Brief of the National Association of Federal Defenders and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner.

Argument: This case presents the question of the appropriate mens rea requirement for substantive drug offenses under 21 U.S.C. § 960. Section 960(a), which codifies the Anti-Drug Abuse Act of 1986, prohibits “knowingly or intentionally” importing or exporting a controlled substance. Section 960(b), in turn, specifies a series of aggravated offenses—and correspondingly severe punishments—based on the type and quantity of the “controlled substance” involved. See 21 U.S.C. § 960(b). A defendant who imports or distributes 280 grams of crack-cocaine, for instance, faces a mandatory minimum of ten years in prison. Id. § 960(b)(1)(C). A defendant who imports or distributes the same amount of marijuana faces no mandatory minimum and only a five-year statutory maximum. Id. § 960(b)(4) (cross-referencing id. § 841(b)(1)(D)). The question in this case is whether the government can subject a defendant to these escalating mandatory minimums and maximums without proving that he knew which illegal drug he was importing or the quantity of that illegal drug. The answer is no: Courts presume a statutory mens rea requirement applies to “all the material elements of the offense.” Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019) (internal citation omitted). And any fact that increases the statutory minimum or maximum under Section 960 (or any other statute) is an element of an offense. See Alleyne v. United States, 570 U.S. 99, 116 (2013); Apprendi v. New Jersey, 530 U.S. 466, 476–85 (2000). Therefore, defendants must know what drug they were importing before a court can subject them to statutorily increased sentences. See United States v. Collazo, 984 F.3d 1308, 1338 (9th Cir. 2021) (en banc) (Fletcher, J., dissenting).

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant Wayne Wilkerson.

Argument: The district court erred by not requiring mens rea, which is a cornerstone requirement for criminal liability and punishment. The district court erred in premising the fraud convictions on non-disclosure absent any cognizable duty to disclose.

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: If this Court were to hold that an offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), it would expand the reach of ACCA’s severe sentencing consequences to defendants whose predicate offenses bear little, if any, resemblance to the knowing and purposeful acts of violence Congress intended to target. Such a broad application of ACCA is wrong as a matter of law, and it would result in unjust and disproportionate sentences for defendants nationwide. ACCA’s force clause does not reach reckless offenses. The text of ACCA’s force clause, like the clause at issue in Leocal and unlike the clause in Voisine, does not cover reckless offenses. Excluding reckless offenses comports with ACCA’s purpose, in contrast to the gun-control provision in Voisine. ACCA should not apply to reckless offenses absent a clear indication from congress. The court has at least as much reason to apply lenity here as it did in Leocal. Application of the rule of lenity here would avoid the pernicious effects of a broad reading of ACCA.

 Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendants-Appellants.

Argument: The presumption of mens rea is deeply rooted and has historically applied beyond merely distinguishing culpable from innocent conduct.  The mens rea requirement arose to ensure punishment was fair and proportional.  The mens rea requirement applies to offenders guilty of otherwise culpable conduct.  The presumption of mens rea contains only a narrow exception for public-welfare offenses.  The presumption of mens rea should apply to drug quantity and type under 21 U.S.C. § 841.

 Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: Taylor's categorical approach applies to all ACCA predicates. A prior conviction that lacks a mens rea element cannot constitute a "serious drug offense." ACCA's legislative history affirms that state drug convictions lacking a mens rea requirement do not qualify as "serious drug offenses." ACCA will continue to have a geographically disparate impact unless the categorical approach is applied. 

Brief of the National Association of Criminal Defense Lawyers and National Association of Federal Defenders as Amici Curiae in Support of Respondent. 

Argument: 8 U.S.C. § 1324(a)(1)(A)(iv)’s criminalization of a person who “encourages or induces an alien to come to, enter, or reside in the United States knowing or in reckless disregard of the fact” that it would be in violation of the law is unduly broad under the First Amendment.  The prohibition also violates the void-for-vagueness doctrine under the Due Process Clause of the Fifth Amendment.  “Encouragement” and “Inducement” are indefinite terms and depend on subjective determinations.  This provides insufficient notice to the public and invites arbitrary and selective enforcement.  The statute’s failure to specify a mens rea for “encourages or induces” exacerbates this problem.  The statute would also chill First Amendment-protected speech. 

Letter to House leadership regarding Allow States and Victims to Fight Online Sex Trafficking Act of 2017 H.R. 1865 (115th Congress).

