Friend of the Court Lisa Kemler

Jury Instruction Corner Thomas Lundy

Informers are government witnesses, and their testimony is untrustworthy due to their self-interested motives. Though it is common for pattern jury instruction to include some note of caution about informers’ testimony, no instruction sufficiently alerts the jury to the incentives informers are given to lie. How can counsel fight against cooperation agreement provisions that prejudice the defendant? 

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to the Federal Rules of Criminal Procedure, except those related to criminal forfeiture.

Letter to the Judicial Conference Standing Committee on Rules of Practice & Procedure regarding proposed rule changes to the Federal Rules of Criminal Procedure.

NACDL Update – On Tuesday, the United States Court of Appeals for the Second Circuit upheld the jury conviction of Defendant-Appellant Ionia Management S.A. in the matter of U.S. v. Ionia Management S.A. (07-5801-cr, 08-1387-cr) for “violat[ion] of the Act to Prevent Pollution on Ships by failing to ‘maintain’ an oil record book while in U.S. waters as required by 33 C.F.R. § 151.25.”

An indictment must inform a defendant of the charge that he must defend. A jury instruction that digresses from the elements of the charged statute constructively amends the indictment. Such constructive amendment violates the Fifth Amendment’s grand jury clause. Defense counsel must scrutinize the jury instructions and object to any deviations.

Jury Instruction on Medicare Civil Rules and Regulations.

US District Court Middle District of Florida Orlando Division: United States of America v. Noor Zahi Salman. 

NACDL amicus curiae brief in support of appellant.

Argument: Knowledge, in a criminal statute, is actual knowledge, not what one ought to have known or could have learned.

Brief for the National Association of Criminal Defense Lawyers and the Ninth Circuit Federal Public and Community Defenders as Amici Curiae in Support of Defendant-Appellant.

Argument: The Major Crimes Act requires the government to prove that the defendant has both ancestral and political affiliation with a federally-recognized tribe. Indian status is an element of the offense that the government must allege in the indictment and prove to a jury. Zepeda’s conviction must be reversed. The jury instruction was plain error. No rational jury could conclude that Zepeda satisfies the ancestral requirement of Section 1153. The government failed to demonstrate at trial that the Tohono O’Odham Nation of Arizona is a federally-recognized tribe. The government failed to demonstrate that Zepeda’s heritage derives from the Tohono O’Odham Nation of Arizona.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent.

Argument: Jury instructions may be a “formally correct” statement of state law and still be so ambiguous as to be misleading; court below correctly determined that the instructions deprived the defendant of his constitutional right to have a jury determine every element of the charged offense of aiding and abetting murder. 

Amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the Association of Corporate Counsel, the National Association of Manufacturers, the U.S. Chamber of Commerce and the Washington Legal Foundation. Appeal from the criminal conviction of a shipping company for unlawful actions of the crew of one of its ships, over which the company had no direct control while on the high seas.

Argument: Assignment of vicarious corporate criminal liability through the application of the civil law doctrine of respondeat superior, in which an employer may be held for wrongful actions of his employee in some circumstances, was authorized neither by statute nor precedent.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Brooks v. United States, No. 12-218.

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.