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Articles Posted in Federal criminal defense

I have been a lawyer handling federal criminal defense for almost 40 years, mostly here in Atlanta, but in other parts of the United States when my cases take me there.  I keep tabs on trends in federal law enforcement, because it’s part of may job to do so.  As part of my regular reading, I came across this article about the likely increase in federal fraud investigations and prosecutions.

Readers (you three know who you are) recognize this is a somewhat regular topic I write about, the changing trends in federal criminal enforcement.  For many years, the Feds could not take their eyes off drug crimes.  Then came “illegal” aliens.  Then it was “terrorism.”   Now, after we opened the Federal Treasury for what seems to be much-needed pandemic-assistance, the federal law enforcement agencies are going after individuals who possibly committed fraud to get some of this money.

Astute readers of the previous paragraph will note that I never mentioned the words “corporation,” “companies,” or “businesses.”  That is because the history of the past four decades of federal law enforcement clearly demonstrates that the Feds prefer targeting individuals, and let the bigger players get off with little pain.  Sure, we occasionally see a big federal criminal case against a company, but this is the rare exception.  Instead, we seem to prefer going after the poorest and weakest, make lots of cases and act as if we are doing something about a societal problem.  The author  Matt Taibbi has written extensively about this trend, I recommend his work.

For you readers you here in Atlanta, those in Macon, Gainesville, Savannah, Athens, and Valdosta in Georgia, and others around the country who know I handle federal criminal cases just about everywhere, this is a post about the sometimes dreaded and often misunderstood “sentencing hearing” in federal criminal cases.  I am working on a few this afternoon, and wanted to discuss four pitfalls, and some tips, to make the process go more smoothly for the client and the attorney.

A Judge’s clerk will set the date for the sentencing hearing when the client pleads guilty, or in the unfortunate situation where the clerk reads the dreaded one-word jury verdict (“guilty” instead of the happier sounds of the two-word “not guilty”).  This is generally 2-3 months down the road.  Pitfall Number One: remind the client that he or she must still be on their best behavior, no matter how down or depressed is the client after pleading or being found guilty.  The key is to arrive at sentencing with a life that is worth living, so the attorney has a story to tell and why the sentence should be the shortest interruption possible for that client’s life.

Next comes the interview with the U.S. Probation Officer (the “PO”) who has the task of researching and then writing the Presentence Investigation Report (the “PSR” in our lingo).  Pitfall Number Two: please, please, please,  I never again want to hear about an attorney who lets his or her client attend this interview alone.  Tip: experienced federal criminal defense attorneys have been through dozens (or if the lawyer has done this as long as me, several hundred) of these interviews.  Experienced federal criminal defense attorneys know what to expect, and we spend a significant amount of time prepping the client to avoid mistakes when communicating with the PO.  The biggest problem the client can make is to lie when speaking with the PO, so prep to avoid any of that.

Well readers, 2020 is coming to a close for this lawyer who specializes in defending against federal criminal investigations and prosecutions in Atlanta, down in Savannah, over in Augusta, the remainder of Georgia, and anywhere else in the country the my clients need for me to go.   As we ponder this difficult year, I am thankful and grateful for the cases we resolved this past year that led to positive results for some of our clients.

In January our work filing and pressing a Motion to Suppress led to the complete dismissal of all charges against our client.

Relying on the tips for using pretrial evidentiary hearings as a tool, we got a client’s case resolved when the Judge imposed the lowest possible sentence.

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.

I finished a federal criminal case in Atlanta recently.  My clients were very happy with the outcome.  Helping people is one of the reasons I still get excited about my work, even in my 36th year of handling such matters.  I mention this recent case because it has features we often see in such matters, and teaches lessons for both prospective clients and federal criminal defense attorneys, whether in Georgia or the rest of the country.

The clients are a husband and wife who have a small child together.  They are immigrants to the US, but are now citizens.  English is not their native language, as shown in the very nice statement the husband was willing to publish about their experience with me:  “I am grateful that we were able to retain Mr. Kish to represent my wife through an online research. We were panic before we met Mr. Kish. As a professional, intelligent lawyer, Mr. Paul Kish also provides outstanding customer service. Mr. Kish treats his client with respect and care. A HUGE Thank You here, Mr. Kish saved our family and got our life back on the right track.”

The wife was arrested in a blaze of publicity.  Turns out that the government made several incorrect assumptions when arresting this relatively guileless woman.  Over time, we were able to convince them they were wrong on several major matters.  We got all felony charges dropped, and agreed to a plea to a misdemeanor crime that does not require proof that the wife acted with criminal intent. Oh yes, we also agreed she would have to pay a whopping $632 fine. What started out as a big deal for the prosecution ended with a whimper when the Judge imposed a total of 1-year probation for the misdemeanor violation.

Even though the pandemic has slowed the federal courts here in Atlanta and throughout Georgia and the rest of the country, federal criminal investigations continue apace.  Those of you bored enough at home to spend time on this blog recognize that as a criminal defense lawyer specializing in federal criminal cases, I post on various aspects of this kind of work, the people involved, and various tips and tricks I’ve encountered over my 37 years doing this kind of work.  Today’s topic: the “reverse proffer.”

