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Amicus Briefs ~ 2018

Alvarez v. City of Brownsville, 5th Cir., Case No. 16-40772, panel decision at 860 F.3d 799 (5th Cir. June 26, 2017, brief filed 1/10/18. Brady---Due Process---Exculpatory Information---Plea Bargaining---§1983---Trial Penalty---Ruiz. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of George Alvarez. Argument: Today’s justice system is a system of pleas, so disclosure of exculpatory information in plea bargaining is imperative. Plea bargaining dominates modern criminal justice. Empirical data shows that many innocent defendants plead guilty, often to avoid the risks trial poses. Due process requires that the government disclose exculpatory information before a defendant pleads guilty. The principles underlying Brady apply in all criminal cases, not just the minority of cases that end in a trial. Ruiz does not foreclose defendants’ constitutional right to exculpatory information during plea bargaining. Numerous other courts recognize the right to exculpatory information before pleading guilty. The right to exculpatory information in plea bargaining is a logical corollary of the right to effective assistance of counsel. The government’s counterarguments are unpersuasive. The Court should correct its course on this critical constitutional right. Authors: Jason N. Jordan, Benjamin L. Mesches, Christopher R. Knight, and Ryan Gardner, Haynes and Boone, LLP, Dallas, TX; David Gerger, Quinn Emanuel Urquhart & Sullivan, LLP, Houston, TX.

Arjune v. New York, U.S. Sup. Ct., No. 17-8587, decision below 30 N.Y.3d 347 (2017), brief filed 5/21/18. Effective Assistance of Counsel--- Right to Appeal--- Sixth Amendment---Professional Rules of Conduct---Abandonment Prior Perfecting Appeal---Flores-Ortega---Padilla. Brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the Immigrant Defense Project as Amici Curiae in Support of Petition (On Petition for a Writ of Certiorari to the New York Court of Appeals). Argument: This Court should grant certiorari to clarify counsel’s constitutional obligation under Flores-Ortega to consult with criminal defendants regarding their right to appeal. This Court has held that criminal defendants have a constitutional right to effective assistance of counsel during appeals as of right. Professional Rules of Conduct provide a template for protecting the Sixth Amendment rights of defendants like Mr. Arjune who must obtain separate counsel to pursue an appeals and must be followed to ensure effective assistance of counsel. Mr. Arjune’s counsel flagrantly violated the foregoing principles and abandoned Mr. Arjune on appeal. The Court should grant certiorari to clarify that a notice provided by the trial court clerk is not a substitute for effective assistance of counsel. The Court should grant certiorari to clarify the relationship between Flores-Ortega  and Padilla regarding an obligation to advise noncitizen defendants of the potential impact of an appeal on immigration status. Authors: Theresa R. Wardon, Wheeler Trigg O’Donnell LLP, Denver, CO; Manuel D. Vargas, Immigrant Defense Project, New York, NY; Richard D. Willstatter, NACDL and NYSACDL, White Plains, NY.

Campanelli v. Illinois, U.S. Sup. Ct., Case No. 17-1225, decision below 2017 IL 120997 (Ill. Nov. 30, 2017), brief filed 4/9/18. Public Defense---Conflict of Interest Standards---Ethical Rules---Fundamental Right to Conflict-Free Counsel---Private/Public Counsel---Caseloads---Resources. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for a Writ of Certiorari to the Supreme Court of the State of Illinois). Argument: The Illinois Supreme Court’s ruling subverts indigent defendants’ fundamental rights to conflict-free counsel, while misunderstanding the practical realities facing public defenders’ offices. This Court has consistently declared that fundamental constitutional rights may not be abridged based on an inability to pay. The Illinois Supreme Court’s carve-out of public defenders from ethical rules applicable to private law firms deprives indigent defendants of their fundamental rights to conflict-free counsel. The practicalities of working in public defenders’ offices demand equally exacting standards as those governing private law firms. The resources of public defenders’ offices nationwide are stretched thin by staggering caseloads. The practical realities of working in public defenders’ offices promote cooperation and collaboration, not an “adversary tendency.” Authors: Sarah L. Rosenbluth, Christopher G. Clark, and Catherine R. Jones, Boston, MA; Jeffrey T. Green, NACDL, Washington, DC.

