Amicus Briefs ~ 2011

Ashcroft v. Al-Kidd, U.S. Sup. Ct., No. 10-98, decision below 580 F.3d 949 (9th Cir. 2009), brief filed 1/28/11, argument scheduled 3/2/2011. Material Witnesses—False Arrest—Remedies. Amicus curiae brief of Human Rights Watch and the National Association of Criminal Defense Lawyers. Argument: The material witness statute, 18 U.S.C. §3114 provides for the arrest and detention of witnesses only when absolutely necessary and for the limited purpose of securing their testimony when material to a criminal proceeding. The statute does not provide for the detention of persons suspected of criminal conduct – but against whom there is insufficient proof to meet the constitutional requirements for arresting or charging criminal suspects – in order to conduct further investigation. In this case, the Department of Justice misused the statue to arrest and detain the plaintiff, a native-born U.S. citizen. The plaintiff (and others) was arrested in the manner of a dangerous criminal suspect (except without Miranda warnings), subjected to coercive custodial interrogations about his own activities without counsel, detained for 15 nights in high-security prisons with convicted criminals, routinely shackled and strip-searched during his detention, and released subject to restrictive conditions. If the DOJ truly viewed the plaintiff as a witness, it could have subpoenaed him or deposed and released him, as provided by the statute. Authors: Joseph F. Tringali, Ryan A. Kane, Fadi Hanna, Greg Szewczyk, Simpson Thacher & Bartlett LLP, New York, NY.

Blueford v. Arkansas, U.S. Sup. Ct., No. 10-1320, decision below ___ SW.3d ___ (Ark. 2011), 2011 WL 285805, brief filed 6/3/11. Double Jeopardy—Lesser-Included Offenses—Mistrial—“Acquittal First” Jury Instructions.  Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: In this capital case, the jury, per the court’s instructions, acquitted the defendant of capital murder, then of first-degree murder, but then could not agree on whether the defendant was guilty of manslaughter, and the court declared a mistrial. Supreme Court double jeopardy case law, particularly Green v. United States, 355 U.S. 184 (1957) and Price v. Georgia, 398 U.S. 323 (1970), bars the petitioner-defendant’s retrial on the acquitted charges of capital and first degree murder. Authors: Christopher M. Egleson and Jennelle D. Menendez, Akin, Gump, Strauss, Hauer & Feld LLP, New York, N.Y. NACDL’s brief in support of the petition for certiorari is here.

Camreta v. Greene, U.S. Sup. Ct, Nos. 09-1454 & 09-1478, case below 588 F.3d 1011 (9th Cir. 2009), brief filed 1/31/11, argument 3/1/11. Search and Seizure—Minor children—Familial rights. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Civil Rights and Liberties Committee of the New York County Lawyers Association, and the Center for Constitutional Rights in support of respondents. Argument: On the belief that she had been molested by her father, S.G., a nine-year-old girl was forcibly removed from her classroom and interrogated alone for two hours by a state human services investigator and a visibly-armed deputy sheriff. Brief urges affirmance of the court of appeals, which held that S.G.’s seizure and prolonged detention violated the child’s and mother’s Fourth Amendment rights. Of note is a historical argument noting that children in the 18th and 19th Centuries could not summarily be taken from their parents by government officials and that 20th Century solutions to the problem of child abuse have not created an exception to the warrant requirement when seizing children. Author: Prof. Mark Brown, Capital Univ. School of Law, Columbus, OH.

DeWolfe v. Richmond, Md., No. 34, case below 990 A.2d 549 (Md. 2010), brief filed 9/19/11. Right to Counsel—Bail—Initial Appearance—Indigent Defense. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the ACLU of Maryland, the Brennan Center for Justice at New York University Law School, the Center for Constitutional Rights and the National Legal Aid and Defender Association in support of appellees. Argument: The trial court found correctly that there exists a statutory and constitutional right to appointed counsel at a defendant’s initial bail hearing in Maryland. Authors: Christina M. Gatttuso, Kilpatrick Townsend and Stockton LLP, Washington, DC, and Gia L. Cincone, Kilpatrick Townsend and Stockton LLP, San Francisco, CA.

