No.

20-444

In the Supreme Court of the United States

__________
United States of America,
Petitioner,
v.

Michael Andrew Gary,

Respondent.
__________

On Writ Of Certiorari
To The United States Court of Appeals
For The Fourth Circuit
__________
BRIEF OF THE CATO INSTITUTE AS
AMICUS CURIAE SUPPORTING RESPONDENT
__________

Clark M. Neily III

Jay R. Schweikert
Counsel of Record
James A. Craven
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, DC 20001
(202) 216-1461
[email protected]

March 25, 2021

 i

TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE ............................. 1
SUMMARY OF THE ARGUMENT ............................ 2
ARGUMENT ................................................................ 5
I. Plea bargaining has supplanted jury trials as
the primary mechanism for securing
convictions in our criminal justice system. ...... 5
II. The Court should not allow the Government to
further erode our standards for voluntary
pleas. ................................................................ 11
CONCLUSION .......................................................... 15
 ii

TABLE OF AUTHORITIES
Cases
Bordenkircher v. Hayes, 434 U.S. 357 (1978) ............. 9
Bradshaw v. Stumpf, 545 U.S. 175 (2005) ................ 14
Bram v. United States, 168 U.S. 532 (1897) ......... 7, 12
Gannett Co. v. DePasquale, 443 U. S. 368 (1979) ..... 11
Griffin v. State, 77 S.E. 1080 (Ga. 1913)..................... 8
Henderson v. Morgan, 426 U.S. 637 (1976) ...... 2, 3, 14
Lafler v. Cooper, 566 U.S. 156 (2012) ......................... 9
McCoy v. Louisiana, 138 S. Ct. 1500 (2018) ............. 11
Rehaif v. United States, 139 S. Ct. 2191 (2019).......... 2
Smith v. O’Grady, 312 U.S. 329 (1941) ................... 2, 3
States v. Marquez, 909 F.2d 738 (2d Cir. 1990) ........ 12
United States v. Gaudin, 515 U.S. 506 (1995) .......... 10
United States v. Jackson, 390 U.S. 570 (1968) ........... 8
United States v. Pollard, 959 F.2d 1011 (D.C. Cir.
1992) ....................................................................... 12
Constitutional Provisions
U.S. CONST. amend. VI ............................................ 2, 5
U.S. CONST. art. III § 2 ................................................ 6
Other Authorities
2017 Sourcebook of Federal Sentencing Statistics
(U.S. Sentencing Comm’n 2017) .............................. 5
2018 Sourcebook of Federal Sentencing Statistics
(U.S. Sentencing Comm’n 2018) .............................. 5
 iii

2019 Sourcebook of Federal Sentencing Statistics

(U.S. Sentencing Comm’n 2019) .............................. 5
2020 Sourcebook of Federal Sentencing Statistics
(U.S. Sentencing Comm’n 2020) .............................. 5
Albert W. Alschuler and Albert G. Deiss, A Brief
History of the Criminal Jury in the United States,
61 U. CHI. L. REV. 876 (1994) ................................... 6
Albert W. Alschuler, Plea Bargaining and Its History,
79 COLUM. L. REV. 1 (1979) .................................. 7, 8
Aliza Plener Cover, Supermajoritarian Criminal Jus-
tice, 87 GEO. WASH. L. REV. 87 (2019)) .................... 6
DNA Exonerations in the United States, Innocence
Project, https://www.innocenceproject.org/dna-ex-
onerations-in-the-united-states/ ............................ 13
J. John L. Kane, Plea Bargaining and the Innocent,
The Marshall Project, https://www.themarshallpro-
ject.org/2014/12/26/plea-bargaining-and-the-inno-
cent ......................................................................... 13
Letter from Thomas Jefferson to Thomas Paine (July
11, 1789) ................................................................... 6
Nancy Gertner, Bruce Brower, and Paul
Shectman, Why the Innocent Plead Guilty: An
Exchange, THE N.Y. REV. OF BOOKS (2015) ........... 11
NAT’L ASS’N OF CRIM. DEF. LAW., THE TRIAL PENALTY:
THE SIXTH AMENDMENT RIGHT TO TRIAL ON THE
VERGE OF EXTINCTION AND HOW TO SAVE IT (2018)
.......................................................................... 10, 12
Peter Wagner and Wendy Sawyer. States of
Incarceration: The Global Context, Prison Policy
Institute (2018) ...................................................... 10
 iv

