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Interpreting the Ex Post Facto Clause

Below, Harvard Law School’s Jesenka Mrdjenovic previews United States v. Marcus (08-1341), one of two cases to be argued on Wednesday, February 24. Check the Marcus page on SCOTUSwiki for additional updates.

The Constitution provides important safeguards against government regulation of private conduct in both the civil and criminal contexts – including the Ex Post Facto Clause, which protects against the retroactive application of laws.  However, a defendant must assert these rights in a timely manner at trial or risk forfeiting them. Under Federal Rule of Criminal Procedure 52(b), courts have limited discretion to consider plain errors that affect substantial rights but were not timely raised.

On February 24, 2010, in No. 08-1341, United States v. Marcus, the Court will consider the circumstances in which the exercise of this limited discretion is appropriate. Specifically, the case presents the question “[w]hether the court of appeals departed from the Court’s interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an asserted ex post facto violation whether ‘there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.’”

Respondent Glenn Marcus was convicted on federal charges of sex trafficking and forced labor in the Eastern District of New York. Both of the statutes at issue in Marcus’s conviction were enacted as part of the Trafficking Victims Protection Act of 2000 (TVPA). The convictions stem from a sadomasochistic relationship that began in 1998, two years prior to the TVPA’s enactment, and continued until 2001, after which Marcus was indicted.

At trial, prosecutors presented evidence regarding Marcus’s conduct during the entirety of the relationship – that is, both before and after the effective date of the TVPA. Marcus did not object to the introduction of evidence regarding his conduct prior to the enactment of the TVPA, nor did he request a jury instruction to limit the jury’s consideration to post-enactment conduct.

On appeal, Marcus argued for the first time that the TVPA had been applied retroactively to his conduct in violation of the Ex Post Facto Clause. Reviewing this argument for plain error under Rule 52(b), the Second Circuit agreed and vacated the convictions.  In its view, the Ex Post Facto Clause is violated “whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.”

Then-Judge Sotomayor and Judge Wesley concurred.  They agreed that the decision was “compelled by the current law of [the] circuit,” but they expressed concern that the circuit precedent “does not fully align” with Supreme Court guidance on the issue, as outlined in cases such as Johnson v. United States (1997) and United States v. Olano (1993). That case law instructs that an appellate court may correct errors that were not raised at trial only if there is (1) an error (2) that is plain and (3) affects substantial rights; and (4) the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

The United States filed a petition for certiorari, which the Court granted on October 13, 2009.  In its brief on the merits, the United States argues that the Second Circuit’s standard deviates from Olano:  the correct standard of review requires a “reasonable possibility,” rather than merely “any possibility,” that the jury could have convicted based exclusively on pre-enactment conduct. First, the government argues, Rule 52(b)’s reference to “substantial rights” requires “in most cases” that the error be “prejudicial” – that is, it “must have affected the outcome of the district court proceedings.” Moreover, the error in question is subject to the “same standard of plain-error review” that is used for all forfeited claims; nothing “justifies a different standard of plain-error review for forfeited ex post facto claims.”

Second, the United States argues that the fourth Olano prong for “instructional errors,” as interpreted in Johnson (1997), and United States v. Cotton (2002), also compels this result. According to the United States, a conviction “based on a forfeited error” should not be reversed when there is no reasonable possibility that the error affected the judgment – a standard that “ is consistent with the recognition in Johnson and Cotton that when ‘overwhelming’ and ‘essentially uncontroverted’ evidence was introduced on an element that the jury was not asked to find, the verdict is so unlikely to have been different that the ‘error does not seriously affect the fairness and integrity, or public reputation of the judicial proceedings.’” This standard would have to be met even for the “very limited class of cases” where the error is “structural.”

In his brief on the merits, Marcus counters that the Second Circuit applied the proper standard and properly exercised its discretion under Olano. First, he contends, the error in question meets the fourth prong of Olano:  the trial was “overcome by testimony and exhibits relating to conduct that occurred before the law was enacted,” rendering the error “prejudicial” and “certainly implicat[ing] the fairness of the judicial proceedings.” Moreover, Ex Post Facto violations fall within a “special category of flagrant errors” for which “prejudice may be presumed,” and they “should be corrected regardless of their effect on the outcome.” He characterizes the government’s standard – requiring a “reasonable possibility” that the jury relied solely on pre-enactment conduct – as “virtually insurmountable for defendants because there is no mechanism to discover what evidence the jurors relied upon in reaching their verdict.”

Marcus distinguishes Johnson and Cotton, explaining that in both cases Olano’s fourth prong was not satisfied because there was “no possibility that the outcome of the trial would be affected by the error.” In this case, by contrast, the Second Circuit found that there was a possibility that the jury could have convicted Marcus solely on the basis of pre-enactment conduct.  Quoting Johnson, Marcus further contends that the violation of the Ex Post Facto Clause is a structural – rather than instructional – error, as it “affects the ‘framework within which the trial proceeds, rather than simply an error in the trial process itself.’”

Finally, Marcus argues that because courts of appeals “have always been allowed broad discretion in how they supervise litigation within their own circuit,” there is no need to “impos[e] national restrictions on the exercise of their discretion.”