Florence v. Board of Chosen Freeholders of the County of Burlington et al., U.S. Sup. Ct., No. 10-945, decision below 621 F.3d 296 (3rd Cir. 2010), brief filed 6/27/11, arguement 10/12/11. Fourth Amendment—Arrestees—Strip Searches. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: An across-the-board policy of strip-searching all persons arrested and detained, without regard to the basis of arrest or individualized suspicion, violates the Fourth Amendment. Arrests can and do result from a wide range of minor offenses and non-criminal violations, and they often occur under circumstances for which there is no reasonable basis for suspecting the arrestee may be attempting to smuggle contraband into a detention facility. To the extent that either the type of the offense or circumstances of arrest do raise such a concern, the Fourth Amendment permits necessary searches. However, absent such a basis for suspicion, the serious personal invasion of a strip search cannot be justified under the Fourth Amendment. Authors: Meir Feder and Leslie B. Dubeck, Jones Day, New York, NY, and David Porter, Sacramento, CA.

George v. Louisiana, U.S. Sup. Ct., No. 10-1017, opinion below 34 So.3d 941 (La. 2010) (consolidated cases), brief filed 3/14/11. Sixth Amendment – Right to Jury Trial – Sentencing Enhancement. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Question presented: Is a defendant’s constitutional right to trial by jury violated when the maximum sentence is increased from six months to twenty years based on a prior adjudication at which a defendant had no right to a jury trial? Argument: The majority of American citizens who interface with the criminal justice system do so through a vast web of petty offenses – such as driving under the influence, possession of marijuana, simple assault – for which the Constitution does not guarantee a jury trial. When such minor non-jury triable misdemeanor convictions are used as elements of subsequent serious felony offenses, the defendant is denied his right to have a jury determine each essential element of this felony offense in violation of the Sixth and Fourteenth Amendments. Authors: Timothy P. O’Toole, Miller & Chevalier Chartered, Washington, D.C. and Thomas M. Nosewicz, New York, NY.

Gonzalez v. Thaler, U.S. Sup. Ct., No. 10-895, case below 623 F.3d 222 (5th Cir. 2010), brief filed 8/12/11. AEDPA—Certificate of Appealability—Jurisdiction—Procedural Default. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Innocence Network in support of petitioner. Argument: Appellate jurisdiction under Sec. 2253 of the Antiterrorism and Effective Death Penalty Act (AEDPA) does not depend upon a COA’s conformity with technical formalities; direct review of a state criminal conviction cannot conclude for purposes of Sec. 2244(d)(1)(A) before the highest court to review the case relinquishes jurisdiction by issuing a mandate or its equivalent. Authors: Douglas Hallward-Driemeier, et al., Ropes & Gray LLP, Washington, D.C.

Greene v. Fisher, U.S. Sup. Ct., No. 10-637, decision below 606 F.3d 85 (3rd Cir. 2010), brief filed 1/3/11. Habeas corpus – AEDPA – Teague Retroactivity. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: The court of appeals held that a habeas petitioner may only obtain relief on the basis of a “new rule” if the Supreme Court has announced it by the date of a petitioner’s last state court decision on the merits; this interpretation of “clearly established federal law” would create a class of petitioners theoretically entitled retroactive application of new rules but unable to obtain habeas relief. Authors: Jeffrey T. Green, Sidley Austin LLP, Washington, D.C. and Sarah O’Rourke Schrup, Northwester Univ. Supreme Court Practicum, Chicago, Ill.

