Al-Hela v. Biden

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers In Support of Petitioner-Appellant.

Argument: NACDL’s amicus brief argues that consistent with Boumediene v. Bush, 553 U.S. 723 (2008), the D.C. Circuit has repeatedly recognized the possibility that the Due Process Clause applies, at least in some respects, to Guantanamo detainees.  To the extent the en banc court concludes that the Suspension Clause does not bar the use of ex parte evidence in habeas proceedings, it should hold that the Due Process Clause does bar such evidence.  Ex parte evidence is one of the core evils against which the Due Process Clause guards.  Since before the Founding, it has been recognized that fundamental fairness requires allowing a litigant to see, and rebut, the evidence the government is relying upon to justify the exercise of its coercive powers.  The D.C. Circuit has long recognized and enforced the firmly held rule that courts may not decide the merits of a case—particularly one where individual liberty interests are at stake—on the basis of ex parte, in camera submissions.  If the information required to hold a detainee is classified:  “The government must choose; either leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully.”  Jencks v. United States, 353 U.S. 657, 671 (1957).  Two key due process considerations strongly favor barring ex parte evidence here: the risk of erroneous deprivation and the strength of the government’s asserted interest.  Al-Hela has been in detention for nearly 20 years without ever being charged with a crime.  The information at issue is aged and the government’s interest in maintaining secrecy of such dated information has diminished with the passage of time.  At the same time, the risk of a prolonged detention based on erroneous information increases with each passing day.  As a result, the degree of scrutiny of the evidence used to justify detention must increase as well, requiring, at a minimum, that Al-Hela’s security-cleared counsel be given an opportunity to review all of the evidence used to justify Al-Hela’s continued detention.  There is good reason to be wary of the ex parte use of information in this context, given that prior ex partesubmissions have proven unreliable when subsequently exposed to daylight.

Caniglia v. Strom

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers and Criminal Procedure Professors in Support of Petitioner.

Argument: In Sutterfield v. City of Milwaukee, 751 F.3d 542, 553 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit observed that the distinctions among the exigent circumstances doctrine, the emergency aid doctrine, and the community caretaking doctrine “are not always clear.” In turn, these fuzzy distinctions have led to a “lack of clarity in judicial articulation and application of the three doctrines.” This lack of clarity means that courts deciding whether the community caretaking doctrine should apply to warrantless home entries often think that doctrine is needed to justify entries that are already covered by the exigent circumstances doctrine and/or the emergency aid doctrine. As set forth in this amici brief, this Court’s opinions defining and applying the exigent circumstances and emergency aid doctrines establish that police officers would need to rely on the community caretaking doctrine as an independent justification for warrantless home entries in only two potential situations: to address (1) non-bodily harms such as nuisances; and (2) non-imminent threats of bodily harm. Framed in that fashion, it is clear that a separate and independent rationale such as “community caretaking” – which was generated by the special circumstances attendant to automobile searches – does not justify invasion of the sanctity of the home. Indeed, the way that this Court distinguished its opinion in Coolidge in creating the community caretaking doctrine makes clear that the doctrine does not and should not apply to warrantless home entries. In addition, the capacity for a “community caretaking” exception that permits warrantless searches of the home would invite its use as an end run around the protections of the warrant requirement.

Cody v. United States

Brief of the National Association of Criminal Defense Lawyers and Due Process Institute as Amici Curiae in Support of Petitioner (On Petition for a Writ of Certiorari). 

Argument: Without addressing the relevant text or history, the Eleventh Circuit held that, for purposes of the COA statute, a “proceeding under section 2255” extends beyond identifying a defect in custody—habeas’s historic outer limit—to also include the process of choosing an appropriate remedy. The court of appeals erred by reading the jurisdictional limits in the Antiterror-ism and Effective Death Penalty Act (“AEDPA”) in isolation from—rather than in pari materia with—the jurisdictional grants that they were enacted to restrain. Read together, sections 2255 and 2253 communicate Congress’s unambiguous intent that a “proceeding under section 2255” has the same scope as a traditional proceeding for habeas corpus. This Court’s habeas precedents, in turn, make clear that the scope of that proceeding does not include selecting a remedy. review is warranted because requiring a Certificate of Appealability prior to appellate review of a choice of remedy under § 2255(b) would be the functional equivalent of abolishing review altogether. COAs are available only for constitutional claims, but the choice of post-conviction remedy is an almost purely statutory procedure, and, as a practical matter, no COA could ever issue to a defendant in petitioner’s position. This Court’s review is needed to resolve that split and correct the Eleventh Circuit’s misinterpretation of the statutes governing federal post-conviction review.

Concepcion v. United States

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

Argument: Trial judges must consider a defendant’s post-sentencing conduct and intervening legal developments when exercising their Section 404 authority to “Impose A Reduced Sentence.” Evidence of post-sentencing conduct and intervening changes in law significantly affects district courts’ exercise of Section 404 sentencing discretion—producing fairer and more appropriate sentences. The text and statutory context of the First Step Act compel consideration of post-sentencing conduct and intervening legal developments.

