2007 White Collar Amicus Briefs

Boulware v. United States, U.S. Sup. Ct., No. 06-1509, opinion below 470 F.3d 931 (9th Cir. 2006), brief filed 11/13/07. Criminal tax prosecution—Corporations—Shareholders. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: Diversion of corporate funds to a shareholder of a corporation without earnings and profits automatically qualifies as a non-taxable return of capital up to the shareholder’s stock basis, even if the diversion was originally not labeled as a return of capital. Author: John L. Pollok, New York, NY.

Cuellar v. United States, U.S. Sup. Ct., No. 06-1456, cert. granted, 10/15/07, Brief of the National Association of Criminal Defense Lawyers in support of certiorari. Question presented: Whether merely hiding funds with no design to create the appearance of legitimate wealth is sufficient to support a money laundering conviction. Brief argues that the money laundering statute, 18 U.S.C. §1956, is subject to expansive interpretations that encourage broad, unintended and unfair applications of the statute. Authors: Craig D. Singer, John E. Clabby, David A. Taylor, Williams and Connolly LLP, Washington, D.C.

United States v. Santos, U.S.Sup.Ct., No. 06-1005, filed 8/22/07. Arg. 10/03/07. Gambling, Money Laundering. Arguing, inter alia, that the 7th Circuit Court of Appeals’ interpretation of the term “proceeds” as limited to profits is consistent with congressional intent and necessary to prevent defendants from inappropriately being punished twice (and more severely) for the same conduct. Authors: Jeffrey T. Green and Kevin M. Henry, Sidley Austin LLP, Washington, DC.

United States v. W.R. Grace, U.S. Ct. App. 9th Circuit, No. 06-30472, amicus curiae brief in support of defendant-appellees’ petition for rehearing en banc. Rule of Lenity--Refiling of dismissed defective indictment after lapse of statute of limitations. Argument: The panel decision erroneously failed to apply the rule of lenity in its ruling that the Clean Air Act’s ban on releasing hazardous air pollutants are defined more broadly in the criminal context than in the civil context; even if there were some merit in the panel’s ruling, the Act is ambiguous in that regard, which triggers the rule of lenity. The panel decision is also in error in holding that the government may cure an untimely indictment, originally dismissed for failure to state an overt act within the statute of limitations, by filing a superseding indictment within six months of dismissal. Authors: Kristina Silja Bennard and David W. Marshall, Davis Wright Tremaine LLP, Seattle, WA.

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