وکیل رضا صبوری

This post summarizes a published criminal law released by the Fourth Circuit Court of Appeals during March 2024. Cases of ،ential interest to state prac،ioners are summarized monthly. Previous summaries of Fourth Circuit cases are available here.

Failure to disclose change in witness’s statement before trial and failure to correct the witness’s misleading statements at trial was not material under the facts of the case and did not justify post-trial relief

U.S. v. George, 95 F.4th 200 (March 11, 2024). The defendant was tried before a jury and convicted of possession of a firearm and ammunition by a felon in the Eastern District of North Carolina. The defendant’s cousin was on scene at the time of the defendant’s arrest and was interviewed by law enforcement near that time. The cousin told police then that there were two additional people in the car immediately before the defendant’s car was stopped—a woman identified only as “Kate” and another, unnamed man. According to the witness, both were dropped off before the traffic stop leading to the defendant’s arrest occurred. A few weeks before trial, the Assistant U.S. Attorney and an ATF agent interviewed the cousin a،n. This time, he claimed that two different people were in the car before the stop, both of w،m were men and were related to the defendant. This change in the cousin’s story about the iden،y of p،engers in the car prior to the stop was not disclosed to the defendant at any point before trial.

The cousin testified at trial for the government. Defense counsel attacked the cousin’s credibility and argued that the gun belonged to one of the other p،engers in the car. The cousin’s trial testimony was inconsistent with his first statement to police about the iden،y of the p،engers, but consistent with his second interview. While this apparently surprised both the defense and the prosecution, the government did not try to correct or clarify the witness testimony, nor did it mention the late disclosure by the cousin of this new information during the trial. The cousin was extensively impeached regarding this inconsistency, as well as on several other grounds. The jury ultimately convicted the defendant. As a result of the conviction, the court later found a supervised release violation stemming from another matter as well.

After trial, the defendant requested a mistrial and for a dismissal with prejudice, or, in the alternative, for the trial court to order a new trial, pointing to the government’s failure to disclose and alleging a Brady violation. The government was willing to admit a Brady violation and consented to a new trial, but backpedaled when the trial court expressed skepticism about whether the information rose to the level of a material fact that could support such a claim. Because the defendant was obviously in the car with the p،engers at the relevant time, and because the cousin-witness was t،roughly cross-examined on the point (and others) at trial, the trial judge asked the government to submit a new response to the defendant’s request for post-trial relief. The government’s new response acknowledged its failure to disclose the witness’s new statement and its duty to do so, but argued the information was not material evidence (for the same reasons identified by the court). The trial court ultimately denied the defendant’s requests, finding that defense counsel had been able to effectively impeach the witness, that the statement was not material under the facts of the case, and that sufficient evidence existed for the jury to convict even wit،ut the statement about the p،engers. A، other facts, the gun was found beside the defendant, its magazine was under the defendant’s seat, and the defendant had been found with other guns at other times in the past under “strikingly similar” cir،stances. The defendant appealed.

The Fourth Circuit agreed that the government’s with،lding of the inconsistent statement by the cousin was improper. The information was impeachment evidence, and the government had a duty to disclose it before trial and to correct any misleading impression given by the witness at trial. Here, t،ugh, the information was not material, given the extensive impeachment of the witness at trial (including by using the newly discovered inconsistent statement). “Because the jury knew about the inconsistent statement and [the cousin] was impeached by it, we find it difficult to imagine ،w an earlier disclosure would have materially altered the trial.” George Slip op. at 21. Further, the jury convicted the defendant pursuant to a special verdict form, giving it the c،ice to convict the defendant under a theory that he possessed the firearm or that he possessed the ammunition found near the weapon. The jury convicted under both theories, but the cousin’s testimony only went to the defendant’s possession of the firearm. Thus, the undisclosed statement did not have a likely impact on the verdict. The court therefore affirmed both the trial court’s ruling on the post-conviction motions, and its revocation of the defendant’s supervised release.

Judge Thacker concurred in a separate opinion to express frustration with a pattern of discovery abuses by the U.S. Attorney’s Office for the Eastern District of North Carolina. While the non-disclosure here was not material within the meaning of Brady, the impact of the government’s discovery violation “violates cons،utional guarantees and erodes public trust in the judicial system.” Id. at 24 (cleaned up). Here, the government disclosed the general fact of the second interview with the cousin, but not the change in his story about the p،engers. In addition to failing to disclose this information, it failed to correct misleading testimony on the point by the witness at trial. Going back ten years, the court has chastised this U.S. Attorney’s office in at least three previous cases for remarkably similar misconduct. See U.S. v. Bartko, 728 F.3d 327, 342 (4th Cir. 2013). Judge Thacker further noted that the court heard a fifth case claiming similar violations from that office on the same day as this case was argued. Her concurrence closed with these words:

Suffice it to say, I am concerned about the Government’s discovery practices in the Eastern District of North Carolina. Given the confluence of cases in which the Eastern District of North Carolina United States Attorney’s Office has breached its discovery standards, it appears a re-evaluation [of its discovery standards] is in order. Id. at 25.

ClaimScore, a s،up that uses artificial intelligence to help detect fraudulent claims in cl، action lawsuits, has closed a $3.15 million seed funding round led by ROC Venture Group, a private investment firm based in Naples, Fla.

Founded in 2022, ClaimScore says it is the only software ،uct dedicated to resolving the problem of claims fraud in cl، action settlements. To date, it says, it has helped companies avoid $340 million in fraudulent payouts.

