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

I wasn’t always a criminal defense lawyer in Atlanta who handles a lot of federal cases.  Oh no, at one time I was a smooth-faced high schooler who played lots of sports and also was in plays from time to time in the little Midwestern town where I grew up.  One play, My Fair Lady, reminded me of the importance of words.  Eliza Doolittle, a poor girl who the main character was trying to pass off as a Princess by changing her dialect, had a memorable line of complaint for her teachers:  “Words words word all day long, first from him then from you, is that all you blighters can do?”  A recent case from the venerable U.S. Court of Appeals for the Eleventh Circuit reminded me that when it comes to a Plea Agreement in a federal criminal case, Eliza’s complaint was something that lawyers need to remember, words can be crucial.  United States v. Elbeblawy.

First, a couple of legal principles.  As a general rule, whether in the criminal or civil context, discussions between two parties that are done with an eye toward resolving a particular dispute are usually not admissible in later court proceedings if the negotiations break down.  The basic idea is that the law wants to encourage the two sides to try and resolve the matter through discussions as opposed to fighting, and the parties are less likely to be forthcoming in such discussions if they know that their words can come back to bite them.  Next, a part of Rule 11 from the Federal Rules of Criminal Procedure and a different place within the Federal Rules of Evidence (Rule 410 to be precise) essentially encapsulate this idea of keeping plea negotiation discussions out-of-bounds from later trials.  Finally, just like any other protection, these rules can be “waived”, but only as long as the person or party understands the protection and makes a voluntary decision to give it up.

Now for Mr. Elbeblawy.  He got caught in a large-scale healthcare fraud investigation, decided to cooperate, and had his lawyer negotiate a plea deal.  As part of the deal the Defendant told investigators everything that he and others had done illegally, and also signed a separate document outlining and agreeing to his own criminal conduct.  He signed the Plea Agreement, but got cold feet when he got to court and backed out of the deal.  Now, federal prosecutors are a pretty savvy bunch, they’ve seen this before.  Therefore, just about every plea agreement in a federal criminal case comes with a waiver of the Rule11/Rule 410 protections.  You guessed it, they brought new charges against Mr. Elbeblawy, introduced everything he had told investigators and the plea documents, and to no one’s surprise, he was found guilty.

Like me here in Atlanta, criminal defense lawyers around the country are probably reading about the federal criminal trial involving Paul Manafort (guy with a great first name), the former Campaign Chairman in the last Presidential election.  And like me, lawyers and laypersons alike are wondering about the impact of the evidence and witnesses on the jury.  This made me reflect on what I have learned after trying around 100 criminal jury trials in both federal and state courts during my career.

To begin with, there is a huge difference depending on whether the criminal case is in state court or in the federal arena.  State cases are generally creatures of the county in which the crime happened.  For the most part (unless a statewide agency such as the Medicaid Fraud Control Unit, or “MFCU”, is involved) the case is brought by the county’s District Attorney.  As a general rule, trials have to be in the county where the crime happened.  The jurors only come from that single county, whether it is a huge place like Fulton or Dekalb, or a small rural county far from a large city.  This means that in the smaller counties the jurors often know of or have heard something about either the crime, the Defendant, or some of the attorneys. Federal criminal cases, on the other hand, are handled by “Districts.”  Georgia has three separate federal judicial Districts, Northern, Middle and Southern.  Atlanta is in the Northern District, and there are then four “Divisions”: Gainesville, Rome, Atlanta and Newnan.  Jurors come from the counties in each Division, but that can mean jurors in DeKalb will sit with jurors from Rockdale all on an Atlanta Division case in the Northern District.  The bottom line is that federal jurors came from a wider array of locations and backgrounds.

