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Avvo Rating - 10.0 Paul Kish Top Attorney
Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence

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I am getting ready for some hearings in a federal criminal case I am working in in Gainesville, Georgia.  My preparation caused me to think about and want to put down some thoughts on the strategies that sometimes impact such matters, plus the tactics we use to implement the strategy in a particular case.  That’s a fancy way of saying I try to plan ahead for what I want to accomplish when I file a pretrial motion in a federal criminal case.

First, we often are able to convince a federal Judge that we are entitled to a “pretrial evidentiary hearing” concerning one or more of our Pretrial Motions.  Most defense lawyers relish such a hearing.  To begin with, it is always a benefit to get one or more of the government witnesses under oath before the trial.  At such a hearing, the defense attorney can sometimes try to “lock in” the government witness.  This means the lawyer will get the witness to thoroughly accept and adopt a certain version of the facts.  When the lawyer locks the witness into this specific story, it means that same witness will have a hard time changing or modifying his or her version when the trial comes along.  The attorney will have the transcript from the pretrial hearing.  It is always an enjoyable sight to see an accomplished criminal defense lawyer armed with a pretrial hearing transcript whipping up on a witness who decided to change his or her version.

In addition to locking the witness into his or her story, the pretrial hearing is also valuable because the attorney gets to kind of measure the witness, to see if the person is going to be a difficult at trial.  Cross examining a government person at trial when the lawyer has never previously encountered the witness can sometimes be frightening.  Having a pretrial hearing where the lawyer more or less gets a free whack at the witness can reduce the fright factor at the later trial.

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I’ve handled hundreds of gun cases prosecuted in the federal court system over the past 36 years, here in Atlanta and elsewhere.  Most federal gun prosecutions involve a claim that the Defendant had a firearm (or ammunition) and the accused was a “prohibited person” who cannot have the gun.  Most times it is the usual “FIPF”, meaning a felon-in-possession-of-a-firearm.  However, this same law law applies to firearms possessors who might be an illegal alien,  a fugitive from justice, committed to a mental institution, convicted of a misdemeanor domestic violence crime, or, who is an illegal user of a controlled substance.  Yes, that’s right, smoking a joint in a state where that is illegal might cause the dope-smoker to get prosecuted in federal court if the person’s other hand is wrapped around a firearm.

The main federal gun law, (18 U.S.C. §922(g)) says it is unlawful for anyone who falls into one of the prohibited categories to “…possess in or affecting commerce, any firearm or ammunition.”  Then, a separate sentencing provision (18 U.S.C. §924(a)(2)) says the accused person is liable to a prison sentence if he or she “knowingly” violates §922(g).  Over the years, the Courts ruled that there are three elements of this crime: 1) prohibited status, 2) possession, and 3) that the possession was in or affecting commerce.  Also, over the years, prosecutors convinced the courts that the word “knowingly” only applies to one of these elements, namely, the possession requirement.  As a result, there are lots of prior cases ruling that prosecutors don’t need to prove that the accused person “knew” he or she was a prior felon, illegal immigrant, fugitive, or a dope smoker.   Continue reading

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I just got a call from my client in a recent federal criminal case here in Atlanta.  My client was outside the gates of the federal prison, and gave me one last call before he went inside to begin serving his sentence, or as some inmates call it, “doing time.”  I always feel bad for my clients and their families when anyone is separated from society and their loved ones because they are incarcerated.  In the big picture, this man received a very favorable sentence, considering the facts of his situation on the day when I first met him.  Still, it’s a sad feeling to get such a call.  The call made me want to put down a few thoughts about what I have learned over the years concerning the experience for clients who are  “doing federal time.”

For starters, the federal prison system is operated by a huge organization called, oddly, the “Bureau of Prisons.”  Regular practitioners usually call it “BOP.”  The BOP operates throughout the entire country.  There are various “security levels” amongst the many federal prisons, and these fall into three basic categories, High, Medium and Low.   Continue reading

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In Atlanta I have been asked to give a speech to some lawyers who handle federal criminal cases.  The organizers of the seminar asked that I talk about criminal forfeitures.  A lot of lawyers are not well acquainted with this ancient form of punishment that is becoming more and more common in modern federal criminal law.  Here is the paper that is the basis for my speech.   Criminal Forfeiture

Forfeiture is a very old concept we inherited (like so many legal principles) from ancient English law.  The basic idea is that if property is used in or obtained from criminal conduct, the King could take the property.  They created a legal fiction by which title to the property actually turned over to the King at the point when the crime happened.