Judulang v. Holder, U.S. Sup. Ct., No. 10-694, case below 249 Fed.Appx. 499 (9th Cir. 2007), reh’g denied Aug. 26, 2010, brief filed 7/12/11, argument 10/12/11. Aliens—Deportation—Discretionary Removal after Conviction. Amicus curiae brief of the National Association of Criminal Defense Lawyer and the National Legal Aid and Defender Association in support of the petitioner. Argument: Prior to immigration reforms in 1996, lawful permanent residents in the petitioner’s position pleaded guilty in reasonable reliance on their right to seek discretionary relief from deportation and retroactive application of the current law would be unjust. Authors: Iris E. Bennett, et al., Jenner & Block LLP, Washington, DC. 

Lafler v. Cooper & Missouri v. Frye, U.S. Sup. Ct., Nos. 10-209 & 10-444, cases below 376 Fed.Appx. 563 (6th Cir. 2010) (unpublished),  311 S.W.3d 350 (Mo.App. 2010), joint brief filed 7/22/2011. Plea Bargaining—Ineffective Assistance of Counsel—Sixth Amendment. Amicus curiae brief of the National Association of Criminal Defense Lawyers, Connecticut Criminal Defense Lawyers Association, and the American Civil Liberties Union Foundation. Argument: A defendant who validly pleads guilty should be allowed to assert ineffective assistance of counsel in a case where counsel failed to communicate a more favorable plea offer; the trial court is the proper forum for crafting a remedy to ineffective assistance at the plea stage. Authors: Jonathan D. Hacker and Loren L. AliKhan, O’Melveny & Myers LLP, Washington, D.C.

Maples v. Thomas, U.S. Sup. Ct., No. 10-63, case below 586 F.3d 879 (11th Cir. 2010), merits brief filed 8/11/11. Habeas Corpus—Capital Punishment—Procedural Default. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the ACLU of Alabama in support of petitioner. Issue: Whether there was no “cause” to excuse a missed filing deadline in a habeas case where the petitioner was blameless for the default, the state’s own conduct contributed to the default, and petitioner’s attorneys of record were no longer functioning as his attorneys at the time of the default. Argument: Brief argues, inter alia, that Alabama’s death penalty system is inadequate at every state in the process: Inexperienced, underpaid and ineffectual lawyers are appointed at trial and on direct appeal; racial disparities exist in the application of the death penalty; and politics encourages judges to override a jury’s sentencing recommendation of life imprisonment and impose the death penalty. Authors: Lisa S. Blatt, et al., Arnold & Porter LLP, Washington, DC. NACDL’s brief in support of granting the writ, filed 8/11/10, is here

McNeill v. United States, U.S. Sup. Ct., No. 10-5258, decision below 598 F.3d 161 (4th Cir. 2010), brief filed 3/4/11, argument TBA. Armed Career Criminal Act—Definition of Prior “Serious” Drug Offense. Amicus curiae brief of the National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM). Background: The Armed Career Criminal Act (ACCA) applies to a person who “violates [18 U.S.C.] section 922(g)” and “has three previous convictions . . . for a violent felony or a serious drug offense.” 18 U.S.C. §924(e)(1). A “serious drug offense” is defined in relevant part as “an offense under State law . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” The Fourth Circuit Cour of Appeals affirmed the district court’s classification of petitioner’s North Carolina drug offenses as “serious drug offenses” under the ACCA, even though at the time of petitioner’s federal sentencing, North Carolina’s current sentencing law did not prescribe a maximum term of imprisonment of at least 10 years for those drug offenses. Question presented: Whether the plain meaning of “is prescribed by law” [note present tense] which ACCA uses to define a predicate “serious drug offense” requires a federal sentencing court to look to the maximum penalty prescribed by current state law for a drug offense at the time of the instant federal offense, regardless of whether the state has made that current sentencing law retroaction. Argument: The text and structure of the ACCA require consideration of the “seriousness” of a drug offense at the time of the federal firearms violation; the government’s rule would create unnecessary complexity and uncertainty. Authors: Jonathan D. Hacker and Meaghan McLaine VerGow, O’Melveney & Meyers LLP, Washington, D.C.

