Amicus Briefs ~ 2013

Arizona v. Hon. Jane A. Butler and Tyler B., Supreme Court of Arizona, No. CV-12-0402-PR, case below 231 Ariz. 42, 290 P.3d 435 (Ariz.App. Div. 2 Oct. 31, 2012) (No. 2 CA-SA 2012-0065) , brief filed 3/15/13. Juvenile---Fourth Amendment---Blood Draw---Consent---School. Amici curiae brief of the Juvenile Law Center, the National Association of Criminal Defense Lawyers, et al. (totaling 41 groups and individuals set forth in Appendix A to the brief) in support of real party in interest Tyler B. Argument: Age and other circumstances particular to youth are crucial factors in assessing the voluntariness of a consent to a search under the Fourth Amendment. Where the search is conducted in the school setting, age is even more relevant to the voluntariness determination. Authors: Lourdes M Rosado, Juvenile Law Center, Philadelphia, PA; Jeanne Shirly, Tuscon, AZ.

Behanna v. United States, U.S. Sup. Ct., No. 12-802, decision below 71 M.J. 228 (U.S. Armed Forces Jul 05, 2012), brief filed 2/27/13. Collateral Review---Direct Appeal—Military Conviction---Court of Appeals for the Armed Forces (CAAF)---Military Justice Act---Burns---Self-Defense in Combat Zone. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner's petition for writ of certiorari. Argument: The Supreme Court should grant the petition for writ of certiorari. Congress and this Court have increasingly preferred collateral review, rather than direct appeals, for supervising civilian criminal convictions. Post-conviction review of military convictions has followed the opposite pattern. In the military context, collateral review of criminal convictions is severely limited to whether the military court gave "full and fair consideration" to defendant's constitutional claims. And unlike civilian criminal convictions, Congress has explicitly indicated its desire for the Court to exercise a more aggressive supervisory role over military convictions. This case is appropriate candidate for such supervision. Authors: Lindsay C. Harrison, Jenner & Block LLP, Washington, DC; Stephen Vladeck, Washington, DC; Jeffrey T. Green, Washington, DC.

Burrage v. United States, U.S. Sup. Ct., No. 12-7515, decision below 687 F.3d 1015 (8th Cir. 2012), brief filed 7/26/13. Causal Element of a Federal Criminal Statute---“But-for” Cause---Proximate Cause---21 U.S.C. § 841—Strict Liability---Rule of Lenity. Amicus curiae brief of the National Association of Criminal Defense Lawyers in Support of Petitioner and Urging Reversal. Questions Presented: (1) Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement, and (2) Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed "contributed to" death by "mixed drug intoxication," but was not the independent cause of death of a person. Argument: This Court has repeatedly interpreted general causal terms in civil statutes to require both actual cause and proximate cause. The rule of lenity requires doubts about “results from” to be resolved in defendant’s favor. Authors: John D. Cline, Law Office of John D. Cline, San Francisco, CA; Jonathan D. Hacker, Washington, DC.

Burt v. Titlow, U.S. Sup. Ct., No. 12-414, decision below 680 F.3d 577 (6th Cir. 2012), brief filed 7/24/13. AEDPA---Ineffective Assistance—Sixth Amendment---Pleas---Convicted Defendant’s Testimony re Plea. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent. Argument: The proposed “stated-belief-in-innocence” exception on which the state’s argument rests would be inconsistent with the role of counsel in our legal system, and with this Court’s decisions clearly establishing an attorney’s Sixth Amendment duty to provide effective assistance at the plea stage. Strickland allows courts to find a reasonable probability that a defendant would have pleaded guilty but for deficient counsel when either: (a) her testimony to that effect is bolstered by objective corroborating evidence; or (b) her testimony is inherently credible. Authors: David Debold, Gibson, Dunn & Crutcher LLP, Washington, DC; Akiva Shapiro, Seth Rokosky and Sarah Kushner, Gibson, Dunn & Crutcher LLP, New York, New York; David M. Porter, Sacramento, CA.

California v. Gutierrez, Supreme Court of California, Case No. S206365, cases below Court of Appeal No. B227606 and Ventura County Superior Court No. 2008011529, brief filed 9/18/13. Miller---Graham---Sentencing---LWOP---Juvenile Justice---Eighth Amendment. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al.as amici curiae on Behalf of Appellant (full list of amici in appendix to attached brief). Argument: Miller reaffirms the U.S. Supreme Court’s recognition that children are fundamentally different from adults and categorically less deserving of the harshest forms of punishments. California Penal Code § 190.5(b) is unconstitutional because it presumes that life without parole is the appropriate sentence for juvenile offenders. California’s presumptive juvenile life without parole statute contravenes Miller’s requirement of individual sentencing. California’s presumptive juvenile life without parole statute contravenes Miller’s requirement that juvenile life without parole sentences be uncommon. Absent a determination that appellant is among the ‘uncommon’ juveniles for whom a life without parole sentence is justified, his sentence must provide a meaningful opportunity for release. Authors: Jessica R. Feierman, Juvenile Law Center, Philadelphia, PA.

Carpenter v. United States, U.S. Sup. Ct., No. 13-291, decision below (unreported) Order of the U.S. Court of Appeals for the First Circuit, United States v. Carpenter, Nos. 11-2131, -2133 (1st Cir. May 3, 2013), brief filed 10/7/13. Double Jeopardy---Richardson---Yeager---Collateral Order Doctrine. Brief of the National Association of Criminal Defense Lawyers as amicus curiae in Support of Petitioner (on Petition for a Writ of Certiorari). Question Presented: Whether the prosecution, consistent with the protections of the Double Jeopardy Clause, can effectively foreclose the termination of “original jeopardy” by obtaining a guilty verdict through advancing improper arguments and, once a new trial is granted, retry the accused before he can obtain appellate review of the sufficiency of the evidence at the initial trial. Argument: Richardson does not apply when the jury reaches a verdict after the prosecution had a full opportunity to present its case. Yeager confirms that Richardson should not be applied categorically. Rote extension of Richardson offends the original understanding of the collateral order doctrine. Authors: Jeffrey T. Green and Emily C. Watkins, Sidley Austin LLP, Washington, DC; Jonathan Hacker, Washington, DC; Sarah O’Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL.

