in the united states supreme court...2011/02/01 · deringer us llp 520 madison avenue, 34th floor...

IN THE

United States Supreme Court

BRIEF FOR FORMER FEDERAL PROSECUTORS AMICUS CURIAE IN SUPPORT OF RESPONDENT

Miles ehrlich raMsey & ehrlich llP803 Hearst AvenueBerkeley, CA 94710510-548-3600 [email protected]

aaron r. Marcu (Counsel of Record)FreshFields Bruckhaus deringer us llP520 Madison Avenue, 34th FloorNew York, NY [email protected]

John ashcroFt,Petitioner,

v.

aBdullah al-kidd,Respondent.

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

No. 10-98

Attorneys for Amicus Curiae

i

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TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. THE ONLY LEGITIMATE USE OFTHE MATERIAL WITNESS STATUTEIS TO SECURE THE PRESENCE OFA MATERIAL WITNESS TO TESTIFYIN A CRIMINAL PROCEEDING . . . . . . . 6

A. The Material Witness Statute Is An Important Law-Enforcement Tool For The Successful Prosecution Of Federal Crimes . . . . . . . . . . . . . . 6

B. The Material Witness Statute’s Plain Text Makes Evident That It Should Be Used Only When A Prosecutor Is Genuinely Interested In Securing The Testimony Of A Witness . . . . . . . . . . . . . . . . . . . . 8

TABLE OF CONTENTSPAGE

iiPAGE

II. DE-LINKING THE STATUTEFROM ITS PURPOSE OF SECURINGTESTIMONY WOULD UNDERMINETHE RULE OF LAW . . . . . . . . . . . . . . . . . . 11

III. THE MATERIAL WITNESS STATUTEDOES NOT PREVENT PROSECUTORSFROM INVESTIGATING ANINDIVIDUAL DETAINED AS A MATERIAL WITNESS SO LONG ASTHE PROSECUTOR INTENDS TOOBTAIN TESTIMONY FROMTHE INDIVIDUAL. . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


iii

Aguilar-Ayala v. Ruiz, 973 F.2d 411 (5th Cir. 1992) . . . . . . . . . . . . 7

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) . . . 3

Barnhart v. Sigmon Coal Company, 525 U.S. 471 (1999) . . . . . . . . . . . . . . . . . . . . . . 13

Clinton v. City of New York, 524 U.S. 417 (1998) . . . . . . . . . . . . . . . . . . . . . . 13

Lacy v. County of Maricopa, 631 F. Supp. 2d 1183 (D. Ariz. 2008) . . . 12

Melendez-Dias v. Massachusetts, 129 S. Ct. 2527 (2009) . . . . . . . . . . . . . . . . . . . 11

Offut v. United States, 348 U.S. 11 (1954) . . . . . . . . . . . . . . . . . . . . . . . 13

Reno v. American-Arab Anti-DiscriminationCommittee, 525 U.S. 471 (1999) . . . . . . . . 13

Taylor v. Illinois, 484 U.S. 400 (1988) . . . . . . 9

United States v. Hasting, 461 U.S. 499 (1983) . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Huang, 827 F. Supp. 945 (S.D.N.Y. 1993). . . . . . . 7

United States v. Lai Fa Chen, 214 F.R.D. 578 (N.D. Cal. 2003) . . . . . . . . 7

United States v. McVeigh, 940 F. Supp. 1541 (D. Colo. 1996) . . . . . . 15, 16

TABLE OF AUTHORITIESPAGECases


ivPAGE

United States v. Mercedes, 164 F. Supp. 2d 248 (D.P.R. 2001) . . . . . . 7

United States v. Nai Fook Li, 949 F. Supp. 42 (D. Mass. 1996) . . . . . . . . 7

United States v. Nichols, 77 F.3d 1277 (10th Cir. 1996) . . . . . . . . . . . 15, 16

Washington State Department of Social & Health Services v. Guardianship Estate of Danny Keffeler, 537 U.S. 371 (2003) . . . . . . . . . . . . . . . . . . . . . . 13

Federal Statutes

18 U.S.C. § 3144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Bail Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (1984) . . . . . . . . . . . . . . . . . . . . . 6

Other Authorities

Black’s Law Dictionary (9th ed. 2009) . . . . . . 10, 11

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INTEREST OF AMICUS CURIAE

This brief is submitted on behalf of the formerfederal prosecutors identified in the Appendix.1

Amici have all worked as federal prosecutors. Wesubmit this brief in support of Respondent.

