In Speakman, the defendant pleaded guilty to wire fraud in violation of 18 U.S.C. § 1343. The plea agreement stipulated that the defendant defrauded his ex-wife by forging her signature and transferring her funds to himself. The district court sentenced the defendant to a term of imprisonment and ordered restitution.

The district court’s restitution order had two components. First, the court ordered the defendant to pay a brokerage firm $1,225,000. That was the amount paid by the firm to the defendant’s ex-wife in an arbitration proceeding after the fraud was discovered. Second, the court ordered the defendant to pay $194,205.77 – the remainder resulting from the fraud as calculated by the court – to the Crime Victims Fund because defendant’s ex-wife had expressly declined to receive further restitution from the defendant. (The Crime Victims Fund is an entity created by Congress in 1984 to assist victims of crime. See http://www.ojp.usdoj.gov/ovc.) The district court believed that the governing statute mandates an order of restitution even when the victim declines to receive compensation.

On appeal, the defendant challenged both components of the restitution order. First, he argued that the brokerage firm was not a “victim” within the meaning of the governing statute. The Tenth Circuit held that the record was unclear on that issue and remanded the case for further factual development. Second, the defendant argued that the court lacked authority to order payment to the Crime Victims Fund. The court of appeals agreed and reversed that portion of the restitution order.

As the Tenth Circuit stated, “‘[f]ederal courts possess no inherent authority to order restitution, and may only do so as explicitly empowered by statute.’” Slip op. at 20 (citation omitted). Although the governing statute permits a victim to assign an interest in restitution to the Crime Victims Fund, the victim in Speakman had not done that. Without an assignment, the Tenth Circuit held that the tangle of relevant federal statutory provisions does not permit restitution when the victim declines payment.

Unlike the Tenth Circuit, the Second Circuit has affirmed a district court’s order requiring a defendant to make restitution to the Crime Victims Fund without an assignment of interest by the victim.  See United States v. Johnson, 378 F.3d 230, 244 (2d Cir. 2004). In Speakman, the Tenth Circuit explicitly disagreed with the Second Circuit’s construction of the governing statute. Slip op. at 24. More broadly, however, the Tenth Circuit identified a “deeper disagreement between our two courts about the nature of restitution.” Id. at 25. According to the Tenth Circuit, the federal statute governing restitution “does not inflict criminal punishment, and thus is not punitive.” Id. (citation omitted; emphasis in original). Thus, “[i]f the victim declines restitution but the court nevertheless orders the defendant to pay a sum of money to another entity, this punishes the defendant without in any way compensating the victim[,]” which the court held is improper. Id. The Second Circuit, in contrast, takes the position that “[r]estitution undoubtedly serves traditional purposes of punishment.” United States v. Brown, 744 F.2d 905, 909 (2d Cir. 1984).

The federal restitution statute is the subject of ongoing disputes. Just last month, for instance, the Supreme Court granted review in Dolan v. United States, No. 09-367, which presents the question whether a district court may enter a restitution order beyond the time limit prescribed by 18 U.S.C. § 3664(d)(5). Over the years, Congress has acted many times to modify the statutory framework with unsatisfactory results. Short of more careful congressional action, conflicts like the one identified in Speakman, and the uncertainty they engender, will persist, subject only to the policing that the Supreme Court may choose (or not choose) to perform.

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.

Black, once one of the largest newspaper magnates in the world, was charged in a high-profile indictment with defrauding his former employer, Hollinger International, and obstructing justice. In 2007, a federal jury in Chicago acquitted him on numerous counts but convicted him on certain fraud and obstruction charges. On appeal, Black’s lawyers raised a number of important issues. Among others, the lawyers asserted that Black was entitled to a new trial on two of the fraud charges. Although the government’s theories were somewhat opaque, the government had asserted at trial that Black conspired fraudulently to deprive his employer of (1) money or property and (2) his honest services in connection with certain payments that benefited him. According to Black’s counsel, the “honest services” instruction to the jury was erroneous because it allowed the jury to convict him without concluding that he contemplated economic harm to his employer and that the harm was at his employer’s expense. Furthermore, Black’s counsel argued, the convictions on those counts were subject to reversal under Yates v. United States, 354 U.S. 298 (1957) even if the money/property theory was valid because the honest services instruction was flawed and thus allowed the jury to return a guilty verdict solely on a legally invalid ground.

