Federal Criminal Trials

March 11, 2009

Another Miscarriage of Criminal Justice in Atlanta: The Eleventh Circuit Federal Court of Appeals Renews our Tenacity in Fighting for Rights

Demarick Hunter is serving a sentence of 15 years and 8 months in federal prison for possessing a firearm. The Armed Career Criminal Act (ACCA) provides for a minimum sentence of 15 years for career criminals who carry firearms. Mr. Hunter’s prior convictions do not qualify him as a career criminal under the ACCA. The Eleventh Circuit acknowledged that he is serving an illegal sentence, but refused to allow him to appeal it.

The ACCA applies to people with at least 3 prior convictions for violent felonies or drug offenses. Mr. Hunter was sentenced as a career criminal under this act because in addition to one conviction for a drug offense, his two prior convictions for carrying a concealed weapon were considered violent felonies. Last year the Eleventh Circuit acknowledged that carrying a concealed weapon may not be a violent felony. In the Hunter case last month, the Eleventh Circuit agreed that Hunter was erroneously sentenced, but denied his request for a certificate of appealability because “a sentencing error alone does not amount to a substantial showing of the denial of a constitutional right.” The miscarriage of justice in this decision for Mr. Hunter is maddening in and of itself.

However, there is an even more infuriating aspect to this decision. The Court notes at the end of this decision that Mr. Hunter can’t show ineffective assistance of counsel because his lawyers didn’t argue at sentencing or direct appeal that carrying a concealed weapon was not a violent felony under the ACCA. Most lawyers wouldn’t have done so. At the time of Mr. Hunter’s sentencing and direct appeal, binding case law held that carrying a concealed weapon was a violent felony.

November 17, 2008

Prosecutors Unhappy in Federal White Collar Cases: Supreme Court to Decide Whether There Can Be Second Trial for Defendant When First Jury Acquitted But Hung on Some Counts

by Kish Law

Some prosecutors are a little like complaining children, they are never satisfied unless they get their way, and they will continue to whine for a long time until they do. This past Friday, in an appeal involving a white collar federal criminal prosecution the Supreme Court took a case to answer whether federal prosecutors can get a second bite at the apple when at the first trial the defendant was acquitted of the major counts, the jury hung on other counts, and in finding the defendant not guilty the jury must have resolved the facts in the defendant’s favor. (Defendant’s Petition here)

The defendant was involved in the Enron mess. He was charged with conspiracy, mail and wire fraud, securities violations, insider trading and for laundering the money related to the insider trading. The jury found him not guilty of everything except the insider trading and money laundering, and on these charges, they were unable to reach a verdict. The prosecutors tried to crank up a new set of charges based on the areas where the jury did not reach a verdict. The defendant pointed to the Double Jeopardy protection which includes what we call “collateral estoppel”. This is the issue the Supreme Court will address in the case.

The collateral estoppel question is both a technical legal issue, along with being a common-sense concept that the average man or woman on the street can figure out (think “Joe the Plumber” gets prosecuted a second time when the first jury found him innocent on basically everything charged). Here’s the technical description. Under the rule of collateral estoppel, when a first jury necessarily decides a certain fact against a party, that same party is prevented (or what as we lawyers say, is “estopped”) from again trying to litigate that same fact at a later trial. However, what happens when a first jury rules for the defendant, but the jury for some reason is unable to reach a verdict on other charges that have the same basic factual underpinnings? Some of the federal courts say that the hung counts prevent the courts from being certain that the facts underlying the acquitted counts were necessarily found in the defendant’s favor. Other federal courts rule in the complete opposite direction: saying that it makes no sense to even consider the charges where the jury was unable to reach a verdict when deciding whether certain facts were necessarily found in the defendant’s favor. These inconsistent rulings were likely the major reason the Supreme Court agreed to take the case involving the Enron defendant.

