2014 White Collar Amicus Briefs

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.

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.

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.

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.

United States v. Davis, 11th Cir. (en banc), Case No. 12-12928-U, panel decision 754 F.3d 1205 (11th Cir. June 11, 2014), case below No. 10-20896-CR (S.D. Fla. 2012), brief filed 11/14/14. Fourth Amendment---Seizure---Historical Cell Site Location Information---Privacy---Good Faith Exception. En Banc Amici Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Appellant Quartavious Davis. Argument: For good reason, the Supreme Court has nearly always rejected the claim that the Fourth Amendment does not regulate advancement in surveillance technology, including location tracking. Obtaining the location data sent by the defendant’s telephone without a warrant supported by probable cause was an unconstitutional seizure of the defendant’s private information. In this case, the investigating officers could not have believed in good faith that the order requiring production of the defendant’s location tracking records was constitutional. Author: Prof. Ricardo J. Bascuas, University of Miami School of Law, Miami, Florida.

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.

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.

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