White Collar Amicus Briefs

For the larger set of NACDL amicus briefs posted on this site, please click here.



2009    2008    2007    2006    2005    2003



2009

  • Conrad M. Black v. U.S., U.S. Sup. Ct., No. 08-876, case below, 530 F.3d 596 (7th Cir. 2008), brief filed 8/6/09. Due Process—Federalism---Honest-Services Fraud---Forfeiture and Preservation of Objections. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers in support of petitioners. Argument: Section 1346 violates due process requirements by (i) not providing fair warning, at the time of the offense, of what conduct is prohibited, and (ii) failing to be clear and specific enough to inform the public of precisely what conduct is prohibited and cabining law enforcement’s discretion within reasonable limits. In addition, interpretation of Section 1346 to impose a federal-law duty to provide “honest services” irrespective of state law would invite federal courts to create a federal common law of honest dealing, an approach which has been anathema for two centuries. The Seventh Circuit’s forfeiture rule would unfairly compel defendants either to accept prejudicial interrogatories or to forfeit objections to prejudicial instructional error. Authors: Jonathan L. Marcus, Roger A. Ford, James McCall Smith, Convington & Burling LLP, Washington, DC.

  • Nacchio v. United States, U.S. Sup. Ct., No. 08-1172, case below, 555 F.3d 1234 (10th Cir. 2009), brief filed 4/2209. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers in support of granting the petition. In the case below, first argued in 2008 and reheard en banc by the 10th Circuit court of appeals, the defendant and amici argued that the trial court judge improperly excluded a defense expert witness who would have explained the former executive’s trading of Qwest stock to the jury. Authors: Andrew H. Schapiro and Scott A. Claffee, Mayer Brown LLP, Washington, D.C.

  • Nijhawan v. Holder, U.S. Sup. Ct., No. 08-495, decision below 523 F.3d 387 (3d Cir. 2008), brief filed 03/04/09. Fraud—Immigration/Deportation—Aggravated felony. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: Whether to avoid raising constitutional doubt or to provide fair warning under the rule of lenity, 8 U.S.C. §1101(a)(43)(M)(i) (defining an offense that involves fraud or deceit in which the loss to the victim(s) exceeds $10,000) is a “dual use” statute requiring consistent interpretation in both criminal and immigration law contexts. Authors: Iris E. Bennett, Anjan Choudhury and Michael A. Hoffman, Jenner & Block LLP, Washington, D.C. and David A. Newman, Jenner & Block, New York, NY.

  • Skilling v. U.S., U.S. Sup. Ct., No. 08-1394, case below, 554 F.3d 529 (5th Cir. 2009), brief filed 12/09. Honest-Services Fraud---Due Process--Vagueness---Pretrial Publicity--Voir Dire. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner and urging reversal. Argument: The theft-of-honest-services statute¸18 U.S.C. §1346, is void for vagueness; also, the presumption of prejudice that arises from intense community hostility and pervasive adverse publicity cannot be rebutted through voir dire. Author: John D. Cline, Jones Day, San Francisco, CA. Here is a link to NACDL’s amicus brief in support of the Skilling petition for writ of certiorari.

  • United States v. Kuehne, 11th Circuit, No. 09-10199, brief filed 6/15/09. Opinion below 2008 WL 5381394 (S.D. Fla. Dec.22, 2008). Money laundering—Conspiracy. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Defendants-Appellants in Support of Affirmance of Dismissal of money laundering conspiracy count. Argument: In that Congress provided an exception to the money laundering statutes, 18 U.S.C. §1956-1957, for bona fide attorneys’ fees – transactions “necessary to preserve” an individual’s Sixth Amendment right to representation—the government’s parsimonious view of what is “necessary” to a defense threatens to hamstring all complex criminal defense efforts by interjecting the threat of prosecution into every monetary transaction over $10,000 in which counsel enters. The threat of possible prosecution of retained counsel in virtually any case may well dissuade attorneys from taking on clients in certain types of cases, thus depriving some defendants of their right to counsel of choice. Authors: Howard M. Shapiro, Jonathan E. Neuchterlein, et al., WilmerHale LLP, Washington, DC, and David Oscar Markus, Miami, FL. Brief in Support of Defendant's Motion to Dismiss before the U.S. District Court for the Southern District of Florida.

