Amicus BriefsRecent Amicus Briefs
In the Supreme Court (merits briefing)
The government is barred from obtaining criminal forfeiture if it fails to file a preliminary order of forfeiture before sentencing, as required by Rule 32.2(b) of the Federal Rules of Criminal Procedure. The Second Circuit wrongly analogized criminal forfeiture to restitution, the remedy at issue in Dolan v. United States, 560 U.S. 605 (2010), in holding that the government's failure can be excused. Authors: Noam Biale, Rafael Friedman Adam Samia v. USA – in support of Petitioner – to the Second Circuit – Feb. 1, 2023 It violates the Sixth Amendment for a court to permit—as does the Second Circuit—the introduction of a redacted out-of-court confession of a co-defendant so long as the redacted confession, considered in isolation, is not likely to incriminate the defendant. Authors: Harry Sandick, Christine H. Chung, Nicole Scully
Joseph Percoco v. USA – in support of Petitioner – to the Second Circuit – Sept. 8, 2022 The Second Circuit’s holding that a non-governmental official may owe a fiduciary duty to the public was incorrect and permits the government to charge individuals who engage in legitimate, protected political activity with “honest services” fraud. Authors: Harry Sandick, Jacob I. Chefitz, Christine H. Chung
Louis Ciminelli v. USA – in support of Petitioner – to the Second Circuit – Sept. 6, 2022 The practical consequence of Second Circuit’s adoption of the right-to-control theory of property fraud has been that prosecutors are able to procure convictions without proving any deprivation of “property.” The right-to-control jury instruction is also unintelligible and wrongly permits juries to convict a defendant who engaged in mere deceit on the charge of federal property fraud. Appendix specifies cases against over 125 defendants brought or tried in the district courts of the Second Circuit since 2010 in which prosecutors relied on the right-to-control theory. Authors: Gary Stein, Christine H. Chung, Harry Sandick, Jacob I. Chefitz
In the Supreme Court (seeking cert) It violates the Grand Jury Clause of the Fifth Amendment for a CCE indictment to fail to allege facts sufficient to comprise the "continuing series of violations" and instead to identify the predicate violations only by statutory cite. Authors: Christine H. Chung, Harry Sandick, Noam Biale
Also submitted in support of other petitioners in Buffalo Billions case: Louis Ciminelli, Alain Kaloyeros, and Joseph Percoco. A defendant does not obtain property within the meaning of federal fraud statutes by depriving another of the intangible right to control the use of one's assets. Also, a defendant must have an official position to owe a duty of honest services to the public. Authors: Christine H. Chung, Gary Stein, Harry Sandick, George B. Fleming, Ian Eppler
James Gatto v. USA – in support of Petitioner – to the Second Circuit - September 7, 2021 One of NCAA cases. Right to control – A defendant does not “obtain” property merely by depriving another of the “right to control” assets. Appendix compiles over 110 defendants to whom right to control theory has been applied in the district courts of the Second Circuit. Authors: Gary Stein, Gregory Ketcham-Colwill, Harry Sandick, Christine H. Chung Scott Phillip Flynn v. USA – in support of petitioner – to the Eighth Circuit - March 19, 2021 Klein conspiracy doctrine should be reviewed. Construing the “defraud” clause of Section 371 to cover conspiracies that obstruct the operations of the U.S. government through deceptive conduct is overbroad. Authors: Jeremy H. Temkin, A. Dennis Dillon, Harry Sandick Mark Johnson v. USA – in support of petitioner – to the Second Circuit - July 24, 2020 Right to control: A defendant does not “obtain” property merely by depriving another of the “right to control” assets. Authors: Christine H. Chung, Gary Stein, Harry Sandick, Ian Eppler
Second Circuit en banc
USA v. Calvin Weaver – Amicus brief in support of defendant-appellant - March 8, 2021 The court should hold that a Terry frisk commences when an individual is forced to assume a spread-eagle or “in search” position; to hold otherwise will induce additional, unconstitutional racial profiling by law enforcement. Authors: co-filed with NACDL and NYSACDL – Alexandra A.E. Shapiro, Erin James; Richard D. Willstater (for NACDL); Timothy Murphy (for NYSACDL). Second Circuit
