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Avvo Rating - 10.0 Paul Kish Top Attorney
Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence
Avvo Rating - 10.0 Paul Kish Top Attorney
Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence

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I posted recently about how as lawyers we feel good if we win a criminal case.  My client from this recent case recently posted his feelings on the same subject, and some attorneys might find it valuable to see how the matter looked like from his perspective.  Here is what he wrote.

I hope whoever is reading this finds my words with sincerity. I had been accused of a crime that I was 100% innocent of but the circumstances made me appear to be implicated in some way. My name and image were published in the newspaper and plastered on the internet. Myself and Paul were up against a task force who in court gave their expert testimony against me. They did an excellent job vilifying me in court. But Paul did a much better job conveying my innocence. His speech was delivered with a surgeon’s precision. He was passionate about my innocence. I couldn’t believe it when Paul cross examined one of the expert witnesses who was also the arresting officer. Paul got him to admit on the stand that their entire case against me was speculation and that based on their evidence and approach I could have easily been as innocent as I was guilty. Paul got the truth to come out of this officer’s mouth on the stand in front of the jury! There are so many good things I can say about Paul Kish. I am now able to move on with my life with a clean record because of this man. I couldn’t believe how hard Paul fought for me in court. Right before the Foreperson read the verdict I turned to Paul and let him know that no matter how the verdict came back I was truly grateful for the effort he put in. He was worth every penny. Thank you again Paul! (Not Guilty!)

(Before Trial)

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I won a criminal trial when the jury last evening returned the lovely two-word verdict of “not guilty” for my client in a case in a court just north of Atlanta.  As a criminal defense lawyer, hearing these two words is too rare and always comes after a lot of hard work and pressure.

Winning a criminal case is always an uphill battle, and puts a lot of stress on the attorney.  A federal judge who has presided over criminal trials for many years posted his own observations about these stresses: https://blog.simplejustice.us/2017/03/29/kopfs-top-ten-observations-about-criminal-defense-lawyers/.  This judge noted that, “When it comes to convincing a client to reject a plea offer and take the case to a jury, a criminal defense lawyer (regardless of gender) must possess balls of steel.”  However, today I want to briefly talk about the impact on clients who have the guts to take their cases to trial.

Yesterday’s case was a perfect example of the extraordinary stress that a client faces when he or she decides to take their case to trial.  My client had no prior criminal record, is 31, and an extremely hard-working man.  He has big plans for his future, and consistently denied that he committed the crime he was accused of doing. The prosecutor had a not-very-strong case, and continued to make “offers” to get the client to plead guilty.  In the final offer, the prosecutor agreed that if the client pled guilty he would get no jail time, a minimal fine, and that after a short period of probation the conviction would be “restricted” from his record. However, many people know that these “record restriction” rules still allow for the conviction to remain on a person’s record, but only law enforcement officials can see the case.

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In some of my federal criminal cases, my client decides to plead guilty in order to reduce his or her exposure to a harsher sentence.  This happens in cases all around the country, Atlanta to Anchorage, no surprise.  However, in the past 36 years I’ve come across some problems and pitfalls that can make a guilty plea actually worse than fighting the charge.

In the federal criminal justice system, we all know about the Sentencing Guidelines.  This is a point-based system that leads to a range of punishments.  Most issues add points to the calculation, but pleading guilty can lead to a 2 or 3-point reduction for “acceptance of responsibility.”  One pitfall is when the Defendant does or does something that leads the Judge to feel that the Defendant has not really accepted responsibility, even though the person plead guilty to the crime.  Such a client loses on both ends, they still get a longer sentence and lose their right to fight the case.  That is why it is so important to go over in detail everything that happens leading up to, during, and after the guilty plea proceeding.  The lawyer and the client need to be on the same page and script, so to speak.  While I never want to tell my clients exactly what to say, it is important that they know what will happen so I can advise them how to answer certain questions. Continue reading

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I’m currently working on a federal criminal case in a court near Atlanta, and am plowing through the manner by which various law enforcement agents seized evidence that the Assistant United States Attorney (also called the “AUSA”)  wants to use against my client.  This process has me thinking about the many ways that law enforcement can obtain evidence, and the questions of whether the lawyer representing the Defendant should, or should not, file a “Motion to Suppress.”  Lots of people know that our wonderful Constitution contains the Fourth Amendment, which says the government cannot search for or seize evidence unless they have “probable cause”, and usually a warrant issued by a judge.  When they do not have sufficient grounds for a search or seizure, sometimes the Court will “suppress” the evidence, meaning it cannot be used during the trial.

