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

Argument: The Second Circuit’s reliance-and-control theory of honest services fraud epitomizes the dangers of importing equitable doctrines into the criminal law. That theory goes far beyond the core of honest services fraud. It is – by design – a fact-dependent, elastic theory incapable of precise definition. The Court should reject it and reaffirm that malleable equitable principles have no place in honest services fraud or the criminal law generally.

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

This case is yet another example of overzealous prosecutors distorting the mail and wire fraud statutes – this time through the so-called “right-to-control” theory. That theory epitomizes the overcriminalization that plagues federal criminal law. It is an atextual invention of prosecutors that criminalizes a staggering amount of run-of-the mill dishonesty traditionally regulated, if at all, by States. And it eviscerates foundational due process protections. This Court has repeatedly rejected similarly aggressive interpretations of federal criminal statutes. The Court should do the same with the right-to-control theory.

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

Argument: The Court has explained “over and over” for more than twenty years that under the Sixth Amendment, “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.” E.g., Mathis v. United States, 579 U.S. 500, 511-20 (2016) (citing, inter alia, Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). A sentencing court “can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.” Id. at 511-12; see also, e.g., Alleyne v. United States, 570 U.S. 99, 111-12 (2013). Yet in the context of applying the Armed Career Criminal Act’s “occasions” test, the circuits routinely permit sentencing courts to do much more. Specifically, any factfinder conducting the inquiry prescribed in Wooden v. United States, 142 S. Ct. 1063 (2022), must make a series of fine-grained determinations pertaining not just to the elements of a defendant’s prior convictions, but also to the factual circumstances and real-world conduct that gave rise to them. When such findings are made to support an increased maximum penalty (as they indisputably are in this context), they must be made by a jury, on proof beyond a reasonable doubt. “That simple point” has become a “mantra” in this Court’s jurisprudence. Mathis, 579 U.S. at 510. But both before and since Wooden, lower courts conducting the occasions inquiry have routinely ignored it. Despite this Court’s repeated teachings, they routinely sift through “legally extraneous circumstances” to support ACCA enhancements, thus conducting the precise inquiry the Sixth Amendment and this Court’s precedents unambiguously prohibit. Descamps v. United States, 570 U.S. 254, 270 (2013); see also, e.g., Mathis, 579 U.S. at 510.

As Justices Gorsuch and Sotomayor suggested in Wooden, 142 S. Ct. at 1079, 1082-87, the time has come for the Court to reestablish the controlling force of its decisions. The courts of appeals have “missed more than a few * * * clear signs” that their current approach to the occasions inquiry is unconstitutional, United States v. Perry, 908 F.3d 1126, 1135 (8th Cir. 2018) (Stras, J., concurring) (citing, inter alia, Mathis, 579 U.S. at 510-11, Descamps, 570 U.S. at 268-69, and Alleyne, 570 U.S. at 111 n.1), and, despite the existence of at least five unambiguously correct separate opinions addressing the issue,  there is no indication that any lower court will change its approach unless and until this Court intervenes. The error on which the decision below (along with many others like it) depends will thus persist until the Court reaffirms its Sixth Amendment “mantra,” Mathis, 579 U.S. at 510, yet again. The Court should grant certiorari and do so. 

Brief for Professors Stephen Smith, Hadar Aviram, John Burkoff, and the National Association of Criminal Defense Lawyers, as Amici Curiae in Support of Petitioner.

Argument: When Congress uses a term that has acquired a well-established common-law meaning, it is presumed to adopt that meaning. The well-established common-law definition of "simple assault" uniformly required an attempt or threat to inflict injury on another. Nothing in § 111 overcomes the presumption that the term "simple assault" carries its common-law meaning. A circuit split has developed regarding whether the common-law definition of "simple assault" applies to § 111.

Brief of National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the ACLU Foundation Of Texas, Inc., the Cato Institute and the Rutherford Institute As Amici Curiae Supporting Petitioner.

Argument: NACDL’s amicus brief argues that the Fifth and Seventh Circuits’ rule would require § 1983 plaintiffs to initiate parallel federal litigation, contrary to principles of judicial economy, federalism, comity, and constitutional avoidance. Federal courts generally would stay a parallel § 1983 action under Pullman. Federal courts also may stay a parallel § 1983 action for declaratory relief. If federal courts do not stay a parallel § 1983 action, they risk making constitutional decisions unnecessarily or based on erroneous interpretations of state law. The Fifth and Seventh Circuits’ rule is unworkable and has no discernible benefit, despite its significant costs.

Brief of National Association Of Criminal Defense Lawyers, American Civil Liberties Union, and American Civil Liberties Union of Arizona as Amici Curiae in Support of Petitioner.

