Amicus Curiae Brief — Eghbal Saffarinia, aka Eddie Saffarinia, Petitioner v. United States

No. 24-522

IN THE

Supreme Court of the United States

EGHBAL SAFFARINIA (A/K/A EDDIE SAFFARINIA),

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR CRIMINAL LAW SCHOLARS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

DAVID PHILLIPS

JONES DAY

4655 Executive Dr.

Suite 1500

San Diego, CA 92121

YAAKOV M. ROTH

Counsel of Record

MARK L. SCALZO

JONES DAY

51 Louisiana Ave., N.W.

Washington, DC 20001

(202) 879-3939

yroth@jonesday.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION & SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 4

THE D.C. CIRCUIT’S READING OF § 1519

POSES A SERIOUS THREAT TO THE

SEPARATION OF POWERS AND

INDIVIDUAL LIBERTY. ........................................... 4

A. The Decision Below Threatens

Congress’s Prerogative To Define

Criminal Offenses. ....................................... 5

B. The Decision Below Further Erodes

The Role Of Juries In Criminal Cases. ....... 8

C. The Decision Below Erodes The Role

Of Federal Courts In Criminal Cases. ...... 11

D. The Decision Below Fails To Provide

Adequate Notice. ........................................ 12

CONCLUSION ......................................................... 14

ii

TABLE OF AUTHORITIES

Page(s)

CASES

The Adventure,

1 F. Cas. 202 (No. 93)

(C.C.D. Va. 1812) .................................................... 7

Bell v. United States,

349 U.S. 81 (1955) ................................................ 13

Cleveland v. United States,

531 U.S. 12 (2000) ................................................ 13

Crandon v. United States,

494 U.S. 152 (1990) .............................................. 12

Fischer v. United States,

603 U.S. 480 (2024) ............................................ 4–7

Leocal v. Ashcroft,

543 U.S. 1 (2004) .................................................. 13

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ............................................ 6

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803)................................ 11

Marinello v. United States,

584 U.S. 1 (2018) .......................................... 4, 6, 14

McBoyle v. United States,

283 U.S. 25 (1931) ................................................ 13

Missouri v. Frye,

566 U.S. 134 (2012) .............................................. 10

SEC v. Jarkesy,

144 S. Ct. 2117 (2024) ............................................ 8

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Sessions v. Dimaya,

584 U.S. 148 (2018) ................................................ 5

United States v. Apel,

571 U.S. 359 (2014) .............................................. 12

United States v. Bass,

404 U.S. 336 (1971) .............................................. 13

United States v. Davis,

588 U.S. 445 (2019) .................................. 2, 5–7, 12

United States v. Fischer,

64 F.4th 329 (D.C. Cir. 2023) ................................. 4

United States v. Hudson,

11 U.S. (7 Cranch) 32 (1812).............................. 2, 6

United States v. Santos,

553 U.S. 507 (2008) .............................................. 13

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) ........................ 6–7, 12

West Virginia v. EPA,

597 U.S. 697 (2016) ................................................ 6

Wooden v. United States,

595 U.S. 360 (2022) .......................................... 6, 12

Yates v. United States,

574 U.S. 528 (2015) .................................. 4, 7–8, 13

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. art. III ....................................................... 9

U.S. Const. amend. VI ................................................. 9

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Const. amend. VII ............................................... 9

