Amicus Briefs ~ 2007

Begay v. United States, U.S. Sup. Ct., No. 06-11543, opinion below, 470 F.3d 964 (10th Cir. 2006), cert. granted, 9/25/07, brief filed 11/13/07. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petitioner. QUESTION PRESENTED: Is felony driving while intoxicated a “violent felony” for purposes of the Armed Career Criminal Act? Author: Marlo P. Cadeddu, Dallas, TX. On brief, Peter Goldberger, Ardmore, PA and Prof. Barbara Bergman, Univ. of New Mexico School of Law, Albuquerque.

Boulware v. United States, U.S. Sup. Ct., No. 06-1509, opinion below 470 F.3d 931 (9th Cir. 2006), brief filed 11/13/07. Criminal tax prosecution—Corporations—Shareholders. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: Diversion of corporate funds to a shareholder of a corporation without earnings and profits automatically qualifies as a non-taxable return of capital up to the shareholder’s stock basis, even if the diversion was originally not labeled as a return of capital. Author: John L. Pollok, New York, NY.

Boumediene v. Bush, U.S. Sup. Ct., Nos. 06-1195 & 06-1196. Habea corpus--Military Commission Act. Amicus curiae brief of the Coaltion of Non-Governmental Organizations, including the National Association of Criminal Defense Lawyers, arguing that the habeas-stripping provisions of the Military Commissions Act of 2006, Pub.L. No. 109-366, violate the Suspension Clause of the U.S. Constitution. Authors: Jonathan S. Franklin, et al., Fulbright & Jaworsky LLP, Washington, DC.

Cuellar v. United States, U.S. Sup. Ct., No. 06-1456, cert. granted, 10/15/07, Brief of the National Association of Criminal Defense Lawyers in support of certiorari. QUESTION PRESENTED: Whether merely hiding funds with no design to create the appearance of legitimate wealth is sufficient to support a money laundering conviction. Brief argues that the money laundering statute, 18 U.S.C. §1956, is subject to expansive interpretations that encourage broad, unintended and unfair applications of the statute. Authors: Craig D. Singer, John E. Clabby, David A. Taylor, Williams and Connolly LLP, Washington, D.C.

Gall v. United States & Kimbrough v.United States, U.S. Sup. Ct., Nos. 06-7949 etc., filed 07/26/07. Federal Sentencing Guidelines. Amicus curiae brief of the National Association of Criminal Defense lawyers in support of (1) It is not consistent with United States v. Booker, 543 U.S. 220 (2005), and Rita v. United States, 551 U.S. __ (2007), for an appellate court to require that a sentence which lies outside the Guidelines range be justified by “extraordinary circumstances,” and (2) Sentencing judges must consider whether the Guideline ranges applicable to a given category of offenses adequately represent a sound balancing of all the Section 3553 factors pertinent to selecting the sentence for a particular case or group of cases within that category. Authors: Miguel A. Estrada and David Debold, Gibson, Dunn & Crutcher LLP, Washington, DC.

Gonzalez v. United States, U.S. Sup. Ct., No. 06-11612, opinion below 483 F.3d 390 (5th Cir. 2007), brief filed 11/09/07. Right to trial before Art. III judge. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of petitioner. Argument: The Federal Magistrates Act requires that a criminal defendant personally give knowing, voluntary consent to the delegation of felony trial voir dire to a U.S. Magistrate Judge. Author: Joel B. Rudin, New York, NY.

Hrasky v. United States, U.S. Sup. Ct., No. 06-827, lower court opinion, 453 F.3d 1099 (8th Cir. 2006), brief filed 3/19/07. Search and seizure – warrantless vehicle searches incident to arrest. NACDL amicus brief in support of the petition for certiorari. Questions presented: (1) Whether law enforcement officers’ exploratory search of the interior of petitioner’s vehicle, after arresting him beyond “reaching distance” from the vehicle, violated the Fourth Amendment’s search-incident-to-arrest doctrine; (2) whether the Court – consistent with the suggestions of several of its Justices – should reconsider its holding in New York v. Belton, 453 U.S. 454 (1981), at least to the extent it entitles officers to conduct exploratory searches of vehicles’ interiors incident to arrests for nothing more than traffic violations. Brief argues, inter alia, that Belton provides opportunity and motive for police officers to engage in pretextual traffic arrests to conduct exploratory automobile searches. Authors: Noah A. Levine, Tori T. Kim and Bassina Farbenblum, Wilmer Cutler Pickering Hael and Dorr LLP, New York, NY.

Kennedy v. Louisiana, U.S. Sup. Ct., No. 07-343, argument April 16, 2008. Death Penalty-Rape-Child Witnesses. NACDL amicus curiae brief in support of certiorari. Brief argues that since convictions for child rape often rest solely on the testimony of children, and that research explains that child testimony is frequently unreliable, the risk of innocent persons receiving the death penalty is unacceptable; the Court has consistently held that the Eighth Amendment demands heightened reliability in capital cases. Authors: Jonathan G. Cedarbaum, Michael J. Gottlieb and Joshua M. Salzman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C. Click Here for NACDL's Merits Brief.

