2012 White Collar Amicus Briefs

Brooks v. United States, U.S. Sup. Ct., No. 12-218, decision below 681 F.3d 678 (5th Cir. 2012), brief filed 9/19/12. Defense Witnesses—Self-Incrimination—Immunity. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Walton v. United States, No. 12-5847. Question presented: Under what circumstances may a trial court grant, or compel the prosecution to grant, use immunity to a witness who has essential exculpatory evidence unavailable from other sources but who invokes his Fifth Amendment privilege against self-incrimination? Author: John D. Cline, San Francisco, CA.

Gabelli v. Securities and Exchange Commission, U.S. Sup. Ct., No. 11-1274, decision below 653 F.3d 49 (2nd Cir. 2011), brief filed 11/16/12. Statutes of Limitations—Statutes of Repose--Penalty Actions—Prosecutorial Abuse. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioners. Question presented: Where Congress has not enacted a separate controlling provision, does the government's claim first accrue for purposes of applying the five-year limitations period under 28 U.S.C. § 2462 when the government can first bring an action for a penalty? Argument:  The statute of limitations in government penalty actions is not extended by a discovery rule. The Second Circuit’s rule will hamper the ability of individuals and corporations to arrange their affairs. And repose for penalty actions supplies an important check against abuses of enforcement power. Authors: Paul R. Q. Wolfson, Shirley Cassin Woodward, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Joshua L. Dratel, New York, NY.

Kaley v. United States, U.S. Sup. Ct., No. 12-464, decision below 677 F.3d 1316 (11th Cir. 2011), brief filed 11/14/12. Forfeiture—Due Process—Right to Counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association in support of petition for writ of certiorari. Question presented: Whether the Supreme Court should take the appeal and clarify that” a grand jury’s probable cause determination does not relieve the government of any of its usual burden, when it seeks to restrain or seize property, of showing at a prompt, adversarial hearing that it has good cause to do so.” (Br. at 2.) Argument: “Whether effected via criminal-forfeiture provisions, or through parallel civil-forfeiture proceedings, restraining defendants assets during a prosecution implicates a structural right and risks inflicting unknowable injustices….The circuits holding that a grand jury’s ex parte probable cause determination is unassailable have unduly compromised the structural right to counsel.” (Br. at 2 & 5.) Author: University of Miami School of Law Professor Ricardo J. Bascuas, Miami, FL.

King v. United States, U.S. Sup. Ct., No. 11-959, decision below 660 F.3d 1071 (9th Cir. 2011), brief filed 3/7/12. False Statements – Federal Jurisdiction. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Cato Institute and the Texas Public Policy Foundation in support of the petition for certiorari. Question presented: Should an individual face federal criminal liability under 18 U.S.C. §1001 for a false statement made to a person unconnected to the federal government at a time when no federal investigation exists merely because the statement concerns an issue over which the federal government may exercise discretionary regulatory authority? Argument: 18 U.S.C. § 1001 criminalizes the knowing and willful making of materially false statements in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States. Judicial expansions of §1001 have invited prosecutors to stretch the statute beyond its proper reach and an improperly broad definition of a “matter within the jurisdiction” clause presents significant risks of overcriminalization and misuse, resulting in wrongful convictions. Authors: Andrew T. Wise and Kevin G. Mosley, Miller & Chevalier Chtd., Washington, DC.

Pickering v. Colorado, U.S. Sup. Ct., No. 11-870, case below, ___ P.3d ___, 2011 WL 4014400 (Colo. 9/12/11), brief filed 02/13/12. Defense – Self-Defense – Intent – Due Process. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: Element-negating defenses, such as self-defense, often negate the mens rea needed to sustain a conviction, and due process should require the prosecution to disprove the defense beyond a reasonable doubt. Authors: Timothy O’Toole and Jeffrey Hahn, Miller & Chevalier Chtd, Washington, DC.

Rubashkin v. United States, U.S. Sup. Ct., No. 11-1203, decision below 655 F.3d 849 (8th Cir. 2011). Judicial Misconduct—Motion for New Trial. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Aleph Institute in support of the petition for certiorari. Argument: Extensive ex parte pretrial contacts between the trial judge in the prosecutor in planning the defendant’s arrest and prosecution, coupled with the judge’s failure to disclose those contacts, raise fundamental substantive and procedural due process issues. The court of appeals’ requirement that grounds for granting a new trial based on newly-discovered evidence of judicial misconduct would probably lead to an acquittal was erroneous and the decision below should be reversed. Author: Nathan M. Crystal, Crystal & Giannoni-Crystal, LLC, Charleston, SC.

