Alleyne v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of Petitioner.

Argument: “Harris held that the Apprendi rule did not apply to the fact of brandishing in § 924 (c)(1)(A). One reason Harris was wrongly decided is that Apprendi applies to facts that dictate mandatory-minimum sentences. Another reason Harris was wrongly decided is that § 924 (c)(1)(A) establishes fixed-term sentences –contrary to the Harris Court’s unexamined assumption that it creates sentencing ranges—and thus a finding of ‘brandishing’ is subject to the Apprendi rule because it raises the statutory maximum from five to seven years.” (Br. at 23) (citations omitted).

Allshouse v. Pennsylvania

Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Pennsylvania Association of Criminal Defense Lawyers, the Defender Association of Philadelphia, and the Public Defender Association of Pennsylvania in support of the petition for certiorari.

Argument: Statements to child services workers are testimonial in nature. Child services workers are under a legal obligation to submit detailed reports to law enforcement officials when they suspect abuse. This legal obligation, as well as their role in law enforcement investigations, shapes their interviews, even though children are particularly susceptible to suggestion during questioning. Since the primary purpose of child services workers’ investigations is to gather evidence for use in future criminal prosecutions, statements of questionable reliability made to them are testimonial under the Sixth Amendment’s Confrontation Clause.

Arizona v. United States

Amicus curiae brief of Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers in support of the respondent, United States of America.

Argument: Arizona’s Senate Bill 1070 created new criminal offenses and new authorizations for police officers in Arizona to detain and arrest persons suspected of being in the United States illegally. Section 2 modified Ariz. Rev. Stat. § 11-1051(B) so that officers would be required to determine the immigration status of a person stopped, detained, or arrested, if there is a reasonable suspicion that the person is unlawfully present in the United States, and officers would be required to verify the immigration status of any person arrested prior to releasing the person. Section 3 created a new statute, Ariz. Rev. Stat. § 13-1509, creating a crime for the failure to apply for or carry alien registration papers. Section 5 created a new statute, Ariz. Rev. Stat. § 13-2928(C), creating a crime for an unauthorized alien to solicit, apply for, or perform work. Section 6 modified Ariz. Rev. Stat. § 13-3883(A)(5) to authorize warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States. All of these portions of SB 1070 were enjoined by the District Court,2 and that order was affirmed by the United States Court of Appeals for the Ninth Circuit.

SB 1070 cannot be enforced without racially profiling Latinos in violation of the Fourth Amendment’s protection against unreasonable searches and seizures and the Fourteenth Amendment’s Equal Protection Clause. SB 1070 is an unconstitutional “stop-and-identify” law that converts detentions into de facto arrests where officers rely on hunches and other impermissible factors in assuming that a person is in the country illegally. While not all Arizona law enforcement is unmindful of the state’s citizen’s Fourth and Fourteenth Amendment rights, systematic abuses of the law include Maricopa County’s “immigration sweeps” where the sheriff’s department conduct dragnet operations over large groups of people of Latino heritage and arrest first and ask questions later.

Bailey v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. 

Argument: Brief argues that the broad, categorical authorization of police conduct approved in Summers is far afield of the typical Fourth Amendment reasonableness analysis exemplified in Terry v. Ohio, and that the Court should grant certiorari to clarify and confirm limits on the Summers rule.

Boyer v. Louisiana

Amicus curiae brief of the National Association of Criminal Defense Lawyers and Pascal F. Calogero, Jr., Former Chief Justice, Louisiana Supreme Court in support of Petitioner.

Argument: “We show below that the lack of funding that caused Petitioner’s prosecution to be delayed for five years did indeed reflect a systemic breakdown in the public defender system – in Louisiana in general and in Calcasieu Parish in particular. That breakdown was the direct and foreseeable result of deliberate decisions made and actions taken over a period of years by state and local officials. Hence those five years not only could but should be charged to the state under Barker and Brillon. A contrary ruling would encourage states to disregard indigent defendants’ Sixth Amendment rights, including their right to a speedy trial.” (Br. at 3.).

Brooks v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Walton v. United States, No. 12-5847.

