Amicus Briefs Filed in 2018

The Amicus Curiae Committee’s mission is to provide amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal justice system as a whole. Membership in NACDL is not a prerequisite either for amicus assistance from the Committee, or for authorship of an NACDL amicus brief.

 

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Allah v. Milling

Brief of Cross-Ideological Group Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari), including Cato, NACDL, and numerous others listed in the appendix.


Argument: Qualified immunity regularly denies justice to those deprived of federally guaranteed rights. Official misconduct is a pressing public concern, and Section 1983 liability is often the law’s only mechanism for remedying it. Qualified immunity regularly excuses law enforcement for unconstitutional misconduct. Qualified immunity imposes prohibitive and unjustified costs on civil-rights litigants. Qualified immunity harms law enforcement officials by eroding public trust and undermining the rule of law.

Alvarez v. City of Brownsville

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of George Alvarez.


Argument: Today’s justice system is a system of pleas, so disclosure of exculpatory information in plea bargaining is imperative. Plea bargaining dominates modern criminal justice. Empirical data shows that many innocent defendants plead guilty, often to avoid the risks trial poses. Due process requires that the government disclose exculpatory information before a defendant pleads guilty. The principles underlying Brady apply in all criminal cases, not just the minority of cases that end in a trial. Ruiz does not foreclose defendants’ constitutional right to exculpatory information during plea bargaining. Numerous other courts recognize the right to exculpatory information before pleading guilty. The right to exculpatory information in plea bargaining is a logical corollary of the right to effective assistance of counsel. The government’s counterarguments are unpersuasive. The Court should correct its course on this critical constitutional right.

Arjune v. New York

Brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the Immigrant Defense Project as Amici Curiae in Support of Petition (On Petition for a Writ of Certiorari to the New York Court of Appeals).


Argument: This Court should grant certiorari to clarify counsel’s constitutional obligation under Flores-Ortega to consult with criminal defendants regarding their right to appeal. This Court has held that criminal defendants have a constitutional right to effective assistance of counsel during appeals as of right. Professional Rules of Conduct provide a template for protecting the Sixth Amendment rights of defendants like Mr. Arjune who must obtain separate counsel to pursue an appeals and must be followed to ensure effective assistance of counsel. Mr. Arjune’s counsel flagrantly violated the foregoing principles and abandoned Mr. Arjune on appeal. The Court should grant certiorari to clarify that a notice provided by the trial court clerk is not a substitute for effective assistance of counsel. The Court should grant certiorari to clarify the relationship between Flores-Ortega  and Padilla regarding an obligation to advise noncitizen defendants of the potential impact of an appeal on immigration status.

Bane v. United States

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Reversal


Argument: Honeycutt pronounced a new substantive rule that applies retroactively on collateral review. Honeycutt changed the landscape of criminal forfeiture. Honeycutt’s rule is substantive and therefore applies retroactively on collateral review. A criminal forfeiture order entered without authority of law is a fundamental error warranting extraordinary relief. The government’s seizure of property without lawful authority violates fundamental principles of due process. Forfeiture orders based on joint and several liability violate the Eighth Amendment when the defendant received no proceeds from the crime. Permitting a forfeiture order entered without legal authority to stand serves no legitimate public interest.

Brown v. Muniz

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petition for Rehearing and Rehearing En Banc.


Argument: The panel opinion guarantees that victims of prosecutorial misconduct will be denied justice for no fault of their own. The panel decision punishes habeas petitioners for not knowing what they could not know. Under the panel rule, the stringent second-and-successive standard applies to later-brought Brady claims even if the exculpatory evidence was not known at the time of the initial petition. The panel opinion creates perverse incentives for both prosecutors and petitioners’ counsel. The panel opinion punishes petitioners for the misconduct of prosecutors, and creates incentives for prosecutors to continue to withhold evidence until an initial federal petition is on the books. Such an unjust rule – one that punishes victims of prosecutorial misconduct for the mistakes of the perpetrators – could not have been what the drafters of the Antiterrorism and Effective Death Penalty Act (AEDPA) intended.

Cabrera-Rangel v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari).


Argument: Neither Watts nor procedural obstacles hinder the Court’s consideration of petitioner’s Sixth Amendment claim. Petitioner’s case casts in stark relief the grave constitutional concerns that can arise from a judge’s use of acquitted conduct at sentencing. This case presents no procedural obstacles. The Fifth Circuit and other courts of appeals have rejected prior Sixth Amendment challenges in deference to Watts rather than on the merits. The lower courts’ deference to Watts conflicts with this Court’s Sixth Amendment jurisprudence. Several jurists (including Justices of this Court), practitioners, and scholars have written disapprovingly of the overextension of Watts. The broad language of 18 U.S.C. § 3661 and the Sentencing Guidelines notwithstanding, the Sixth Amendment forbids extending a sentence based on acquitted conduct.

