Notice & Comment

Separation of Powers, Criminal Law, & Cert Petitions from the Second Circuit

Often criminal law doctrines are viewed as separate and distinct from the regulatory state or general structural constitutional principles.  But this Term the Court has before it several significant petitions that raise questions related to structural constitutional protections in the context of criminal law.  Professor Steve Vladeck of Texas Law School and I discuss two key petitions addressing the Appointments Clause and the procedural right to a new jury trial in the most recent edition of the C. Boyden Gray Center’s “Pulse of the Court” podcast.  Both petitions challenge recent Second Circuit decisions. 

The first petition, in Nordlicht v. United States, addresses a circuit split on the Fed. R. Crim. P. 33 standard for granting new jury trials “if the interest of justice so requires.”  The petition addresses the longstanding discretionary standard for awarding a new trial in light of the critical constitutional protection of jury trials for criminal defendants and was distributed for tomorrow’s September 28th conference. 

From the petition, filed by counsel of record Steve Engel of Dechert LLP:

Under Rule 33, district courts “may” vacate a conviction and grant a new trial “if the interest of justice so requires.” That permissive language differs from Federal Rule of Criminal Procedure 29, which provides that district courts on a defendant’s motion “must” enter a 2 judgment of acquittal when “the evidence is insufficient to sustain a conviction.” Rule 33’s language thus has long been understood to allow the district judge to act as a “thirteenth juror” with the discretion to “weigh the evidence” and order a new trial when the verdict is against the weight of the evidence. See Tibbs v. Florida, 457 U.S. 31, 38-44 (1982).

Although this Court has described weighing the evidence as the practice of “some federal courts,” Tibbs, 457 U.S. at 38 n.12, the Court has never squarely addressed Rule 33. In the absence of guidance, confusion has developed among the circuits. Twice now in two years, the Second Circuit has held that, absent evidentiary or instructional error, district courts are barred from ordering a new trial unless the government’s evidence was “patently incredible or defied physical realities” or was similarly flawed. App. 65; United States v. Archer, 977 F.3d 181, 188 (2d Cir. 2020). But that threshold is not tethered to the text of the rule, and would surely require an acquittal under Rule 29 anyway.

In the decision below, the Second Circuit applied this restrictive standard to reverse the grant of a new trial and require near-complete deference to the jury. The Eleventh Circuit takes a similar approach. . . .  For these courts, the difference between Rule 29 and Rule 33 is vanishingly small, if not completely illusory: regardless of the label, district courts may not overrule a jury unless the verdict was simply irrational.

In sharp contrast with those two circuits, four circuits clearly distinguish Rule 33 from Rule 29 and grant district courts genuine discretion to weigh the evidence under Rule 33. . . . In those jurisdictions, district courts may make credibility determinations, draw inferences from the evidence, decide for themselves whether the government has proven guilt beyond a reasonable doubt, and grant new trials even if the witness’s “testimony was not inconsistent with physical reality or otherwise incredible.” United States v. Morales, 902 F.2d 604, 608 (7th Cir. 1990).

In those circuits, the difference between Rule 29 and Rule 33 is plain: Rule 29 concerns whether the evidence is sufficient as a matter of law, whereas Rule 33 concerns the weight of the evidence—a quintessentially factual judgment about whether the government has proved its case. And under that Rule 33 standard, “a court of appeals will only rarely reverse a district judge’s grant of a defendant’s motion for a new trial, and then only in egregious cases.” United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992).  . . .

Rule 33 thus codified the common law practice— embodied in the Judiciary Act of 1789—recognizing that the district courts’ authority to weigh the evidence was part and parcel of the trial by jury.  A “[t]rial by jury,” as understood “at the common law and in the American constitutions, is not merely a trial by a jury of 12 men.” . . . . Cap. Traction Co. v. Hof, 174 U.S. 1, 9-10 (1899). Rather, the jury includes “the superintendence of a judge empowered . . . to set aside the verdict, if, in his opinion, it is against the law or the evidence.” . . .  

My academic amicus brief in support of cert in Nordlicht, filed by the Scalia Law School’s separation of powers student clinic, delves into the historical importance of a mechanism for granting new trials.  Eighteenth- and nineteenth-century evidence suggests that the discretionary ability of judges to grant new trials was viewed by many, including Blackstone, as a critical safeguard of the jury trial right. The new trial protection in American Law was first granted in the Judiciary Act of 1789, based on longstanding common law principles.  See Amy C. Barrett, Procedural Common Law.  From the brief:

Rather than disrupting deference to juries, extensive early federal and state case law suggests that ready availability of new trials promotes the jury trial right. . . . Over centuries rooted in British common law and the Judiciary Act of 1789, federal and state courts have recognized new trials as a safety valve to correct verdicts contrary to the weight of evidence where the evidence is “doubtful” or a verdict “does not satisfy the conscience of the judge.” See, e.g., United States v. Harding, 26 F. Cas. 131, 137 (C.C.E.D. Pa. 1846) (Grier, J., Circuit Justice); State v. Hopkins, 1794 WL 303, at *2 (S.C. Ct. Com. Pl. & Gen. Sess. 1794) . . . .

