U.S. Supreme Court Toughens Standards for Consideration of Plain Error Rule.


 2nd. Circuit Court had ruled that “whenever there exists ‘any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct,” a new trial was justified.   The Supreme Court reversed that standard and held that the error must be sufficiently weighty to affect ‘substantial rights.


Mark Hamblett New York Law Journal   May 25, 2010


A man whose conviction for sex trafficking and forced labor was overturned by the 2nd U.S. Court of Appeals did not win as favorable a result before the U.S. Supreme Court.

The 2nd Circuit found in 2008 that the mere possibility that a jury attributed conduct to defendant Glenn Marcus that occurred before the enactment of the Trafficking Victims Protections Act of 2000 meant a violation of the Constitution’s ex post facto clause, and it ordered a new trial for Marcus.

On Monday, however, the U.S. Supreme Court ruled the 2nd Circuit’s approach “cannot be reconciled” with Supreme Court case law on ordering reversal under the “plain error standard,” in United States v. Marcus (pdf), No. 08-1341.

The Court reversed by a vote of 7-1 and instructed the circuit court to revisit the case and apply the correct standard.

Justice Stephen Breyer delivered the opinion of the Court and Justice John Paul Stevens dissented. Justice Sonia Sotomayor did not take part because she was part of the original 2nd Circuit panel to have decided the Marcus appeal, along with 2nd Circuit Judges Chester J. Straub and Richard C. Wesley.

Marcus was convicted in the Eastern District of New York in 2007 of violating the sex trafficking and forced labor provisions of the act after prosecutors presented evidence of conduct between January 1999 and October 2001.

The conduct, according to court papers, involved meeting a woman named “Jodi” in an Internet chat room devoted to bondage, convincing her to become one his “slaves,” and having her move into his Maryland apartment. Once in the apartment, Marcus engaged in sadomasochistic activities with Jodi and other “slaves,” — he branded her, required her to obtain permission to contact her family, posted pictures of her on his website, and required to her to post a diary of her experiences.

In October 1999, he handcuffed her to a wall and, when she said she wanted to leave, he punished her and posted photos of the punishment on the Web site. He later forced her to move to New York and work more than eight hours a day creating and managing his website “Slavespace.”

Marcus was sentenced to serve nine years in prison.

On the appeal, the prosecution argued that there was a “remote possibility” that the jury could have convicted Marcus purely on conduct that preceded the October 2000 enactment of the Trafficking Victims Protections Act, but the circuit should nonetheless affirm because he was engaged in a continuing course of conduct.

Prosecutors also noted that Marcus did not raise an objection to Judge Allyne Ross’s failure to instruct the jury with regard to the date of the law’s enactment.

Nonetheless, the circuit said that under its own precedents “a retrial is necessary whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.”.

On Monday, in reversing the circuit, Breyer said Rule 52(b) of the Federal Rules of Criminal Procedure allows appellate courts to recognize a plain error even where it was not brought to the district court’s attention.

The courts can do so, he said, where there is a “clear or obvious error” that “affected the appellant’s substantial rights” and “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

Breyer said the 2nd Circuit’s approach, which “would notice a plain error and set aside a conviction whenever there exists ‘any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct,’ is irreconcilable with our ‘plain error’ approach.”

Breyer said the Supreme Court has noted in the past that certain “structural errors” might “affect substantial rights” regardless of their impact on an appellant’s trial.

And while he agreed that Ross could have minimized or eliminated this risk with a proper instruction for the jury, that does not mean, as Marcus argued, that her error was “structural.”

“We see no reason why, when a judge fails to give such an instruction, a reviewing court would find it any more difficult to assess the likely consequences of that failure than with the numerous other kinds of instructional errors that we have previously held to be non-’structural’ — for example, instructing a jury as to an invalid alternative theory of guilt,” he said.

The Court remanded for consideration of whether the case meets its “plain error” standard.

In his dissent, Stevens said, “The question under Federal Rule of Criminal Procedure 52(b) is whether the trial error was sufficiently weighty to affect ‘substantial rights,’ and in my view the error surely was.”

Marcus, who has remained in jail since his 2007 conviction, was represented by Herald Price Fahringer.

Fahringer said the result could have been better, but it could have been worse, and he said his client is in a favorable position when the 2nd Circuit takes up the plain error analysis because the government “conceded error in the sexual aspect of the case, recognizing they put in a great deal of evidence from the period before the statute was enacted.”

Fahringer said that, “procedurally, this has wide ramifications because so many people invoke plain error” when an objection has not been properly preserved below.

Eric D. Miller, assistant to the U.S. solicitor general, argued for the government.

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