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Articles Posted in Federal criminal defense

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Hello Sports Fans, Paul Kish here, just returned from U.S. District Court here in rainy Atlanta, Georgia where we had a pretrial evidentiary hearing in yet another federal criminal case.  I’ve done many hundreds, if not thousands, of these in my career, and I’d like to provide a few observations about these hearings that happen in some federal criminal cases.

First, we do not have these hearings in every case.  Instead, Judges will convene one of these hearings only when the Court needs some evidence in order to rule on a pretrial issue brought up by one side or the other.  Most of these hearings relate to pretrial motions filed by a Defendant, such as a Motion to Suppress.  However, other cases involve pretrial pleadings by the prosecutor who requests a ruling that certain evidence should either admitted or kept out of the trial in the case.  For example, one time we had a lengthy hearing where the Government asked the Judge to prohibit our expert witness from testifying at the upcoming trial.  The trial Judge ruled for the prosecution, yet in the end we basically won when the Court of Appeals saw the issue our way and reversed all convictions because of the improper exclusion or our expert witness. Continue reading

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I just got word that all charges were dismissed against my client in a federal criminal case I have been working on for several years.  It feels good for several reasons, some obvious, others are more subtle.

One of the main reasons the dismissal feels so good is that I am virtually certain that my client did not commit a crime in the first place.  She was previously married to and had children with one of the other people charged in the case.  Her ex-husband was connected to some properties where investigators located evidence of criminal activity.  There were only two ways that my client was involved in the overall case.  The first was that her ex-husband (or someone working with him) hid other evidence of criminal activity in her back yard that investigators located with a search warrant.  Second, investigators got a warrant for her bank records, and a search of her accounts showed that she had significant savings even though she worked a low-paying job.  My staff and I were able to go back and demonstrate that the accounts grew to these large balances because she saved like we are all supposed to do: a little bit at a time and never spending lots of money.  Even if the case had gone to trial, I feel confident we would have been able to convince the jury that the money was from her hard work and not from someone else’s criminal acts. Continue reading

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It’s a New Year in Atlanta, and I am doing my usual work on federal criminal cases, criminal appeals, post-conviction matters and whatever else that my clients need that can help with their various situations.  One of today’s tasks is to schedule a “proffer” session for one of my clients who has been charged with federal fraud crimes.  While working on the relatively mundane job of scheduling a proffer session, I started thinking about how many clients, and even some attorneys, really do not fully understand what a proffer is, how it can help, and more importantly, how it can be a bloody disaster if not handled correctly.

A “proffer” is when a lawyer takes his or her client over to meet with federal prosecutors and investigators for a question and answer session.  This session is never something that the client is obligated to do, it is totally his or her choice, after of course consulting with well-trained legal counsel.  The proffer is kind of like the test-drive when considering a certain car at an automobile dealership.  The driver is not obligated to buy the car, the seller has no duty to sell, both sides are trying to learn more in determining whether they want to reach some agreement down the road. Continue reading

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Many people have heard about “Varsity Blues”,  which is a federal criminal case handled in Boston that alleges lots of wealthy parents basically paid for advantages to get their children into college. When the case broke and virtually all commentators were assuming that the Defendants were guilty, I posted about how everybody needs to take a chill pill and let the criminal defense lawyers do their work.  Stories over the past two days seem to show that my warning was on the mark.  These developments show that the criminal defense attorneys have demonstrated that prosecutors may be violating the “Brady” decision.  Brady was a Supreme Court case that says prosecutors violate our revered Fifth Amendment if they refuse to turn over “exculpatory” evidence, meaning evidence tending to show that the accused person is not guilty of the crime.

The Brady case was from long ago, when I was a mere lad of 7 or so.  What happened was that Mr. Brady was charged with murder, along with another man named Boblit.  Brady acknowledged he was present but claimed he was not the one who killed the victim.  Brady’s lawyers asked for all of Boblit’s statements, but prosecutors held back one statement in which Boblit admitted he was the shooter.  The U.S. Supreme Court said that prosecutors violate the Constitution when, after a request from the defense, they hold back and do not turn over “exculpatory” information, meaning, they fail to tell defense lawyers about evidence that tends to show the accused person is either not guilty or guilty of a crime with lesser punishment. Continue reading

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Another gorgeous early winter day in beautiful Atlanta, Georgia, and I am preparing to assist a client who will be interviewed soon as part of the preparation of the Presentence Investigation Report.  For any of you somewhat unaware of this process (the six of you know who you are), here is a short primer explaining this crucial document that is part of a federal criminal case.  I also want to discuss how an accused person’s attorney needs to help the Defendant navigate through this process.

