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    • Brief

    United States v. Holmes

    Amicus Curiae Brief on Behalf of the National Association of Criminal Defense Lawyers in Support of Appellant and Reversal

    Argument: The Federal Rules of Criminal Procedure and of Evidence work together to ensure that a criminal defendant can confront and challenge an expert witness proffered by the prosecution. Rule 16 requires the prosecution to timely disclose the identity of an expert witness, and the basis for that expert’s testimony, sufficiently before trial to permit a criminal defendant to mount a complete defense. And the rules of evidence—in particular, Rules 701 and 702—ensure that an expert’s testimony is based on reliable, verifiable data that can be the subject of rigorous cross-examination. In this prosecution, the defendant, Elizabeth Holmes, was robbed of the protections of these rules. The government disclosed a lay-turned-expert witness—on the critical question of whether Theranos technology worked— on the eve of trial, years after the Rule 16 deadline had passed. Worse, that expert testimony relied upon data that no longer existed, meaning it was neither reliable nor verifiable, and could not be the subject of meaningful crossexamination or responsive testimony. This sleight of hand is, regrettably, common. The government has previously “subvert[ed] the requirements” of the federal rules, and “blur[r]ed the distinction between” expert and lay testimony. United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997). It also frequently discloses expert witnesses way beyond the deadlines set forth in Rule 16. See United States v. Yagi, 2013 WL 10570994, at *16 (N.D. Cal. Oct. 17, 2013); United States v. Cerna, 2010 WL 2347406, at *1 (N.D. Cal. June 8, 2010). This appeal is an opportunity to call the government to account for these harmful practices.

    • Brief

    United States v. Jones, 482 F.Supp.3d 969 (N.D. Cal. Aug. 27, 2020)

    Order granting motion for compassionate release.

    Argument: Anthony Jones pleaded guilty to several counts, including five 924(c) counts. He was sentenced to 357 months, which the court reduced to time served in granting his motion, a total reduction of 15 months.

    On retroactivity:  “It cannot be denied that FSA § 403reflects a “legislative rejection” of stacking and a “legislative declaration of what level of punishment is adequate” for violations of 18 U.S.C. § 924(c). Redd, 444 F.Supp.3d at 723-24. Though the statute did not provide automatic relief to defendants like Mr. Jones, it has in no uncertain terms established that sentences like Mr. Jones's “unfair and unnecessary.” Id.”

    On finality of sentencing:

    “The Court likewise rejects the Government's objection that reducing a defendant's sentence based on subsequent legal changes would “undermine the finality of sentences.” Opp. at 9. Although “the principle of finality” is indisputably “essential to the operation of our criminal justice system,” Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), it is not without exceptions. As the Ninth Circuit has explained, sentence reductions under 18 U.S.C. § 3582(c) are “acts of lenity”; as such, they “are not constrained by the general policies underlying initial sentencing or even plenary resentencing proceedings.” United States v. Padilla-Diaz, 862 F.3d 856, 861 (9th Cir. 2017). In other words, 18 U.S.C. § 3582(c) represents Congress's judgment that the generic interest in finality must give way in certain individual cases.”

    • Brief

    United States v. Gerald Green and Patricia Green

    • Brief

    United States v. Stuart Carson, et al.

    Case materials from the Foreign Corrupt Practices Act (FCPA) prosecution of Stuart Carson, United States v. Stuart Carson, et al., No. 8:09-cr-00077-JVS.

    Argument: Control Components Inc. (CCI), a California based company, plead guilty in July 2009 to violations of the FCPA and the Travel Act. The government indicted CCI and some of its former employees for allegedly engaging in “a conspiracy to secure contracts by paying bribes to officials of foreign state-owned companies as well as officers and employees of foreign and domestic private companies” in about 36 countries. Seven defendants were convicted and received varying sentences ranging from home detention to more than three months incarceration.

    Unavailable documents
    • Tentative Order Denying Motion to Dismiss Indictment (May 14, 2012)
    • Superseding Indictment of Paul Cosgrove (May 25, 2012)

    More Stuart and Rose Carson documents from DOJ


    "Recent Sentencing Activity," FCPA Professor Blog, April 30, 2013.

    "DOJ recommends no jail for three CCI execs," FCPA Blog, February 7, 2013.

    "Control Components CEO, Sales Manager Sentenced in FCPA Case," The Wall Street Journal, November 9, 2012.

    "Edmonds [Final Defendant in Carson Case] Pleads Guilty As Trial Nears," FCPA Professor Blog, June 18, 2012.

    "Guilty Plea in FCPA Case a Rare Victory for Government," The National Law Journal, May 31, 2012.

    "Judge Selna Rejects State Actor Theory – [Denies Defense Motions to Suppress and Dismiss]," FCPA Professor, May 16, 2012. 

    "Husband And Wife Plead Guilty To FCPA Violations," The Wall Street Journal, April 17, 2012.

    "Defendants in Carson FCPA Case File Two New Motions Attacking DOJ's Relationship With Their Corporation (Who Has Cooperated)," Federal Securities Law Blog, March 6, 2012

    "In Carson Case, DOJ Agrees 'Foreign Official' Knowledge Is Required," FCPA Blog, September 27, 2011

    "Judge Denies Travel Act Challenge," FCPA Blog, August 15, 2011

    "Carson 'Foreign Official' Challenge Moves To Jury Instructions," FCPA Professor, July 5, 2011

    • Brief

    United States v. Enrique Faustino Aguilar, et al. (Lindsey Mfr.)

    Case materials from the Foreign Corrupt Practices Act (FCPA) prosecution of Lindsey Manufacturing, United States v. Enrique Faustino Aguilar, et al., No. CR 10-1031-AHM.

    Argument: Lindsey Manufacturing was the first company to be tried and convicted of FCPA violations. A jury in the Central District of California found the company, a privately held manufacturer for electrical transmission and related products, guilty of one count of conspiracy to violate the FCPA and five counts of FCPA violations in May 2011 for its alleged involvement in making payments to a Mexican state-owned utility company. In December 2011, a U.S. District Court Judge, A. Howard Matz, ruled that the prosecution had engaged in blatant misconduct and committed egregious Brady violations. The convictions were vacated and the indictment was dismissed. In May 2012 the Department of Justice voluntarily dismissed the case.

    More documents from DOJ


    "Government Dismisses Lindsey Manufacturing Case Appeal," White Collar Crime Prof Blog, May 25, 2012.

    "Judge Dismisses Landmark Bribery Conviction, Rips DOJ," The Wall Street Journal, December 1, 2011. [Related story on Government’s appeal]

    "Lindsey Manufacturing Defendants Convicted On All Counts," Wall Street Journal Law Blog, May 10, 2011.

    "Lindsey Case: Judge Issues Written Ruling on 'Foreign Official,'" The FCPA Blog, April 21, 2011. [Related coverage and analysis from The FCPA Blog and FCPA Professor]  

    "Historic Test For FCPA In Lindsey Trial," The FCPA Blog, April 1, 2011.

    • Brief

    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.