  • United States v. SDI Future Health Inc., 9th Cir., No. 07-10261, panel decision, 553 F.3d 1246 (9th Cir. 2009), brief filed Feb. 27, 2009. Search and seizure—Business premises—Shareholder’s standing to challenge search. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant-appellees’ petition for rehearing en banc. The district court granted a motion to suppress filed by the defendant SDI, a closely-held corporation, and its two major shareholders, and the government appealed. The court of appeals affirmed in part and reversed in part, and the defendants filed a petition for rehearing en banc. Argument: The panel incorrectly held that an owner of a closely-held corporation (other than a “small, family-run business”) lacks standing to challenge a search pursuant to a defective warrant of the corporate premises beyond his personal office; the interests of a closely-held corporation may coincide with the interests of the owner himself; and the owners of a closely-held corporation may have Fourth Amendment rights in the company’s entire premises. Authors: Kevin P. Martin, Goodwin Proctor LLP, Boston, and Sheryl McCloud, Seattle.

  • United States v. Turk, U.S. District Court (S.D.N.Y.), No. 07-CR-1062 (NRB) , filed 10/19/09. U.S. Sentencing Guidelines---Loss Analysis---Fraud. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the New York Council of Defense Lawyers. Argument: Defendants should be sentenced based only upon those losses that their conduct proximately caused. The government’s efforts to limit proximate cause analysis to securities fraud cases are unconvincing and unsupported; application of proximate cause principles will avoid unjust results that conflict with the purposes of the guidelines. Authors: Lawrence S. Bader, Robert M. Radick, and Claudio Ochoa of Morvillo, Abramowitz, Grand, Iason, Anello, and Bohrer P.C. in New York, NY; Richard D. Willstatter, Vice Chair of NACDL’s Amicus Curiae Committee and Amicus Curiae Committee Chair for the New York State Association of Criminal Defense Lawyers of White Plains and New York, NY; and Barry A. Bohrer, President of the New York Council of Defense Lawyers.

  • Weyhrauch v. U.S., Sup. Ct., No. 08-1196, case below, 548 F.3d 1247 (9th Cir. 2008), brief filed 9/21/09. Due Process---Honest-Services Fraud---Section 1346---Federalism. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: The federal “honest services” fraud statute, 18 U.S.C. 1346, raises critical constitutional concerns in that it (i) is unconstitutionally vague and fails to provide the degree of fair warning of its scope or meaning, as required by the Due Process Clause, and (ii) invades a regulatory area constitutionally committed to the states under the doctrine of federalism. Authors: Abbe David Lowell, Paul M. Thompson, and Jeffrey W. Mikoni, McDermott Will & Emery LLP, Washington, DC.

    2008

  • Caperton v. A.T. Massey Coal Co., U.S. Sup. Ct., No. 08-22, opinion below 2008 WL 918444 (W.Va. 2008), cert. granted 11/14/08, brief filed 01/05/09. Judicial Elections—Judicial Ethics—Recusal. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petitioner. Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60 percent of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. Question presented: Whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment. Author: Norman L. Reimer, National Association of Criminal Defense Lawyers, Washington, D.C. On brief: Pamela Harris, O’Melveny & Myers, Washington, D.C.

