Georgia Federal Criminal Lawyer Blog

In a federal criminal case that was prosecuted in Atlanta, Georgia, the Eleventh Circuit Court of Appeals recently affirmed the sentences of two individuals convicted of conspiracy to commit theft of trade secrets. This federal case received a lot of media attention because it involved an allegation that a Coca-Cola Company employee and others attempted to sell confidential documents and materials to one of Coke's main competitors, Pepsi. After learning of the alleged scheme, an FBI agent posed as a Pepsi employee who was interested in purchasing the documents.

Ultimately, the Coke employee and two others were charged and convicted in federal court here in Atlanta. On appeal, the lawyers for two of the defendants raised a number of arguments, including the argument that the sentences that the trial court imposed, both of which were above the applicable guideline range, were unreasonable. The Court of Appeals disagreed, however. According to the Court of Appeals, neither defendant was able to show that the sentence at issue was either procedurally or substantively unreasonable.

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An article in yesterday's New York Times examines federal drug sentences as part of the overall picture which shows that the U.S. leads the world in the number of people incarcerated, as well as in the length of those sentences. Part of the article looks at statistics showing how federal criminal sentences have exploded in the past two decades. Around 1980 there were 40,000 people serving time for federal crimes. That figure has expanded to almost 500,000 federal prisoners at the present time. The article points out that more than half of the people doing federal time were convicted of drug crimes. Here is a little background on how this amazing expansion of federal drug prisoners came to be.

When I was just out of law school in the early 1980's, I worked for a couple of federal judges as a law clerk. It's a great job where recent students help the judge and also get to see the legal system up close and in action. I always watched the criminal trials with interest. The drug cases tended to be prosecutions of large-scale dealers, importers and middle men. Cocaine seemed to be the drug that federal prosecutors focused upon.

I remember one case involving a pretty big dealer where the judge for whom I worked imposed what I thought was a rather harsh sentence, 15 years in prison. Later, the judge laughed when he explained that the guy would be out in under 5 years, maybe less. The reason was the old parole system used by the feds really only required the person to do about one-third of the actual sentence.

By the middle of the 1980's, Congress and the Reagan Administration were going full bore in their oddly misnamed "War on Drugs." Congress created mandatory minimum sentences, and in 1984, the extremely unfortunate Federal Sentencing Guidelines. Furthermore, the Reagan Administration convinced Congress to fund huge increases for the DEA and the Department of Justice. All those new DEA agents and young prosecutors needed to do something to justify their salaries, so lo and behold, the number of drug prosecutions shot skyward. However, going after drug kingpins is long and laborious work. By the 1990's, we were mostly seeing street-level dealers getting prosecuted in federal court. Only rarely have I seen a really big federal drug case in the past 15 years or so.

However, while the dealers are smaller, the sentences are now much longer. The mandatory minimum sentences, along with the ridiculous 100:1 ratio of punishments for crack versus powder cocaine, resulted in amazingly unjust sentences. Remember the 15 to serve 5 sentence imposed by my old judge on the high-level dealer? Nowadays, the kid who makes a couple of hundred dollars a week selling will get 10 years to serve, with no parole and no hope of early release (except for a little off for good behavior.) Other sentences likewise are far longer. I had a case a couple of years ago where my client had two prior drug convictions. This man was an addict, and a young drug dealer convinced the addict to carry a two ounce package across the street. The combination of the mandatory minimums along with some amazingly harsh rules for repeat offenders meant that this man was required to serve 30 years! And this for a low-level addict merely carrying the drugs in the hope of earning a small hit to fee his habit!

Our nation now incarcerates more people for drug crimes than any other country on earth. This has been an amazing waste of time, money, and most importantly, human lives. Lawyers who recognize how we came to this point in our nation's history need to tell the sad story of how all this came about. Only when the people realize how unproductive this all is can we hope to bring some sanity back to this aspect of our criminal justice system.

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Posted In: Drug Crimes

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A federal conviction in a white collar fraud prosecution out of Alabama was recently reversed by the United States Court of Appeals for the Eleventh Circuit. This case could be a very important decision for many people who have faced federal fraud charges. The decision in United States v. Svete might even impact some cases where the defendant was convicted years ago.

Here's what happened. Mr. Svete and another man were prosecuted for a supposed fraud involving the "viaticals" component of the insurance business. One of the charges alleged that the defendants committed federal mail fraud, which requires proof of "a scheme to defraud." About ten years ago, the Eleventh Circuit Court of Appeals issued a very sensible ruling, pointing out that not all people who lose money in an investment are victims of mail fraud. Instead, this earlier decision explained that before a person could be convicted of federal fraud charges, there had to be proof that the defendant concocted a scheme "reasonably calculated to deceive persons of ordinary prudence and comprehension." In other words, just because some people lose money does not make the person who got their money a criminal, if the victims did not use "ordinary prudence and comprehension."

