Articles Posted in Criminal Appeals

I am currently working on a federal criminal appeal that will go to the lovely building a few blocks away that houses the United States Court of Appeals for the Eleventh Circuit here in downtown Atlanta. The appeal involves a “jury instruction”, which means the rules of law that the trial judge provides to jurors at the end of a trial to assist the jury in deciding whether the prosecutor has, or has not, proven that the Defendant is guilty as charged.  Working on this appeal caused me to think back about how I learned of the importance of jury instructions in a federal criminal case.

My interest in federal criminal cases began when I “clerked” for a couple of federal judges directly out of law school.  A federal judicial clerkship is a great job, you work for the Judge, and help him or her with research, writing opinions and anything else the the Judge wants you to do.  You also get to see lots of cases up close, and after a while you start to realize that you might actually be able to do as well, if not better, than some of the lawyers who have cases in front of your Judge.  Along the way, you learn a whole lot more “law” than they ever taught in Law School.

Judge K was the first one for whom I clerked.  He was great, let me sit in on anything and basically gave me a tutorial on what was happening in real time: “Paul, this lawyer is trying to protect the record, while this other lawyer is trying to get me to make a mistake for a possible appeal”, and the like.  Judge K also knew I was interested in possibly becoming a federal criminal defense lawyer, so he let me sit in on just about every trial of that sort.

Although I am in Atlanta and tend to handle federal criminal cases here in Georgia and nearby states, I also work on cases throughout the country when asked to do so.  As a result, I also try to keep up with federal criminal matters arising in other “circuits.”  Yesterday a Federal Court of Appeals (the Sixth Circuit) that deals with cases out of Kentucky affirmed some health care fraud convictions for doctors and others who operated labs that tested patient urine samples.  The case is called United States v. Bertram.  18-5002-2018-08-20.  This decision is yet another lesson as to how complicated these cases can be, and how issues can be missed by even the best lawyers and judges.

The Defendants were some small-town doctors and business people who were in an area where the opioid scourge has caused so much pain and agony.  A couple of the doctors operated addiction clinics and needed labs to test patient urine samples for drug use and other information.  They formed their own test lab, but test samples began to back up when the equipment did not operate at first.  The samples were frozen for up to 10 months before being tested.  The lab then sent requests for payment to private insurance companies.  The government said this was health care fraud, because the lab operators failed to disclose that they had waited up to 10 months to test the frozen urine samples, and this constituted a “scheme to defraud.”  The jury rejected most of the prosecutors’ case, but each Defendant was found guilty of some charges related to bills submitted to Anthem Insurance.  The judge imposed what to my eye seemed to be rather modest sentences, ranging between 13-21 months.  Reading the case yields two observations.

First, the sentencing part of the case is exceedingly similar to my recent securities fraud matter where we had the two-day sentencing hearing, whittling down the Guideline range from close to 30 years to point where the judge imposed 10 years on my client.  Federal criminal sentencing proceedings for these white collar criminal matters often involve the same common issues: calculation of “loss,” whether to bump the Defendant’s score up for “sophisticated means”, did the Defendant abuse a “position of trust”, and what was his or her “role in the offense.”  Anyone facing such a case needs an attorney well-versed in these complex sentencing subjects.

When do we ever really “know” something is a question often asked in the many federal criminal cases I handle here in Atlanta, throughout Georgia and around the country.  Most criminal cases require that the prosecutor prove that the Defendant “knew” something.  The issue might be whether the Defendant “knew” that a package contained drugs, or, like a case I handled recently, whether a CEO “knew” about the bribery shenanigans done by lower-level executives in a different state.   Many of the cases I have won over the years in federal court came about because the jury had significant doubts as to whether there was sufficient evidence that my client “knew” a certain fact.  However, a recent case from the United States Court of Appeals for the Eleventh Circuit seems to make the prosecutor’s burden far easier.  That case, U.S. v. Duenas, greatly expands what is called the “prudent smuggler” doctrine, and seems to foretell a harder time for me and other criminal defense lawyer in the future.

People who have read my musings over the years recognize that I often claim that legal decisions and rules are based in politics.  The Prudent Smuggler line of decisions is no different.  The absurdly expensive and counter-productive “War on Drugs” is where this legal principle had its genesis.  Federal prosecutors convinced judges that it was too hard to prove that some people were involved in a drug conspiracy or activity.  That person might be a small player who was told to carry a bag across a street, to take a ride with others in a car, or a fearful immigrant desperate to enter the country who would be handed a closed bag and told to bring the luggage into the United States.  As the War on Drugs raged, more and more judges agreed with the general rule behind the “Prudent Smuggler” line of cases.  As noted in this recent decision: