Tag: Supreme Court

Supreme Court’s Decision Protects From Dangerously Confusing & Vague “Aggravated Felony” Statute

Yesterday, April 17, 2018, in Sessions v. Dimaya, No. 15-1498, the Supreme Court (in a 5-4 decision) held that 18 U.S.C. § 16’s residual clause is unconstitutionally vague. At issue in the case, the Immigration and Nationality Act (INA) provides that a noncitizen convicted of an “aggravated felony” after entering the United States will be deported. 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C).

Under the INA, an “aggravated felony” includes, among other offenses, a “crime of violence” as defined in 18 U.S.C. § 16 (excluding a purely political offense) for which the term of imprisonment is at least one year. The term “crime of violence” under § 16 is defined as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Subsection (b) is typically referred to as a residual clause.

A majority of the Court held that a straightforward application of Johnson v. United States, 135 S. Ct. 2551 (2015) resolved this case. In Johnson, the Supreme Court held that a similar residual clause found in the Armed Career Criminal Act, 18 U.S.C. § 924(e), violated the Constitution’s guarantee of due process. In that case, the residual clause was used to increase a criminal defendant’s sentencing range. Although the specific language of the residual clause in § 16(b) was not identical to the residual clause of § 924(e), the Court held that it suffered the same infirmities.

Specifically, the Court found two features of the residual clause in both statutes conspired to make them unconstitutional: determining an “ordinary case” and determining the risk posed by the crime. The majority rejected the government’s attempts to distinguish the two clauses.

Justice Gorsuch joined with Justices Kagan, Ginsburg, Breyer, and Sotomayor, in finding the residual clause unconstitutionally vague.

Although Justice Gorsuch filed an opinion concurring in the judgment, he did not join in all parts of the opinion authored by Justice Kagan. Chief Justice Roberts filed a dissenting opinion, in which Justices Kennedy, Thomas, and Alito, joined. Justice Thomas filed a dissenting opinion, in which Justices Kennedy and Alito joined in part.

Supreme Court Hears States Beg For Your Bucks

Online shoppers have gotten used to seeing that line on checkout screens before they click “purchase.” But a case before the Supreme Court could change that.

At issue is a rule stemming from two, decades-old Supreme Court cases: If a business is shipping to a state where it doesn’t have an office, warehouse or other physical presence, it doesn’t have to collect the state’s sales tax.

That means large retailers such as Apple, Macy’s, Target and Walmart, which have brick-and-mortar stores nationwide, generally collect sales tax from customers who buy from them online. But other online sellers, from 1-800 Contacts to home goods site Wayfair, can often sidestep charging the tax.

More than 40 states are asking the Supreme Court to reconsider that rule in a case being argued Tuesday. They say they’re losing out on “billions of dollars in tax revenue each year, requiring cuts to critical government programs” and that their losses compound as online shopping grows. But small businesses that sell online say the complexity and expense of collecting taxes nationwide could drive them out of business.

Large retailers want all businesses to “be playing by the same set of rules,” said Deborah White, the president of the litigation arm of the Retail Industry Leaders Association, which represents more than 70 of America’s largest retailers.

For years, the issue of whether out-of-state sellers should collect sales tax had to do mostly with one company: Amazon.com. The online giant is said to account for more than 40 percent of U.S. online retail sales. But as Amazon has grown, dotting the country with warehouses, it has had to charge sales tax in more and more places.

President Donald Trump has slammed the company, accusing it of paying “little or no taxes” to state and local governments. But since 2017, Amazon has been collecting sales tax in every state that charges it. Third-party sellers that use Amazon to sell products make their own tax collection decisions, however.

 

The case now before the Supreme Court could affect those third-party Amazon sellers and many other sellers that don’t collect taxes in all states — sellers such as jewelry website Blue Nile, pet products site Chewy.com, clothing retailer L.L. Bean, electronics retailer Newegg and internet retailer Overstock.com. Sellers on eBay and Etsy, which provide platforms for smaller sellers, also don’t collect sales tax nationwide.

States generally require consumers who weren’t charged sales tax on a purchase to pay it themselves, often through self-reporting on their income tax returns. But states have found that only about 1 percent to 2 percent actually pay.

States would capture more of that tax if out-of-state sellers had to collect it, and states say software has made sales tax collection simple.

Out-of-state sellers disagree, calling it costly and extraordinarily complex, with tax rates and rules that vary not only by state but also by city and county. For example, in Illinois, Snickers are taxed at a higher rate than Twix because foods containing flour don’t count as candy. Sellers say free or inexpensive software isn’t accurate, more sophisticated software is expensive and that collecting tax nationwide would also subject them to potentially costly audits.