Now, here's the important part of the Svete case. Like most courts, the Eleventh Circuit puts out a standard set of Pattern Jury Instructions that judges and lawyers can use during a trial. A judge who decides to use one of these Pattern Instructions to tell a jury about a particular point of law will rarely get reversed on appeal. However, the Pattern Instruction in the Eleventh Circuit does not include the language about the need for the prosecutor to prove that a scheme was "reasonably calculated to deceive persons of ordinary prudence and comprehension." Because this language is good law, and because the Pattern Instruction does not have such language, the Court reversed the fraud convictions in the Svete case.

This might be an important ruling, for several reasons. First, there are several other Pattern Instructions used in the Eleventh Circuit dealing with other varieties of fraud, and none of these other instructions contain the crucial language that led to the reversal in the Svete decision. Also, this problem might even affect cases that have already been decided. Careful lawyers who handle federal fraud cases need to look over their current and previous cases to see if this recent decision might help their clients.

At our firm, we do quite a few federal appeals. This case is yet one more example showing why lawyers need to try and keep current with recent changes in the law.

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Posted In: White Collar Crime

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The recent deal brokered by the lawyers representing the rapper "T.I." here in Atlanta is but one more example of how creative lawyers can sometimes put together a deal that works out for both sides. The high profile nature of the case obscures the bigger point: when qualified and creative defense attorneys work with open-minded prosecutors, sometimes there can be a deal that is in everyone's best interest.

The Internet is full of stories about how the rapper T.I. was caught in a federal gun investigation just outside a music awards ceremony here in Atlanta. T.I. is a veritable cash cow, making millions for himself, his label and assorted hangers-on. He also is a quite talented young man, if his performance in the movie "American Gangster" is any indication. Unfortunately, T.I. also has a bit of a checkered past, replete with some felony convictions. According to press reports, along with my personal conversations with some of the lawyers and judges involved in the case, it appears that T.I.'s bodyguard got himself into trouble, and then became an informant against his boss. The feds claim that T.I. had the bodyguard purchased numerous weapons, some of which were allegedly stored in a safe at T.I.'s house.

Most defendants in this situation would be facing somewhere between 4 and 6 years in custody. However, T.I.'s defense team came up with a deal in which their client does less than a year in custody, but he has to go out and spend at least 1000 hours talking to at-risk young people about the dangers of guns and violence. One of the truly creative parts of the deal is that it requires that T.I. perform this community service BEFORE he goes to jail, and if he fails in any way, he could be facing more than 5 years in custody.

My law partner Carl Lietz was recently quoted in the press as describing this as an '"unprecedented" deal, and in many ways, he is right. Unfortunately, far too few prosecutors are willing to look beyond the rigid statutes and guidelines that sometimes govern criminal cases. It is important to praise prosecutors who take a chance on a defendant, even if the defendant is a high profile person with lots of money. I was a public defender for over 20 years, and I know my clients rarely got deals like this. But instead of complaining, I say we should slap the prosecutors on the back, and encourage them to be equally creative and willing to take a chance on the next kid who comes along after having done some stupid crime.

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In a federal criminal appeal involving an individual's right to counsel, the United States Court of Appeals for the Eleventh Circuit recently ruled that the dual sovereignty doctrine applies in the Sixth Amendment context. Although the legal issue presented in the case was one of first impression, the underlying facts were fairly straightforward.

A federal grand jury in Florida indicted the defendant for a number of drug offenses. In his federal criminal case, the defendant moved to suppress statements that he had previously given to federal agents before the federal indictment was returned. At the time the statements were made, the defendant was represented by counsel on a pending state charge; the state charge was based upon the same facts that ultimately gave rise to the federal charges.

On appeal, the defendant argued that by questioning him while he was represented on the state matter, the federal agents violated his Sixth Amendment right to counsel. The Court of Appeals disagreed. According to the Eleventh Circuit, the Sixth Amendment right to counsel is offense specific. The court acknowledged that there is no question that the defendant's right to counsel had attached to the state drug charge at the time the federal agents interviewed him. However, the court concluded that because the state and federal charges originated from autonomous sovereigns that each had the authority to define and prosecute criminal conduct, the defendant's state drug charge was a different offense than his federal drug charges for Sixth Amendment purposes. Therefore, the court concluded that the defendant's invocation of his Sixth Amendment right to counsel for the state drug charge did not attach to the federal offenses which were uncharged at the time of the interview.