Shaygan v. United States, U.S. Sup. Ct., No. 12-44, case below 652 F.3d 1297 (11th Cir. 2011), reh’g en banc denied, 676 F.3d 1237 (11th Cir. 2012); brief filed 8/10/12. Attorney’s Fees—Hyde Amendment—Federal Court—Right to Counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: Fee awards under the Hyde Amendment, which allow acquitted defendants to recover some of the financial damage they incur from having faced a criminal prosecution undertaken by the government which has been shown to be “vexatious, frivolous, or in bad faith,” are a needed check against prosecutorial misconduct. The Hyde Amendment authorizes an award of attorney’s fees even where probable cause existed to support the filing of criminal charges; the Eleventh Circuit’s cramped interpretation of the statute will have a chilling effect on zealous advocacy, endangering defendants’ Sixth Amendment Right to Counsel. Authors: Paul R.Q. Wolfson, Shirley Cassin Woodward and Susan S. Friedman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, and Jeffrey T. Green, NACDL, Washington, DC.

Smith v. United States, U.S. Sup. Ct., No. 11-8976, case below 651 F3d 30, brief filed 8/27/12. Conspiracy—Defenses—Burden of Proof—Mens Rea. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: A defendant’s withdrawal from a conspiracy during the statute of limitations period negates and element of a conspiracy charge such that, once a defendant meets his burden of production that he did withdraw, the burden of proof rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period. The requirement that the prosecution prove the defendant’s guilt beyond a reasonable doubt is a defendant’s foremost safeguard against a wrongful conviction. The defendant’s withdrawal defense negated the “participation” element of the conspiracy, and relieving prosecutors of their burden to prove a defendant’s mental state substantially undermines the fairness of the trial by diluting one of the most important protections against wrongful convictions. Authors: Timothy P. O’Toole and Jeffrey Hahn, Miller & Chevalier, Chartered, Washington, DC.

Southern Union Co. v. United States, U.S. Sup. Ct., No. 11-94, case below 630 F.3d 17 (1st Cir. 2010), brief filed 1/19/12. 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 in support of the petitioner, Southern Union Co. Argument: In cases where the defendant is a corporation, the penalty of conviction is necessarily a fine, because a corporation cannot be incarcerated; unlike most criminal cases, the fine is not merely part of or an alternative to the penalty, it is the penalty. 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 and Mark D. Herman, Covington & Burling LLP, Washington, D.C., et al. NACDL’s amicus brief in support of the petition for certiorari, filed 8/19/11, is here.

United States v. Alvarez, U.S. Sup. Ct., No. 11-210, case below, 617 F.3d 1198 (9th Cir. 2010), brief filed 1/20/12. Overcriminalization—First Amendment—“Stolen Valor Act”. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondent Xavier Alvarez. Argument: The Stolen Valor Act of 2005’s false claims provision, 18 U.S.C. §704(b), which makes it a crime when anyone "falsely represents himself or herself, * * * verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States,” is constitutionally overbroad because it punishes speech protected under the First Amendment such as innocent mistakes, harmless misrepresentations, purely private speech, jokes, satire, and dramatic claims. Moreover, it lacks a mens rea requirement and the supposed harm it protects against is not supported by a substantial government interest; as such, it is a classic example of federal overcriminalization. Authors: Michael V. Schafler and Jeffery M. Chemerinsky, Caldwell Leslie & Proctor PC, Los Angeles, CA.

United States v. Ring, D.C. Cir., No. 11-3100, brief filed 3/14/12. Fraud—Bribery—Honest Services. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Center for Competitive Politics in support of appellant. Argument: In Skilling v. United States (2010), the Supreme Court held that to prove “honest services” fraud under 18 U.S.C. §1346, the government must prove bribery and quid pro quo—an exchange of a thing of value and an official act taken in response. In this case, the district court’s instructions read the bribery requirement out of the statute, permitting the jury to convict the appellant without any showing of quid pro quo, but only a unilateral “intent to influence.” The lower court’s interpretation of the statute threatens to chill, even criminalize, a broad range of innocent conduct, particularly campaign contributions. Authors: Paul F. Enzinna and Evan N. Turgeon, Brown Rudnick LLP, Washington, DC, et al.

Walton v. United States, No. 12-5847, decision below 681 F.3d 678 (5th Cir. 2012), brief filed 9/19/12. Jury Instructions—Willful Blindness. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Brooks v. United States, No. 12-218. Question presented: Given the requirements of Global-Tech Appliances, Inc. v. SAB, S.A., 131 S.Ct. 2060 (2011), how should the jury be instructed on “willful blindness” in a criminal case? Author: John D. Cline, San Francisco, CA.

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