Amicus Briefs ~ 2008

Abuelhawa v. United States, U.S. Sup. Ct., No. 08-192, case below 523 F.3d 415 (4th Cir. 2008), brief filed 9/15/08. Drugs—Use of Telephone. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petition for certiorari. Question presented: Whether a buyer’s use of a telephone (cell phone) to purchase drugs for personal use “facilitates” the commission of a drug “felony,” 21 U.S.C. § 843(b), on the theory that the crime facilitated by the buyer is not his purchase of drugs for personal use, a misdemeanor, but is the seller’s distribution of the drugs to the buyer (a felony). Authors: Jeffrey A. Lamken, E. Barrett Atwood and Heather M. Souder, Baker Botts LLP, Washington, DC.

Arizona v. Gant, U.S. Sup. Ct., No. 07-542, opinion below 162 P.3d 640 (Ariz. 2007), brief filed 7/25/08, argument 10/07/08. Search and seizure—Vehicles—Traffic offenses. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Argument: The rule in New York v. Belton (1981), which allows the search of a vehicle’s interior incident to a custodial arrest of an occupant of the vehicle, as practiced on state highways, violates the Fourth Amendment and should be overruled. Held: Police may search the passenger compartment of a car incident to an occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle after his arrest or that the passenger compartment contains evidence of a crime. Authors: Jeffrey L. Fisher and Pamela S. Karlan, Stanford Law School Supreme Court Litigation Clinic, Stanford, CA; Amy Howe and Kevin Russell, Howe and Russell PC, Bethesda, MD; and Thomas C. Goldstein, Akin Gump Strauss Hauer & Feld LLP, Washington DC.

Arizona v. Johnson, U.S. Sup. Ct., No. 07-1122, decision below 170 P.3d 667 (Ariz. App. 2007), brief filed Nov. 2, 2008. Search and seizure—Weapons frisk—Lack of suspicion of criminal activity. Pat-down of passenger following motor vehicle stop was not authorized because officer had no reason to believe defendant was involved in criminal activity, even if officer reasonably believed respondent was armed and dangerous. Argument: Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may seize a person for a weapons frisk if the officer reasonably concludes that “criminal activity may be afoot and that the person[] . . . may be armed and presently dangerous”; petitioner and amicus United States seek to replace Terry’s “criminal activity” requirement with a meaningless limitation that the officer has a “lawful right” to be present, a position that cannot be squared with Terry or the Fourth Amendment. Authors: Meir Feder and Donald B. Ayer, Jones Day, New York, NY.

Bell v. Kelly, U.S. Sup. Ct., No. 07-1223, case below (unreported) 2008 WL 59946 (4th Cir. 2008). Habeas corpus—Due Process—AEDPA. Amicus curiae brief of the National Association of Federal Defenders and the National Association of Criminal Defense Lawyers in support of Petitioner. Question Presented: Did the Fourth Circuit err when, in conflict with decisions of the Ninth and Tenth Circuits, it applied the deferential standard of 28 U.S.C. § 2254(d), which is reserved for claims “adjudicated on the merits” in state court, to evaluate a claim predicated on evidence of prejudice the state court refused to consider and that was properly received for the first time in a federal evidentiary hearing? Argument The absences of a “full and fair” state court review of petitioner’s ineffective assistance of counsel claim renders the Fourth Circuit’s application of §2254(d)(1) a violation of due process. Authors: Andrea Lyon, DePaul University College of Law, Chicago, IL, and Justin F. Marceau, University of Denver Strum College of Law, Denver, CO.

Boyle v. United States, U.S. Sup. Ct., No. 07-1309, case below unpublished, brief filed 12/01/08. Racketeering (RICO)—Definition of “organization.” Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: The district court instructed the jury that it “may find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts.” The notion that a RICO enterprise need not have a structure or organization apart from the enterprise’s underlying crimes themselves would expand RICO from a prohibition against certain federal and state crimes committed in the course of managing the affairs of an ascertainable organization into a sanction against multiple criminality of almost any sort. Authors: Richard Willstatter, White Plains, NY; William W. Taylor III and Shawn P. Naunton, Zuckerman Spaeder LLP, Washington, DC; Terrance G. Reed, Lankford, Coffield and Reed, Alexandria, VA; Samuel J. Buffone and Cassandra H. Welch, Ropes and Gray, Washington, DC.

