Atlanta Criminal Defense Lawyer Blog

January 18, 2023

Discovery Materials in Federal Criminal Cases

A good rainy Wednesday morning here in my Atlanta office for reviewing some of the discovery materials in yet another federal criminal case I am handling. Plowing through these materials reminded me of several important lessons I have learned during the 40 years or so I have been representing folks accused of federal crimes here in Georgia and other parts of the country.

As I have posted about previously, federal criminal cases are highly complex, and the “discovery” materials are often daunting for attorneys unaccustomed to handling such matters. By law and based also on various rulings from the U.S. Supreme Court, prosecutors are only obligated to turn over certain types of evidence prior to trial. However, with the explosion of data in the past several decades the practice is that many prosecutors turn over anything and everything that is remotely related to the case. The result is that lawyers are often drowning in data as they try to piece together what happened and how to defend against the allegations.

One of the tricks when reviewing this glut of materials is to do a quick overview of what has been turned over. Next, the attorney and his or her staff need to begin searching, using various software tools and other aspects of artificial intelligence. Gone the days when the lawyer touches and reviews each and every piece of paper in the file, because that would take the rest of his or her life in cases such as one I am currently handling which has 15 terabytes of data (and we are still many months away from trial)! Another key is to try and figure out how the other side is handling the case and sort of replicate their tracks through the maw of material.

January 16, 2023

MLK Day and Federal Criminal Defense in Atlanta

by Kish Law

Readers know that I am a lawyer who specializes in defending federal criminal investigations and prosecutions, here in my long-time home of Atlanta. This is also the birthplace and spiritual home of Dr. Martin Luther King III. This morning I did some volunteer work (as many do) here in beloved “ATL” as a way to honor the memory and dreams of Dr. King.

Dr. King was no stranger to the criminal justice system. He was jailed, prosecuted and reviled by many who were in charge of the criminal justice systems here in the South. I strongly urge people to read (or re-read) his famed “Letter from a Birmingham Jail” a part of which is one if his most famous quotes: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

I’ve been licking my wounds from a recent fight that I lost in Court. It was (and is) the epitome of “injustice”. It affects a single criminal defendant along with her family and friends (plus her legal team). However, this single injustice is, just like Dr. King wrote, “a threat to justice everywhere”. After several weeks of being down about this result I now have the fight back in my blood and bones. We cannot tolerate injustice, large or small, and this MLK Day is a great way for all of us to remind ourselves that the fight for a better and more perfect society is never-ending.

January 9, 2023

Federal Criminal Cases in a New Year

by Kish Law

2022 is in the rear-view mirror, and 2023 lies ahead, and while I was so busy I did not blog for a while one goal for the New Year is to write more posts on one of my favorite topics: federal criminal investigations and prosecutions along with the job of being a federal criminal defense attorney (which I do all over the country even though my office is here in downtown Atlanta, Georgia).

You tainted regular readers know that I regularly discuss how federal criminal cases are creatures of politics and current events. This year is no different. Lawyers like myself still have lots of work based on investigations arising from the Government’s response to the COVID outbreaks. These are usually what are sometimes called “white collar” or “economic crime” matters. The Payroll Protection Plan (“PPP) involved lots of fraud, what a shock when Congress allowed banks to shovel money out the doors with virtually no oversight and federal government backing if the loans went bad. The same is true for the EIDL program (formally known as the Economic Injury Disaster Loan program). Federal criminal investigations into these loan programs can be very dangerous for individuals or companies who come under the microscope of a federal agent looking at possible fraud. I strongly recommend that you consult with an expert who has significant experience defending such cases.

Health care fraud investigations and prosecutions remain a staple of my work. Any company or individual caught up in one of these situations needs to consult with and possibly hire a lawyer who has lots of experience in these very specialized matters.

June 16, 2022

Federal Health Care Fraud Cases: A Few Observations

by Kish Law

I was just reading a press release from the U.S. Attorney for the Northern District of Georgia, based here in Atlanta a few blocks from my office. The prosecutors touted their recent indictment of a physician’s assistant for supposed health care fraud and other crimes. Reading this made me want to put down a few thoughts about such cases, which we have handled multiple times over the recent years.

