1st Circuit Notes Split Re Subjecting Ex Post Facto Clause Claims to Plain Error Review

Per U.S. v. Munoz-Franco , 487 F.3d 25 (1st Cir. (P.R.) May 22, 2007) (04-1532 - 04-1535):

The Ex Post Facto Clause " 'forbids the application of any law or rule that increases punishment for pre-existing conduct.' " United States v. Regan, 989 F.2d 44, 48 (1st Cir.1993) (quoting United States v. Havener, 905 F.2d 3, 5 (1st Cir.1990)). For "continuing offenses" such as the bank fraud and conspiracy charges at issue here, however, the critical question is when the conduct ended. FN32 As we have explained, "[w]here a 'continuing offense' straddles the old and new law ... applying the new is recognized as constitutionally sound." Id. In other words, "[a] conviction for a continuing offense straddling enactment of a statute will not run afoul of the Ex Post Facto clause unless it was possible for the jury, following the court's instructions, to convict ' exclusively' on pre-enactment conduct." United States v. Monaco, 194 F.3d 381, 386 (2d Cir.1999) (citation omitted). As suggested, "the question of whether the violation extended beyond the effective date of [the statute is] one that ha[s] to be resolved by the jury." United States v. Tykarsky, 446 F.3d 458, 480 (3d Cir.2006).

FN32. We have held that conspiracy is "often a continuing offense," United States v. Welch, 15 F.3d 1202, 1207 (1st Cir.1993), and, in the context of determining venue, we have acknowledged that "[b]ank fraud is also a continuing offense," United States v. Scott, 270 F.3d 30, 36 (1st Cir.2001). The other circuits that have considered the issue generally have agreed that both conspiracy and bank fraud are continuing offenses. See, e.g., United States v. Lennon, 372 F.3d 535, 541 n. 8 (3d Cir.2004)(conspiracy); United States v. Nash, 115 F.3d 1431, 1440-41 (9th Cir.1997)(bank fraud); United States v. Duncan, 42 F.3d 97, 104 (2d Cir.1994)(bank fraud and conspiracy). Under the circumstances present here, there is no question that the conspiracy and bank fraud charges reflect continuing offenses.

. . .

An unpreserved ex post facto claim is subject to plain error review. See, e.g., Tykarsky, 446 F.3d at 479; United States v. Julian, 427 F.3d 471, 481 (7th Cir.2005). Under such review, an appellant must show: "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001).

In its brief, the government agrees that the district court should have issued an instruction that the jury must find that the conduct continued past the enactment date of the bank fraud statute. Its position is consistent with recent circuit court decisions holding that the failure to issue such an instruction satisfies the first two prongs of the plain error analysis by establishing that an error occurred that was obvious. See Tykarsky, 446 F.3d at 479-80 ("[B]ecause the communications spanned two different versions of the statute with different minimum penalties, the question of whether the violation extended beyond the effective date of the amended version was one that had to be resolved by the jury.... We also conclude that the error in not requiring a special jury finding was 'plain' in that it was an obvious mistake in retrospect."); Julian, 427 F.3d at 482 ("This was a plain error in the sense of being an obvious mistake in retrospect."). Thus, our task is to determine whether this error affected appellants' substantial rights, and, if so, whether the fairness, integrity or public reputation of the judicial proceedings was impaired.

The other circuits have taken varying approaches to applying these prongs of the plain error test in assessing a claimed ex post facto violation. In United States v. Calabrese, 825 F.2d 1342, 1346 (9th Cir.1987), the Ninth Circuit held that the "jury's verdict represents a finding that a crime was committed as alleged in the indictment." Because the indictment alleged an offense that continued past the date of enactment, the court concluded that there was no plain error in the court's failure to issue an instruction. Id.

The Fifth Circuit has examined the record to see whether the bulk of the evidence occurred after the enactment of the statute. In United States v. Todd, 735 F.2d 146 (5th Cir.1984), that court held that where "[m]ost of the evidence focused on events that occurred within the effective date of the amendments," and "the record ... clearly establishes violations of the amended act by the appellants during the relevant time period," the failure to give the jury instruction did not "result in the likelihood of a grave miscarriage of justice or circumstances that seriously affect the fairness, integrity, or public reputation of judicial proceedings." Id. at 150.

The Second and Third Circuits have adopted an approach in which prejudice is established if there was a reasonable possibility that the jury convicted appellant on the basis of pre-enactment conduct. In Tykarsky, for example, the Third Circuit explained that a district court's failure to issue an instruction means that a defendant "has been prejudiced if there is a reasonable possibility that a jury, properly instructed on this point, might have found [the defendant] guilty based exclusively on acts that occurred before the increased penalty took effect." 446 F.3d at 480. The court noted that "[t]he most that can be said here is that it is improbable, rather than impossible, as a factual matter, that the jury convicted Tykarsky exclusively on the basis of" pre-enactment conduct, which was "insufficient to persuade us that [the defendant's] substantial rights were not affected." Id. at 482. FN34 The court concluded that this prejudice "tainted the integrity and reputation of the judicial process" and consequently vacated the defendant's sentence and remanded to the district court. Id. at 483.

FN34. The Third Circuit's holding is similar to that of the Second Circuit. See United States v. Harris, 79 F.3d 223, 229 (2d Cir.1996) "Because the [ ] statute is a continuing crime statute, we must determine whether it was possible for the jury, following the district court's instructions, to convict [the defendant] exclusively on pre-[ ]enactment conduct. After examining the jury instructions, we think that such a scenario was impossible."). Appellants also refer to United States v. Torres, 901 F.2d 205 (2d Cir.1990). However, that case is distinguishable because appellants did raise a general ex post facto challenge before the district court. Id. at 228. On appeal, the Second Circuit discussed plain error review but did not explicitly apply such review. Id. It concluded only that "it is inappropriate to impose a mandatory life sentence upon [the defendants] where there was an ex post facto violation in the instruction actually given, and the defendants brought the general ex post facto question to the attention of the district court." Id. at 229.

Finally, in Julian, the Seventh Circuit considered an alleged conspiracy and found, on the third prong of the plain error analysis, that a court's failure to issue an ex post facto instruction "affected [the defendant's] substantial rights in the sense that it exposed him to a longer sentence." 427 F.3d at 482. It then focused on the fourth prong, explaining that "[i]f a jury, properly instructed on this point, might have found that the conspiracy had come to an end before the increased penalty took effect or that [defendant] had withdrawn from the conspiracy before that date, then the error is one that implicates the fairness, integrity, or public reputation of the judicial process." Id. It concluded that a reasonable jury could not have found that the conspiracy at issue ended prior to the enactment date of the statute. Id. at 483.

Ultimately, we need not settle on a rule here. The plain error analysis used by the Second and Third Circuits is most favorable to defendants because it requires a finding of prejudice if there was a "reasonable possibility" that the jury convicted appellants solely on the basis of pre-enactment conduct. Here, even under that test, appellants cannot demonstrate an ex post facto violation because no reasonable jury would have convicted appellants based exclusively on conduct that occurred prior to the enactment date. Moreover, even if we were to apply the "miscarriage of justice" approach of the Seventh Circuit, we would conclude there was no miscarriage of justice here because the government presented so much evidence of the involvement of the defendants in the ongoing conspiracy and bank fraud following the enactment of the bank fraud statute in 1984.