Amicus Curiae Brief — Kay v. United States (No. 07-1281)

No. 07-1281 MAY 1? 2008

OFFICE OF T

In The SUPREME COURT US

Supreme Court of the Gnited States

¢

DAVID KAY and DOUGLAS MURPHY,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

AMICUS CURIAE BRIEF OF NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

s

JEFFREY T. GREEN JOHN D. CLINE

SIDLEY AUSTIN LLP Counsel of Record

1501 K Street NW PETER E. DAVIDS

Washington, DC 20005 JONES DAY

(202) 736 8000 555 California Strect

26th Floor

San Francisco, CA 94104

(415) 626-3939

Counsel for Amicus Curiae

National Association of

Criminal Defense Lawyers

i

QUESTIONS PRESENTED

i. When an indictment omits an element

of the offense, must it be dismissed, or may such an

error instead be excused as harmless?

» 4 When the text, structure, and

legislative history of a criminal statute are all

ambiguous, is the rule of lenity applicable, or instead

is that principle limited merely to cases in which the

court can only "guess" at Congress's intent?

1

TABLE OF CONTENTS

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INTEREST OF AMICUS CURIAE...............000...... 1

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TABLE OF AUTHORITIES

FEDERAL CASES

Burgess v. United States, 128 S. Ct. 1572

RTE ES Lean se eee CPOE CON ARS eae EOE Z

Cleveland v. United States, 531 U.S. 12

2 SENSES REISS Sole er ES SOUS URED SI apts OT 5

McBoyle v. United States, 283 U.S. 25 (1931) ........... 6

Neder v. United States, 527 U.S. 1 (1999)... 3

Russell v. United States, 369 U.S. 749 (1962) ............ 2

Scheidler v. NOW, 537 U.S. 393 (2008) .............e ee eee 5

Stirone v. United States, 361 U.S. 212 (1961)............ 2

United States v. Allen, 406 F.3d 940 (8th Cir.

2005) (en banc), cert. denied, 127 S. Ct.

| RRR Sees ieedi ie Ane OF 0 eS 4

United States v. Du Bo, 186 F.3d 1177 (9th

I i aeicenules 3,4

United States v. Gonzalez-Lopez, 548 U.S.

SRI ARR ar NIG Ps ie tc ea ct oa ee ee 3

United States v. Granderson, 511 U.S. 39

|” REE ei a eae rrr SORT ieee ab) SR a are TURED 5

United States v. Higgs, 353 F.3d 281 (4th Cir.

SERRE ES IEA [SEE Ce SE 4

United States v. Kay, 513 F.3d 432 (5th Cir.

2007), modified, 513 F.3d 461 (5th Cir.

- SIEGE ie ee ey et i a Ae RO Ne a 4

United States v. Kay, 359 F.3d 738 (Sth Cir.

| RRR TIS fea cet REED Me ek Re ea 4

United States v. Laton, 352 F.3d 286 (6th Cir.

a 7

United States v. R.L.C., 503 U.S. 291 (1992).....5, 6, 7

iV

United States v. Resendiz-Ponce, 549 U.S. 102

_ : BERGER Teeter meee aaa me eee 1,2

CONSTITUTIONS, STATUTES, AND RULES

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INTEREST OF AMICUS CURIAE!

The National Association of Criminal Defense

Lawyers (NACDL) is a non-profit organization of

more than 11,500 attorneys, in addition to more than

28,000 affiliate members from all fifty states,

including private criminal defense attorneys, public

defenders, and law professors. The American Bar

Association recognizes NACDL as an affiliate

organization and awards it full representation in the

ABA's House of Delegates.

NACDL was founded in 1958 to promote

criminal law research, to advance and disseminate

knowledge in the area of criminal practice, and to

encourage integrity, independence, and expertise

among criminal defense counsel. NACDL is partic-

ularly dedicated to advancing the proper, efficient,

and just administration of justice, including issues

involving the role and duties of lawyers representing

parties in administrative, regulatory, and criminal

investigations. In furtherance of this and its other

objectives, NACDL files a number of amicus curiae

briefs each year, addressing a wide variety of

criminal justice issues.

NACDL has recently submitted amicus briefs

to this Court on aspects of the questions presented

' Under Sup. Ct. R. 37.6, counsel for amicus curiae state that

no counsel for a party authored this brief in whole or in part,

and that no person other than amicus, its members, or its

counsel made a monetary contribution to the preparation or

submission of this brief. Counsel for all parties received notice

of NACDL's intention to file this amicus brief ten days before

the due date. Letters of consent to the filing of this brief have

been lodged with the Clerk of the Court under Rule 37.2(a).

2

here. In United States v. Resendiz-Ponce, 549 U.S.

