Publications

Greetings, Court Fans!

We’re back today with summaries of four of the Court’s decisions from the last week of its OT22 term:

• Samia v. United States (No. 22-196), where a 6-3 Court rejected a defendant’s Confrontation Clause challenge to the Government’s use at trial of a co-defendant’s confession, which had been modified to refer to the defendant as the “other person”, a reference that in context, the jury could probably figure out referred to the defendant;

• Abitron Austria GmbH v. Hetronic International, Inc. (No. 21-1043), unanimously holding that the Lanham Act’s prohibition on trademark infringement is not extraterritorial, with five Justices then holding that the Act applies only when the infringing use of a trademark occurs domestically;

• United States v. Hansen (No. 22-179), where the Court narrowly interpreted a federal criminal statute that forbids “encouraging or inducing an alien” to come to the United States in violation of the law and then held that the narrowly interpreted statute was not overbroad under the First Amendment;

• Jones v. Hendrix (No. 21-857), holding that inmates cannot use §2241 of AEDPA to avoid §2255’s limits on second or successive motions.

We’ll be back tomorrow in what should be our last Update of the term to talk about a trio of cases involving standing and challenges to administrative agencies’ authority, specifically in the context of student loans and immigration enforcement.

In Samia v. United States (No. 22-196), the Court addressed whether the admission at a joint trial of a non-testifying co-defendant’s confession violated a defendant’s Sixth Amendment right to “be confronted with the witnesses against him” when the confession was modified to avoid expressly implicating the defendant and the jurors were instructed to disregard the confession when assessing the defendant’s guilt. In a 6-3 decision authored by Justice Thomas, the Court found this procedure consistent with both precedent and historical practice.

The case involved a lurid international murder-for-hire. Petitioner Adam Samia traveled to the Philippines along with Carl Stilwell at the behest of Paul LeRoux, a Filipino crime lord. LeRoux and one of his operatives, Joseph Hunter, hired Samia and Stilwell to kill Catherine Lee, a real-estate broker who LeRoux believed had stolen money from him. After Lee was found dead with two close-range gunshots to the face, federal agents arrested LeRoux, who then cooperated in the prosecution of Samia, Stilwell, and Hunter. When agents arrested Stilwell, he confessed to being in the van when Lee was shot but claimed he was the driver and Samia was the shooter.

Samia, Stilwell, and Hunter were charged with participating in a conspiracy to commit armed kidnapping and murder-for-hire. In its opening statement at trial, the Government asserted that Stillwell was the van driver and that Samia had shot Lee while sitting in the front passenger seat. Other evidence introduced at trial showed that Samia and Stilwell had traveled to the Philippines together, that Hunter had hired both of them to kill Lee, and that Samia had the type of gun used in the shooting. Stilwell elected not to testify, so he could not be questioned by the Government or cross-examined by Samia. But the District Court allowed the Governmentto introduce Stilwell’s confession by having an agent testify to its contents while replacing any mention of Samia with “the other person.” Thus, when asked what Stilwell said about where Lee was when she was killed, the agent testified that Samia “described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stilwell were driving.” The agent similarly testified that Stilwell had described this “other person” traveling with him and carrying the type of gun used in the shooting. During this testimony and again before the jury retired to deliberate, the District Court instructed that the modified confession was admissible only as to Stilwell and could not be considered as to Samia. The jury convicted Samia and his codefendants on all counts. On appeal, the Second Circuit found this procedure did not violate the Sixth Amendment’s Confrontation Clause because the agent did not mention Samia’s name or anything about him and the modified confession—considered in isolation from the other trial evidence—did not identify Samia as the “other person” in the van.

The Court affirmed in a decision written by Justice Thomas and joined by the Court’s five other conservatives. Thomas began by noting that historical practice supported the admissibility of a co-defendant’s confession implicating the defendant in a joint trial so long as an appropriate limiting instruction was given, especially if the confession was altered to remove outright identification of the accused defendant. That evidentiary rule cohered with the general presumption that juries follow their instructions, even when the evidence they are instructed to consider selectively—like an un-Mirandized confession used for impeachment purposes—is hard to put out of mind when considering the defendant’s guilt.