The Federalist No. 83 (Alexander Hamilton) ............. 6

 1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy
research foundation founded in 1977 and dedicated to
advancing the principles of individual liberty, free
markets, and limited government. Cato’s Project on
Criminal Justice focuses on the scope of substantive
criminal liability, the proper role of police in their com-
munities, the protection of constitutional safeguards
for criminal suspects and defendants, citizen partici-
pation in the criminal justice system, and accountabil-
ity for law enforcement.
Cato’s concern in this case is with the erosion of the
institution of the jury trial and the coercive nature of
the plea-bargaining regime that has almost entirely
replaced jury trials as the default mechanism for crim-
inal adjudication today.

1 Rule 37 statement: All parties were timely notified and

consented to the filing of this brief. No part of this brief was
authored by any party’s counsel, and no person or entity
other than amicus funded its preparation or submission.
 2

SUMMARY OF THE ARGUMENT

“In all criminal prosecutions, the accused shall en-
joy the right . . . to be informed of the nature and cause
of the accusation” against him. U.S. CONST. amend. VI.
This Court has called that right “the first and most
universally recognized requirement of due process.”
Smith v. O’Grady, 312 U.S. 329, 334 (1941). And it has
long held that a failure to inform defendants of the es-
sential elements of the charge against them renders a
guilty plea constitutionally invalid, no matter the
prosecution’s confidence in its case. Henderson v. Mor-
gan, 426 U.S. 637, 644-45 (1976).
Michael Gary was not informed of the essential el-
ements of the charges against him when he opted to
plead guilty to two counts of possessing a firearm as a
felon. In Rehaif v. United States, 139 S. Ct. 2191
(2019)—decided while Gary’s case was on direct ap-
peal—the Court held that in a federal prosecution for
illegal possession of a firearm, the state must prove
that the defendant “kn[ew] of his status as a person
barred from possessing a firearm.” Id. at 2195. But
Gary had not received notice of this element when he
decided to plead guilty. Therefore, “his plea was invol-
untary and the judgment of conviction was entered
without due process of law.” Henderson, 426 U.S. at
647.
Nevertheless, the Government argues that Gary’s
conviction should be upheld because, in essence, the
Government is confident that even if Gary had been
adequately informed of the charges against him, he
would have pleaded guilty anyway. Br. for United
States at 11-12. But whether or not this hypothetical
assertion is correct as a factual matter, it is exactly the
 3

sort of rationale that this Court has previously re-

jected. Henderson, 426 U.S. at 644-45 (“We assume . . .
that the prosecutor had overwhelming evidence of
guilt available. . . . Nevertheless, such a plea cannot
support a judgment of guilt unless it was voluntary in
a constitutional sense. And clearly the plea could not
be voluntary . . . unless the defendant received ‘real
notice of the true nature of the charge against him
. . . .’”) (quoting Smith, 312 U.S. at 334).
Gary’s brief explains in detail why the Fourth Cir-
cuit decision to vacate his guilty plea was correct un-
der existing precedent—specifically, that the plain-er-
ror doctrine does not apply to this case at all because
objecting at the time of the plea would have been futile,
Br. for Respondent at 8-21; that failure to adequately
inform a defendant as to the charges against him
meets all the criteria for structural error, id. at 22-39;
and that even if the plain-error doctrine applied, Gary
would still be entitled to relief, id. at 40-52. Amicus
will not reprise those arguments here.
But amicus writes separately to explain how the
Government’s position in this case is especially con-
cerning, because it is indicative of a long and steady
erosion of the jury trial itself. Had Gary’s conviction
been handed down by a jury, the Government’s failure
to prove the mens rea element would clearly require
vacatur of the judgment.
Yet the Government maintains that the failure to
inform Gary of the essential elements of the charge he
faced was “harmless error,” relying mostly on concerns
sounding in plain efficiency. Contending that the fail-
ure to inform defendants of the knowledge-of-status
requirement “typically makes no difference at all to a
 4

