Amicus Curiae Brief on Behalf of the National Association of Criminal Defense Lawyers in Support of Appellant and Reversal

Argument: The Federal Rules of Criminal Procedure and of Evidence work together to ensure that a criminal defendant can confront and challenge an expert witness proffered by the prosecution. Rule 16 requires the prosecution to timely disclose the identity of an expert witness, and the basis for that expert’s testimony, sufficiently before trial to permit a criminal defendant to mount a complete defense. And the rules of evidence—in particular, Rules 701 and 702—ensure that an expert’s testimony is based on reliable, verifiable data that can be the subject of rigorous cross-examination. In this prosecution, the defendant, Elizabeth Holmes, was robbed of the protections of these rules. The government disclosed a lay-turned-expert witness—on the critical question of whether Theranos technology worked— on the eve of trial, years after the Rule 16 deadline had passed. Worse, that expert testimony relied upon data that no longer existed, meaning it was neither reliable nor verifiable, and could not be the subject of meaningful crossexamination or responsive testimony. This sleight of hand is, regrettably, common. The government has previously “subvert[ed] the requirements” of the federal rules, and “blur[r]ed the distinction between” expert and lay testimony. United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997). It also frequently discloses expert witnesses way beyond the deadlines set forth in Rule 16. See United States v. Yagi, 2013 WL 10570994, at *16 (N.D. Cal. Oct. 17, 2013); United States v. Cerna, 2010 WL 2347406, at *1 (N.D. Cal. June 8, 2010). This appeal is an opportunity to call the government to account for these harmful practices.

Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Appellee Adnan Syed, by Written Consent

Argument: NACDL, with authors from law firm Paul, Weiss, filed an amicus brief in the Appellate Court of Maryland in Young Lee, as Victim’s Representative v. State of Maryland. Adnan Syed, whose criminal case gained notoriety after being chronicled in the podcast Serial, was recently released from prison after the court vacated his conviction upon the prosecution’s recommendation. Mr. Syed had been serving a life sentence for the 1999 murder of his high school classmate Hae Min Lee. The prosecution cited flaws in the conviction, including unreliable cell phone tower data and possible failure to disclose key exculpatory evidence and two new potential suspects in their motion to vacate Syed’s conviction. Even though they were in attendance, the victim’s family has appealed the vacatur for lack of sufficient notice and opportunity to participate. Our amicus brief argues that, while Maryland law expressly grants a victim the right to receive notice of and attend vacatur proceedings, it does not provide a victim the right to be heard at the proceeding. The Maryland General Assembly made a choice to treat vacatur proceedings differently than other proceedings, such as sentencing, where a victim’s right to be heard is expressly granted. Even if Maryland did provide victims the right to be heard at a vacatur hearing, which it does not, that would not mean that victims have the additional right to participate in such hearings by challenging the evidence, as the victim’s family argues. Giving victims the right to challenge evidence or dispute substantive rulings would effectively allow them to usurp the role of prosecutors and violate due process, we argue.

Brief of the Oregon Criminal Defense Lawyers Association and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Respondent.

Argument: If OEC 609 is construed to permit all felony convictions without weighing the risk of unfair prejudice, the rule violates federal due process. The indiscriminate admission of even unfairly prejudicial convictions runs counter to common law traditions that require “fundamental fairness” and generally bar the use of propensity evidence.

Barring the use of OEC 403 prior to admitting felony convictions also burdens the exercise of Oregon defendants’ constitutional trial rights. First, it forces defendants to choose between the right to the right to testify and an impartial jury. Relatedly, the per se admission of prior felony convictions against defendants tends to produce a chilling effect on the right to testify because if they take the stand, they will be unfairly prejudiced. The Supreme Court has made clear, “[t]he right to testify on one’s own behalf at a criminal trial . . . is one of the rights that ‘are essential to due process of law in a fair adversary process.’” Rock v. Arkansas, 483 US 44, 51, 107 S Ct 2704, 97 L Ed 2d 37 (1987) (quoting Faretta v. California, 422 US 806, 817, n 15, 95 S Ct 2525, 45 L Ed 2d 562 (1975)). Second, the threat of per se prior conviction impeachment also impermissibly burdens the right to trial because it both distorts the strength of the government’s case and adds to the coercive nature of the plea-bargaining system of criminal adjudication.

Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Appellant.