Burgess v. United States, U.S. Sup. Ct., No. 06-11429, opinion below 478 F.3d 658 (4th Cir. 2007), brief filed January 29, 2008, argument March 24, 2008. Prior convictions—Rule of lenity. Amicus curiae brief of the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums. Questions presented: 1. Whether the term “felony drug offense” as used in federal statute requiring imposition of enhanced mandatory minimum 20 years’ imprisonment when drug offender has “prior conviction for a felony drug offense” must be read in pari material with federal statutes defining both “felony” and “felony drug offense”, so as to require imposition of minimum 20—year sentence only if prior drug conviction is both punishable by more than one year in prison and characterized as a felony by controlling law. 2. When the court finds that a criminal statute is ambiguous, must it then turn to rule of lenity to resolve ambiguity? Authors: Pamela Harris, O’Melveny & Myers, Washington, D.C.; Peter Goldberger, Ardmore, Pa.; Mary Price, FAMM, Washington, D.C.; Kevin B. Huff and Gregory G. Rapawy, Kellogg Huber, Washington, D.C.

Caperton v. A.T. Massey Coal Co., U.S. Sup. Ct., No. 08-22, opinion below 2008 WL 918444 (W.Va. 2008), cert. granted 11/14/08, brief filed 01/05/09. Judicial Elections—Judicial Ethics—Recusal. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petitioner. Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60 percent of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. Question presented: Whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment. Author: Norman L. Reimer, National Association of Criminal Defense Lawyers, Washington, D.C. On brief: Pamela Harris, O’Melveny & Myers, Washington, D.C.

Corley v. United States, U.S. Sup. Ct., No. 07-10441, case below 500 F.3d 210 (3rd Cir. 2007), brief filed 5/19/08, cert. granted, 10/1/08. Confessions—Admissibility—Federal courts. Amicus curiae brief of the National Association of Criminal Defense lawyers in support of the petition for writ of certiorari. Question presented: Whether 18 U.S.C. §3501—read together with Fed. R. Crim. P. Rule 5(a), McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957)—requires that a confession taken more than six hours after arrest and before presentment be suppressed if there was an unreasonable or unnecessary delay in bringing the defendant before the magistrate judge. To reconcile a split in the circuits, brief argues that a §3501(c) bright line rule is needed, as litigating the §3501(b) voluntariness test in every case where the defendant challenges admissibility of a confession would create a burden on the courts, in addition to fostering uncertainty among law enforcement officers and defense lawyers as to which confessions should be excluded. Authors: Jeffrey T. Green and Holly L. Henderson, Sidley Austin LLP, Washington, DC and Sarah O’Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL. Brief of NACDL and the National Association of Federal Defenders in support of petitioner filed 11/24/08. Authors: Jeffrey T. Green and Quin M. Sorenson, Sidley Austin, Washington, DC.

Flores-Figueroa v. United States, U.S. Sup. Ct., No. 08-108, case below 274 Fed. Appx. 501 (8th Cir. 2008), brief filed 12/22/08. Mens Rea—Aggravated Identity Theft. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Question Presented: Whether a statute’s specified mens rea requirement extends to all elements of the offense, the application of which in this case would resolve whether, to prove aggravated identity theft under 18 U.S.C. § 1028A(a)(1), the government must show that the defendant knew that the means of identification he used belonged to another person. Argument: The Court should adopt the Model Penal Code Rule (§ 202(4) (1985)) that a specified mens rea requirement extends to all material elements of a statute unless a contrary purpose plainly appears, and that the rule of lenity requires reading the statute to require knowledge of all elements of the crime. Authors: Sri Srinivasan, Irving L. Gornstein, Justin Florence, O’Melveny & Myers LLP, Washington, DC, and Pamela Harris, Amicus Committee Co-Chair, National Association of Criminal Defense Lawyers, and O’Melveny & Myers LLP, Washington, DC.

