Articles Posted in Federal criminal defense

I am about to go to federal court this afternoon here in Atlanta for a criminal case involving sex over the internet (sometimes referred to by the over-encompassing term “child pornography”).  Some lawyers shy away from these cases. I do not.  These cases are often disturbing and emotionally draining, but I always welcome the opportunity to help a person and his family through one of these exceedingly difficult matters.  However, over the years I’ve discovered a number of “secrets” in this type of federal criminal case.

One secret is that a vast number of people who commit sex crimes over the internet lead basically “normal” lives.  Many of my clients are happily married men with grown children.  Their families all report that the client was an exemplary father, never did anything remotely improper with the kids, their friends or with their spouse.  But, these men all seem to have some sort of mid-life crisis where their existence goes off the rails.

A second “secret” in these troubling cases is that many of my clients seems almost compelled to commit their crimes. We’ve all seen the news stories about the guy who comes to a sting operation and says to the undercover camera, “I sure hope you aren’t a cop.”  The clients often recognize in advance that they are engaging in illegal conduct, that they likely will get caught, yet they still keep going toward the “bait.” It is almost as if they are living a double life, with the “normal” rational part of their brain telling them that this is a crime and they could get caught, but the other part is driven forward to engage in the illegal conduct by some very deep part of their consciousness.  After they are arrested, many clients have commented that it seems as if it was another person doing the crime. Continue reading

The media and “the Internets” are all agog over yesterday’s filing in the Mueller Investigation by which the Office of Special Counsel said that one of its cooperating witnesses in that federal criminal case, former General and National Security Advisor Michael Flynn, has provided “substantial assistance”.  I’ve been handling federal criminal cases for over 35 years, and have been on the “giving” and “receiving”end of substantial assistance.  Despite the furor in the media, I wanted to talk a little about how these things work in the real world.

For starters, the idea that those who cooperate with prosecutors get a better “deal” is not exactly news. This practice of trading info for jail time is probably as old as crimes and criminal justice systems.  However, the absolutely horrible 1984 Comprehensive Crime Control Act, inter alia, wrote this practice into federal criminal law.  For the first time, this law created specific statutes, Guidelines and Rules of Procedure that encapsulated the practice of rewarding someone for “snitching.” Continue reading

Here is a photo of one of the bookshelves of my Atlanta officer where I handle lots of federal criminal cases. IMG_0658  If you look closely you will see row after row of Federal Sentencing Guidelines Manuals, stretching from the current version back to the slim original 1987 Guidelines.  I just got done ordering the newest version.  Each year, like clockwork, the United States Sentencing Commission issues a new and amended version of the Guidelines.  Each year, this annual version comes into effect on November 1.  Just like the New Year celebrations make people take stock and consider their lives, the yearly issue of the Sentencing Guidelines caused me to reflect on this three-decade experiment in using “Guidelines” to impose a federal criminal sentence. I will write several posts about the Guidelines, their changes, and how all of this impacts lawyers and clients involved in a federal criminal case.

Let’s start by discussing the increased complexity of the Sentencing Guidelines.  My original 1987 version was a slim 557-paged tome, while the most recent version is a two-volume set that exceeds 2100 pages total.  One reason that the materials are more lengthy is that every year, the Sentencing Commission also publishes all the earlier amendments as part of the current year’s issue.

Many lawyers do not appreciate the importance of having all of the earlier amendments.   I like to keep all of my old books just so that I can trace back the lineage of the current Guideline and its predecessors.  Sometimes, researching the Guidelines is a bit of an archeological expedition, with the attorney peeling back layers of history in order to figure out the reasoning behind the current version of a particular rule.

Well, it’s Monday, and the phone is ringing (thank goodness) with calls from people who over the weekend decided that they or one of their loved ones REALLY needs a good federal criminal defense lawyer.  I am always glad to talk with people about actual or potential federal criminal cases, whether the matter is here in Atlanta, up in North Carolina (where the first caller’s case is from), New Hampshire (this morning’s second call) or somewhere else in the country where I sometimes go to help my clients.  When I had a few moments later today, I decided to put down some thoughts about this process and questions that people should ask lawyers (and themselves) when trying to decide whether to hire a particular federal criminal defense lawyer.

