United States v. Marcus

PETITIONER: United States
RESPONDENT: Glenn Marcus

DOCKET NO.: 08-1341
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 560 US 258 (2010)
GRANTED: Oct 13, 2009
ARGUED: Feb 24, 2010
DECIDED: May 24, 2010

Eric D. Miller - Assistant to the Solicitor General, Department of Justice, for the petitioner
Herald Price Fahringer - for the respondent

Facts of the case

A New York federal district court convicted Glenn Marcus of violating sex trafficking and forced labor provisions of the Trafficking Victims Protection Act ("TVPA"). The TVPA was enacted after Mr. Marcus engaged in some of the behavior for which he was charged. Yet, the jury was not instructed as to the date when the TVPA was enacted in relation to Mr. Marcus' allegedly illegal behavior. On appeal, he argued that the TVPA was applied retroactively, and, thus, violated the Ex Post Facto Clause of the Constitution. The United States Court of Appeals for the Second Circuit agreed and reversed the district court. Applying a "plain-error" standard of review, the court held that Mr. Marcus was entitled to a new trial on Ex Post Facto grounds. The court reasoned that if it was possible for the jury, who had not been given instructions regarding the date of the TVPA's enactment, to convict exclusively on the defendant's pre-enactment conduct, then the conviction violates the Ex Post Facto clause.


Did the Second Circuit depart from the Supreme Court's interpretation of Federal Rule of Criminal Procedure 52(b) by adopting the "plain-error" standard of review for an asserted Ex Post Facto violation?

Media for United States v. Marcus

Audio Transcription for Oral Argument - February 24, 2010 in United States v. Marcus

Audio Transcription for Opinion Announcement - May 24, 2010 in United States v. Marcus

John G. Roberts, Jr.:

Justice Breyer has the announcement of the Court in case 08-1341 United States versus Marcus.

Stephen G. Breyer:

The jury convicted the respondent Glenn Marcus of sex trafficking crimes that took place between “January 1999 and October 2001”.

On appeal, for the first time on appeal, Marcus pointed out that the relevant statute that he was convicted under, had not become enactive, wasn't enacted into law into well in between this period of time in October 2000.

He said the jury might have based its conviction on events that took place before the statute became law and that the Constitution consequently required a new trial.

Now everyone agrees in this case that the Constitution would forbid the jury to convict Marcus solely on the basis of conduct that was not unlawful at that time because the statute hadn’t passed and that a failure to give the jury an appropriate instruction that would've made sure, they knew that, was a mistake, an error and for present purposes, we have to assume that the error was clear enough in this case that it might qualify as a “plain error" which is the kind of error, Court of Appeals can take into account even if the defendant doesn't raise the matter of trial.

But still they will take this into account as a “plain error” only if among other things, it affects the defendant substantial rights and here the government argued there's so little chance that the jury would really have in this case based its conviction solely on the basis of conduct before the statute was enacted, the court should just ignore this mistake.

Now the Court of Appeals rejected the government’s argument, but not because it thought the error, probably made a difference in the case.

It didn't decide, whether the error did or did not make a difference in the case, rather it rejected the error because in its view and here I quote the standard that it put down, “a retrial is necessary whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.”

Now no other Circuit has followed that kind of rule and in this case, we hold that the Second Circuit standard is inconsistent with this Court's holding setting forth the requirements about when Courts can recognize and when they can't recognize a “plain error”.

The requirements which stem from the rules require a greater likelihood.

Then the Second Circuit said that the error really did make a difference.

The words, any possibility, no matter how unlikely, suggested it needn't have made any difference at all but the law requires it to have made a difference, so we remand the case so that it considered, it can reconsider it applying the correct “plain error” standard.

Justice Stevens has filed a dissenting opinion.

Justice Sotomayor took no part in the consideration or decision of the case.