Arguments: Week of February 19, 2018

The Court returns to the bench on Tuesday after four weeks without oral arguments, with two Fifth Amendment cases — Currier v. Virginia, which addresses double jeopardy, and City of Hays, Kansas v. Vogt, involving the right against self-incrimination.

In Currier, the Court must decide whether a defendant who consents to have multiple charges severed into sequential trials loses his right to the issue-preclusive effect of an acquittal under the Double Jeopardy Clause of the Fifth Amendment, which protects anyone from being subject “for the same offense to be twice put in jeopardy of life or limb” – so a defendant cannot be found not guilty of a crime and subsequently charged with the same crime for the same offense by the same government. (The federal government can bring charges if a defendant was acquitted of state charges, and vice versa.)

Mr. Currier was charged with burglary (unlawful entry into a structure with the intent to commit a crime inside that structure), grand larceny (the unlawful taking away of someone else’s personal property with the intent to permanently deprive that person of the property in question), and possession of a firearm as a convicted felon, all based on the same course of conduct and events. He agreed to sever the third charge, and was acquitted of the burglary and grand larceny charges after a jury trial. The Commonwealth of Virginia then charged Mr. Currier with possession of a firearm as a convicted felon. He objected, claiming collateral estoppel (issue-preclusion), which is the doctrine that protects a defendant from being tried for the same issue in more than one trial. Despite his objection, he was tried for the crime and found guilty after a jury trial.

Speaking in support of Mr. Currier, the CATO Institute filed an amicus curiae brief arguimg that “in today’s world of ever-expanding criminal codes and regulatory regimes, the government needs fewer, not greater, incentives for piling on theories of criminal liability.” For a summary of the Cato Institute’s brief, click here; to read the brief itself, click here.

On the other side, Indiana and several other states filed an amicus curiae brief arguing that Mr. Currier’s conviction should stand because finding otherwise could undermine efforts to protect defendants from unfair prejudice. Specifically, severing the charges Currier faced meant that in his burglary and larceny trial, the jury did not learn that he was a convicted felon. Under the double jeopardy rule Currier seeks, however, that protection might be unavailable because all the charges would have to be tried at the same time. Thus, if the Court finds in favor of Mr. Currier, it may deter the use of severance to protect a defendant from having the jury learn potentially prejudicial information. To read the states’ brief, click here.

On Tuesday, the Court will also hear City of Hays, Kansas v. Vogt, involving the self-incrimination clause of the Fifth Amendment. This right against self-incrimination allows a defendant to refuse to divulge information that could be used against him in a criminal prosecution. The Court is being asked to decide whether this clause is violated when a defendant’s self-incriminating statements are used not at a criminal trial, but at a probable cause hearing. (A probable cause hearing happens when a defendant is charged, and requires a judge to determine whether, using the probable cause standard, there is a reasonable basis for charging the defendant with the crime.

The defendant, Mr. Vogt, was a police officer in the City of Hays and had applied for a position with the police department in the City of Haysville. During his interview for that position, he admitted that he had kept a knife that he acquired during his time working for the City of Hays. The City of Haysville offered Mr. Vogt a job with them, conditional upon him returning the knife to the City of Hays. The City of Hays police chief then began investigating Mr. Vogt, uncovered additional evidence, and eventually asked the Kansas Bureau of Investigation to begin a criminal investigation into the defendant. Mr. Vogt was eventually charged with two offenses stemming from his possession of the knife. The charges were dismissed after the judge determined that the government lacked probable cause to bring them. Mr. Vogt then brought a federal lawsuit alleging that the use of his compelled statements to begin an investigation that uncovered additional evidence, that then led to a criminal investigation resulting in criminal charges, and that ultimately supported the prosecution during the probable cause hearing, violated his right against self-incrimination under the Fifth Amendment.

