Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

This is an important case, imo.

ROBERT SORICH, TIMOTHY McCARTHY, AND PATRICK SLATTERY
v.
UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 08–410. Decided February 23, 2009

The petition for a writ of certiorari is denied.

McNally v. United States, 483 U. S. 350 (1987), this Court held that while “[t]he mail fraud statute clearly protects property rights, . . . [it] does not refer to the intangible right of the citizenry to good government.” Id. , at 356.

 

In 

That holding invalidated the theory that official corruption and misconduct, by depriving citizens of their”intangible right” to the honest and impartial services of government, constituted fraud. Although all of the Federal Courts of Appeals had accepted the theory, see id., at 364 (STEVENS, J., dissenting), we declined to “construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in settingstandards of disclosure and good government for local and state officials.” Id., at 360 (majority opinion). “If Congress desires to go further,” we said, “it must speak more clearly than it has.” Ibid.

Congress spoke shortly thereafter. “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” 18 U. S. C. §1346.Whether that terse amendment qualifies as speaking “more clearly” or in any way lessens the vagueness andfederalism concerns that produced this Court’s decision in

 

 

 

 

 

 

 

 

 

 

McNally

Though it consists of only 28 words, the statute has been

 

 

 

 

 

 

 

 

 

 

invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries. Courts have upheld convictions of a local housing official who failed to disclose a conflict of interest, United States v. Hasner, 340 F. 3d 1261, 1271 (CA11 2003) (per curiam); a businessman who attempted to pay a state legislator to exercise “informaland behind-the-scenes influence on legislation,” United States v. Potter, 463 F. 3d 9, 18 (CA1 2006); students who schemed with their professors to turn in plagiarized work, United States v. Frost, 125 F. 3d 346, 369 (CA6 1997); lawyers who made side-payments to insurance adjustersin exchange for the expedited processing of their clients’ pending claims, United States v. Rybicki

If the “honest services” theory—broadly stated, that officeholders and employees owe a duty to act only in the best interests of their constituents and employers—istaken seriously and carried to its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to vote for a bill because he expects it willcurry favor with a small minority essential to his reelection; a mayor’s attempt to use the prestige of his office toobtain a restaurant table without a reservation; a public employee’s recommendation of his incompetent friend for a public contract; and any self-dealing by a corporate officer.Indeed, it would seemingly cover a salaried employee’sphoning in sick to go to a ball game. In many cases, moreover, the maximum penalty for violating this statute willbe added to the maximum penalty for violating 18 U. S. C. §666, a federal bribery statute, since violation of the latter requires the additional factor of the employer’s receipt of 

 

 

 

 

 

 

 

 

 

 

To avoid some of these extreme results, the Courts of Appeals have spent two decades attempting to cabin thebreadth of §1346 through a variety of limiting principles. No consensus has emerged. The Fifth Circuit has held that the statute criminalizes only a deprivation of servicesthat is unlawful under state law,

 

 

 

 

 

 

 

 

 

 

United States v. Brumley, 116 F. 3d 728, 735 (1997) (en banc), but other courtshave not agreed, see United States v. Martin, 195 F. 3d 961, 966 (CA7 1999) (Brumley “is contrary to the law inthis circuit . . . and in the other circuits to have addressed the question”). The Seventh Circuit has construed the statute to prohibit only the abuse of position “for private gain,” United States v. Bloom, 149 F. 3d 649, 655 (1998),but other Circuits maintain that gain is not an element of the crime at all, e.g., United States v. Panarella, 277 F. 3d 678, 692 (CA3 2002). Courts have expressed frustration at the lack of any “simple formula specific enough to giveclear cut answers to borderline problems.” United States v. Urciuoli

It is practically gospel in the lower courts that the statute “does not encompass every instance of official misconduct,”

 

 

 

 

 

 

 

 

 

 

United States v. Sawyer, 85 F. 3d 713, 725 (CA1 1996). The Tenth Circuit has confidently proclaimed that the statute is “not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing,” United States v. Welch, 327 F. 3d 1081, 1107 (CA10 2003). But why that is so, and whatprinciple it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified. Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline

In the background of the interpretive venture remainthe two concerns voiced by this Court in

 

 

 

 

 

 

 

 

 

 

McNally. First, the prospect of federal prosecutors’ (or federal courts’)creating ethics codes and setting disclosure requirementsfor local and state officials. Is it the role of the Federal Government to define the fiduciary duties that a townalderman or school board trustee owes to his constituents? It is one thing to enact and enforce clear rules againstcertain types of corrupt behavior, e.g., 18 U. S. C. §666(a) (bribes and gratuities to public officials), but quite another to mandate a freestanding, open-ended duty to provide”honest services”—with the details to be worked out caseby-case. See generally Brown, Should Federalism Shield Corruption?—Mail Fraud, State Law and Post-Lopez

Second and relatedly, this Court has long recognized the”basic principle that a criminal statute must give fairwarning of the conduct that it makes a crime.”