True, Bruton v. United States (1968) and Richardson v. Marsch (1987) recognized a narrow exception to that presumption when there is “substantial risk” that the jury would be unable to disregard the co-defendant’s confession because it pointed a finger directly at the defendant. And in Gray v. Maryland (1998), the Court found that risk wasn’t mitigated by substituting the defendant’s name with “deleted” or a blank space, because these placeholders still “referred directly to the existence of the nonconfessing defendant” and invited the jury to deduce the “obvious answer” that the deleted names were of those sitting next to the confessing defendant at the defense table. But in Samia’s case, Thomas found that “the neutral references to some ‘other person’ were not akin to an obvious blank or the word ‘deleted,’” and therefore did not run afoul of the “directly accusatory” principle of Bruton, Richardson, and Gray. Moreover, because Stilwell had been charged with conspiring to murder Lee and had confessed to being in the van when she was shot but not shooting her himself, his confession could not have been modified to suggest that he acted alone without distorting its probative value on both the conspiracy count and the substantive murder counts. Thus, the only way to grant Samia the relief he requested would have been to sever his trial from Stilwell’s or ask the Government to forego introduction of the confession altogether. Those remedies, Thomas concluded, would be too great a price to pay, given that the modified confession and accompanying limiting instructions adequately preserved Samia’s rights under the Confrontation Clause.

Justice Barrett concurred in the judgment and joined all of Justice Thomas’s opinion except for the section analyzing historical evidence. In her view, those cases and treatises came too late to illuminate the original meaning of the Confrontation Clause. And in any event, those sources focused on rules of evidence rather than the Sixth Amendment.

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. In their view, this case was indistinguishable from Gray. In light of the Government’s other evidence and argument presented at trial, “the identity of the triggerman would have been obvious” to the jury notwithstanding the agent’s replacement of Samia’s name with “the other person.” Allowing the use of “other person” but not the word “deleted” or a blank space was a distinction without a difference, because Samia was the only “other person” Stilwell could have been talking about. In that context, Bruton explained that the jury could not be presumed to follow a liming instruction. It was this violation of Samia’s Sixth Amendment rights by virtue of his inability to confront Stilwell as his accuser—not “convenience in the administration of the law”—that was a price too high to pay. Kagan thus criticized the majority’s decision as allowing the Government to do an end-run around the protections of Bruton and Gray by using a placeholder to introduce an obviously accusatory confession from a non-testifying co-defendant.

Justice Jackson also penned a separate dissent. She objected to the majority’s view of Bruton as a narrow exception rather than a default rule in its own right. By cabining the Confrontation Clause right in this manner, Jackson worried, the Court had set the stage for further erosion of that important protection for the accused.

Our second case of the day is Abitron Austria GmbH v. Hetronic International, Inc. (No. 21-1043), where the justices significantly limited the foreign reach of two provisions of the Lanham Act that prohibit trademark infringement. Specifically, the Court unanimously agreed that the Lanham Act does not apply extraterritorially. But the Court then divided 5-4 on what that means, with a narrow majority holding that the infringing use of the trademark must be domestic, over a dissent (well, technically a concurrence) advocating a broader rule that would have extended the Lanham Act to any situation where the use of the trademark causes confusion in the United States.

This case started as a typical trademark tiff. Hetronic is a United States company that manufacturers radio remote controls for construction equipment. Abitron, a collection of five foreign companies and one foreign individual, sold Hetronic-branded products into Europe and the United States under a license agreement. But after their business relationship broke down, Abitron continued to sell Hetronic-branded products in various markets without authorization. Hetronic quickly sued for trademark infringement, calling upon two provisions of the Lanham Act, sections 1114(1)(a) and 1125(a)(1). The former prohibits the unauthorized “use in commerce [of] any reproduction . . . of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services” when “such use is likely to cause confusion.” The latter prohibits the “us[e] in commerce” of a protected mark, whether registered or not, that “is likely to cause confusion.” Hetronic sought damages for all of Abitron’s infringing sales, including those occurring abroad. While Abitron contended this extraterritorial application of the Lanham Act was improper, the District Court disagreed, upholding a jury verdict of roughly $96 million in Hetronic’s favor and permanently enjoining Abitron from using the Hetronic trademarks anywhere in the world. After the Tenth Circuit largely left Hetronic’s victory intact, the Court granted cert.

The Court unanimously reversed in a majority decision written by Justice Alito. Federal statutes like the Lanham Act are subject to a presumption against applying the statute extraterritoriality so as to regulate conduct in another sovereign’s territory. Applying this presumption involves a two-step framework. The first step asks whether Congress “affirmatively and unmistakably instructed that” the relevant provision should “apply to foreign conduct,” rebutting the presumption against extraterritoriality. If there is no such clear intention, then the court moves to step two, asking whether the lawsuit seeks a (permissible) domestic or (impermissible) foreign application of the statute. This determination is a bit complex, requiring courts to identify the “focus” of the “congressional concern” underlying the statute and then to determine whether the “conduct relevant to that focus” occurred in United States territory.