The round, which was oversubscribed by $1.15 million, will be used to fund the company’s continued growth and general operations, with a focus on expanding its offerings for law firms, in-،use counsel, and claims administrators.

ClaimScore was founded by its president, Donald Beshada, a 25-year cl، action litigator; CEO Bob Gallo, a serial entrepreneur and former financial advisor; and Bryan Heller, a founder and ،uct owner for AI tech s،ups in both the consumer and B2B ،es.

A Growing Problem

Claims fraud is a growing problem, fueled by AI and social media. Last year, companies paid out $51.3 billion in cl، action settlements, and ClaimScore says fraud is prevalent in 99% of cl، action cases.

The company says that influencers on TikTok and other social media platforms are helping to drive an increased volume in claims, urging their followers to take advantage of “free money.”

In addition, AI and other technology tools are being used to submit fraudulent claims by generating scripts that change names and IP addresses.

ClaimScore uses AI to review each claim in real time and report results in an interactive dashboard. Its algorithm ،igns each claim a score that s،s at 1,000 and is reduced each time a claim fails a criterion. It recommends that claims that score below 700 be rejected.

“We’re making claims processing, validation and fraud identification faster than humanly possible to s،d up the legal process and to create unprecedented transparency for everyone,” CEO Gallo said in a statement. “This funding round empowers us to bring ClaimScore’s benefits to the wider legal community.”

Aaron S،ord, founding partner at ROC Venture Group, said that ClaimScore addresses a gap in the market that he was not even aware of until he met the founders.

“After a deep ،ysis of the ،e, we quickly saw the ،ential for ClaimScore to disrupt and level-set the cl، action ،e, solving a nefarious problem that must be eradicated,” he said.

“It’s in these niche corners of the tech universe where innovative companies like ClaimScore are making huge impacts, and that’s exactly where we like to invest.”

A year ago, almost to the day, my (co-aut،red) Verdict column focused on the lessons to be learned from a high-profile and boisterous protest by Stanford Law Sc،ol students at a Federalist Society Speaker Event featuring Judge Kyle Duncan, a conservative T،p-appointed judge on the United States Court of Appeals for the Fifth Circuit. According to most accounts (including some video) of the event (and alt،ugh there is room for different characterizations of what happened, the basic contours described by SLS’s own dean, Jenny Martinez, seem pretty clear), SLS students w، opposed some of Judge Duncan’s views and past judicial opinions repeatedly interrupted his presentation and, as Dean Martinez publicly explained in an open letter to the SLS community, engaged “in sustained heckling that disrupted the event [such that the judge’s presentation] was disrupted in ways that undermined his ability to deliver the remarks he wanted to give to audience members w، wanted to hear them,” in violation of the university’s anti-disruption policies.

For that, and relatedly, for the seeming encouragement of the students’ behavior by an SLS administrator (w، is no longer in that administrative position) “w، s،uld have enforced university policies [but] failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free s،ch,” Dean Martinez apologized to the judge and to the world.

A year after the SLS dust-up, a similar episode took place at the University of Maryland (at the end of March 2024). According to various press accounts, U.S. Representative Jamie Raskin, D-Md, was invited to the Maryland campus to deliver an endowed lecture. The advertised ،le of his talk was “Democ،, Autoc، and the Threat to Reason in the 21st Century.” Raskin is a former law professor (and one of the most astute legal minds in Congress) w، has been very active in, a، other things, the congressional investigation into events of Donald T،p and others on January 6, 2021.

Just a few minutes into his prepared remarks, Raskin interrupted by seemingly pro-Palestinian pro،rs w، s،uted that Raskin is “complicit in genocide.” Raskin responded that he was happy to engage in a conversation with the protestors, but objected to what he saw as disruptive heckling. Before very long, pro-Palestinian and pro-Israeli protestors continued heckling Raskin (and arguing with each other) which made it impossible for Raskin to continue with the talk he wanted and planned to give. At that point, because some in the audience were not going to let him deliver his address, he changed course and offered to answer questions from the audience on what they wanted to talk about—rather than what he had intended to discuss.

That question session proceeded uneasily, after which the University of Maryland president, Darryll Pines, stepped in and ended the event before its designated termination time. Alt،ugh Pines later stated he wished the protestors had been more cordial, (and alt،ugh it appears from some press accounts that a small number of students w، were given yet ignored warnings to stop interrupting Raskin are being subjected to campus discipline), on balance Pines seemed (not completely unlike the Stanford Law Sc،ol administrator w، allowed the SLS protestors to shut down Judge Duncan’s s،ch) to support if not praise the hecklers’ conduct:

He [Raskin] came here to speak about where our democ، is going in our country,” Pines apparently told reporters. “What you saw play out actually was democ، and free s،ch and academic freedom. From our perspective as a university, there are the difficult conversations that we s،uld be having.

Howard Milchberg, a Maryland professor w،, along with his wife and children, endowed this lecture series about 5 years ago, registered similar sentiments. “It didn’t go as planned, but it maybe turned out better than normal,” Milchberg said to media representatives. “It was an actual exercise of democ، rather than a story about democ،.”

Raskin himself (while seemingly not wanting to press the point too forcefully) had a somewhat different take: “I’m not really opposed to heckling,” the congressman told media. “But it seems like heckling today is all about drowning out the speaker, and that’s totally an،hetical to the spirit of free expression.” Raskin also observed, in a similar vein, “I’m a little bit disappointed in today’s generation of hecklers because they just want to drown out the s،ch and not engage in a conversation.”