defendant’s decision to plead guilty,” it emphasizes the

“substantial costs” that would be imposed if this Court
refused to vacate involuntary guilty pleas. Br. for
United States at 14. In other words, the Government’s
implicit premise is that defendants are presumptively
going to plead guilty, and that failure to inform defend-
ants about what they are actually pleading to is a
“harmless error” that should not slow down this pro-
cess.
The stark disparity between the Government’s po-
sition and foundational constitutional principles of due
process and fair notice is illustrative of the extent to
which the jury trial itself has been all but replaced by
plea bargaining as the default mechanism for adjudi-
cating criminal charges in America today. Whereas the
Founders clearly intended to put citizen participation
at the heart of our criminal justice system, the extraor-
dinary power that prosecutors can wield to induce
guilty pleas effectively sidesteps what was intended to
be the ultimate check on state power—the unanimous
assent of a jury to any criminal conviction. And as the
Government’s position in this case plainly illustrates,
there is ample reason to doubt whether the bulk of
those pleas can truly be called “voluntary.”
There is no simple antidote to the erosion of the
jury trial, but this Court should avoid exacerbating the
problem by accepting the Government’s radical posi-
tion in this case. Specifically, the Court should ensure
that, even where defendants do not exercise their
Sixth Amendment right to a public trial before an im-
partial jury itself, they still are guaranteed the right
“to be informed of the nature and cause of the accusa-
tion” against them. U.S. CONST. amend. VI. Without
 5

such protection, our system of pleas, where voluntari-

ness is already dubious, will be transformed into a re-
gime where voluntariness is avowedly unnecessary.
ARGUMENT
I. Plea bargaining has supplanted jury trials
as the primary mechanism for securing con-
victions in our criminal justice system.
As with more than 97% of federal criminal convic-
tions, the judicial process leading to Michael Gary’s
conviction consisted of a long waiver of rights and a
guilty plea.2 To today’s practitioners of law, this is a
garden-variety criminal case in all respects but one:
the failure to inform the defendant of the nature and
cause of the accusation against him. But to the men
who immortalized that requirement in our Constitu-
tion, this criminal process would be wholly unrecog-
nizable.
There is perhaps nothing that our nation’s founders
agreed on more emphatically than the importance of
the jury trial. “Friends and adversaries of the plan of
the convention, if they agree in nothing else, concur at
least in the value they set upon the trial by jury,” wrote

2 The year Michael Gary was arrested, 97.2% of defendants

in federal court plead guilty. 2017 Sourcebook of Federal
Sentencing Statistics, Figure C (U.S. Sentencing Comm’n
2017). That number has grown each successive year to
97.8% in 2020. 2018 Sourcebook of Federal Sentencing Sta-
tistics, 60 (U.S. Sentencing Comm’n 2018); 2019 Source-
book of Federal Sentencing Statistics, 60 (U.S. Sentencing
Comm’n 2019); 2020 Sourcebook of Federal Sentencing Sta-
tistics, 60 (U.S. Sentencing Comm’n 2020).
 6

Alexander Hamilton.3 The conviction of the founders

is apparent in the language of the Constitution itself:
“The Trial of all Crimes, except in Cases of Impeach-
ment; shall be by Jury.” U.S. CONST. art. III, § 2.
Moreover, the jury trial was clearly understood to
be more than just a means to prevent unlawful convic-
tions: it was designed as a check against government
power. Thomas Jefferson called juries the “the only an-
chor ever yet imagined by man, by which a government
can be held to the principles of its constitution.”4 In
every case, the prosecutor had to prove to the satisfac-
tion of 12 citizens not just the elements of the defend-
ant’s guilt, but his own credibility as an advocate for
justice. As much as the “[j]ury trial was a valued right
of persons accused of crime . . . it was also an allocation
of political power to the citizenry.”5
For over a century, courts essentially treated jury
trials as the Constitution commands. While a defend-
ant could plead guilty in open court, he had little in-
centive to do so—and as such, guilty pleas were both
rare and actively discouraged by judges. “Common-law

