Written Statement of NACDL member John D. Cline, Esq. of San Francisco, CA before the House Committee on the Judiciary Over-Criminalization Task Force Re: Reform of the Federal Criminal Code

Written Statement of Steven D. Benjamin on behalf of National Association of Criminal Defense Lawyers Before the House Committee on the Judiciary Over-Criminalization Task Force Re: “The Crimes on the Books and Committee Jurisdiction”

Brief for Amici Curiae National Association of Criminal Defense Lawyers and the Cato Institute in Support of Appellee and Urging Affirmance. 

Argument: Statutes of limitations must be interpreted in favor of repose. Statutes must be interpreted to avoid absurd results. The government's proposed interpretation of 18 U.S.C. §§ 3282 and 3288-- under which it obtains a six-month extension of the statute of limitations by filing a defective information the day before the statute runs and moving to dismiss it the day after--flouts the Toussieprinciple. That interpretation also violates the rule that courts will not interpret statutes in a way that produces an absurd result. The Seventh Circuit case on which the government principally relies--United States v. Burdix-Dana, 149 F.3d 741 (7th Cir. 1998)--overlooks both these principles and is poorly reasoned in other respects as well. The government seeks to obtain through a tortured interpretation of §§ 3282 and 3288 an outcome that Congress refused to enact when the Department of Justice proposed it as legislation last year, at the outset of the coronavirus pandemic. The district court correctly rejected the government's approach. This Court should affirm.

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

Argument: In this case, the Eleventh Circuit reaffirmed that a person violates the CFAA by using a computer to access information for an improper purpose, even if that person is otherwise authorized to access that information. This holding warrants review because it reinforces a conflict of authority regarding the meaning of “authorized access” under the CFAA and because the Eleventh Circuit was wrong on the merits. Review also is warranted because the question presented is important. Computers are ubiquitous in daily life. It is important that the Court clarify that ordinary deviances from terms-of-use requirements— whether imposed by internet websites or private company use guidelines, to name but a few—are not criminal. Review also is necessary because the Eleventh Circuit’s decision deviates from settled practices for construing federal criminal statutes. Because the Eleventh Circuit’s decision and those courts on its side of the open and acknowledged split of authority break from this approach at every level, this Court should grant review.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent.

Argument: The Solicitor General’s expansive reading cannot be squared with the manifest intent of Congress. The Solicitor General’s argument proves too much, in that it would expand predicate crimes under §922(g)(9) beyond sensible boundary. The Solicitor General’s reading of 18 U.S.C. § 922(g)(9) is so broad that it would extend a life-long ban on gun possession to anyone convicted of a domestic count of offensive touching, no matter how slight, or of any intentional act that causes bodily injury (including minor scrapes, bruises, or even a stubbed toe). Mr. Castleman’s reading does not turn §922(g)(9) into a dead letter. There is no need to expand federal jurisdiction by making every conviction for “rude touching” or the like a predicate offense in order to honor Congress’s intent with respect to § 922(g)(9). The rule of lenity supports adopting Mr. Castleman’s reading of §922(g)(9).

Brief of the National Association of Criminal Defense Lawyers and the American Fuel & Petrochemical Manufacturers as Amici Curiae in Support of Petitioner John Yates.

Argument: Petitioner's conviction under Sarbanes-Oxley exemplifies overcriminalization through an unconstitutional expansion of the law. Executive expansion of 18 U.S.C. § 1519 to include red grouper furthers the overcriminalization epidemic. Red grouper are not “tangible objects” under Sarbanes-Oxley. Even if Sarbanes-Oxley applies to fish, Yates’ conduct did not impede, obstruct, or influence a federal investigation. Overcriminalization places a growing burden on the administration of justice, often resulting in ludicrous federal convictions for conduct that, traditional, falls outside constitutionally anticipated federal purview.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petition for Writ of Certiorari.

Argument: The National Stolen Property Act’s (NSPA) terms “goods, wares, merchandise” are limited to tangible items that are offered for sale in the marketplace. The plain language of the NSPA limits “goods, wares, merchandise” to movable items that are meant to reach the marketplace. Congress restricted the language of the NSPA by using the narrow terms “goods, wares, merchandise” and rejected amendments to expand the language to include trade secrets. Other federal statutes limit the terms “goods, wares, merchandise” to items destined for sale. This Court in Dowling v. United States limits “goods, wares, merchandise” to items that implicate traditional property rights. The nature of trade secrets renders them antithetical to the category of stolen items – “goods, wares, merchandise” that fall within the ambit of the NSPA. Applying the NSPA to trade secrets has led to varying decisions in the lower courts. The rule of lenity mandates a strict construction of “goods, wares, merchandise.”

