Greetings, Court fans!
We’re back to summarize the Court’s criminal decisions from this week. The defendants did not fare too well – not only did they lose, the Court declined even to address the questions presented.
The first was United States v. Resendiz-Ponce (05-998), which concerned a Mexican national’s conviction for illegally attempting to reenter the United States. The Ninth Circuit set aside the conviction on the ground that his indictment failed to allege a critical element of the offense – an overt act that he committed in trying to reenter the country. The government successfully sought cert on the issue of harmless error (there was no dispute that the defendant really did try to reenter), but in the end the Court did not reach that question. Instead, led by Justice Stevens, it held 8-1 that the indictment was not defective in the first place because it alleged that the defendant “attempted” to renter the United States at a specific date and time. The word “attempt” long has connoted both an intention and an overt action, and further specificity was not necessary; also, the reference to time gave the defendant fair notice of the alleged offense and protected him against multiple prosecutions for the same crime. Justice Scalia dissented on the ground that the Court has always required an indictment to allege all elements expressly. Even if “attempt” did imply both intention and action (which Scalia strongly disputed), those implications would not be enough. Instead, the government must allege that the defendant took “a substantial step” toward reentering the United States – although Scalia would not require the government to be more specific than that. (Stevens thought Scalia’s position, while “principled,” would not mean much in real life, as “took a substantial step toward reentering” doesn’t say much more than “attempted to reenter”).
The last opinion of the week was Burton v. Stewart (05-9222), a unanimous per curiam ruling in which the Court declined to decide whether its 2004 ruling in Blakeley v. Washington (that all facts supporting a criminal sentence must be proved to the jury) was a new rule of law and whether it applied retroactively on habeas review. Burton had challenged his sentence on Blakely grounds, but the Ninth Circuit held that Blakely, while new, did not apply retroactively. The Court granted cert, but on further review realized that Burton’s habeas petition was his second challenge to his confinement. Under federal law, an inmate must get permission from the Court of Appeals to file a second or “successive” petition, but Burton had not even bothered to ask. Therefore, the federal courts did not have jurisdiction to hear his claim.
That’s it for the opinions, but we do have one last item from Monday’s order list. The Court invited the SG to weigh in on the cert petition in Rowe v. New Hampshire Motor Transport Ass’n (06-457), which asks the following questions: (1) Whether the Federal Aviation Administration Authorization Act of 1994 . . . preempts states from exercising their historic public health police powers to regulate carriers that deliver contraband such as tobacco and other dangerous substances to children. (2) Whether the FAAAA [yes, the FAAAA] preempts states from exercising their historic public health police powers to require shippers of contraband such as tobacco and other dangerous substances to utilize a carrier that provides age verification and signature services to ensure that such substances are not delivered to children.
We may get another order list tomorrow; otherwise, there shouldn’t be more news until Tuesday, when the Court returns for more arguments. Until next time, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400