United States Supreme Court

3/16/2023

This recent civil penalty case from the Supreme Court is worth a read. In Bittner v. United States (https://www.supremecourt.gov/opinions/22pdf/21-1195_h3ci.pdf), the Court considers the interpretation of the Bank Secrecy Act. Justice Gorsuch's opinion does a nice job discussing statutory interpretation and Skidmore deference. Most significantly for military criminal practitioners, Justice Gorsuch discusses application of the Rule of Lenity. There is a lot of good language for that appellate attorney invoking the Rule of Lenity.

Jason Grover

Donald G Rehkopf, Jr.

3/17/2023 13:12:59

CAAF briefly discusses the Rule of Lenity in McPherson, 81 M.J. 372, 382, n.3 (CAAF 2021). Judge Ohlson discusses it in the dissent at 387, Notably, Judge Ohlson refers to a significant law review article, Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U.L. Rev. 109, 117–18 (2010), where she defines it as " The rule of lenity is often described this way: it directs that courts interpret ambiguous penal statutes in favor of the defendant."

The Article, which I recommend if you're dealing with any issue of statutory construction, is on-line at:

https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1675&context=law_faculty_scholarship

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