A Seat at the Sitting - March 2023

The March Docket in 90 minutes or Less

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Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases that will be covered in this preview are listed below.

  • Abitron Austria GMBH v. Hetronic Intl. Inc. (March 21) - Intellectual Property, International Law; Whether the owner of a U.S.-registered trademark can bring a lawsuit for damages for infringement overseas.
  • Coinbase, Inc. v. Bielski (March 21) - Litigation, E Commerce; Whether a non-frivolous appeal of the denial of a motion to compel arbitration ousts a district court’s jurisdiction to proceed with litigation pending appeal.
  • Jack Daniel’s Properties v. VIP Products (March 22) - Intellectual Property; Whether and when trademark law prohibits a spoof of a company’s brand.
  • Amgen Inc. v. Sanofi (March 27) - Intellectual Property, Medicine; When a patent applicant must provide a description of its invention that would enable a “skilled artisan” to make and use the invention, what must the applicant show to meet that requirement?
  • Smith v. United States (March 27) - Criminal Law; What is the proper remedy – acquittal or a new trial – when an appeals court concludes that one of the counts on which a defendant was convicted was tried in the wrong place?
  • Lora v. United States (March 28) - Criminal Law; Whether federal criminal sentencing laws require a New York man convicted for his role in a drug-trafficking murder to be sentenced to consecutive, rather than concurrent, sentences.
  • Samia v. United States (March 29) - Criminal Law; Whether prosecutors violated a defendant’s right under the Sixth Amendment when they admitted a confession from one of his co-defendants, redacted so that it did not use the defendant’s name.


  • Prof. Jennifer Jenkins, Associate Professor of Law, Ave Maria School of Law
  • Prof. Stephen Ware, Frank Edwards Tyler Distinguished Professor of Law, University of Kansas School of Law
  • Robert Rando, Partner, Greenspoon Marder LLP
  • Adam Mathews, Senior Intellectual Property Attorney, Faurecia 
  • Robert "Bob" McBride, Partner, Taft Stettinius & Hollister 
  • Moderator: Elizabeth Slattery, Senior Legal Fellow, Pacific Legal Foundation


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Nate Kaczmarek:  Good morning. Welcome to this March 2023 edition of “A Seat at the Sitting.” Today’s webinar is designed to preview the March Supreme Court docket in 90 minutes or less. I’m Nate Kaczmarek, Vice President and Director of the Practice Groups. At the outset, please note that all opinions expressed today belong to our guests. This morning, we are fortunate to have Elizabeth Slattery join us and help us guide our panel. Elizabeth, two questions. Is your March Madness bracket filled out, and how are you this morning?


Elizabeth Slattery:  I haven’t filled out my bracket. Although, I’ll be rooting for the Xavier Musketeers — it’s my alma mater — and I’m delighted to be here this morning for this conversation.


Nate Kaczmarek:  Well, very good. We are, as I expressed, delighted to have you with us, and we’re very much looking forward to a packed panel of great legal experts. So I will move quickly to introduce Elizabeth, and we will get on with their presentations. So Elizabeth is a senior legal fellow and deputy director of PLF’s Center for the Separation of Powers. Her opinion pieces have appeared in the Wall Street Journal, the Washington Post, SCOTUSblog, National Review Online, and many other outlets. Elizabeth co-hosts PLF’s Supreme Court podcast, Dissed. She previously worked at the Heritage Foundation, and as she mentioned, her undergrad is from Xavier, and her J.D. is from Anton Scalia Law School.


Full bios for Elizabeth and our panel are available on our website, so you can check those out there. In a moment, we’ll hand it off to Elizabeth to get things started. Once the group has reviewed our next set of cases, we’ll go to audience Q&A, so audience, please think of the challenging questions you’d like to stump our panel with. Questions can be submitted via the Zoom Q&A function. We’ll -- and we will endeavor to answer as many of them as we can. Elizabeth, the floor is yours.


Elizabeth Slattery:  Thanks, Nate, and good morning, and thank you all for joining us. The Supreme Court returns next week after a few weeks off from oral arguments. And this is the second-to-last argument sitting of the term. As Nate mentioned, over the course of the next 90 minutes or less, we are going to sprint through ten cases the justices will hear. And of course, we’ll have time for Q&A toward the end, so feel free to drop those in the Q&A box. And we’ll get to those towards the end of the program.


So I’m going to keep the speakers’ bios brief and introduce each of them as we reach the case that they’ll present on. So we’ll kick off with what, I think, is perhaps the most discussed case of the March sitting, Jack Daniel’s v. VIP Products. This is, of course, the trademark case concerning a squeaky Bad Spaniels dog toy that looks like a bottle of Jack Daniel’s whiskey. Jack Daniel’s did not find this entertaining. Does trademark law prohibit spoofs of a company’s brand? That’s the question before the Court.


So to provide an overview of that case, we’re fortunate to have Adam Mathews. He’s a senior intellectual property attorney at Faurecia. With that, Adam, take it away.


Adam Mathews:  Sure. Thank you so much, Elizabeth. And Jack Daniel’s v. VIP Products is coming to us from the Ninth Circuit, so you know it’s going to be very interesting just from that. As mentioned, VIP Products is in the business of making chew toys, other types of crass or supposedly funny products for purchase. They created one called Bad Spaniels, which is in the same shape, same coloration, and instead of having the name Jack Daniel’s, it has Bad Spaniels with a little basset hound on it. And instead of No. 2 whiskey, it has No. 2, relating to urination and other types of jokes along the product.


Jack Daniel’s saw that this was going for sale. They sent a cease and desist letter. VIP Products responded, asking for a declaratory judgment at a loss. From there, it went up to the Ninth Circuit. Ninth Circuit used a test called the Rogers test, which comes from using movie names, an old test from the Second Circuit that says if there’s -- if it’s not misleading, then to find infringement, you have to have no artistic expression and not be intentionally misleading. We now get to the Supreme Court -- it was then sent back down on remand. Jack Daniel’s lost with this new type of Rogers test, and it is now back up to the Supreme Court.


The questions before the Court are is there a threshold test for parodies similar to the Rogers test, where you can use really whatever you want in the First Amendment controls without that concern of trademark, or does the Lanham Act control, with its type of misleading or likelihood-of-confusion tests or dilution of goodwill. The second question there is on what is considered noncommercial. The Ninth Circuit found that this was a noncommercial expression of -- on the part of VIP Products and the Bad Spaniels product. And we’re going to see what type of discussion there is on that. The -- I’m really excited to see what comes out and if they’re going to hold narrowly or not. It’s been determined that for likelihood-of-confusion, on a survey, over a third of respondents said they thought this was done by Jack Daniel’s.


Normally, for a type of trademark likelihood-of-confusion case, it’s -- eight to ten is considered dispositive. Another fact-dependent case on this that could make it be narrow is that Jack Daniel’s does sell licensed dog products, so it is in the space of VIP Products. We also are going to see how this relates otherwise. In a different circuit, VIP Products had already been found liable for a similar case, where they had a product that was like -- that was similar in ripping off a Budweiser. And that was found to be infringing and dilution of mark with no real use of the Rogers test. But the -- but using the Lanham Act and standard trademark practice.


