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    • Brief

    Martoma v. United States

    Brief of Amicus Curiae National Association of Criminal Defense Lawyers In Support of Petition for a Writ of Certiorari

    Argument: Over 200 years ago, this Court declared that there are no federal common law crimes. Although that rule remains in place, the intervening years have witnessed the creation of quasi-common law crimes. These are crimes that rest on statutory terms so broad and indefinite that courts are left to define the elements of the offense with little or no guidance from the statutory text. Quasi-common law crimes shift the task of defining what conduct deserves "the moral condemnation of the community" from the legislature, where it belongs, to the courts. This Court has sought to remedy the lack of fair warning inherent in quasi-common law crimes through a process of interpretation that often resembles common law crime definition. Insider trading liability--and, in particular, the liability of tippers and tippees at issue here—has followed the same pattern. In the tipper/tippee insider trading context, therefore--as in the antitrust and honest services contexts--the Court, rather than Congress, has determined the elements of the crime. And as in those contexts, a person seeking to conform his conduct to the law when trading on a tip of nonpublic information will learn virtually nothing from the statutory text. He must turn instead to Dirks' "simple and clear 'guiding principle' for determining tippee liability" and act accordingly. The Court's definition of these and other quasi-common law crimes--its creation of "simple and clear guiding principle[s]" for determining whether an offense has been committed--ameliorates (but does not eliminate) the fair warning danger such crimes present. But the Court's decisions perform that function only if the lower courts treat their operative language as if Congress had included that language in the statute itself. If lower courts can modify the Court's "guiding principles" materially, as the court of appeals did here, and thus broaden the scope of criminal liability, then the lack of fair warning inherent in quasi-common law crimes will remain. It is therefore essential to individual liberty that the Court rigorously police the lower courts' application of its decisions defining quasi-common law crimes. The need for the Court's intervention is particularly acute here, because the court of appeals endorsed an expansion of the tipper/tippee insider trading crime that the Court declined to adopt in Salman.

    • Brief

    Leyva v. United States

    Brief of Amici Curiae Due Process institute, Cato Institute, National Association of Criminal Defense Lawyers, Rutherford Institute, District of Columbia Association of Criminal Defense Lawyers, Pennsylvania Association of Criminal Defense Lawyers, Texas Criminal Defense Lawyers Association, and Law Professors in Support Petition for a Writ of Certiorari.

    Argument: The standard-of-review question this case presents implicates profound concerns with federal sentencing--concerns with substantial constitutional implications. Federal courts routinely sentence defendants to years in prison based on hearsay statements relayed to the court at sentencing by law enforcement officers. Those statements often come from convicted criminals who want to reduce their sentences by cooperating with the government. The cooperating criminals do not appear in court, so the district judge has no opportunity to assess their demeanor. They do not swear an oath to tell the truth. They do not face cross-examination. And their out-of-court statements need only persuade the judge by a preponderance of the evidence. Petitioner Beltran Leyva faces a life sentence based on precisely such evidence. Defendants have few safeguards against sentencing enhancements that rest on false out-of-court statements from cooperating criminals. One such protection is searching appellate review. De novo review by the court of appeals ensures that the reliability of the cooperator's statement will receive a second level of careful scrutiny. And de novo review comports with the rationale for heightened appellate scrutiny: the stakes--a person's right to due process of law before losing his liberty--are high, and, because the district court never observes the cooperator's demeanor, the appellate court is just as capable of evaluating his credibility.

    • Brief

    St. Hubert v. United States

    Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for writ of certiorari).

    Argument: It is emphatically the province and duty of the judicial branch to say what the law is, not what the law was. But in the Eleventh Circuit, petitioner and scores of other defendants like him have their cases decided on the basis of law otherwise recognized as repudiated by intervening precedent from this Court. Alone among the circuit courts, the Eleventh Circuit requires direct instruction from the Supreme Court to revisit its prior precedent; without it, rationale widely considered clearly erroneous in light of subsequent Supreme Court case law is still applied to defeat defendants’ appeals. Because the Eleventh Circuit’s internal rules require Supreme Court precedent to be “directly on point” to allow reconsideration of its past case law, it takes a narrower view of Supreme Court rationale than does this Court. Where, as in this case, a court acknowledges that the Supreme Court’s intervening rationale is “at odds with” its binding precedent and yet forecloses argument on the issue, a defendant’s due process right to a meaningful appeal is violated. Review is warranted because the Eleventh Circuit's practice is impermissible and inconsistent with all other circuits. The problem is important, recurring, and squarely presented. For this reason, and those in the petition, the Court should grant certiorari.