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A potent SCOTUS tag-team on the rule of lenity

By Douglas A. Berman

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.continue to full post

Full post as published by Sentencing Law and Policy on May 13, 2008 (boomark / email).