2013 White Collar Amicus Briefs

Commonwealth of Massachusetts v. Gelfgatt, Supreme Judicial Court of the Commonwealth of Massachusetts, Case No. SJC-11358, on report of a question of law by the superior court for Suffolk County pursuant to Mass. R. Crim. P. 34, brief filed 8/23/13. Compelled Password---Encrypted Hardware---Fifth Amendment---Self-incrimination---Fourth Amendment---Articles Twelve and Fourteen of the Massachusetts Declaration of Rights. Brief of Amicus Curiae filed by Daniel K. Gelb, Esquire and Daniel B. Garrie, Esquire to which National Association of Criminal Defense Lawyers joins in support of defendant-appellant. Issue Presented: Whether compelling a criminal defendant to provide a password for a piece of encrypted computer hardware seized by the Commonwealth violates one’s right against self-incrimination provided by the Fifth Amendment to the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights. Argument: Compelling a password production to the Commonwealth is a violation of defendant’s right against self-incrimination pursuant to the Fifth Amendment of the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. Society has adopted an objective expectation of privacy in computer passwords and encrypted data protected by the Fourth Amendment of the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. Authors: Daniel K. Gelb, Gelb & Gelb LLP, Boston MA; Daniel B. Garrie, Law & Forensics, Seattle, WA.

Hummel v. United States, U.S. Dist. Ct., M.D. Fla., No. 8:12-MJ-1457 TGW, brief filed 1/11/13. Due Process---Controlled Substances Act---Controlled Substance Analogues---Void for Vagueness---Fair Warning---Prosecutorial Discretion---Seizure of Funds. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of movant. Argument: As applied to the substances at issue in this case – UR-144 and XLR-11 – 21 U.S.C. §813 and its accompanying definitional statute 21 U.S.C. §802(32)(A)(i) are unconstitutionally vague, and void for that reason. Authors: David Oscar Markus, Markus & Markus PLLC in Miami, FL; John D. Cline, Law Office of John D. Cline in San Francisco, CA.

Kaley v. United States, U.S. Sup. Ct., No. 12-464, decision below 677 F.3d 1316 (11th Cir. 2011), brief filed 7/5/13. Forfeiture—Due Process—Right to Counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petition for writ of certiorari. Question presented: When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?  Argument: A seizure of allegedly forfeitable assets needed to retain counsel is constitutionally unreasonable without more evidential support than ordinary seizures require. The right to counsel of choice is of a nature with the rights to speak, associate, and petition the government. The retention or appointment of alternate counsel does not mitigate the threatened constitutional violations. Recognizing that seizures of assets needed to retain counsel pose the same dangers as other prior restraints on protected speech resolves the issues dividing the courts of appeals. Author: University of Miami School of Law Professor Ricardo J. Bascuas, Coral Gables, FL.

Ring v. United States, U.S. Sup. Ct., No. 12-1462, decision below 706 F.3d 460 (D.C. Cir. Jan. 25, 2013) (No. 11-3100), brief filed 7/17/13. Skilling—Bribery—Honest Services—Campaign Contributions. Brief of Amici curiae National Association of Criminal Defense Lawyers and Rutherford Institute in Support of Petition for Certiorari. Argument: The Court should grant certiorari to make clear that the honest services fraud statute requires the government to prove bribery. The honest services fraud statute is unconstitutionally vague unless limited to bribery, as Skilling requires. The standard applied in this case to prove honest services fraud is inconsistent with this Court’s rulings. The admission of evidence of legal and constitutionally protected campaign contributions in this case, in contravention of this Court’s rulings, will criminalize, and thereby chill, constitutionally protected conduct. Authors: Paul F. Enzinna and Evan N. Turgeon, Brown Rudnick LLP, Washington, DC.

