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 10^th 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.

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. 

Attorney-client communications federal caselaw and state-specific anecdotal data in Wyoming

Attorney-client communications federal caselaw and state-specific anecdotal data in Utah

Attorney-client communications federal caselaw and state-specific anecdotal data in Oklahoma

Attorney-client communications federal caselaw and state-specific anecdotal data in New Mexico

Attorney-client communications federal caselaw and state-specific anecdotal data in Kansas

Attorney-client communications federal caselaw and state-specific anecdotal data in Colorado

Defendants were facing third trial when the prosecutors dismissed the case in light of Skilling. On August 20, 2010, U.S. District Court Judge Julie Robinson granted the government’s request to dismiss the 2003 and 2004 indictments against Wittig and Lake.

Order granting compassionate: reducing sentence from 684 months to 125 months (time-served) in light of the First Step Acts change’s to §924(c) stacking provision.

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.

NACDL amicus curiae brief in support of appellant Joseph P. Nacchio addressing the district court's refusal to allow the defendant to call an expert witness. On March 17, 2008, the court of appeals reversed the defendant's conviction finding that the exclusion of the defense expert was prejudcial error; the government petitioned for rehearing before the full court of appeals.

Brief of the National Association of Criminal Defense Lawyers and the Colorado Criminal Defense Bar as Amici Curiae in Support of Appellant.

Argument: The requirement of proof beyond a reasonable doubt protects both individual defendants and society's faith in the criminal justice system. The reasonable doubt standard protects the due process rights of individual defendants. The burden of proof beyond a reasonable doubt also ensures the confidence of society in the outcomes of criminal trials. Jury instructions regarding the meaning of "reasonable doubt" are essential in ensuring criminal trials that comport with due process. The reasonable doubt instructions given in this case falls below the standard required by due process. Use of the phrase "firmly convinced" without a sentence distinguishing the reasonable-doubt burden from civil evidentiary burdens risks juror confusion. Using the word "only" to characterize the prosecution's burden, without simultaneously indicating that the burden is "heavy," minimizes the burden. Failing to instruct the jury that reasonable doubt may be based on a lack of evidence unduly heightens the bar for acquittal. Due to the combination of its deficiencies, the instruction given in this case did not serve the dual purposes of the reasonable-doubt burden.

Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Defendant/Appellant and Reversal.

Argument: Allocution affects sentencing in significant, unpredictable ways. Complete denial of the right to allocute necessitates reversal of the sentence. Complete denial of the allocution right satisfies the third and fourth prongs of the plain error test. The exceptions to this rule are highly limited. No proffer is required.

Brief of Amici Curiae Electronic Frontier Foundation, Brennan Center for Justice, Center for Democracy and Technology, and National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Reversal

Argument: The district court’s opinion undermines widely recognized Fourth Amendment protections for email. The expectation of privacy in email is reasonable and well established. The ability of a third party service provider to access emails does not defeat the user’s reasonable expectation of privacy. An email provider’s terms of service should not defeat a user’s reasonable expectation of privacy in email. The district court’s holding that AOLs TOS extinguished defendant’s reasonable expectation of privacy is inconsistent with established Fourth Amendment protections for email. Fourth Amendment protection should not depend on private agreements between email service providers and their users. Finding that contractual terms impact a user’s expectation of privacy against the government would lead to absurd results. A reasonable expectation of privacy does not end just because an account is terminated. Upholding the district court would reinstate the third-party doctrine for email and create a split of authority with the Sixth Circuit.