Campanelli v. Illinois

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for a Writ of Certiorari to the Supreme Court of the State of Illinois).


Argument: The Illinois Supreme Court’s ruling subverts indigent defendants’ fundamental rights to conflict-free counsel, while misunderstanding the practical realities facing public defenders’ offices. This Court has consistently declared that fundamental constitutional rights may not be abridged based on an inability to pay. The Illinois Supreme Court’s carve-out of public defenders from ethical rules applicable to private law firms deprives indigent defendants of their fundamental rights to conflict-free counsel. The practicalities of working in public defenders’ offices demand equally exacting standards as those governing private law firms. The resources of public defenders’ offices nationwide are stretched thin by staggering caseloads. The practical realities of working in public defenders’ offices promote cooperation and collaboration, not an “adversary tendency.”

Carty v. Texas

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari).


Argument: The Texas court’s prejudice ruling on the Brady violations disregards the realities of criminal trial practice. Sound criminal trial practice discourages exploratory cross-examination. Impeachment is critical to effective cross-examination. The Texas court’s ruling on the Caston Deal ignores sound trial practice. The Texas court’s ruling on the prior inconsistent statements is similarly flawed. The Texas court’s errors reflect broader confusion over how to analyze prejudice from Brady violations. The Texas court’s refusal to conduct cumulative error analysis ignores the real-world interactions among multiple errors. Multiple constitutional violations may combine to render a trial fundamentally unfair. Cumulative error analysis is imperative for Brady and Strickland violations.

Chavez-Meza v. United States

Brief of National Association of Criminal Defense Lawyers and National Association of Federal Defenders as Amici Curiae in Support of Petitioner.


Argument: The denial of a proportional sentence reduction without explanation undermines the purpose of Section 3582(c)(2) and the sentencing regime. Section 3582(c)(2) is intended to remedy “systemic injustice” and to provide “systemic relief.” In practice, courts typically grant proportional reductions and provide reasons when they do not. Denials of proportional reductions without explanation create an appearance of arbitrariness. The anchoring weight of the Guidelines requires district courts to explain decisions to deny proportional reductions. The Guidelines range anchors the court’s weighing of the Section 3553(a) factors at original sentencing. A revised Guidelines range anchors the court’s weighing of the Section 3553(a) factors in deciding a sentence-reduction motion. The depth of reasoning will depend on the circumstances, but no reasoning is not enough.

Gamble v. United States

Brief of Amici Curiae National Association of Criminal Defense Lawyers, National Association of Federal Defenders, and Texas Criminal Defense Lawyers Association in Support of Petitioner.


Argument: The foundations of the separate sovereigns exception have eroded. The purview of federal criminal law has expanded since United States v. Lanza. Federal and state law enforcement often work jointly in cooperation.

Garvin v. New York

Brief for Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers Supporting Petitioner (On Petition for a Writ of Certiorari to the New York Court of Appeals).


Argument: New York’s persistent felony offender sentencing scheme violates Apprendi. Apprendi applies broadly to a host of sentencing schemes, as multiple states have recognized. The statute’s plain language and history confirm that it mandates impermissible judicial factfinding based on a preponderance of the evidence. Prior felony conviction are not the “sole determinant” of a persistent non-violent felony offender sentence. Sentencing judges engage in the impermissible factfinding in practice. The New York Court of Appeals’ reasoning does not square with Apprendi and its progeny.

Garza v. Idaho

Brief of the Idaho Association of Criminal Defense Lawyers and the National Association of Criminal Defense lawyers as Amici Curiae in Support of Petitioner.


Argument: A presumption of prejudice is appropriate because defendants often succeed on appeal despite waivers. Defendants often succeed on appeal based on issues beyond the scope of their particular waivers. Defendants often succeed on appeal even on claims within the scope of a waiver. The decisions below ignores the potential for meritorious claims even in cases involving appeal waivers. Postconviction proceedings are not an adequate substitute for direct appellate review. Claims that are not raised on direct appeal generally cannot be raised in postconviction proceedings. Higher standards apply in postconviction proceedings. There is no constitutional right to counsel in postconviction proceedings.

Grubbs v. Brown

Brief of Amici Curiae New York State Defenders Association, New York State Association of Criminal Defense Lawyers, National Association for Public Defense, National Association of Criminal Defense Lawyers, the Bronx Defenders, Brooklyn Defender Services, and New York Criminal Bar Association in Support of Plaintiffs-Appellants.


