Publications
Dixon v. United States (05-7053), Fernandez-Vargas v. Gonzales (04-1376) and Laboratory Corporation of America Holdings, d/b/a LabCorp v. Metabolite Laboratories, Inc. (04-607)
Greetings, Court fans!
Without further ado, we’ll finish up the three remaining decisions from last week.
In Dixon v. United States (05-7053), the Court held 7-2 that, absent statutory language to the contrary, a criminal defendant may be required to prove the defense of duress by a preponderance of the evidence. Keisha Dixon purchased firearms at two gun shows, each time providing an incorrect address and falsely affirming that she was not under indictment for a felony. At trial, she admitted that she knew she was under indictment when she made the purchases and that it was a crime to do so, but claimed that her boyfriend had threatened to kill her if she didn’t buy the guns. Dixon sought a jury charge requiring the Government to disprove duress beyond a reasonable doubt, arguing that a finding of duress would negate mens rea (and thus the Due Process Clause required the government to bear the burden because mens rea is an element of the offense) and that the instruction was required by modern federal common law. The trial court instead put the burden on Dixon to prove duress by a preponderance of the evidence. Dixon was convicted, and the Fifth Circuit affirmed.
Led by Justice Stevens, the majority found that no basis for requiring the government to bear the burden of disproving duress beyond a reasonable doubt. First, duress does not controvert the mens rea requirements of Dixon’s alleged crimes, which were that she acted “knowingly” and “willfully.” “Knowingly” means that a defendant acted with “knowledge of the facts that constitute the offense” โ here, that she was under indictment and/or made false statements (which Dixon admitted at trial). “Willfully” requires that a defendant “acted with knowledge that his conduct was unlawful” (and Dixon admitted that she knew it was a crime to purchase guns with false statements or while under indictment). Duress may excuse this conduct, but it does not negate mens rea. Second, modern common law does not require placing the burden of proof on the government. Historically, the burden on all affirmative defenses rested on the defendant. The Court departed from this rule in Davis v. United States, 160 U.S. 469 (1895), where it required the government to prove a murder defendant’s sanity beyond a reasonable doubt on the ground that insanity would controvert the unique mens rea requirement for murder, and thus evidence of sanity also would tend to prove mens rea. (In 1984, Congress put the burden back on defendants, requiring them to prove insanity by clear and convincing evidence.) But unlike the insanity defense in Davis, duress does not controvert mens rea for Dixon’s crimes, and there is no evidence that Davis sparked a revolution with respect to duress the way that it did for insanity. Finally, the facts relating to duress are peculiarly in the defendant’s possession, so it makes sense to place the burden of proof on her.
Justice Kennedy concurred to note that “it seems altogether a fiction to attribute to Congress any intent one way or the other in assigning the burden of proof.” Further, Congress surely wouldn’t want the burden to vary statute by statute, based on the state of the common law at the time of enactment, but presumably wanted courts to apply traditional principles for allocating burdens. Because proof of duress lie peculiarly in the knowledge of the defendant, the usual rule giving her the burden should apply. Justice Alito, joined by Scalia, also concurred to emphasize that the majority opinion should not be read to permit the burden on duress to vary from statute to statute; the burden should remain where it was when Congress began enacting criminal statutes (with the defendant), because it is unrealistic to “assume that Congress makes a new, implicit judgment about the allocation of these burdens whenever it creates a new federal crime or . . . revises an existing criminal statute.”
Finally, Justice Breyer dissented, joined by Souter. They agree that there is no constitutional requirement that the government bear the burden of proving duress and that Congress therefore may place the burden on either party. But they believe that Congress made no such determination, instead implicitly delegating the function of assigning burdens to the judiciary. While here the issue is “a close one,” they would assign the burden to the government because, while duress may not negate mens rea, it is similar to mens rea in that one who acts under duress acts without any meaningful choice and can hardly be said to be a criminal. Further, federal courts have put the burden on the government with respect to other affirmative defenses that resemble duress, such as self-defense and entrapment, and there is substantial benefit to adopting a uniform approach. Finally, numerous courts previously had required the government to bear the burden on duress, and there has been no showing that this approach is unworkable.
Turning to immigration law, we come to Fernandez-Vargas v. Gonzales (04-1376), where the Court held that the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) applies to those who illegally reentered the United States before IIRIRA’s effective date (1997). The Immigration and Nationality Act (“INA”) long has provided that an order to remove an alien may be reinstated if he unlawfully reenters the country. Until fairly recently, however, this provision was limited to particular categories of aliens (such as anarchists or subversives), and even they could seek discretionary relief from deportation (for example, if the alien was here continuously for seven years and could show extreme hardship and good moral character). IIRIRA enlarged the class of illegal reentrants whose orders may be reinstated, insulated those orders from review, and foreclosed most forms of discretionary relief. Fernandez-Vargas, a Mexican citizen who was deported in the 1970s, returned illegally in 1982 and remained in the U.S. undetected for over twenty years. In 1989, he fathered a son who is a U.S. citizen, and in 2001, he married the boy’s mother, also a citizen. His wife then filed a relative-visa petition for her husband and he filed an application to adjust his status to that of a lawful permanent resident. The filings alerted the authorities to his presence, and in 2003 the government began proceedings to reinstate his earlier deportation order under IIRIRA without the possibility of adjusting his status. He was detained for ten months and then deported. Fernandez-Vargas argued that because he reentered the U.S. before IIRIRA’s effective date, it should not apply to him and he should have the chance to become a lawful permanent resident that he would have had under the pre-IIRIRA regime.