Commonwealth v. Moody, No. SJC-11277 (Supreme Judicial Court of the Commonwealth of Mass.), brief filed 3/18/13, on appeal from the judgment of the Berkshire Superior Court. “Wire Communications”---Interception of Cellular Calls---Interception of Text Messages---Wiretap Warrants---Massachusetts Wiretap Act---Privacy Act of 1986. Amicus curiae brief of Jorge Areiza, Hector Dejesus Puerta, Alejandra Gomez, Darney Gomez-Mesa, the Massachusetts Association of Criminal Defense Lawyers, and the National Association of Criminal Defense Lawyers. Question Presented: Whether G.L. Ch. 272 § 99 authorizes a Superior Court judge to issue a warrant permitting state law enforcement to intercept cellular calls and/or text messages. Argument: Cellular phone communications and text messages are not ‘wire communications’ under G.L. c. 272, § 99. Even if the language of the Massachusetts Wiretap Act covers cellular phone communications, Massachusetts state courts have no authority to issue wiretap warrants for such communications because the legislature did not update the statute as mandated by Congress. Authors: Veronica J. White and Benjamin Leatherman of White & Associates, P.C. in Boston, MA; Peter Ettenberg of Gould & Ettenberg, P.C. in Worcester, MA; Frank Camera of the Law Office of Frank Camera in Fall River, MA; Peter Clifford of the Law Office of Peter Clifford in Worcester, MA; Max Stern on behalf of the Massachusetts Association of Criminal Defense Lawyers; and Michael J. Iacopino on behalf of the National Association of Criminal Defense Lawyers.

Commonwealth of Massachusetts v. Brown, Supreme Judicial Court of the Commonwealth of Massachusetts, Case No. SJC-11454, on reservation and report by the single justice of the Commonwealth’s G.L.c. 211, § 3 petition, case below No. 09-00963 (Middlesex Superior Court, Kimberly S. Budd, J.), brief filed 8/16/13. Miller---Graham---Sentencing---Mandatory Life Without Parole---Mandatory Life With Parole---Juvenile Justice---Eighth Amendment. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as Amici Curiae on Behalf of Appellee (full list of amici in appendix to attached brief). Argument: Massachusetts’s mandatory life without parole sentencing scheme for juveniles convicted of first degree murder is unconstitutional under the United States and Massachusetts Constitutions. Marquise Brown should be sentenced based on the most severe lesser included offense of manslaughter. Mandatory life with parole sentences contravene Miller  and Graham. Authors: Marsha L. Levick, Emily C. Keller, Lauren A. Fine, Juvenile Law Center, Philadelphia, PA.

Commonwealth of Massachusetts v. Gelfgatt, Supreme Judicial Court of the Commonwealth of Massachusetts, Case No. SJC-11358, on report of a question of law by the superior court for Suffolk County pursuant to Mass. R. Crim. P. 34, brief filed 8/23/13. Compelled Password---Encrypted Hardware---Fifth Amendment---Self-incrimination---Fourth Amendment---Articles Twelve and Fourteen of the Massachusetts Declaration of Rights. Brief of Amicus Curiae filed by Daniel K. Gelb, Esquire and Daniel B. Garrie, Esquire to which National Association of Criminal Defense Lawyers joins in support of defendant-appellant. Issue Presented: Whether compelling a criminal defendant to provide a password for a piece of encrypted computer hardware seized by the Commonwealth violates one’s right against self-incrimination provided by the Fifth Amendment to the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights. Argument: Compelling a password production to the Commonwealth is a violation of defendant’s right against self-incrimination pursuant to the Fifth Amendment of the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. Society has adopted an objective expectation of privacy in computer passwords and encrypted data protected by the Fourth Amendment of the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. Authors: Daniel K. Gelb, Gelb & Gelb LLP, Boston MA; Daniel B. Garrie, Law & Forensics, Seattle, WA.

Falcon v. Florida, Supreme Court of Florida, Case No. SC13-865, case below, 111 So. 3d 973 (Fla. App. 1 Dist., Apr. 30, 2013), brief filed 7/29/13. Miller---Jackson---Sentencing---LWOP---Juvenile Justice---Eighth Amendment---Retroactivity. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici Curiae on Behalf of Petitioners (full list of amici in appendix to attached brief). Argument: Miller reaffirms the U.S. Supreme Court’s recognition that children are fundamentally different from adults and categorically less deserving of the harshest forms of punishments. Miller applies retroactively . Authors: Marsha L. Levick, Juvenile Law Center, Philadelphia, PA; George E. Schulz, Jr. Holland & Knight, Jacksonville, FL.

Fernandez v. California, U.S. Sup. Ct., No. 12-7822, decision below 208 Cal.App.4th 100, 145 Cal.Rptr.3d 51 (App. 2d Dist. 2012), brief filed 8/7/13. Fourth Amendment---Georgia v. Randolph---Co-Tenants---Warrant Requirement. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Question Presented: Once a co-tenant has expressly told police officers that they may not enter his home, does the Fourth Amendment allow the officers to obtain valid consent to do so by removing the objecting tenant from the scene against his will and then seeking permission from the other tenant shortly thereafter? Argument: Shared social understandings reflected in property law demand that officers respect an individual’s pending assertion of his right to exclude outsiders from his home. Respect for the sanctity of the home and self-determination bar warrantless entry following the involuntary removal of an objecting resident. Property law reflects the deeply ingrained social expectation that an outsider cannot enter a home over a resident’s clear objection by obtaining another’s consent. There is no legitimate law enforcement need to circumvent Randolph by arresting an objecting occupant on his doorstep and seeking consent from other occupants. No legitimate law enforcement need supports reliance on disputed consent to search an objecting individual’s home. The warrant requirement imposes no unreasonable burden. The balance of competing interests strongly favors adhering to the warrant requirement. Authors: Jeffrey A. Lamken and Lucas M. Walker, MoloLamken LLP, Washington, DC; David P. Jang and Justin M. Ellis, MoloLamken LLP, New York, NY; David M. Porter, Sacramento, CA.

