Amicus Briefs ~ 2014

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.

Farrow v. Lipetzky, 9th Cir., No. 13-16781, decision below Case No. 12-cv-06495-JCS (Hon. Joseph C. Spero), 2013 WL 4042276 (N.D. Cal. Aug. 7, 2013), brief filed 1/17/14. Sixth Amendment---Right to Counsel---Initial Appearance---Indigent Defense. Brief of Amici Curiae National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice in Support of Plaintiffs-Appellants. Argument: A criminal defendant has a fundamental constitutional right to appointed counsel at any ‘critical stage’ of the proceedings against him. The defendant’s first appearance before a magistrate can result in substantial prejudice to the defendant’s rights. California’s initial appearance is a ‘critical stage’ requiring the presence of appointed counsel. Authors: Gia Cincone, Kilpatirck Townsend & Stockton LLP, San Francisco, CA; David Porter, Sacramento, CA.

Illinois v. Pacheco, Supreme Court of Illinois, Case No. 116402, case below 991 N.E.2d 896 (Ill.App. 4 Dist. 2013), Case No. 4-11-0409, brief filed 1/8/14. Miller---Graham---Automatic Transfer---Mandatory Sentencing---Felony Murder---Murder by Accountability---LWOP---Juvenile Justice---Eighth Amendment. Brief of Juvenile Law Center, Loyola Civitas Childlaw Clinic, et al., as Amici Curiae in Support of Defendant-Appellant (full list of amici in Appendix A to attached brief). Argument: U.S. Supreme Court jurisprudence demonstrates that the automatic prosecution and mandatory sentencing of certain youth charged with murder as adults is unconstitutional. Under U.S. Supreme Court case law, Illinois’s transfer and mandatory sentencing statutes are unconstitutional because they do not allow for individualized sentencing of minors transferred to adult court and convicted of murder. Youth are fundamentally different from adults in constitutionally relevant ways. The Illinois automatic transfer and mandatory sentencing statutes are unconstitutional because they do not permit a sentencing court to consider the individual maturity and degree of culpability of each youth convicted of murder. The U.S. Supreme Court’s “kids are different” jurisprudence is not limited to a particular type of crime, sentence or constitutional provision. Illinois’ statutory scheme is unconstitutional because it subjects youth who were not principally responsible – such as those charged with felony murder or those charged under an accountability theory – to automatic transfer to adult court and mandatory sentencing without a court’s consideration of the constitutionally relevant attributes of adolescence. Illinois’s statutory scheme departs from national norms. Illinois is an outlier because its statutes require certain youth to be tried in adult court based on age and charge alone, without the opportunity for a court to make an individualized determination as to whether juvenile court jurisdiction would be more appropriate based on the youth’s unique degree of culpability and capacity for change and rehabilitation. Public policy and public opinion overwhelmingly opposes the automatic transfer to adult court and mandatory imposition of adult sentences without judicial review of the individual youth’s degree of culpability and amenability to rehabilitation. Authors: Lourdes M Rosado, Riya S. Shah, and Marsha L. Levick, Juvenile Law Center, Philadelphia, PA; Bruce A. Boyer, Loyola Civitas Childlaw Clinic, Chicago, IL.

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.

Martin v. Symmes, 8th Cir., Case No. 13-3676, decision below slip copy, 2013 WL 5653447 (D. Minn. 2013) , brief filed 1/28/14. Miller---Graham---Retroactivity---Sentencing---LWOP---Juvenile Justice---Eighth Amendment. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae on Behalf of Appellant (full list of amici in appendix to attached brief). Argument: Miller reaffirms the U.S. Supreme Court’s recognition that children are categorically less deserving of the harshest forms of punishments. Miller v. Alabama applies retroactively. Miller is retroactive because Kuntrell Jackson received the same relief on collateral review. Miller applies retroactively pursuant to Teague v. Lane. Miller is retroactive because it announces a substantive rule that categorically prohibits the imposition of mandatory life without parole on all juvenile offenders. Miller is retroactive because it involves a substantive interpretation of the Eighth Amendment that reflects the Supreme Court’s evolving understanding of child and adolescent development. Miller is a "watershed rule" under Teague. Once the Court declares a particular sentence "cruel and unusual" when imposed on a juvenile, the continued imposition of that sentence violates the Eighth Amendment. Authors: Marsha L. Levick, Emily C. Keller, and Lauren Fine, Juvenile Law Center, Philadelphia, PA.

Medina v. Arizona, U.S. Sup. Ct., No. 13-735, decision below 232 Ariz. 391, 306 P. 3d 48 (Ariz. Aug. 22, 2013), brief filed 1/21/14. Autopsy Reports---Courtroom Testimony---Confrontation Clause---Cross-Examination---Crawford---Melendez-Diaz. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for Writ of Certiorari) Argument: Autopsy procedures are not standardized and incorporate evidence beyond that obtained from the body, including evidence provided by the police. Autopsy reports convey circumstantial evidence as authoritative and fail to reflect internal dissent. Medical examiners view themselves as advocates for the dead The nature of autopsy reports marks them as testimonial and hence subject to the strictures of the Confrontation Clause. Authors: Robert N. Hochman, Sidley Austin LLP, Chicago, IL; Jeffrey T. Green and Sean R. Dickson, Sidley Austin LLP, Washington, DC; David Porter, Sacramento, CA; Sarah O’Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL.

