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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,

Plaintiff,

Case No. 14-mc-51593

Criminal No. 2:13-20772
HONORABLE GERSHWIN A. DRAIN

vs.
RASMIEH YOUSEF ODEH,
Defendant.
_______________________________/
RESPONSE AND BRIEF OF THE UNITED STATES IN OPPOSITION
TO MOTION OF NATIONAL LAWYERS GUILD FOR
ADMISSION AS AMICUS CURIAE
INTRODUCTION
Following a jury trial, Defendant Rasmea Odeh was found guilty of the
single charge in the indictment, unlawful procurement of citizenship, in violation
of 18 U.S.C. 1425(a). Following the return of the verdict, the Court conducted a
bond review, and pursuant to 18 U.S.C. 3143(a) and Fed. R. Crim. P. 46(c),
ordered defendant detained pending sentencing. Defendant has filed a motion for
rehearing of that order, to which the government responded. The issue thus has
been fully briefed by the parties and is awaiting decision.
The National Lawyers Guild has filed a motion seeking to be admitted to
amicus curiae status and to file a brief in support of Defendants motion for

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reconsideration. For a number of reasons set forth more fully below, the motion
should be denied.
The proposed brief of the National Lawyers Guild does not meet the criteria
for amicus curiae: it provides no information as to legal issues; factually it adds
nothing new, merely restating arguments already made by the defendant; and it is
not in any sense neutral but is in essence a second-go-round by the adverse party.
In addition, there is no relevant history of any trial-level court admitting a thirdparty as an amicus in a criminal case, may not even be legally permissible, and
expressly has been rejected in the context presented here, a motion for bond.
Finally, purely as a policy matter, it makes no sense to permit third-parties to
become embroiled in criminal cases at the trial court level in general and in this
case in particular, because it promises, as a precedent, to invite others to do so,
thereby making such proceedings less fair and less efficient. Accordingly, the
motion should be denied.
ARGUMENT
A.

THERE IS NO BASIS FOR THE PROPOSED AMICUS

BRIEF BECAUSE IT SEEKS TO PROVIDE NO NEUTRAL
OR USEFUL INFORMATION TO THE COURT
Historically, amicus curiae was defined as one who interposes in a

judicial proceeding to assist the court by giving information, or otherwise, or who

conducts an investigation or other proceeding on request or appointment therefore
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by the court. United States v. State of Michigan, 940 F.2d 143, 164 (6th Cir. 1991)
(citations omitted). Its purpose was to provide impartial information on matters
of law about which there was doubt, especially in matters of public interest. Id.
(emphasis in original, citations omitted). The orthodox view of amicus curiae
was, and is, that of an impartial friend of the court not an adversary party in
interest in the litigation. Id. at 164-165 (emphasis in original, citation omitted).
The position of classical amicus in litigation was not to provide a highly
partisan account of the facts, but rather to aid the court in resolving doubtful issues
of law. Id. at 165 (citations omitted); see, e.g., http://www.americanbar.org/
content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_07_08_08_11
96_NeutralAmCuAlschuler.authcheckdam.pdf (Brief of Professor Albert Alschuler
as Amicus Curiae in Support of Neither Party; Skilling v. United States, 561 U.S.
358, 411, 130 S. Ct. 2896, 2933, 177 L. Ed. 2d 619 (2010) (citing favorably to that
amicus brief).
Because judges have heavy caseloads . . . requiring us to read thousands of
pages of briefs annually, National Organization for Women, Inc. v. Scheidler, 223
F.3d 615, 616 (7th Cir. 2000), amicus curiae briefs can be a real burden on the
court system. In addition, the filing of an amicus brief imposes a burden of study
and the preparation of a possible response on the parties. Id. [T]he policy of this
court is, therefore, not to grant rote permission to file an amicus curiae brief; [and]
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never to grant permission to file an amicus curiae brief that essentially merely
duplicates the brief of one of the parties[.]

Id. at 617 (citations omitted).