Argument: [T]his case raises fundamental constitutional issues implicating Appellant’s right to have his Fifth Amendment right to Brady material and his Sixth Amendment right to compulsory process in securing evidence from MAB’s [the complainant] U.S. Citizenship and Immigration Services [USCIS] Alien File [A-File] produced for an in camera judicial review. That was necessary to protect Appellant’s right to confront his accuser, to include impeaching her at trial. Finally, this case implicates Appellant’s Sixth Amendment right to the effective assistance of counsel. NACDL is not alleging ineffective assistance of counsel [IAC], but rather that Appellant’s Trial Defense Counsel [TDC] was improperly thwarted by the government’s opposing his request for an immigration law expert to assist the defense, which the military judge denied, as well as access to her A-File.

Brief for Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: The Court has explained “over and over” for more than twenty years that under the Sixth Amendment, “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.” E.g., Mathis v. United States, 579 U.S. 500, 511-20 (2016) (citing, inter alia, Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). A sentencing court “can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.” Id. at 511-12; see also, e.g., Alleyne v. United States, 570 U.S. 99, 111-12 (2013). Yet in the context of applying the Armed Career Criminal Act’s “occasions” test, the circuits routinely permit sentencing courts to do much more. Specifically, any factfinder conducting the inquiry prescribed in Wooden v. United States, 142 S. Ct. 1063 (2022), must make a series of fine-grained determinations pertaining not just to the elements of a defendant’s prior convictions, but also to the factual circumstances and real-world conduct that gave rise to them. When such findings are made to support an increased maximum penalty (as they indisputably are in this context), they must be made by a jury, on proof beyond a reasonable doubt. “That simple point” has become a “mantra” in this Court’s jurisprudence. Mathis, 579 U.S. at 510. But both before and since Wooden, lower courts conducting the occasions inquiry have routinely ignored it. Despite this Court’s repeated teachings, they routinely sift through “legally extraneous circumstances” to support ACCA enhancements, thus conducting the precise inquiry the Sixth Amendment and this Court’s precedents unambiguously prohibit. Descamps v. United States, 570 U.S. 254, 270 (2013); see also, e.g., Mathis, 579 U.S. at 510.

As Justices Gorsuch and Sotomayor suggested in Wooden, 142 S. Ct. at 1079, 1082-87, the time has come for the Court to reestablish the controlling force of its decisions. The courts of appeals have “missed more than a few * * * clear signs” that their current approach to the occasions inquiry is unconstitutional, United States v. Perry, 908 F.3d 1126, 1135 (8th Cir. 2018) (Stras, J., concurring) (citing, inter alia, Mathis, 579 U.S. at 510-11, Descamps, 570 U.S. at 268-69, and Alleyne, 570 U.S. at 111 n.1), and, despite the existence of at least five unambiguously correct separate opinions addressing the issue,  there is no indication that any lower court will change its approach unless and until this Court intervenes. The error on which the decision below (along with many others like it) depends will thus persist until the Court reaffirms its Sixth Amendment “mantra,” Mathis, 579 U.S. at 510, yet again. The Court should grant certiorari and do so. 

Brief of Amici Curiae Electronic Privacy Information Center, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers in support of Defendant-Appellant.

Argument: In this case of first impression, appellant argues that information about the technology and procedures underlying a facial recognition search must be disclosed to the defendant to cure the risk of misidentification and in accordance with Brady v. Maryland, even if the result of the search was used only investigatively, subject to later corroboration, and not admitted into evidence. The amicus brief explains the numerous opportunities for error present in the facial recognition process, and how error in that process determines the course of the investigation and results in racially disparate and otherwise wrongful arrests. NACDL’s Fourth Amendment Center has been working to better understand how defendants’ due process rights are impacted by the growing use of facial recognition technology and to equip defense attorneys with the knowledge and tools to combat resulting Brady violations. 

Brief of Washington Lawyers’ Committee for Civil Rights & Urban Affairs, American Civil Liberties Union of Maryland, Public Justice Center, National Association of Criminal Defense Lawyers, and Maryland Criminal Defense Attorneys’ Association as Amici Curiae in Support of Appellant.

Argument: In 2000, the U.S. Supreme Court concluded in Illinois v. Wardlow, 528 U.S. 119 (2000), that an individual’s “unprovoked flight” in a “high-crime area” created sufficient “reasonable suspicion” of criminal activity to justify a stop, interrogation, and search of that individual under the framework prescribed in Terry v. Ohio, 392 U.S. 1 (1968). In this case, the Maryland Court of Special Appeals interpreted Wardlow as providing that “unprovoked flight from law enforcement in a high-crime area”—by itself—can be enough to trigger such an intrusion. Ct. Spec. App. Op. at 11 (Mar. 24, 2022) (hereinafter, “COSA Op.”). In reaching that conclusion, the Court of Special Appeals acknowledged that a growing number of state and federal courts—following the standard announced in Terry and applied in Wardlow—account for the “reality that Black individuals have no shortage of innocent reasons to flee at the sight of law enforcement.” Id. at 13. But the Court of Special Appeals, “constrained by [its] place in Maryland’s judicial hierarchy,” thought itself powerless to consider that reality in assessing the reasonableness of the detention and search at issue in this case. Id. at 13, 16.