102 (2007), NACDL contended that the omission of

an element of a criminal offense from a federal

indictment cannot constitute harmless error. In

Burgess v. United States, 128 S. Ct. 1572 (2008),

NACDL urged application of the rule of lenity to

federal mandatory minimum = sentences. In

Resendiz-Ponce, the Court found that the indictment

contained all elements of the charged offense and

thus did not reach the harmless error question. In

Burgess, the Court found the text of the statute

unambiguous and thus did not address application of

the rule of lenity. NACDL continues to believe that

these issues are central to the federal criminal

justice system. It views this case as an opportunity

to resolve the important questions left undecided in

Resendiz-Ponce and Burgess and to provide essential

guidance to courts and litigants.

ARGUMENT

:. NACDL supports the petition here

because the majority view in the circuits--that the

omission of an element from an indictment may be

harmless error--presents a fundamental threat to

the "substantial right to be tried only on charges

presented in an indictment returned by a grand

jury." Stirone v. United States, 361 U.S. 212, 217

(1960): see, e.g., Russel] v. United States, 369 U.S.

749, 770 (1962) (vague indictment deprives the

defendant "of a basic protection which the guaranty

of the intervention of a grand jury was designed to

secure"). If courts are permitted to surmise after the

fact what the grand jury would have found if

presented with a proper indictment, or must have

2

found based on the evidence before it, the Fifth

Amendment right not to be tried for serious offenses

except on indictment by the grand jury will be

significantly weakened.

The omission of an element of an offense from

the indictment constitutes "structural error," as this

Court has explained that term, and thus cannot be

reviewed for harmless error. See, e.g., United States

v. Du Bo, 186 F.3d 1177, 1179-80 (9th Cir. 1999).

Omission of an element has each of the three

characteristics that, alone or in combination, cause

an error to be "structural": the omission has conseq-

uences that are necessarily difficult to assess,

especially given the secrecy that shrouds grand jury

proceedings, see id. at 1179; it necessarily renders

the criminal proceeding furdamentally unfair,

because it permits the defendant to be “held to

answer" at trial without having been charged with

an offense by the grand jury, see id. at 1180; and the

harmless error inquiry is irrelevant to remedying the

constitutional error, because the interest to be

protected does not necessarily turn upon the

ultimate reliability of the grand jury or trial

proceeding, see zd. at 1180 n.2. See generally United

States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4

(2006) (addressing grounds for finding structural

error).

The courts that have applied harmless error

analysis to indictments that omit an element of the

offense have taken too crabbed a view of what

constitutes "structural error." Those courts have

generally concluded that because this Court held in

Neder v. United States, 527 U.S. 1 (1999), that

4

failure to instruct the petit jury on an element of the

offense may constitute harmless error, it necessarily

follows that the omission of an element from the

indictment may be harmless. See, eg., United

States v. Allen, 406 F.3d 940, 943-45 (8th Cir. 2005)

(en banc), cert. denied, 127 S. Ct. 826 (2006); United

States v. Higgs, 353 F.3d 281, 304-07 (4th Cir. 2008).

But Neder and similar cases address. the

"commission of a constitutional error at trial alone."

Washington v. Recuenco, 548 U.S. 212, 218 (2006).

Those cases do not consider the unique role of the

grand jury in our constitutional structure or the

critical differences between grand jury and trial

proceedings. See Du Bo, 186 F.3d at 1180 n.2. We

respectfully urge the Court to take the opportunity —

that this case presents to address the application of

"structural error" in the grand jury context.

2. This case affords an excellent vehicle

for the Court to resolve the uncertainty in its own

decisions and in the lower courts over proper

application of the rule of lenity. The Fifth Circuit

found that the text of the so-called "business nexus"

requirement in 15 U.S.C. § 78dd-1(a)(1) and -2(a)(1)

is ambiguous. Resorting to snippets of legislative

history, however, including the legislative history of

amendments to the FCPA that Congress declined to

adopt,? the court of appeals refused to apply the rule

of lenity. The court found the rule applicable only

where, "after seizing everything from which aid can

be derived, a court can make no more than a guess

as to what Congress intended." United States v.

? See United States v. Kay, 359 F.3d 738, 752-53 (5th Cir.

2004).

5

Kay, 513 F.3d 482, 445 (5th Cir. 2007) (quotation

and brackets omitted), modified on other grounds,

513 F.8d 461 (5th Cir. 2008). This case thus

squarely presents the question whether the rule of

lenity applies as a "last resort," when the court's only

alternative is to "guess" at the meaning of the

statute, as the court of appeals held, or, by contrast,

whether the rule applies whenever the "text,

structure, and history lof the statute] fail to

establish that the Government's position is

unambiguously correct." United States v. Gran-

derson, 511 U.S. 39, 54 (1994); see, e.g., Scheidler v.