First Unitarian Church of Los Angeles, et al. v. National Security Agency, et al. U.S. Dist. Ct., N.D. Cal., No. 3:13-cv-03287-JSW, brief filed 11/18/13. Mass Indiscriminate Seizure of Telephony Records---First Amendment---Right of Association---Sixth Amendment---Right to Counsel---Attorney-Client Privilege---Work Product Doctrine---Confidentiality---FISA---Minimization Requirements. Brief Amicus curiae of the National Association of Criminal Defense Lawyers. Argument: Wholesale collection of telephony records by the government deprives clients of their right to counsel by vitiating the confidentiality of attorney-client communications and attorney files. The strong protections afforded the confidentiality of legal work include the attorney-client privilege, work product doctrine and the duty of confidentiality. Bulk seizure violates confidentiality rules and impairs the right to a defense. The government’s current practices eviscerate FISA’s relevance and minimization requirements. Authors: Ragesh K. Tangri and Michael H. Page, Durie Tangri, San Francisco, CA; David Porter, Sacramento, CA (Of Counsel).

Gathers and Mitchell v. United States, D.C. Court of Appeals, Nos. 09-CO-422, 11-CO-1676 & 12-CO-1411; Nos. 11-CO-1677 & 12-CO-1412, appeal from the Superior Court of the District of Columbia, Criminal Division (Criminal Nos. 1993 FEL 10270 & 1993 FEL 11175), brief filed 4/30/13. False Testimony—Prosecutor’s Obligations---Due Process—Waiver. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in support of appellants and urging reversal. Questions Presented: May the Due Process Clause’s prohibition on the government’s use of false testimony to procure a conviction be waived by a defendant? Even if the Due Process Clause’s protection in this regard may be waived, did the trial court apply the wrong standard to determine that defense counsel knowingly waived that protection? Argument: The obligations to not use false testimony and to correct any such false testimony belongs to the prosecutor and cannot be waived. Even if the Due Process protection against false testimony may be waived, the indispensable function it serves requires that the waiver standard be substantially more demanding than the standard the trial court utilized below. The Superior Court misapplied this court’s holding in Bruce. Trial counsel did not know that Det. Had testified falsely. There was no tactical decision to permit the false testimony to go unchallenged. Authors: Paul F. Enzinna and James P. Bair of Brown Rudnick LLP in Washington, DC.

Heath v. United States, U.S. Sup. Ct., No. 12-11003, decision below 26 A.3d 266 (D.C. July 21, 2011), brief filed 7/26/13. Sixth Amendment---Due Process Clause of the Fourteenth Amendment—Right to Present Favorable Evidence. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: The question presented is of great importance to criminal defendants. The ability to present evidence in one’s defense is a fundamental right accorded to criminal defendants by the Constitution. It is not merely a means of ensuring that trials are generally fair; rather, it stands alongside the right to confront witnesses and the right to counsel of one’s choosing as essential elements of a fair trial, the violation of which is necessarily unconstitutional. The defense’s ability to present favorable evidence is critical to our adversarial system.  The question presented by this petition arises in a diverse range of circumstances during criminal proceedings and is frequently recurring, warranting the courts attention. Authors: Jonathan D. Hacker, Loren AliKhan, and Joanna Nairn, O’Melveny & Myers LLP, Washington , DC.

Heien v. North Carolina,  U.S. Sup. Ct., No. 13-604, decision below 366 N.C. 271, 737 S.E.2d 351 (N.C. 2012), brief filed 12/18/13. Fourth Amendment---Reasonable Suspicion—Investigatory Stops---Mistake of Law. Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: Certiorari is warranted here based upon the entrenched, irreconcilable division among the federal courts of appeals and state courts of last resort on the question of whether a law enforcement officer’s reasonable mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify an investigatory stop. The North Carolina Supreme Court’s rule is flatly inconsistent with the principles underlying this Court’s Fourth Amendment jurisprudence. It has always been the province of the courts, not law enforcement, to determine and apply the law governing an investigatory stop. There is no basis under the Fourth Amendment for officers to conduct seizures based on nothing more than suspicion of conduct that violates no law. Second, the North Carolina Supreme Court’s rule, if left undisturbed, will have substantial negative effects, including condoning a broad swath of searches unrelated to suspicion of any violation of any actual law, and reducing or removing important incentives for police officers to understand thoroughly the laws they are charged with enforcing. Authors: Noah A. Levine, Adam P. Romero, Thaila K. Sundaresan, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; Jeffrey T. Green, Washington, DC.

Hummel v. United States., U.S. Dist. Ct., M.D. Fla., No. 8:12-MJ-1457 TGW, brief filed 1/11/13. Due Process---Controlled Substances Act---Controlled Substance Analogues---Void for Vagueness---Fair Warning---Prosecutorial Discretion---Seizure of Funds. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of movant. Argument: As applied to the substances at issue in this case – UR-144 and XLR-11 – 21 U.S.C. §813 and its accompanying definitional statute 21 U.S.C. §802(32)(A)(i) are unconstitutionally vague, and void for that reason. Authors: David Oscar Markus, Markus & Markus PLLC in Miami, FL; John D. Cline, Law Office of John D. Cline in San Francisco, CA.

Kaley v. United States, U.S. Sup. Ct., No. 12-464, decision below 677 F.3d 1316 (11th Cir. 2011), brief filed 7/5/13. Forfeiture—Due Process—Right to Counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioners. Question presented: When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?  Argument: A seizure of allegedly forfeitable assets needed to retain counsel is constitutionally unreasonable without more evidential support than ordinary seizures require. The right to counsel of choice is of a nature with the rights to speak, associate, and petition the government. The retention or appointment of alternate counsel does not mitigate the threatened constitutional violations. Recognizing that seizures of assets needed to retain counsel pose the same dangers as other prior restraints on protected speech resolves the issues dividing the courts of appeals. Author: University of Miami School of Law Professor Ricardo J. Bascuas, Coral Gables, FL.

Kansas v. Cheever, U.S. Sup. Ct., No. 12-609, decision below 295 Kan. 229, 284 P.3d 1007 (2012), brief filed 7/29/13. Fifth Amendment---Mental-State (Mens Rea) Defense—Waiver---Voluntary Intoxication Defense. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent. Argument: Asserting a valid mental-state defense does not waive Fifth Amendment Protections. The State’s per se waiver rule is contrary to the zealous protection of a defendant’s Fifth Amendment privilege. The State’s per se  waiver rule creates an intolerable choice between constitutional rights. The State’s per se waiver rule is unnecessary. Presenting evidence of voluntary intoxication does not waive Fifth Amendment protections. Kansas follow a majority of states in allowing the voluntary intoxication defense. Authors: Jeffrey T. Green and Jeffrey S. Beelaert, Sidley Austin LLP, Washington, DC; Barbara E. Bergman, Albuquerque, NM.

