Petition Raises Split on Ex Post Facto Clause

The following post was written by Duncan Stevens, an associate in the litigation department at the Akin Gump office in Washington, D.C.

Last Thursday, we filed this cert petition in Sanchez-Aran v. United States (docket number pending), which addresses a split of authority among the circuits on the meaning of the Ex Post Facto Clause. The defendant was convicted of bank fraud under 18 U.S.C. § 1344, a statute that became law on October 12, 1984; the conduct charged as bank fraud in the indictment began in 1980 and continued to 1990. The jury was not instructed on the enactment date of the statute, however, and entered a general verdict convicting the defendant of two counts of bank fraud. The defendant appealed, arguing that the possibility that the jury relied exclusively on pre-enactment conduct required reversal of his convictions.

The First Circuit affirmed, finding no plain error and holding that the existence of substantial post-enactment evidence negated any harm to the defendant. That decision marked a split with the Second, Third, Seventh and D.C. Circuits, which had held that the possibility, even if remote, that a jury relied exclusively on pre-enactment acts required vacatur. Two state supreme courts (Mississippi and Washington) have also sided with those circuits. The Fourth, Sixth, Ninth and Eleventh Circuits, by contrast, have held that as long as the record contains substantial post-enactment evidence, a conviction for an offense that spanned the enactment date may be affirmed even if the jury was not instructed on the enactment date. The First Circuit’s analysis in this case tracked the latter circuits’ standard.

Our co-counsel in the case is Mark Rochon, of the law firm Miller & Chevalier Chartered, in Washington, D.C.