Amicus Briefs ~ 2014

Agrawal v. United States, U.S. Sup. Ct., No. 13-8527, decision below 726 F.3d 235 (2nd Cir. Aug. 1, 2013), brief filed 2/14/14. Prosecutorial Overreach---National Stolen Property Act (NSPA), 18 U.S. C. § 2314---Rule of Lenity---Statutory Construction---Trade Secrets. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petition for Writ of Certiorari. Argument: The National Stolen Property Act’s (NSPA) terms “goods, wares, merchandise” are limited to tangible items that are offered for sale in the marketplace. The plain language of the NSPA limits “goods, wares, merchandise” to movable items that are meant to reach the marketplace. Congress restricted the language of the NSPA by using the narrow terms “goods, wares, merchandise” and rejected amendments to expand the language to include trade secrets. Other federal statutes limit the terms “goods, wares, merchandise” to items destined for sale. This Court in Dowling v. United States limits “goods, wares, merchandise” to items that implicate traditional property rights. The nature of trade secrets renders them antithetical to the category of stolen items – “goods, wares, merchandise” that fall within the ambit of the NSPA. Applying the NSPA to trade secrets has led to varying decisions in the lower courts. The rule of lenity mandates a strict construction of “goods, wares, merchandise.” Authors: Professor Ellen S. Podgor, Stetson University College of Law, Gulfport, FL; Jeffrey T. Green, Washington, DC.

Arizona v. Krause, Arizona Court of Appeals, Division One, Case No. 1 CA-CR 14-0108 PRPC, decision below in Yavapai County Superior Court No. P1300CR940374, brief filed 5/7/14. Brady---Exculpatory Evidence---Discovery/Disclosure---Prejudice Analysis. Brief of Amici Curiae National Association of Criminal Defense Lawyers (NACDL) in Support of Petitioner Jason Derek Krause. Argument: When exculpatory evidence is first revealed after trial, a reviewing court’s prejudice analysis must include an assessment of how the defense strategy would have differed if the state had timely disclosed the information. The prosecutor has a duty to disclose exculpatory evidence. Exculpatory evidence can significantly impact trial strategy. Prejudice from belated discovery is evaluated in terms of its effect on defense preparation and strategy. Mr. Krause was harmed by the state’s failure to timely disclose the flaws in the forensic science. Author: Stephen R. Glazer, The Glazer Law Office, PLLC, Flagstaff, AZ.

Deemer v. Beard, U.S. Sup. Ct., No. 13-1153, decision below --- Fed. Appx. ---, 2014 WL 764862 (3rd Cir. Feb 27, 2014), brief filed 4/23/14. Heck v. Humphrey------Favorable-Termination Requirement---Unavailability of Habeas Relief---42 U.S.C. § 1983 ---Overincarceration. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for Writ of Certiorari) Argument: The applicability of Heck’s favorable-termination requirement to litigants for whom habeas relief is unavailable is an issue of wide-reaching importance. The minority interpretation of Heck is deeply misguided and should be corrected by this Court. Authors: Igor V. Timofeyev, Mary-Elizabeth M. Hadley, and Kathleen K. Sheridan, Paul Hastings LLP, Washington, DC; Jeffrey T. Green, Washington, DC.

Dunlap v. Idaho, U.S. Sup. Ct., No. 13-1315, decision below 155 Idaho 345, 313 P.3d 1 (Idaho Aug. 27, 2013) (No. 32773, 37270), rehearing denied (Nov. 29, 2013), brief filed 5/30/14. Sixth Amendment---Confrontation Clause---Cross-Examination---Capital Sentencing Hearings. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for Writ of Certiorari) Argument: Whether the confrontation clause applies during capital sentencing hearings is unresolved. This Court’s review is necessary to ensure that states may not strategically elude cross-examination of critical evidence. Authors: Jeffrey T. Green and Nicholas J. Giles, Sidley Austin LLP, Washington, DC; David Porter, Sacramento, CA.

Farrow v. Lipetzky, 9th Cir., No. 13-16781, decision below Case No. 12-cv-06495-JCS (Hon. Joseph C. Spero), 2013 WL 4042276 (N.D. Cal. Aug. 7, 2013), brief filed 1/17/14. Sixth Amendment---Right to Counsel---Initial Appearance---Indigent Defense. Brief of Amici Curiae National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice in Support of Plaintiffs-Appellants. Argument: A criminal defendant has a fundamental constitutional right to appointed counsel at any ‘critical stage’ of the proceedings against him. The defendant’s first appearance before a magistrate can result in substantial prejudice to the defendant’s rights. California’s initial appearance is a ‘critical stage’ requiring the presence of appointed counsel. Authors: Gia Cincone, Kilpatirck Townsend & Stockton LLP, San Francisco, CA; David Porter, Sacramento, CA.