Maryland v. King, U.S. Sup. Ct., No. 12-207, decision below 425 Md. 550, 42 A.3d 549 (Md. Apr. 24, 2012), brief filed 2/1/13. DNA Sample---Arrestee—Fourth Amendment---Searches---Balance of Interests. Amicus curiae brief of the National Association of Criminal Defense Lawyers supporting Respondent. Question presented: Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes? Argument: A state’s search for DNA samples from an arrestee’s body without a warrant or any basis for suspecting the DNA is connected to a crime is unreasonable, regardless of the balance of interests. Physically intrusive searches like the collection of DNA from inside an arrestee’s body require a warrant and probable cause. The balance of interests alone does no determine reasonableness even for less intrusive bodily searches. The state’s collection of DNA from arrestees falls outside the limited circumstances permitting warrantless, suspicionless searches. Accordingly, the judgment of the Maryland Court of Appeals should be affirmed. Authors: Lisa Blatt, Anthony J. Franze and Sarah M. Harris, Arnold & Porter LLP, Washington, DC; Jonathan Hacker, Washington, DC.

Metrish v. Lancaster, U.S. Sup. Ct., No. 12-547, decision below 683 F. 3d 740 (6th Cir. 2012), brief filed 4/10/13. Due Process—Retroactivity---Reliance on Present State of Substantive Law---Mens Rea Defenses---Habeas. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Questions presented: (i) Whether the Michigan Supreme Court's recognition that a state statute abolished the long-maligned diminished-capacity defense was an "unexpected and indefensible" change in a common-law doctrine of criminal law under this Court's retroactivity jurisprudence. See Rogers v. Tennessee, 532 U.S. 451 (2001), and (ii) Whether the Michigan Court of Appeals' retroactive application of the Michigan Supreme Court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" so as to justify habeas relief. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). Argument: Prosecutors and defendants must be able to rely on the present state of substantive law in their decision-making processes. Authors: Jeffrey T. Green, Christopher A. Bates, of Sidley Austin LLP, Washington, DC; Sarah O'Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL; and David Porter, Sacramento, CA.

Navarette v. California, U.S. Sup. Ct., No. 12-9490, decision below People v. Navarette, No. A132353, 2012 BL 268067 (Cal. App. 1st Dist. Oct. 12, 2012), brief filed 11/21/13. Fourth Amendment---Terry v. Ohio—Reasonable Suspicion---Irregular Driving---Anonymous Tips. Brief of the National Association of Criminal Defense Lawyers and National Association of Federal Defenders as Amici Curiae in Support of Petitioners. Argument: The Fourth Amendment requires that police corroborate an anonymous tip that someone is driving irregularly before they stop the car. Uncorroborated anonymous tips lack the indicia of reliability necessary to establish reasonable suspicion. Because of the nature of road travel, uncorroborated, anonymous tips are especially unreliable. Anonymous tips cannot corroborate themselves. 911 technology cannot boost an anonymous tip’s reliability. This Court should not adopt an irregular driving exception to the Fourth Amendment. Empirical evidence and practical concerns militate strongly against such an exception. An irregular driving exception would increase the risk of police abuse. Authors: Daniel R. Ortiz, University of Virginia School of Law Supreme Court Litigation Clinic, Charlottesville, VA; Jeffrey L. Fisher, Stanford, CA; John P. Elwood, Vinson & Elkins LLP, Washington, DC; Sarah S. Gannett, Daniel Kaplan, David Lewis, Barbara Mandel, National Association of Federal Defenders, Philadelphia, PA.

Obama v. Faidel Hussein Saleh Hentif, D.C. Cir., No. 12-5314, brief filed 4/30/13. Notice of Appeal---Timeliness---Guantanamo—Detention—Habeas. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of appellant. Argument: Because Federal Rule of Appellate Procedure 4(a)(7) is not jurisdictional, it must be construed in favor of preserving a party’s right to appeal. Parties must have clear notice of the event that starts the clock running for filing a notice of appeal. Construing Federal Rule of Appellate Procedure 4(a)(7) as starting the time running for the filing of a notice of appeal before the decision appealed from is available to the appellant thwarts appellant’s ability to consult with his counsel and to make an informed decision whether to take an appeal. Authors: Laura G. Ferguson, Timothy O’Toole and Mia P. Haessly, Miller & Chevalier Chartered, Washington, DC.

Ohio v. Long, Case No. 2012-1410, Supreme Court of Ohio, case below 2012 WL 2550960 (Ohio App. 1 Dist. Jul. 3, 2012) (No. C-110160), brief filed 3/11/2013. Eighth Amendment—Juveniles—Miller—Sentencing---Life Without Parole (LWOP). Brief of amicus curiae National Association of Criminal Defense Lawyers in support of defendant-appellant. Argument: The Eighth Amendment to the U.S. Constitution requires that this case be remanded for individualized consideration of the ‘distinctive attributes of youth.’ The Supreme Court has held that children are constitutionally different from adults and cannot be sentenced to life without parole unless age is taken into account. The principles of Miller apply equally whether the LWOP sentence is mandated or imposed as a matter of discretion. Miller and the Supreme Court’s individualized sentencing cases require that the trial court actually consider and address the defendant’s youth. The record does not demonstrate that Eric Long’s age and attendant circumstances were considered in making the decision to sentence him to life without parole. This Court should, pursuant to Article I, Section 9 of the Ohio Constitution, declare a life without parole sentence unconstitutional for any juvenile offender. Authors: Candace Crouse, Pinales Stachler Young Burrell & Crouse Co. , LPA in Cincinnati, OH, on behalf of NACDL; Gia L. Cincone, Kilpatrick Townsend & Stockton LLP in San Francisco, CA, on behalf of NACDL.

People v. Owens, Colorado Supreme Court, Case no. 2013SA91, case below No. 06CR705 Arapahoe County District Court, Hon. Gerald Rafferty, District Judge, brief filed 7/19/13. Post-Conviction Discovery---Exculpatory Material---Effective Assistance of Counsel---Crim. P. 16 (Discovery Rule). Brief of Amici curiae National Association of Criminal Defense Lawyers and Colorado Criminal Defense Bar in Support of Petitioner Argument: Applying Crim. P. 16 in post-conviction proceedings ensures that post-conviction counsel can fully investigate the case and thereby render effective assistance of counsel. Applying Crim. P. 16 in post-conviction proceedings provides certainty, consistency, and efficiency. Authors: Blain D. Myhre, Blain Myhre LLC, Englewood, CO; Norman R. Mueller, Haddon, Morgan and Foreman, P.C., Denver, CO.

