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.