October 13, 2008

Crime in the Federal Courts: When Investigators Scrutinize the Judges for Potential Criminal Activity

by Kish Law

Criminal cases in the federal courts here in Atlanta are no different than in other parts of the country. Criminal defense attorneys and prosecutors make their arguments in front of federal judges, who under our Constitution are appointed to lifetime positions by the President, with the consent and approval of Congress. However, what happens when investigators scrutinize not the defendant, but the judge himself?

An article today explains that there currently an unprecedented number of investigations into the activities of sitting federal judges. One of these activities has ripened into a criminal case against the judge, while others are at the stage at which the judge could receive some sanctions.

Two of the open cases involve judges who are alleged to have engaged in possibly illegal or, at the least, highly questionable, acts related to sex. One of the judges supposedly went on a two-night binge at a topless club and used an escort service, and that judge alleges that his acts were “private and personal involving human frailties and foibles.” This is exactly the argument we make as criminal defense attorneys on a daily basis, and we, perhaps more than most people, appreciate that even the best and most accomplished of our fellow citizens can engage in some amazingly stupid behavior.

September 9, 2008

Atlanta Federal Criminal Case: Can Police Search a Spouse’s Computer?

by Kish Law

We are working on a federal criminal case here in Atlanta where one of the issues is whether the police broke the law when a wife gave them her husband’s computer and the police then searched through it finding incriminating materials. This is becoming more and more common, questions revolving around whether one person can let the authorities look through a computer belonging to another person.

In our case, the couple were in the middle of a divorce. The husband moved out, but left behind several computers, one for personal use, and others that were apparently for his job. On the personal computer, the wife got her “friend” to hack into it. This is crucial, because when the police showed up, she told them that her husband used a password which previously prevented her from getting into certain parts of the computer. The police took the computers, and later found information that prosecutors want to use in the criminal case. We are in the middle of fighting over whether this was OK.

The general rule is that police can get “consent” from a person who has “common authority” over an area or item, and if the police then seize and search through such an area, their actions are lawful. The United States Court of Appeals for the Eleventh Circuit recently published an opinion on this exact issue. In that case, the Court of Appeals ruled that the police were justified in believing that a motel manager had the authority to allow for the search of a room even though the guest’s time had not yet run out. The reason the police should have believed that the manager had authority to consent to the search was because the guest had just been arrested on other charges and it was unlikely he would get out on bond before morning.

August 29, 2008

Lawyers in Federal Court; Major Case Affirms Right to Have Company Pay Legal Fees for Employees

by Kish Law

The right to have a lawyer defend a person against federal criminal charges was affirmed yesterday in a major ruling issued by the United States Court of Appeals for the Second Circuit. The case, United States v. Stein, affirmed a decision by a District Judge who dismissed all charges because the prosecutors violated the Sixth Amendment rights of company employees who wanted the company to pay their legal fees. This case is a major development, in that it assures both companies and their employees that it is appropriate to have the employer pay the worker’s attorneys.

It has been a standard practice for many years for large companies to pay the defense fees for its high ranking employees. Many companies are regularly investigated, and operate in areas where the law is not always clear. Few people would agree to take high-ranking positions in such companies if they anticipated having to pay huge legal fees every time the company comes under scrutiny. As a result, most companies agree to indemnify the defense expenses for their employees. This is important in that getting qualified counsel is a very expensive proposition, especially when the investigation is far-flung and results in the defense attorney having to cull through millions of documents in order to properly advise his or her client.

About 7 years ago the Department of Justice (DOJ) began taking the position that companies which pay the legal fees for their employees are less deserving of a break when it came to resolving potential criminal charges. In 2004, the massive accounting firm KPMG was under investigation. The company then worked out its own deal through which no charges would be brought (although KPMG agreed to pay over $450 million in fines, etc.) but DOJ then indicted 13 employees.Under pressure from DOJ, the company restricted its usual practice of paying the legal fees for its employees under investigation who actually got indicted. The case was massive, and the attorneys for the defendants pointed out there was no way they could ever get paid unless the company adhered to its usual practice of indemnifying legal expenses.

