Articles Posted in Eleventh Circuit Court of Appeals

We do criminal cases here, that’s just about all we do, whether in federal court in Georgia, Alabama, Florida or other parts of the country, but also throughout the State of Georgia. Many times, clients feel that a particular judge will not be fair, and they want us to talk about getting rid of that judge. To so so, a lawyer needs to file a motion for something we call “recusal”. However, when any lawyer is convinced that filing such a motion is appropriate, he or she needs to have pretty good grounds to do so, because you are basically saying that the judge on your case is unfair. If that same judge denies the recusal motion, you are stuck with a judge who you’ve just challenged.

This same process played out in an opinion published earlier today by the U.S. Court of Appeals for the Eleventh Circuit, which has it headquarters here in Atlanta just down the street from our offices. The case stems from the famous bombing that killed Robert Vance, who was an Eleventh Circuit judge at the time he was murdered.
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Criminal cases in federal court, as well as the many state court matters we handle, often are resolved with what many people refer to as a “plea agreement.” Basically, the prosecutor gives the Defendant something in return for a plea of guilty, such as a recommendation for a lower sentence, or an agreement to not bring further charges, or a decision to not charge the Defendant’s company or spouse with other crimes. Just a few hours ago, the United States Court of Appeals here in Atlanta issued an opinion in a federal criminal case which demonstrates, yet again, how important it is to have a defense lawyer who knows the ins and outs of this process. The case is U.S. v. Robertson, and can be found here.

Mr. Robertson seemed to have a life of crime, and was suspected of some robberies. He decided to shorten his sentence, so he agreed to testify against a co-Defendant in order to get a shorter sentence. He claimed that the co-Defendant forced Robertson to do the robbery. The federal prosecutor (who later became a federal Magistrate Judge) got some taped calls demonstrating that Robertson and the co-Defendant were friends, and that there was no “forced” robbery. The prosecutor then retracted the offer of a lower sentence. Robertson and his lawyer then said they had information on two unsolved murders. Here is where it gets murky.
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One of the white collar federal criminal cases me and my partner Carl Lietz have handled here in Atlanta involved a very successful local radiologist. The doctor came to see us after being represented by some other very accomplished attorneys. We took on his case, fought very hard, yet lost the trial in the summer of 2011. The doctor went to prison, but we kept fighting by asking the Court of Appeals to reverse his convictions. This past Friday morning, our efforts paid off, in that the Court of Appeals reversed each and every one of the 35 charges against the doctor. Here is a short version of the story, which should be a lesson for all lawyers and clients on how important it is to make long-range plans while in the middle of a hard-fought trial process.

The government’s basic allegation was that our client submitted tens of thousands of radiology “reports”, without himself or any other doctor actually looking at the x-ray or other image that was the subject of the report. Some staff members said it looked like he was doing that. Furthermore, the computer system logs only showed him accessing the associated images about 5000 times out or the 72,000 reports issued over his signature. The government’s case was made even better when they demonstrated that some reports were issued while he was on vacation or even on international airline flights.
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Federal criminal trials almost always involve the question of “knowledge”, meaning that the prosecution is obligated to prove beyond a reasonable doubt that the Defendant “knew” about some fact. In US v. Vana Haile, the Eleventh Circuit here in Atlanta showed how the issue of “knowledge” can change, depending on the facts and the specific crime involved.

Mr. Vana Haile and another man named Beckford were charged with and convicted of conspiracy and attempt to possess with intent to distribute marijuana and cocaine and knowing possession of several firearms in conjunction with their drug trafficking offenses. One of the firearms crimes alleged that the Defendants possessed a machine gun. The government also alleged that a different crime was violated because one of the weapons had an obliterated serial number.
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Our beloved Eleventh Circuit Court of Appeals, just down the street here in Atlanta, recently refused to join the ever-growing chorus of other courts that permit expert witness testimony to illuminate the real shortcomings in eyewitness identifications. A 30-year old ruling in the 11th Circuit said that the Court of Appeals can never overrule a trial judge who won’t allow a party to bring in an expert to explain to jurors the many problems with witness identification testimony. A criminal defendant recently asked the entire court to overturn this old decision, but the judges refused to take the case. Judge Rosemary Barkett issued a scathing dissent, which is worth reading. The case is US v. Owens, and can be found here

Judge Barkett first notes her amazement that the 11th Circuit wouldn’t join the majority of courts that allow such testimony. She sets out that all other federal courts of appeal, and 42 out of 50 states permit such testimony.

The many problems with eyewitness identification testimony, and recent social science research in this area, both call out for a new view, according to Judge Barkett. In the 30 years since the 11th Circuit outlawed such expert testimony, there have been over 2000 studies concerning the unreliability of eyewitness identification testimony. Judge Barkett quoted from a decision of another federal appellate court demonstrating that “the conclusions of the psychological studies are largely counter-intuitive, and serve to ‘explode common myths about an individual’s capacity for perception.'”

The Fifth Amendment to the U.S. Constitution includes the well-known protection against double jeopardy. Some lawyers and lay people might not realize that there is sort of a “little brother” to the protection against double jeopardy, which is called the rule of “collateral estoppel.” The United States Court of Appeals for the Eleventh Circuit, down the street from us here in Atlanta, recently used the “little brother” to reverse a criminal conviction from the Middle District of Florida. The case is United States v. Valdiviez-Garza.