Denezpi v. United States

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

Argument: The Double Jeopardy Clause allows successive prosecutions by different governments only if each of them exercises sovereignty in two different aspects. When a prosecution in a CFR court (Court of Indian Offences) is followed by a prosecution in federal district court, the federal government’s control over both proceedings establishes that the CFR court prosecution is merely a tool of the federal government.

Farhane v. United States

Brief of the National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner-Appellant.

Argument: Padilla held that the Sixth Amendment requires defense counsel to advise non-citizen clients of the risk of deportation from a guilty plea. Denaturalization is just as closely tied to the criminal process and at least as severe a punishment as deportation—indeed, the end goal of denaturalization is typically deportation. Counsel therefore also has a Sixth Amendment duty to advise naturalized citizens of the risk of denaturalization and, ultimately, deportation from a guilty plea. Adopting such a rule would be consistent with prevailing norms of professional practice and impose little burden on defense counsel.

Florida v. Garcia

Brief of Amici CuriaeAmerican Civil Liberties Union, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers.

Argument: Compelling a criminal suspect to disclose a passcode is testimony privileged by the Fifth Amendment. The Fifth Amendment prohibits compelled disclosure of the contents of a suspect’s mind. Compelled disclosure of the passcode is testimonial. The Fifth District properly declined to apply the foregone-conclusion rationale in this case. The Foregone-conclusion analysis applies only to the production of specified, preexisting business records. Even if the foregone-conclusion rationale could apply in this context, the state must describe with reasonable particularity the incriminating files it seeks. Law enforcement has alternative methods of accessing encrypted devices.

Greer v. United States

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

Argument: In this case, the Eleventh Circuit, applying plain error review, reaffirmed Petitioner’s conviction. This followed an intervening change in law, which required the government prove beyond a reasonable doubt an additional element of the crime. Although the government had not introduced evidence of this element at trial, the Eleventh Circuit nonetheless affirmed Petitioner’s conviction—which it did only by going beyond the trial evidence. This is contrary to the purpose of plain error review, which is only to correct manifest injustices, and raises fairness concerns, as numerous criminal defendants have been foreclosed from introducing evidence on plain error review. The decision below further raises Constitutional concerns under both the Fifth and Sixth Amendments. It violates the defendant’s due process rights by allowing judges to make a decision of guilt on an element of the crime—a decision reserved for the jury alone.

Gurrola v. Duncan

Brief Of Amici Curiae The Dkt Liberty Project, The Cato Institute, Collateral Consequences Resource Center, Clause 40 Foundation, Law Enforcement Action Partnership, The Macarthur Justice Center, The R Street Institute, The Sentencing Project, And The National Association Of Criminal Defense Lawyers In Support Of Plaintiffs-Appellants.

Argument: State licensing schemes that categorically bar individuals with prior criminal convictions from holding various professions are irrational. Across the country, these licensing schemes cover almost every profession imaginable. However, these regulations frequently do nothing other than bar those with criminal records from entering a profession. These regulations prevent those with felony convictions from, among other things, operating a taxicab, performing marriages, and working as a tag officer at a state department of motor vehicles. This is true regardless of whether the individual has been convicted of a major fraud, a violent crime, or something as minor as felony littering. States regularly impose criminal-history restrictions on occupational licenses that are entirely unrelated to the applicant’s fitness to be a contributing member to the profession. And these restrictions—which bar individuals with prior convictions from finding gainful employment—contribute to recidivism, further underscoring their irrationality. Although courts have held that these licensing schemes are subject to only rational basis review, rational basis is not a toothless standard; it requires that a court find some logical relationship between the restriction—here, two felony convictions—and the occupation being regulated—here, emergency medical technicians (“EMTs”). Courts historically have been critical of, and have struck down under this test, broad regulatory schemes that bar membership of an applicant who has any felony conviction. Because California’s regulatory scheme bars individuals convicted of any two felonies without regard for whether the crimes at issue implicate the applicant’s fitness to become an EMT, including to fight fires, this scheme likewise fails rational basis review. As a result, this Court should vacate the district court’s order granting the defendants’ motion to dismiss and remand this case for further proceedings.

Hammoud v. Ma’at

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

Argument: NACDL’s amicus brief argues that under the savings clause of 28 U.S.C. § 2255(e), a prisoner may seek habeas corpus relief through 28 U.S.C. § 2241 under limited circumstances: when the § 2255 remedy is “inadequate or ineffective to test the legality of [the prisoner’s] detention.”  28 U.S.C. § 2255(e).  For 20 years, the Fifth Circuit has recognized that the § 2255 remedy is “inadequate or ineffective” if a petitioner cannot seek relief despite a retroactively applicable Supreme Court decision establishing that the petitioner may have been convicted of a nonexistent crime.  Although that test leaves the door closed on some actual-innocence claims that should be recognized, it is generally consistent with the savings-clause tests applied in nearly every other federal court of appeals.  Most importantly, that test confirms that the savings clause offers more than a hollow process providing no practical opportunity to end unlawful imprisonment.  The Tenth and Eleventh Circuits, by contrast, have held that the savings clause applies only if the procedure afforded by § 2255 was formally unavailable.  According to those courts, so long as there was some theoretical chance to assert a claim under § 2255—even if the claim was futile or frivolous under existing precedent—the remedy was adequate and effective.  The Fifth Circuit should not modify or overrule its savings-clause jurisprudence to align itself with the Tenth and Eleventh Circuits.  The test applied in those circuits contravenes the text of the savings clause and congressional intent, poses constitutional concerns, and would force petitioners and their counsel to disregard binding precedent, court rules, and ethical obligations that forbid arguments that would be frivolous under settled law.  Moreover, application of the formal-process test would undermine public confidence in the justice system’s treatment of prisoners who contend that retroactive changes in the law mean they are actually innocent.

