In Taylor v. Illinois, the Court considered whether witness preclusion as a sanction for a defendant’s failure to comply with a discovery rule violated the Constitution. 484 U.S. 400 (1988). The Court affirmed the preclusion sanction there because the defense had willfully violated the rule to gain a tactical advantage. Id. at 415. But this Court “did not hold in Taylor that preclusion is permissible every time a discovery rule is violated.” Michigan v. Lucas, 500 U.S. 145, 152 (1991). To the contrary, the Court “acknowledged that alternative sanctions would be ‘adequate and appropriate in most cases.’” Jd. (quoting Taylor, 484 U.S. at 418).

Because “[t]he Taylor opinion arguably raises as many questions as it answers,” and “later Supreme Court cases * * * simply confirmed that the Sixth Amendment did not impose a per se barrier to exclusion,” “Supreme Court precedent * * * fails to provide the kind of clear directive that is necessary to shape a lower court consensus on the bounds of the constitutionally permissible use of the preclusion sanction.” 5 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure, § 20.6(c) Defense violations (4th ed.).

The question presented is:

Whether the Constitution permits a trial court to impose witness preclusion as a sanction for a discovery violation in a criminal case, absent a finding that the defense acted in bad faith.

(i)

Under the Communications Act of 1934, the Fed- eral Communications Commission may assess mone- tary “forfeiture penalties” for violations of the Act, including the requirement that telecommunications carriers take reasonable measures to protect certain customer data. 47 U.S.C. 88 222, 508, 504. The FCC may impose such forfeiture penalties in administra- tive proceedings. Jd. § 503(b)(4). Ifa carrier wants to guarantee judicial review, it must pay the penalty and then seek review in a court of appeals, which reviews the agency’s order on the administrative record under the deferential standards of the Administrative Pro- cedure Act. 47 U.S.C. § 402(a); 5 U.S.C. § 706(2). If the carrier wants a jury trial, by contrast, it must defy the FCC’s order and refuse to pay, after which the Department of Justice may, but is not required to, file a lawsuit in district court to collect the unpaid forfei- ture. 47 U.S.C. § 504(a). While waiting for that DOJ lawsuit that might never come, the carrier suffers se- rious practical and reputational harms from the final FCC order. The question presented is:

Whether the Communications Act violates the Seventh Amendment and Article III by authorizing the FCC to order the payment of monetary penalties for failing to reasonably safeguard customer data, without guaranteeing the defendant carrier a right to a jury trial.

(I)

Who owns the trademark for a user-created online community on a social media platform: the social media platform that provides the technical infrastruc- ture or the creator of the online community who creates the look, feel, and personality of the community, moderates the community’s content, cultivates the brand’s goodwill, and is recognized by the public as the source of the brand?

(1)

In Microsoft Corp. v. Baker, this Court held that federal appellate courts do not “have jurisdiction un- der [28 U.S.C.] § 1291 … to review an order denying class certification … after the named plaintiffs have voluntarily dismissed their claims with prejudice.” 582 U.S. 23, 36 (2017). The Court reasoned that this “dismissal tactic’—in which plaintiffs abandon their claims in order to manufacture immediate appellate review—impermissibly “undercut[ ]” a “discretionary regime” governing interlocutory appeals. Id. at 39. Three Justices concurred on the ground that appellate jurisdiction was lacking under Article III. Jd. at 42— 46 (Thomas, J., concurring in the judgment).

In this case, the district court granted defendant relief from judgment under Federal Rule of Civil Pro- cedure 60 and ordered a new trial. The district court certified that ruling for interlocutory review under 28 U.S.C. § 1292(b), but the Ninth Circuit declined to hear the appeal and also denied plaintiffs’ subsequent petition for a writ of mandamus. Dissatisfied with the Ninth Circuit’s refusal to permit an interlocutory ap- peal, plaintiffs then voluntarily dismissed their claims with prejudice for the express purpose of filing an im- mediate appeal under 28 U.S.C. § 1291. Construing Microsoft as limited to appeals of orders concerning class certification, the Ninth Circuit held that it pos- sessed appellate jurisdiction—and, after further pro- ceedings on remand, declined to revisit that holding.

The question presented is:

Does an appellate court have jurisdiction under 28 U.S.C. § 1291 and Article III when a plaintiff volun- tarily dismisses its claims with prejudice in order to obtain review of an interlocutory ruling?

appellate review of a defendant’s disparity claim under 18

U.S.C. § 3553(a)(6)_ by requiring “identical” rather than

“similar” defendants as comparators, when the statutory

language expressly requires consideration of “the need to

avoid unwarranted sentencing disparities among codefendants with similar records who have been found guilty of similar conduct.”

i

Mr. Casey was indicted for a violation of 18 U.S.C. § 922(¢)(1) before this Court issued Erlinger v. United States, 602 U.S. 821 (2024). This indictment did not include the elements of the aggravated offense contained in 18 U.S.C. § 924(e) as 1s required by the Fifth Amendment, Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). Moreover, Mr. Casey was not informed that he was entitled under the Fifth and Sixth Amendments to have a jury decide whether he was an armed career criminal. Instead, at sentencing, the district court determined, based on a preponderance of the evidence and Shepard! documents, that Mr. Casey qualified for that aggravated offense. Mr. Casey did not object to these constitutional violations. Accordingly, his appeal was considered under plain error review.

This case presents an excellent opportunity for this Court to provide definitive guidance to the lower courts regarding whether the Fifth Amendment “charging error’ which occurred in this case is structural error, a question left open by United States v. Cotton, 535 U.S. 625 (2002), and United States v. Resendiz-Ponce, 549 U.S. 102 (2007).

Even if this Court declines to grant certiorari to address the Fifth Amendment “charging error’ present in Mr. Casey’s case, this Court should grant certiorari in Mr. Casey’s case on a second question to address a significant circuit split regarding the correct application of harmless error analysis of Erlinger-based errors for individuals 1 Shepard v. United States, 544 U.S. 18 (2005).

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