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No. 08-1341

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

GLENN MARCUS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

ELENA KAGAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

In the Supreme Court of the United States

 

No. 08-1341

UNITED STATES OF AMERICA, PETITIONER

v.

GLENN MARCUS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

 

In this case, the Second Circuit held that a reviewing court must grant relief on a forfeited ex post facto claim "whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre- enactment conduct." Pet. App. 10a. The court further con cluded that this standard was satisfied because the govern ment's evidence of pre-enactment conduct, standing alone, would have been legally sufficient to support a conviction. Id. at 8a-9a. Respondent denies that this decision conflicts with this Court's established precedent governing plain- error review or with the decisions of other circuits. He also argues that this Court should not grant the petition for a writ of certiorari, vacate the court of appeals' judgment, and remand for further consideration (GVR) in light of Puckett v. United States, 129 S. Ct. 1423 (2009), because Puckett does not alter the existing standards for plain-error review and because "a uniform national rule is not required for this procedural issue." Br. in Opp. 24. None of those contentions has merit, and the Court should GVR in light of Puckett so that the Second Circuit can bring its precedent on plain-error review of asserted ex post facto violations into alignment with this Court's jurisprudence.

A. The Second Circuit's Decision Conflicts With This Court's Decisions

Respondent is correct (Br. in Opp. 12) that the Second Circuit began its discussion by reciting the four-factor test articulated in United States v. Olano, 507 U.S. 725 (1993). Pet. App. 6a. But the court of appeals' analysis of the plain-error issue (id. at 8a-9a) departed from the Olano factors in favor of the separate test set forth in United States v. Torres, 901 F.2d 205 (2d Cir.), cert. denied, 498 U.S. 906 (1990)-which was decided three years before Olano and "did not apply [this Court's] current four-part plain error analysis." Pet. App. 14a (concurring opinion). The court did not explain how Torres's approach can be squared with either Olano or the Court's subsequent deci sions in Johnson v. United States, 529 U.S. 694 (2000), and United States v. Cotton, 535 U.S. 625 (2002). Indeed, as the two concurring judges explained (Pet. App. 14a), the Sec ond Circuit has "never directly addressed" that issue in any of its post-Olano decisions.

The petition for a writ of certiorari challenges the court of appeals' view, based on Torres, that reversal is required "whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre- enactment conduct." Pet. App. 10a. Respondent is wrong to assert that the Second Circuit's error in this case "mere ly consists of the misapplication of a properly stated rule of law," Br. in Opp. 15, and that the issue presented by this petition for a writ of certiorari is "factually intens[ive]," id. at 24. As the petition explained, the relevant legal rules in this context are that: (1) "a defendant may not obtain relief on a forfeited claim 'where there is no reasonable possibil ity that' the unobjected-to error 'had an effect on the judg ment,'" Pet. 11 (quoting Pet. App. 14a (concurring opin ion)); and (2) even when a defendant has shown a clear er ror affecting substantial rights, the court must engage in "an additional, case-specific inquiry" into whether relief is necessary to protect the fairness, integrity, or public repu tation of judicial proceedings. Pet. 17. Those are not the rules the panel applied in this case. To the contrary, the panel expressly declined to consider the government's ar gument that there was only "a 'remote possibility' that the jury relied exclusively on pre-enactment conduct." Pet. App. 10a. The panel also attached no significance to the concurring judges' observation that respondent's conduct with respect to the forced labor count "was materially indis tinguishable before and after the enactment of the" rele vant statute. Id. at 18a. Instead, the panel concluded that respondent's forced labor conviction "must be vacated" solely because the government's evidence of pre-enactment conduct would have been legally sufficient to support a con viction. Id. at 9a (emphasis added); see id. at 8a-10a.1

Respondent asserts that "a uniform national rule is not required for this procedural issue," Br. in Opp. 24, and that the Second Circuit "did not abuse its discretion" in granting relief in this case, id. at 13. But Congress and this Court have determined that a uniform rule is warranted by pro mulgating Federal Rule of Criminal Procedure 52(b), which, like the rest of the Criminal Rules, "govern[s] the proceedings in all criminal proceedings in * * * the United States courts of appeals." Fed. R. Crim. P. 1(a)(1) (emphasis added).2 And this Court's decisions establish that courts of appeals have no free-standing "discretion" to correct a forfeited error absent compliance with the stan dards described in this Court's decisions. See, e.g., Cotton, 535 U.S. at 631 (stating that a court "may * * * exercise its discretion to notice a forfeited error * * * only if" all four requirements set forth in Olano are satisfied) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)) (empha sis added).

