To the extent intended by Congress and permitted by the Constitution, courts may impose criminal sanctions on individual corporate officers who were in positions of authority to have prevented or corrected wrongdoing within a corporation but failed to do so. That concept, which has come to be known as the responsible corporate officer (RCO) doctrine, was first developed under the Food, Drug & Cosmetic Act of 1938 (FDCA). See United States v. Dotterweich, 320 U.S. 277 (1943); United States v. Park, 421 U.S. 658 (1975); 21 U.S.C. §§ 331(a), 333(a)(1), 352. Under the RCO doctrine, the government is not required to prove that an officer participated in wrongdoing or even knew about it. The RCO concept also exists outside of the FDCA context – principally under environmental laws. See, e.g., United States v. Hanousek, 176 F.3d 116 (9th Cir. 1999) (construing the Clean Water Act to allow conviction of a misdemeanor offense punishable by a prison term not exceeding one year without a showing of mens rea).

Sometimes characterized as imposing a form of strict vicarious liability, and sometimes characterized as requiring a showing of negligence, the RCO doctrine under the FDCA is a powerful weapon for federal prosecutors and (at least indirectly) the Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA). The potential criminal consequences of a FDCA conviction under the RCO doctrine include a term of imprisonment up to 12 months and at least a six figure fine. The potential collateral consequences of such a conviction include, as a practical matter, exclusion by HHS from participation in the medical device and pharmaceutical industries. Given the lack of a mens rea requirement and the potential sanctions involved, the RCO doctrine provides profound leverage to federal prosecutors to resolve cases through plea agreements, stipulated facts, and uncontested proceedings. As a result, it gives great leverage to other federal enforcement agencies, especially HHS in the exercise of its exclusion authority, and stands as a tool for efficiently advancing the broader regulatory goals of the FDA. Whether that approach to law enforcement is fair or appropriate in any given case is another question.

In Kumar, the government charged the former CEO of Computer Associates, a publicly traded company, along with the company’s head of North American sales, with various crimes relating to a securities fraud scheme. The case arose out of a fraudulent accounting practice known as the “35-day month.” The company had backdated contracts executed in the first few days of a financial quarter to recognize revenue from those contracts in the prior quarter. The illegal purpose of the practice was to make investors believe that the company had met or exceeded its quarterly earnings estimates. Eventually, the defendants pleaded guilty to fraud and other offenses. They were sentenced in November 2006.

Ordinarily, a sentencing court is required to apply the guidelines in effect at the time of sentencing. See U.S.S.G. § 1B1.11(a). If the application of that rule creates an ex post facto problem, however, then a sentencing court is required to apply the guidelines in effect at the time of the offense conduct. The binary choice required under the guidelines is commonly known as the “one-book rule.” See U.S.S.G. § 1B1.11(b)(1); Miller v. Florida, 482 U.S. 423, 430 (1987) (Ex Post Facto clause implicated if a law applies to events that occurred before its enactment and disadvantages the defendant affected by the law);  Weaver v. Graham, 450 U.S. 24, 30 (1981) (“the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated” is central to the ex post facto prohibition).

The conduct underlying the charged fraud offenses in Kumar ended in 2000. Certain uncharged obstructive conduct relating to the fraud offenses had continued until 2005. The district court applied the 2005 guidelines (the version in effect at the time of sentencing) instead of the 1998 guidelines (the version in effect at the time of the offense conduct). The 2005 version of the guidelines contained several sentencing enhancements that did not exist in the 1998 version, including an enhancement for obstructive conduct. The district court, after deciding that defendants had obstructed the government’s investigation of the underlying conduct, applied the enhancement.

On appeal, the defendants argued that they were unfairly punished by application of the 2005 guidelines under the one-book rule because the enhancement did not exist before 2000 at the time of the offense conduct. The panel majority decided that the application of the 2005 guidelines clearly disadvantaged the defendants under the Miller standard because their sentencing ranges under the guidelines were much higher than they would have been if the 1998 guidelines had been applied. But the panel majority concluded that no ex post facto problem existed under Miller because the application of the 2005 guidelines was not retrospective. According to the Kumar majority, the defendants had fair notice of the consequences of committing obstructive conduct postdating the offense conduct because the one-book rule had been adopted before their offense conduct occurred.

