Articles Posted in Criminal Appeals

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.

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.

To those who may not often read these missives or do not know me, I am a criminal defense lawyer in Atlanta, Georgia who specializes in federal criminal defense and criminal appeals.  This is me: paulkish-4-300x200

Many people who do this kind of work find themselves representing clients who look at the criminal case differently than their own lawyer.  Such differences of opinion lead to the interesting constitutional question of who is in charge of the defense, and what decisions are reserved for the lawyer and which ones are exclusively reserved for the client.  The United States Supreme Court recently issued the opinion in McCoy v. Louisiana, which partly answers a few of these questions.   This decision reminds lawyers that our Constitution means that a criminal Defendant possesses the fundamental right to make decisions about his defense and prevents a defense lawyer from going against his client’s instructions.  This rule holds true even  when the attorney’s  strategy seems to be right on the money.

Robert McCoy was charged with killing his estranged wife’s son, mother and stepfather.  Prosecutors decided to ask for the death penalty.  Mr. McCoy told his defense lawyer that he was innocent and the the local police were framing him because he had revealed the cops were all drug dealers, which sounds a bit far-fetched.  The lawyer, who from all accounts sounds to be an accomplished attorney, looked at the case differently.  The attorney believed the case against the client was “overwhelming”.  A common defense tactic in death penalty defense is to see if the prosecutors will “take death off the table” if the client will plead guilty.  That did not work, and with the trial approaching, the defense lawyer planned on telling the jury that McCoy killed the victims,  hoping that this tactic would convince the jury to sentence McCoy to life in prison, rather than death. The client, McCoy, was furious, but the lawyer did as planned, telling the jury that McCoy was “crazy” and “lives in a fantasy world.” The strategy failed, and the jury found McCoy guilty and sentenced him to death

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:

The rationale behind the “prudent smuggler doctrine,” as it has become known, is straightforward. A prudent smuggler seeks to facilitate the exchange of contraband in order to enrich himself while evading apprehension by law enforcement officers. He is, therefore, not inclined to navigate the contraband markets’ perils and uncertainties alone…Rather, he is disposed to trust a confidant to provide loyal and competent assistance in securing the illicit transaction’s smooth performance…Loyalty is necessary to ensure that the confidant will not abscond with the valuable contraband; and competency is necessary to ensure that the confidant will effectively consummate the plan. In entrusting the confidant, then, the smuggler will likely apprise him of the transaction’s essential details, including the nature of the contraband involved, so that the confidant may overcome the “normal but deadly hazards implicit in [contraband] trafficking.”  The emphasis on the word “likely” comes from me.  In other words, this is a made-up rule, based merely on the Judge’s own beliefs, supplanting his inclinations for that of jurors.

Here at beloved K&L we do a fair number of appeals in criminal cases, mostly in federal court but occasionally in the state court system. Winning an appeal in a criminal case is always hard, it takes lots of work to understand what happened in the lower court, it takes even more time and energy to figure out all the potential legal issues, and then it takes more time still to write, revise, refine and get the arguments down in a manner that is both correct yet easily understood. Even when we do all that, we face one more hurdle before we can get relief for our clients; the “Harmless Error” rule. A case decided last week by all 11 Judges on the federal Court of Appeals here in Atlanta clearly shows this difficulty. The decision is United States v. Roy, and can be found here.

First, the “harmless error” rule. For a long time, courts reversed criminal cases whenever the trial judge made an error or mistake, such as allowing a prosecutor to use inadmissible evidence, or failing to properly instruct the jury on the elements of a crime. About 50 years ago the courts began using a rule that looks to whether the error or mistake “harmed” the Defendant, or if the mistake was just a “technicality” and had no impact on the overall result. If the trial judge made a mistake, under the harmless error analysis the court of appeals then looks to whether the error contributed to the jury’s verdict. The beneficiary of the error (meaning the prosecutors in criminal cases) had the burden on appeal to show beyond a reasonable doubt that the error did not contribute to the conviction. So far, so good. Continue reading