So most of the amicus briefs coming in favor of Jack Daniel’s are for the motion picture associations, beer companies, larger manufacturing companies with a major concern that if VIP -- if the test put forward by the Ninth Circuit is upheld, you could infringe most trademarks, in their view, by any type of lax parody. We mentioned our hometown’s team. One of our hometown’s teams is Xavier Musketeers. You, making up an example on the spot, you could have a mocking product of deodorant that’s the Xander “Musk”eteers, and that would be not an infringement of the trademark under this type of test that the Ninth Circuit has put forward. So that -- a lot of concern is getting that balancing test that we have -- that’s a set-up for intellectual property. It’s supposed to be both the protection of the goodwill that you put in as well as protecting the consumers.


This is The Federalist Society and come in here with a good Madison quote from 43: “Intellectual property is where the public good fully coincides with the claims of individuals,” and in this case, we’re seeing how that is going to be resolved within the Supreme Court. And that’s -- and we’re seeing for that [sic].


Elizabeth Slattery:  So really fascinating case and I would commend the petitioner’s brief. Lisa Blatt represents Jack Daniel’s, and there’s a section that has just a true parade of horribles with all manner of outrageous examples. So I would -- I was laughing, reading the brief. But, you know, it’s a serious issue.


So Adam, could you explain a little bit more? One of the issues is whether this is a noncommercial use. So can you explain -- unpack that a little bit more? What is VIP’s position on why a product that it’s selling is a noncommercial use?


Adam Mathews:  Sure. It’s a creative argument that it’s a noncommercial use, that it’s -- it is parody, and as such, they’re not selling whiskey, and so, it’s not the same product. It’s not the same commercial use. They’re looking to the Rogers test that, even though movies are clearly a commercial product, that the artistic expression there is the part that is being protected. And so, they are saying that their jokes are noncommercial, and that is what they’re -- they’re very grateful for the Ninth Circuit’s holding and pushing along with that noncommercial argumentation.


Elizabeth Slattery:  And you mentioned that they’ve been sued by Budweiser in another circuit. Are you aware -- are there a whole host of suits against VIP Products in a variety of circuits?


Adam Mathews:  There are a few. The one I saw to completion was the Budweiser one, and I’m sure there’s many others watching this case to see how far this type of parody protection goes. And I think you’ll have similar -- in related fields, you’ll have many mocking groups seeing what -- how far they can push the line as you go to Hot Topics and Spencer’s Gifts throughout the country.


Elizabeth Slattery:  So this is a question I’m going to pose to everybody about the case that they present on -- are there any justices we should keep a particular eye on during the oral arguments for this case?


Adam Mathews:  Sure. I’m interested to see, especially with the way that the Court’s been dealing with a lot of stress and situations, if there are any that are willing to make jokes. That’ll be -- this is one that they could at oral argument. But more seriously, Justice Thomas has been the one that has had the keenest eye on the intellectual property cases. It’s generally been more on the patent space. But this is more in trademark, so I’m going to be very interested to see how he goes, especially since he’s been much more in tune with third-party concerns and such, so we’ll see his take on this.


Elizabeth Slattery:  Well, thank you, Adam. So moving from trademarks to patents, we’ll turn next to Amgen Inc. v. Sanofi, which involves the Patent Act’s enablement requirement. So unpacking the case, we have Robert Rando, who’s a partner at Greenspoon Marder LLP in the Intellectual Property, Litigation, and Entertainment and Sports practices. So Robert, tell us about the Amgen case.


Robert J. Rando:  Thank you, Elizabeth. And thank you to The Federalist Society for including me in this “Seat at the Sitting” program, and thank, everyone, for attending the program. As Elizabeth said, I’ll be discussing Amgen v. Sanofi. And for those attending that are not patent practitioners, I apologize in advance for any parts of my discussion that may have your eyes glaze over. However, in spite of the patent [inaudible 00:13:19] issue, I promise that one of the fundamental issues in this case is judicial interpretation of a statute beyond its plain language. Where have we heard that before?


This case is a patent-infringement case that involves the application of the statutory enablement requirement of Section 112 of the patent laws to what is referred to as a genus claim as it applies in the context of the pharmaceutical application. The two patents in dispute relate to antibody drugs that reduce low-density lipoprotein, LDL, cholesterol. The patented invention is for a technology that relies on antibodies that bind to a naturally occurring protein, PCSK9 -- we’ll call it P9 for convenience -- inhibiting it from binding to LDL receptors, which causes higher levels of LDA cholesterol -- LDL and, thus, leaving them free to extract cholesterol from the blood stream. Respondents and petitioner have developed two different P9 antibodies and a different amino acid sequence with a bind to P9. Amgen have turned the two patents that broadly claim the genus of all antibodies that binds certain amino acids on P9, which is a first function, and blocked its binding to the LDL receptors, which is a second function.


The Federal Circuit determined that “undue experimentation” was necessary to enable practicing the “full scope” of Amgen’s double function claims. In its petition for cert, Amgen argued that, in this case, the Federal Circuit applied a recent court-made hurdle to enablement, that is for genus claims like Amgen’s and ruled that it's not enough that the patent meet the statutory requirement to teach a skilled artisan to make and use the invention as per the plain language of the statute. Instead, the Federal Circuit required that the specification allows skilled artisans to reach the full scope of claimed embodiments, that is cumulatively identify and make all or nearly all possible variations of the invention without substantial time and effort.


Amgen asserted that there was no dispute that its patented invention, monoclonal antibodies that dramatically reduce levels of bad cholesterol, was a breakthrough. And there was no dispute that the patent enabled skilled artisans to make and use those antibodies. They could make the 26 antibodies identified in the patent by amino acid sequence and could make other antibodies with the claim that by following the patented step-by-step road map, which employed a method routine in the antibody arts. As Amgen pointed out in their petition, no one — neither respondents nor experts nor the court — identified even one actual embodiment that could not be made following the patent disclosure.


So the question to be reviewed by the Court is whether enablement is governed by actual statutory plain language of Section 112’s requirement that the specification teach those skilled in the art to make and use the claimed invention, or whether it must instead enable those skilled in the art to reach the full scope of claimed embodiments without undue experimentation to cumulatively identify and make all or nearly all embodiments of the invention without substantial time and effort.


Now, some of the arguments by the parties. Amgen argues that the Federal Circuit’s full scope standard defies the text, precedent, history, and policy and finds no support in Section 112. Not surprising, Sanofi says that the Federal Circuit’s enablement standard is faithful to Section 112 text and SCOTUS precedence and was properly applied. In addition to -- there were many amicus briefs. In fact, in addition to the SG brief, which was invited by the Court, there were approximately 30 other amicus briefs filed in the case, roughly, evenly split between in support of petitioner, Amgen [inaudible 00:17:33] and those in support of respondent, Sanofi. The Government amicus supports the respondent.


One particular amicus brief that I’d like to discuss in a bit more detail is a brief that was filed by my colleagues and I on behalf of the New York Intellectual Property Law Association — NYPLA, for short — in support of neither party. I point to this amicus brief because it provides a unique solution to the issue that, hopefully, the SCOTUS will give serious consideration and, which, in some respects, is a nice compromise of the diametrically opposed position of the parties and their respective supporting amici. Most importantly, I think it strikes a balance between the clear, plain language of the statute and the concerns of the Federal Circuit as manifested in its decision.