Argument: The District Court’s ruling minimizes and overlooks the Sixth Amendment’s guarantee of open and uninhibited attorney-client communications. The decision overlooks the critical pre-arraignment consultation between attorney and client. Adequate representation in arraignments requires an attorney to build trust with his client within minutes of their first meeting. The advice provided during pre-arraignment consultation informs decisions with far-reaching consequences. The decisions disregards how the presence of video cameras in attorney-client consultation booths prevents free and open communication in violation of attorney’s ethical obligations, the Sixth Amendment and the 1999 Settlement Order. The decision ignores the legitimate fears of attorneys and their clients that the recordings may be abused. The decision gives inadequate justification for the presence of video cameras in attorney-client consultation booths.

Gundy v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.


Argument: The increasing criminalization of conduct and federalization of criminal law--exacerbated by the widespread blanket criminalization of federal administrative regulations--magnify the need to enforce the constitutional limits on delegation. Delegations of the legislative power to make criminal laws must provide constraints more meaningful that an “intelligible principle.” An “intelligible principle” must do more than identify the subject matter for delegated lawmaking. The delegation here cannot be sustained under any standard.

Gutierrez v. Sessions

Brief of Amici Curiae Immigrant Defense Project, Detention Watch Network, Heartland Alliance’s National Immigrant Justice Center, Immigrant Legal Resource Center, National Association of Criminal Defense Lawyers, National Immigration Law Center, and National Immigration Project of the National Lawyers Guild in Support of Petitioner’s Petition for Rehearing and Rehearing En Banc.


Argument: Amici urge the Court to grant rehearing or rehearing en banc because the panel’s decision is at odds with Moncrieffe v. Holder, 569 U.S. 184 (2013). Amici agree with Ms. Gutierrez that when the record of a prior conviction under a divisible statute is ambiguous, the conviction should not bar eligibility for relief from removal. Amici submit this brief to raise three additional points. First, the panel’s decision unfairly bases relief eligibility on the happenstance of whether a prior criminal court creates or maintains the records necessary to disprove a disqualifying conviction. The noncitizen has no control over these criminal court practices but, under the panel’s decision, could face ineligibility for relief because of them. Second, the panel’s decision ignores that noncitizens—who are often without counsel and detained—face far greater impediments to obtaining and submitting the required conviction records than the Department of Homeland Security (DHS). Third, the panel’s decision has a broad impact: it operates to categorically bar relief for asylum seekers, victims of crime, and those—like Ms. Gutierrez—with longstanding residence and deep family ties in this country.

Hughes v. United States

Brief Amici Curiae of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in Support of Petitioner.


Argument: The Freeman concurrence leads to unpredictable results because parties rely on the Sentencing Guidelines but do not draft plea agreements with retroactive resentencing in mind. The Sentencing Guidelines are key to all pleas because prosecutors must make them central to their decisions. Defendants use their limited plea leverage to address pressing, current issues. Defendants almost universally plead guilty. Defendants who plead prioritize current issues over uncertain future eventualities like retroactive Sentencing Guidelines. Rule 11(c)(1)(C) plea agreements differ by jurisdiction. Variations in plea agreements lead to different resentencing outcomes for similarly-situated defendants. The Freeman concurrence leads to inequitable results because eligibility for resentencing does not necessarily reflect the parties' actual intent. The Freeman concurrence leads to inconsistent results for defendants with similar plea agreements because there is confusion about the level of specificity required. Freeman should be modified to provide a clear, administrable rule. Justices have recognized the importance of clear, administrable rules rather than creating 4-1-4 split decisions. The proper rule is for all Rule 11(c)(1)(C) defendants to be resentenced when a guidelines range implicated by their plea is amended retroactively. Congress or the United States Sentencing Commission can always revise this rule if desired.

In re Eric G. Zahnd

Brief of Amici Curiae National Association of Criminal Defense Lawyers (NACDL) and the Missouri Association of Criminal Defense Lawyers (MACDL).


Argument: In the criminal justice system, non-party participants and letter writers, as well as other witnesses deserve a certain level of protection to be free from prosecutorial use of abusive process, free from coercive threats and intimidation, and free from gratuitous retaliation for refusal to accede to those prosecutorial threats and intimidation. In this case, Respondent Eric G. Zahnd holds a special place of trust as a prosecutor. He countenanced and participated in abusive process, coercive threats and reprisal for failure to capitulate to his threats. NACDL and MACDL take no position regarding the appropriate level of sanction, but suggest that a finding of ethical violation of Rules 4-4.4(a), 4-5.1(c) and 4-8.4 is appropriate in this circumstance to both discipline Respondent Zahnd, and also to deter other attorneys, especially prosecutors, from engaging in similar conduct going forward in order to protect future non-party witnesses and letter writers from fear of such abuses; which in turn, protects defendants’ rights to due process and fair proceedings. Discipline in this case is necessary to accomplish the goals of the disciplinary process to protect the public and maintain the integrity of the legal profession. In re McMillin, 521 S.W.3d 604, 610 (Mo. banc 2017).

Koons v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners.