Collectively, amici have decades of experience infederal criminal prosecution, including prosecut-ing domestic and international terrorists. Amiciare familiar with both the protocols and historicalpractices of the Department of Justice regardingmaterial witness arrests and detention. Amici setforth their understanding of the purpose andproper use of the federal material witness statutein an effort to provide helpful context for theissues to be decided by the Court.

SUMMARY OF ARGUMENT

The federal material witness statute, 18 U.S.C.§ 3144, gives prosecutors the power to secure awitness’s presence in order to obtain the witness’stestimony in a criminal proceeding. The statute’ssingular purpose is clear both from its structureand its plain language. First, an individual maybe arrested only if the prosecutor shows that theindividual’s “testimony . . . is material in a crim-inal proceeding.” This predicate for issuance of amaterial witness warrant confirms that the pur-pose of the statute is to enable a prosecutor to

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1 The parties have consented to the filing of this briefand such consents have been lodged with the Court. Nocounsel for a party authored this brief in whole or in part.No person or entity other than the amicus curiae and theircounsel made a monetary contribution to the preparationand submission of this brief.

obtain evidence from a witness for a criminal case.Second, the prosecutor must show that “it maybecome impracticable to secure the presence of theperson by subpoena.” This second predicate isdesigned to enable the prosecutor to secure a wit-ness’s presence at a time when the witness isaccessible to the prosecution, under circumstanceswhere the witness might later be unavailable. Theconditions for a material witness’s release alsoconfirm the statute’s purpose: a prosecutor mustrelease the witness once she is deposed. Thestatute does not permit continued detention of anindividual to achieve some other aim.

Petitioner argues that a prosecutor may detainan individual under Section 3144 even if the pros-ecutor has no intention of using that individual’stestimony in a criminal proceeding. The argumentimplies that a prosecutor could request a materialwitness warrant from a magistrate judge withoutdisclosing to the judge that the prosecutor has nointention of obtaining testimony from the witnessat all. Accepting this argument would authorizeprosecutors to withhold material information froman issuing court.

Petitioner claims that if the material witnessstatute’s only legitimate use is to secure a wit-ness’s testimony, prosecutors’ ability to investi-gate individuals for criminal wrongdoing will beimpeded. Nothing in the statute, however, pre-vents a prosecutor who arrests an individual as amaterial witness from continuing her investiga-tion and later charging the witness criminally ifthe evidence supports the charge. Equally, how-ever, the statute does not authorize prosecutors todetain an individual under the false label of

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“material witness” if the prosecutor in fact has nointention of using the individual as a witness.

ARGUMENT

Respondent’s factual allegations, which must betaken as true at this stage of the proceedings, seeAshcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), areset out in the First Amended Complaint. See J.A.11-58. Respondent is a native-born U.S. citizenand a graduate of the University of Idaho. J.A. 22-3. While in college, Respondent converted toIslam. J.A. 23. In the wake of September 11, theFBI allegedly “conducted surveillance of Mr. al-Kidd and his then-wife (also a native-born UnitedStates citizen) as part of their broad terrorisminvestigation” in Idaho. J.A. 23.

In March of 2003, Respondent was preparing totravel to Saudi Arabia on an academic scholar-ship. While Respondent was at the ticket counterat Dulles International Airport, FBI agentsarrested him on a material witness warrant. Thewarrant had been issued by an Idaho magistratejudge on the basis of an FBI agent’s affidavit stat-ing that Respondent was needed as a witness inthe trial of Sami Al-Hussayen, a graduate studentat the University of Idaho who had been indictedfor visa fraud and making false statements to thegovernment. J.A. 23-4, 29, 38-9.

Respondent alleges that prior to his arrest, hehad cooperated with the FBI’s requests for inter-views, that he had never missed a meeting withthe FBI agents, and that he had not heard fromthe FBI for approximately six months. J.A. 26-7.He also alleges that the FBI never told him “that

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he would be needed as a witness in the Al-Hus-sayen trial (or any other proceeding) or ask[ed]him if he would agree to testify,” and never toldhim “that he could not travel abroad or that hemust consult with the government before hescheduled a trip abroad.” J.A. 26. Respondent fur-ther alleges that he was never asked to relinquishhis passport, as another witness in the Al-Hus-sayen trial was asked to do. J.A. 26-7.

Respondent alleges that upon his arrest, he washandcuffed, taken to a “police substation at theairport,” and interrogated about his own religiousbeliefs, conversion to Islam, and past travels. J.A.30. In all, Respondent spent fifteen nights in var-ious jails, during which time he was placed in thejails’ high-security wings with convicted criminals,strip-searched, and shackled. J.A. 13, 31-5. Evenafter Respondent’s release from detention, he wassubject to significant supervisory conditions lim-iting his freedom for more than a year. J.A. 38.The government never moved to vacate these con-ditions; Respondent himself petitioned an Idahocourt to have them removed once Al-Hussayen’strial ended. J.A. 14, 38-9. In all the time thatpassed between Respondent’s arrest and the trialof Al-Hussayen, the prosecution never calledRespondent as a witness at that or any other trial;nor did the prosecution ever seek to depose him.J.A. 38-9.

