Amicus Briefs ~ 2015

Almanza-Arenas v. Lynch, 9th Cir., No. 09-71415 & 10-73715, Agency No. 078-755-092, decision below (panel decision) 771 F.3d 1184 (9th Cir. Nov. 10, 2014), brief filed 8/7/15. Statutory Interpretation/Construction---Divisibility---Modified Categorical Approach---Rule of Lenity---Statute/Offense Elements---Immigration Consequences. Amicus Curiae Brief of the Ninth Circuit Federal Public and Community Defenders, The California Public Defenders Association and individual California Public Defender offices, and the National Association of Criminal Defense Lawyers in Support of Petitioner-Appellant During Pendency of Rehearing En Banc. Argument: Rendon faithfully applied Descamps's "Elements-Based" approach and correctly held that state law determines a statute's elements. The government and Judge Graber's approach is inconsistent with Descamps, resurrects Aguila-Montes, and creates tension with a century of state law. State law – not Shepard documents – determines a statute's elements. In California, the Shepard-approved documents will not necessarily reflect a crime's elements. Courts must look to state law—rather than the Shepard documents—to identify an offense's elements. At a minimum, this Court should apply the rule of lenity. Applying these principles reveals that California vehicle theft contains a single, indivisible set of elements. The Almanza approach permits defense attorneys to accurately advise their clients of immigration consequences. Authors: Vincent J. Brunkow & Kara Hartzler, Federal Defenders of San Diego, San Diego, CA; Jeffrey Erwin Ellis, Portland, OR.

Bruce v. Samuels, U.S. Sup. Ct., No. 14-844, decision below Pinson v. Samuels, 761 F.3d 1 (D.C.Cir. Oct. 22, 2014), brief filed 8/18/15. Prison Litigation Reform Act (PLRA)---28 U.S.C. §1915(b)(2)---In Forma Pauperis---Filing Fees---Access to the Courts---Opportunity for Judicial Redress---"Per Prisoner" Approach. Brief of the Southern Poverty Law Center, the National Association of Criminal Defense Lawyers, and the Human Rights Defense Center as Amici Curiae in Support of Petitioner. Argument: Congress enacted the PLRA against the background of this country's tradition of access to the courts and the opportunity for judicial redress. The fee-collection provision of the PLRA reflects a careful balance. The "Per Case" approach threatens to deter meritorious lawsuits. Author: Clifford M. Sloan, Paul M. Kerlin, Marisa B. Van Saanen, and James C. Altman, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC.

Commonwealth v. Depiero, Supreme Judicial Court of Massachusetts, No. SJC-11893, decision below 87 Mass. App. Ct. 105 (Feb. 19, 2015), brief filed 10/26/15. Motor Vehicle Stops---Reasonable Suspicion---Reliability of Tips---Aguilar-Spinelli Test---Insufficiently Corroborated, Anonymous 911 Calls. Brief of Amicus Curiae Filed by the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant. Argument: When the basis for a motor vehicle stop is a stand-alone anonymous 911 telephone call, the Aguilar-Spinelli test should apply to the reasonable suspicion determination. Anonymous 911 calls are not inherently self-verifying and evolving technology requires the modernization of how the reliability is determined. Author: Daniel K. Gelb, Gelb & Gelb LLP, Boston, MA.

Davis v. United States, U.S. Sup. Ct., No. 15-146, decision below 785 F.3d 498 (11th Cir. (en banc) May 5, 2015), panel decision 754 F.3d 1205 (11th Cir. June 11, 2014), case below No. 10-20896-CR (S.D. Fla. 2012), brief filed 8/31/15. Fourth Amendment--- Cell Site Location Information---Probable Cause Warrant---Privacy. Brief of Amici Curiae Electronic Frontier Foundation, Brennan Center for Justice at NYU School of Law, Center for Democracy & Technology, The Constitution Project and National Association of Criminal Defense Lawyers in Support of Petitioner. Argument: The number of cell phones and cell sites has dramatically increased in the last twenty years. Cell site location information (CSLI) paints a revealing portrait of a person’s movements. The number of law enforcement requests for location information – requests predominantly made without a warrant – is increasing. Certiorari is necessary to resolve the judicial split on whether a warrant is required to obtain CSLI, particularly as Americans expect these records to remain private. Authors: Hanni M. Fakhoury, Jennifer Lynch, and Andrew Crocker, Electronic Frontier Foundation, San Francisco, CA; Michael Price and Rachel Levinson-Waldman, Brennan Center for Justice, New York, NY; Jeffrey T. Green, NACDL, Washington, DC.

Doe v. Snyder, 6th Cir., No. 15-1536, decision below 2015 WL 1497852 (E.D. Mich. March 31, 2015), brief filed 9/30/15. Sex Offender Registration Act (SORA)---Mens Rea---Ordinarily-Innocent Conduct---Due Process---Notice. Brief of the National Association of Criminal Defense Lawyers, Criminal Defense Attorneys of Michigan, and National Association for Public Defender as Amici Curiae Supporting Affirmance. Argument: Due process bars the state from prosecuting a person for otherwise-innocent conduct—including convicted persons' failure to register their presence with law enforcement—without proof of wrongful intent. SORA criminalizes conduct that is ordinarily innocent, and even law enforcement officials disagree on what otherwise-innocent conduct SORA makes criminal. Notice provisions do not replace the due process requirement of proving wrongful intent. Prosecutorial discretion adds to SORA's due process problems. Authors: Christian J. Grostic, Kuhner & Hamed Co., LPA, Cleveland, OH; Candace Crouse, Pinales Stachler Young, Burrell & Crouse Co., LPA, Cincinnati, OH; John R. Minock, Ann Arbor, MI.

Glasmann v. Washington, U.S. Sup. Ct., No. 15-36, decision below 183 Wash.2d 117 (Wash. 2015), brief filed 8/10/15. Fifth Amendment---Double Jeopardy---Lesser Offense---"Unable to Agree" Jury Instruction---Finality. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (cert. stage). Argument: Uncertainty regarding the double jeopardy implications of the "Unable to Agree" instruction hinders the administration of criminal justice. Conflicting interpretations of the double jeopardy clause burden defendants, defense counsel, and the judicial system. Author: Jeffrey T. Green, Sidley Austin LLP, Washington, DC.