Haws v. Idaho

Brief for Idaho Association of Criminal Defense Lawyers and National Association Of Criminal Defense Lawyers as Amici Curiae in Support Of Petitioner (on petition for writ of certiorari).

Argument: Appellate waivers are pervasive and call for special scrutiny. Judges routinely make serious mistakes in describing appellate waivers at plea hearings and the adverse consequences are severe. The errors are numerous and widespread. The errors have extreme ramifications.

Hemphill v. State of New York

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

Argument: When a defendant opens the door to responsive evidence, he does not also forfeit his right to exclude evidence otherwise barred by the Confrontation Clause. The New York rule chills vital defense arguments. The New York rule forces defendants into a Hobson’s choice between constitutional rights. The New York rule undermines the institution of the criminal trial.

Houston v. United States

Brief Amicus Curiae of National Association Of Criminal Defense Lawyers In Support Of Petitioner (on petitioner for a writ of certiorari).

Argument: Timely resolution of the question presented is of great practical importance to First Step Act movants. Appellate-court decisions remanding for considers of the § 3553(a) factors have resulted in significantly reduced sentences. The temporal gap between the original sentencing and First Step Act proceeedings underscores the importance of an update § 3553(a) analysis. In light of the very real possibility that renewed § 3553(a) consideration results in lower sentences, the Court must intervene now.

Jarvis v. United States

Brief of FAMM and NACDL as Amici Curiae in Support of Petitioner (On Petition for Writ of Certiorari).

Argument: Every branch of government has recognized the profound injustice that resulted from the stacking of sentences imposed pursuant to Section 924(c). Congress finally remedied that wrong in the First Step Act. This Court should grant review to correct an egregious misunderstanding of Congress’s handiwork—and to remove an unnatural limitation on compassionate release that has produced an intractable circuit split. In the alternative, this Court should hold the Petition in abeyance and grant one or more of the other pending petitions that present the same issue.

Jimenez v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of Appellant.

Argument: The Sixth Circuit should join eight of its sister circuits in recognizing that collateral-attack waivers are not valid when their enforcement would result in a miscarriage of justice. Accordingly, the Court should refuse to enforce Mr. Jimenez’s collateral attack waiver to the extent that it precludes him from challenging the district court’s use of an invalid and unconstitutional prior conviction to enhance his sentence.

League of Women Voters of Penn. V. Degraffenreid

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

Argument: The right “to reasonable and timely notice of and to be present at all public proceedings involving the criminal or delinquent conduct” has impaired the administration of justice and cost counties and states millions of dollars. The right “to reasonable protection from the accused or any person acting on behalf of the accused” has led to absurd results in pretrial release decisions. The codification of “respect for the victim’s . . . privacy” and the right “to reasonable protection from the accused” has made it more difficult for law enforcement to solve crime and left the public lacking critical information about criminal activity.

McCallum v. Italy

Amicus Curiae to the Grand Chamber of the European Court of Human Rights.

Argument: Article 3 of the ECHR absolutely prohibits the infliction of torture and inhuman or degrading treatment or punishment. In a series of major decisions since 2013, the Grand Chamber of the ECtHR has spelt out the criteria according to which sentences of life imprisonment must be implemented to ensure that Article 3 is not infringed. If life sentences meet these criteria, they can be imposed and implemented consistently with Article 3. Article 3 also governs extradition from member states. When a member state receives an extradition request, it has a duty to assess prospectively whether allowing extradition may result in a life sentence in the requesting state that would infringe Article 3, as interpreted by the ECtHR. This does not impose a burden on a non-member state seeking extradition, but on the member state from which extradition is sought. Such member state must ensure that its actions in allowing extradition do not foreseeably result in the Article 3 rights of a person in its jurisdiction later being infringed by a non-member state. The amici curiae submit in this intervention that the criteria developed by the ECtHR in respect of life imprisonment should be applied when deciding whether Italy is justified in extraditing McCallum to stand trial in Michigan, where she will be sentenced mandatorily to Life Without Parole (LWOP) if she is convicted of first-degree murder.

New Jersey v. Terres

Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the Association of Criminal Defense Lawyers—New Jersey.

Argument: Terres improperly extends precedent to permit a search inside a home upon a showing of an articulable suspicion that a third party inside of it poses a danger to those at the arrest scene outside of the home.