My clients and others sometimes do not realize that law enforcement officials are allowed to gather evidence in many other situations where they do not have a warrant, or any level of suspicion at all. For example, the law does not prevent a police officer from walking up to your front door, ringing the doorbell, and asking you some questions.  This is sometimes called a “police-citizen encounter”, and federal agents lovingly refer to this as a “knock and talk.”  Anyone foolish enough to talk to law enforcement in this situation needs to know full well that anything coming out of their mouth, as the old saying goes, “can and will be used against you in court.”  A Motion to Suppress will not help any Defendant in this context, if he or she voluntarily made statements (although there certainly are situations where the police at the front door make it seem as if the person is obligated to talk; that is a totally different matter).

Another way that federal law enforcement officials get evidence without a warrant is by using various administrative processes that result in an order that some person or company turn over information.  It usually works like this:  a company in an area regulated by some federal agency has an obligation to cooperate with that agency’s investigations.  The agency sends an order, directing the company to turn over a boatload of information.  If the company fails to do so, the agency can go to court to enforce the court order, and can make other bad things happen to the company.  Again, no search warrant, and no Motion to Suppress will help if the company or its officials are later charged with a crime.

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I’ve made my living the past three decades plus representing people charged in federal criminal cases, mostly here in Atlanta.  The news the past couple of days has been dominated by three other federal criminal matters, the case in Virginia against Paul Manafort (as I’ve mentioned previously, this man is in an unfortunate situation but has a great first name), the guilty plea yesterday by attorney Michael Cohen, and the sentencing hearing a few hours ago where the Judge imposed 63 months on the unfortunately named Reality Winner for releasing secret information to a news organization.

The internet has gone wild over the jury trial and partial verdict involving Mr. Manafort, and anyone who has wasted time reading this blog knows about federal sentencing hearings and trials, and likely understands that Manafort’s sentence can be calculated as if he was found guilty of all the charges.  That’s right troops, the hung jury on 10 of the crimes makes no difference because under the foolish experiment called the Sentencing Guidelines the Judge can sentence Paul based on conduct that he was even found not guilty of committing!  I remember a case I handled around 20 years ago where I won most of the charges but the prosecutor, referring to the rule authorizing use of acquitted conduct, asked for a much longer sentence.  The judge agreed with me, pointing out that Mr. Kish “cheated them fair and square at trial.” That Judge always made me laugh, at least until he ruled against me or gave my client a lengthy sentence.  Continue reading

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Although I am in Atlanta and tend to handle federal criminal cases here in Georgia and nearby states, I also work on cases throughout the country when asked to do so.  As a result, I also try to keep up with federal criminal matters arising in other “circuits.”  Yesterday a Federal Court of Appeals (the Sixth Circuit) that deals with cases out of Kentucky affirmed some health care fraud convictions for doctors and others who operated labs that tested patient urine samples.  The case is called United States v. Bertram.  18-5002-2018-08-20.  This decision is yet another lesson as to how complicated these cases can be, and how issues can be missed by even the best lawyers and judges.

The Defendants were some small-town doctors and business people who were in an area where the opioid scourge has caused so much pain and agony.  A couple of the doctors operated addiction clinics and needed labs to test patient urine samples for drug use and other information.  They formed their own test lab, but test samples began to back up when the equipment did not operate at first.  The samples were frozen for up to 10 months before being tested.  The lab then sent requests for payment to private insurance companies.  The government said this was health care fraud, because the lab operators failed to disclose that they had waited up to 10 months to test the frozen urine samples, and this constituted a “scheme to defraud.”  The jury rejected most of the prosecutors’ case, but each Defendant was found guilty of some charges related to bills submitted to Anthem Insurance.  The judge imposed what to my eye seemed to be rather modest sentences, ranging between 13-21 months.  Reading the case yields two observations.

First, the sentencing part of the case is exceedingly similar to my recent securities fraud matter where we had the two-day sentencing hearing, whittling down the Guideline range from close to 30 years to point where the judge imposed 10 years on my client.  Federal criminal sentencing proceedings for these white collar criminal matters often involve the same common issues: calculation of “loss,” whether to bump the Defendant’s score up for “sophisticated means”, did the Defendant abuse a “position of trust”, and what was his or her “role in the offense.”  Anyone facing such a case needs an attorney well-versed in these complex sentencing subjects.