Glossip v. Gross, U.S. Sup. Ct., No. 14-7955, decision below Warner v. Gross, 776 F.3d 721 (10th Cir. 2015), brief filed 3/16/15. Eighth Amendment—Death Penalty---Lethal Injection---Role of the Capital Defense Lawyer. Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioners. Argument: NACDL opposes the death penalty in all cases, regardless of the method of execution. NACDL believes that the drug protocol adopted by the State of Oklahoma violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Cases like that of Richard Glossip and his fellow petitioners call upon us, their lawyers, at a minimum to assure those who are facing imminent imposition of the sentence of death that their constitutional rights will be protected. The State of Oklahoma has made it impossible for us to provide any of those assurances to these petitioners or to their fellow inmates on Oklahoma’s death row. The conduct of the State of Oklahoma is inconsistent with the values of our society and our Constitution. Authors: Gia L. Cincone, Kilpatrick Townsend and Stockton LLP, San Francisco, CA; Barbara E. Bergman, Albuquerque, NM.

Gonzalez v. Connecticut, U.S. Sup. Ct., No. 14-9997, decision below 315 Conn. 564, 109 A.3d 453 (Conn. Feb. 24 2015), brief filed 6/24/15. Sixth Amendment---Juries---Deliberations. Brief of Connecticut Criminal Defense Lawyers Association, National Association of Criminal Defense Lawyers, and California Attorneys for Criminal Justice as Amici Curiae in Support of Petition for Writ of Certiorari. Argument: This Court should grant certiorari to address the scope of a criminal defendant’s ‘right to a unanimous jury verdict.’ This Court should grant certiorari to explain what circumstances, if any, permit a judge presiding over a criminal trial to invade the secrecy of jury deliberations. Authors: Proloy K. Das and Thomas A. Plotkin, Rome McGuigan, P.C. Hartford CT; Jeffrey T. Green, Washington, DC.

Jewel v. National Security Agency, 9th Cir., No. 15-16133, on appeal U.S. Dist. Ct., N.D. Cal., No. 4:08-cv-4373-JSW, decision below 2015 WL 545925 (Feb. 10, 2015) brief filed 8/11/15. Bulk/Wholesale Collection of Communications---Class Action---Fourth Amendment---Search and Seizure---Fifth Amendment---Self-Incrimination---Sixth Amendment---Right to Counsel. Brief of Amicus Curiae 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. Allowing the government to shield evidence of its wrongful search and seizure means that the injury to these other Constitutional rights cannot be remedied 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 at Joseph C. Gratz, Durie Tangri LLP, San Francisco, CA; David Porter, Sacramento, CA (Of Counsel).

Johnson v. United States, U.S. Sup. Ct., No. 13-7120, decision below 526 Fed. Appx. 708 (8th Cir. 2013), brief filed 2/25/15. Armed Career Criminal Act of 1984 (ACCA)---Residual Clause---Vagueness. Brief for National Association of Criminal Defense Lawyers, National Association of Federal Defenders, Families Against Mandatory Minimums, and Cato Institute as Amici Curiae in Support of Petitioner. Argument: Despite this Court’s repeated efforts to divine a workable standard from the vague wording of ACCA’s residual clause, numerous circuit splits persist or have even deepened. The residual clause is unconstitutionally vague as to all possible predicates. ACCA’s imposition of a substantial, mandatory minimum sentence warrants heightened scrutiny. Authors: David Debold, Molly Claflin, Rachel Mondl, and Laura Mumm, Gibson, Dunn & Crutcher LLP, Washington, DC; Ashley E. Johnson & Bradley G. Hubbard, Gibson, Dunn & Crutcher, Dallas, TX; David M. Porter, Sacramento, CA.

Jones v. Davis, 9th Cir. No. 14-56373, decision below Jones v. Chappell, 31 F. Supp.3d 1050 (C.D. Cal. July 16, 2014) (No. CV 09-02158-CJC), brief filed 3/5/15. Death Penalty---Habeas Petitioners---Court-Appointed Counsel---Systemic Delays---Prejudice---Fifth Amendment---Eighth Amendment---Fourteenth Amendment. Brief of Amici Curiae California Attorneys for Criminal Justice, National Association of Criminal Defense Lawyers, and Mexican Capital Legal Assistance Program in Support of Petitioner-Appellee and Supporting Affirmance. Argument: The District Court’s ruling that the California death penalty system cannot withstand scrutiny under the Constitution is correct. Delays in California’s review of death penalty judgments are attributable in significant part to the state’s failure to timely provide and protect the function of court-appointed counsel. The District Court’s analysis of the inadequacies of California’s implementation of the right to counsel throughout the state’s death penalty litigation process is well supported. Several characteristics of California’s death penalty litigation system contribute to the systemic delays. Systemic delays can cause prejudice. Authors: John T. Philipsborn, Law Offices of John T. Philipsborn, San Francisco, CA; Christopher W. Adams, Christopher W. Adams Law Offices, Charleston, SC.

Kingsley v. Hendrickson, U.S. Sup. Ct., No. 14-6368, decision below 744 F.3d 443 (7th Cir. 2014), brief filed 3/9/15. Excessive Force---Objective Reasonableness Test---Subjective Intent---Pretrial Detention---Civil Liberties. Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: The Court has assessed the objective reasonableness of alleged civil liberties deprivations by law enforcement personnel for more than a century. The Court has applied the objective reasonableness test to excessive force cases. The Court’s reasoning in support of the objective reasonableness test is equally applicable to cases involving pretrial detainees. Authors: Mitchell F. Dolin, Jeff Kosseff, David Metcalf, Covington & Burling LLP, Washington, DC; Barbara E. Bergman, Albuquerque, NM.

Kuren v. Luzerne Cnty., Supreme Court of Pennsylvania, decision below Flora v. Luzerne Cnty., 103 A.3d 125 (Oct. 14, 2014), brief filed 9/10/15. Sixth Amendment (U.S. Const.)---Article I, Sec. 9 (Penn. Const.)---Right to Counsel---Indigent Defense---Systemic Deficiencies---Excessive Caseloads---Lack of Resources. Brief AmicusCuriae of the National Association of Criminal Defense Lawyers and the Pennsylvania Association of Criminal Defense Lawyers in Support of Appellants. Argument: Appellants have stated a claim for constructive denial of counsel because the allegations of the amendment complaint demonstrate that there are systemic deficiencies in the Luzerne County office of the Public Defender that create an imminent and unacceptable risk that appellants’ right to counsel will be violated in ways that cannot be cured by post-conviction review. The amended complaint describes systemic violations of Kuren’s and Allabaugh’s right to counsel under the United States and Pennsylvania Constitutions. Violations of the right to effective assistance of counsel at critical stages of the adversarial process prior to trial cannot be remedied by post-conviction review, making prospective injunctive relief appropriate. The problems confronting indigent defense services are systemic and extend throughout the commonwealth and the nation. Authors: Paul H. Titus and Arleigh P. Helfer III, Schnader Harrison Segal & Lewis LLP, Philadelphia, PA; Peter Goldberger, Ardmore, PA.

