Articles Posted in Federal criminal defense

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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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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

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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.

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I have several federal criminal cases in Atlanta and other parts of Georgia involving allegations that my clients dealt in marijuana.  Some folks in other parts of the country also have contacted me recently about federal criminal prosecutions in states where the local laws permit personal use and state-sponsored sale of marijuana.  In virtually all of these cases, someone always asks: “But I thought Pot was legal? How can the federal government prosecute me (or my loved one) if the state where the federal court is in lets people use this drug?”

One of the less well-known parts of our wonderful Constitution is called the “supremacy clause.”  If you are interested, you can find it in Article VI, the second paragraph.  Here is what it says: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The supremacy clause makes a lot of sense for many aspects of life in a democracy.  For example, things would be a bit untidy if the law on how to build and maintain a highway changed at the state line separating Alabama from Georgia.  Keeping some level of uniformity means that our people can expect the same basic guidelines and laws as we move from place to place in this enormous and beautiful land.

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Readers know that from my law office here in Atlanta I work on and travel around the country to places where I represent individuals and companies accused of federal crimes.  I also pontificate on occasion about the importance of keeping current in order to do this kind of work.  A case issued three days ago by the Supreme Court reminded me of this need for lawyers to keep up with recent developments in the law when defending their clients.

The case from the Supreme Court was United States v. Davis  which was the latest in a series of decisions in which the highest court in the land tried to figure out what Congress meant when the legislature enacted a series of tough-on-crime laws back in the 1990’s   These laws either impose more severe punishments for people with prior serious crimes, or on people who use guns in current serious crimes.  These laws all have a common feature; an attempt to provide a very broad definition of what is called either a “crime of violence” or “violent crime.” The problem in all of these laws is that in trying to create this broad definition, Congress failed to really say anything specific in what are called the “residual clauses” from these statutes. Continue reading

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Another day here in steamy Atlanta, and another federal criminal case I am starting to work on after being retained by my client. This particular case is in federal court in Texas, but I want to provide some observations that apply no matter where the federal criminal case might be pending.

Readers will recall that the “discovery” materials are those items that the prosecutor is obligated hand over to the defense attorney.  There are various sources of this obligation, found in some statutes, in court rules, and also within our wonderful Constitution’s promise of “due process.”  However, today I want to talk about practical aspects of looking through the “discovery” materials. Continue reading

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I left my Atlanta criminal defense law office this morning and drove to the federal building where I met my client for what is called a “proffer” session.  Basically, this is the first step in the process by which my client will agree to cooperate with investigators and prosecutors, with the hope that his assistance will lead to no charges or charges with a potentially reduced sentence.  A proffer is when the client goes to the prosecutor’s office and answers questions from the prosecutor and investigating agents.  My client and I already made this decision for him to cooperate after a lot of discussion.  However, while today was just the first step in going down the cooperation road, it made me think more about the decisions the attorney and the client need to make when deciding whether to fight the charges or give in and make the best of a bad situation.

Many people consult a criminal defense attorney after they learn they are under investigation for some possible crime.  A few people come to see me because they know they did something that could lead to an investigation, even if the investigators have not yet contacted the person. In these early stages, the key for the criminal defense lawyer is to fully understand what happened.  When, early on, the lawyer has a very good grip on the facts, potential crimes,  and possible defenses, the attorney is often in a position to do a lot of good for the client.  At this early phase,  investigators and prosecutors are sometimes just looking into whether they should, or should not, bring charges against a person or company.  If the defense lawyer feels he or she can talk the prosecutor out of charges against the client, it is often easier to do so early rather than later.  But, this strategy is not always the best course of action, especially if the attorney feels that there is a chance that the client could be convicted if the prosecutor does decide to bring a charge.  Going in to see the prosecutor too early can be a signal of weakness.  Some situations call for a “wait and see” tactic.  No two cases are alike, and the experienced criminal defense lawyer needs to consider what happened and whether this particular prosecutor seems to have the appetite for this particular type of case. Continue reading

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I am getting ready for some hearings in a federal criminal case I am working in in Gainesville, Georgia.  My preparation caused me to think about and want to put down some thoughts on the strategies that sometimes impact such matters, plus the tactics we use to implement the strategy in a particular case.  That’s a fancy way of saying I try to plan ahead for what I want to accomplish when I file a pretrial motion in a federal criminal case.