For starters, the first is not always the best.  Just because the first lawyer sounds good (or actually returned your call), that does not mean this is the right attorney for your case.  Also, clients need to remember that lawyers are like many doctors, we sometimes specialize.  Potential clients need to remember that just because an attorney calls him or herself a “criminal defense attorney”, that does not mean that this lawyer is the best fit for your case.  As I’ve written and spoken about on numerous occasions, there are many excellent attorneys who work in the State Court systems but who rarely take federal criminal matters.  There are many reasons for this, but potential clients facing a federal case likely are better served with someone who does federal cases as the majority of his or her work. Continue reading

In some of my federal criminal cases, my client decides to plead guilty in order to reduce his or her exposure to a harsher sentence.  This happens in cases all around the country, Atlanta to Anchorage, no surprise.  However, in the past 36 years I’ve come across some problems and pitfalls that can make a guilty plea actually worse than fighting the charge.

In the federal criminal justice system, we all know about the Sentencing Guidelines.  This is a point-based system that leads to a range of punishments.  Most issues add points to the calculation, but pleading guilty can lead to a 2 or 3-point reduction for “acceptance of responsibility.”  One pitfall is when the Defendant does or does something that leads the Judge to feel that the Defendant has not really accepted responsibility, even though the person plead guilty to the crime.  Such a client loses on both ends, they still get a longer sentence and lose their right to fight the case.  That is why it is so important to go over in detail everything that happens leading up to, during, and after the guilty plea proceeding.  The lawyer and the client need to be on the same page and script, so to speak.  While I never want to tell my clients exactly what to say, it is important that they know what will happen so I can advise them how to answer certain questions. Continue reading

I’ve made my living the past three decades plus representing people charged in federal criminal cases, mostly here in Atlanta.  The news the past couple of days has been dominated by three other federal criminal matters, the case in Virginia against Paul Manafort (as I’ve mentioned previously, this man is in an unfortunate situation but has a great first name), the guilty plea yesterday by attorney Michael Cohen, and the sentencing hearing a few hours ago where the Judge imposed 63 months on the unfortunately named Reality Winner for releasing secret information to a news organization.

The internet has gone wild over the jury trial and partial verdict involving Mr. Manafort, and anyone who has wasted time reading this blog knows about federal sentencing hearings and trials, and likely understands that Manafort’s sentence can be calculated as if he was found guilty of all the charges.  That’s right troops, the hung jury on 10 of the crimes makes no difference because under the foolish experiment called the Sentencing Guidelines the Judge can sentence Paul based on conduct that he was even found not guilty of committing!  I remember a case I handled around 20 years ago where I won most of the charges but the prosecutor, referring to the rule authorizing use of acquitted conduct, asked for a much longer sentence.  The judge agreed with me, pointing out that Mr. Kish “cheated them fair and square at trial.” That Judge always made me laugh, at least until he ruled against me or gave my client a lengthy sentence.  Continue reading

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 have tried around 100 federal criminal cases here in Atlanta over my 35 year career. A recent report from the National Association of Criminal Defense Lawyers (“NACDL”) demonstrates that trials in federal criminal cases are almost “extinct.”  The report shows that a mere 3% of Defendants take their cases to trial, mostly because of the mismatch in bargaining position between the defense and the prosecution.   Some people want to react to this by saying” Why have trials for guilty people anyway?” For those who might have such a reaction, I can only hope that it is never you or your family who finds themselves facing a federal investigation or prosecution.  Furthermore, if we think it through a little bit, we will see that letting the prosecution have excess power, resulting in virtually no trials, is almost like the situation that led to the enactment of the Endangered Species Act. 

For starters, everybody is entitled to a trial on criminal charges, it says so right in the Sixth Amendment.  However, the almost unmatched power of federal prosecutors brought about by various statutes enacted by Congress, along with the draconian Sentencing Guidelines, means that even innocent people are now pleading guilty.  The report sets out what I already know, those who plead guilty get far less punishment.  The report notes two seemingly equal Defendants, one who “flipped” and cooperated against the other who went to trial.  You guessed it, the flipper gets a couple of years, the Defendant who had the gall to assert his Constitutional right to trial got 45 years! My own recent experience is the same, my client got ten years while the far more culpable co-Defendant who pled guilty and testified got a mere 24 months!

The NACDL report concluded that guilty pleas have replaced trials because anyone who exercises his or her right to take the case to a jury is facing “exponentially higher sentences.” Defense lawyers and prosecutors now spend most of their time “negotiating”.  Judges rarely preside over trials, and therefore have no or very little experience when such a case comes before them.  However, when just about every case ends after a long negotiation instead of a public trial, we all lose.  The public no longer sees the facts of a case.  Prosecutors no longer have to prove their allegations beyond a reasonable doubt.  And, most importantly, some clearly innocent people will “take a plea” instead of taking the chance that their life will be ruined by an excessively long sentence.  Like the Endangered Species Act, we need a new law to prevent the extinction of the right to trial.

