The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
The Supreme Court disposed of last week’s one new relist
, Chapman v. Doe
, involving whether a state court clerk was properly denied quasi-judicial immunity for telling a pregnant minor, Jane Doe, that her parents would be informed if she tried to obtain a judicial bypass to get an abortion without parental consent. The court granted vacatur under United States v.Munsingwear
so that the state of Missouri wouldn’t be bound by a judgment it wasn’t able to challenge in court because of intervening mootness — caused by the fact that both Doe and the state stipulated to the case’s dismissal after the Supreme Court overturned the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization.
Justice Ketanji Brown Jackson filed a solo dissent arguing that the court’s increasing reliance on Munsingwear vacatur “has drifted away from the doctrine’s foundational moorings
The court has 119 petitions and applications before it for resolution at this Friday’s conference. It will be considering four of them for the second time. Two of them, believe it or not, involve Article III standing … and hotels.
First, Carnahan v. Maloney
. Federal law
authorizes seven or more members (less than a majority) of the House of Representatives’ Committee on Oversight and Reform to request and to receive information from government agencies that is relevant to the performance of their Committee duties. In 2017, the Ranking Member of the Committee and seven other members sent such a request to the General Services Administration seeking information related to – as the U.S. Court of Appeals for the District of Columbia Circuit delicately put it – “property owned by the United States government.” The property in question was D.C.’s Old Post Office, which at the time was being leased to a company owned by then-President Donald Trump and his children and operated as the Trump International Hotel. The agency refused to comply.
A divided panel of the D.C. Circuit held
that individual members of Congress who request agency information have standing under Article III to sue to enforce their statutorily conferred right to information. The majority held that informational injuries have long satisfied the injury requirement of Article III, and that traditional form of injury is quite distinct from the non-cognizable, generalized injuries sometimes claimed by legislators that are tied broadly to the law-making process and that affect all legislators equally. Senior Circuit Judge Douglas Ginsburg dissented.
That brings us to our second Article III standing case involving hotels, Acheson Hotels, LLC v. Laufer
. Regulations promulgated under the Americans with Disabilities Act (“ADA”) require places of public lodging to make information about the hotel’s accessibility to those with disabilities available on any reservation portal. Respondent Deborah Laufer is disabled. Laufer didn’t plan to visit Acheson Hotels’ property on Maine’s southern coast
. But as an advocate for the disabled, she reviewed Acheson’s website and found it didn’t identify accessible rooms or provide an option for an accessible room, or even give sufficient information to determine whether the property would be accessible to her. Laufer then brought suit under the ADA, arguing that the hotel’s website discriminated on the basis of disability. Acheson moved to dismiss, arguing Laufer lacked Article III standing because she didn’t actually intend to visit the hotel. The U.S. Court of Appeals for the 1st Circuit held that Laufer had suffered concrete and particularized injury in fact sufficient to have standing to sue in federal court
The state of Alabama sentenced Kenneth Eugene Smith, the respondent in Hamm v. Smith, to die for murdering Elizabeth Dorlene Sennett in a murder-for-hire plot. Smith challenged Alabama’s lethal injection process as unconstitutionally cruel and unusual, and he proposed nitrogen hypoxia as an alternative means of execution under the Supreme Court’s procedures for method-of-execution claims. The Eighth Amendment inquiry focuses on whether the state’s chosen method of execution “cruelly superadds pain to the death sentence” by asking whether the state has “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain.
” The U.S. Court of Appeals for the 11th Circuit held
that nitrogen hypoxia is “feasible and readily implemented” because Alabama adopted a statute authorizing that method of execution. The state has petitioned for certiorari
, arguing that that nitrogen hypoxia is not yet “feasible and readily implemented” because the state has not developed a protocol for that method of execution.
Kevin Burns, the petitioner in Burns v. Mays, was convicted and sentenced to death for killing two people (and wounding two others) during a botched robbery. A divided panel
of the U.S. Court of Appeals for the 6th Circuit held that Burns had not received constitutionally ineffective assistance of counsel. Before the Supreme Court, Burns argues
that he received constitutionally ineffective assistance of counsel because his lawyer failed to ask the jury not to sentence him to death because of “residual doubt” about his guilt as permitted by state law, because he failed to introduce evidence that a co-defendant was the actual shooter, and because counsel conducted only one or two hours of work to prepare for the sentencing phase of the trial. Burns argues that his entitlement for relief is so clear that the Supreme Court should summarily reverse
That’s all for today. Tune in Monday
, when we’ll have a better idea which (if any) of these petitioners has persuaded the justices that their cases warrant Supreme Court review.
Carnahan v. Maloney
, 22-425 Issue: Whether individual members of Congress have Article III standing to sue an executive agency to compel it to disclose information that the members have requested under 5 U.S.C. § 2954
(relisted after the Mar. 17 conference)
Acheson Hotels, LLC v. Laufer
, 22-429 Issue: Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.
(relisted after the Mar. 17 conference)
Hamm v. Smith
, 22-580 Issue: Whether, in an Eighth Amendment method-of-execution case, an alternative method of execution is feasible and readily implemented merely because the executing state has statutorily authorized the method.