Another distinction is the method used for selecting jurors.  We lawyers call this “voir dire“, which are supposedly old English words but others claim the expression comes from Latin. Essentially, voir dire is a process by which both sides get to question prospective jurors to see if one side wants to exclude that person from sitting on the jury.  Depending on the jurisdiction, each side gets a certain number of “strikes”, meaning that they can knock that number of people out of consideration for being on the jury.  The questioning involved in voir dire in a state criminal trial is much different than what happens in federal court.  State judges tend to let the lawyers have free reign, asking a wide variety of questions of each individual juror who is up for consideration.  Federal court is much more restricted, and sometimes the Judges won’t let the lawyer ask any questions at all, the Judge will handle all the juror questioning.  As a result, federal jury selection often happens in a matter of hours, while the state counterpart often takes days.

I have tried around 100 federal criminal cases here in Atlanta over my 35 year career. A recent report from the National Association of Criminal Defense Lawyers (“NACDL”) demonstrates that trials in federal criminal cases are almost “extinct.”  The report shows that a mere 3% of Defendants take their cases to trial, mostly because of the mismatch in bargaining position between the defense and the prosecution.   Some people want to react to this by saying” Why have trials for guilty people anyway?” For those who might have such a reaction, I can only hope that it is never you or your family who finds themselves facing a federal investigation or prosecution.  Furthermore, if we think it through a little bit, we will see that letting the prosecution have excess power, resulting in virtually no trials, is almost like the situation that led to the enactment of the Endangered Species Act. 

For starters, everybody is entitled to a trial on criminal charges, it says so right in the Sixth Amendment.  However, the almost unmatched power of federal prosecutors brought about by various statutes enacted by Congress, along with the draconian Sentencing Guidelines, means that even innocent people are now pleading guilty.  The report sets out what I already know, those who plead guilty get far less punishment.  The report notes two seemingly equal Defendants, one who “flipped” and cooperated against the other who went to trial.  You guessed it, the flipper gets a couple of years, the Defendant who had the gall to assert his Constitutional right to trial got 45 years! My own recent experience is the same, my client got ten years while the far more culpable co-Defendant who pled guilty and testified got a mere 24 months!

The NACDL report concluded that guilty pleas have replaced trials because anyone who exercises his or her right to take the case to a jury is facing “exponentially higher sentences.” Defense lawyers and prosecutors now spend most of their time “negotiating”.  Judges rarely preside over trials, and therefore have no or very little experience when such a case comes before them.  However, when just about every case ends after a long negotiation instead of a public trial, we all lose.  The public no longer sees the facts of a case.  Prosecutors no longer have to prove their allegations beyond a reasonable doubt.  And, most importantly, some clearly innocent people will “take a plea” instead of taking the chance that their life will be ruined by an excessively long sentence.  Like the Endangered Species Act, we need a new law to prevent the extinction of the right to trial.

All lawyers need to keep up with their reading, and criminal defense attorneys are no different.  I’ve been plowing through recent federal criminal cases, and came across three (not from the Atlanta area) that deal with the financial aspects of a federal criminal sentence.  Each sort of reminds me of the Ojay’s song, “For the Love of Money”  with that great refrain, “Money Money Money Money, MONEY!”

OK, class, let’s remember the basics.  A federal criminal sentencing hearing involves more than just the amount of time a person might have to go to prison.  A federal judge can also impose three distinct types of financial orders that require payment.  First there is a “fine”, which usually can be up to $250,000 per count, this money is considered “punishment” and the payment goes directly to Uncle Sam.  Next, there is “restitution”.  This is supposed to pay back victims any loss they suffered from the crime, and while the Defendant pays this money to the Clerk of the Court, the money goes back to the victim eventually.  Then, we have the often misunderstood “forfeiture.”  Under the current version of this old doctrine, property used in or obtained as a result of a crime belongs to the government from the moment the crime took place.  If that property has been used up (or in the case of real money, has been spent) then the government can try to get an equal amount out of the Defendant using the “substitute assets” rule.  The forfeiture payments also go right to the U.S.  And, here’s the kicker: if a Defendant is able to pay, he or she can be forced to pay all three amounts for the same crime, meaning triple whammy for any person of means who is convicted of a federal offense.