Writing for a nearly unanimous Court (all but Stevens), Justice Souter found that IIRIRA applies to Fernandez-Vargas and is not inappropriately retroactive. Of course, IIRIRA’s reinstatement provision does not expressly state whether it applies to individuals that reentered before 1997 (otherwise, there wouldn’t be much to talk about). Fernandez-Vargas argued that the pre-IIRIRA provision expressly applied to any reentered alien who was deported “before or after June 27, 1952,” but that IIRIRA dropped the “before or after” language and therefore must have been intended to apply only to those who reentered after its effective date. The Court rejected this interpretation, explaining that the “before and after” language referred to deportation, not reentry, and probably was dropped because, by the time of IIRIRA’s enactment, the reference to departures in or before 1952 was “purely academic.” Further, other provisions of IIRIRA explicitly apply only to those who reenter after its effective date (such as criminal and civil penalty provisions), while still others explicitly apply to all reentrants, whether the reentry occurred before or after the effective date. The reinstatement provision’s silence in this regard means that normal principles of statutory construction “fail to unsettle” the question of whether IIRIRA applies to individuals like Fernandez-Vargas. The majority also concluded that IIRIRA’s reinstatement provision is not impermissibly retroactive because it is Fernandez-Vargas’ continuing choice to remain in the country illegally after IIRIRA’s effective date, not his reentry, that triggers the reinstatement provision. Since IIRIRA does not place further burdens/penalties on an act already completed, it has no retroactive effect. Further, IIRIRA was enacted six months before it took effect, giving illegal immigrants ample warning of the new, harsher regime and an opportunity to leave the country or attempt to amend their status.
Justice Stevens dissented. He would find that the Act was intended to apply only to post-1997 reentries and that any other interpretation would be impermissibly retroactive. The original INA provision was silent as to application, and the INS interpreted this silence as precluding it from obtaining reinstatement orders against any alien who reentered or was deported before 1950. In 1952, Congress added the “before or after” language, which Stevens reads as an attempt to clarify that the statute applied to individuals deported before or after 1952, but to leave unchanged the fact that the statute would not apply to individuals who reentered after 1952 because that would be impermissibly retroactive. When Congress enacted IIRIRA and removed the date language again, presumably it still intended that the statute apply to preenactment deportations but not to preenactment reentries. Thus, the normal rules of statutory construction disfavor the government’s (and the majority’s) interpretation. Further, IIRIRA’s effect is impermissibly retroactive if read to apply to individuals like Fernandez-Vargas. Prior to IIRIRA, the immigration rules favored behavior like that of Fernandez-Vargas, making it easier to obtain discretionary relief the longer an individual remained in the country. IIRIRA obliterated these considerations. And while it may be true that Fernandez-Vargas could have avoided the effect of IIRIRA by leaving the country, that is a harsh choice indeed and does not alter the fact that the IIRIRA places a great deal of importance on illegal reentry. Thus, the act of reentry (already) completed should be the act upon which retroactivity is analyzed, as that is the act which alters an immigrant’s rights under the law.
Finally, the Court DIG’d (dismissed as improvidently granted) the writ of cert in Laboratory Corporation of America Holdings, d/b/a LabCorp v. Metabolite Laboratories, Inc. (04-607), so we will have to wait for another day to find out the scope of the Patent Act’s exception (in ยง 101) to patent protection for “laws of nature, natural phenomenon, and abstract ideas.” Apparently, some members of the Court believed that LabCorp did not set forth its claim adequately in the lower courts by failing specifically to reference ยง 101, thus creating a technical preservation issue and the practical problem that the Court did not fully benefit from the views of the Federal Circuit. Therefore, they deferred deciding the issue. Justice Breyer, joined by Stevens and Souter, dissented from the DIG. They would have decided the case on the merits and found Metabolite’s patent claim invalid. (For the science nuts, Metabolite’s patent provided a method for detecting a deficiency of cobalamin or folate by assaying for an elevated level of total homocysteine, since the latter is known to correlate with deficiencies in the former. That’s it โ any doctor who does a blood test for homocysteine and knows that elevated homocysteine is related to a deficiency in cobalamin or folate violates the patent. Metabolite successfully sued LabCorp for advising doctors to do such a test created by another company, thereby inducing doctors to infringe its method patent.) The dissenters would find that the patent protects nothing more than a rule of nature โ that homocysteine levels are correlated with folate and cobalamin levels (“the process involves no more than an instruction to read some numbers in light of medical knowledge”). Permitting such sweeping patent protection would impede rather than promote the progress of science. Further, there is no reason to avoid deciding the issue now, as it has been extensively briefed (including numerous amicus briefs). Also, the Court knew that LabCorp had failed to cite ยง 101 when it granted cert, thus implicitly rejecting this rationale as a reason to deny cert. Finally, failing to decide the issue may impede doctors’ medical judgment, force them to spend unnecessary time and energy to enter into license agreements, and divert their attention from medical tasks to legal ones.
That’s it for last week’s opinions. We’ll get you the last three from Monday shortly, and the Court will issue additional opinions tomorrow, so we’ll keep the Updates coming.
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
