Amicus Briefs Filed in 2014

The Amicus Curiae Committee’s mission is to provide amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal justice system as a whole. Membership in NACDL is not a prerequisite either for amicus assistance from the Committee, or for authorship of an NACDL amicus brief.

 

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Agrawal v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petition for Writ of Certiorari.


Argument: The National Stolen Property Act’s (NSPA) terms “goods, wares, merchandise” are limited to tangible items that are offered for sale in the marketplace. The plain language of the NSPA limits “goods, wares, merchandise” to movable items that are meant to reach the marketplace. Congress restricted the language of the NSPA by using the narrow terms “goods, wares, merchandise” and rejected amendments to expand the language to include trade secrets. Other federal statutes limit the terms “goods, wares, merchandise” to items destined for sale. This Court in Dowling v. United States limits “goods, wares, merchandise” to items that implicate traditional property rights. The nature of trade secrets renders them antithetical to the category of stolen items – “goods, wares, merchandise” that fall within the ambit of the NSPA. Applying the NSPA to trade secrets has led to varying decisions in the lower courts. The rule of lenity mandates a strict construction of “goods, wares, merchandise.”

Arizona v. Krause

Brief of Amici Curiae National Association of Criminal Defense Lawyers (NACDL) in Support of Petitioner Jason Derek Krause. 


Argument: When exculpatory evidence is first revealed after trial, a reviewing court’s prejudice analysis must include an assessment of how the defense strategy would have differed if the state had timely disclosed the information. The prosecutor has a duty to disclose exculpatory evidence. Exculpatory evidence can significantly impact trial strategy. Prejudice from belated discovery is evaluated in terms of its effect on defense preparation and strategy. Mr. Krause was harmed by the state’s failure to timely disclose the flaws in the forensic science.

Bridgeman, et al. v. District Attorney

Brief for the National Association of Criminal Defense Lawyers and the Massachusetts Association of Criminal Defense Lawyers as Amici Curiae.


Argument: Due process and the Rules of Professional Conduct require the prosecutors to promptly notify individual defendants of the exculpatory evidence in each affected case. Because the Commonwealth was aware of this exculpatory evidence at the time of each trial or plea, Brady v. Maryland requires prompt disclosure to each defendant. That a Brady violation occurred in each Dookhan defendant’s case is clear. Prior decisions of both the U.S. Supreme Court and this Court support the conclusion that Brady requires disclosure for defendants whose trials included Dookhan-tainted evidence. Prior decisions of both the U.S. Supreme Court and this Court support the conclusion that Brady requires disclosure for defendants in Dookhan-tainted cases who pled guilty. All prosecutors of Dookhan cases have an ethical obligation to promptly disclose this exculpatory evidence pursuant to Massachusetts Rule of Professional Conduct 3.8(d).

Brown v. Delhaize America, LLC, and Food Lion, LLC,

Brief Amici Curiae of the National Consumer Law Center, Demos, The National Association of Consumer Advocates, the National Association of Criminal Defense Lawyers, the National Employment Law Project, and the Southern Coalition for Social Justice.


Argument: Fair and accurate reporting of criminal record information is essential to protecting individuals’ rights and opportunities. Background checks contain a high rate of errors with deleterious impacts on consumers. Creation of a Sec. 1681(a)(y) exclusion would remove nearly all FCRA protections from employment criminal records reports. Judicial enactment of a § 1681a(y) FCRA exclusion for every circumstance in which the employer has a “policy against employing those with certain criminal histories” – every employer who uses a criminal background check – would swallow the rule itself.

Coleman-Bey v. Tollefson

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


Argument: The interest in ease of administration and the purposes of the PLRA favor treating a prior dismissal as a ‘strike’ only after it becomes final on appeal. The majority interpretation is a simple rule that courts have applied since 1996 without difficulty. The majority interpretation calls for the same familiar finality determination courts routinely make in other contexts. The Sixth Circuit’s interpretation produces bizarre results and uncertainty, with no attendant benefit.