Chaidez v. United States,

Amicus curiae brief of the National Association of Criminal Defense Lawyers, National Immigration Project of the National Lawyers Guild, Immigrant Legal Resource Center and Immigrant Defense Project in support the of the petition for writ of certiorari. 

Argument: The question is exceptionally important because of the deepening conflict over the retroactivity of Padilla v. Kentucky imposes severe consequences on countless non-citizens and causes confusion in the enforcement of federal immigration law.

Clapper v. Amnesty International USA

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondents.

Argument: Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)-referred to here as Section 1881a - allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Two of the plaintiff-respondents in this case are criminal defense lawyers for whom confidentiality is essential in their work. They are seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a.

In light of every attorney’s duty of confidentiality, the petitioners, both “United States persons,” are wrong to contend these plaintiff-respondents allege merely “speculative” and/or “self-inflicted injuries” from surveillance under the FISA Amendments Act (FAA), §1881a. FISA surveillance targets regions, persons and subjects heavily implicated by matters in which the respondents serve as defense counsel. They thus must choose between foregoing international communications about sensitive matters or incurring the expense and burden of traveling overseas for in-person communication. The court of appeals should be affirmed.

Descamps v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of Petitioner.

Argument:  The Ninth Circuit construed the Supreme Court’s Modified Categorical Approach to permit a dramatic exception to the Categorical Approach’s limited elements-based inquiry, but the Modified Categorical Approach does not apply to missing-element statutes. Applying the Modified Categorical Approach to missing-element statutes would render the ACCA unconstitutional in many applications and poses significant practical difficulties and risks manifest unfairness. If there is no way to distinguish among applications of the Modified Categorical Approach, it should be abandoned, not expanded.

Dorsey v. United States and Hill v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of petititoners.

Argument: It was error for the sentencing courts in these cases to not sentence the defendants pursuant to the Fair Sentencing Act of 2010, where the defendants were sentenced after the effective date of the FSA. The General Savings Statute, 1 U.S.C. §109, does not prevent the application of the Fair Sentencing Act to pending proceedings, because the application of an ameliorated penalty does not come within the technical abatement rule. Technical abatement occurs because at common law, abatement by repeal included a statute’s repeal and reenactment with different penalties, and is the complete deprivation of the power to prosecute— the scenario Sec. 109 was written to prevent. Application of the FSA’s penalties to ongoing prosecutions does not create a technical abatement at common law; therefore the General Savings provision of Sec. 109 does not apply.

Elashi v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari.

Argument: At trial, the court held the Confrontation Clause did not require that the true identities of two government witnesses, a legal advisor for the Israeli Security Agency and an employee of the Israeli Defense Forces be revealed to the defense, and the Fifth Circuit affirmed. Petitioners argue that the writ should be granted because (1) the courts of appeals have split as to whether the Confrontation Clause precludes anonymous testimony; (2) the rule adopted by the Fifth Circuit is inconsistent with the Supreme Court’s prior decisions, particularly Smith v. Illinois (1968); (3) this case presents an excellent set of facts on which to examine the issue; and (4) the issue is likely to recur. The right to know one’s accusers lies at the heart of both the history and practice of the right to confrontation. See Crawford v. Washington (2004). For these reasons, the issue of whether the government may withhold the identity of key witnesses it chooses to present at trial, including experts, should not await another case.

Evans v. Michigan

Amicus curiae brief of the National Association of Criminal Defense Lawyers.

Argument: An acquittal by the court is always a bar to further proceedings for the same offense. The rule applies even if the acquittal resulted “from erroneous evidentiary rulings or erroneous interpretations of governing legal principles.” United States v. Scott, 437 U.S. 82, 89 (1978). An error of law leading to an acquittal “affects the accuracy of that determination, but it does not alter its essential character.” 

Florida v. Harris

Amicus curiae brief of the National Association of Criminal Defense Lawyers, Florida Ass’n of Criminal Defense Lawyers, the American Civil Liberties Union and the ACLU of Florida in support of the respondent.

Argument: An alert by a “trained” or “certified” drug detection dog by itself is insufficient to establish probable cause; evidence of a dog’s reliability is but one factor in a totality-of-the-circumstances analysis recommended by the Florida Supreme Court. Real-world data demonstrate that even trained or certified dogs have a high rate of false alerts; brief lists a number of different factors relating to a drug dog’s reliability.