Argument: Section 3553(e) cooperators are eligible for § 3582(c)(2) sentence reductions because such cooperators are not subject to statutorily required mandatory minimum sentences. Alternatively, § 3553(e) cooperators are eligible for § 3582(c)(2) sentence reductions under USSG § 1B1.10(c). Alternatively, § 3553(e) cooperators are eligible for § 3582(c)(2) sentence reductions because district courts necessarily consult the offense-specific guideline range at sentencing.

Lacaze v. Louisiana

Brief of Amici Curiae Louisiana Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers, and 32 Other Associations of Criminal Defense Lawyers in Support of Petitioner (On Petition for a Writ of Certiorari to the Supreme Court of Louisiana).


Argument: This Court should resolve the inconsistent application of McDonough resulting from a well-established circuit split to ensure criminal defendants receive strong and uniform protections against juror bias. This Court has never clarified McDonough’s application in criminal cases. Courts applying the McDonough test for juror bias in the criminal context have largely ignored the constitutional divide between criminal and civil defendants. Courts’ application of McDonough ignores these nuances, resulting in disparate and inadequate protections for criminal defendants. The Louisiana Supreme Court wrongly deprived Mr. Lacaze of his Sixth Amendment right to an impartial jury. Against the backdrop of criminal juries’ remarkable power and unique responsibilities, McDonough requires that a new trial be granted when (1) a juror fails, intentionally or unintentionally, to answer honestly a material question on voir dire; and (2) the truthful answer provides a basis upon which a reasonable judge would have struck the juror for cause. In a system where criminal defendants face the most extreme penalties available under the law, allegations of jurors’ bias must be thoroughly scrutinized to ensure they are impartially carrying out their grave responsibility: to fairly and accurately assess an accused’s guilt or innocence.

Lagos v. United States

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner.


Argument: Section 3663A(b)(4) does not authorize restitution of victim’s attorneys’ fees. The statutory phrase “child care, transportation, and other expenses” does not encompass attorneys’ fees, which are completely different in nature and magnitude from expenses for child care and transportation. The word “expenses” without any reference to attorneys’ fees, does not encompass attorneys’ fees.

Lucio-Rayos v. Sessions

Brief of Amici Curiae Immigrant Defense Project, American Immigration Lawyers Association, National Association of Criminal Defense Lawyers, and National Immigrant Justice Center in Support of Petitioner (on petition for a writ of certiorari).


Argument: The Court should intervene to establish a uniform rule governing the many contexts in which relief eligibility turns on a past conviction. Unless the Court intervenes, relief eligibility will vary based on differences and unreliability in state court record keeping practices. Many state courts do not regularly create criminal records, particularly in misdemeanor and other low-level cases. Criminal courts routinely destroy records, creating unfair and inconsistent immigration outcomes under the Tenth Circuit's rule. The deep circuit split on the issue means that noncitizens face non-uniform results depending on where DHS chooses to initiate proceedings. The Tenth Circuit's rule has a particularly harsh and unfair impact on noncitizens who are without counsel, detained, and have limited English proficiency.

Marinelarena v. Session

Brief of Amici Curiae Immigrant Defense Project, American Immigration Lawyers Association, National Association of Criminal Defense Lawyers, et al., in Support of Petitioner Upon Grant of Rehearing En Banc.


Argument: Young diverges from the rationale for the Categorical Approach, produces inconsistent immigration outcomes, and undercuts due process considerations. Young frustrates the underlying purpose of the Categorical Approach: to ensure efficiency and predictability in immigration outcomes. Young bars noncitizens from relief even when courts do not regularly maintain the necessary records or when records have been destroyed. Criminal records, especially in cases involving lower-level offenses are often poorly created and maintained. Criminal courts routinely destroy criminal records, creating unfair and inconsistent immigration outcomes. The government is in a far superior position to obtain records than noncitizens, who are often detained, unrepresented, and non-English speaking. Young’s divergence from the Categorical Approach unfairly affects noncitizens in a wide variety of immigration adjudications, both adversarial and non-adversarial.

Martoma v. United States

Brief for the New York Council of Defense Lawyers and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Appellant's Petition for Rehearing En Banc.


Argument: The panel’s ruling is inconsistent with Newman, Dirks and Salman, and undermines the vitality of the "personal benefit" requirement. Constitutional principles counsel against the panel's expansive extension of insider trading law.

McDonough v. Smith

Brief of Amici Curiae the American Civil Liberties Union, Bronx Defenders, Brooklyn Defender Services, Center for Appellate Litigation, Connecticut Innocence Project, the Innocence Project, the Legal Aid Society, National Association of Criminal Defense Lawyers, Neighborhood Defender Service of Harlem, New York County Defender Services, New York State Association of Criminal Defense Lawyers, Office of the Appellate Defender, and Vermont Office of the Defender General Supporting Rehearing En Banc.