Osby v. United States

 Brief of Amici Curiae Americans for Prosperity Foundation, the National Association Of Criminal Defense Lawyers, Dream Corps Justice, and the R Street Institute in Support of Petitioner.

Argument: Acquitted-conduct sentencing cannot be squared with the Sixth Amendment. The Sixth Amendment requires juries find all facts legally necessary to justify a defendant’s sentence. Reliance on Judge-found facts to triple Mr. Osby’s sentence violates the Sixth Amendment jury trial right. Use of acquitted conduct at sentencing guts the presumption of innocence. The reasonable doubt standard protects against wrongful punishment. Judicial factfinding using the lower preponderance standard to overrule a jury acquittal violates due process. Use of acquitted conduct at sentencing undermines the legitimacy of our criminal justice system. 

Ruan v. United States; Kahn v. United States

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

Smith v. Maryland

Brief in Support of Appellant of Amici Curiae National Association of Criminal Defense Lawyers, Maryland Criminal Defense Attorneys Association, and the Innocence Network.

Argument: NACDL’s amicus brief argues that the State’s misconduct in this case was truly startling; indeed, it is among the most serious examples of prosecutorial misconduct in amici’s collective experience.  The record shows that the prosecution: (1) suppressed “a fountain of favorable evidence from the defense”; (2) “[s]ponsored dubious claims from a credibility-ravaged witness who tainted every other prosecution witness”; (3) “made serial false representations to the defense, to jurors, and to the trial court about critical exculpatory evidence”; and (4) testified falsely under oath to hide its misconduct.  This misconduct was an attempt to shore up a weak case in which there was no physical evidence to link Mr. Smith or his co-defendants to the crime, and there was physical evidence that pointed away from them.  Authority from jurisdictions throughout the country supports the dismissal of the indictment under these circumstances.  Prosecutorial conduct that is “so grossly shocking and outrageous as to violate the universal sense of justice” requires dismissal of a resulting prosecution on due process grounds.  A case also can be dismissed under a court’s supervisory powers even if “the conduct does not rise to the level of a due process violation.”  The egregious misconduct found by the court of appeals satisfies either standard.  Retrial would not adequately address the egregious misconduct that occurred in this case because (1) the extensive misconduct here was unusually extreme and shocks the conscience, and it created pervasive prejudice that would prevent Mr. Smith from receiving a fair retrial, and (2) any remedy short of dismissal would be inadequate to deter the type of intentional, willful, and reckless misconduct that the court of appeals recognized and the State now admits.  While dismissal is an extreme remedy, courts have invoked it regularly in cases with extreme facts of the type found here. 

Sumpter v. Kansas

Amicus Brief in support of Petitioner-Appellee and Cross-Appellant by National Association of Criminal Defense Lawyers.

Argument: Mr. Sumpter was convicted of several sexual misconduct offenses and one count of aggravated kidnapping. The kidnapping conviction added 186 months to his sentence. Mr. Sumpter’s convictions were affirmed on direct appeal and his state post-conviction motion was unsuccessful. Kansas has appealed to the 10^th Circuit. The aggravated kidnapping conviction and sentence were vacated by the United States District Court in Kansas when the court partially granted the 2254 petition and concluded Mr. Sumpter had been denied effective assistance of counsel as to the kidnapping conviction. Mr. Sumpter was convicted of forcefully confining the accuser, yet trial counsel failed to assert the defense, long established in Kansas case law, that the alleged forced confinement was not independent of the offense of attempted rape. The defendant followed the accuser to her car and attempted to sexually assault her in the car before the victim was able to force him out of the car. Defense counsel thus should have argued that there was no forced confinement independent of the alleged attempted sexual assault. The amicus brief argues that the failure of counsel to present this long-recognized defense to the kidnapping charge resulted in an unconstitutional application of the Kansas kidnapping statute.  Mr. Sumpter was convicted of kidnapping without any determination that the alleged forceful confinement was independent of the attempted sexual assault. Therefore, the district court order vacating the kidnapping conviction should be affirmed.

Sumpter v. Kansas

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner-Appellee/Cross-Appellant and Urging Reversal. 

Argument: Mr. Sumpter was convicted of several sexual misconduct offenses and one count of aggravated kidnapping. The kidnapping conviction added 186 months to his sentence. Mr. Sumpter’s convictions were affirmed on direct appeal and his state post-conviction motion was unsuccessful. Kansas has appealed to the 10th Circuit. The aggravated kidnapping conviction and sentence were vacated by the United States District Court in Kansas when the court partially granted the 2254 petition and concluded Mr. Sumpter had been denied effective assistance of counsel as to the kidnapping conviction. Mr. Sumpter was convicted of forcefully confining the accuser, yet trial counsel failed to assert the defense, long established in Kansas case law, that the alleged forced confinement was not independent of the offense of attempted rape. The defendant followed the accuser to her car and attempted to sexually assault her in the car before the victim was able to force him out of the car. Defense counsel thus should have argued that there was no forced confinement independent of the alleged attempted sexual assault. The amicus brief argues that the failure of counsel to present this long-recognized defense to the kidnapping charge resulted in an unconstitutional application of the Kansas kidnapping statute. Mr. Sumpter was convicted of kidnapping without any determination that the alleged forceful confinement was independent of the attempted sexual assault. Therefore, the district court order vacating the kidnapping conviction should be affirmed.

