Appeals

December 8, 2020

We Convince 11th Circuit to Reverse 35 Year’s of Precedent in Anti-Kickback Act Cases: A Lesson on How Hard it is to Win

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.

November 17, 2020

Federal Criminal Appeals: Five Points Concerning the “Oral Argument”

by Kish Law

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.

November 17, 2016

Lawyers in Federal Criminal Cases: the Importance of Objecting

by Kish Law

Here we go again, another federal criminal case which on appeal goes to the United States Court of Appeals for the Eleventh Circuit here in Atlanta, and that court rejects the Defendant because the specific argument was not brought up in the trial court. We have written about this issue many times, the need for lawyers to anticipate issues and, more importantly, the need to “object” or ” preserve” that issue. An opinion issued yesterday in the Eleventh Circuit reminds me about this whole area, in which the appellate court basically kicks the Defendant out of court because a good issue she raised on appeal was never mentioned during the trial itself. The case is United States v. Leon, and can be accessed here.

Ms. Leon was charged with a series of crimes arising out of an “investment” offering. Apparently, she was was the assistant for the head of the investment company. At his direction, she made a series of cash withdrawals from the company bank account, all in amounts below $10,000. However, on several days she made multiple withdrawals, and the aggregate amount of cash removed from the bank on those days exceeded $10,000.

Many readers of our little blog know about the rule that requires financial institutions (as well as lawyers) to file a “CTR” if they engage in any financial transaction involving more than $10,000 in cash for a person or institution in a single day. There are loads of different statutes in this area. In Ms. Leon’s case, the prosecutors charged her with the specific sub-section of a statute that makes it a crime to cause (or attempt to cause) a financial institution to NOT file the CTR. A separate sub-section of that same statute involves the crime of “structuring”, which is the very similar but slightly different crime of breaking up transactions into increments below $10,000 with the goal of avoiding the filing of the CTR. I know, they sound incredibly similar, but they are in fact different.

October 24, 2016

Appeals from a Criminal Conviction: Some Thoughts about the Process and Writing a Brief

by Kish Law

People who are trying to get their criminal conviction reversed or overturned often contact us at our criminal defense firm here in Atlanta. Sometimes, they are trying to help a friend or loved one. Often, the people who contact us are a little confused about the appellate process and how we prepare the written Brief for the appellate courts. I am currently working on appeals in both the Georgia Court of Appeals and the United States Court of Appeals for the Eleventh Circuit. Working on these two matters made me realize that I often spend a lot of time explaining the process or procedures to the folks calling our firm, and this realization made me wish that their original lawyers took the time to explain it all to the family or friends of the person who got convicted of a crime.

To begin with, many people think that when they appeal their case they get to argue all over again as to whether they are guilty of a particular crime. For the most part, this is not true. An appellate court does not decide guilty/not guilty. Instead, a court of appeals mostly decides whether the process that led up to the guilty verdict was fair. There are some cases where we raise what is called the “sufficiency of the evidence.” In these cases, we are NOT claiming that the jury was “wrong.” Instead, in this type of appeal we are claiming that the trial judge was wrong for even letting the jury make a decision, because the evidence was legally insufficient. This might seem like the same thing, but it is significantly different. The important thing to remember is that appeals for the most part focus on whether the trial judge (or prosecutor, or defense lawyer) did his or her job correctly.

January 29, 2016

Appealing a Criminal Case: Court Issues Rare Ruling in Deciding That Previous Lawyer Missed an Issue That Would Have Helped the Defendant

by Kish Law

Here at our firm we do a fair number of criminal appeals. Some cases come out of the federal courts, here in Atlanta, throughout Georgia, and occasionally in other parts of the country. We also handle criminal appeals arising out of Georgia’s state courts. As described in an opinion issued two days ago by the U.S. Court of Appeals for the Eleventh Circuit, Overstreet v. Warden, “The fundamental purpose of an appellate lawyer representing a defendant in a direct criminal appeal is to identify and argue bases for reversal of a conviction.” The value of appellate counsel is based on his or her “examination into the record, research of the law, and marshalling of arguments on [the defendant’s] behalf”. But what happens if the appellate attorney misses an issue? The Overstreet decision is one of those rare cases in which a federal court of appeals overruled the lower federal court, and the state courts, in concluding that the attorney handling the appeal made such an egregious mistake that the Defendant was entitled to have some of his convictions reversed many years after the fact.