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 6/17/14. Fourth Amendment---Reasonable Suspicion—Investigatory Stops---Mistake of Law---Mistake of Fact. Brief for the National Association of Criminal Defense Lawyers the Cato Institute, the American Civil Liberties Union, and the American Civil Liberties Union of North Carolina as Amici Curiae in Support of Petitioner. Argument: The North Carolina Supreme Court’s rule condoning traffic stops based on suspicion of perfectly lawful conduct ignores fundamental differences between mistakes of fact and mistakes of law. Treating mistakes of fact and law ‘the same’ under the Fourth Amendment contravenes well-established legal doctrine. There are important practical distinctions between mistakes of fact and mistakes of law. The North Carolina rule would have negative consequences for both individual citizens and law enforcement. The North Carolina Supreme Court’s rule will have negative consequences for individual liberty and will undermine law enforcement. Authors: Noah A. Levine, Jamie S. Dycus, Ari J. Savitzky, and Carleen M. Zubrzycki, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; Jonathan D. Hacker, Washington, DC.

Illinois v. Pacheco, Supreme Court of Illinois, Case No. 116402, case below 991 N.E.2d 896 (Ill.App. 4 Dist. 2013), Case No. 4-11-0409, brief filed 1/8/14. Miller---Graham---Automatic Transfer---Mandatory Sentencing---Felony Murder---Murder by Accountability---LWOP---Juvenile Justice---Eighth Amendment. Brief of Juvenile Law Center, Loyola Civitas Childlaw Clinic, et al., as Amici Curiae in Support of Defendant-Appellant (full list of amici in Appendix A to attached brief). Argument: U.S. Supreme Court jurisprudence demonstrates that the automatic prosecution and mandatory sentencing of certain youth charged with murder as adults is unconstitutional. Under U.S. Supreme Court case law, Illinois’s transfer and mandatory sentencing statutes are unconstitutional because they do not allow for individualized sentencing of minors transferred to adult court and convicted of murder. Youth are fundamentally different from adults in constitutionally relevant ways. The Illinois automatic transfer and mandatory sentencing statutes are unconstitutional because they do not permit a sentencing court to consider the individual maturity and degree of culpability of each youth convicted of murder. The U.S. Supreme Court’s “kids are different” jurisprudence is not limited to a particular type of crime, sentence or constitutional provision. Illinois’ statutory scheme is unconstitutional because it subjects youth who were not principally responsible – such as those charged with felony murder or those charged under an accountability theory – to automatic transfer to adult court and mandatory sentencing without a court’s consideration of the constitutionally relevant attributes of adolescence. Illinois’s statutory scheme departs from national norms. Illinois is an outlier because its statutes require certain youth to be tried in adult court based on age and charge alone, without the opportunity for a court to make an individualized determination as to whether juvenile court jurisdiction would be more appropriate based on the youth’s unique degree of culpability and capacity for change and rehabilitation. Public policy and public opinion overwhelmingly opposes the automatic transfer to adult court and mandatory imposition of adult sentences without judicial review of the individual youth’s degree of culpability and amenability to rehabilitation. Authors: Lourdes M Rosado, Riya S. Shah, and Marsha L. Levick, Juvenile Law Center, Philadelphia, PA; Bruce A. Boyer, Loyola Civitas Childlaw Clinic, Chicago, IL.

In Re:  Proceedings in which the Commonwealth of Pennsylvania Seeks to Compel the Defender Association of Philadelphia to Produce Testimony and Documents and to Bar it from Continuing to Represent Defendant Mitchell, 3d Cir. Nos. 13-3817 et al., on appeal from E.D. Pa. No. 2:13-cv-1871, brief filed 4/7/14. Pennsylvania Capital Punishment Regime---Federal Community Defender Organization (FCDO)---State court Post-Conviction Relief Act (PCRA)---Pennsylvania Capital Defense Appointment System---Habeas Petitions/Relief. Brief and Appendix of Amici Curiae National Association of Criminal Defense Lawyers and Pennsylvania Association of Criminal Defense Lawyers Supporting Appellee-Cross-Appellant Defender Association of Philadelphia. Argument: Vigorous state post-conviction assistance is critical to the FCDO’s mission of securing death-sentenced inmates federal habeas relief. The systemic failure of Pennsylvania to provide effective, properly resourced, capital defense counsel militates in favor of continuous representation by FCDO attorneys. Authors: Lawrence S. Lustberg and Benjamin Yaster, Gibbons P.C., Newark, NJ; Jules Epstein, Kairys, Rudovsky, Messing & Feinberg, Philadelphia, PA.

