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Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence

Happy Monday from Atlanta, Georgia where I am working on some of my federal criminal cases.  I just finished communicating with one prosecutor, and the process made me think of some of the tips I’ve learned over the years on how federal criminal defense attorneys can improve their skills to better negotiate with federal prosecutors.

As is well known, the vast majority of cases or investigations end up without a trial.  That means much of the federal criminal defense lawyer’s time is devoted to talking with an Assistant United States Attorney (“AUSA”) in an effort to see if there is a way to resolve the client’s case more favorably.  However, the fact that most cases end up in a plea does not mean that the lawyer should always look to negotiate.  Instead, we need to simultaneously prepare to both fight and talk peace, a difficult balancing act.

This leads to negotiating Tip #1.  Sometimes the best negotiating tactic is to fight, fight, and fight some more.  Over the years I’ve noticed that even the best federal prosecutors get weary when the defense just keeps on coming at them with one issue or another. Every once in a while, this approach causes the AUSA to offer a better “deal” simply to stop the work of responding to the defense motions.  Now, this only works when the defense lawyer’s moves are well-founded, and not just some off-the-wall pleading or motion.  So, tip #1, work hard, sometimes it pays off for the client down the road.

Readers know that we handle federal criminal investigations and prosecutions from our office here in beautiful Atlanta, Georgia and all over the remainder of this state and throughout the country.  We currently are in federal cases in Vermont, Pennsylvania, Florida, North Carolina, Texas and Arkansas.  No matter where we go to help our clients, it is always worth trying to get the “final word.”

I have two matters on my desk this morning that exemplify this need to get the final word.  One is a post-conviction matter, the other concerns an upcoming sentencing hearing.

In the post-conviction case, we argue that my client’s previous attorney performed so poorly that the conviction should be over-turned because of the Sixth Amendment violation caused by “ineffective e assistance of counsel.”  Both sides filed briefs after the court hearing, and because we went first I am thinking about filing a “reply brief.”  I like these reply  briefs, for they give me the chance to plow through the prosecutor’s arguments and they try to dissect and destroy them, one at a time.

I posted the other day about a federal fraud case here in the gorgeous Spring weather in Atlanta, Georgia.  In that post I mentioned some of the ways to avoid a prison sentence for people facing federal fraud charges arising out of “white collar” or what we sometimes call “economic crimes.”  I got a different client out of a federal prison in a fraud case recently, but this was done using a completely different strategy and method.  This second matter involved one of those situations in which the client’s cooperation against others was the most valuable asset available to the federal criminal defense lawyer.

My client in this second matter is an extremely bright guy who made some mistakes and got involved in a fraud scheme. I could tell shortly after he and others were indicted together that the prosecutor suspected but did not yet realize that my client was actually the brains behind the operation.  We decide to take the chance of going through the “proffer” exercise.  I have written before on this, but it is worth describing once again.

When a federal prosecutor believes that a suspect or Defendant has valuable information that might assist in the prosecution of other people, the prosecutor will sometimes ask the defense lawyer to bring the client in for a “proffer.”  The Government asks for these to see if the accused person has important and useful information, and also to assess whether my client might make a good witness if he or she decides to cooperate against others.

As many know, I am a criminal defense lawyer in Atlanta Georgia who handles federal criminal cases here and all over the United States (I’m currently working on federal cases in Vermont, Pennsylvania, Maryland, North Carolina, Florida, the Middle and Southern Districts of Georgia, and out in Texas and Arkansas).  Many of my clients are accused of what are sometimes called “white collar” or “economic” crimes.  No matter what name we give such cases, they are almost always charged under one of the federal laws that outlaw fraudulent conduct.

Many people contact us because they are fearful that they might go to a federal prison for one of these fraud-type cases.  A case I recently finished included some of the arguments that help such clients avoid a jail sentence in a federal fraud prosecution.

My client was married to one of the other people charged in a large federal fraud prosecution.  Her spouse was a former law enforcement official who convinced his wife and others to get involved in a certain business proposition.  As you likely guessed already, that business proposition was based on false and untrue (meaning fraudulent) statements in loan applications sent to various banks.

