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March 26, 2023

A SCOTUS week full of federal criminal case oral arguments

In addition to a schedule for the coming week that includes issuing orders (on Monday) and opinions (on Tuesday), the Supreme Court has six oral arguments on its calendar.  Four of those cases are federal criminal matters, and here are the basics with the help of SCOTUSblog:

Monday 3/27

United States v. Hansen --- Issue: Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.


Tuesday 3/28

Lora v. United States --- Issue: Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).

Smith v. United States --- Issue: Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the U.S. Courts of Appeals for the 5th and 8th Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the U.S. Courts of Appeals for the 6th, 9th, 10th and 11th Circuits have held


Wednesday 3/29

Samia v. United States --- Issue: Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the confrontation clause of the Sixth Amendment.

March 26, 2023 at 11:05 PM | Permalink


I'm seeing Hansen and Samia as the big cases.

It is somewhat easier to see what an opinion might say that favors the government in Hansen -- a narrow construction of the statute to avoid any chilling effect on constitutionally-protected speech -- with a conclusion that aiding and encouraging criminal conduct is not protected speech. The opinion that favors Hansen is a little bit harder to see -- specifically how the Supreme Court would distinguish this statute from traditional accomplice liability statute. For practitioners, it is the opinion that favors Hansen that could have broad implications (and a lot of unintended consequences) that will require us to rethink what we thought we knew about accomplice liability.

While federal courts tend to try joint cases more often than state cases do, Samia will have an impact on what needs to be done in joint cases to work around the Bruton/Confrontation Clause issues that arise from wanting to introduce one defendant's confession. When considering whether joint trials is a good idea in a specific case, one issue is what is lost in terms of using the defendant's admissions, and right now the law is very unclear on what needs to be done. Hopefully, the Supreme Court will give clear guidance. My fear is that we get a splintered court and are left with a plurality opinion that leaves the law unclear.

Posted by: tmm | Mar 27, 2023 10:46:09 AM

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