Argument: The panel’s ambiguous new accrual rule will sow confusion. The panel opinion requires criminal defendants to file civil lawsuits while criminal charges are pending against them. The panel opinion’s accrual rule may functionally bar most fabrication claims and will generate litigation inefficiency. Evidence fabrication claims should not be treated like false arrest claims.

McDonough v. Smith

Brief of Criminal Defense Organizations, Civil Rights Organizations, and the Cato Institute as Amici Curiae Supporting Petitioner (on petition for a writ of certiorari)


Argument: The decision below held that an individual must bring a claim for the unlawful fabrication of evidence under 42 U.S.C. § 1983 within three years of when that person “learned of the fabrication of the evidence and its use against him in criminal proceedings,” and “was deprived of a liberty interest by,” for example, an arrest or trial. McDonough v. Smith, 898 F.3d 259, 267 (2d Cir. 2018). For nearly all innocent defendants with valid claims, their claims would accrue immediately upon commencement of the proceedings—when they first learn the facts alleged at arraignment, they discern that some fact is fabricated, and bail is set. Consequently, to avoid the time bar, many criminal defendants will be forced to mount § 1983 suits either during a pending criminal trial or while still pursuing its appeal. That result directly conflicts with this Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), which held that one of the elements an individual must plead and prove to win an evidence-fabrication claim is termination of the criminal proceeding in the accused’s favor. The decision below literally begins to run the statute of limitations on claims that courts are required, under Heck, to dismiss. It also conflicts with this Court’s broader pronouncements about the appropriate relationship between federal civil and state criminal litigation. This Court has consistently held that federal civil litigation must come after the conclusion of state criminal proceedings, both to respect the prerogative of states to adjudicate alleged violations of state law and to bolster the strong judicial policy against inconsistent adjudications in parallel proceedings. The decision below directly conflicts with this Court’s precedents governing the relationship between civil and criminal cases. The decision below is divorced from the realities of criminal litigation. Filing a § 1983 suit during a criminal trial prejudices a defendant’s criminal defense and a defendant’s § 1983 claim. The question presented is exceptionally important as evidence fabrication is a systemic problem, the decision below will functionally bar many meritorious evidence-fabrication claims, and, in many cases, an evidence-fabrication claims under § 1983 is the only effective form of redress.

Mearing v. United States

Brief for the National Association of Criminal Defense lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: This case presents an important question of federal criminal procedure on which national uniformity is needed. Please agreement procedure is fundamental to modern criminal procedure. The increasing frequency of appellate waivers in plea agreements underscores the need for the Court’s intervention. The circuit split over the reach of appellate waivers warrants this court’s review. This case offers an appropriate vehicle for resolving an entrenched circuit split. The appellate waiver at issue is typical. The appellate waiver at issue is squarely presented for the Court’s review. 

Nahmani v. United States

Brief of Aleph Institute


Argument: Circuits’ disparate approaches to reasonableness review undermine the benefits of appellate review of sentences. The goal of the sentencing reform act commend review of the statutory maximum sentence imposed in this case. 

Ohio v. Romero

Brief of Amici Curiae Immigrant Defense Project and National Association of Criminal Defense Lawyers in Support of Defendant-Appellee.


Argument: A non-citizen defendant suffers prejudice when defense counsel fails to advise of potential immigration consequences, even if the court notifies defendant that he or she “may” face immigration consequences. Judicial notifications cannot cure defense counsel’s foregone negotiations for an immigration-safe plea. The statutorily mandated language in Ohio, which states that the guilty plea “may” result in deportation, does not accurately advise a defendant whose deportation is virtually certain and mandatory. Judicial notifications given without regard to a defendant’s particular circumstances must be given little weight in the prejudice analysis. The roles and responsibilities of court and counsel are legally and practically distinct. Allowing court notifications to replace advice from defense counsel contradicts Padilla v. Kentucky, which placed the burden of giving the advice regarding immigration consequences squarely on defense counsel. 

Ovalles v. United States

Corrected En Banc Amici Curiae Brief of the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums In Support of Petitioner-Appellant


Argument: Section 924(c)(3)’s plain language and Supreme Court precedent compel McGuire’s categorical approach. The rule of lenity requires application of the strict categorical approach. The categorical approach provides significant pragmatic benefits.

Prince v. Lizarraga

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petition for Rehearing and Rehearing En Banc


Argument: The panel opinion guarantees that victims of prosecutorial misconduct will be denied justice for no fault of their own. The panel decision punishes habeas petitioners for not knowing what they could not know. Under the panel rule, the stringent second-and-successive standard applies to later-brought Brady claims even if the exculpatory evidence was not known at the time of the initial petition. The panel opinion creates perverse incentives for both prosecutors and petitioners’ counsel. The panel opinion punishes petitioners for the misconduct of prosecutors, and creates incentives for prosecutors to continue to withhold evidence until an initial federal petition is on the books. Such an unjust rule – one that punishes victims of prosecutorial misconduct for the mistakes of the perpetrators – could not have been what the drafters of the Antiterrorism and Effective Death Penalty Act (AEDPA) intended.