Sutton v. United States

Brief of FAMM and NACDL as Amici Curiae in Support of Petitioner (On Petition for Writ of Certiorari).

Argument: Every branch of government has recognized the profound injustice that resulted from the stacking of sentences imposed pursuant to Section 924(c). Congress finally remedied that wrong in the First Step Act. This Court should grant review to correct an egregious misunderstanding of Congress’s handiwork—and to remove an unnatural limitation on compassionate release that has produced an intractable circuit split. In the alternative, this Court should hold the Petition in abeyance and grant one or more of the other pending petitions that present the same issue.

Terry v. United States

Brief of Retired Federal Judges, Former Federal Prosecutors, and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner. 

Argument: Defendants sentenced for crack cocaine offenses under the pre-2010 version of § 841(b)(1)(C) are eligible for resentencing under the First Step Act of 2018.  The First Step Act’s resentencing provisions apply to offenses whose penalties were “modified” by the Fair Sentencing Act in 2010.  Although defendants sentenced under the pre-2010 version of § 841(b)(1)(C) remain eligible for their original sentences after the statute was recently amended, the sentences they would have received under the post-2010 version of the statute almost certainly would have been lower—likely significantly lower.  That is because the Fair Sentencing Act dramatically expanded the drug quantities to which § 841(b)(1)(C) applies.  All else equal, a sentencing judge generally aims to align the various drug-quantity ranges in § 841(b) with the corresponding sentence ranges—assigning lower sentences for lower quantities and higher sentences for higher quantities.  In other words, the drug-quantity benchmarks in § 841(b) exert a powerful anchoring influence over a judge’s sentencing decisions.  And Congress changed the relevant anchor points 2010.  Thus, it “modified” the statutory penalties in § 841(b)(1)(C), and defendants sentenced under that provision are entitled to resentencing.

Thompson v. Clark

Brief of National, State, and Local Civil Rights, Racial Justice, and Criminal Defense Organizations as Amici Curiae in Support of Petitioner. 

Argument: The Court should adopt a rule that individuals seized during criminal proceedings in violation of their Fourth Amendment rights need only show that the criminal case terminated in their favor in order to proceed with a Section 1983 action to redress the constitutional violation.

Thompson v. Clark

Brief of National, State, and Local Civil Rights, Racial Justice, and Criminal Defense Organizations as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari).

Argument: This case asks whether an individual seized during criminal proceedings in violation of the Fourth Amendment must prove that the criminal proceedings ended in a manner indicative of their innocence in order to succeed in a section 1983 action to redress the violation of their constitutional rights. A majority of lower courts have wrongly decided that a termination demonstrating innocence is an element of such constitutional claims. This Court should grant certiorari and hold that no such element exists. First, the lower courts’ conclusion contradicts the deeply rooted principle that our criminal system presumes innocence and adjudicates only whether a defendant is guilty beyond a reasonable doubt. Second, because it is usually impossible to show that criminal proceedings terminated in a manner indicating innocence, the lower courts’ innocence requirement forecloses section 1983 claims for many individuals whose detention and prosecution violate their Constitutional rights. Third, the lower courts’ conclusion that a termination indicating innocence is an element of federal constitutional claims contradicts many of this Court’s cases.

Tuggle v. United States

Brief of Amici Curiae Electronic Frontier Foundation, Brennan Center for Justice, Center for Democracy & Technology, Electronic Privacy Information Center, and National Association of Criminal Defense Lawyers in Support of Petitioner (On Petition for Writ of Certiorari).

Argument: The capabilities of video surveillance have increased significantly, just as the costs of such surveillance have decreased, counseling in favor of certiorari. Certiorari is necessary to make clear the Fourth Amendment prohibits the long-term warrantless monitoring and video recording of all activity immediately outside a person’s home.

United States v. B.G.G.

Brief for Amici Curiae National Association of Criminal Defense Lawyers and the Cato Institute in Support of Appellee and Urging Affirmance. 

Argument: Statutes of limitations must be interpreted in favor of repose. Statutes must be interpreted to avoid absurd results. The government's proposed interpretation of 18 U.S.C. §§ 3282 and 3288-- under which it obtains a six-month extension of the statute of limitations by filing a defective information the day before the statute runs and moving to dismiss it the day after--flouts the Toussieprinciple. That interpretation also violates the rule that courts will not interpret statutes in a way that produces an absurd result. The Seventh Circuit case on which the government principally relies--United States v. Burdix-Dana, 149 F.3d 741 (7th Cir. 1998)--overlooks both these principles and is poorly reasoned in other respects as well. The government seeks to obtain through a tortured interpretation of §§ 3282 and 3288 an outcome that Congress refused to enact when the Department of Justice proposed it as legislation last year, at the outset of the coronavirus pandemic. The district court correctly rejected the government's approach. This Court should affirm.

