Criminal Justice Issues

October 21, 2010

Kentucky v. King: U.S. Supreme Court Will Look at Exigent Circumstances Exception to Constitution’s Requirement for a Search Warrant

The United States Supreme Court announced last month that it will review a case involving the “exigent circumstances” exception to the Constitution’s requirement that the police get a search warrant before conducting a search or seizing property. We regularly confront similar matters when we litigate federal cases here in Georgia, Alabama and Florida and when one of these cases is taken up to the U.S. Court of Appeals for the Eleventh Circuit. This case, Kentucky v. King, likely will clear up whether this particular exception to the warrant requirement can apply when the police themselves create the exigency that otherwise mandates that they act before getting a search warrant.

The police chased a suspected drug dealer into a hallway where he could have entered one of two doors. A strong smell of marijuana came from one of the doors. The officers knocked on that door and announced their presence, after which they heard sounds consistent with destruction of evidence. They then broke open the door, discovering drugs and the unfortunate Mr. King inside.

Our Constitution says that it is unreasonable to conduct a search and seizure unless a judicial officer has issued a warrant. Over the years, the courts have created so many exceptions to the warrant requirement that it looks more like Swiss cheese than a rule to protect privacy. The “exigent circumstances” exception means that the police get to break down doors without a warrant if there is some immediate need to act, for example when persons inside are destroying evidence, someone inside needs immediate help, or there is an immediate danger to the police coming from inside the residence. However, over the years the police have gotten smart and often create the exigent circumstance that lets them get around the warrant requirement. The courts have reacted to these situations in a variety of ways.

August 3, 2010

Federal Sentencing Disparity Between Crack and Powder Cocaine Reduced

by Kish Law

Today President Obama signed the Fair Sentencing Act of 2010 into law. This federal law reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. While this is a step in the right direction, a significant disparity remains and the law has not been made retroactive.

The major features of the law include the following:

• The five-year mandatory minimum sentence now applies to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams.

June 8, 2010

Eleventh Circuit Reverses Judge Martin’s District Court Decision that a 30-Year Mandatory Minimum Sentence was Cruel and Unusual Punishment

by Kish Law

Last week, a panel of the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, reversed a decision by the newest member of their Court, Judge Beverly Martin. Prior to her appointment to the Eleventh Circuit, Judge Martin was a district court judge here in the Northern District of Georgia. As a member of that court, in U.S. v. Farley, she decided that a 30-year mandatory minimum sentence for a man who crossed state lines with the intent to have sex with a child under twelve was cruel and unusual punishment where the “child” did not exist and the defendant had no criminal history and was unlikely to re-offend.

The Eleventh Circuit held that such a sentence “does not surpass constitutional bounds” under Harmelin v. Michigan, a Supreme Court case that was never brought to Judge Martin’s attention in the lower court. In reversing the District Court decision that Farley’s mandatory sentence would be grossly disproportionate to his crime, the Eleventh Circuit analyzed Harmelin in detail. The Court emphasized that, under Harmelin, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare” and noted that the Eleventh Circuit “has never found a term of imprisonment to violate the Eighth Amendment.” Harmelin also held that the mandatory nature of a penalty is not an Eighth Amendment issue.

The Eleventh Circuit stressed the gravity of crimes involving sexual abuse of children. Incredibly, the Court compared the fiction of the child’s existence to the seizure of drugs by police: according to the Court, in both cases, the defendant is unable to inflict harm through no fault of his own.

June 2, 2010

Lall: Eleventh Circuit Court of Appeals Holds Confession Involuntary In Federal Criminal Case in Which State Police Had Told Defendant He Wouldn’t Be Charged

by Kish Law

Last Friday, the Eleventh Circuit, which hears federal appeals here in Atlanta, Georgia, reversed Lance Lall’s conviction for credit card fraud related offenses. Although Lall was Mirandized and arguably not in custody, the Court held that his confessions were not voluntarily given, in violation of the Due Process Clause. The investigating officer had told Lall that he would not pursue charges against him.

The case began with an armed robbery at the home of twenty-year-old Lall, his parents, and his siblings. The robbers said they were searching for money and equipment owned by Lance Lall. The detectives interrogated Lall in his bedroom, telling him and his family that information he shared would not be used to prosecute him. Lall showed the detectives the equipment he used to commit identity theft and explained how each device worked. Within hours, a detective alerted the Secret Service to the evidence. Several days later, the detective called Lall in to the police station, telling him he would not need a lawyer and that he would not charge him with this. Lall was ultimately arrested by the Secret Service and tried in federal court.