Before I get to the proposed solution, I will go through some of the argument by NYPLA. First, the requirement of enablement of the full scope of the claimed invention is not supported by the plain language of the statute and is contrary to the Supreme Court precedent that found in its holding in Mineral Separation v. Hyde, 242 U.S. 261 (1916). The Court also cited some older precedent in that case, and despite its age, this case and the language in this case is still being cited. Second, notwithstanding the plain language of the statute, the Federal Circuit’s enablement standard does address a valid concern. Third, the NYPLA points out the adverse impact on the U.S. patent system and innovation, resulting from how patents used would have to behave if the Federal Circuit’s enablement standard were confirmed by the Supreme Court.


The proposed solution, NYPLA proposes a solution that allows patents to cover a genus — here, one of the molecules that reflects the scope of the innovation, including its dual function or requirements — but limits the scope of the granted patent to only those species that can be obtained without undue experimentation by applying the test only when evaluating infringement as a means for construing the scope of the claims. Stated otherwise, the proposal employs the scope of enablement to define the scope of the claims. The Federal Circuit’s full scope test establishes that no inventor could get a patent to a genus claim unless she has tested all of the species that could possibly make up that genus. This requires not just constructing but also testing the functionality of all species. The NYPLA offers an alternative: grant the patent to the genus claim. If at the time of infringement, it is determined that undue experimentation was needed to make the species impugned with infringement, that species would be considered outside the scope of the patent claim and not infringing.


On the other hand, if all the alleged infringer did was to follow the disclosure of the patent without undue experimentation, the accused species would be within the scope of the patent and be an infringement. The benefit of this solution is that the determination of undue experimentation as to the full scope of the claims, that is each species, is not required at the patenting stage, and broad disclosure of inventions would be encouraged. And unlike the patent examiner’s limited resources and time, an infringer’s ability to challenge, enable the invalidity in litigation is much greater using expert witnesses who may have conducted extensive testing and may be able to explain the level of ordinary skill in the art, which the undue experimentation must be evaluated. The Patent Act already accounts for this apparent disparity in the application of the patent laws and for different requirements of prosecution and litigation. For example, while an applicant must satisfy the best mode disclosure requirement at prosecution, the Patent Act, as amended by the AIA, eliminated failure to disclose the best mode as a basis to invalidate the patent in litigation.


The point of this proposal is to apply the plain statutory language in the Patent Office for satisfying Section 112 during the patent exam stage. Allowance of the broad genus claim at that point would be under the assumption that, based on the specification at disclosure, the covered species could be obtained without undue experimentation, thus during prosecution, the patentee would have to provide sufficient evidence to convince the Patent Office examiner that all of the disclosed species in the genus claim could be made without undue experimentation by following the spec. Any member of the public could determine whether there is infringement by following the spec and seeing if its antibody is obtained without undue further experimentation before going to market. During litigation, Section 112 would be used to limit the scope of the genus claim to cover only those species that are enabled without undue experimentation. And if the accused infringer can show his species was not obtainable without undue experimentation, that species would not be covered by the broad genus claim and would not constitute infringement.


However, the applicant would not have to disclose every single species covered by the broad genus claim. At trial, evidence that the accused species could not be obtained without undue experimentation would lead to a judgment of “non-infringer.” But the patentee would still have a valid genus claim covering those species that would directly disclose in its specification or could be obtained without undue experimentation. The scope of the genus claim in infringement would be determined by considering whether the accused product could be obtained without undue experimentation using a spec to guide and the level of skill in the art, including technologies available at the time of filing the application. And it would be the accused infringer’s burden to present evidence on these issues, if he wants to avoid infringement. Thank you.


Elizabeth Slattery:  So Robert, could you explain where did the Federal Circuit come up with this full scope test? And you mentioned the Department of Justice filed a brief supporting the respondent, so does the Government embrace this full scope test?


Robert J. Rando:  Well, it really emanates from the Federal Circuit’s concern that the coverage, the claim would too broad and would lock out a lot of additional innovation. And that’s really the argument being made by the DOJ as well.


Elizabeth Slattery:  And previous patent cases have produced some interesting bedfellows on the Court. So which justices should we keep an eye on during the oral argument in Amgen?


Robert J. Rando:  Well, I agree with Adam that Justice Thomas takes a -- and has in recent years -- taken a much more active role in patent cases. I would also look at Justice Gorsuch. I believe that he has a good take on the patent law issues, and he had been active, especially -- well, mostly on the administrative law side with PTAB issues. But I think his interest weighs in as well. And as far as how they may ultimately decide, I think focusing on the statutory interpretation and the philosophy that each of the justices espouses considering that, in terms of plain language and originalism, I think that will play a large part in this case.


And my concern is that the Court may be persuaded one way or the other with respect to the Federal Circuit’s concerns and the fact that each party said, well, it doesn’t stifle competition, and it’s a boon to competition. But there’s a long history of precedent in this Supreme Court that would really support Amgen’s position.


Elizabeth Slattery:  Yeah. Before we move on to the next speaker, could you spend a couple of minutes telling us about the Abitron case, which concerns extraterritorial application of the Lanham Act?


Robert J. Rando:  Sure. And I promise this preview will be must shorter than the Amgen case. Abitron is a trademark case, which presents a damages issue in trademark infringement cases. The Supreme Court is set to determine whether a plaintiff may recover damages for foreign trademark infringement by foreign defendants and resolve an ongoing circuit split on applicability of the Lanham Act to the extraterritorial foreign conduct. Specifically, the Supreme Court granted cert on the question of whether the U.S. Court of Appeals for the Tenth Circuit erred in applying the Lanham Act, which provides civil remedies for infringement of U.S. trademarks, extraterritorially through Abitron’s foreign sales, including purely foreign sales that never reach the United States or confused U.S. consumers.


Cert was granted for the Tenth Circuit’s decision when the Tenth Circuit concluded that the Lanham Act applied to foreign defendants’ foreign sales of infringing products because it had a “substantial effect on U.S. commerce.” While the Tenth Circuit settled on application of the substantial effect test, this test is just one of many that various circuit courts have applied to the issue. And even though only three percent of the distributed total sale ended up in the U.S., the Tenth Circuit concluded that the Lanham Act reached all of the distributors’ foreign infringing conduct. And this is because the three percent still represented millions of euros worth of infringing products that made their way into the U.S. after initially being sold abroad. The distributors diverted from Hetronic tens of millions of dollars of foreign sales that otherwise would have ultimately flowed into the U.S., and at least, some sales confused the U.S. consumers, as per the Tenth Circuit’s opinion.


Although U.S. intellectual property laws are generally not applied extraterritorially, the Supreme Court has recognized the potential extraterritorial application of the Lanham Act since 1952 in Steele v. Bulova Watch. In Steele, the Supreme Court stated that the broad jurisdictional granted the Lanham Act and “its sweeping reach into all commerce, which may lawfully be regulated by Congress.” The Court determined that the Act applied to the allegedly unlawful conduct of the U.S. -- of a U.S. citizen abroad when its foreign conduct affected U.S. commerce. However, the Court did not clarify when the Lanham Act governs foreign infringing activity nor did it determine its applicability to foreign defendants.