Florida v. Jardines

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Florida Association of Criminal Defense Lawyers in support of the respondent.

Argument: Acting on a tip, police conducted a warrantless “canine sniff” with a drug detection dog of the front door of the defendant’s residence and obtained a search warrant based on the dog’s alert. Marijuana was found growing in the defendant’s home. The Florida Supreme Court held that the “sniff test” was itself a search requiring probable cause. Amici argue that persons have a heightened expectation of privacy in their homes and that dog sniffs are highly intrusive, since the sniff can reveal much more than the mere presence or absence of contraband and is a search within the meaning of the Fourth Amendment. Absent exigent circumstances, such a suspicionless search of a home is inherently unreasonable. Further, allowing suspicionless dog sniffs of houses would permit indiscriminate sweeps of residential neighborhoods, a practice some law enforcement officials have already begun to employ.

Gabelli v. Securities and Exchange Commission

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioners.

Argument: The statute of limitations in government penalty actions is not extended by a discovery rule. The Second Circuit’s rule will hamper the ability of individuals and corporations to arrange their affairs. And repose for penalty actions supplies an important check against abuses of enforcement power.

Henderson v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner.

Argument:  Federal Rule of Criminal Procedure 52(b), which provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” permits plainness to be measured at the time of appeal when the law was settled at the time of trial. Johnson v. United States, 520 U.S. 461 (1997). Nothing in the text of the rule, nor does any policy justify, varying from the Johnson “time of appeal” rule when the law was unsettled at the time of the trial (a question that was left open in Johnson). The “time of appeal” rule serves Rule 52(b)’s policy of allowing obvious injustices to be corrected on appeal; serves the goal of treating similarly situated defendants equally; and avoids wasteful appellate litigation over whether particular issues were “settled” or “unsettled” at the time of trial.

Johnson v. Williams

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent.

Argument: AEDPA does not restrict habeas review of a properly presented federal claim that the state courts overlooked and ignored. If a state court issued an opinion that failed to address a properly presented federal claim, a habeas court should not presume that the claim was nonetheless adjudicated. Contrary to the warden’s alternative argument, the adjudication of a state-law claim does not adjudicate a factually related, but omitted, federal-law claim.

Kaley v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petition for writ of certiorari. 

Argument: “Whether effected via criminal-forfeiture provisions, or through parallel civil-forfeiture proceedings, restraining defendants assets during a prosecution implicates a structural right and risks inflicting unknowable injustices….The circuits holding that a grand jury’s ex parte probable cause determination is unassailable have unduly compromised the structural right to counsel.” (Br. at 2 & 5.)

King v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Cato Institute and the Texas Public Policy Foundation in support of the petition for certiorari.

Argument: 18 U.S.C. § 1001 criminalizes the knowing and willful making of materially false statements in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States. Judicial expansions of §1001 have invited prosecutors to stretch the statute beyond its proper reach and an improperly broad definition of a “matter within the jurisdiction” clause presents significant risks of overcriminalization and misuse, resulting in wrongful convictions.

Mehanna v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Appellant Tarek Mehanna and reversal of his conviction.

Argument: “The district court misapplied First Circuit and United States Supreme Court conspiracy law. Moreover, these errors go not only to the heart of the substantive criminal law, but also to the First Amendment’s protection. From the scope of the indictment, through the court’s evidentiary rulings [admission of inflammatory evidence], and finally, its instructions, the result was a prosecution that effectively criminalized unpopular thought and expression unmoored from criminal conduct.”

Miller v. Louisiana

Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Louisiana Association of Criminal Defense Lawyers, and the Oregon Association of Criminal Defense Lawyers in support of the petition for certiorari.

Argument: The petition should be granted in order to decide whether the Sixth Amendment and Fourteenth Amendments require unanimity in state criminal cases. The traditional unanimity requirement serves as a basic component of the Sixth Amendment’s jury guarantee, which is not currently being afforded to accused persons in Louisiana and Oregon. Amici urge that the petition be granted in order to address whether the Court’s decisions in Apodaca v. Oregon, 406 U.S. 404 (1972) and Johnson v. Louisiana, 406 U.S. 356 (1972)  properly interpreted the Sixth Amendment jury trial guarantee to permit non-unanimous juries, which were unknown at the time of the nation’s founding.

