2010 White Collar Amicus Briefs

Chevron Corp. v. Berlinger, 2nd Cir., Nos. 10-1918 & 10-1966, brief filed 6/23/10, argument scheduled 7/14/10. Subpoenas—Privileges—Media. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellees Rodrigo Perez Pallares and Ricardo Reis Veiga urging affirmance of the district court’s order. Chevron Corp. and filmmaker Joseph Berlinger are involved in ongoing litigation dating back to 2003, when the Ecuadorian plaintiffs filed a class action lawsuit in Ecuador. Also in 2003, the Ecuadorean government filed criminal charges against Chevron and two of its lawyers, Pallares and Veiga. In 2005, a lawyer for the plaintiffs hired independent filmmaker Joseph Berlinger to make a documentary of the litigation from the plaintiff’s point of view, amassing some 600 hours of outtake footage not used in the final film, Crude. Pallares and Veiga seek to subpoena the outtakes in support of their defense in a criminal trial in Ecuador; Ballinger asserts in federal court that his outtakes are protected by a “reporter’s privilege” (which does not exist per se in federal court, see, e.g., In re: Grand Jury Subpoena (Judith Miller), 397 F.3d 964 (D.C. Cir. 2005)). Argument: Assuming arguendo that Berlinger has a sufficient nexus to newsgathering to assert whatever journalists’ privilege does exist, it does not outweigh Pallares’s and Veiga’s due process right to obtain non-confidential information helpful to their defense in criminal proceedings. Because the subpoena is patently reasonable under the circumstances, the court of appeals should affirm the district court’s order enforcing the subpoena. Authors: John D. Cline and K.C. Maxwell, San Francisco, CA. 

United States v. Berger, 9th Cir., No. 08-50171, brief filed 01/21/10. Federal sentencing guidelines—Securities fraud—Loss calculation. NACDL amicus curiae brief in support of petition for rehearing or rehearing en banc. Argument: A defendant should not be punished based on victims’ losses that were not proximately caused by the defendant’s wrongdoing. For example, losses resulting from a general downturn in the relevant market (e .g., securities, real estate, currency), unforeseeable intervening events, or manipulation of the time period used by prosecutors to compute victims’ losses. The panel decision misapprehends the Supreme Court’s decision in Dura Pharmaceuticals, Inc. v. Broudo (2005), causing it to reject decisions of the Second and Fifth Circuits citing Dura in discussing loss causation in securities fraud cases; if left uncorrected, the panel opinion will effect a circuit split on an issue as to which there is no substantive disagreement and deter sentencing courts from adopting a reasonable economic approach to calculating loss under the federal sentencing guidelines in securities fraud cases. Authors: William J. Genego, Nasatir, Hirsch, Podberesky & Genego, Santa Monica, CA, Evan Jenness, Santa Monica, CA, Sheryl Gordon McCloud, Seattle, WA.

United States v. Cioni, 4th Circuit, No. 09-4321, brief filed 8/5/10. Double Jeopardy—Computer Fraud and Abuse Act—Stored Communications Act. Amicus curiae brief of the Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers in support of appellant. Argument: When a person accesses another’s stored email without authorization, that single act may not be the basis for both an underlying misdemeanor and a felony enhancement. Ordinarily, first offenses under the Computer Fraud and Abuse Act and the Stored Communications Act are misdemeanors, unless committed for, among other things, in furtherance of another crime. In this case, the defendant’s CFAA offense, unauthorized access to stored email, was not committed “in furtherance of” an SCA violation, because both convictions were based on the same conduct. The government’s attempt to count the same conduct as both an underlying misdemeanor and as the basis for a felony conviction violates the Double Jeopardy Clause. Authors: Lee Tien, Jennifer Stisa Granick and Marcia Hofmann, Electronic Frontier Foundation, San Francisco, CA and Thomas Maher, North Carolina Office of Indigent Services, Durham, NC.

United States v. Kerik, 2nd Cir., No. 10-0865, brief filed 10/04/10. Sentencing—Public Statements—First Amendment—Right to Remain Silent—Fifth Amendment. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant-appellant. Argument: Punishing speech critical of public officials and public conduct without compelling justification erodes core constitutional values, and punishing a criminal defendant for the speech of his supporters was an improper ground for increasing the defendant’s sentence and chills critics’ First Amendment rights. Likewise, punishing the defendant for failure to disavow statements by his supporters criticizing the prosecution in his case was also an improper ground for increasing his sentence, and impinges on the defendant’s Fifth Amendment right to remain silent. Authors: Susan E. Brune and Mary Ann J. Sung, Brune & Richard LLP, New York, New York.

United States v. Treacy, 2nd Cir., No. 09-3939-cr, brief filed 2/4/10. Sixth Amendment/Confrontation Clause—Reporter’s Privilege. 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. Argument: Newspaper reporter was called by government to explain quotes attributed to defendant regarding backdating of stock options, and the trial court overruled the reporter’s motion to quash his subpoena on reporter’s privilege ground. However, when defendant sought to cross-examine reporter, the court deferred to the reporter’s claim of privilege and dictated a few open-ended questions the court would permit defense counsel to ask. The process denied defendant’s fundamental Sixth Amendment right to confront the witness and challenge the government’s evidence. Authors: Joel B. Ruden, New York, NY, and Richard D. Willstatter, Green & Willstatter, New York, NY.

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