Articles Posted in Federal Criminal Law News

We handle lots of federal sentencing hearings, in Atlanta, Savannah, Macon, and throughout the federal courts in Georgia and other states as well. We are always interested when courts interpret laws that can impact the sentence that one of our clients might receive. This morning, the United States Supreme Court interpreted a law that impacts the sentence to be imposed on someone who robs a bank and is prosecuted in federal court. The law was passed by Congress in response to a spate of robberies committed by the notorious John Dillinger in 1934. The law requires a minimum of 10 years, and up to a life sentence, if the Defendant “forces any person to accompany him without the consent of such person”. In the case of the unfortunate Larry Whitfield, the high Court was faced with a situation where foolish Larry muffed a robbery, fled, then broke into an elderly lady’s home, where he made her move 9 feet from one room to another, and she then she died. The sentencing judge hit Larry with the enhanced penalty based on forced accompaniment. A unanimous Supreme Court this morning upheld the sentence, the opinion can be read here.

I previously posted about this case here. I pointed out how the Defendant argued that a mere movement of 9 feet cannot be what Congress had in mind when they passed this serious sentencing enhancement for robbers who force a victim to go with the criminal.

In rejecting the Defendant’s claims, the Supreme Court noted that this particular language was put into the bank robbery law in 1934. Congress enacted the forced-accompaniment provision in 1934 after “an outbreak of bank robberies committed by John Dillinger and others.” So, like a good strict constructionist that he is, Justice Scalia, writing for the Court, looked to contemporary uses of the phrase “to accompany”. “It was, and still is, perfectly natural to speak of accompanying someone over a relatively short distance, for example: from one area within a bank ‘to the vault’; ‘to the altar’ at a wedding; ‘up the stairway’; or into, out of, or across a room”, according to Justice Scalia. His examples all came from newspapers from that era.

“Words, words, words, first from him, then from you–is that all you blighters can do?”, moaned Eliza Doolittle when tiring of her speech lessons in “My Fair Lady.” Ms. Doolittle should be thankful she is not Larry Whitfield. Larry got an extra 10 years in prison for a bank robbery prosecuted in federal court because of a single word. During the crime he forced someone to “accompany” him by moving a grand total of 9 feet from one room to another. this act resulted in 10 years being added to his sentence. The United States Supreme Court heard arguments in the case yesterday. The docket for the case can be found here.

Larry is not only unlucky, he also seems to be like too many criminals, bad at his work. He botched a bank robbery in 2008 in North Carolina. Fleeing the scene, Whitfield entered the home of a 79-year-old woman, telling her he needed a place to hide. He directed the woman, who was upset and crying, to move with him from her living room to another room some nine feet away.
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Readers know that federal criminal cases are a large portion of our work, so we pay attention to the laws, reported decisions and news stories about how the “feds” sometimes brings really unfortunate criminal cases. This past Monday, the United States Supreme Court reversed yet another unfortunate federal criminal case, because what the Defendant did was not even a federal crime. The case is a perfect example of how some federal prosecutors will take even the smallest case and try to”make a federal case out of something.” The case is Bond v. United States, and can be read here.

A Pennsylvania woman learned that her husband had impregnated her former best friend. The woman put some caustic chemicals on the pregnant woman’s door handle. The victim was slightly burned on her hand, which she remedied by washing. Sounds like a state law case, right? Wrong! Some ambitious federal prosecutors brought a federal case against the Defendant for violating a 1998 statute that was designed to implement US treaty obligations concerning chemical weapons. A divided Supreme Court reduced the scope of this statute. The majority ruled that Congress could not have intended to make it a federal crime – with global implications – for a woman to try to poison her husband’s lover.
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We pay attention to federal criminal cases everywhere in the country, not just those here in Atlanta or other parts of Georgia, nor merely those arising in nearby states like Florida, Alabama or Tennessee. One reason we pay attention is so we know all the hot issues that might help our clients. One such issue focuses on how far one person can be held accountable for the actions of another person who was involved in the same crime. The fancy name for this is “aider and abettor” liability. In an earlier post I noted how I pushed this issue over 20 years ago, resulting in my very first win on appeal. I also noted how the U.S. Supreme Court recently took on a case that focused on whether my original arguments were correct. Last week, they issued their ruling in Rosemond v. United States, and they agreed with the defense perspective. You can read it here.

Justus Rosemond took part in a drug deal where either he or another participant fired a gun. Federal prosecutors charged everybody involved in the deal with shooting the weapon, and their theory was either that Rosemond himself shot the weapon, or that he “aided and abetted” the shooter. That’s crucial because an aider and abettor is just as responsible as the actual shooter, and would get the same mandatory additional 5 or 7 years tacked on to a sentence.
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Recently, the United States Supreme Court issued another ruling that impacts federal criminal cases. The issue in this recent case was whether the Defendant should get an automatic longer sentence that is imposed when “death results” from drugs that the Defendant sold. I previously posted about this case here, and the the recent decision (which was published when I was away on a well-needed vacation) is here.

