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I. INTRODUCTION

This outline summarizes United States Supreme Court decisions published between

September 29, 2009 and March 31, 2010, and those cases pending review. For up-to-date

summaries of all decided cases and cases pending review, see the

Review-Preview-Overview

Division, Office of the Federal Public Defender, S.D. Fla., and available at

United States Supreme Court, updated weekly by Paul M. Rashkind, Chief of the Appellatehttp://www.rashkind.com

direct any email questions about this outline or the websites listed above to

II. SPECIFIC OFFENSES

A. Cases Granted Review

, or the U.S. Supreme Court Blog at http://ussc.blogspot.com/. Pleaselaura_wasco@fd.org.

Skilling v. United States

F.3d 529 (5th Cir. 2009); Honest Services Fraud; 18 U.S.C. § 1346.

, 130 S.Ct. 393 (cert. granted Oct. 13, 2009); decision below at 554

Issues: (1) Whether the federal “honest services” fraud statute, 18 U.S.C. § 1346, requires

the government to prove that the defendant’s conduct was intended to achieve

“private gain” rather than to advance the employer’s interests, and, if not, whether

§ 1346 is unconstitutionally vague. (2) When a presumption of jury prejudice

arises because of the widespread community impact of the defendant’s alleged

conduct and massive, inflammatory pretrial publicity, whether the government

may rebut the presumption of prejudice, and, if so, whether the government must

prove beyond a reasonable doubt that no juror was actually prejudiced.

Holder v. Humanitarian Law Project

below at 552 F.3d 916 (9th Cir. 2007); Material Assistance to Terrorist Organization; 18

U.S.C. § 2339B(a)(1).

, 130 S.Ct. 48 (cert. granted Sep. 30, 2009); decision

Issue: Whether 18 U.S.C. § 2339B(a)(1), which prohibits the knowing provision of “any

*** service, *** training, [or] expert advice or assistance,” 18 U.S.C. §

2339A(b)(1), to a designated foreign terrorist organization, is unconstitutionally

vague.

Carr v. United States

578 (7th Cir. 2009); Sex Offender Registration and Notification Act (“SORNA”); 18 U.S.C.

, 130 S. Ct. 47 (cert. granted Sept. 30, 2009); decision below at 551 F.3d

§

2250(a).Issues: (1) Whether 18 U.S.C. § 2250(a), which imposes criminal penalties on certain sex

offenders who travel in interstate commerce and knowingly fail to register or

update a registration as required by SORNA, 42 U.S.C. § 16901, et seq., applies

to petitioner, whose interstate travel occurred after his conviction for a sex offense

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that triggers a registration requirement, but before SORNA’s enactment. (2)

Whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a

person whose underlying offense and interstate travel predated SORNA’s

enactment, but whose failure to register occurred well after SORNA’s

requirements became applicable to him.

Robertson v. United States, ex Rel. Watson

decision below at 940 A.2d 1050 (D.C. Cir. 2008); Criminal Contempt; D.C. Code 1981,

, 130 S.Ct. 1011 (cert. granted Dec. 14, 2009);§

16-1005(f).

Issue: Whether, consistent with this Court’s cases and the Due Process Clause of the

Fifth Amendment to the United States Constitution, an action for criminal

contempt in a congressionally created court may be brought in the name and

pursuant to the power of a private person, rather than in the name and pursuant to

the power of the United States.

III. SECOND AMENDMENT

A. Case Granted Review

McDonald v. City of Chicago

2008 WL 5111112 (N.D. Ill. 2008); Second Amendment.

, 130 S.Ct. 48 (cert. granted Sep. 30, 2009); decision below at

Issue: Whether the Second Amendment right to keep and bear arms is incorporated as

against the States by the Fourteenth Amendment’s Privileges or Immunities or

Due Process Clauses.

IV. FOURTH AMENDMENT

A. Case Granted Review

City of Ontario v. Quon

F.3d 892 (9th Cir. 2009); Fourth Amendment and Expectation of Privacy.

, 130 S. Ct. 1011 (cert. granted Dec. 14, 2009); decision below at 529

Issues: (1) Whether a SWAT team member has a reasonable expectation of privacy in text

messages transmitted on his SWAT pager, where the police department has an official

no-privacy policy but a non-policymaking lieutenant announced an informal policy of

allowing some personal use of the pagers. (2) Whether the Ninth Circuit contravened this

Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether

the police department could have used “less intrusive methods” of reviewing text

messages transmitted by a SWAT team member on his SWAT pager. (3) Whether

individuals who send text messages to a SWAT team member’s SWAT pager have a

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reasonable expectation that their messages will be free from review by the recipient’s

government employer.

V. FIFTH AND SIXTH AMENDMENTS

A. Decided Cases

Maryland v. Shatzer

Counsel.

, 559 U.S. ___ (2010); Questioning Following Invocation of Right to

Issue: Can an extended passage of time (here two and a half years) between a person’s

invocation of the right to counsel and officer’s subsequent attempts to question that

person nullify the proscription against further police-initiated questioning.

Held: Yes, the rule enunciated in

person’s invocation of right to counsel only applies to a period of 14 days after such

invocation.

Edwards v. Arizona which precludes interrogation following aFlorida v. Powell

of Counsel.

, 559 U.S. __ (2010); Sufficiency of

Miranda’s Advice of Right to PresenceIssue: Whether prior to questioning a person, the interrogating officer must expressly advise

him/her of the rights to consult with counsel prior to questioning and at any time during

questioning.