Jewel v. National Security Agency, U.S. Dist. Ct., N.D. Cal., No. 4:08-cv-4373-JSW, brief filed 8/1/14. Bulk/Wholesale Collection of Communications---Class Action---Fourth Amendment---Search and Seizure---Fifth Amendment---Self-Incrimination---Sixth Amendment---Right to Counsel. Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Plaintiffs’ Motion for Partial Summary Judgment. Argument: Violating Plaintiffs’ Fourth Amendment right by seizing and searching all of their communications constitutes a violation of the Fifth Amendment right against self-incrimination. Violating Plaintiffs’ Fourth Amendment right by seizing and searching all of their communications constitutes a violation of the Sixth Amendment right to counsel. The government’s destruction of the evidence of its wrongful search and seizure means that the injury to these other Constitutional rights cannot be remediated and must be presumed. The fact that the Fifth and Sixth Amendment rights of Plaintiffs have been undermined by the surveillance at issue in this case supports the finding that this surveillance has been made in violation of the Fourth Amendment. When the Fourth Amendment falls, so do the Fifth and Sixth. This Court should therefore find the surveillance at issue in this case unlawful. Authors: Catherine R. Gellis, Sausalito, CA; Michael H. Page, Durie Tangri LLP, San Francisco, CA; David Porter, Sacramento, CA (Of Counsel).

Kendrick v. Tennessee, Supreme Court of Tennessee, No. E2011-02367-SC-R11-PC, decision below 2013 WL 3306655 (Tenn.Crim.App. June 27, 2013), brief filed 5/22/14. Ineffective Assistance of Counsel---Hinton v. Alabama---Responsibility to Investigate and Obtain Expert Assistance. Brief of Amici Curiae National Association of Criminal Defense Lawyers & Tennessee Association of Criminal Defense Lawyers in Support of the Appellee. Argument: The United States Supreme Court’s recent analysis in Hinton v. Alabama of defense counsel’s responsibilities to investigate and obtain expert assistance directly applies to this case. In Baxter v. Rose this court outlines a reasonableness standard for ineffective counsel comparing counsel’s actions to a range of competence demanded of attorneys in a criminal case. Hinton v. Alabama applies a reasonableness standard which requires trial counsel to research scientific and technical evidence essential to the defense of the case in order to be within the range of competence demanded of criminal defense attorneys. Investigation of the prosecution’s proposed scientific or technical evidence on critical facts essential to the defense is a necessary part of rendering constitutionally adequate counsel. Counsel’s investigation of forensic sciences and techniques related to a fact essential to a defense is critical because of the powerful impact expert testimony has at trial. The National Research Council of the National Academy of Science’s report on the forensic science community highlights the shortcomings of the field as well as the powerful impact that faulty forensic science can have on those accused of a crime. Extensive research has shown a positive correlation between faulty forensic science testimony and the wrongful conviction of those accused of a crime. Authors: Stephen Ross Johnson and W. Thomas Dillard, Ritchie, Dillard, Davies & Johnson, P.C., Knoxville, TN.

Loughrin v. United States, U.S. Sup. Ct., No. 13-316, decision below 710 F.3d 1111 (10th Cir. 2013), brief filed 2/3/14. Overcriminalization---Over-federalization---Bank Fraud---18 U.S.C. § 1344. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Question Presented: As the Tenth Circuit acknowledged in its decision below, the circuits are openly divided over the elements required to convict a defendant of federal bank fraud. The question presented is: Whether the government must prove that the defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344. Argument: The text of the bank fraud statute does not support the Tenth Circuit’s holding. The Tenth Circuit’s interpretation of section 1344 promotes the unwarranted expansion of federal criminal law. The number of federal crimes has increased dramatically in the past few decades. New federal crimes cover local conduct that has historically been prosecuted by the states. Some prosecutors and courts have further expanded federal criminal law in the absence of clear congressional intent. The over-federalization of criminal law has numerous adverse consequences. Increasing the number of federal crimes overwhelms the limited resources of federal courts. Overlapping state and federal jurisdiction leads to competition and inefficiencies in the administration of criminal justice. Federalizing crimes already prosecuted by the states does little to alleviate crime and undermines the vital role of the states in prosecuting crime. Over-federalization leads to the disparate treatment of similarly situated defendants. The unjustified severity of petition’s sentence illustrates the dangers of over-federalization. Authors: Daniel B. Levin and Victoria A. Degtyareva, Munger, Tolles & Olson LLP, Los Angeles, CA; Barbara E. Bergman, Albuquerque.