Norris v. United States, U.S. Sup. Ct., No. 11-91, case below 419 Fed.Appx 190 (3rd Cir. 2011) (unpublished), brief filed 8/19/11. Self-Incrimination—Attorney-Client Privilege—Obstruction of Justice. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of granting certiorari. Argument: Persuading another to assert a valid Fifth Amendment or other privilege regarding incriminating information is not obstruction of justice. Authors: Joseph D. Mancano and J. Peter Shindel, Jr., Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Philadelphia, PA.

People v. Caballero, Cal., No. S190647, case below 119 Cal.Rptr. 920 (Cal.App. 2011), brief filed 10/28/11. Juveniles—Sentencing—Eighth Amendment—Cruel and Unusual Punishment. Amicus curiae brief of the Juvenile Law Center, Human Rights Advocates, Human Rights Watch, the Loyola Law School Center for Law and Policy, and the Disability Rights Legal Center filed an amicus curiae brief in support of the defendant-appellant. Argument: Sentencing a juvenile to imprisonment – a term of years – with a parole eligibility date that falls past his natural life expectancy violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Authors: Constance de la Vega, et al., Newman International Human Rights Law Clinic, U.C.S.F. School of Law; Maureen Pacheco, Center for Juvenile Law and Policy, Los Angeles; Jessica R. Feierman, Juvenile Law Center, Philadelphia; Elizabeth M. Calvin, Human Rights Watch, Los Angeles; and Paula Pearlman and Shawna Parks, Disability Rights Legal Center, Los Angeles.

Perry v. New Hampshire, U.S. Sup. Ct., No 10-8974, case below unpublished, brief filed 8/5/11, argument 11/2/11. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Eyewitness Identification—Suggestive Circumstances—Due Process. Argument: Suggestive pretrial identifications by eyewitnesses, whatever the cause, present a grave danger of producing unfair trials and wrongful convictions. In such cases, a per se rule that precludes judicial scrutiny of the risk of misidentification before evidence of the identification is admitted, based solely on the presence of a single circumstance—the presence or absence of improper state action—rather than analysis of the totality of the circumstances, cannot comport with due process. Improper state action does not necessarily have a greater impact on the reliability of the identification than any other factor, and “reliability is the lynchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114 (1976). Authors: Mark D. Harris, et al., Proskauer Rose LLP, New York, NY.

Pethtel v. Ballard, U.S. Sup. Ct., No. 10-8178, decision below 617 F.3d 299 (4th Cir. 2010), brief filed 1/26/11. Habeas Corpus – Interstate Agreement on Detainers. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of certiorari. Argument: Federal courts disagree whether the “anti-shuttling” provision, or even any provision, of the Interstate Agreement on Detainers (IAD) is subject to habeas corpus review. The Constitution charges the federal government with enforcement of interstate compacts such as the IAD. Federal habeas review is appropriate because it is the only meaningful mechanism by which the IAD can be enforced against unwilling states and the only reasonable remedy for a criminal defendant whose rights under the IAD have been violated. Authors: Jeffrey T. Green, Bryson Bachman and William Doolittle, Sidley Austin LLP, Washington, D.C. and Sarah O’Rourke Schrup, Northwestern Univ. Supreme Court Practicum, Chicago, Ill.

Rosario v. Griffin, U.S. Sup. Ct., No. 10-854, case below 601 F.3d 118, reh’g denied 617 F.3d 683 (2nd Cir. 2010), brief filed 3/16/11. Ineffective Assistance of Counsel—Habeas Corpus—AEDPA—State Standards. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: New York's state constitutional “meaningful representation” standard to evaluate Sixth Amendment claims of ineffective assistance of counsel results in decisions that are "contrary to, or involve an unreasonable application of, clearly established federal law" as required by the federal habeas statute. Authors: Jonathan Marcus, et al., Covington & Burling, Washington, D.C. The associations’ amicus curiae brief in the court below is here. 