Fast forward to our incredibly bad War on Drugs beginning back in the 1970’s. Congress began re-tooling the ancient forfeiture concepts to let federal prosecutors go after dope dealers’ assets.  That is all fine and good, in theory.  However, many readers know that law enforcement and government officials began taking these rules to the extreme, taking property barely associated with a crime or taking money far greater than what was involved in any crime.  The United States Supreme Court recently heard arguments in a case out of Indiana exemplifying this issue.  Justin Timbs carried some drugs in his Range Rover and got caught.  The maximum fine for the crime was $5,000, but the state prosecutors seized and forfeited the $42,000 vehicle.  Oh yeah, Mr. Timbs proved that he bought the Range Rover with the money he got from his Dad’s life insurance policy.  Here is the usual excellent analysis from Scotusblog.com describing the case and the issues involved.   Continue reading

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I am taking a break from going through discovery materials in one of my current federal criminal cases that happens to be here in Atlanta.  I posted the other day about how the actual practice of federal criminal law is far different than the constitutional “rules” created in some cases from the United States Supreme Court.   Here’s a little more on the differences between theory and practice.

First, let’s talk about the timing of when we get the materials that the prosecution is supposed to turn over to defense counsel.  For example, here in the Northern District of Georgia, we have a Local Rule that says discovery “shall” be turned over at the arraignment.  Don’t take my word for it, read Local Criminal Rule 16.1, it flatly says the prosecutors are supposed to make all this stuff available to the defense on Day One of the case.  This is a Rule that makes a lot of sense.  Prosecutors get to decide when they bring a case, and since they are presumed to be ready on Day One, it makes a lot of sense to require that they produce everything to the defense on that date.  Ah, but the reality is far different.  In my current case, they took five weeks to produce materials.  In another case it took 3.5 months to get me the evidence that I knew they had all along.  They rarely give any excuses, they just give it to me late, and ignore my repeated complaints.

Second, we should also talk a bit about the type of materials that are turned over.  I sound like a very old lawyer when I remind people about how discovery in most federal criminal cases consisted of a small folder with 100-200 pages of material when I began practicing law.  Everything is far different in the digital age.  Most of the time, we now need to provide at least a hard drive to hold all the materials that a prosecutor turns over as the discovery in a federal criminal case.  You would think that larger volume of material would help the defense, more is better, right?  Ah, but as I have mentioned before, the government likes to hide the meaningful stuff among the forest of irrelevant data.  More information actually results in more work for the already harried criminal defense lawyer handling a federal case.

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I am currently plowing through the “discovery” in a federal criminal case brought against my client here in Georgia.  Discovery is the word we use to describe the evidence or exhibits that prosecutors are obligated to hand over to the defense lawyer at the beginning of a criminal case.  Going through all these materials in my current federal case reminds me of what I’ve learned over the years, and how the discovery “rules” are often far different than what really happens in criminal cases.

One of the biggest “rules” is based on a Supreme Court decision from 1963, the famous case of Brady v. Maryland,  373 U.S. 83(1963).  This rule applies to both federal criminal cases and those in the state court systems. The prosecutors conveniently “forgot” to hand over to defense counsel a statement made by Brady’s  co-defendant that Brady did not kill the victim, the other guy did it.  The Supreme Court said that suppression by the prosecution of evidence favorable to an accused who has asked for it violates due process if the evidence is “material” to guilt or to punishment, and it does not matter whether the prosecutor acted in good faith or bad faith.  Seems kind of simple, right, if the AUSA or DA has something which shows the the Defendant did not do the crime or should not be punished so severely, the “due process clause” from our wonderful Fifth Amendment  demands that the prosecutor give it up.

Now, here’s the reality, and I’ve always thought it is similar to the old expression about letting the fox guard the henhouse.  Lawyers, by our very natures, are competitive people.  We want to win.  Human nature tells us that if a prosecutor has evidence that undercuts his or her case, that DA or AUSA is less likely to want to turn it over than a more independent person.  But, here’s the crazy part of the “rule” as it has been modified over the years.  The DA or AUSA is the person who decides to turn it over (see what I mean about the fox guarding, etc).  Defense counsel might never even know about the exculpatory stuff if the prosecutor (and his or her agents) successfully bury the materials in files that are never turned over.  Even “good” prosecutors can fail to appreciate how some evidence or information is exculpatory, because they are looking at everything through a different lens than the criminal defense attorney.

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I am about to go to federal court this afternoon here in Atlanta for a criminal case involving sex over the internet (sometimes referred to by the over-encompassing term “child pornography”).  Some lawyers shy away from these cases. I do not.  These cases are often disturbing and emotionally draining, but I always welcome the opportunity to help a person and his family through one of these exceedingly difficult matters.  However, over the years I’ve discovered a number of “secrets” in this type of federal criminal case.

One secret is that a vast number of people who commit sex crimes over the internet lead basically “normal” lives.  Many of my clients are happily married men with grown children.  Their families all report that the client was an exemplary father, never did anything remotely improper with the kids, their friends or with their spouse.  But, these men all seem to have some sort of mid-life crisis where their existence goes off the rails.