So circuit courts have devised their own approaches. As a result, they’ve adopted one of three tests or a variation of them when confronted with these issues. They are the Vanity Fair test, the Timberlane test, and the McBee test. The Vanity Fair test considers three factors: whether the defendant is a U.S. citizen, whether there was a conflict with trademark rights established under the relevant law of the foreign jurisdiction, and whether the defendant’s conduct has a substantial effect on U.S. commerce. This test is followed by the Second, Fourth, Fifth, Eleventh, and Federal circuits, but the Fourth and Fifth circuits have varied the last part of the test.


The Timberlane test is followed by the Ninth Circuit. Instead of requiring substantial effect, it allows extraterritorial application on the Lanham Act if, one, the alleged violations created some effect on American/foreign commerce; two, the effect is sufficiently great to present the cognizable injury to plaintiffs; and three, the interest of the links to -- interest of and links to American/foreign commerce are sufficiently strong in relation to those of other nations to justify an assertion of extraterritorial authority. The McBee test, which was followed by the Tenth Circuit, introduced an additional wrinkle to the extraterritoriality of the Lanham Act. This approach requires foreign activities to have a substantial effect on U.S. commerce only if the defendant is not a U.S. citizen. And when a defendant is a U.S. citizen, McBee found that it would be separate constitutional basis for jurisdiction for control of activities, even foreign activities.


As I said, the Tenth and the First Circuits apply this test, although the Tenth Circuit employed a modified version. And Abitron, its modified approach included an added consideration about “whether extraterritorial application of the Lanham Act would create a conflict with trademark rights established under foreign law.” It’ll be interesting to see if the Court adopts any one of these three tests, a modified combination of any of the three tests, or, perhaps, even a fourth test of its own. And I will stop here. Thank you.


Elizabeth Slattery:  Thank you. Next, let’s turn to the latest Armed Career Criminal Act case. It seems those are in steady supply at the Supreme Court. In Lora v. United States, the Court will look at whether the statute requires consecutive rather than concurrent sentences for a man convicted for his role in a drug-trafficking murder. To tell us about this case, we have Jennifer Jenkins, who’s an associate professor at Ave Maria School of Law, where she teaches criminal law and procedure. And she previously served as a Supreme Court Fellow with the U.S. Sentencing Commission. So Professor Jenkins, the floor is yours.


Jennifer Jenkins:  Thank you so much for having me. In this case, the Court will be tackling an issue of statutory interpretation for a criminal statute. Section 924(c) punishes people who carry a firearm during the commission of a violent or drug-trafficking offense, and Section (j) applies to people whose firearm use results in the death of another. Here, petitioner was convicted of conspiring to distribute cocaine and aiding and abetting the use of a firearm during a drug crime resulting in murder. Now, generally -- so under the Common Law, judges were given discretion as to whether to impose sentences concurrently — so that would be the defendant serving the multiple sentences at the same time — or whether the sentences would be imposed consecutively. So you can see why that can make a big difference in the amount of time that the person serves in prison.


Section 924(c) says that no term imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed. So that means that the -- any -- that the sentence would have to run consecutively, so it would create a longer sentence for defendant. But the -- here, petitioner argues that his sentence should have been -- that, at least, the judge should have had the discretion to run his sentences concurrently, that is at the same time. Section 924(j) provides a person who, in the course of a violation of Subsection (c), causes a death of a person through the use of a firearm receives certain sentences. So here, the petitioner was sentenced under (c) and (j) but contends that the prohibition on concurrent sentences contained in Section (c) should not apply to him because he was sentenced under Section (j).


So the petitioner’s arguments are, first, that the plain text confirms that Section 924(j) fails to require consecutive sentences. And the petitioner explains that this is because Section 924(j) is silent on the issue of concurrent or consecutive sentences. And so, judges have the discretion to impose either. Petitioner also claims that the concurrent sentence bar in Section -- in 924, Section (c), fails to apply outside that subsection. While petitioner admits that Subsection (j) incorporates terms of the offense from Subsection (c), petitioner contends that Subsection (j) does not incorporate Subsection (c)’s bar on consecutive -- on concurrent sentences.


The petitioner also contends that the interpretive canons reinforce this plain text for which he advocates. He claims that a clear statement would be required to eliminate the sentencing discretion that judges possess under the Common Law and, generally, possess today. And that no such clear statement exists here. And he claims that the rule of lenity, which means that when a text is ambiguous, it should be interpreted in favor of a defendant. The petitioner claims that the rule of lenity here -- that even if the Court were to determine that this text was ambiguous, the rule of lenity would mean the text should be interpreted in favor of petitioner.


The petitioner also claims the statute’s enactment history confirms his interpretation because when the -- when Congress added Section (j), they could have put these terms in Section (c). They could have stated explicitly that the prohibition on concurrent sentences from Section (c) applied to Section (j), and they chose to do none of those things when they substantially rewrote this section. However, the Government argues that the plain text requires consecutive sentences because Section (j) refers to a person who in the course of a violation of Subsection (c). And so, Subsection is simply an aggregated version of Subsection (c). The Government contends that Sections (c) and (j) accordingly work together to prescribe defendants’ punishment, and Section (j) incorporates Section (c) by reference.


The Government also points out that the Court’s previous decisions have held that the consecutive sentencing mandate applies to all defendants who violate Subsection (c), and a violator of Subsection (j) has necessarily violated Subsection (c). The Government also points out the anomalous consequences of petitioner’s interpretation because this would mean that Congress mandated consecutive sentences for defendants convicted of violating Section (c), except when the defendant is also guilty of the greater homicide offense. But the petitioner points out the divining Congressional purpose is not a statute of -- is not a canon of statutory interpretation. And so, the Court should simply focus on the plain meaning of the text. So it will be interesting to see how the Court comes out on this one.


Elizabeth Slattery:  So it seems like there’s a case nearly every term implicating part of this statute. Do you think that’s just because there are so many prosecutions under the statute, or do you think Congress may need to go back and revise its handiwork?


Jennifer Jenkins:  I think that Congress should go back and revise its handiwork. It seems to be frustrating that judges in -- at all levels of courts have to go through mental gymnastics and statutory interpretation gymnastics because of a faulty drafting on the behalf of Congress when they could just be more clear in their drafting.


Elizabeth Slattery:  And are there any particular justices we should keep an eye on as they’re hearing the arguments in this case?


Jennifer Jenkins:  Yes, we might keep an eye on Justice Gorsuch because, in some way, this case reminds me of Bostock when Justice Gorsuch, in the opinion for the Court, decided -- ruled that the word, “sex,” should be interpreted to encompass gender orientation in the Civils Right Act. And it was based on, really, a literal meaning of the word. Sex encompassed gender orientation. And in this case, it seems that petitioner’s main argument is that his interpretation is the literal meaning of the statute. And so, it might be interesting to see whether the -- in this case, the purely literal meaning or the meaning that seems to be more what the drafters intended by the words that they used. So it may be interesting to see how this -- how the textualists battle this one out. But if I really had to call it, I don’t think it will be that difficult a case for the Court, and I think it’s likely the majority of justices will side with the Government’s interpretation on this one.