The case was argued on June 5, 2008 before a panel that included Judge Richard A. Posner. Judge Posner authored an opinion that was issued on June 25, 2008 — fewer than three weeks after the argument. The opinion affirmed the conviction and sentence in all respects. Judge Posner did not pause in rejecting the honest services argument. Nor did he pause in stating that Black had forfeited his right to the Yates argument, even if Black’s honest services argument was correct, because Black had objected, before jury deliberations, to a special verdict form proposed by the government that would have had the jury specify the theory of conviction (honest services or money/property) underlying its verdict on those counts.

Black filed his petition for certiorari on January 9, 2009. The first question presented concerns the scope of the honest services statute. The second question presented, as framed by the petition, is “[w]hether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.” On May 18, 2009, the Supreme Court granted the petition on both questions presented.

The second question presented, which concerns the special verdict issue, has broad importance for criminal trial lawyers. Federal prosecutors use conspiracy charges as powerful tools in pursuit of convictions. As a “darling of the modern prosecutor’s nursery[,]” Harrison v. United States, 7 F.2d 259, 263 (2d Cir.1925) (L. Hand, J.), a conspiracy charge provides enormous leverage to the government in a criminal case. From the standards governing admission of co-conspirator hearsay evidence (Bourjaily v. United States, 483 U.S. 171 (1987)) to the fact that a conspiracy count may charge multiple objects (Braverman v. United States, 317 U.S. 49 (1942)), the federal law governing the use of conspiracy charges is very favorable to the government. Yates stands as a (relatively modest) check on that power in the sense that a forward-thinking prosecutor will reflect before including a weak theory in a multiple-object conspiracy count. A weak theory may increase the likelihood of a conviction but will also increase the risk of reversal down the road.

The federal rules of criminal procedure do not specify the form that a verdict must take. A general verdict form does not require a jury to specify the ground for its conviction. A special verdict form or special interrogatories, in contrast, may require a jury to identify (to some extent) the rationale for its decision. In a criminal case, a special verdict forms or special interrogatories may run a serious risk of interfering with the jury’s deliberations in violation of a defendant’s Sixth Amendment right to have the jury make the ultimate determination of guilt because the questions may have the effect of guiding the jury to its conclusion.

In the ordinary multiple-object conspiracy case, a prosecutor takes his or her chances. The theories are chosen and stated in the indictment, the evidence is presented, and the jury returns a general verdict subject to the rule in Yates. In the Black case, however, the prosecutors proposed a special verdict form (of sorts) by which the jury would specify for the conspiracy count whether its conviction was based on the honest services fraud theory or the money/property deprivation theory. As one might predict, the defense lawyers objected on the ground that such a form would unfairly skew deliberations. By holding that Black had forfeited his right to complain about the honest services instruction under Yates because he could have accepted the special verdict form, the panel created an election rule. The judges apparently believed that Black unfairly was trying to have it both ways by avoiding the special verdict form at trial and then taking refuge in Yates on appeal.

The basic legal problem with Judge Posner’s approach, as stated by the second question presented in Black’s petition, is that it is not rooted in any federal rule. More broadly, it risks undue pressure on the jury’s deliberations and thus threatens the criminal defendant’s Sixth Amendment rights. The election rule created by Judge Posner may have some superficial appeal as an equitable principle in litigation.  But the rule actually gives rise to more inequity.  The Seventh Circuit’s opinion fails to appreciate that the election rule creates a disincentive for federal prosecutors to choose the theories in a multiple-object conspiracy count carefully.  From that perspective, it could be called a non-election rule — one that increases the already-profound prosecutorial leverage in the conspiracy context against the interests of criminal defendants.  Although the focus on the Black case will continue to be on the honest services issue, the special verdict issue deserves close attention as well.

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.