Giles v. California, U.S. Sup. Ct., No. 07-6053, opinion below, 152 P.3d 433 (Cal. 2007), brief filed 3/04/08. Confrontation/Sixth Amendment. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Question presented: Whether a defendant forfeits his Sixth Amendment right to confrontation if the defendant kills the witness, even if the defendant did not cause the witness’s unavailability for the purpose of preventing the witness from testifying. The defendant admitted killing his girlfriend but claimed he acted in self-defense, testifying that she was a violent person who had shot another man and had threatened people with knives. To prove that the killing was premeditated, the state introduced statements the decedent has made to police officers weeks earlier accusing the defendant of threatening and assaulting her on another occasion; the court admitted the statements under a statutory hearsay exception for certain “trustworthy” statements of unavailable witnesses. Authors: Jeffrey A. Lamken and Robert K. Kry, Baker Botts LLP, Washington, DC and Kennon L. Peterson, Baker Botts LLP, San Antonio, TX.

Greenlaw v. United States, U.S. Sup. Ct., No. 07-330, opinion below, 481 F.3d 601 (8th Cir. 2007), brief filed 2/21/08. Argument: 4/15/08. Appeals—Sentencing—Mandatory minimums. Numerous courts have held that a court of appeals may not order an increase in a criminal defendant’s sentence in the absence of an appeal or cross-appeal by the Government. The Eighth and Tenth Circuits, however, have held that courts of appeals may sua sponte order increases in a defendant’s sentence when the district court has failed to impose a statutory mandatory minimum sentence, even if the Government has not appealed or cross-appealed the sentence. Question presented: Whether a federal court of appeals may increase a criminal defendant’s sentence sua sponte and in the absence of a cross-appeal by the Government. Author: Jonathan D. Hacker, Harvard Law School Supreme Court and Appellate Advocacy Clinic, Cambridge, MA.

Herring v. United States, U.S. Sup. Ct., No. 07-513, opinion below 492 F.3d 1212 (11th Cir. 2007), brief filed 5/16/2008, argument 10/07/08. Search and seizure—Exclusionary rule—Search incident to erroneous arrest. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Argument: The Fourth Amendment’s Exclusionary Rule requires that evidence seized in a search incident to an erroneous or unlawful arrest must be suppressed. Authors: Pamela Harris and Joseph Blocher, O’Melveny & Myers LLP, Washington, DC, and Walter Dellinger, Harvard Law School Supreme Court and Appellate Practice Clinic.

Hirko v. United States, U.S. Sup. Ct., No. 08-67, etc., (consolidated cases) cert. granted 11/14/08. Double Jeopardy Clause—Collateral estoppel. Amicus curiae brief of the National Association of Criminal Defense Lawyers and 11 Criminal Law Professors in support of the petitions for writ of certiorariQuestion: Whether, consistent with the Double Jeopardy Clause, a jury’s failure to reach a verdict on one count of a multi-count indictment can be “weighed” against an acquittal on another factually-related count in a manner that diminishes the acquittal’s collateral estoppel effect for future prosecutions. Authors: Kevin C. Newsome, et al., Bradley Arant Rose & White LLP, Birmingham, AL.

Indiana v. Edwards, U.S. Sup. Ct., No. 07-208, brief filed February 8, 2008. Opinion below, 866 N.E.2d 252 (Ind. 2007). Sixth Amendment—Self-representation—Competency—Right to fair trial. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of neither party. Question presented: May states adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial? Brief argues for a return to the common law competency standard, that if an unrepresented defendant is not able to present a reasoned defense due to mental infirmity then he is not competent. In the alternative, the Court should permit states to appoint an attorney to represent mentally-infirm defendants whose competency to stand trial is dependent upon the assistance of counsel. The Sixth Amendment right of self-representation is not absolute, and protecting the right to a fair trial of defendants who would be deemed incompetent under the common law standard is an appropriate reason for recognizing an exception to it. Authors: Kevin P. Martin, Abigail K. Hemani and Dahlia S. Fetouh, Goodwin Proctor LLP, Boston, MA.

In The Matter Of William M., Nevada Sup. Ct., No. 48650, Brief Filed January 30, 2008. Juvenile - Waiver to Adult Court. Amicus Brief of the National Juvenile Defender Center, National Assocaition of Criminal Defense Lawyers, et. al. Question Presented: Whether Nevada's statute authorizing automatic transfer of juveniles accused of certain crimes to adult court violate the Fifth, Sixth and Fourteenth Amendment rights of juvenile defendants? Authors: Joel A. Eisenberg, Douglas Sanders, Baker & Mackenzie, San Francisco, CA; Robin Walker Stering, National Juvenile Defender Center, Washington, DC.