Missouri v. McNeely

Amicus curiae brief of the National College for DUI Defense and the National Association of Criminal Defense Lawyers in support of Respondent.

Argument: Per se warrantless blood draws are unnecessary as (i) states already successfully prosecute thousands of drunk driving cases after police obtain warrants to draw blood, (ii) technological advances allow police to obtain warrants in minutes, (iii) states have e-warrant procedures, and (iv) telephonic warrants also may be granted in minutes. Per se warrantless blood draws are unreasonable and unconstitutional. The warrant requirement checks police power in DUI cases. And search warrants protect officers and drivers.

Pickering v. Colorado

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari.

Argument: Element-negating defenses, such as self-defense, often negate the mens rea needed to sustain a conviction, and due process should require the prosecution to disprove the defense beyond a reasonable doubt.

Pleau v. United States and Chafee v. United States

Amicus Curiae brief of the Rhode Island ACLU; National Association of Criminal Defense Lawyers; National Legal Aid & Defender Association; Office of the Federal Defender for the Districts of Rhode Island, Massachusetts and New Hampshire; Office of the Federal Defender of the District of Maine; Rhode Island Association of Criminal Defense Lawyers; and Colegio de Abogados de Puerto Rico in support of the petitions for certiorari.

Argument: The Interstate Agreement on Detainers, 18 U.S.C. app. 2, §2 (“the IAD”), which is binding on all states and the United States, empowers a prisoner in state custody, who is subject to a detainer by the United States, to ask the governor not to transfer him to federal custody to face charges in federal court. It also authorizes the governor to refuse to transfer the prisoner. In this case, after lodging a detainer for Rhode Island prisoner and petitioner Jason W. Pleau, the federal government requested temporary custody pursuant to the IAD to face federal charges. Mr. Pleau exercised his right under the IAD to ask Gov. Lincoln Chafee to refuse the request, and Gov. Chafee declined to transfer Mr. Pleau to federal custody. The United States then opted to circumvent the IAD by securing a writ of habeas corpus ad prosequendum for Mr. Pleau over his and the governor’s objections. The U.S. Court of Appeals for the First Circuit approved the writ, which allowed the federal government to avoid its obligations under the IAD.

By allowing the United States to circumvent the IAD in this way, the First Circuit’s decision violated Mr. Pleau’s rights, threatened the IAD’s prisoner-protective scheme, and undermined its framework of cooperative federalism. Here, by using a writ to obtain custody of Mr. Pleau, the federal government ignored Governor Chafee’s right to refuse to transfer a prisoner from state custody and Mr. Pleau’s right to seek this refusal. In so doing, the federal government received the benefits of lodging a detainer without fulfilling its obligations as a party to the IAD. This is precisely what the Supreme Court disallowed in United States v. Mauro, 436 U.S. 340 (1978). By misinterpreting Mauro, the First Circuit returns detainer practice to the uncoordinated situation that existed before the IAD. Further, because Circuit Courts have decided this issue differently, uncertainty once again prevails. The brief argues that the Supreme Court should grant the petitions in this case to protect the rights that the IAD grants to prisoners, reinforce its interpretation of the IAD in Mauro, and restore order and predictability under the IAD among the Circuits.

Public Defender, Eleventh Judicial Circuit of Florida v. State, Fla.

Amicus curiae brief of the Florida Association of Criminal Defense Lawyers, Public Interest Law Section of the Florida Bar, University of Miami School of Law Center for Ethics and Public Service, National Association of Criminal Defense Lawyers, Brennan Center for Justice, and the Constitution Project in support of petitioner.

Argument: The petitioner and assistant public defenders for the 11th Judicial Circuit have shown that their excessive caseloads imminently threaten not only to create conflicts of interest but also to deprive current and former indigent clients of constitutionally-effective assistance of counsel and are therefore entitled to limit further representations without waiting for those threats to materialize; extensive evidence presented in the trial court establishes both ongoing violations of the Sixth Amendment rights of petitioner’s clients and an unacceptable risk of future violations; the intermediate court of appeal improperly limited the scope of the Sixth Amendment as it applies to systemic deficiencies.