(relisted after the Mar. 17 conference)
(rescheduled before the Feb. 24 and Mar. 3 conferences; relisted after the Mar. 17 conference)
Burns v. Mays
, 22-5891 Issues: (1) Whether an ineffective assistance claim may be based on counsel’s failure to exercise a state-law right to introduce residual doubt evidence at a capital sentencing; (2) whether counsel provides ineffective assistance at capital sentencing if they fail to establish the defendant’s lesser moral culpability by demonstrating that he did not kill a victim, even if the lesser culpability proof fails to negate all aggravating (eligibility) factors; and (3) whether it constitutes deficient performance under Strickland v. Washington
if trial counsel postpones their preparations for sentencing until a brief post-guilt phase recess; and if deficient, whether counsel’s performance can be excused, if omitted mitigation evidence fails to explain why the defendant committed the offense.
(relisted after the Mar. 17 conference)
McClinton v. United States
, 21-1557 Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Luczak v. United States, 21-8190 Issue: Whether this Court should overturn its decision in United States v. Watts
, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a)
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Shaw v. United States
, 22-118 Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court‘s decision in United States v. Watts
should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Karr v. United States, 22-5345 Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; (2) Whether it violated the Due Process Clause of the Fifth Amendment for the district court to sentence Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Bullock v. United States, 22-5828 Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the Defendant was previously acquitted.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Donziger v. United States
, 22-274 Issues: (1) Whether Federal Rule of Criminal Procedure 42(a)(2) authorizes judicial appointments of inferior executive officers; and (2) if so, whether such appointments violate the appointments clause in Article II, Section 2 of the Constitution.
(rescheduled before the Jan. 13 conference; relisted after the Jan. 20, Feb. 17, Feb. 24, Mar. 3 and Mar. 17 conferences)
Brown v. Louisiana
, 22-77 Issue: Whether, where a defendant denies participating in a particular criminal act, another person’s confession stating that he and someone else committed the act—without mentioning the defendant—is favorable and material evidence under Brady v. Maryland
(record requested Oct. 18; relisted after the Feb. 17, Feb. 24, Mar. 3 and Mar. 17 conferences)
If anything is clear after Tuesday’s argument in Coinbase v. Bielski
, it is that the justices are not going to agree on the answer. The case asks what a trial court should do if it denies a defendant’s motion for arbitration. The Federal Arbitration Act
gives the defendant the right to an immediate (“interlocutory”) appeal, but it says nothing about a stay of litigation in the district court. So in these cases (proposed class actions against Coinbase, a large cryptocurrency exchange), the federal district courts in California have both been proceeding with pretrial litigation for more than a year while the court of appeals considers Coinbase’s argument that its pre-dispute arbitration agreement makes it exempt from litigation.
For one group of justices (including Justices Sonia Sotomayor and Ketanji Brown Jackson), this is an easy case for the customers (individuals who had accounts at Coinbase). Two points were central for them. First, one section of the Federal Arbitration Act (Section 6) explicitly obligates the district court to grant a stay when it orders arbitration. The provision at issue here (Section 16, which allows immediate appeals from orders denying arbitration) does not include such a provision. For Jackson, that was “problematic,” because “we would expect to see that same kind of language with respect to this interlocutory appeal if that’s what Congress intended.” Indeed, she found the argument of Neal Katyal, representing Coinbase, perverse because he argued that Congress needed to call explicitly for a stay to protect the right of arbitration “when you definitely get arbitration but they don’t have to say it when we don’t know whether or not you get arbitration.”
Sotomayor took much the same view, emphasizing the traditional discretionary standards district court judges apply to decide whether a stay is appropriate. She pointed to a section of the Federal Arbitration Act calling for “any application [to] be heard in the manner provided by law for the making and hearing of motions,” and then declared it “an easy case” for her. She explained: “I follow the Federal Rules of Civil Procedure and the statute that tells me to look there.” Under those rules, the defendant’s right to a stay would be discretionary.
Although not as dogmatic about the matter, Justice Elena Kagan also seemed firmly on the side of the customers. She noted that the rule of Griggs v. Provident Consumer Discount Co.
, a 1982 Supreme Court case on which Katyal and Coinbase rely
, is a “judge-made” rule, and “that we usually try to keep our judge-made rules narrow to deal with only the situations which really cry out for them.” For her, the key to Griggs is when the trial court is “doing the same thing that the appellate court was doing and so was stepping on the appellate court every move it made. That is not the situation here.”
On the other hand, some of the justices seem just as clearly inclined to support Coinbase. The most detailed exposition of that position came from Justice Brett Kavanaugh, who emphasized the view that pretrial litigation in a class-action setting can have a “coercive” pressure on defendants toward settlement. As he explained, defendants “think they correctly bargained for arbitration and they have a right that Congress has given them to have the appellate court determine that and that [they’ll lose that right] because, if the district court discovery goes forward in a … class action context, that is going to coerce massive settlements.” Kavanaugh repeatedly underscored his agreement with that perspective, which he described as “realistic.”
Even more tellingly, Kavanaugh then engaged in a long interchange – more with Kagan than with Hassan Zavareei, counsel for the customers – about the extent to which a swift appellate process could solve the problems that concern both sides (delay for the plaintiffs and settlement pressure for the defendants). For Kagan, a swift appellate process limited the harm to whichever side loses, so she did not find that a particularly relevant avenue to pursue. Kavanaugh, though, suggested that “if appeals courts move quickly” it would provide a complete “solution to [the customers’] problem,” but little or no solution to the defendant’s concern. Kavanaugh seems to be a solid vote for Coinbase.