18 U.S.C. § 1519 .................................. 2–5, 7–8, 10–13

OTHER AUTHORITIES

Akhil Reed Amar, THE WORDS THAT

MADE US: AMERICA’S

CONSTITUTIONAL CONVERSATION,

1760–1840 (2021) ................................................... 9

Stephanos Bibas, Plea Bargaining

Outside the Shadow of Trial,

117 HARV. L. REV. 2463 (2004)............................. 10

3 W. Blackstone, COMMENTARIES ON THE

LAWS OF ENGLAND (8th ed. 1778) ....................... 8–9

Michael Coenen & Seth Davis,

Percolation’s Value,

73 STAN. L. REV. 363 (2021) ............................. 5, 14

The Declaration of Independence (1776) .................... 9

Lucian E. Dervan, Plea Barganing’s

Survival: Financial Crimes Plea

Bargaining, a Continued Triumph in

at Post-Enron World,

60 OKLA. L. REV. 451 (2007) ................................... 8

THE FEDERALIST NO. 51 ............................................... 6

Neil Gorsuch & Janie Nitze, OVER

RULED: THE HUMAN TOLL OF TOO

MUCH LAW (2024) ....................................... 9–10, 13

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Innocence Project, DNA Exonerations in

the United States (1989–2020) ............................. 11

Nancy J. King & Michael E. O’Neill,

Appeal Waivers and the Future of

Sentencing Policy,

33 DUKE L.J. 209 (2005) ....................................... 11

Nat’l Registry of Exonerations,

Innocents Who Plead Guilty

(Nov. 24, 2015)...................................................... 11

Intisar A. Rabb, The Appellate Rule of

Lenity, 131 HARV. L. REV. 179 (2018) .................. 12

S. Ct. R. 37.2 ................................................................ 1

Gordon S. Wood, THE CREATION OF THE

AMERICAN REPUBLIC, 1776-1787

(1998) ...................................................................... 6

INTEREST OF AMICI CURIAE 1

Robert Batey is a Professor of Law Emeritus at the

Stetson University College of Law. He holds an LL.M

from the University of Illinois and a J.D. from the

University of Virginia.

Eve Hanan is a Professor of Law and the Associate

Dean for Faculty Development and Research at the

University of Nevada, Law Vegas William S. Boyd

School of Law. She holds a J.D. from the University of

Michigan Law School and an M.A. from Drexel

University.

Richard A. Leo is the Hamill Family Professor of

Law and Psychology at the University of San

Francisco School of Law. He holds a Ph.D and J.D.

from the University of California, Berkeley and an

M.A. from the University of Chicago.

Intisar A. Rabb is a Professor of Law, a Professor

of History, and the faculty director of the Program in

Islamic Law at Harvard Law School. She holds a Ph.D

and an M.A. from Princeton University and a J.D.

from Yale Law School.

Amici have an interest in the proper interpretation

of federal criminal statutes and the protection those

interpretations afford for the separation of powers and

the rights of individuals.

No counsel for any party authored this brief in any part,

and no person or entity other than amici or amici’s counsel made

a monetary contribution to fund its preparation or submission.

Respondent received notice of amici’s intent to file this brief five

days before its due date and did not object to the delay. See S. Ct.

R. 37.2 (requiring ten days’ notice). Petitioner received at least

ten days’ notice.

1

2

INTRODUCTION & SUMMARY OF ARGUMENT

“Only the people’s elected representatives in the

legislature are authorized to make an act a crime.”

United States v. Davis, 588 U.S. 445, 451 (2019)

(quoting United States v. Hudson, 11 U.S. (7 Cranch)

32, 34 (1812)). By transforming 18 U.S.C. § 1519 into

a 20-year catchall for any knowing misstatements on

government forms, the decision below failed to make

good on that constitutional promise.

That the

executive has here advanced (and a court has accepted)

an expansive reading of an obstruction statute is

nothing new. But the appropriate response to that

overreach should also be familiar: this Court has not

hesitated to step in where over-broad interpretations

of criminal statutes threaten constitutional values,

even in the absence of a circuit split. Because the

decision below is especially harmful to those values,

the Court should do the same thing here and grant

certiorari.

A. To begin, the D.C. Circuit’s decision tramples on

Congress’s authority to define federal crimes. That

power rests with the legislature alone. The Framers’

decision to allocate power that way protects individual

liberty by placing the scope of the criminal law in the

hands of the people’s representatives. To protect those

interests, federal courts have long exercised restraint

when interpreting broadly worded criminal statutes.

The decision below undercuts those principles.