Elizabeth Slattery:  Thank you. Well, sticking with criminal law, the Court will hear Smith v. United States the same day as Lora v. United States. And Smith looks at whether acquittal or a new trial is the proper remedy when an appeals court concludes that a defendant was tried in the wrong venue. To dig into that case, we have Bob McBride. He’s the partner-in-charge of the Kentucky office of Taft Law. And he has extensive criminal law experience in private practice and from serving as an AUSA for over 15 years. So Bob, take it away.


Robert K. McBride:  Thanks, Elizabeth. I’m delighted to be here. So let me start with a factual summary, as most good criminal cases start. This case involves an issue of venue. And in the case, you have Timothy Smith, who lives in Mobile, Alabama. And Timothy is an avid fisherman, and I would also suggest that perhaps he’s pretty savvy with computers.


A company in Pensacola, Florida, StrikeLines, sells nonpublic reef coordination data over the internet. StrikeLines is based in Pensacola, but its computers are -- the servers are in Orlando, Florida. These locations are important because they’re actually all in different federal jurisdictional districts. What Mr. Smith did was he downloaded a web application called Infiltrate, and he managed to use it to hack or decode StrikeLines’s data so that he could obtain the nonpublic data from his computer. He then posted it -- posted on Facebook that he had access to all of that nonpublic data, and if anybody’s interested in it, they should directly contact him so they can get access from it. Smith also, interestingly, connected StrikeLines and offered to take down his posts, stop getting into their computers, and tell them how to fix the problem in exchange for, also, proprietary information where you can get premiere diving sites. All these sites were related to man-made reefs, by the way, for those of you who are interested in fishing and diving.


So let me just be more clear about this. Mobile, Alabama, is in the Southern District of Alabama. That’s where Mr. Smith was. Pensacola is in the Northern District of Florida where the case was prosecuted. And then, the server is in Orlando or in the Middle District of Florida. Smith was charged with the theft of trade secrets, over 500 bucks, and a violation of 18 U.S.C § 32, Computer Intrusion under 18 § 1030, and, interestingly, communicating a threat in interstate commerce. I’m sure this came when the negotiations between and StrikeLines broke down. So the issue that Petitioner Smith raised was whether the proper remedy for the Government's failure to prove venue is an acquittal in the case, and he cites the split between the Fifth and the Eighth Circuits and the Sixth, Ninth, Tenth, and Eleventh that hold that the remedy is a retrial and, candidly, from my experiences, a retrial when that happens.


But the petitioner’s arguments cite mostly historical arguments for his Article III and Amendment Six arguments. So Article III, the -- is really the venue. I think of that as kind of like where the trial is supposed to be, and Article VI combines where the trial’s supposed to be and who’s supposed to be selected from the jury. And so, it’s clear that the constitutional mandate is that a defendant is to be tried in the location where the crime occurred and by jury member -- or venire members in a petit jury from the same district.


Here, Mr. Smith argues that he really should have been prosecuted in Alabama because that’s where he committed the crimes. So at the -- during the trial, he objected to venue. The judge overruled the objection, but the judge did instruct the jury that they must find that the government established venue by a preponderance of the evidence. Otherwise, they must find Mr. Smith not guilty. He was acquitted of one charge and convicted of the other two. Based on that, he takes his appeal up to the Sixth Circuit -- or pardon me -- the Eleventh Circuit, where he loses, and then is now before the Supreme Court.


Mr. Smith argues that, based on historical precedent, Article III and Amendment Six provide a right that is essential to the proper prosecution of a citizen without violating their rights through government abuse. He cites, at the time of the Constitution, the Brits would tend to take a colonist and try them in England. And that American Common Law developed in such a way that it protected against that. And of course, the constitutional provisions do the same. Essentially, he’s arguing that this is a substantive protection against abuse by the government. He also argues that, based on the American Common Law, that an acquittal is the proper remedy.


He equates the history -- he equates the value of this rule to an acquittal based on insufficiency of the evidence. The acquittal, though, is substantially different. Under Sixth Amendment law, generally, where there’s a violation of the Constitution, the courts look to a remedy that removes the constitutional infirmity but balances against that the public right, the Government’s right to prosecute crimes in the -- under the statutes. So the distinction between the acquittal based on insufficiency of the evidence really is not analogous, in my opinion, because there is a remedy.


The Government argues, of course, the opposite. Interestingly, it interprets the history in a different way, saying that the traditional remedy for being prosecuted in the wrong venue is in fact a retrial and that the retrial is the appropriate remedy. It will vindicate the defendant’s rights, and it will balance, of course, the public right to protect the -- protect it against criminal activity. So I think that -- it was interesting because the amici -- and amicus briefs mostly supported the petitioner and relied very heavily on the originalist arguments arising out of the history of the case. So I’m very interested to see what happens here with our originalist-leaning judges -- justices, but if I have to guess, the Government’s going to prevail here.


Elizabeth Slattery:  Can you unpack a little bit why this doesn’t violate principles of double jeopardy?


Robert K. McBride:  Well, double jeopardy doesn’t -- so that’s when you had an acquittal and the same sovereign attempts to try you on the same case -- same matter. Here, what you have is the case has come up for repeals through the regular process, and that doesn’t implicate double jeopardy. What they have -- the courts are doing is remanding the same case for retrial. So double jeopardy isn’t implicated here.


Elizabeth Slattery:  And are there any particular justices -- you think the committed originalists are the ones we should keep an eye on during the oral argument?


Robert K. McBride:  I think so, but I’m interested to hear what Judge -- Justice Brown says because she’s new to the Court, and I’ll be interested to see how she views these issues. The tone of the appellant’s brief — and from my practice, I see this quite often — assume the Government is going to act in an improper way. That, of course, does happen. But it -- they fail to balance the public interest in criminal prosecutions.


Elizabeth Slattery:  So before we move onto the next subject, could you spend a few minutes telling us about Samia v. United States, which involves prosecution of a man I’ve seen described as a James Bond villain-level hitman?


Robert K. McBride:  Yeah. So let me start with the facts. This would have been a great case to be involved in, just from the interest of it. So Samia was essentially a hitman for a guy named Paul Le Roux. Le Roux was the head of an international criminal organization. The cases don’t really specify what kind, but you can imagine because they’re involved in drug trafficking, violent acts, money laundering.


And some of the interests of the organization were carried out by individuals they hired. They were essentially characterized as mercenaries. Samia was one of these mercenaries. And he was hired in 2008. In fact, when he was hired, he had expressed an interest in working as an assassin.


Le Roux was involved with a woman named Lee in a real estate transaction. Lee was in the Philippines. And Le Roux felt that Lee had cheated him out of a significant sum of money. Le Roux hired the petitioner, felony Hunter, and the petitioner’s partner, Stillwell. And they sent them out to kill Le Roux -- or her, being Lee. Her body was found in February of 2012 in a vacant parking lot near a pile of trash, and she was shot twice in the face, obviously done to send a message.


