RELIST WATCH

Plea bargaining and a high-profile separation-of-powers case

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 will meet this Friday for the first time in nearly a month to consider whether to grant review in new cases. But before we head on to new business, a few words on the cases it considered at the court’s last conference on Jan. 20. The court denied review to Monica Toth on her claim that the $2,173,703 civil penalty she was forced to pay for failing to disclose a foreign bank account she inherited from her father was unconstitutionally excessive under the Eighth Amendment. But she got the attention of Justice Neil Gorsuch, who dissented from the court’s denial of review, writing that the court of appeals decision upholding the penalty was “difficult to reconcile with our precedents.”

One other curious thing about our last installment’s relists: There were five petitions challenging the constitutionality of sentencing criminal defendants based on conduct the jury acquitted them of committing. Those cases are just sitting there on the court’s docket, with no further action by the Supreme Court since it distributed them for the Jan. 20 conference. The court generally doesn’t announce what it’s doing with pending petitions, so we have no choice but to speculate here. But near as we can tell, the court appears to be holding those cases to see whether the U.S. Sentencing Commission acts on a pending proposal to place restrictions on federal courts’ consideration of acquitted conduct at sentencing. One of the five petitioners, Dayonta McClinton (whom I represent), argues that the Sentencing Commission’s proposal is woefully inadequate to resolve the issue, but it still may explain the court’s inaction. Things may become clearer down the road.

That brings us to new business. There are 423 petitions and motions pending on the Supreme Court’s docket for this Friday’s conference. Two of those cases are newly relisted. This first one will take a while. Make a fresh pot of coffee and I’ll meet you back here in five minutes.

Ready? In 1993, attorney Steven Donziger filed a class-action lawsuit in the U.S. District Court in Manhattan on behalf of Ecuadorian plaintiffs against Chevron Corporation, alleging a predecessor company had polluted the Amazon rainforest. The litigation was later transferred to Ecuadorian courts, which entered an $8.6 billion judgment against Chevron.

Fast forward to 2011. Chevron countersued Donziger in the same court alleging he had procured the Ecuadorian judgment through bribery and fraud. The court resolved those claims in favor of Chevron, finding that Donziger “had engaged in a veritable smorgasbord of corruption and fraudulent acts,” such as “submitting false evidence” and “bribing the judge.” The court imposed a constructive trust for Chevron’s benefit on the assets Donziger had received as a result of the Ecuadorian judgment. The U.S. Court of Appeals for the 2nd Circuit affirmed.

In the years that followed, Donziger allegedly evaded discovery orders designed to prevent him from shielding his assets from Chevron. The district court held Donziger in civil contempt and imposed monetary penalties. In 2019, the district court ordered Donziger to show cause why he should not be held in criminal contempt for failing to comply with the court’s judgment and subsequent orders. The court referred the matter to the local U.S. Attorney’s Office, which “respectfully declined” to prosecute the case.

The district court then appointed three private attorneys as special prosecutors in accordance with Federal Rule of Criminal Procedure 42, which authorizes a court to “appoint another attorney to prosecute [a] contempt” if the government declines to do so. The court transferred the contempt proceedings to a different judge for trial. On the first day of the bench trial, Donziger moved to dismiss the charges on the theory that the court’s appointment of the special prosecutors violated the appointments clause of Article I of the Constitution. The clause empowers the president to appoint officers with the advice and consent of the Senate, but permits Congress to vest the appointment of “inferior officers” in the president alone, the courts of law, or the heads of departments. Donziger argued that court-appointed special prosecutors were inferior officers improperly acting without the supervision of any principal officers. The district court concluded that Donziger had forfeited his challenge by not bringing it until the first day of trial, and also ruled against him on the merits, holding that all that matters is that a superior officer “have the discretion to review” the decisions of inferior officers, not that the superior officer actually do so. The district court then found Donziger guilty on all six counts of criminal contempt.