Kay v. United States, U.S. Sup. Ct., No. 07-1281. Indictment—Rule of lenity. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for a writ of certiorari.Questions presented: 1. When an indictment omits an element of the offense, must it be dismissed, or may such an error instead be excused as harmless? (The Court granted certiorari to decide this question, but did not resolve it, last Term in United States v. Resendiz-Ponce, 127 S. Ct. 782, 785-86 (2007).) 2. When the text, structure, and legislative history of a criminal statute are all ambiguous, is the rule of lenity applicable, or instead is that principle limited merely to cases in which the court can only “guess” at Congress’s intent? Authors: John D. Cline and Peter E. Davids, Jones Day, San Francisco, CA.

Kiyemba v. Bush (Uighur Case), D.C. Cir., Nos. 08-5424, 08-5425, 08-5426, 08-5427, 08-5428, 08-5429, opinion below In re Guantanamo Bay Detainee Litigation, 581 F. Supp. 2d 33 (D.D.C. 2008), brief filed 10/31/08. Habeas corpus—Separation of Powers. Amicus curiae brief of the Brennan Center for Justice at New York University School of Law, the Constitution Project, the Rutherford Institute, and the National Association of Criminal Defense Lawyers in support of Petitioner. Question Presented: Does the Constitution’s Separation of Powers grant the District Court the power to remedy the indefinite detention of conceded non-enemy combatants who were forcibly taken into U.S. custody? Argument: The Executive’s asserted authority to indefinitely detain conceded non-enemy combatants is inconsistent with the Suspension Clause, Article III, and the Constitution’s framework of separated powers. Authors: Sharon Bradford Franklin, Constitution Project, Washington, DC; John W. Whitehead, Rutherford Institute, Charlottesville, VA; Malia N. Brink, National Association of Criminal Defense Lawyers, Washington, DC; Alex Young K. Oh, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington DC; Aziz Huq, Brennan Center for Justice at New York University School of Law, New York, NY.

Knowles v. Mirzayance, U.S. Sup. Ct., No. 07-1315, case below unpublished (9th Cir. 05-57102), brief filed 10/09/08. Habeas corpus—State courts—Federal constitutional law. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: 28 U.S.C. § 2254(d) requires that a federal court decide whether a habeas petitioner’s federal claim was fully adjudicated “on the merits” in state court; it has never been applied, as in this case, to a summary, unexplained state court decision. Respondent’s trial counsel’s last-minute decision to forego his insanity defense was objectively unreasonable, and respondent’s ineffective assistance of counsel claim should prevail. Authors: John H. Blume and Keir M. Weyble, Cornell Law School, Ithaca, NY.

Marcrum v. Roper, U.S. Sup. Ct., No. 07-1566, opinion below 509 F.3d 489 (8th Cir. 2007), brief filed 7/17/08, cert. denied 12/08/08. Ineffective assistance of counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petition for writ of certiorari. Argument: Overall fairness of the trial was undermined by the cumulative effect of trial counsel’s errors. Authors: Jeffrey T. Green, Rebecca K. Wood, Norini Irani Edelman, Amy L. Hanke, Sidley Austin LLP, Washington, DC; Sarah O’Rourke Schrup, Northwestern Univ. Supreme Court Practicum, Chicago, IL.

Melendez-Diaz v. Massachusetts, U.S. Sup. Ct., No. 07-591, decision below unpublished, 870 NE2d 676 (Table); brief filed 6/23/07, argument 11/10/08. Lab reports—Hearsay—Confrontation clause. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders and National College for DUI Defense in support of Petitioner. Question presented: Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence subject to the demands of the Sixth Amendment’s Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).