Congress did not clearly impose the heightened

penalties of § 1519 on all misstatements made

knowingly on routine government forms. Yet the D.C.

Circuit permitted the executive to make that choice, on

reasoning this Court has repudiated. That decision

will thus harm Congress’s prerogatives with respect to

3

both § 1519 and future statutes that are construed in

the same way. The decision also hinders the purpose

of the Sarbanes-Oxley Act by making it a mechanism

for extracting pleas for lesser offenses instead of for

securing heavy penalties for the worst obstruction

offenders.

B. The panel’s decision also chips away at the

already-limited role of jury trials in the federal

criminal system. Trial by jury is one of the most

important rights in our Constitution, but jury trials

are a rarity because our system rests primarily on plea

bargaining.

The D.C. Circuit’s unbounded

interpretation of § 1519 will make trials even more

scarce by providing the executive with almost

irresistible leverage over defendants charged with

making misstatements on government forms. Few

will run the risk of a 20-year sentence when the

alternative is pleading to lesser offenses covering the

same conduct. And that pressure will apply to the

innocent just as much as the guilty. Neither will be

tried by a jury of their peers.

C. In a similar vein, the panel’s reading of § 1519

will diminish the role of the federal courts as a check

on executive overreach. Guilty pleas often bring with

them waivers of appellate rights. So again, when faced

with the prospect of a 20-year sentence for lying on a

government document, most defendants will forgo the

protections of Article III entirely as part of a plea deal.

D. Last, the D.C. Circuit’s interpretation of § 1519

runs afoul of requirements of fair notice. The rule of

lenity protects the public from being punished for

conduct they could not have known was proscribed. So

before a court may adopt the executive’s harsh reading

4

of a criminal statute, Congress must speak with clear

and definite language. The panel below did the exact

opposite, defaulting to the broadest reading of § 1519

possible because Congress had not clearly limited it.

The panel’s reading, moreover, still leaves the public

in the dark about when misstatements on government

forms will run afoul of § 1519.

ARGUMENT

THE D.C. CIRCUIT’S READING OF § 1519 POSES A

SERIOUS THREAT TO THE SEPARATION OF POWERS

AND INDIVIDUAL LIBERTY.

Amici agree with petitioner that the decision below

runs afoul of this Court’s precedents in multiple ways.

By reading “proper administration of any matter” in

§ 1519 to apply to review of routine forms, the D.C.

Circuit contravened this Court’s interpretation of

functionally identical language in Marinello v. United

States, 584 U.S. 1 (2018). Pet.Br. 14–16; Pet.App.

11a–12a. And the panel’s rationale that Congress

could have expressly excluded routine form review

from § 1519’s catch-all had it wanted to cannot be

reconciled with this Court’s instructions for

interpreting residual clauses in obstruction statutes in

Fischer v. United States, 603 U.S. 480 (2024), and

Yates v. United States, 574 U.S. 528 (2015). Pet. Br.

14–27; Pet.App. 10a (relying on United States v.

Fischer, 64 F.4th 329, 344 (D.C. Cir. 2023), vacated

and remanded, 603 U.S. 480 (2024)).

Those errors on their own warrant intervention.

But review is also needed here because an overbroad

reading of § 1519 will have significant consequences

for the separation of powers and individual liberty.

Every overreading of a criminal statute threatens

5

those interests to some extent. But the stakes for

§ 1519, in particular, are massive: The D.C. Circuit’s

interpretation makes any knowing misstatement on a

document intended to influence any bureaucratic

decision a felony subject to 20 years’ imprisonment.

And it causes § 1519 to swallow up a host of lesser

offenses. Taken together, those effects will allow the

executive branch to invade Congress’s domain, reduce

the roles of both juries and courts as checks on

executive power, and deny individuals fair notice.

The Court should stop those evils now rather than

later. Awaiting percolation and circuit splits imposes

serious costs.