Luis v. United States, U.S. Sup. Ct., No. 14-419, decision below 564 Fed.Appx. 493 (11th Cir. 2014), brief filed 8/25/15. Sixth Amendment---Right to Counsel of Choice---Forfeiture---Untainted Assets---18 U.S.C. §1345. Brief of Amici Curiae National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and Florida Association of Criminal Defense Lawyers in Support of Petitioner. Argument: The government's attempt to restrain untainted assets circumvents an essential limit on the forfeiture power. The government's interest in forfeiture does not outweigh a defendant's right to spend her own money on counsel of choice. Authors: Courtney J. Linn and Robert Loeb, Orrick, Herrington & Sutcliffe LLP, Sacramento, CA; Sharon Cohen Levin, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; David B. Smith, Smith & Zimmerman PLLC, Alexandria, VA; Jonathan D. Hacker, Washington, DC.

Mangiaracina v. Arpaio, 9th Cir., No. 14-15271, Appeal from the United States District Court for the District of Arizona, D.C. No. 2:13-cv-00709-NVW-SPL, Neil V. Wake, District Judge, Presiding, brief filed 5/29/15. Prisoner Civil Rights---Jail Mail---Legal Mail---First Amendment---Ethical Duty of Confidentiality---Competent and Diligent Representation---Attorney Duty to Communicate and Inform Client. Brief of Amici Curiae National Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Prison Law Office, American Civil Liberties Union, and ACLU of Arizona in Support of Plaintiff-Appellant Nick Mangiaracina; and in Support of Reversal. Argument: Maricopa County Jail (MCJ) staff opening legal mail between plaintiff and attorneys outside his presence violates the First Amendment rights of the attorneys. The alleged actions of MCJ staff prevent attorneys from complying with their ethical duty of confidentiality. The interference with plaintiff's legal mail results in lawyers neglecting their duties of competent and diligent representation. The opening of plaintiff's legal mail impairs lawyers' duty to communicate and keep their client reasonably informed. Authors: Donald Specter & Corene Kendrick, Prison Law Office, Berkeley, CA; David M. Porter, NACDL, Sacramento, CA.

Mann v. United States, U.S. Sup. Ct., No. 15-245, decision below United States v. Mann, Case No. 14-10545 (9th Cir. 2015), summary affirmance of D.C. No. 2:10-cr-00460-DJH-1 (D. Ariz.), brief filed 9/28/15. Equitable Expungement---Access to Conviction Records---Recidivism---Re-entry. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (cert. stage). Argument: The Ninth Circuit's rejection of equitable expungement authority misreads this Court's precedents and conflicts with seven circuits. Sitting in equity, the federal courts have the ability to expunge convictions they entered. The circuits are widely divided and the rule of the Ninth Circuit and its sister circuits rests on a fundamental misinterpretation of this Court's precedents. Kokkonen does not address, much less limit, the equitable authority at issue here. The circuits are in conflict, The question presented is ripe for resolution. Easy access to conviction records contributes to recidivism and failed post-incarceration re-entry. Authors: Eamon P. Joyce, Mark D. Taticchi and Inn-Young Park, New York, NY; David M. Porter, Sacramento, CA; Sarah O'Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL.

Mathis v. Florida, District Court of Appeal of Florida, Fifth District, Case No. 5D14-492, brief filed 6/29/15. Advice of Counsel---Mens Rea---Statutory Construction---Mistake of Law. Brief in Support of Appellant by Amicus Curiae National Association of Criminal Defense Lawyers. Argument: The trial court erred in barring the defense from introducing evidence to support the basis for the legal opinion Mathis gave to his client. Ambiguity in the statute with regard to mens rea requires the court to insert an appropriate state of mind element. The "knowledge" element of an offense occasionally includes knowledge of a legal "fact." The trial court improperly removed the mens rea element in this case. In the alternative, a mistake of law defense was appropriate in this case. Denying Mathis the right to present this evidence resulted in the denial of his right to present a defense. Authors: Donald F. Samuel, Garland, Samuel & Loeb, P.C., Atlanta, GA; Jenny E. Carroll, University of Alabama School of Law, Tuscaloosa, AL; Ashley Litwin, Miami FL.

McDonnell v. United States, U.S. Supreme Court, Case No. 15-474, decision below 792 F.3d 478 (4th Cir. July 10, 2015), brief filed 11/13/15. Honest Services---Hobbs Act---Overcriminalization---Federalism---"Official Act"---"Clear Statement" Rule---Rule of Lenity---Constitutional Avoidance—Sixth Amendment---Juries. Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petition for a Writ of Certiorari. Argument: The Court should grant the writ to reinforce key principles that restrain expansive interpretations of broadly worded federal criminal statutes. The Court should grant the writ to protect the Sixth Amendment right to an unbiased jury. Authors: John D. Cline, Law Office of John D. Cline, San Francisco, CA; Jeffrey T. Green, Washington, DC.

McFadden v. United States, U.S. Sup. Ct., No. 14-378, decision below 753 F.3d 432 (4th Cir. 2014), brief filed 3/9/15. Controlled Substance Analogue---21 U.S.C. § 802(32)---“Substatntial Similarity.” Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: No consensus exists among courts as to how to guard against jury caprice. The circuits apply several tests that markedly differ as to the elements used to determine whether a suspect substance is “structurally similar” to a controlled substance. This confusion arises from the lack of scientific consensus and the language of the Analogue Act. The admissibility and reliability of the most common methods of demonstrating substantial similarity have been criticized by courts and commentators, implicating the accuracy of analogue adjudications. Leading evidence scholars challenge the admissibility of visual inspection evidence under the Daubert standard. In addition to the threshold questions about visual inspection for similarity being scientifically sound at all, evidence scholars also have questioned the reliability of the visual inspection method, further implicating its admissibility under Daubert. As an alternative to solely relying on visual inspection to establish substantial similarity, some courts use the structure and effects test. However, this test fails to adequately resolve reliability concerns presented by visual inspection alone and offers only another ground for disagreement among courts and scientists. Authors: Jeffrey T. Green, Noah T. Katzen, Sidley Austin LLP, Washington, DC; Jonathan Hacker, Washington, DC; Sarah O’Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL.

