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.

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.