For the Defense - Vol. 8, Issue 3 - 48

SCOTUS Summaries from the
October 2022 Term
1. Counterman v. Colorado (6/27/23) (First Amendment, True
Threats): The issue in this case, on certiorari from the Colorado
state courts, was " whether the First Amendment still requires proof
that the defendant had some subjective understanding of the
threatening nature of his statements. " The petitioner repeatedly sent
unwanted Facebook communications to a musician. The messages
ranged from salutations ( " Good morning sweetheart. " ) to the
frightening ( " You're not being good for human relations. Die. " ). "
State authorities charged him with stalking and a jury convicted him.
Petitioner argued that the First Amendment protected his conduct
because the communications were not " true threats. " The Supreme
Court reversed the convictions, holding that the objective standard
utilized at trial violated the petitioner's First Amendment rights and
that a subjective intent of recklessness was required. Going forward,
prosecutors must prove " that the defendant consciously disregarded
a substantial risk that his communications would be viewed as
threatening. "
2. Samia v. United States (6/23/23) (Confrontation Clause, Bruton):
The Court revisited Bruton v. United States1
, which it described as a
" narrow exception " to the Confrontation Clause. The Court upheld
the use of a non-testifying codefendant's statement that was altered
to refer to the petitioner as the " other person. " The Court ruled
48 For The Defense l Vol. 8, Issue 3
In Percoco, the defendant took an eight-month break from his role
as Executive Deputy Secretary to former New York Governor Andrew
Cuomo. During that hiatus, he urged New York officials to remove
that the alterations, in conjunction with a limiting instruction, was
sufficient to satisfy the Confrontation Clause even though additional
trial evidence made clear that the petitioner was the " other person. "
3. Percoco v. United States & Ciminelli v. United States (5/11/23)
(Wire Fraud, Statutory Interpretation): Though separate opinions,
Percoco and Ciminelli both involved questions of what non-tangible
property rights could form the basis of a wire fraud conviction
under 18 U.S.C. § 1343. Section 1343 prohibits using interstate wires
to " obtain[] money or property by means of false or fraudulent
pretenses, representations, or promises. "
In Ciminelli, the defendant paid a lobbyist six figures to funnel
government jobs to his company. He was convicted of wire fraud
based on the Second Circuit's " 'right to control theory' under
which the Government can establish wire fraud by showing that
the defendant schemed to deprive a victim of potentially valuable
economic information necessary to make discretionary economic
decisions. "

For the Defense - Vol. 8, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 3

Contents
For the Defense - Vol. 8, Issue 3 - 1
For the Defense - Vol. 8, Issue 3 - 2
For the Defense - Vol. 8, Issue 3 - Contents
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