Is it Structural Error to Charge Elements by Implication?

United States v. Resendiz-Ponce

Juan Resendiz-Pince, a Mexican citizen, had previously been deported, and tried to re-enter the United States by displaying photo ID and saying that he was a legal resident. When he was charged with the attempt to reenter as a removed alien the indictment failed to allege any specific overt act that he undertook. The question here is whether that failure is subject to harmless-error analysis, but the one resolved is the limits of the requirement that each element of a crime must be alleged.

At common law an attempt to commit a crime must have been accompanied by some “open deed tending to the execution of his intent,” today referred to as an “overt act” constituting a “substantial step” toward the completion of the crime. The Government argues that the allegation that Resendiz-Pince “attempted to enter the United States” implicitly alleged an overt act. The Court notes that the term “attempt” implies action, both in contemporary parlance, and specifically as a term of art in the law. In Hamling v. United States the Court declared that an indictment must contain the elements of the offense such that it (1) fairly inform a defendant of the charge against which he must defend, and (2) enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Here, the allegations in the indictment that included the time and date of the offense fulfilled the requirements. Similarly, there are many cases, the Court argues, where simply parroting the language of a federal statue would be insufficient, but where it would be sufficient when coupled only with description of the circumstances (e.g. lying to congress). This ruling, the Court argues, is bolstered by the concept of a rule in 1872, and today embodied in the Federal Rules of Civil Procedure, that an indictment should not be dismissed for formalistic or procedural reasons unless it prejudices the defendant.

Justice Scalia, dissenting, argues that attempt means both an intent and an action, and that the Government must, therefore, “fully, directly, and expressly, without any uncertainty or ambiguity” (U.S. v. Carll) allege both. In any case, he argues, a reasonable grand juror has no more reason to believe that “attempt” connotes a “substantial step” than some more minor, and legally insufficient, act. Scalia also contests the definiteness that the Court attributes to the word “attempt” as a legal term of art. By the logic of the Court, he argues, the words “knowingly and intentionally” are superfluous here, as would be “malice aforethought” in a trial for murder.

As the only Justice to find the indictment insufficient, Justice Scalia is the only Justice to reach the question of harmless-error analysis. Justice Scalia would find the error to be structural and therefore not amenable to harmless-error analysis.

Do Administrative Proceedings Count?

BP America Production Co. v. Burton

The US Government can lease out public land for energy development, for a fee of course, through Minerals Management Service (MMS). The companies to which the land is leased is required to calculate the royalties and pay them, but may be audited. If MMS determines that the companies have underpaiad it will issue an order for payment (which carries a $10,000 per day fine), which can be appealed to the head of the MMS. In 1982 Congress enacted a law revising the accounting processes and directing the Secretary of the Interior to “audit and reconcile, to the extent practicable, all current and past lease accounts…” Then, in 1996, Congress enacted a prospective statute of limitations for any “judicial proceeding or demand” for royalties arising under a federal oil or gas lease and covering “every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or in fact” and barring it unle4ss “the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings…” The question here is whether this statute of limitations governs MMS administrative payment orders concerning pre-1996 production.

For years Amoco calculated royalties based on the value of the gas when it was pumped, but in 1996 MMS directed Amoco to calculate royalties based on the value of the gas after it was treated, and to pay additional royalties for the period of 1989 to 1996. On appeal the Assistant Secretary of the Interior held that the statue of limitations was inapplicable.

The statute of limitations applies to any “action for money damages,” commenced by filing a “complaint,” and the statute runs from the point when a “right of action accrues.” These terms by definition apply in the context of a judicial proceeding, and not necessarily in the context of an administrative proceeding. A “right of action” is defined as “the right to being suit; a legal right…” where “suit” means “any proceeding … in a court of justice.” “Complaint[s]” are filed in judicial, not administrative, proceedings (these laws were, after all, written by lawyers). Petitioners cite many cases where they argue the word “action” encompasses administrative proceedings, but the Court dismisses these because in each instance the word is somehow qualified either directly or implicitly. Similarly, the few cases where the term “complaint” is applied to administrative proceedings is discarded because, in any case, a complaint in that context imposes no legal obligation and because statutes of limitations are generally construed narrowly.

Also, to the argument that a section explicitly providing for “administrative offset[s]” (which is, as far as I can tell, a mechanism whereby the Government withholds payment of a debt to recoup payment that another party owes) the Court points out that the section at issue here was added 16 years later, and in response to a concern that the Government could not use such a mechanism to recover a debt which a Court was no longer empowered to adjudicate.

As to suggested inconsistencies that this interpretation would result in, such as the requirement that oil companies maintain records for 7 years (the length of the statute of limitations) where those records could be necessary for an indefinite period of time, the Court proffers other suggested inconsistencies that would result from petitioner’s interpretation. General policy questions are then given brief consideration; guess how much they affected the decision.

