Brooks v. United States,
U.S. Sup. Ct., No. 12-218, decision below 681 F.3d 678 (5th Cir. 2012),
brief filed 9/19/12. Defense Witnesses—Self-Incrimination—Immunity. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Walton v. United States, No. 12-5847. Question presented:
Under what circumstances may a trial court grant, or compel the
prosecution to grant, use immunity to a witness who has essential
exculpatory evidence unavailable from other sources but who invokes his
Fifth Amendment privilege against self-incrimination? Author: John D. Cline, San Francisco, CA.
Clapper v. Amnesty International USA, U.S.
Sup. Ct., No. 11-1025, case below 638 F.3d 118 (2d Cir. 2011), brief
filed 9/25/12. Electronic Surveillance—Foreign Intelligence Surveillance
Act (FISA)—Injunctions—Standing. Amicus curiae brief of the National
Association of Criminal Defense Lawyers in support of respondents. Background: Section
702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C.
1881a (Supp. II 2008)-referred to here as Section 1881a - allows the
Attorney General and Director of National Intelligence to authorize
jointly the "targeting of [non-United States] persons reasonably
believed to be located outside the United States" to acquire "foreign
intelligence information," normally with the Foreign Intelligence
Surveillance Court's prior approval of targeting and other procedures.
50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2).
Two of the plaintiff-respondents in this case are criminal defense
lawyers for whom confidentiality is essential in their work. They are
seeking both a declaration that Section 1881a is unconstitutional and an
injunction permanently enjoining any foreign-intelligence surveillance
from being conducted under Section 1881a. Argument: In light of
every attorney’s duty of confidentiality, the petitioners, both “United
States persons,” are wrong to contend these plaintiff-respondents
allege merely “speculative” and/or “self-inflicted injuries” from
surveillance under the FISA Amendments Act (FAA), §1881a. FISA
surveillance targets regions, persons and subjects heavily implicated by
matters in which the respondents serve as defense counsel. They thus
must choose between foregoing international communications about
sensitive matters or incurring the expense and burden of traveling
overseas for in-person communication. The court of appeals should be
affirmed. Author: John D. Cline, San Francisco, CA and Joshua Dratel, New York, NY.
Gabelli v. Securities and Exchange Commission, U.S. Sup. Ct., No. 11-1274, decision below 653 F.3d 49 (2nd Cir. 2011), brief filed 11/16/12. Statutes of Limitations—Statutes of Repose--Penalty Actions—Prosecutorial Abuse. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioners. Question presented:
Where Congress has not enacted a separate controlling provision, does
the government's claim first accrue for purposes of applying the
five-year limitations period under 28 U.S.C. § 2462 when the government
can first bring an action for a penalty? Argument: The
statute of limitations in government penalty actions is not extended by
a discovery rule. The Second Circuit’s rule will hamper the ability of
individuals and corporations to arrange their affairs. And repose for
penalty actions supplies an important check against abuses of
enforcement power. Authors: Paul R. Q. Wolfson, Shirley Cassin
Woodward, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC;
Joshua L. Dratel, New York, NY.
Kaley v. United States, U.S.
Sup. Ct., No. 12-464, decision below 677 F.3d 1316 (11th Cir. 2011),
brief filed 11/14/12. Forfeiture—Due Process—Right to Counsel. Amicus curiae brief
of the National Association of Criminal Defense Lawyers and the
National Association in support of petition for writ of certiorari. Question presented:
Whether the Supreme Court should take the appeal and clarify that” a
grand jury’s probable cause determination does not relieve the
government of any of its usual burden, when it seeks to restrain or
seize property, of showing at a prompt, adversarial hearing that it has
good cause to do so.” (Br. at 2.) Argument: “Whether effected
via criminal-forfeiture provisions, or through parallel
civil-forfeiture proceedings, restraining defendants assets during a
prosecution implicates a structural right and risks inflicting
unknowable injustices….The circuits holding that a grand jury’s ex parte probable cause determination is unassailable have unduly compromised the structural right to counsel.” (Br. at 2 & 5.) Author: University of Miami School of Law Professor Ricardo J. Bascuas, Miami, FL.
King v. United States,
U.S. Sup. Ct., No. 11-959, decision below 660 F.3d 1071 (9th Cir.