Nor is there any reason to think he would be alone. Justice Samuel Alito, for example, was preoccupied with the idea that under the customers’ rule, defendants almost never would get a stay pending appeal. Alito repeatedly noted that the main harm to defendants is the costs of pretrial litigation and discovery, and that the courts routinely hold that purely financial costs like those are not the kind of irreparable harm that would justify a stay.
In a similar vein, Justice Neil Gorsuch emphasized the idea that the “one-court-at-a-time rule … is pretty ancient and goes back to the common law.” Although he was not as explicit in his views as Kavanaugh and Alito, his comments strongly suggested that it would make no sense to allow a trial court to move forward with litigation while an appellate court considered the plaintiff’s obligation to stop the trial and go to arbitration.
The need to craft opinions seems unlikely to resolve the stark differences apparent from Tuesday’s argument. So I would be surprised to see a decision in this case any time in the next two months.
It might be fairly said that in recent decades venue in criminal cases has not been the hottest topic on the court’s docket. Nevertheless, as the briefs in Smith v.United States
emphasize, the criminal venue right was so significant to the Framers that the Constitution addressed it twice. The original Constitution provides in Article III that jury trials in criminal cases “shall be held in the State where the said Crimes shall have been committed.” The Sixth Amendment added that the jury shall be drawn from “the State and district wherein the crime shall have been committed.” The texts thus seem to contemplate that crimes normally occur in a single place, and while that is often true even now, the rise of the telephone and internet, highways and aircraft, as well as complex crimes like conspiracy and RICO, mean that multiple districts may sometimes have valid claims to venue.
The question in Smith is the appropriate remedy when a conviction is set aside on appeal for improper venue: Does the defendant get a new trial in a proper venue, as the United States argues? Or, as Smith and his amici contend, should the disposition be treated as equivalent to an acquittal, with the result that the conviction is set aside, and a retrial barred by double jeopardy?
Underlying Smith is a fish story. Timothy Smith is a computer expert with an interest in fishing. In his home in Mobile, Alabama, he used a software program to obtain and decrypt proprietary information about desirable fishing spots in the Gulf of Mexico. The information was owned by a business called StrikeLines, located in Pensacola – in the Northern District of Florida. However, the company’s computer servers, from which the information was actually obtained were in Orlando, in the Middle District of Florida.
After Smith collected the data, he spoke by phone with the owners of StrikeLines to discuss their computer security and posted on Facebook that he had obtained all of StrikeLines’ fishing data. Smith proposed an exchange in which he would delete the Facebook post if StrikeLines provided him with additional information about certain locations where grouper – evidently a particularly coveted fish – could be found. However, StrikeLines and Smith did not reach an agreement, and StrikeLines contacted law enforcement.
Smith was tried by a jury in the Northern District of Florida – a venue to which he had vigorously objected. He was convicted of stealing trade secrets and extortion and acquitted of unauthorized access of a federally protected computer. He was sentenced to concurrent terms of 18 months in prison, followed by one year of supervised release.
The U.S. Court of Appeals for the 11th Circuit found that venue for the extortion charge was proper in the Northern District of Florida because the victims, StrikeLines’ owners, were there when Smith made his demands. However, the court of appeals reached a different conclusion with regard to Smith’s conviction for theft of trade secrets. Smith took the fishing information from the Southern District of Florida, and his conduct occurred in the Southern District of Alabama. Because there appeared to be no connection to the Northern District of Florida, where the trial took place and from which the jury was drawn, the 11th Circuit found that venue was improper and vacated Smith’s conviction.
In the 11th Circuit’s view, and under the holdings of the U.S. Courts of Appeals for the 6th, 9th, and 10th Circuits, the remedy for improper venue was a new trial. Smith contended that if his conviction been vacated for improper venue in the 5th or 8th Circuits, the case would have been treated as an appellate acquittal, and no retrial would have been allowed.
One aspect of Smith’s argument before the Supreme Court is based on the structure of the situation. He marshals substantial precedent, not challenged by the government, that whether venue is proper is a jury question, which is resolved as part of its general verdict. The trial court directed the jury to find Smith not guilty if any element, or venue, was not proved beyond a reasonable doubt. Because the 11th Circuit’s invalidation of his sentence represented a determination that the jury erred on the venue question, there is no justification, Smith insists, for a different remedy simply because the finding that venue is lacking occurs on appeal.
Indeed, Smith argues, there are good reasons – such as the prevention of governmental abuse and oppression – to use the same rule at both stages of litigation. Smith notes that the prosecutor has the opportunity to choose the venue. In addition, it appears undisputed that improper venue is waivable by lack of objection. Accordingly, the issue can be raised on appeal only after the defendant first brought the issue to the attention of the prosecutor and the court. When the mistake is pointed out to prosecutors, yet they refuse to yield, Smith suggests, the law should not bend over backwards to relieve them of the consequences of their own constitutional violation. “Under the Eleventh Circuit’s rule,” Smith emphasizes, “the government may opt to prosecute in a borderline (and ultimately unconstitutional) jurisdiction not just once, but repeatedly, without consequence.”
The federal government counters that other errors related to the jury trial right — such as a denial of the right to counsel or discriminatory jury selection — result in a new trial, even though they, too, mean that a defendant was subjected to unnecessary anxiety and expense. A retrial, the government contends, is a complete remedy. If it occurs, the defendant will have the advantage of having seen all of the prosecution’s evidence and testimony at the first trial. But in any event, it may never occur – for example, if the prosecutors in another district elect not to take it up, or if the government loses interest. Given the press of business, the government insists, there is no reason for prosecutors to knowingly pursue a case in which venue is lacking over the defendant’s objection.