Michael Coenen & Seth Davis,

Percolation’s Value, 73 STAN. L. REV. 363, 423–28

(2021). And here, those costs include harms of

constitutional magnitude. The benefits of waiting are

not “presumptively worthwhile,” especially where

other courts do not “enjoy a uniquely special

perspective or expertise” on interpretation of federal

criminal statutes. Id. at 423. This Court should grant

review and return both the scope of § 1519 and the

powers of the executive branch to their proper place.

A. The Decision Below Threatens Congress’s

Prerogative To Define Criminal Offenses.

Under our constitutional system, “Congress, rather

than the executive or judicial branch, define[s] what

conduct is sanctionable and what is not.” Sessions v.

Dimaya, 584 U.S. 148, 156 (2018) (plurality opinion).

The “quintessentially legislative act of defining crimes

and setting the penalties for them” is one of “the

prerogatives of Congress.” Fischer, 603 U.S. at 497; see

Davis, 588 U.S. at 451 (“Only the people’s elected

representatives in the legislature are authorized to

6

make an act a crime.” (quoting Hudson, 11 U.S. (7

Cranch) at 34)).

That allocation of the power to punish protects

individual liberty. As our nation’s founders recognized,

the separation of powers is the “the first principle of a

good government.” See Gordon S. Wood, THE CREATION

OF THE AMERICAN REPUBLIC, 1776-1787, at 604 (1998).

It secures “the protection of individual rights against

all governmental encroachments,” id. at 609, in part

by demanding deliberation. Because “new national

laws restricting liberty require the assent of the

people’s representatives,” they receive “input from the

country’s ‘many parts, interests and classes.’” Wooden

v. United States, 595 U.S. 360, 391 (2022) (Gorsuch, J.,

concurring in the judgment) (quoting THE FEDERALIST

NO. 51, at 324 (J. Madison)). Though the framers

feared legislative dominance, e.g., Wood, supra, at

604–05, 610, today, the executive branch’s assertions

of broad authority often threaten to upset the

constitutional balance, see, e.g., Fischer, 603 U.S. at

497; Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244,

2257–63 (2024); id. at 2273–74 (Thomas, J.,

concurring); id. at 2286 (Gorsuch, J., concurring), West

Virginia v. Env’t Prot. Agency, 597 U.S. 697, 723 (2016);

id. at 736–40 (Gorsuch, J., concurring).

To protect both Congress’s prerogatives and

individual liberty, this Court has “traditionally

exercised restraint” when assessing “the reach of a

federal criminal statute.” Fischer, 603 U.S. at 497

(quoting Marinello, 584 U.S. at 11). The “maxim” that

“penal laws are to be construed strictly” was already

“ancient” two hundred years ago when the Great Chief

Justice described it in United States v. Wiltberger, 18

U.S. (5 Wheat.) 76, 95–96 (1820). As he put it,

7

“probability is not a guide which a court, in construing

a penal statute, can safely take.” Id. at 105. Courts

may not “depart[] from the plain meaning of words,

especially in a penal act, in search of an intention [of

Congress] which the words themselves d[o] not

suggest.” Id. at 96. And where the reach of a criminal

statute is unclear, “to enlarge the meaning of words,

would be to extend the law to cases to which the

legislature had not extended it, and to punish, not by

the authority of the legislature, but of the judge.” The

Adventure, 1 F. Cas. 202, 204 (No. 93) (C.C.D. Va. 1812)

(Marshall, C.J.), rev’d, 12 U.S. 221 (1814). So just like

statutes that are vague on their face, criminal statutes

that are interpreted boundlessly “threaten to hand

responsibility for defining crimes to relatively

unaccountable police, prosecutors, and judges, eroding

the people’s ability to oversee the creation of the laws

they are expected to abide.” Davis, 588 U.S. at 451.

The D.C. Circuit’s reading of § 1519 runs roughshod

over Congress’s prerogatives and the interpretive

rules that protect them. Does Congress want a

“coverall,” Yates, 574 U.S. at 549, or “one-size-fits-all,”

Fischer, 603 U.S. at 497, 20-year felony for all

intentional misrepresentations on federal forms?