  • Flores-Figueroa v. United States, U.S. Sup. Ct., No. 08-108, case below 274 Fed. Appx. 501 (8th Cir. 2008), brief filed 12/22/08. Mens Rea—Aggravated Identity Theft. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Question Presented: Whether a statute’s specified mens rea requirement extends to all elements of the offense, the application of which in this case would resolve whether, to prove aggravated identity theft under 18 U.S.C. § 1028A(a)(1), the government must show that the defendant knew that the means of identification he used belonged to another person. Argument: The Court should adopt the Model Penal Code Rule (§ 202(4) (1985)) that a specified mens rea requirement extends to all material elements of a statute unless a contrary purpose plainly appears, and that the rule of lenity requires reading the statute to require knowledge of all elements of the crime. Authors: Sri Srinivasan, Irving L. Gornstein, Justin Florence, O’Melveny & Myers LLP, Washington, DC, and Pamela Harris, Amicus Committee Co-Chair, National Association of Criminal Defense Lawyers, and O’Melveny & Myers LLP, Washington, DC.

  • Kay v. United States, U.S. Sup. Ct., No. 07-1281. Indictment—Rule of lenity. Amicus curiae  brief of the National Association of Criminal Defense Lawyers in support of the petition for a writ of certiorari.  Questions presented: 1. When an indictment omits an element of the offense, must it be dismissed, or may such an error instead be excused as harmless? (The Court granted certiorari to decide this question, but did not resolve it, last Term in United States v. Resendiz-Ponce, 127 S. Ct. 782, 785-86 (2007).)  2. When the text, structure, and legislative history of a criminal statute are all ambiguous, is the rule of lenity applicable, or instead is that principle limited merely to cases in which the court can only “guess” at Congress’s intent?  Authors: John D. Cline and Peter E. Davids, Jones Day, San Francisco, CA.

  • United States v. Ionia Management, S.A., U.S. Court of Appeals for the Second Circuit, No. 07-5801-CR, brief filed 6/6/08.  Vicarious criminal liability – Jury instructions – Respondeat superior doctrine. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the Association of Corporate Counsel, the National Association of Manufacturers, the U.S. Chamber of Commerce and the Washington Legal Foundation.  Appeal from the criminal conviction of a shipping company for unlawful actions of the crew of one of its ships, over which the company had no direct control while on the high seas.  Argument: Assignment of vicarious corporate criminal liability through the application of the civil law doctrine of respondeat superior, in which an employer may be held for wrongful actions of his employee in some circumstances, was authorized neither by statute nor precedent. Authors: Andrew Weissmann, et al., Jenner & Block LLP, New York, NY.

  • United States v. Nacchio, 10th Cir., No. 07-1311, 519 F.3d 1140 (10th Cir. 2008), pet. rehearing en banc granted 7/30/08; oral argument 9/25/08. Expert witnesses.  NACDL amicus curiae brief in support of appellant Joseph P. Nacchio addressing the district court's refusal to allow the defendant to call an expert witness. On March 17, 2008, the court of appeals reversed the defendant's conviction finding that the exclusion of the defense expert was prejudcial error; the government petitioned for rehearing before the full court of appeals. Authors: Andrew H. Schapiro and Evan P. Schultz, Mayer Brown, New York and Washington; David B. Smith, English & Smith, Alexandria, VA. NACDL amicus curiae brief in support of appellant en banc filed 9/03/08. Author: Andrew H. Schapiro, Mayer Brown LLP, New York.

  • United States v. Reyes, 9th Cir., No. 08-10047, brief filed 9/12/08. Securities fraud – Mens rea – Prosecutorial misconduct -- Options backdating. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Evidence alone that defendant signed options grants to other people – and not to himself – that were improperly dated is insufficient to establish the requisite mens rea to have “willfully” violated the criminal securities fraud laws. The only government witness to the alleged deception was a low level finance department employee who testified that she did not know that the options grants had been backdated and who recanted her testimony after trial. The brief also argues also that the facts of this case fail to establish even the “materiality to investors” requirement for a finding of civil liability; the evidence being insufficient as a matter of law, the conviction should be vacated and remanded with directions to enter a verdict of acquittal. Authors: Donald Falk, et al., Mayer Brown LLP, Palo Alto, CA.