Missouri v. Smiley, Supreme Court of Missouri, No. SC94745, appeal from Greene County Circuit Court, 31st Judicial Circuit, The Honorable Calvin R. Holden, Case No. 1331-CR04069-01, brief filed 8/24/15. Miller---Graham---Sentencing---Mandatory Minimums---Armed Criminal Action Statute---Juvenile Justice---Eighth Amendment. Brief of Amici Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. Supporting Respondent Jerri Smiley (full list of amici in appendix to attached brief). Argument: Miller v. Alabama reaffirms the U.S. Supreme Court's recognition that children are categorically less culpable than adults. The U.S. Supreme Court's jurisprudence that children are different than adults in constitutionally relevant ways is not limited to a specific crime or sentence. Because of adolescents' reduced culpability, Missouri's armed criminal action statute cannot be mechanically applied to juvenile offenders. Incarcerating juvenile offenders in adult facilities diminishes public safety and places youth at risk of severe harm. Authors: Marsha L. Levick, Juvenile Law Center, Philadelphia, PA; Mae C. Quinn, Juvenile Law and Justice Clinic, Washington University School of Law, St. Louis, MO.

Montgomery v. Louisiana, U.S. Supreme Court, No. 14-280, decision below 141 So.3d 264 (La. 2014), brief filed 7/29/15. Juvenile Justice---Miller---Retroactivity---Eighth Amendment. Brief of Northwestern University School of Law’s Children and Family Justice Center and Center on Wrongful Convictions of Youth, National Association of Criminal Defense Lawyers, et al. as amici curiae in Support of Petitioner (full list of amici in appendix). Argument: In recognizing that “children are different” from adults, Miller v. Alabama represents a transformation in law, practice, and constitutional jurisprudence relating to the punishment of children, thus warranting retroactive application. In the pre-Miller era of the juvenile “super-predator,” juvenile penalties often reflected the now-discredited premise that children who had committed serious crimes were irredeemable. Miller v. Alabama reboot: even the most serious child offenders are now considered potentially redeemable. Death is no longer uniquely different under the Eighth Amendment; after Miller v. Alabama, children are different too. Because of its transformative nature, Miller must be applied retroactively. As a matter of equity and evenhanded justice, Miller v. Alabama should apply retroactively. Authors: Steven A. Drizin, Laura H. Nirider, Megan G. Crane, Center on Wrongful Convictions of Youth, Bluhm Legal Clinic, Chicago, IL; Shobda L. Mahadav, Scott F. Main, The Children and Family Justice Center, Bluhm Legal Clinic, Chicago, IL.

Ocasio v. United States, U.S. Sup. Ct., No. 14-361, decision below 750 F.3d 399 (4th Cir. 2014), brief filed 6/8/15. Hobbs Act---Conspiracy---Statutory Construction/Interpretation---Due Process---Federalism. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: A Hobbs Act conspiracy charge requires proof of an agreement to obtain property from a third party. The unambiguous meaning of the text enacted by Congress delineates the outer bounds of the Hobbs Act offense. The Court should not construe the Hobbs Act to intrude upon areas traditionally reserved to state law. Authors: Andrew J. Pincus and Jeffrey H. Redfern, Mayer Brown LLP, Washington, DC; Jonathan Hacker, Washington, DC.

Ohio v. Clark, U.S. Sup. Ct., No. 13-1352, decision below 137 Ohio St.3d 346, 2013-Ohio-4731, brief filed 1/14/15. Crawford---Confrontation Clause---Surrogate Testimony---Child Abuse. Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Respondent. Argument: Teachers play a critical role in the prosecution of child abuse cases. Teachers question abused children for the primary purpose of gathering evidence for future prosecution. States assign other non-law enforcement officials to investigate child abuse cases. Reversing the Ohio Supreme Court would give law enforcement a roadmap to exempt child abuse testimony from confrontation. The right to confrontation through cross-examination is especially critical in child abuse cases because, as this Court has acknowledged, children are particularly susceptible to suggestion and often produce unreliable and imagined testimony. Authors: Stephen A. Miller, Cozen O’Connor, Philadelphia, PA; David Porter, Sacramento, CA.

Oregon v. J.C.N.-V., Supreme Court of the State of Oregon, Case No. CA A147958, S063111, decision below 342 P.3d 1046 (Or.App. Jan. 22, 2015), brief filed 4/30/15. Juvenile Justice---Waiver Statutes---Transfer Evaluations---Adult Court---Due Process---Miller---Graham. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae in Support of Appellant, Petitioner on Review (full list of amici on cover of brief). Argument: Oregon law required consideration of adolescent development as a component of the “sophistication and maturity” provision of the waiver statute. The waiver statute employs a term of art and must be interpreted in light of evolving science on adolescent sophistication and maturity. Statutory context, including developmental science and research, supports an entirely different interpretation than the court of appeals majority decision provides. The legislative history of Oregon’s waiver statutes does not support waiver in this case. Oregon’s avoidance canon obliges the court to reject the court of appeals interpretation of the waiver statute which violates due process. U.S. Supreme Court precedent requires objective consideration of a child’s age when interpreting his or her mindset in criminal contexts. Due process requires an individualized determination of the child’s culpability at the waiver hearing because of the liberty interest and potential harm at stake. Authors: Marsha L. Levick, Juvenile Law Center, Philadelphia, PA; Roy Pulvers, Holland & Knight LLP, Portland, OR. 

Oregon v. J.C.N.-V., Supreme Court of the State of Oregon, Case No. CA A147958, S063111, decision below 342 P.3d 1046 (Or.App. Jan. 22, 2015), brief filed 8/10/15. Juvenile Justice---Waiver Statutes---Transfer Evaluations---Adult Court---Due Process---Miller---Graham. Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae in Support of Appellant, Petitioner on Review (full list of amici on cover of brief). Argument: "Sophistication and maturity" is a term of art that must be interpreted in light of scientific research on adolescent development. The Oregon legislature's intent to limit waiver of offenders as young as J.C.N.-V. is supported by research on adolescent development as well as the adverse experience of youths in the adult criminal justice system. Oregon's avoidance canon obliges the court to reject the court of appeals' interpretation of the waiver statute. Authors: Marsha L. Levick, Juvenile Law Center, Philadelphia, PA; Roy Pulvers, Calon N. Russell, Holland & Knight LLP, Portland, OR. 

