10-cv-04059-ERK (E.D.N.Y.)

NACDL commenced a lawsuit with the ACLU challenging a U.S. Customs and Border Protection policy that authorizes searches of the contents of travelers’ laptop computers and other electronic storage devices at border crossings, notwithstanding the absence of probable cause, reasonable suspicion or any indicia of wrongdoing. Filed in the Eastern District of New York, the suit sought to enjoin future enforcement of the policy. NACDL was both a plaintiff and co-counsel in the case, which was dismissed in December 2013 and pending reconsideration as of April 2014.

Memorandum and Opinion.

Argument: Haynes had served almost 27 years of a 46.5-year sentence for various offenses, including conspiracy to commit bank robbery, four counts of robbery. “A full 40 of those years are the mandatory consecutive terms for the two additional 18 U.S.C § 924(c) counts (“stacked” under then-current law) that the government charged in a superseding indictment only when Haynes declined a plea offer and exercised his right to trial.”

The Court reduced Hayes’ sentence to time-served, citing as ECR, “the brutal impact of Haynes's original sentence, its drastic severity as compared to codefendant Rivers's ten-year term, its harshness as compared to the sentences imposed on similar and even more severe criminal conduct today, and the extent to which that brutal sentence was a penalty for Haynes's exercise of his constitutional right to trial” and “ the FSA’ elimination of the § 924(c) sentencing weaponry that prosecutors employed to require that sentence. . . ”

Brief of the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers and New York Council of Defense Lawyers as Amici Curiae in Support of Defendant-Appellant.

Argument: The Circuit should hold that a frisk commences when an individual is forced to assume an “in search” position. Terry frisks have become a routine and routinely abused police tactic. Consistent federal-state application of the exclusionary rule is the only effective way to deter law enforcement from performing intrusive, humiliating, and unconstitutional body frisks. Unlawful Terry frisks are only challenged in criminal cases where suppression is unappealing but necessary. New York State courts recognize that suppression is a necessary and appropriate remedy to deter pretextual stop-and-frisks and police perjury. Deterrence will be undermined if federal and state courts assess Terry frisks differently and apply the exclusionary rule inconsistently.

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.

Attorney-client communications federal caselaw and state-specific anecdotal data in Vermont

Attorney-client communications federal caselaw and state-specific anecdotal data in New York

Attorney-client communications federal caselaw and state-specific anecdotal data in Connecticut

Brief Of Amici Curiae American Civil Liberties Union, Bronx Defenders, Cato Institute, Center for Appellate Litigation, Center on The Administration of Criminal Law at New York University School Of Law, Legal Aid Society, National Association of Criminal Defense Lawyers, National Police Accountability Project, New York Civil Liberties Union, New York State Chief Defenders Association, New York State Association of Criminal Defense Lawyers, and Office of the Appellate Defender Supporting Reversal.

Argument: Evidence fabrication is a serious and pervasive problem, and its innocent victims often do not obtain an “indication of innocence.” Requiring indicia of innocence for civil rights claims of evidence fabrication is unfair and unworkable. McDonough does not affect the substantive difference between malicious prosecution claims and fabrication claims, which address corruption of the criminal process regardless of probable cause. The District Courts’ rule would be unjust, unfair, and unworkable. The District Courts’ rule undermines the core accountability function of § 1983 in cases of very serious misconduct. The District Court’s rule would harmfully exacerbate the existing power imbalance against criminal defendants. The District Courts’ rule is not administrable and will yield arbitrary results.

Brief Of Amici Curiae American Civil Liberties Union, Bronx Defenders, Cato Institute, Center for Appellate Litigation, Center on The Administration of Criminal Law at New York University School Of Law, Legal Aid Society, National Association of Criminal Defense Lawyers, National Police Accountability Project, New York Civil Liberties Union, New York State Chief Defenders Association, New York State Association of Criminal Defense Lawyers, and Office of the Appellate Defender Supporting Reversal.