The Court first analyzed the statement given in Lall’s bedroom. The Court held that the detective’s statement that he would not pursue charges was misleading and undermined the Miranda warnings he initially gave, but did not resolve the issue of whether Lall was in custody for that statement. Instead, the Court analyzed the case using the Due Process Clause, holding that the totality of the circumstances demonstrated that Lall’s statements were involuntarily given. Factual misrepresentations are not enough to render a confession involuntary. However, the deceptive promises made by the detectives here were so egregious as to make the subsequent statements involuntary. In addition, “[i]t is inconceivable that Lall, an uncounseled twenty-year-old, understood at the time that a promise by [the state police detective] that he was not going to pursue any charges did not preclude the use of the confession in a federal prosecution.”

April 1, 2010

Padilla v. Kentucky: Sixth Amendment Effective Assistance of Counsel Requires Criminal Defense Lawyers to Advise Clients When Pleas Carry a Risk of Deportation

by Kish Law

Yesterday the federal Supreme Court decided Padilla v. Kentucky. The Court recognized its “responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the mercies of incompetent counsel. To satisfy this responsibility, [the Court held] that counsel must inform her client whether his plea carries a risk of deportation.”

Until yesterday’s decision, the lower federal courts almost unanimously held that lawyers are required to tell their clients about only ‘direct’ consequences of pleading guilty. Deportation (now called “removal”) has long been seen as a potential collateral consequence of certain convictions. While professional norms have long required such advice, until Padilla, failure to so advise did not meet the Strickland test for ineffectiveness. The Court held that the direct/collateral distinction is inappropriate in a Strickland claim concerning deportation risk.

The Strickland test has two prongs. First the Court must decide whether the attorney’s representation “fell below an objective standard of reasonableness.” The second prong, prejudice to the defendant, was not at issue in Padilla because the lower courts had not reached it. This second prong may be difficult to satisfy in many of these cases because many states require trial courts to advise defendants who plead guilty of potential immigration offenses. Here in Georgia, in 2000 trial courts began advising defendants that a guilty plea “may have an impact” on the defendant’s immigration status. However, Padilla may be a useful tool for challenging certain guilty plea convictions in Georgia prior to 2000.

March 24, 2010

Long-Term Difficulties Faced By Innocent Federal Criminal Defendants, Even After Acquittal

by Kish Law

Often in our business, being innocent and acquitted of a crime is not enough to remedy the harms caused by a criminal prosecution. These harms are often emotional, professional, and financial. The federal government has taken inadequate steps to alleviate the burdens that these innocent people must bear.

In 1997 Congress passed the Hyde Amendment.* This law says that when an innocent person wins against criminal charges in federal court, the defendant can sometimes get his legal bills reimbursed by the government. This is important because defending against a federal criminal case is very expensive. Lawyers who do this kind of work are often the finest in their field, and they charge fees that recognize their superior skills. The Hyde Amendment provides for the innocent person to be reimbursed only if the prosecution’s position was “frivolous” or the prosecutors acted in “bad faith.”

The recent case of J. Mark Shelnutt is a perfect example of how even the innocent must pay massive legal bills. Mr. Shelnutt is a criminal defense lawyer. Federal prosecutors love going after lawyers who do such work, and they tried to make a massive federal criminal case against Mr. Shelnutt based on the word of some drug-dealing folks whom Shelnutt had represented in the past. The federal judge threw out some of the charges and the jury acquitted Mr. Shelnutt on the remaining counts against him.

February 18, 2010

Oral Arguments in Third Circuit Electronic Privacy Case – Should the DOJ Need a Warrant to Obtain Location Data from Cell Phones?

by Kish Law

Last week, the Third Circuit, which hears appeals from federal cases in Pennsylvania, Delaware, and New Jersey, heard oral arguments in a worrisome electronic privacy case: In The Matter Of The Application Of The United States Of America For An Order Directing A Provider Of Electronic Communication Service To Disclose Records To The Government. The Department of Justice is challenging a denial of a request for cell phone location data in a drug-trafficking case, which was signed by all of the magistrate judges in the Western District of Pennsylvania and affirmed by the district court judge.

At oral arguments, Third Circuit Judge Sloviter seemed understandably concerned about the privacy implications and potential over-reaching by the government in allowing police to obtain information about a person’s location based on cell phone data without probable cause. Judge Tashima, visiting from the Ninth Circuit, seemed more sympathetic to the government’s argument. Judge Roth, also on the panel, did not attend the oral arguments. An audio recording of the arguments is available here.