Johnny Overstreet apparently was no angel. A jury found him guilty for a series of crimes arising out of robberies at five fast food establishments. For each incident, he was also found guilty of kidnapping store employees. Prosecutors successfully argued that Overstreet kidnapped the store managers by forcing them to walk back to a safe or office, and then return to the front of the establishment. At the time of Overstreet’s trial, Georgia’s kidnapping law required even a “slight movement” of a victim in order to comply with the “asportation” aspect of this crime. However, the following year, well before Overstreet appealed his own convictions, the Georgia Supreme Court reversed this “slight movement” test. Under the new test, movement of a victim that is “part and parcel” of an independent crime, such as armed robbery, would generally not be considered asportation. Even more importantly, two later cases with facts almost identical to Overstreet’s trial reversed kidnapping convictions based on the Georgia Supreme court’s new rule.

Here is where the problem arose. The lawyer handling Overstreet’s appeal filed his legal papers 15 months after the new test for asportation had been announced by the Georgia Supreme Court, and several months after the other cases with identical facts had resulted in reversals. The lawyer never mentioned asportation, the new cases, or any attack on the kidnapping convictions at all other than to say that the evidence was insufficient. Not surprisingly, the state appeals courts did not look at nor reverse the kidnapping convictions.

June 23, 2015

Federal Criminal Conviction Reversed When Trial Judge Prohibited Defendant From Talking with His Attorney During Two Overnight Recesses

by Kish Law

Yesterday the Court of Appeals here in Atlanta reversed a federal criminal conviction in a mortgage fraud case. The Defendant was in the middle of testifying in his own defense. During two overnight recesses, the trial judge told the Defendant he could not speak with “anyone” about his testimony, and could only talk with his lawyer about his “constitutional rights.” The Court of Appeals, relying on a series of earlier decisions, decided that this prohibition against speaking with the Defendant’s own attorney amounted to a violation of the Sixth Amendment’s promise that a person may consult with counsel during a criminal case. The case is United States v. Cavallo, and can be found here.

A man named Streinz was one of the Defendants in a large mortgage fraud prosecution in the Middle District of Florida. Streinz and his lawyer informed the trial judge that Streinz would be testifying on his own behalf. Just before he testified, the attorney turned over some late materials that Streinz said he had just found in his home office, materials that impacted his testimony. The trial judge apparently smelled a bit of a rat, and directed that the prosecutor and federal agents go to the home office with Streinz and his attorney in order to sort out the documents. Streinz became outraged during this process, claiming that the agents were seizing excessive materials.

The next day Streinz began his testimony. As the trial recessed at the end of the day, the court instructed Streinz that he could not discuss his testimony with “anyone,” but that he could talk to his lawyer about his “constitutional rights.” The court did not, however, explain what that phrase might mean.

December 1, 2014

Rules, Silly Rules, and How Judges Sometimes Avoid Justice

by Kish Law

All lawyers must deal with rules, whether practicing mostly in Atlanta and Georgia like our firm, or in any other part of the country. Most rules are made by the legislature, but sometimes, judges themselves get to make rules. These judge-made rules control the procedure or process of how a particular case works through the court system. Today, the United States Supreme Court refused to take a case that shows that sometimes these judge-made rules can allow judges to avoid justice. The discussion of the case noting the refusal to hear the matter is found here.