People v. Ray, Colorado Supreme Court, Case no. 2013SA94, case below No. 06CR697 Arapahoe County District Court, Hon. Gerald Rafferty, District Judge, brief filed 7/19/13. Post-Conviction Discovery---Exculpatory Material---Effective Assistance of Counsel---Crim. P. 16 (Discovery Rule). Brief of Amici curiae National Association of Criminal Defense Lawyers and Colorado Criminal Defense Bar in Support of Petitioner Argument: Applying Crim. P. 16 in post-conviction proceedings ensures that post-conviction counsel can fully investigate the case and thereby render effective assistance of counsel. Applying Crim. P. 16 in post-conviction proceedings provides certainty, consistency, and efficiency. Authors: Blain D. Myhre, Blain Myhre LLC, Englewood, CO; Norman R. Mueller, Haddon, Morgan and Foreman, P.C., Denver, CO.

People v. Todd  Johnson, New York Court of Appeals, APL-2013-00034, case below 99 A.D.3d 472, 952 N.Y.S.2d 38 (1st Dept. 2012), brief filed 12/27/2013. Fourth Amendment---Probable Cause—Arbitrary and Harassing Police Conduct---Disorderly Conduct---NY Penal Law § 240.20---Gang Activity. Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers in Support of Defendant-Appellant. Argument: The order of the Appellate Division, First Department should be reversed, Mr. Johnson’s motion to suppress should be granted, and the conviction should be reversed. There was no probable cause to arrest Todd Johnson. Mr. Johnson’s alleged gang membership is entitled to no weight when assessing probable cause. Prior gang problems at the location did not establish probable cause to arrest Mr. Johnson. Partial obstruction of a doorway cannot provide a basis for probable cause without evidence of public harm. Were the Court to uphold probable cause on these facts, the New York disorderly conduct statute would be unconstitutional. Authors: William C. Silverman, Greenberg Traurig LLP, New York, NY; Richard D. Willstatter, White Plains, NY; Marc Fernich, New York, NY.

Poventud v. City of New York, et al., 2nd Cir., Case No. 12-1011, rehearing en banc of 715 F.3d 57 (2nd Cir. (N.Y.) Apr. 19, 2013) (No. 12-1011-CV), case below 2012 WL 727802 (S.D.N.Y. Mar. 6, 2012) (No. 07 Civ. 3998 DAB), brief filed 7/3/13. § 1983---Heck favorable-termination rule---Brady------federal habeas relief. Brief of the National and New York State Associations of Criminal Defense Lawyers as Amici Curiae in support of plaintiff-appellant and reversal. Argument: The Court need not address the question whether Heck’s favorable-termination rule applies in cases like this one. The Heck favorable-termination rule does not apply to individuals, like Poventud, who could not have obtained federal habeas relief while in custody. Authors: Michael B. Kimberly, Charles A. Rothfeld, Paul W Hughes, Mayer Brown LLP, Washington DC; Richard D. Willstatter, White Plains, NY; Marc Fernich, New York, NY. 

Riley v. California, U.S. Sup. Ct., No. 13-132, decision below 2013 WL 475242 (Cal.App. 4 Dist. Feb. 8, 2013), unpublished/noncitable (Feb. 8, 2013), review denied (May 1, 2013), brief filed 8/30/13. Warrant Requirement---Search incident to Arrest Exception---Cell Phones---Smartphones—Fourth Amendment---First Amendment. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of Petitioner. Argument: The Supreme Court should grant the petition for writ of certiorari because the smartphone has assumed a unique role in modern society. The modern smartphone is a historically unique device with profound societal implications. Distributed computing and cloud data give mobile computing infinite capacity. Smartphone usage is now societally ubiquitous. This case presents the best vehicle for this Court’s analysis. The smartphone in this case, unlike the phone in Wurie, may possess First Amendment overtones affecting the Fourth Amendment analysis. Lower court divisions make this the right time for this Court to consider the issue. The nature and societal use of mobile data compels the result that the Fourth Amendment prohibits the warrantless search of the data of a cell phone incident to arrest. Authors: Bronson D. James, Beaverton, OR; Jeffrey T. Green, Washington, DC.

Ring v. United States, U.S. Sup. Ct., No. 12-1462, decision below 706 F.3d 460 (D.C. Cir. Jan. 25, 2013) (No. 11-3100), brief filed 7/17/13. Skilling—Bribery—Honest Services—Campaign Contributions. Brief of Amici curiae National Association of Criminal Defense Lawyers and Rutherford Institute in Support of Petition for Certiorari. Argument: The Court should grant certiorari to make clear that the honest services fraud statute requires the government to prove bribery. The honest services fraud statute is unconstitutionally vague unless limited to bribery, as Skilling requires. The standard applied in this case to prove honest services fraud is inconsistent with this Court’s rulings. The admission of evidence of legal and constitutionally protected campaign contributions in this case, in contravention of this Court’s rulings, will criminalize, and thereby chill, constitutionally protected conduct. Authors: Paul F. Enzinna and Evan N. Turgeon, Brown Rudnick LLP, Washington, DC.

Rosemond v. United States, U.S. Sup. Ct., No. 12-895, decision below 695 F.3d 1151 (10th Cir. 2012), brief filed 8/9/13. Aiding and Abetting---18 U.S.C. § 924 (c)—Actus Reus---Mens Rea. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: The Majority Rule is consistent with basic principles of the law of aiding and abetting. To prove aiding and abetting, the government must establish that the defendant participated in and sought to facilitate the commission of the principal’s crime. To prove aiding and abetting of a crime with a predicate-offense element, the government must establish that the defendant participated in and sought to facilitate the entire crime, not merely the predicate offense element. As applied to aiding and abetting a violation of 18 U.S.C. § 924 (c), these principles require the government to establish that the defendant participated in and sought to facilitate the use or carrying of the firearm during and in relation to the predicate offense. The Tenth Circuit’s rule eliminates both the actus reus and the mens rea requirements for aiding and abetting. Authors: Dan Himmelfarb and E. Brantley Webb, Mayer Brown LLP, Washington, DC; Barbara E. Bergman, Albuquerque, NM.

