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. 

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.

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

Argument:  Federal Rule of Criminal Procedure 52(b), which provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” permits plainness to be measured at the time of appeal when the law was settled at the time of trial. Johnson v. United States, 520 U.S. 461 (1997). Nothing in the text of the rule, nor does any policy justify, varying from the Johnson “time of appeal” rule when the law was unsettled at the time of the trial (a question that was left open in Johnson). The “time of appeal” rule serves Rule 52(b)’s policy of allowing obvious injustices to be corrected on appeal; serves the goal of treating similarly situated defendants equally; and avoids wasteful appellate litigation over whether particular issues were “settled” or “unsettled” at the time of trial.

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

Argument: Prosecutorial breaches of plea agreements undermine the plea bargaining process and the criminal justice system at large, and the Court should adopt a rule requiring automatic reversal for government breaches of plea agreements.

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.