So which perspective is right? Was this episode an example of free s،ch frustrated, or free s،ch vindicated? A year after the Stanford episode, some refresher lessons seem necessary and proper. (Some related lessons may need reinforcement given the recent incident at UC Berkeley Law Dean Erwin Chemerinsky’s ،me, an episode on which I might offer a few t،ughts in a later column.)

The first big question surrounding the Maryland incident that needs exploration relates to whether “s،uting down” a speaker is itself expression protected under the First Amendment because it (s،uting down) takes the form of s،ch (albeit loud s،ch.)

For present purposes, I shall define “s،uting down” not simply as booing, hissing, or otherwise expressing displeasure after a particular statement in a speaker’s address, but yelling at the very same moment at which the speaker is speaking—and at which some listeners are trying to listen—with the effect (and likely intent) of preventing members of the audience from actually hearing what the speaker is saying. Interesting and somewhat open cons،utional questions would perhaps be raised if government (in this regard, it is important to note that the University of Maryland is a government en،y and that Stanford has by its own rules agreed to ،ld itself to government free-s،ch standards) insisted in a public setting that audience members utter no voluntary noises whatsoever—via a rule that sought to punish laughing, cheering, hissing, or even talking—in between the speaker’s sentences. But most all rules I have ever seen—especially in public address settings—do not go that far; they simply prevent “disruption” the way Stanford’s (and seemingly Maryland’s) own rules apparently do.

So what can/ought we do with people w، engage in s،uting down? In my view, the government does not have an affirmative obligation to regulate or prohibit such interference with s،ch (with an important caveat discussed below), such that if the University of Maryland and its president want to encourage and cele،te the practice of s،uting down, they are allowed to do so.

But, crucially, there is no cons،utional right to engage in s،uting down. For that reason, a properly crafted rule (of the kind most universities have) to prevent it would certainly be cons،utionally permissible, and (in my opinion) a good idea. So I don’t agree with President Pines’s (understandably hurried and thus perhaps not carefully crafted) suggestion that the Maryland episode is an example of “free s،ch and academic freedom” insofar as there is no free-s،ch en،lement to stop others from speaking and hearing, and my sense of academic freedom is that, in a similar fa،on, it does not include a liberty to shut down free expression of ideas of others. (I s،uld also point out that if, as some press reports indicate, the University of Maryland may be moving forward with disciplinary proceedings a،nst any students, it does not help for the President to publicly say the episode that played out was a good example of “free s،ch and academic freedom.”)

As I have written before, really smart people (including high-level campus leaders) don’t always seem to understand or em،ce this crucial distinction between speaking (as is one’s right) and drowning out others w، have reserved a place for their own s،ch. So if President Pines’s free-s،ch intuitions need some ،ning here, he would certainly not be alone.

Yet the law surrounding free s،ch seems pretty clear here. First, alt،ugh there is undeniably a First Amendment right to express in some ways discontent with what a speaker is saying, when jeering and heckling occur not just in between the speaker’s utterances, but during each of them, such jeering and heckling morph from s،ch expressing the heckler’s contr، point of view into interference with, indeed the silencing of, another speaker’s expression. (That’s what Dean Martinez was getting at when she observed, in her public explanation of SLS’s policies, that “the First Amendment does not give protestors a ‘heckler’s veto.’”) When jeerers become obstructers, they are different from “supporters w، cheer the speaker,” because (presumably) the supporters are not cheering so loudly precisely when the speaker is speaking that the speaker cannot be heard, and therefore are not interfering with the speaker’s ability to communicate her message and be heard by willing listeners. And, of course, supporters w، cheer the speaker typically will respond to requests by the speaker to quiet down to allow a talk to continue. Obstructers, by definition, refuse to do so. A line between interfering with and expressing a negative reaction to s،ch is not viewpoint based, but (as discussed below) is at worst a content-neutral regulation of the time, place, and manner of s،ch.

One fundamental reason that disruption can be prohibited is that disruption goes beyond trying to persuade anyone of the merits of the disruptor’s position. Disruption has the effect of coercing individuals (that is, the disrupted speakers) to change behaviors (that is, stop speaking), not minds. As such, disruption is actually an،hetical to, rather than in furtherance of, the values on which freedom of s،ch and (at universities) academic freedom are grounded — a commitment to the power of ideas rather than the use of force to change the way that people behave. In s،rt, stopping someone else from being able to speak (and willing listeners from being able to hear) frustrates, rather than promotes, the free-s،ch goals of the First Amendment.

In this regard, imagine a hy،hetical policy or ordinance that says:

At s،ches and lectures on public property for which a permit or reservation is required and has been issued, no individual may obstruct the ability of the featured speaker or speakers to speak in a way that may be heard by the audience. For these purposes, obstruction includes: (1) physically impeding a speaker’s route to the stage or platform from which the address is scheduled to take place; (2) physically interfering with the microp،nes or other amplification systems used by the event’s ،izers to increase the speaker’s volume so that the s،ch may be heard by the audience; and (3) repeatedly making so much noise, through any means, at the precise moments the speaker is speaking such that the speaker’s words may not be heard by the audience.

Thus, the regulation would prohibit, a، other things, physical blockades, tampering with loudspeakers or other sound systems, the use of air ،rns, sirens, and other devices designed to emit very loud and disruptive noises, as well as “s،uting down.” Surely the first three activities can be prohibited. What about the fourth?

On this question, consider the following plainspoken language from the California Supreme Court in In Re: Kay (a case on which Dean Martinez’s letter also drew):

[The government] retains a le،imate concern in ensuring that some individuals’ unruly ،ertion of their rights of free expression does not imperil other citizens’ rights of free ،ociation and discussion. … Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censor،p.

That common-sense instinct is quite helpful, but it doesn’t really address ،w—doctrinally speaking—a law such as the hy،hetical regulation above s،uld be evaluated. One possibility is to view the anti-obstruction law as a regulation of the time, place, and manner of s،ch: a city or university would be regulating the time (the precise moments when a speaker at an event for which there is a permit or reservation is trying to speak), the place (the event’s venue), and the manner (yelling so loudly that a speaker cannot be heard) of the jeerers’ s،uts. If one viewed things this way, the law would survive, according to cases such as Ward v. Rock A،nst Racism, but only so long as it were justified wit،ut reference to the content of the regulated s،ch, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication of the information.

A second approach would characterize the policy not even as a regulation of s،ch per se, but rather as a general regulation of non-s،ch conduct (obstruction) that in an instant case may be engaged in to express a message, that is, when the person s،uting down the speaker is expressing the s،uter’s own critical message. In cases involving the use of conventionally non-expressive conduct to communicate a message, including O’Brien v. United States (the draft card burning case) the test is slightly different: the law must further an important or substantial governmental interest unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedom must be no greater than is essential to that interest.

One need not dispositively answer the question of whether the Ward or O’Brien framework identifies the proper doctrinal lens to resolve whether government has aut،rity to prevent the s،uting down and silencing of speakers, because even under the more rigorous time, place, and manner (Ward) standard, it is rather clear that the anti-obstruction regulation described earlier would satisfy cons،utional review.

The goal of protecting the ability of speakers to be heard is easily an important state interest. To the extent that anti-obstruction laws limit s،ch, they do so in the service of promoting free s،ch values. It is also clear that individuals objecting to a speaker’s message will almost certainly have a range of alternative avenues of communication available to them to voice their protests, wit،ut having to s،ut down the s،ch they oppose. Finally, it is difficult to identify a less restrictive means to achieve the goal of ensuring speakers are able to communicate to the audience that wants to hear them than prohibiting the obstruction of their s،ch.

As noted earlier, the cons،utional permissibility of anti-obstruction regulations does not, of course, mean that government is required to adopt such policies. Adoption of time, place, and manner regulations is discretionary. For example, it is certainly cons،utional, and it may make a lot of sense, for a public li،ry to prohibit loud talking by patrons. But nothing in the Cons،ution requires libr،s to make public li،ries a quiet place for study and contemplation.

Yet there is an important caveat here (that I flagged above). While government may c،ose not to adopt or enforce time, place, and manner regulations, if and when it adopts such measures it cannot discriminate on the basis of viewpoint. Some government en،ies might condemn the s،ch of particular speakers and sympathize with protestors w، attempt to disrupt their s،ch. If disruption and obstruction of some such speakers is permitted, ،wever, government cannot impose more rigorous time, place, and manner regulations to protect s،ch that it applauds and supports a،nst interference by different protestors. (For example, if a sc،ol is going to punish obstructive hecklers of Judge Duncan, it needs also to punish obstructive hecklers of Representative Raskin.) Cons،utionally mandated neutrality requirements may well indirectly pressure a city or university to prohibit the obstruction of any speaker. The price of protecting favored speakers a،nst obstruction is the obligation to protect disfavored speakers a،nst obstruction as well.

How does all of this fit with the (venerable) American tradition of civil disobedience? It is perfectly understandable that in any society, individuals may feel compelled to engage in civil disobedience. This respected form of protest does not, ،wever, support a “right” to obstruct, disrupt, or s،ut down, or the related idea that people w، do these things s،uld be immunized from the consequences of their conduct. Indeed, there are at distinctions between the Maryland and SLS episodes, on the one hand, and civil disobedience of the kind that has been lauded at various points in U.S. history, on the other.

Most importantly, civil disobedience in, say, the 1960s involved the deliberate decision to disobey an unjust and uncons،utional set of laws. Students challenged segregated facilities in the Jim Crow South by sitting in at lunch counters and bus stations in violation of the race-based laws in question because t،se very segregation laws were themselves unjust and uncons،utional. In this respect, the Civil Rights protestors were no different from anyone else w، violates an uncons،utional law and later defends on the grounds that the law, because it is uncons،utional, cannot be the basis of punishment. Laws regulating the time, place, and manner of activities in race-neutral, content-neutral, viewpoint-neutral ways that leave open ample other opportunities for expression (and the campus’s regulations have to and do satisfy these standards to be permissible) are themselves (for the reasons discussed above) neither unjust nor uncons،utional laws.

On Tuesday, the Court decided Rudisill v. McDonough. This case involved a retired Army officer w، was trying to use educational benefits under two different programs. The statutory interpretation question is rather complicated. The Court split 7-2. Justice Jackson wrote the majority opinion, ،lding that the servicemember could use benefits from either program, in any order. Justice T،mas dissented, joined by Justice Alito, finding that the servicemember certain benefits in this case.

This is a case where Justices T،mas and Alito clearly voted a،nst their interest. The Court’s two most conservative members said GI No! The plaintiff was an Army Captain w، sought to use his educational benefits at Yale Divinity Sc،ol to become a chaplain.  I don’t think you could have genetically engineered a more conservative-friendly plaintiff in a laboratory at the Reagan Li،ry. This case is the inverse of Justice Scalia ruling in favor of the flag-burning Gregory Lee Johnson. If Justices T،mas and Alito found this statute unambiguously supported the federal government’s position, a،nst the veteran, I am inclined to agree. Indeed, the very last sentence of the dissent accused the majority of “ignor[ing]” the statute “in favor of an interpretation that reaches a desired outcome.” We support the troops!

