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.