Judge Sack, in dissent, stated that “the majority give[s] insufficient attention to the quality of notice that ex post facto jurisprudence requires. It is not notice simpliciter, but notice that is ‘fair.’” Slip op. at 19. In other words, Judge Sack stated a view that any notice created by the existence of the one-book rule existed at a level of generality too high to permit an enhancement based on an amendment to the guidelines that had been promulgated after the offense conduct. Ultimately, the disagreement between the panel majority and Judge Sack involves the types of line-drawing and contextual issues concerning the scope and meaning of notice that are often present in litigation under the Due Process Clause.

All of this invites a more basic question: What practical difference does ex post facto analysis make when the sentencing guidelines are simply one non-binding factor that a court must consider under 18 U.S.C. § 3553(a)? The Seventh Circuit, in an opinion by Judge Posner, has held squarely that the Ex Post Facto clause does not even apply to the post-Booker advisory sentencing guidelines. See United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006) (“We conclude that the ex post facto clause should apply only to laws and regulations that bind rather than advise[.]”). According to Demaree, a sentencing judge who agrees with a guideline enhancement that was promulgated after the offense conduct can reach the same result through another means under 18 U.S.C. § 3553(a) as if he or she were directly applying the guideline enhancement. Id. (“[A] rule that a guidelines change cannot be applied retroactively if it would be adverse to the defendant would have in the long run a purely semantic effect”). (Even before United States v. Booker, when the sentencing guidelines were mandatory, Judge Easterbrook took the position that “sentencing guidelines are not ‘laws’ within the scope of [the Ex Post Facto] clause.” See United States v. Vivit, 214 F.3d 908, 924 (7th Cir. 2000) (concurring opinion).) Other circuits have disagreed with Demaree.  See, e.g., United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C. Cir. 2008).

In Kumar, the district court had held (consistent with Demaree) that “because the Guidelines [are] advisory, the Ex Post Facto clause [is] not implicated by sentencing decisions.” Slip op. at 8. The court of appeals, however, chose to sidestep that bedrock question entirely. See slip op. at 25 n.12 (majority opinion); id. at 11 n.7 (dissenting opinion). Presumably, the Second Circuit proceeded in that manner because the government on appeal disclaimed any reliance on the district court’s position. Slip op. at 25 n.12. In Demaree, the government similarly had argued on appeal that the Ex Post Facto clause applies to the advisory guidelines. Not mincing words, Judge Posner characterized the government’s position as a “rearguard action against Booker” and an effort to make the guidelines “bind as tightly as possible.” 459 F.3d at 795.  (Now, the government has taken a position at odds with its stance in Demaree and Kumar. See United States v. Lanham, et al., Nos. 08-6504/6506, 09-5094/5095, slip op. at 20 (6th Cir., Aug. 24, 2010) (rejecting government’s argument that harsher, post-conduct version of the guidelines applied and stating that advisory nature of guidelines does not eliminate ex post facto concerns).  This is either a change of course or the Acting Solicitor General will need to impose order here.)

Whether one chooses to accept Judge Posner’s brand of legal realism, there is no question that a district judge has broad discretion to reach results under Section 3553(a) that vary substantially from the guidelines. In Kumar itself, the district court varied downward from life sentences recommended by the guidelines and imposed sentences of 7 years and 12 years. In the end, the type of intense legal skirmishing exemplified by Kumar may demonstrate, more than anything else, that the advisory guidelines continue to have a tethering effect despite their status under Section 3553(a) as a single factor among many that must be considered by courts in federal sentencing proceedings.