B. The Circuit Conflict Is Real

1. Respondent does not deny that the court of appeals' decision in this case conflicts with the Seventh Circuit's decision in United States v. Julian, 427 F.3d 471 (2005), cert. denied, 546 U.S. 1220 (2006). Instead, respondent suggests (Br. in Opp. 21 n.21) that Julian is irrelevant be cause it "predates the [Seventh Circuit's subsequent] deci sion in" United States v. Pitre, 504 F.3d 657 (2007). But Pitre does not mention, much less disavow, Julian, and the error at issue in Pitre (a failure to provide a criminal defen dant with an opportunity to address the court before a sen tence was pronounced) differs significantly from the sort of ex post facto violation that respondent asserts here. See id. at 661-663. In addition, Pitre ultimately denied relief under Olano's fourth prong after conducting precisely the sort of case-specific inquiry that the Second Circuit should have conducted but failed to undertake here. See id. at 663 (con cluding that, "on the facts of this case," the district court's failure to grant the defendant her right to allocute "did not seriously affect the fairness, integrity or public reputation of her revocation proceedings").

Respondent also fails to refute the conflict with the First and Fifth Circuits. As the petition for a writ of certio rari explained (see Pet. 13-14), the First Circuit's decision in United States v. Muñoz-Franco, 487 F.3d 25, cert. de nied, 128 S. Ct. 678, 128 S. Ct. 679, and 128 S. Ct. 682 (2007), was not based on the "overwhelming" nature of the government's evidence of post-enactment conduct. Br. in Opp. 23. To the contrary, the Muñoz-Franco court denied relief because there was "nothing to differentiate [the defen dants'] pre-enactment conduct from subsequent conduct" and because it was "implausible that the jury would" have credited only the parts of the testimony of a key govern ment witness that dealt with pre-enactment conduct. 487 F.3d at 57-58 (emphases added). The Fifth Circuit likewise did not describe the evidence of post-enactment conduct as "overwhelming" in United States v. Todd, 735 F.2d 146 (1984), cert. denied, 469 U.S. 1189 (1985). Instead, the court observed that the record "clearly establishe[d] viola tions of the amended act by the appellants" during the post- enactment period, and noted that "[m]ost of the evidence focused on events that occurred" after that date. Id. at 150 (emphasis added).

Even if respondent's characterizations of Muñoz- Franco and Todd were correct, the conflict would remain. Respondent asserts that those decisions "found that the evidence relating to the defendants' post-enactment con duct was so overwhelming that no reasonable jury could have convicted the defendant based solely on pre-enact ment conduct." Br. in Opp. 23 (emphasis added). But that is precisely the sort of inquiry-one that looks to the weight of the pre- and post-enactment evidence and seeks to dis cern what a reasonable jury might and might not have done-that the Second Circuit expressly refused to under take here. See Pet. App. 10a (declining to consider the gov ernment's argument that there was only "a 'remote possibil ity' that the jury relied exclusively on pre-enactment con duct").

Respondent suggests (Br. in Opp. 23) that this case stands in contrast to Muñoz-Franco and Todd because here, unlike in those cases, "there were substantial differ ences between the pre- and post-enactment evidence" and "there is a real possibility that the jury only credited [the victim's] testimony relating to pre-enactment conduct." That claim provides no basis for declining to remand this case so that the Second Circuit can conform its law to this Court's decisions, and then apply the correct standard to the facts. As the petition for a writ of certiorari explained (see Pet. 6-7), the two concurring judges-whose votes were necessary to support the judgment-expressly dis agreed with petitioner's assessment of the record. See Pet. App. 11a, 17a-18a (stating that the identification of the proper standard for reviewing respondent's forfeited ex post facto claim "affects the outcome of this appeal" be cause, with respect to respondent's forced labor conviction, the "relevant conduct was materially indistinguishable be fore and after the enactment of the statute"). And peti tioner never offered his current account of the evidence in the court below. See Pet. C.A. Letter Br. (Jan. 18, 2008) (filed in response to court's questions concerning ex post facto issues). The court of appeals should thus address those case-specific issues in the first instance.

2. The Second Circuit's decision is also diametrically opposed to the Eleventh Circuit's unpublished decision in United States v. Paulin, No. 08-13124, 2009 WL 1459700 (May 27, 2009) (per curiam), which was issued after the petition for a writ of certiorari was filed. As in this case, the defendant in Paulin was charged with violating the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), Pub. L. No. 106-386, 114 Stat. 1464, the government pre sented evidence at trial about the defendant's conduct both before and after the effective date of the TVPA, and the defendant argued for the first time on appeal that her con viction violated the Ex Post Facto Clause. Paulin, 2009 WL 1459700, at *1. The Eleventh Circuit denied relief un der the plain-error standard. Unlike in this case, the Paulin court did not ask whether the evidence of pre-enact ment conduct, standing alone, would have been legally suffi cient to support a conviction. Instead, it affirmed the defen dant's conviction because it had "no doubt that the jury would have decided the case the same way if the evidence had been limited to [the defendant's] conduct after * * * the effective date of the TVPA." Id. at *2 (internal quota tion marks and citation omitted). Although non-preceden tial, the Eleventh Circuit's approach reinforces the settled principle that plain-error review precludes reversal based only on a theoretical possibility of prejudice. And that rule serves the interests of courts, the community, witnesses, and victims in avoiding retrials when the error had no effect on the outcome.

