2009 Supreme Court Wrap-Up Part 2: Preview of October 2009 Term Cases (podcast transcript)

Cauthen -  Hi.  I’m Bob Cauthen, Program Manager for Advanced Legal Training Programs in the Legal Division at the Federal Law Enforcement Training Center.  I’m here again with Poppi Ritacco, Senior Instructor in the Legal Division.
In this podcast, we’ll look at some of the cases on the docket now that the Supreme Court will decide in this upcoming October 2009 term.

Ritacco – Hi, I’m Poppi Ritacco.  There are three cases that the Supreme Court has elected to hear in the upcoming term that deal with the 5th Amendment: MD v. Shatzer, FL v Powell, and Berghuis v. Thompkins.

MD v. Shatzer deals with the tricky intersection of continuous custody and the 5th Amendment / Miranda right to counsel.  This decision will guide when, if at all, police may re-approach to question a defendant who is serving a sentence for an unrelated crime for which he had previously invoked the right to counsel.  
The general rule established in Edwards v. Arizona is that once a defendant in custody invokes his 5th Amendment / Miranda right to counsel, police may not re-approach him unless his attorney is present or he himself re-initiates the discussion with police.  In Shatzer, the Supreme Court will consider whether the protections of Edwards expire when there is a break in custody or a substantial lapse in time.   
Defendant Shatzer was serving a sentence for an unrelated offense when police first approached him about the crime at issue in the present case.  Shatzer initially waived his rights pursuant to Miranda, but, upon learning that police wished to discuss the alleged sexual abuse of his son, he invoked his 5th Amendment right to counsel.  The investigation was subsequently closed due to lack of evidence. 
Some two years and seven months later, Shatzer’s son provided new information, and the case was re-opened.  A different detective re-approached Shatzer, who was still serving a sentence for the unrelated offense, to question him about the alleged sexual assault of his son.  This time, Shatzer waived his Miranda rights and spoke with police.  His statements were later used to charge him with several crimes related to the earlier sexual abuse of his son.
Shatzer filed a motion to suppress his statements arguing that the interrogation violated his 5th Amendment / Miranda right to counsel which he had invoked during the first attempted interview several years earlier.  The trial court denied his motion, finding that a break in custody had occurred due to the length of Shatzer’s continuous incarceration which allowed the police to re-approach him about the renewed investigation.  After waiving his right to a trial by jury, Shatzer was convicted in a judge- only trial where he stipulated to the facts.  He then appealed his conviction.
The appeals court reversed, holding that the passage of time alone is not sufficient to allow police to re-approach.  The appeals court declined to consider whether a break in custody would allow police to re-approach, finding that no such break occurred in Shatzer where the defendant was continuously incarcerated.  The court rejected an argument by the government that there is a difference between police custody and correctional custody. 
In its analysis, the appeals court cited the case US v. Green which the Supreme Court had previously heard on appeal but never ruled on because the defendant, Green, died while the appeal was pending and the case was dismissed.  In Green, the court during oral arguments questioned the parties on the very issue of whether the protections granted in Edwards were subject to some sort of time limitation.  As the court of appeals in Shatzer points out, however, the questions from the Supreme Court during the Green oral argument pointed to deficiencies in both positions and did not necessarily indicate the Court’s inclination. 
On October 5, 2009, the Supreme Court heard oral argument in the Shatzer case.  Counsel for the government argued that the purpose of Edwards is to protect the defendant from police badgering and that no such badgering occurred in this case where the defendant was released back to the prison’s general population and was not approached again by police for over two years.  When asked, the government proposed a seven day break in custody before police could re-approach a defendant.  The government also argued that a return to the general prison population should constitute a break in custody or defendants could be forever immune from police questioning.  The defense maintained that Edwards should remain a bright-line rule barring any re-approach once a defendant in custody has requested counsel.  Once again, questions from the Justices did not give a clear indication of how the Court will rule.