3 The Federalist No. 83 (Alexander Hamilton).

4Letter from Thomas Jefferson to Thomas Paine (July 11,
1789).
5 Albert W. Alschuler and Albert G. Deiss, A Brief History
of the Criminal Jury in the United States, 61 U. CHI. L. REV.
867, 876 (1994). See also Aliza Plener Cover, Supermajori-
tarian Criminal Justice, 87 GEO. WASH. L. REV. 875, 884
(2019) (“The jury trial is both an individual right of the ac-
cused and a structural institution of popular self-govern-
ance, codified in Article III and described by some as a
‘fourth branch’ of government.”).
 7

courts apparently took a negative view, not of plea bar-

gaining specifically, but of guilty pleas of any descrip-
tion.”6 Just two cases prior to the Civil War generated
discussion of guilty pleas, and in both cases the trial
judge argued strenuously that the defendant should
stand trial.7 Though today there are fewer and fewer
cases where it seems rational for people to exercise
their right to trial, the conventional wisdom at the
time our nation was founded was that the smart de-
fendant almost always availed himself of the right to
be tried by jury.
The jury’s place at the heart of our justice system
thus went largely unquestioned for the first century of
our nation’s history. But after the Civil War, prosecu-
torial calls for judges to sanction “plea deals” became
more common. These were, at first, roundly rejected;
even the slightest influence from police or prosecutors
to persuade a defendant to plead guilty could render a
plea void. “[A] confession, in order to be admissible,
must be free and voluntary: that is, must not be ex-
tracted by any . . . direct or implied promises, however
slight.” Bram v. United States, 168 U.S. 532, 542-43
(1897). State courts were equally strict. As the Georgia
Supreme Court explained:
The law . . . does not encourage confessions of
guilt, either in or out of court. Affirmative ac-
tion on the part of the prisoner is required be-
fore he will be held to have waived the right of
trial, created for his benefit. . . . The affirmative

6Albert W. Alschuler, Plea Bargaining and Its History, 79

COLUM. L. REV. 1, 12 (1979).
7 Id. at 9-10.
 8

plea of guilty is received because the prisoner is

willing, voluntarily, without inducement of any
sort, to confess his guilt and expiate his offense.
Griffin v. State, 77 S.E. 1080, 1084 (Ga. 1913).
Yet, even as some judges continued to express dis-
approval, pleas became increasingly common. “The
gap between these judicial denunciations of plea bar-
gaining and the practices of many urban courts at the
turn of the century and thereafter was apparently ex-
treme. In these courts, striking political corruption ap-
parently contributed to a flourishing practice of plea
bargaining.”8 In the federal courts, pleas made up
about 50% of convictions in 1908. By 1916, that num-
ber had jumped to 72%. Despite the well-worn line that
plea bargains were a necessary evil to respond to an
increase in crime, the overall number of federal crimi-
nal cases had actually decreased that year.9
The primacy of plea bargaining was solidified in the
late twentieth century by a handful of landmark Su-
preme Court decisions. In Brady v. United States, 397
U.S. 742 (1970), the Court considered a defendant who
pled guilty to kidnapping charges to avoid the death
penalty, and where the judge was, apparently, “unwill-
ing to try the case without a jury.” Id. at 743. Notwith-
standing that the Court had already held in United
States v. Jackson, 390 U.S. 570 (1968), that imposition
of the death penalty under these conditions would
have been unconstitutional, the Court upheld Brady’s
plea as voluntary. Brady, 397 U.S. at 756-77.

8 Alschuler, supra, at 24.

9 Id. at 27.
 9

Whereas Brady concerned the voluntariness of

pleas made in the face of extraordinary pressure, the
Court soon faced the other side of the coin—the legiti-
macy of extraordinary criminal charges introduced for
the express purpose of pressuring a defendant to plead
guilty. In Bordenkircher v. Hayes, 434 U.S. 357 (1978),
a defendant was charged with uttering a forged instru-
ment for writing a bad check in the amount of $88.30.
Id. at 358. The prosecutor wanted a guilty plea in ex-
change for recommending a five-year sentence and
threatened that if the defendant did not plead guilty,
he would seek a new indictment under the Kentucky
Habitual Criminal Act, which carried a mandatory life
sentence. Id. at 358-59. Hayes refused the deal, the
prosecutor carried out the threat, and Hayes was con-
victed at trial and given a life sentence—and the Court
upheld the conviction. Id. at 365.
The combination of Brady and Bordenkircher es-
sentially meant that prosecutors had free rein to use
the threat of extraordinary penalties to secure guilty
pleas, no matter the disparity between the sentence of-
fered in a plea and the sentence threatened at trial.
And few defendants these days expose themselves to
such risk. Pleas have become so common that this
Court has declared that “criminal justice today is for
the most part a system of pleas, not a system of trials.”
Lafler v. Cooper, 566 U.S. 156, 170 (2012).
Effectively, the state has created an extra-constitu-
tional system for adjudicating criminal charges that,
for prosecutors, is convenient, efficient, and certain.
This helps the criminal justice system churn some 11
 10