Respondent contends that the prosecutors andFBI agents did not view him as a witness. Rather,Respondent alleges that their “purpose in arrest-ing and detaining [him] was not to secure his tes-timony, but to preventively hold and investigatehim for possible criminal wrongdoing.” J.A. 40; see

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also J.A. 52 (alleging that Respondent “wasarrested for the unlawful purpose of detaining himpreventively and/or for further investigation, andnot because his testimony was needed”); Resp’t’sBr. 32 (discussing allegations). Among otherthings, Respondent points to FBI Director RobertMueller’s testimony before Congress regarding thegovernment’s anti-terrorism efforts, where Direc-tor Mueller specifically cited Respondent’s arrestas one of the federal government’s successes in theWar on Terror. J.A. 37. Director Mueller did notinform Congress that Respondent had beenarrested on a material witness warrant, and notas a criminal suspect. In sum, Respondent allegesthat he was arrested pursuant to a “nationwidepolicy instituted by [P]etitioner,” former AttorneyGeneral John Ashcroft, which directed federal lawenforcement officials to “use[] the material wit-ness statute to detain and investigate suspects forwhom the government lacked probable cause ofwrongdoing, and not to secure testimony.” Resp’t’sBr. at 5.

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I. THE ONLY LEGITIMATE USE OF THE MATE-RIAL WITNESS STATUTE IS TO SECURE THEPRESENCE OF A MATERIAL WITNESS TOTESTIFY IN A CRIMINAL PROCEEDING

A. The Material Witness Statute Is AnImportant Law-Enforcement Tool ForThe Successful Prosecution Of Fed-eral Crimes

Congress enacted the current material witnessstatute as part of the Bail Reform Act of 1984. SeePub. L. No. 98-473, 98 Stat. 1837, 1976-81 (1984).The statute, codified at 18 U.S.C. § 3144 andspecifically entitled “[r]elease or detention of amaterial witness,” provides:

If it appears from an affidavit filed by aparty that the testimony of a person ismaterial in a criminal proceeding, and ifit is shown that it may become impracti-cable to secure the presence of the personby subpoena, a judicial officer may orderthe arrest of the person and treat the per-son in accordance with the provisions ofsection 3142 of this title. No material wit-ness may be detained because of inabilityto comply with any condition of release ifthe testimony of such witness can ade-quately be secured by deposition, and iffurther detention is not necessary to pre-vent a failure of justice. Release of amaterial witness may be delayed for a rea-sonable period of time until the depositionof the witness can be taken pursuant tothe Federal Rules of Criminal Procedure.

18 U.S.C. § 3144.

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The material witness statute is a powerful,effective, and necessary law-enforcement tool. Itsuse can be indispensable to the successful prose-cution of federal crimes, particularly where thereis probable cause to believe that the witness iscontemplating leaving the jurisdiction or other-wise refusing to comply with a subpoena. Forexample, prosecutors often rely on the statute tosecure the presence of aliens as witnesses in theprosecution of alleged human traffickers andsmugglers. See Aguilar-Ayala v. Ruiz, 973 F.2d411, 413 (5th Cir. 1992) (“To successfully prose-cute persons unlawfully transporting undocu-mented aliens into the United States, theDepartment of Justice . . . engaged in the practiceof detaining some undocumented aliens as mate-rial witnesses for the criminal prosecution of thealleged alien smugglers.”); see also United Statesv. Lai Fa Chen, 214 F.R.D. 578 (N.D. Cal. 2003);United States v. Mercedes, 164 F. Supp. 2d 248(D.P.R. 2001); United States v. Huang, 827 F.Supp. 945 (S.D.N.Y. 1993). In such cases, prose-cutors may have a “legitimate concern” that,absent the power to seek their detention, it wouldbe impracticable to obtain evidence from theseundocumented aliens because they are subject todeportation and are “hardly motivated to stickaround for trial to testify . . . .” Aguilar-Ayala, 973F. 2d at 418-19.

