The Appellate Corner
  Alex M. Azar II*

The Supreme Court’s October Term 1997 has generally been described in rather blasé terms. In fact, according to statistics compiled by The National Law Journal, 48% of the Court’s dispositions this Term were unanimous.

The Court was much more fractured, however, in the field of criminal law and procedure, with all nine Justices banding together in only 24% of the Court’s 29 full dispositions in this area (the Court dismissed two other criminal cases as improvidently granted). In six cases -- or 27% of the cases in which the Court was divided -- the Justices split along unorthodox lines. The only consistent refrain in these most interesting of divisions is that Justices Scalia and Breyer were on the opposite sides in each case, with Justice Breyer in the majority and Justice Scalia on the losing side. Moreover, in five of these six cases, the government won. Overall, the government triumphed in 70% of the Court’s criminal law and procedure cases this past Term. This issue of the Appellate Corner will focus on just three of the more significant rulings from this part of the Court’s docket this Term.

United States v. Scheffer

In United States v. Scheffer, 118 S. Ct. 1261 (1998), the Court held that the per se exclusion of polygraph evidence in criminal trials does not unconstitutionally burden the right of a defendant to present a defense. The defendant in that case, Scheffer, was an Air Force airman. Appropriately -- as it turned out -- he volunteered to work as an informant on drug investigations for the Office of Special Investigations. As he had been warned in taking the position, Scheffer was asked at some point to provide a urine sample. Before the results of that test were known, he agreed to take a polygraph test. The examiner found that the test "indicated no deception" when Scheffer denied using drugs since joining the Air Force. The urinalysis, however, later detected the presence of methamphetamine. When court-martialed for that drug use (and other unrelated offenses, such as going AWOL after his polygraph examination), Scheffer testified that he must have innocently and unknowingly ingested the drugs.

Scheffer unsuccessfully sought to introduce the results of his polygraph examination to bolster his credibility. The military judge rejected Scheffer’s contention that the per se ban on polygraph evidence in Military Rule of Evidence 707 is unconstitutional. The Air Force Court of Criminal Appeals affirmed en banc. A divided Armed Forces Court of Appeals reversed, holding that such a per se exclusion violates the accused’s right to present a defense.

In an important decision on the power of courts to limit the introduction of defense evidence in criminal cases, the Supreme Court reversed. All but Justice Stevens joined the bulk of Justice Thomas’ opinion for the Court. While reaching out to note that the Constitution nowhere explicitly grants a defendant the right to a meaningful opportunity to present a complete defense, the Court did not quibble with this proposition. The Court began, however, by emphasizing that a defendant’s right to present relevant evidence is "subject to reasonable restrictions." A restriction is reasonable, said the Court, if it furthers a legitimate interest in the criminal trial process and is not arbitrary or disproportionate to the purpose it is designed to serve.

In applying this standard, the Court found that the exclusion of unreliable evidence from criminal trials is a legitimate goal. Dealing a significant blow to advocates of polygraph testing, the Court concluded that there is no consensus that the polygraph is reliable. Its opinion recounted the "extremely polarized" debate in the scientific community about the reliability of the test and noted the significant disagreement among state and federal courts concerning the admissibility and reliability of polygraph evidence. Given this lack of consensus, the Court held that the per se exclusion of all polygraph evidence was "a rational and proportional means of advancing the legitimate interest in barring unreliable evidence." While disposing of the claim that the admission of polygraph evidence is constitutionally required, the Court took care to emphasize that lower courts may permit the admission of such evidence, where permissible under the relevant rules of evidence. Hence, the Court explained that under the new, more relaxed standard for the admissibility of scientific evidence under the federal rules set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), individual federal jurisdictions could reasonably reach differing conclusions on the admissibility of polygraph evidence.