Chavez-Meza v. United States, U.S. Sup. Ct., No. 17-5639, decision below 854 F.3d 655 (10th Cir. Apr. 14, 2017), brief filed 3/5/18. Sentencing---Section 3582(c)(2)---Proportional Sentence Reduction---Reasoning---Arbitrariness---Section 3553(a). Brief of National Association of Criminal Defense Lawyers and National Association of Federal Defenders as Amici Curiae in Support of Petitioner. Argument: The denial of a proportional sentence reduction without explanation undermines the purpose of Section 3582(c)(2) and the sentencing regime. Section 3582(c)(2) is intended to remedy “systemic injustice” and to provide “systemic relief.” In practice, courts typically grant proportional reductions and provide reasons when they do not. Denials of proportional reductions without explanation create an appearance of arbitrariness. The anchoring weight of the Guidelines requires district courts to explain decisions to deny proportional reductions. The Guidelines range anchors the court’s weighing of the Section 3553(a) factors at original sentencing. A revised Guidelines range anchors the court’s weighing of the Section 3553(a) factors in deciding a sentence-reduction motion. The depth of reasoning will depend on the circumstances, but no reasoning is not enough. Authors: Amy Mason Saharia, Matthew J. Greer, and Caleb Seeley, Williams & Connolly LLP, Washington, DC; Barbara E. Bergman, NACDL, Tucson, AZ.

Garvin v. New York, U.S. Sup. Ct., Case No. 17-1320, decision below 30 N.Y.3d 174 (N.Y. Oct. 24, 2017), brief filed 4/19/18. Sentencing---NY’s Persistent Felony Offender Statute---Apprendi---Impermissible Judicial Factfinding---Preponderance of the Evidence---Prior Felony Convictions---“Sole Determinant”---Non-Violent Felony Offender Sentence. Brief for Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers Supporting Petitioner (On Petition for a Writ of Certiorari to the New York Court of Appeals). Argument: New York’s persistent felony offender sentencing scheme violates Apprendi. Apprendi applies broadly to a host of sentencing schemes, as multiple states have recognized. The statute’s plain language and history confirm that it mandates impermissible judicial factfinding based on a preponderance of the evidence. Prior felony conviction are not the “sole determinant” of a persistent non-violent felony offender sentence. Sentencing judges engage in the impermissible factfinding in practice. The New York Court of Appeals’ reasoning does not square with Apprendi and its progeny. Authors: Mark C. Fleming and Mark G. Matuschak, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA; Tiffany E. Payne and Jane Shim, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; Jeffrey T. Green and Lindsay Lewis, NACDL, Washington, DC; Richard D. Willstatter, NYSACDL, White Plains, NY.

Hughes v. United States, U.S. Sup. Ct., No. 17-155, decision below 849 F.3d 1008 (11th Cir. Feb. 27, 2017), brief filed 1/29/18. Sentencing---Reduction---Retroactive Resentencing Guidelines---Marks---Freeman---Rule 11(c)(1)(C)---Plea Agreement. Brief Amici Curiae of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in Support of Petitioner. Argument: The Freeman concurrence leads to unpredictable results because parties rely on the Sentencing Guidelines but do not draft plea agreements with retroactive resentencing in mind. The Sentencing Guidelines are key to all pleas because prosecutors must make them central to their decisions. Defendants use their limited plea leverage to address pressing, current issues. Defendants almost universally plead guilty. Defendants who plead prioritize current issues over uncertain future eventualities like retroactive Sentencing Guidelines. Rule 11(c)(1)(C) plea agreements differ by jurisdiction. Variations in plea agreements lead to different resentencing outcomes for similarly-situated defendants. The Freeman concurrence leads to inequitable results because eligibility for resentencing does not necessarily reflect the parties' actual intent. The Freeman concurrence leads to inconsistent results for defendants with similar plea agreements because there is confusion about the level of specificity required. Freeman should be modified to provide a clear, administrable rule. Justices have recognized the importance of clear, administrable rules rather than creating 4-1-4 split decisions. The proper rule is for all Rule 11(c)(1)(C) defendants to be resentenced when a guidelines range implicated by their plea is amended retroactively. Congress or the United States Sentencing Commission can always revise this rule if desired. Authors: Nathaniel P. Garrett, Jones Day, San Francisco, CA; Kenton J. Skarin, Jones Day, Chicago, IL; David M. Porter, NACDL, Washington, DC.

