Federal criminal defense

January 13, 2020

Federal Criminal Cases and the “Proffer”: What is it and What Should I Know Before Agreeing to This Process?

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

December 19, 2019

“Brady Material” and the High-Profile “Varsity Blues” Case Show How Defense Lawyers Can Change the Perception of a Criminal Case

by Kish Law

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

December 4, 2019

The Presentence Investigation Report in Federal Criminal Cases: A Short Primer

by Kish Law

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

November 22, 2019

Challenging an Indictment in a Federal Criminal Case: Do’s and Don’ts

by Kish Law

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

November 13, 2019

The Importance of Jury Instructions in a Criminal Case

by Kish Law

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.

October 21, 2019

What to Expect on Your First Day in Federal Court: A Short Explanation of the “Initial Appearance” and the “Arraignment”

by Kish Law

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

September 25, 2019

Federal Criminal Investigations: What You Should Do When the FBI Shows Up at Your Door

by Kish Law

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.

September 16, 2019

Uncommon Defenses in Federal Criminal Cases

by Kish Law

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

September 11, 2019

Mandatory Minimum Penalties in Federal Criminal Cases: Changes Over the Years

by Kish Law

I am reviewing the Discovery (meaning the evidence) in a somewhat old federal criminal case that has ties to both Atlanta and North Carolina. My client is accused of a drug crime, and from the indictment and other materials it appears that the prosecutors contend that there is a mandatory minimum penalty of 5 years in custody, and up to a potential maximum of life in custody. Obviously, this is a very serious matter. While this case and the potential penalty are each very serious, the possible sentence caused me to reflect on how far the federal criminal system has come in the 37 years I have been involved.

I started in 1982, and way back then, there were no mandatory penalties, no Sentencing Guidelines, and anyone who got a custodial sentence for a federal crime generally was eligible for early release, or “parole.” Things began to change in the middle of the 1980’s. Drug crimes started getting more violent. Then, in 1984 Congress created those Sentencing Guidelines, a mandatory and overly mechanical system for imposing harsher and harsher penalties. At the same time, they did away with parole, and our clients entered a system where they had to serve the entire sentence, other than a potential small reduction for “good behavior.” Continue reading

September 9, 2019

Gotta Know When to Hold ’em, Know When to Fold ’em: Giving Defense Evidence to Prosecutors Before Indictment

by Kish Law

With apologies to the late great Kenny Rogers (who had a house not far from mine in Atlanta) , part of the federal criminal defense lawyer’s job is to decide whether or not he should turn over “good” defense evidence to a prosecutor BEFORE an indictment is issued in the hopes that no charges will be brought. On the other hand, if the prosecutor is going to bring charges anyway, sometimes the criminal defense attorney can get more bang for his or her buck by holding off on revealing the “good” stuff and using the element of surprise during the lead-up to trial. As old Kenny sang “ya gotta know when to hold ’em, know when to fold ’em.” Here are some of the considerations that go into this part of being a criminal defense attorney who specializes in federal criminal matters and white collar crimes and appeals.

Many federal prosecutors will tell a Defendant that the Government is on the path toward getting an indictment. In this scenario, the prosecutor will send what we call a “Target Letter” to the prospective Defendant. The letter basically says that charges are likely, gives a brief outline of the charges, and tells the person that he or she might want to consider getting a lawyer to talk it over BEFORE the charges are brought. As a general rule, prosecutors will offer some slight benefit to a person who agrees to plead guilty shortly after getting one of these Target Letters. Prosecutors also use these Target Letters to get potential Defendants to cooperate against more involved or culpable people, or higher-ups in an organization.

Like many federal criminal defense attorneys, it is very common for clients to come to me after they get one of these Target Letters. Like many lawyers, I usually will reach out to the prosecutor who wrote the letter to get a somewhat more detailed sense of what the Government is looking at, the client’s potential exposure, the stage of the investigation, whether other people have been charged and/or sentenced, and any other pertinent details. I then meet the client to get his or her side of the situation. Here is where it starts to get tricky.