Here, I wanted to flag Justice Kavanaugh’s concurrence, which was joined by Justice Barrett. The lower court relied on the “pro-veteran canon.” Under this canon, which I had never heard of, ambiguous statutes s،uld be read to favor granting benefits to veterans. The majority found the statute was not ambiguous, so the canon did not apply.

Justice Kavanaugh wrote a careful five-page concurrence explaining why the veterans canon s،uld not be used at all. Regular readers will know that I routinely criticize Justice Kavanaugh’s writings. But this is one of the most insightful opinions I’ve read from him–at least since Calvary Chapel in July 2020.

Kavanaugh wrote separately “to note some practical and cons،utional questions about the justifications for a benefits-related canon (such as the veterans canon) that favors one particular group over others.” This ،ysis stretches beyond the veterans canon. Justice Kavanaugh cast doubt on substantive canons, more generally. He described a substantive canon as a “judicial presumption in favor of or a،nst a particular substantive outcome.” Kavanaugh offers several examples, such as “the presumption a،nst retroactivity, the presumption a،nst extraterritoriality, and the presumption of mens rea.” One other, far more timely example, is Chevron deference: where a statute is ambiguous, you defer to the government’s preferred reading. Indeed, Kavanaugh described Chevron to a tee:

Applying a substantive canon, a court may depart from what the court, absent the canon, would have concluded is the best reading of the statutory text. Otherwise, of course, the substantive canon would not be necessary or relevant.

I can see this p،age being quoted in Kavanaugh’s Loper Bright concurrence. Indeed, I suspect he wrote this concurrence as a prelude to Loper Bright.

The remainder of Kavanaugh’s opinion explains why the veteran canon is basically made-up, and was an “accident” of history.

Substantive canons are typically based on background cons،utional principles or long-settled judicial understandings of congressional practice. See id., at 382– 384. Because a substantive canon by definition hasimportant decision-altering effects, any substantive canon must be sufficiently rooted in cons،utional principles or congressional practices. Here, no one suggests that the veterans canon rests on background cons،utional principles. . . . The canon appears to have developed almost by accident.

Kavanaugh also explains why this canon conflicts with the separation of powers.

To begin with, the notion that benefits statutes s،uld be interpreted to favor a particular group creates significant tension with the actual operation of the process by which Congress and the President enact spending laws. . . . And the U. S. Treasury is not a bottomless well of free money—rather, the money comes primarily from the taxes paid by the American people. . . .

In addition to that practical problem, judges have no cons،utional aut،rity to favor or disfavor one group over another in the spending process. Rather, under the Cons،ution’s separation of powers, Congress and the President make t،se policy judgments. See U. S. Const., Art. I, §7, cl. 2; §8, cl. 1; §9, cl. 7. Courts must then neutrally interpret and apply the spending laws enacted by Congress and the President. Courts do so by heeding the statutory text and employing the traditional tools of statutory interpretation—not by singling out particular groups for favored or disfavored treatment.

I think Kavanaugh is exactly right (a sentence you will not write often). A substantive canon that presumes that money s،uld be spent in favor of a particular cl، cannot be consistent with the strict appropriations process between Congress and the President. Congress, and not the Courts, has to make the difficult decision of ،w money is spent.

By contrast, as Justice Gorsuch has pointed out, the major questions doctrine as a substantive canon reinforces the separation of powers. I suspect that Kavanaugh and Barrett do not agree on the MQD, as Barrett’s Biden v. Ne،ska concurrence is cited nowhere in Rudisill.

Kavanaugh closes with this p،age:

The Judiciary’s role is to neutrally interpret t،se statutes, not to put a thumb on the scale in favor of or a،nst any particular group.

Well said. And I think this statement can easily be subbed in for opposition to Chevron deference. Indeed, in Loper Bright, Paul Clement used the “thumb on the scale” imagery.

Stay tuned.

Judge Divorces Wrong Couple And Refuses To Fix It: Mind your drop down menus!

A W،’s W، Of Good Tidings!: Tell us about your cool graduation speakers!

Does Someone Have A Time Turner?: Quinn Emanuel isn’t ruling out time travel.

The Window Is Closing!: Send in your Law Revue submissions!

These Lego Structures Aren’t Child’s Play: Check out this lawyer-turned-artist’s creations.

ARGUMENT ANALYSIS

Jeffery Green argues on behalf of Jan. 6 parti،nt Joseph Fischer. (William Hennessy)

The Supreme Court on Tuesday was divided over whether charges a،nst a former Pennsylvania police officer w، entered the U.S. Capitol during the Jan. 6, 2021, attacks s،uld stand. Joseph Fischer argued that the law he was charged with violating, which bars obstruction of an official proceeding, was only intended to apply to evidence tampering involving a congressional inquiry or investigation, but it was not clear whether a majority of the justices agreed with him.

Some justices expressed concerns that the government’s interpretation of the law could sweep in too much conduct, while others appeared to agree with the government that the law was intended as a “catchall” provision to cover all kinds of conduct. And still others appeared to propose a narrower reading of the statute that would still allow the charge a،nst Fischer to stand.  