The question of venue in notorious criminal prosecutions is often difficult. The Supreme Court has held that a presumption of prejudice arises when “the influence of the news media” in “the community at large” is sufficiently pervasive. Murphy v. Florida, 421 U.S. 794, 799 (1975); see Sheppard v. Maxwell, 384 U.S. 333, 362-63 (1966). Consider the case of Jeff Skilling (Enron’s former president). Skilling was convicted of various financial crimes in connection with Enron’s collapse. From the beginning, Skilling’s lawyers argued that he could not receive a fair trial in Houston (asserting, among other things, that one in three Houstonians knew someone who had been harmed by Enron’s demise). The district court rejected the venue argument. On appeal, the Fifth Circuit held that the district court should have applied a presumption of prejudice, but further held that the government had successfully rebutted the presumption by showing that an impartial jury actually had been impaneled. The second question presented in Skilling’s pending petition for certiorari concerns whether such a rebuttal is permissible or whether a change of venue (or, in the post-trial context, automatic reversal of the conviction) is the appropriate remedy. See Skilling v. United States, No. 08-1394.

Changes of venue in criminal cases (and remedies for failures to change venue) do occur. The most famous instance is probably the Sheppard case in which a Cleveland physician, convicted of murdering his pregnant wife, ultimately was granted a new trial after having served 10 years in prison. 383 U.S. 333. Recently, a district judge in Iowa ordered a change of venue for trial from the Northern District of Iowa to the District of South Dakota in a well-publicized case involving alleged undocumented workers that stemmed from a raid on a meatpacking plant. See United States v. Agriprocessors, Inc., et al., No. 08-CR-1324-LRR (N.D. Iowa) (docket entry 656). But changes of venue are unusual.

Given the standards involved in venue challenges, the Eighth Circuit’s  rejection of the venue argument in Rodriguez is hardly surprising. The holding that a district court is not required to consider evidence, however, is another matter. There is nothing inherently unreliable or invalid about a public opinion poll. The Advisory Committee Notes to Fed. R. Evid. 703, for instance, specifically recognize “public opinion poll evidence.” The U.S. Bureau of the Census first used statistical sampling techniques in 1937. See http://www.census.gov/history/www/innovations. The Federal Judicial Center has addressed the use of sampling techniques in detail. See Manual for Complex Litigation (3d ed.), Section 21.493 (“Sampling/Opinion Surveys”). If a public opinion survey is based on unreliable methods or lacks validity, or if the survey has an attenuated relationship to the issue at hand, a district court is certainly free to reject or minimize the significance of the data. The Eighth Circuit, however, has made a categorical pronouncement that misstates prevailing law and has the effect of denigrating science. That is not a desirable result for anyone.

Despite a recent tease, the Supreme Court hasn’t made matters any more coherent. In United States v. Santos, 128 S.Ct. 2020 (2008), the Court held that the definition of “proceeds” in the federal money laundering statute, 18 U.S.C. § 1956, covers only criminal receipts, not profits. Writing for himself and Justices Thomas, Souter, and Ginsburg, Justice Scalia stated:

From the face of the statute, there is no more reason to think that ‘proceeds’ means ‘receipts’ than there is to think that ‘proceeds’ means ‘profits.’ Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. See United States v. Gradwell, 243 U. S. 476, 485 (1917); McBoyle v. United States, 283 U. S. 25, 27 (1931); United States v. Bass, 404 U. S. 336, 347– 349 (1971). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead. Because the ‘profits’ definition of ‘proceeds’ is always more defendant-friendly than the ‘receipts’ definition, the rule of lenity dictates that it should be adopted.

128 S.Ct. at 2025. Justice Stevens provided the fifth vote for the Court’s narrow holding but did not join Justice Scalia’s view of the rule of lenity. Concurring only in the judgment, Justice Stevens concluded that “proceeds” under Section 1956 can mean “receipts” in some instances and “profits” in others depending on the type of predicate criminal activity involved. 129 S.Ct. at 2031-34. To that, Justice Scalia responded for the plurality: “Our obligation to maintain the consistent meaning of words in statutory text does not disappear when the rule of lenity is involved.” Id. at 2030.