. . . Like its English antecedents, American law relied upon the jury trial as a “grand bulwark” of liberty. 4 William Blackstone, Commentaries on the Laws of England (“Blackstone”); see also Joseph Story, Commentaries on the Constitution of the United States § 1773 (1833) (“Story”) . . . . The critical nature of the jury trial meant that its integrity must be preserved. Therefore, British common law that the Judiciary Act of 1789 subsequently incorporated into American law authorized courts to grant new trials to address convictions that were contrary to evidence. This protection was to sustain the viability and integrity of jury trials, and it is now secured by the Federal Rules of Criminal Procedure.

The availability of a second jury trial offered a less intrusive means to correct error than the complete repudiation of a jury verdict through a judgment of acquittal. Early commentators like Blackstone also noted that adequate recourse to the correction mechanism of a new trial would help to ward off attempts to replace the jury trial with an alternate tribunal less friendly to self-governance. See, e.g., 3 Blackstone at *390–91.

The Judiciary Act of 1789 granted federal judges the authority to order new trials based on longstanding common law principles and standards. See Amy C. Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 857 n.134 (2008). Those standards permitted new trials for the “administration of justice” where criminal convictions were contrary to evidence. . . . Federal and state court decisions ranging from the late 18th century to the 20th century just prior to adoption of the federal criminal rules confirm this historical standard, starting with pre-constitutional British practice and then continuing to the time period of the First Federal Congress and finally the adoption of the modern federal criminal rules.

The availability of new trials has provided protection over centuries for criminal defendants convicted of a wide range of defenses, including some of the most vulnerable members of society such as free people of color convicted under questionable evidence in pre-Civil War southern and border states. . . . The Court should grant this petition to clarify the proper breadth of federal district court authority to grant a second jury trial in accordance with the text of Federal Rule of Criminal Procedure 33 and its unbroken line of historical context dating back to the First Congress’s enactment of new trial authority in the 1789 Judiciary Act. That power included the authority to grant new trials where verdicts were against the weight of evidence. Rule 33 preserved the availability of new trials in the “interest of justice,” reflecting the provision of new trials under British and American practice dating back to the time of Blackstone where new jury trial review was provided for convictions contrary to evidence to further the “administration of justice.”

The second petition, in Donziger v. United States, was filed by Professor Vladeck in conjunction with Schaerr Jaffe LLP.  The Donziger petition flags an Appointments Clause challenge to the Fed. R. Crim. P. 42(a)(2) mechanism for judicial appointment of prosecutors in criminal contempt proceedings.  The petition challenges a recent Second Circuit decision dividing two President Trump-appointed judges. 

The petition filed by Professor Vladeck highlights:

In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), this Court blessed the judicial practice of appointing private lawyers to try criminal contempts that the Department of Justice (DOJ) has declined to prosecute. Over Justice Scalia’s objection, Justice Brennan’s majority opinion assumed that such prosecutions were exercises of judicial power. . .  . In 2002, Rule 42 was amended to reflect that understanding. Thus, when petitioner challenged their authority under the Appointments Clause, the private special prosecutors appointed in this case took the position that, because of the executive branch’s declination, they were exercising judicial—not executive—power.

That position directly conflicts with this Court’s separation-of-powers jurisprudence. This Court has held that the enforcement of federal laws is exclusively an executive function. . . . It has clarified that those exercising authority like that wielded by the private special prosecutors here are “officers of the United States” whose appointments must comport with the Appointments Clause. Lucia v. SEC, 138 S. Ct. 2044, 2053–55 (2018). It has explained that the central criterion of inferior-officer status is effective supervision by principal officers. United States v. Arthrex, Inc., 141 S. Ct. 1970, 1982– 86 (2021). And although it has concluded that Congress can authorize interbranch appointments of inferior executive officers, this Court has emphasized that such appointments raise serious separation-of[1]powers concerns that warrant special scrutiny. See Morrison v. Olson, 487 U.S. 654, 675–77 (1988).

Faced with the obvious conflict between Young and these later decisions, the panel majority “end[ed] up following neither.” Pet. App. 54a (Menashi, J., dissenting). Contrary to Young, the panel held that anyone who tries criminal offenses on behalf of the United States must be part of the executive branch subject to supervision by a principal officer. But the panel then relied upon Rule 42—which enshrined Young’s view of judicial power—as authority for both the interbranch appointments and principal-officer supervision of the special prosecutors here.

The Second Circuit’s “split-the-baby approach to executive power,” id., doesn’t solve the separation-of-powers problems posed by Young; it compounds them. It makes no sense for courts to be able to override the executive branch’s refusal to prosecute a contempt offense if the subsequent prosecution must still be subject to executive control. That would allow private contempt prosecutions to proceed only when the government doesn’t want to be financially—or politically—responsible for them. . . .   And given the serious constitutional concerns raised by all interbranch appointments, it makes even less sense to conclude that judicial appointments of executive branch prosecutors can be implicitly authorized by a rule promulgated by this Court and adopted under the Rules Enabling Act only through Congress’s inaction. Bringing Young into line with this Court’s later rulings would be—and is—reason enough to grant certiorari. But the logical and doctrinal mess that the panel majority created in trying to square that circle makes plenary review in this case truly imperative.

Professor Vladeck’s and my discussion about Donziger, “officers of the United States,” and Rule 42 is here

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