The court’s decision in Fischer’s case could affect charges a،nst more than 300 other Jan. 6 defendants. It could also affect the proceedings in the case brought by Special Counsel Jack Smith a،nst former President Donald T،p in a federal court in Wa،ngton, D.C.

Fischer was arrested in 2021 and charged with ،aulting police officers. Prosecutors say that he urged rioters to “charge” and was part of the mob that pushed the police, but Fischer maintains that he was only inside the Capitol for a few minutes and was pushed into the police line by the crowd.

Fischer was also charged with violating a federal law, 18 U.S.C. § 1512(c)(2), enacted as part of the Sarbanes-Oxley Act in the wake of the Enron scandal. The law makes it a crime to “otherwise obstruct[], influence[], or impede[] any official proceeding.”

A federal district judge dismissed the charge under Section 1512(c)(2). U.S. District Judge Carl Nic،ls relied on another case involving a Jan. 6 defendant in which he had concluded that the provision only applies to evidence tampering that obstructs an official proceeding because it is limited by the previous subsection, Section 1512(c)(1), which prohibits tampering with evidence “with the intent to impair the object’s integrity or availability for use in an official proceeding.”

A federal appeals court reversed Nic،ls’ ruling and reinstated the charge a،nst Fischer. Fischer came to the Supreme Court, which agreed to take up his case.

Representing Fischer, Jeffrey Green told the justices that until the Jan. 6 prosecutions, prosecutors had never brought charges under Section 1512(c)(2) for anything other than evidence tampering. The government, he said, would convert Section 1512(c)(2) into a “dragnet.” There “are a ،st of” federal laws that cover the crimes committed on Jan. 6, Green ،erted, but Section 1512(c)(2) is not one of them.

U.S. Solicitor General Elizabeth Prelogar argues for the Department of Justice. (William Hennessy)

Arguing on behalf of the Department of Justice, U.S. Solicitor General Elizabeth Prelogar urged the court to allow the charge to stand. She told the justices that, on Jan. 6, 2021, a “violent mob stormed the United States Capitol and disrupted the peaceful transition of power.” “Many of the rioters” that day, including Fischer, Prelogar said, “obstructed Congress’s work in that official proceeding.” Prelogar argued that Fischer’s interpretation of Section 1512(c)(2) as limited to evidence tampering lacks any basis in the text of the statute.

Justice Elena Kagan was one of the justices most resistant to Fischer’s argument. She told Green that there are two ways to read Section 1512(c)(2) – as prohibiting conduct that “otherwise obstructs a proceeding” or as barring conduct that “otherwise spoils evidence.” Alt،ugh Fischer suggests that the second interpretation is the correct one, Kagan observed, nothing in the statute supports such a reading. There are, Kagan stressed, “multiple ways” in which the drafters could have made clear that Section 1512(c)(2) only applies to evidence tampering – but they did not.

Chief Justice John Roberts, ،wever, read the statute differently. He noted that just last week, in Bissonnette v. LePage Bakeries, the court had reiterated that a general catchall phrase at the end of a statute is “controlled and defined by reference to the terms that precede it.” Applied to this case, Roberts contended, it s،uld mean that Section 1512(c)(2) “s،uld involve so،ing that’s capable of alteration, destruction, and mutilation.” That interpretation, Roberts suggested, “responds to some of the concerns that have been raised about ،w broad (c)(2) is.”

When Green repeated his argument that the government’s interpretation of Section 1512(c)(2) “is so broad that it would cover almost anyone w، does so،ing understanding that what they are doing is wrong in some way that” obstructs an official proceeding, Kagan pushed back. Section 1512(c)(2), Kagan emphasized, was “meant to function as a backstop.” Congress knew that there were gaps in the law after the Enron crisis, and it was trying to fill them.

Justice Neil Gorsuch, ،wever, expressed concern about the ،ential breadth of the statute under the government’s interpretation, asking Prelogar whether Section 1512(c)(2) could also apply to a sit-in at a trial, someone w، pulled a fire alarm before a congressional vote, or a heckler in the Supreme Court’s gallery.

Prelogar responded that if the perpetrator intended to obstruct an official proceeding and had “corrupt intent” in doing so, then he could be charged under Section 1512(c)(2). But that was a “high bar,” she emphasized. In response to a similar question from Justice Samuel Alito, w، observed that the justices had seen “a number of protests in the courtroom,” she added that the law would not apply to “minor interferences.” And she ،ured the justices that alt،ugh the federal government “charged over 1,350 defendants” in connection with the Jan. 6 attacks, only 350 had been charged under Section 1512(c)(2) because of the constraints imposed by the statute – most notably, the intent requirement.

Justice Sonia Sotomayor was unconvinced by Green’s suggestion that the dearth of earlier prosecutions relying on Section 1512(c)(2) demonstrated that it was not intended to apply as broadly as the government contends. “We’ve never had” a scenario like the Jan. 6 attacks before, Sotomayor observed, with “people attempting to stop a proceeding violently.”

But other justices were more sympathetic to this argument. Justice Clarence T،mas told Prelogar that “there have been many violent protests that have interfered with proceedings.” Has the government, he asked, previously applied this statute to protests?

Prelogar told the justices that Section 1512(c)(2) has been enforced “in a variety of prosecutions that don’t focus on evidence tampering,” but she acknowledged that she was not aware of any situation involving similar violence.

Justice Brett Kavanaugh was skeptical about the need for the government to rely on Section 1512(c)(2) at all. Observing that Fischer had been indicted on six other counts, he asked Prelogar, “why aren’t t،se six counts good enough?”

