John Wirenius (![[info]](http://l-stat.livejournal.com/img/userinfo.gif){kind=small} jwirenius) wrote,@ 2008-08-22 23:16:00 |
|
Marcus: Dodging the Bullet--For Now
I wasn't going to comment on the Second Circuit's decision reversing Glenn Marcus' conviction until it was published, and I had read it--which I have now. What strikes me first and foremost is how close a call it was for Marcus--two of the three judges who voted to reverse his conviction did so on the basis of precedent which they admitted was binding on them, because only the full Second Circuit sitting en banc can reverse a decision by a three-judge panel. Judge Sotomayor and Judge Wesley agreed that Marcus should receive the benefit of that precedent--but ended their opinion with a call to "reexamine" it, which, translates to reverse it.
The rule in question is a ruling from 1990 which held that requires reversal of a conviction where any part of the conduct alleged took place before the statute prohibiting the conduct was enacted and might have been the basis of the jury's ruling, even where the defendant did not, as Marcus did not, object to the charge on the basis that it violates the constitutional prohibition on ex post facto crimes, in Art. I sec. 10 of the Constitution. (A helpful introduction may be seen here). In the Marcus case, the statute he was alleged to have violated, the Trafficking Victims Protection Act (18 USC sections 1859 and 1861). was enacted in October 2000; the acts underlaying the conviction took place from January 1999 through October 2001. In other words, two-thirds of the acts upon which the conviction may have rested took place before the statute making them federal crimes was enacted.
Normally, this would mean a simple reversal. But, because Marcus' trial attorney did not argue that the charges were applied in an ex post facto manner, the issue was not preserved for appeal, and could only be reversed on appeal if it constitutes "plain error." To show plain error, a defendant must establish "(1) error (2) that is plain [Aye, that's a definition for you!] and (3) that effects substantial rights." (Opinion at 6). In the current approach, where conduct occurred both before and after the passage of the statute, if there was "any possibility" that the jury convicted based on the pre-enactment behavior, the error is deemed to have affected substantive rights. Based on more recent Supreme Court rulings, the two concurring judges found that the required approach would be to reverse only when there was a reasonable likelihood that the jury convicted based on the pre-enactment conduct. Where the defendant's conduct is different pre-and post enactment of the statute, and the conviction is consistent with the pre-enactment conduct, reversal is warranted. Thus, Judges Wesley and Sotomayor would hold even under their preferred rule, that Marcus was entitled to a new trial on the trafficking charges. On the forced labor charge,however, the conduct both before and after the statute's enactment was essentially the same--use of threats of exposure and of punishments to compel work on Marcus's website. Thus, under their standard, he concurring judges would have affirmed the conviction of forced labor.
Thanks to the rules of the Second Circuit, Marcus will, however, have a new trial on both charges (if the Government decides to retry him, as is, I think, highly likely). He is again cloaked in the presumption of innocence. It is notable, however, that but for the rules' requirement that the entire Court, and not just a three-judge panel, is needed to overrule a prior panel decision, his conviction on the forced labor charge would have been upheld, and Marcus's retrial would have been on only the trafficking theory. The majority of the court ordered a reversal because they believed they had no power to affirm, due to a prior incorrect decision which they alone could not alter.
Whatever opinion one has of the facts of the case--and, without reading the transcript or better still viewing the trial, I have none--it is clear that for Marcus this was a damned close-run thing. It is, I think the narrowest win Ive seen as an appellate attorney.
I wasn't going to comment on the Second Circuit's decision reversing Glenn Marcus' conviction until it was published, and I had read it--which I have now. What strikes me first and foremost is how close a call it was for Marcus--two of the three judges who voted to reverse his conviction did so on the basis of precedent which they admitted was binding on them, because only the full Second Circuit sitting en banc can reverse a decision by a three-judge panel. Judge Sotomayor and Judge Wesley agreed that Marcus should receive the benefit of that precedent--but ended their opinion with a call to "reexamine" it, which, translates to reverse it.
The rule in question is a ruling from 1990 which held that requires reversal of a conviction where any part of the conduct alleged took place before the statute prohibiting the conduct was enacted and might have been the basis of the jury's ruling, even where the defendant did not, as Marcus did not, object to the charge on the basis that it violates the constitutional prohibition on ex post facto crimes, in Art. I sec. 10 of the Constitution. (A helpful introduction may be seen here). In the Marcus case, the statute he was alleged to have violated, the Trafficking Victims Protection Act (18 USC sections 1859 and 1861). was enacted in October 2000; the acts underlaying the conviction took place from January 1999 through October 2001. In other words, two-thirds of the acts upon which the conviction may have rested took place before the statute making them federal crimes was enacted.
Normally, this would mean a simple reversal. But, because Marcus' trial attorney did not argue that the charges were applied in an ex post facto manner, the issue was not preserved for appeal, and could only be reversed on appeal if it constitutes "plain error." To show plain error, a defendant must establish "(1) error (2) that is plain [Aye, that's a definition for you!] and (3) that effects substantial rights." (Opinion at 6). In the current approach, where conduct occurred both before and after the passage of the statute, if there was "any possibility" that the jury convicted based on the pre-enactment behavior, the error is deemed to have affected substantive rights. Based on more recent Supreme Court rulings, the two concurring judges found that the required approach would be to reverse only when there was a reasonable likelihood that the jury convicted based on the pre-enactment conduct. Where the defendant's conduct is different pre-and post enactment of the statute, and the conviction is consistent with the pre-enactment conduct, reversal is warranted. Thus, Judges Wesley and Sotomayor would hold even under their preferred rule, that Marcus was entitled to a new trial on the trafficking charges. On the forced labor charge,however, the conduct both before and after the statute's enactment was essentially the same--use of threats of exposure and of punishments to compel work on Marcus's website. Thus, under their standard, he concurring judges would have affirmed the conviction of forced labor.
Thanks to the rules of the Second Circuit, Marcus will, however, have a new trial on both charges (if the Government decides to retry him, as is, I think, highly likely). He is again cloaked in the presumption of innocence. It is notable, however, that but for the rules' requirement that the entire Court, and not just a three-judge panel, is needed to overrule a prior panel decision, his conviction on the forced labor charge would have been upheld, and Marcus's retrial would have been on only the trafficking theory. The majority of the court ordered a reversal because they believed they had no power to affirm, due to a prior incorrect decision which they alone could not alter.
Whatever opinion one has of the facts of the case--and, without reading the transcript or better still viewing the trial, I have none--it is clear that for Marcus this was a damned close-run thing. It is, I think the narrowest win Ive seen as an appellate attorney.