Casual readers (those in Bermuda shorts included) know that I am a criminal defense lawyer in Atlanta who specializes in federal cases.  Some readers even know about “discovery” in a federal criminal case.  These readers know about Rule 16 from the Federal Rules of Criminal Procedure and the constitutional principles underlying the long-standing “Brady rule“.  I am currently trying to plow through some discovery materials in some relatively new federal criminal cases, and for those readers who have had to do this on the defense side of a case, you know how maddening this can be. It’s enough to make you want to pull your hair out. man-screaming-and-pulling-his-hair-stock-images_csp8441795

First, the maddening aspects of the rules themselves.  By the language of the rules, the only “evidence” that the prosecutor has to hand over to the defense prior to trial in a federal case is limited to documents and materials that the government intends to use at trial, the results of any expert testing, and any statement made by the defendant to a known law enforcement official. The Brady rule also says they have to turn over any information tending to show that the Defendant is not guilty, but they actually are not required to turn it over prior to trial, and only have to reveal this exculpatory information to the defense so that the attorney at least has some time to make use of the evidence.  Note, this limited list of information does NOT include the names or statements by witnesses.  The utterly absurd Jencks Act (a vestige of the 1950’s!) says that the prosecutor only needs to provide a witness’s prior statement to the defense AFTER the witness has finished his government testimony in a trial.  Talk about trial by ambush.

The rules and constitutional principles that impact discovery, along with the data-driven explosion of information, have led most federal prosecutors to basically ignore the old days and provide lots of information up front to the defense lawyer.  Nowadays they even give us witness names and their statements, figuring we are going to find out anyway so why play “hide the ball.”   From the old days, when we basically learned very little, we have come to the modern era, where prosecutors dump so much data on the defense that a single attorney is disadvantaged, unless he or she is very technologically capable and assisted by highly skilled support staff (like the wonderful folks with whom I work).

My criminal defense office is in Atlanta, but as a lawyer my clients are from various parts around the country.  Readers of this blog know that the majority of my clients face federal criminal charges.  One long-standing client recently died, it was very sad, he was in his late 50’s and is survived by his wife of three decades and seriously disabled child.  I was very troubled by this man’s case, for I felt he did not commit a crime.  However, the prosecutors threatened to go after his wife, leading this client to decide to plead guilty to protect his spouse.  The Judge imposed a 6-month sentence and ordered my client to pay a substantial “forfeiture”.  The client passed away recently, leading me to ponder the criminal defense lawyer’s duties when his or her client dies and some parts of a case are still unresolved.

For many years, I have known about a somewhat quirky rule which says that death can end a criminal case. The theory goes like this: if a criminal Defendant is convicted, that conviction is not “final” until his or her appeal rights are over.  If the Defendant dies while the case is on appeal, the courts are supposed to dismiss all the charges “ab initio,” which is fancy Latin for “from the beginning.”  The theory is that the case might have been reversed by the higher courts, and it is unfair to saddle the Defendant’s family with a conviction or monetary payment without the chance to take full advantage of appellate rights.  I’ve had this happen a few times, before, and have filed one of the strangest documents any lawyer gets to file: “Defendant’s Suggestion of Death.”  I simply do not understand why we always call it merely a “suggestion” of death, for the condition seems final enough to flat-out say  “my client died, dismiss his case.”  Anyway, I’ve had a couple of cases dismissed because of my client’s untimely death.

However, my client’s death recently got me thinking so I did some additional research.  Many of my readers know that at the sentencing hearing there are several different types of “punishment” that can be imposed in a federal criminal case.  Jail time is the most obvious, but a Judge can also impose supervised release (which comes after any imprisonment and can result in more time in custody if the person violates the conditions of release), a fine (money paid to the U.S. Treasury), restitution (which is paid back to “victims”, but the Defendant makes the payment to the Clerk’s office), and forfeiture (which is a legal theory saying that the property or proceeds from a crime belong to the government from the moment the crime happens and the Defendant needs to give them up).  I started pondering the impact of a Defendant’s death on all of  aspects of a sentence, including restitution, fines and forfeiture. Amazingly, the answers turn on when the Defendant dies, and where.