Anyone reading our website knows that there are “federal fraud” cases, and then there are sub-species of federal fraud. Health Care Fraud is an especially dangerous and pernicious charge to defend against. For starters, the wickedly complex Federal Sentencing Guidelines make the potential sentences for Health Care Fraud even longer than what is suggested for regular run-of-the -mill fraud. Certain “specific offense characteristics” bump up the scoring mechanism when prosecutors include an allegation that an accused person’s supposedly fraudulent conduct violated one of the Health Care Fraud laws that Congress has enacted over the years.

The accused person and his or her lawyer also need to be keenly aware that there are sub-sets of Health Care Fraud. For example, there is an illegal “kickback”, which the Government defines as: “the knowing and willful payment of ‘remuneration’ to induce or reward patient referrals or the generation of business involving any item or service payable by the Federal health care programs (e.g., drugs, supplies, or health care services for Medicare or Medicaid patients)”. Anti-kickback cases are weirdly complicated with many people wondering why the Feds are interested in the normal back and forth payments that arise in many sectors of our economy.

June 7, 2022

Forty Years and Counting

by Kish Law

It was forty years ago today that I was sworn into the Bar, which is the way we lawyers describe the ceremony of acknowledging that we will strive to uphold the Constitution and the laws while representing our clients. The vast majority of those 40 years has been spent representing my clients who are being investigated for or even prosecuted in federal court for alleged criminal activity. While a lot of time has passed, some things remain the same.

This morning when meeting with a client I remembered one of the things that has not changed in 40 years. Clients who come to see a criminal defense lawyer are almost always scared. Some do not show fear, others are overwhelmed, all are in stress. I remembered that one reason I still love my work after four decades is that I get the chance to help someone in a stressful situation. I am not always successful, but I always try to make my clients lives just a bit better as they go through the stress of an investigation or prosecution. Obviously, winning the case us the best stress reducer of all!

Another thing I remember today is how clients need to know they can trust their lawyer. A different client followed my advice recently and entered a guilty plea. I had won an earlier case for this client, so he trusted my judgment and advice already. Today’s case turned out well, he likely will not have a criminal conviction after a couple of years because of some changes in the law, and his decision to trust my advice led to this positive result.

May 9, 2022

Tips on Negotiating with Federal Prosecutors

by Kish Law

Happy Monday from Atlanta, Georgia where I am working on some of my federal criminal cases. I just finished communicating with one prosecutor, and the process made me think of some of the tips I’ve learned over the years on how federal criminal defense attorneys can improve their skills to better negotiate with federal prosecutors.

As is well known, the vast majority of cases or investigations end up without a trial. That means much of the federal criminal defense lawyer’s time is devoted to talking with an Assistant United States Attorney (“AUSA”) in an effort to see if there is a way to resolve the client’s case more favorably. However, the fact that most cases end up in a plea does not mean that the lawyer should always look to negotiate. Instead, we need to simultaneously prepare to both fight and talk peace, a difficult balancing act.

This leads to negotiating Tip #1. Sometimes the best negotiating tactic is to fight, fight, and fight some more. Over the years I’ve noticed that even the best federal prosecutors get weary when the defense just keeps on coming at them with one issue or another. Every once in a while, this approach causes the AUSA to offer a better “deal” simply to stop the work of responding to the defense motions. Now, this only works when the defense lawyer’s moves are well-founded, and not just some off-the-wall pleading or motion. So, tip #1, work hard, sometimes it pays off for the client down the road.

May 2, 2022

Federal Criminal Defense: Having the Final Word

by Kish Law

Readers know that we handle federal criminal investigations and prosecutions from our office here in beautiful Atlanta, Georgia and all over the remainder of this state and throughout the country. We currently are in federal cases in Vermont, Pennsylvania, Florida, North Carolina, Texas and Arkansas. No matter where we go to help our clients, it is always worth trying to get the “final word.”