Davis v. United States Sentencing Commission

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


Argument: By 1995 Congress had overwhelming evidence that the 100:1 crack/powder cocaine sentencing ratio disproportionately impacted African Americans and was the principal cause for the widening gap in the length of incarceration for African American and white offenders. Nonetheless, in 1995, Congress rejected proposed equalization and left the 100:1 ratio intact despite its knowledge of the ratio’s discriminatory impact and without suggesting any rational basis for preserving the ratio. Congress’s 1995 reaffirmation of that ratio violated equal protection. It fails under strict scrutiny and fails under rational basis review. And continuing to enforce sentences imposed under the 100:1 ratio will erode public confidence in the judicial system and may undermine the effective administration of justice. This Court has not addressed in a published opinion whether Congress’s 1995 decision to reaffirm the 100:1 ration violated equal protection. NACDL urges the Court (i) to reverse the District Court’s decision holding that Congress did not violate equal protection by rejecting the Commission’s proposed 1:1 ratio and (ii) to remand the case.

Deemer v. Beard

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for Writ of Certiorari).


Argument: The applicability of Heck’s favorable-termination requirement to litigants for whom habeas relief is unavailable is an issue of wide-reaching importance. The minority interpretation of Heck is deeply misguided and should be corrected by this Court.

Dunlap v. Idaho

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for Writ of Certiorari).


Argument: Whether the confrontation clause applies during capital sentencing hearings is unresolved. This Court’s review is necessary to ensure that states may not strategically elude cross-examination of critical evidence.

Ex Parte Neal Hampton Robbins

Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae Supporting Applicant. 


Argument: Article 11.073 requires a new trial where the conviction itself and the determination that a crime occurred at all are “primarily dependent” upon expert testimony later reevaluated by the witness and found to be scientifically insupportable, a conclusion confirmed by other reliable expert evidence.

Farrow v. Lipetzky

Brief of Amici Curiae National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice in Support of Plaintiffs-Appellants.


Argument: A criminal defendant has a fundamental constitutional right to appointed counsel at any ‘critical stage’ of the proceedings against him. The defendant’s first appearance before a magistrate can result in substantial prejudice to the defendant’s rights. California’s initial appearance is a ‘critical stage’ requiring the presence of appointed counsel.

Heien v. North Carolina

Brief for the National Association of Criminal Defense Lawyers the Cato Institute, the American Civil Liberties Union, and the American Civil Liberties Union of North Carolina as Amici Curiae in Support of Petitioner.


Argument: The North Carolina Supreme Court’s rule condoning traffic stops based on suspicion of perfectly lawful conduct ignores fundamental differences between mistakes of fact and mistakes of law. Treating mistakes of fact and law ‘the same’ under the Fourth Amendment contravenes well-established legal doctrine. There are important practical distinctions between mistakes of fact and mistakes of law. The North Carolina rule would have negative consequences for both individual citizens and law enforcement. The North Carolina Supreme Court’s rule will have negative consequences for individual liberty and will undermine law enforcement.

Henderson v. United States

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


Argument: The due process clause and 18 U.S. C. § 924(d) require that a firearm be subject to forfeiture to extinguish ownership. The statutory history of § 922(g) does not suggest any intent to allow deprivation of ownership interest without any process. Section 924(d) explicitly distinguishes between an "owner," a "possessor" and a "delegate." Ability to transfer possession to a third party is consistent with the fact that a disability may be temporary. Like forfeiture, permanent retention of firearms may be an excessive fine under the Eighth Amendment.

Illinois v. Pacheco

Brief of Juvenile Law Center, Loyola Civitas Childlaw Clinic, et al., as Amici Curiae in Support of Defendant-Appellant (full list of amici in Appendix A to attached brief).


Argument: U.S. Supreme Court jurisprudence demonstrates that the automatic prosecution and mandatory sentencing of certain youth charged with murder as adults is unconstitutional. Under U.S. Supreme Court case law, Illinois’s transfer and mandatory sentencing statutes are unconstitutional because they do not allow for individualized sentencing of minors transferred to adult court and convicted of murder. Youth are fundamentally different from adults in constitutionally relevant ways. The Illinois automatic transfer and mandatory sentencing statutes are unconstitutional because they do not permit a sentencing court to consider the individual maturity and degree of culpability of each youth convicted of murder. The U.S. Supreme Court’s “kids are different” jurisprudence is not limited to a particular type of crime, sentence or constitutional provision. Illinois’ statutory scheme is unconstitutional because it subjects youth who were not principally responsible – such as those charged with felony murder or those charged under an accountability theory – to automatic transfer to adult court and mandatory sentencing without a court’s consideration of the constitutionally relevant attributes of adolescence. Illinois’s statutory scheme departs from national norms. Illinois is an outlier because its statutes require certain youth to be tried in adult court based on age and charge alone, without the opportunity for a court to make an individualized determination as to whether juvenile court jurisdiction would be more appropriate based on the youth’s unique degree of culpability and capacity for change and rehabilitation. Public policy and public opinion overwhelmingly opposes the automatic transfer to adult court and mandatory imposition of adult sentences without judicial review of the individual youth’s degree of culpability and amenability to rehabilitation.

