Articles Posted in Federal Criminal Trials

Readers know that my work as a criminal defense lawyer in Atlanta mostly involves federal prosecutions in courts here in Georgia and throughout other parts of the nation, if my clients need me in those locations.  After 36 years of doing this work, I still believe that the hardest decision my clients need to make is the question of whether they should go to trial or if they should authorize me to try and negotiate a “deal” and then plead guilty.  I am currently working on several such decisions, and the process made me want to write further on the subject.

I have posted previously about the vanishing species known as the federal criminal trial.  Trials are down, way down, and there are many reasons.  One main reason is that penalties for the past three decades increased.  Furthermore, the rule-makers (i.e., the US Congress) gave more and more power to prosecutors and took more and more away from Judges.  The result was that many attorneys felt overwhelmed and that feeling caused those lawyers to stop fighting and to begin looking for ways to avoid lengthy penalties that their clients suffered.  In other words, some lawyers lost their fighting spirit. Don’t get me wrong, in many cases negotiating a deal is the best course of action, but the stiffening penalties led a few lawyers to simply lose the fire in the belly needed to take a case to trial. Continue reading

Casual readers of this blog (are there any other kinds) know that we handle various types of criminal cases here in Atlanta, throughout Georgia, and in federal court throughout the country.  More and more of these cases in these various courts involve crimes that relate in one way or another to use (or misuse) of computers.  One issue that comes up a lot in these cases concerns how much “damage” a person truly caused when he or she got into a website without authorization.  A case in the Eastern District of California, discussed in this post here, has some valuable lessons,  and also some contrasts with a matter I am handling now in a Georgia court.  First to the California case, then we’ll pivot over to the comparisons to my case.

A journalist named Matthew Keys was charged with giving login credentials to hackers with the group Anonymous.  Those online saboteurs supposedly went on the website of the Los Angeles Times newspaper, and changed a headline.  It was about 40 minutes or so before anyone noticed the hack, and the headline was changed back to the original form.  The feds took the case, and charged Mr. Keys with one count of conspiring to make changes to Tribune’s website and damage its computer systems, one count of transmitting damaging code and one count of attempting to transmit damaging code.  The jury found him guilty.

As we talk about all the time on this blog and on our own website, the sentencing process in federal court is very formalized, arising from the wickedly complex Federal Sentencing Guidelines.  First off, a Federal Probation Officer (or “USPO”) interviews the Defendant, gets information from the prosecutor, and then files the first version of the very important “Presentence Report”, sometimes called the “PSR”.  In the PSR, the Probation Officer makes recommendations as to how the sentencing judge should apply the Sentencing Guidelines.  If either side is unhappy with the Probation Officer’s recommendations, that party can file Objections, which the Judge then has to hash out and rule on at the final sentencing hearing, unless the Probation Officer agrees to change the final PSR in a manner acceptable to the objecting party.

We have been following some recent developments in federal criminal prosecutions brought against people who operate  businesses that prepare federal and state income tax returns for their clients.  First,  the U.S. Court of Appeals for the Eleventh Circuit yesterday affirmed a conviction and lengthy sentence imposed on an Atlanta-based tax preparer who had apparently stolen the identities of her own clients and used that information to file bogus requests for tax refunds.  The case is United States v. Ford, and can be accessed here.  Second, I recently finished a case where I was able to convince the federal judge to impose a somewhat lower sentence on another tax preparer because of some upcoming changes in the Federal Sentencing Guidelines.  An earlier post about this sentencing tactic is here.  Finally, I have been representing other tax preparers who are battling with the IRS over issues concerning the operation of their businesses.

In the recent Ford case in the Court of Appeals, the Defendant was convicted after a trial.  During the investigation of the case, and Atlanta-based TV station got wind that Ms. Ford was supposedly engaging in some kind of fraud, so they sent in an undercover reporter wearing a secret camera.  The camera caught Ms. Ford saying and doing some things that were very harmful, and the TV station then aired the typical “gotcha” story, replete with the seemingly angry reporter who was “shocked” that crime happens.  Before trial, Ms. Ford’s attorney argued that putting an incendiary TV show in front of the jury was excessively prejudicial.  The Court of Appeals rejected  this argument, mostly because the prosecutors wisely agreed to take out just about everything from the TV story except the part where Ms. Ford was talking with the undercover reporter.  One lesson for attorneys who represent people accused of fraudulent activities is to always be aware that in this modern media-frenzy culture there always might be a TV story or something on social media you need to be prepared for when defending the case.