Hunter bragged to another member of the organization that it happened. That member, he, then, made another statement that was recorded by law -- American law enforcement, and he didn’t know it was going on. Le Roux was arrested in 2021, and he became a confidential witness for the Government. Hunter ended up being arrested in 2013, and the petitioner and his partner, Stillwell, were arrested in 2015. After the arrest, Stillwell made a statement and waived his Miranda Rights and confessed.


So the issue here is the defendants were being tried — none of them were testifying — so the issue is, is his confessional statement and the testimony by the agent about that -- is it admissible in the form that it was admitted. Obviously, the Confrontation Clause is implicated here because, when your co-defendant is not getting on the stand to testify, you obviously can’t cross-examine her. What the government’s trying to do is get in this confessional statement. And he’s obviously going to protect his Fifth Amendment right against self-incrimination by not testifying. So just for the audience’s edification, these guys were charged with conspiracy to commit murder-for-hire, murder-for-hire, conspiring to murder and kidnap in another country, and accused of using a firearm in relationship to a murder under 924(c), coincidentally. They were also charged with conspiracy to launder money.


Stillwell was not charged. Le Roux pleaded out to all of the counts -- to all counts, which, typically, a CW would. So before the trial, Stillwell filed a motion in limine to keep the confession out on Confrontation Clause grounds. The United States in -- the Supreme Court in Brewton said, look, a confession directly implicating another defendant violates the Confrontation Clause. However, the statement can be redacted in a way that, first, it doesn’t mention the defendant at all. Then, through the evolution of case law, it is to the point where the statement cannot express explicitly — pardon me — expressly identify the co-defendant.


That can come in the form of deletions, using gender neutral pronouns or nouns, or even editing the document so it is not fashioned in a way that it is so accusatory that only the defendant could be identified at the time the document is read. So during the trial, the statement was admitted as redacted by the court and the government, and the defendant, of course, had objected to it, was overruled, and all three parties were convicted of what they were charged. The defendant’s position here is that Brewton -- that the Confrontation Clause should not allow the admission of a modified version of a non-testifying co-defendant with the accompanying, limiting instruction, and it should be considered only against the co-defendant on which -- when it’s -- let me back up. When it’s edited, what the judge should do is look at it in the context of other evidence. Under the current law, the statement has to be reviewed within the four corners.


So that’s the issue before the Court. And in essence, Samia says, look, the right remedy -- or the right procedure here is for this to happen. Otherwise, the Confrontation Clause is completely undermined here. So the evidence or the information that the judge should consider in editing or approving an edited Brutonized statement is all the evidence under the control of the Government and evidence the Government is -- the context in which the Government is going to put the evidence.


The Government, of course, argues, look, this is one other piece of evidence that the Government is going to present. When it’s properly Brutonized, it, in and of itself, will not implicate the co-defendant, who did not make a statement. And the inference that the defendant, the non -- the defendant against whom the Government wants to use a statement, the jury comes to that conclusion based on other evidence. And so, the counter to that by the defense is, well, of course. The Government’s going to refer to it in its opening statement, and it’s going to put it in the context through the testifying agent that will suggest that it is identifying our co-defendant and, then, of course, in closing argument and so on.


My view of that is, well, every piece of evidence the Government is going to put in is going to implicate one or more of the defendants, depending on what’s said within the context of the opening statement and how the evidence is presented. So my view is that it’s going to be very difficult for the petitioner to win in this matter. Although, I do think it’s kind of a closer call. As a practitioner, I’ve often seen judges say to the -- myself, as the Government, and -- look, we need to look sort of at the circumstances here when we’re reviewing this document. So I think this one is a much closer call than Smith is.


Elizabeth Slattery:  Thank you. So from James Bond villains over to arbitration. Next, we’ll look at Coinbase, Inc. v. Bielski. The issue is whether appeal of the denial of a motion to compel arbitration strips a district court of jurisdiction over the case. And our presenter is Stephen Ware. He is the Frank Edwards Tyler Distinguished Professor of Law at the University of Kansas, where he teaches arbitration and alternative dispute resolution, among many other subjects. So Professor, the floor is yours.


Stephen J. Ware:  Thanks, Elizabeth. Thanks to The Federalist Society. I’m on spring break in Florida, so I hope folks will excuse my lack of jacket and tie. But I’m always happy to talk about arbitration law, which is my specialty. Federal Arbitration Act generally enforces arbitration agreements, and it does so, not with the usual remedy for breach of contract, which is money damages, but with a stronger remedy, specific performance. Federal Arbitration Act does this by instructing district courts to grant motions to stay litigation and compel arbitration of claims the parties agreed to arbitrate.


In further support of arbitration is the Federal Arbitration Act’s appeals structure. Federal Arbitration Act’s Section 16 makes immediately appealable district court orders denying motions to compel arbitration but not orders granting them. So if the district court rules for arbitration, the parties go to arbitration instead of appealing the district court’s pro-arbitration ruling to the circuit court. But if the district court rules against arbitration, then the party seeking arbitration is entitled to an interlocutory appeal to ask the circuit court to reverse the district court's anti-arbitration ruling and, thus, to compel arbitration. So the party seeking arbitration can get the dispute to arbitration by winning at either the district or appellate court, but the party opposing arbitration has to win at both courts, if the pro-arbitration side appeals. That’s all established by statute.


While the question in this Supreme Court case, Coinbase, Inc. v. Bielski, is narrow, it’s a question about staying the district court, pending appeal. If the district court rules against arbitration and the party seeking arbitration exercises its right to an interlocutory appeal, may the district court proceed on other issues in the case while the appeal about arbitration is pending, or is the district court automatically stayed with respect to the entire case, pending appeal? That’s the question the Supreme Court has set for argument on March 21. In this case, Coinbase v. Bielski, the plaintiff, Bielski, sued Coinbase for violations of the Electronic Funds Transfer Act. Coinbase then moved to stay litigation and compel arbitration, pursuant to the Arbitration Clause in the Coinbase user agreement that Bielski had signed. However, the district court denied Coinbase’s motion to compel arbitration because the district court held that the arbitration agreement was unconscionable.


So Coinbase filed an interlocutory appeal to the Ninth Circuit and requested a stay of the district court proceedings, pending that appeal. Coinbase also asked the district court to stay its proceedings, pending resolution of the appeal about arbitration. The district court denied Coinbase’s motion for a stay, pending appeal, because it said Bielski would suffer if forced to wait for a remedy on Bielski’s underlying suit about the Funds Transfer Act. The Ninth Circuit also refused Coinbase’s request for a stay of the district court, pending appeal, so Coinbase petitioned the Supreme Court. Coinbase asked the Supreme Court to decide whether a non-frivolous appeal of a denial of the motion to compel arbitration ousts a district court's jurisdiction to proceed with litigation, pending the appeal. Or as Bielski puts it, the question before the Supreme Court is whether an interlocutory appeal of a denial of a motion to compel arbitration requires an automatic stay of all district court proceedings, pending appeal.