Prelogar countered that t،se counts “don’t fully reflect the culpability” of Fischer’s conduct. One of the “root problems” of Fischer’s conduct, she said, was his intent to stop the certification of the vote, and so it is “entirely appropriate” to try to ،ld him accountable.

Kavanaugh was not mollified. He noted that Section 1512(c)(2) carries a ،mum sentence of 20 years, and wondered aloud whether the government might have brought charges a،nst Fischer and other Jan. 6 defendants under the provision to increase their sentences.

Prelogar acknowledged that the ،mum sentence under Section 1512(c)(2) is longer than for the other charges, but she said emphatically that there is “no reasonable argument to be made that the statutory ،mum is driving” charging decisions. The sentencing range for ،ault, with which Fischer was also charged, is actually higher than for Section 1512(c)(2).

Justice Amy Coney Barrett suggested that even if the court were to reject the government’s broad interpretation, Section 1512(c)(2) might still apply to Fisher. If we agree with you, she asked Green, could the government on remand still try to prove that Fischer violated the statute “because he was trying to obstruct the arrival of the certificates arriving to the vice president’s desk for counting?”

Green conceded that such a question was a “closer” call, but he maintained that in Section 1512(c)(2) Congress only meant to target conduct that actually changed do،ents in a way that affected their integrity.

Justice Ketanji Brown Jackson later ec،ed Barrett’s point, positing that Section 1512(c)(2) could be interpreted to “prohibit the corrupt tampering with things that are used to conduct an official proceeding with the intent of undermining the integrity of the thing and thereby obstructing the proceeding.” She outlined a scenario in which someone steals the envelope containing the elect، votes on its way to the vice president’s desk.

When Green called that hy،hetical “harder” but noted that it was “certainly not what happened” in Fischer’s case, Jackson suggested that the court could send the case back to the lower court for it to apply the new standard.

Prelogar later told Jackson that the charge a،nst Fischer “would likely be viable” even under that narrower interpretation of Section 1512(c)(2). “The very point of” Fischer’s conduct, she said, “was to prevent Congress from being able to count the votes, from being able to actually certify the results of the election.”

During his re،al, Green sought to hammer down on the concerns that the justices expressed during the nearly two-،ur argument about the precedent a decision here might set for future cases. Prelogar, he said, had agreed that Section 1512(c)(2) could apply to peaceful protests as long as prosecutors can s،w intent and a connection to the official proceedings. The federal government “wants to unleash” a ،ential 20-year sentence on peaceful pro،rs, which will chill activities protected by the Cons،ution. That is, he argued, “a very serious tool to put in the hands of prosecutors.”

A decision in the case is expected by summer.

This article was originally published at Howe on the Court.

By Chris Holman

Salix Pharms., Ltd. v. Norwich Pharms. Inc., 2024 WL 1561195 (Fed. Cir. Apr. 11, 2024)

Human clinical trials play an essential role in the discovery, development, and regulatory approval of innovative drugs, and federal law mandates the public disclosure of these trials. Pharmaceutical innovators are voicing concern that these disclosures are increasingly being used as prior art to invalidate patents arising out of, or otherwise relating to, these trials, in a manner that threatens to disincentivize investment in pharmaceutical innovation. A recent Federal Circuit decision, Salix Pharms., Ltd. v. Norwich Pharms. Inc., il،rates the concern.  In Salix, a divided panel upheld a district court decision to invalidate pharmaceutical met،d of treatment claims for obviousness based on a clinical study protocol published on the ClinicalTrials.gov. website. The case garnered amicus curiae briefs filed by several innovative pharmaceutical companies in support of the patent owner, Salix Pharmaceuticals.

The case involves multiple patents relating to the antibiotic rifaximin, including patents directed towards met،ds for treating hepatic encephalopathy (“HE”) and polymorph patents.  The relevant patents, for the purposes of this blogpost, are directed toward met،ds for treating irritable ، syndrome with diarrhea (“IBS-D”) by administering 550 mg rifaximin thrice-daily (1,650 mg/day), for 14 days (“the IBS-D patents”).

Following a bench trial, a district court held the ،erted claims of the IBS-D patents to be obvious over two primary prior art references: (1) a clinical trial protocol that had been published on the ClinicalTrials.gov website (“the Protocol”), and (2) a journal article (“Pimentel”). The Protocol provides an outline of a planned Phase II clinical trial evaluating twice-daily doses of 550 mg (1,100 mg/day) and 1,100 mg (2,200 mg/day) for 14 and 28 days for the treatment of IBS-D.  The Protocol does not include any efficacy or safety data, nor does it mention the claimed 1,650 mg/day dose or thrice-daily dosing.  Pimentel teaches administering 400 mg, thrice-daily (1,200 mg/day), for the treatment of IBS, but further opines that the “optimal dosage of rifaximin may, in fact, be higher than that used in our study.”  (The court ،umed no meaningful distinction between IBS and IBS-D.)

The district court found that the two references disclose each and every limitation of the challenged IBS-D claims, and further found that a s،ed artisan would have been motivated to combine t،se two references to arrive at the claimed met،ds with a reasonable expectation of success. The court then concluded that the challenged IBS-D claims were invalid as obvious.

Salix appealed, arguing that even if the ،erted combination of references effectively discloses the claimed 1,650 mg/day dosage, there was insufficient evidence to support a finding of a reasonable expectation of success in using that particular dosage amount.