As an initial matter, Wardlow did not expressly adopt a categorical rule that law enforcement is constitutionally permitted to stop and frisk anyone perceived to be fleeing from police in a purportedly “high-crime” area. See People v. Flores, 38 Cal. App. 5th 617, 631 (2019) (rejecting the argument “that ‘flight’ plus ‘high-crime area’ equals reasonable suspicion for a detention,” and confirming that “Wardlow . . . did not make such a bright-line holding”). Indeed, the term “high-crime area” has itself eluded consistent definition. Instead, Wardlow applied Terry’s holistic “reasonable suspicion” standard to the unique facts and circumstances presented. But the Wardlow Court made clear that any reasonable suspicion analysis must be based on “commonsense judgments and inferences about human behavior”—a directive that necessarily requires courts to account for societal advances, including evolving social science, over time.

Our understanding of human behavior has progressed dramatically in the twenty years since Wardlow was decided. State and federal courts around the country have relied on an expanding body of empirical evidence to deem unconstitutional under Terry police stops based on a Black individual’s flight in a supposedly “high-crime area.” Consistent with Wardlow’s teaching and that jurisdictional trend, this Court can—and should—take the opportunity to clarify that in Maryland, too, the “commonsense” implication of a Black man’s flight from police is not criminal guilt, but rather an understandable desire to avoid an interaction fraught with fear and distrust. Amici therefore urge the Court to reverse the decision below, and to hold that the mere fact of flight from law enforcement in a “high-crime area” did not, without more, give the officers in this case adequate cause to stop and search the defendant, Mr. Washington.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: The Second Circuit’s reliance-and-control theory of honest services fraud epitomizes the dangers of importing equitable doctrines into the criminal law. That theory goes far beyond the core of honest services fraud. It is – by design – a fact-dependent, elastic theory incapable of precise definition. The Court should reject it and reaffirm that malleable equitable principles have no place in honest services fraud or the criminal law generally.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

This case is yet another example of overzealous prosecutors distorting the mail and wire fraud statutes – this time through the so-called “right-to-control” theory. That theory epitomizes the overcriminalization that plagues federal criminal law. It is an atextual invention of prosecutors that criminalizes a staggering amount of run-of-the mill dishonesty traditionally regulated, if at all, by States. And it eviscerates foundational due process protections. This Court has repeatedly rejected similarly aggressive interpretations of federal criminal statutes. The Court should do the same with the right-to-control theory.

Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Appellant.

Argument: In the decision that precipitated the “unanimous verdict” issue here, Ramos v. Louisiana, 140 S. Ct. 1390 (2020), NACDL (among others) filed an amicus brief. NACDL’s interest in this issue continues because members of our Armed Forces tried by courts-martial under the Uniform Code of Military Justice [UCMJ] are not second-class citizens and do not forfeit their Fifth or Sixth Amendment rights to a unanimous verdict upon donning a military uniform. Pursuant to CAAF Rule 26(b), our amicus curiae brief “bring[s] relevant matter to the attention of the Court not already brought to its attention by the parties...” NACDL’s approach is different regarding the substantive issue, i.e., does the Sixth Amendment’s guarantee of a unanimous verdict in a criminal case, apply to noncapital courts-martial for serious offenses? Alternatively, does the Fifth Amendment’s Due Process Clause require unanimity? Our amicus brief does not duplicate Appellant’s arguments. NACDL takes a different path in arriving at the same conclusion–non-unanimous verdicts in noncapital courts-martial violate the Constitution. NACDL’s position is that Congress, when enacting Article 52(a)(3), UCMJ, provided for non-unanimous verdicts–as in Ramos–by “the concurrence of at least three-fourths of the members present when the vote is taken” –which contravenes what the Constitution commands, viz., a unanimous verdict. Article 52(a)(3), UCMJ, is therefore unconstitutional on its face.

Brief of National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner.

