to talk about this is Buchanan v. Angeloin and federal judges operate under fairly strict guidance as to mitigating circumstances and the jury instructions in these cases wasn't quite so clear in the virginia case how did the court come out well what happened here was that the defendant requested that the jury be instructed in a death penalty case that the jury be instructed on the concept of mitigation as well as on the specific statutory factors of mitigation under virginia law the trial judge denied that instruction the question was did that refusal to instruct on those two points violate the eighth amendment the chief justice rank was ruled that it did not violate the eighth amendment under the appropriate test which was articulated in the case called Boyd v. California the question the judges have to ask themselves is whether there was a reasonable likelihood that the jury would not consider the mitigating evidence that was offered applying that test here the chief justice says there's no way that the Boyd standard would have been violated here because one there were several days of testimony both the prosecution as well as the defense counsel told the jury that they should consider all this evidence in making their determination execute the defendant or not and most importantly the trial judge had instructed the jury to consider all of the evidence in the case so based on that instruction as well as the other factors in the case the chief justice found that the Boyd standard had not been violated here he made it a point however to make clear that this was not the situation that we have in Texas of course the judges know that Texas has a special instructions and the supreme court has a whole jurisprudence dealing with the Texas death penalty the court said here unlike the Texas death penalty situation here there was nothing to constrain the jury in the manner of considering the mitigating evidence that was offered here that concludes the second part of the review of the supreme court's 1997 term in the third and final part of our program we'll look at the court's continuing interpretation of the 1996 habeas reform act and other habeas issues and then we'll take up some cases involving jurisdiction and standing scientific evidence and bankruptcy I hope you can join us and that you will remember to complete the evaluation forms for this program and good day