[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in two cases. In Carr v. United States [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether the failure to register provision [18 USC § 2250] of the Sex Offender Registration and Notification Act (SORNA) can be applied retroactively to underlying offenses occurring before SORNA's enactment. The US Court of Appeals for the Seventh Circuit held that, since the violation of failing to register was not complete when SORNA became applicable to the defendant, his rights under the ex post facto clause were not violated [opinion, PDF]. Counsel for the petitioner argued that statutory interpretation principles require that the provision not be applied retroactively:

When Congress uses ordinary words in the statute, those words should get their ordinary meaning. In SORNA, the Sex Offender Registration and Notification Act, Congress did use ordinary words, and it used them in an ordinary way. But the government proposes that those words be given a most extraordinary reading.

Counsel for the US government argued that, "[p]etitioner's offense under 18 USC 2250(a) occurred when he failed to register as required by SORNA well after SORNA was enacted."

In United States v. Marcus [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether the US Court of Appeals for the Second Circuit erred in its interpretation of Rule 52(b) [text] of the Federal Rules of Criminal Procedure. The Second Circuit adopted [opinion, PDF] as the appropriate standard for plain-error review of an asserted ex post facto violation whether "there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct." Counsel for the US government argued that, "[u]nder Rule 52(b), a defendant asserting a forfeited claim of error may prevail only by showing at a minimum a reasonable possibility that the error actually affected the outcome of the case." Counsel for the respondent argued for the application of the Second Circuit's standard.