August 22, 2008

Sentencing Issues for Federal White Collar Crime Cases

by Kish Law

The United States Court of Appeals for the Tenth Circuit recently issued a very lengthy opinion that covers a variety of sentencing issues we see quite often in federal white collar cases. Although this case came out of the appellate court that covers Denver, we see similar issues in cases here in Atlanta, the rest of Georgia, as well as in Alabama and Florida.

The case out in Denver involved charges of fraud against some bankers. They were convicted, and on appeal both the defendants and the prosecutors argued that the trial judge made mistakes when imposing the sentences.

The main sentencing issue on appeal involved the question of “loss” under the Federal Sentencing Guidelines. I have written at length on the Guidelines in other posts. The “loss” calculation is especially tricky. The defendants in the Denver case, through their very able lawyers, made the rather sensical argument that what they got out of the crime is the same as the “loss.” Unfortunately, a lot of lawyers who do not get into federal court all that often mistakenly believe that this is the law. It is not. The concept of “loss” under the Sentencing Guidelines is far greater than what a person gets. It also covers “intended loss”, along with losses caused by other people who did the same thing.

July 26, 2008

Federal Prosecutors Trying to Seize Assets: the Details are Important!

by Kish Law

Federal prosecutors are more and more fond of trying to seize assets from people who are prosecuted for federal crimes. We see this quite a bit in money laundering and white collar crime cases. However, a recent federal case that started in South Florida shows that the details are always important, and a good lawyer who keeps the feds on their toes can sometimes prevent such asset forfeitures.

The recent decision by the Eleventh Circuit Court of Appeals here in Atlanta in the case of United States v. De la Mata is a perfect example of this principle. Many years ago, the feds prosecuted Mr. De La Mata and others, and got convictions and lengthy sentences. Significantly, some of the defendants included corporations owned and controlled by De La Mata and others. The prosecutors also wanted to forfeit assets owned by the people and by the corporations. However, and here’s the important part, the prosecutors tried to use a short cut, and got the individual defendants to agree to turn over a large quantity of assets. The prosecutors forgot that the corporations were separate entities. As a result, the order entered by the judge turned over assets owned by the corporations, without ever hearing from the corporations themselves.

Several years passed, and the corporations asked for a return of their property. The government refused, and the judge also would not give back the assets. The court of Appeals recently agreed with the corporations. The opinion notes how the prosecutors could not use the shortcut of an agreement with the individual defendants to get property owned by the corporations.

May 30, 2008

Crafty federal investigators get help from the courts: suspects must remember to keep their mouths shut

by Kish Law

Federal agents who work for the FBI, DEA, ATF and the like can sometimes be very crafty in trying to get a suspect to make a statement that later will be used in court. There is an old saying in my business that it’s mighty hard to catch a fish that won’t open its mouth. A recent set of cases from the United States Court of Appeals for the Eleventh Circuit gives more power to federal agents when they are investigating suspects who are still in state custody. These decisions allow federal agents to basically ingore the Sixth Amendment rights of suspects who are in state jails while awaiting later federal charges.

The Sixth Amendment to the United States Constitution includes one of our most cherished personal rights. This amendment says that “in all criminal prosecutions the accused shall enjoy the right…to have the assistance of counsel for his defense.” However, over the past two decades the courts have been slowly but surely chipping away at our personal freedoms, and the Sixth Amendment’s promise of “the right…to have the assistance of counsel” is one more casualty in this process. One way that the courts have been restricting this right is by ruling that the Sixth Amendment is “offense specific.” Another method for restricting this right is when the courts have ruled that the right to counsel only starts at the “initiation of adversary judicial criminal proceedings”, which means that if the police want to speak to you before a criminal prosecution has begun, they basically can do so even if you have a lawyer already. However, once a case has started, and you have a lawyer, the police or investigators cannot talk with the defendant, and if they do, any statements are generally inadmissible in court.