For Justice Alito, applying this framework here was easy. First, he quickly determined the Lanham Act provisions are not extraterritorial, as nothing in the statute clearly indicates Congress intended them to apply abroad. As discussed further below, all members of the Court agreed with this part of his analysis. But in a part of the opinion joined only by four justices—Justices Thomas, Gorsuch, Kavanaugh, and Jackson—Alito turned to step two, asking whether Hetronic’s lawsuit sought an impermissible foreign application of these provisions. Alito concluded that no matter what the “focus” of these Lanham Act provisions was, what really matters was the location of the “conduct relevant to that focus.” And the conduct relevant to the focus of these provisions was an “infringing use in commerce.” Indeed, as an infringing use in commerce is what the provisions outlaw, that must be the conduct relevant to their focus. As a result, “use in commerce” provides the “dividing line” between foreign and domestic applications of these provisions. Only if a use in commerce occurs in the United States do these provisions apply, so Abitron’s infringing uses of Hetronic’s trademarks in Europe were not actionable.

Although Justice Jackson joined Alito’s majority opinion in full, she separately concurred to provide her own gloss on what “use in commerce” means. To her, a use in commerce does not end when a trademarked good is first sold, as a use in commerce can occur wherever a trademark provides a “source identifying function.” Thus, if a trademarked good enters U.S. commerce and performs the function of identifying the source of the good here, the mark is being used in commerce domestically. But if the mark is not identifying the source of the good in U.S. commerce, it is not. Jackson’s concurrence thus provides a bit more nuance than Alito’s majority opinion, suggesting there may be cases where the sale of infringing goods abroad nevertheless results in use in commerce in the United States subject to the Lanham Act.

Writing for the Chief Justice and Justices Kagan and Barrett, Justice Sotomayor concurred in the majority’s conclusion that the Lanham Act does not apply extraterritorially. But she disagreed with the majority’s holding at the second step, reasoning that the Lanham Act’s focus is on preventing consumer confusion. In her view, then, the Lanham Act is being applied domestically whenever it is directed at an infringing use of a trademark that results in consumer confusion in the United States. This approach would have resulted in a broader application of the statute, covering cases where the infringing sale of products abroad nonetheless caused confusion here. She thus criticized the majority for glossing over the Lanham Act’s core focus and relying too much on the location of the conduct relevant to the focus. She warned that this interpretation of the statute will not adequately protect U.S. trademark holders and called on Congress to expand the statute’s scope through legislation.

Next up is United States v. Hansen (No. 22-179), where the Court upheld 8 U.S.C. §1324(a)(1)(A)(iv), a federal criminal statute that prohibits “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law.” In so doing, the Court interpreted the statute’s reach narrowly. Given that narrow reach, the Court concluded that the statute was not overbroad for purposes of the First Amendment, because it did not prohibit a substantial volume of protected speech relative to its legitimate sweep.

Defendant Helaman Hansen obtained nearly $2 million running a scam in which he falsely promised more than 450 noncitizens a path to U.S. citizenship through adult adoption. He was charged with violating §1324(a)(1)(A)(iv), but he moved to dismiss the charges, claiming that the statute was constitutionally overbroad because an ordinary reading of its text criminalized a broad range of speech protected by the First Amendment. The District Court denied the motion, but after he was convicted, the Ninth Circuit sided with Hansen concluding that the statute broadly criminalized protected speech.

The Court reversed in a 7-2 decision authored by Justice Barrett and joined by everyone but Justices Sotomayor and Jackson. Barrett began by narrowly construing §1324(a)(1)(A)(iv). She reasoned that Congress did not use “encourage” or “induce” in accordance with ordinary conversational meaning. Rather, both words “have well-established legal meanings,” and Congress used them “as terms of art referring to criminal solicitation and facilitation (thus capturing only a narrow band of speech).” Barrett further explained that the legal meanings of “encourage” or “induce” carry an intent requirement, which keeps the statute’s reach within constitutional bounds. Barrett also noted that the canon of constitutional avoidance counsels in favor of this narrow construction of the statute. And with that out of the way, Barrett made quick work of Hansen’s overbreadth challenge, concluding that because §1324(a)(1)(A)(iv) did little more than prohibit “solicitation and facilitation of specific acts known to violate federal law,” it did not so substantially burden protected speech as to be constitutionally overbroad.

Justice Thomas concurred in the judgment but wrote separately to attack the doctrine of constitutional overbreadth (a familiar theme). He opined that the doctrine “distorts the judicial role,” giving federal courts inappropriately broad authority to “declare laws unconstitutional in the abstract without the law ever being applied against any individual in an unconstitutional manner.” He also criticized the doctrine as unmoored from the First Amendment’s text and history and driven by policy considerations and value judgments.

