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May 13, 2008

A potent SCOTUS tag-team on the rule of lenity

Roadwarriors This post at SCOTUSblog reporting on the filing of two new amicus briefs in support of cert in a rule of lenity case had me recalling some famed pro-wrestling tag teams.  Here are the details: "[T]wo cert.-stage amicus briefs were filed [in support of the defendants in Kay v. US, No. 07-1281]: this one on behalf of the U.S. Chamber of Commerce, and this one on behalf of the National Association of Criminal Defense Lawyers." 

As this prior SCOTUSblog post details, Kay raises these two notable issues in the context of a federal criminal prosecution under the Foreign Corrupt Practices Act:

First, is the omission of an element of an offense structural error or instead subject to harmless error review?...

Second, what degree of statutory ambiguity triggers the rule of lenity, and when will legislative history suffice to avoid application of lenity?

With the gruesome twosome of the Chamber of Commerce and the NACDL fighting for the defendants here, the feds may be in some serious trouble if the Justices decide that this case should be resolved through a SCOTUS cage match.

May 13, 2008 at 01:29 PM | Permalink


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Question 1 in the certiorari petition actually reads,

"1. When an indictment omits an element of the offense, must it be dismissed, or may such an error instead be excused as harmless? (The Court granted certiorari to decide this question, but did not resolve it, last Term in United States v. Resendiz-Ponce, 127 S. Ct. 782, 785-86 (2007).)"

By omitting the indictment aspect, the SCOTUSblog post makes it sound like the petitioners are asking for an overruling of Neder and Recuenco, but they are not.

Posted by: Kent Scheidegger | May 13, 2008 4:12:45 PM

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