In a recent decision, the Eleventh Circuit continued the unfortunate trend of chopping away at the right to counsel. The defendant was arrested by state authorities and charged with possession of cocaine. He hired a lawyer, thereby asserting his Sixth Amendment right to have an attorney whenever some agents wanted to question him. After he hired his lawyer, some federal agents went to visit this defendant at the jail, and they got him to confess. Later, federal prosecutors brought a case for the same incident, but charged it slightly differently. In the federal case, the defendant’s lawyer argued that the statement to the federal agents was obtained in violation of his client’s Siixth Amendment right, in that the defendant had already hired an attorney for the charges at the point when the federal agents went to the state jail.

February 19, 2008

Federal Criminal Charges Dismissed in Atlanta Against Doctor: Be Careful What you Say on an Airplane

by Kish Law

The final step of dismissing federal criminal charges against a medical doctor took place today in Atlanta when we got word that the United States Attorney’s office agrees that our client fulfilled his part of a pretrial diversion agreement. This case is a lesson in several aspects of federal criminal cases: 1) the feds will always try to use a new law if they get the opportunity, 2) clients need criminal defense attorneys who will fight like crazy against new statutes, 3) reasonable prosecutors can usually be convinced to do the right thing.

Here is what happened. We have been representing a medical doctor for several years who was hauled off an airplane in Atlanta, and accused of making hoax statements about something in his luggage. Here is a web site created by his supporters that lays out some of what happened. Through numerous mistakes, airline and security personnel allowed the doctor to get on the wrong flight, and when the mistake was discovered, he was asked to leave. The doctor was understandably angry, and insisted that his bags be removed as well. Airline personnel refused, and he said that was a very bad idea. By virtue of his work, the doctor was trained about terrorism matters, and it was foolish to let his bags stay on theplane. He explained that for all the airline people knew, there COULD be something in his bag that COULD explode. He was arrested, and for the past two and one-half years Paul Kish has been trying to get this matter concluded.

The major problem with the case was that the government decided to try and use a brand new criminal statute, 18 U.S.C. section 1038. This law basically makes it a crime to make a false statement, which if true, would cause another person to think that an act of terrorism was about to take place. The law is way out there, an example of governmental overreaching after the horrible events of September 11, 2001.

February 1, 2008

Practicing federal criminal law in Atlanta: sometimes it gets a little weird

by Kish Law

Most folks who know me or who might stumble across this blog recognize that I practice mostly federal criminal law here in Atlanta. I have been doing this for about 23 years now, and still enjoy my work immensely. Nevertheless, there are some aspects of being a criminal defense lawyer here in Georgia (or anywhere else for that matter) which are downright weird, scary and at times depressing. Let me explain a recent example of this.

My law partner Carl and I recently represented a very good and honorable family man in a large mortgage fraud prosecution. Our client was one of the least involved people in the whole scheme. He had nothing to do with the actual fraudulent transactions with the lending institution. After we talked the case over for a long time, this man decided that the best option for himself and his family was to enter a guilty plea, even though we had some serious doubts as to whether a jury would find him guilty at a trial.

Anyone who has ever read this blog knows how I ramble on about the Sentencing Guidelines and the spate of decisions in the past 7 years from the Supreme Court. One part of the Guidelines allows for a judge to consider a lower sentence if a defendant cooperates in the investigation or prosecution of other people. However, this reduction for cooperation only can happen when the prosecutor asks for it, in what we call a “5K” motion or a “Rule 35” proceeding. Individual prosecutors need to get approval from their supervisors as to how much of a reduction they can request for a particular defendant. Most U.S. Attorney’s offices have groups of senior prosecutors who screen these 5K requests, supposedly to make sure that they are handled uniformly.