I am an attorney who represents people being prosecuted for federal crimes; my office is here in Atlanta, Georgia but I handle matters in federal courts all around the United States.  Today I am working on two cases where we are fighting with the prosecution over the conditions under which my clients are release from custody while the case moves forward.  As many people know, being released is sometimes called being out “on bail” or “on bond.”  Being released means the person gets out of jail after an initial arrest and is allowed to live and work at home while still defending against the federal criminal case.

The current law on being out on bond stems from a 1984 Act which was part of a huge Crime Bill that year.  The part of the law regarding pretrial release was called the “Bail Reform Act of 1984.”  That law now allows a Judge to hold or “detain” a criminal Defendant with no bail at all if the Court determines that the person is either a “danger to the community” or a “risk of flight.”

In several of my current cases I got my client released on bond, but am still tussling with the prosecutors over some of the conditions imposed on my clients during their time out on bail.  This is somewhat common.  We get our client released at the beginning of the case by agreeing to some rather stringent and strict conditions.  As the case drags on we try to convince prosecutors (and the Court) that the harsh condition is no longer needed months and sometimes years after the person was originally released on bail.

I am an attorney who represents people being prosecuted for federal crimes; my office is here in Atlanta, Georgia but I handle matters in federal courts all around the United States.  Today I am working on two cases where we are fighting with the prosecution over the conditions under which my clients are release from custody while the case moves forward.  As many people know, being released is sometimes called being out “on bail” or “on bond.”  Being released means the person gets out of jail after an initial arrest and is allowed to live and work at home while still defending against the federal criminal case.

The current law on being out on bond stems from a 1984 Act which was part of a huge Crime Bill that year.  The part of the law regarding pretrial release was called the “Bail Reform Act of 1984.”  That law now allows a Judge to hold or “detain” a criminal Defendant with no bail at all if the Court determines that the person is either a “danger to the community” or a “risk of flight.”

In several of my current cases I got my client released on bond, but am still tussling with the prosecutors over some of the conditions imposed on my clients during their time out on bail.  This is somewhat common.  We get our client released at the beginning of the case by agreeing to some rather stringent and strict conditions.  As the case drags on we try to convince prosecutors (and the Court) that the harsh condition is no longer needed months and sometimes years after the person was originally released on bail.

Good late January Morning gentle readers, the sky is gray and cold, what better time to talk yet again about the Presentence Investigation Report (we sometimes call it the “PSR”) in federal criminal cases.  Careful readers will recall that I return to this subject around every 3-4 years on this blog, such as here and here.

Recall, the PSR is a document prepared by a U.S. Probation Officer who works for the Judge.  The PSR is only prepared if a Defendant is either found guilty by a jury, or if he or she admits to committing a crime in a guilty plea proceeding.

The PSR has two basic part.  First, the Probation Officer (or “the PO”) outlines the crime and as part of that then makes recommendations as to how the Sentencing Guidelines might apply to that conduct.  Second, the PO writes up what is essentially a miniature biography of the accused person, with information about the Defendant’s family, education, health, financial situation and other factors that  might impact what is or is not a “reasonable sentence”.

OK Team, those six of you who read this, we are in the cold winter  months, the perfect time to prepare for a “proffer session” involving one of my clients who is facing a federal criminal prosecution.  Casual (and even those wearing formal wear) readers know I have posted about this subject several times, here, here, and yes, over here.

A “proffer” is when a criminal Defendant (or someone under investigation yet not currently charged) goes to see prosecutors and federal agents to give his or her version of what really happened in a case.  Often, the proffer is preceded by an “attorney proffer”, during which the person’s attorney gives prosecutors an outline of what his or her client will likely say during the later session when the accused person comes to the office to talk.  As I have written about before, these can be both valuable, and are simultaneously dangerous.

Today I met with a prosecutor ahead of the formal proffer.  This particular prosecutor truly wants to make this case move forward and resolve short of a trial or contested sentencing hearing.  Sensing that, I pushed a bit harder than I normally do, and essentially asked him to give me an outline of what the agents will ask of my client when I bring that person in for the formal proffer session.  It seemed to work.  By the end of the meeting I had more a less a roadmap of what they want my client to say (assuming it is the truth, of course) after which we should be on the road to resolve the matter more favorably to my client (and his family).

A good rainy Wednesday morning here in my Atlanta office for reviewing some of the discovery materials in yet another federal criminal case I am handling.  Plowing through these materials reminded me of several important lessons I have learned during the 40 years or so I have been representing folks accused of federal crimes here in Georgia and other parts of the country.

As I have posted about previously, federal criminal cases are highly complex, and the “discovery” materials are often daunting for attorneys unaccustomed to handling such matters.  By law and based also on various rulings from the U.S. Supreme Court, prosecutors are only obligated to turn over certain types of evidence prior to trial.  However, with the explosion of data in the past several decades the practice is that many prosecutors turn over anything and everything that is remotely related to the case.  The result is that lawyers are often drowning in data as they try to piece together what happened and how to defend against the allegations.