Scott v. Harris, No. 05-1631, lower court opinion, 433 F.3d 807 (11th Cir. 2005); decided April 20, 2007. NACDL amicus brief in support of respondent, arguing that police officer violated the plaintiff's Fourth Amendment right to be free from unreasonable seizure when office intentionally collided with plaintiff's vehicle during high speed chase. Questions presented: (1) Whether a law enforcement officer’s conduct is “objectively reasonable” under the Fourth Amendment when the officer makes a split-second decision to terminate a high-speed pursuit by bumping the fleeing suspect’s vehicle with his push bumper, because the suspect had demonstrated that he would continue to drive in a reckless and dangerous manner that put the lives of innocent persons at serious risk of death. (2) Whether, at the time of the incident, the law was “clearly established” when neither this Court nor any circuit court, including the Eleventh Circuit, had ruled the Fourth Amendment is violated when a law enforcement officer uses deadly force to protect the lives of innocent persons from the risk of dangerous and reckless vehicular flight. Authors: Jonathan D. Hacker, et al., O’Melveny & Meyers, Washington, DC.

United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc). Defenses--Jury Instructions--Deliberate Ignorance. NACDL amicus curiae brief in support of appellant. Question: Whether the statutory requirement of the Controlled Substances Act, 21 U.S.C. § 841(a)(1), that criminalizes the act of "knowingly ... possess[ing] with intent to manufacture, distribute, or dispense, a controlled substance" can be extended to a defendant's "deliberate ignorance" of possessing drugs. Argument: Knowledge, in a criminal statute, is actual knowledge, not what one ought to have known or could have learned. Authors: Kenneth W. Starr, et al. Kirkland & Ellis LLP, Washington, DC.

United States v. Rodriquez, U.S. Sup. Ct., No. 06-1646, opinion below 464 F.3d 1072 (9th Cir. 2006), brief filed 12/10/07. Armed Career Criminal Act—Prior state offenses. NACDL amicus curiae brief in support of respondent. Argument: The ACCA’s focus on the particular “offense” for which a defendant was previously convicted dictates that the top of the state’s standard sentencing range for that offense is the statutory maximum for that offense. Author: Jeffrey L. Fisher, Stanford, CA.

United States v. Santos, U.S. Sup.Ct., No. 06-1005, filed 8/22/07. Arg. 10/03/07. Gambling, Money Laundering. Arguing, inter alia, that the 7th Circuit Court of Appeals’ interpretation of the term “proceeds” as limited to profits is consistent with congressional intent and necessary to prevent defendants from inappropriately being punished twice (and more severely) for the same conduct. Authors: Jeffrey T. Green and Kevin M. Henry, Sidley Austin LLP, Washington, DC.

United States v. W.R. Grace, U.S. Ct. App. 9th Circuit, No. 06-30472, amicus curiae brief in support of defendant-appellees’ petition for rehearing en banc. Rule of Lenity--Refiling of dismissed defective indictment after lapse of statute of limitations. Argument: The panel decision erroneously failed to apply the rule of lenity in its ruling that the Clean Air Act’s ban on releasing hazardous air pollutants are defined more broadly in the criminal context than in the civil context; even if there were some merit in the panel’s ruling, the Act is ambiguous in that regard, which triggers the rule of lenity. The panel decision is also in error in holding that the government may cure an untimely indictment, originally dismissed for failure to state an overt act within the statute of limitations, by filing a superseding indictment within six months of dismissal. Authors: Kristina Silja Bennard and David W. Marshall, Davis Wright Tremaine LLP, Seattle, WA.

Uttecht v. Brown, No. 06-413, Lower court opinion, 451 F.3d 946 (9th Cir. 2006), cert. granted, January 12, 2007, brief filed March 30, 2007, oral argument April 17, 2007. Death Penalty - Jury Selection. NACDL amicus curiae brief in support of Respondent. The issue involves whether the Ninth Circuit properly granted habeas relief in a capital case on the ground that the state trial court improperly ruled that a juror who expressed misgivings about the death penalty but repeatedly said he could follow the law was not “death qualified.” Brief argues that juror's concern whether lack of "future dangerousness" mitigates against the death penalty comports with Washington state law, and the juror was erroneously excused. Authors: Kevin Russell of Howe & Russell (and the Stanford Supreme Court Litigation Clinic) and Susan Rozelle, Capital University Law School.

Virginia v. Moore, U.S. Sup. Ct., No. 06-1082, opinion below 636 S.E.2d 395 (Va. 2006), brief filed 12/07/07. Search and seizure—Warrantless misdemeanor arrest. NACDL amicus curiae brief in support of respondent. Argument: At common law, an arrest falling outside the scope of “arrestable” offenses can never be justified and is always unreasonable; neither probable cause, nor good faith, nor even witnessing the alleged offense can make the arrest reasonable under the Fourth Amendment. E. Joshua Rosenkranz, Heller Ehrman LLP, New York, NY and Warrington S. Parker, III, Heller Ehrman LLP, San Francisco, CA.

Watson v. United StatesNo. 06-571. Lower court opinion, 191 Fed. Appx. 326, 2006 WL 2061900 (5th Cir. 2006), cert. granted, 2/26/07. NACDL amicus brief filed 5/4/07; Argued 10/09/07. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Question Presented: 18 U.S.C. § 924(c)(1) criminalizes the “use” of a firearm during and in relation to a drug trafficking offense and imposes a mandatory consecutive sentence of at least five years’ imprisonment. In Bailey v. United States, 516 U.S. 137 (1995), this Court held that “use” of a firearm under § 924(c) means “active employment.” Id. at 144. The question presented in this case is: Whether the mere receipt of an unloaded firearm as payment for drugs constitutes “use” of the firearm during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. § 924(c)(1)(A) and the Supreme Court’s decision in Bailey.Authors: Jeffrey Green, Sidley Austin, L.L.P., and the Northwestern Law School Supreme Court Clinic.

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