If you are jailed but haven't been convicted of a crime, do you have greater constitutional protections against mistreatment than a convict does?

In 2012, I filed a Petition for Certiorari in the Supreme Court regarding a tragic case where a man who had been jailed for missing a court date on a misdemeanor driving offense didn't receive medical care and died while in custody. The question involved whether the standard of care he was entitled to as a pretrial detainee (under the 14th Amendment's due process clause) was any greater than that of a convicted criminal (under the 8th Amendment's cruel-and-unusual punishment clause). SCOTUSblog featured the petition as a "Petition of the day," but the Supreme Court ultimately declined review. In 2015, however, the Court issued Kingsley v. Hendrickson, in which it stated (in the context of claims for excessive force) that the nature of the claims under these Amendments do indeed differ.

Excerpts of the petition are below.

Can a court consider extrinsic evidence of a contract's "date of execution" when that date appears on the contract? And can the U.S. Supreme Court even consider such questions of state law?

In 2012, I drafted a cert petition to the Supreme Court on behalf of Daewoo Electronics of America, Inc., which had not been paid $5 million for DVD players that another company was going to sell to retailers. The underlying question involved state law regarding contracts—in particular, whether extrinsic evidence regarding the contract's "date of execution" could be considered. The Third Circuit ruled against Daewoo, which sought Supreme Court review. Typically, the Supreme Court reviews only questions of federal law, but there is an exception.

Here is the Petition's introductory paragraph for "Reasons for Granting the Petition":

In rare cases, a federal court’s view of state law on a basic and recurring issue is so plainly wrong that this Court’s review is warranted. This is such a case, as the court below held that determination of a contract’s “date of execution” could not be informed by extrinsic evidence of when the agreement was actually executed. This approach conflicts with longstanding contract principles that have guided this Court and courts of all types for more than a century. The phrase “date of execution of the contract” means the date that the contract “was in fact made, executed, and delivered,” including “at a date subsequent to that stated on its face.” Columbia v. Camden Iron Works, 181 U.S. 453, 461 (1901). The court below was plainly wrong to hold that such evidence is precluded. Certiorari should be granted.

Excerpts of the full petition appear below.

When the Supreme Court interprets a Congressional statute, that precedent has "special force" in light of later Congressional action in that field.

In 2014, I filed a Supreme Court amicus brief on behalf of various U.S. Senators and Representatives—including Barbara Boxer, Ed Markey, John Dingell, John Conyers, and Maxine Waters—who were involved in legislation regarding securities laws (e.g., laws regulating stocks, bonds, etc.). The case was Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317. At issue was whether a 1988 Supreme Court case regarding the securities laws—Basic, Inc. v. Levinson—should be overturned.

Basic established something called the "fraud-on-the-market theory," which made it easier for investors to bring suit under the 1934 Securities and Exchange Act to recover damages for a company's misrepresentations that affected the stock price. Investors have to show they relied on the misrepresentation when deciding to buy or sell the stock, and the "fraud-on-the-market theory" authorized a presumption that the market itself reflects the misrepresentation, such that the investor automatically relied on it when buying or selling the stock.

A class of investors (including Erica P. John Fund, Inc.) brought such a lawsuit against Halliburton, alleging its misrepresentations wrongly inflated its stock price and, once corrected, caused the stock to drop, which in turn caused the investors to lose money. In the Supreme Court, Halliburton argued that Basic should be overruled. Part of Halliburton's argument was that Congress had effectively overruled it already through securities' reform legislation passed in 1995 (the PSLRA), because that law was silent regarding the "fraud-on-the-market theory."  Some Senators and Representatives agreed and filed a brief to that effect. The investors disagreed, and so did numerous other Senators and Representatives involved in passing the law. Their view was that Congress understood Basic was established law and that they were legislating over that established backdrop. I filed an amicus brief on their behalf to make that point to the Supreme Court. My essential argument was that Supreme Court decisions interpreting Congressional statutes—such as the 1988 Basic decision did with regard to the 1934 Securities and Exchange Act—are entitled to special force when Congress acquiesces in the decision (even silently) when legislating further in that field.

In the end, the Supreme Court did not overrule Basic.  The fraud-on-the-market theory remained intact.  The Court's decision is here

The text of the amicus brief is below. Co-counsel on the brief was Barry Weprin of NYC-based Milberg LLP, which specializes in investor suits. The full list of Amici (the various Senators and Representatives) is at the end of the brief.

Multi-million-dollar-fraud sentencing: How can you seek a reasonable sentence when the sentencing range will be driven by the high loss amount?

Your client has been convicted of a financial crime, and the high loss amounts—perhaps in the tens of millions of dollars—are driving the possible sentencing range to an extreme. How do you argue for a reasonable sentence?

I recently posted about a successful Sixth Circuit appeal in a $70 million credit-union collapse. After remand back to the sentencing judge, I filed this Sentencing Memorandum, contending that the fraud Guidelines under §2B1.1 are too severely influenced by the loss amount. Excerpts of that memorandum appear below, including (i) statistics from the U.S. Sentencing Commission regarding the average sentences imposed relative to the Guideline range, and (ii) a detailed chart compiled at the Federal Defender website showing sentences imposed for many of the most-famous financial crimes in the country—many of those sentences were below the Guidelines range. In this case, the initial sentence of 18 years was reduced to 10 after the successful appeal.

Audio of oral argument: Responding to a judge who is aggressively asking questions...

