Amicus Briefs

 

Recent Amicus Briefs

 

In the Supreme Court (merits briefing)

 

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)

 

Steven Aiello and Joseph Gerardi v. USA – in support of Petitioner – to the Second Circuit – March 24, 2022

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

 

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

 

USA v. Matthew Connolly, Gavin Campbell Black – Amicus brief in support of defendants-appellants – May 12, 2020

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

 


Southern District of New York 
 


USA v. Nathaniel Chastain - Amicus brief in support of defendant - August 22, 2022

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 Court

Caroni 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 Circuit


USA v. Martoma – Second Amicus Brief Supporting Petition for Rehearing/Rehearing En Banc - August 15, 2018

USA 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. Newman, et al. – Amicus Brief Opposing Petition for Rehearing/Rehearing En Banc - February 25, 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

 

SDNY

USA v. Alejandro – Amicus Brief in Support of the Resentencing of Petitioner April 4, 2014