People v. Basile, New York Court of Appeals, No. 2015-534, case below 970 N.Y.S.2d 658 (Queens Criminal Index No. 2007QN068755), brief filed 4/23/15. § 353 (NY Animal Cruelty Statute)---Strict Liability---Mens Rea---Jury Instructions. Brief for Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers. Argument: Conviction under § 353 requires proof beyond a reasonable doubt that the defendant acted with a culpable state of mind. Section 353 must be construed to require mental culpability. There is no indication of clear legislative intent to make § 353 a strict liability offense. Current legislative initiatives reflect a consensus that § 353 has a mens rea requirement. The appellate term’s reliance on A.M.L. § 43 is misplaced because § 353 is not a public welfare and regulatory law. The trial court’s failure to provide a proper jury instruction was not harmless error and warrants reversal of Mr. Basile’s conviction. Authors: Mark D. Harris, Chantel L. Febus, Matthew v. Rotbart, Edqard J. Canter, Proskauer Rose LLP, New York, NY; Richard D. Willstatter, Green & Willstatter, White Plains, NY. 

People v. Buza, Calif. Sup. Ct., No. S223698, decision below 180 Cal.Rptr.3d 753 (Ct. of Appeal, First Dist., Dec. 3, 2014), brief filed 11/13/15. DNA Collection---Arrestee—Fourth Amendment---Searches---Privacy. Application of the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers, the Maryland Public Defender, and Interested Legal Scholars for Leave to File Amicus Curiae Brief and Amicus Brief in Support of Defendant and Appellant Mark Buza. Argument: Maryland v. King did not establish a per se rule authorizing warrantless collection of DNA from arrestees. California arrestee DNA collection law violates the Fourth Amendment to the United States Constitution. The Court of Appeal properly recognized California's constitutional protection against unlawful searches and seizures precludes the warrantless collection and search of arrestee DNA. DNA collection implicates significant privacy interests. DNA contains a person's most private and personal information. As the cost of DNA processing drops, the government is already expanding its collection and use of DNA. Excessive DNA collection poses very real threats to liberty. Authors: Jennifer Lynch & Lee Tien, Electronic Frontier Foundation, San Francisco, CA.

People v. Caldavado, New York Court of Appeals, No. 2014-00206, case below 116 A.D.3d 877 (2d Dep’t 2014), brief filed 8/27/15. False Convictions---Actual Innocence---Collateral Relief---NY State Constitution---CPL § 400.10. Brief Amici Curiae for the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers. Argument: The New York Constitution and Criminal Procedure Law § 400.10 support recognizing actual innocence as a basis for collateral relief. Authors: Thomas R. Villeco, Jericho, NY; Richard D. Willstatter, Green & Willstatter, White Plains, NY.

Reddy v. Kelly, 6th Cir., No. 2014-4002, decision below 2014 WL 4472614 (N.D.Ohio Sept. 10, 2014), brief filed 8/14/15. Habeas Corpus---Ineffective Assistance---Duty to Investigate and Present Evidence---PTSD---Mental Health Issues/Disorders---Lesser-Included Offense. Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of the Appellant Seeking Reversal. Argument: The state court did not adjudicate Mr. Reddy’s ineffective assistance claim on the merits. The nature of PTSD supports the lesser-included offense of voluntary manslaughter. Any objective standard of reasonableness requires trial counsel to investigate and present evidence of known mental health disorders that are relevant to key issues in the case. Authors: Rachel B. Funk and Stephen M. Byers, Crowell & Moring LLP, Washington, DC; Katharine F. Barach, Crowell & Moring LLP, San Francisco, CA; Candace Crouse, Pinales Stachler Young, Burrell & Crouse Co., LPA, Cincinnati, OH.

Sireci v. Florida, Supreme Court of Florida, Case No. SC15-307, on appeal from the circuit court of the ninth judicial circuit, in and for Orange County, State of Florida, brief filed 6/18/15. Forensics---Hair Comparison---Duckett---Post-Conviction Relief. Brief of Amicus Curiae The Innocence Network and National Association of Criminal Defense Lawyers in Support of Appellant. Argument: Flawed forensic evidence like that used to convict Mr. Sireci is scientifically invalid. Faulty forensic evidence and related false testimony have contributed to the convictions of innocent people. Forensic evidence plays a key role in wrongful convictions because such evidence is generally perceived as infallible. The hair comparison evidence used to convict Mr. Sireci has been discredited. Hair comparison evidence like that proffered against Mr. Sireci is false and has contributed to at least 75 wrongful convictions. The hair comparison evidence introduced through William Munroe and relied upon by the state was erroneous. The Court’s ruling in Duckett is not controlling. Mr. Sireci is entitled to post-conviction relief. Authors: Joseph C. O’Keefe, Russell L. Hirschhorn, and Adam W. Deitch, Proskauer Rose LLP, New York, NY; Seth Miller, The Innocence Network, Tallahassee, FL; Donald F. Samuel, Garland, Samuel & Loeb, P.C., Atlanta, GA.

State Farm v. United States, U.S. Supreme Court, Case No. 15-513, decision below 794 F.3d 457 (5th Cir. July 13, 2015), brief filed 11/20/15. False Claims Act (FCA)---Scienter---Collective Knowledge---Overcriminalization. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: This case presents a critically important and recurring question of FCA scienter that warrants this Court's immediate review. The Fifth Circuit's FCA scienter ruling conflicts with decisions from other circuits and departs from numerous other relevant authorities. The Fifth Circuit's finding that an employee's knowledge of a scheme was sufficient to prove scienter conflicts with established precedent. The Fifth Circuit's FCA scienter ruling is wrong and conflicts with the FCA's text and structure. Authors: James C. Martin, Colin E. Wrabley, M. Patrick Yingling, Reed Smith LLP, Pittsburgh, PA; Eric A. Dubelier, Reed Smith LLP, Washington, DC; Brian A. Sutherland, Reed Smith LLP, San Francisco, CA; Jeffrey T. Green, Washington, DC.