Section 1519 does not say so with clarity, so “that

important decision” should be “le[ft] . . . to Congress.”

Yates, 574 U.S. at 549. Yet the panel below allowed

the executive branch to make that decision itself. It

enabled that aggrandizement by taking the broadest

possible construction of “proper administration of any

matter” and reasoning that Congress could have

expressly excluded routine form review had it wanted

to. Pet.App. 10a. But that gets matters backwards.

The D.C. Circuit’s decision thus promises to spawn

8

additional encroachments on the legislative power

even beyond the massive intrusion it permitted in

§ 1519.

Failure to police the boundaries of § 1519 also

undercuts Congress’s legislative goals.

No one

disagrees with the Sarbanes-Oxley Act’s commendable

mission of punishing those who “hide evidence of

financial wrongdoing” from investigators. Yates, 574

U.S. at 536. Just five years after its passage, however,

“prosecutors [were already] using their new tools to

encourage defendants to accept plea agreements that

include[d] sentences similar to those offered before

[the Act], while simultaneously threatening to use

these same [new] powers to secure astounding

sentences if defendants force[d] a trial.” Lucian E.

Dervan, Plea Barganing’s Survival: Financial Crimes

Plea Bargaining, a Continued Triumph in a PostEnron World, 60 OKLA. L. REV. 451, 453 (2007)

(emphasis added). The D.C. Circuit’s interpretation of

§ 1519 will continue the trend of using the Act as a

method of extracting plea agreements out of lowerlevel offenders rather than as a tool to punish the

worst actors.

B. The Decision Below Further Erodes The

Role Of Juries In Criminal Cases.

The panel’s expansive re-write of § 1519 does more

than just permit the executive to invade Congress’s

domain; it also adds yet one more tool in the

executive’s belt for avoiding jury trials. “The right to

trial by jury” was “‘the glory of the English law,’ and . . .

prized by the American colonists.” SEC v. Jarkesy,

144 S. Ct. 2117, 2128 (2024) (quoting 3 W. Blackstone,

COMMENTARIES ON THE LAWS OF ENGLAND 379 (8th ed.

9

1778)). “[T]he Stamp Act Congress,” one of the first

cross-colony

efforts,

“achieve[d]

near-perfect

unanimity” when it explained that “the bedrock

American position, the colonies’ common denominator,”

included the “‘inherent and invaluable Right’” to trial

by jury. Akhil Reed Amar, THE WORDS THAT MADE US:

AMERICA’S CONSTITUTIONAL CONVERSATION, 1760–

1840, at 60–61 (2021) (citation omitted). Later, in the

Declaration of Independence, Jefferson cited

“depriv[ation] . . . of the benefits of Trial by Jury” as a

reason for seeking colonial autonomy. Para. 20 (U.S.

1776).

The Framers then enshrined the jury trial right in

no fewer than three places in the Constitution. See

U.S. Const., art. III, § 2 (“The Trial of all Crimes,

except in Cases of Impeachment, shall be by

Jury . . . .”); id. amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury . . . .”); id.

amend. VII (“In suits at common law, . . . the right of

trial by jury shall be preserved . . . .”). The first

Congress, too, implemented Article III by requiring

the justices of this Court to spend “most of the year . . .

scatter[ed] across the country” as trial judges,

“facilitat[ing] vigorous participation by local juries.”

Amar, supra, at 333 (discussing Judiciary Act of 1789).

The jury was not an afterthought of the constitutional

design for adjudication of rights; it was the focal point.

Jury trials do not, however, characterize our

criminal law system today. Nearly all federal criminal

cases now end with a plea bargain. Neil Gorsuch &

Janie Nitze, OVER RULED: THE HUMAN TOLL OF TOO

MUCH LAW 126 (2024) (“In recent years, about 97

percent of felony convictions at the federal level . . .