Argument: Evidence fabrication is a serious and pervasive problem, and its innocent victims often do not obtain an “indication of innocence.” Requiring indicia of innocence for civil rights claims of evidence fabrication is unfair and unworkable. McDonough does not affect the substantive difference between malicious prosecution claims and fabrication claims, which address corruption of the criminal process regardless of probable cause. The District Courts’ rule would be unjust, unfair, and unworkable. The District Courts’ rule undermines the core accountability function of § 1983 in cases of very serious misconduct. The District Court’s rule would harmfully exacerbate the existing power imbalance against criminal defendants. The District Courts’ rule is not administrable and will yield arbitrary results.

Brief of Amici Curiae Defense Organizations in Support of Defendant-Appellee and Affirmance.

Argument: New York First Degree Manslaughter is not an ACCA Predicate. New York First Degree Manslaughter is not a predicate under the career offender guidelines.

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

Argument: Padilla held that the Sixth Amendment requires defense counsel to advise non-citizen clients of the risk of deportation from a guilty plea. Denaturalization is just as closely tied to the criminal process and at least as severe a punishment as deportation—indeed, the end goal of denaturalization is typically deportation. Counsel therefore also has a Sixth Amendment duty to advise naturalized citizens of the risk of denaturalization and, ultimately, deportation from a guilty plea. Adopting such a rule would be consistent with prevailing norms of professional practice and impose little burden on defense counsel.

The trial of this case is ongoing. When the government rested, the defendants moved for judgment of acquittal on various counts. The District Court dismissed any counts brought under 18 USC § 1346 for defendants Hatfield and Brooks, but denied the motion for mistrial despite the inclusion of evidence and arguments on §1346. On September 14, 2010, the jury convicted Brooks of all 17 charges against him and Hatfield on 14 of the 16 charges against her.

Joseph Ganim was convicted of 16 counts, including mail fraud under §1341 and §1346, racketeering, extortion, bribery, and filing false tax returns, after a jury trial in April 2003. He unsuccessfully challenged his conviction at the District and Circuit levels and the Supreme Court denied his Petition for a Writ of Certioari. Ganim completed his prison sentence and began a 36-month supervised release in July 2010.

Argument: Following the Skilling decision, Ganim filed a Certificate of Appealability with the Second Circuit challenging his convictions in light of Skilling and requesting dismissal and briefing. The Second Circuit remanded the matter to the District Court for further proceedings. In September 2011, Ganim unsuccessfully petitioned to terminate his supervised release early. In 2012, Ganim petitioned to be readmitted to the bar of Connecticut, which a three-judge panel denied. Ganim appealed the decision to the Connecticut Supreme Court, but the Court rejected his appeal in April 2014.

Joseph Bruno was convicted of two counts of mail and wire fraud in December 2009 and filed an appeal with the Second Circuit in January 2010. He was sentenced in May 2010 and was released on bail until the U.S. Supreme Court released its honest services fraud decisions. On July 2, 2010, Bruno submitted a letter to District Court Judge Gary L. Sharpe articulating arguments to remain on bail pending release. Within this letter are substantive arguments concerning the status of his honest services fraud conviction in light of Skilling.

Argument: On appeal in the Second Circuit Court of Appeals the government has conceded that the court's jury instructions at trial were not proper under Skilling and that reversal is appropriate as a result of that instructional error. The government argued that a remand without prejudice to retry defendant Bruno is appropriate. The defense, however, argued that the government was barred from pursuing any additional charges under the Double Jeopardy Clause of the Constitution and dismissal with prejudice was thus the proper remedy. The court overturned Bruno's conviction, but called for a new trial in November 2011. The court said that the government had presented evidence from which a new jury could potentially conclude that Bruno committed the crime of depriving people of "honest services." Prosecutors refiled two charges on retrial. Bruno was acquitted in May 2014. In December 2014 the Attorney General signed off on the reimbursement of Bruno's legal fees.