Thomas v. Westbrooks, 6th Cir., No. 15-5399, decision below Thomas v. Carpenter, Case 2:12-cv-02333-SHM-tmp (W.D.Tenn. March 30, 2015), brief filed 11/23/15.Fourteenth Amendment---Due Process---Payment for Witness Cooperation---False Testimony---Suppression of Favorable Evidence---Brady---Wrongful Convictions. Brief of the National Association of Criminal Defense Lawyers as Amici Curiae Supporting Reversal. Argument: Under the Due Process Clause of the Fourteenth Amendment, a criminal defendant is entitled to a new trial when the prosecution suppresses evidence that it provided remuneration to its key witness for her cooperation, the key witness testifies that the prosecution did not provide remuneration, and the prosecution fails to correct the witness' false testimony. When suppressed evidence of the prosecutor's use of a paid witness is uncovered and reveals that the paid witness lied under oath, the case unquestionably presents itself in a different light than the evidence presented at trial.The prosecutor's suppression of favorable evidence coupled with the introduction of false testimony has always been considered a Due Process violation that warrants a new trial. The age of exoneration has demonstrated that Brady violations and false testimony are often the culprits in wrongful convictions.Authors: Leo Bearman, Jr. and Mark A. Fulks, Baker Donelson Bearman Caldwell & Berkowitz, P.C., Johnson City, TN; Stephen Ross Johnson, Ritchie, Dillard, Davies & Johnson, P.C., Knoxville, TN.

Torres v. Lynch, U.S. Sup. Ct., No. 14-1096, decision below Torres v. Holder, 764 F.3d 152 (2nd Cir. 2014), brief filed 8/25/15. "Aggravated Felony"---Immigration and Nationality Act—8 U.S.C. § 1101(a)(43)---"Described In"---Rule of Lenity---Board of Immigration Appeals---Agency Deference---Chevron deferenceBrief of the National Association of Criminal Defense Lawyers, National Association of Federal Defenders, National Association for Public Defense, National Immigration Project of the National Lawyers Guild, and Immigrant Defense Project, As Amici Curiae in Support of Petitioner. Argument: The Board of Immigration Appeals' (BIA) interpretation of "aggravated felony" deserves no deference. Section 1101(a)(43) has extensive criminal applications, with substantial penal consequences. Because section 1101(a)(43) has criminal law consequences, the rule of lenity applies and the BIA is owed no deference. Respect for separation of powers, an absence of agency expertise, and the need for consistency all independently militate against deference. Even if Chevron deference applied here, the outcome would be the same. The manner in which the BIA interpreted the provision was unreasonable. Empirical evidence confirms that Congress intended the interstate commerce element to function substantively. Authors: David Debold, Gibson, Dunn & Crutcher LLP, Washington, DC; Andrew P. LeGrand, Elizabeth M. Viney, and Chantel Kramme, Gibson, Dunn & Crutcher LLP, Dallas, TX; Daniele Serbin, Caitlin Peters, and Helen Avunjian, Gibson, Dunn & Crutcher LLP, Irvine, CA; Manuel D. Vargas and Andrew Wachtenheim, Immigration Defense Project, New York, NY; Joshua L. Dratel, New York, NY.

United States v. Batato, 4th Cir., Nos. 15-1360, case below 2015 WL 140747 (E.D. Va., Mar. 25, 2015) (No. 14-CV-00969), brief filed 7/8/15. Forfeiture---28 U.S. C. § 2466---Due Process. Brief of Amici Curiae for the Cato Institute, Institute for Justice, and National Association of Criminal Defense Lawyers in Support of Claimants-Appellants. Argument: Section 2466 unconstitutionally and dangerously strips due process rights from claimants whom the government has haled into court. The right to be heard is a “root requirement” of due process that cannot be denied by statute. Due process requires the right to defend against government-initiated forfeiture proceedings. Courts must pay special attention to situations where, as here, the government is the beneficiary of the denial of due process rights. There are no valid countervailing considerations that justify stripping claimants of due process rights in a forfeiture proceeding. Authors: Ilya Shapiro, Cato Institute, Washington, DC; Thomas K. Maher, NACDL, Durham, NC.

United States v. Carpenter, 6th Cir., Nos. 14-1572 & 14-1805, case below No. Crim. 12-20218 (E.D. Mich.), brief filed 3/9/15. 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 Michigan, Brennan Center for Justice, Center for Democracy & Technology, Electronic Frontier Foundation & National Association of Criminal Defense Lawyers in Support of Defendants-Appellants’ 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 127 or 88 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: Nathan Freed Wessler and Ben Wizner, American Civil Liberties Union Foundation, New York, New York; Kristina W. Supler, MCarthy, Lebit, Crystal & Liffman Co. L.P.A., Cleveland, OH.

United States v. Dreyer, 9th Cir., No. 13-30077, decision below (panel decision) 767 F.3d 826 (9th Cir. 2014),brief filed 4/29/15. Posse Comitatus Act---Dragnet Military Surveillance of Civilians---Child Pornography---Suppression. En Banc Brief of Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union of Washington, and National Association of Criminal Defense Lawyers in Support of Defendant-Appellant. Argument: Suppression of evidence is a proper remedy for Posse Comitatus Act (PCA) violations. The PCA protects constitutional rights. Suppression is a proper remedy for statutory violations ties to constitutional rights. Even if the PCA does not implicate constitutional concerns, suppression is an authorized remedy for PCA violations under this court’s supervisory powers. The extensive military surveillance of civilians in this case, combined with the threat of future PCA violations enabled by emerging technologies, supports suppression here. The PCA violations here go beyond Dreyer’s specific case. The documented widespread and repeated PCA violations of the past will only continue in the future because of emerging technologies. Suppression is the only effective remedy for affected civilians. Authors: Hanni Fakhoury and Jennifer Lynch, Electronic Frontier Foundation, San Francisco, CA; David Porter, Sacramento, CA. 

United States v. Ganias, 2nd Cir., Case No. 12-240 (rehearing en banc), panel decision at 755 F. 3d 125 (2nd Cir. 2014), brief filed 7/29/15. Fourth Amendment---Search and Seizure---Electronic Materials---General Warrants---Non-Responsive Documents. Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Urging Reversal. Argument: The prohibition on general warrants under the Fourth Amendment bars retention of non-responsive seized electronic materials. The Government’s seizure and indefinite retention of Mr. Ganias’s files transformed a limited warrant into a forbidden general warrant and thereby violated the Fourth Amendment. Permitting the Government to rifle through and retain confidential non-responsive electronic documents amounts to the modern equivalent of allowing “officers to rummage through homes” – the precise practice that was so abhorrent to the Founding Fathers. Authors: Richard D. Willstatter, Green & Willstatter, White Plains, NY; Maranda E. Fritz and Eli B. Richlin, Thompson Hine LLP, New York, NY; Joel B. Rudin, Law Offices of Joel B. Rudin, New York, NY.