Clearly Established Federal Law on Buttons in a Courtroom

Carey v. Musladin

In this case family members of the victim wore buttons with the victim’s picture during the trial while they occupied the first few rows of the spectators’ gallery. The question here is whether the lower court “unreasonably applied clearly established Federal law, as determined by the Supreme Court of the United States” in its ruling that, the Supreme Court having set out the test to determine whether a given courtroom practice creates “inherent prejudice” and thereby denies the defendant a fair trial, the court below was not at liberty to apply a different test.

In Williams the state forced the defendant to stand trial in prison garb. In Flynn the state positioned state troopers in the row immediately behind the defendant. The former was held to present “an unacceptable risk [of] impermissible factors coming into play” (Flynn) without furthering an “essential state” policy or interest; the latter was not.

This state-interest prong suggests that the test is not applicable to private action, and therefore using an alternative test is not an unreasonable application of clearly established federal law.

Justice Stevens writes separately to object to a comment that he has seen repeated, arguing that “the statutory phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States’ refers to ‘the holdings, as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court decision.” He also states that, in his opinion, “there is no merit whatsoever to the suggestion that the First Amendment may provide some measure of protection to the spectators in a courtroom who engage in actual or symbolic speech to express a point of view about an ongoing proceeding.”

Justice Kennedy argues that there would be relief under the Antiterrorism and Effective Death Penalty Act even in the absence of a ruling by the Supreme Court, and calls for a rule on this particular subject.

Justice Souter sees no serious question that the Flynn standard reaches the behavior of spectators, nor that the buttons in question here raise a risk of improper considerations. He concludes that the risk is not unacceptable because (a) most courts considering the issue have upheld the convictions (which seems to go to reasonableness as an objective-relativistic concept), and (b) to avoid the question of the spectators’ possible First Amendment interest in expression.

Any Felony Punishable [As a Felony] Under the CSA

Lopez v. Gonzales

The Immigration and Nationality Act (INA) enjoins discretionary relief from deportation for those convicted of “illicit trafficking,” defined to include “aggravated felonies,” itself encompassing a crime punishable under the Controlled Substances Act (CSA), and which is a felony under either Federal or State law. Jose Lopez was convicted of a State-Law felony for helping another posses cocaine, and was deported, a federal misdemeanor. The question here is whether a federal misdemeanor can constitute an aggravated felony via State law for the purposes of the INA

The Government argues that since it is only necessary that the “illicit trafficking” be punishable under the CSA, it need not be a felony. “Trafficking” as a term generally implies commerce, not simple possession which a handful of states classify as a felony. Congress did, however, classify some simple possession cases (possession of ingredients, recidivism, etc) as federal felonies. The dissent suggests that these are merely instances of the inclusion of every drug-offense in the “illicit trafficking” definition. On the other hand, when defining a crime punishable by the CSA, Congress neglected to include references to State law, as it added elsewhere. The Court is not persuaded by suggestions that “punishable under the CSA” does not read “punishable as a felony,” in order to allow inclusion of State law felonies, since it is equally likely that the wording is meant to include crimes which constitute federal felonies, though not prosecuted as a such, or as crimes with a federal-felony counterpart.

Why is the best stuff always in the footnotes (oh, right). The phrase “felony punishable under the [CSA]” is taken from Title 18 and incorporated into “aggravated felony,” which would allow it to be prosecuted in a court of the United States, albeit, at a misdemeanor level – something never attempted while the phrase was in Title 18.

Finally, the Court points to disuniformity, and the ability of States to supplant the judgment of Congress in this area by providing a anomalous definition of felony, or punishment of possession. The dissent argues that the determination is for the convicting jurisdiction, as per the language “conviction” for an “aggravated felony,” suggesting that “conviction” is meant in the past rather than passive tense.

JusticeThomas, dissenting: To be deportable Lopez’ offense must 1) be a felony, and 2) be punishable under the CSA. South Dakota punishes Lopez’ crime as a felony, and it could have been punished under the CSA. Interpreting the law to include the limitation that the crime must be a federal felony would make such designations elsewhere superfluous.

“In Raich, the court fell into the very trap it purports to identify today by ‘turn[ing] simple possession into [commerce], just what the English language tell us not to expect” (for those with short memories). And just to be even-handed, I hope Justice Thomas remembers this line: “we must interpret what Congress actually wrote, not what it could have written.”

Finally, Justice Thomas argues that Congress would equally subject its judgment to be second-guessed by state laws that classify drug crimes more lightly, and in cases where a defendant is deported for conviction of a crime that could have been, but in fact was not tried as, a federal felony.