United States v. Clay

Brief for Amici Curiae National Association of Criminal Defense Lawyers, Washington Legal Foundation, Cato Institute, Reason Foundation and Twelve Criminal and Business Law Scholars In Support of Defendants-Appellant Todd S. Farha's Petition for Rehearing En Banc.

Brief filed: 09/12/2016


United States v. Clay

11th Circuit Court of Appeals; Case No. 14-12373

Prior Decision

Panel Decision, 2016 WL 4254355 (Aug. 11, 2016), Appeal from the U.S. District Court for the Middle District of Florida, No. 8:11-cr-00115-JSM-MAP.


The Court should grant appellant's petition for rehearing and rehearing en banc. The Supreme Court in Global-Tech expressly held that "deliberate indifference" is a less demanding and therefore inadequate formulation of "knowledge." "Deliberate indifference" is not "knowledge." Permitting knowledge to be satisfied by proof of "deliberate indifference" would eliminate an essential check on prosecutorial power, violate the separation of powers, and open the floodgates for further overcriminalization.

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Jonathan S. Jeffress and Adam Zurbriggen, Kaiser Dillon PLLC, Washington, DC; Shana O'Toole, NACDL, Washington, DC;  William N. Shepherd, Holland & Knight LLP, West Palm Beach, FL.