Rhodes v. Judiscak

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for writ of certiorari.

Argument: Petitioner filed a habeas challenge to the BOP’s calculation of the actual length of his sentence, but when the district court failed to act on his petition until after the petitioner had already been placed on supervised release. The district court dismissed his case as moot, concluding it had no authority to shorten the length of his supervised release and the U.S. Court of Appeals for the 10th Circuit affirmed. The courts of appeal are split whether a federal prisoner’s habeas petition challenging the length of his incarceration remains justiciable while he is on supervised release. Moreover, the Federal Bureau of Prisons is responsible for calculating inmate sentences; the Tenth Circuit’s rule would allow the BOP to insulate its sentence computations from review by dragging out litigation until an inmate is released.

Robbins v. Texas

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari.

Argument: Neal Robbins was convicted of capital murder of his girlfriend’s 17-month-old child based on the testimony of a medical examiner who later re-evaluated her opinion and swears that she can no longer stand by her testimony that the child died of asphyxiation. Lower courts are divided as to whether new scientific evidence warrants a new trial. The Court should reverse the Texas Court of Criminal Appeals and grant Robbins a new trial for three reasons: (1) scientific evidence plays an increasingly important role in criminal trials, and courts need guidance on how best to account for evidence that is shown to be unreliable after conviction; (2) the holding of the court of criminal appeals violates due process by heightening the burden of proof non the petitioner in a post-conviction proceeding to an impossibly high level; and (3) this case is the right vehicle for review of this issue because it presents a situation where the scientific evidence was the only direct evidence of homicide and thus central to Robbins’ conviction and was recanted in full by the expert witness.

Rubashkin v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Aleph Institute in support of the petition for certiorari. 

Argument: Extensive ex parte pretrial contacts between the trial judge in the prosecutor in planning the defendant’s arrest and prosecution, coupled with the judge’s failure to disclose those contacts, raise fundamental substantive and procedural due process issues. The court of appeals’ requirement that grounds for granting a new trial based on newly-discovered evidence of judicial misconduct would probably lead to an acquittal was erroneous and the decision below should be reversed.

Salinas v. Texas

Amicus curiae brief of the National Association of Criminal Defense Lawyer in support of the petition for certiorari.

Argument: In the case below, the Texas Court of Criminal Appeals held that the Fifth Amendment right against self-incrimination does not apply to pre-arrest, pre-Miranda silence, and therefore such silence in response to police questioning was admissible as evidence of guilt.

If a defendant’s pre-arrest silence in the face of police questioning may be admitted as evidence of guilt, the defendant faces a “cruel trilemma.” He can answer the police questions truthfully, possibly incriminating himself. He can lie to law enforcement, itself often a crime.3 Or he can remain silent and risk that his silence will be used against him as evidence of his guilt. The privilege against self-incrimination would be hollow if its exercise could be taken as equivalent to a confession of guilt.

Shaygan v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari.

Argument: Fee awards under the Hyde Amendment, which allow acquitted defendants to recover some of the financial damage they incur from having faced a criminal prosecution undertaken by the government which has been shown to be “vexatious, frivolous, or in bad faith,” are a needed check against prosecutorial misconduct. The Hyde Amendment authorizes an award of attorney’s fees even where probable cause existed to support the filing of criminal charges; the Eleventh Circuit’s cramped interpretation of the statute will have a chilling effect on zealous advocacy, endangering defendants’ Sixth Amendment Right to Counsel.

Simels v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari.

Argument: In the decision below, the Second Circuit held that the defendant’s testimony could be impeached with portions of an illegally obtained wiretap that the trial court had suppressed under Title III of the 1968 Omnibus Crime Act (18 U.S.C. §2515) (“the Wiretap Act”). In the context of Title III wiretap intercepts, the constitutional protections of the Fourth Amendment are a floor, not a ceiling; §2515 provides more protection than the Fourth Amendment in that the statute provides that illegally obtained oral or wire communications shall not be “received in evidence in any trial.” The judicially-created impeachment exception created by the Second Circuit collides with the fundamental protections underlying Congress’s enactment of Title III.

