NACDL - Amicus Briefs Filed in 2019

Amicus Briefs Filed in 2019

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.

League of Women Voters v. Boockvar

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


Argument: The dramatic impact that Marsy’s Law would have on Pennsylvania’s criminal justice system is not mere speculation. Other states have adopted nearly identically vague and broad constitutional amendments, which have resulted in substantial harm not only to criminal defendants, but also to the administration of the criminal justice system. This amicus brief summarizes the substantial burden’s that Marsy’s Law has imposed in other states where it has gone into effect. The right “to reasonable and timely notice of and to be present at all public proceedings involving the criminal or delinquent conduct” has cost counties and states millions of dollars and congested court dockets. Marsy’s Law states have struggled to deal with the financial impact of the notice provision. The docket congestion caused by the notice provision has caused intolerable delays in proceedings. The right “to reasonable protection from the accused or any person acting on behalf of the accused” has led to absurd results in pretrial release decisions. The right to “full and timely restitution” will take money from the courts. The codification of “respect for the victim’s…privacy” and the right “to reasonable protection from the accused” has made it more difficult for law enforcement to solve crime and left the public lacking critical information about criminal activity.

Leyva v. United States

Brief of Amici Curiae Due Process institute, Cato Institute, National Association of Criminal Defense Lawyers, Rutherford Institute, District of Columbia Association of Criminal Defense Lawyers, Pennsylvania Association of Criminal Defense Lawyers, Texas Criminal Defense Lawyers Association, and Law Professors in Support Petition for a Writ of Certiorari.


Argument: The standard-of-review question this case presents implicates profound concerns with federal sentencing--concerns with substantial constitutional implications. Federal courts routinely sentence defendants to years in prison based on hearsay statements relayed to the court at sentencing by law enforcement officers. Those statements often come from convicted criminals who want to reduce their sentences by cooperating with the government. The cooperating criminals do not appear in court, so the district judge has no opportunity to assess their demeanor. They do not swear an oath to tell the truth. They do not face cross-examination. And their out-of-court statements need only persuade the judge by a preponderance of the evidence. Petitioner Beltran Leyva faces a life sentence based on precisely such evidence. Defendants have few safeguards against sentencing enhancements that rest on false out-of-court statements from cooperating criminals. One such protection is searching appellate review. De novo review by the court of appeals ensures that the reliability of the cooperator's statement will receive a second level of careful scrutiny. And de novo review comports with the rationale for heightened appellate scrutiny: the stakes--a person's right to due process of law before losing his liberty--are high, and, because the district court never observes the cooperator's demeanor, the appellate court is just as capable of evaluating his credibility.

Martoma v. United States

Brief of Amicus Curiae National Association of Criminal Defense Lawyers In Support of Petition for a Writ of Certiorari


Argument: Over 200 years ago, this Court declared that there are no federal common law crimes. Although that rule remains in place, the intervening years have witnessed the creation of quasi-common law crimes. These are crimes that rest on statutory terms so broad and indefinite that courts are left to define the elements of the offense with little or no guidance from the statutory text. Quasi-common law crimes shift the task of defining what conduct deserves "the moral condemnation of the community" from the legislature, where it belongs, to the courts. This Court has sought to remedy the lack of fair warning inherent in quasi-common law crimes through a process of interpretation that often resembles common law crime definition. Insider trading liability--and, in particular, the liability of tippers and tippees at issue here—has followed the same pattern. In the tipper/tippee insider trading context, therefore--as in the antitrust and honest services contexts--the Court, rather than Congress, has determined the elements of the crime. And as in those contexts, a person seeking to conform his conduct to the law when trading on a tip of nonpublic information will learn virtually nothing from the statutory text. He must turn instead to Dirks' "simple and clear 'guiding principle' for determining tippee liability" and act accordingly. The Court's definition of these and other quasi-common law crimes--its creation of "simple and clear guiding principle[s]" for determining whether an offense has been committed--ameliorates (but does not eliminate) the fair warning danger such crimes present. But the Court's decisions perform that function only if the lower courts treat their operative language as if Congress had included that language in the statute itself. If lower courts can modify the Court's "guiding principles" materially, as the court of appeals did here, and thus broaden the scope of criminal liability, then the lack of fair warning inherent in quasi-common law crimes will remain. It is therefore essential to individual liberty that the Court rigorously police the lower courts' application of its decisions defining quasi-common law crimes. The need for the Court's intervention is particularly acute here, because the court of appeals endorsed an expansion of the tipper/tippee insider trading crime that the Court declined to adopt in Salman.