Sec’y, Dept. of Corrections v. Shelton, 11th Cir., No. 11-13515-G, case below --- F.Supp.2d ----, 2011 WL 3236040 (M.D. Fla. July 27, 2011), brief filed 10/31/11. Due Process---Mens Rea---Strict Liability---Felony Drug Laws. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Florida Association of Criminal Defense Lawyers, the American Civil Liberties Union of Florida, the Drug Policy Alliance, the Calvert Institute for Policy Research, the Cato Institute, the Reason Foundation, the Libertarian Law Council, and 38 law professors from across the United States. Argument: Florida’s strict liability felony drug law runs afoul of the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution and is inconsistent with centuries of common law. In addition, the state cannot shift the burden of proof to the defendant to disprove an essential element of an offense. Authors: Todd Foster of Cohen, Foster & Romaine, P.A. in Tampa, Fla., David O. Markus of Markus & Markus in Miami, Fla., and Quintin Chatman, Ivan J. Dominguez, Tiffany Joslyn, Jack King, and Norman L. Reimer, all at NACDL.

Sessoms v. Runnels, 9th Cir. (en banc), No. 08-17790 reversing 650 F.3d 1276 (9th Cir. 2011), brief filed 7/28/2011. Miranda—Invocation of Right to Counsel During Questioning. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for rehearing en banc. Argument: No “magic words” are required to invoke the right to counsel; the panel and the California court of appeals erred in holding that the defendant failed to “unambiguously invoke his right to counsel” under Davis v. United States. The defendant, 19-year-old Tio Sessoms, surrendered himself to police for questioning and was read his rights under Miranda v. Arizona, and asked if there were “any possible way” he could have a lawyer present during questioning. When the detective hesitated, Sessoms said, “Yeah, that’s what my dad asked me to ask you guys . . . uh, give me a lawyer.” The detective persevered in convincing Sessoms that the only way to tell his side of the story was to waive his right to counsel. Defense counsel moved unsuccessfully to have his statement suppressed, and the state court of appeals upheld his conviction. NACDL argued that the state court’s decision was contrary to and an unreasonable application of U.S. Supreme Court precedent and that rehearing en banc was necessary to make clear that the police tactic of questioning “outside Miranda” is improper. Authors: Mark E. Haddad and Douglas A. Axel, Sidley Austin LLP, Los Angeles, Peter C. Pfaffenroth, HL Rogers and Brian A. Fox, Sidley Austin LLP, Washington, DC, and David M. Porter, Office of the Federal Defender, Sacramento, CA.

Shelton v. Sec’y, Dept. of Corrections, U.S. Dist. Ct., M.D. Fla., No. 6:07-cv-839-Orl-35KRS, brief filed 1/28/11. Due Process---Mens Rea---Strict Liability---Felony Drug Laws. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Florida Association of Criminal Defense Lawyers, the American Civil Liberties Union of Florida, the Drug Policy Alliance, the Calvert Institute for Policy Research, and 38 law professors from across the United States. Argument: Florida’s strict liability felony drug law runs afoul of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and is inconsistent with centuries of common law, sound public policy, and the norms of international legal systems and principles generally embraced by the United States. Author: Todd Foster of Cohen, Foster & Romaine, P.A. in Tampa, Fla., et al.

Smith v. Cain, U.S. Sup. Ct., No. 10-8145, case below 45 So.3d 1065 (La. 2010), brief filed 8/19/11. Brady Violations—Cumulative Effect of Failures to Disclose Exculpatory and Impeaching Evidence. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: The Louisiana Supreme Court erred in failing to grant post-conviction relief where the prosecution suppressed a clutch of exculpatory and impeachment evidence and the confession of another suspect where the petitioner’s conviction hung on a single eyewitness and there was no physical evidence linking him to the crime. The cumulative effect of the Brady/Napue/Giglio violations sufficiently undermine confidence in the jury’s verdict as to warrant a new trial. Authors: Daryl Joseffer and Adam Conrad, King & Spalding LLP, Washington, D.C. 