As I mentioned in my earlier post on using changes to the Federal Sentencing Guidelines as a method for trying to get a lower sentence, the concept of “loss” and the number of “victims” are two crucial factors that go into the sentencing range that every federal judge faces when starting the process of figuring out the correct sentence for a person convicted of a crime involving fraud.  In the Ford case from yesterday, the defense team argued that the sentencing judge made mistakes when calculating the amount of loss and whether certain people were victims.  While the Court of Appeals rejected these arguments, it is important to remember to object to rulings in such areas so that the Defendant at least has the chance of appealing to a higher court when the sentence is longer than anticipated.  We unfortunately sometimes have clients come to us after another lawyer represented them at the sentencing hearing and failed to remember that it is important to object when the Judge makes a decision that could lead to a higher range under the Sentencing Guidelines.

I write often about criminal defense lawyers, and regularly point out how defending a client against federal crimes is a rare speciality that requires an attorney who keeps up on the law and who will fight for his or her client. In private practice, it is expensive to hire the rare lawyer who has all these qualities. Yesterday, the Supreme Court ruled that it is OK for prosecutors to tie up all the Defendant’s assets pretrial with seizure of bank accounts that prevent the Defendant from hiring the specialist he or she has chosen to defend himself. The case is Kaley v. United States, you can read it here. I previously posted about this important case here and here.

Reduced to the basics, Ms. Kaley and her husband were suspected of crimes. They hired an amazingly good lawyer, and set aside the money needed to let this specialist do his job. The Feds got an indictment, and also got an order freezing the money Ms. Kaley had put aside to pay the attorney. Kaley eventually took the case to the Supreme Court, arguing that she at least had the right to a hearing to challenge whether there was enough evidence to justify tying up her assets even before a trial. She probably has a pretty good chance, in that a trial against a CoDefendant charged with the same crime resulted in an outright acquittal. However, Ms. Kaley did not fare so well in the Supreme Court, which ruled that she has no right to a hearing to challenge the seizure of her money even before a trial.
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A major federal criminal investigation is apparently brewing in the San Diego area. According to news reports, like this one, there are allegations and criminal charges being alleged against some high-ranking Navy officers, and the owner of a major Asia-based supplier of fuel for US ships. While this is still very early, the charges seem to imply that Navy officials took bribes that helped the fuel supplier get more business. According to the charges, the supplier then gouged the Navy with higher prices. At least one Navy officer is also alleged to have kept the owner of the fuel supply company apprised on the internal investigation into all this “fuelishness”.

I always read such stories with a jaundiced eye. The press if often captive to the prosecution at these early stages of a criminal case. Reporters often do nothing other than paraphrase whatever charging document is filed in court or parrot back the government’s press release.
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Recent publicity about airline passengers accused of federal crimes while on airplanes (such as the executive accused of hitting a crying child while on a Delta flight arriving here in Atlanta) got me to thinking about how flying has changed over the years. It’s much less fun, that’s for sure. The recent publicity reminded me also that over the years I have represented many people accused of crimes while on airplanes. The federal prosecutors are bringing more and more criminal cases based on actions of passengers in airplanes. Such cases are challenging, even though on occasion we have been able to get good results for our clients.

I recall one case where our client was accused of basically “touching himself” while sitting next to a couple of teenage girls. We had a long trial, a challenging sentencing hearing, but all along I had hope that we might prevail. We lost, but not until we made the other side work very hard. Here is the final ruling by the Court of Appeals. I still think we were right.
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We have represented executives who worked years ago in businesses that are now under federal investigation for supposedly committing fraud and other white collar offenses. Because our clients left the business many years ago, we are closely following a case that might have a big impact on how we handle the matter. As most people know, crimes almost always are subject to what most people refer to as “the Statute of Limitations,” or “SOL”. In a few weeks the Supreme Court will hear arguments in a fascinating case involving the SOL. The main issue is whether a defendant who was in jail for more than the past 20 years can be forced to prove that he was no longer a member of and withdrew from a conspiracy that continued past the year 2000. The case is Smith v. United States.

The SOL means that once the limitations period has passed, prosecutors can no longer bring a case against a defendant. The general SOL in federal criminal cases says that the prosecutors must get an indictment within 5 years of a crime.
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