Montejo v. Louisiana, U.S. Sup. Ct., No. 07-1529, case below 974 So.2d 1238 (La. 2008), brief filed 11/24/08. Interrogation—Right to counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the ACLU of Louisiana, and the Brennan Center for Justice, New York University School of Law in support of petitioner. Question presented: When an indigent defendant’s right to counsel has attached and counsel has been appointed, must the defendant take additional affirmative steps to “accept” the appointment in order to secure the protections of the Sixth Amendment and preclude police-initiated interrogation without counsel present? Authors: Jonathan L. Marcus, Anna E. Lumelsky, Covington & Burling LLP, Washington, DC, et al.Supplemental briefing ordered 3/30/09: Should Michigan v. Jackson, 475 U.S. 625 (1986), which held that that if police initiate interrogation after defendant's assertion of his right to counsel at arraignment or initial appearance, any subsequent waiver of the right to counsel during police interrogation is invalid, be overruled? Amicus curiae Supplemental Brief of the NACDL, ACLU, ACLU of Louisiana, the Brennan Center for Justice, and the Southern Center for Human Rights. Authors: Jonathan L. Marcus, Anna E. Lumelsky and Gary Feldon, Covington & Burling, Washington, DC, filed 4/14/09.

Oregon v. Ice, U.S. Sup. Ct., No. 07-901, case below 170 P3d 1049 (Or. 2007). Consecutive sentences—ApprendiBlakely. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Argument: Oregon’s consecutive sentence statute, which allows a judge to impose consecutive sentences upon finding certain facts, violates the Sixth Amendment and the Court’s decisions in Apprendi v. New Jersey (2000) and Blakely v. Washington (2004). Authors: Jeffrey T. Green, James C. Owens and Madeleine V. Findley, Sidley Austin LLP, Washington, DC.

Pearson v. Callahan, U.S. Sup. Ct., No. 07-751, opinion below 494 F3d 891 (10th Cir. 2007). Search and seizure—Warrant requirement—Third party “consent once-removed”. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Argument: Police officers may not enter and search a private home without a warrant based on the “consent” of a third party, a non-resident informant who purchased drugs there, and the search was so unreasonable that the officers are not entitled to qualified immunity from civil suit. Authors: Jeffrey A. Lamken, et al., Baker Botts LLP, Washington, DC.

Puckett v. United States, U.S. Sup. Ct., No. 07-9712, case below 505 F.3d 377 (5th Cir. 2007), brief filed 11/24/08. Plea bargains—Breach by government—Plain error. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Question presented: Whether a forfeited claim that the government breached a plea agreement is subject t0 the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure. Argument: Prosecutorial breaches of plea agreements undermine the plea bargaining process and the criminal justice system at large, and the Court should adopt a rule requiring automatic reversal for government breaches of plea agreements. Authors: Kevin P. Martin, Dahlia S. Fetouh, Jodi B. Kalagher and Natalie F. Langlois, Goodwin Proctor LLP, Boston, MA.

Rivera v. Illinois, U.S. Sup. Ct., No. 07-9995, case below 879 N.E.2d 876 (Ill. 2007), brief filed 12/12/08. Jury selection—Erroneous denial of peremptory strike. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Question presented: Whether the erroneous denial of a criminal defendant’s peremptory challenge that resulted in a challenged juror’s being seated requires automatic reversal of a conviction because it undermines the trial structure for preserving the constitutional right to due process and an impartial jury. Authors: Abigail K. Hemani, Anne E. Railton and Sarah M. Burleson, Goodwin Proctor LLP, New York, NY and Kevin P. Martin, Goodwin Proctor LLP, Boston, MA. On brief: Barbara Bergman, Albuquerque, NM.

Rothgery v. Gillespie County, U.S. Sup. Ct., No. 07-440, brief filed January 23, 2008, argument March 17, 2008. Opinion below 491 F.3d 293 (5th Cir. 2007). Right to counsel—Bail hearing. NACDL amicus curiae brief in support of petitioner. Question presented: In this case, petitioner was arrested and brought before a magistrate judge who informed petitioner of the accusation against him, found probable cause that he had committed the offense based on a police officer’s sworn affidavit, and committed him to jail pending trial or the posting of bail. The question presented is whether the Fifth Circuit correctly held—in a decision that conflicts with those of other federal courts of appeals and state courts of last resort—that adversary judicial proceedings nevertheless had not commenced, and petitioner’s Sixth Amendment rights had not attached, because no prosecutor was involved in petitioner’s arrest or appearance before the magistrate. Author: Ian Heath Gershengorn, Jenner & Block, Washington, D.C.

