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

This case is yet another example of overzealous prosecutors distorting the mail and wire fraud statutes – this time through the so-called “right-to-control” theory. That theory epitomizes the overcriminalization that plagues federal criminal law. It is an atextual invention of prosecutors that criminalizes a staggering amount of run-of-the mill dishonesty traditionally regulated, if at all, by States. And it eviscerates foundational due process protections. This Court has repeatedly rejected similarly aggressive interpretations of federal criminal statutes. The Court should do the same with the right-to-control theory.

Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the American Board of Criminal Lawyers in Support of Defendant-Appellant John Wilson and Reversal.

Argument: NACDL’s amicus brief argues that the federal fraud statutes protect only traditional concepts of property. The universities lost control over the composition of their incoming classes, which is not “property.” The “right to control” theory cannot salvage the property fraud convictions in this case. That theory does not apply here and, even if it did, the theory is doctrinally unsound. The government’s theory of property fraud has no limiting principle and would criminalize even the most trivial of deceptive conduct.

DOJ has had mixed success in the prosecution of traders. Where is the dividing line between illegal activity and savvy trading? Susan Brune and Erin Dougherty review the major categories of recent prosecutions and highlight the key issues that have presented obstacles to conviction – and opportunities for the defense.

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

Argument: The Second Circuit’s prior decision in this case—holding that wholly intangible government information could become “property” by virtue of an agency labeling that information “confidential”—transforms the federal fraud statutes and the theft of government property offense into official-secrets acts. The U.S. Supreme Court’s decision in Kelly v. United States, issued days after the Second Circuit denied rehearing en banc, fundamentally undermined the panel’s construction of “thing of value” in the theft of government property statute, 18 U.S.C. § 641. Applying traditional tools of statutory interpretation, the Court should reject the government’s unbounded theory of property, which would render targeted information-control statutes surplusage and criminalize core First Amendment activity.

The National Association of Criminal Defense Lawyers’ Memorandum of Law Amicus Curiae in Support of Defendants.

Argument: A government’s exercise of its contracting authority is not a cognizable form of “money or property” under the federal mail, wire, or program fraud statutes charged. NACDL expressed its interest in maintaining the necessary limits on the federal fraud statutes that the Supreme Court has imposed time and again. Reducing and resisting overcriminalization is a core issue for NACDL, and this case presents an issue squarely within that mandate.

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 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.

Letter with the Heritage Foundation to Senate Judiciary Committee Leadership regarding the redundancy of the Fraud Enforcement and Recovery Act (FERA) of 2009 (S. 386).

NACDL Board member Barry Pollack's written statement to the House Judiciary Committee regarding federal criminal fraud laws.