Now to our recent decisions discussing some of these financial aspects of federal criminal sentencing.     In United States v. Green 16-3044-2018-07-31, the Defendant’s Mom got VA benefits, and when her mother passed away, Ms. Green kept spending the monthly check without telling the VA. This went on for many years, and it took many years more before the government got around to charging her with a crime in New York.  Ms. Green was required to pay restitution, but the question was how far back did her restitution obligation go, especially since many of the monthly payments were outside the 5-year statute of limitations?  The prosecutors argued that embezzlement of this sort is a “continuing crime”, meaning that they wanted her to pay restitution back to the point when the Defendant’s mother died. Nope, said the Second Circuit, only those within the limitations period qualify as restitution.

Casual readers (those in Bermuda shorts included) know that I am a criminal defense lawyer in Atlanta who specializes in federal cases.  Some readers even know about “discovery” in a federal criminal case.  These readers know about Rule 16 from the Federal Rules of Criminal Procedure and the constitutional principles underlying the long-standing “Brady rule“.  I am currently trying to plow through some discovery materials in some relatively new federal criminal cases, and for those readers who have had to do this on the defense side of a case, you know how maddening this can be. It’s enough to make you want to pull your hair out. man-screaming-and-pulling-his-hair-stock-images_csp8441795

First, the maddening aspects of the rules themselves.  By the language of the rules, the only “evidence” that the prosecutor has to hand over to the defense prior to trial in a federal case is limited to documents and materials that the government intends to use at trial, the results of any expert testing, and any statement made by the defendant to a known law enforcement official. The Brady rule also says they have to turn over any information tending to show that the Defendant is not guilty, but they actually are not required to turn it over prior to trial, and only have to reveal this exculpatory information to the defense so that the attorney at least has some time to make use of the evidence.  Note, this limited list of information does NOT include the names or statements by witnesses.  The utterly absurd Jencks Act (a vestige of the 1950’s!) says that the prosecutor only needs to provide a witness’s prior statement to the defense AFTER the witness has finished his government testimony in a trial.  Talk about trial by ambush.

The rules and constitutional principles that impact discovery, along with the data-driven explosion of information, have led most federal prosecutors to basically ignore the old days and provide lots of information up front to the defense lawyer.  Nowadays they even give us witness names and their statements, figuring we are going to find out anyway so why play “hide the ball.”   From the old days, when we basically learned very little, we have come to the modern era, where prosecutors dump so much data on the defense that a single attorney is disadvantaged, unless he or she is very technologically capable and assisted by highly skilled support staff (like the wonderful folks with whom I work).

My criminal defense office is in Atlanta, but as a lawyer my clients are from various parts around the country.  Readers of this blog know that the majority of my clients face federal criminal charges.  One long-standing client recently died, it was very sad, he was in his late 50’s and is survived by his wife of three decades and seriously disabled child.  I was very troubled by this man’s case, for I felt he did not commit a crime.  However, the prosecutors threatened to go after his wife, leading this client to decide to plead guilty to protect his spouse.  The Judge imposed a 6-month sentence and ordered my client to pay a substantial “forfeiture”.  The client passed away recently, leading me to ponder the criminal defense lawyer’s duties when his or her client dies and some parts of a case are still unresolved.

For many years, I have known about a somewhat quirky rule which says that death can end a criminal case. The theory goes like this: if a criminal Defendant is convicted, that conviction is not “final” until his or her appeal rights are over.  If the Defendant dies while the case is on appeal, the courts are supposed to dismiss all the charges “ab initio,” which is fancy Latin for “from the beginning.”  The theory is that the case might have been reversed by the higher courts, and it is unfair to saddle the Defendant’s family with a conviction or monetary payment without the chance to take full advantage of appellate rights.  I’ve had this happen a few times, before, and have filed one of the strangest documents any lawyer gets to file: “Defendant’s Suggestion of Death.”  I simply do not understand why we always call it merely a “suggestion” of death, for the condition seems final enough to flat-out say  “my client died, dismiss his case.”  Anyway, I’ve had a couple of cases dismissed because of my client’s untimely death.