Ross v. Williams

Brief of Amici Curiae National Association of Criminal Defense Lawyers and the Aoki Center for Critical Race and National Studies in Support of Petitioner-Appellant’s Petition for Rehearing En Banc


Argument: The panel’s determination that the order was not incorporated by reference is contrary to the record and decisions of the Supreme Court and this Court. Under the habeas rules, the district court judge should be deemed to have found the petition sufficient when, after examination, he did not dismiss the petition, but instead ordered further proceedings. 

Salvagno v. Director, Federal Bureau of Prisons

Brief for Amici Curiae Center on the Administration of Criminal Law, FAMM, National Association of Criminal Defense Lawyers, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs, in Support of Appellant and Reversal


Argument: The governing statute, properly construed, does not authorize BOP to refuse to file a sentencing reduction motion for reasons that Congress expressly assigned to a Court for consideration. BOP has routinely refused to recommend the filing of sentence reduction motions for plainly qualified candidates, with results that are not only unlawful but also tragic. District courts have jurisdiction and authority to require BOP to comply with the statutory scheme and file sentence reduction motions for qualified candidates, so that sentencing judges can decide whether, when and to what extent a sentence should be reduced for “extraordinary and compelling reasons.” 

Stokeling v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner


Argument: The Armed Career Criminal Act (ACCA) applies only to violent robberies. Because the use of violent force is not an element of robbery under Florida law, Florida robbery is not a “violent felony” under the ACCA. The Act’s legislative history, like its text, reflects Congress’s intent to target only violent robbery in ACCA. The government’s proposed focus on whether the facts of particular cases present some potential risk of slight injury would impermissibly expand the reach of the Elements Clause beyond its text. 
 

Tennessee v. Decosimo

Brief of Amici Curiae National Association of Criminal Defense Lawyers and Tennessee Association of Criminal Defense Lawyers, Filed In Support of the Defendant/Appellee


Argument: The Court should apply strict scrutiny and hold that Tennessee Code Annotated section 55-10-413(f), which requires the payment of a $250 fee when the Tennessee Bureau of Investigation (“TBI”) provides expert proof to local law enforcement agencies in the form of a blood alcohol or drug concentration test. is unconstitutional on substantive due process grounds. That fee is assessed only when the expert proof provided by the TBI results in a conviction for certain crimes, including DUI. Applying strict scrutiny, this Court should find that section 55-10-413(f) is more restrictive than is necessary to achieve the State’s interest in funding the TBI’s forensic testing operation. Because section 55-10-413(f) encroaches upon the criminal defendant’s fundamental right to a fair trial, strict scrutiny is the applicable standard of review. Section 55-10-413(f) cannot withstand strict scrutiny because it is not narrowly tailored to serve the State’s interest in funding the forensic testing performed by the TBI. Even if strict scrutiny does not apply, none of the State’s arguments demonstrate that section 55-10-413(f) comports with due process principles. Partiality on the part of the TBI forensic scientists is not consistent with due process. The conviction-dependent, contingency-fee system in this case is different than the administrative system of assessing civil penalties at issue in Marshall v. Jerrico. The TBI’s pecuniary interest in obtaining criminal convictions is sufficient to sustain the due process claim. The Court of Criminal Appeals properly suppressed the forensic evidence without requiring a showing of actual bias. 

Timbs v. Indiana

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners (On Petition for a Writ of Certiorari to the Supreme Court of Indiana)


Argument: In refusing to analyze whether the excessive fines clause applies to the states, the Indiana Supreme Court ignored its obligation to enforce the U.S. Constitution. The abuse of civil asset forfeiture by states like Indiana underscores the practical importance of this case. 

Timbs v. Indiana

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners


Argument: State courts may not discriminate against federal defenses. The Supremacy Clause requires state courts to adjudicate federal law when applicable. Where state courts have attempted to escape their constitutional duty to apply federal law, this Court has repeatedly held them accountable. Federal defenses based on incorporation are not exempt from the non-discrimination rule.

Turner v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari to the U.S. Court of Appeals for the Sixth Circuit)


Argument: The primary question presented is exceptionally important. Criminal defendants require assistance of counsel during plea negotiations. The frequency of pre-indictment plea-bargaining is increasing. Charge-bargaining is a unique feature of pre-indictment negotiations. Pre-indictment plea bargains carry severe collateral consequences. The Sixth Circuit’s rule raises practical concerns apart from plea deals. The Sixth Circuit’s decision conflicts with this Court’s Sixth Amendment Jurisprudence. 
 