Professor Orin Kerr, at The Volokh Conspiracy blog, explained the case in this post and blogged the oral arguments in this post. His posts, and the extensive discussion in the comments, provide a good overview of the legal arguments involved in the case. We have also posted the appellate briefs below. We disagree with Professor Kerr’s Fourth Amendment argument that Smith v. Maryland (in which the Supreme Court held that use of a pen register is not a “search” for Fourth Amendment purposes because the user of the phone voluntarily conveys the outgoing numbers to the phone company) is applicable precedent, because a cell phone user actively dials a phone number, but only passively shares his location with the phone company. We hope that the Third Circuit decides that a warrant is necessary for the police to obtain such information.

December 23, 2009

Prosecutorial Misconduct — Federal Criminal Stock-Option Backdating Cases

by Kish Law

Prosecutions against executives accused of fraud in connection with backdating stock options have been plagued by prosecutorial misconduct. In August, the Ninth Circuit reversed the conviction of Gregory Reyes, former CEO of Brocade Communication Systems, due to prosecutorial misconduct. Last week, Judge Carney of the Central District of California dismissed charges against former Broadcom executives with prejudice, entering a judgment of acquittal for one.

Stock-option backdating is a practice in which an employer grants stock options to an employee, retroactively dated to increase its value. Backdating itself is not illegal, but it must be properly disclosed in financial records and filings with the SEC. This article, published at the beginning of the backdating scandal in 2006, explains the history and controversy of backdating options. The SEC began charging corporations and executives in enforcement actions relating to backdating in significant numbers in 2006, and criminal charges have resulted in a few cases. The SEC has continued to bring enforcement actions against corporations and executives for secret backdating of options.

US v. Reyes was the first, and most high-profile, of the criminal cases. Reyes’ defense was that, although he had signed off on backdated options, he had relied on Brocade’s finance department to properly account for the backdated options in the corporate books and was not responsible for false records. The government put up a witness from the finance department who testified that she and other employees in the department did not know about the backdating. However, higher-up finance department employees had told the FBI that they did know about the backdating, but those witnesses did not testify because they were subject to possible criminal prosecution and had been targets of SEC civil suits. In the prosecutor’s closing argument, he told the jury that “finance did not know anything” in direct contravention of the statements given to the FBI. The Ninth Circuit stressed the special duty of federal prosecutors not to impede the truth and remanded the case for a new trial, which is scheduled for February.

December 17, 2009

Supreme Court Update: Honest Services Fraud Cases

by Kish Law

Last Tuesday, the United States Supreme Court heard oral arguments in Black v. U.S. and Weyhrauch v. U.S., two of the three federal honest services fraud cases currently before the Court. On Friday, lawyers for Jeffrey Skilling submitted their brief in the third, Skilling v. U.S. This Monday, the Court set oral arguments for Skilling for March 1, 2010, at least three weeks before it would normally be heard. We have previously discussed these cases here, here, here, and here.

Background

For many years, federal prosecutors successfully argued that the mail fraud and wire fraud laws covered schemes to defraud the people of the “intangible right” to have affairs conducted honestly. Now referred to as “pre-McNally caselaw” this body of law was not uniform; the circuits disagreed on exactly what conduct constituted the illegal conduct at the boundaries of the law. In McNally v. U.S. in 1987, the Supreme Court held:

December 9, 2009

Ben Kuehne Celebrates Dismissal with a Party and You Are Invited!

by Kish Law

Recently we have been following several federal criminal cases involving the payment of fees to lawyers. Another one of those cases was finally laid to rest the day before Thanksgiving, when the United States moved to dismiss its indictment in U.S. v. Velez, involving Ben Kuehne, a highly regarded Florida criminal defense attorney. Mr. Kuehne has extended an invitation “far and wide” to a party tomorrow, Thursday, December 10, 2009, in Miami, Florida to help him celebrate the dismissal.

To review, the following cases dealing with fees to criminal defense attorneys have been decided in the past few months:

In U.S. v. Kaley, a wife and husband were each indicted with conspiracy, transportation of stolen property, obstruction of justice, and money laundering. The indictment included a criminal forfeiture count and the government obtained an injunction against the Kaleys encumbering the property listed in the forfeiture count. This August, the Eleventh Circuit held that under this circuit’s precedent, “a defendant whose assets are restrained pursuant to a criminal forfeiture charge in an indictment, rendering him unable to afford counsel of choice, is entitled to a pre-trial hearing only if the balancing test enunciated in Barker v. Wingo is satisfied.” The Court further held that the District Court had not correctly applied the balancing test in the Kaleys’ case and reversed, requiring the district court to re-weigh the factors and determine whether the Kaleys may have a pre-trial hearing on the matter. We discussed the case in this post.