Glen Marcus was convicted of engaging in unlawful forced labor and sex trafficking between January 1999 and October 2001. The problem is the statute making forced labor and sex trafficking illegal was not enacted until 2000. Therefore much of the evidence at trial concerned acts that were legal at the time they were committed.

Of course someone cannot be convicted for committing a legal act. The Constitution and basic rules of fairness prohibit ex post facto laws which penalize events that happened prior to the passage of a statute making an event illegal. For some reason neither defense counsel nor the judge realized that some of the acts were performed prior to the effective date of the statute. Therefore no instruction was given to the jury informing them of the effective date of the statute.

Marcus’ appellate attorney caught the error and raised the issue before the Second Circuit Court of Appeals. The problem is that generally you cannot raise an issue that was not raised in the trial court. An exception occurs however for “plain error.” The issue raised before the Second Circuit and before the Supreme Court is how to define “plain error.”

The Second Circuit ruled “if it was possible for the jury—wh[ich] had not been given instructions regarding the date of enactment—to convict exclusively on [the basis of] pre-enactment conduct, then the conviction constitutes a violation” of the Ex Post Facto Clause and must be reversed.

The Supreme Court, while not ruling on the issue of whether “plain error” occurred, returned the case to the Second Circuit finding that its definition of “plain error” was wrong. Citing Puckett v. United States the Supreme Court ruled that a five part test exists to find “plain error:”

(1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

The Second Circuit’s “possibility test” fails to meet the third and fourth element. A mere possibility neither affects the outcome of the trial or the fairness of the trial. therefore the Supreme Court returned the case to the Second Circuit for further consideration.

Justice Stevens dissented. He pointed out that Rule 52(b) of the Federal Rules of Criminal Procedure which mandates the use of the “plain error” test merely states:

A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.

Therefore Justice Stevens believes that the only issue should be whether the use of evidence of events that occurred before the law was enacted and the failure to inform the jury of such violated a substantial right of Glenn Markus and he would reverse the conviction. It makes sense–doesn’t it.