State of Ohio v. Tara Hollingshead CT2022-0031

State of Ohio v. Tara Hollingshead CT2022-0031

State of Ohio v. Tara Hollingshead CT2022-0031

State of Ohio v. Tara Hollingshead CT2022-0031

State of Ohio v. Tara Hollingshead CT2022-0031

Powerpoint slides by Kim Burroughs and Kandra Roberts. Presented at the NACDL Post-Dobbs Defender Skills Summit in July 2023

Prosecution of material substance use

Brief for Professors Stephen Smith, Hadar Aviram, John Burkoff, and the National Association of Criminal Defense Lawyers, as Amici Curiae in Support of Petitioner.

Argument: When Congress uses a term that has acquired a well-established common-law meaning, it is presumed to adopt that meaning. The well-established common-law definition of "simple assault" uniformly required an attempt or threat to inflict injury on another. Nothing in § 111 overcomes the presumption that the term "simple assault" carries its common-law meaning. A circuit split has developed regarding whether the common-law definition of "simple assault" applies to § 111.

Comments to the Department of Justice National Security Division responding to the department’s request for suggestions on clarifying and modernizing the implementing regulations of the Foreign Agents Registration Act of 1938 (FARA).

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners (in support of petition for writ of certiorari).

Argument: The Second Circuit’s interpretations of “property” and “thing of value” violate this Court’s precedents. Deeming regulatory information “confidential” does not give the government a property interest in that information. Confidential information about regulatory plans is not “a thing of value” under Section 641. The Second Circuit’s interpretations of “property” and “thing of value” criminalize core First Amendment activity.

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

Argument: First, there must be a specific reason not to apply the Eighth Amendment to the Constitution to servicemembers. As there is no issue of military importance that excludes servicemembers from the protections of the Eighth Amendment, rape of an adult cannot be an “offense punishable by death.” Under the Supreme Court’s interpretation of the Cruel and Unusual Punishment Clause of the Eighth Amendment, the crime of rape of an adult cannot be punishable by death. Petitioner has not met its burden to provide a military-specific exception for the application of the Eighth Amendment to servicemembers. Here, the Petitioner offers policy prescriptions and “national security” reasons which are insufficient to deprive a service-member of his or her constitutional rights. Further, canons of statutory interpretation require that Article 43 must be read to protect applicable constitutional rights. Specifically, sections in the same statutory scheme should be read in pari materia, or interpreted together. Article 43, at the time of Respondents’ alleged offenses, had no statute of limitations for crimes punishable by death, including rape, but established a five-year limitation otherwise; however, Article 55 prohibits cruel and unusual punishment, mirroring the Eighth Amendment. Applying Supreme Court precedent that precludes death as a punishment for rape of an adult, Article 43 read in conjunction with Article 55 requires that rape was subject to a five-year statute of limitations at the time of the alleged offenses. Lastly, civilian law must inform the interpretation of the UCMJ. The CAAF may not freely disregard Supreme Court precedent without a “legitimate military necessity or distinction.” Therefore, the CAAF’s decision to reverse Respondents’ convictions should be affirmed.

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

Argument:  The Foreign Corrupt Practices Act (FCPA) applies to “an officer, director, employee, or agent” of a domestic concern or issuer.  The Government argues that “agent” means a common-law agent, but that reading of the statute is entirely at odds with both the FCPA’s plain text and the Act’s legislative history.  Congress intended for “agent” to mean a specific type of individual:  a foreign intermediary used to pay bribes.  If “agent” meant “common-law agent,” as the Government says, there would have been no need for Congress to specify “officer” or “employee”—both are “common-law agents.”  The legislative history also demonstrates that Congress had bribe-paying foreign “consultants” or “intermediaries” in mind when it crafted the FCPA to cover “agents.”  Reading the word “agent” broadly would raise serious concerns about extraterritorial application that Congress specifically sought to avoid.  Such a reading would also run afoul of well-established principles of lenity.

 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 Petition for Rehearing or Rehearing En Banc.

Argument: Designating information as confidential is not enough to make it “property” in the government’s hands. This Court should not expand Section 641 and provide the government with an all-purpose tool for prosecuting leaks.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”) in Support of Defendants-Appellants and Reversal

Argument: Confidential government information is not “property” for purposes of wire fraud and Title 18 securities fraud. Wire fraud and Title 18 securities fraud protect a victim’s property, not regulatory, rights. CMS does not have a property interest in information regarding a regulatory decision. Confidential government information is not a “thing of value” or “property” for purposes of Section 641. Congress has developed a measured, deliberate, and tailored regime for controlling government information. Expanding Section 641 to criminalize virtually any unauthorized disclosure of confidential information would vitiate Congress’s measured, deliberate, and tailored regime for controlling government information. The prosecution’s interpretation of “property” and “thing of value” criminalize core First Amendment activity.