The plurality opinion in Santos, which was decided during the October 2007 Term, has marked a high point for the rule of lenity. Since then, the Court has retreated in its approach to the concept. See United States v. Hayes, 129 S.Ct. 1079 (2009); Dean v. United States, 129 S.Ct. 1849 (2009). The majorities in both Hayes and Dean invoked Muscarello‘s “grievous ambiguity” standard. Moreover, the lineup of Justices in Hayes and Dean is rather startling given Santos.

In Hayes, the defendant was prosecuted under 18 U.S.C. § 922(g)(9) for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Writing for a seven-Justice majority (including Justices Thomas and Souter, who joined Justice Scalia’s plurality opinion in Santos), Justice Ginsburg (who also joined the Santos plurality opinion) stated that the requisite domestic relationship must be established beyond a reasonable doubt but need not be a defining element of the predicate offense. 129 S.Ct. at 1084-89. Rejecting the application of the rule of lenity, the Court stated: “Section 921(a)(33)(A)’s definition of ‘misdemeanor crime of domestic violence,’ we acknowledge, is not a model of the careful drafter’s art. See Barnes, 295 F.3d, at 1356. But neither is it ‘grievous[ly] ambigu[ous].’ Huddleston v. United States, 415 U.S. 814, 831  [] (1974).” In a dissent, Chief Justice Roberts (joined by Justice Scalia), stated: “This is a textbook case for application of the rule of lenity. . . . If the rule of lenity means anything, it is that an individual should not go to jail for failing to conduct a 50-state survey or comb through obscure legislative history. Ten years in jail is too much to hinge on the will-o’-the-wisp of statutory meaning pursued by the majority.” 129 S.Ct. at 1093.

In Dean, decided two months after Hayes, the Court held that a statutory sentencing enhancement under 18 U.S.C. § 924(c) for discharge of a firearm during the commission of a violent crime does not require proof of intent. 129 S.Ct. at 1856. Chief Justice Roberts, writing for seven Justices (including every member of the Santos plurality), invoked Muscarello‘s “grievous ambiguity” standard in holding that the rule of lenity was not implicated:

‘The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.’ Muscarello v. United States, 524 U.S. 125, 138 [] (1998); see also Smith, supra, at 239, 113 S.Ct. 2050 (‘The mere possibility of articulating a narrower construction, however, does not by itself make the rule of lenity applicable’). ‘To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute.’ Muscarello, supra, at 138-139, 118 S.Ct. 1911 (internal quotation marks omitted). In this case, the statutory text and structure convince us that the discharge provision does not contain an intent requirement. Dean’s contrary arguments are not enough to render the statute grievously ambiguous.

129 S.Ct. at 1856. Dissenting, Justice Stevens invoked the rule of lenity. Id. at 1858-59 (Stevens, J., dissenting). Justice Breyer, in a separate dissent, stated that “the ‘rule of lenity’ tips the balance against the majority’s position.” Id. at 1861.

Despite the plurality opinion in Santos, a majority of the Justices now appear to have embraced Muscarello‘s “grievous ambiguity” standard with renewed vigor. The Justices’ treatment of the rule of lenity the last two Terms has been at best curious. Justice Scalia himself, after writing the Santos plurality opinion and joining the Hayes dissent, joined a majority opinion in Dean that articulates an especially narrow version of the rule of lenity.

If the Justices are unwilling to frame a consistent standard, lower court judges are far less likely to take the rule of lenity seriously and apply it meaningfully. Why can’t the Supreme Court set it straight? Given a description of Santos, Hayes, and Dean, the legal realists in the 1930s (and the so-called critical legal theorists in the 1980s) might have said that the Justices are using the rule of lenity, like canons of statutory construction, as nothing more than a vehicle to reach a desired result in a given case. Let’s hope that is not true. The rule of lenity, rooted in our deepest constitutional principles, is no mere interpretive tool. Although cynicism may be appropriate, it would be a serious mistake to accede to the ‘grievous ambiguity’ standard because the Court itself does not appear to be sure what it wants. So the focus must remain sharp: convincing district judges every day that the rule of lenity has real force – and eventually convincing five Justices to articulate a consistent standard that gives the rule of lenity its due.