In Re: Proceedings in which the Commonwealth of Pennsylvania Seeks to Compel the Defender Associati

Brief and Appendix of Amici Curiae National Association of Criminal Defense Lawyers and Pennsylvania Association of Criminal Defense Lawyers Supporting Appellee-Cross-Appellant Defender Association of Philadelphia.


Argument: Vigorous state post-conviction assistance is critical to the FCDO’s mission of securing death-sentenced inmates federal habeas relief. The systemic failure of Pennsylvania to provide effective, properly resourced, capital defense counsel militates in favor of continuous representation by FCDO attorneys.

Jewel v. National Security Agency

Amicus Curiae brief of the 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. The government’s destruction of the evidence of its wrongful search and seizure means that the injury to these other Constitutional rights cannot be remediated 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.

Kendrick v. Tennessee

Brief of Amici Curiae National Association of Criminal Defense Lawyers & Tennessee Association of Criminal Defense Lawyers in Support of the Appellee.


Argument: The United States Supreme Court’s recent analysis in Hinton v. Alabama of defense counsel’s responsibilities to investigate and obtain expert assistance directly applies to this case. In Baxter v. Rose this court outlines a reasonableness standard for ineffective counsel comparing counsel’s actions to a range of competence demanded of attorneys in a criminal case. Hinton v. Alabama applies a reasonableness standard which requires trial counsel to research scientific and technical evidence essential to the defense of the case in order to be within the range of competence demanded of criminal defense attorneys. Investigation of the prosecution’s proposed scientific or technical evidence on critical facts essential to the defense is a necessary part of rendering constitutionally adequate counsel. Counsel’s investigation of forensic sciences and techniques related to a fact essential to a defense is critical because of the powerful impact expert testimony has at trial. The National Research Council of the National Academy of Science’s report on the forensic science community highlights the shortcomings of the field as well as the powerful impact that faulty forensic science can have on those accused of a crime. Extensive research has shown a positive correlation between faulty forensic science testimony and the wrongful conviction of those accused of a crime.

Loughrin v. United States

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


Argument: The text of the bank fraud statute does not support the Tenth Circuit’s holding. The Tenth Circuit’s interpretation of section 1344 promotes the unwarranted expansion of federal criminal law. The number of federal crimes has increased dramatically in the past few decades. New federal crimes cover local conduct that has historically been prosecuted by the states. Some prosecutors and courts have further expanded federal criminal law in the absence of clear congressional intent. The over-federalization of criminal law has numerous adverse consequences. Increasing the number of federal crimes overwhelms the limited resources of federal courts. Overlapping state and federal jurisdiction leads to competition and inefficiencies in the administration of criminal justice. Federalizing crimes already prosecuted by the states does little to alleviate crime and undermines the vital role of the states in prosecuting crime. Over-federalization leads to the disparate treatment of similarly situated defendants. The unjustified severity of petition’s sentence illustrates the dangers of over-federalization.

Martin v. Symmes

Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae on Behalf of Appellant (full list of amici in appendix to attached brief).


Argument: Miller reaffirms the U.S. Supreme Court’s recognition that children are categorically less deserving of the harshest forms of punishments. Miller v. Alabama applies retroactively. Miller is retroactive because Kuntrell Jackson received the same relief on collateral review. Miller applies retroactively pursuant to Teague v. Lane. Miller is retroactive because it announces a substantive rule that categorically prohibits the imposition of mandatory life without parole on all juvenile offenders. Miller is retroactive because it involves a substantive interpretation of the Eighth Amendment that reflects the Supreme Court’s evolving understanding of child and adolescent development. Miller is a "watershed rule" under Teague. Once the Court declares a particular sentence "cruel and unusual" when imposed on a juvenile, the continued imposition of that sentence violates the Eighth Amendment.

Mayes v. Premo

Brief of Amici Curiae National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and California Appellate Defense Counsel in Support of Petition for Rehearing and Rehearing En Banc.