10

have come by way of plea agreements.”). Plea

bargaining “is not some adjunct to the criminal justice

system; it is the criminal justice system.” Missouri v.

Frye, 566 U.S. 134, 144 (2012). And that system

depends in large part on the leverage created by

overlapping statutes with increasingly severe

penalties.

As now-Judge Bibas explained twenty years ago, the

prosecutor’s toolbox is the universe of plausible

charges.

See generally, Stephanos Bibas, Plea

Bargaining Outside the Shadow of Trial, 117 HARV. L.

REV. 2463 (2004). Prosecutors use “anchors”—the

most

punitive

sentences

available—to

limit

defendants’ world of options. Id. at 2518. “[E]ven if a

defendant thinks he is innocent and deserves zero

punishment, the prosecutor’s opening offer may serve

as an anchor and influence the defendant.” Id.

Anchors can come from laws that arguably proscribe

the same conduct as, while carrying much heavier

sentences than, other, more specific statutes.

The D.C. Circuit’s construction of § 1519 hands the

executive branch a massive new anchor with which to

drown potentially innocent defendants. As petitioner

points out, a host of other statutes already criminalize

particular false statements, but as misdemeanors or

felonies with smaller maximum penalties than § 1519.

Pet.Br. 20–21 & n.4–5. A defendant facing a twentyyear maximum under a dubious theory of § 1519 will

be hard-pressed not to plead guilty to a lesser charge.

In fact, “prosecutors give the largest discounts to those

defendants who face the weakest cases.” Bibas, supra,

at 2536. And sometimes “weak” means innocent; pleas

can “cover up faulty investigations that mistakenly

11

target innocent suspects.” Id. at 2473. 2 Those

suspects are then never vindicated because they are

never tried before a jury.

The D.C. Circuit’s

construction of § 1519 thus invites the further erosion

of the jury trial right at the possible expense of the

innocent.

C. The Decision Below Erodes The Role Of

Federal Courts In Criminal Cases.

It is the responsibility of the federal courts to “say

what the law is.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803). But faced with an executive

asserting an aggressive view about what the law

might mean, many rational defendants will sign away

their rights rather than try their luck with Article III.

Nancy J. King & Michael E. O’Neill, Appeal Waivers

and the Future of Sentencing Policy, 33 DUKE L.J. 209,

212 (2005) (“In nearly two-thirds of the cases settled

by plea agreement in our sample, the defendant

waived his right to review.”).

The panel’s construction of § 1519 thus will almost

certainly cause even fewer misstatement cases to see

the light of the federal courts’ independent review. In

our constitutional system, that is not a welcome

development. This Court “ha[s] never held that the

Government’s reading of a criminal statute is entitled

2 See also Innocence Project, DNA Exonerations in the United

States

(1989–2020),

https://innocenceproject.org/dnaexonerations-in-the-united-states/ (last visited Dec. 2, 2024)

(reporting that 11.7% of the first 375 DNA exonerees tracked by

the Innocence Project had pled guilty); Nat’l Registry of

Exonerations, Innocents Who Plead Guilty (Nov. 24, 2015),

http://www.law.umich.edu/special/exoneration/

Documents/NRE.Guilty.Plea.Article1.pdf (15.4% of first 1,700

exonerees tracked had pled guilty).

12

to any deference.” United States v. Apel, 571 U.S. 359,

369 (2014) (citing Crandon v. United States, 494 U.S.

152, 177 (1990) (Scalia, J., concurring in judgment)).

But when the executive is free to turn serious criminal

statutes into catch-alls for conduct their texts do not

reach, and thereby induce guilty pleas at the front end,

it gets the highest form of deference: no review at all.

Petitioner is an outlier for putting the executive

branch through its paces. Because chances to rein in

§ 1519 will be few and far between, this Court should

intervene now.

D. The Decision Below Fails To Provide

Adequate Notice.