The Court then proceeded to dispatch three prior cases holding unconstitutional various restrictions on the admissibility of defense evidence. In a distinguishing act that may yet spawn new litigation, the Court explained that "we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused." (Emphasis added.) The exclusions of evidence in each of those three cases "significantly undermined fundamental elements of the accused’s defense." In Rock v. Arkansas, 483 U.S. 44 (1987), the Court struck down a rule prohibiting a defendant from testifying on her own behalf where her memory had been hypnotically refreshed. It held unconstitutional in Washington v. Texas, 388 U.S. 14 (1967), a statute prohibiting co-defendants or co-participants in a crime from testifying about the facts they observed. Finally, in Chambers v. Mississippi, 410 U.S. 284 (1973), the Court invalidated rules preventing a party from impeaching its own witness and from entering hearsay evidence of three persons to whom that witness had confessed guilt for the crime at issue. The Court explained that those evidentiary restrictions were infirm because they prevented the accused from introducing all relevant factual details of the charged offense from the defense perspective or from testifying on her own behalf. In contrast, Rule 707 bars only what the Court described as expert opinion testimony about the defendant’s own credibility.

Justice Thomas, joined only by the Chief Justice and Justices Scalia and Souter, set forth two additional legitimate governmental interests in the per se ban on polygraph evidence: preserving the jury’s function as the arbiter of credibility by protecting it from undue reliance on expert and scientific opinions on credibility and preventing collateral litigation about the validity and reliability of particular polygraph tests and examiners. Justice Kennedy, joined by Justices O’Connor, Ginsburg, and Breyer, wrote separately to express disagreement with these two conclusions and to question the wisdom (as a policy matter) of a per se exclusion of polygraph evidence.

Justice Stevens was the lone dissenter, concluding that polygraph evidence is actually "independent factual evidence" that may be relevant "to the central issue at trial" and that the proffered governmental interests do not hold water. In addition, Justice Stevens raised the interesting (but not briefed) question whether Rule 707 violates the statute authorizing the President to promulgate rules of evidence "which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized . . . in United States district courts." To Justice Stevens, the per se ban is inconsistent with the Daubert case-by-case approach to admission of scientific evidence in federal courts.

Brogan v. United States

In Brogan v. United States, 118 S. Ct. 805 (1998), the Court finally erased a significant blot on the face of federal criminal law: the so-called "exculpatory no" doctrine. 18 U.S.C. § 1001 criminalizes making a false statement in a matter within the jurisdiction of a government agency. Notwithstanding the literal language of that statute, many circuits had adopted the "exculpatory no" doctrine under which a simple denial of guilt does not come within the meaning of the statute.

Justice Scalia authored the opinion of the Court, joined by the Chief Justice, Justices O’Connor, Kennedy, and Thomas, and in relevant part by Justice Souter. The opinion offers a wonderful example of Justice Scalia’s inimitable writing style, containing many lines that are destined to go down as among his more quotable. It also contains the witty, jabbing, mocking dialectic for which he is justly famous, often seen when Justice Scalia writes separately, but rarely found -- as here -- in his opinions for the Court.

Brogan, the defendant, had accepted cash payments from management while he was a union official. Federal agents from the Labor Department and the IRS later made a house call on Brogan, and Brogan said "no" in response to a direct question whether he had received any payments from that company while he was a union officer. The agents informed Brogan that they had company records showing the contrary, and they reminded him that lying to federal agents was a crime. He refused to change his answers. The Second Circuit affirmed his conviction, rejecting Brogan’s claim that such an "exculpatory no" falls outside the meaning of section 1001’s false statement prohibition.

In the Supreme Court, Brogan conceded that his utterance was both a statement and false, and that "under a ‘literal reading’ of the statute he loses." That placed Mr. Brogan in the unenviable position of asking Justice Scalia to ignore the "literal text." The Court rejected almost out of hand Brogan’s first argument that section 1001 criminalizes only those false statements that "pervert governmental functions," and that a simple denial of guilt to investigators does not do so, even if immediately disbelieved by investigators. The Court emphasized that while the purpose of the statute may have been to protect governmental functions, "it is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy."

