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Tiny risk is not plain error

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When the case of United States v. Marcus was before the Second Circuit, Judge Sotomayor wrote in a concurring opinion:

Judge Wesley and I concur with the per curiam opinion because its conclusions are compelled by the current law of this circuit. We write separately because we believe this Court's precedent with regard to plain-error review of ex post facto violations does not fully align with the principles inhering in the Supreme Court's recent applications of plain-error review.

Right, said the Supreme Court today, 7-1 (Stevens dissenting, Sotomayor recused).

"Marcus was convicted of engaging in forced labor and sex trafficking between January 1999 and October 2001. On appeal, he pointed out for the first time that the federal statutes he violated did not become law until October 2000." (Emphasis added.)

Not exactly a great moment in lawyering on the part of defense counsel. Of course, if counsel had pointed this out before trial, it likely would have been easy for the prosecution to get a conviction anyway by limiting its evidence to post-10/00 acts. So, should defendant get the windfall of a reversal for a problem that is as much his fault as the prosecution's?

The Second Circuit's "any possibility, no matter how unlikely" standard, however, would require finding a "plain error" in a case where the evidence supporting a conviction consisted of, say, a few days of preenactment conduct along with several continuous years of identical postenactment conduct. Given the tiny risk that the jury would have based its conviction upon those few preenactment days alone, a refusal to recognize such an error as a "plain error" (and to set aside the verdict) is most unlikely to cast serious doubt on the "fairness," "integrity," or "public reputation" of the judicial system.

The disposition is another do-over.

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