Martin v. Symmes, 8th Cir., Case No. 13-3676, decision below slip copy, 2013 WL 5653447 (D. Minn. 2013) , brief filed 1/28/14. Miller---Graham---Retroactivity---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 categorically less deserving of the harshest forms of punishments. Miller v. Alabama applies retroactively. Miller is retroactive because Kuntrell Jackson received the same relief on collateral review. Miller applies retroactively pursuant to Teague v. Lane. Miller is retroactive because it announces a substantive rule that categorically prohibits the imposition of mandatory life without parole on all juvenile offenders. Miller is retroactive because it involves a substantive interpretation of the Eighth Amendment that reflects the Supreme Court’s evolving understanding of child and adolescent development. Miller is a "watershed rule" under Teague. Once the Court declares a particular sentence "cruel and unusual" when imposed on a juvenile, the continued imposition of that sentence violates the Eighth Amendment. Authors: Marsha L. Levick, Emily C. Keller, and Lauren Fine, Juvenile Law Center, Philadelphia, PA.

Mayes v. Premo, 9th Cir., CA No. 12-35461, rehearing sought on 747 F.3d 686 (9th Cir. Mar. 27, 2014), decision below No. 3:06-CV-6334-HU, 2012 WL 1969042 (D.Or. May 25, 2012), brief filed 5/23/14. Sixth Amendment---Harmless Error Analysis---Prejudice Analysis---Brecht. Brief of Amici Curiae National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and California Appellate Defense Counsel in Support of Petition for Rehearing and Rehearing En Banc. Argument: The Sixth Amendment constrains reviewing courts’ harmless error analysis. The majority creates an intra-circuit conflict by endorsing a harmless error analysis based on a hypothetical trial without the error and by crediting the prosecution’s evidence while ignoring its weaknesses. The majority disregards Supreme Court precedent and creates an intra-circuit split in the standards employed to evaluate whether an error was prejudicial. Authors: Tarik S. Adlai, Pasadena, CA; David M. Porter, Sacramento, CA.

Medina v. Arizona, U.S. Sup. Ct., No. 13-735, decision below 232 Ariz. 391, 306 P. 3d 48 (Ariz. Aug. 22, 2013), brief filed 1/21/14. Autopsy Reports---Courtroom Testimony---Confrontation Clause---Cross-Examination---Crawford---Melendez-Diaz. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for Writ of Certiorari) Argument: Autopsy procedures are not standardized and incorporate evidence beyond that obtained from the body, including evidence provided by the police. Autopsy reports convey circumstantial evidence as authoritative and fail to reflect internal dissent. Medical examiners view themselves as advocates for the dead The nature of autopsy reports marks them as testimonial and hence subject to the strictures of the Confrontation Clause. Authors: Robert N. Hochman, Sidley Austin LLP, Chicago, IL; Jeffrey T. Green and Sean R. Dickson, Sidley Austin LLP, Washington, DC; David Porter, Sacramento, CA; Sarah O’Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL.

People v. Carp; People v. Davis; People v. Eliason, Michigan Supreme Court, Case Nos. 146478, 146819 and 147428, respectively, appeals from the Court of Appeals of Michigan, brief filed 2/21/14. Miller---Graham---Retroactivity---Sentencing---LWOP---Juvenile Justice---Eighth Amendment---Felony Murder---Individualized Sentences---Meaningful Opportunity for Release. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae In Support of Appellants Carp, Davis and Eliason (full list of amici in appendix to attached brief). Argument: Miller reaffirms the U.S. Supreme Court’s recognition that children are categorically less deserving of the harshest forms of punishments. Miller v. Alabama applies retroactively. Miller is retroactive because Kuntrell Jackson received the same relief on collateral review. Miller applies retroactively pursuant to Teague v. Lane. Miller is retroactive because it announces a substantive rule that categorically prohibits the imposition of mandatory life without parole on all juvenile offenders. Miller is retroactive because it involves a substantive interpretation of the Eighth Amendment that reflects the Supreme Court’s evolving understanding of child and adolescent development. Miller is a "watershed rule" under Teague. Once the Court declares a particular sentence "cruel and unusual" when imposed on a juvenile, the continued imposition of that sentence violates the Eighth Amendment. Any life without parole sentences for a juvenile who did not kill or intend to kill is inconsistent with adolescent development and neuroscience research and unconstitutional pursuant to Miller and Graham. Intent to kill cannot be inferred when a juvenile is convicted of felony murder. Any life without parole sentence for a juvenile convicted of felony murder is unconstitutional pursuant to Miller and Graham. All juveniles convicted of murder in Michigan are entitled to individualized sentences that presumptively provide a meaningful opportunity for release. Authors: Marsha L. Levick, Juvenile Law Center, Philadelphia, PA; Bruce W. Neckers, Rhoades McKee PC, Grand Rapids, MI.