Cauthen - FL v Powell deals with a different issue related to Miranda.  In this case the Supreme Court will consider the language necessary to properly advise a suspect in custody of the right to have a lawyer present during questioning.  After police found a 9mm pistol under his bed, Powell was arrested and transported to the Tampa Police Department.  Once at the police station, police advised Powell of his Miranda rights by reading verbatim from a department-issued form.  The form stated in relevant part:
You have the right to remain silent.
If you give up the right to remain silent, anything you say can be used against you in court.
You have the right to talk to a lawyer before answering any of our questions.
If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning.
You have the right to use any of these rights at any time you want during this interview.
Powell waived his rights and admitted to purchasing and carrying the gun for protection even though he was a convicted felon.  He objected to the admission of his statement at trial, arguing that the Miranda warnings provided to him were deficient because they did not specifically advise him of his right to have counsel present during questioning.  The trial court denied the motion.  Powell’s statement was admitted.  He was convicted and sentenced to ten years.
Powell appealed his conviction on the same grounds as the trial motion.  The court of appeals agreed with Powell, holding that the Miranda warnings that he was given were deficient because they did not clearly inform him of the right to have an attorney present during questioning.  The appeals court certified the question to the Florida Supreme Court as one of great public importance.
The Florida Supreme Court also found the warnings to be deficient and affirmed the decision of the appeals court.  In doing so, the Court pointed out the split among the federal circuits as to whether a defendant must be expressly advised of the right to have counsel present during questioning.  The 6th Circuit requires such express language.  The 4th, 7th, 8th and 10th Circuits hold that alternative language is sufficient.     The 5th Circuit has found some alternative language to be acceptable and other language not to be acceptable.
In its analysis, the Florida Supreme Court discussed a line of Miranda cases decided by the US Supreme Court that emphasized the importance of communicating the right to have counsel present during questioning.  The government argued that Powell’s 5th Amendment privilege was sufficiently protected when he was advised that he had “the right to talk to a lawyer before answering any of our questions” and that he had “the right to use any of these rights at any time you want during this interview.”   In its opinion, the Florida Supreme Court highlighted the differences between expressly advising of the right to have counsel present during questioning and the right to “use the right to speak to an attorney before answering questions.”  The dissent in Powell, responded by arguing that a person of ordinary intelligence and common understanding could not reasonably understand the Miranda warnings given to Powell to mean anything other than that one has the right to consult with counsel prior to any question – meaning also during questioning and not just before.
In sum, we can expect the US Supreme Court to determine whether the right to have counsel present during questioning must be expressly stated in Miranda warnings and, if not, whether the specific language in the warnings provided to Powell from the department-issued form were sufficient.

Ritacco - Berghuis v. Thompkins addresses the issue of how far police can go to non-coercively attempt to persuade a defendant to speak with them after they have advised him of his Miranda rights but before he has either waived or invoked them.
Defendant Thompkins was arrested for shooting two individuals, killing one, in Michigan.  He was not apprehended until over one year after the shootings, and he was caught in Ohio.  Detective Helgart from the Michigan police department met with Thompkins in the jail in Ohio shortly after his apprehension.   Thompkins was advised of his Miranda rights and orally confirmed that he understood them, but refused to sign the form indicating that.  Detective Helgart then proceeded to “interview” Thompkins for approximately two hours and 45 minutes during which time Thompkins said little to nothing and scarcely made eye contact.  Helgart attempted to get Thompkins to speak by pointing out that he was not helping himself by offering no explanation, but that interview technique was not successful.  So, after two hours and 45 minutes, Detective Helgart tried an appeal to Thompkins’ sense of religion and morality.  This technique succeeded in obtaining an affirmative response from Thompkins when he was asked if he had ever prayed for forgiveness for “shooting that boy down.”  Thompkins’ motion to suppress the statement was denied and Thompkins was convicted at trial.
On appeal, the court affirmed the conviction reasoning, as did the trial court, that Thompkins did not assert his right to remain silent, but instead continued speaking with and nodding to Detective Helgart sporadically which constituted a valid waiver of his Miranda rights.  Thompkins next filed a writ of habeas corpus to the Federal District Court which was denied.  The 6th Circuit, however, addressed the habeas petition on appeal and reversed the District Court’s denial of relief on the 5th Amendment issue.
The 6th Circuit found that the state courts had erred in determining that a valid waiver had occurred.  The court cited the emphasis in Miranda on the heavy burden on the government to show a valid waiver and the fact that silence on the part of the defendant does not constitute a valid waiver.  The court highlighted the fact that Detective Helgart three times agreed that the defendant remained silent during the first two-plus hours of the interrogation.  The court declined to address the issue of whether Thompkins ever invoked his right to silence after a valid waiver as it found no such valid waiver. 
The Supreme Court lists the 5th Amendment question presented as “whether the 6th Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.” 

