Atlanta Criminal Defense Lawyer Blog

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.

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.

I finished a federal criminal case in Atlanta recently.  My clients were very happy with the outcome.  Helping people is one of the reasons I still get excited about my work, even in my 36th year of handling such matters.  I mention this recent case because it has features we often see in such matters, and teaches lessons for both prospective clients and federal criminal defense attorneys, whether in Georgia or the rest of the country.

The clients are a husband and wife who have a small child together.  They are immigrants to the US, but are now citizens.  English is not their native language, as shown in the very nice statement the husband was willing to publish about their experience with me:  “I am grateful that we were able to retain Mr. Kish to represent my wife through an online research. We were panic before we met Mr. Kish. As a professional, intelligent lawyer, Mr. Paul Kish also provides outstanding customer service. Mr. Kish treats his client with respect and care. A HUGE Thank You here, Mr. Kish saved our family and got our life back on the right track.”

The wife was arrested in a blaze of publicity.  Turns out that the government made several incorrect assumptions when arresting this relatively guileless woman.  Over time, we were able to convince them they were wrong on several major matters.  We got all felony charges dropped, and agreed to a plea to a misdemeanor crime that does not require proof that the wife acted with criminal intent. Oh yes, we also agreed she would have to pay a whopping $632 fine. What started out as a big deal for the prosecution ended with a whimper when the Judge imposed a total of 1-year probation for the misdemeanor violation.

Even though the pandemic has slowed the federal courts here in Atlanta and throughout Georgia and the rest of the country, federal criminal investigations continue apace.  Those of you bored enough at home to spend time on this blog recognize that as a criminal defense lawyer specializing in federal criminal cases, I post on various aspects of this kind of work, the people involved, and various tips and tricks I’ve encountered over my 37 years doing this kind of work.  Today’s topic: the “reverse proffer.”

First let’s discuss the “proffer.”  I tell clients that the proffer is kind of like when you go car shopping and take one of the vehicles out for a test drive.  The dealership is not obligated to sell, you are not obligated to purchase, each side kind of wants to see how the situation might look if it all works out.  In a proffer, the person under investigation goes in (with his or her attorney, PLEASE!).  The prosecutor and agents ask questions, but the person’s answers are basically off-limits if the person is later prosecuted, with several major exceptions that we have discussed on other occasions. The prosecutor and agents want to hear the person’s answers, to see if they want to work out some kind of “deal” in return for the person’s information or possible testimony.

A “reverse proffer” is when the prosecutor feels that he or she might be able to convince the person under investigation that the Government has a very strong case. The prosecutor brings the individual under investigation and their counsel to the office (or everybody gets on a video call) and the prosecutor and agents lay out what they feel are the strongest parts of the Government’s potential criminal case. Such a prosecutor does this in the hopes that the person under investigation will realize that the game is over, and the person will tell his or her lawyer to negotiate plea agreement, thus saving the prosecutor the work of actually making a case.