The National Association of Criminal Defense Lawyers (NACDL) and American Civil Liberties Union (ACLU) filed an amicus curiae brief in support of Mr. Vogt, which is discussed in this article on the ACLU website (for the brief itself, click here). They argue that the self-incrimination clause applies to all preliminary hearings, provided such hearings are held after the initiation of criminal charges, and that the clause plays a vital role in the fair administration of justice. By using Mr. Vogt’s involuntary statements against him and effectively forcing him to be a “witness against himself,” they argue, the state was attempting to pressure Mr. Vogt into pleading guilty before he got a chance to vindicate his rights. (As Rory Little at SCOTUSblog explains, “a controversial 1967 decision, Garrity v. New Jersey,” held “that incriminating employee statements required by public employers as a condition of employment are “compelled” within the meaning of the Fifth Amendment.”)

On the other side of this issue is an amicus curiae brief filed by the Criminal Justice Legal Foundation (CJLF) arguing that Mr. Vogt’s Fifth Amendment rights were not violated (to read the brief, click here). CILF argues that using a compelled statement to locate physical evidence is not a violation of the Fifth Amendment because someone who merely tells authorities where physical evidence is located is not a “witness.” They further argue that the government needs and has broad power to compel people to tell them what they know about crime. Further commentary on the case can be found in this Hays Daily News article.

On Wednesday the Court will hear arguments in Rosales-Mireles v. United States, which presents the question of whether, for a Court of Appeals to correct a plain forfeited error, the district court ruling must be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of Justice, or seriously call into question the competence or integrity of the district judge.”

Florencio Rosales-Mireles pleaded guilty to illegal re-entry. His probation officer mistakenly counted a 2009 Texas misdemeanor assault conviction twice. That error led to an inaccurate guideline range of 77-96 months, longer than the correct range of 70-87 months. The district court sentenced Rosales-Mireles to 78 months. Rosales-Mireles’ lawyer did not detect the mistake.

The Fifth Circuit Court of Appeals ruled that a district court’s error must have the aforementioned qualities to be reversible under the standard the Supreme Court set forth in the 1993 case United States v. Olano. The Court held in Olano that, under the fourth prong of plain error review, “[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

Evan Lee writes in SCOTUSblog that the government’s brief makes the policy argument that errors should be corrected only in exceptional cases, in order to give defendants sufficient incentive to raise all objections in a timely manner.

Also Wednesday, the Court will hear arguments in Dahda v. United States, which addresses whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

Twin brothers, Los and Roosevelt Dahda, were indicted on charges of conspiracy to acquire and distribute marijuana. Police obtained much of the evidence against the Dahdas, who are twin brothers, through wiretaps of cell phones used by the co-conspirators, including the Dahdas. The wiretaps arose out of nine orders that a federal district court in Kansas issued. Before the trial, the Dahdas moved to suppress the information obtained from the wiretaps on the grounds that the wiretap orders exceeded the district court’s territorial jurisdiction. The trial court rejected that argument, and both were found guilty and sentenced.

The Tenth Circuit upheld the trial court’s decision. Although the court of appeals agreed that the wiretap orders exceeded the district court’s territorial jurisdiction, it held that such defect did not “directly and substantially affect a congressional intention to limit wiretapping.” The court identified two “core concerns” of Title III of the Omnibus Crime Control and Safe Streets Act of 1968—privacy and uniformity—that the Dahdas’ argument did not address. (Justice Gorsuch recused himself from the certiorari decision last year. He sat on the Tenth Circuit panel that heard the case, although he was not part of the rendered decision.)

Richard M. Re, writing for SCOTUSblog, writes that the government will argue, among other things, that the order at issue resulted from a reasonable error of statutory interpretation. This argument, he writes, will pose a conflict between two of the Supreme Court’s recent passions: strict adherence to statutory texts and curbing the exclusionary rule.

This post was written by ISCOTUS Fellows Zoe Arthurson-McColl and Bridget Flynn, Chicago-Kent Classes of 2020 and 2019 respectively, and was edited by Anna Jirschele, ISCOTUS editorial coordinator and Chicago-Kent Class of 2018. ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro oversaw the post.

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