 

 

 

 

 

 

 

 

 

 

Bouie v. City of Columbia, 378 U. S. 347, 350 (1964).

There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But “the notion of a commonlaw crime is utterly anathema today,” Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judgesand prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra

The present case in which certiorari is sought implicatestwo of the limiting principles that the Courts of Appeals 

 

 

 

 

 

 

 

 

 

 

have debated—whether the crime of deprivation of “honest services” requires a predicate violation of state law, and whether it requires the defendant’s acquisition of somesort of private gain. The jury was instructed that petitioners, who were employed by the city of Chicago, wereobliged, “[a]s part of the honest services they owed the City and the people of the City of Chicago,” to abide by alaundry list of “laws, decrees, and policies,” including a 1983 civil consent decree entered into by the city whichbarred patronage hiring for some city jobs. App. to Pet. forCert. 137–140. The Seventh Circuit approved the instruction, again rejecting the Fifth Circuit’s violation-of-statelaw principle. “It may well be,” the court said, “thatmerely by virtue of being public officials the defendants inherently owed the public a fiduciary duty to dischargetheir offices in the public’s best interest.” 523 F. 3d, at 712. And though petitioners received no direct personal benefit from the patronage they doled out on behalf oftheir political masters, the Seventh Circuit found it sufficient that the patronage appointees—who were not charged in the scheme—accrued private gain. Id.

Finally, in addition to presenting two of the principaldevices the Courts of Appeals have used in an effort to limit §1346, the case also squarely presents the issue of itsconstitutionality. The Court of Appeals rebuffed petitioners’ argument that if §1346 really criminalizes all conduct that is not “in the public’s best interest” and that benefits

 

 

 

 

 

 

 

 

 

 

someone, it is void for vagueness. The court cited two prior Circuit decisions which, it said, “provided sufficientnotice.” Id.

It may be true that petitioners here, like the defendantsin other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.”

 

 

 

 

 

 

 

 

 

 

Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding 

 

 

In Nelson v. United States, __ S.Ct. __, 2009 WL 160585 (Jan. 26, 2009), the Court took the Fourth Circuit to task for affirming a within-guidelines sentence despite the judge’s statements at sentencing that “the Guidelines are considered presumptively reasonable” and that “unless there’s a good reason in the [3553(a)] factors . . ., the Guideline sentence is the reasonable sentence.” 

Key quote from the Supreme Court:
      The Guidelines are not only not mandatory on sentencing courts; they
      are also not to be presumed reasonable.  We think it plain from the
      comments of the sentencing judge that he did apply a presumption of
      reasonableness to Nelson’s Guidelines range.  Under our recent
      precedents, that constitutes error.

And, yes, the italics were in the original opinion.

Justices Breyer and Alito concurred in the judgment; they would simply have GVR’d the case given the fact that the Soliciter General conceded the statements constituted reversable error.  Once again, though, it looks like a majority of the Court has had it with appellate courts that refuse to embrace Booker, Rita, Gall, and Kimbrough.

You can use Nelson to remind your district court judges that the guidelines cannot be given any priority at sentencing, and use the Deconstructing the Guidelines resources on fd.org’s Sentencing Resource page to show why they ought not to be followed at all.

To read the opinion:

Nelson v. United States

David Finn

Holding: Government’s reason for refusing to file
§5K1.1 motion was unconstitutional.

After the defendant was arrested with drugs, he
immediately started cooperating with police by calling
his drug supplier and leaving a message with the return
phone number of a detective with police department.

The detective heard from the supplier, arranged a purchase,
and arrested the supplier when he arrived with the
cocaine. Based on this cooperation, the government
stated that it would file a motion for reduced sentence
under §5K1.1. However, the defendant did not plead
guilty and took the matter to trial, where he was found
guilty of drug conspiracy and distribution charges.

Because the defendant went to trial, the government
refused to file the motion under §5K1.1.

At sentencing, the defendant moved the district court to compel the
filing of the motion. The government responded that the
defendant “chose not to continue with his cooperation.
He chose to go to trial.�

The district court denied the
motion and the defendant appealed.

The Eleventh Circuit explained that although the district court could not grant
a downward departure under §5K1.1 without the
government’s motion, it had the authority to review a
prosecutors refusal to file the motion and to grant a
remedy if it found the refusal was based on an
unconstitutional motive.

“Judicial review is appropriate only when there is an allegation and a substantial
showing that the prosecution refused to file substantial assistance motion because of a constitutionally impermissible motivitation.� In this case, refusing to file
a §5K1.1 motion in order to punish a defendant for exercising his right to trial was an unconstitutional motive.

“While the government may refuse to file a
§5K1.1 for many reasons, to punish a person because he
has done what the law plainly allows him to do is a due
process violation of the most basic sort.�

Refusing to file the motion in retribution for exercising the Sixth
Amendment right to jury by trial was an unconstitutional motive.

The sentence was vacated and remanded.

David Finn