New Supreme Court Term Kicks Off with Oral Arguments in Five Cases

The U.S. Supreme Court’s new term gets into full swing next week. To kick off the new Supreme Court term, the justices will hear oral arguments in five cases, along with issuing orders and a meeting to consider additional cert petitions.

• Bravo-Fernandez v. United States: The criminal case involves how to interpret the Constitution’s Jeopardy Clause, as well as existing Supreme Court precedent interpreting it. In In Ashe v. Swenson, 397 U.S. 436 (1970), this Court held that the collateral estoppel aspect of the Double Jeopardy Clause bars a prosecution that depends on a fact necessarily decided in the defendant’s favor by an earlier acquittal. In Yeager v. United States, 557 U.S. 110 (2009), the Court held that an acquittal retains its preclusive effect even when it is inconsistent with a hung count based on the rationale that juries “speak” through vacated convictions, but not through hung counts. The question now before the justices is whether, under Ashe and Yeager, a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause.

• Shaw v. United States: The Court’s second case of the new term revolves around the essential elements of a bank fraud case. The specific question is whether, for purposes of subsection (1) of the bank- fraud statute, 18 U.S.C. §1344, a “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank. The circuit courts have split on the issue, with the majority (nine of twelve) ruling that the additional intent element is required.

• Salman v. United States: The financial industry will be closely watching this case, which will likely impact the future of insider-trading prosecutions. The justices have agreed to determine whether the personal benefit to the insider that is necessary to establish insider trading under Dirks v. SEC, 463 U.S. 646 (1983), requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” as the Second Circuit held in United States v. Newman. Other federal appeals courts, including the Ninth Circuit, have ruled it is sufficient that the insider and the tippee shared a close family relationship.

• Buck v. Davis: The Court will also take on racial bias and discrimination in the criminal justice system, which the justices have acknowledged is an “issue of great importance.” The more technical question before the Court is whether the Fifth Circuit Court of Appeals imposed an improper and unduly burdensome Certificate of Appealability (COA) standard when it denied the petitioner a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that petitioner was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing.

• Manuel v. City of Joliet: The police misconduct case involves whether an individual who is wrongly arrested can later sue for malicious prosecution. The specific question before the Court is whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment. The First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a Fourth Amendment malicious prosecution claim is cognizable through 42 U.S.C. § 1983 (“Section 1983”). However, the Seventh Circuit holds that a Fourth Amendment Section 1983 malicious prosecution claim is not cognizable.