Articles Posted in Federal criminal defense

I am an attorney who represents people being prosecuted for federal crimes; my office is here in Atlanta, Georgia but I handle matters in federal courts all around the United States.  Today I am working on two cases where we are fighting with the prosecution over the conditions under which my clients are release from custody while the case moves forward.  As many people know, being released is sometimes called being out “on bail” or “on bond.”  Being released means the person gets out of jail after an initial arrest and is allowed to live and work at home while still defending against the federal criminal case.

The current law on being out on bond stems from a 1984 Act which was part of a huge Crime Bill that year.  The part of the law regarding pretrial release was called the “Bail Reform Act of 1984.”  That law now allows a Judge to hold or “detain” a criminal Defendant with no bail at all if the Court determines that the person is either a “danger to the community” or a “risk of flight.”

In several of my current cases I got my client released on bond, but am still tussling with the prosecutors over some of the conditions imposed on my clients during their time out on bail.  This is somewhat common.  We get our client released at the beginning of the case by agreeing to some rather stringent and strict conditions.  As the case drags on we try to convince prosecutors (and the Court) that the harsh condition is no longer needed months and sometimes years after the person was originally released on bail.

I am an attorney who represents people being prosecuted for federal crimes; my office is here in Atlanta, Georgia but I handle matters in federal courts all around the United States.  Today I am working on two cases where we are fighting with the prosecution over the conditions under which my clients are release from custody while the case moves forward.  As many people know, being released is sometimes called being out “on bail” or “on bond.”  Being released means the person gets out of jail after an initial arrest and is allowed to live and work at home while still defending against the federal criminal case.

The current law on being out on bond stems from a 1984 Act which was part of a huge Crime Bill that year.  The part of the law regarding pretrial release was called the “Bail Reform Act of 1984.”  That law now allows a Judge to hold or “detain” a criminal Defendant with no bail at all if the Court determines that the person is either a “danger to the community” or a “risk of flight.”

In several of my current cases I got my client released on bond, but am still tussling with the prosecutors over some of the conditions imposed on my clients during their time out on bail.  This is somewhat common.  We get our client released at the beginning of the case by agreeing to some rather stringent and strict conditions.  As the case drags on we try to convince prosecutors (and the Court) that the harsh condition is no longer needed months and sometimes years after the person was originally released on bail.

OK Team, those six of you who read this, we are in the cold winter  months, the perfect time to prepare for a “proffer session” involving one of my clients who is facing a federal criminal prosecution.  Casual (and even those wearing formal wear) readers know I have posted about this subject several times, here, here, and yes, over here.

A “proffer” is when a criminal Defendant (or someone under investigation yet not currently charged) goes to see prosecutors and federal agents to give his or her version of what really happened in a case.  Often, the proffer is preceded by an “attorney proffer”, during which the person’s attorney gives prosecutors an outline of what his or her client will likely say during the later session when the accused person comes to the office to talk.  As I have written about before, these can be both valuable, and are simultaneously dangerous.

Today I met with a prosecutor ahead of the formal proffer.  This particular prosecutor truly wants to make this case move forward and resolve short of a trial or contested sentencing hearing.  Sensing that, I pushed a bit harder than I normally do, and essentially asked him to give me an outline of what the agents will ask of my client when I bring that person in for the formal proffer session.  It seemed to work.  By the end of the meeting I had more a less a roadmap of what they want my client to say (assuming it is the truth, of course) after which we should be on the road to resolve the matter more favorably to my client (and his family).

2022 is in the rear-view mirror, and 2023 lies ahead, and while I was so busy I did not blog for a while one goal for the New Year is to write more posts on one of my favorite topics: federal criminal investigations and prosecutions along with the job of being a federal criminal defense attorney (which I do all over the country even though my office is here in downtown Atlanta, Georgia).

You tainted regular readers know that I regularly discuss how federal criminal cases are creatures of politics and current events.  This year is no different.  Lawyers like myself still have lots of work based on investigations arising from the Government’s response to the COVID outbreaks. These are usually what are sometimes called “white collar” or “economic crime” matters.  The Payroll Protection Plan (“PPP) involved lots of fraud, what a shock when Congress allowed banks to shovel money out the doors with virtually no oversight and federal government backing if the loans went bad.  The same is true for the EIDL program (formally known as the Economic Injury Disaster Loan program).  Federal criminal investigations into these loan programs can be very dangerous for individuals or companies who come under the microscope of a federal agent looking at possible fraud.  I strongly recommend that you consult with an expert who has significant experience defending such cases.

Health care fraud investigations and prosecutions remain a staple of my work.  Any company or individual caught up in one of these situations needs to consult with and possibly hire a lawyer who has lots of experience in these very specialized matters.

Happy Monday from Atlanta, Georgia where I am working on some of my federal criminal cases.  I just finished communicating with one prosecutor, and the process made me think of some of the tips I’ve learned over the years on how federal criminal defense attorneys can improve their skills to better negotiate with federal prosecutors.

As is well known, the vast majority of cases or investigations end up without a trial.  That means much of the federal criminal defense lawyer’s time is devoted to talking with an Assistant United States Attorney (“AUSA”) in an effort to see if there is a way to resolve the client’s case more favorably.  However, the fact that most cases end up in a plea does not mean that the lawyer should always look to negotiate.  Instead, we need to simultaneously prepare to both fight and talk peace, a difficult balancing act.

This leads to negotiating Tip #1.  Sometimes the best negotiating tactic is to fight, fight, and fight some more.  Over the years I’ve noticed that even the best federal prosecutors get weary when the defense just keeps on coming at them with one issue or another. Every once in a while, this approach causes the AUSA to offer a better “deal” simply to stop the work of responding to the defense motions.  Now, this only works when the defense lawyer’s moves are well-founded, and not just some off-the-wall pleading or motion.  So, tip #1, work hard, sometimes it pays off for the client down the road.

Readers know that we handle federal criminal investigations and prosecutions from our office here in beautiful Atlanta, Georgia and all over the remainder of this state and throughout the country.  We currently are in federal cases in Vermont, Pennsylvania, Florida, North Carolina, Texas and Arkansas.  No matter where we go to help our clients, it is always worth trying to get the “final word.”

I have two matters on my desk this morning that exemplify this need to get the final word.  One is a post-conviction matter, the other concerns an upcoming sentencing hearing.

In the post-conviction case, we argue that my client’s previous attorney performed so poorly that the conviction should be over-turned because of the Sixth Amendment violation caused by “ineffective e assistance of counsel.”  Both sides filed briefs after the court hearing, and because we went first I am thinking about filing a “reply brief.”  I like these reply  briefs, for they give me the chance to plow through the prosecutor’s arguments and they try to dissect and destroy them, one at a time.

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.

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