Sample v. United States

Motion for Leave to file amicus brief filed by the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: This case presents an important issue impacting defendants of all incomes convicted of a variety of crimes. The Tenth Circuit held that a sentencing court could not consider the degree to which a defendant’s “earning capacity” would allow him to pay restitution to the victims of his financial fraud when fashioning a sentence. This holding warrants review because it deepens a conflict of authority over whether district courts may sentence a defendant to probation or to a reduced prison term to enable that defendant to earn income to pay restitution and because the Tenth Circuit was wrong on the merits. This case presents an important questions regarding the broad discretion of sentencing judges. While Congress intended restitution be satisfied in every case to the fullest extent possible, the Tenth Circuit’s decision puts this goal at risk by refusing to allow sentencing courts to even consider a defendant’s capacity to pay restitution when imposing a sentence. Because of restitution’s importance within the federal criminal scheme, this Court should grant review to determine whether the capacity to make restitution payments is an appropriate sentencing consideration. This Court’s review also is necessary because the Tenth Circuit’s decision is in significant tension with the historical tradition of broad discretion in the information a court may consider when imposing a sentence.

St. Hubert v. United States

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for writ of certiorari).


Argument: It is emphatically the province and duty of the judicial branch to say what the law is, not what the law was. But in the Eleventh Circuit, petitioner and scores of other defendants like him have their cases decided on the basis of law otherwise recognized as repudiated by intervening precedent from this Court. Alone among the circuit courts, the Eleventh Circuit requires direct instruction from the Supreme Court to revisit its prior precedent; without it, rationale widely considered clearly erroneous in light of subsequent Supreme Court case law is still applied to defeat defendants’ appeals. Because the Eleventh Circuit’s internal rules require Supreme Court precedent to be “directly on point” to allow reconsideration of its past case law, it takes a narrower view of Supreme Court rationale than does this Court. Where, as in this case, a court acknowledges that the Supreme Court’s intervening rationale is “at odds with” its binding precedent and yet forecloses argument on the issue, a defendant’s due process right to a meaningful appeal is violated. Review is warranted because the Eleventh Circuit's practice is impermissible and inconsistent with all other circuits. The problem is important, recurring, and squarely presented. For this reason, and those in the petition, the Court should grant certiorari.

United States v. Muhtorov

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Urging Reversal. 


Argument: Without disclosure of the underlying FISA materials, it is impossible to argue under Franks v. Delaware, 438 U.S. 154(1978), that the application contains material misstatements or omissions, and courts have no means of conducting the investigation necessary to make that determination themselves. Without disclosure, defendants cannot argue concretely that the government did not properly minimize the fruits of the surveillance, or that the government did not satisfy the requirement that it exhaust other, less intrusive investigative techniques before turning to FISA. Nor can defendants counter government arguments (typically presented ex parte under § 4 of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3 § 4) that the fruits of particular surveillance techniques are too attenuated from the trial evidence to require disclosure. And without notice of particular surveillance techniques that the government used, a defendant cannot argue that, under the circumstances of the case, those techniques violate the Fourth Amendment or another constitutional or statutory protection. As appellant argues, Congress never intended FISA litigation to occur entirely ex parte. Courts have misinterpreted 50 U.S.C. § 1806(f), the statute's disclosure provision. And as we discuss below, the Fifth Amendment Due Process Clause for bids such a secret, one-sided process, under which defendants are routinely denied the information necessary to challenge the lawfulness of government surveillance. No other aspect of criminal law functions entirely in secret; search warrants and Title III wiretap orders are issued ex parte, but after indictment a defendant gets access to the warrant or order and supporting application and a full and fair opportunity to challenge both. It is past time for FISA litigation to meet the standard of fairness that is the hallmark of American law.