Justice Jackson dissented, joined by Justice Sotomayor. They would interpret “encourage” and “induce” in accordance with the terms’ ordinary meanings. And, under the ordinary meaning of the statutory text, the criminalized conduct would broadly “encompass any and all speech that merely persuades, influences, or inspires a noncitizen to come to, enter, or reside in this country in violation of law.” The dissent offered concerning examples of conduct that would be criminalized under an ordinary meaning interpretation, including: a grandmother who says that she misses her noncitizen grandchild and thereby leads the grandchild to unlawfully immigrant to the United States; a doctor who informs a patient that certain treatment is only available in the United States and thereby leads the patient to remain in the country unlawfully; and a college counselor who advises a noncitizen student about scholarship opportunities within the United States and thereby leads the student to reside unlawfully in the country. The dissent criticized the majority as avoiding that unconstitutional interpretation only by rewriting the statute to include elements that Congress had previously removed from the text. In particular, Congress had revised §1324(a)(1)(A)(iv) to remove the words “solicit” and “assist,” and this intentional deletion conflicted with the majority’s interpretation of “encourage” and “induce” as limited to solicitation and facilitation. Congress had also removed from §1324(a)(1)(A)(iv) language requiring that the defendant “willfully or knowingly” encouraged or induced the violation of immigration law, and the intentional deletion of this intent requirement conflicted with the majority’s interpretation of the statutory language as necessarily carrying an intent requirement.

Finally, in Jones v. Hendrix (No. 21-857), the Court returned to that old favorite: the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This time, the Court addressed 28 U.S.C. §2255(e), which allows a federal prisoner to file a habeas petition under §2241 only if a motion under §2255 would be “inadequate or ineffective.” In a 6-3 decision written by Justice Thomas, the Court concluded that the fact an inmate’s §2255 motion would be barred by that statute’s limits on second or successive motions does not satisfy §2255(e)’s “inadequate or ineffective” requirement, preventing inmates from using §2241 to file habeas petitions when they would otherwise be barred under AEDPA’s successive motions rule.

Petitioner Marcus Jones received a 27-year sentence on two counts of unlawful possession of a firearm by a felon in violation of 18 U. S. C. §922(g)(1) and one count of making false statements to acquire a firearm in violation of §922(a)(6). Six years later, he challenged his sentence via a §2255 motion but achieved only the vacatur of one concurrent §922(g) sentence. Thirteen years after that, the Supreme Court held in Rehaif v. United States (2019) that to obtain a §922(g) conviction, the Government must prove that the defendant had knowledge of the status that disqualified the defendant from owning a firearm. But Jones, who claimed he was convicted without such proof, was unable to file another §2255 motion because AEDPA only permits second or successive §2255 motions under two conditions: newly discovered evidence or a new rule of constitutional law. And Rehaif only announced a new statutory interpretation of §922(g).  So Jones instead filed a §2241 petition, arguing that AEDPA’s limitation on second or successive motions rendered a §2255 motion “inadequate or ineffective” within the meaning of §2255(e). The District Court dismissed his motion, and the Eighth Circuit affirmed.

The Supreme Court affirmed the Eighth Circuit’s decision in a 6-3 decision authored by Justice Thomas (who had dissented in Rehaif) and joined by Chief Justice Roberts, and Justices Alito, Gorsuch, Kavanaugh, and Barrett. The majority narrowly construed “inadequate or ineffective” so as not to include circumstances in which a §2255 motion is unavailable due to AEDPA’s prohibition on second or successive motions, reasoning that Jones’s alternative interpretation would create an “end-run around AEDPA.” The majority concluded that interpreting AEDPA’s limitations on §2255 motions as an expansion of the availability of §2241 petitions “would make AEDPA curiously self-defeating” and would mean that, in prohibiting the assertion of non-constitutional legal developments by second or successive §2255 motions, Congress “accomplished nothing in terms of actually limiting such claims.”

Justice Jackson authored a blistering dissent, accusing the majority of taking a “nothing-to-see-here approach” to the incarceration of potentially legally innocent prisoners. Reviewing the history and purpose of §2255, Jackson concluded that Congress created the “inadequate or ineffective” provision “to ensure that certain pre-existing postconviction claims (say, a claim of statutory innocence) could still be heard even if the statutory language Congress was adopting inadvertently barred them.” The majority thwarted that goal by adopting so restrictive an interpretation of “inadequate or ineffective” that inadequacy or ineffectiveness could only be established “if the courthouse where a §2255 motion would have otherwise been filed has burned to the ground or been carried away by a mudslide.” This restrictive interpretation was “entirely atextual”; indeed, the majority opinion failed to cite a single dictionary definition of the terms “inadequate” or “ineffective.”

Justices Sotomayor and Kagan also jointly authored a short dissent, noting the “disturbing” result of the majority’s decision that an actually innocent prisoner would be permanently unable to collaterally challenge a conviction by virtue of having previously sought post-conviction relief. In their view, the §2255(e)’s savings clause applies whenever §2255’s text had the effect of depriving a federal inmate of habeas remedies that would have been available before §2255’s enactment. Because the Eighth Circuit did not analyze whether the savings clause applied under that approach, they would have sent the case back to the Eighth Circuit to evaluate that issue in the first instance.