Similarly, in United States v. Nai Fook Li, 949F. Supp. 42 (D. Mass. 1996), the U.S. Coast Guardand the former Immigration and NaturalizationService seized a boat carrying Chinese citizens.Prosecutors charged the defendants with con-spiring to smuggle the passengers into the United

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States. Id. at 43. In order to secure the witnesses’presence at a criminal proceeding, prosecutorsarrested five people from the boat on material wit-ness warrants. Id. at 45. The court upheld thegovernment’s right to hold the witnesses untiltrial because they would be repatriated to China ifthey were not detained and would thus beunavailable to testify. Id. at 46.

B. The Material Witness Statute’s PlainText Makes Evident That It Should BeUsed Only When A Prosecutor Is Gen-uinely Interested In Securing TheTestimony Of A Witness

The material witness statute provides prosecu-tors with an important law-enforcement tool: thepower to secure a witness’s presence to testify ina criminal proceeding. It has no other legitimatepurpose, and, in our experience, prosecutorsunderstand that it should not be used to achievesome other, unauthorized objective. This under-standing flows directly from the statute’s plainlanguage and structure.

Section 3144 contains two components. The firstsets forth the circumstances under which a courtmay issue a warrant for a witness’s arrest: specif-ically, where a prosecutor can show (1) that theindividual’s testimony is material in a criminalproceeding; and (2) that it may become impracti-cable to secure the individual’s presence at thoseproceedings by subpoena. The statute’s secondcomponent limits the amount of time that a wit-ness can be held on a material witness warrant toonly such time as required for a witness’s testi-mony to be secured through deposition, and even

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then, only for a “reasonable period of time” nec-essary to arrange the deposition.

The elements of Section 3144 make clear its solepurpose: empowering the prosecutor to seize andhold a witness to obtain that witness’s testimony.The statute plainly provides that it will beinvoked only where a prosecutor seeking a mate-rial witness warrant is genuinely interested inobtaining testimony from that witness.

To obtain court approval for a material witnesswarrant, a prosecutor must meet both tests, bothof which confirm that the government’s purpose inseeking a material witness warrant must be toobtain testimony from the individual beingdetained for use in some other criminal proceed-ing. First, an individual may be arrested as amaterial witness only if the prosecutor can showthat the individual’s testimony “is material in acriminal proceeding.” This element plainly impliesthat when a prosecutor seeks a warrant for suchan individual’s arrest, the prosecutor genuinelybelieves that the individual possesses materialtestimony and genuinely intends to make use ofthat evidence in a pending criminal proceeding.

The prosecutor must also show that “it maybecome impracticable to secure the presence of theperson by subpoena.” A subpoena is the usualmethod by which a prosecutor will ensure that awitness will appear at a grand jury, deposition, ortrial. See Taylor v. Illinois, 484 U.S. 400, 415-16(1988) (“Routine preparation involves location andinterrogation of potential witnesses and the serv-ing of subpoenas on those whose testimony will beoffered at trial.”). The use of a material witnesswarrant is thus an extraordinary means of secur-

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ing the presence of a witness, and it is only to beemployed when the prosecutor can show that thewitness may not later be subject to the court’sjurisdiction or may refuse to comply with a sub-poena. Thus, the second predicate for issuing thewarrant also confirms that the statute’s purpose isto secure an individual’s presence at a criminalproceeding so that her testimony can be presentedin that proceeding.

That the statute is meant to secure a witness’stestimony is also clear from Section 3144’s explicitdirection relating to the release of a material wit-ness. A prosecutor must release a material wit-ness once the witness has given testimony. Thestatute nowhere suggests that the witness may beincarcerated further to achieve some other objec-tive, such as an investigation of the witness as acriminal suspect. This limitation on the durationof a witness’s detention is based on the statute’spurpose of securing a witness’s testimony so thatit may be presented in a criminal proceeding.Once the witness has been detained and the wit-ness’s testimony secured, the witness must bereleased.

If there were any doubt about the statute’s pur-pose, it is dispelled by the statute’s explicit use ofthe word “witness.” Before a prosecutor asks ajudge to issue a warrant to arrest a material wit-ness, the prosecutor must necessarily have con-cluded that the witness is someone who couldprovide testimony for use in another person’scriminal proceedings. This is the obvious meaningof the word witness. See Black’s Law Dictionary1740 (9th ed. 2009) (defining “witness” as “[o]newho sees, knows, or vouches for something; . . .

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[o]ne who gives testimony under oath or affirma-tive . . . .”); see also Melendez-Dias v. Massa-chusetts, 129 S. Ct. 2527, 2551 (2009) (Kennedy,J., dissenting) (explaining that a “witness” is “onewho witnesses (that is perceives) an event thatgives him or her personal knowledge of someaspect of the defendant’s guilt”).