United States v Silva — in support of Defendant-Appellee — December 9, 2024 The court should affirm the district court decision suppressing the search of defendant's cellphone where the search warrant affidavit provided no evidence of a nexus between the cellphone and the alleged criminal activity and relied instead exclusively on the officer's general knowledge and experience to assert that cellphones are typically used in furtherance of criminal gang activity. An officer cannot reasonably rely in good faith on such a search warrant application. Authors: Douglas R. Jensen, Claire Blumenthal Buck
In re Roman Storm — in support of Petitioner — November 1, 2024 The court should grant a petition of mandamus and vacate the district court order compelling defendant to disclose expert information under Rule 16(b)(1)(C)(i) notwithstanding defendant's decision not to demand expert discovery from the government. Authors: Christine H. Chung, Harry Sandick, Celeste Koeleveld, Noam Biale
USA v. Hernan Lopez and Full Play Group, S.A. - in support of defendants-appellees - April 9, 2024 District Court correctly held that 18 U.S.C. Section 1346 does not reach foreign commercial bribery and to interpret the statute more broadly would empower federal prosecutors to serve as global policemen of commercial bribes and kickbacks. USA v. Nathaniel Chastain – in support of defendant-appellant Chastain – January 23, 2024 Defendant convicted of conduct the government called “insider trading” of NFTs was charged and tried under invalid theory that “confidential business information” is “property” within the meaning of the mail and wire fraud statutes, irrespective of whether the information has “commercial value” to the owner/victim. Author: Daniel M. Sullivan
USA v. Stephen M. Calk - in support of defendant-appellant Calk – June 7, 2022 Government abused the grand jury to circumvent limits on pre-trial discovery and obtain preview of the testimony of potential trial witness who had declined to meet voluntarily. Authors: Benjamin Gruenstein, Samantha Hall, Nicole Walsh
USA vs Theryn Jones – Amicus brief in support of defendant-appellant Jones – April 9, 2021 Defense witness immunity – It violated the due process clause for the trial court to deny an application for immunity for a witness who denied defendant’s involvement in the charged murder and had himself already pled guilty to the same murder. Authors: Christine H. Chung, Harry Sandick, Gary Stein
Deutsche Bank LIBOR defendants. Opinions cannot be the basis of fraud prosecutions; the government must prove that defendants believed estimates to be untrue or unreasonable. Authors: Gary Stein, Elizabeth M. Sullivan, Harry Sandick, David S. Kleban
USA v. Jeremy Shor, Anilesh Ahuja – Amicus brief in support of defendants-appellants - May 8, 2020 Trial court’s practice of barring re-cross examination violated defendant’s Confrontation Clause rights. Author: Tai H. Park
Case charging "insider trading" of NFTs should be dismissed. Not all misuse of confidential workplace information is federal fraud. Authors: James M. Burnham, Gary Stein, Christine H. Chung
Amicus Briefs April 2020 and earlier US Supreme CourtCaroni v. USA – Amicus Brief in Support of Petitioner USA v. Marinello – Amicus Brief in Support of Petitioner - September 8, 2017 Kaley v. USA – Amicus Brief in Support of Petitioner - July 27, 2016 Salman v. USA – Amicus Brief in Support of Petitioner - May 13, 2016 Binday v. USA – Amicus Brief in Support of Petitioner - April 13, 2016 Luis v. USA – Amicus Brief in Support of Petitioner - August 25, 2015 Gall v. USA – Amicus Brief in Support of Petitioner Rita v. USA – Amicus Brief in Support of Petitioner USA v. Alleyne – Amicus Brief in Support of Petitioner - November 26, 2012 Claiborne v. USA – Amicus Brief in Support of Petitioner USCA, 2d CircuitUSA v. Robson, et al. – Amicus Brief in Support of Defendants-Appellants - July 13, 2016 Doe v. USA – Amicus Brief in Support of Petitioner-Appellee and Affirmance - December 23, 2015 USA v. Ganias – Amicus Brief in Support of Appellant - July 29, 2015 USA v. Doe – Amicus Brief in Support of Respondent-Appellant - May 23, 2013 USA v. Cutler, et al. – Amicus Brief in Support of Petitioners - April 21, 2008 SDNYUSA v. Alejandro – Amicus Brief in Support of the Resentencing of Petitioner April 4, 2014 |