A second “secret” in these troubling cases is that many of my clients seems almost compelled to commit their crimes. We’ve all seen the news stories about the guy who comes to a sting operation and says to the undercover camera, “I sure hope you aren’t a cop.”  The clients often recognize in advance that they are engaging in illegal conduct, that they likely will get caught, yet they still keep going toward the “bait.” It is almost as if they are living a double life, with the “normal” rational part of their brain telling them that this is a crime and they could get caught, but the other part is driven forward to engage in the illegal conduct by some very deep part of their consciousness.  After they are arrested, many clients have commented that it seems as if it was another person doing the crime. Continue reading

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Lots of people facing federal criminal charges are surprised by some rules that are based on decisions from the United States Supreme Court.  One of the dumbest rules that confounds most regular folks is what lawyers call the “dual sovereignty exception” to the Constitutional protection against double jeopardy. Even school kids know that part of the Fifth Amendment to our Constitution guarantees that no one shall “be twice put in jeopardy for the same offense.”  However, many years ago the Supreme Court came up with the fiction that a State (like Georgia, or Alabama) is a separate “sovereign” or government from the very different “sovereign” that is the government of the United States itself.  In other words, the feds are different from the states.  The unfortunate corollary to this principle of separate sovereigns is that you can win a criminal case in federal court, and a state can bring the very same charge against you without violating the double jeopardy rule. First time I had this happen, I was livid, for we’d cheated the other side fair and square in the first State-court trial and it seemed so grossly unfair to let the feds have a second whack at my client.

So, the Supreme Court has a new case that was argued today that might be the vehicle through which they change this dumb old dual-sovereignty double jeopardy rule. The case is Terance Gamble v. United States.  The case began in 2015, when Gamble was pulled over by police for having a faulty headlight. The cop smelled weed, searched Gamble’s car, and found two bags and a gun.  The great State of Alabama charged Gamble with violating state drug laws and with being a previously convicted felon in possession of a firearm. Mr. G. got one year in prison.  Then the feds picked up the exact same case, and brought the exact same charge of being a felon in possession of a firearm.  Mr. G. got almost 4 additional years for the federal case, was understandably pissed, and appealed.  In kind of a surprising move, the Supreme Court finally accepted the case for review. Continue reading

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The media and “the Internets” are all agog over yesterday’s filing in the Mueller Investigation by which the Office of Special Counsel said that one of its cooperating witnesses in that federal criminal case, former General and National Security Advisor Michael Flynn, has provided “substantial assistance”.  I’ve been handling federal criminal cases for over 35 years, and have been on the “giving” and “receiving”end of substantial assistance.  Despite the furor in the media, I wanted to talk a little about how these things work in the real world.

For starters, the idea that those who cooperate with prosecutors get a better “deal” is not exactly news. This practice of trading info for jail time is probably as old as crimes and criminal justice systems.  However, the absolutely horrible 1984 Comprehensive Crime Control Act, inter alia, wrote this practice into federal criminal law.  For the first time, this law created specific statutes, Guidelines and Rules of Procedure that encapsulated the practice of rewarding someone for “snitching.” Continue reading

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OK, here’s my second post on the annual amendments to the Federal Sentencing Guidelines, rules that govern imposition of a criminal sentence in all federal courts from Alanta to Alaska, from Maine to Moultrie (way down in South GA, look it up if you’re not familiar with it).  There are two good defense-friendly amendments I will mention, but first, a little more history (poor readers, you know my inclinations).

Over the past 30 years, there have been a number of trends we see in these yearly Guideline amendments.  For the first 15-20 years, virtually all such amendments resulted in harsher sentences.  Then, when Congress and the public began finally listening to those of us hollering about how the United States had turned into the country that incarcerates the largest percentage of its population, the rules slowly began to soften.  It also helped when fiscal hawks joined the “defense” side of the argument, pointing to the millions of dollars wasted when locking up low-level offenders.  The past 10-15 years have included a number of amendments that actually reduce or make sentences less harsh than earlier versions of the Guidelines.  The 2018 amendments are more down the middle, a few that jack up sentences (for newer offenses like dealing fentanyl or designer drugs)  and others help to soften the blow for many of my clients.  Today, I want to discuss two defense-friendly changes effective 11-1-18.

First, there is a change concerning the “acceptance of responsibility” rules, found at USSG §3E1.1.  Remember that a defendant can earn up to 3 points “off” the scoring rules when he or she “accepts responsibility”, which generally means pleading guilty and doing so early enough so that the prosecutor did not have to actually do some work preparing for trial.  However, experienced readers know about Presentence Reports, defense objections, and the all-important federal sentencing hearing where arguments on each side are presented to the Judge, whose rulings on contested issues can have a huge impact on the sentencing “range” and therefore the ultimate sentence.  One of the biggest issues is often the scope of “relevant conduct”, meaning how much stuff done by other people will the Defendant in court be held accountable for?  Over the years, some prosecutors and truly mean judges took the position that a Defendant who fights against relevant conduct can lose the 3-point reduction because that Defendant has not shown he or she is truly accepting responsibility.

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