Perhaps the most relevant body of law to which the court will turn are the English and other early precedents addressing the issue. Smith notes that under those precedents a jury in the absence of venue would acquit. Although the government does not deny that such dispositions were often called acquittals, it reads many of them as holding that an acquittal based on improper venue did not bar retrial in the right place. The acquittal is not a full acquittal, this authority reasons, because in light of the bad venue, the trial court never had jurisdiction, and the defendant was never really in jeopardy.
These precedents may well prove to be important to the justices. The English rule that the government claims applies would allow a retrial after a jury acquittal if venue was in fact bad. But the government cannot be arguing that the English rule now applies in unmodified form, which would allow the government to retry the defendant after a jury acquittal. And there seems to be no dispute that in the United States now a venue error is waivable. Because trial in the wrong venue can lead to a valid conviction if there is no objection, it cannot be said that improper venue alone deprives the court of jurisdiction, or means a defendant is not in jeopardy. Accordingly, it is arguable that U.S. law has already departed from the English approach on this issue.
The case attracted several amici, all on Smith’s side, including the National Association of Criminal Defense Lawyers
, the National Association for Public Defense, the Cato Institute and the Rutherford Institute
, and law professors Brian Kalt and Drew Kershen
, the latter of whom is cited extensively in the government’s brief. These briefs reinforce the historical importance of the venue right, and the British abuses which led to it. However, they also contend that a rule allowing retrial not only encouraged prosecutors to forum-shop, but unfairly aided prosecutors in plea bargaining, by increasing the pressure to plead guilty. A defendant who believed that venue was improper would know that even if he was right, he would have to endure trial and appeal before obtaining a trial in the next venue — and even that subsequent trial might or might not be where the law provided that it should be.
Although speculation, it might not be surprising to hear questions from the court that were not addressed in the briefing. One question is whether venue was actually proper. Although factually complicated, at first blush one element of the theft offense arguably related to the Northern District of Florida — specifically, whether Smith knew that the owner of the trade secret would be injured. In any event, although the 11th Circuit held that this was purely an intent element irrelevant to venue, it supports the argument that the United States did not willfully decide to pursue a case in the wrong place.
Another question to watch for is whether venue is a question for the judge or jury. If venue is part of the jury trial right, that may strengthen the argument that it is an acquittal if a jury finds it does not exist or should have so found. But venue is not treated as an ordinary element of the offense, jurisdictional or otherwise, because it is not subject to the proof beyond a reasonable doubt standard, so perhaps it could be determined by a judge. Or the question could be reversed: A justice might ask whether venue is an element of the offense, and thus must be proved beyond a reasonable doubt, like every other fact necessary to establish guilt.
The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.
Five years ago, the Supreme Court ruled
that pleading guilty to a crime does not prevent a defendant from arguing that the law criminalizing their conduct is unconstitutional. This week, we highlight cert petitions that ask the court to consider, among other things, an issue that decision left open: Under what circumstances can someone found guilty at trial, instead of in a plea deal, attack the constitutionality of the law under which they were convicted?
Javier Mollina was murdered in a New Mexico prison by Carlos Herrera, Daniel Sanchez, and Anthony Ray Baca. All four allegedly belonged to Syndicato de Nuevo Mexico, a prison gang. Herrera, Sanchez, and Baca were convicted of violating a provision of the Violent Crimes in Aid of Racketeering Act
, which makes it a federal crime to commit murder to (as relevant here) enhance their position in a criminal or racketeering “enterprise” engaged in interstate commerce – in this case, SNM.
After the trial was over, Herrera and his co-defendants argued that their convictions were invalid because VICAR exceeds Congress’ power to regulate interstate commerce. The law criminalizes conduct with no effect on interstate commerce, they argue, merely because of its connection to a gang whose activities have economic ramifications across state lines. A federal district court rejected their challenge and upheld the convictions.
On appeal, the government countered that the defendants had waived their right to challenge VICAR’s constitutionality by not making the argument before trial.
The U.S. Court of Appeals for the 10th Circuit agreed. Although the federal rules governing criminal procedure allow criminal defendants to challenge a federal court’s authority to hear their case at any time, they must object to any “defects” in the prosecutor’s case before it goes to trial. In the 10th Circuit’s view, the challenge by Herrera and his co-defendants to VICAR’s constitutionality falls into the latter category because, if successful, it would mean only that the government could not prosecute them under the law, not that the court lacked the power to decide their case at all.
In Herrera v. United States
, the three men ask the justices to reinstate their constitutional challenge. When federal officials hale someone into court and obtain a conviction against them under an unconstitutional law, that is a jurisdictional defect, they argue, not a problem with the government’s case. They insist that questioning the constitutionality of the statute under which they are ultimately convicted is precisely the type of argument that criminal defendants should not have to raise before they stand trial.
A list of this week’s featured petitions is below:
Herrera v. United States
22-827 Issue: Whether, under Federal Rule of Criminal Procedure 12
, petitioners were permitted to bring a facial constitutional challenge to their statute of conviction under the commerce clause in Article I, Section 8 of the Constitution by filing a post-trial motion rather than a pretrial motion.
