2008 White Collar Amicus Briefs

Caperton v. A.T. Massey Coal Co., U.S. Sup. Ct., No. 08-22, opinion below 2008 WL 918444 (W.Va. 2008), cert. granted 11/14/08, brief filed 01/05/09. Judicial Elections—Judicial Ethics—Recusal. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petitioner. Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60 percent of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. Question presented: Whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment. Author: Norman L. Reimer, National Association of Criminal Defense Lawyers, Washington, D.C. On brief: Pamela Harris, O’Melveny & Myers, Washington, D.C.

Flores-Figueroa v. United States, U.S. Sup. Ct., No. 08-108, case below 274 Fed. Appx. 501 (8th Cir. 2008), brief filed 12/22/08. Mens Rea —Aggravated Identity Theft. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Question Presented: Whether a statute’s specified mens rea requirement extends to all elements of the offense, the application of which in this case would resolve whether, to prove aggravated identity theft under 18 U.S.C. § 1028A(a)(1), the government must show that the defendant knew that the means of identification he used belonged to another person. Argument: The Court should adopt the Model Penal Code Rule (§ 202(4) (1985)) that a specified mens rea requirement extends to all material elements of a statute unless a contrary purpose plainly appears, and that the rule of lenity requires reading the statute to require knowledge of all elements of the crime. Authors: Sri Srinivasan, Irving L. Gornstein, Justin Florence, O’Melveny & Myers LLP, Washington, DC, and Pamela Harris, Amicus Committee Co-Chair, National Association of Criminal Defense Lawyers, and O’Melveny & Myers LLP, Washington, DC.

Kay v. United States, U.S. Sup. Ct., No. 07-1281. Indictment—Rule of lenity. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for a writ of certiorari. Questions presented: 1. When an indictment omits an element of the offense, must it be dismissed, or may such an error instead be excused as harmless? (The Court granted certiorari to decide this question, but did not resolve it, last Term in United States v. Resendiz-Ponce, 127 S. Ct. 782, 785-86 (2007).) 2. When the text, structure, and legislative history of a criminal statute are all ambiguous, is the rule of lenity applicable, or instead is that principle limited merely to cases in which the court can only “guess” at Congress’s intent? Authors: John D. Cline and Peter E. Davids, Jones Day, San Francisco, CA.

United States v. Ionia Management, S.A., U.S. Court of Appeals for the Second Circuit, No. 07-5801-CR, brief filed 6/6/08. Vicarious criminal liability—Jury instructions—Respondeat superior doctrine. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the Association of Corporate Counsel, the National Association of Manufacturers, the U.S. Chamber of Commerce and the Washington Legal Foundation. Appeal from the criminal conviction of a shipping company for unlawful actions of the crew of one of its ships, over which the company had no direct control while on the high seas. Argument: Assignment of vicarious corporate criminal liability through the application of the civil law doctrine of respondeat superior, in which an employer may be held for wrongful actions of his employee in some circumstances, was authorized neither by statute nor precedent. Authors: Andrew Weissmann, et al., Jenner & Block LLP, New York, NY. 

United States v. Nacchio, 10th Cir., No. 07-1311, 519 F.3d 1140 (10th Cir. 2008), pet. rehearing en banc granted 7/30/08; oral argument 9/25/08. Expert witnesses. NACDL amicus curiae brief in support of appellant Joseph P. Nacchio addressing the district court's refusal to allow the defendant to call an expert witness. On March 17, 2008, the court of appeals reversed the defendant's conviction finding that the exclusion of the defense expert was prejudcial error; the government petitioned for rehearing before the full court of appeals. Authors: Andrew H. Schapiro and Evan P. Schultz, Mayer Brown, New York and Washington; David B. Smith, English & Smith, Alexandria, VA. NACDL amicus curiae brief in support of appellant en banc filed 9/03/08.Author: Andrew H. Schapiro, Mayer Brown LLP, New York.

United States v. Reyes, 9th Cir., No. 08-10047, brief filed 9/12/08. Securities fraud—Mens rea—Prosecutorial misconduct—Options backdating. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Evidence alone that defendant signed options grants to other people—and not to himself—that were improperly dated is insufficient to establish the requisite mens rea to have “willfully” violated the criminal securities fraud laws. The only government witness to the alleged deception was a low level finance department employee who testified that she did not know that the options grants had been backdated and who recanted her testimony after trial. The brief also argues also that the facts of this case fail to establish even the “materiality to investors” requirement for a finding of civil liability; the evidence being insufficient as a matter of law, the conviction should be vacated and remanded with directions to enter a verdict of acquittal. Authors: Donald Falk, et al. , Mayer Brown LLP, Palo Alto, CA.

United States v. San Diego Gas & Electric Co., U.S. Ct. App. 9th Circuit, brief filed 11/7/08. Amicus curiae brief of the Washington Legal Foundation and the National Association of Criminal Defense Lawyers in support of defendant-appellees urging affirmance. Argument: Defendants were unjustly prosecuted and convicted for allegedly violating work practice standards promulgated under the Clean Air Act regarding removal and disposal of asbestos-containing material found in multi-layer pipe wrap, but no evidence was presented that a single asbestos fiber was released into the environment. Amici urge the court to affirm the district court’s order granting a new trial. Authors: Daniel J. Popeo, Paul D. Kamenar and Richard A. Samp, Washington Legal Foundation, Washington, DC.

United States v. Svete, 11th Cir., No. 05-13809, on rehearing en banc. Mail fraud—Standard of proof. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Appellants on rehearing en banc. Argument: Requiring proof beyond a reasonable doubt that a defendant created a scheme or artifice to defraud “a person of ordinary prudence and comprehension” demarcates the boundary between conduct that is merely unethical and conduct that is unlawful and worthy of criminal prosecution. Authors: Paul N. Monnin, DLA Piper US LLP, Atlanta, GA and Donald F. Samuel, Garland Samuel & Loeb PC, Atlanta, GA.

United States v. Tomko, 3rd Cir., No. 05-4997, on reh’g 498 F.3d 157, brief filed 10/1/08. Sentencing—White collar crime—Federal Sentencing Guidelines—Probation. Amicus curiae brief of the National Association of Criminal Defense Lawyer and Federal Public and Community Defenders of the Third Circuit in support of appellee on rehearing en banc. Argument: District court’s sentence of probation, home confinement and alcohol treatment was appropriate in this tax evasion case. The brief addresses in detail the failure of the Sentencing Commission to comply with statutory mandates relative to probation, as applied in particular to tax and other white collar cases, concluding that under the Supreme Court's recent decisions in Gall and Kimbrough judges should be especially free to reject the guidelines' excessive reliance on imprisonment and instead to grant a great deal more probationary sentences than has been the case in the last 20 years. Numerous authors.

Yeager v. United States, U.S. Sup. Ct., No. 08-67, etc., (consolidated cases) cert. granted 11/14/08. Double Jeopardy Clause—Collateral estoppel. Amicus curiae brief of the National Association of Criminal Defense Lawyers and 11 Criminal Law Professors in support of the petitions for writ of certiorari. Question: Whether, consistent with the Double Jeopardy Clause, a jury’s failure to reach a verdict on one count of a multi-count indictment can be “weighed” against an acquittal on another factually-related count in a manner that diminishes the acquittal’s collateral estoppel effect for future prosecutions. Authors: Kevin C. Newsome, et al., Bradley Arant Rose & White LLP, Birmingham, AL.

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