Cauthen - Recently, there seems to have been an uptick in the number of federal fraud and public corruption prosecutions.  The Supreme Court has taken on three cases in this arena –
Black v. United States out of the 7th Circuit, Weyhrauch v. United States out of the 9th Circuit, and Skilling v. United States out of the 5th Circuit.  Each were prosecutions for mail and wire fraud, and each deals with 18 U.S.C. § 1346, Definition of “scheme or artifice to defraud.”  Each deals specifically with “honest services fraud.”
18 U.S.C. § 1346, defines the "scheme or artifice to defraud" language found in the substantive mail and wire fraud statutes.  Under § 1346, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services. Thus, there are two possible objects of a scheme to defraud that can be charged: use of the mails or wires to deprive another of (1) property or money or (2) honest services.
Although § 1346 defines "scheme or artifice to defraud," it offers no definition of "honest services." These 3 cases look at the contours and boundaries of what constitutes “honest services.”

In Black, the defendants concocted an elaborate scheme using mail and wire communications to defraud media corporations in which they were senior executives out of 5.5 million dollars.  They called the money payments for covenants not to compete. The Court called that “ridiculous.”
The defendants were convicted of a conventional fraud, that is, a theft of the money by misrepresentations and misleading omissions. And, they were also convicted of fraud to obtain a private gain by depriving the corporation and its shareholders “of their intangible right to the honest services of the corporate officers, directors or controlling shareholders.”
The conventional fraud conviction is not the focus of the appeal.  The defendants only challenge the conviction for “honest services fraud.”  They do not deny that they sought a private gain.  They assert that the scheme was designed and structured in order to obtain a tax benefit from the government.  They argue that for “honest services fraud,” the private gain must be at the expense of the corporations to whom the defendants owed their honest services--a group not argued to include the government.
The 7th Circuit called that a “no harm – no foul” argument which usually fares badly in criminal cases.  If you embezzle money from your employer, but pay it back even with interest before the embezzlement is detected, you are still guilty of the crime.  More to the point, the Court compared the case to one in which a judge was convicted of accepting bribes from litigants.  What the judge took from his employer, the state’s judicial system, was the honest adjudication service that the public thought it was purchasing in exchange for his salary.  If the defendants in this case deprived their employer of the honest services they owed it, the fact that the inducement was the anticipation of money from a third party (the tax benefit) is no defense.
The Court found that there is no doubt that the defendants received the money and very little doubt that they deprived the corporation of their honest services; whether they also got (or hoped to get) a tax break from the government was not an issue.
The Supreme Court has taken this case to determine whether an “honest services fraud” applies to the conduct of a private individual whose alleged “scheme to defraud” did not contemplate economic or other property harm to the private party to whom honest services were owed.