People v. Roman Baret, New York Court of Appeals, No. 2014-283, case below Bronx County Indictment No. 2735/1995, brief filed 3/13/14, accepted by the court as filed 3/27/14. Padilla v. Kentucky---Retroactivity---Immigration Consequences---Deportation—Ineffective Assistance of Counsel---Fundamental Fairness. Brief for Amici Curiae the New York State Defenders Association, Inc., New York State Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers et al., including Immigrant Defense Project (complete list of amici is available in appendix to brief linked above). Argument: The advice regarding deportation is critical to an immigrant defendant. The professional standards supporting this duty in New York pre-date the 1996 immigration laws. The rule articulated in Padilla v. Kentucky applies under New York law to remedy Padilla violations pertaining to uninformed pleas entered in New York at least from the passage of AEDPA and IIRIRA in 1996 onward. Fundamental fairness demands that the courthouse doors remain open, at least, to Padilla claims arising from pleas entered after AEDPA and IIRIRA, not merely for those cases that were pending when Padilla was decided or came after Padilla. Authors: Manuel D. Vargas and Dawn M. Seibert, Immigrant Defense Project, New York, NY, et al.

Plumhoff v. Rickard, U.S. Sup. Ct., No. 12-1117, decision below Estate of Allen v. City of West Memphis, 509 Fed. Appx. 388 (6th Cir. 2012) (not selected for publication in the Federal Reporter, No. 11-5266), brief filed 2/5/14. Civil Case for Excessive Force---Qualified Immunity---Fourth Amendment. Amicus Curiae Brief of the National Association of Criminal Defense Lawyers Supporting Respondent. Argument: If the Court of Appeals failed to determine whether petitioners’ conduct violated Rickard’s clearly established constitutional rights, this Court should remand the case to the Court of Appeals with instructions to do so. If the Court remands the qualified immunity issues, it should not reach the constitutional questions. A number of proffered justifications are inconsistent with clearly established law in 2004. A number of the justifications proffered by petitioners rest on disputed facts. The government does not advance a sound basis for concluding that the defendants are entitled to qualified immunity. Authors: Eric Schnapper, University of Washington School of Law, Seattle, WA; David Porter, Sacramento, CA.

Riley v. California, U.S. Sup. Ct., No. 13-132, decision below People v. Riley, No. D059840, 2013 BL 34220, 2013 ILRC 1385 (Cal. App. 4th Dist. Feb. 08, 2013), brief filed 3/10/14. Fourth Amendment---Searches Incident to Arrest---Chimel---Cellphones/Smartphones---Warrant Requirement. Brief of the National Association of Criminal Defense Lawyers and the Brennan Center for Justice at New York University School of Law as Amici Curiae in Support of Petitioner. Argument: Mobile computing devices like the modern smartphone are unique. The capacity of mobile computing devices renders analogies to physical containers inapplicable. Mobile devices have been incorporated into modern living in a fundamentally private and personal way. The smartphone is the new instrument of First Amendment expression. The warrantless search of a smartphone incident to arrest is not justified under the search incident to arrest doctrine. Neither of the Chimel rationales is present with respect to the warrantless search of a cellphone. Permitting a warrantless search of a smartphone, but limiting it to evidence relating to the crime of arrest is unworkable. Cellphone data necessitates the protections of the warrant requirement. Technology has removed impediments to securing a warrant. A warrant is the only effective mechanism for managing governmental collection of cellphone data. Authors: Bronson D. James, Bronson James LLC, Portland, OR; Michael W. Price, Brennan Center for Justice, New York, NY.

Ex Parte Neal Hampton Robbins, Texas Court of Criminal Appeals, WR-73, 484-02, Successive Application for a Writ of Habeas Corpus in Cause No. 98-06-0075-CR from the 410th Judicial District Court of Montgomery County, brief filed 3/10/14. Habeas Corpus---Disavowed Expert Testimony---Article 11.073 of the Texas Code of Criminal Procedure. Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae Supporting Applicant. Argument: Article 11.073 requires a new trial where the conviction itself and the determination that a crime occurred at all are “primarily dependent” upon expert testimony later reevaluated by the witness and found to be scientifically insupportable, a conclusion confirmed by other reliable expert evidence. Author: Shirley Baccus-Lobel, Law Office of Shirley Baccus-Lobel, Dallas, TX.