million people through its doors each year.10 Although

our crime rate is comparable to other NATO founding
countries, we send our citizens to prison far more fre-
quently. The U.S. incarceration rate is five times
higher than the United Kingdom—and the U.K. is the
second most punitive country on that list.11
It is only within the context of this assembly-line
system of mass adjudication that the Government can
possibly contend that the element of intent was ines-
sential to Michael Gary’s plea. Had Gary’s case gone
before a jury, the Government’s failure to prove the
knowledge-of-status element would render any verdict
of guilty void. “The Constitution gives a criminal de-
fendant the right to have a jury determine, beyond a
reasonable doubt, his guilt of every element of the
crime with which he is charged.” United States v.
Gaudin, 515 U.S. 506, 522-523 (1995). But it is also not
surprising that, outside the framework of justice pre-
scribed by our nation’s founders, the Government has
found grounds to argue that a defendant need not al-
ways be informed of the nature of the charge against
him.

10NAT’L ASS’N OF CRIM. DEF. LAW., THE TRIAL PENALTY:

THE SIXTH AMENDMENT RIGHT TO TRIAL ON THE VERGE OF
EXTINCTION AND HOW TO SAVE IT 9 (2018).
11 Peter Wagner and Wendy Sawyer. States of Incarcera-
tion: The Global Context, Prison Policy Institute (2018),
https://www.prisonpolicy.org/global/2018.html.
 11

II. The Court should not allow the Government

to further erode our standards for voluntary
pleas.
“[T]he minimum requirement” of a defendant’s plea
is that it must “be the voluntary expression of his own
choice.” Brady, 397 U.S. at 748. As this Court later
elaborated, a constitutionally valid plea is one made
“voluntarily, knowingly, and intelligently.” Bradshaw
v. Stumpf, 545 U.S. 175, 183 (2005). These require-
ments reflect the fundamental understanding that
“the accused, and not a lawyer, is master of his own
defense.” McCoy v. Louisiana, 138 S. Ct. 1500, 1508
(2018) (quoting Gannett Co. v. DePasquale, 443 U. S.
368, 382, n.10 (1979)).
But given the extraordinary pressure that prosecu-
tors can bring to bear on individual defendants, it is
doubtful whether the bulk of guilty pleas could truly
be called “voluntary.” Over 97% of defendants con-
victed in federal court profess their desire to “volun-
tarily” exchange the possibility of acquittal and free-
dom for the certainty of conviction and punishment. As
one retired federal judge has observed:
[I]nquiring of a defendant as to the voluntari-
ness of his guilty plea felt like a Kabuki ritual.
“Has anyone coerced you to plead guilty,” I
would ask, and I felt like adding, “like thumb-
screws or waterboarding? Anything less than
that—a threatened tripling of your sentence
 12

should you go to trial, for example—doesn’t

count.”12
These remarks are not hyperbole: a survey of the
United States Sentencing Commission’s data for 2015
reveals that, “in most primary offense categories, the
average post-trial sentence was more than triple the
average post-plea sentence.”13
Moreover, routine sentence disparities make up
only a fraction of the prosecutor’s power to secure
guilty pleas. “Almost anything lawfully within the
power of a prosecutor acting in good faith can be of-
fered in exchange for a guilty plea.” United States v.
Pollard, 959 F.2d 1011, 1021 (D.C. Cir. 1992). Circuit
courts have even sanctioned plea deals premised on
threats to indict—or promises not to indict—a defend-
ant’s family members. See id.; States v. Marquez, 909
F.2d 738 (2d Cir. 1990) (citing cases from the First,
Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and
Eleventh Circuits).
The manner in which these more recent court deci-
sions address the subject of voluntariness reveals just
how far our constitutional norms have shifted under
the “system of pleas.” For example, the Second Circuit
asserted in Marquez that ‘“[v]oluntary’ for purposes of
entering a lawful plea to a criminal charge has never
meant the absence of benefits influencing the defend-
ant to plead.” 909 F.2d at 742. But contrary to this pro-
nouncement, “the absence of benefit” was an explicit