Justice Scalia’s opinion for the Court reaches its pitch in dealing with Brogan’s next argument that the "exculpatory no" doctrine is inspired by the Fifth Amendment. Brogan argued that "a literal reading of § 1001 violates the ‘spirit’ of the Fifth Amendment because it places a ‘cornered suspect’ in the ‘cruel trilemma’ of admitting guilt, remaining silent, or falsely denying guilt." The Court noted that "[t]his ‘trilemma’ is wholly of the guilty suspect’s own making . . . [T]he innocent person lacks even a ‘lemma.’" Justice Scalia dissected the historic irony of Brogan’s invocation of the "cruel trilemma" language to support his claim. That "bon mot" (as he calls it) first appeared in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964). It was there used to vindicate the right to remain silent in the face of the "cruel trilemma" of "`self-accusation, perjury or contempt.’" Justice Scalia explained: "In order to validate the ‘exculpatory no,’ the elements of this ‘cruel trilemma’ have now been altered -- ratcheted up, as it were, so that the right to remain silent, which was the liberation from the original trilemma, is now itself a cruelty. We are not disposed to write into our law this species of compassion inflation."

The Court reiterated the bedrock and long established principle that nothing in the text or "spirit" of the Fifth Amendment confers a privilege to lie, even if a defendant’s silence may be used against him as evidence of guilt or for impeachment purposes. The Court did not tarry long on Brogan’s claims that witnesses may not know they have the right to remain silent ("In the modern age of frequently dramatized ‘Miranda’ warnings, that is implausible") or that section 1001 must be narrowed -- by the Court as opposed to Congress -- to avoid prosecutorial abuse and piling on of offenses.

Justice Souter joined all of majority opinion except for the discussion of the risk of prosecutorial abuse and he signed onto Justice Ginsburg’s opinion concurring in the judgment, which contains nothing but a plea to Congress to revise section 1001 to take away this "extraordinary authority . . . conferred on prosecutors to manufacture crimes." She also argues that Congress never intended to make every "exculpatory no" a crime.

Justice Stevens, joined by Justice Breyer, dissented. In their view, it is not unusual for the Court to limit a broadly worded criminal statute to the coverage intended by Congress, and Congress did not intend to criminalize "exculpatory no’s" any more than it intended to criminalize false statements by undercover agents made to criminals in the course of a drug investigation, even though both fit within the literal terms of the statute. Moreover, the Court should defer to what they described as the "virtually uniform understanding of the bench and the bar that persisted for decades with . . . the approval of this Court as well as the Department of Justice." Justice Stevens concluded by quoting Coke’s Institutes for the proposition that, "it is the common opinion, and communis opinio is of good authoritie in law."

In a stinging section of the majority opinion as lengthy as Justice Stevens’ dissent, Justice Scalia tore into these arguments with something of a lecture on textualism. He explained that in those cases cited by the dissent in which the Court appears to have narrowed the literal terms of a criminal statute, it either has not purported to be departing from a reasonable alternative reading of the text or was simply applying what it thought to be a background interpretive principle of general application (such as applying a mens rea requirement to a statute that was silent on the issue).

In contrast, said the majority, what the dissent argued for is the proposition that "criminal statutes do not have to be read as broadly as they are written, but are subject to case-by-case exceptions," a process that would leave the Court "at sea." The Court also took the dissent to task for its quotation of Coke, noting that the quoted phrase comes from a discussion of the lex communis, not statutory law, and read in context means simply that "the common law is the common law." The Court also mocked the dissent’s acquiescence principle: "While communis error facit jus [common error, repeated many times, makes law] may be a sadly accurate description of reality, it is not the normative basis of this Court’s jurisprudence."

It will be interesting to see if Attorney General Reno responds to Brogan by changing her recent revision to the U.S. Attorneys’ Manual which provides that charging a suspect under section 1001 for a false denial during an investigation violates Department policy.