First, we often are able to convince a federal Judge that we are entitled to a “pretrial evidentiary hearing” concerning one or more of our Pretrial Motions.  Most defense lawyers relish such a hearing.  To begin with, it is always a benefit to get one or more of the government witnesses under oath before the trial.  At such a hearing, the defense attorney can sometimes try to “lock in” the government witness.  This means the lawyer will get the witness to thoroughly accept and adopt a certain version of the facts.  When the lawyer locks the witness into this specific story, it means that same witness will have a hard time changing or modifying his or her version when the trial comes along.  The attorney will have the transcript from the pretrial hearing.  It is always an enjoyable sight to see an accomplished criminal defense lawyer armed with a pretrial hearing transcript whipping up on a witness who decided to change his or her version.

In addition to locking the witness into his or her story, the pretrial hearing is also valuable because the attorney gets to kind of measure the witness, to see if the person is going to be a difficult at trial.  Cross examining a government person at trial when the lawyer has never previously encountered the witness can sometimes be frightening.  Having a pretrial hearing where the lawyer more or less gets a free whack at the witness can reduce the fright factor at the later trial.

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I just got a call from my client in a recent federal criminal case here in Atlanta.  My client was outside the gates of the federal prison, and gave me one last call before he went inside to begin serving his sentence, or as some inmates call it, “doing time.”  I always feel bad for my clients and their families when anyone is separated from society and their loved ones because they are incarcerated.  In the big picture, this man received a very favorable sentence, considering the facts of his situation on the day when I first met him.  Still, it’s a sad feeling to get such a call.  The call made me want to put down a few thoughts about what I have learned over the years concerning the experience for clients who are  “doing federal time.”

For starters, the federal prison system is operated by a huge organization called, oddly, the “Bureau of Prisons.”  Regular practitioners usually call it “BOP.”  The BOP operates throughout the entire country.  There are various “security levels” amongst the many federal prisons, and these fall into three basic categories, High, Medium and Low.   Continue reading

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In Atlanta I have been asked to give a speech to some lawyers who handle federal criminal cases.  The organizers of the seminar asked that I talk about criminal forfeitures.  A lot of lawyers are not well acquainted with this ancient form of punishment that is becoming more and more common in modern federal criminal law.  Here is the paper that is the basis for my speech.   Criminal Forfeiture

Forfeiture is a very old concept we inherited (like so many legal principles) from ancient English law.  The basic idea is that if property is used in or obtained from criminal conduct, the King could take the property.  They created a legal fiction by which title to the property actually turned over to the King at the point when the crime happened.

Fast forward to our incredibly bad War on Drugs beginning back in the 1970’s. Congress began re-tooling the ancient forfeiture concepts to let federal prosecutors go after dope dealers’ assets.  That is all fine and good, in theory.  However, many readers know that law enforcement and government officials began taking these rules to the extreme, taking property barely associated with a crime or taking money far greater than what was involved in any crime.  The United States Supreme Court recently heard arguments in a case out of Indiana exemplifying this issue.  Justin Timbs carried some drugs in his Range Rover and got caught.  The maximum fine for the crime was $5,000, but the state prosecutors seized and forfeited the $42,000 vehicle.  Oh yeah, Mr. Timbs proved that he bought the Range Rover with the money he got from his Dad’s life insurance policy.  Here is the usual excellent analysis from Scotusblog.com describing the case and the issues involved.   Continue reading

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