Salinas v. Texas, U.S. Sup. Ct., No. 12-246, decision below 369 S.W.3d 176 (Tex. Crim. App. 2012), brief filed 2/27/13. Fifth Amendment—Self-Incrimination Clause—Silence---Arrest—Miranda. Amicus curiae brief of the National Association of Criminal Defense Lawyers and Texas Criminal Defense Lawyers Association in support of Petitioner. Question presented: Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights. Argument: The Fifth Amendment applies prior to arrest. Using silence as evidence of guilt compels a suspect to incriminate himself. The right to remain silent protects the innocent. Use of pre-arrest silence allows for police abuse and skews the balance between the individual and the state. Authors: Craig D. Singer and Jared L. Hubbard, Williams & Connolly LLP, Washington, DC; Jeffrey T. Green, Sidley Austin LLP, Washington, DC; and Angela Moore, Rogers & Moore, PLLC, Boerne, Texas.

Sekhar v. United States, U.S. Sup. Ct., No. 12-357, decision below 683 F.3d 436 (2d Cir. 2012), brief filed 3/4/13. Hobbs Act—Statutory Interpretation---Rule of Lenity---Federalism. Amicus curiae brief of the National Association of Criminal Defense Lawyers and The Cato Institute in support of petitioner and urging reversal. Question presented: Whether the “recommendation” of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. § 1951(a) (the Hobbs Act) and 18 U.S.C. § 875(d). Argument: This Court has repeatedly applied the rule of lenity and other tools of statutory interpretation to limit prosecutors’ expansive applications of federal criminal statutes. This Court has required a clear statement from Congress before it will interpret a federal criminal statute to shift the federal-state balance in law enforcement. This case implicates the concerns that have caused this Court to interpret criminal statutes narrowly. Authors: John D. Cline and Jennifer M. French, Law Office of John D. Cline, San Francisco, CA; David M. Porter, Sacramento, CA; Timothy Lynch and Ilya Shapiro, The Cato Institute, Washington, DC.

United States v. Andrew "Weev" Auernheimer, 3rd Cir., Case No. 13-1816, case below 2012 WL 5389142 (D.N.J. Oct. 26, 2012) (Crim. No. 11-CR-470), brief filed 7/8/13. Computer Fraud and Abuse Act (CFAA)---Fifth Amendment---Due Process---Vagueness---Venue---Forum Shopping. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant. Argument: The Fifth Amendment’s due process clause requires a narrow interpretation of “without authorization” under the Computer Fraud and Abuse Act (CFAA). The District Court’s finding that venue was proper exceeds constitutional limitations and invites prosecutorial forum-shopping. Authors: Steven P. Ragland, Jennifer A. Huber, and Ben D. Rothstein, Keker & Van Nest LLP, San Francisco, CA; Jenny Carroll, Seton Hall University School of Law, Newark, NJ; Peter Goldberger, Ardmore, PA.  

United States v. Apel, U.S. Sup. Ct., No. 12-1038, decision below 676 F.3d 1202 (9th Cir. 2012), brief filed 10/28/13. 18 U.S.C. §1382---First Amendment---Peaceful Protest---‘Military Installation’---Overbreadth----Ambiguity---Rule of Lenity. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of Respondent. Argument: The government’s interpretation of 18 U.S.C. §1382 would render the statute unconstitutionally overbroad. A statute is facially overbroad when there is a realistic danger that it will significantly compromise speech rights. The government’s new interpretation of Section 1382 would (i) extend existing military regulations onto public roads, thereby infringing on a substantial amount of protected speech in a public forum and (ii) authorize base commanders to promulgate new military regulations that could further restrict protected speech on public roads. The government’s interpretation of 18 U.S.C. §1382 encourages arbitrary enforcement by the government, even against civilians who lack notice of how the law is applied. The government’s interpretation of 18 U.S.C. §1382 should be rejected under the rule of lenity. Authors: Michael V. Schafler, Albert Chang, and Puneet V. Kakkar, Caldwell Leslie & Proctor PC, Los Angeles, CA; Jeffrey Fisher, Stanford, CA.

United States v. Blewett and Blewitt, 6th Cir., Case Nos. 12-5226/5582, on government’s petition for rehearing en banc of __ F.3d __, 2013 WL 2121945 (6th Cir. (Ky.) May 17, 2013), brief filed 6/28/13. Eighth Amendment---Fair Sentencing Act---Crack Cocaine Sentencing---Retroactivity---Equal Protection. Brief Amicus Curiae, National Association of Criminal Defense Lawyers, in support of defendants-appellants. Argument: The Eighth Amendment prohibits excessive purposeless punishments now rejected in American laws and practices, as are pre-FSA crack sentences. Society’s standards reflected in modern legislation and practices demonstrate a national consensus against pre-FSA crack sentences. There is no evident legitimate penological justification for preventing only less serious, low quality crack offenders from being eligible for sentencing modification of pre-FSA sentences under 18 U.S.C. § 3582(c)(2). The sentence modification provisions of 18 U.S.C. § 3582(c)(2) and Guideline policy statements provide an effective and appropriate means to address and remedy the Eighth Amendment concerns in this case. For the foregoing reasons, the Eighth Amendment provides support for the Blewett panel ruling, and this Court need not and should not order rehearing en banc of that decision. Authors: Prof. Douglas A. Berman, Ohio State University Moritz College of Law, Columbus, OH; Candace C. Crouse, Pinales Stachler Young Burrell & Crouse Co., L.P.A., Cincinnati, OH. 

United States v. Castleman, U.S. Sup. Ct., No. 12-1371, decision below 695 F.3d 582 (6th Cir. 2012), brief filed 12/23/13. 18 U.S.C. §922(g)(9)---Misdemeanor Crime of Domestic Violence—Firearm---Statutory Construction---Federal Jurisdiction. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent. Argument: The Solicitor General’s expansive reading cannot be squared with the manifest intent of Congress. The Solicitor General’s argument proves too much, in that it would expand predicate crimes under §922(g)(9) beyond sensible boundary. The Solicitor General’s reading of 18 U.S.C. § 922(g)(9) is so broad that it would extend a life-long ban on gun possession to anyone convicted of a domestic count of offensive touching, no matter how slight, or of any intentional act that causes bodily injury (including minor scrapes, bruises, or even a stubbed toe). Mr. Castleman’s reading does not turn §922(g)(9) into a dead letter. There is no need to expand federal jurisdiction by making every conviction for “rude touching” or the like a predicate offense in order to honor Congress’s intent with respect to § 922(g)(9). The rule of lenity supports adopting Mr. Castleman’s reading of §922(g)(9). Authors: Jeffrey T. Green, Jeremy M. Bylund, Cormac A. Early, and Adam M. Susser, Sidley Austin LLP, Washington, DC; David Porter, Sacramento, CA.

