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United States v. Clay
Brief for Amici Curiae National Association of Criminal Defense Lawyers, Washington Legal Foundation, Cato Institute, Reason Foundation and Twelve Criminal and Business Law Scholars In Support of Defendants-Appellant Todd S. Farha's Petition for Rehearing En Banc.
Argument: The Court should grant appellant's petition for rehearing and rehearing en banc. The Supreme Court in Global-Tech expressly held that "deliberate indifference" is a less demanding and therefore inadequate formulation of "knowledge." "Deliberate indifference" is not "knowledge." Permitting knowledge to be satisfied by proof of "deliberate indifference" would eliminate an essential check on prosecutorial power, violate the separation of powers, and open the floodgates for further overcriminalization.
Farha v. United States
Brief of Amici Curiae National Association of Criminal Defense Lawyers and Seventeen Law Professors in Support of Petition for a Writ of Certiorari.
Argument: The court of appeals' decision warrants this Court's review for four reasons. First, by substituting "deliberate indifference" for the statutory element of knowledge, the decision contravenes decades of this Court's mens rea jurisprudence, beginning with Morissette v. United States, 342 U.S. 246 (1952). Second, the decision conflicts squarely with Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011), which expressly rejected deliberate indifference as a substitute for knowledge. Third, downgrading knowledge to deliberate indifference would confer even greater discretion on federal prosecutors—who already hold enormous power—and violate the separation of powers. Fourth, the court of appeals' decision has potentially far-reaching consequences, given the broad array of federal criminal statutes that require proof of the defendant's knowledge.