United States v. Ackerman

Brief of Amici Curiae Electronic Frontier Foundation, Brennan Center for Justice, Center for Democracy and Technology, and National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Reversal


Argument: The district court’s opinion undermines widely recognized Fourth Amendment protections for email. The expectation of privacy in email is reasonable and well established. The ability of a third party service provider to access emails does not defeat the user’s reasonable expectation of privacy. An email provider’s terms of service should not defeat a user’s reasonable expectation of privacy in email. The district court’s holding that AOLs TOS extinguished defendant’s reasonable expectation of privacy is inconsistent with established Fourth Amendment protections for email. Fourth Amendment protection should not depend on private agreements between email service providers and their users. Finding that contractual terms impact a user’s expectation of privacy against the government would lead to absurd results. A reasonable expectation of privacy does not end just because an account is terminated. Upholding the district court would reinstate the third-party doctrine for email and create a split of authority with the Sixth Circuit.

United States v. Bacon

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae Supporting Reversal (on petition for rehearing en banc)


Argument: The panel decision conflicts with Class v. United States, __ U.S. __, 138 S.Ct. 798 (2018); United States v. Slone, 411 F.3d 643, 646-49 (6th Cir. 2005); and decisions from other federal courts of appeals and this Court should grant en banc review to address whether defendants waive the right to raise as-applied constitutional challenges to their statutes of conviction by pleading guilty and the standard of review that applies to those challenges. In conflict with District of Columbia v. Heller, 554 U.S. 570 (2008); Tyler v. Hillsdale Cnty. Sherriff’s Dep’t, 837 F.3d 678 (6th Cir. 2008) (En Banc); and decisions from other federal courts of appeals, the panel did not apply heightened scrutiny to determine the constitutionality of restrictions on individual second amendment protections, and this court should grant rehearing en banc to resolve this conflict and address important questions about the analytical framework and level of scrutiny courts must apply to restrictions on these protections. 

United States v. Briones

Brief of Amici Curiae the National Association of Criminal Defense Lawyers, et al. in Support of the Petition for Rehearing En Banc


Argument: Miller provides categorical protection not merely a procedural requirement to consider youth. The District Court erroneously considered juvenile status as a mitigating factor rather than a categorical protection. The District Court further misapplied Miller by overlooking the central role of rehabilitation in juvenile sentencing. Congress has not provided a legal punishment for the crime of conviction. No legal, authorized punishment exists for juveniles charged under 18 U.S.C. § 1111. Briones was convicted under a statute that is unconstitutional as applied to juveniles. Sixth Amendment protections extend to whether a defendant is irreparably corrupt. A finding of irreparable corruption increases a juvenile defendant’s potential sentence and is similar to other factual findings that receive Sixth Amendment protections. Briones did not receive the required Sixth Amendment protections.

United States v. Courtade

Amicus Brief of the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Reversal


Argument: The Supreme Court has long held that guilty pleas are not absolute, and plea agreement appeal waivers do not foreclose a claim of actual innocence. Courtade makes a claim of actual innocence that lies beyond the scope of the plea agreement appeal waiver. Prudential consideration support permitting a collateral attack in these circumstances despite the appeal waiver.

United States v. Depue

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant (on petition for rehearing)


Argument: Rehearing is warranted to preserve the clarity and integrity of circuit precedent because the District Court’s decision to remove Juror 9 was inextricably intertwined with Juror 9’s self-declared status as “odd man out” in deliberations. The District Court failed to make the required factual findings to support “good cause” removal for mental or physical incapacity. The District Court  made no factual finding that Juror 9 had a mental incapacity that precluded him from continuing to deliberate. The District Court made no factual findings that could support the dismissal of Juror 9 for physical incapacity.

United States v. Farrell

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Reversing Money Laundering Convictions of Appellant, James Michael Farrell


Argument: The use of willful blindness as a substitute for actual knowledge, without an appropriate factual basis, lowers the government’s burden of proof and infringes a defendant’s due process rights. Prosecuting criminal defense attorneys for money laundering under a willful blindness theory threatens clients’ Sixth Amendment rights and creates and ethical conflict for attorney defendants. The use of Section 1956 to prosecute criminal defense lawyers has significant, negative policy implications. Section 1956 should not be used to charge criminal defense lawyers in contravention of Department of Justice policy, robbing them of the protection of an otherwise applicable safe harbor. The requirement of proving concealment under Section 1956 is not a meaningful basis for avoiding the otherwise applicable Section 1957 safe harbor. 

