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    • Brief

    Sumpter v. Kansas

    Amicus Brief in support of Petitioner-Appellee and Cross-Appellant by National Association of Criminal Defense Lawyers.


    Argument: Mr. Sumpter was convicted of several sexual misconduct offenses and one count of aggravated kidnapping. The kidnapping conviction added 186 months to his sentence. Mr. Sumpter’s convictions were affirmed on direct appeal and his state post-conviction motion was unsuccessful. Kansas has appealed to the 10th Circuit. The aggravated kidnapping conviction and sentence were vacated by the United States District Court in Kansas when the court partially granted the 2254 petition and concluded Mr. Sumpter had been denied effective assistance of counsel as to the kidnapping conviction. Mr. Sumpter was convicted of forcefully confining the accuser, yet trial counsel failed to assert the defense, long established in Kansas case law, that the alleged forced confinement was not independent of the offense of attempted rape. The defendant followed the accuser to her car and attempted to sexually assault her in the car before the victim was able to force him out of the car. Defense counsel thus should have argued that there was no forced confinement independent of the alleged attempted sexual assault. The amicus brief argues that the failure of counsel to present this long-recognized defense to the kidnapping charge resulted in an unconstitutional application of the Kansas kidnapping statute.  Mr. Sumpter was convicted of kidnapping without any determination that the alleged forceful confinement was independent of the attempted sexual assault. Therefore, the district court order vacating the kidnapping conviction should be affirmed.

    • Brief

    United States v. Perez-Perez

    Amicus Brief in support of Defendant-Appellant’s petition for rehearing en banc by the National Association of Criminal Defense Lawyers and Aoki Center for Critical Race and Nation Studies.


    Argument: In a split decision, the Tenth Circuit (per Ebel, J.) affirmed on plain error review a conviction under 18 U.S.C. § 922(g)(5) (illegal or unlawful alien in possession of a firearm) notwithstanding the fact that during the plea colloquy the judge failed to inform the defendant of two essential elements of the crime:  (1) he had to know his status as a prohibited person; and (2) he was illegally or unlawfully in the United States. There’s a spirited dissent by Judge Bacharach. Although the panel concluded Mr. Perez’s constitutional rights were violated due to these failings when he accepted the plea agreement, the majority nevertheless decided Mr. Perez had not established plain error. The amicus brief argues that the majority erred in not finding plain error pointing out that the evidence of Mr. Perez’s knowledge of his prohibited status was weak and that there was ample record support for this potential defense. The majority instead engaged in speculation about why Mr. Perez accepted the plea agreement (to avoid mandatory minimum charges) when the meagre factual record suggested instead that Mr. Perez did not accept the plea agreement to avoid these charges. Rather, the record is clear that Mr. Perez sought to avoid the trial penalty and to transfer out of the onerous conditions of pretrial detention, which he had suffered for more than 18 months. As a result of the plain error in this case, Mr. Perez is entitled to have his conviction vacated. 

    • Brief

    United States v. Muhtorov

    Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Urging Reversal. 


    Argument: Without disclosure of the underlying FISA materials, it is impossible to argue under Franks v. Delaware, 438 U.S. 154(1978), that the application contains material misstatements or omissions, and courts have no means of conducting the investigation necessary to make that determination themselves. Without disclosure, defendants cannot argue concretely that the government did not properly minimize the fruits of the surveillance, or that the government did not satisfy the requirement that it exhaust other, less intrusive investigative techniques before turning to FISA. Nor can defendants counter government arguments (typically presented ex parte under § 4 of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3 § 4) that the fruits of particular surveillance techniques are too attenuated from the trial evidence to require disclosure. And without notice of particular surveillance techniques that the government used, a defendant cannot argue that, under the circumstances of the case, those techniques violate the Fourth Amendment or another constitutional or statutory protection. As appellant argues, Congress never intended FISA litigation to occur entirely ex parte. Courts have misinterpreted 50 U.S.C. § 1806(f), the statute's disclosure provision. And as we discuss below, the Fifth Amendment Due Process Clause for bids such a secret, one-sided process, under which defendants are routinely denied the information necessary to challenge the lawfulness of government surveillance. No other aspect of criminal law functions entirely in secret; search warrants and Title III wiretap orders are issued ex parte, but after indictment a defendant gets access to the warrant or order and supporting application and a full and fair opportunity to challenge both. It is past time for FISA litigation to meet the standard of fairness that is the hallmark of American law.