Held: No, so long as the

custodial interrogation, the warnings need not expressly state that a person has the right to

consult with an attorney prior to answering questions and has a related right to consult

with counsel in the middle of interrogation. Here, the warning of a “right to talk to a

lawyer before answering any questions” along with the right to use this right at any time,

sufficed.

Miranda warning reasonably conveys rights which attach during aPadilla v. Kentucky

, 559 U.S. __ (2010); Right to Effective Assistance of Counsel.

Issue: Whether failure to correctly inform client of guilty plea’s immigration consequences

constitutes ineffective assistance of counsel.

Held: As a matter of federal law, counsel must inform a client when his or her plea carries a risk

of deportation.

B. Cases Granted Review

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Michigan v. Bryant

Mich. 132 (2009); Confrontation Clause and

, 130 S. Ct. __ (cert. granted March 1, 2010); decision below at 483

Crawford.Issue: Whether preliminary inquiries of a wounded citizen concerning the perpetrator and

circumstances of the shooting are nontestimonial because they were “made under

circumstances objectively indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency,” including not only aid to a

wounded victim, but also the prompt identification and apprehension of an apparently

violent and dangerous individual.

VI. SENTENCING

A. Decided Case

Johnson v. United States

Predicates.

, 559 U. S. __ (2010); Armed Career Criminal Act (“ACCA”)

Issues: (1) Whether a simple battery conviction involving merely de minimis physical contact

categorically meets ACCA’s “violent felony” definition. (2) Whether a state’s highest

court holding that predicate state conviction does not have as an element the use or

threatened use of physical force against another is binding on federal court applying

ACCA.

Held: Because the Florida offense of battery by offensive touching does not require the use of

physical force, it does not qualify as an ACCA predicate under § 924(e)(2)(B)(i).

B. Cases Granted Review

United States v. O’Brien

F.3d 921 (1st Cir. 2009); Mandatory Minimums.

, 130 S. Ct. 49 (cert. granted Sept. 30, 2009); decision below at 542

Issue: Section 924(c)(1) of Title 18 of the United States Code provides for a series of escalating

mandatory minimum sentences depending on the manner in which the basic crime (viz.

using or carrying a firearm during and in relation to an underlying offense, or possessing

that firearm in furtherance of that offense) is carried out. The question is whether the

sentence enhancement to a 30-year minimum when the firearm is a machine gun is an

element of the offense that must be charged and proved to a jury beyond a reasonable

doubt, or instead a sentencing factor that may be found by a judge by the preponderance

of the evidence.

Barber v. Thomas

800 (9th Cir. 2008); Good Time Credit.

, 130 S. Ct. 737 (cert. granted Nov. 30, 2009); decision below at 533 F.3d

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Issues: (1) Does “term of imprisonment” in Section 212(a)(2) of the Sentencing Reform Act,

enacting 18 U.S.C. § 3624(b), unambiguously require the computation of good time

credits on the basis of the sentence imposed. (2) If “term of imprisonment” in the federal

good time credit statute is ambiguous, does the rule of lenity and the deference

appropriate to the United States Sentencing Commission require that good time credits be

awarded based on the sentence imposed.

Abbott v. United States

States

Cir. 2009) and 329 Fed. Appx. 569 (5th Cir. 2009), respectively; Consecutive Mandatory

Minimums with § 924(c).

, 130 S. Ct. 1284 (cert. granted Jan. 25, 2010) and

Gould v. United, 130 S. Ct. 1283 (cert. granted Jan. 25, 2010); decisions below at 574 F.3d 203 (3rdIssue: The cases have been consolidated to determine whether 18 U.S.C. § 924(c)(1)(A)’s

prefatory phrase “[e]xcept to the extent that a greater minimum sentence is otherwise

provided by this section or by any other provision of law” encompasses the underlying

drug trafficking offense or crime of violence, and if not, whether it includes another

offense for possessing the firearm in the same transaction.

United States v. Dolan

F.3d 10 (10th Cir. 2009); Timeliness of Order of Restitution.

, 130 S. Ct. 1047 (cert. granted Jan. 8, 2010); decision below at 571

Issue: Whether a district court may enter a restitution order beyond the time limit prescribed in

18 U.S.C. § 3664(d)(5).

Dillon v. United States

572 F.3d 146 (3rd Cir. Jun 10, 2009); 18 U.S.C. § 3582(c).

, 130 S.Ct. 797 (cert. granted December 7, 2009); decision below at

Issues: (1) Whether the Federal Sentencing Guidelines are binding when a district court imposes

a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582. (2)

Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence

based on an admittedly incorrectly calculated guideline range.

Carachuri-Rosendo v. Holder

below at 570 F.3d 263 (5th Cir. 2009); Federal Misdemeanor as an Aggravated Felony.

, 130 S.Ct. 1012 (cert. granted December 14, 2009); decision

Issue: Whether a person convicted under state law for simple drug possession (a federal

misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could

have been prosecuted for recidivist simple possession (a federal felony), even though

there was no charge or finding of a prior conviction in his prosecution for possession.

VII. APPEALS

A. Case Granted Review

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United States v. Marcus

538 F.3d 97 (2 Cir. 2008); Ex Post Facto Prohibitions

, 130 S.Ct. 393 (cert. granted October 13, 2009); decision below atnd and Standard of Review.

Issue: Whether the Second Circuit departed from the Court’s interpretation of Rule 52(b) of the

Federal Rules of Criminal Procedure by adopting as the appropriate standard for

plain-error review of an alleged ex post facto violation whether there is any possibility

that the defendant could have been convicted based exclusively on conduct that took

place before the enactment of the statutes in question.

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