On May 24, the Supreme Court decided United States v. Marcus, No. 08-1341, holding that convicting a defendant for conduct that occurred in part before the relevant criminal statute was enacted was not "plain error" entitling the defendant to relief on appeal, where he failed to raise the issue at trial.
Glenn Marcus was indicted for engaging in unlawful forced labor and sex trafficking between January 1999 and October 2001. Evidence of his conduct during this entire period was presented at trial, and he was convicted on both charges. On appeal, he argued for the first time that the statute under which he had been charged and convicted was not enacted until October 2000. He asserted that the jury might have based his conviction entirely on conduct occurring before the statute was enacted and that the conviction therefore violated the Ex Post Facto Clause of the Constitution. The Court of Appeals for the Second Circuit agreed and ordered a retrial. It applied the "plain error" rule to relieve Marcus of the consequences of his failure to raise the issue at trial, finding that there was a possibility, however unlikely, that the jury may have convicted based entirely on conduct before the statute was passed.
The Supreme Court reversed. Federal Criminal Rule 52(b) permits an appellate court to recognize "plan error that affects substantial rights," even if the claim of error was not asserted in the trial court. But relief for "plain error" may be granted only if (1) there is an error; (2) the error is "clear or obvious, rather than subject to reasonable dispute;" (3) the error "affected the appellant's substantial rights;" and (4) the error "seriously affected the fairness, integrity, or public reputation of judicial proceedings." The Second Circuit's reversal of Marcus's conviction is inconsistent with the third and fourth criteria. The third requires that the error be "prejudicial," which means that there must be a reasonable probability—not, as the Second Circuit held, any possibility, however remote—that the error affected the trial's outcome. In addition, under the fourth criterion, the error here was not among the category of "structural errors" that may affect substantial rights regardless of their actual effect on the defendant, because a jury instruction might have minimized or eliminated any risk that Marcus would have been convicted based solely on pre-enactment conduct. The Court rejected Marcus's contention that Ex Post Facto Clause violations should always be treated as special structural errors that warrant reversal without a showing of prejudice.
Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito joined. Justice Stevens filed a dissenting opinion. Justice Sotomayor took no part in the consideration of the case.