Participation as an amicus is a privilege within the sound discretion of the

courts. United States v. State of Michigan, 940 F.2d 143, 165 (6th Cir. 1991)
(citations omitted).
Contrary to those principles, the National Lawyers Guild proffers no reason
why its participation in the present case would be at all helpful to the Court. This
omission is particularly stark in light of the fact that the National Lawyers Guild
notes that Factors that warrant the granting of a motion to appear as an amicus
include findings that the proffered information of amicus is timely, useful, or
otherwise necessary to the administration of justice. Docket Entry 1, at page 5,
Page ID 5. Although such a citation cries out for a statement, or at least a hint, of
just what information the National Lawyers Guild could provide which is timely,
useful, or otherwise necessary to the administration of justice, no such statement
is forthcoming. The utter failure of the National Lawyers Guild to justify for itself
the role of an amicus demonstrates that its motion lacks merit.
The National Lawyers Guild does not seek to act as a neutral friend of the
court, but in fact is a partisan which merely parrots statements and arguments
already made by the defendant. See Scheidler, 223 F.3d at 616 (The policy of this
court is to never to grant permission to file an amicus curiae brief that essentially
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merely duplicates the brief of one of the parties.). Indeed, the National Lawyers
Guild does not even attempt to dress up its repetition of Defendant Odehs alreadymade arguments as anything new or neutral. See Docket Entry 1 at 3, Page ID 9
(Ms. Odeh has shown . . .; Additionally, Ms. Odeh has shown . . .; id. at 4,
Page ID 10 (Ms. Odehs attorneys have documented . . .). And very tellingly,
despite the fact that the government filed a twenty page response to Defendant
Odehs motion for reconsideration of the bond issue, which included 72 pages of
exhibits and which was filed prior to the National Lawyers Guilds submission of
its motion and proposed brief, the National Lawyers Guilds proffered amicus brief
says not one word addressing any of the governments arguments or evidence in
that filing. In other words, this supposedly neutral friend of the Court seeks only
to repeat previously-made arguments supporting one party while not even
addressing the other sides position. In so doing, the National Lawyers Guild not
only fails to meet any of the standards normally required for an amicus, but it also
ignores published precedent rejecting participation by an amicus under
circumstances nearly identical to this case.
In United States v. Gotti, 755 F.Supp. 1157 (E.D.N.Y. 1991), the New York
Civil Liberties Union sought a ruling permitting it to file an accompanying
memorandum of law as amicus curiae in connection with the defendants motion
seeking pretrial release or, in the alternative, an order modifying the conditions of
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their pretrial confinement.

Id. at 1157-1158.

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Judge Glasser of the Eastern

District of New York denied the motion:

Rather than seeking to come as a friend of the court
and provide the court with an objective, dispassionate,
neutral discussion of the issues, it is apparent that the
NYCLU has come as an advocate for one side, having
only the facts of one side at the time. In doing so, it does
the court, itself and fundamental notions of fairness a
disservice. Chief Judge Aldrich cautioned in Strasser v.
Doorley, [432 F.2d 567 (1st Cir. 1970)] supra, that it
may be thought particularly questionable for the court
to accept an amicus when it appears that the parties are
well represented and that their counsel do not need
supplemental assistance and where the joint consent of
the parties to the submission by the amicus is lacking.
432 F.2d at 569. That observation is precisely applicable
here.
As in Gotti, the National Lawyers Guilds proposed participation is
unhelpful, to say the least. The parties have filed briefs, and there is no joint
consent to participation by an outside group. The National Lawyers Guild has no
other interest which may justify amicus status, such as a direct interest in another
case that the present case may, by operation of stare decisis or res judicata,
materially affect, nor has it demonstrated a unique perspective, or information, that
can assist the court beyond what the parties are able to do. See Scheidler, 223 F.3d
at 617.
Indeed, the only new issue of law which the National Lawyers Guild seeks
to interject is this Courts decision in United States v. Smiley, 2014 WL 823401
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(E.D. Mi. 2014).

