The Supreme Court (Washington, not Raleigh) has had a bit of a slow February so far, whether because of Justice Ginsburg's well-publicized health problems or for some other reason. Still, it's done a couple things of interest to criminal lawyers. First, it adopted a broad interpretation of 18 U.S.C. 922(g)(9), which prohibits people who have been convicted of misdemeanor domestic violence crimes from having guns. The issue before the Court was whether domestic violence must be an element of the prior offense for the statute to apply, or whether someone who was convicted of, say, simple assault as a result of an episode of domestic violence was also covered by the statute. In United States v. Hayes, opinion here, the Court held that domestic violence need not be an element of the offense, so long as the government can prove beyond a reasonable doubt that the conviction was as a result of domestic violence. Interestingly, Chief Justice Roberts and Justice Scalia dissented, arguing that the statute is ambiguous and that the rule of lenity favors a narrower interpretation. Second, it granted certiorari in Padilla v. Kentucky, where the issue is whether erroneous advice about the collateral immigration consequences of a criminal conviction constitutes ineffective assistance of counsel. If there are any defense attorneys out there who aren't already attuned to importance of thinking about immigration consequences of criminal proceedings, this should be your wake-up call. Finally, it heard oral argument in Flores-Figueroa v. United States, another case that is of particular importance to those who deal regularly with undocumented immigrants. The issue in that case is whether the federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), applies to someone who uses identifying information, like a Social Security number, that they make up out of whole cloth but that turns out to belong to someone else. In other words, they know it's not theirs, but they don't know whose it is, or whether it's anyone's. Undocumented immigrants are particularly likely to do this, usually in order to appear eligible for employment, and the case before the Court in fact involved such a defendant. News reports of the oral argument, like the one available here, suggest that the Court was skeptical of the government's position, but trying to guess how the Court will rule from a news report is like playing baseball while blindfolded. Expect a lot more from the Court over the next couple of months. I'll keep you posted.
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