Ritacco - In Weyhrauch, the government has appealed the District Court’s pretrial order excluding certain evidence in this mail and wire fraud prosecution. The case has not yet gone to trial.
According to the indictment Weyhrauch was a lawyer and a member of the Alaska House of Representatives in 2006 while Alaska’s legislature was considering legislation that would alter how the state taxed oil production.  VECO Corp., an oil field services company, took an active interest in the legislature’s reconsideration of the oil tax, and two of its executives had a series of contacts with Weyhrauch regarding the pending legislation.  The indictment further alleges that Weyhrauch solicited, by mail, telephone and personal contact, future legal work from VECO in exchange for voting on the oil tax legislation as VECO instructed and taking other actions favorable to VECO in Weyhrauch’s capacity as state legislator, such as maneuvering the legislation and reporting information about proposed changes to the VECO executives. The indictment does not allege that Weyhrauch received any compensation or benefits from VECO or its executives during this period, but alleges facts suggesting that   Weyhrauch took the actions favorable to VECO on the understanding that VECO would hire him in the future to provide legal services to the company.
Count VII of the indictment charges Weyhrauch with devising “a scheme and artifice to defraud and deprive the State of Alaska of its intangible right to his honest services . . . performed free from deceit, self-dealing, bias, and concealment” and attempting to execute the scheme by mailing his resume to VECO.  The government’s theory is that Weyhrauch deprived the State of Alaska of his honest services by failing to disclose his attempts to secure employment from VECO. 
Concealing this conflict of interest is nondisclosure of material information sufficient to support an honest services fraud charge.
The government sought to offer evidence related to this charge, including ethics publications and a description of the ethics training Weyhrauch had received, the custom and practice in the Alaska Legislature regarding acknowledgement of conflicts of interest, and evidence that Weyhrauch served on the Legislature’s Select Committee on Ethics.
The district court found that the publications, training, custom and practice, and committee membership evidence related only to duties to disclose conflicts of interest that are required by state law. Such evidence was irrelevant since Alaska law did not require Weyhrauch to disclose the conflict of interest he faced in discharging his duties while negotiating for future employment with a company affected by pending legislation. The Judge issued an order excluding the evidence, concluding that “any duty to disclose sufficient to support the mail and wire fraud charges here must be a duty imposed by state law.” 
The 9th Circuit had never addressed whether “honest services” for state officials is defined strictly by the requirements of state law.  The other federal circuits are all over the board on the issue – some holding that an “honest services” conviction requires proof of a violation of state law and some holding that it doesn’t.  Some say a breach of fiduciary duty with intent to reap private gain is enough.  Others require that the breach of duty be material and accompanied by fraudulent intent.
Ultimately, the 9th Circuit rejected the state law violation standard adopted by the District Judge, and reversed his order excluding the government’s proffered evidence.  The Court held that two core categories of conduct by public officials are sufficient to support an “honest services” conviction: (1) taking a bribe or otherwise being paid for a decision while purporting to be exercising independent discretion and (2) nondisclosure of material information.  Accordingly, the government may proceed on its theory that Weyhrauch committed honest services fraud by failing to disclose a conflict of interest or by taking official actions with the expectation that he would receive future legal work for doing so.  No proof of a state law violation is required. 
The Supreme Court has taken this case to answer this question:
In order to convict a state official for depriving the public of its right to the defendant’s honest services through the non-disclosure of material information, does the government have to prove that the defendant violated a disclosure duty imposed by state law?  In other words, are the “honest services” owed by public officials defined strictly by and limited to those imposed by state law?

Cauthen - The Skilling case comes out of the infamous Enron / Arthur Anderson / Merrill Lynch investigation.  Former Enron CEO Jeffrey Skilling was convicted in 2006 of mail and wire fraud conspiracy, securities fraud, making false representations to auditors, and insider trading.
Skilling did not contest that he owed Enron a duty of honest services. Instead, he contended that his conduct did not breach that duty, because his fraud was in the corporate interest and therefore was not self-dealing. In particular, Skilling asserted his actions were not fraudulent because he acted in pursuit of Enron's goals of achieving a higher stock price.
The 5th Circuit had already looked at the “honest services fraud” issue in a previous case out of the same investigation.  That case was Brown v. United States.  In that appeal by several employees of Merrill Lynch, the Court reversed the convictions.  It held that a corporation is not deprived of the honest services of its employee when the actions that constitute fraud benefited a stated goal of the corporation and were committed by the employee at the direction of and with approval of the corporation.  In essence, Brown created an exception for honest-services fraud where an employer sanctions the fraudulent conduct, i.e., where the corporate decision makers, who supervised the employees being prosecuted, specifically authorized the activity.
The 5th Circuit affirmed Skilling’s convictions.  The Court found that even though Skilling’s conduct may have advanced a corporate goal, Enron had neither directed nor sanctioned Skilling’s fraudulent conduct.
The Supreme Court has taken this case to answer this question:
Does § 1346, the federal "honest services" fraud statute, require the government to prove that the defendant's conduct was intended to achieve "private gain" rather than to advance the employer's interests?  In other words, does an employee deprive the employer of honest services when the fraudulent conduct advances the employer’s interest?

