Letter to the Advisory Committee on Local Rules chairman regarding proposed changes to criminal disclosure rules in the U.S. District Court for the District of Columbia.

Attorney-client communications federal caselaw and state-specific anecdotal data in District of Columbia

In November 2005, Scanlon pled guilty to a one-count information charging conspiracy with three objects, bribery, mail and wire fraud, and honest services fraud. Folling the Skilling decision, Scanlon moved to modify or amend his plea agreement. The court ordered brief, heard oral argument, and on November 30, 2010, denied the motion. On February 11, 2011, District Court Judge Huvelle sentenced Scanlon to 20 months in federal prison.

The first trial, held in fall 2009, resulted in a hung jury on all ten counts (six under 18 USC 1346 and one conspiracy). In response to the government’s attempt to bring the case to trial again, Ring filed a motion for judgment of acquittal, based heavily on the recent Skilling decision. D.C. District Judge Ellen Segal Huvelle denied to motion and case went to trial in fall 2010.

Argument: On Monday, November 15, 2010, the jury found Ring guilty of one count of conspiring to corrupt congressional and executive branch officials by providing things of value; one count of paying a gratuity to a public official; and three counts of honest services wire fraud. Ring was acquitted of three additional counts of honest services fraud.

On December 15, 2010, Ring filed motions for judgment of acquittal and for a new trial.  The District Court denied all these motions on March 11, 2011.  In October 2011, Kevin Ring was sentenced to 20-months for the honest services fraud counts and a concurrent sentence of 15-months for the single gratuities count.  Ring appealed his conviction to the D.C. Circuit Court and oral argument was held on Nov. 15, 2012.  

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

Argument: The criminal justice system is a system of plea negotiations that gives prosecutors enormous leverage over criminal defendants. Defendants face a higher sentence if they go to trial, which drives many defendants to take a plea bargain. This “trial penalty” means that some innocent defendants plead guilty. Defendants who plead guilty while maintaining their innocence should not be subject to a sanction of criminal contempt for doing so. Prosecutors may have wholly laudable reasons to dismiss cases even after a plea, and courts should not chill such actions with the threat of a contempt sanction.

Freedom of Information Act (FOIA) complaint filed by NACDL in the U.S. District Court for the District of Columbia against the Executive Office for U.S. Attorneys and the Department of Justice (Civil Action No. 2014-0269).

The Department of Justice Office of Information Policy's response to NACDL's appeal for access to the Federal Criminal Discovery Bluebook. This resulted in National Association of Criminal Defense Lawyers v. Executive Office for United States Attorneys and United States Department of Justice (Civil Action No. 2014-0269).

Letter to the Department of Justice Office of Information Policy regarding an NACDL Freedom of Information Act (FOIA) request for the Federal Criminal Discovery Bluebook. This resulted in National Association of Criminal Defense Lawyers v. Executive Office for United States Attorneys and United States Department of Justice (Civil Action No. 2014-0269).

NACDL amicus curiae brief in support of petitioner-appellee Salim Ahmed Hamdan. Military commissions created by Respondents are incompatible with the express or implied will of Congress. Constitutionally, there is no “inherent” Presidential authority to create these military commissions and challenge to their jurisdiction via habeas corpus has long been recognized in our military law.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant.

Argument: United States v. Harris, 959 F.2d 246 (D.C. Cir. 1992) is no longer good law in light of the U.S. Supreme Court’s ruling in United States v. O’Brien, 130 S.Ct. 2169 (2010), which held that the “machinegun” provision of 18 U.S.C. § 924(c)(1)(B)(ii) is not a “sentencing enhancement” but an element of the offense of “using or carrying” a machinegun in connection with a crime of violence; although Sec. 924 is silent as to whether knowledge that the firearm is capable of fully-automatic fire is a prerequisite for conviction under the statute, the court must presume mens rea is required where a statutory provision triggers a 30-year mandatory minimum sentence

Amicus curiae brief of the Brennan Center for Justice at New York University School of Law, the Constitution Project, the Rutherford Institute, and the National Association of Criminal Defense Lawyers in support of Petitioner.

Argument: The Executive’s asserted authority to indefinitely detain conceded non-enemy combatants is inconsistent with the Suspension Clause, Article III, and the Constitution’s framework of separated powers.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner – Appellee Mohamedou Ould Salahi urging affirmance of the district court’s decision granting habeas petitioner’s plea for release from Guantanamo Bay Naval Station, Cuba.

Argument: Mr. Salahi, detained by the United States since November 2001 on suspicion of involvement in the failed “Millennium Plot” to bomb the Los Angeles International Airport, has been subjected to repeated torture and other mistreatment as part of a sustained program of highly coercive interrogation. His coerced statements, therefore, cannot provide a basis for detention as a matter of law because they are unreliable, as the district court correctly determined. Furthermore, because Mr. Salahi’s original statements were obtained through torture, his subsequent statements lie in the shadow of that torture and coercion, are equally unreliable, and therefore cannot be used to sustain his detention.

NACDL amicus brief in support of appellant on rehearing en banc.

Argument: In a prosecution of a public official for accepting an "illegal gratuity" under 18 U.S.C. § 201, the definition of "official act" should be narrowly construed; a broad application of § 201 would over-criminalize ethics transgressions and criminalize de minimus ethical lapses, burdening the criminal justice system and possibly leading to the absurd result of criminalizing innocent gift-giving between citizens and public servants.

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Center for Competitive Politics in support of appellant.

Argument: In Skilling v. United States(2010), the Supreme Court held that to prove “honest services” fraud under 18 U.S.C. §1346, the government must prove bribery and quid pro quo—an exchange of a thing of value and an official act taken in response. In this case, the district court’s instructions read the bribery requirement out of the statute, permitting the jury to convict the appellant without any showing of quid pro quo, but only a unilateral “intent to influence.” The lower court’s interpretation of the statute threatens to chill, even criminalize, a broad range of innocent conduct, particularly campaign contributions.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant.

Argument: Contrary to the District Court’s interpretation, Dowling does not establish a blanket rule that the issue preclusion component of the Double Jeopardy Clause never operates to exclude evidence. At the very least, where issue preclusion serves to narrow the indictment on retrial, evidence of acquitted conduct may not be admitted as “intrinsic” evidence, unregulated by Federal Rule of Evidence 404(b), and without engaging in a careful balancing under Rule 403.