K.M. v. Adams
22-840 Issue: Whether the Individuals with Disabilities Education Act’s
requirement that administrative remedies be exhausted before a judicial challenge under the act may be brought is jurisdictional, or rather a claim-processing rule that must be raised as an affirmative defense that may be waived.
Fox v. Campbell
22-848 Issues: (1) Whether the Fourth Amendment standard for evaluating unreasonable force claims established in Graham v. Connor
or the Fourteenth Amendment standard for evaluating actions of law enforcement announced in County of Sacramento v. Lewis
applies when law enforcement shoots but misses the intended target and an unknown occupant of the residence; (2) whether the U.S. Court of Appeals for the 6th Circuit departed from this court’s precedents by denying qualified immunity to petitioner and concluding that respondents were seized when petitioner fired shots but missed; (3) whether, if the Fourth Amendment standard applies, the 6th Circuit properly applied this court’s decision in Graham in concluding that petitioner was not entitled to qualified immunity when he fired shots in self-defense and not to apprehend a suspect; and (4) whether the 6th Circuit erred in determining that it was clearly established by precedent not from this court that respondents had been seized and petitioner used excessive force in violation of the Fourth Amendment.
Foster v. Wearry
22-857 Issues: (1) Whether preparing witnesses to bolster existing evidence intended for use at the criminal trial, after probable cause has been determined, is a function “intimately associated with the judicial phase of the criminal process” and “in presenting the State’s case” such that absolute immunity applies under Imbler v. Pachtman
and its progeny; and (2) whether the absolute immunity that applies to prosecutors for conduct under the “functional approach” embraced in Imbler extends to law enforcement officers performing the same conduct while assisting in the prosecution of the criminal charge.
For four years, Helaman Hansen falsely promised undocumented immigrants that they could, for a substantial fee, become U.S. citizens through “adult adoption.” Although Hansen persuaded more than 450 people to pay him for his services, the program was a ruse that would not lead to citizenship.
On Monday, in United States v. Hansen
, the Supreme Court will consider whether 8 U.S.C. §1324(a)(1)(iv)
, the federal law that criminalizes “encouraging or inducing unlawful immigration,” violates the First Amendment’s guarantee of free of speech. The case will have potentially significant effects on immigration enforcement. But it may have an even bigger effect on First Amendment law, with significant implications for dissent, incitement, solicitation and aiding and abetting liability, and social media regulation.
In 2017, Hansen was convicted on federal charges, mostly involving mail and wire fraud, arising from his “adult adoption” scheme. But Hansen was also convicted on –two counts of encouraging or inducing noncitizens to reside in the United States after their visas expired. Those two noncitizens had lawfully entered the United States, but then overstayed their visas because Hansen assured them that participating in the adult adoption program made leaving the U.S. unnecessary. Hansen also employed one of the two to do odd jobs. While violating 8 U.S.C. §1324(a)(1)(iv)
for any reason receives 5 years of imprisonment, because the jury found that Hansen had violated the law for financial gain, the court imposed the maximum sentence – 10 years for the “encouragement” counts, to run concurrently with a sentence of 20 years for the fraud counts.
On appeal, the U.S. Court of Appeals for the 9th Circuit held that Section 1324(a)(1)(iv) violates the First Amendment. It vacated Hansen’s convictions on those two counts only and remanded for resentencing.
The court of appeals analyzed the law under what is called the overbreadth doctrine
, which allows a defendant to whom a law can be constitutionally applied to challenge it as facially unconstitutional (meaning the whole law should be struck down), if the law prohibits a substantial amount of speech protected by the First Amendment. The overbreadth doctrine, like vagueness, is animated by a concern about chilling protected speech. Broad laws may be selectively enforced, and the public may not know what is protected from the law by the First Amendment and what is not — so that the resulting uncertainty may chill protected speech.
The federal government came to the Supreme Court, which in December agreed to weigh in.
Defending the constitutionality of the law, the government’s central contention is that the statutory terms “encourages” and “induces” should be interpreted narrowly as meaning to “facilitate” or “solicit,”concepts with defined meanings in criminal law. Based on those meanings, the government argues, a defendant would not violate the law unless he met the standard for “aiding or abetting” or “soliciting” a noncitizen to unlawfully enter or reside in the United States. As the government observes, many ordinary criminal laws — such as those barring conspiracy, incitement, and solicitation — criminalize speech. Those sorts of laws, the government urges, are not ordinarily understood to prohibit abstract advocacy of lawbreaking, however, even when their literal language might encompass it. Moreover, the government maintains that laws prohibiting abetting or encouraging a criminal offense were well established at the Founding, meaning there is “no tenable argument that the original understanding of the First Amendment limited ‘statutes that penalize encouragements to specific crimes.’” The government warns that a broader understanding of “encourages or induces” would open those other laws to constitutional attack as well. At a minimum, it contends, the court should adopt the government’s interpretation to avoid the constitutional questions that would arise if the law was read in a broad, speech-restrictive manner.
The government then uses its interpretation to demonstrate that the law is not substantially overbroad relative to its legitimate sweep — the standard the overbreadth doctrine requires. Section 1324(a)(1)(A)(iv), the government argues, proscribes a substantial amount of non-speech conduct, such as selling fraudulent identification documents or leading noncitizens to the border. It is not enough under the overbreadth doctrine that there is some conceivable unconstitutional application, the government notes; instead, there must be a “realistic danger” that the law will harm protected speech.(This line of argument appears to be a response to the sorts of hypotheticals that are a centerpiece of Hansen’s brief, which the government urges are not covered by the law under its interpretation.)