However, my client’s death recently got me thinking so I did some additional research.  Many of my readers know that at the sentencing hearing there are several different types of “punishment” that can be imposed in a federal criminal case.  Jail time is the most obvious, but a Judge can also impose supervised release (which comes after any imprisonment and can result in more time in custody if the person violates the conditions of release), a fine (money paid to the U.S. Treasury), restitution (which is paid back to “victims”, but the Defendant makes the payment to the Clerk’s office), and forfeiture (which is a legal theory saying that the property or proceeds from a crime belong to the government from the moment the crime happens and the Defendant needs to give them up).  I started pondering the impact of a Defendant’s death on all of  aspects of a sentence, including restitution, fines and forfeiture. Amazingly, the answers turn on when the Defendant dies, and where.

I just finished the Atlanta federal criminal securities fraud case that I have been working on for the past three and a half years.  After a two-day sentencing hearing, my client was given a sentence of 10 years in custody, along with being required to pay back around $1.4 million dollars to some investors.

The case generated some publicity.  Some readers know how I like to pontificate about how the press more and more simply repeat any “press release” issued by some prosecutor’s office.  For example, compare the prosecution’s press release about this case with the story in the local paper, the Atlanta Journal Constitution (usually called “the AJC” by folks hereabouts).  Note that the AJC simply rephrases and rehashes the press release with absolutely no mention of anything from the defense side.  Next, compare the AJC’s story with two other stories in publications devoted to the legal industry, Law.com and Law360.  Each of these latter stories give a far more nuanced and complete story from the sentencing hearing, and include portions of the defense arguments or statements by me.

I’ve already written about how cases with some publicity add an additional level of stress for the criminal defense lawyer.  The other day I posted about the difficulty of doing a federal criminal sentencing hearing when the Probation Officer seems to recommend every potentially applicable sentencing enhancement to the federal Sentencing Guidelines, and how hard it is to get a “good” sentence when the lawyer spends so much energy showing the Judge the probation officer’s errors that the Judge is kind of tired of ruling for the defense when it comes to the final sentence.  Instead of those topics, today, I want to briefly talk about long-term relationships in criminal cases.

Sentencing Hearings are one of the things I handle often as a criminal defense lawyer here in Atlanta and other parts of the country.  I also write occasionally about how the press and criminal cases intersect, and the increasing abdication by the press when they simply re-print whatever “press release” gets issued by some prosecutor’s office.   Today I just finished a two day sentencing hearing in federal court.  There likely will be some press coverage about the case, but I will leave that for another day.  Instead, I want to talk more specifically about how sentencing hearings operate in theory, and in practice.

People who are familiar with the kind of work that I do know that a sentencing hearing needs to happen any time someone is convicted of a federal crime (whether that conviction comes after a trial or after a plea of guilty).  The first thing that happens is that the person gets interviewed by a United States Probation Officer, who creates a lengthy document called the “Presentence Investigation Report” or “the PSR.”   The PSR generally has two parts.  One is sort of a miniature biography of the Defendant, while the other portion is where the Probation Officer makes recommendations about how to calculate the Sentencing Guidelines.  These Guidelines result in a “range” of months for a particular case.  This range is the starting point, because after the Judge calculates the Guidelines and gets that range, the Judge then needs to decide what is a “reasonable sentence.”  The factors for a reasonable sentence are found in another law called title 18 United States Code, Section 3553.  After the Judge considers those factors, the Judge decides if the 3553 factors suggest a sentence that should be inside, higher, or lower than the range suggested by the Sentencing Guidelines.  At least this is the way it is supposed to work.

However, note that a Judge can stay within, go higher or go lower than the Guidelines but only after first calculating those Guidelines.  Experienced lawyers in the federal criminal justice system (and by this I mean BOTH prosecutors and criminal  defense lawyers) know that it is easier for a judge to give a sentence that is at least close to the Guideline range.  Prosecutors therefore advocate for calculating the Guidelines that result in a higher range, defense lawyers argue for applying the Guidelines that result in a lower range. Obvious, right?