The Federal Circuit courts have split on this question with the Second and Fifth Circuits joining the Ninth. These three circuits hold that an appeal of the district court's refusal to compel arbitration does not automatically stay the district court, pending appeal. But most courts hold to the contrary. The Third, Fourth, Seventh, Tenth, Eleventh, and D.C. circuits hold that appeal of a district court's refusal to compel arbitration does divest the district court of jurisdiction, pending appeal.


So when we look at the two sides of this circuit split, we can see it arising in the 1990s in a pretty familiar way, which is the progressive or anti-arbitration position is first taken by the Ninth Circuit, out on the left coast, while the conservative or pro-arbitration position is first taken by the Seventh Circuit in an opinion by Judge Frank Easterbrook, who, by the way, was my civil procedure professor at the University of Chicago. Part of the context for this circuit split is the general rule in federal court that the filing of a notice of appeal “divests the district court of its control over those aspects of the case involved in the appeal.” That’s a quote from the Supreme Court’s 1982 decision in Griggs v. Provident, so in that Griggs framework, the question in this Coinbase case is whether the appeal of a denied motion to compel arbitration divests the district court of the non-arbitration merits of the case — here, about the Funds Transfer Act — while the circuit court is deciding whether to affirm or reverse the district court’s refusal to compel arbitration.


So in one sense, the alleged violation of the Funds Transfer Act is not involved in the appeal because the appeal is just about whether to enforce the arbitration agreement. But in another sense, any litigation of the Funds Transfer Act claim, or any other claim, even just taking a deposition or other discovery, would be the district court exercising control over aspects of the case involved in the appeal because everything in litigation is involved in the appeal of whether the case will be resolved by litigation or arbitration. For example, maybe arbitration will have narrower discovery than litigation would, so an arbitrator would not order a deposition that a district court would order. The Ninth Circuit takes the first of those views. It said not everything involved in the case is involved in the appeal of refusing to compel arbitration and the contrary rule that defendants prefer “would allow a defendant to stall a trial by bringing a frivolous motion to compel arbitration.” Ninth Circuit says the Federal Arbitration Act allows the district court to exercise its discretion whether to stay its proceedings, pending appeal of the arbitration issue.


In contrast, most circuit courts, as I mentioned, hold that a non-frivolous appeal from a district court order denying arbitration automatically divests the district court of jurisdiction of the case, pending appeal. In other words, the interlocutory appeal stays litigation in the district court until the Court of Appeals resolves the appeal about arbitration. And that view traces back, at least, to Judge Easterbrook’s 1997 opinion, which says that denying a stay would largely defeat the point of the appeal, which is to decide whether the case will be litigated or arbitrated, before incurring the cost of actually starting litigation or arbitration. As the Eleventh Circuit said, in support of this view, whether the case will be litigated or arbitrated is a threshold issue that should be resolved first. Or as the Tenth Circuit said, also in support of this Easterbrook view, failing to grant a stay, pending appeal, would deny the defendant’s, quote, “legal entitlement to avoidance of litigation,” if it turns out that the defendant had the entitlement to arbitrate, which we won’t know until the circuit court rules.


So we can see the issue in this Coinbase case as a policy question of which kind of errors should courts make. Should courts make plaintiffs wait to litigate until after an appeal that affirms the district court’s ruling that the plaintiff, in fact, had a right to litigation rather than arbitrate, or should courts make defendants litigate until an appeal reverses the district court's erroneous ruling that the plaintiff had the right to litigate instead of arbitrate? But turning to statutory text, Bielski’s brief in the Supreme Court points out that if Congress, enacting the Federal Arbitration Act’s appeals rules, had wanted to require a stay, pending appeal, it could have done so. Congress knew how to do so because Federal Arbitration Act, Section 3, expressly requires stays of litigation, pending arbitration, so “Congress’s silence regarding stays in Section 16 about appeals is deafening,” Bielski says. Congress could have expressly required stays, and it didn’t.


In contrast, Coinbase’s brief says in enacting the Federal Arbitration Act, Section 16’s appeals rules, Congress legislated against the backdrop of the divestiture rule. That’s the Griggs Supreme Court case I mentioned earlier, which provides that district courts are divested of authority to proceed with matters implicated by the appeal. Congress’s creation of an immediate arbitrability appeal right ensured that district courts would be divested of authority to proceed to the merits while the appeal proceeds is Coinbase’s argument, and Coinbase quotes Judge Easterbrook’s opinion for the Seventh Circuit, saying, “The divestiture rule is fundamental to a hierarchical judiciary. It fosters judicial economy and guards against confusion and inefficiency that would result if two courts purported to exercise jurisdiction over related matters simultaneously.”


So that’s my summary of the circuit split and the competing arguments. And I look forward to comments and questions, and I welcome anyone who wants to email me about this or any other arbitration and the topic. Thank you.


Elizabeth Slattery:  So as I’ve done with the previous cases, who are the justices we should keep an eye on during the oral argument in this case?


Stephen J. Ware:  It’s a really good question for this case because arbitration cases in the Supreme Court have a split with some of them falling along the predictable ideological lines, particularly cases that are very much about the Federal Arbitration Act — are you going to interpret it broadly to enforce lots of adhesive arbitration agreements against consumers and employees — versus other arbitration cases don’t split the Court along ideological lines, where the Court sees other values or other aspects of the statute involved.


So I honestly don’t know whether the Court will see this appellate issue as more of that sort of, is this really just about enforcing adhesive arbitration agreements. Or will they see it in the way that produces more interesting, less ideological predictable splits among the justices?


Elizabeth Slattery:  Well, thank you for that summary. We’re in the home stretch, so I want to encourage the audience -- sorry. My camera just went out for a second, there. I want to encourage audience members to submit questions through the Q&A feature.


I have three cases that Nate has asked me to quickly hit on because we do want to get to Q&A. So first up is Arizona v. Navajo Nation and Department of Interior v. Navajo Nation. The Court will hear a consolidated one hour of oral argument. Although, will it be one hour? We’ll see, given the track record from arguments earlier this term. They’ve gone on at length, in some cases. But that’ll be on Monday of next week.


And this is a dispute over water rights to the lower Colorado River, specifically the federal government's failure to assert water rights to the Colorado River on behalf of the Navajo Nation, whose reservation is almost entirely within the drainage basin of the Colorado River. So Arizona points out that the issue here is foreclosed by a 1963 Supreme Court decision that concerned the apportionment of the Colorado River system. The United States made claims then on behalf of the Navajos and other tribes within the river system but not for the Colorado River -- the lower Colorado River mainstream that’s at issue here. The Navajo Nation argues that an 1868 treaty establishing its reservation included a guarantee of access to adequate water for agriculture and raising livestock.


And the federal government argues that the Navajos have failed to allege violation of any specific trust duty that the government, the U.S. government, accepted, and that it must point to a substantive source of law. So like many other water cases, the water wars at the Supreme Court, this suit was filed in 2003, and it’s still going strong. So we’ll see what the Court has to say about the lower Colorado River.


