Brief of Amici Curiae National Association of Criminal Defense Lawyers; American Civil Liberties Union Foundation; American Civil Liberties Foundations of Delaware, New Jersey, and Pennsylvania, In Support of Defendant-Appellee.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant-Appellant’s Petition for Rehearing or Rehearing En Banc. 

Argument: The panel opinion broadens the definition of “substantial step,” contravening Supreme Court and Circuit precedent and raising constitutional concerns. A “substantial step” is conduct “toward” the commission of the object offense. Davis improperly broadens statutory attempt offenses, with constitutional implications. Requiring a substantial step “toward” the commission of the object offense strikes the right balance between protecting the public and avoiding overcriminalization. Davis’s redefinition of the actus reus for attempt has broad implications. 

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

Brief of Amici Curiae National Association of Criminal Defense Lawyers and FAMM in Support of Defendant/Appellee’s Petition for Rehearing and/or Rehearing En Banc.

Argument: Appellee Raia’s Petition for Rehearing addresses the discretion of a district court to excuse the 30-day waiting period for compassionate release under the First Step Act, 18 U.S.C. §3582(c)(1)(A). On April 2, 2020, the Panel declined to remand this case under Federal Rule of Appellate Procedure 12.1, stating that remand would be “futile.” In so ruling, the Panel necessarily concluded that the 30-day waiting period cannot be excused or waived. That conclusion was inconsistent with both Supreme Court and Circuit precedent. The ruling creates inconsistency in the Circuit’s treatment of all claims-processing rules, and undermines courts’ equitable authority in a wide range of cases. The30-day waiting period is a nonjurisdictional claims-processing rule. Courts may excuse noncompliance with that rule absent an express prohibition on doing so. Remand is therefore not “futile.” The Panel’s sua sponte conclusion to the contrary was error. Rehearing should be granted to correct the Panel’s error and confirm that judges are empowered to address “extraordinary and compelling” circumstances even when they arise exigently. At a minimum, the Panel should grant rehearing and order full briefing on this important issue, which was neither decided below nor fully briefed on appeal.

Attorney-client communications federal caselaw and state-specific anecdotal data in U.S. Virgin Islands

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

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

Brief of Amici Curiae the Cato Institute, the National Association of Criminal Defense Lawyers, Americans for Prosperity Foundation, and Due Process Institute in Support of Petitioner-Appellant.

Argument: The Supreme Court has consistently rejected attempts to apply the federal criminal property fraud statutes beyond their clearly intended and expressed scope. Applying the federal criminal property fraud statutes to breaches of contractual provisions like the DBE requirement would violate the fundamental principles regarding notice, federalism, and avoiding overcriminalization that motivate the Supreme Court’s decisions.

Defendants were convicted in the U.S. District Court for the District of New Jersey on multiple fraud counts, including one count of conspiracy to defraud the public of James’ honest services contrary to 18 U.S.C. §§ 1341 and 1346. The Third Circuit reversed the convictions on the honest services conspiracy count and affirmed the convictions on the other counts.

Panarella pled guilty to a one-count superseding information, which charged him as an accessory after the fact to honest services wire fraud based on a theory of undisclosed self-dealing.  Panarella exhausted his direct appellate rights and, in light of the Skilling decision, petitioned for a writ of error coram nobis pursuant to 28 U.S.C. § 1651(a), the All Writs Act, on this one count. On July 29, 2011, the Court granted Panarella's petition.

Defendant was convicted on both bribery and conflict of interest theories. The convictions were affirmed on direct appeal. The defendant filed a § 2255 petition pre-Skilling and the government responded post-Skilling. The government has argued that the Skilling issue was clear enough to require counsel to raise it pre-Skilling, but not so clear as to render counsel constitutionally ineffective for failing to do so. Mariano has decided not to pursue the § 2255 further.

Lynch was convicted for conspiracy to commit honest services fraud. He filed a Motion to Vacate under 28 U.S.C. § 2255 and 28 U.S.C. § 1651(a). The Government opposed his motion. Since those filings, his supervised release terminated and thus he supplemented his Motion to Vacate with a Motion for Writ of Coram Nobis. The District Court granted Lynch's motions for writ of error coram nobis and to vacate judgment under 28 U.S.C. § 1651(a). The court therefore vacated and set aside his conviction and sentence, and also ordered the government to repay all fines Lynch paid.

Judgment of acquittal entered while awaiting sentencing after remand from third circuit. This case was indicted and tried on an undisclosed conflict of interest theory only. The district court entered judgment of acquittal after trial, on the theory that there was no proof that Carbo, a private citizen, knew of the public official’s disclosure duties. The third circuit reversed and remanded for sentencing.

Argument: Sentencing was stayed pending decisions in Skilling. Post-Skilling, the defense again moved for judgment of acquittal, the government did not oppose the motion, and District Court Judge Mary A. McLaughlin granted the motion.

Defendant was convicted of multiple counts of honest services fraud and one count of extortion under color of official right, in violation of 18 U.S.C. § 1951(a). The honest services fraud counts charged bribery and conflict of interest. The case is now on appeal to the Third Circuit, which denied defendant’s bail motion after strong opposition from the government.