United States v. Kowalczyk, 9th Cir., Nos. 14-30198 & 14-30219, decision below (panel decision) 2015 WL 6736547 (9th Cir. Nov. 4, 2015),brief filed 11/30/15Sixth Amendment---Right to Counsel---Defense Counsel v. Amicus Curiae---"Meaningful Adversarial Testing"---Administrability. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petition for Rehearing and Rehearing En Banc. Argument: The panel's decision, which equates defense counsel with amicus curiae, ignores counsel's critical role as representative and advocate. Historically, amici curiae are legal advisors unaffiliated with any party to the litigation. The Sixth Amendment right to counsel guarantees substantially more than mere access to an independent legal advisor. At common law, criminal defendants could seek legal advice but not representation. Sixth Amendment jurisprudence established an expanded role for defense counsel as "alter ego" and advocate. The panel's decision creates an unworkable system for district courts, appointed amici curiae, and appellate courts. District courts will now know until after the fact whether appointing amicus instead of counsel violates the Sixth Amendment. Counsel appointed as independent amici curiae will not know what is required of them. Appellate courts will face requests for case-by-case, after-the-fact determinations of whether amici curiae acted enough like defense counsel to satisfy the rule announced in Kowalczyk. Authors: Erwin Chemerinsky, University of California, Irvine School of Law, Irvine, CA; Elizabeth Richardson-Royer, Office of the Federal Public Defender, Los Angeles, CA; David Porter, Sacramento, CA.

United States v. Mahon, 9th Cir., No. 12-10273, decision below (panel decision) 793 F. 3d 1115 (9th Cir. 2015),brief filed 9/28/15. Over-federalization---Federal Criminal Jurisdiction---Statutory Interpretation---Federal Arson Statute (§ 844(i))---Notice. Amici Curiae Brief of the National Association of Criminal Defense Lawyers and the Ninth Circuit Federal Public and Community Defenders in Support of Appellant's Petition for Rehearing En Banc. Argument: Congress lacks the power to prohibit crime against a building because its occupants engage in activities that affect interstate commerce. The Jones Court deliberately construed § 844(i) to avoid the pitfall identified by Morrison and Lopez. The panel erred by asking the question eschewed by Jones, thereby extending § 844(i) ‘s reach unconstitutionally. Authors: Shana-Tara O'Toole, NACDL, Washington, DC; David M. Porter, Sacramento, CA; Michael C. Holley, Nashville, TN.

United States v. McDonnell, 4th Cir., Case No. 15-4019, on appeal from the U.S. District Court for the Eastern District of Virginia, Hon. James R. Spencer, case below No. 3:14-CR-12 (E.D. Va. 2014), brief filed 1/16/15. Bail Pending Appeal---Honest Services Statute---Hobbs Act---Official Act---Clear Statement Rule---Jury Instruction. Brief of Amici Curiae National Association of Criminal Defense Lawyers in Support of Appellant’s Motion for Bail Pending Appeal. Argument: The District Court’s “Official Act” instruction improperly altered the federal-state balance without a clear statement from Congress. Ambiguous criminal provisions must be interpreted strictly against the government. Author: John D. Cline, Law Office of John D. Cline, San Francisco, CA; David B. Smith, Smith & Zimmerman, PLLC, Alexandria, VA.

United States v. McDonnell, 4th Cir., Case No. 15-4019, on appeal from the U.S. District Court for the Eastern District of Virginia, Hon. James R. Spencer, case below No. 3:14-CR-12 (E.D. Va. 2014), brief filed 3/6/15. Honest Services Statute---Hobbs Act---Official Act---Federalism---Clear Statement Rule---Rule of Lenity---Jury Instruction. Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Urging Reversal. Argument: The District Court’s “Official Act” instruction improperly altered the federal-state balance without a clear statement from Congress. Ambiguous criminal provisions must be interpreted strictly against the government. Author: John D. Cline, Law Office of John D. Cline, San Francisco, CA; David B. Smith, Smith & Zimmerman, PLLC, Alexandria, VA.

United States v. Mix, 5th Cir., No. 14-30837, on appeal from the U.S. District Court for the E.D. of Louisiana, No. 2:12-CR-171-1 (Hon. Stanwood R. Duval, Jr.), brief filed 1/23/15. New Trial---Fifth Amendment---Sixth Amendment---Due Process---Impartial Jury---Extraneous Intrusion on Jury Proceedings---Confrontation---Federal Rule of Evidence 606(b). Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Favor of Appellee and in Support of Affirmance. Argument: The district court correctly presumed prejudice from the jury’s exposure to extraneous, non-innocuous information. In accordance with Federal Rule of Evidence 606(b), the district court properly considered objective evidence in evaluating the extrinsic information’s subjective effect on jurors. In reviewing the district court’s decisions, this court should consider the entire record and should reject the government’s effort to evade exculpatory facts and to cast the evidence in the light most favorable to it. Authors: John P. Elwood, Joshua S Johnson, and Bryan Gividen, Vinson & Elkins LLP, Washington, DC; Rebecca L. Hudsmith, Lafayette, LA.

United States v. Moalin, 9th Cir., No. 13-50572, on appeal from the U.S. Dist. Ct., S.D. Cal., No. 10-cr-4246, decision below 2013 WL 6079518 (Nov. 18, 2013), brief filed 11/5/15. Mass Collection of Communications---Surveillance---Fourth Amendment---Search and Seizure---Third-Party Doctrine---First Amendment. Brief of Amici Curiae Brennan Center for Justice, American Library Association, Electronic Privacy Information Center, Freedom to Read Foundation, National Association of Criminal Defense Lawyers, Ninth Circuit Federal and Community Defenders, Reporters Committee for Freedom of the Press in Support of Defendant-Appellant and Reversal. Argument: The government is systematically collecting records of phone calls, text messages, e-mails, and other digital communications. Communications metadata is Fourth Amendment "Papers." Communications metadata is revealing, even in limited quantities. Metadata is especially revealing in aggregate. The third-party doctrine is ill-suited to the digital age. The "assumption of risk" equation has changes. The distinction between content and metadata is not sound. Authors: Michael Price and Faiza Patel, Brennan Center for Justice, New York, NY; David Porter, Sacramento, CA.

