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Compassionate release, the First Step Act, and jurors on social media

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether a juror’s Twitter activity before and during a trial prompts a hearing to determine tampering and whether a sentencing amendment in the 2018 First Step Act can be applied retroactively in evaluating a prisoner’s request for compassionate release.

When Allen Loughry II, the former chief justice of the Supreme Court of Appeals of West Virginia, was convicted of wire and mail fraud in 2018, discussion about the case, predictably, spread on Twitter. One juror at Loughry’s trial, it was later discovered, liked and retweeted multiple articles that were critical of Loughry before the trial. And during the trial, she followed two reporters who were tweeting extensively about the case, though it is unclear if she actually read any of those tweets. Since 1954, in Remmer v. United States, the court’s Sixth Amendment precedent has held that any direct or indirect private communication or tampering with a juror during a trial is presumed to be prejudicial and prompts a hearing to determine whether the incident was harmful. After his conviction, Loughry sought a Remmerhearing to investigate the juror’s use of social media during the trial. The district court and the U.S. Court of Appeals for the 4th Circuit denied the request because Loughry failed to show direct evidence that the juror was exposed to any tweets about the case during the trial. In Loughry v. United States, the former West Virginia chief justice asks the court to determine if circumstancial evidence of social-media contact satisfies the private-communication requirement of Remmer and entitles a criminal defendant to a hearing.

Two new petitions ask the court to again wade into the First Step Act, the major criminal-justice reform law that Congress passed in 2018. The court clarified one provision of the law last term in Terry v. United States and is set to interpret another provision later this term in Concepcion v. United States. The new petitions, Watford v. United Statesand Jarvis v. United States, involve the interaction of two other provisions of the First Step Act: an amendment to a law involving consecutive sentences and an amendment to the “compassionate release” statute.

The First Step Act amended 18 U.S.C. § 924(c) to reduce mandatory consecutive sentences for multiple firearms convictions, putting an end to a practice known as Section 924(c) “stacking.” According to the U.S. Sentencing Commission, that practice discriminated against Black men. The amendment can be applied retroactively, but only for defendants who had not been sentenced when the First Step Act was passed. Watford and Jarvis ask whether courts may consider that amendment in determining sentence reductions under the compassionate-release statute, 18 U.S.C. § 3582(c)(1)(A)(i), which also was amended by the First Step Act to provide greater access to sentencing reductions. The U.S. Court of Appeals for the 3rd, 6th, and 7th Circuits held that because Congress did not make the amendment to Section 924(c) categorically retroactive, revision to that sentencing regime cannot be considered when determing if a sentence reduction is warranted under Section 3582(c)(1)(A)(i). The U.S. Courts of Appeals for the 4th and 10th Circuits concluded that the languge of Section 3582(c)(1)(A)(i) does permit district courts to consider the First Step Act changes when considering sentence reductions. Both petitions ask the Supreme Court to resolve the circuit split by siding with the 4th and 10th Circuits.

These and other petitions of the week are below:

AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States
Issue: Whether an ad hoc arbitration to resolve a commercial dispute between two parties is a “foreign or international tribunal” under 28 U.S.C. § 1782(a) when the arbitral panel does not exercise any governmental or quasi-governmental authority.

Watford v. United States
Issue: Whether a district court may consider the 2018 amendment to the sentences mandated by 18 U.S.C. § 924(c) in determining whether a defendant has shown “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).

Edward D. Jones & Co., L.P. v. Anderson
Issue: Whether the U.S. Court of Appeals for the 9th Circuit, in conflict with other U.S. Courts of Appeals, erred in concluding that Chadbourne & Parke v. Troice narrowed Merrill Lynch, Pierce, Fenner & Smith v. Dabit’s interpretation of the Securities Litigation Uniform Standards Act’s “in connection with” prong to require that the alleged deception induce a specific transaction in a particular covered security.

Jarvis v. United States
Issue: Whether non-retroactive changes in federal law can serve as “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).

Eshelman v. Puma Biotechnology, Inc.
Issue: Whether, under Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. and the Federal Rules of Civil Procedure, a defendant who did not file a Rule 50 motion for judgment as a matter of law in the district court can nonetheless raise a sufficiency of the evidence challenge to damages on appeal.

Loughry v. United States
Issue: Whether circumstantial evidence of extrajudicial social-media contact with a juror about the case can be enough to entitle a criminal defendant to a hearing under Remmer v. United States to determine “what actually transpired, or whether the incidents that may have occurred were harmful or harmless.”

Recommended Citation: Ellena Erskine, Compassionate release, the First Step Act, and jurors on social media, SCOTUSblog (Nov. 5, 2021, 4:58 PM),