This Week at the Supreme Court


by Jonathan Keim | October 2nd, 2016

A new October Term begins this morning as the Supreme Court releases orders from last week’s Long Conference and prepares to hear oral arguments tomorrow. As it turns out, the Supreme Court is starting the Term by hearing several interesting cases relevant to criminal law. Although none is likely to garner the attention of last year’s criminal decision in McDonnell v. United States or in Yates v. United States the year before, the issues are worth some attention.

On Tuesday morning, the Court addresses the scope of preclusion effected by a jury’s partial acquittals when they are part of an inconsistent verdict which is subsequently vacated for legal error. (Phew.) At issue is the scope of criminal collateral estoppel/issue preclusion originally articulated by Justice Holmes in United States v. Oppenheimer (1916) and effectively constitutionalized in Ashe v. Swenson (1970)over a dissent by Chief Justice Burger. Does acquittal on some charged counts bar retrial on the other counts for which the jury convicted? And does it matter whether the original jury verdict was logically consistent in its decision to convict on some counts and not others? In a twist, the defendant’s brief concludes with several arguments derived from the overcriminalization debate.

Also on Tuesday morning, the Court considers basic canons of statutory interpretation in Shaw v. United States. The facts of that case are fairly straightforward. The defendant was accused of stealing money from a bank accountholder by providing false documents to the bank and misrepresenting himself as the accountholder. The defendant was subsequently charged under the first paragraph of the federal bank fraud statute, which prohibits schemes “to defraud a financial institution.” The problem however, is that the second paragraph seems more appropriate, since it bars schemes “to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises[.]” The intent requirement for the first paragraph appears to require intent to injure the bank itself rather than the accountholder, whereas the second is much broader. There does appear to be some overlap between the two provisions, but how much? Does the fact that the conduct was chargeable under the second paragraph mean that it can’t be chargeable under the first? We’ll have to wait and see.

Wednesday features three arguments, two of which I’ll highlight here (the third concerns certificates of appealability in post-conviction ineffective assistance of counsel cases). The first is Salman v. United States, which addresses “tipping” by corporate insiders who share nonpublic information with someone who then trades on that information. In 1983, the Supreme Court held in Dirks v. SEC that “tipping” could be prosecuted criminally as a form of fraud based on the breach of a fiduciary duty. Here’s the key: Dirks said that some sort of personal benefit had to accrue to the insider/tipper for the tip to count as an actionable breach of duty. In Salman, the question is whether that sort of personal benefit can be a close family relationship, as the Ninth Circuit held below. The petitioner argues that the benefit must be pecuniary. But the government spends nearly 20 pages of its brief mounting a spirited defense of both its position and Dirks liability itself, which may indicate that it is worried about the Supreme Court giving Dirks the same treatment it gave to more moderate interpretations of less-vague statutes in McDonnell and Yates.

The second significant Wednesday case is Manuel v. City of Joliet, which involves allegations that police officers executed a false complaint against the petitioner, arrested him without probable cause, and held him in custody without cause for more than a month. The central question is actually about the statute of limitations, namely, whether the Fourth Amendment prohibition on unreasonable searches and seizures allows a § 1983 claim for malicious prosecution. Malicious prosecution was traditionally a common law claim, but the petitioner is claiming that the Fourth Amendment requires a separate constitutional claim. We will find out whether the original meaning of the Fourth Amendment plays any role whatsoever in the Court’s decision.

It should be an interesting week.