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Smiley held that a defendants request for release pending

sentencing so he can undergo a dental procedure that had been scheduled prior to
his arrest, id. at 3, does not constitute an exceptional circumstance justifying
release, and which thus undermines an argument Defendant Odeh has made for her
release.1
As noted, no rationale for participation by the National Lawyers Guild has
been shown or exists. Rather, as the Seventh Circuit has noted, and as the National
Lawyers Guild has acknowledged, Amicus curiae briefs are often attempts to
inject interest-group politics into the federal [court] process by flaunting the

The only reason the issue could be interjected at all at this point is because
Defendant Odeh, through her counsel, violated the rule against raising an issue for
the first time in a reply brief. See Docket Entry 144 in 2:13-cr-20772, at 11, Page
ID 1483 (arguing that defendant should be released because She has temporary
teeth which are losing their usefulness and causing pain.); id. Exhibit 4, Page ID
1502 (letter from dentist dated November 20, 2014, regarding defendants teeth).
Raising issues for the first time in a reply brief is prohibited because it does not
give the adverse party, here the government, a chance to respond. See Scottsdale
Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (emphasis in original)
(Raising the issue for the first time in a reply brief does not suffice; reply briefs
reply to arguments made in the response brief -- they do not provide the moving
party with a new opportunity to present yet another issue for the court's
consideration. Further, the non-moving party ordinarily has no right to respond to
the reply brief, at least not until oral argument. As a matter of litigation fairness
and procedure, then, we must treat such issues as waived.) Moreover, it is unclear
why a dental procedure requiring 30-45 minutes, Docket Entry 144 in 2:13-cr20772, at Exhibit 4, Page ID 1502, justifies defendants release until sentencing,
Defendant Odehs position, when the procedure easily could be accomplished in
minutes at the facility where she is being held.
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interest of a trade association or other interest group in the outcome of the case.
Scheidler, 223 F.3d at 617.
Thus, following up on the defense tactic of using organized protests during
the trial, the National Lawyers Guild and other groups have coordinated organized
letter and petition-writing campaigns to the Court in an attempt to influence its
decision making through public pressure rather than through legal argument. See,
e.g., Docket Entry 133 in 2:13-cr-20772, Exhibit 3 at pages 1-24, Page ID 13141337 (signed petitions to the Court); Docket Entry 1-2 in 2:14-mc-51593, page 1-3,
Page ID 15-17 (letter to the Court appended to proposed National Lawyers Guild
Amicus

Brief,

signed

by

representatives

of

various

http://uspcn.org/2014/11/28/update-on-the-legal-fight-to-freerasmeanow

groups);
(urging

people to write letters to the Court). The proposed brief does more of the same,
flaunting the interest of the National Lawyers Guild in the case, Scheidler, 223
F.3d at 617, by seeking to once again turn the case into something it is not but
which defendant and her supporters, including the National Lawyers Guild, have
always ardently sought to make it: a platform for advocating the Palestinian cause.
See Docket Entry 1, Exhibit 1 at 5, Page ID 11 (The organizational signatories to
the letter appended to this motion as Exhibit A dedicate significant time and
resources to educating the people of the United States about the brutality of the
Israeli occupation. . .); see also http://www.nlg.org/news/releases/nlg-files-friend~8~

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court-support-motion-requesting-rasmea-odeh%E2%80%99s-bond-pendingsentencing (National Lawyers Guild discussion of proposed amicus brief which

provides no legal rationale for its filing). There is simply no basis for finding the
proposed amicus brief meets the standards for assisting the Court.
B.

IT IS NOT AT ALL CLEAR, AS A MATTER OF LAW,

THAT AN AMICUS BRIEF IS PERMITTED IN A TRIAL
LEVEL COURT IN A CRIMINAL CASE
It is a frequently stated proposition that Classical participation as an amicus

to brief and argue as a friend of the court was, and continues to be, a privilege
within the sound discretion of the courts, see Northern Sec. Co. v. United States,
191 U.S. 555, 24 S.Ct. 119, 48 L.Ed. 299 (1903). United States v. State of
Michigan, 940 F.2d 143, 165 (6th Cir. 1991). However, it is not at all clear that
such a statement authorizes such a filing in a criminal case in district court. In
1903, when the Northern Security Company case was decided, there were no rules
setting standards for amicus filings. Since that time, the Rules Committees have
promulgated rules for both the Supreme Court and the Courts of Appeals which set
standards similar to those set forth in Argument A, supra., regarding the filing of
an amicus brief. See Supreme Court Rule 37.1 (an amicus brief which brings to
the attention of the court matter already brought to its attention by the parties
burdens the Court, and its filing is not favored); Fed. R.App. P. 29(b)(2) (the
motion must state the reason why an amicus brief is desirable and why the matters
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asserted are relevant to the disposition of the case). Neither the Federal Rules of
Civil Procedure nor the Federal Rules of Criminal Procedure, the principal sources
of all trial court procedures, set forth a standard regarding amicus briefs.
While the authorizing bodies have crafted rules authorizing and regulating
the filing of amicus briefs at the federal appellate level, it is a fact that they have
not done so for courts at the trial level.