United States v. Henderson

Brief Amici Curiae of the National Association of Criminal Defense Lawyers and the Electronic Frontier Foundation in Support of Appellant’s Petition for Panel Rehearing and Rehearing En Banc


Argument: The petition presents a constitutional issue of exceptional importance because the panel decision excuses “systemic negligence” in the digital age. Rehearing is warranted to ensure that extra-jurisdictional warrants comply with the laws where evidence is search or seized. Rehearing is warranted to clarify that the good-faith exception does not apply to warrants void for lack of jurisdiction where the agency obtaining the warrant was or should have been aware of the defect. 

United States v. Lynch

Brief of the Cato Institute and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Appellant’s Petition for Rehearing by Panel and Rehearing En Banc


Argument: The independence of citizen juries is a well-established and crucial feature of our legal and constitutional history. The panel majority erred in upholding the district court’s instruction suggesting that Lynch’s jury could be punished for engaging in nullification. Protecting jury independence is all the more important because of the vanishingly small role that jury trials play in our criminal justice system.

United States v. Manning

Brief of Electronic Frontier Foundation and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Appellant


Argument: The lower courts misconstrued the technology at issue. The lower courts misconstrued the CFAA’s purpose and case law. Congress intended the CFAA to target serious computer break-ins. Consistent with Congress’s intent, courts across the country have held that the CFAA does not criminalize violations of computer use policies. Courts adopting the ‘narrow’ interpretation have rejected the lower courts’ theory that written computer use restrictions on how someone accesses information are ‘access’ restrictions. The military judge ignored basic rules of statutory construction. The lower courts’ broad reading of the CFAA renders the statute unconstitutionally vague. 
 

United States v. Manzano

Brief of the Cato Institute, FAMM Foundation, and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Respondent


Argument: The independence of citizen juries is a well-established and crucial feature of our legal and constitutional history. The District Court’s openness to permitting evidence and argument as to the consequences of a conviction is a reasonable exercise of the Court’s discretion, not subject to control by mandamus. The District Court’s provisional decisions thoughtfully harmonize different threads of modern case law, respecting the jury’s traditional authority to issue conscientious acquittals while still operating within the strictures of precedent. Permitting a jury to hear evidence about the consequences of conviction is especially reasonable in a case with a severe and surprising mandatory minimum. Protecting jury independence is all the more important given the vanishingly small role that jury trials play in our criminal justice system. 

United States v. Paulus

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae In Support of Appellee


Argument: Contrary expert opinion, taken alone, is insufficient to establish false statement or fraudulent intent beyond a reasonable doubt with respect to medical decisions that are inherently a matter of subjective professional judgment. Overturning the judgment below could lead to criminalizing legitimate exercises of medical judgment by physicians. Congress did not intent to criminalize legitimate, good faith medical practice. Disagreements among medical professionals in areas of medicine involving a significant degree of medical judgment can form the basis for civil liability or disciplinary sanctions, rather than criminal liability.

United States v. Stitt

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondents


Argument: When the ACCA was enacted in 1984 and amended in 1986, the majority of states’ burglary statutes distinguished between structures and both temporary spaces and mobile vehicles. The government’s position that there was a “broad consensus” in 1986 that burglary covered temporary spaces or mobile vehicles adapted or used for overnight accommodation ignores fundamental differences among the 1986 state statutes. The addition of temporary spaces and mobile vehicles adapted for overnight accommodation to the generic definition of burglary fails to close the purported “gap” between the ACCA and state-law definitions of burglary, as numerous state burglary statutes would remain overbroad. The ACCA is properly focused on form, rather than function, in delineating those spaces encompassed by generic burglary.

United States v. Wright

Brief of Proposed Amicus Curiae National Association of Criminal Defense Lawyers


Argument: Rule 31(b)(3) permits district courts to exercise discretion in declaring a mistrial or allowing a retrial. The district court carefully weighed the critically important interests underlying the Double Jeopardy Clause. 

Zukerman v. United States

Brief for Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for a writ of certiorari).


Argument: Jacobson remands have eviscerated the Second Circuit’s review of sentencing procedure. The Jacobson procedure violates the sentencing laws and conflicts with otherwise-uniform nationwide practices. Jacobson remands are an entrenched and pernicious feature of Second Circuit criminal practice. The Second Circuit’s established standard for reviewing substantive reasonableness violates this Court’s precedent. The Second Circuit has employed the “shocks the conscience” standard for nearly a decade. The “shocks the conscience” standard is incompatible with substantive reasonableness review. The Second Circuit’s errors undermine federal sentencing law’s most important goals. 
 

Zullo v. Vermont

Brief of the National Association of Criminal Defense Lawyers et al. as Amici Curiae in Support of Plaintiff-Appellant. 


Argument: Expanding police discretion would exacerbate the racial inequities entrenched in Vermont's criminal justice system in general, and its traffic enforcement practices in particular. Implicit racial bias impacts police office behavior and perceptions of what constitutes criminal behavior.