I have been a lawyer handling federal criminal defense for almost 40 years, mostly here in Atlanta, but in other parts of the United States when my cases take me there.  I keep tabs on trends in federal law enforcement, because it’s part of may job to do so.  As part of my regular reading, I came across this article about the likely increase in federal fraud investigations and prosecutions.

Readers (you three know who you are) recognize this is a somewhat regular topic I write about, the changing trends in federal criminal enforcement.  For many years, the Feds could not take their eyes off drug crimes.  Then came “illegal” aliens.  Then it was “terrorism.”   Now, after we opened the Federal Treasury for what seems to be much-needed pandemic-assistance, the federal law enforcement agencies are going after individuals who possibly committed fraud to get some of this money.

Astute readers of the previous paragraph will note that I never mentioned the words “corporation,” “companies,” or “businesses.”  That is because the history of the past four decades of federal law enforcement clearly demonstrates that the Feds prefer targeting individuals, and let the bigger players get off with little pain.  Sure, we occasionally see a big federal criminal case against a company, but this is the rare exception.  Instead, we seem to prefer going after the poorest and weakest, make lots of cases and act as if we are doing something about a societal problem.  The author  Matt Taibbi has written extensively about this trend, I recommend his work.

For you readers you here in Atlanta, those in Macon, Gainesville, Savannah, Athens, and Valdosta in Georgia, and others around the country who know I handle federal criminal cases just about everywhere, this is a post about the sometimes dreaded and often misunderstood “sentencing hearing” in federal criminal cases.  I am working on a few this afternoon, and wanted to discuss four pitfalls, and some tips, to make the process go more smoothly for the client and the attorney.

A Judge’s clerk will set the date for the sentencing hearing when the client pleads guilty, or in the unfortunate situation where the clerk reads the dreaded one-word jury verdict (“guilty” instead of the happier sounds of the two-word “not guilty”).  This is generally 2-3 months down the road.  Pitfall Number One: remind the client that he or she must still be on their best behavior, no matter how down or depressed is the client after pleading or being found guilty.  The key is to arrive at sentencing with a life that is worth living, so the attorney has a story to tell and why the sentence should be the shortest interruption possible for that client’s life.

Next comes the interview with the U.S. Probation Officer (the “PO”) who has the task of researching and then writing the Presentence Investigation Report (the “PSR” in our lingo).  Pitfall Number Two: please, please, please,  I never again want to hear about an attorney who lets his or her client attend this interview alone.  Tip: experienced federal criminal defense attorneys have been through dozens (or if the lawyer has done this as long as me, several hundred) of these interviews.  Experienced federal criminal defense attorneys know what to expect, and we spend a significant amount of time prepping the client to avoid mistakes when communicating with the PO.  The biggest problem the client can make is to lie when speaking with the PO, so prep to avoid any of that.

So, there I was reading my morning paper in this 13th month of the pandemic, and I see a story about a local criminal case involving bribery.  The crime involved elected officials taking money to improve the chances that certain property sellers will have their land selected for government land purchases.  The story mentions a specific property and project, and I thought, “that sounds familiar.”  I was right, it’s one of the same properties that one of my clients owned 10 years ago when that client got caught up in a federal bribery investigation/prosecution. I was able to almost immediately track down my old client and assure him (and me) that he has nothing to fear from this recent case for he had no role in the latest deals. This little episode teaches a valuable lesson about the importance of the attorney-client relationship AFTER the case is over, and guidance for clients looking to hire an attorney for present matters.

I generally like people, and almost always like my clients, even though they come to work with me during some of the most difficult parts of their lives.  I also enjoy knowing that I had a part in helping them put their lives back together after the end of the investigation or prosecution in which I was their attorney.  Staying in touch is important, for both sides of the equation. The lawyer needs to maintain a good and ongoing relationship with his or her former client so that they can quickly connect up with one another if something like this comes up.  The client needs to know he or she can easily get their lawyer for the same reason.