State v. Jones, Ohio App., No. 2008-P-0018. Professional Responsibility—Effective Assistance of Counsel—Contempt. Brief of Eight Ethics, Criminal Defense and Public Interest Institutions and Associations as Amicus Curiae Supporting Contemnor-Appellant’s Appeal of the Municipal Court’s Contempt Conviction. Argument: Appellant, a public defender, was appointed to represent a defendant the day before a court hearing. The “hearing” turned out to be the client’s trial, and appellant refused to try the case unprepared, for which the trial judge held in in contempt and sanctioned him with three days in jail, a $250 fine and court costs. Amici argued that one of the most fundamental tenets of the legal profession is the ethical requirement that no lawyer take a case when unable to provide competent and diligent representation. Authors: Richard F. Ziegler and Brian J. Fischer, Jenner & Block LLP, New York, NY.

United States v. Ionia Management, S.A., U.S. Court of Appeals for the Second Circuit, No. 07-5801-CR, brief filed 6/6/08. Vicarious criminal liability – Jury instructions – Respondeat superior doctrine. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the Association of Corporate Counsel, the National Association of Manufacturers, the U.S. Chamber of Commerce and the Washington Legal Foundation. Appeal from the criminal conviction of a shipping company for unlawful actions of the crew of one of its ships, over which the company had no direct control while on the high seas. Argument: Assignment of vicarious corporate criminal liability through the application of the civil law doctrine of respondeat superior, in which an employer may be held for wrongful actions of his employee in some circumstances, was authorized neither by statute nor precedent. Authors: Andrew Weissmann, et al., Jenner & Block LLP, New York, NY.

United States v. Moussaoui, 4th Circuit, No. 06-4494, filed 2/22/08. Classified Information Procedures Act (CIPA)—Discovery—Right to counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argues that providing classified discovery to defense counsel with security clearance under a protective order that prohibits disclosure to the defendant effectively denies the defendant the right to effective assistance of counsel and creates an ethical conflict of interest for the defense counsel; case involving classified evidence are proliferating and the legal principles and law enforcement techniques used in those cases are seeping into the prosecution of ordinary criminal cases. Author: Joshua Dratel, New York, NY.  

United States v. Nacchio, 10th Cir., No. 07-1311, 519 F.3d 1140 (10th Cir. 2008), pet. rehearing en banc granted 7/30/08; oral argument 9/25/08. Expert witnesses. NACDL amicus curiae brief in support of appellant Joseph P. Nacchio addressing the district court's refusal to allow the defendant to call an expert witness. On March 17, 2008, the court of appeals reversed the defendant's conviction finding that the exclusion of the defense expert was prejudcial error; the government petitioned for rehearing before the full court of appeals. Authors: Andrew H. Schapiro and Evan P. Schultz, Mayer Brown, New York and Washington; David B. Smith, English & Smith, Alexandria, VA. NACDL amicus curiae brief in support of appellant en banc filed 9/03/08. Author: Andrew H. Schapiro, Mayer Brown LLP, New York.

United States v. Polouizzi (Polizzi), 2nd Cir., No. 08-1830-cr, filed 11/17/08. Sentencing—Jury trial—Mandatory minimums. Amicus curiae brief of the National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM) in support of defendant-appellant/cross-appellee Polizzi. Argument: District court judge, recognizing that he had erred in not instructing or permitting the jury be informed that charges against the defendant carried a mandatory minimum sentence as required by the Sixth Amendment’s right to trial by jury, ordered a new trial, from which the government appeals. As far back as Colonial times, jurors were well-aware of the range of punishments for various offenses upon a guilty verdict, which gave them significant discretion over the defendant’s sentence. Brief also argues in the alternative that possession and receipt of child pornography charges are multiplicitous and violate the Double Jeopardy Clause. Authors: A. Stephen Hut, Jr. and Marc E. Johnson, Wilmer Hale, Washington, DC, and Adam Hornstine, Wilmer Hale, Boston; Richard Willstatter, White Plains, NY, for NACDL and Peter Goldberger, Ardmore, PA, for FAMM.

United States v. Reyes, 9th Cir., No. 08-10047, brief filed 9/12/08. Securities fraud – Mens rea – Prosecutorial misconduct -- Options backdating. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Evidence alone that defendant signed options grants to other people – and not to himself – that were improperly dated is insufficient to establish the requisite mens rea to have “willfully” violated the criminal securities fraud laws. The only government witness to the alleged deception was a low level finance department employee who testified that she did not know that the options grants had been backdated and who recanted her testimony after trial. The brief also argues also that the facts of this case fail to establish even the “materiality to investors” requirement for a finding of civil liability; the evidence being insufficient as a matter of law, the conviction should be vacated and remanded with directions to enter a verdict of acquittal. Authors: Donald Falk, et al., Mayer Brown LLP, Palo Alto, CA.