Simon v. City of New York

Amicus curiae brief of the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and American Civil Liberties Union Foundation in support of plaintiff-appellant.

Argument: The district court incorrectly focused on the prosecutor’s absolute immunity for applying for the material witness warrant, rather than the plaintiff’s principle claim that the improper execution of the warrant caused her injury. It would be inappropriate to recognize absolute immunity where the prosecutor, and the detectives acting jointly with him, violated the terms of the warrant and the authorizing statute by detaining the witness for two days for interrogation and never taking her to court.

Smith v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers.

Argument: A defendant’s withdrawal from a conspiracy during the statute of limitations period negates and element of a conspiracy charge such that, once a defendant meets his burden of production that he did withdraw, the burden of proof rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period. The requirement that the prosecution prove the defendant’s guilt beyond a reasonable doubt is a defendant’s foremost safeguard against a wrongful conviction. The defendant’s withdrawal defense negated the “participation” element of the conspiracy, and relieving prosecutors of their burden to prove a defendant’s mental state substantially undermines the fairness of the trial by diluting one of the most important protections against wrongful convictions.

Southern Union Co. v. United States

Amicus curiae brief of the Chamber of Commerce of the United States and the National Association of Criminal Defense Lawyers in support of the petitioner, Southern Union Co.

Argument: In cases where the defendant is a corporation, the penalty of conviction is necessarily a fine, because a corporation cannot be incarcerated; unlike most criminal cases, the fine is not merely part of or an alternative to the penalty, it is the penalty. The court of appeals erred in ruling that Apprendi v. New Jersey, which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and found beyond a reasonable doubt, does not apply to criminal fines.

State v. Norfolk

Amicus curiae brief of the Missouri Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers.

Argument: After the trial court erroneously admitted evidence (firearm, ammunition and marijuana) seized in violation of the Fourth Amendment, the defendant admitted under oath that the gun and marijuana were his. The court of appeals held that while the trial court clearly erred in denying Norfolk’s motion to suppress, given the defendant’s confession in open court, the error was harmless beyond a reasonable doubt. When evidence is erroneously admitted at trial, the defendant’s subsequent testimony cannot render that error harmless; Missouri’s harmless error rule regarding subsequent testimony has been overruled by the U.S. Supreme Court and makes little practical sense.

United States v. Alvarez

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondent Xavier Alvarez. 

Argument: The Stolen Valor Act of 2005’s false claims provision, 18 U.S.C. §704(b), which makes it a crime when anyone "falsely represents himself or herself, * * * verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States,” is constitutionally overbroad because it punishes speech protected under the First Amendment such as innocent mistakes, harmless misrepresentations, purely private speech, jokes, satire, and dramatic claims. Moreover, it lacks a mens rea requirement and the supposed harm it protects against is not supported by a substantial government interest; as such, it is a classic example of federal overcriminalization.

United States v. Behenna

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant.

Argument: NACDL submits that the Brady violation in this case is not an isolated aberration, but rather is evidence of a systemic problem in military jurisprudence. Military prosecutors have a legal and ethical duty to seek justice, not convictions, and if trial counsel has a bona fide question as to whether or not something is or is not Brady material, it should be submitted to the military judge for resolution. Absent that, then any violation of Brady will be presumed to be prejudicial absent the government’s demonstration to the contrary by the beyond a reasonable doubt standard. 

United States v. Charles E. Coughlin

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant.

Argument: Contrary to the District Court’s interpretation, Dowling does not establish a blanket rule that the issue preclusion component of the Double Jeopardy Clause never operates to exclude evidence. At the very least, where issue preclusion serves to narrow the indictment on retrial, evidence of acquitted conduct may not be admitted as “intrinsic” evidence, unregulated by Federal Rule of Evidence 404(b), and without engaging in a careful balancing under Rule 403.

United States v. Katzin

Joint Amicus curiae brief of the American Civil Liberties Union Foundation, the ACLU Foundation of Pennsylvania, the Electronic Frontier Foundation, and the National Association of Criminal Defense Lawyers in support of affirmance of the district court. 

Argument: Tracking a car by physically attaching a GPS device to it requires a warrant based on probable cause, without exception. The District Court correctly applied the exclusionary rule because the FBI agents did not rely on binding appellate precedent.