Argument: This amicus brief illustrates that the sweeping application of Section 1028A is a symptom of the federal overcriminalization epidemic, enabling unelected prosecutors to consolidate even more charging and plea-bargaining power. This brief also demonstrates that the statutory purpose of Section 1028A is wholly at odds with the Fifth Circuit’s expansive reading. Simply put, Congress did not intend to criminalize Dubin’s conduct under Section 1028A, a law enacted in 2004 to address the “growing problem of identity theft,” targeting those who “use false identities to commit much more serious crimes.” Congress identified numerous examples of criminal acts covered under the statute—none of which remotely resembles Dubin’s conduct and all of which involve the use of personal information to impersonate another. In other words, the statute was intended to punish theft of an identity, something that did not happen here.

Brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the Arkansas Civil Liberties Foundation as Amici Curiae in Support of Petitioner.

Argument: Courts of appeals that have rejected petitioner's view of Section 2255(e) have held that relief under Section 2241 is available only if an incarcerated individual shows that Section 2255's remedy "was" inadequate or ineffective at the time of the individual's "first § 2255 motion." Pet. App. 7a (emphasis [*8] added); see also McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017) ("The petitioner bears the burden of establishing that the remedy by motion was 'inadequate or ineffective to test the legality of his detention.'") (emphasis added) (internal citation omitted); Prost v. Anderson, 636 F.3d 578, 594 (10th Cir. 2011) (similar). In other words, these courts have focused on the adequacy or efficacy of the remedy under Section 2255 in the past. This reasoning departs from the plain text of that statute. The relevant text of Section 2255(e) focuses on the present. It allows federal prisoners to seek habeas relief under Section 2241 when the remedy provided by Section 2255 " is inadequate or ineffective to test the legality of [their] detention." 28 U.S.C. § 2255(e) (emphasis added). Put another way, this saving clause asks whether Section 2255's remedy is currently inadequate or ineffective, not whether it was inadequate or ineffective.

Brief of National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the ACLU Foundation Of Texas, Inc., the Cato Institute and the Rutherford Institute As Amici Curiae Supporting Petitioner.

Argument: NACDL’s amicus brief argues that the Fifth and Seventh Circuits’ rule would require § 1983 plaintiffs to initiate parallel federal litigation, contrary to principles of judicial economy, federalism, comity, and constitutional avoidance. Federal courts generally would stay a parallel § 1983 action under Pullman. Federal courts also may stay a parallel § 1983 action for declaratory relief. If federal courts do not stay a parallel § 1983 action, they risk making constitutional decisions unnecessarily or based on erroneous interpretations of state law. The Fifth and Seventh Circuits’ rule is unworkable and has no discernible benefit, despite its significant costs.

Brief of Amici Curiae Americans For Prosperity Foundation, Dream Corps Justice, National Association of 
Criminal Defense Lawyers, Niskanen Center, Right On Crime, The R Street Institute, and The Sentencing Project in Support of Petitioner.

Argument: A sentencing judge should not be allowed to functionally overrule a jury's tal acquitof a criminal defendant and punish him for that same acquitted conduct. Yet all too many criminal defendants who were acquitted of more serious criminal charges but convicted on one or more lower charges face judges doing just that. How is this constitutionally dubious sentencing practice possible? Put simply, many lower courts have mistakenly overread this Court's per curiam decision in Watts to permit sentencing judges to do what Apprendi and its progeny later prohibited; namely, find facts that increase the punishment beyond that authorized by the jury's findings of guilt. Acquitted-conduct sentencing flips the presumption of innocence on its head by allowing judges to functionally overrule unanimous jury acquittals based on judge-found facts using the far lower preponderance standard, gutting the Sixth Amendment's jury-trial right. At a minimum, the Sixth Amendment jury-trial right, coupled with the due process requirement that all facts necessary to legally authorize punishment must be proven beyond a reasonable doubt, should bar judges from using the same alleged conduct a jury acquitted a defendant of to justify dramatically increasing a defendant's Guidelines range and sentence.

Brief of National Association Of Criminal Defense Lawyers, American Civil Liberties Union, and American Civil Liberties Union of Arizona as Amici Curiae in Support of Petitioner.

Argument: Amici submit this brief in support of petitioner's argument that Arizona's refusal to apply federal law--not merely in a single postconviction proceeding, but at every point throughout a criminal defendant's case--is not immune from this Court's review. Here, the Arizona courts have denied petitioner's Due Process claim under Simmons for more than a decade and a half, first on the grounds that Simmons did not apply to Arizona's sentencing scheme, and then, after this Court made clear that it does apply, on the ground that he should have raised it previously because Simmons applied all along. The only thing consistent about the Arizona Supreme Court's treatment of petitioner's Simmons claim is that petitioner loses either way. Under these circumstances, the Arizona Supreme Court's invocation of a procedural rule to bar petitioner's Simmons claim is not "independent and adequate," and does not bar this Court's review.