  • United States v. San Diego Gas & Electric Co., U.S. Ct. App. 9th Circuit, brief filed 11/7/08. Amicus curiae brief of the Washington Legal Foundation and the National Association of Criminal Defense Lawyers in support of defendant-appellees urging affirmance.  Argument: Defendants were unjustly prosecuted and convicted for allegedly violating work practice standards promulgated under the Clean Air Act regarding removal and disposal of asbestos-containing material found in multi-layer pipe wrap, but no evidence was presented that a single asbestos fiber was released into the environment. Amici urge the court to affirm the district court’s order granting a new trial. Authors: Daniel J. Popeo, Paul D. Kamenar and Richard A. Samp, Washington Legal Foundation, Washington, DC.

  • United States v. Svete, 11th Cir., No. 05-13809, on rehearing en banc.  Mail fraud—Standard of proof. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Appellants on rehearing en banc. Argument: Requiring proof beyond a reasonable doubt that a defendant created a scheme or artifice to defraud “a person of ordinary prudence and comprehension” demarcates the boundary between conduct that is merely unethical and conduct that is unlawful and worthy of criminal prosecution. Authors: Paul N. Monnin, DLA Piper US LLP, Atlanta, GA and Donald F. Samuel, Garland Samuel & Loeb PC, Atlanta, GA.

  • United States v. Tomko, 3rd Cir., No. 05-4997, on reh’g 498 F.3d 157, brief filed 10/1/08. Sentencing—White collar crime—Federal Sentencing Guidelines—Probation. Amicus curiae brief of the National Association of Criminal Defense Lawyer and Federal Public and Community Defenders of the Third Circuit in support of appellee on rehearing en banc. Argument: District court’s sentence of probation, home confinement and alcohol treatment was appropriate in this tax evasion case. The brief addresses in detail the failure of the Sentencing Commission to comply with statutory mandates relative to probation, as applied in particular to tax and other white collar cases, concluding that under the Supreme Court's recent decisions in Gall and Kimbrough judges should be especially free to reject the guidelines' excessive reliance on imprisonment and instead to grant a great deal more probationary sentences than has been the case in the last 20 years. Numerous authors.

    2007

  • Boulware v. United States, U.S. Sup. Ct., No. 06-1509, opinion below 470 F.3d 931 (9th Cir. 2006), brief filed 11/13/07. Criminal tax prosecution—Corporations—Shareholders. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: Diversion of corporate funds to a shareholder of a corporation without earnings and profits automatically qualifies as a non-taxable return of capital up to the shareholder’s stock basis, even if the diversion was originally not labeled as a return of capital. Author: John L. Pollok, New York, NY.

  • Cuellar v. United States, U.S. Sup. Ct., No. 06-1456, cert. granted, 10/15/07, Brief of the National Association of Criminal Defense Lawyers in support of certiorari. QUESTION PRESENTED: Whether merely hiding funds with no design to create the appearance of legitimate wealth is sufficient to support a money laundering conviction. Brief argues that the money laundering statute, 18 U.S.C. §1956, is subject to expansive interpretations that encourage broad, unintended and unfair applications of the statute. Authors: Craig D. Singer, John E. Clabby, David A. Taylor, Williams and Connolly LLP, Washington, D.C.

  • United States v. Santos, U.S.Sup.Ct., No. 06-1005, filed 8/22/07. Arg. 10/03/07. Gambling, Money Laundering. Arguing, inter alia, that the 7th Circuit Court of Appeals’ interpretation of the term “proceeds” as limited to profits is consistent with congressional intent and necessary to prevent defendants from inappropriately being punished twice (and more severely) for the same conduct. Authors: Jeffrey T. Green and Kevin M. Henry, Sidley Austin LLP, Washington, DC.