2011), brief filed 3/7/12. False Statements – Federal Jurisdiction. Amicus curiae
brief of the National Association of Criminal Defense Lawyers, the Cato
Institute and the Texas Public Policy Foundation in support of the
petition for certiorari. Question presented: Should an
individual face federal criminal liability under 18 U.S.C. §1001 for a
false statement made to a person unconnected to the federal government
at a time when no federal investigation exists merely because the
statement concerns an issue over which the federal government may
exercise discretionary regulatory authority? Argument: 18
U.S.C. § 1001 criminalizes the knowing and willful making of materially
false statements in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the United States.
Judicial expansions of §1001 have invited prosecutors to stretch the
statute beyond its proper reach and an improperly broad definition of a
“matter within the jurisdiction” clause presents significant risks of
overcriminalization and misuse, resulting in wrongful convictions. Authors: Andrew T. Wise and Kevin G. Mosley, Miller & Chevalier Chtd., Washington, DC.
Pickering v. Colorado,
U.S. Sup. Ct., No. 11-870, case below, ___ P.3d ___, 2011 WL 4014400
(Colo. 9/12/11), brief filed 02/13/12. Defense – Self-Defense – Intent –
Due Process. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument:
Element-negating defenses, such as self-defense, often negate the mens
rea needed to sustain a conviction, and due process should require the
prosecution to disprove the defense beyond a reasonable doubt. Authors: Timothy O’Toole and Jeffrey Hahn, Miller & Chevalier Chtd, Washington, DC.
Rubashkin v. United States, U.S. Sup. Ct., No. 11-1203, decision below 655 F.3d 849 (8th Cir. 2011). Judicial Misconduct—Motion for New Trial. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Aleph Institute in support of the petition for certiorari. Argument: Extensive ex parte pretrial
contacts between the trial judge in the prosecutor in planning the
defendant’s arrest and prosecution, coupled with the judge’s failure to
disclose those contacts, raise fundamental substantive and procedural
due process issues. The court of appeals’ requirement that grounds for
granting a new trial based on newly-discovered evidence of judicial
misconduct would probably lead to an acquittal was erroneous and the
decision below should be reversed. Author: Nathan M. Crystal, Crystal & Giannoni-Crystal, LLC, Charleston, SC.
Shaygan v. United States, U.S. Sup. Ct., No. 12-44, case below 652 F.3d 1297 (11th Cir. 2011), reh’g en banc denied, 676 F.3d 1237 (11th Cir. 2012); brief filed 8/10/12. Attorney’s Fees—Hyde Amendment—Federal Court—Right to Counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument:
Fee awards under the Hyde Amendment, which allow acquitted defendants
to recover some of the financial damage they incur from having faced a
criminal prosecution undertaken by the government which has been shown
to be “vexatious, frivolous, or in bad faith,” are a needed check
against prosecutorial misconduct. The Hyde Amendment authorizes an
award of attorney’s fees even where probable cause existed to support
the filing of criminal charges; the Eleventh Circuit’s cramped
interpretation of the statute will have a chilling effect on zealous
advocacy, endangering defendants’ Sixth Amendment Right to Counsel. Authors:
Paul R.Q. Wolfson, Shirley Cassin Woodward and Susan S. Friedman,
Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, and Jeffrey
T. Green, NACDL, Washington, DC.
Smith v. United States, U.S. Sup. Ct., No. 11-8976, case below 651 F3d 30, brief filed 8/27/12. Conspiracy—Defenses—Burden of Proof—Mens Rea. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument:
A defendant’s withdrawal from a conspiracy during the statute of
limitations period negates and element of a conspiracy charge such that,
once a defendant meets his burden of production that he did withdraw,
the burden of proof rests with the government to prove beyond a
reasonable doubt that he was a member of the conspiracy during the
relevant period. The requirement that the prosecution prove the
defendant’s guilt beyond a reasonable doubt is a defendant’s foremost
safeguard against a wrongful conviction. The defendant’s withdrawal
defense negated the “participation” element of the conspiracy, and
relieving prosecutors of their burden to prove a defendant’s mental
state substantially undermines the fairness of the trial by diluting one
of the most important protections against wrongful convictions. Authors: Timothy P. O’Toole and Jeffrey Hahn, Miller & Chevalier, Chartered, Washington, DC.