Double jeopardy protects against multiple prosecutions for the same offense. Collateral estoppel, on the other hand, teaches that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. In other words, if there was an earlier criminal case that the Defendant won, and if the jury in that previous case “necessarily determined” a certain fact in the Defendant’s favor, then there cannot be a later case against that same Defendant if the subsequent case requirs proof of that same fact. Therefore, the big issue in this context almost always is whether the earlier trial involved a fact or issue that was “necessarily determined” in the defendant’s favor.

In Valdiviez-Garza, he had previously been charged with illegally re-entering the U.S. after a previous deportation. He won that case by arguing that he was not an illegal alien because he obtained citizenship through his father, who was also a citizen. Several years later, he was prosecuted again for illegally entering the country, and this later case also required the prosecutor to prove he was not a citizen. However, he got convicted the second go-round. He appealed to the Eleventh Circuit, and they agreed that he should have never faced the second prosecution because of the collateral estoppel rule. The only issue in his first trial was whether he was an alien, and he won. There never should have been a second prosecution, because the issue of his alienage had already been determined in the earlier trial.

The United States Court of Appeals for the Eleventh Circuit, siting here in Atlanta, reversed a federal tax conviction today because the judge impermissibly participated in plea discussions with the Defendant. The case is United States v. Davila.

The Federal Rules of Criminal Procedure make it crystal clear that while the prosecutor and defense attorney can negotiate toward a plea agreement, the Judge may not in any way participate in these discussions. There are three main reasons for this prohibition: to avoid coercing a defendant into pleading guilty, to protect the integrity of the judicial process, and to preserve the Judge’s impartiality after the negotiations are completed. The Federal Rules are quite different than what takes place in many State courts, where Judges regularly get involved in the plea discussions.

The Eleventh Circuit also has a rule holding that judicial participation in plea discussions amounts to “plain error.” There are no exceptions to this rule, and a Defendant does not have to object or even show any prejudice he suffered from the judge’s improper intrusion into the plea discussions. This is one of the few areas where the appeals court here in Atlanta has a rule that is more friendly to criminal defendants than other courts around the country.

When we handle federal criminal cases here in Atlanta, Georgia and in other parts of the country, our clients often face criminal penalties along with possible forfeiture of their property. Lawyers often forget how important these financial penalties can be. A recent case from the United States Court of Appeals for the Eleventh Circuit (located several blocks from our office in Atlanta) shows the importance of understanding the immense financial penalties that can be imposed in a federal criminal matter. The case is United States v. Chaplin’s.

Two brothers (we will call them #1 and #2) owned separate jewelry stores here in Atlanta. Brother #1 was caught in an undercover sting operation selling $22,000 in jewelry to a person he thought was a drug dealer. He agreed to accept more than $10,000 in cash from the person he thought was a drug dealer, and also agreed to not file the IRS forms that are required in this situation. Brother #1 was charged with and convicted of money laundering.

The government also charged the corporation that owned Brother #2’s store with similar crimes. This was one of those relatively rare situations where the prosecutors went after a corporate entity. The prosecutors got convictions against the corporation that owned #2’s store based on the fact that some of Brother#1’s dealings were done in the store owned by #2.

Our local Federal Court of Appeals, sitting just down the street from our offices here in Atlanta, yesterday reversed a federal criminal conviction for obstruction of justice. The prosecutors contended that the defendant tried to obstruct a forfeiture matter. The Eleventh Circuit joined other courts and relied on some earlier Supreme Court cases by holding that there cannot be a conviction in this context unless there is evidence that the defendant was aware of the forfeiture proceeding he obstructed. The case is United States v. Friske.

Mr. Friske lives in Wisconsin, but his friend (Erickson) got busted in Florida for drug crimes. Law enforcement listened to calls Erickson made from jail to Friske where he asked the latter to do a “repair job” and remove “three things” buried near Erickson’s pool. Agents got there before Friske, and found $375,000 buried in that location. Later, they observed Friske coming away from the pool area, covered in dirt. Friske made some baloney statements to the police, and later conceded he was just “trying to help a friend.”

The government indicted Friske for attempting to obstruct an official proceeding by attempting to hide and dispose of assets involved in a forfeiture case, in violation of 18 U.S.C. §1512(c)(2). The Eleventh Circuit joined other appellate courts by holding there is a “nexus” requirement in this statute which requires a connection between the obstructive conduct and the proceeding in question. Stated another way, “if the defendant lacks the knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.”

Just a few hours ago the 11th Circuit Court of Appeals sitting here in Atlanta affirmed most, but not all, of the convictions in the long-running saga of US v. Don Siegelman and Richard Scrushy.

Don Siegelman was the Governor of Alabama. Richard Scrushy was the founder and Chief Executive Officer of HealthSouth. The case stemmed from allegations that Governor Siegelman placed Scrushy and others on a State Board in return for a $500,000 payment. The government charged them with a series of crimes relating to alleged public corruption. Specifically, Siegelman and Scrushy were alleged to have violated 18 U.S.C. §666(a)(1)(B), the law that prohibits bribery involving organizations that receive federal funds. The government also charged the defendants with “honest services” mail fraud, and conspiracy to commit same. Finally, Governor Siegelman was charged with obstruction of justice.

While the case was on appeal, the Supreme Court issued the well-known decision in US v. Skilling, a ruling that restricts the scope of the federal “honest services” branch of mail and wire fraud. Each defendant contended that Skilling changed the landscape, and that their convictions must be reversed. Likewise after the verdicts, the defendants uncovered what appeared to be troubling evidence of juror misconduct and exposure to extrajudicial materials.