Bryan v. United States

This Term’s decision in Bryan v. United States, 118 S. Ct. 1939 (1998), was a major development in mens rea law. It severely limits the Court’s decision four Terms ago in Ratzlaf v. United States, 510 U.S. 135 (1994), and attempts to clarify the meanings of "knowing" and "willful" requirements in criminal statutes.

In an opinion authored by Justice Stevens and joined by Justices O’Connor, Kennedy, Souter, Thomas, and Breyer, the Court held that a willfulness requirement in a criminal statute requires only that the defendant generally understood that what he was doing was illegal, not that he knew of the specific criminal provision involved. The statute involved in Bryan criminalizes "willfully" dealing in firearms without a federal license. Other criminal provisions in the same act require only that the defendant acted "knowingly."

Lacking the required federal license, the defendant, Bryan, used straw purchasers to acquire pistols, had the straw purchasers make false statements when purchasing the guns, assured the straw purchasers that he would file off the serial numbers on the guns, and sold the guns on street corners known for drug dealing. From this the Court concluded that Bryan "unquestionably" knew that was he was doing was illegal. The question presented, however, was whether the willfulness requirement in the statute mandates proof of knowledge of the federal licensing requirement. The district court refused to so instruct the jury, and the court of appeals agreed.

The Supreme Court emphasized that "a ‘willful’ act is one undertaken with a ‘bad purpose.’" In other words, the government must prove that the defendant acted with knowledge that his conduct was unlawful. Rejecting the argument that the presence of both knowing and willful requirements in the same statute indicates that Congress intended a higher mens rea showing for willful violations, the Court explained that "the term ‘knowingly’ does not necessarily have any reference to a culpable state of mind or to knowledge of the law." Thus, unless the text of the statute dictates otherwise, a "knowing" requirement refers only to knowledge of the facts that constitute the offense, not the law that makes that conduct illegal. (For example -- said the Court -- a "knowing" violation of the prison escape statute is shown if the escapee knew his actions would result in his leaving the prison without permission.) In other words, "the background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove that ‘an evil-meaning mind’ directed the ‘evil-doing hand,’" as Justice Jackson described the difference between mens rea and actus reus. Where willfulness is required, however, it must be shown that the defendant acted with an "evil-meaning mind."

The question then for the Court was just how "evil-meaning" that mind has to be. In two other contexts, the Court has required proof that the defendant knew of the particular law he was accused of violating. In tax cases, the Court has repeatedly held that a willful violation requires proof that the defendant knew of the specific criminal provision at issue. In Ratzlaf the Court held that the jury must find that a defendant knew that his structuring of cash transactions in small dollar amounts to avoid the $10,000 cash transaction reporting requirement was itself unlawful.

In a significant retrenchment, the Court explained that the tax cases and Ratzlaf "involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct." Hence, in those cases the Court had carved out "`an exception to the traditional rule’ that ignorance of the law is no excuse." In a disappointing lapse, the Court failed to explain why the firearms licensing requirement is not such a "highly technical statute," except to say that because this particular defendant knew his conduct was illegal, this statute does not present the risk of ensnaring innocent conduct. It can be expected that the next smart lawyer confronting this statute with a client who was a bit less furtive than Mr. Bryan will try to exploit this hole in the Court’s reasoning and argue that as to his client, the statute is "highly technical."

Justice Souter joined the majority opinion but also wrote a one sentence concurrence on an unrelated point.

Justice Scalia dissented in a brief opinion joined by Justice Ginsburg and even more interestingly the Chief Justice, who was in dissent in Ratzlaf. In Justice Scalia’s view the meaning of the willfulness requirement in the licensing statute is ambiguous. For him, the majority succeeded in showing that specific knowledge of that criminal prohibition is not clearly required by the statute, but it failed to show that only general knowledge of illegality is. Justice Scalia noted that the word "willfully" has many meanings that are often affected by context, sometimes requiring conduct that is only intentional, knowing, or voluntary, as opposed to accidental, and at other times much more. The majority conceded that this statute -- containing only a knowing requirement in related provisions -- mandates some knowledge of the law.

