Last month, the Supreme Court of the United States returned for the beginning of its October 2023 Term. The Court’s docket year begins in October and generally all decisions from that year’s docket are released by the end of the following June. This year, the Court’s docket includes several criminal cases, which are highlighted below. These cases offer a mix of constitutional questions and questions about technical details about how statutes are interpreted and which version of federal law applies. The Court will also almost certainly add new criminal cases once it returns for the start of the new term and begins granting new petitions.
In Pulsifer v. United States, the Court will return to the First Step Act from 2018 and consider whether the safety valve provision of 18 U.S.C. § 3553(f)(1) has a cumulative requirement or an individual requirement. The safety value provision requires that mandatory minimum sentences be ignored if the defendant was convicted of certain drug offenses and met the criteria of § 3553(f)(1)-(5). The First Step Act amended § 3553(f(1). The language states that § 3553(f)(1) is satisfied if the defendant “does not have—(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”
The question the Court will address in this case is how to interpret this new provision. Is the provision to be read as a defendant must meet A, B, and C? That is how the Ninth Circuit Court of Appeals has interpreted the statute. The Seventh and Eighth Circuits, however, have interpreted the statute to mean a defendant must meet A, B, or C. Essentially, this case will determine how easily a defendant may qualify for this aspect of the safety valve provision.
In United States v. Rahimi, the Court will consider whether 18 U.S.C. § 922(g)(8) violates the Second Amendment. § 922(g)(8) prohibits persons who re subject to domestic violence retraining orders from possessing firearms. Since the Court’s decision last year in New York State Rifle & Pistol Ass’n. Inc. v. Bruen, various subjections of § 922(g) have come under attack as violations of the Second Amendment. Under Bruen, firearm regulations must have some historical basis in order to survive a challenge under the Second Amendment. In this particular case, only § 922(g)(8), the domestic violence restraining order provision, is being challenged.
In Culley v. Marshall, the Court will consider whether the Due Process Clause requires a post-seizure probable cause hearing prior to a forfeiture proceeding. Furthermore, if there is a hearing requirement, which test should apply to determine when the hearing should be held. Essentially, this case is about determining the scope of Due Process that must be afforded in forfeiture proceedings.
In McElrath v. Georgia, the Court will consider Georgia violates the Fifth Amendment’s Double Jeopardy Clause by allowing the state to retry a defendant who was previously acquitted of the charge. The Double Jeopardy Clause prohibits trying a person for the same conduct a second time. McElrath was charged and tried on two counts related to the same conduct—but was acquitted of one count and convicted of the other. On appeal, the Georgia Supreme Court overturned both verdicts because the decision to acquit on one count and convict on the second count was logically and legally impossible due to the facts of the case. The question is whether the Double Jeopardy Clause prohibits trying McElrath a second time for the charge was originally acquitted of.
In Brown v. United States, the Court will consider whether the definition of “serios drug offense” in the Armed Career Criminal Act relies on the federal drug schedules that were in effect at the time of the offense at issue in the present case or the drug schedules that were in effect at the time of the prior conviction. Brown was charged with a federal firearm offense and had a prior conviction for a state drug offense. The question the Court will address is what criteria will be used to determine whether the prior state drug offense qualifies as a serious drug offense. Basically the question is whether the old version of the federal law in effect at the time of the prior state drug offense determines whether the prior drug offense constitutes a serious drug offense or if the new version of federal law in effect at the time of the gun offense determines whether the prior drug offense constitutes a serious drug offense.
In Smith v. Arizona, the Court will consider whether the Sixth Amendment’s Confrontation Clause allows prosecutors to call a substitute expert to testify about a case instead of the expert who did the forensic testing. This case presents two issues. First, whether a non-testifying expert witness’s statements—usually in the form of a report—are offered for their truth when presented through a substitute witness who did not do the testing underlying the report. If the statements are offered for their truth, then the statements come within the scope of the Confrontation Clause. Secondly, whether defendants must subpoena the expert who performed the tests. This case will hopefully resolve an issue which has divided courts across the country since Williams v. Illinois, 567 U.S. 50 (2012), which did not result in a majority opinion.
In McIntosh v. United States, the Court will consider whether Rule 32.2 creates jurisdictional time limits for criminal forfeiture. There is currently a split between federal circuit courts over whether Rule 32.2 creates a jurisdictional limitation or just a guideline on the timeframe for seeking criminal forfeiture. This case should resolve this split.