Ritacco – It’s worth taking a quick look at Johnson v. United States in which the Supreme Court will have the opportunity to review whether a state battery counts as a “violent felony” for purposes of the federal Armed Career Criminal Act (“ACCA”).  While this case will mostly impact charging and sentencing, it could impact decisions by law enforcement on who to target in their investigations.
In Johnson, the defendant was convicted of possession of ammunition as a convicted felon.  Johnson was sentenced under the ACCA for having three prior violent felonies.  One of those prior violent felonies was a misdemeanor battery charge that had been elevated to a felony by the state because Johnson had a prior battery conviction – otherwise, it would have been a misdemeanor. 
Johnson appealed his conviction to the 11th Circuit on the grounds that the Florida battery statute does not meet the definition of a “violent felony.”  He argued that because a recent Florida Supreme Court decision held that a battery under Florida law is not a “forcible felony” for purposes of the Florida state ACCA, the state battery cannot qualify as a “violent felony” for purposes of the Federal ACCA either.  Johnson also challenged his conviction on the grounds that he did not admit guilt to the predicate offenses when he plead guilty.
The 11th Circuit disagreed with Johnson and affirmed his conviction based on an earlier decision in which the Supreme Court found that the Florida statute did qualify as a violent felony under the federal guidelines.
The United States Supreme Court will consider several issues.  One is whether a crime can qualify as a violent felony for the federal ACCA when the state holds that it does not have as an element the use, attempted use or threatened use of force.  Another is whether the Supreme Court should resolve a split in the circuits by determining whether a state battery is a felony and whether de minimis touching meets the required force element. 

Cauthen - Another case that the Supreme Court will hear during the coming term that warrants a quick preview is US v. O’Brien.   In this case, the Court will consider whether the government must prove the type of weapon used in the commission of a crime beyond a reasonable doubt, as an element of the offense, or simply by a preponderance of the evidence, as a sentencing factor.  Although this decision will primarily impact the nature and timing of evidence presented by the government, it may also impact the nature of the testimony provided by and the degree of the investigation conducted by police when weapons are involved in the commission of a crime. 
In O’Brien, the three defendants were convicted of attempted armed robbery (and various other offenses) involving the use of a machine gun.  The government sought a 30 year mandatory minimum sentence enhancement because of the machine gun.  The District Court for the District of Massachusetts held that the government was required to prove beyond a reasonable doubt that the weapon used was a machine gun as an element of its case.  The government contended that proof that the weapon used was a machine gun was a sentencing factor that need be proved only by a preponderance of the evidence.
On appeal, the 1st Circuit issued an interesting opinion in which it affirmed the District Court ruling but did so reluctantly.  The opinion points out that six circuits (D.C., 4th, 7th, 8th, 10th and 11th) have all held that the type of weapon used is a sentencing factor, while only the 6th has found it to be an element.  Nonetheless,  the First Circuit felt bound by the Supreme Court’s ruling in US v Castillo to find that the type of weapon used is an element.  In Castillo, the Supreme Court interpreted an earlier version of the same statute to mean that the type of weapon use was an element of the crime to be proved beyond a reasonable doubt.  The 1st Circuit found the new version to be too similar to warrant a different result absent guidance from the Supreme Court. 
Now that the Supreme Court has granted cert in this case, it will be interesting to see if the Court sides with the majority of the circuits or reaffirms the prior ruling in Castillo.

Each month, the Legal Division publishes The Federal Law Enforcement Informer.  Each year, the November issue of The Informer includes a Supreme Court Preview.  You can find The Informer on the Legal Division Website.  As cases are added to the Court’s docket, we’ll let you know in subsequent issues.  You can subscribe to The Informer by clicking on the “subscribe” link on The Informer page and entering your e-mail address.
Thanks Poppi.

Ritacco – My pleasure, and thanks to our listeners for joining us.  We are constantly adding podcasts, so look for new ones on our website soon.