NOW, 537 U.S. 398, 409 (2003); Cleveland v. United

States, 531 U.S. 12, 25 (2000).

This case also offers the opportunity to resolve

a more fundamental question: whether courts can

ever resort to legislative history to resolve ambiguity

in the statutory text, or whether instead the rule of

lenity applies (and bars resort to legislative history)

whenever the text of a penal statute remains

ambiguous after the court has applied all available

canons of statutory construction. Because the rele-

vant statutory text is indisputably ambiguous here,

the rule of lenity requires that the business nexus

element be interpreted in petitioners' favor unless,

as the court of appeals held, resort may first be had

to legislative history.

Three Justices of this Court have declared

that “it is not consistent with the rule of lenity to

construe a textually ambiguous penal statute

against a criminal defendant on the basis of

legislative history." United States v. R.L.C., 503

U.S. 291, 308 (1992) (Scalia, J., joined by Kennedy

6

and Thomas, JJ., concurring in the judgment); see

id. at 311 (Thomas, J., concurring in the judgment)

(agreeing that "the use of legislative history to

construe an otherwise ambiguous penal statute

against a criminal defendant is difficult to reconcile

with the rule of lenity," but emphasizing that courts

may use "well-established principles of statutory

construction" in determining whether text is

ambiguous) (quotation omitted). The plurality in

R.L.C., consisting of Chief Justice Rehnquist and

Justices White, Stevens, and Souter, concluded that

Justice Scalia's view of the rule of lenity "is an issue

that is not raised and need not be reached in this

case." /d. at 306 n.6.

The issue left unresolved in A.L.C.--whether

the rule of lenity precludes resort to legislative

history when the statutory text is ambiguous--is

squarely presented here. That issue goes directly to

the core purpose of the rule. "'The rule of lenity

ensures that criminal statutes will provide fair

warning concerning conduct rendered illegal."

R.L.C., 503 U.S. at 309 (Scalia, J., joined by Kennedy

and Thomas, JJ., concurring) (quoting Liparota v.

United States, 471 U.S. 419, 427 (1985)); see, e.g.,

McBoyle v. United States, 283 U.S. 25, 27 (1931)

(Holmes, J.) (before imposing criminal punishment,

‘it is reasonable that a fair warning should be given

to the world in language that the common world will

understand, of what the law intends to do if a certain

line is passed. To make the warning fair, so far as

possible the line should be clear.").

Presuming knowledge of the text of the

criminal code is consistent with the principle of fair

7

warning embodied in McBoy/e and its progeny. The

code is readily available to lawyers and nonlawyers

alike; anyone who wishes to do so may consult

potentially applicable penal statutes before acting.

Legislative history, by contrast, is often inaccessible

to nonlawyers and--as this case well illustrates--may

itself be open to varying interpretations. More

fundamentally, statutes have the force of law,

knowledge of which must generally be presumed in

any ordered society; legislative history does not.

"[Blecause no one can plausibly conclude that a

committee report or the floor statements of selected

legislators provides [fair warning], the use of such

material seems utterly incompatible with the rule [of

lenity] or the civilized interests it protects." United

States v. Laton, 352 F.3d 286, 314 (6th Cir. 2003)

(Sutton, J., dissenting); see R.L.C., 503 U.S. at 309

(Scalia, J., joined by Kennedy and Thomas, JuJ.,

concurring in the judgment) ("It may well be true

that in most cases the proposition that the words of

the United States Code or the Statutes at Large give

adequate notice to the citizen is something of a

fiction . . . albeit one required in any system of law;

but necessary fiction descends to needless farce

when the public is charged even with knowledge of

Committee Reports.").

Moreover, descents into legislative history, as

this case illustrates, are certain to render the rule of

lenity a practical nullity. ‘The malleability of

legislative history will nearly always provide some

basis, however tenuous, to conclude that ambiguous

statutory language can be stretched to cover the

defendant's alleged conduct, especially when the

alternative is a reversal of a conviction on due

8

process grounds. Allowing the use of legislative

history to resolve textual ambiguity in penal statutes

therefore invites result-oriented decisions and a

continual expansion of criminal liability.

Because of the importance of the rule of lenity

in preserving the principle of fair warning and the

uncertainty that now surrounds its application in

the federal criminal system, we submit that the

Court should grant the writ and use this case to

provide the needed clarity.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOHN D. CLINE

Counsel of Record

PETER E. DAVIDS

Jones Day

555 California St., 26th

Floor

San Francisco, CA 94104

(415) 626-3939

May 2008

9

JEFFREY T. GREEN

Sidley Austin LLP

1501 K Street, NW

Washington, DC 20005

(202) 736-8000

Counsel for Amicus Curiae

National Association of

Criminal Defense Lawyers