Under normal rules of statutory

construction, that particular omission, against the backdrop of such a procedure

being provided for in other courts, is proof that as a matter of law such a procedure
is not available at the trial court level. See, e.g., Traverse Bay Area Intermediate
School District v. Michigan Dept of Education, 615 F.3d 622, 630 (6th Cir. 2010)
(citations omitted) (recognizing the long-established canon of statutory
construction, expressio unius est exclusio alterius, the mention of one thing
implies the exclusion of another.).
The National Lawyers Guild, after researching that precise question, could
conclude only that this omission likely signifies only the absence of any perceived
need for procedural specifics of this type of motion. Docket Entry 1 at 4, Page ID
4. That is clearly not the case, as there are established procedural specifics for this
type of motion, but only for appellate courts. A doctrine of statutory construction,
such as at issue here, requires much more to overcome it than a statement as to
likely significance based solely on counsels guesswork and self-interest rather
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than legislative history or countervailing authority. And given that amici are
supposed to provide assistance to courts as to legal matters (see United States v.
State of Michigan, 940 F.2d at 146 (emphasis added) (purpose of amicus is to
provide impartial information on matters of law about which there was doubt.)),
it certainly is at least plausible that the omission of a rule providing for amici at the
trial level was intended precisely to allow such filings to take place only at the
appellate level, where issues of law are conclusively resolved.
Moreover, the actual practice belies any claim that such motions are
common or even occasionally granted in criminal cases at the trial level. The
National Lawyers Guild could cite only a single case, Yonkers Contracting Co.,
Inc., 697 F.Supp 779, 781 (S.D.N.Y. 1988), in which a court permitted an amicus
in a criminal case.

However, Yonkers Contracting actually undermines the

position that the National Lawyers Guild should be permitted as an amicus here.
In that case, a corporate defendant charged with criminal antitrust violations
sought to plead nolo contendere. What is now Rule 11(a)(3) of the Federal Rules
of Criminal Procedure permits a defendant to plead nolo only after due
consideration of the interest of the public in the effective administration of justice.
See 697 F.Supp. at 781. In assessing the interest of the public, courts were
permitted to consider the interests of civil litigants, id. at 781, and it was the civil
litigant in Yonkers Contracting who sought and was permitted to become an
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amicus. Id. at 781. Thus, under the unique circumstances of that case, where the
interest of the public was expressly at issue, that factor, rather than some
purported inherent authority to permit an amicus filing, is what controlled.
Moreover, the civil plaintiff amicus in that case was the County of Westchester
and the local governmental entities who purchased asphalt from or contracted for
paving with the criminal defendants. Id. at 780. In the Supreme Court, state and
federal governmental entities are excepted from normal rules regarding amicus
briefs, and may file them without a motion. See Supreme Court Rule 37.6. Thus,
for multiple reasons, Yonkers Contracting provides no support for the proposed
filing by the National Lawyers Guild, and in fact demonstrates that except under
extremely unusual circumstances not present here, such a motion would not even
be considered.
The prevailing practice shows that not a single non-governmental third-party
has ever become an amicus. The only even arguably relevant instance of such an
attempt in this District appears to be United States v. Alkhabaz, 2:95-cr-80106,
which charged transmission of a threat in interstate commerce, in violation of 18
U.S.C. 875(c). In that case, the American Civil Liberties Union sought to file an
amicus brief in this Court. See Docket Entries 41 and 42. It does not appear that
the Court ever ruled on the motion, because it is never again mentioned on the
docket. (At the appellate level, two amici, the American Civil Liberties Union and
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the National Coalition Against Sexual Assault sought and were granted permission
to file briefs. See Orders of July 2, 1996, in Sixth Circuit Case No. 95-1797. That
of course proves nothing about the authority of district courts to permit amici in
criminal cases at the trial level.) And it certainly appears that Congress, in creating
the Bail Reform Act, the statute at issue here, intended that no one other than the
parties would be heard as to the detention issue. See 18 U.S.C. 3142(f)(2)
(apportioning roles between that person who is charged with an offense and the
attorney for the Government).