The case involves a man named Patrick Henry Joseph (you’d think the courts would be reluctant to be unfair with someone with such a grand history behind his first two names). Mr. Joseph was convicted of several drug offenses. Using the well-known Federal Sentencing Guidelines, the trial judge imposed a lengthy sentence after deciding that Mr. Joseph was a “career offender.” Joseph’s very able Public Defender then appealed his case to the United States Court of Appeals for the Eleventh Circuit. So far, so good.
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March 1, 2014

Criminal Defense Attorneys Win Case in Supreme Court: Decision Turned on the Meaning of When ” Death Results”

by Kish Law

This past Wednesday some federal criminal defense attorneys won a case in the United States Supreme Court when they convinced the Justices that they had the better interpretation of the part of a law that increased their client’s sentence if “death results” from something he did. I previously posted about the case here. The case issued on Wednesday is Burrage v. United States, and can be read here.

The case revolves around a federal statute that requires a 20-year mandatory minimum sentence for a person dealing drugs “if death results.” Mr. Burrage was charged with selling heroin to a man who died after a drug binge involving multiple illegal substances. The jury would have to decide if the heroin sold by the Defendant to the victim caused the man’s death. Mr. Burrage’s lawyers wanted the judge to tell the jury that they would need to find that selling heroin “played a substantial part” in bringing about the death, and that the death was a “direct result of or a reasonably probable consequence of” using the heroin. The trial judge and the court of appeals rejected the Defendant’s contentions, and said it was OK to tell the jury that it was enough if they decided that the heroin was a “contributing cause” of the victim’s death. The instruction told the jury that “a contributing cause is a factor that, although not the primary cause, played a part in the death[.]” The jury found Burrage guilty, and the United States Supreme Court agreed to hear the case.
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December 18, 2013

Federal Criminal Appeals: Sometimes the Defendant Can be Released on Bail During the Appeals Process

by Kish Law

We do lots of criminal appeals, both in Federal Court and in the Georgia State Courts. On occasion, we ask the judge to allow our client to remain free on bail, or bond, while the case is appealed to a higher court. This is kind of tricky, in that the attorney must be well-versed in the intricacies of the Bail Reform Act, a 1984 law that kind of flipped the playing field when it comes to having a defendant released on bail. Perhaps even more tricky is the question of when the case usually calls for no bail, can the lawyer get around that by a part of the law that seems to permit release on bond if the case involves “exceptional reasons.” Beyond that is the question of who decides whether the Defendant’s case involves “exceptional reasons: the trial judge or the court of appeals itself? An opinion issued earlier today by the United States Court of Appeals for the Eleventh Circuit answers that question once and for all in federal cases arising in Georgia, Florida and Alabama. In cases that fall into the category of no bail during the appeals process, it is the district judge gets to first decide whether the case involves “exceptional reasons”, and thus can still let the Defendant stay out on bail. the case is United States v.Meister, and can be found here.

Meister was sentenced for having child pornography. His lawyers asked that be be permitted to remain on bond during the appeals process. The Bail Reform Act denies release for Defendants who appeal certain serious crimes. Defendants who violate the child pornography laws are thus prohibited from remaining on bail during appeal.
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June 19, 2013

Good Lawyers Are Persistent, and Continuous Arguments Result in Supreme Court Victory

by Kish Law

As any reader of this blog knows, I am a big fan of good, aggressive and persistent criminal defense lawyers. I have had the chance to practice and observe many great criminal defense lawyers, here in Atlanta, throughout Georgia, and in other parts of the country when my work takes me to places like Florida, Alabama, New York and California. I especially like it when criminal defense lawyers “stay the course”, and continue pressing the same argument over the years until they finally prevail. Precisely that situation took place this past Monday when the United States Supreme Court overruled Harris v. United States. What happened was that the Court finally changed its mind, and decided that mandatory minimum sentences are not excluded from the rule first announced in New Jersey v. Apprendi. The case from this Monday is Alleyne v. United States, and can be found here. I previously posted on this issue here.

Mr. Alleyne’s Public Defenders were just such persistent and aggressive criminal defense attorneys. They objected to the sentencing judge’s ruling, which was correct at the time it was made. They continued their objection all the way to the Supreme Court, which agreed with them Monday and changed that rule. Here’s how it happened.
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