In re Eric G. Zahnd, Supreme Court of Missouri,  SC96939, decision below 84 N.E.3d 1179 (Ind. 2017), brief filed 3/8/18. Sentencing Letters---Non-Party Witnesses---Prosecutor Use of Abusive Process---Coercive Threats---Due Process---Fair Proceedings---Disciplinary Proceedings---Integrity of the Legal Profession. Brief of Amici Curiae the National Association of Criminal Defense Lawyers (NACDL) and the Missouri Association of Criminal Defense Lawyers (MACDL). Argument: In the criminal justice system, non-party participants and letter writers, as well as other witnesses deserve a certain level of protection to be free from prosecutorial use of abusive process, free from coercive threats and intimidation, and free from gratuitous retaliation for refusal to accede to those prosecutorial threats and intimidation. In this case, Respondent Eric G. Zahnd holds a special place of trust as a prosecutor. He countenanced and participated in abusive process, coercive threats and reprisal for failure to capitulate to his threats. NACDL and MACDL take no position regarding the appropriate level of sanction, but suggest that a finding of ethical violation of Rules 4-4.4(a), 4-5.1(c) and 4-8.4 is appropriate in this circumstance to both discipline Respondent Zahnd, and also to deter other attorneys, especially prosecutors, from engaging in similar conduct going forward in order to protect future non-party witnesses and letter writers from fear of such abuses; which in turn, protects defendants’ rights to due process and fair proceedings. Discipline in this case is necessary to accomplish the goals of the disciplinary process to protect the public and maintain the integrity of the legal profession. In re McMillin, 521 S.W.3d 604, 610 (Mo. banc 2017). Authors: Ronald R. Hollinger, Hollinger Law Group, Blue Springs, MO; Steven R. Morrison, NACDL, Grand Forks, ND.

Koons v. United States, U.S. Sup. Ct., No. 17-5716, decision below 850 F.3d 973 (8th Cir. Mar. 10, 2017), brief filed 1/29/18. Sentencing---Section 3553(e) Cooperators---Section 3582(c)(2) Sentence Reductions---Mandatory Minimum Sentences---USSG Section 1B1.10(c)---Offense-specific guideline range. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners. Argument: Section 3553(e) cooperators are eligible for § 3582(c)(2) sentence reductions because such cooperators are not subject to statutorily required mandatory minimum sentences. Alternatively, § 3553(e) cooperators are eligible for § 3582(c)(2) sentence reductions under USSG § 1B1.10(c). Alternatively, § 3553(e) cooperators are eligible for § 3582(c)(2) sentence reductions because district courts necessarily consult the offense-specific guideline range at sentencing. Authors: Daniel T. Hansmeier, Kansas City, KS; Jeffrey T. Green, NACDL, Washington, DC.

Lagos v. United States, U.S. Sup. Ct., No. 16-1519, decision below 864 F.3d 320 (5th Cir. Mar. 17, 2017), brief filed 3/5/18. Mandatory Victims Restitution Act---Section 3663A(b)(4)---Statutory Interpretation---Victim Attorneys’ Fees. Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner. Argument: Section 3663A(b)(4) does not authorize restitution of victim’s attorneys’ fees. The statutory phrase “child care, transportation, and other expenses” does not encompass attorneys’ fees, which are completely different in nature and magnitude from expenses for child care and transportation. The word “expenses” without any reference to attorneys’ fees, does not encompass attorneys’ fees. Authors: Stuart Banner, UCLA School of Law Supreme Court Clinic, Los Angeles, CA; Barbara E. Bergman, NACDL, Tucson, AZ.

Nahmani v. United States, U.S. Sup. Ct., Case No. 17-1350, decision below 696 Fed.Appx. 457 (11th Cir. Aug. 11, 2017), brief filed 4/20/18. Sentencing---Guidelines---Booker---Rita---Gall---Kimbrough---Appellate Review---Reasonableness Review---“Presumption of Reasonableness.” Brief of Aleph Institute; More Than a Dozen Former Prominent Jurists, Including a Former Attorney General, FBI Director, Solicitor General, and Various Former U.S. Attorneys and Judges; Drug Policy Alliance; and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner (On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit). Argument: Circuits’ disparate approaches to reasonableness review undermine the benefits of appellate review of sentences. The goal of the sentencing reform act commend review of the statutory maximum sentence imposed in this case. Authors: Douglas A. Berman, Columbus, OH; Hanna Liebman Dershowitz, Aleph Institute, Surfside, FL.

