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.
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).
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.
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. Clay, 11th Cir., No. 14-12373, Appeal from the U.S. District Court for the Middle District of Florida, No. 8:11-cr-00115-JSM-MAP, brief filed 9/26/14. Whiteside---Statutory Interpretation---Objectively Reasonable---Knowingly False---Florida Medicaid Statute. Brief for Amici Curiae National Association of Criminal Defense Lawyers, Reason Foundation and Five Criminal and Health Law Scholars In Support of Defendants-Appellants Urging Reversal. Argument: This Court held in United States v. Whiteside, 285 F. 3d 1345, 1351 (11th Cir. 2002), that a false statement charge cannot succeed when the statement is true under an objectively reasonable interpretation of the law. Under Whiteside, a statement is knowingly false only when its falsity is clear. Whiteside is an important protection against inappropriate prosecutions. Whiteside prevents government overreaching in uncertain regulatory environments. Whiteside curbs inappropriate prosecutions based on breach of contract. Whiteside protects against arbitrary and inconsistent enforcement, as occurred here. The Whiteside question should have been resolved by the district court, and this Court should conduct the Whiteside analysis de novo. Authors: Matthew G. Kaiser and Christopher C. Muha, The Kaiser Law Firm, Washington, DC; William N. Shepherd, Holland & Knight LLP, West Palm Beach, FL.
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.
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.