The government also argues that the law’s overbreadth must be measured relative not only to the “encouraging and inducing” provision, but with the enhanced penalty provision that applies if the defendant committed the offense for financial gain. To the extent that the law reaches speech, the government argues, it only covers speech integral to illegal activity, which does not offend the First Amendment. At a minimum, it says, Hansen has failed to show the kind of substantial overbreadth to strike down the statute on its face.
Finally, the government criticizes the overbreadth doctrine generally as a departure from both the traditional rules favoring as-applied constitutional challenges and disfavoring third-party rights. To justify invalidating the statute entirely, the government asserts, Hansen would need to show that “the normal course of constitutional adjudication” can’t address chilling effects, which it says Hansen has failed to do.
For his part, Hansen argues that the statute is substantially overbroad in violation of the First Amendment because the plain meaning of its text extends to a plethora of ordinary interactions that the First Amendment protects. He argues that, for example, the law makes it a crime for:
A grandmother to say that she doesn’t want her undocumented grandchild to leave her
A doctor to advise a patient with an expiring visa that she needs medical treatment in the United States
A priest to inform a noncitizen parishioner about church child-care and pantry resources that would support her remaining after her visa expires; or
A lawyer to counsel an noncitizen who entered the country legally but no longer has a legal basis for being in the United States that she has the ability to become a lawful permanent resident if she does not leave the country
Hansen says these examples encourage a civil violation at most, because residing in the United States unlawfully is not a crime.
Hansen argues that the court’s overbreadth analysis should focus only on the provision that criminalizes “encourages or induces,” which was enacted in 1986 and doesn’t require any purpose. The provision that enhanced the penalty for offenses committed for financial gain was added separately in 1996.
Next, Hansen argues that the government is wrong to equate “encouraging or inducing” with “aiding and abetting” and “solicitation.” Congress, he points out, removed the words “solicitation” and “assistance” from an earlier version of the law, and there is a separate federal law prohibiting soliciting or aiding and abetting certain crimes, including the law at issue here.
Hansen also contends that the interpretation the government now advances “bears no resemblance to the one it advocated at trial.” There, Hansen asserts, the government argued that the statute should be applied according to its plain meaning and opposed an instruction requiring intent, which Hansen says is “central to solicitation and aiding-and-abetting crimes.” And the jury was not instructed that “encourage” should be read as anything other than its ordinary meaning. For that reason, Hansen contends, even if the court adopts the government’s statutory interpretation, his conviction should be vacated and remanded for consideration under that construction.
Finally, Hansen asserts that the law’s ban on “encouragement” — without any requirement that the speaker specifically intended the listener to violate the law or that the violation was likely or imminent — goes beyond the speech the First Amendment does not protect under the categories of incitement, solicitation, or aiding and abetting. The government’s argument, he argues, would “turn on its head the long line of cases involving speech advocating illegal conduct.” Under that caselaw
, the First Amendment shields speakers from liability unless their speech is “directed to inciting or producing imminent lawless action,” “likely to incite or produce such action,” and the speakers specifically intend that their listeners violate the law. Because the First Amendment exception for “speech integral to criminal conduct” has always been limited to criminal conduct, not civil violations, Hansen argues, “the government effectively seeks a new category of unprotected speech.”
This case has implications that go far beyond immigration enforcement. For one, the courts have never worked out the relationship between incitement (which requires intent, imminency, and likelihood), solicitation, or aiding-and-abetting liability (which aren’t covered by the First Amendment at all), and speech integral to criminal conduct (which, other than being about speech and crime, is fairly fuzzy in the caselaw). Might the court’s holding here weaken any of those standards? These issues may significantly alter the trajectory of First Amendment law with broad implications. For example, the court’s holding may affect the standard applicable to former President Donald Trump’s speech before the storming of the Capitol on January 6, were he to be indicted for incitement.
This case may also intersect with two other high-profile cases now before the court: Google v. Gonzalez
and Twitter v. Taamneh
, both of which involve the scope of social media companies’ liability for terrorist speech on their platforms. If the court allows a broader constitutional sweep for liability in Hansen, it could affect those cases — and potentially the liability of social media companies not only for aiding-and-abetting crimes, but civil violations (such as defamation) too. We can only speculate, but I feel sure that the justices are also thinking about these implications.
Hansen may also offer us insight into this court’s approach to speech law. Will it continue an earlier court’s trend of adopting ever more speech-protective rules or chart a different course?
We’ll have to wait and see. The only wager I’ll make is that at argument we will hear many wild hypotheticals.
As expected, Wednesday’s argument in Jack Daniel’s Properties v VIP Products
showcased the justices grappling with line-drawing. At issue in the case was how First Amendment trademark principles should apply to a dog toy that pokes fun at Jack Daniel’s whiskey – a toy the size and shape of a Jack Daniel’s bottle, bearing a familiar-looking label that reads “Bad Spaniels” instead of “Jack Daniel’s.”