Timbs v. Indiana, U.S. Sup. Ct., No. 17-1091, decision below 84 N.E.3d 1179 (Ind. 2017), brief filed 3/5/18. Eighth Amendment---Excessive Fines Clause---Fourteenth Amendment---Applicability to States---Civil Asset Forfeiture. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners (On Petition for a Writ of Certiorari to the Supreme Court of Indiana). Question Presented: Whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the states under the Fourteenth Amendment. Argument: In refusing to analyze whether the excessive fines clause applies to the states, the Indiana Supreme Court ignored its obligation to enforce the U.S. Constitution. The abuse of civil asset forfeiture by states like Indiana underscores the practical importance of this case. Authors: Jeffrey T. Green and Michael B. Buschbacher, Sidley Austin LLP, Washington, DC; Sarah O’Rourke Schrup, Northwestern Supreme Court Practicum, Chicago, IL.

United States v. Ackerman, 10th Cir., Case No. 17-3238, decision below 2017 WL 4890433 (D. Kan. Oct. 30, 2017), denied rehearing and rehearing en banc via 826 F.3d 214 (5th Cir. June 10, 2016), brief filed 4/13/18. Fourth Amendment---Email---Privacy---Reasonable Expectation of Privacy---Third Party Doctrine---Third Party Service Provider---Terms of Service---Termination of Account. Brief of Amici Curiae Electronic Frontier Foundation, Brennan Center for Justice, Center for Democracy and Technology, and National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Reversal. Argument: The district court’s opinion undermines widely recognized Fourth Amendment protections for email. The expectation of privacy in email is reasonable and well established. The ability of a third party service provider to access emails does not defeat the user’s reasonable expectation of privacy. An email provider’s terms of service should not defeat a user’s reasonable expectation of privacy in email. The district court’s holding that AOLs TOS extinguished defendant’s reasonable expectation of privacy is inconsistent with established Fourth Amendment protections for email. Fourth Amendment protection should not depend on private agreements between email service providers and their users. Finding that contractual terms impact a user’s expectation of privacy against the government would lead to absurd results. A reasonable expectation of privacy does not end just because an account is terminated. Upholding the district court would reinstate the third-party doctrine for email and create a split of authority with the Sixth Circuit. Authors: Jennifer Lynch and Andrew Crocker, EFF, San Francisco, CA; Barbara E. Bergman, NACDL, Tucson, AZ.

United States v. Bacon, 6th Cir., No. 17-1166, panel decision 884 F.3d 605 (6th Cir. Mar. 8, 2018), brief filed 4/5/18. Class v. United States---Waiver---Guilty Plea---Constitutional Challenge to Statute of Conviction---Standard of Review---Restriction of Second Amendment Protections---Level of Scrutiny. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae Supporting Reversal (on petition for rehearing en banc). Argument: The panel decision conflicts with Class v. United States, __ U.S. __, 138 S.Ct. 798 (2018); United States v. Slone, 411 F.3d 643, 646-49 (6th Cir. 2005); and decisions from other federal courts of appeals and this Court should grant en banc review to address whether defendants waive the right to raise as-applied constitutional challenges to their statutes of conviction by pleading guilty and the standard of review that applies to those challenges. In conflict with District of Columbia v. Heller, 554 U.S. 570 (2008); Tyler v. Hillsdale Cnty. Sherriff’s Dep’t, 837 F.3d 678 (6th Cir. 2008) (En Banc); and decisions from other federal courts of appeals, the panel did not apply heightened scrutiny to determine the constitutionality of restrictions on individual second amendment protections, and this court should grant rehearing en banc to resolve this conflict and address important questions about the analytical framework and level of scrutiny courts must apply to restrictions on these protections. Author: David M. Eldridge, Eldridge & Blakney, P.C., Knoxville, TN.

United States v. Depue, 9th Cir., No. 15-10553, panel decision 879 F.3d 1021 (9th Cir. Jan. 11, 2018), brief filed 4/5/18. Sixth Amendment---Right to Unanimous Jury Verdict---Dismissal of Juror During Deliberations---Good Cause---Physical or Mental Incapacity. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant (on petition for rehearing). Argument: Rehearing is warranted to preserve the clarity and integrity of circuit precedent because the District Court’s decision to remove Juror 9 was inextricably intertwined with Juror 9’s self-declared status as “odd man out” in deliberations. The District Court failed to make the required factual findings to support “good cause” removal for mental or physical incapacity. The District Court  made no factual finding that Juror 9 had a mental incapacity that precluded him from continuing to deliberate. The District Court made no factual findings that could support the dismissal of Juror 9 for physical incapacity. Author: Donald M. Falk and Lee H. Rubin, Mayer Brown LLP, Palo Alto, CA.