United States v. San Diego Gas & Electric Co., U.S. Ct. App. 9th Circuit, brief filed 11/7/08. Amicus curiae brief of the Washington Legal Foundation and the National Association of Criminal Defense Lawyers in support of defendant-appellees urging affirmance. Argument: Defendants were unjustly prosecuted and convicted for allegedly violating work practice standards promulgated under the Clean Air Act regarding removal and disposal of asbestos-containing material found in multi-layer pipe wrap, but no evidence was presented that a single asbestos fiber was released into the environment. Amici urge the court to affirm the district court’s order granting a new trial. Authors: Daniel J. Popeo, Paul D. Kamenar and Richard A. Samp, Washington Legal Foundation, Washington, DC.

United States v. Svete, 11th Cir., No. 05-13809, on rehearing en banc. Mail fraud—Standard of proof. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Appellants on rehearing en banc. Argument: Requiring proof beyond a reasonable doubt that a defendant created a scheme or artifice to defraud “a person of ordinary prudence and comprehension” demarcates the boundary between conduct that is merely unethical and conduct that is unlawful and worthy of criminal prosecution. Authors: Paul N. Monnin, DLA Piper US LLP, Atlanta, GA and Donald F. Samuel, Garland Samuel & Loeb PC, Atlanta, GA.

United States v. Tomko, 3rd Cir., No. 05-4997, on reh’g 498 F.3d 157, brief filed 10/1/08. Sentencing—White collar crime—Federal Sentencing Guidelines—Probation. Amicus curiae brief of the National Association of Criminal Defense Lawyer and Federal Public and Community Defenders of the Third Circuit in support of appellee on rehearing en banc.Argument: District court’s sentence of probation, home confinement and alcohol treatment was appropriate in this tax evasion case. The brief addresses in detail the failure of the Sentencing Commission to comply with statutory mandates relative to probation, as applied in particular to tax and other white collar cases, concluding that under the Supreme Court's recent decisions in Gall and Kimbrough judges should be especially free to reject the guidelines' excessive reliance on imprisonment and instead to grant a great deal more probationary sentences than has been the case in the last 20 years. Numerous authors.

Van de Kamp v. Goldstein, U.S. Sup. Ct., No. 07-854, decision below 481 F.3d 1170 (9th Cir. 2007). Prosecutorial immunity—Brady/Giglio violations—Unreliable informants. Amicus curiae brief of the American Civil Liberties Union, ACLU of Southern California, ACLU of Northern California and the National Association of Criminal Defense Lawyers in support of Respondent. Argument: An office-wide practice of not vetting false jailhouse informant testimony was an administrative decision sufficiently attenuated from line prosecutors’ litigation duties to preclude absolute immunity from civil suit. Authors: M. Allen Hopper, et al., American Civil Liberties Union Foundation, Santa Cruz, CA.

Vermont v. Brillon¸ U.S. Sup. Ct., No. 08-88, case below 955 A.2d 1108 (Vt. 2008), brief filed 12/24/08. Speedy trial—Court appointed counsel—Delay charged to state. Amicus curiae brief of the American Civil Liberties Union, ACLU of Vermont and the National Association of Criminal Defense Lawyers. Argument: The decision of the Vermont Supreme Court should be affirmed. State and federal case law support charging the state with unreasonable delay of trial (Barker v. Wingo) when the defendant is forced to terminate his procrastinating public defenders more than once in a three year period. Authors: Anthony J. Franze and Joel D. Rohlf, Arnold & Porter, Washington, DC.

Waddington v. Sarausad, U.S. Sup. Ct., No. 07-772, opinion below 479 F.3d 671, brief filed 8/27/08. Jury instructions—Murder—Mens rea. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Argument: Jury instructions may be a “formally correct” statement of state law and still be so ambiguous as to be misleading; court below correctly determined that the instructions deprived the defendant of his constitutional right to have a jury determine every element of the charged offense of aiding and abetting murder. Authors: Craig D. Singer and Amer S. Ahmed, Williams & Connolly LLP, Washington, DC.

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