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In a federal criminal case out of Atlanta, Georgia, I recently convinced the United States Court of Appeals for the Eleventh Circuit that probation was the appropriate sentence for a former bank executive we represented. This is not only a huge win for our client, it also is one more case showing the recent trend of lower sentences for federal criminal cases.

I have written in previous posts about how sentencing is changing in federal court. Specifically, I wrote about how the decision from the Supreme Court in Booker v. United States gave judges more freedom in selecting the appropriate sentence for a person who violates a federal law. In the recent case of Gall v. United States, the Supreme Court made it clear that the judge who imposes the sentence should be given a great deal of deference if either party appeals to a higher court.

Here is what happened in our case. As mentioned above, we represented a bank executive. He used some inside information to make stock trades in his own company. When he was confronted by the SEC, he immediately admitted to what he had done. He paid all the money back. He also had to pay about $150,000 on top of that. Furthermore, he no longer worked at the bank, and had a hard time finding work in his field.

The U.S. Attorney's office decided to "make an example" of him by bringing criminal charges against this man, even though he had already paid a huge fine to the SEC. Our client pled guilty, and was facing a 18-24 months in custody under the Federal Sentencing Guidelines. Me and my law partner Carl convinced the judge to give him 6 months home confinement and 3 years probation. Here is where the "fun" began.

Federal prosecutors rarely lose, and when they do, they sometimes complain to the Court of Appeals. In our case, the prosecutors took the case up on appeal. At first, the Court of Appeals sided with the prosecution, and ruled that the judge was wrong to give our client probation. I got mad, filed a lengthy Petition for Rehearing, and continued to submit more pleadings to the court. Last week, my hard work paid off. The Eleventh Circuit reversed its earlier opinion, and put back the original sentence of probation.

Again, this case shows that our clients need aggressive advocacy at all stages of the case. People charged with federal crimes need somebody who knows the judges, knows the law, and perhaps most importantly of all, knows how to keep fighting. After several years, justice prevailed in this case.

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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.

We filed a whole bunch of challenges to the statute, pointing out that it was extremely vague, and arguing that the prosecution infringed on the doctor's First Amendment right to say the obvious: namely, that it was a damn stupid idea to allow bags to remain on a flight when the passenger has been removed. This is a know terrorism tactic, to check baggage and then not take the flight. For over a year, we had a legal battle over the statute, and the first judge who looked at it almost, but not quite, agreed with us.

On the eve of trial, I met with the prosecutors who were in charge of the case. We convinced them to dismiss, in return for an agreement by the doctor to perform community service. This was no problem, in that the doctor is a very civic minded person anyway, and was glad to give back to his community. Today, I got the official word that the prosecutors concede that the doctor has done all he was obligated to do, and therefore the case is completely finished.

As I said above, this case shows the dangers of when new laws are handed down. There always is a danger that investigators and prosecutors will want to try it out, to see how far they can push it. The case also demonstrates that attorneys need to fight long and hard, but if they are facing reasonable prosecutors, they usually can convince everybody to do the right thing.

Posted by Paul Kish | Permalink | Email This Post

Posted In: Federal Criminal Trials

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Last week, I traveled from Atlanta to New Orleans to attend a seminar for attorneys that represent individuals who have been accused of federal criminal offenses. The seminar was sponsored by the Office of Defender Services in Washington, D.C. The seminar was entitled "Winning Strategies" and it included sessions on white collar offenses, computer crimes, firearms offenses, sentencing proceedings in federal court, and a host of other federal offenses.

I attended the seminar with Jake Waldrop, a good friend and fellow criminal defense lawyer here in Atlanta. Jake and I lectured on Internet Based Sex Offenses in Federal Court. As we discussed during the seminar, in recent years, the federal government has placed a high priority on the prosecution of these offenses. And from all indications, the increase in the number of prosecutions in this area is not expected to slow down.

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I recently posted a blog entry about the review on appeal of federal criminal sentences by the the 11th Circuit Court of Appeals, a court that covers Georgia, Florida and Alabama. Now comes another case, United States v. Pugh, which seems to show that this is still an unresolved issue for federal criminal cases in these three states.

Readers will remember the basic question. After the recent Supreme Court decision in Gall v. United States, federal appeals courts are supposed to give "great deference" to a sentencing judge who decides to give a more lenient, or more severe sentence than otherwise called for by the Sentencing Guidelines. Shortly after the Gall case was issued, the Eleventh Circuit issued a couple of rulings that seemed to indicate some level of dissension among the judges as to how much deference should be given to lenient sentences. The bottom line from those cases, and virtually every other case issued after the Supreme Court decision, is that a sentencing judge will be affirmed when he or she decides to give a sentence either below or above what is called for by the Sentencing Guidelines.