The 2nd Circuit affirmed. Although the U.S. government had submitted an amicus brief arguing otherwise, the court of appeals agreed with Donziger that the special prosecutors were officers within the meaning of the appointments clause. But the court of appeals concluded it was enough that the attorney general retained “the authority to supervise” the special prosecutors, and it was “beside the point” whether the attorney general had actually exercised that authority The court of appeals also rejected Donziger’s argument, raised for the first time on appeal, that Rule 42 violates the portion of  … appointments clause providing that “Congress may by law vest the Appointment of inferior officers … in the courts of law.” The court held that Donziger had forfeited that claim by failing to raise it in district court, and held it was not plain error that the clause did not encompass procedural rules adopted by courts under the Rules Enabling Act. Judge Steven Menashi dissented, concluding that Donziger had preserved his claims, held that Rule 42 did not count as a “law” within the meaning of the appointments clause, and held that the courts lacked “inherent judicial authority” to appoint special prosecutors.

Before the Supreme Court, Donziger is represented by an all-star team comprising lawyers from both the political left and the right, and he draws support from perhaps the most niche law-school clinic ever, the Antonin Scalia Law School’s “Separation of Powers Clinic.” The petition notes that when the Supreme Court, several decades ago, endorsed the practice of appointing private attorneys to try criminal contempts, the court assumed that such prosecutors exercised judicial, not executive, power. Justice William Brennan delivered the opinion of the court. Justice Antonin Scalia disagreed with that assessment, writing that the prosecution of contempts aside from those necessary to protect the court’s ability to function was not an exercise of the judicial power, but executive power. Donziger argues that the Supreme Court then promulgated the current version of Rule 42 to reflect that understanding. But the 2nd Circuit concluded that such private special prosecutors are inferior executive officers whose interbranch appointment must comport with the appointments clause. The petition contends that Scalia’s view, rather than Brennan’s view, has taken root in current case law. The petition asks whether Rule 42 special prosecutors are inferior executive officers or rather exercise judicial power; and if so, whether such appointments violate the appointments clause.

The second new relist, Davis v. United States, is far more conventional. Petitioner Quartavious Davis was sentenced to 159 years of imprisonment for a series of seven Hobbs Act robberies he committed over a two-month period when he was 18 and 19 years old. Although Davis went to trial, his five co-defendants all pleaded guilty and received much shorter sentences. Davis argues that his attorney rendered ineffective assistance by failing to pursue and negotiate a plea agreement with the government, and by failing to render adequate advice to him regarding whether to plead guilty or go to trial. Davis contends he would have pleaded guilty if he had been advised properly. Although the court of appeals concluded Davis could not show prejudice absent an allegation that the government had offered him a plea deal, Davis contends it was enough to show that his similarly situated co-defendants were able to negotiate plea agreements, suggesting that there is no reason the government would not have been willing to extend Davis the same benefits.

We’ll find out soon what the Supreme Court thinks about all of these relists. If the cases are granted, they will likely be the first grants of upcoming October Term 2023.

Until next time, stay safe!

New Relists

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 conference)

Davis v. United States, 22-5364
Issue: Whether a criminal defense attorney provides prejudicially ineffective assistance of counsel by failing to initiate plea negotiations with the prosecutors where such negotiations would be likely to yield a substantially better outcome for the defendant than would going to trial or, instead, whether counsel’s plea-negotiation obligation arises only if the prosecutors first initiate plea negotiations and make a plea offer.
(rescheduled before the Jan. 6 and Jan. 13 conferences; relisted after the Jan. 20 conference)

Returning Relists

City of Ocala, Florida v. Rojas, 22-278
Issue: Whether psychic or emotional offense allegedly caused by observation of religious messages is an injury sufficient to confer standing under Article III of the Constitution, including where the offended party deliberately seeks out the exposure in question.
(relisted after the Jan. 13 and Jan. 20 conferences)

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)