Sekhar v. United States, U.S. Sup. Ct., No. 12-357, decision below 683 F.3d 436 (2d Cir. 2012), brief filed 3/4/13. Hobbs Act—Statutory Interpretation---Rule of Lenity---Federalism. Amicus curiae brief of the National Association of Criminal Defense Lawyers and The Cato Institute in support of petitioner and urging reversal. Question presented: Whether the “recommendation” of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. § 1951(a) (the Hobbs Act) and 18 U.S.C. § 875(d). Argument: This Court has repeatedly applied the rule of lenity and other tools of statutory interpretation to limit prosecutors’ expansive applications of federal criminal statutes. This Court has required a clear statement from Congress before it will interpret a federal criminal statute to shift the federal-state balance in law enforcement. This case implicates the concerns that have caused this Court to interpret criminal statutes narrowly. Authors: John D. Cline and Jennifer M. French, Law Office of John D. Cline, San Francisco, CA; David M. Porter, Sacramento, CA; Timothy Lynch and Ilya Shapiro, The Cato Institute, Washington, DC.

United States v. Newman and Chiasson, 2nd Cir., Case Nos. 13-1837, on appeal from the United States District Court for the Southern District of New York, brief filed 8/22/13. Mens Rea---Jury Instructions---Insider Trading---Remote Tippees. Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in support of Appellants. Argument: The District Court’s jury instructions conflict with the fundamental principle that a defendant must know the facts that make his conduct illegal. Basic principles of mens rea require proof that the defendant knew the facts that made his conduct unlawful. The federal securities laws require proof that a tippee knew the original tipper of inside information disclosed information in exchange for a personal benefit. The requirement of proof of knowledge that the original tipper disclosed information in exchange for a personal benefit is particularly important in cases involving remote tippees. Authors: Ira M. Feinberg, Jordan L. Estes, Hagan Scotten, Hogan Lovells US LLP, New York, NY; Joshua L. Dratel, New York, NY.

United States v. Andrew "Weev" Auernheimer, 3rd Cir., Case No. 13-1816, case below 2012 WL 5389142 (D.N.J. Oct. 26, 2012) (Crim. No. 11-CR-470), brief filed 7/8/13. Computer Fraud and Abuse Act (CFAA)---Fifth Amendment---Due Process---Vagueness---Venue---Forum Shopping. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant. Argument: The Fifth Amendment’s due process clause requires a narrow interpretation of “without authorization” under the Computer Fraud and Abuse Act (CFAA). The District Court’s finding that venue was proper exceeds constitutional limitations and invites prosecutorial forum-shopping. Authors: Steven P. Ragland, Jennifer A. Huber, and Ben D. Rothstein, Keker & Van Nest LLP, San Francisco, CA; Jenny Carroll, Seton Hall University School of Law, Newark, NJ; Peter Goldberger, Ardmore, PA.  

United States v. Apel, U.S. Sup. Ct., No. 12-1038, decision below 676 F.3d 1202 (9th Cir. 2012), brief filed 10/28/13. 18 U.S.C. §1382---First Amendment---Peaceful Protest---‘Military Installation’---Overbreadth----Ambiguity---Rule of Lenity. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of Respondent. Argument: The government’s interpretation of 18 U.S.C. §1382 would render the statute unconstitutionally overbroad. A statute is facially overbroad when there is a realistic danger that it will significantly compromise speech rights. The government’s new interpretation of Section 1382 would (i) extend existing military regulations onto public roads, thereby infringing on a substantial amount of protected speech in a public forum and (ii) authorize base commanders to promulgate new military regulations that could further restrict protected speech on public roads. The government’s interpretation of 18 U.S.C. §1382 encourages arbitrary enforcement by the government, even against civilians who lack notice of how the law is applied. The government’s interpretation of 18 U.S.C. §1382 should be rejected under the rule of lenity. Authors: Michael V. Schafler, Albert Chang, and Puneet V. Kakkar, Caldwell Leslie & Proctor PC, Los Angeles, CA; Jeffrey Fisher, Stanford, CA.

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