Brief in Support of Appellant by Amicus Curiae National Association of Criminal Defense Lawyers.

Argument: The trial court erred in barring the defense from introducing evidence to support the basis for the legal opinion Mathis gave to his client. Ambiguity in the statute with regard to mens rea requires the court to insert an appropriate state of mind element. The "knowledge" element of an offense occasionally includes knowledge of a legal "fact." The trial court improperly removed the mens rea element in this case. In the alternative, a mistake of law defense was appropriate in this case. Denying Mathis the right to present this evidence resulted in the denial of his right to present a defense.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant’s Petition for Rehearing and Rehearing En Banc

Argument: The panel’s decision is inconsistent with background principles of forfeiture, congressional intent, Supreme Court precedent, and constitutional limitations. Neither Section 924(D) nor Section 853(P) permits entry of a money judgment as “substitute property” subject to forfeiture 

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant David Newland.

Argument: Exceptions to statutes of limitations should be narrowly construed. The Wartime Suspension of Limitations Act (WSLA) should only apply to war frauds. The WSLA should only apply to pecuniary frauds. Fairness further requires narrow construction of WSLA. Strict construction of the 2008 act is needed because modern authorizations of the use of military force would otherwise allow an unintended indefinite suspension of statutes of limitations. Application of the WSLA would render the defense of withdrawal from a conspiracy a nullity. 

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

Argument: BIA interpretations of "aggravated felony" do not qualify for Chevrondeference. Section 1101 (a)(43) has extensive criminal applications, with substantial penal consequences. Because Section 1101 (a)(43) has extensive criminal consequences, the Rule of Lenity rather than Chevron must be applied to resolve statutory ambiguities.  This Court's precedent dictates that the rule of lenity applies, requiring "aggravated felony" to be construed narrowly and in favor of petitioner. Applying the rule of lenity rather than Chevron to statutes with both civil and criminal applications fulfills the rule's purposes and protects core constitutional values. Babbitt's footnote does not command a contrary result. Even if the Chevron framework applies, deference to the BIA's interpretation is not warranted here. The BIA does not administer criminal laws and lacks relevant criminal law expertise. Affording Chevron deference to the BIA's interpretation would create significant practical difficulties for criminal defense lawyers and their clients.

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

Argument: The court should interpret Nevada law to avoid any conflict with constitutional principles. Fundamental principles of federalism and due process preclude the extraterritorial application of Nevada law to out-of-state conduct at issue here – the unilateral recording of a telephone call where the call is placed in a jurisdiction where that is permitted. The federal structure of the United States precludes state regulation and criminalization of lawful conduct in other states. Due Process precludes any state from criminalizing conduct that occurs out-of-state and is legal where is occurs. Modern telecommunication technology and practices exacerbate the due process violation. The Commerce Clause precludes extraterritorial regulation of the use of an instrumentality of interstate commerce. Buckles proposes a facially unconstitutional direct regulation of interstate commerce. The threat of inconsistent regulation would further invalidate extraterritorial application of Nevada's standards to Ditech's conduct. Using interstate telecommunications networks to project state-law authority into other states would turn settled notions of the federal-state allocation of power upside down. Congress has occupied the field of privacy regulation of interstate telecommunications. Any extraterritorial extension of NRS 200.620 should be prospective only.

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

Argument: The lower courts erred by considering only the dictionary definition of the word ‘suicide’ and ignoring other important rules of statutory construction. The Appellate Division failed to consider whether its interpretation of the statute was consistent with legislative intent. The appellate division failed to construe the statute in accordance with the rule of lenity. In the alternative, the Appellate Division’s interpretation should be rejected because the assisted suicide statute, as applied to physician appellants, would be unconstitutionally vague.

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

Argument: Joint and several forfeiture liability violates basic principles of sentencing. Joint and several forfeiture liability imposes a de facto criminal fine in contravention of congressional intent. Congress enacted § 853 to deprive defendants of their proceeds from crime. Joint and several forfeiture liability disregards the limits Congress imposed on fines for drug offenders. The Court should construe § 853 to avoid serious constitutional problems.

Brief of Electronic Frontier Foundation and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Appellant

Argument: The lower courts misconstrued the technology at issue. The lower courts misconstrued the CFAA’s purpose and case law. Congress intended the CFAA to target serious computer break-ins. Consistent with Congress’s intent, courts across the country have held that the CFAA does not criminalize violations of computer use policies. Courts adopting the ‘narrow’ interpretation have rejected the lower courts’ theory that written computer use restrictions on how someone accesses information are ‘access’ restrictions. The military judge ignored basic rules of statutory construction. The lower courts’ broad reading of the CFAA renders the statute unconstitutionally vague.