Argument: The Sixth Amendment constrains reviewing courts’ harmless error analysis. The majority creates an intra-circuit conflict by endorsing a harmless error analysis based on a hypothetical trial without the error and by crediting the prosecution’s evidence while ignoring its weaknesses. The majority disregards Supreme Court precedent and creates an intra-circuit split in the standards employed to evaluate whether an error was prejudicial.

Medina v. Arizona

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for Writ of Certiorari).


Argument: Autopsy procedures are not standardized and incorporate evidence beyond that obtained from the body, including evidence provided by the police. Autopsy reports convey circumstantial evidence as authoritative and fail to reflect internal dissent. Medical examiners view themselves as advocates for the dead The nature of autopsy reports marks them as testimonial and hence subject to the strictures of the Confrontation Clause.

Mellouli v. Holder

Brief for National Association of Criminal Defense Lawyers, Immigrant Defense Project, and National Immigration Project of the National Lawyers Guild as Amici Curiae in Support of Petitioner.


Argument: Simple possession of paraphernalia offenses are low-level crimes that, as charged and pleaded, often have no connection to a federally-scheduled controlled substance. Congress did not intend for convictions for low-level state paraphernalia offenses to categorically trigger removal. The circumstances under which possession of drug paraphernalia offenses are charged and pleaded only exacerbates the untoward effects of the Eighth Circuit’s rule. The Eighth Circuit’s rule sows uncertainty and unfairness for noncitizens and criminal defense lawyers and unduly burdens the court system. The Eighth Circuit’s rule severely complicates defense attorneys’ constitutional duty to provide correct advice regarding the immigration consequences of a criminal conviction. The Eighth Circuit’s rule places defense attorneys in an intractable situation and burden the court system as a whole. The Eighth Circuit’s rule also entails significant unfairness for noncitizens, whether or not represented by counsel.

Nelson v. Wisconsin

Amicus Curiae Brief of National Association of Criminal Defense Lawyers and National Association for Public Defense as Amici Curiae in Support of Petition for a Writ of Certiorari.


Argument:  A complete bar on defendant’s testimony at trial strips the defendant of control over a critical component of defense strategy and constitutes structure error. A complete bar on the testimony of the accused offends the dignity and autonomy interest underlying the right and demands reversal. Failure to resolve this issue threatens to erode confidence in the criminal justice system.

People v. Carp; People v. Davis; People v. Eliason

Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae In Support of Appellants Carp, Davis and Eliason (full list of amici in appendix to attached brief).


Argument: Miller reaffirms the U.S. Supreme Court’s recognition that children are categorically less deserving of the harshest forms of punishments. Miller v. Alabama applies retroactively. Miller is retroactive because Kuntrell Jackson received the same relief on collateral review. Miller applies retroactively pursuant to Teague v. Lane. Miller is retroactive because it announces a substantive rule that categorically prohibits the imposition of mandatory life without parole on all juvenile offenders. Miller is retroactive because it involves a substantive interpretation of the Eighth Amendment that reflects the Supreme Court’s evolving understanding of child and adolescent development. Miller is a "watershed rule" under Teague. Once the Court declares a particular sentence "cruel and unusual" when imposed on a juvenile, the continued imposition of that sentence violates the Eighth Amendment. Any life without parole sentences for a juvenile who did not kill or intend to kill is inconsistent with adolescent development and neuroscience research and unconstitutional pursuant to Miller and Graham. Intent to kill cannot be inferred when a juvenile is convicted of felony murder. Any life without parole sentence for a juvenile convicted of felony murder is unconstitutional pursuant to Miller and Graham. All juveniles convicted of murder in Michigan are entitled to individualized sentences that presumptively provide a meaningful opportunity for release.

People v. Roman Baret

Brief for Amici Curiae the New York State Defenders Association, Inc., New York State Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers et al., including Immigrant Defense Project (complete list of amici is available in appendix to brief linked above).


Argument: The advice regarding deportation is critical to an immigrant defendant. The professional standards supporting this duty in New York pre-date the 1996 immigration laws. The rule articulated in Padilla v. Kentucky applies under New York law to remedy Padilla violations pertaining to uninformed pleas entered in New York at least from the passage of AEDPA and IIRIRA in 1996 onward. Fundamental fairness demands that the courthouse doors remain open, at least, to Padilla claims arising from pleas entered after AEDPA and IIRIRA, not merely for those cases that were pending when Padilla was decided or came after Padilla.