Prosecutors recognize that Section 3144’s valueis that it empowers a federal court to order a wit-ness’s arrest solely to obtain that witness’s testi-mony, even where the witness has done nothingwrong or the prosecutor lacks evidence to supporta traditional arrest warrant. Prosecutors are wellaware of the Constitution’s limitations on arrestand detention and they understand that these lim-itations must be observed rigorously. The materialwitness statute does not—and indeed cannot—offer prosecutors an end-run around the FourthAmendment rule that the arrest and detention ofa suspect must be supported by probable cause tobelieve that the arrestee herself has committed acrime.

II. DE-LINKING THE STATUTE FROM ITS PUR-POSE OF SECURING TESTIMONY WOULDUNDERMINE THE RULE OF LAW

Contrary to prosecutors’ settled understandingabout the material witness statute’s legitimateuse, Petitioner argues that a prosecutor seeking todetain an individual under Section 3144 need nothave any genuine intention of using that individ-ual’s testimony in a criminal proceeding. SeePet’r’s Br. 29-32. As long as a prosecutor can sat-isfy Section 3144’s objective requirements, i.e.,materiality and impracticability, Petitioner con-

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tends that it would not contravene the law for aprosecutor to seek a material witness warrantdespite having no intention of using the so-calledwitness as a witness. See id.

Petitioner’s argument ignores the statute’s pur-pose. It is a clear practical reality that any judgewould believe that she is issuing a Section 3144warrant because the prosecutor needs the wit-ness’s testimony. This is the clear implication ofSection 3144’s text. Magistrate judges have aright to rely on the representations of prosecutorsand other law enforcement officials who comebefore them seeking warrants. A prosecutor whoobtains a material witness warrant without tellingthe issuing judge that she does not intend to usethe witness’s testimony in another proceeding hasarguably omitted a material fact from her appli-cation to the magistrate, or at the very least mis-led the judge about the reason an individual isbeing arrested.

Even if such a material omission does not actu-ally rise to the level of a false statement, itunquestionably undermines the rule of law andrespect for the statute’s plain language. SeeUnited States v. Hasting, 461 U.S. 499, 522 (1983)(Brennan, J., concurring in part, dissenting inpart) (stating that prosecutors “are officers of thecourt charged with upholding the law . . . .”); seealso Lacy v. Cnty. of Maricopa, 631 F. Supp. 2d1183, 1196 (D. Ariz. 2008) (referring to prosecu-tors “who, through false statements, prevail[ ]upon a magistrate to issue a warrant” as “repre-hensible” because the prosecutor “maliciouslyabuse[d] a position of trust” (quotations and cita-tions omitted)). As this Court has observed, “jus-

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tice must satisfy the appearance of justice.” Offutv. United States, 348 U.S. 11, 14 (1954). Autho-rizing prosecutors to obtain court orders based onmisleading applications would shake the faith ofthe judiciary in the prosecutors who appear beforethem, and the faith of the public in our system ofjustice.

This Court has repeatedly held that interpre-tations of statutes that lead to “absurd and unjustresults” must be rejected because they could notreflect what Congress intended when it passed thestatute. Clinton v. City of New York, 524 U.S. 417,429 (1998) (quotations and citations omitted); seealso Wash. State Dep’t of Soc. & Health Servs. v.Guardianship Estate of Danny Keffeler, 537 U.S.371, 388 n.11 (2003); Barnhart v. Sigmon CoalCo., 534 U.S. 438, 449-50 (2002); Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,480 (1999). Petitioner’s interpretation of thestatute would lead to such a result. It is absurd tobelieve that Congress passed a statute that wouldpermit prosecutors to materially mislead judges ina manner that would undermine general respectfor the rule of law.

III. THE MATERIAL WITNESS STATUTE DOESNOT PREVENT PROSECUTORS FROMINVESTIGATING AN INDIVIDUAL DETAINEDAS A MATERIAL WITNESS SO LONG ASTHE PROSECUTOR INTENDS TO OBTAINTESTIMONY FROM THE INDIVIDUAL

Petitioner claims prosecutors’ ability to inves-tigate individuals for criminal wrongdoing wouldbe unnecessarily hampered if the only legitimateuse of the material witness statute is to secure a

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witness’s testimony for a criminal proceeding.This contention is without basis. Prosecutors mayact with mixed motives when they seek a materialwitness warrant, so long as their intention to seekthe witness’s testimony for an independent crim-inal proceeding is genuine. Indeed, they may—and often do—view the same individual as both amaterial witness and as a potential criminal sus-pect without running afoul of the statute. So longas the motive of securing testimony is genuine,and not pretextual, use of the material witnessstatute is appropriate.