The case comes to the court from the U.S. Court of Appeals for the 9th Circuit, which held that the toy was protected under the reasoning of Rogers v. Grimaldia 1989 ruling by the U.S. Court of Appeals for the 2nd Circuit in a case filed by legendary movie star and dancer Ginger Rogers, who was seeking to block the use of the title “Ginger and Fred” by a movie about two fictional Italian cabaret performers. Specifically, the 9th Circuit reasoned that Rogers requires an exception to the trademark statute for expressive speech and that the “Bad Spaniels” dog toy fell within the exception. The problem for VIP Products, which makes the dog toy, is that almost none of the 9th Circuit’s decision discussed why anybody might want to tolerate the challenged toy. Rather, almost all of the argument focused on explaining how this intolerable parody differs from political or artistic works that Rogers and the First Amendment should protect.
Bennett Cooper argues for VIP Products. (William Hennessy)
The problem for VIP was clear from the earliest moments of the argument, as Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor vied with each other to interrogate Lisa Blatt, representing Jack Daniel’s, about why this toy was unlike anything that Rogers should protect. Kagan suggested that the toy was “an ordinary commercial product using a mark as a source identifier. In that case, whatever we might think about the Rogers test, . . . [t]he Ninth Circuit just made a mistake as to this. The end. Why wouldn’t that be … the obvious or appropriate way to resolve this case if we were coming out your way?”
Kagan went on to explain that she was reluctant to abandon Rogers because there are other “cases which look really different from this case.” And in some cases, she noted later, courts “shouldn’t have to go through this whole analysis”; instead, they should be able to “can get rid of [them] in the first instance on a motion to dismiss without surveys, without a lot of fuss and bother.”
Kagan’s questioning of Bennett Cooper, representing the toy manufacturer, shows just how settled she was in her position by the end of the morning. The dog toy, she stressed, “is a standard commercial product.” “This is not a political t-shirt. It’s not a film. It’s not an artistic photograph. … Kagan acknowledged that “[t]here might be some hard cases. “But dog toys,” she concluded “are just utilitarian goods and you’re using somebody else’s mark as a source identifier, and that’s not a First Amendment problem.”
Jackson offered a slightly different formulation. She told Blatt that, in her view, “what you’re describing as the problem is courts grappling with the degree of expressiveness of various items in terms of determining whether or not this art, Rogers, exception should apply.” For her, it seemed to be a “cleaner, more consistent-with-the-statute way of looking at it … to ask, is the artist using this mark as a source identifier, as the threshold, and, if they aren’t, then I guess the Lanham Act doesn’t apply.”
Jackson seemed to embrace the idea that the Lanham Act, the federal trademark statute at issue, is addressing something of little concern to the First Amendment: “[T]he confusion we care about is that people in the marketplace are going to be looking at these items and think they are the mark owner’s because of the way they’re labeled.” Anything broader than that, she said, risks infringing on artists’ First Amendment rights.
Matthew Guarnieri, assistant to the solicitor general, argues for the United States. (William Hennessy)
Sotomayor was also hesitant to jettison the Rogers test. “What they’re trying to get at is whether the use of this trademark in this context … is confusing,” she said. When Matthew Guarneri, representing the federal government, began his time at the lectern, Sotomayor interrupted him almost immediately to say that because she “always ha[s] hesitation in doing away with something that circuits have been relying on,” she wanted his advice on the best basis for a narrow ruling.
That is not to say that the dog toy had no supporters at all. Justice Samuel Alito, for example, seemed completely unpersuaded that Jack Daniel’s faces any real-world risk of confusion, as he asked repeatedly whether “any reasonable person [could] think that Jack Daniel’s had approved this use of the mark.”
Justice Neil Gorsuch also appeared sympathetic to the toy manufacturer. He asked about the possibility of a remand, suggesting that “the district court may not have given adequate weight to the fact that this is a parody and the … differences in the label in its analysis.” When Cooper resisted a remand on that basis, Gorsuch quipped, “most lawyers don’t stand at the lectern and oppose a win.”
All in all, the argument strongly suggests a bench trying to avoid making any serious waves in First Amendment rules for political and artistic speech. It may take some time for all the justices to work through their preferred phrasings, and there well may be some separate writing. But it is hard to imagine a group of five coalescing to reject Jack Daniel’s plea for protection.
Two pharmaceutical giants head to the Supreme Court on Monday in a dispute over a patent covering cholesterol-lowering antibodies. In Amgen Inc. v. Sanofi, the justices will consider whether Amgen’s patent is too broad to be valid under federal patent rules.
Amgen has patents on monoclonal antibodies that lower LDL, or “bad,” cholesterol. The antibodies work by binding to a particular protein in the body (PCSK9), which then blocks that protein from destroying receptors that extract cholesterol from the bloodstream.
Amgen and other companies already have patents covering particular antibodies defined by their amino acid sequences. Those narrow patents are not in dispute here. Instead, this case involves a broader patent Amgen obtained, which covers any monoclonal antibody that binds to particular sweet spots on the PCSK9 protein and blocks that protein from binding to LDL receptors. In other words, the patent covers a genus defined by how the antibodies work. The patent gives details for 26 example antibodies and specifies how to run further processes to identify others from a pool of potentially thousands or even millions of candidates. However, the patent also goes far beyond those 26 examples, covering any antibody within the broad genus.
One of the rules for a valid patent is that it must enable others to make and use the invention. On Monday the justices will analyze whether Amgen’s broad patent satisfies that rule.