United States v. Cooper, 3rd Cir., Case No. 13-2324, on Direct Appeal from Judgment of Conviction and Sentence on Conditional Guilty Plea in the U.S. District Court for the District of Delaware, brief filed 7/10/13. Separation of Powers---Delegation of Legislative Power---SORNA---Retroactivity. Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Suggesting Reversal. Argument: If the Court finds that the general duty to comply with the legislative purpose of SORNA provided the Attorney General an “intelligible principle” for deciding whether to make the law retroactive, then the Court must decide whether that standard satisfies the Constitutional non-delegation rule in a criminal context. Appellant’s case presents the constitutional delegation question in stark form, and because of the date of his prior convictions and the time period when he failed to register, the issue cannot be avoided on statutory grounds. The complete and standardless Congressional assignment to the Attorney General of authority to decide the extent of SORNA’s retroactivity violates any Constitutional standard limiting delegation of the legislative power. When the Legislature empowers an Executive agency, and in particular the Attorney General, to decide what conduct will constitute a crime, Congress must “meaningfully constrain” the exercise of that delegated authority. Authors: Jenny Carroll, Seton Hall University School of Law, Newark, NJ; Peter Goldberger, Ardmore, PA.

United States v. Davila, U.S. Sup. Ct., No. 12-167, decision below 664 F.3d 1355 (11th Cir. 2011), brief filed 3/22/13. Plea Bargaining—F.R.Cr.P. 11(C)—Judicial Participation. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Question presented: Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant's guilty plea, irrespective of whether the error prejudiced the defendant. Argument: Judicial participation in plea negotiations disrupts and undermines the plea bargain process. Treating Rule 11(C) violations as inherently prejudicial does not disrupt the federal criminal justice system. Judicial participation should be treated as inherently prejudicial. Authors: John B. Owens, Daniel B. Levin, Michael J. Mongan, John P. Mittelbach of Munger, Tolles & Olson LLP, Los Angeles, CA; Jonathan Hacker, Washington, DC.

United States v. Davis, 11th Cir., Case No. 12-12928, case below No. 10-20896-CR (S.D. Fla. 2012), brief filed 7/17/13. Fourth Amendment---Historical Cell Site Location Information---Privacy---Good Faith Exception. Brief of Amici Curiae American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Florida, Inc., Center for Democracy & Technology, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers. Argument: Warrantless acquisition of long-term historical cell site location information violated defendant’s reasonable expectation of privacy under the Fourth Amendment. Defendants’ cell site location information obtained by the government reveals invasive and accurate information about their location and movements over time. Obtaining 67  days’ worth of cell phone location data is a “search” under the Fourth Amendment requiring a warrant based upon probable cause. Cell phone providers’ ability to access customers’ location data does not eliminate cell phone users’ reasonable expectation of privacy in that data. Even if the good faith exception applies, this court should decide the Fourth Amendment question. Authors: Catherine Crump, Ben Wizner, and Nathan Freed Wessler (admission pending), ACLU Foundation, New York, NY.

United States v. Graham and Jordan, 4th Cir., Nos. 12-4659 & 12-4825, case below 846 F.Supp.2d 384 (D. Md., Mar. 1, 2012) (Crim. No. RDB-11-0094), brief filed 7/1/13. Fourth Amendment---Historical Cell Site Location Information---Privacy---Good Faith Exception. Brief of Amici Curiae American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Maryland, Center for Democracy & Technology, Electronic Frontier Foundation & National Association of Criminal Defense Lawyers in support of defendants-appellants’ appeal seeking reversal. Argument: Warrantless acquisition of long-term historical cell site location information violated defendants’ reasonable expectation of privacy under the Fourth Amendment. Defendants’ cell site location information obtained by the government reveals invasive and accurate information about their location and movements over time. Obtaining 221 or 14 days’ worth of cell phone location data is a “search” under the Fourth Amendment requiring a warrant based upon probable cause. Cell phone providers’ ability to access customers’ location data does not eliminate cell phone users’ reasonable expectation of privacy in that data. Even if the good faith exception applies, this court should decide the Fourth Amendment question. Authors: Catherine Crump, Nathan Freed Wessler, and Ben Wizner, American Civil Liberties Union Foundation, New York, New York.

United States v. Joseph Jones, Desmond Thurston & Antwuan Ball, D.C. Cir., No. 08-3033 (consolidated with Nos. 10-3108 & 11-3031), brief filed 1/16/13. Sentencing—Watts—Use of Acquitted Conduct. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders and the American Civil Liberties Union of the Nation’s Capital in support of appellants, urging reversal. Argument: The holding in Watts does not govern the Sixth Amendment issues presented here. A defendant’s sentencing guideline calculation should be based solely on the crime of conviction. Authors: Jeffrey T. Green, Sidley Austin LLP, Washington, DC; Timothy O’Toole, Miller & Chevalier, Washington, DC; Sarah S. Gannett, Philadelphia, PA for the National Association of Federal Defenders; and Arthur B. Spitzer, ACLU of the Nation’s Capital, Washington, DC.

United States v. Kentucky Bar Association, Supreme Court of Kentucky, No. 2013-SC-270, brief filed 7/18/13. Ky. Advisory Ethics Op. E-435---State Ethics Rules---Federal Prosecutors---State Lawyer Conduct Rules--- Plea Bargaining--- Waiver of Ineffective Assistance of Counsel Claim---28 U.S.C. § 2255---Conflict of Interest---28 U.S.C. §530b. Brief Amicus Curiae of the National Association of Criminal Defense Lawyers, Legal Ethics Professors and Legal Ethics Practitioners In Support of Respondent. Argument: Advisory Ethics Opinion E-435 does not conflict with controlling federal law. Federal statutes, regulations, and court rules recognize the lawyer conduct ethics rules of this state. Opinion E-435 correctly concludes that waiver of ineffective assistance claims at a guilty plea create a conflict of interest for the defense lawyer that the prosecutor cannot impose on a pleading defendant. Conclusion: “Kentucky Ethics Op. E-435 is a correct statement of the controlling ethical principles and does not conflict with any law. The governing of lawyer conduct is completely within the power of the State, and federal prosecutors are bound by the State’s ethics rules under 28 U.S.C. §530b. This ethics opinion governs the conduct of prosecutors and criminal defense attorneys who practice in the state courts of Kentucky as well in the federal courts in Kentucky. Therefore, the U.S. Attorney’s brief of United States in Support of Motion for Review of Ethics Opinion should be rejected and the ethics opinion as written should be affirmed.”  Authors: John Wesley Hall, Little Rock, AR; J. Vincent Aprile II, Lynch, Cox, Gilman & Goodman P.S.C., Louisville, KY; Ellen Yaroshefsky, Cardozo School of Law, Yeshiva University, New York, NY; Jerry W. Cox, Mount Vernon, KY; David Eldridge, Eldridge & Blakney, PC, Knoxville, TN.