United States v. Modanlo, 4th Cir., No. 14-4044, appeal from the United States District Court for the District of Maryland in Case No. 8:10-cr-00295-PJM (Mesitte, J.), brief filed 5/29/15. Ex Parte Communications---National Security---"Iran Transaction Regulations"---CIPA---Constitutional Right to Fair Trial. Brief forNational Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant and Reversal. Argument: Ex Parte communications are highly disfavored. The district court failed to determine whether ex parte communications were made necessary by concerns for "national security," and whether such communications would violate the defendant's constitutional rights. Authors: Paul F. Enzinna, Rahman Connelly, Brown Rudnick LLP, Washington, DC; David B. Smith, Smith & Zimmerman, PLLC, Alexandria, VA.

United States v. Newman and Chiasson,et al., 2nd Cir., Case Nos. 13-1837-cr(L), 13-1917-cr(CON), opposing petition for rehearing or rehearing en banc of decision in 773 F.3d 438 (2d Cir. 2014), brief filed 2/25/15. Dirks---“Personal Benefit”---Insider Trading---Tipper and Tippee Liability---Due Process---Separation of Powers. Brief of National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers as Amici Curiae Opposing the Petition of the United States for Rehearing or Rehearing En Banc. Argument: The panel’s definition of “personal benefit” represents a faithful application of Dirks and a welcome clarification of the law in this Circuit. The panel correctly applied Dirks. The panel properly clarified the applicable standard for personal benefit. A loose standard for personal benefit would raise serious issues under due process and separation of power principles. Authors: Ira M. Feinberg, Benjamin A. Fleming, Hogan Lovells US LLP, New York, NY; Richard D. Willstatter, White Plains, NY.

United States v. Silver, U.S. Dist. Ct., S.D.N.Y., Criminal No. 15-CR-93, brief filed 3/13/15. Indictment---Media---Public Advocacy---Prosecutorial Conduct---Prejudice---Remedies. Memorandum of National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers as Amici Curiae In Support of Defendant’s Motion to Dismiss the Indictment. Argument: Public advocacy by the United States Attorney conflicts with the proper role of a federal prosecutor. Dismissal of the indictment, polling the grand jury, or conducting an evidentiary hearing are appropriate and lawful sanctions for inappropriate prosecutorial grandstanding. The word ‘alleged’ does not talismanically erase prejudice. Authors: Joel B. Rudin, Law Offices of Joel B. Rudin, P.C., New York, NY; Joshua L. Dratel, Law Offices of Joshua L. Dratel, P.C., New York, New York; Richard D. Willstatter, Green & Willstatter, White Plains, NY.

United States v. Valle, 2nd Cir., Case No. 14-4396-cr, decision below 301 F.R.D. 53 (S.D.N.Y. 2014), Case No. 1:12-cr-00847-PGG-1, brief filed 3/9/15. Computer Fraud and Abuse Act (CFAA)---Computer Use Restrictions---Vagueness---Notice---Overcriminalization. Brief of Amici Curiae Electronic Frontier Foundation, Center for Democracy & Technology, National Association of Criminal Defense Lawyers, and Scholars in Support of Defendant-Appellant Gilberto Valle. Argument: The Computer Fraud and Abuse Act (CFAA) does not prohibit violations of computer use restrictions. The CFAA was meant to target “hacking,” not violations of computer use restrictions. This case presents a mere use restriction. The District Court’s broad reading of the CFAA renders it unconstitutionally vague. Corporate policies do not provide sufficient notice of what conduct is prohibited. Allowing CFAA liability for mere use restrictions turns a vast number of ordinary individuals into criminals. Authors: Hanni Fakhoury, Jamie L. Williams, Electronic Frontier Foundation, San Francisco, CA; Richard D. Willstatter, White Plains, NY.

United States v. Zepeda, 9th Cir., No. 10-10131, decision below Case No. 2:08-cr-01329-ROS-1 (Hon. Roslyn O. Silver) (D. Ariz.), brief filed 1/19/15. Indian Major Crimes Act (18 USC § 1153)---Indian Status---Ancestral Requirement---Political Affiliation Requirement. Supplemental Brief for the National Association of Criminal Defense Lawyers and the Ninth Circuit Federal Public and Community Defenders as Amici Curiae in Support of Defendant-Appellant. Argument: Rogers requires the government to prove that a section 1153(a) defendant has a blood tie to an Indian tribe. Equal Protection demands that the blood tie be to a federally-recognized tribe – not to a racial group. A naked “blood” tie requirement would violate equal protection principles. An ancestral tie to a federally-recognized tribe is a political affiliation. Overruling Maggi would create a conflict in authority. No court has considered the question posed here—whether the “blood” tie should be political or racial – and concluded, as the government urges, that a mere racial tie is sufficient. The Court should confirm Maggi: Section 1153 requires the government to prove, in part, that a defendant has an ancestral tie to a federally-recognized Indian tribe. Authors: Charles A. Rothfeld, Paul W. Hughes, Michael B. Kimberly, Breanne A. Gilpatrick, Mayer Brown LLP, Washington, DC; David M. Porter, Sacramento, CA.

Washington v. Ryan, 9th Cir., Nos. 05-99009, 07-15536, 9th Circuit Panel Decision is available at 789 F.3d 1041 (9th Cir. 2015), appeals from the U.S. District Court for the District of Arizona, Case No. CV-95-02460-JAT, brief filed 8/14/15. Habeas---Procedural Mistakes---Late Notice of Appeal---Capital Case. Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petitioner-Appellant's Petition for Rehearing En Banc. Argument: The panel's ruling conflicts with decisions of the First, Second, and Fifth Circuits. The notice of appeal became timely on September 30, 2005, when it was transmitted to this court. Because the district court violated FRAP 3(d) by failing promptly to forward Washington's notice of appeal, the appeal should not have been dismissed. The panel's bar on use of a rule 60(B) motion to render a notice of appeal timely conflicts with the Sixth Circuit and Mackey. The panel opinion conflicts with this court's decision in Mackey and the Supreme Court's decision in Hill. The panel opinion conflicts with Sixth Circuit precedent. The panel did not follow a "majority rule." The panel's "identical grounds" rule is unsound and would not apply to Washington. The panel's refusal to permit 60(b) relief conflicts with the language and purpose of the federal rules. Authors: Mark E. Haddad, Sidley Austin LLP, Los Angeles, CA; Nathaniel C. Love, Sidley Austin LLP, Chicago, IL; David Porter, Sacramento, CA.

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