Plumhoff v. Rickard

Amicus Curiae Brief of the National Association of Criminal Defense Lawyers Supporting Respondent.


Argument: If the Court of Appeals failed to determine whether petitioners’ conduct violated Rickard’s clearly established constitutional rights, this Court should remand the case to the Court of Appeals with instructions to do so. If the Court remands the qualified immunity issues, it should not reach the constitutional questions. A number of proffered justifications are inconsistent with clearly established law in 2004. A number of the justifications proffered by petitioners rest on disputed facts. The government does not advance a sound basis for concluding that the defendants are entitled to qualified immunity.

Riley v. California

Brief of the National Association of Criminal Defense Lawyers and the Brennan Center for Justice at New York University School of Law as Amici Curiae in Support of Petitioner.


Argument: Mobile computing devices like the modern smartphone are unique. The capacity of mobile computing devices renders analogies to physical containers inapplicable. Mobile devices have been incorporated into modern living in a fundamentally private and personal way. The smartphone is the new instrument of First Amendment expression. The warrantless search of a smartphone incident to arrest is not justified under the search incident to arrest doctrine. Neither of the Chimel rationales is present with respect to the warrantless search of a cellphone. Permitting a warrantless search of a smartphone, but limiting it to evidence relating to the crime of arrest is unworkable. Cellphone data necessitates the protections of the warrant requirement. Technology has removed impediments to securing a warrant. A warrant is the only effective mechanism for managing governmental collection of cellphone data.

Robbins v. Rodriguez

Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the Judge David L. Bazelon Center for Mental Health Law in Support of Petitioners’ Principal and Response Brief.


Argument: The immigration system fails to provide constitutionally mandates procedural safeguards required under common principles of due process. Petitioners, a class of detained noncitizens, seek to rectify this anomaly and bring the procedural protections of the immigration detention system in line with those provided in the pretrial justice and civil commitment regimes. To that end, the Court should adopt Petitioners’ requested procedural safeguards for detained noncitizens, including: (1) providing detainees with an automatic bond hearing; (2) requiring the government to justify detention by clear and convincing evidence; (3) requiring consideration of alternatives to detention; (4) providing adequate written notice of the hearing to allow for a meaningful opposition to detention; (5) providing periodic detention hearings; and (6) requiring consideration of the length of detention. The pretrial justice system provides procedural safeguards comparable to those requested by petitioners. The civil commitment system provides procedural safeguards comparable to those requested by petitioners.

Smith v. Obama

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


Argument: The government’s wholesale, indiscriminate collection of all call records violates the Sixth Amendment right to counsel. The Sixth Amendment right to counsel depends on the privacy of communications between attorneys and clients. Because the bulk collection of telephone metadata destroys the privacy of these lawyer-client communications, it violates the Sixth Amendment. Because the bulk collection of metadata violates a legitimate expectation of privacy in lawyer-client communications, it violates the Fourth Amendment. The government’s bulk collection of phone metadata constitutes a “search” under the Fourth Amendment because it invades a legitimate expectation of privacy society recognizes as reasonable. This expectation of privacy can survive exposure to third parties. The expectation of privacy applies to identifying information.

State v. Johnson

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


Argument: The Twelfth Appellate District was wrong to rely on dicta and focus on officer culpability in order to expand the narrow exceptions to the exclusionary rule. This court should apply the exclusionary rule when there is no equivocal binding precedent authorizing a particular search. Knotts and Karo were not unequivocal binding precedent at the time law enforcement placed a GPS tracking device on Johnson’s car. A cost-benefit analysis tilts in favor of suppression in Johnson’s case.

State v. Moore

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


Argument: The Eighth Amendment prohibits sentencing a juvenile to a term-of-years sentence that precludes any possibility of release during the juvenile’s life expectancy. The Supreme Court and this Court have repeatedly held that children, because they are categorically less culpable than adults, must be subject to categorically less severe sentences than adults. This Court should consider, pursuant to Article I, Section 9 of the Ohio Constitution, articulating more fully how Ohio courts must treat youths differently than adults at sentencing.

Texas v. Moon

Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae in Support of Appellee Cameron Moon (full list of amici in appendix to linked brief).


