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

Argument: Non-unanimous juries are fundamentally different and less deliberative than the Sixth Amendment requires. Non-unanimous juries also fundamentally skew the decision of whether to exercise the jury trial right. The pernicious racial origins of the non-unanimity rule further undermine the Sixth Amendment jury trial right.

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

Argument: Like Gideon v. Wainwright (the only case the Supreme Court has recognized as falling within Teague v. Lane’s watershed rule exception), Ramos v. Louisiana is a watershed rule and therefore, under Teague v. Lane, applies retroactivity to cases on collateral federal review.  Ramos, like Gideon, overturned a badly flawed, errant precedent to restore a bedrock Sixth Amendment right.  Ramos, like Gideon also increases the accuracy of convictions, when accuracy is properly understood to refer to the fairness of the process and the likelihood that the defendant received procedural protections guaranteed by the Constitution, rather than the likelihood that actual guilt or innocence is determined.

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, Mississippi Office of the State Public Defender, and Mississippi Public Defenders Association In Support of Petitioner.

Argument: The Supreme Court has held that life without parole is appropriate only for a “permanently incorrigible” juvenile offender.  States like Mississippi that do not require a finding of permanent incorrigibility are not reliably implementing that command because offenders receive life-without-parole sentences even if they are capable of change.  Mississippi’s approach also produces arbitrary sentencing outcomes, because a juvenile’s sentence depends on whether his sentencer independently comprehends Miller, not on whether he is actually permanently incorrigible.  States that require a finding of permanent incorrigibility ensure that juvenile offenders only receive life-without-parole sentences when the sentence is proportionate and lawful.  Sentencers can still impose life-without-parole sentences when an offender is actually permanently incorrigible. 

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

Argument: Taylor's categorical approach applies to all ACCA predicates. A prior conviction that lacks a mens rea element cannot constitute a "serious drug offense." ACCA's legislative history affirms that state drug convictions lacking a mens rea requirement do not qualify as "serious drug offenses." ACCA will continue to have a geographically disparate impact unless the categorical approach is applied. 

Brief for Amici Curiae National Association of Criminal Defense Lawyers and National Association of Federal Defenders in Support of Petitioner.

Argument: Criminal Court records of conviction are often ambiguous, particularly in misdemeanor cases. In many lower criminal courts, misdemeanor convictions are not "on the record." Misdemeanor records often omit key information about the conviction. Even where misdemeanor records once existed, they may have been destroyed or may be otherwise inaccessible. Because criminal records are often ambiguous, the Eighth Circuit's approach leads to inconsistent immigration outcomes. Under the Eighth Circuit’s approach, two noncitizens convicted of the same divisible misdemeanor offense in different counties in the same state could face different immigration outcomes depending on the completeness of the Shepard documents from their criminal cases. When noncitizens are faulted for the paucity of these records, it creates a system in which immigration outcomes are tied to the bureaucratic decisions of county clerks’ offices and the idiosyncrasies of courts’ guilty plea processes. Such a system is wholly inconsistent with the categorical approach, which seeks to guarantee that “all defendants whose convictions establish the same facts … be treated consistently, and thus predictably, under federal law.” Moncrieffe, 569 U.S. at 205 n.11. 

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

Argument: Because Oklahoma law allows challenges to the subject-matter jurisdiction of a criminal court to be raised at any time, the procedural bar applied by the state court of last resort was not an adequate ground in state law to avoid jurisdiction under 28 U.S.C. § 1257. The Court should reverse the decision of the state courts and remand with instructions to dismiss the charges against petitioner, because Congress has the sole prerogative to set the limits of state criminal jurisdiction in Indian country, and Congress has never given Oklahoma the authority to prosecute crimes committed by Indians in Indian country in that state.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for a Writ of Certiorari). 