I’m working on a case with a very talented Atlanta-based criminal defense lawyer.  Our clients were accused of and later convicted for fraud involving several businesses.  These are a somewhat different type of white collar offense, for some of the crimes are what we call “securities fraud”, meaning fraudulent conduct relating to the offering or sale of what most people call “stocks”.  However, our clients are going to be sentenced soon, and we are preparing for the upcoming sentencing hearing.  This other attorney and I are running headlong into the extraordinarily unfair sentencing guidelines in these type of federal cases.  Although the Guidelines are extremely unfair, we discovered that a lot of federal judges have been extremely critical of these Guidelines and have extensively criticized this approach over approximately the past decade.

First, a little history (those who know me remember that I majored in history and often try and place issues into historical context for better understanding).  The Guidelines came into effect in 1987, and were supposed to iron out differences between the sentences issued by different judges.  Then, we had the big corporate meltdowns in the early 2000’s, Enron, Worldcom, Arthur Anderson, etc.  Congress responded with what is usually called “Sarbanes/Oxley“, a series of laws designed to prevent such corporate high-level shenanigans.  All fine and good, from my viewpoint.  However, (and here’s the “unfair sentencing guidelines part” coming back), as part of this Sarbanes/Oxley law Congress also told the United States Sentencing Commission to greatly ratchet up the sentences imposed on high-level corporate fraudsters, the kind who led to Enron, Worldcom, Arthur Andersen, etc.  Again, fine and good.

The problem, of course, is that the Sentencing Commission created new and extremely punitive Guidelines that are more of a “one-size-fits-all” set of enhancements for most corporate offenders if a case involves securities or stocks.  As a respected Senior Judge in New York wrote in the opening lines of his decision in United States v. Parris:  “I have sentenced Lennox and Lester Parris today to a term of incarceration of 60 months in the face of an advisory guidelines range of 360 to life. This case represents another example where the guidelines in a securities-fraud prosecution “have so run amok that they are patently absurd on their face,” United States v. Adelson, 441 F. Supp. 2d 506, 515 (S.D.N.Y. 2006), due to the “kind of `piling-on’ of points for which the guidelines have frequently been criticized.” Id. at 510.”

Readers know that I am a criminal defense lawyer in Atlanta who handles lots of federal cases. Most folks also know that various prosecutors employ full-time press officers who put together a “press release” every time that something happens that the prosecutor hopes to see published.  And most of us are so inundated and overwhelmed with information from so many sources that we have a hard time figuring out what is true and what is, to use the recently coined term, “fake news.”  So, let me use a case in which I am involved to demonstrate how all this happens and how sometimes it is important for a lawyer to have his or her client’s side mentioned as part of all this publicity.

The local federal prosecutors have their website where they give out their “news,” such as announcing a new set of charges or that someone got convicted and sentenced.  Here is a recent one announcing the guilty plea by my client. Note that it is a pretty straightforward account of the case and that my client has agreed to plead guilty.  Now, what happens is that these “press releases” are obtained by various news organizations and internet news sites.  Some newspapers and sites are devoted to legal news, and the reporters for these organizations tend to be very good and very well-aware that a press release is only one side of the story.  For example, here is the story written by a reporter working for a well-respected local paper devoted to legal news which discusses this recent case involving my client.   Note that this story is written by a reporter who not only read the prosecutor’s press release, she actually wanted to hear both sides and called me for my reaction, which is mentioned in the story.

The problem, of course, is that all of this works its way on to the internet.  I have no problem with the dissemination of truthful and accurate information, that is a good thing.  However, big problems happen when at the early phase of this process a prosecutor or reporter decides to cut corners.  Some prosecutors do far more than issue a well-honed and accurate press release. Instead, these prosecutors say all sorts of incendiary things to reporters who lap it up like kittens at the milk bowl in order to publish a story with some juicy quotes.  Then, less scrupulous internet sites further disseminate the inflammatory parts of the story, and subsequent readers only hear one side, a side that is frothing at the mouth (kind of mixing my metaphors with the kittens at the bowl, but you get the idea).