Whether the Defendant is found guilty after a jury trial, or decides after consulting with counsel that the best course is to plead guilty, the next major step in court will be the sentencing hearing.  The Federal Judge generally will time that sentencing hearing to happen 2-3 months down the road.  In the interim, the United States Probation Officer (the “USPO”) assigned to the matter needs to prepare the important Presentence Investigation Report (sometimes referred to as the “PSR”). Continue reading

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In my federal criminal defense practice here in Atlanta, I regularly file Pretrial Motions that challenge, in one way or another, the criminal indictment that alleges that my client did something illegal.  There are several such cases I am currently working on, and the process of thinking about, and then creating, challenges to the indictments made me reflect on some things that attorneys should do, along with a few items they should avoid.

Federal crimes are all created by “statute”, meaning laws passed by Congress.  There is no “common law” of federal crimes, which means that virtually all indictments are based on language in a particular statute.  So, the obvious beginning point is to compare the statute’s  language with the words found in the indictment.  Seems clear, right, but I am reminded of several cases over the years where none of the lawyers (on either side) noticed that there was a disconnect between the statutory language and the words in the indictment. Continue reading

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I am currently working on a federal criminal appeal that will go to the lovely building a few blocks away that houses the United States Court of Appeals for the Eleventh Circuit here in downtown Atlanta. The appeal involves a “jury instruction”, which means the rules of law that the trial judge provides to jurors at the end of a trial to assist the jury in deciding whether the prosecutor has, or has not, proven that the Defendant is guilty as charged.  Working on this appeal caused me to think back about how I learned of the importance of jury instructions in a federal criminal case.

My interest in federal criminal cases began when I “clerked” for a couple of federal judges directly out of law school.  A federal judicial clerkship is a great job, you work for the Judge, and help him or her with research, writing opinions and anything else the the Judge wants you to do.  You also get to see lots of cases up close, and after a while you start to realize that you might actually be able to do as well, if not better, than some of the lawyers who have cases in front of your Judge.  Along the way, you learn a whole lot more “law” than they ever taught in Law School.

Judge K was the first one for whom I clerked.  He was great, let me sit in on anything and basically gave me a tutorial on what was happening in real time: “Paul, this lawyer is trying to protect the record, while this other lawyer is trying to get me to make a mistake for a possible appeal”, and the like.  Judge K also knew I was interested in possibly becoming a federal criminal defense lawyer, so he let me sit in on just about every trial of that sort.

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It was a bad day recently here in Atlanta when I learned that some clients had been indicted for some federal crimes, even though we have been trying for years to convince the prosecutors that no charges should be brought.  Sometimes, criminal defense lawyers fail to adequately explain their clients about  the process that happens on the first day in court.  Many people have never been through the criminal justice system, so they are completely unfamiliar with the process.  I always try my best to make sure that my clients are aware of the various things that will happen on the first day, and this post is a summary of what my conversation is like for such clients.  The process is basically the same in the federal courts here in Georgia and throughout the country (with a few unique local features from time to time).

Most times, there is an “indictment”, which is the formal document that sets out the charges.  In the majority of cases, this leads to an arrest warrant.  I always try to convince prosecutors to let me surrender my clients to the agents who have the job of carrying out the arrest warrant.  This way, we avoid having the agents go to the house for a surprise arrest, which is both unnerving to the client (and their family) as well as being dangerous for everyone nearby (how would you feel if you saw armed people sneaking around your neighbor’s house in the early morning hours?) Continue reading

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This happened recently to someone in Atlanta, but it also takes place everywhere else in Georgia, Florida, Alabama, North Carolina and all over the country.  The FBI or some other federal criminal investigation unit shows up at someone’s front door, wanting to ask questions and possibly to get the person’s cooperation.  What did that person do?  He was polite, he got the agent’s contact information, he provided some general information demonstrating a willingness to cooperate without admitting to anything criminal, and then, most importantly, he called me.

Nobody really wants to have a criminal defense lawyer, but sometimes, people need us. This incident was similar to what my family members in the health care field do when medical emergencies happens.  They jump into action, just as I did the other night

This man called me at 8:30 pm on a weeknight.  I already had a long day, was doing some chores before a little relaxation time, and then his call came.  I spent the next several hours on the phone with the client, with the FBI Agent, emailed back and forth with the prosecutor, did Internet research about the specific situation, and made arrangements to meet the client at my office the next morning.  The client and I then spoke in the morning at my office for several hours, and like medical personnel when someone comes into the emergency room, I then needed to do a quick evaluation and set out a strategy even though I only had several hours’ worth of information.  I told the client my evaluation, and we then embarked on the strategy I recommended.

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Here in Atlanta and other federal cases that I handle throughout Georgia, Florida, Alabama and other states, lawyers often chuckle (and once in a while enjoy a full belly laugh) at some defenses I come up with once in a while.  Here are a couple.  Now, remember, these are reserved for certain fact patterns, and these defenses are not going to work in every case.  Still, it is worth remembering that these are “real” defenses, and work every once in a while.

One of my favorites is a defense that I affectionately call “the wrong courthouse.” Some cases are  bought in federal court, even though there is a very slim or tenuous connection to the federal government.  The Feds usually try to get past this thin connection by using the “Commerce Clause“, found at Article I, section8 clause 3 of the Constitution of the United States. Continue reading

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