Articles Posted in Federal criminal defense

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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.

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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.

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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).

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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.

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I just finished the Atlanta federal criminal securities fraud case that I have been working on for the past three and a half years.  After a two-day sentencing hearing, my client was given a sentence of 10 years in custody, along with being required to pay back around $1.4 million dollars to some investors.

The case generated some publicity.  Some readers know how I like to pontificate about how the press more and more simply repeat any “press release” issued by some prosecutor’s office.  For example, compare the prosecution’s press release about this case with the story in the local paper, the Atlanta Journal Constitution (usually called “the AJC” by folks hereabouts).  Note that the AJC simply rephrases and rehashes the press release with absolutely no mention of anything from the defense side.  Next, compare the AJC’s story with two other stories in publications devoted to the legal industry, Law.com and Law360.  Each of these latter stories give a far more nuanced and complete story from the sentencing hearing, and include portions of the defense arguments or statements by me.

I’ve already written about how cases with some publicity add an additional level of stress for the criminal defense lawyer.  The other day I posted about the difficulty of doing a federal criminal sentencing hearing when the Probation Officer seems to recommend every potentially applicable sentencing enhancement to the federal Sentencing Guidelines, and how hard it is to get a “good” sentence when the lawyer spends so much energy showing the Judge the probation officer’s errors that the Judge is kind of tired of ruling for the defense when it comes to the final sentence.  Instead of those topics, today, I want to briefly talk about long-term relationships in criminal cases.

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Sentencing Hearings are one of the things I handle often as a criminal defense lawyer here in Atlanta and other parts of the country.  I also write occasionally about how the press and criminal cases intersect, and the increasing abdication by the press when they simply re-print whatever “press release” gets issued by some prosecutor’s office.   Today I just finished a two day sentencing hearing in federal court.  There likely will be some press coverage about the case, but I will leave that for another day.  Instead, I want to talk more specifically about how sentencing hearings operate in theory, and in practice.

People who are familiar with the kind of work that I do know that a sentencing hearing needs to happen any time someone is convicted of a federal crime (whether that conviction comes after a trial or after a plea of guilty).  The first thing that happens is that the person gets interviewed by a United States Probation Officer, who creates a lengthy document called the “Presentence Investigation Report” or “the PSR.”   The PSR generally has two parts.  One is sort of a miniature biography of the Defendant, while the other portion is where the Probation Officer makes recommendations about how to calculate the Sentencing Guidelines.  These Guidelines result in a “range” of months for a particular case.  This range is the starting point, because after the Judge calculates the Guidelines and gets that range, the Judge then needs to decide what is a “reasonable sentence.”  The factors for a reasonable sentence are found in another law called title 18 United States Code, Section 3553.  After the Judge considers those factors, the Judge decides if the 3553 factors suggest a sentence that should be inside, higher, or lower than the range suggested by the Sentencing Guidelines.  At least this is the way it is supposed to work.

However, note that a Judge can stay within, go higher or go lower than the Guidelines but only after first calculating those Guidelines.  Experienced lawyers in the federal criminal justice system (and by this I mean BOTH prosecutors and criminal  defense lawyers) know that it is easier for a judge to give a sentence that is at least close to the Guideline range.  Prosecutors therefore advocate for calculating the Guidelines that result in a higher range, defense lawyers argue for applying the Guidelines that result in a lower range. Obvious, right?

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I love it, a perfect example of the intersection between modern technology and federal criminal cases!   A United States District Court in Kansas recently threw out, by granting a Motion to Suppress, a federal criminal case in which the Defendant was charged with carrying drugs in the vehicle he was driving.  The police officer who stopped the vehicle wanted the Defendant’s to consent to look in the car, but the driver spoke limited English.  The resourceful officer turned to the Google Translate application on the laptop computer in his police vehicle in an attempt to fully communicate with the stopped driver.  Even though the officer believed that the Defendant consented to a search (which resulted in a large quantity of drugs hidden in the car), the federal judge said that Google Translate is not a sufficiently accurate tool to assure that the Defendant was aware of what he was agreeing to.  The case is  US v. Omar Cruz-Zamora.

So, let’s start with a couple of basic principles.  Everybody, and I mean everybody, is against large-scale illegal drug dealing.  However, everybody also needs to be reminded from time to time that our constitutional protections apply to all people, innocent and guilty, native-born and immigrants.  When we decide to take away constitutional rights from some, it makes those same protections weaker for the rest of us.  Second, our Constitution and the Bill of Rights were purposely designed to make it sometimes difficult for the government to search our private property.  That is why the people who wrote the Bill of Rights created the Fourth Amendment. The Fourth Amendment generally requires that the police get a search warrant from an independent judicial officer before a search can happen.  One exception to this rule is “consent”, meaning that we are always able to waive or dispense with out constitutional rights, but here’s the important part, only if we know about and clearly indicate that such a waiver is what we really want to do!

In this recent case, the Judge heard lots of evidence from the police officer, from his videotaping equipment in his vehicle, from two interpreters, and from Mr. Cruz-Zamora.  After considering all this, the Judge concluded that the Defendant doesn’t speak English well and that the consent to search the car was obtained through an exchange in which the police officer used Google Translate.  The Judge decided that this translation tool was insufficiently accurate to constitute consent given “freely and intelligently.”