I have two matters on my desk this morning that exemplify this need to get the final word. One is a post-conviction matter, the other concerns an upcoming sentencing hearing.

In the post-conviction case, we argue that my client’s previous attorney performed so poorly that the conviction should be over-turned because of the Sixth Amendment violation caused by “ineffective e assistance of counsel.” Both sides filed briefs after the court hearing, and because we went first I am thinking about filing a “reply brief.” I like these reply briefs, for they give me the chance to plow through the prosecutor’s arguments and they try to dissect and destroy them, one at a time.

April 25, 2022

Another Way to get Out of Jail on a Federal Fraud Case

by Kish Law

I posted the other day about a federal fraud case here in the gorgeous Spring weather in Atlanta, Georgia. In that post I mentioned some of the ways to avoid a prison sentence for people facing federal fraud charges arising out of “white collar” or what we sometimes call “economic crimes.” I got a different client out of a federal prison in a fraud case recently, but this was done using a completely different strategy and method. This second matter involved one of those situations in which the client’s cooperation against others was the most valuable asset available to the federal criminal defense lawyer.

My client in this second matter is an extremely bright guy who made some mistakes and got involved in a fraud scheme. I could tell shortly after he and others were indicted together that the prosecutor suspected but did not yet realize that my client was actually the brains behind the operation. We decide to take the chance of going through the “proffer” exercise. I have written before on this, but it is worth describing once again.

When a federal prosecutor believes that a suspect or Defendant has valuable information that might assist in the prosecution of other people, the prosecutor will sometimes ask the defense lawyer to bring the client in for a “proffer.” The Government asks for these to see if the accused person has important and useful information, and also to assess whether my client might make a good witness if he or she decides to cooperate against others.

April 21, 2022

How to Avoid a Jail Sentence in a Federal Fraud Case

by Kish Law

As many know, I am a criminal defense lawyer in Atlanta Georgia who handles federal criminal cases here and all over the United States (I’m currently working on federal cases in Vermont, Pennsylvania, Maryland, North Carolina, Florida, the Middle and Southern Districts of Georgia, and out in Texas and Arkansas). Many of my clients are accused of what are sometimes called “white collar” or “economic” crimes. No matter what name we give such cases, they are almost always charged under one of the federal laws that outlaw fraudulent conduct.

Many people contact us because they are fearful that they might go to a federal prison for one of these fraud-type cases. A case I recently finished included some of the arguments that help such clients avoid a jail sentence in a federal fraud prosecution.

My client was married to one of the other people charged in a large federal fraud prosecution. Her spouse was a former law enforcement official who convinced his wife and others to get involved in a certain business proposition. As you likely guessed already, that business proposition was based on false and untrue (meaning fraudulent) statements in loan applications sent to various banks.

March 17, 2021

Federal Criminal Fraud Investigations and Prosecutions Ramping Up

by Kish Law

I have been a lawyer handling federal criminal defense for almost 40 years, mostly here in Atlanta, but in other parts of the United States when my cases take me there. I keep tabs on trends in federal law enforcement, because it’s part of may job to do so. As part of my regular reading, I came across this article about the likely increase in federal fraud investigations and prosecutions.

Readers (you three know who you are) recognize this is a somewhat regular topic I write about, the changing trends in federal criminal enforcement. For many years, the Feds could not take their eyes off drug crimes. Then came “illegal” aliens. Then it was “terrorism.” Now, after we opened the Federal Treasury for what seems to be much-needed pandemic-assistance, the federal law enforcement agencies are going after individuals who possibly committed fraud to get some of this money.

Astute readers of the previous paragraph will note that I never mentioned the words “corporation,” “companies,” or “businesses.” That is because the history of the past four decades of federal law enforcement clearly demonstrates that the Feds prefer targeting individuals, and let the bigger players get off with little pain. Sure, we occasionally see a big federal criminal case against a company, but this is the rare exception. Instead, we seem to prefer going after the poorest and weakest, make lots of cases and act as if we are doing something about a societal problem. The author Matt Taibbi has written extensively about this trend, I recommend his work.