First let’s discuss the “proffer.”  I tell clients that the proffer is kind of like when you go car shopping and take one of the vehicles out for a test drive.  The dealership is not obligated to sell, you are not obligated to purchase, each side kind of wants to see how the situation might look if it all works out.  In a proffer, the person under investigation goes in (with his or her attorney, PLEASE!).  The prosecutor and agents ask questions, but the person’s answers are basically off-limits if the person is later prosecuted, with several major exceptions that we have discussed on other occasions. The prosecutor and agents want to hear the person’s answers, to see if they want to work out some kind of “deal” in return for the person’s information or possible testimony.

A “reverse proffer” is when the prosecutor feels that he or she might be able to convince the person under investigation that the Government has a very strong case. The prosecutor brings the individual under investigation and their counsel to the office (or everybody gets on a video call) and the prosecutor and agents lay out what they feel are the strongest parts of the Government’s potential criminal case. Such a prosecutor does this in the hopes that the person under investigation will realize that the game is over, and the person will tell his or her lawyer to negotiate plea agreement, thus saving the prosecutor the work of actually making a case.

Yet another gorgeous Spring morning in Atlanta where I am handling federal criminal defense matters from my home “office”.  I am working on various situations related to alleged fraud concerning the Coronavirus pandemic. This got me to thinking of lessons I learned (and some re-learned) when it comes to dealing with the “feds.”  Some of these current matters on which I am working are merely “investigations“, while a few others are actual ongoing federal criminal cases.  Some of the lessons I’ll discuss below are common to each type of situation.

First, it helps when the federal criminal defense lawyer has a good reputation.  There are many federal prosecutors around the country, and they simply cannot know all attorneys who handle federal criminal cases.  However, the group of lawyers who regularly handle such cases, whether prosecutors or defense lawyers, is relatively small.  Lots of great criminal defense practitioners never venture out of the state court systems, which means that the “federal bar” is a much smaller group.  Because the attorneys on each side is a relatively small number, it is very easy to find out information about a prospective opposing lawyer, even if the attorney might not know the person from earlier cases.  A good reputation is valuable, and a bad one very hard to shake. Having that good reputation does not get a better “deal”, but it does assure the federal prosecutors that the defense lawyer at least knows what he or she is doing.  And, this makes the early steps easier, for a known quantity is easier to trust. Continue reading

It has been the usual gorgeous Spring weather here in Atlanta, where I now do most of my work from home while representing clients facing federal criminal prosecutions and investigations.  Although I rarely venture into the office now, my firm has been able to keep up with all of our cases and maintain the work of helping our clients who face cases in federal courts throughout the country.  I have also learned (and remembered) a few lessons while in this new situation.

One lesson came from a case where I  represented a client who pled guilty to a federal economic crime.  We had one of the last “in-person” sentencing hearings in federal court just before all the courts closed down.   We convinced the Judge to impose a sentence well below what the prosecutor asked for, and well beneath the range suggested by my sometime nemesis, the Federal Sentencing Guidelines. The case reminded me that a better-than-expected result in a federal case where the client pleads guilty depends on many factors, but the lawyer needs to focus on two areas to achieve this.  First, the attorney needs to do whatever he or she can to maneuver the dreaded Guidelines into the best position possible under the circumstances.  Second, the lawyer then needs to get especially creative when trying to convince the Judge to impose a sentence below those same Guidelines.  In this particular case I had to juggle a series of areas to come up with a combination of reasons why the Judge should do what I was asking of her.  So, that recent lesson reminded me:  the lawyer’s work is far from over when the client decides to plead guilty, for that is often the point when the attorney can make the greatest impact and salvage the best result under the circumstances.

Another lesson I learned is that a “virtual meeting” is merely a substitute for an in-person consultation.  I have a new matter where my client and I have had many calls, but have not met fact-to-face because of the shutdown.  After many discussions, I came to realize that I had misunderstood a crucial detail.  It likely would have been cleared up much earlier if we would have been able to meet in person.  I am glad we figured out that particular miscommunication, but the lesson is obvious: it will be much easier to do my job properly after I can again meet clients in person.

I recently did a post about three “quirky” federal crimes I sometimes can use when trying to negotiate a “deal” for my clients facing a criminal case in federal court, often in Atlanta but many times in other parts of the country.  While these three are real crimes and sometimes are used to resolve a case, there are other federal crimes that are, to be blunt, stupid.

Some of these laws are found in the US Code.  Others are based on regulations issued by various federal department.  When combined with prosecutors who are rarely restrained by the courts, these laws may sound funny but actually represent potential dangers to all of us. Continue reading

It’s a rainy night in Georgia” crooned Brook Benton in the 1970 R&B classic, which is fitting on this rainy Monday during this rainiest time of the year here in soggy Atlanta, Georgia.  Although it’s very wet and ugly outside, here in my office I am pondering possibilities for resolving a certain federal criminal case in which my client wants me to negotiate the best “deal” he can get. Looking for a deal sometimes means we need to get creative, and this leads to my never-ending quest for quirky and oddball federal crimes that sometimes come in handy.  These strange federal crimes can be useful if they have a lower penalty than the one suggested by the prosecutor in the first place.  I will do another post some other time soon to lay out some of the really stupid federal crimes that are on the books.

However, considering my current matter, I am facing the fact that some federal crimes have mandatory penalty structures.  These make it especially hard to do my job of getting the lowest possible sentence for my client.  For example, even if I convince the Judge that my client is entitled to mercy, the Judge’s hands are tied and he or she cannot impose anything less than the mandatory minimum punishment.  As a result, I try to convince prosecutors to let my client plead guilty to a different, but related, crime which carries no mandatory minimum and a relatively low maximum punishment. Continue reading

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