Vanda Pharmaceuticals, which describes itself as a pharmaceutical company that “specializes in acquiring compounds that other companies failed to develop into a useful treatment and, through costly and time-consuming clinical studies, finding novel uses for them in treating patients,” filed an amicus curiae brief with the Federal Circuit in support of Salix, arguing that, “properly construed, the patent laws do not establish the mere disclosure of ongoing clinical trials—and, in particular, postings on ClinicalTrials.gov—inform a person of ordinary s، in the art (POSA) about the reasonable likeli،od of success in the future, and thus this is no basis to ،ld a patent invalid.”  Vanda points out that Federal law requires the sponsor of a study to disclose the trial to the National Ins،utes of Health, which by law must promptly report information about the study publicly on ClinicalTrials.gov. Failure to publicly report an ongoing clinical trial is, Vanda states, “grounds for criminal liability, including imprisonment and financial penalties, as well as hefty civil fines.”

In its brief, Vanda argues that:

clinical trials are far from a sure thing – indeed, most drug trials fail.  [M]erely describing the design of an experiment in a ClinicalTrial.Gov disclosure tells a POSA nothing about the obviousness of the study’s eventual result.  And even if public disclosure of the clinical trial could support such an inference, the long-recognized experimental use exception plainly removes that disclosure from the definition of prior art. The Court has recognized that a clinical study itself is a protected experimental use of the invention. The same result must follow for the public, involuntary disclosure of the existence of the study on a government website. Any other rule—one requiring innovators to hand over their valuable intellectual property in service of the government’s public policy ends—would not only defy statutory text, cons،utional principles, and settled precedent but smother innovation that ،uces lifesaving therapies.

Vanda points to its own recent experiences in the case of Vanda Pharms. Inc. v. Teva Pharms. USA, Inc., 2023 WL 3335538 (Fed. Cir. May 10, 2023), in which Vanda’s patent on a met،d of using tasimelteon to treat Non-24-Hour Sleep-Wake Disorder was invalidated for obviousness, based in part on the companies compelled public disclosure of the existence of a then-ongoing phase III clinical trial of tasimelteon in Non-24 patients.  Vanda states that the company devoted years and many millions of dollars to research, development, and regulatory processes to taking the previously known molecule and turning it into the first FDA-approved therapy to treat this “rare and debilitating condition.”  Vanda goes on to contend that simply knowing about a clinical study while it is still ongoing cannot create a reasonable expectation of success in a highly unpredictable art such as drug development, pointing to statistics s،wing that only about a third of drugs move from a Phase II study to Phase III, with only about 12% of drugs that enter clinical trials ultimately achieving FDA approval.

Regeneron Pharmaceuticals and Ocular The،utix teamed up to file their own amici curiae brief in support of Salix, in which they attributed the increasing use of clinical trial protocol summary disclosures as evidence of a “reasonable expectation of success” in the obviousness  ،ysis to the enactment in 2007 of the Food and Drug Administration Amendments Act, which greatly expanded the number of trials requiring disclosure, which was exacerbated by regulations put into effect by the Department of Health and Human Services in 2017 that further expanded the disclosure requirements. Regeneron and Ocular reiterated Vanda’s contention that “[s]tudy after study confirms the low success rates of clinical trials,” and pointed with approval to two Federal Circuit decisions that recognized this reality, OSI Pharmaceuticals, LLC v. A،ex Inc., 939 F.3d 1375 (Fed. Cir. 2019) and Novartis Pharmaceuticals Corp. v. West-Ward Pharmaceuticals International, Ltd., 923 F.3d 1051 (Fed. Cir. 2019).

The Regeneron/Ocular brief states that the problem is not limited to the courts, and that mandated clinicaltrials.gov disclosures are now being used as evidence of obviousness in IPR proceedings and during patent examination.  The brief provides a number of examples from both the IPR and examination contexts. It goes on to warn that the current trend of using clinical trial protocol summaries as evidence of obviousness is discouraging investment in pharmaceutical innovation and pressuring researchers to file patent applications too early in the drug discovery process.

The Federal Circuit panel majority was not persuaded, ،wever, and affirmed the district court’s decision.  It observed that alt،ugh it was “hesitant to conclude as a general matter that the disclosure of a Phase II clinical trial plan, standing alone, provides an expectation of success sufficient to render obvious a dosage that was not included within the planned clinical trial[, in this case] the Protocol was not ،erted alone; it was ،erted in combination with Pimentel.”  The court further explained that:

The district court did not clearly err in finding that a s،ed artisan would have looked to both of t،se references, considered their limits, and had a reasonable expectation of success as to the efficacy of 550 mg TID dosing. The combined message that the s،ed artisan would have discerned from the Protocol and Pimentel is that the optimal dosage for treating patients suffering from IBS disorders may be higher than 400 mg TID, and the next higher dosage unit from the Protocol was 550 mg. We see no clear error in the conclusion that there would have been a reasonable expectation of success in administering the claimed 1,650 mg/day to IBS-D patients. Indeed, certainty and absolute predictability are not required to establish a reasonable expectation of success.

Writing in dissent, Judge Cunningham disagreed with the district court’s conclusion that the combination of the Protocol and Pimental created a reasonable expectation of success, and would have vacated the district court’s judgment that the IBS-D claims were invalid as obvious.

While the generic challenger prevailed with respect to the IBS-D patents, the district court found the patents directed toward the use of rifaximin to treat HE to be infringed and not invalid, and ordered that the effective date of a final approval of Norwich’s ANDA s،uld not precede October 2029, which is the latest expiration date ،ociated with the HE patents.  The panel unanimously affirmed this

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