Argument: In this case, the Eleventh Circuit reaffirmed that a person violates the CFAA by using a computer to access information for an improper purpose, even if that person is otherwise authorized to access that information. This holding warrants review because it reinforces a conflict of authority regarding the meaning of “authorized access” under the CFAA and because the Eleventh Circuit was wrong on the merits. Review also is warranted because the question presented is important. Computers are ubiquitous in daily life. It is important that the Court clarify that ordinary deviances from terms-of-use requirements— whether imposed by internet websites or private company use guidelines, to name but a few—are not criminal. Review also is necessary because the Eleventh Circuit’s decision deviates from settled practices for construing federal criminal statutes. Because the Eleventh Circuit’s decision and those courts on its side of the open and acknowledged split of authority break from this approach at every level, this Court should grant review.

Brief of the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner (on Petition for a Writ of Certiorari).

Argument: Law enforcement officers testifying on matters based on their professional experience or training should be treated as expert witnesses under Federal Rule of Evidence 702, rather than Rule 701.  Law enforcement officers have scientific, technical, or specialized knowledge within the scope of Rule 702.  There is an intractable Circuit split on this issue and the Supreme Court should grant certiorari.  The question presented arises in a wide variety of cases.  Permitting law enforcement officers to furnish lay opinion testimony leads to unfair applications, including law enforcement officers being allowed to offer opinions no other lay witness would be permitted to give.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for a Writ of Certiorari).

Argument: The Fourth Circuit’s holding in this matter warrants review for the additional and important reason that that it allows officers to conduct searches for weapons despite the fact that the officers’ reasonable suspicion went only to drug use. Blanket rules of reasonable suspicion based upon drug use alone violate this Court’s precedent and the Fourth Amendment, which require greater respect for individual liberty from search and seizure. Moreover, as this Court articulated in Richards v. Wisconsin, stereotypical inferences about drug use and firearm risk create both “over-generalization” and bootstrapping concerns that would allow the reasonable suspicion requirement to expand so broadly that it would provide no meaningful check on potential Fourth Amendment violations. Finally, the Fourth Circuit’s holding denies Petitioner independent appellate review (i.e., without deference to the trial court determination) of ultimate determinations of reasonable suspicion, as this Court requires pursuant to Ornelas v. United States.

Brief of the National Association of Criminal Defense Lawyers and National Association of Federal Defenders as Amici Curiae in Support of Respondent. 

Argument: 8 U.S.C. § 1324(a)(1)(A)(iv)’s criminalization of a person who “encourages or induces an alien to come to, enter, or reside in the United States knowing or in reckless disregard of the fact” that it would be in violation of the law is unduly broad under the First Amendment.  The prohibition also violates the void-for-vagueness doctrine under the Due Process Clause of the Fifth Amendment.  “Encouragement” and “Inducement” are indefinite terms and depend on subjective determinations.  This provides insufficient notice to the public and invites arbitrary and selective enforcement.  The statute’s failure to specify a mens rea for “encourages or induces” exacerbates this problem.  The statute would also chill First Amendment-protected speech. 

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.

What should a defense attorney do when a client pleads guilty, signs an appeal waiver, and then wants to appeal after sentencing? Obey the client and file a notice of appeal.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner and Supporting Reversal.

Argument: In deciding when to impose a “strike,” Congress incorporated the well-established merits-based distinction between a with-prejudice dismissal and a without-prejudice dismissal. Treating a dismissal without prejudice as a strike undermines the Judiciary’s inherent equitable power to leave the courthouse doors open to meritorious claims brought by indigent prisoners. Treating a without-prejudice dismissal as a strike penalizes poor prisoners for proceedings pro se and stifles meritorious claims.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioners (on petition for a writ of certiorari).

Argument: The legislative history of the Sherman Act strongly supports the petition in this case. That history shows that the framers of the Sherman Act intended for juries to decide whether any particular contract or combination was in restraint of trade. Furthermore, the need for this Court to answer the question presented is particularly pressing because the government is bringing increasing numbers of criminal antitrust prosecutions, and persistent calls for still more aggressive enforcement indicate that those numbers will rise even further.