Looking beyond the separation of powers, the

panel’s decision imposes direct harms on individual

liberty. “[W]hen Congress exercises [its] power” “to

write new federal criminal laws[,] . . . it has to write

statutes that give ordinary people fair warning about

what the law demands of them.” Davis, 588 U.S. at

448. Chief Justice Marshall called fair notice “‘the

tenderness of the law for the rights of individuals’—

and, more specifically, the right of every person to

suffer only those punishments dictated by ‘the plain

meaning of words.’” Wooden, 595 U.S. at 390 (Gorsuch,

J., concurring in the judgment) (quoting Wiltberger, 18

U.S. (5 Wheat.) at 95–96); see Intisar A. Rabb, The

Appellate Rule of Lenity, 131 HARV. L. REV. 179, 193–

95 (2018) (explaining how Wiltberger grounded rule of

lenity in individual constitutional liberty interests in

addition to separation of powers).

Fair notice of prohibited conduct is required even

where a criminal law is not hopelessly vague on its

face.

“If vagueness doctrine aims to protect

13

individuals against laws that do not fairly define

prohibited conduct, the rule of lenity applies to laws

that do define prohibited conduct but are susceptible

to different interpretations.” Gorsuch & Nitze, supra,

at 1240. Text and context, not clairvoyance, provide

notice. See United States v. Santos, 553 U.S. 507, 515

(2008) (plurality opinion) (stating that requiring fair

notice prevents a court from “play[ing] the part of a

mindreader” with criminal laws). And “all individuals,

even unsavory ones, are entitled to fair notice of the

law’s demands.” Gorsuch & Nitze, supra, at 121. So,

“where uncertainty exists, the law gives way to liberty.”

Id. That principle has deep roots in this Court’s

precedent. 3

The D.C. Circuit’s decision flunks those

requirements.

As petitioner explains, the plain

meaning of “proper administration of any matter” and

the terms surrounding it naturally limit that phrase’s

meaning to definable proceedings, not routine review

of forms. Pet.Br. 15–16, 18–19. So before choosing the

government’s “harsher alternative” view of § 1519, the

panel should have required statutory language that is

“clear and definite.” Yates, 574 U.S. at 548 (quoting

Cleveland v. United States, 531 U.S. 12, 25 (2000)). It

did not do so. The panel’s decision instead leaves the

public with uncertainty about when government

processes qualify as “matter[s]” whose “proper

administration” could be impeded by false statements.

That uncertainty is only heightened by the fact that

3 E.g., McBoyle v. United States, 283 U.S. 25, 27 (1931); Bell

v. United States, 349 U.S. 81, 83 (1955); United States v. Bass,

404 U.S. 336, 347–349 (1971); Leocal v. Ashcroft, 543 U.S. 1, 12

n.8 (2004); United States v. Santos, 553 U.S. 507, 513–14 (2008).

14

this Court in Marinello held that functionally identical

language in the tax code excludes misstatements on

routine government forms. See Pet.Br. 25–26. That

confusing state of affairs—and its implications for the

core constitutional principle of fair notice—is one more

reason this Court should step in now.

*

*

*

The harms of the decision below to the separation of

powers and individual liberty are many; the reasons

for this Court not to intervene now are few. Little will

be gained by awaiting further percolation and a circuit

split. See Coenen & Davis, supra, at 423 (noting

percolation is likely valuable only “on a sporadic and

infrequent basis”). This Court has shown time and

again that it is up to the task of cabining overbroad

readings of criminal statutes and keeping the

executive in its own domain. It should do the same

again here.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for certiorari and reverse the decision

below.

15

December 3, 2024

Respectfully submitted,

DAVID PHILLIPS

JONES DAY

4655 Executive Dr.

Suite 1500

San Diego, CA 92121

YAAKOV M. ROTH

Counsel of Record

MARK L. SCALZO

JONES DAY

51 Louisiana Ave., N.W.

Washington, DC 20001

(202) 879-3939

yroth@jonesday.com

Counsel for Amici Curiae