“For small businesses on tight margins, these costs are going to be fatal in many cases,” said Andy Pincus, who filed a brief on behalf of eBay and small businesses that use its platform.

 

The case now before the Supreme Court involves South Dakota, which has no income tax and relies heavily on sales tax for revenue. South Dakota’s governor has said the state loses out on an estimated $50 million a year in sales tax that doesn’t get collected by out-of-state sellers.

In 2016 the state passed a law requiring those sellers to collect taxes on sales into the state, a law challenging the Supreme Court precedents. The state, conceding it could win only if the Supreme Court reverses course, has lost in lower courts.

South Dakota says the high court’s previous decisions don’t reflect today’s world. The court first adopted its physical presence rule on sales tax collection in a 1967 case dealing with a catalog retailer. At the time, the court was concerned in part about the burden collecting sales tax would place on the catalog company. The court reaffirmed that ruling in 1992.

It’s unclear how the justices might align on the question this time. But three justices — Neil Gorsuch, Clarence Thomas and Anthony Kennedy — have suggested a willingness to rethink those decisions. Kennedy has written that the 1992 case was “questionable even when decided” and “now harms states to a degree far greater than could have been anticipated earlier.”

“Although online businesses may not have a physical presence in some states, the Web has, in many ways, brought the average American closer to most major retailers,” he wrote in suggesting the days of inconsistent sales tax collection may be numbered. “A connection to a shopper’s favorite store is a click away regardless of how close or far the nearest storefront.”

Supreme Court To Consider Whether Florida Robbery Qualifies As A Violent Felony Under ACCA

This past Monday, the Supreme Court granted certiorari in Stokeling v. United States, No. 17-5554. The question presented is: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.”

The circuits are in conflict on whether “overcoming resistance” in robbery statutes categorically requires “violent force.” The Tenth and Eleventh Circuits have held that two different common law robbery offense offenses, both of which require overcoming “victim resistance,” categorically require violence force, that is, “force capable of causing physical pain or injury to another person,” which is “a substantial degree of force;” the word “violent” connotes “strong physical force.”

In contrast, the Fourth and Ninth Circuits have held that similar offenses (and in the case of the Ninth Circuit, the exact same robbery offense as addressed by the Eleventh Circuit) do not categorically require violent force.

Supreme Court Unanimously Vacates Fifth Circuit Decision Denying Capital Petitioner’s Funding Request

In Ayestas v. Davis, No. 16-6795 (Mar. 21, 2018), the United States Supreme Court unanimously held the Fifth Circuit did not apply the correct legal standard in affirming the denial of a capital habeas petitioner’s request for funds, made pursuant to 18 U.S.C. § 3599(f), to investigate a trial-counsel and initial-state-habeas counsel ineffective assistance of counsel claim.

Background

Ayestas was convicted of murder and sentenced to death in Texas state court. New counsel filed Ayestas’s direct appeal, which was affirmed. A third defense team unsuccessfully pursued state habeas relief, including raising a claim of trial-level ineffective assistance of counsel (IAC), but did not raise a claim that trial-level counsel was ineffective for failing to investigate and present Ayestas’s mental health and drug abuse history at the penalty phase. After Ayestas’s state habeas was denied, a fourth legal team filed a federal petition which did raise the trial-level IAC claim about failure to investigate mental health at penalty phase.  The district court held the claim was procedurally barred because it was not raised in state court. That decision was later vacated by the Supreme Court and remanded for  reconsideration in light of Martinez v. Ryan, 556 U.S. 1 ( ) (holding that an Arizona prisoner seeking federal habeas relief could overcome a procedural default of a trial-level IAC claim by showing that the claim is substantial and that the state habeas counsel was also ineffective in failing to raise the claim in a state habeas proceeding); see also Trevino v. .Thaler, (applying Martinez to Texas).

On remand, Ayestas filed a motion asking the district court for funding under 18 U.S.C. § 3599(f) to develop his claim that both his trial and his state habeas counsel were ineffective. Section 3599(f) provides, in relevant part, that a district court “may authorize” funding for “investigative, expert, or other services … reasonably necessary for the representation of the defendant” in  capital habeas cases. (emphasis added).   The district court found his claim barred by procedural default.  The Fifth Circuit also rejected the funding request under its precedent, holding that Ayestas had not shown a “substantial need” for investigative or other services.

Holdings

In an opinion written by Justice Alito, the Supreme Court addressed a threshold jurisdictional issue and held that the district court’s denial of Ayestas’s funding request was a judicial decision subject to appellate review under the standard jurisdictional provisions.  In so holding, the Court rejected the state’s argument that the funding decision was unreviewable because it was non-adversarial and merely administrative.

