2009 White Collar Amicus Briefs

Conrad M. Black v. United States, U.S. Sup. Ct., No. 08-876, case below, 530 F.3d 596 (7th Cir. 2008), brief filed 8/6/09. Due Process—Federalism---Honest-Services Fraud---Forfeiture and Preservation of Objections. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers in support of petitioners. Argument: Section 1346 violates due process requirements by (i) not providing fair warning, at the time of the offense, of what conduct is prohibited, and (ii) failing to be clear and specific enough to inform the public of precisely what conduct is prohibited and cabining law enforcement’s discretion within reasonable limits. In addition, interpretation of Section 1346 to impose a federal-law duty to provide “honest services” irrespective of state law would invite federal courts to create a federal common law of honest dealing, an approach which has been anathema for two centuries. The Seventh Circuit’s forfeiture rule would unfairly compel defendants either to accept prejudicial interrogatories or to forfeit objections to prejudicial instructional error. Authors: Jonathan L. Marcus, Roger A. Ford, James McCall Smith, Convington & Burling LLP, Washington, DC.

Nacchio v. United States, U.S. Sup. Ct., No. 08-1172, case below, 555 F.3d 1234 (10th Cir. 2009), brief filed 4/2209. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers in support of granting the petition. In the case below, first argued in 2008 and reheard en banc by the 10th Circuit court of appeals, the defendant and amici argued that the trial court judge improperly excluded a defense expert witness who would have explained the former executive’s trading of Qwest stock to the jury. Authors: Andrew H. Schapiro and Scott A. Claffee, Mayer Brown LLP, Washington, D.C. 10th Circuit brief below.  

Nijhawan v. Holder, U.S. Sup. Ct., No. 08-495, decision below 523 F.3d 387 (3d Cir. 2008), brief filed 03/04/09. Fraud—Immigration/Deportation—Aggravated felony. micus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: Whether to avoid raising constitutional doubt or to provide fair warning under the rule of lenity, 8 U.S.C. §1101(a)(43)(M)(i) (defining an offense that involves fraud or deceit in which the loss to the victim(s) exceeds $10,000) is a “dual use” statute requiring consistent interpretation in both criminal and immigration law contexts. Authors: Iris E. Bennett, Anjan Choudhury and Michael A. Hoffman, Jenner & Block LLP, Washington, D.C. and David A. Newman, Jenner & Block, New York, NY.

Skilling v. United States, U.S. Sup. Ct., No. 08-1394, case below, 554 F.3d 529 (5th Cir. 2009), brief filed 12/09. Honest-Services Fraud—Due Process—Vagueness—Pretrial Publicity—Voir Dire. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner and urging reversal. Argument: The theft-of-honest-services statute¸18 U.S.C. §1346, is void for vagueness; also, the presumption of prejudice that arises from intense community hostility and pervasive adverse publicity cannot be rebutted through voir dire. Author: John D. Cline, Jones Day, San Francisco, CA. Here is a link to NACDL’s amicus brief in support of the Skilling petition for writ of certiorari.  

United States v. Kuehne, 11th Circuit, No. 09-10199, brief filed 6/15/09. Opinion below 2008 WL 5381394 (S.D. Fla. Dec.22, 2008). Money laundering—Conspiracy. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Defendants-Appellants in Support of Affirmance of Dismissal of money laundering conspiracy count. Argument: In that Congress provided an exception to the money laundering statutes, 18 U.S.C. §1956-1957, for bona fide attorneys’ fees – transactions “necessary to preserve” an individual’s Sixth Amendment right to representation—the government’s parsimonious view of what is “necessary” to a defense threatens to hamstring all complex criminal defense efforts by interjecting the threat of prosecution into every monetary transaction over $10,000 in which counsel enters. The threat of possible prosecution of retained counsel in virtually any case may well dissuade attorneys from taking on clients in certain types of cases, thus depriving some defendants of their right to counsel of choice. Authors: Howard M. Shapiro, Jonathan E. Neuchterlein, et al., WilmerHale LLP, Washington, DC, and David Oscar Markus, Miami, FL. Brief in Support of Defendant's Motion to Dismiss before the United States District Court for the Southern District of Florida.  

United States v. SDI Future Health Inc., 9th Cir., No. 07-10261, panel decision, 553 F.3d 1246 (9th Cir. 2009), brief filed Feb. 27, 2009. Search and seizure—Business premises—Shareholder’s standing to challenge search. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant-appellees’ petition for rehearing en banc. The district court granted a motion to suppress filed by the defendant SDI, a closely-held corporation, and its two major shareholders, and the government appealed. The court of appeals affirmed in part and reversed in part, and the defendants filed a petition for rehearing en banc. Argument: The panel incorrectly held that an owner of a closely-held corporation (other than a “small, family-run business”) lacks standing to challenge a search pursuant to a defective warrant of the corporate premises beyond his personal office; the interests of a closely-held corporation may coincide with the interests of the owner himself; and the owners of a closely-held corporation may have Fourth Amendment rights in the company’s entire premises. Authors: Kevin P. Martin, Goodwin Proctor LLP, Boston, and Sheryl McCloud, Seattle.

United States v. Turk, U.S. District Court (S.D.N.Y.), No. 07-CR-1062 (NRB) , filed 10/19/09. U.S. Sentencing Guidelines—Loss Analysis—Fraud. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the New York Council of Defense Lawyers. Argument: Defendants should be sentenced based only upon those losses that their conduct proximately caused. The government’s efforts to limit proximate cause analysis to securities fraud cases are unconvincing and unsupported; application of proximate cause principles will avoid unjust results that conflict with the purposes of the guidelines. Authors: Lawrence S. Bader, Robert M. Radick, and Claudio Ochoa of Morvillo, Abramowitz, Grand, Iason, Anello, and Bohrer P.C. in New York, NY; Richard D. Willstatter, Vice Chair of NACDL’s Amicus Curiae Committee and Amicus Curiae Committee Chair for the New York State Association of Criminal Defense Lawyers of White Plains and New York, NY; and Barry A. Bohrer, President of the New York Council of Defense Lawyers.

Weyhrauch v. United States, Sup. Ct., No. 08-1196, case below, 548 F.3d 1247 (9th Cir. 2008), brief filed 9/21/09. Due Process—Honest-Services Fraud—Section 1346—Federalism. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: The federal “honest services” fraud statute, 18 U.S.C. 1346, raises critical constitutional concerns in that it (i) is unconstitutionally vague and fails to provide the degree of fair warning of its scope or meaning, as required by the Due Process Clause, and (ii) invades a regulatory area constitutionally committed to the states under the doctrine of federalism. Authors: Abbe David Lowell, Paul M. Thompson, and Jeffrey W. Mikoni, McDermott Will & Emery LLP, Washington, DC.

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