Southern Union Co. v. United States, U.S. Sup. Ct., No. 11-94, case below 630 F.3d 17 (1st Cir. 2010), brief filed 8/19/11. Criminal Fines—Apprendi/Booker—Right to Jury Trial. Amicus curiae brief of the Chamber of Commerce of the United States and the National Association of Criminal Defense Lawyers supporting grant of the petition for certiorari. Argument: The court of appeals erred in ruling that Apprendi v. New Jersey, which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and found beyond a reasonable doubt, does not apply to criminal fines. Authors: Benjamin C. Block, Covington & Burling LLP, New York, NY, et al.

State v. Johnson, Supreme Court of Ohio, case below 190 Ohio App.3d 750 (Ohio App. 12 Dist., 2010), brief filed 6/6/2011. GPS Surveillance—Search and Seizure—Warrant Requirement--Associational Privacy. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, Ohio Association of Criminal Defense Lawyers, Electronic Frontier Foundation, First Amendment Lawyers Association, Center for Democracy and Technology, American Civil Liberties Union of Ohio, Office of the Ohio Public Defender, Seven Ohio Professors of Law. Argument: The decision of the Court of Appeals of Ohio, Twelfth District, Butler County, should be reversed. To protect both First and Fourth Amendment rights, law enforcement should be required to secure a warrant based on probable cause prior to secretly installing GPS transmitter on a person’s vehicle and undertaking such surveillance. Authors: Susan J. Walsh, Vladeck, Waldman, Elias & Englehard, P.C., New York, NY; Norman L. Reimer, Exec. Dir., NACDL, Washington, DC; Michael W. Price, National Security Coordinator, NACDL, Washington, DC.

State of Florida v. Luke Jarrod Adkins, et al., No. SC11-1878, 2011 WL 4925888 (Fla. Oct. 12, 2011), case below State v. Adkins, 71 So.3d 184, 36 Fla. L. Weekly D2150 (Fla. 2d DCA, Sept. 28, 2011), brief filed 11/28/11. Due Process---Mens Rea---Strict Liability---Felony Drug Laws. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union of Florida, the Drug Policy Alliance, the Cato Institute, the Reason Foundation, the Libertarian Law Council, and 25 law professors from across the United States. Argument: Florida’s strict liability felony drug law runs afoul of the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution and is inconsistent with centuries of common law. Authors: Todd Foster of Cohen, Foster & Romaine, P.A. in Tampa, Fla., David O. Markus of Markus & Markus in Miami, Fla., and Quintin Chatman, Ivan J. Dominguez, Tiffany Joslyn, Jack King, and Norman L. Reimer, all at NACDL.

United States v. Behanna, C.A.A.F., No. 12-0030/AR, brief filed 10/18/11. Brady—Failure to Disclose Exculpatory Evidence—Due Process. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant. Argument: Prosecutor’s failure to disclose nontestifying prosecution expert’s opinion that contradicted the prosecution’s theory of the case and also corroborated the defense experts’ opinion and the testimony of the defendant violated the Due Process Clause of the Fifth Amendment. Such conduct also is unethical and constitutes perpetration of a fraud upon the tribunal. Author: Donald G. Rehkopf, Jr., Brenna, Brenna & Boyce PLLC, Rochester, NY.

United States v. Brooks, 5th Cir., No. 09-20871, filed 7/8/11. Attorneys Fees—Sixth Amendment—Right to Counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellants. Argument: Government’s threat of prosecution of corporation in order to pressure company into disavowing long-standing policy of paying employees’ attorneys’ fees amounted to an impermissible infringement on employees’ Sixth Amendment right to counsel of choice, and, as in United States v. Stein, 541 F.3d 130 (2 nd Cir. 2008), dismissal of the indictment is the appropriate remedy. Authors: John P. Elwood, Craig D. Margolis and Yousri H. Omar, Vinson & Elkins LLP, Washington, DC.