Argument: U.S. Supreme Court jurisprudence demonstrates that the state’s flawed reading of the Texas waiver statute is also constitutionally defective. The state’s flawed reading of Texas’s transfer statute runs afoul of constitutional requirement for an individualized judicial determination prior to trial in adult court, where youth are subject to mandatory sentencing statutes. The United States Supreme Court’s ‘kids are different’ jurisprudence is not limited to a particular type of crime, sentence or constitutional provision. Adoption of the state’s interpretation of the Texas statute would make Texas an outlier, allowing for the prosecution of youth as adults based on age and charge alone without an individualized determination of the youth’s maturity level and capacity for change and rehabilitation. Public policy and public opinion overwhelmingly oppose automatic transfer to adult court and mandatory imposition of adult sentences on youth.

United States v. 475 Martin Lane

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellees and Urging Affirmance.


Argument: Congress enacted the CAFRA fee provision, over the government’s objection, to ensure the availability of competent counsel for persons whose property the government seizes and seeks to forfeit. The Anti-Assignment Act does not apply to assignments of potential future CAFRA fee awards. The defense of a civil forfeiture case does not involve a claim against the government. Future, potential rights to recover statutory attorney fees are not claims against the government.

United States v. Clay

Brief for Amici Curiae of the National Association of Criminal Defense Lawyers, Reason Foundation and Five Criminal and Health Law Scholars In Support of Defendants-Appellants Urging Reversal.


Argument: This Court held in United States v. Whiteside, 285 F. 3d 1345, 1351 (11th Cir. 2002), that a false statement charge cannot succeed when the statement is true under an objectively reasonable interpretation of the law. Under Whiteside, a statement is knowingly false only when its falsity is clear. Whiteside is an important protection against inappropriate prosecutions. Whiteside prevents government overreaching in uncertain regulatory environments. Whitesidecurbs inappropriate prosecutions based on breach of contract. Whiteside protects against arbitrary and inconsistent enforcement, as occurred here. The Whiteside question should have been resolved by the district court, and this Court should conduct the Whiteside analysis de novo.

United States v. Davis

En Banc Amici Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Appellant Quartavious Davis.


Argument: For good reason, the Supreme Court has nearly always rejected the claim that the Fourth Amendment does not regulate advancement in surveillance technology, including location tracking. Obtaining the location data sent by the defendant’s telephone without a warrant supported by probable cause was an unconstitutional seizure of the defendant’s private information. In this case, the investigating officers could not have believed in good faith that the order requiring production of the defendant’s location tracking records was constitutional.

United States v. Erwin

Brief of the National Association of Criminal Defense Lawyers As Amicus Curiae In Support of the Petition for Rehearing by the Panel or by the En Banc Court.


Argument: The Panel erred in relieving the government of its obligation to perform. Assuming Mr. Erwin breached the plea agreement, the Panel awarded a remedy that placed the government in a better position than it would have been in but for the breach and that punished Mr. Erwin. The Panel’s approach is inappropriate as a matter of public policy.

United States v. Rodriguez-Vega

Brief of the National Association of Criminal Defense Lawyers, National Association for Public Defense, Immigrant Defense Project, Immigrant Legal Resource Center, and National Immigration Project of the National Lawyers Guild as Amici Curiae in Support of the Petitioner-Appellant.


Argument: The lower court erred in holding that defense counsel need only advise noncitizen clients of possible deportation when deportation is in fact virtually certain. The lower court disregarded the holding of Padilla v. Kentucky. Counsel must give a strong warning of virtual certain deportation even if relief in immigration court is potentially available. Ample attorney resources make it easy to provide accurate advice of clear immigration consequences. Noncitizen defendants who fail to receive clear and accurate advice about the true likelihood of deportation can establish prejudice, notwithstanding notice of possible deportation. Because judicial warnings about immigration consequences of a plea differ categorically from advisals by defense counsel, they do not purge prejudice. Equivocal information about the risk of deportation does not cure prejudice when deportation is practically inevitable.

United States v. Sen

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae.


Argument: The Constitution prohibits strict liability offenses except in the rarest of circumstances. Strict liability offenses are generally disfavored. This case is not the rare case. The expansion of strict liability crime stretches prosecutorial discretion to the breaking point. There has been an unwarranted expansion of federal criminal liability and, in particular, strict liability crimes. Expansion of federal criminal law especially in the area of strict liability crimes dangerously grants prosecutors too much discretion. This case is the poster child for prosecutorial overreach. Strict liability crimes distort the plea bargaining process.

