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. 

James Botti was indicted with conspiracy to commit mail fraud, bribery, and mail fraud under 18 USC §§ 1341 and 1346. The jury convicted Botti of mail fraud but hung on the conspiracy and bribery counts. Botti was scheduled to be sentenced for the mail fraud conviction on September 17, 2010. In light of the Skilling decision, District Judge Charles S. Haight Jr. ordered both sides to submit briefs and provide additional argument on Botti’s post trial motions.

Argument: On September 8, 2010, Judge Haight denied both Botti’s Motion for Judgment of Acquital and Motion for a New Trial. On September 17, 2010, Judge Haight sentenced Botti to six years in prison and a $25,000 fine. Botti was ordered to report to prison on November 29, 2011.

Botti appealed both the denial of the Motion for Acquittal and the Motion for a New Trial. On March 28, 2013, the Second Circuit affirmed the decision of the district court.  The Court held that plain error review applied to claim that instruction on honest services mail fraud allowed jury to find defendant guilty without finding a bribery or kickback scheme. The district court’s instruction was plain error, but didn’t affect defendant’s substantial rights or the fairness of the judicial proceedings. While the jury instruction was error, the case was not reversed because bribery was the only theory of honest services mail fraud presented to the jury.

In August 2014, Botti was transferred from a minimum security prison in West Virginia to a residential reentry center. Botti will be released in February 2015 and will then be on probation for three years.

Tried in the Southern District of New York, this case had been pending on appeal in the Second Circuit prior to the Supreme Court’s decision in Skilling. Bahel was a procurement officer at the United Nations and was charged with providing favorable treatment to Indian companies that submitted bids for contracts with the U.N. and with bribes and gratuities for receiving financial benefits from the companies. He was convicted of five counts of honest services fraud and one count of 18 U.S.C. 666.

Argument: The Second Circuit sought supplemental briefing following Skilling to determine its effect on Bahel’s honest services fraud convictions. Oral argument took place on January 13, 2011.  On October 26, 2011, the Second Circuit affirmed Bahel's conviction holding that "Section 1346 is broad enough to encompass honest services fraud committed by a foreign worker at the United Nations." 

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

Argument:  The Foreign Corrupt Practices Act (FCPA) applies to “an officer, director, employee, or agent” of a domestic concern or issuer.  The Government argues that “agent” means a common-law agent, but that reading of the statute is entirely at odds with both the FCPA’s plain text and the Act’s legislative history.  Congress intended for “agent” to mean a specific type of individual:  a foreign intermediary used to pay bribes.  If “agent” meant “common-law agent,” as the Government says, there would have been no need for Congress to specify “officer” or “employee”—both are “common-law agents.”  The legislative history also demonstrates that Congress had bribe-paying foreign “consultants” or “intermediaries” in mind when it crafted the FCPA to cover “agents.”  Reading the word “agent” broadly would raise serious concerns about extraterritorial application that Congress specifically sought to avoid.  Such a reading would also run afoul of well-established principles of lenity.