Petitioner argues that a prosecutor’s fear of per-sonal liability for acting pursuant to these dualmotives will keep the prosecutor from arresting anindividual as a material witness, thus deprivingthe prosecution of needed testimony. See Pet’r’sBr. 39-40. This fear allegedly would “discourageprosecutors from employing the material-witnessstatute in situations for which it was designed andin which the public interest favors its use.” Id. at40.

Prosecutors, however, have never thought ofSection 3144 as so limiting. A prosecutor can seekan individual’s detention as a material witnessand later decide to charge the individual crimi-nally. That alone would not be a misuse of thestatute, and Respondent does not claim it wouldbe. Similarly, a prosecutor could seek someone’sdetention as a material witness even if she alsosimultaneously suspected the person of criminalwrongdoing. Standing alone, this would not be aviolation of the statute. What would be an abuseof the statute would be for a prosecutor to seek thearrest of a person under Section 3144 when she

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has no intention of using the person’s testimony ina criminal proceeding or otherwise believes thatthe person’s presence could adequately be securedby subpoena.

Prosecutors understand that they may investi-gate an individual arrested pursuant to a materialwitness warrant to determine if the individualcommitted a crime. This includes crimes related tothe subject matter of the criminal proceedings atwhich the witness will testify. That prosecutorshave this ability under the statute is only logical.It is possible that an individual who a prosecutorinitially believes has important and material tes-timony may have this information because theindividual actually participated in the crime. Insuch a case, the prosecutor may only become fullyaware of the individual’s involvement in the crimeafter she has legitimately detained the individualon a material witness warrant.

For example, in United States v. Nichols, 77F.3d 1277 (10th Cir. 1996), cited by Petitioner,prosecutors initially arrested Nichols as a mate-rial witness. Id. at 1278. There is no suggestion inNichols that the prosecutors did not genuinelywant Nichols’s testimony. Prosecutors initiallybelieved that Nichols was a material witnessbecause they had substantial information linkinghim to Timothy McVeigh, whom the FBI hadalready charged with blowing up the Murrah Fed-eral Building by the time prosecutors obtained theNichols warrant. See United States v. McVeigh,940 F. Supp. 1541, 1546-50, 1562 (D. Colo. 1996).They also believed that it would be impracticableto secure Nichols’s testimony by subpoena,because Nichols had renounced his U.S. citizen-

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ship and thus was unlikely to respond to a sub-poena. See id. at 1562. After prosecutors con-cluded that Nichols was a material witness, theycontinued to investigate his conduct. Prosecutorsrealized the full extent of Nichols’s participationin the bombing only as a result of this furtherinvestigation, and they then charged him withoffenses related to the bombing. See Nichols, 77F.3d at 1278-79. Thus, Nichols’s arrest would nothave violated the material witness statute unlessthe prosecutors initiated the arrest solely to holdhim while they continued their investigation ofNichols’s own criminal offenses.

Compare Nichols, however, with a scenario thatwould run afoul of Section 3144: assume that pros-ecutors, having indicted one broker in a financialservices firm for insider trading, come to suspectanother broker of involvement in the scheme after uncovering suspiciously-timed phone callsbetween the two. Assume that the FBI questionsthis second broker on multiple occasions, and eachtime he fully cooperates in the questioning, neveronce missing a meeting. The prosecutor decidesthat the second broker’s testimony is not neededfor the case already under indictment, but con-tinues to believe that the second broker is alsoguilty of insider trading, even though she lacksprobable cause to charge him.

Assume that after conducting these interviews,the FBI learns that the second broker is about tobe reassigned to a branch in China, a country thathas no extradition treaty with the United States.Unless the prosecutor actually intends to presentthe second broker’s testimony in the pending pro-ceeding, and would be unable to obtain that tes-

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timony absent an arrest, the prosecutor wouldhave no basis for seeking a material witness war-rant. Under Petitioner’s interpretation of Section3144, however, the prosecutor would be empow-ered to obtain a material witness warrant for thesecond broker simply by pointing to the objectivefacts that he had significant ties to the defendantand was about to be living abroad and beyond thereach of a subpoena. This position finds no sup-port in the statute and cannot be reconciled withthe Fourth Amendment’s requirement of probablecause. Prosecutors understand that using thematerial witness statute as a means to hold anindividual in the hope that further investigationwill lead to probable cause—or worse, as a meansto separate an individual from society without atrial, even when based on the government’s well-intended suspicions—would violate the most basicprotections guaranteed by the Fourth Amend-ment.