C.

EVEN IF AMICI ARE PERMITTED AT THE TRIAL LEVEL

IN A CRIMINAL CASE, AS A PURELY POLICY MATTER
THE COURT OUGHT TO DENY THE MOTION BECAUSE IT
IS NOT AT ALL HELPFUL TO THE CRIMINAL PROCESS, AND
SETS A HARMFUL PRECEDENT
Even if one assumes that, as a legal matter, a district court may properly

permit the filing of an amicus brief in a criminal case, it is a bad policy idea and
certainly ought to be rejected here. Simply put, if the National Lawyers Guilds
position is correct that it has a sufficient interest to justify an amicus filing here,
then there is no logical stopping point as to when courts should and should not
permit such filings. If the National Lawyers Guild is permitted to file an amicus
brief on the merits of some aspect of a criminal case, simply because it supports
Palestinian statehood or the defendants political views, then it invites similar
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responses by other individuals and groups, who have no more legally cognizable
interest in the outcome of the case than does the National Lawyers Guild, but who
have a different agenda.
Thus, for instance, this case has generated significant interest not only in the
Arab-American community, but among other organizations as well, including
those interested in counter-terrorism issues. See, e.g., http://www.investigative
project.org/4654/spinning-a-terrorist-into-a-victim-epilogue; see also http://legal
insurrection.com/2014/11/rasmea-odeh-rightly-convicted-of-israeli-supermarketbombing-and-u-s-immigration-fraud. Such groups might, for instance, wish to file
an amicus brief arguing that in light of her past history of involvement in bombings
which targeted and killed innocent civilians, defendant Odeh is not only a risk of
non-appearance, as argued by the government (points which have now been
reinforced by the Probation Departments draft Presentence Investigation Report,
which for the first time brought to the Governments attention the fact that
defendant had failed to report as directed to the Pretrial Services Agency in
Chicago in January, February, and March of 2014, as well as the fact that
Defendant Odeh has had disciplinary issues in the St. Clair County jail where she
is being held), but also may wish to argue that she is a danger to the community.
See 18 U.S.C. 3142(e)(1).

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If the National Lawyers Guild has an interest sufficient to permit it the

privilege of filing with this Court a brief as to its position, there is no reason why
others could not do so, both in this case and in others. Regularizing such a practice
would complicate and burden trial-level criminal proceedings. Such a precedent
should be rejected by this Court. And in any event, nothing precludes the National
Lawyers Guild, or anyone else, from submitting a letter to the Court at sentencing
advocating for a particular result. See 18 U.S.C. 3661 (No limitation shall be
placed on the information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may receive and
consider for the purposes of imposing an appropriate sentence.)
CONCLUSION
For the reasons stated, the Court should deny the motion of the National
Lawyers Guild to file a brief as amicus curiae.
Respectfully submitted,
BARBARA L. MCQUADE
United States Attorney
/s/Jonathan Tukel
JONATHAN TUKEL (P41642)
Assistant United States Attorney
211 West Fort Street, Suite 2001
Detroit, MI 48226
(313) 226-9749
jonathan.tukel@usdoj.gov

/s/Mark J. Jebson
MARK J. JEBSON (P53457)
Special Assistant U.S. Attorney
211 W. Fort, Suite 2001
Detroit, MI 48226
(313) 226-9698
mark.jebson@dhs.gov

Dated: December 5, 2014

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CERTIFICATE OF SERVICE
I hereby certify that on December 5, 2014, I electronically filed the
foregoing with the Clerk of the Court using the ECF system, which will send
notification of such filing to all ECF filers.

s/Jonathan Tukel
JONATHAN TUKEL (P41642)
Assistant United States Attorney
211 W. Fort Street, Suite 2001
Detroit, MI 48226
Phone: (313) 226-9749
jonathan.tukel@usdoj.gov

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