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I wasn’t always a criminal defense lawyer in Atlanta who handles a lot of federal cases.  Oh no, at one time I was a smooth-faced high schooler who played lots of sports and also was in plays from time to time in the little Midwestern town where I grew up.  One play, My Fair Lady, reminded me of the importance of words.  Eliza Doolittle, a poor girl who the main character was trying to pass off as a Princess by changing her dialect, had a memorable line of complaint for her teachers:  “Words words word all day long, first from him then from you, is that all you blighters can do?”  A recent case from the venerable U.S. Court of Appeals for the Eleventh Circuit reminded me that when it comes to a Plea Agreement in a federal criminal case, Eliza’s complaint was something that lawyers need to remember, words can be crucial.  United States v. Elbeblawy.

First, a couple of legal principles.  As a general rule, whether in the criminal or civil context, discussions between two parties that are done with an eye toward resolving a particular dispute are usually not admissible in later court proceedings if the negotiations break down.  The basic idea is that the law wants to encourage the two sides to try and resolve the matter through discussions as opposed to fighting, and the parties are less likely to be forthcoming in such discussions if they know that their words can come back to bite them.  Next, a part of Rule 11 from the Federal Rules of Criminal Procedure and a different place within the Federal Rules of Evidence (Rule 410 to be precise) essentially encapsulate this idea of keeping plea negotiation discussions out-of-bounds from later trials.  Finally, just like any other protection, these rules can be “waived”, but only as long as the person or party understands the protection and makes a voluntary decision to give it up.

Now for Mr. Elbeblawy.  He got caught in a large-scale healthcare fraud investigation, decided to cooperate, and had his lawyer negotiate a plea deal.  As part of the deal the Defendant told investigators everything that he and others had done illegally, and also signed a separate document outlining and agreeing to his own criminal conduct.  He signed the Plea Agreement, but got cold feet when he got to court and backed out of the deal.  Now, federal prosecutors are a pretty savvy bunch, they’ve seen this before.  Therefore, just about every plea agreement in a federal criminal case comes with a waiver of the Rule11/Rule 410 protections.  You guessed it, they brought new charges against Mr. Elbeblawy, introduced everything he had told investigators and the plea documents, and to no one’s surprise, he was found guilty.

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Like me here in Atlanta, criminal defense lawyers around the country are probably reading about the federal criminal trial involving Paul Manafort (guy with a great first name), the former Campaign Chairman in the last Presidential election.  And like me, lawyers and laypersons alike are wondering about the impact of the evidence and witnesses on the jury.  This made me reflect on what I have learned after trying around 100 criminal jury trials in both federal and state courts during my career.

To begin with, there is a huge difference depending on whether the criminal case is in state court or in the federal arena.  State cases are generally creatures of the county in which the crime happened.  For the most part (unless a statewide agency such as the Medicaid Fraud Control Unit, or “MFCU”, is involved) the case is brought by the county’s District Attorney.  As a general rule, trials have to be in the county where the crime happened.  The jurors only come from that single county, whether it is a huge place like Fulton or Dekalb, or a small rural county far from a large city.  This means that in the smaller counties the jurors often know of or have heard something about either the crime, the Defendant, or some of the attorneys. Federal criminal cases, on the other hand, are handled by “Districts.”  Georgia has three separate federal judicial Districts, Northern, Middle and Southern.  Atlanta is in the Northern District, and there are then four “Divisions”: Gainesville, Rome, Atlanta and Newnan.  Jurors come from the counties in each Division, but that can mean jurors in DeKalb will sit with jurors from Rockdale all on an Atlanta Division case in the Northern District.  The bottom line is that federal jurors came from a wider array of locations and backgrounds.

Another distinction is the method used for selecting jurors.  We lawyers call this “voir dire“, which are supposedly old English words but others claim the expression comes from Latin. Essentially, voir dire is a process by which both sides get to question prospective jurors to see if one side wants to exclude that person from sitting on the jury.  Depending on the jurisdiction, each side gets a certain number of “strikes”, meaning that they can knock that number of people out of consideration for being on the jury.  The questioning involved in voir dire in a state criminal trial is much different than what happens in federal court.  State judges tend to let the lawyers have free reign, asking a wide variety of questions of each individual juror who is up for consideration.  Federal court is much more restricted, and sometimes the Judges won’t let the lawyer ask any questions at all, the Judge will handle all the juror questioning.  As a result, federal jury selection often happens in a matter of hours, while the state counterpart often takes days.