The next up is United States v. Hansen. The Court will hear argument on Monday, March 27th, in this case. And this is whether a federal law that makes it a crime punishable by up to ten years in prison to encourage or cause unauthorized immigrants to enter or reside in the United States violates the First Amendment. So this is the case of a fraudster who claimed he would help undocumented immigrants become U.S. citizens through an adult adoption scheme and all for the low fee of just $10,000, in some cases. Mr. Hansen was convicted of encouraging and inducing illegal immigration for private financial gain, in addition to several other things. He’s challenging his conviction, arguing that the statute is overbroad and prohibits a substantial amount of protected speech. He says, for example, it would criminalize a grandmother saying she doesn’t want her undocumented grandchild to leave the United States, or it would criminalize a doctor advising a patient with an expiring student visa to stay for necessary medical treatment.


The Government says, look, this only reaches solicitation or facilitation of illegal activity, so the parade of horribles that Mr. Hansen detailed in his brief are not applicable. There were a variety of amicus briefs. Professor Eugene Volokh filed an interesting one that makes the point that solicitation of conduct that is civilly punishable, like remaining in the country illegally cannot be made criminal, and he underscored the importance of clear boundaries. And the punishment for soliciting civilly actual conduct should be civil punishment.


And then, finally, just in time for Tax Day, the Court will hear Polselli v. IRS at the end of March. And in this case, the IRS attempted to go on a fishing expedition after a man failed to pay his taxes. An IRS agent sought information about bank accounts belonging to the man’s wife and law firms that represented him without giving any notice. The banks notified the wife and law firms, and they all sought to quash the summons from the IRS for being overbroad and seeking irrelevant information. So the IRS says it doesn’t have to provide notice when a delinquent taxpayer has a legal interest in the summons’ records, and the summons would be in aid of collecting the taxpayer’s liability.


Basically, the IRS says it’s empowered to poke around and see what it can find. But notably, the IRS has not shown that the defendant has a legal interest in any of these bank accounts, so it will be interesting to see what happens in that case. So while we’re waiting for questions to come in, I thought I’d first start with our panelists to see if any of them would like to comment on any of the other panelists’ presentations, and -- particularly, are there any sleeper issues in these cases that we did not get to? So don’t all jump in at once.


Robert J. Rando: I have a question for Bob regarding the venue issue. I’m not a -- I don’t practice criminal law -- civil litigator. Is it -- in civil litigation, it’s akin to a jurisdictional issue. Is that at play here in the criminal context, or no?


Robert K. McBride:  I think it is similar to a jurisdictional issue, and the case law essentially says, look, even if the government intentionally tries somebody in a wrong venue, the defendant should be not found guilty. But the remedy is for the government to try you in the right place because it distinguishes the taint and allows the government to proceed with the case.


Robert J. Rando:  Okay. Thanks.


Robert K. McBride:  Sure.


Elizabeth Slattery:  All right. We have one question for Professor Ware on arbitration. The question is, “What if some claims are not arbitrable” — that’s a hard word to say — “and others are held to be? Does the Court see that differently?”


Stephen J. Ware:  Yeah, it’s a really good question because district courts often find some of the claims covered by an arbitration agreement and others of the claims not covered by the arbitration agreement, and that’s what we mean, probably, by the word, “arbitrable.” So the defendant, let’s say, in that example, wanting to appeal an order by the district court, saying nearly some, not all of the claims, need to go to arbitration, that defendant is putting the circuit courts in exactly the position of this Supreme Court split, which is are we going to stay the district court’s proceedings on the claims that the district court has had not arbitrable, or are we going to allow the district court to proceed on those claims while the appellate court is deciding if the district court got it right or wrong in denying arbitration of those claims? So I think it’s a good question in highlighting that this appellate issue arises, even if it’s just some of the claims are at issue, rather than all of the claims being at issue.


Elizabeth Slattery:  All right. Again, I want to encourage the audience to submit questions through the Q&A feature. But back to the panelists, were there any others who had comments on the presentations that we’ve heard?


Robert K. McBride:  Elizabeth, could I ask you about Hansen?  So in listening to your description, it seems that the adoption scheme was very similar to a sham marriage scheme, where somebody is allowed to stay in the country who would not otherwise have status to do so. So in light of that, I’m curious about the amici brief, which says -- the amicus brief that says, look, it’s not a crime to be in the United States. And in support of the argument — this is, I guess, a First Amendment violation here — it is, in fact, a crime to be in the United States without legal status. So what am I missing? How does the amicus brief tie it in, again?


Elizabeth Slattery:  Well, that’s a great question. Perhaps we should call upon Professor Volokh to unpack that in the future. I just -- I have to be honest. I just skimmed his amicus brief. I saw his name and thought, “Oh, First Amendment. I got to take a look at what he says.” But that is a great question how he threads that needle.


But anyway, other comments. One that I have for the panel is if anyone has thoughts on -- there’re a lot of criminal law cases coming up, and our -- the newest member of the Court, Justice Jackson, obviously has a background of being at the Sentencing Commission, so do we think the March sitting is an opportunity for her to shine? Anyone? Everyone?


Robert K. McBride:  Oh, I’m interested in her perspective because of her background in the Sentencing Commission. The Sentencing Commission, I know a judge that was on it for quite some time, and it’s -- it grapples with a lot of issues through not only the substantive areas and the actual guidelines but also through its commentary. I don’t know that any of the cases here implicate the guidelines, but she’s going to have a tremendous volume of experience, both from interpreting and regulating criminal law and seeing the results from a practical point of view. So I’m very interested in -- that’s why I mentioned her. I’m very interested in how she’s going to come down on some of these issues.


Elizabeth Slattery:  And I see I have a message from Robert. He’s offered to offer some thoughts on the IP cases, specifically Justices Thomas and Gorsuch.


Robert J. Rando:  Yeah, so I wanted to just add that these intellectual property cases do not typically cut right and left, so you have a mix. And also, some of the cases that come out of the Federal Circuit actually results in unanimity on the Court — and where do you find that? — in reversing the Federal Circuit. I don’t think that’s the case in Amgen because I think that will come down to more of their perspective and on the strength of the patent law system, in general. And Justice Gorsuch’s decisions that he’s authored indicate that he believes in a strong patent -- protection for patent owners and inventors and innovators, and Justice Thomas, to a certain degree, less so. I think that’s a carryover from older decisions in patent cases. And Justice Roberts tends to straddle, as he tends to do, but I think, by and large, he also sees more value in a stronger pro-patentee/pro-patent system.


Elizabeth Slattery:  I see we have a question about the IRS case. I have to admit that I am not an expert on that particular case, and I was just basically reading a summary of it. So I’m not actually sure about the origin of the case or what status -- what stage of the IRS proceeding it was in. But I do know it was a back taxes of $2 million so not an insignificant amount of money that the IRS was trying to get.


All right. Well, if there are no more questions and the panelists don’t have any other thoughts on the cases that we’ve discussed today, I see no reason to go for an extra six minutes. We’ll give everyone that time back in their day. So I want to thank all of the presenters today, and thanks to The Federalist Society for organizing this, and thanks to our audience for joining us.


Nate Kaczmarek:  Yes, and I could just -- if I could just say at the end, on behalf of The Federalist Society, express our gratitude to both Elizabeth and the entire panel. We definitely covered a lot of ground and did so thoroughly. It was an excellent preview. We look forward to having you all again with us soon. We welcome audience feedback by email at [email protected]. And with that, we are adjourned.


Participant:  Great. Thank you, everyone.