Southern Union Co. v. United States, U.S. Sup. Ct., No. 11-94, case below 630 F.3d 17 (1st Cir. 2010), brief filed 1/19/12. Criminal Fines—Apprendi/Booker—Right to Jury Trial. Amicus curiae
brief of the Chamber of Commerce of the United States and the National
Association of Criminal Defense Lawyers in support of the petitioner,
Southern Union Co. Argument: In cases where the defendant is a
corporation, the penalty of conviction is necessarily a fine, because a
corporation cannot be incarcerated; unlike most criminal cases, the fine
is not merely part of or an alternative to the penalty, it is the
penalty. The court of appeals erred in ruling that Apprendi v. New Jersey,
which held that any fact, other than a prior conviction, that increases
the penalty for a crime beyond the statutory maximum must be submitted
to a jury and found beyond a reasonable doubt, does not apply to
criminal fines. Authors: Benjamin C. Block and Mark D. Herman, Covington & Burling LLP, Washington, D.C., et al. NACDL’s amicus brief in support of the petition for certiorari, filed 8/19/11, is here.
United States v. Alvarez, U.S. Sup. Ct., No. 11-210, case below, 617 F.3d 1198 (9th Cir. 2010), brief filed 1/20/12. Overcriminalization—First Amendment—“Stolen Valor Act”. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondent Xavier Alvarez. Argument: The Stolen Valor Act of 2005’s false claims provision, 18 U.S.C. §704(b), which makes it a crime when anyone "falsely represents himself or herself, * * * verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States,” is constitutionally overbroad because it punishes speech protected under the First Amendment such as innocent mistakes, harmless misrepresentations, purely private speech, jokes, satire, and dramatic claims. Moreover, it lacks a mens rea requirement and the supposed harm it protects against is not supported by a substantial government interest; as such, it is a classic example of federal overcriminalization. Authors: Michael V. Schafler and Jeffery M. Chemerinsky, Caldwell Leslie & Proctor PC, Los Angeles, CA.
United States. v. Llanez-Garcia, 6th
Cir., No. 12-3585, decision below Case No. 1:11-cr-00177 (Hon. John R.
Adams), 2011 WL 4073920 (N.D. Ohio, Sept. 13, 2011) & 2012 WL
1571522 (N.D. Ohio, May 3, 2012), brief filed 11/27/12. Rule
17(c)---Third-party Subpoenas---Criminal Discovery---Nixon test. Brief of Amici Curiae
National Association of Criminal Defense Lawyers in Support of
Interested Party-Appellant and Reversal of the District Court Decision.
Argument: The Nixon test does not apply to Rule
17(c) subpoenas to third parties. The District Court sanctioned Ms.
Migdal for issuing Rule 17(c) subpoenas to third parties. The Nixon
test applies only to subpoenas issued to the prosecution. Rule 17(c)
subpoenas by defendants to third-parties are proper where they are 91)
reasonable, and (2) not unduly oppressive. The Bowman/Nixon rationale for limiting the scope of Rule 17(c) does not apply to Third-party subpoenas. A less stringent standard than the Nixon
test comports with criminal discovery principles. At a minimum, the
case law supporting Ms. Migdal’s interpretation confirms that her
conduct was not sanctionable. Authors: Pierre H. Bergeron,
Lauren S. Kuley, Squire Sanders (US) LLP, Cincinnati, OH; Candace C.
Crouse, Strauss Troy, LPA, Cincinnati, OH.
United States v. Ring, D.C. Cir., No. 11-3100, brief filed 3/14/12. Fraud—Bribery—Honest Services. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Center for Competitive Politics in support of appellant. Argument: In Skilling v. United States
(2010), the Supreme Court held that to prove “honest services” fraud
under 18 U.S.C. §1346, the government must prove bribery and quid pro quo—an
exchange of a thing of value and an official act taken in response. In
this case, the district court’s instructions read the bribery
requirement out of the statute, permitting the jury to convict the
appellant without any showing of quid pro quo, but only a
unilateral “intent to influence.” The lower court’s interpretation of
the statute threatens to chill, even criminalize, a broad range of
innocent conduct, particularly campaign contributions. Authors: Paul F. Enzinna and Evan N. Turgeon, Brown Rudnick LLP, Washington, DC, et al.
Walton v. United States, No. 12-5847, decision below 681 F.3d 678 (5th Cir. 2012), brief filed 9/19/12. Jury Instructions—Willful Blindness. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Brooks v. United States, No. 12-218. Question presented: Given the requirements of Global-Tech Appliances, Inc. v. SAB, S.A., 131 S.Ct. 2060 (2011), how should the jury be instructed on “willful blindness” in a criminal case? Author: John D. Cline, San Francisco, CA.