Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Defendant–Appellee Thomas P. Thayer.

Argument: This appeal presents a straightforward legal question: Does the SORNA registration duty imposed on an “individual who was convicted of a sex offense,” U.S.C. § 20911(1), defined as “an offense against a minor that involves . . . [a]ny conduct that by its nature is a sex offense against a minor,” id. § 20911(7)(I), require a court to analyze the defendant’s predicate “offense” under the categorical approach to assess its “nature,” or should the court look to the particular facts underlying the defendant’s crime? Section 20911(7)(I) bears all the textual and structural signals requiring a categorical approach. And the government’s fact-specific approach raises significant constitutional and practical concerns. Because Thayer’s Minnesota conviction was for an offense sweeping more broadly than Section 20911(7)(I)’s definition of “sex offense,” Thayer had no duty to register, and the district court correctly dismissed the indictment.

Amended Motion (Nov. 19, 2020)

Order (July 28, 2021)

Argument: Hernandez had a great COVID argument and a great excessive sentence argument, but both were foreclosed by Seventh Circuit opinions (Broadfield and Thacker) before court could rule.  Instead, district court relied on remaining issues--changing attitudes about marijuana--as the extraordinary and compelling reasons and granted a reduction time-served. 

Memorandum Opinion and Order

Argument: Both medical issues and 924(c) stacking were factors. Sentencing court noted at the time that stacking was unjust, but was mandatory. FSA passed while resentencing appeal was pending – 7th Cir. found that provisions did not apply because they were not retroactive. Change in law and disparity between Sparkman’s sentence and that of more-culpable codefendants who did receive the benefit of amendments to 924(c) were relevant.

Memorandum and Order granting compassionate release

Argument: Deric Brown pled guilty to seven counts of robbery and two 924(c) counts. The court granted a reduction of 624 months to 408 months – from the old mandatory minimum to the new one, based on the disparity in sentencing and Brown’s “complete 180-degree change in attitude and conduct.”

Walking through factors in favor of relief:

“If Brown had been sentenced today rather than in 2002, there is no question that he would have received 408 months’ imprisonment, rather than 624 months. This is an 18-year difference on a mandatory, consecutive term. Moreover, Brown's sentences for the predicate offenses may have been lower, resulting in a lower sentence overall. Dean v. United States, 137 S. Ct. 1170, 1176–77 (2017) (permitting sentencing courts to consider mandatory minimum sentences imposed under § 924(c) when determining the appropriate sentence for a predicate offense). This disparity is significant, as demonstrated not only by Congress's decision to amend the statute to clarify its intent, but also by the pure fact of it: 18 years is a long time to remain incarcerated; indeed, it is nearly as long as Brown has already been incarcerated. Finally, the reason for the disparity is simply that the original statute was interpreted a certain way—ultimately, in a way that led to “unfair and unnecessary” sentences. Redd, 2020 WL 1248493, at *6. There is no penological justification at play, here.” At *4.

Motion for Compassionate Release (Jan. 24, 2021)

Response (Mar. 8, 2021)

Opinion and Order (April 12, 2021)

Argument: Section 851 compassionate release reduction from life to time served in powder/crack cocaine PWID conspiracy.  The court noted Mr. Brisco’s clean disciplinary record, the GED he’d earned, and that he had “already has served more than 20 years in prison, and he has compiled an admirable record there.” 

The opinion also gives cautionary language f that is a good reminder for us to make sure we flesh out the unique and individualized circumstances of our clients under 3553a:

Contrary to defendant’s broad interpretation, the court of appeals did not hold that an unjust life sentence based solely on a change in the law is a freestanding basis for compassionate release. . . . I am persuaded that the unique circumstances and other factors present in this case warrant a sentence reduction for defendant.

