Brief filed: 09/22/2021
United States v. Davita
Colorado; Case No. 21-cr-00229-RBJ
It is axiomatic that due process principles restrict criminal liability to violations of laws of which the accused has fair notice. Criminal liability may not attach to conduct that is beyond the scope of an unambiguous criminal proscription— and all close calls must be resolved in favor of the defendant. Where a criminal violation is not supported by clear, existing authority—or where it is even a close question—the reviewing court should dismiss the criminal indictment under Federal Rule of Criminal Procedure 12(b)(3)(B)(v). Doing so ensures fairness by avoiding the grave harms associated with criminal prosecution—which frequently cannot be remedied by eventual reversal on appeal—while preserving the Department’s ability to pursue the prosecution if a reviewing court sees the law differently. These principles strongly support dismissal of the indictment here. Existing authority does not support criminal liability on the basis of a no-solicitation agreement, which no court has ever held to be a per se violation of the Sherman Act. Allowing the prosecution to proceed in these circumstances would be inconsistent with existing law and the Department’s own policy statements—and would thus violate due process.
Carter G. Phillips and Jeffrey T. Green, Sidley Austin LLP, Washington, DC; Tacy F. Flint and Rachel L. Hampton, Sidley Austin LLP, Chicago, IL; Benjamin R. Nagin and Brianna O. Gallo, Sidley Austin LLP, New York, NY; David Oscar Markus, NACDL, Miami, FL.