United States v. Bass

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

Argument: In enacting the compassionate release statute, 18 U.S.C. § 3582(c)(1)(A)(i), Congress created a safety valve that allows a sentence in any case to be terminated early under extraordinary and compelling circumstances, regardless of whether the sentence was originally imposed pursuant to a mandatory sentencing provision.  This is clear from the statute’s text, its legislative history, and the practice of federal judges around the country. The Sixth Circuit should explicitly acknowledge that the District Court acted within the authority Congress gave it when it granted compassionate release to Mr. John Bass who was serving a “mandatory minimum” of life in prison “without release.”

United States v. Blaszczak

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

Argument: The Second Circuit’s prior decision in this case—holding that wholly intangible government information could become “property” by virtue of an agency labeling that information “confidential”—transforms the federal fraud statutes and the theft of government property offense into official-secrets acts. The U.S. Supreme Court’s decision in Kelly v. United States, issued days after the Second Circuit denied rehearing en banc, fundamentally undermined the panel’s construction of “thing of value” in the theft of government property statute, 18 U.S.C. § 641. Applying traditional tools of statutory interpretation, the Court should reject the government’s unbounded theory of property, which would render targeted information-control statutes surplusage and criminalize core First Amendment activity.

United States v. Cooley

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

Argument: Congress has authorized the Secretary of the Interior to enter into agreements with tribal governments under which tribal law-enforcement officers are certified to enforce generally applicable federal criminal laws in Indian country. By extending to tribal governments the power to enforce generally applicable federal criminal law in Indian country, Congress has exercised its power to delegate law-enforcement authority to the tribes without undermining tribal sovereignty. The government’s fear that special law enforcement commissions will undermine tribal sovereignty is misplaced.

United States v. Davis

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant-Appellant’s Petition for Rehearing or Rehearing En Banc. 

Argument: The panel opinion broadens the definition of “substantial step,” contravening Supreme Court and Circuit precedent and raising constitutional concerns. A “substantial step” is conduct “toward” the commission of the object offense. Davis improperly broadens statutory attempt offenses, with constitutional implications. Requiring a substantial step “toward” the commission of the object offense strikes the right balance between protecting the public and avoiding overcriminalization. Davis’s redefinition of the actus reus for attempt has broad implications. 

United States v. Davita

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendants’ Joint Motion to Dismiss.

Argument: It is axiomatic that due process principles restrict criminal liability to violations of laws of which the accused has fair notice. Criminal liability may not attach to conduct that is beyond the scope of an unambiguous criminal proscription— and all close calls must be resolved in favor of the defendant. Where a criminal violation is not supported by clear, existing authority—or where it is even a close question—the reviewing court should dismiss the criminal indictment under Federal Rule of Criminal Procedure 12(b)(3)(B)(v). Doing so ensures fairness by avoiding the grave harms associated with criminal prosecution—which frequently cannot be remedied by eventual reversal on appeal—while preserving the Department’s ability to pursue the prosecution if a reviewing court sees the law differently. These principles strongly support dismissal of the indictment here. Existing authority does not support criminal liability on the basis of a no-solicitation agreement, which no court has ever held to be a per se violation of the Sherman Act. Allowing the prosecution to proceed in these circumstances would be inconsistent with existing law and the Department’s own policy statements—and would thus violate due process. 

United States v. Dubin

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

Argument: The Fifth Circuit panel’s interpretation of 18 U.S.C. § 1028A, the aggravated identity theft statute, expands the bounds of the statute beyond what Congress intended.  The interpretation is a result of the overcriminalization of the statute and prosecutorial overreach, and if upheld, threatens to transform the statute to include run-of-the-mill fraudsters, “stray[ing] far afield from the conduct targeted by Congress” under the statute.  United States. v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017).  The panel construed the statute to encompass a healthcare provider manager’s use of a patient’s information to bill Medicaid for services that were provided to that patient but misrepresented during the billing process.  Such an interpretation—which criminalizes conduct beyond real, classic identity theft (i.e., impersonating someone or stealing his identity)—is at odds with the legislative purpose to punish identity thieves and the common-sense reading of the statute. 

United States v. Gary

Brief of National Association Of Criminal Defense Lawyers as Amicus Curiae in Support Of Respondent. 

Argument: Depriving the defendant of the right to decide whether to plead guilty unconstitutionally undermines his autonomy interest. The decision to plead guilty is entrusted to the defendant alone and thus implicates his fundamental autonomy interest. The requirement that a guilty plea be knowing and voluntary safeguards the defendant’s autonomy interest. The failure to inform the defendant of each element of the offense to which he is pleading guilty requires vacatur of the plea. Permitting the court to impose punishment based on hypothetical guilty pleas would be a dangerous constitutional innovation. Given that the Framers’ vision of a system of jury trials has already been displaced by pleas, the Court should not accept anything less than informed and voluntary pleas. 

United States v. Gear

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

Argument: In violation of his constitutional rights guaranteeing notice, due process, and trial by jury, Melvyn Gear was convicted of possessing a firearm while holding a non-immigrant visa because the jury was not instructed on that most subjective of the crime’s elements:  knowing possession.  Contrary to four circuits around the country, the Ninth Circuit panel applied a cramped and compressed plain error standard that failed to properly protect the surpassing constitutional rights at stake. The brief amici was filed to bring those decisions and their reasoning to the Ninth Circuit’s attention.

