2011 White Collar Amicus Briefs

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 Ct., No. 11-91, case below 419 Fed.Appx 190 (3rd Cir. 2011) (unpublished), brief filed 8/19/11.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.

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 Quintin Chatman, Ivan J. Dominguez, Tiffany Joslyn, Jack King, and Norman L. Reimer, all at NACDL.

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 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. 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. 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.

White & Case LLP v. United States, U.S. Sup. Ct., No. 10-1147, decision below, In re Grand Jury Subpoenas, 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, Hartford, CT.

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