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.
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--wire fraud. 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 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.
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).
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 petition for writ of certiorari. 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.
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.
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. 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. 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.