12Nancy Gertner, Bruce Brower and Paul Shectman, Why

the Innocent Plead Guilty: An Exchange, THE N.Y. REV. OF
BOOKS (2015).
13 THE TRIAL PENALTY, supra, at 15.
 13

requirement of this Court’s conception of voluntary

pleas at the turn of the twentieth century. See Bram v.
United States, 168 U.S. 532, 542-43 (1897) (“[A] con-
fession, in order to be admissible, must be free and vol-
untary: that is, must not be extracted by any . . . direct
or implied promises, however slight.”).
The notion that prosecutorial leverage does not dis-
rupt the voluntary nature of a plea is belied by the
stark reality that factually innocent defendants are
regularly coerced into pleading guilty. Of the 375 men
and women exonerated by the Innocence Project’s use
of DNA testing, nearly 12% had pled guilty to crimes
they did not commit.14 It is necessarily challenging to
estimate the number of convicted felons who pled
guilty to crimes of which they were factually innocent.
But criminologists have estimated that between 2-8%
of prisoners sit behind bars because they were coerced
into giving false pleas.15 As one federal judge re-
marked, “[w]ith over 2.2 million people in American
prisons that is a haunting amount of injustice.”16
To be sure, these sorts of widespread, systemic con-
cerns with the voluntariness of modern guilty pleas
are not directly at issue in this case. Coercive plea bar-
gaining is a complex, structural problem with our

14 DNA Exonerations in the United States, Innocence Pro-

ject, https://www.innocenceproject.org/dna-exonerations-
in-the-united-states/ (last visited March 19, 2021).
15J. John L. Kane, Plea Bargaining and the Innocent, The
Marshall Project, https://www.themarshallproject.org/
2014/12/26/plea-bargaining-and-the-innocent (last ac-
cessed March 19, 2021).
16 Id.
 14

criminal justice system, with no panacea.17 But these

deep background concerns with the implicit lack of vol-
untariness in plea deals generally make it all the more
urgent that the Court recognize the explicit lack of vol-
untariness in this particular case.
As this Court has stressed again and again, a guilty
plea is inherently involuntary where a defendant is
not adequately informed of the charges against him.
Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (“Where
a defendant pleads guilty to a crime without having
been informed of the crime’s elements, [the] standard
is not met and the plea is invalid.”); Henderson v. Mor-
gan, 426 U.S. 637, 647 (1976) (plea to second-degree
murder is not voluntary where defendant is not in-
formed that intent is an element of the offense).
There is no dispute in this case that Gary was not
adequately informed of the elements of the charges
against him. Yet the Government still argues that
Gary’s conviction should be upheld because the “Re-
spondent could not have realistically hoped to per-
suade a jury” that he was innocent on the knowledge-
of-status element. Br. for United States at 24. Whether
or not this assertion is true, it is entirely irrelevant.
One could as well argue that denial of the right to a
jury trial entirely would be “harmless” in cases where,
in the Government’s view, a defendant could not have
“realistically hoped to persuade a jury” as to their in-
nocence. The Sixth Amendment does not permit the

17See, e.g., Clark Neily, A Distant Mirror: American-Style

Plea Bargaining Through the Eyes of a Foreign Tribunal,
27 GEO. MASON L. REV. 719 (2020).
 15

state to justify criminal convictions based on the pros-

ecutor’s level of confidence in a case.
In sum, the jury trial itself—intended by the found-
ers to be an indispensable component of criminal adju-
dication—is on the verge of extinction, and there is am-
ple reason to doubt the genuine voluntariness of the
plea-bargaining regime that has replaced it. Against
that background, this Court should be especially reluc-
tant to countenance the Government’s extraordinary
position in this case.

CONCLUSION
For the foregoing reasons, and those advanced by
the Respondent, the judgment of the court of appeals
should be affirmed.
Respectfully submitted,
Clark M. Neily III
Jay R. Schweikert
Counsel of Record
James A. Craven
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, DC 20001
(202) 216-1461
[email protected]

March 25, 2021