United States v. Farrell, 4th Cir., No. 17-4488, appeal from the United States District Court for the District of Maryland (8:15-cr-562-RWT), brief filed 3/14/18. Money Laundering---Willful Blindness---Due Process---18 U.S.C. 1956---18 U.S.C. 1957---Safe Harbor---Charging Criminal Defense Lawyers---Sixth Amendment. Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Reversing Money Laundering Convictions of Appellant, James Michael Farrell. Argument: The use of willful blindness as a substitute for actual knowledge, without an appropriate factual basis, lowers the government’s burden of proof and infringes a defendant’s due process rights. Prosecuting criminal defense attorneys for money laundering under a willful blindness theory threatens clients’ Sixth Amendment rights and creates and ethical conflict for attorney defendants. The use of Section 1956 to prosecute criminal defense lawyers has significant, negative policy implications. Section 1956 should not be used to charge criminal defense lawyers in contravention of Department of Justice policy, robbing them of the protection of an otherwise applicable safe harbor. The requirement of proving concealment under Section 1956 is not a meaningful basis for avoiding the otherwise applicable Section 1957 safe harbor. Authors: Catherine E. Creely, Akin Gump Strauss Hauer & Feld LLP, Washington, DC; David B. Smith and Elizabeth Franklin-Best, NACDL, Washington, DC.

United States v. Paulus, 6th Cir., No. 17-5410, decision below 2017 WL 908409 (E.D. Ky. Mar. 7, 2017), brief filed 1/10/18. Overcriminalization---Subjective Medical Professional Judgment---Congressional Intent. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae In Support of Appellee. Argument: Contrary expert opinion, taken alone, is insufficient to establish false statement or fraudulent intent beyond a reasonable doubt with respect to medical decisions that are inherently a matter of subjective professional judgment. Overturning the judgment below could lead to criminalizing legitimate exercises of medical judgment by physicians. Congress did not intent to criminalize legitimate, good faith medical practice. Disagreements among medical professionals in areas of medicine involving a significant degree of medical judgment can form the basis for civil liability or disciplinary sanctions, rather than criminal liability. Authors: Nicolas Bourtin, Charles Moulins, and Carson Zhou, Sullivan & Cromwell LLP, New York, NY; David O. Markus, NACDL, Miami, FL.

United States v. Wright, 3rd Cir., Case No. 17-1972, on appeal from the United States District Court for the Western District of Pennsylvania, Crim. No. 14-292 (Bissoon, J.), brief filed 2/12/18. Rule 31(b)(3)---Mistrial---Retrial---Discretion---Double Jeopardy Clause. Brief of Proposed Amicus Curiae National Association of Criminal Defense Lawyers. Argument: Rule 31(b)(3) permits district courts to exercise discretion in declaring a mistrial or allowing a retrial. The district court carefully weighed the critically important interests underlying the Double Jeopardy Clause. Authors: Lawrence S. Lustberg and J. David Pollock, Gibbons P.C., Newark, NJ.

Zullo v. Vermont, Supreme Court of Vermont, Docket No. 2017-284, appeal from Rutland Superior Court Docket No. 555-9-14 Rdcv, brief filed 2/12/18. VT Const. Art. 11---Search and Seizure---Racial Profiling---Race-Based Inequities/Disparity---Perceptions of Criminality---Implicit Bias---Police Discretion. Brief of the National Association of Criminal Defense Lawyers et al. as Amici Curiae in Support of Plaintiff-Appellant. Argument: Expanding police discretion would exacerbate the racial inequities entrenched in Vermont's criminal justice system in general, and its traffic enforcement practices in particular. Implicit racial bias impacts police office behavior and perceptions of what constitutes criminal behavior. Authors: Dahlia Mignouna and Chad I. Golder, Munger, Tolles & Olson LLP, Washington, DC; Jeffrey T. Dickson, Dickson Law Office, PLLC, Burlington, VT; Lindsay A. Lewis, NACDL, New York, NY.

 

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