Patent attorneys love to talk about the quid pro quo of patents. Under the bargain, the government grants an inventor a monopoly in the form of a patent. In exchange, the inventor must disclose the invention to the world in terms sufficient “to enable any person skilled in the art … to make and use” the invention. This law, 35 U.S.C. §112(a), is known as the “enablement” requirement, which forms the heart of this dispute.
The enablement requirement allows the public to use the invention after the patent expires. It also ensures that the patent claims only what the inventor has actually invented and described to the public.
A century ago, the Supreme Court clarified that a patent fails the enablement test if a person skilled in the art would have to resort to “painstaking experimentation” or “elaborate experimentation” before being able to make or use the invention. The U.S. Court of Appeals for the Federal Circuit, which hears the nation’s appeals in patent cases, further clarified that the patent must teach how to make and use “the full scope of the claimed invention without ‘undue experimentation.’”
The dispute here
The question here is how to apply the enablement requirement when a patent claims a broad genus of things, this genus is defined by how the things work, and only a small number of the things are likely to work at all.
Sanofi claims that what Amgen did in this case was “claim a lot and disclose a little.” Amgen’s patent covers any monoclonal antibody that binds to particular spots on the PCSK9 protein and successfully blocks the protein. The patent covers many other possibilities beyond the 26 examples it describes (including Sanofi’s infringing antibody, which falls within the scope of Amgen’s patent but is not one of Amgen’s 26 examples). For those other possibilities, the patent explains a process in which a scientist creates antibodies and checks whether they work. Amgen describes this process as “screening”; Sanofi calls it “trial and error.”
Amgen contends that courts should not consider the “cumulative time and effort” that it may take someone to “reach the full scope” of the patent, meaning the effort required to make a complete set of antibodies covered by the patent. Yet Amgen agrees that patents “must reasonably enable the entire scope of the claim” and that the enablement must be “commensurate with the scope of the claims.”
Sanofi, on the other hand, argues that the patent must enable someone “to make the entire invention claimed, not just a subset, without the need for any significant independent experimentation.” It asserts that a patent fails the enablement requirement if the public “cannot predictably produce specific undisclosed embodiments of the claimed invention” without significant trial and error.
In a “friend of the court” brief, the federal government largely sides with Sanofi. the government asserts that a patent fails the enablement requirement if it requires someone “to engage in the same trial-and-error process the inventor undertook to produce her innovation in the first place.”
Will “genus” patents survive?
Although the case is nominally about the test applicable for enablement under 35 U.S.C. § 112, the real question is whether broad “genus” patents will remain viable.
A typical patent may cover one or a small handful of specific devices or methods for doing something. By contrast, a genus patent covers a group of related things, often defined by how the things work. Genus patents are particularly common in the pharmaceutical, chemical, and biotech fields.
In recent years, the Federal Circuit has invalidated almost every genus patent that it faced. A group of law professors published a recent article
reporting that in the past 30 years, only a small minority of genus claims survived the Federal Circuit.
Companies and organizations have lined up on both sides of the issue. Many friend-of-the-court briefs urge the court to rule for Amgen and hold that genus patents pass the enablement test. They argue, among other things, that it makes no sense for the law to require disclosure of things the inventor doesn’t know (for example, to require Amgen to disclose how to make antibodies that Amgen never actually made). Other briefs argue that broad genus patents go too far precisely because they cover things the inventor doesn’t know about.
Is this really a dispute about the meaning of “undue experimentation”?
Several issues lurk in the background in this case. Much of the action seems to stem from the “undue experimentation” limitation. Although both sides fight over the text of 35 U.S.C. § 112, “undue experimentation” is not in the text of the statute at all. Yet both sides embrace that long-settled judicial gloss on the statute.
“Undue experimentation” captures part of the patent bargain. If the inventor made a broad invention and teaches the world how to make and use the broad invention, then the inventor should get a patent with a broad scope. If the inventor made only a narrow invention, and teaches the world about only a narrow set, then the inventor should get only a narrow patent. The patent scope should be commensurate with the invention. If the patent claims a broad invention but discloses only a little, the “undue experimentation” limitation helps to check the proper scope.
A century ago, the Supreme Court faced a similar issue in The Incandescent Lamp Patent
. In that case Thomas Edison was accused of infringing a light-bulb patent that covered filaments made out of any “carbonized fibrous or textile material.” But the patent included only a couple of examples (such as carbonized paper). After months of trial and error, Edison found that bamboo also worked as a filament, but thousands of other materials did not work at all. The Supreme Court did not allow the patentee to have a monopoly over every possible fibrous material because it took significant experimentation to find any other materials within the genus that worked.
In some sense, the background rates of success may affect the “undue experimentation” analysis. In Incandescent Lamp, under 1% of the tested materials actually worked. Even with the patent in hand, it took months of trial and error to find another material that worked. This fact suggests that the inventor did not actually invent a new genus of filaments, but instead invented only the few specific types described in the patent. Consider instead if Edison’s research showed that 50% of tested materials worked. In that scenario, the patent may have survived because a scientist would not have to conduct many experiments before finding another working species within the genus.
Consider also industry norms. Some have criticized Amgen’s disclosure for requiring “trial and error” experimentation, contending that trial-and-error experimentation is “undue experimentation.” Others counter that in monoclonal antibody research, trial-and-error experimentation is customary, and therefore is not “undue experimentation.”
We will know more on Monday about how the justices line up on the question of how much experimentation is “undue” when it comes to patents like this one.