Smith v. Obama, 9th Cir., No. 14-35555, decision below 2014 WL 2506421 (D. Idaho June 3, 2014) (No. 2:13-CV-257-BLW), brief filed 9/9/14. Bulk Metadata Collection---Attorney-Client Privilege---Sixth Amendment---Right to Counsel---Fourth Amendment---Searches--Privacy. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant. Argument: The government’s wholesale, indiscriminate collection of all call records violates the Sixth Amendment right to counsel. The Sixth Amendment right to counsel depends on the privacy of communications between attorneys and clients. Because the bulk collection of telephone metadata destroys the privacy of these lawyer-client communications, it violates the Sixth Amendment. Because the bulk collection of metadata violates a legitimate expectation of privacy in lawyer-client communications, it violates the Fourth Amendment. The government’s bulk collection of phone metadata constitutes a “search” under the Fourth Amendment because it invades a legitimate expectation of privacy society recognizes as reasonable. This expectation of privacy can survive exposure to third parties. The expectation of privacy applies to identifying information. Authors: Catherine R. Gellis, Sausalito, CA; Michael H. Page and Joseph C. Gratz, Durie Tangri LLP, San Francisco, CA; David Porter, Sacramento, CA.

State v. Johnson, Supreme Court of Ohio, case below 1 N.E.3d 491 (Ohio App. 12 Dist., Nov. 4, 2013), brief filed 5/7/14. Fourth Amendment—Search and Seizure---Exclusionary Rule---Good Faith Exception. Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant-Appellant. Argument: The Twelfth Appellate District was wrong to rely on dicta and focus on officer culpability in order to expand the narrow exceptions to the exclusionary rule. This court should apply the exclusionary rule when there is no equivocal binding precedent authorizing a particular search. Knotts and Karo were not unequivocal binding precedent at the time law enforcement placed a GPS tracking device on Johnson’s car. A cost-benefit analysis tilts in favor of suppression in Johnson’s case.  Authors: Candace C. Crouse, Pinales Stachler Young Burrell & Crouse, Co., LPA, Cincinnati, OH.

Texas v. Moon, In the Texas Court of Criminal Appeals, No. PD-1215-13, decision below 410 S.W.3d 366 (Tex.App. –Hous. (1 Dist.) July 30, 2013) (No. 01-10-00341-CR) , brief filed 3/21/14. Miller---Graham---Juvenile Justice ---Waiver Statute---Transfer to Adult Court. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae in Support of Appellee Cameron Moon (full list of amici in appendix to linked brief). Argument: U.S. Supreme Court jurisprudence demonstrates that the state’s flawed reading of the Texas waiver statute is also constitutionally defective. The state’s flawed reading of Texas’s transfer statute runs afoul of constitutional requirement for an individualized judicial determination prior to trial in adult court, where youth are subject to mandatory sentencing statutes. The United States Supreme Court’s ‘kids are different’ jurisprudence is not limited to a particular type of crime, sentence or constitutional provision. Adoption of the state’s interpretation of the Texas statute would make Texas an outlier, allowing for the prosecution of youth as adults based on age and charge alone without an individualized determination of the youth’s maturity level and capacity for change and rehabilitation. Public policy and public opinion overwhelmingly oppose automatic transfer to adult court and mandatory imposition of adult sentences on youth. Authors: Peri Alkas, Phelps Dunbar, LLP, Houston, TX; Lourdes M. Rosado, Juvenile Law Center, Philadelphia, PA.

United States v. 475 Martin Lane, 9th Cir., No. 12-56922 & 13-5555 & 13-5556, on appeal from the United States District Court for the Central District of California, Case No. 2:04-cv-02788-ABC-PLA, brief filed 1/28/14. Civil Forfeiture---Civil Asset Forfeiture Reform Act (CAFRA) Fee Provision---Anti-Assignment Act. Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellees and Urging Affirmance. Argument: Congress enacted the CAFRA fee provision, over the government’s objection, to ensure the availability of competent counsel for persons whose property the government seizes and seeks to forfeit. The Anti-Assignment Act does not apply to assignments of potential future CAFRA fee awards. The defense of a civil forfeiture case does not involve a claim against the government. Future, potential rights to recover statutory attorney fees are not claims against the government. Authors: John D. Cline, Law Office of John D. Cline, San Francisco, CA; Lara Kollios, Boersch Shapiro LLP, San Francisco, CA; David Porter, Sacramento, CA.