United States v. Burwell, D.C. Cir. (en banc), No. 06-3070, 642 F.3d 1062 vacated 10/12/11, argued en banc 1/30/12. Mens Rea—Strict Liability—Scienter—Machineguns. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant. Argument: United States v. Harris, 959 F.2d 246 (D.C. Cir. 1992) is no longer good law in light of the U.S. Supreme Court’s ruling in United States v. O’Brien, 130 S.Ct. 2169 (2010), which held that the “machinegun” provision of 18 U.S.C. § 924(c)(1)(B)(ii) is not a “sentencing enhancement” but an element of the offense of “using or carrying” a machinegun in connection with a crime of violence; although Sec. 924 is silent as to whether knowledge that the firearm is capable of fully-automatic fire is a prerequisite for conviction under the statute, the court must presume mens rea is required where a statutory provision triggers a 30-year mandatory minimum sentence. Authors: Paul F. Enzinna and Evan N. Turgeon, Brown Rudnick LLP, Washington, DC.

United States v. Cotterman, 9th Cir., No. 09-10139, panel decision reported at 637 F.3d 1068 (2011), brief filed 9/19/11. Search and Seizure—Computers—Border Search. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Electronic Frontier Foundation in support of defendant-appellee’s petition for rehearing en banc. In a prosecution for production, possession and importation of child pornography and obscene materials, the panel held that a search of the defendant’s laptop that began at the border and ended two days later at a government forensic laboratory almost 170 miles away fell within the border search doctrine. Argument: Brief argues that the suspicionless, indefinite seizure of an individual’s laptop at the border raises constitutional concerns, and the suspicionless forensic search was outside the scope of a permissible investigatory detention and is abhorrent to the Fourth Amendment. Authors: David M. Porter, NACDL Amicus Curiae Committee, Sacramento, CA and Michael Price, Brennan Center for Justice, New York, NY.

United States v. Gupta, 2nd Circuit, No. 09-4738-cr, case below 650 F.3d 863 (2nd Cir. 2011). Sixth Amendment—Public Trial—Jury Selection. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers in support of appellant on rehearing en banc. Argument: The Sixth Amendment guarantees a public trial, including jury selection. Presley v. Georgia, 130 S.Ct. 721 (2010). The panel below found that trial court’s exclusion of the defendant’s family was intentional and in violation of Presley but applied the Second Circuit’s “triviality” exception. The court, sitting en banc, should abolish the “triviality exception” to constitutional errors as impermissibly arbitrary, subjective, standardless and unworkable. Author: Mark Fernich, New York, NY.

United States v. Jones, U.S. Sup. Ct., No. 10-1259, case below United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), brief filed 10/3/11, argument 11/8/11. GPS Surveillance--Search and Seizure--Warrant Requirement--Associational Privacy. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, Brennan Center for Justice at New York University School of Law, First Amendment Lawyers Association, District of Columbia Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and the Ohio Association of Criminal Defense Lawyers. Argument: The decision of the D.C. Circuit Court of Appeals should be affirmed. Warrantless GPS surveillance imposes an unacceptable burden on First Amendment associational rights, as well as Fourth Amendment privacy rights. The warrant requirement is minimally burdensome, as illustrated by the facts of this case. There is nothing about the nature of motor vehicles that justifies a blanket exception to the warrant requirement, and the automobile exception manifestly does not apply to warrantless GPS tracking. Authors: Jeffrey T. Green, co-Chair of NACDL’s Amicus Curiae Committee and partner at Sidley Austin LLP in Washington, DC; Susan J. Walsh of Vladeck, Waldman, Elias & Engelhard in New York City; Professor Sarah O’Rourke Schrup of the Northwestern University Supreme Court Practicum in Chicago, Ill.; and Executive Director Norman L. Reimer and Deputy Director of Public Affairs & Communications Ivan J. Dominguez of NACDL in Washington, DC.