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I have tried around 100 federal criminal cases here in Atlanta over my 35 year career. A recent report from the National Association of Criminal Defense Lawyers (“NACDL”) demonstrates that trials in federal criminal cases are almost “extinct.”  The report shows that a mere 3% of Defendants take their cases to trial, mostly because of the mismatch in bargaining position between the defense and the prosecution.   Some people want to react to this by saying” Why have trials for guilty people anyway?” For those who might have such a reaction, I can only hope that it is never you or your family who finds themselves facing a federal investigation or prosecution.  Furthermore, if we think it through a little bit, we will see that letting the prosecution have excess power, resulting in virtually no trials, is almost like the situation that led to the enactment of the Endangered Species Act. 

For starters, everybody is entitled to a trial on criminal charges, it says so right in the Sixth Amendment.  However, the almost unmatched power of federal prosecutors brought about by various statutes enacted by Congress, along with the draconian Sentencing Guidelines, means that even innocent people are now pleading guilty.  The report sets out what I already know, those who plead guilty get far less punishment.  The report notes two seemingly equal Defendants, one who “flipped” and cooperated against the other who went to trial.  You guessed it, the flipper gets a couple of years, the Defendant who had the gall to assert his Constitutional right to trial got 45 years! My own recent experience is the same, my client got ten years while the far more culpable co-Defendant who pled guilty and testified got a mere 24 months!

The NACDL report concluded that guilty pleas have replaced trials because anyone who exercises his or her right to take the case to a jury is facing “exponentially higher sentences.” Defense lawyers and prosecutors now spend most of their time “negotiating”.  Judges rarely preside over trials, and therefore have no or very little experience when such a case comes before them.  However, when just about every case ends after a long negotiation instead of a public trial, we all lose.  The public no longer sees the facts of a case.  Prosecutors no longer have to prove their allegations beyond a reasonable doubt.  And, most importantly, some clearly innocent people will “take a plea” instead of taking the chance that their life will be ruined by an excessively long sentence.  Like the Endangered Species Act, we need a new law to prevent the extinction of the right to trial.

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All lawyers need to keep up with their reading, and criminal defense attorneys are no different.  I’ve been plowing through recent federal criminal cases, and came across three (not from the Atlanta area) that deal with the financial aspects of a federal criminal sentence.  Each sort of reminds me of the Ojay’s song, “For the Love of Money”  with that great refrain, “Money Money Money Money, MONEY!”

OK, class, let’s remember the basics.  A federal criminal sentencing hearing involves more than just the amount of time a person might have to go to prison.  A federal judge can also impose three distinct types of financial orders that require payment.  First there is a “fine”, which usually can be up to $250,000 per count, this money is considered “punishment” and the payment goes directly to Uncle Sam.  Next, there is “restitution”.  This is supposed to pay back victims any loss they suffered from the crime, and while the Defendant pays this money to the Clerk of the Court, the money goes back to the victim eventually.  Then, we have the often misunderstood “forfeiture.”  Under the current version of this old doctrine, property used in or obtained as a result of a crime belongs to the government from the moment the crime took place.  If that property has been used up (or in the case of real money, has been spent) then the government can try to get an equal amount out of the Defendant using the “substitute assets” rule.  The forfeiture payments also go right to the U.S.  And, here’s the kicker: if a Defendant is able to pay, he or she can be forced to pay all three amounts for the same crime, meaning triple whammy for any person of means who is convicted of a federal offense.

Now to our recent decisions discussing some of these financial aspects of federal criminal sentencing.     In United States v. Green 16-3044-2018-07-31, the Defendant’s Mom got VA benefits, and when her mother passed away, Ms. Green kept spending the monthly check without telling the VA. This went on for many years, and it took many years more before the government got around to charging her with a crime in New York.  Ms. Green was required to pay restitution, but the question was how far back did her restitution obligation go, especially since many of the monthly payments were outside the 5-year statute of limitations?  The prosecutors argued that embezzlement of this sort is a “continuing crime”, meaning that they wanted her to pay restitution back to the point when the Defendant’s mother died. Nope, said the Second Circuit, only those within the limitations period qualify as restitution.

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