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Late last week the United States’s Attorney’s Office here in Atlanta, Georgia announced an indictment alleging a federal criminal prosecution relating to the massive data breach  at Equifax. The government alleges that an “insider” at the company  traded on confidential information concerning the breach, selling stock ahead of the public announcement. This is the sort of federal criminal case we handle here at Kish law LLC, and while I am not involved in the particular matter, the indictment brings several ideas to mind.

First, we all see how the U.S. government now operates via press releases in criminal cases.  They have press officials who regularly draft and disseminate these releases, and the media gobble the release up without much analysis.  The newspapers and TV/radio stations and internet news sources seem to be very gullible at times, taking at face value what is only an allegation.  Remember, no one has proven anything in the case, yet the press regurgitate the prosecutor’s press release as if it was the Gospel truth.  So many people believe whatever they see on the internet, and the Defendant faces a huge battle to remind everyone that he or she is presumed to be innocent and that the only way he or she can be found guilty is if a prosecutor convinces all 12 people on a jury that the government proved its case “beyond a reasonable doubt.”

Another thought this case prompted is the subject matter: insider trading, which is essentially a violation of the securities laws.  These laws obviously make sense, prohibiting insiders from getting to trade on private and confidential information that the rest of us saps in the stock market do not know about.  However, the securities laws are extremely complicated, and many fine lawyers spend their entire careers specializing in this arcane area of the law.  Too many criminal defendants who face a criminal case alleging securities laws violations believe they need to get one of these “securities law specialists” to defend against a federal criminal prosecution. It has been my experience that this is a huge mistake.  Yes, it is important to know the securities laws, but jurors are also not specialists.  Instead, my 36 years experience has taught me that a person facing a federal criminal case alleging securities fraud needs an attorney accustomed to handling jury trials, someone good at talking with regular people who end up on a jury.  Good trial lawyers learn new areas of the law in order to represent their client. Securities fraud is no different.  Using a pure securities law expert is often a huge mistake.  I’ve handle several of these complex matters, and my experience teaches me that the most important thing for the client is to hire a lawyer with whom he or she feels confident in going to trial.

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When do we ever really “know” something is a question often asked in the many federal criminal cases I handle here in Atlanta, throughout Georgia and around the country.  Most criminal cases require that the prosecutor prove that the Defendant “knew” something.  The issue might be whether the Defendant “knew” that a package contained drugs, or, like a case I handled recently, whether a CEO “knew” about the bribery shenanigans done by lower-level executives in a different state.   Many of the cases I have won over the years in federal court came about because the jury had significant doubts as to whether there was sufficient evidence that my client “knew” a certain fact.  However, a recent case from the United States Court of Appeals for the Eleventh Circuit seems to make the prosecutor’s burden far easier.  That case, U.S. v. Duenas, greatly expands what is called the “prudent smuggler” doctrine, and seems to foretell a harder time for me and other criminal defense lawyer in the future.

People who have read my musings over the years recognize that I often claim that legal decisions and rules are based in politics.  The Prudent Smuggler line of decisions is no different.  The absurdly expensive and counter-productive “War on Drugs” is where this legal principle had its genesis.  Federal prosecutors convinced judges that it was too hard to prove that some people were involved in a drug conspiracy or activity.  That person might be a small player who was told to carry a bag across a street, to take a ride with others in a car, or a fearful immigrant desperate to enter the country who would be handed a closed bag and told to bring the luggage into the United States.  As the War on Drugs raged, more and more judges agreed with the general rule behind the “Prudent Smuggler” line of cases.  As noted in this recent decision:

The rationale behind the “prudent smuggler doctrine,” as it has become known, is straightforward. A prudent smuggler seeks to facilitate the exchange of contraband in order to enrich himself while evading apprehension by law enforcement officers. He is, therefore, not inclined to navigate the contraband markets’ perils and uncertainties alone…Rather, he is disposed to trust a confidant to provide loyal and competent assistance in securing the illicit transaction’s smooth performance…Loyalty is necessary to ensure that the confidant will not abscond with the valuable contraband; and competency is necessary to ensure that the confidant will effectively consummate the plan. In entrusting the confidant, then, the smuggler will likely apprise him of the transaction’s essential details, including the nature of the contraband involved, so that the confidant may overcome the “normal but deadly hazards implicit in [contraband] trafficking.”  The emphasis on the word “likely” comes from me.  In other words, this is a made-up rule, based merely on the Judge’s own beliefs, supplanting his inclinations for that of jurors.
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After a reorganizational delay, Paul Kish is back blogging about federal criminal defense issues, here in Atlanta and elsewhere (such as D.C. where the Mueller investigation is more like a Full-Employment Act for lawyers like me who specialize in white collar criminal defense).  To those unfortunately twisted folks out there who actually read my musings, welcome back!

To those who know me personally, it is still the same Paul S. Kish.

Paul Kish
To those who do not know me, I have a habit of discussing various aspects of the criminal justice system in the United States, with a particular emphasis on federal criminal defense, white collar crimes,  criminal cases alleging fraud, criminal appeals, federal criminal sentencing, and just about anything else that gets my blood inching up toward the boiling point.

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