Brief for Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”) in Support of Defendants-Appellants.
Argument: The District Court impermissibly directed a verdict on the existence of an official act. The jury decides whether the defendant is guilty of each contested element of the charged offense. The District Court usurped the jury’s exclusive role. Under Gaudin and McDonnell the question of whether alleged conduct constitutes an official act is a mixed question of law and fact reserved for the jury. Neither Fattah Nor Hastie justify a directed verdict on the official act element. That different juries may reach different verdicts based on similar facts is inherent in the jury system—it is not a basis to abrogate the jury’s right to render a verdict. The District Court’s error if uncorrected will impact other criminal defendants. The District Court’s error warrant a new trial. A directed verdict for the government on a disputed element can never be harmless. The improper directed verdict on the official act element also negates the convictions on the Section 666 charge.