The difference between the insider-tradinghypothetical and Nichols helps to demonstrate thelimit imposed by Section 3144 on a prosecutor’sability to investigate. This limit is sensible: aprosecutor cannot arrest and detain individualssimply because she finds it easier to investigatethem when they are detained, while all alongoperating under the pretense that they are mate-rial witnesses.

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CONCLUSION

For the foregoing reasons, the amicus curiaeurge this Court to affirm the Ninth Circuit’s deci-sion.

Respectfully submitted,

AARON R. MARCU(Counsel of Record)

FRESHFIELDS BRUCKHAUSDERINGER US LLP

520 Madison Avenue, 34th FloorNew York, New York 10022(212) [email protected]

MILES EHRLICHRAMSEY & EHRLICH LLP803 Hearst AvenueBerkeley, California 94710(510) [email protected]

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APPENDIX

Appendix of Amici Curiae

Elkan Abramowitz served as Chief of the Crim-inal Division in the United States Attorney’sOffice for the Southern District of New York from1976 to 1977. Prior to that, he was Special Coun-sel to the Select Committee on Crimes for theUnited States House of Representatives in 1970,and was an Assistant United States Attorney forthe Southern District of New York from 1966 to1970.

Leland B. Altschuler served as Chief of the Sil-icon Valley Branch of the United States Attorney’sOffice for the Northern District of California from1992 to 1998.

David Bancroft served as Chief of Special Pro-jects in charge of fraud and terrorism prosecutionsin the United States Attorney’s Office for theNorthern District of California from 1972 to 1978.Prior to that, he served as an Assistant UnitedStates Attorney in the Criminal Division of thatOffice from 1966 to 1972, and as a Trial Attorneyin the Organized Crime and Racketeering Sectionof the United States Department of Justice from1963 to 1966.

Martha Boersch served as an Assistant UnitedStates Attorney and Chief of the Organized CrimeStrike Force in the United States Attorney’s Officefor the Northern District of California from 2002to 2004. Prior to that, she served as that Office’sChief of the Securities Fraud Unit from 2001 to2002.

1a

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Barry A. Bohrer served as Chief of the MajorCrimes Unit in the United States Attorney’s Officefor the Southern District of New York from 1985to 1986. Prior to that, he was Chief AppellateAttorney in that Office from 1984 to 1985, and anAssistant United States Attorney from 1982 to1986.

Daniel Bookin served as an Assistant UnitedStates Attorney in the Southern District of NewYork from 1978 to 1982.

Leslie Caldwell served as Director of the UnitedStates Department of Justice’s Enron Task Forcefrom 2002 to 2004. From 1999 to 2002, she servedin the United States Attorney’s Office for theNorthern District of California, where she wasChief of both the Criminal Division and the Secu-rities Fraud Section. Prior to that, she was anAssistant United States Attorney in the EasternDistrict of New York.

John K. Carroll served as Chief of the Securitiesand Commodities Fraud Task Force in the UnitedStates Attorney’s Office for the Southern Districtof New York from 1990 to 1992. Prior to that, heserved as an Assistant United States Attorney inthat Office from 1983 to 1992.

Joel M. Cohen served as Deputy Chief of theBusiness/Securities Fraud Section of the UnitedStates Attorney’s Office for the Eastern District ofNew York from 1997 to 1999, and as an AssistantUnited States Attorney in that Office from 1992 to1999.

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Miles Ehrlich served as Chief of the White CollarCrime Section of the United States Attorney’sOffice for the Northern District of California from2003 to 2005, and as an Assistant United StatesAttorney in that Office from 2000 to 2005. He wasa Trial Attorney in the Public Integrity Section ofthe United States Department of Justice, from1994 to 2000.

Frederick P. Hafetz served as Chief of the Crim-inal Division in the United States Attorney’sOffice for the Southern District of New York from1977 to 1979. Prior to that, he served for twoyears with the United States Department of Jus-tice’s Organized Crime Strike Force, was SpecialCounsel to the United States House of Represen-tatives Select Committee on Crime, and was anAssistant District Attorney in New York Countyfor five years.

Katya Jestin served as Deputy Chief of the Orga-nized Crime and Racketeering Section in theUnited States Attorney’s Office for the EasternDistrict of New York from 2006 to 2007. From2004 to 2006, she was that Office’s Deputy Chiefof the General Crimes Section. She served as anAssistant United States Attorney in that Officefrom 2001 to 2007.

Matthew J. Jacobs served as Assistant UnitedStates Attorney for the Northern District of Cal-ifornia in San Francisco.

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H. H. “Shashi” Kewalramani served as Assis-tant United States Attorney for the Central Dis-trict of California from 2008 to 2011 and for theNorthern District of California from 2003 to 2008.

