U.S. v. Marcus

The Supreme Court will consider an appeal by federal prosecutors in a case involving the sex trafficking and forced labor conviction of a man who has been called the "S&M Svengali."

In September 2007, Glenn Marcus was sentenced to nine years in prison for abusing a woman he photographed for his Web site. Marcus was convicted in the U.S. District Court for the Eastern District of New York for sex trafficking involving children or force, fraud or coercion and forced labor.

Last year, a three-judge panel on the 2nd U.S. Circuit Court of Appeals vacated and remanded the case for further proceedings, holding that authorities' applied the 2000 Trafficking Victims Protection Act retroactively to actions Marcus took prior to that date.

"Marcus's relevant conduct differed materially before and after October 2000, such that there is a reasonable possibility that the jury may have convicted him based exclusively on pre-enactment conduct," the appeals court said.

Justice Sonia Sotomayor took no part in the court's consideration of the case. She was on the panel that ruled in Marcus' favor and joined in the panel's decision. But she filed a concurring opinion to suggest that the ruling, though required by several prior 2nd Circuit cases, might not be in line with the Supreme Court's view of the case.

On Oct. 13, the Supreme Court agreed to hear the case. Oral arguments will likely be scheduled for some time early next year.

Question presented: Whether the Second Circuit departed from the Court’s interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an alleged ex post facto violation whether there is any possibility that the defendant could have been convicted based exclusively on conduct that took place before the enactment of the statutes in question.