Argument: Amici submit this brief in support of petitioner's argument that Arizona's refusal to apply federal law--not merely in a single postconviction proceeding, but at every point throughout a criminal defendant's case--is not immune from this Court's review. Here, the Arizona courts have denied petitioner's Due Process claim under Simmons for more than a decade and a half, first on the grounds that Simmons did not apply to Arizona's sentencing scheme, and then, after this Court made clear that it does apply, on the ground that he should have raised it previously because Simmons applied all along. The only thing consistent about the Arizona Supreme Court's treatment of petitioner's Simmons claim is that petitioner loses either way. Under these circumstances, the Arizona Supreme Court's invocation of a procedural rule to bar petitioner's Simmons claim is not "independent and adequate," and does not bar this Court's review.

Brief of Amici Curiae Americans For Prosperity Foundation, Dream Corps Justice, National Association of 
Criminal Defense Lawyers, Niskanen Center, Right On Crime, The R Street Institute, and The Sentencing Project in Support of Petitioner.

Argument: A sentencing judge should not be allowed to functionally overrule a jury's tal acquitof a criminal defendant and punish him for that same acquitted conduct. Yet all too many criminal defendants who were acquitted of more serious criminal charges but convicted on one or more lower charges face judges doing just that. How is this constitutionally dubious sentencing practice possible? Put simply, many lower courts have mistakenly overread this Court's per curiam decision in Watts to permit sentencing judges to do what Apprendi and its progeny later prohibited; namely, find facts that increase the punishment beyond that authorized by the jury's findings of guilt. Acquitted-conduct sentencing flips the presumption of innocence on its head by allowing judges to functionally overrule unanimous jury acquittals based on judge-found facts using the far lower preponderance standard, gutting the Sixth Amendment's jury-trial right. At a minimum, the Sixth Amendment jury-trial right, coupled with the due process requirement that all facts necessary to legally authorize punishment must be proven beyond a reasonable doubt, should bar judges from using the same alleged conduct a jury acquitted a defendant of to justify dramatically increasing a defendant's Guidelines range and sentence.

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

Argument: Oklahoma asserts authority to prosecute crimes committed by non-Indians against Indians in Indian country concurrently with the federal government's authority under the General Crimes Act, 18 U.S.C. § 1152. ("GCA"). Pet. Br. 2-3. That post- McGirt v. Oklahoma, 140 S. Ct. 2452, 2463 (2020), power grab contradicts a century of history, precedent, and policy that allocates to the federal government and the tribes exclusive jurisdiction-- to the exclusion of the States--over Indian country crimes involving Indians absent clear congressional authorization to the contrary. Respondent and his amici demonstrate those points. This brief shows that basic principles of criminal liability rooted in the separation of powers, due process, and traditional restraint in construing criminal laws corroborate that conclusion.

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

Argument: This case presents the question of the appropriate mens rea requirement for substantive drug offenses under 21 U.S.C. § 960. Section 960(a), which codifies the Anti-Drug Abuse Act of 1986, prohibits “knowingly or intentionally” importing or exporting a controlled substance. Section 960(b), in turn, specifies a series of aggravated offenses—and correspondingly severe punishments—based on the type and quantity of the “controlled substance” involved. See 21 U.S.C. § 960(b). A defendant who imports or distributes 280 grams of crack-cocaine, for instance, faces a mandatory minimum of ten years in prison. Id. § 960(b)(1)(C). A defendant who imports or distributes the same amount of marijuana faces no mandatory minimum and only a five-year statutory maximum. Id. § 960(b)(4) (cross-referencing id. § 841(b)(1)(D)). The question in this case is whether the government can subject a defendant to these escalating mandatory minimums and maximums without proving that he knew which illegal drug he was importing or the quantity of that illegal drug. The answer is no: Courts presume a statutory mens rea requirement applies to “all the material elements of the offense.” Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019) (internal citation omitted). And any fact that increases the statutory minimum or maximum under Section 960 (or any other statute) is an element of an offense. See Alleyne v. United States, 570 U.S. 99, 116 (2013); Apprendi v. New Jersey, 530 U.S. 466, 476–85 (2000). Therefore, defendants must know what drug they were importing before a court can subject them to statutorily increased sentences. See United States v. Collazo, 984 F.3d 1308, 1338 (9th Cir. 2021) (en banc) (Fletcher, J., dissenting).

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

Argument: The New York Court of Appeals held that law enforcement may question an individual in custody regarding “pedigree” information without violating Miranda if the questions asked are not “a disguised attempt at investigatory interrogation.” Pet. App. 7a. As the Petition explains, the Court should review this holding because it reinforces a deep and abiding conflict of authority regarding the scope of the “booking exception” to Miranda, Pet. 7-12, and because the New York Court of Appeals erred in its approach to that exception, Pet. 12-15.

Brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the Arkansas Civil Liberties Foundation as Amici Curiae in Support of Petitioner.

Argument: Courts of appeals that have rejected petitioner's view of Section 2255(e) have held that relief under Section 2241 is available only if an incarcerated individual shows that Section 2255's remedy "was" inadequate or ineffective at the time of the individual's "first § 2255 motion." Pet. App. 7a (emphasis [*8] added); see also McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017) ("The petitioner bears the burden of establishing that the remedy by motion was 'inadequate or ineffective to test the legality of his detention.'") (emphasis added) (internal citation omitted); Prost v. Anderson, 636 F.3d 578, 594 (10th Cir. 2011) (similar). In other words, these courts have focused on the adequacy or efficacy of the remedy under Section 2255 in the past. This reasoning departs from the plain text of that statute. The relevant text of Section 2255(e) focuses on the present. It allows federal prisoners to seek habeas relief under Section 2241 when the remedy provided by Section 2255 " is inadequate or ineffective to test the legality of [their] detention." 28 U.S.C. § 2255(e) (emphasis added). Put another way, this saving clause asks whether Section 2255's remedy is currently inadequate or ineffective, not whether it was inadequate or ineffective.

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

Argument: Both federal appellate courts and state courts of last resort have inconsistently decided whether the Fourth Amendment protects social guests from unreasonable searches when they visit a home but do not spend the night. In the decision below, the New York Court of Appeals widened this split by ruling that a social guest who [*5] visited for dinner, but did not stay the night, did not have standing to challenge the search of his host's home. See People v. Ibarguen, 37 N.Y.3d 1107, 1107-08 (2021). The inconsistent application of the Fourth Amendment [*6] to social guests also degrades the efficacy of the exclusionary rule in providing clear standards for police conduct and concomitant deterrence of police misconduct by making it difficult to institutionalize uniform practices and compliance through widely-used training materials.

Brief of Amici Curiae Due Process Institute and the National Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: This case presents the question of whether a defendant's prior conviction for statutory rape under a state law that criminalizes consensual sexual conduct between a 21-year-old and a 17-year-old can subject that defendant to a mandatory 15-year minimum sentence. Last year, the Ninth Circuit considered this question and answered "no." See United States v. Jaycox, 962 F.3d 1066. But in the decision below, the Fourth Circuit answered "yes." See Pet.App.12a-14a. In doing so, the Fourth Circuit increased Petitioner Hardin's mandatory minimum sentence from 5 years to 15 years and doubled the statutory maximum he faces from 20 years to 40. The Court should resolve this clear circuit split, which could subject hundreds of persons per year to thousands more collective years in prison based solely on geographical happenstance. As the petition explains, the Fourth Circuit's decision misinterprets the [*5] relevant statutory term--18 U.S.C. § 2252A (b)(1)'s mandatory sentencing enhancement for prior convictions "relating to . . . abusive sexual conduct involving a minor"--and distorts this Court's settled method for applying the categorical approach to sentencing enhancements. The result is a decision holding conduct that is legal in 39 States and the District of Columbia to be categorically "abusive sexual conduct" under a federal law that subjects a defendant to a 15-year mandatory minimum.

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

Argument: This case raises a question of fundamental importance to our criminal justice system. The circuits are split down the middle with respect to whether Brady v. Maryland, 373 U.S. 83 (1963), and its progeny impose affirmative obligations on criminal defendants to seek out exculpatory evidence from other sources even when the government already possesses the evidence in question. This dispute has created uncertainty about the scope of Brady's protections and has imposed investigatory obligations on some criminal defendants while imposing no such obligations on others. And it raises fundamental questions about the nature of our criminal justice system and the Constitution more broadly. These questions deserve this Court's immediate attention.

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

Argument: This amicus brief illustrates that the sweeping application of Section 1028A is a symptom of the federal overcriminalization epidemic, enabling unelected prosecutors to consolidate even more charging and plea-bargaining power. This brief also demonstrates that the statutory purpose of Section 1028A is wholly at odds with the Fifth Circuit’s expansive reading. Simply put, Congress did not intend to criminalize Dubin’s conduct under Section 1028A, a law enacted in 2004 to address the “growing problem of identity theft,” targeting those who “use false identities to commit much more serious crimes.” Congress identified numerous examples of criminal acts covered under the statute—none of which remotely resembles Dubin’s conduct and all of which involve the use of personal information to impersonate another. In other words, the statute was intended to punish theft of an identity, something that did not happen here.