Emily Kingston served as an Assistant UnitedStates Attorney for the Northern District of Cal-ifornia in San Francisco from 1995 to 2005. Priorto that, she served as a Special Assistant UnitedStates Attorney for the Office of the Chief Counselof the Internal Revenue Service in San Jose from1992 to 1995. From 1989 to 1992, she served as aTrial Attorney for the Tax Division of the UnitedStates Department of Justice, Western Region.

Lawrence J. Leigh served as Assistant UnitedStates Attorney for the Northern District of Cal-ifornia in San Francisco and in Salt Lake City.

Carl H. Loewenson Jr. served as an AssistantUnited States Attorney for the Southern Districtof New York from 1985 to 1990.

Aaron R. Marcu served as Associate UnitedStates Attorney for the Southern District of NewYork in 1989, Chief of the Major Crimes Unit ofthat Office from 1988 to 1989, Chief AppellateAttorney from 1986 to 1988, and as an AssistantUnited States Attorney from 1983 to 1989.

Nancy Northup served as a Deputy Chief Appel-late Attorney in the United States Attorney’sOffice for the Southern District of New York from1994 to 1996, and as an Assistant United StatesAttorney in that Office from 1989 to 1994.

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Elliot Peters served as an Assistant UnitedStates Attorney for the Southern District of NewYork from 1987 to 1991.

Mark F. Pomerantz served as Chief of the Crim-inal Division in the United States Attorney’sOffice for the Southern District of New York from1997 to 1999. Prior to that, he served as ChiefAppellate Attorney of that Office from 1981 to1982, and as an Assistant United States Attorneyfrom 1978 to 1982.

Ismail Ramsey served as an Assistant UnitedStates Attorney for the Northern District of Cal-ifornia from 1999 to 2003.

Victor J. Rocco served as Chief of the CriminalDivision in the United States Attorney’s Office forthe Eastern District of New York from 1980 to1983, Chief of that Office’s Narcotics Section from1978 to 1980, and as an Assistant United StatesAttorney from 1976 to 1983.

Benito Romano served as United States Attor-ney for the Southern District of New York in 1989.Prior to that, he was that Office’s Chief AppellateAttorney from 1986 to 1988, Chief of the PublicCorruption Unit and Executive Assistant UnitedStates Attorney from 1984 to 1986, and an Assis-tant United States Attorney from 1980 to 1984.

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David Shapiro served as United States Attorneyfor the Northern District of California from 2001to 2002, and Chief of that Office’s Criminal Divi-sion from 1998 to 2001. From 1992 to 1995, he wasan Assistant United States Attorney for the District of Arizona (Tucson). Prior to that, heserved as an Assistant United States Attorney forthe Eastern District of New York from 1986 to1992, where he was Chief of the Narcotics Divi-sion from 1989 to 1991.

Christopher J. Steskal served as an AssistantUnited States Attorney in the United StatesAttorney’s Office for the Northern District of Cal-ifornia from 2001 to 2007. He was a member ofthat Office’s Securities Fraud Section from 2005 to2007 and of the Office’s Stock Options BackdatingTask Force from 2006 to 2007.

Thomas Sullivan served as United States Attor-ney for the Northern District of Illinois from 1977to 1981.

Jay R. Weill served as Chief of the Tax Divisionin the United States Attorney’s Office in SanFrancisco from 1982 to 2007. From 1978 to 1982,he served as an Assistant United States Attorneyin the Tax Division of that Office. Prior to that, hewas a Trial Attorney with the Tax Division of theUnited States Department of Justice from 1970 to1975.

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Richard Weinberg served as Chief AppellateAttorney in the United States Attorney’s Office forthe Southern District of New York in 1979, and asan Assistant United States Attorney in that Officefrom 1975 to 1979. Prior to that, he served as anAssistant Special Prosecutor in the WatergateSpecial Prosecution Force from 1973 to 1975.

Andrew Weissmann served as Special Counselto the Director of the Federal Bureau of Investi-gations in 2006. He was Director of the UnitedStates Department of Justice’s Enron Task Forcefrom 2004 to 2006 and Deputy Director from 2002to 2004. From 1991 to 2002, he served as an Assis-tant United States Attorney and Chief of theCriminal Division for the Eastern District of NewYork.

Michael Li-Ming Wong served as an AssistantUnited States Attorney and Chief of the WhiteCollar Crimes Section for the Northern District ofCalifornia from 2005 to 2008. Prior to that, heserved as Chief of the Major Crimes Section forthat Office from 2004 to 2005.

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in the united states supreme court...2011/02/01 · deringer us llp 520 madison avenue, 34th floor...

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