Order Granting Compassionate Release

Argument: Pira was diagnosed with terminal lung cancer since he was sentenced in 2017. The government joined in recommending release. The court found that Mr. Pira's continued vulnerability to COVID (despite having survived one bout of COVID and having received one dose of a vaccine) “substantially diminishes [his] ability . . . to provide self-care within the environment of a correctional facility.”

Emergency Motion for Compassionate Release (Dec. 23, 2020)

Supplemental Letter from Dr. Paul T. Gross (January 7, 2021)

Order & Opinion (January 8, 2021)

Argument: Defendant’s request for compassionate release was denied in the summer, and in winter contracted COVID-19 and had to be intubated.  The attorney filed a renewed emergency motion for compassionate release, accompanied by a letter from one of our volunteer doctors.

Attorney-client communications federal caselaw and state-specific anecdotal data in Wisconsin

Attorney-client communications federal caselaw and state-specific anecdotal data in Indiana

Attorney-client communications federal caselaw and state-specific anecdotal data in Illinois

Defendants filed their 28 U.S.C. § 2255 Petitions in February 2010 and the court stayed further proceedings until after the Supreme Court decided Skilling. Briefing was completed on September 30, 2010.  On November 7, 2011, the district court denied petitioner’s motion, holding that they engaged in a single fraudulent scheme to award City jobs and promotions to political supporters and that petitioners necessarily deprived the City of its property rights. 

Argument: Thus, the erroneous honest services jury instructions were harmless in light of government’s alternative theory of money-property fraud.  Defendant’s appealed.  On February 27, 2013 the 7th Circuit Court of Appeals affirmed the district court’s decision and held that constitutional error in jury’s receipt of honest services theory of mail fraud was harmless.

On August 7, 2010, the Seventh Circuit affirmed Cantrell’s conviction on four honest services counts on the grounds that the government proved kickbacks, as required by Skilling.  On February 7, 2012, the defendant filed a petition to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on the theory of ineffective assistance of counsel at the trial and appellate level.

Argument: On March 29, 2013, the Northern District of Indiana denied that motion because defense counsel was not required to predict the outcome of Skilling and Black.  Also, the court found that appellate counsel acted reasonably in their representation after those decisions were handed down.

The U.S. Supreme Court vacated Black’s honest services fraud and obstruction of justice convictions and remanded to the 7th Circuit to determine whether the convictions could stand. The case is now with the 7th Circuit. On July 19, 2010, the Court granted Black’s contested motion for bail pending resolution and ordered the parties to submit written arguments in light of Skilling.

Argument: A three-judge panel of the 7th Circuit heard oral arguments on September 29, 2010. On October 29, 2010, the 7th Circuit issued a decision reversing two of the fraud convictions, affirming the one remaining fraud conviction and the obstruction of justice conviction, and remanding for re-trial and/or re-sentencing. Black appealed that decision to the Supreme Court. On February 17, 2011, Black filed a petition for a Writ of Certiori. On May 31, 2011, the Supreme Court denied Black's petition from the 7th Circuit decision.

On January 13, 2011, the Government announced that it will not seek to retry Black on the reversed charges. Black was resentenced on June 24, 2014 to 42 months in prison and the court agreed to accept time served for the 29 months Black spent in federal prison. Conrad was released from prison on May 4, 2012.

In The US Disctrict Courts For the Northern District of Illinois Eastern Division: United States of America v. Daoud 

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR NOTICE OF FISA AMENDMENTS ACT EVIDENCE PURSUANT TO 50 U.S.C. §§ 1881e(a), 1806(c)

MOTION FOR ADDITIONAL DISCOVERY REGARDING THE GOVERNMENT’S SURVEILLANCE AND INVESTIGATION OF DEFENDANT

Brief of Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union Foundation, ACLU of Wisconsin, Inc., and the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant.

Argument: The warrant violated the Fourth Amendment because it failed to particularly describe what was being searched and where those searches would occur. Particularity was critical given the series of invasive searches and seizures carried out each time the malware was deployed. Other constitutionally suspect types of warrants offer far more particularity than the warrant here.