United States v. King, 9th Cir., No. 11-10182, case below 2011 WL 9315 (N.D. Cal. Jan. 3, 2011) (No. C 10-00455 WHA), affirmed by 711 F.3d 986 (9th Cir. (Cal.) Mar. 8, 2013) ( No. 11-10182), brief filed 5/2/13. Probation Conditions---Home Searches---Reasonable Suspicion---Consent. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant-appellant’s petition for rehearing en banc and reversal of the district court’s judgment. Argument: The Panel’s exclusive focus on “consent” and its assumptions about the imposition of probation conditions are wrong. Consent is merely a factor to consider when deciding whether a search is “reasonable.” Probationers do not necessarily “accept” probation terms. The reasonable suspicion standard should apply to all searches of a probationer’s home. Authors: Hanni Fakhoury, San Francisco, CA, and David Porter, Sacramento, CA.

United States v. Newman and Chiasson, 2nd Cir., Case Nos. 13-1837, on appeal from the United States District Court for the Southern District of New York, brief filed 8/22/13. Mens Rea---Jury Instructions---Insider Trading---Remote Tippees. Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in support of Appellants. Argument: The District Court’s jury instructions conflict with the fundamental principle that a defendant must know the facts that make his conduct illegal. Basic principles of mens rea require proof that the defendant knew the facts that made his conduct unlawful. The federal securities laws require proof that a tippee knew the original tipper of inside information disclosed information in exchange for a personal benefit. The requirement of proof of knowledge that the original tipper disclosed information in exchange for a personal benefit is particularly important in cases involving remote tippees. Authors: Ira M. Feinberg, Jordan L. Estes, Hagan Scotten, Hogan Lovells US LLP, New York, NY; Joshua L. Dratel, New York, NY.

United States v. Trudeau, 2nd Cir., Case No. 13-769, on appeal from the United States District Court for the District of Connecticut No. 3:10CR234 (JCH), brief filed 8/16/13. Apprendi---Alleyne--- Sentencing---Sixth Amendment---Judicial Fact-Finding---Acquitted Conduct. Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in support of Appellant. Argument: The Supreme Court’s Apprendi jurisprudence, not its decision in Watts, governs Sixth Amendment questions about the permissibility of judicial fact-finding in criminal cases. Application of the controlling Sixth amendment analysis from Apprendi is not foreclosed by precedent. This case presents an excellent vehicle for revisiting this Court’s acquitted conduct jurisprudence because it highlights the important policy interests that are implicated when a sentence effectively nullifies a jury’s verdict. Authors: Timothy P. O’Toole, Miller & Chevalier Chtd., Washington, DC; Richard Willstatter, White Plains, NY.

United States v. Young, 6th Cir., Case No. 13-5714, on appeal from the United States District Court for the Eastern District of Tennessee, Case No. 1:12CR00045, brief filed 10/4/13. Eighth Amendment---Mandatory Minimum Sentencing---Excessive Sentencing---Shotgun Shells---Harmless Violation of 18 U.S. C. § 922(g)(1)---Prior Conviction. Brief Amicus Curiae, National Association of Criminal Defense Lawyers, in support of appellant. Argument: The Eighth Amendment prohibits excessive mandatory federal punishments widely rejected by state laws and practices such as was imposed on Mr. Young for his harmless possession of shotgun shells in violation of 18 U.S. C. § 922(g)(1). States generally do not prohibit the possession of shotgun ammunition by convicted felons, nor do they authorize a lengthy prison sentence for any comparable offense. State laws and federal practices are evolving away from severe extreme mandatory prison terms for low level offenses. Authors: Prof. Douglas A. Berman, Ohio State University Moritz College of Law, Columbus, OH; Candace C. Crouse, Pinales Stachler Young Burrell & Crouse Co., L.P.A., Cincinnati, OH. 

White v. Woodall, U.S. Sup. Ct., No. 12-794, decision below Woodall v. Simpson, 685 F.3d 574 (6th Cir. 2012), brief filed 11/19/13. 28 U.S.C. § 2254(d)(1)---“Unreasonable Application” Clause---Habeas Relief—Harrington---Williams---Failure to Provide a no Adverse Inference Instruction---Capital Penalty Phase---Non-Testifying Defendant Guilty Plea to Crimes and Aggravated Circumstances. Brief of Amicus Curiae the National Association of Criminal Defense Lawyers Supporting Respondent. Questions Presented: (1) Whether the Sixth Circuit violated 28 U.S.C. §2254(d)(1) by granting habeas relief on the trial court’s failure to provide a no adverse inference instruction even though this Court has not “clearly established” that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances, and (2) Whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson, 57 U.S. 619(1993), in ruling that the absence of a no adverse inference instruction was not harmless in spite of a guilty plea to the crimes and aggravators. NACDL’s amicus brief addresses question one. Argument: The Questions presented do not subsume the issue of whether, under § 2254(d)(1), the state decision involved an “unreasonable application” of federal law. Section 2254(d)(1)’s “unreasonable application” clause reaches applications of clearly established federal law that are either too broad or too narrow. When a court analyzes a reasoned opinion under 28 U.S.C. § 2254(d)(1), it asks whether the decision is objectively unreasonable. Federal court does not formulate hypothetical justifications for the state court outcome if the state decision provides a written account of its reasons. Harrington’s “fairminded disagreement” language does not resuscitate the “no reasonable jurist” standard rejected in Williams. Authors: Justin F. Marceau, Denver, CO; Lee Kovarsky, Baltimore, MD; Barbara Bergman, Albuquerque, NM.

In This Section

Resources

Advertisement Advertise with Us
ad