United States v. Wurie

Brief of the National Association of Federal Defenders and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Respondent.


Argument: The First Circuit correctly held that the search-incident-to-arrest exception does not categorically authorize warrantless cell phone searches, but that the exigent circumstances exception can apply in particular cases. Smith v. Maryland does not support a rule allowing call logs to be searched incident to arrest. Maryland v. King and Florence v. Bd. Of Chosen Freeholders do not support warrantless cell phone searches incident to arrest.

United States v. Zepeda

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: The Major Crimes Act requires the government to prove that the defendant has both ancestral and political affiliation with a federally-recognized tribe. Indian status is an element of the offense that the government must allege in the indictment and prove to a jury. Zepeda’s conviction must be reversed. The jury instruction was plain error. No rational jury could conclude that Zepeda satisfies the ancestral requirement of Section 1153. The government failed to demonstrate at trial that the Tohono O’Odham Nation of Arizona is a federally-recognized tribe. The government failed to demonstrate that Zepeda’s heritage derives from the Tohono O’Odham Nation of Arizona.

Warger v. Shauers

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


Argument: Racial, ethnic and religious bias among jurors remains a serious problem in criminal cases. The canon of constitutional avoidance requires admitting evidence under Rule 606(b) that tends to prove a litigant did not receive a fair trial. Rule 606(b) implicates core constitutional concerns in the criminal context. This Court should consider criminal-specific constitutional concerns in construing Rule 606(b).

Whitfield v. United States

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


Argument: The rule of lenity supports the narrow construction of 18 U.S.C. § 2113(e) urged by petitioner in this case. The phrase “forces any person to accompany him” is ambiguous. The statute’s ambiguity increases the risk of inconsistent application. Section 2113€ requires substantial movement. The Court should adopt a clear rule for interpreting the forced accompaniment provision of § 2113(e). Specific rules are especially important in applying vague mandatory minimum statutes. The conflicting tests used by lower courts to interpret § 2113(e) are inadequate. In interpreting the statute, the Court should rely on the distinction for kidnapping already drawn in the Model Penal Code (MPC). Under the MPC test, the petitioner’s § 2113(e) conviction should be reversed.

Wyoming v. Mares

Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae in Support of Appellee Edwin Ike Mares (full list of amici in appendix to linked brief).


Argument: The U.S. Supreme Court has repeatedly held that children are categorically less deserving of the harshest forms of punishment. Appellee’s mandatory life sentence is unconstitutional even in light of Wyoming’s post-millersentencing amendments. Miller v. Alabama applies retroactively pursuant to U.S. Supreme Court precedent.

Yates v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petition for a Writ of Certiorari. 


Argument: Petitioner's conviction under 18 U.S.C. §§ 1519 and 2232 through his conduct aboard the Miss Katie exemplifies overcriminalization stemming from an unconstitutional executive expansion of the law. As a matter of law, the Petitioner could not have been adjudicated guilty under 18 U.S.C. § 1519 (2012) as the application of an anti-shredding statute to three rotten fish is an unconstitutional expansion of the law and a violation of statutory construction. Executive expansion of 18 U.S.C. § 1519 to include red grouper furthers the overcriminalization epidemic. Additionally, the lower courts committed reversible error when they effectively shifted the burden of proof from the government to the Petitioner on the issue of whether the fish were undersized. No reasonable jury could have convicted the Petitioner under § 2232 because the government failed to meet its burden of proof.

Yates v. United States

Brief of the National Association of Criminal Defense Lawyers and the American Fuel & Petrochemical Manufacturers as Amici Curiae in Support of Petitioner John Yates.


Argument: Petitioner's conviction under Sarbanes-Oxley exemplifies overcriminalization through an unconstitutional expansion of the law. Executive expansion of 18 U.S.C. § 1519 to include red grouper furthers the overcriminalization epidemic. Red grouper are not “tangible objects” under Sarbanes-Oxley. Even if Sarbanes-Oxley applies to fish, Yates’ conduct did not impede, obstruct, or influence a federal investigation. Overcriminalization places a growing burden on the administration of justice, often resulting in ludicrous federal convictions for conduct that, traditional, falls outside constitutionally anticipated federal purview.