United States v. Pleau (Lincoln D. Chaffee, Gov., Intervenor)

Amicus curiae brief of ACLU Rhode Island, ACLU of Puerto Rico, ACLU of Maine, ACLU of Massachusetts, New Hampshire Civil Liberties Union, Office of the Federal Defender for the Districts of Rhode Island, Massachusetts and New Hampshire, National Association of Criminal Defense Lawyers, Rhode Island Association of Criminal Defense Lawyers, and Colegio de Abogados de Puerto Rico (also known as the Puerto Rico Bar Association) in support of Jason Wayne Pleau and supporting reversal of the decision below.

Argument: The Interstate Agreement on Detainers is critically important to State and Federal prisoners subject to detainers based on untried charges. Enacted by Congress in 1970, the IAD created cooperative procedures by which prisoners and prosecutors may initiate the prompt disposition of untried charges. The United States is a party to the IAD, and when it chooses to proceed under the IAD by lodging a detainer for a State prisoner, it must comply with the IAD’s provisions, including the duty to respect a governor’s discretionary decision to refuse to transfer the prisoner to federal custody. Here, the United States charged Jason Pleau, lodged a detainer against him and then requested his temporary custody under the IAD. When the Rhode Island Governor refused, as Article IV(a) of the IAD entitled him to do, the United States tried to circumvent the Agreement by using a writ of habeas corpus ad prosequendum. As the Panel ruled, however, United States v. Mauro, 436 U.S. 340 (1978), precludes the United States from using a writ to evade its obligations under the IAD. Further, permitting the United States to opt-out of the IAD, after lodging a detainer, would undermine the integrity of the entire IAD process, cause the very problems for prisoners that the IAD was intended to alleviate, and frustrate the cooperative procedures that lie at the heart of the statute.

United States v. Quinn

Brief on rehearing en banc for Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant. 

Argument: The district court’s denial of Appellant’s motion to compel the testimony of co-defendant, which if granted could have conferred judicial immunity for that testimony was reversible error. “Government speculation that a witness might commit perjury cannot override the defendant’s constitutional right of access to evidence that could contribute to the establishment of reasonable doubt.” (Br. at 3-11.) “In reaffirming the defendant’s right to compel witness testimony, the court should make clear that ‘exculpatory and essential’ evidence is evidence that could contribute substantially to raising a reasonable doubt.” (Br. at 11-15.)

United States v. Ring

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Center for Competitive Politics in support of appellant.

Argument: In Skilling v. United States(2010), the Supreme Court held that to prove “honest services” fraud under 18 U.S.C. §1346, the government must prove bribery and quid pro quo—an exchange of a thing of value and an official act taken in response. In this case, the district court’s instructions read the bribery requirement out of the statute, permitting the jury to convict the appellant without any showing of quid pro quo, but only a unilateral “intent to influence.” The lower court’s interpretation of the statute threatens to chill, even criminalize, a broad range of innocent conduct, particularly campaign contributions.

United States v. Vasquez

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari and urging reversal.

Argument: “Harmless error” review must assess the effect of the error on the verdict, upon review of the entire record, and with the burden of proving harmlessness on the government ; the appellate court must assess the strength of the evidence with due consideration of the defendant’s Sixth Amendment jury trial right and the jury’s role as the factfinder.

United States. v. Llanez-Garcia

Brief of Amici Curiae National Association of Criminal Defense Lawyers in Support of Interested Party-Appellant and Reversal of the District Court Decision.

Argument: The Nixon test does not apply to Rule 17(c) subpoenas to third parties. The District Court sanctioned Ms. Migdal for issuing Rule 17(c) subpoenas to third parties. The Nixon test applies only to subpoenas issued to the prosecution. Rule 17(c) subpoenas by defendants to third-parties are proper where they are 91) reasonable, and (2) not unduly oppressive. The Bowman/Nixon rationale for limiting the scope of Rule 17(c) does not apply to Third-party subpoenas. A less stringent standard than the Nixon test comports with criminal discovery principles. At a minimum, the case law supporting Ms. Migdal’s interpretation confirms that her conduct was not sanctionable.

Walton v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Brooks v. United States, No. 12-218.