One of the tricks when reviewing this glut of materials is to do a quick overview of what has been turned over.  Next, the attorney and his or her staff need to begin searching, using various software tools and other aspects of artificial intelligence.  Gone the days when the lawyer touches and reviews each and every piece of paper in the file, because that would take the rest of his or her life in cases such as one I am currently handling which has 15 terabytes of data (and we are still many months away from trial)!  Another key is to try and figure out how the other side is handling the case and sort of replicate their tracks through the maw of material.

Readers know that I am a lawyer who specializes in defending federal criminal investigations and prosecutions, here in my long-time home of Atlanta.  This is also the birthplace and spiritual home of Dr. Martin Luther King III.  This morning I did some volunteer work (as many do) here in beloved “ATL” as a way to honor the memory and dreams of Dr. King.

Dr. King was no stranger to the criminal justice system.  He was jailed, prosecuted and reviled by many who were in charge of the criminal justice systems here in the South.  I strongly urge people to read (or re-read) his famed “Letter from a Birmingham Jail” a part of which is one if his most famous quotes: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

I’ve been licking  my wounds from a recent fight that I lost in Court.  It was (and is) the epitome of “injustice”.  It affects a single criminal defendant along with her family and friends (plus her legal team).  However, this single injustice is, just like Dr. King wrote, “a threat to justice everywhere”.  After several weeks of being down about this result I now have the fight back in my blood and bones.  We cannot tolerate injustice, large or small, and this MLK Day is a great way for all of us to remind ourselves that the fight for a better and more perfect society is never-ending.

2022 is in the rear-view mirror, and 2023 lies ahead, and while I was so busy I did not blog for a while one goal for the New Year is to write more posts on one of my favorite topics: federal criminal investigations and prosecutions along with the job of being a federal criminal defense attorney (which I do all over the country even though my office is here in downtown Atlanta, Georgia).

You tainted regular readers know that I regularly discuss how federal criminal cases are creatures of politics and current events.  This year is no different.  Lawyers like myself still have lots of work based on investigations arising from the Government’s response to the COVID outbreaks. These are usually what are sometimes called “white collar” or “economic crime” matters.  The Payroll Protection Plan (“PPP) involved lots of fraud, what a shock when Congress allowed banks to shovel money out the doors with virtually no oversight and federal government backing if the loans went bad.  The same is true for the EIDL program (formally known as the Economic Injury Disaster Loan program).  Federal criminal investigations into these loan programs can be very dangerous for individuals or companies who come under the microscope of a federal agent looking at possible fraud.  I strongly recommend that you consult with an expert who has significant experience defending such cases.

Health care fraud investigations and prosecutions remain a staple of my work.  Any company or individual caught up in one of these situations needs to consult with and possibly hire a lawyer who has lots of experience in these very specialized matters.

I was just reading a press release from the U.S. Attorney for the Northern District of Georgia, based here in Atlanta a few blocks from my office.  The prosecutors touted their recent indictment of a physician’s assistant for supposed health care fraud and other crimes.  Reading this made me want to put down a few thoughts about such cases, which we have handled multiple times over the recent years.

Anyone reading our website knows that there are “federal fraud” cases, and then there are sub-species of federal fraud.  Health Care Fraud is an especially dangerous and pernicious charge to defend against.  For starters, the wickedly complex Federal Sentencing Guidelines  make the potential sentences for Health Care Fraud even longer than what is suggested for regular run-of-the -mill fraud.  Certain “specific offense characteristics” bump up the scoring mechanism when prosecutors include an allegation that an accused person’s supposedly fraudulent conduct violated one of the Health Care Fraud laws that Congress has enacted over the years.

The accused person and his or her lawyer also need to be keenly aware that there are sub-sets of Health Care Fraud.  For example, there is an illegal “kickback”, which the Government defines as: “the knowing and willful payment of ‘remuneration’ to induce or reward patient referrals or the generation of business involving any item or service payable by the Federal health care programs (e.g., drugs, supplies, or health care services for Medicare or Medicaid patients)”.  Anti-kickback cases are weirdly complicated with many people wondering why the Feds are interested in the normal back and forth payments that arise in many sectors of our economy.

It was forty years ago today that I was sworn into the Bar, which is the way we lawyers describe the ceremony of acknowledging that we will strive to uphold the Constitution and the laws while representing our clients.  The vast majority of those 40 years has been spent representing my clients who are being investigated for or even prosecuted in federal court for alleged criminal activity.  While a lot of time has passed, some things remain the same.

This morning when meeting with a client I remembered one of the things that has not changed in 40 years.  Clients who come to see a criminal defense lawyer are almost always scared.  Some do not show fear, others are overwhelmed, all are in stress.  I remembered that one reason I still love my work after four decades is that I get the chance to help someone in a stressful situation.  I am not always successful, but I always try to make my clients lives just a bit better as they go through the stress of an investigation or prosecution.  Obviously, winning the case us the best stress reducer of all!

Another thing I remember today is how clients need to know they can trust their lawyer.  A different client followed my advice recently and entered a guilty plea.  I had won an earlier case for this client, so he trusted my judgment and advice already.  Today’s case turned out well, he likely will not have a criminal conviction after a couple of years because of some changes in the law, and his decision to trust my advice led to this positive result.

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.

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