In this recent case, the Supreme Court looked for the meaning of the term “result from” in a case where the district court imposed a 20-year mandatory minimum sentence upon a Defendant for the sale of one gram of heroin since a buyer’s death had “result[ed] from” the use of the heroin as one of several drugs he consumed that contributed to the death. The Defendant (a man named Burrage) had sold drugs to Banka, who died after using both Burrage’s heroin and several other drugs. Medical experts at trial could not say whether Banka might have died from using the other drugs even if he had not taken the heroin, but the experts all though that the heroin was a contributing cause of death.
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Criminal defense lawyers here in Atlanta, and other parts Georgia and the rest of the country all occasionally confront the question of why some prosecutions end up in federal court yet similar cases are handled in the state court system. I’ve written on this topic previously. Basically, criminal cases come into federal court whenever there is a federal person, place or money, or when the activity has an impact on interstate or foreign commerce. the other day, the United States Court of Appeals for the Sixth Circuit decided that a crime taking place 227 feet inside a federal boundary line was enough to turn a life sentence into the death penalty. The case is United States v. Gabrion, and it’s an excellent example of how some matters end up in federal court, and why the stakes can be so much higher when the feds decide to take over a case.

Mr. Gabrion committed brutal murders in Michigan. One of the bodies surfaced from the bottom of Oxford Lake. A national forest boundary line ran through the part of the lake. The body was found 227 feet inside the boundary line of federal property.
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Federal criminal cases here in Atlanta, throughout Georgia, in Alabama or Florida, and anywhere around the country are all brought after a federal prosecutor makes an independent decision as to whether the matter truly should be brought in federal court. Making this decision involves the time-honored concept of discretion. The recent publicity about the fact that the IRS seemed to have harsher standards for some politically conservative “non-profit” organizations has brought the white-hot light of scrutiny on the whole idea that federal officials use their discretion to go after some groups, while leaving others alone.

First, let’s look at the recent furor over the IRS practices. There has been a report by the Treasury Inspector General for Tax Administration Office of Audit, and this document shows how “Early in Calendar Year 2010, the IRS began using inappropriate criteria to identify organizations applying for tax-exempt status to review for indications of significant political campaign intervention.” This Report was only issued a couple of days ago, but it caused a firestorm. The other day President Obama stated that the Reports findings are “intolerable and inexcusable,” and last night he fired the Acting IRS Commissioner. The Report made several recommendations, including “develop training or workshops to be held before each election cycle including, but not limited to, the proper ways to identify applications that require review of political campaign intervention activities.”
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Here we go again, the intersection of the Eighteenth Century concept of privacy enshrined in our Fourth Amendment (no searches or seizures except when done pursuant to a warrant based on probable cause) versus the modern “CSI” world where investigators take biological shards to solve the most difficult of crimes. Today, the Supreme Court hears arguments in Marlyand v. King.

Most of the states along with the federal government have laws that provide for automatic DNA collection from people at the time of their arrest. The King case argued today asks the question whether it is unconstitutional to do that without a warrant, for the sole purpose of checking the DNA against a national DNA crime scene database.
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Our local Federal Court of Appeals, sitting just down the street from our offices here in Atlanta, yesterday reversed a federal criminal conviction for obstruction of justice. The prosecutors contended that the defendant tried to obstruct a forfeiture matter. The Eleventh Circuit joined other courts and relied on some earlier Supreme Court cases by holding that there cannot be a conviction in this context unless there is evidence that the defendant was aware of the forfeiture proceeding he obstructed. The case is United States v. Friske.

Mr. Friske lives in Wisconsin, but his friend (Erickson) got busted in Florida for drug crimes. Law enforcement listened to calls Erickson made from jail to Friske where he asked the latter to do a “repair job” and remove “three things” buried near Erickson’s pool. Agents got there before Friske, and found $375,000 buried in that location. Later, they observed Friske coming away from the pool area, covered in dirt. Friske made some baloney statements to the police, and later conceded he was just “trying to help a friend.”

The government indicted Friske for attempting to obstruct an official proceeding by attempting to hide and dispose of assets involved in a forfeiture case, in violation of 18 U.S.C. §1512(c)(2). The Eleventh Circuit joined other appellate courts by holding there is a “nexus” requirement in this statute which requires a connection between the obstructive conduct and the proceeding in question. Stated another way, “if the defendant lacks the knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.”

The Ninth Circuit Court of Appeals issued its opinion in U.S. v. Goyal on December 10th. The case involved the former CFO of Network Associates, Inc., which is better known by its previous name, McAfee. Mr. Goyal was charged in 15 counts with securities fraud, false filings with the SEC, and lying to auditors. The Ninth Circuit held that the government failed to prove materiality on the securities counts and scienter on the lying-to-auditors counts and, thus, reversed the convictions on all counts.

The concurring opinion by Chief Judge Kozinski eloquently describes the reality of many white-collar criminal prosecutions that we see in our federal defense practice. All too often, federal prosecutors go after defendants in prosecutions that would more appropriately be located on the civil docket.

The full opinion in Goyal is available here, but the Chief Judge’s concurrence is worth reprinting in full:

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