C. A GVR In Light Of Puckett Is Appropriate

The government agrees with respondent that Puckett v. United States, 129 S. Ct. 1423 (2009), does not fundamen tally change the nature of review under the plain-error standard. See Pet. 7-8 (stating that Puckett "reaffirmed several bedrock propositions about the nature of plain-er ror review"). But the additional conflict between the Sec ond Circuit's decision in this case and this Court's pre- Puckett decisions (see Pet. 8-12) does not lessen the appro priateness of a GVR in light of Puckett. To the contrary, the Court frequently enters GVR orders in the wake of decisions that could be viewed as simply restating and clari fying pre-existing law. See, e.g., Knowles v. Mirzayance, 549 U.S. 1199 (2007) (GVR'd in light of Carey v. Musladin, 549 U.S. 70 (2006), which addressed the standards for de termining whether a state court's decision "was contrary to, or involved an unreasonable application of, clearly estab lished Federal law" for purposes of 28 U.S.C. 2254(d)(1)); Barnette v. United States, 546 U.S. 803 (2005) (GVR'd in light of Miller-El v. Dretke, 545 U.S. 231 (2005), which in volved the proper application of Batson v. Kentucky, 476 U.S. 79 (1986)); Synder v. Louisiana, 545 U.S. 1137 (2005) (same); Kandies v. Polk, 545 U.S. 1137 (2005) (same); Hightower v. Schofield, 545 U.S. 1124 (2005) (same); Walker v. True, 540 U.S. 1013 (2003) (GVR'd in light of Wiggins v. Smith, 539 U.S. 510 (2003), which applied the test for ineffective assistance of counsel first stated in Strickland v. Washington, 466 U.S. 668 (1984)); Grant v. Oklahoma, 540 U.S. 801 (2003) (same). At any rate, respon dent does not attempt to explain how the Second Circuit's "any possibility" standard can be squared with Puckett's statement that a defendant cannot satisfy his "usual burden of showing prejudice" under the third prong of plain-error review when the defendant "likely would not have" been better off in the absence of the relevant error. See Pet. 17 (emphasis omitted) (quoting Puckett, 129 S. Ct. at 1432- 1433).

Respondent also notes (Br. in Opp. 20) that "several members of this Court have criticized overly expansive uses of GVR orders." But that controversy has no relevance here. Even the Justices who have objected to certain GVRs have acknowledged that a GVR is appropriate "where an intervening factor has arisen [e.g., new legislation or a re cent judgment of this Court] that has a legal bearing upon the decision." Youngblood v. West Virginia, 547 U.S. 867, 871 (2006) (Scalia, J., dissenting) (citation omitted). Puckett is such an "intervening factor" because it was issued more than seven months after the panel's decision in this case. And because there is at least "a reasonable probability" that the panel would reach a different result were this Court to remand for further consideration in light of Puckett, a GVR is appropriate. See Lawrence v. Chater, 516 U.S. 163, 166-167 (1996) (per curiam).3

* * * * *

For the foregoing reasons, and those stated in the peti tion for a writ of certiorari, the petition for a writ of certio rari should be granted, the judgment of the court of appeals should be vacated, and the case should be remanded for further consideration in light of Puckett v. United States, 129 S. Ct. 1423 (2009). In the alternative, the petition for a writ of certiorari should be granted and the case should be set for full briefing and argument.

Respectfully submitted.

ELENA KAGAN
Solicitor General

JULY 2009

1 Contrary to petitioner's contention, the government has never "concede[d]" that the jury's verdict may actually have been based on pre-enactment conduct alone. Br. in Opp. 14 (emphasis omitted); see id. at 2, 19. Instead, the government has acknowledged only that the evi dence of pre-enactment conduct, standing alone, would have been suf ficient to support a conviction. Pet. App. 8a-9a (quoting government's brief). That is not sufficient to support reversal under a proper ap plication of plain-error review. Even if the evidence of pre-enactment conduct would have been sufficient, a conviction should be affirmed if, in light of the post-enactment evidence, there is no reasonable probabil ity that the jury actually relied exclusively on pre-enactment conduct.

2 In contrast, this Court's decision in Ortega-Rodriguez v. United States, 507 U.S. 234 (1993) (see Br. in Opp. 24), involved an issue- whether a criminal defendant who flees while his case is pending for feits his statutory right to appeal-that was not directly addressed by a statute or federal rule. See id. at 244 (noting that the particular fugitive-dismissal rule at issue in that case had been promulgated by the Eleventh Circuit in its "supervisory capacity").

3 The government agrees with respondent with respect to one point, however. If the Court were to conclude that the court of appeals' decis ion conflicts with the decisions of this Court or other circuits, but that this Court's pre-Puckett decisions were sufficiently clear to prevent Puckett from constituting an "intervening" decision for purposes of granting a GVR, then the Court should grant the petition for a writ of certiorari and schedule the case for full briefing and argument. See Br. in Opp. 25.