Comments with FAMM to Deputy Attorney General Lisa Monaco regarding U.S. Attorney offices requiring waiver of the right to seek compassionate release during plea negotiations.

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.

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

Argument: The Eleventh Circuit reaffirmed that a person violates the CFAA by using a computer to access information for an improper purpose, even if otherwise authorized to access that information.  This reading goes beyond the CFAA’s text, fails to account for Congress’ intent in enacting it, and flouts the rule of lenity, which requires that ambiguous criminal statutes be construed in a defendant’s favor.  The decision below also interpreted the CFAA in a manner that raises due process concerns, both because it is an unconstitutionally vague reading of the statute and because it invites arbitrary and discriminatory enforcement, and thus the doctrine of constitutional avoidance requires that Petitioner’s reading of the statute prevail.  Further, an expansive reading of the CFAA would contribute to the trend of overcriminalization and give courts and prosecutors a backdoor method of updating criminal laws in response to changed technological—or potentially cultural, economic, or political—realities, something our constitutional structure reserves for Congress.

Brief of the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums as Amici Curiae in Support of Petitioner.

Argument: Judicial discretion to consider all information about the case and the offender is a time-honored principle of American law. Judicial discretion has historically been understood as a means of ensuring justice in individual cases. Congress has expressly affirmed judges' discretion to consider the fullest information possible. Abrogating judicial discretion in the sentencing context requires a clear statement of congressional intent. Section 924(c) does not abrogate a district court's discretion to consider the length of the section 924(c) mandatory minimum in imposing a sentence on the underlying offense. Sentence 924(c) does not clearly evince congressional intent to abrogate judicial discretion to consider the mandatory minimum sentence. Any ambiguity in section 924(c) must be resolved in favor of the defendant.

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.