United States v. Hunter

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

Argument: Contrary to the government’s position, there was nothing “usual, average, or normal” about the sea change in sentencing law caused by Booker. The Sixth Circuit should explicitly acknowledge that a district court has the discretion to consider, as part of its “extraordinary and compelling” analysis, inappropriately harsh sentences received by some defendants in the unconstitutional pre-Booker regime.

United States v. Lindberg

Brief for Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”) in Support of Defendants-Appellants.

Argument: The District Court impermissibly directed a verdict on the existence of an official act. The jury decides whether the defendant is guilty of each contested element of the charged offense. The District Court usurped the jury’s exclusive role. Under Gaudin and McDonnell the question of whether alleged conduct constitutes an official act is a mixed question of law and fact reserved for the jury. Neither Fattah Nor Hastie justify a directed verdict on the official act element. That different juries may reach different verdicts based on similar facts is inherent in the jury system—it is not a basis to abrogate the jury’s right to render a verdict. The District Court’s error if uncorrected will impact other criminal defendants. The District Court’s error warrant a new trial. A directed verdict for the government on a disputed element can never be harmless. The improper directed verdict on the official act element also negates the convictions on the Section 666 charge.

United States v. Martinez

Brief of the National Association of Criminal Defense Lawyers in Support of Appellant.

Argument: NACDL’s amicus brief argues that Article 52(a)(3) of the Uniform Code of Military Justice, 10 U.S.C. § 852(a)(3), which permits nonunanimous verdicts by only a three-fourths majority in non-capital courts-martial involving serious offenses, is unconstitutional under Ramos v. Louisiana.  Courts-martial have been considered “judicial” for almost 135 years.  The UCMJ contemplates that the accused must be given a fair trial, and courts have recognized that the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards unless conditions peculiar to military life require a different rule.  The Sixth Amendment has already been extensively incorporated into our military justice system.  With the exception of unanimous verdicts, servicemembers facing a court-martial for serious offenses receive the core panoply of constitutional trial rights, and the military justice system is none the worse-for-wear as a result.  Contrary to the lower court’s assertion, non-unanimity promotes unlawful command influence, rather than preventing it.  Although Congressional powers are necessarily broad in the area of military affairs, they are not absolute or unlimited.  Whether found under the Due Process Clause or, as Ramos holds, under the Sixth Amendment’s Impartial Jury Clause, the right to a unanimous verdict in a criminal prosecution is constitutionally mandated.  It is the Constitution that controls on this issue, not a provision within the UCMJ.

United States v. Palomar-Santiago

Brief for Amicus Curiae National Association Of Criminal Defense Lawyers in Support of the Respondent.

Argument:  Administrative proceedings do not guarantee participants the assistance of counsel, the privilege against self-incrimination, the right to confront and cross-examine witnesses, and various other protections that apply in a criminal trial.  For these reasons, administrative proceedings do not typically preclude parties from relitigating any fact decided in the agency hearing at a subsequent criminal trial. The government’s prosecution of a noncitizen for unlawful reentry under 8 U.S.C. § 1326 is a notable departure from this general rule.  Due process requires that § 1326 defendants be afforded some meaningful opportunity to obtain judicial review of the proceeding that is the foundation for the government’s prosecution. The Court should therefore allow Respondent to challenge the validity of his removal order in the criminal proceedings, even though he has not satisfied the requirements set forth in 8 U.S.C. § 1326(d).

United States v. Perez-Perez

Amicus Brief in support of Defendant-Appellant’s petition for rehearing en banc by the National Association of Criminal Defense Lawyers and Aoki Center for Critical Race and Nation Studies.

Argument: In a split decision, the Tenth Circuit (per Ebel, J.) affirmed on plain error review a conviction under 18 U.S.C. § 922(g)(5) (illegal or unlawful alien in possession of a firearm) notwithstanding the fact that during the plea colloquy the judge failed to inform the defendant of two essential elements of the crime:  (1) he had to know his status as a prohibited person; and (2) he was illegally or unlawfully in the United States. There’s a spirited dissent by Judge Bacharach. Although the panel concluded Mr. Perez’s constitutional rights were violated due to these failings when he accepted the plea agreement, the majority nevertheless decided Mr. Perez had not established plain error. The amicus brief argues that the majority erred in not finding plain error pointing out that the evidence of Mr. Perez’s knowledge of his prohibited status was weak and that there was ample record support for this potential defense. The majority instead engaged in speculation about why Mr. Perez accepted the plea agreement (to avoid mandatory minimum charges) when the meagre factual record suggested instead that Mr. Perez did not accept the plea agreement to avoid these charges. Rather, the record is clear that Mr. Perez sought to avoid the trial penalty and to transfer out of the onerous conditions of pretrial detention, which he had suffered for more than 18 months. As a result of the plain error in this case, Mr. Perez is entitled to have his conviction vacated. 