United States v. Rodriguez-Vega, 9th Cir., No. 13-56415, appeal from the U.S. District Court for the Southern District of California (Honorable William V. Gallo presiding), brief filed 8/14/14. Padilla v. Kentucky---Immigration Consequences---Deportation---Advice of Counsel---Judicial Warning---Prejudice. Brief of the National Association of Criminal Defense Lawyers, National Association for Public Defense, Immigrant Defense Project, Immigrant Legal Resource Center, and National Immigration Project of the National Lawyers Guild as Amici Curiae in Support of the Petitioner-Appellant. Argument: The lower court erred in holding that defense counsel need only advise noncitizen clients of possible deportation when deportation is in fact virtually certain. The lower court disregarded the holding of Padilla v. Kentucky. Counsel must give a strong warning of virtual certain deportation even if relief in immigration court is potentially available. Ample attorney resources make it easy to provide accurate advice of clear immigration consequences. Noncitizen defendants who fail to receive clear and accurate advice about the true likelihood of deportation can establish prejudice, notwithstanding notice of possible deportation. Because judicial warnings about immigration consequences of a plea differ categorically from advisals by defense counsel, they do not purge prejudice. Equivocal information about the risk of deportation does not cure prejudice when deportation is practically inevitable. Authors: Sejal Zota, National Immigration Project of the National Lawyers Guild, Boston, MA; Rebecca Sharpless, Immigration Clinic of the University of Miami School of Law, Coral Gables, FL; Manuel Vargas and Dawn Seibert, Immigrant Defense Project, New York, NY; Jeffrey L. Fisher, NACDL, Stanford, CA.

United States v. Wurie, U.S. Sup. Ct., No. 13-212, decision below 728 F.3d 1 (1st Cir. 2013), brief filed 4/9/14. Fourth Amendment---Searches Incident to Arrest--- Cellphones---Call Logs---Warrant Requirement. Brief of the National Association of Federal Defenders and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Respondent. Question Presented: Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who has been lawfully arrested. Argument: The First Circuit correctly held that the search-incident-to-arrest exception does not categorically authorize warrantless cell phone searches, but that the exigent circumstances exception can apply in particular cases. Smith v. Maryland does not support a rule allowing call logs to be searched incident to arrest. Maryland v. King and Florence v. Bd. Of Chosen Freeholders do not support warrantless cell phone searches incident to arrest. Authors: Jeffrey T. Green, Jacqueline G. Cooper, and Jeremy M. Bylund, Sidley Austin LLP, Washington, DC.

United States v. Zepeda, 9th Cir., No. 10-10131, decision below Case No. 2:08-cr-01329-ROS-1 (Hon. Roslyn O. Silver) (D. Ariz.), brief filed 4/7/14. Indian Major Crimes Act (18 USC § 1153)---Indian Status---Ancestral Requirement---Political Affiliation Requirement---Jury Instruction. Brief for the National Association of Criminal Defense Lawyers and the Ninth Circuit Federal Public and Community Defenders as Amici Curiae in Support of Defendant-Appellant. Argument: The Major Crimes Act requires the government to prove that the defendant has both ancestral and political affiliation with a federally-recognized tribe. Indian status is an element of the offense that the government must allege in the indictment and prove to a jury. Zepeda’s conviction must be reversed. The jury instruction was plain error. No rational jury could conclude that Zepeda satisfies the ancestral requirement of Section 1153. The government failed to demonstrate at trial that the Tohono O’Odham Nation of Arizona is a federally-recognized tribe. The government failed to demonstrate that Zepeda’s heritage derives from the Tohono O’Odham Nation of Arizona. Authors: Charles A. Rothfeld, Paul W. Hughes, Michael B. Kimberly, Breanne A. Gilpatrick, Mayer Brown LLP, Washington ,DC; David M. Porter, Sacramento, CA.

Warger v. Shauers , U.S. Sup. Ct., No. 13-517, decision below 721 F.3d 606 (8th Cir. 2013), brief filed 6/3/14. Sixth Amendment---Impartial Jury/Juror Bias---Federal Rule of Evidence 606(b). Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: Racial, ethnic and religious bias among jurors remains a serious problem in criminal cases. The canon of constitutional avoidance requires admitting evidence under Rule 606(b) that tends to prove a litigant did not receive a fair trial. Rule 606(b) implicates core constitutional concerns in the criminal context. This Court should consider criminal-specific constitutional concerns in construing Rule 606(b). Authors: Jeffrey T. Green, Washington, DC; Lisa Blatt and Bob Wood, Arnold & Porter LLP, Washington, DC; R. Reeves Anderson, Arnold & Porter LLP, Denver CO.

