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.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers In Support of Petition for a Writ of Certiorari

Argument: Over 200 years ago, this Court declared that there are no federal common law crimes. Although that rule remains in place, the intervening years have witnessed the creation of quasi-common law crimes. These are crimes that rest on statutory terms so broad and indefinite that courts are left to define the elements of the offense with little or no guidance from the statutory text. Quasi-common law crimes shift the task of defining what conduct deserves "the moral condemnation of the community" from the legislature, where it belongs, to the courts. This Court has sought to remedy the lack of fair warning inherent in quasi-common law crimes through a process of interpretation that often resembles common law crime definition. Insider trading liability--and, in particular, the liability of tippers and tippees at issue here—has followed the same pattern. In the tipper/tippee insider trading context, therefore--as in the antitrust and honest services contexts--the Court, rather than Congress, has determined the elements of the crime. And as in those contexts, a person seeking to conform his conduct to the law when trading on a tip of nonpublic information will learn virtually nothing from the statutory text. He must turn instead to Dirks' "simple and clear 'guiding principle' for determining tippee liability" and act accordingly. The Court's definition of these and other quasi-common law crimes--its creation of "simple and clear guiding principle[s]" for determining whether an offense has been committed--ameliorates (but does not eliminate) the fair warning danger such crimes present. But the Court's decisions perform that function only if the lower courts treat their operative language as if Congress had included that language in the statute itself. If lower courts can modify the Court's "guiding principles" materially, as the court of appeals did here, and thus broaden the scope of criminal liability, then the lack of fair warning inherent in quasi-common law crimes will remain. It is therefore essential to individual liberty that the Court rigorously police the lower courts' application of its decisions defining quasi-common law crimes. The need for the Court's intervention is particularly acute here, because the court of appeals endorsed an expansion of the tipper/tippee insider trading crime that the Court declined to adopt in Salman.

Brief for the New York Council of Defense Lawyers and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Appellant's Petition for Rehearing En Banc.

Argument: The panel’s ruling is inconsistent with Newman, Dirks and Salman, and undermines the vitality of the "personal benefit" requirement. Constitutional principles counsel against the panel's expansive extension of insider trading law.

Brief for the New York Council of Defense Lawyers and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Appellant's Petition for Rehearing or Rehearing En Banc.

Argument: The panel improperly overruled binding circuit precedent. The panel's ruling is inconsistent with Dirks and Salman, and undercuts the vitality of the "personal benefit" requirement. Constitutional principles counsel against the panel's expansive extension of insider trading law.

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

Argument: The District Court’s jury instructions conflict with the fundamental principle that a defendant must know the facts that make his conduct illegal. Basic principles of mens rea require proof that the defendant knew the facts that made his conduct unlawful. The federal securities laws require proof that a tippee knew the original tipper of inside information disclosed information in exchange for a personal benefit. The requirement of proof of knowledge that the original tipper disclosed information in exchange for a personal benefit is particularly important in cases involving remote tippees.

Brief of National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers as Amici Curiae Opposing the Petition of the United States for Rehearing or Rehearing En Banc.

Argument: The panel’s definition of “personal benefit” represents a faithful application of Dirks and a welcome clarification of the law in this Circuit. The panel correctly applied Dirks. The panel properly clarified the applicable standard for personal benefit. A loose standard for personal benefit would raise serious issues under due process and separation of power principles.

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

Argument: The decision below improperly extends the crime of insider trading to conduct never criminalized by Congress. The rule of lenity provides additional reasons to reject the rule adopted below. The decision below exemplifies a broader pattern of over-criminalization through expansive interpretation of federal criminal laws.