People v. Carp; People v. Davis; People v. Eliason, Michigan Supreme Court, Case Nos. 146478, 146819 and 147428, respectively, appeals from the Court of Appeals of Michigan, brief filed 2/21/14. Miller---Graham---Retroactivity---Sentencing---LWOP---Juvenile Justice---Eighth Amendment---Felony Murder---Individualized Sentences---Meaningful Opportunity for Release. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae In Support of Appellants Carp, Davis and Eliason (full list of amici in appendix to attached brief). Argument: Miller reaffirms the U.S. Supreme Court’s recognition that children are categorically less deserving of the harshest forms of punishments. Miller v. Alabama applies retroactively. Miller is retroactive because Kuntrell Jackson received the same relief on collateral review. Miller applies retroactively pursuant to Teague v. Lane. Miller is retroactive because it announces a substantive rule that categorically prohibits the imposition of mandatory life without parole on all juvenile offenders. Miller is retroactive because it involves a substantive interpretation of the Eighth Amendment that reflects the Supreme Court’s evolving understanding of child and adolescent development. Miller is a "watershed rule" under Teague. Once the Court declares a particular sentence "cruel and unusual" when imposed on a juvenile, the continued imposition of that sentence violates the Eighth Amendment. Any life without parole sentences for a juvenile who did not kill or intend to kill is inconsistent with adolescent development and neuroscience research and unconstitutional pursuant to Miller and Graham. Intent to kill cannot be inferred when a juvenile is convicted of felony murder. Any life without parole sentence for a juvenile convicted of felony murder is unconstitutional pursuant to Miller and Graham. All juveniles convicted of murder in Michigan are entitled to individualized sentences that presumptively provide a meaningful opportunity for release. Authors: Marsha L. Levick, Juvenile Law Center, Philadelphia, PA; Bruce W. Neckers, Rhoades McKee PC, Grand Rapids, MI.

People v. Roman Baret, New York Court of Appeals, No. 2014-283, case below Bronx County Indictment No. 2735/1995, brief filed 3/13/14, accepted by the court as filed 3/27/14. Padilla v. Kentucky---Retroactivity---Immigration Consequences---Deportation—Ineffective Assistance of Counsel---Fundamental Fairness. Brief for Amici Curiae the New York State Defenders Association, Inc., New York State Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers et al., including Immigrant Defense Project (complete list of amici is available in appendix to brief linked above). Argument: The advice regarding deportation is critical to an immigrant defendant. The professional standards supporting this duty in New York pre-date the 1996 immigration laws. The rule articulated in Padilla v. Kentucky applies under New York law to remedy Padilla violations pertaining to uninformed pleas entered in New York at least from the passage of AEDPA and IIRIRA in 1996 onward. Fundamental fairness demands that the courthouse doors remain open, at least, to Padilla claims arising from pleas entered after AEDPA and IIRIRA, not merely for those cases that were pending when Padilla was decided or came after Padilla. Authors: Manuel D. Vargas and Dawn M. Seibert, Immigrant Defense Project, New York, NY, et al.

Plumhoff v. Rickard, U.S. Sup. Ct., No. 12-1117, decision below Estate of Allen v. City of West Memphis, 509 Fed. Appx. 388 (6th Cir. 2012) (not selected for publication in the Federal Reporter, No. 11-5266), brief filed 2/5/14. Civil Case for Excessive Force---Qualified Immunity---Fourth Amendment. Amicus Curiae Brief of the National Association of Criminal Defense Lawyers Supporting Respondent. Argument: If the Court of Appeals failed to determine whether petitioners’ conduct violated Rickard’s clearly established constitutional rights, this Court should remand the case to the Court of Appeals with instructions to do so. If the Court remands the qualified immunity issues, it should not reach the constitutional questions. A number of proffered justifications are inconsistent with clearly established law in 2004. A number of the justifications proffered by petitioners rest on disputed facts. The government does not advance a sound basis for concluding that the defendants are entitled to qualified immunity. Authors: Eric Schnapper, University of Washington School of Law, Seattle, WA; David Porter, Sacramento, CA.

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.

Ex Parte Neal Hampton Robbins, Texas Court of Criminal Appeals, WR-73, 484-02, Successive Application for a Writ of Habeas Corpus in Cause No. 98-06-0075-CR from the 410th Judicial District Court of Montgomery County, brief filed 3/10/14. Habeas Corpus---Disavowed Expert Testimony---Article 11.073 of the Texas Code of Criminal Procedure. Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae Supporting Applicant. Argument: Article 11.073 requires a new trial where the conviction itself and the determination that a crime occurred at all are “primarily dependent” upon expert testimony later reevaluated by the witness and found to be scientifically insupportable, a conclusion confirmed by other reliable expert evidence. Author: Shirley Baccus-Lobel, Law Office of Shirley Baccus-Lobel, Dallas, TX.

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. 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.

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.

In This Section

Advertisement Advertise with Us
ad