Whitfield v. United States, U.S. Sup. Ct., No. 13-9026, decision below 548 Fed. Appx. 70 (4th Cir.(N.C.) Dec 10, 2013) (NO. 12-4956), brief filed 8/29/14. § 2113(e)---Forced Accompaniment---Ambiguity---Rule of Lenity. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: The rule of lenity supports the narrow construction of 18 U.S.C. § 2113(e) urged by petitioner in this case. The phrase “forces any person to accompany him” is ambiguous. The statute’s ambiguity increases the risk of inconsistent application. Section 2113€ requires substantial movement. The Court should adopt a clear rule for interpreting the forced accompaniment provision of § 2113(e). Specific rules are especially important in applying vague mandatory minimum statutes. The conflicting tests used by lower courts to interpret § 2113(e) are inadequate. In interpreting the statute, the Court should rely on the distinction for kidnapping already drawn in the Model Penal Code (MPC). Under the MPC test, the petitioner’s § 2113(e) conviction should be reversed. Authors: Jeffrey T. Green and Rebecca J. Johnson, Sidley Austin LLP, Washington, DC; Jonathan Hacker, Washington, DC.

Wyoming v. Mares, Supreme Court of Wyoming, No. S-13-0223, brief filed 4/4/14. Miller---Graham---Juvenile Justice ---JLWOP---Retroactivity. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae in Support of Appellee Edwin Ike Mares (full list of amici in appendix to linked brief). Argument: The U.S. Supreme Court has repeatedly held that children are categorically less deserving of the harshest forms of punishment. Appellee’s mandatory life sentence is unconstitutional even in light of Wyoming’s post-miller sentencing amendments. Miller v. Alabama applies retroactively pursuant to U.S. Supreme Court precedent. Authors: Marsha L. Levick, Juvenile Law Center, Philadelphia, PA; Dona Playton, Laramie, WY.

Yates v. United States, U.S. Sup. Ct., No. 13-7451, decision below 733 F.3d 1059 (11th Cir. 2013), brief filed 2/5/14. Overcriminalization---Overfederalization---18 U.S.C. § 1519---18 U.S.C. § 2232---Executive Expansion of Criminal Law---Burden of Proof. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petition for a Writ of Certiorari. Argument: Petitioner's conviction under 18 U.S.C. §§ 1519 and 2232 through his conduct aboard the Miss Katie exemplifies overcriminalization stemming from an unconstitutional executive expansion of the law. As a matter of law, the Petitioner could not have been adjudicated guilty under 18 U.S.C. § 1519 (2012) as the application of an anti-shredding statute to three rotten fish is an unconstitutional expansion of the law and a violation of statutory construction. Executive expansion of 18 U.S.C. § 1519 to include red grouper furthers the overcriminalization epidemic. Additionally, the lower courts committed reversible error when they effectively shifted the burden of proof from the government to the Petitioner on the issue of whether the fish were undersized. No reasonable jury could have convicted the Petitioner under § 2232 because the government failed to meet its burden of proof. Authors: William N. Shepherd, Holland & Knight LLP, West Palm Beach, FL; Barbara E. Bergman, Albuquerque, NM.

Yates v. United States, U.S. Sup. Ct., No. 13-7451, decision below 733 F.3d 1059 (11th Cir. 2013), brief filed 7/7/14. Overcriminalization---Overfederalization---18 U.S.C. § 1519---Sarbanes-Oxley Act of 2002---Executive Expansion of Criminal Law---Statutory Construction---Burden of Proof. Brief of the National Association of Criminal Defense Lawyers and the American Fuel & Petrochemical Manufacturers as Amici Curiae in Support of Petitioner John Yates. Argument: Petitioner's conviction under Sarbanes-Oxley exemplifies overcriminalization through an unconstitutional expansion of the law. Executive expansion of 18 U.S.C. § 1519 to include red grouper furthers the overcriminalization epidemic. Red grouper are not “tangible objects” under Sarbanes-Oxley. Even if Sarbanes-Oxley applies to fish, Yates’ conduct did not impede, obstruct, or influence a federal investigation. Overcriminalization places a growing burden on the administration of justice, often resulting in ludicrous federal convictions for conduct that, traditional, falls outside constitutionally anticipated federal purview. Authors: William N. Shepherd, Holland & Knight LLP, West Palm Beach, FL; Barbara E. Bergman, Albuquerque, NM.

In This Section

Advertisement Advertise with Us
ad