When people interview me to decide whether to hire me as their lawyer, I always suggest that they keep in mind that their lawyer needs to be someone that they trust.  This should be a deep down trust, the kind that allows the client to rely on it when making some of the most important decisions of his or her life.  Only if the client is pretty sure that the attorney is someone they can rely on now, and in the future, will that kind of trust be established.  They need to know that their lawyer is someone who will reach out to them, even if that happens to be 10 years down the road.

Well readers, 2020 is coming to a close for this lawyer who specializes in defending against federal criminal investigations and prosecutions in Atlanta, down in Savannah, over in Augusta, the remainder of Georgia, and anywhere else in the country the my clients need for me to go.   As we ponder this difficult year, I am thankful and grateful for the cases we resolved this past year that led to positive results for some of our clients.

In January our work filing and pressing a Motion to Suppress led to the complete dismissal of all charges against our client.

Relying on the tips for using pretrial evidentiary hearings as a tool, we got a client’s case resolved when the Judge imposed the lowest possible sentence.

Readers know I am a federal criminal defense attorney in Atlanta who handles such matters throughout Georgia and the remainder of the country.  I recently took on the appeal in a case here in the 11th Circuit (which covers the federal courts in Florida, Georgia and Alabama).  The case was an appeal by a doctor who had been criminally prosecuted and then found guilty of what is called an “Anti-Kickback Act” violation, referred as an “AKA” case for shorthand.  The story of what happened is a lesson on how hard it is to win, even if we convince the courts that we are right on the legal issues.

When I took on the case, it seemed clear that the main issue for appeal was the use of what is called the “one purpose rule” in AKA cases.  We faced an almost unbroken line of 35 years worth of other federal courts around the country that had all affirmed the use of this “one purpose” test.  Basically, the rule says that a person, like my doctor, is guilty if he or she orders a medical procedure, equipment or prescription if even”one purpose” of the order is to get paid by someone else.  I noted that all the other courts had affirmed the one purpose rule, but that the 11th Circuit had not yet issued a binding and published opinion on the subject.

Like I do in all cases, I sat down one day to read the relevant materials, including the AKA statute in full.  I rubbed my eyes, walked around in circles a few times, then re-read the law.  Absolutely nothing in the language authorized by Congress said anything at all about “one purpose” or “any purpose” in an AKA case.  I then re-read the 35 years’ worth of earlier decisions, and realized they all relied on a single 1985 ruling that simply misapplied the words written by Congress. I felt a bit like the little boy who says “the emperor has no clothes” when I wrote my briefs and pointed out that everyone had been wrong up to now.

I am in the final prep stages for an “oral argument” tomorrow morning in the esteemed (or as some wags call it, the “steamed”) United States Court of Appeals for the Eleventh Circuit, the home of which is a few blocks from my office here in lovely Atlanta, GA.  I think I have done over 70 such oral arguments in various federal courts of appeals around the country, but this will be the first “virtual” session, with the Judges and lawyers all participating via the Zoom app.  While the technology will have to replace the in-person proceeding, I wanted to briefly discuss five recurring features of an oral argument.

First, many people are not aware that it is only a rare federal appeal that is selected for oral argument.  The federal appellate courts are overwhelmed, and generally only select cases to be orally argued if the issues are unique, there was a lengthy trial, or the matter has some other unusual feature.  Once a case is selected for oral argument, it is placed on a calendar with other cases that will also benefit from oral argument.  Each day there are around 4 or 5 cases set for argument.  Then, a “Panel” of 3 judges is assigned who will hear the arguments and render decisions.  The clerk sets the dates and order of arguments and away we go!

Second, attorneys need to fully recognize that their time is very limited in an oral argument.  As a general rule, each side has only 15 minutes for their argument.  I am almost always the Appellant (because, after all, that is what happens in criminal cases, we lose and then appeal by claiming something went wrong in the lower court).  As the Appellant, we get to open and then have a brief rebuttal.  That means I generally have 10 or 11 minutes for my opening argument, and 4 or 5 for rebuttal.  Experienced oral advocates learn to think, and speak, quickly.

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