On the merits, the Court held the Fifth Circuit did not apply the correct legal standard in affirming the denial of  Ayestas’s funding request.  The Court held the Fifth Circuit’s “substantial need” standard was more demanding than “reasonably necessary.”  What’s more, the “substantial need” standard exacerbated the difference by also requiring Ayesta to present “a viable constitutional claim that is not procedurally barred.”  The Court explained that rule is too restrictive after Trevino.  While the Court recognized that district courts have broad discretion in deciding funding requests, it stated: “In those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.”  The Court provided further guidance to district courts exercising their funding discretion:

Proper application of the “reasonably necessary” standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way.

To be clear, a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks. But the “reasonably necessary” test requires an assessment of the likely utility of the services requested, and § 3599(f) cannot be read to guarantee that an applicant will have enough money to turn over every stone.

The Court also rejected the state’s alternative ground for affirmance—that funding is never “reasonably necessary” where a habeas petitioner seeks to present a procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state-court record, see U.S.C. § 2254(e)(2) —remains open for the Fifth Circuit to consider on remand.

In an important procedural aside, the Supreme Court noted that the Fifth Circuit does not require petitioners to obtain a certificate of appealability (COA) to appeal a district court’s funding determination.  The COA issue was not briefed by parties and the Court found it “unnecessary to resolve the issue.” But taking “no view” of the COA issue, the Court “assume[d] for the sake of argument that the Court of Appeals could not entertain petitioner’s §3599 claim without the issuance of a COA.”  The Court also noted the district court’s ruling was “not only debatable; it was erroneous.”

Sotomayor Concurrence

In Justice Sotomayor’s lentghty concurrence, joined by Justice Ginsburg, she explains that “Ayestas has made a strong showing that he is entitled to § 3559(f) funding.”  About a district court’s discretion in funding determinations, Justice Sotomayor explained:

Exercise of that discretion may be appropriate if there is a showing of gamesmanship or where the State has provided funding for the same investigation services, as Ayestas conceded at argument. Nonetheless, the troubling failures of counsel at both the trial and state postconviction stages of Ayestas’ case are exactly the types of facts that should prompt courts to afford investigatory services to ensure that trial errors that go to a “bedrock principle in our justice system” do not go unaddressed.

The American Sentinel Newsletter

Attorney General Sessions Tells Prosecutors To Kill Drug Dealers

On March 21, United States Attorney General Jefferson B. Sessions issued a short Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions. The full text of the memo states:

The opioid epidemic has inflicted an unprecedented toll of addiction, suffering, and death on communities throughout our nation. Drug overdoses, including overdoses caused by the lethal substance fentanyl and its analogues, killed more than 64,000 Americans in 2016 and now rank as the leading cause of death for Americans under 50. In the face of all of this death, we cannot continue with business as usual.

Drug traffickers, transnational criminal organizations, and violent street gangs all contribute substantially to this scourge. To combat this deadly epidemic, federal prosecutors must consider every lawful tool at their disposal. This includes designating an opioid coordinator in every district, fully utilizing the data analysis of the Opioid Fraud and Abuse Detection Unit, as well as using criminal and civil remedies available under federal law to hold opioid manufacturers and distributors accountable for unlawful practices.

In addition, this should also include the pursuit of capital punishment in appropriate cases. Congress has passed several statutes that provide the Department with the ability to seek capital punishment for certain drug-related crimes. Among these are statutes that punish certain racketeering activities (18 U.S.C. § 1959); the use of a firearm resulting in death during a drug trafficking crime (18 U.S.C. § 924(j)); murder in furtherance of a continuing criminal enterprise (21 U.S.C. § 848(e)); and dealing in extremely large quantities of drugs (18 U.S.C. § 3591(b)(1)). I strongly encourage federal prosecutors to use these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation.

Seeking the federal death penalty against drug traffickers in “appropriate cases” where a death results would not be new.  Of the 61 federal defendants on death row, more than a dozen of them committed drug related offenses resulting in death, according to the Death Penalty Information Center.  Indeed, one of the three federal inmates executed in the modern era was Juan Garza, a marijuana distributer who was executed in 2001 for the murder of three other drug traffickers in Texas.

But seeking the death penalty for non-homicide drug trafficking offenses would be new and raise constitutional issues.  See, e.g., Kennedy v. Louisiana, 554 U.S. 407, as modified (Oct. 1, 2008), opinion modified on denial of reh’g, 554 U.S. 945 (2008) (holding the Eighth Amendment prohibits the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim); id. at 44 –47 (“The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.”).