United States v. Rubashkin, 8th Cir., Nos. 10-2487 & 10-3580, brief filed 1/13/11. Recusal of trial judge —Ex parte contact with prosecutors—Judicial participation in law enforcement activity and the plea bargaining process. Amicus curiae brief of the National Association of Criminal Defense Lawyers and Eight Law Professors in support of appellant. Argument: Per Morrison v. Olson (1988), a judge should not preside over a trial in which she was intimately involved with the prosecution in the events leading up to trial and should have disqualified herself from hearing defendant-appellant’s new trial motion when her pretrial participation in the prosecution belatedly came to light after defendant’s trial. Author: Prof. Ronald D. Rotunda, Chapman University School of Law, Orange, CA.

United States v. Tinklenberg, U.S. Sup. Ct., No. 09-1498, case below 579 F.3d 589 (6th Cir. 2009), brief filed 1/21/11, argument 2/22/11. Speedy Trial Act—Actual Delay. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondent. Argument: In the case below, the U.S. Court of Appeals for the Sixth Circuit held that a pretrial motion must actually cause a delay, or the expectation of a delay, of trial in order to create excludable time. United States v. Tinklenberg, 579 F.3d 589 (6th Cir. 2009). (Every other federal circuit which has addressed this issue appears to have held that the filing of any pretrial motion stops the Speedy Trial clock, regardless of whether the motion has any impact on the trial's start date.) To assess the effect of Tinklenberg in actual practice, amicus contacted defense attorneys in each of the district courts in the Sixth Circuit to inquire how Tinklenberg has affected their practice and how courts have managed pretrial motions under the Speedy Trial Act both before and after Tinklenberg. The survey found that the “actual delay” rule has not adversely affected the courts’ and parties’ management of the speedy trial clock. Authors: Dennis G. Terez and Melissa M. Salinas, Office of the Federal Public Defender, N.D. Ohio, Toledo.

White & Case LLP v. United States, U.S. Sup. Ct., No. 10-1147, decision below, In re Grand Jury Suboenas, 627 F.3d 1143 (9th Cir. 2010), brief filed 4/21/11. Grand Jury Subpoenas—Parallel Proceedings—Protective Orders. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Association of Criminal Defense Lawyers of New Jersey in support of the petition for certiorari. Argument: Grand jury investigations of business entities and civil actions against the grand jury target often proceed concurrently. The question in the case is whether a grand jury subpoena trumps a protective order issued by a judge in the civil case. There is a three-way split among federal circuit courts of appeal regarding the dilemma, but only the Ninth Circuit has adopted a per se rule which requires that civil protective orders give way to a grand jury subpoena with no judicial balancing of the interests involved. The Court should grant certiorari to clarify the circumstances in which judicial balancing is appropriate. Authors: Ross H. Garber, Charles L. Howard and Michelle L. Querijero, Shipman & Goodman LLP, Hartford, CT.

Williams v. Illinois, U.S. Sup. Ct., No. 10-8505, case below, 238 Ill.2d 125 (2010), brief filed 9/7/11, argument 12/6/11. Confrontation Clause—Expert Testimony—Scientific Evidence—DNA. Amicus curiae brief of the Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers. Argument: DNA laboratory analysts are not infallible. Developing a DNA profile of a suspect from biologic evidence collected in a criminal investigation is a complicated process requiring skill and judgment; making the prosecution expert who declares a DNA “match” available for cross-examination does not obviate the necessity of cross-examination of the lab analyst who actually did the benchwork developing the DNA profile. Authors: Sandra K. Levick and Catharine F. Easterly, Public Defender Service for the District of Columbia, Washington, DC.

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