I recently posted about a successful appeal involving consecutive versus concurrent sentencing in a white-collar criminal case. The Sixth Circuit panel was Judges Clay, Rogers, and Ludington. Judge Rogers was particularly active, asking tough (but fair) questions of both sides. There was not always much room for me to respond, and I think this oral argument illustrates how to attempt to stick to your main points while conceding what you should concede when a judge is really pushing you. The panel ultimately ruled for my client in this opinion.

The funniest moment occurs at 22:50.  The government lawyer was contending that there was no confusion about whether the sentencing judge misspoke and meant to say "concurrent" instead of "consecutive" and then the lawyer misspoke and mixed up those very terms. 

Consecutive versus concurrent sentencing in federal court--and a reversal by an appellate court where the distinction wasn't clear.

In the aftermath of a $70 million collapse of a credit union near Cleveland, Ohio, I appealed the sentence of a man who had entered a guilty plea regarding the receipt of fraudulent loans. At issue was whether the judge's imposition of "consecutive" sentences (i.e., sentences stacked on top of each other, as opposed to running "concurrently") was proper--or even intended in the first place.  This turned a 10-year sentence into an 18-year sentence. The appeal took place in 2013. I filed this opening brief, the government filed this opposition, and I filed this reply. This is the audio of the oral argument in the Sixth Circuit. The Sixth Circuit agreed that the sentence was procedurally unreasonable, and it remanded back to the district judge for a new sentencing proceeding. United States v. Nikolovski, No. 12-3679. I then filed this sentencing memorandum, and my client's sentence was then reduced from 18 years to 10 years.

What follows are excerpts of my opening brief to the Sixth Circuit regarding principles of concurrent versus consecutive sentencing in federal court.

When new facts in a second lawsuit overcome the defense of res judicata (claim preclusion).

In 2010, I filed this brief in the Sixth Circuit explaining how a second lawsuit can proceed with similar claims as presented in an earlier, dismissed suit, when the second suit has sufficiently new facts. With the right new facts, res judicata does not bar that second suit. Here is the opposition brief, and here is the reply brief. The Sixth Circuit agreed with my argument in this opinion. This particular case involved a family that lived near an airport and brought suit for damages based on runway expansions near their home. State of Ohio ex rel. Susan Boggs, et al. v. City of Cleveland, 655 F.3d 516 (6th Cir. 2011). What follows are excerpts of the main brief on this point:

Should Iqbal Be Overturned?

We are now a decade into the Twombly/Iqbal world, yet confusion and contradictions about the basic pleading standards for all civil cases in the nation remain.  This is especially true because it is not clear whether the Supreme Court overruled its 2002 Swierkiewicz decision, which unanimously set forth and applied the familiar pleading standards under Rule 8.  See, e.g.Franks v. Vill. of Bolivar, No. 11-701, 2011 U.S. Dist. LEXIS 133740, at *10 n.2 (N.D. Ohio Nov. 18, 2011) (“The lower courts in this circuit have grappled with whether the holding of Swierkiewicz remains good law in light of Twombly and Iqbal”); Jianjun Xie v. Oakland Unified Sch. Dist., No. 12-2950, 2013 U.S. Dist. LEXIS 29898, at *11 n.3 (N.D. Cal. March 5, 2013) (“The effect of Twombly and Iqbal on Swierkiewicz is complex and controversial . . . .”).

The title of this post is the Question Presented in a Petition for Certiorari I filed in 2014 in D'Ambrosio v. Marino, No. 14-393.  The petition explains the development of the pleading standards and contends that, while Twombly is good law, Iqbal should be overruled as contrary to Rule 8.  This approach is based largely on Luke Meier's article, Why Twombly Is Good Law (But Poorly Drafted) and Iqbal Will Be Overturned, 87 Ind. L.J. 709 (2012).

An excerpt of the Petition is below.  My co-counsel and I represented Joe D’Ambrosio, a former death-row inmate who was freed after prosecutors withheld Brady evidence.  We brought a section 1983 suit against the County Prosecutors Office, but the lower courts rejected our claims based on Iqbal, before we were allowed to conduct further discovery. Here is the full Petition, the Opposition of the County, Opposition of the City, and our Reply.

Do you have a "vehicle" problem for Supreme Court review when the court below did not address a separate issue that could also bar you from relief? Probably not...

You have lost in the court of appeals.  But the issue you lost on is a great candidate for Supreme Court review, so you file a petition for certiorari with that issue as the Question Presented.  The other side then opposes your petition.  Part of their argument is that, regardless of your Question Presented, the case is a bad "vehicle" for the Supreme Court because there is a separate issue in the case--not addressed by the court below--that also bars you from relief.  In other words, they are saying something like this: "Who cares about this cert issue--there's a separate problem with this particular case and the Supreme Court therefore shouldn't waste its precious time here, so cert should be denied."  

But there is a good chance that this is not a real vehicle problem.  The Supreme Court frequently takes cases that involve a separate issue that was not addressed by the court below and that may indeed be dispositive of the underlying relief you seek.  When that occurs, the Court reviews the main issue raised and simply remands the case to the court below for resolution of that second issue your opponents keep bringing up.

This concept is the centerpiece of cert-stage briefing I filed at the Supreme Court in 2016 in McNeese v. United States, No. 16-66.  The substantive issues are discussed in this post.  The Petition raised a circuit split regarding a criminal defendant's ability to seek a sentencing reduction after entering a binding plea.  The Department of Justice's Opposition acknowledged the split, but argued that a separate issue would bar my client from the sentencing reduction anyway.  Thus, they said, there is a "vehicle" problem.  What follows is the text of my Reply, which counters that there is no vehicle problem in that context.  The Court ultimately denied certiorari, but the Reply provides a framework to counter the "vehicle" argument.