  • United States v. W.R. Grace, U.S. Ct. App. 9th Circuit, No. 06-30472, amicus curiae brief in support of defendant-appellees’ petition for rehearing en banc. Rule of Lenity--Refiling of dismissed defective indictment after lapse of statute of limitations. Argument: The panel decision erroneously failed to apply the rule of lenity in its ruling that the Clean Air Act’s ban on releasing hazardous air pollutants are defined more broadly in the criminal context than in the civil context; even if there were some merit in the panel’s ruling, the Act is ambiguous in that regard, which triggers the rule of lenity. The panel decision is also in error in holding that the government may cure an untimely indictment, originally dismissed for failure to state an overt act within the statute of limitations, by filing a superseding indictment within six months of dismissal. Authors: Kristina Silja Bennard and David W. Marshall, Davis Wright Tremaine LLP, Seattle, WA.

    2006

  • Claiborne v. United States & Rita v. United States, U.S. Sup. Ct., Nos. 06-5618 & 06-5754, filed 12/18/06, argument 2/20/07. Federal Sentencing Guidelines, Post-Booker. NACDL Amicus curiae brief in support of the petitioners, combining questions presented: Is it consistent with the Supreme Court’s decision in United States v. Booker (2005), either to require that a sentence which constitutes a substantial variance from the sentencing guidelines be justified by extraordinary circumstances or to presume that a within-the-guidelines sentence is “reasonable”? Authors: Miguel A. Estrada and David Debold, Gibson, Dunn & Crutcher LLP, Washington, DC.

  • Stolt-Nielsen v. United States, U.S. Sup. Ct., No. 06-97, filed 9/20/06. Amicus curiae brief of the Washington Legal Foundation, the National Association of Manufacturers and the National Association of Criminal Defense Lawyers in support of petition for certiorari. Argument: The U.S. Court of Appeals for the Third Circuit erred in holding that under the Separation of Powers doctrine, federal courts lack the authority to enjoin federal prosecutors from breaching a binding contractual obligation “not to bring any criminal prosecution” of a company and its executions who cooperated in a federal investigation. Authors: Daniel Popeo and Richard A. Samp, Washington Legal Foundation, Washington, D.C.

  • U.S. v. Valdes, D.C. Cir., No. 03-3066, filed July 3, 2006. NACDL Amicus brief in support of appellant on rehearing en banc. Previous decision: 437 F.3d 1276 (D.C. Cir. 2006). Argument: In a prosecution of a public official for accepting an "illegal gratuity" under 18 U.S.C. § 201, the definition of "official act" should be narrowly construed; a broad application of § 201 would over-criminalize ethics transgressions and criminalize de minimus ethical lapses, burdening the criminal justice system and possibly leading to the absurd result of criminalizing innocent gift-giving between citizens and public servants. Authors: Blair G. Brown and Barak Cohen.

    2005

  • Arthur Andersen, LLP v. U.S., USSupCt., No. 04-368, Amicus Curiae. In this case, in which one of the last remaining big accounting firms was essentially driven out of business, the entire conviction hinged on edits made to one memo by one in-house lawyer--edits that any reasonable person would consider permissible and even necessary to the representation of a client. Among many other arguments, NACDL urged in its brief that the trial judge's jury instruction on obstruction of justice criminalized entirely lawful conduct.

  • United States v. Brown, 5th Cir., No. 05-20319. NACDL Amicus Curiae brief arguing that the appellants were prosecuted under novel theories that expanded the wire fraud statute, i.e., that the appellants engaged in a scheme to deprive Enron of a “property right” to receive a full and fair report of the corporation’s “full and accurate economic information” and deprived the company of an intangible right of honest services of its employees. Brief argues that the wire fraud statute (18 U.S.C. §1343) neither creates nor protects a “property right” to “accurate financial information”; that the phrase “scheme to defraud” as used in the statute is limited to schemes in which the defendant obtains money or property; and last, that the jury instructions erroneously extended liability for deprivation of honest services to defendants who worked openly with company employees to the company’s and shareholders’ benefit. Author: James E. Boren, Baton Rouge, La.

    2003

  • United States v. Frank Quattrone, 2nd Cir., No. 04-5007-cr. Amici Curiae brief by National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice (filed 2/7/05). Author: Joshua Dratel, President, NYSACDL.





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