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

Argument: United States v. Harris, 959 F.2d 246 (D.C. Cir. 1992) is no longer good law in light of the U.S. Supreme Court’s ruling in United States v. O’Brien, 130 S.Ct. 2169 (2010), which held that the “machinegun” provision of 18 U.S.C. § 924(c)(1)(B)(ii) is not a “sentencing enhancement” but an element of the offense of “using or carrying” a machinegun in connection with a crime of violence; although Sec. 924 is silent as to whether knowledge that the firearm is capable of fully-automatic fire is a prerequisite for conviction under the statute, the court must presume mens rea is required where a statutory provision triggers a 30-year mandatory minimum sentence

Brief of Amici Curiae Cause of Action Institute and National Association of Criminal Defense Lawyers in Support of Petitioner (On Petition for a Writ of Certiorari).

Argument: This Court should grant certiorari because under the law in the majority of circuits, the “corruptly” mens rea requirement fails to limit the reach of 26 U.S.C. § 7212(a)’s “omnibus clause.” This Court has routinely cabined omnibus clauses. The definition of “corruptly” applied to 26 U.S.C. § 7212(a) does not restrict the application of the statute in any meaningful manner. Whether the defendant has the “intent to obtain an unlawful benefit” depends on whether the benefit was unlawful, not on whether the defendant knew the benefit was unlawful. Even legal acts or omissions can be criminal. The “unlawful benefit” does not need to be a tax benefit. The prevailing § 7212(a) “omnibus clause” interpretation swallows the remainder of the criminal provisions of Title 26 and grants prosecutors unfettered discretion. The Court should grant certiorari to vindicate its ruling in Aguilar. 

Brief of Amici Curiae Cause of Action Institute and National Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: This Court has routinely cabined broadly-drafted criminal statutes that are vague or lack meaningful mens rea requirements. The omnibus clause raises vagueness concerns. The government’s interpretation of the omnibus clause invites its arbitrary enforcement. The “corruptly” mens rea requirement does not protect the statute from vagueness concerns or constitute a meaningful mens rea requirement. applied to 26 U.S.C. § 7212(a) does not restrict the application of the statute in any meaningful manner. Whether the defendant has the “intent to obtain an unlawful benefit” depends on whether the benefit was unlawful, not on whether the defendant knew the benefit was unlawful. Even legal acts or omissions can be criminal. The “unlawful benefit” does not need to be a tax benefit. The act or omission need not even actually obstruct or impede the administration of the tax code or be carried out with the intent to obstruct or impede the administration of the tax code. 

Amicus curiae brief of the National Association of Criminal Defense Lawyers.

Argument: A defendant’s withdrawal from a conspiracy during the statute of limitations period negates and element of a conspiracy charge such that, once a defendant meets his burden of production that he did withdraw, the burden of proof rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period. The requirement that the prosecution prove the defendant’s guilt beyond a reasonable doubt is a defendant’s foremost safeguard against a wrongful conviction. The defendant’s withdrawal defense negated the “participation” element of the conspiracy, and relieving prosecutors of their burden to prove a defendant’s mental state substantially undermines the fairness of the trial by diluting one of the most important protections against wrongful convictions.

Brief of the National Association of Criminal Defense Lawyers, Criminal Defense Attorneys of Michigan, and National Association for Public Defender as Amici Curiae Supporting Affirmance.

Argument: Due process bars the state from prosecuting a person for otherwise-innocent conduct—including convicted persons' failure to register their presence with law enforcement—without proof of wrongful intent. SORA criminalizes conduct that is ordinarily innocent, and even law enforcement officials disagree on what otherwise-innocent conduct SORA makes criminal. Notice provisions do not replace the due process requirement of proving wrongful intent. Prosecutorial discretion adds to SORA's due process problems.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (on Petition for Writ of Certiorari).

Argument: The Court should grant certiorari to confirm that instructional error as to a contested element is never harmless. The Constitution prohibits judges from directing a verdict on a contested element of a criminal offense. The circuits are split over whether overwhelming evidence can render harmless the omission of a contested element, and the issue is a recurring one. This case presents an ideal vehicle to resolve the lower court confusion over the harmless error test applicable to instructional errors.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant Lt. Cmdr. Matthew M. Diaz.

Argument: Lt. Cmdr. Diaz, a Navy JAG convicted of improper disclosure of classified information did not receive a fair trial because he was precluded from introducing any evidence of his “intent,” “state of mind,” “motive,” “ethical obligations” as an attorney, and “ethical obligations” as a commissioned officer in the Navy. Appellant was precluded from introducing evidence that the information (a list of detainees being held at Guantanamo Bay, Cuba) was not marked as classified; that he did not know or believe his actions to be illegal; and that his actions were in good faith and consistent with his duties and obligations a lawyer. Excluding this evidence violated his right to a fair trial and right to present a defense. Furthermore, the Military Judge failed to determine whether the “classified information in question was lawfully classified."

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.