Justice Scalia read the majority opinion to say that knowledge of any law is enough, or "that the defendant must be ignorant of every law violated by his course of conduct to be innocent of willfully violating the licensing requirement." Thus, Bryan would willfully violate the licensing requirement "if he knew that his street-corner transactions violated New York City’s business licensing or sales tax ordinances," or "if Bryan knew that the car out of which he sold the guns was illegally double-parked." Although Justice Scalia did not read the statute to require that the defendant be able to cite the particular statutory provision, the statute could easily be read to require at least that the defendant be generally aware that the "actus reus punished by the statute -- dealing in firearms without a license -- is illegal." Given the textual ambiguity between the two options -- knowledge that anything being done is illegal and knowledge that the specific act charged is illegal -- Justice Scalia would apply the rule of lenity to require the latter.

United States v. Singleton

Before closing, the Appellate Corner must pause to mention a remarkable recent court of appeals decision. It is well known that plea bargaining for reduced charges and sentences and granting immunity in recognition of a witness’ testimonial cooperation have long been staples of the American justice system and are recognized in the federal immunity and sentencing statutes. Nonetheless, on July 1, a panel of the Tenth Circuit consisting of Chief Judge Seymour, a Carter appointee, Judge Ebel, a Reagan appointee, and Judge Kelly, a Bush appointee, held that the federal criminal prohibition on giving anything of value to a witness because of his testimony, 18 U.S.C. § 201(c)(2), criminalizes a federal prosecutor’s promise of leniency to a witness in consideration of that witness’ testimony. United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998).

The opinion written by Judge Kelly presents a wonderful example what Justice Scalia describes as the evils of "strict constructionism" -- "A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Antonin Scalia, A Matter of Interpretation 23 (1997). The Court wrapped itself repeatedly in the mantra that the language of a statute must ordinarily control, but contorted its way through the inquiry into what the words of the statute originally meant at the time they were enacted. Indeed, the Court would only "pause" for the most fundamental problem with its interpretation -- the absurdity that Congress meant to criminalize against officers of the United States a means of law enforcement that was widely practiced and judicially approved.

To reach its crabbed meaning, the Court also had to wriggle around cases establishing that statutes do not apply to the government or affect government functions unless the text expressly states so, the witness immunity statutes, and sentencing statutes authorizing reduced sentences for defendant’s who provide substantial assistance to the investigation or prosecution of others, 18 U.S.C. § 3553(e); 28 U.S.C. § 994(n). As to the last point, the Court concluded that these statutes can be read to allow a substantial assistance reduction for everything but a witness’ actual testimony. Hence, a witness could cooperate with the investigation but refuse to provide any testimony under oath on the matter, and the court could not on that basis deny a substantial assistance reduction.

To add insult to injury, the Court further found that the promise not to prosecute for certain offenses and to inform state authorities and the district court of the witness’ cooperation in consideration for the witness’ testimony violated state ethical rules. Under the Court’s reading of the federal statute and state ethics rules, not only the prosecutor, but the district court judge presumably could be imprisoned and disbarred for the common practice of reducing a witness’ sentences in light of his truthful testimony.

Only nine days after this opinion was issued, the Tenth Circuit sua sponte ordered the case reheard en banc and vacated the panel opinion. Argument is set for November in this case that all prosecutors and criminal defense lawyers in the country will be following with rapt attention.

*Alex M. Azar II, a former law clerk to Justice Antonin Scalia, is an attorney at Washington, D.C.’s Wiley, Rein & Fielding. The views expressed are solely those of Mr. Azar. Readers are encouraged to e-mail the author at "AAZAR@WRF.COM" with suggestions of noteworthy or notorious cases for discussion in future issues.


2001 The Federalist Society