Amicus Briefs Filed in 2022

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.

Dubin v. United States

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


Argument: NACDL urged the Court to define the scope of the identity theft statute, 18 U.S.C. § 1028A, narrowly, consistent with Congressional intent and the statute’s purpose, and reverse appellant’s conviction. The statute at issue is 18 U.S.C. § 1028A (“Section 1028A”), which criminalizes aggravated identity theft and imposes an additional, consecutive two years of incarceration if defendants “use” a means of identification of another person “during and in relation to” the commission of a number of predicate felonies. Several other federal circuit courts have recently considered the scope of Section 1028A and the majority of those have adopted narrower constructions of the statute as compared to the Fifth Circuit. In doing so, they have rejected the government’s broad theories that a person violates the statute any time he mentions or otherwise recites another person’s name or identifying information while committing a predicate offense.

“This amicus brief illustrates that this sweeping application of Section 1028A is a symptom of the federal overcriminalization epidemic, enabling unelected prosecutors to consolidate even more charging and plea-bargaining power. Endorsing the Fifth Circuit’s expansive reading of Section 1028A would add yet another powerful weapon to federal prosecutors’ already stacked arsenal. This brief also demonstrates that the statutory purpose of Section 1028A is wholly at odds with the Fifth Circuit’s rationale. Simply put, Congress did not intend to criminalize Dubin’s conduct under Section 1028A, a law enacted in 2004 to address the ‘growing problem of identity theft,” targeting those who “use false identities to commit much more serious crimes.’ Identity Theft Penalty Enhancement Act, H.R. Rep. No. 108-528, at 3 (2004), reprinted in 2004 U.S.C.C.A.N.

779 (“House Report”). Congress identified numerous examples of criminal acts covered under the statute—none of which remotely resembles Dubin’s conduct and all of which involve the use of personal information to impersonate another. In other words, the statute was intended to punish theft of an identity, something that did not happen here.”

Hardin v. United States

Brief of Amici Curiae Due Process Institute and the National Association of Criminal Defense Lawyers in Support of Petitioner.


Argument: This case presents the question of whether a defendant's prior conviction for statutory rape under a state law that criminalizes consensual sexual conduct between a 21-year-old and a 17-year-old can subject that defendant to a mandatory 15-year minimum sentence. Last year, the Ninth Circuit considered this question and answered "no." See United States v. Jaycox, 962 F.3d 1066. But in the decision below, the Fourth Circuit answered "yes." See Pet.App.12a-14a. In doing so, the Fourth Circuit increased Petitioner Hardin's mandatory minimum sentence from 5 years to 15 years and doubled the statutory maximum he faces from 20 years to 40. The Court should resolve this clear circuit split, which could subject hundreds of persons per year to thousands more collective years in prison based solely on geographical happenstance. As the petition explains, the Fourth Circuit's decision misinterprets the [*5] relevant statutory term--18 U.S.C. § 2252A (b)(1)'s mandatory sentencing enhancement for prior convictions "relating to . . . abusive sexual conduct involving a minor"--and distorts this Court's settled method for applying the categorical approach to sentencing enhancements. The result is a decision holding conduct that is legal in 39 States and the District of Columbia to be categorically "abusive sexual conduct" under a federal law that subjects a defendant to a 15-year mandatory minimum.

Jones v. Hendrix

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


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

Luna-Aquino v. United States

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


Argument: This case presents the question of the appropriate mens rea requirement for substantive drug offenses under 21 U.S.C. § 960. Section 960(a), which codifies the Anti-Drug Abuse Act of 1986, prohibits “knowingly or intentionally” importing or exporting a controlled substance. Section 960(b), in turn, specifies a series of aggravated offenses—and correspondingly severe punishments—based on the type and quantity of the “controlled substance” involved. See 21 U.S.C. § 960(b). A defendant who imports or distributes 280 grams of crack-cocaine, for instance, faces a mandatory minimum of ten years in prison. Id. § 960(b)(1)(C). A defendant who imports or distributes the same amount of marijuana faces no mandatory minimum and only a five-year statutory maximum. Id. § 960(b)(4) (cross-referencing id. § 841(b)(1)(D)). The question in this case is whether the government can subject a defendant to these escalating mandatory minimums and maximums without proving that he knew which illegal drug he was importing or the quantity of that illegal drug. The answer is no: Courts presume a statutory mens rea requirement applies to “all the material elements of the offense.” Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019) (internal citation omitted). And any fact that increases the statutory minimum or maximum under Section 960 (or any other statute) is an element of an offense. See Alleyne v. United States, 570 U.S. 99, 116 (2013); Apprendi v. New Jersey, 530 U.S. 466, 476–85 (2000). Therefore, defendants must know what drug they were importing before a court can subject them to statutorily increased sentences. See United States v. Collazo, 984 F.3d 1308, 1338 (9th Cir. 2021) (en banc) (Fletcher, J., dissenting).

McClinton v. United States

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


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

Reed v. United States

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


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

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

Smith v. Maryland

Amici Curiae Brief of National Association of Criminal Defense Lawyers, Maryland Criminal Defense Attorneys Association, and the Innocence Network in Support of Appellant.


Argument: In this extraordinary case, the State conceded that it engaged in “intentional, willful, and/or reckless misconduct” to secure the conviction of Jonathan Smith when it suppressed exculpatory evidence, concealed an agreement involving a key witness who closely assisted in the State’s investigation, and repeatedly lied about this misconduct. On remand from this Court, the Attorney General agreed that this egregious and willful misconduct warranted dismissing the charges against Mr. Smith. Giving little if any weight to these concessions, the Court of Special Appeals applied an impossibly high constitutional bar for due process dismissals that is contrary to this Court’s prior opinion in this matter and to standards in other jurisdictions whose rulings the court purported to survey. Rather than sanctioning the State for its misconduct, the ruling allowed the State to retry Mr. Smith as if its misconduct never occurred and gravely minimized the resulting prejudice to Mr. Smith on any retrial. This is not a meaningful sanction to deter prosecutions, such as this one, that are pervaded from their inception by admittedly egregious and willful prosecutorial misconduct. This Court should grant certiorari to address this issue of first impression, and to devise a standard that adequately deters future prosecutorial misconduct.

United States v. Anthony Anderson

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


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

Washington v. State of Maryland

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


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

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

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

 

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