United States v. Tsarnaev

Brief of American Civil Liberties Union, American Civil Liberties Union of Massachusetts, Inc., National Association of Criminal Defense Lawyers, and the Rutherford Institute as Amici Curiae in Support of Respondent.

Argument: NACDL’s amicus brief argues that in the sentencing phase of his capital trial, Dzhokhar Tsarnaev sought to introduce evidence in mitigation that his older brother Tamerlan Tsarnaev had previously enlisted an accomplice to commit a brutal triple murder and robbery on the ten-year anniversary of September 11, 2001. Tamerlan bound, beat, and slit the throats of three men (one a childhood friend) in the name of jihad.  This evidence supported Dzhokhar’s core mitigation theory that his older brother was a violent jihadist who influenced him to participate in the Boston Marathon bombings and was more culpable for those crimes. But the district court excluded it. Tamerlan’s previous jihadist murders and recruitment of an accomplice are powerful pieces of mitigation evidence, and 18 U.S.C. § 3593(c) provides no basis to exclude them. “Waste of time” is not a basis for exclusion under Section 3593(c). The proposed mitigation evidence created no danger of “confusing the issues.” Section 3595(a)’s harmless error standard is demanding, and the Government fails to meet it here. The Government fails to show beyond a reasonable doubt that the jury was just as likely to disbelieve Dzhokar’s core mitigation theory if it had seen the Waltham evidence.  The Government also fails to show beyond a reasonable doubt that the jury would have sentenced Dzhokhar to death even if it believed Dzhokhar acted under Tamerlan’s influence.

United States v. Weaver

Brief of the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers and New York Council of Defense Lawyers as Amici Curiae in Support of Defendant-Appellant.

Argument: The Circuit should hold that a frisk commences when an individual is forced to assume an “in search” position. Terry frisks have become a routine and routinely abused police tactic. Consistent federal-state application of the exclusionary rule is the only effective way to deter law enforcement from performing intrusive, humiliating, and unconstitutional body frisks. Unlawful Terry frisks are only challenged in criminal cases where suppression is unappealing but necessary. New York State courts recognize that suppression is a necessary and appropriate remedy to deter pretextual stop-and-frisks and police perjury. Deterrence will be undermined if federal and state courts assess Terry frisks differently and apply the exclusionary rule inconsistently.

United States v. Wilkerson

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant Wayne Wilkerson.

Argument: The district court erred by not requiring mens rea, which is a cornerstone requirement for criminal liability and punishment. The district court erred in premising the fraud convictions on non-disclosure absent any cognizable duty to disclose.

Utah v. Valdez

Brief of Amicus Curiae National Association of Criminal Defense Lawyers.

Argument: The Fifth Amendment prohibits using Mr. Valdez’s refused passcode disclosure as evidence of guilt. It is settled law that the State cannot raise a criminal defendant’s silence as evidence of their guilt. The words of the Fifth Amendment’s privilege against compelled self-incrimination should be given their plain meaning. The Fourteenth Amendment’s history is useful guidance when considering an amendment’s curative purpose. The Fifth Amendment’s own language demonstrates the Self-Incrimination Clause’s only limitation is that it is reserved for criminal cases. The State’s search warrant authority does not override a defendant’s Fifth Amendment rights. 

Watford v. United States

Brief of FAMM and NACDL as Amici Curiae in Support of Petitioner (On Petition for Writ of Certiorari). 

Argument: Every branch of government has recognized the profound injustice that resulted from the stacking of sentences imposed pursuant to Section 924(c). Congress finally remedied that wrong in the First Step Act. This Court should grant review to correct an egregious misunderstanding of Congress’s handiwork—and to remove an unnatural limitation on compassionate release that has produced an intractable circuit split. In the alternative, this Court should hold the Petition in abeyance and grant one or more of the other pending petitions that present the same issue.

Wisconsin v. Lee

Nonparty Brief of National Association of Criminal Defense Lawyers.

Argument: NACDL’s amicus brief argues that lengthy delays in the appointment of counsel unconstitutionally prejudice the accused’s ability to mount a defense.  Failing to appoint counsel promptly hinders opportunities for pretrial release.  Delaying the appointment of counsel prevents early investigation and evidence gathering.  Failing to appoint counsel promptly also delays critical counseling and negotiations. 

Wooden v. United States

Brief For Amicus Curiae The National Association Of Criminal Defense Lawyers In Support Of Petitioner.

Argument: The Armed Career Criminal Act’s “occasions” requirement has led to a deluge of unconstitutional factfinding by sentencing courts. The Supreme Court has repeatedly made clear that under the Sixth Amendment, only a jury—not a judge—may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. But in analyzing whether a defendant’s three predicate offenses occurred on “occasions different from one another,” as they must have to support a penalty under the statute, lower courts around the country routinely make detailed factual findings regarding the timing, location, and conduct underlying each prior conviction, with no apparent jury involvement. The Supreme Court has repeatedly made clear in other statutory contexts that such findings are unconstitutional. Because there is no reason why the Sixth Amendment would apply any differently to the “occasions” requirement, it is likely that every sentence imposed under the Armed Career Criminal Act has been imposed unconstitutionally.