All of this was true until last week, when the Pugh case was issued. That was a possession of child pornography case, where the Public Defender from the Southern District of Alabama convinced the sentencing judge that probation was a good sentence. The government appealed, and the 11th Circuit reversed. In a lengthy and strident opinion written by Judge Stanley Marcus, the Court of Appeals basically said that probation can never be a reasonable sentence for such a case. Judge Marcus essentially inserted his own opinion of reasonableness for that of the judge who sat eye-to-eye with the defendant.

Here at Kish & Lietz, we have a somewhat similar case pending in the 11th Circuit. Our client pled guilty to insider trading, the sentencing judge imposed six months home confinement and probation, and the government appealed. The Panel of three judges from the 11th Circuit reversed, but this happened just shortly before the Supreme Court decision in Gall. We have asked them to rehear the case, or for all of the judges on the 11th Circuit to re-consider the matter.

Posted by Paul Kish | Permalink | Email This Post

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Criminal defense lawyers in Atlanta are like those throughout the country, I suspect. We enjoy our work, are a bit clubby and territorial, and for the most part pay attention to high profile cases, even when we are not ourselves involved in the matter.

Most people know about the case against Brian Nichols, a man accused of shooting a judge, court reporter, guard and others during a rampage in and near the Fulton County Superior Courthouse a couple of years back. There have been a variety of problems in the case, ranging from the lack of funding for the defense team, squabbles over the location of the trial, and finally, the judge's decision to step down after he was quoted as saying that everybody knew that the defendant did the crime. A new judge was appointed just this past week.

The Fulton County Daily Report, a local paper for lawyers, did a recent piece on how the new judge might handle the case. The Daily Report quoted me as saying that most new judges would want to familiarize themselves with what happened so far, and that "clever" lawyers would try to re-visit earlier rulings by repackaging previous arguments. Several other lawyers were quoted about other aspects of having a judge replaced in the middle of a high profile case.

The Brian Nichols case teaches a number of lessons. First, and perhaps foremost, there seems to be an almost direct inverse relationship between publicity and justice. The glare of publicity seems to impact how the court system handles a case. The more publicity, the less likely that the case will get handled like all other cases.

A second lesson from the Nichols case is that death penalty prosecutions are extremely difficult to handle, from the defense side, from the prosecution perspective, and from the point of view of the judge. Our lawyers here at Kish & Lietz handled a very high profile death penalty case a few years back, along with a number of other lawyers. The need to keep our plea negotiations secret made it extremely difficult to do our jobs. We were able to keep the press unaware of our attempts to strike a plea bargain, but not without difficulty. We knew that in some cases, publicity can get in the way of achieving a good result for our client.

Another lesson from the Nichols case is that good lawyers cost money. While there has been a lot of talk about excessive defense costs, we all need to remember two things: 1) you get what you pay for, and 2) good defense lawyers need to respond to evidence presented by the prosecution. If the prosecutors wanted to keep the case simple, they had that option all along, and could have saved the taxpayers a lot of money.

The Nichols case is something we criminal defense attorneys talk about, even when we are not involved. In many ways, it's like a car wreck: horrible, but impossible to look away from when you pass by.

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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.

Here's the weird part. The Sentencing Guidelines are based on a table, which sets out ranges of potential sentences. The higher the number (and the greater the criminal history), the higher the range. However, the table is not a straight arithmetic progression, which is a fancy way of saying that a difference of one level up at the top end of the Guidelines results is far greater than a one level change at the bottom end. For example, a much more involved defendant might be at offense level 30, and if he gets a 2 level reduction for cooperating, his Guideline range is reduced by almost two years. On the other hand, a client barely involved in a case (like our recent client) who is down at level 15, will also get a 2 level reduction for cooperating, but this results in a mere 6 month reduction in his sentencing range.

In our recent case, we argued strenuously that this was unfair, that our client should get an even better reduction, in return for his cooperation (he had testified at trial against some other people). We did get a significant reduction in other areas of the sentencing process, but this case highlights some of the truly weird and unfair aspects of sentencing in federal court.

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Posted In: Federal Criminal Trials

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I spoke recently on the topic of Federal Firearms Offenses to a group of lawyers in Birmingham, Alabama. My law partner Carl Lietz and I each periodically speak to attorneys in various parts of the country, usually in the South but occasionally in other regions as well. Carl also spoke to the same group about Internet Sex Crimes, a growing segment of crimes we now see prosecuted in federal court.

My presentation about gun cases in federal court focused on the two major crimes in this area: possession by a "prohibited person" (such as a previously convicted felon) and use of a gun during another federal crime (such as bank robbery or drug dealing). Many people are shocked as to how much time they can get for weapons offenses in federal court. In my speech to the Alabama attorneys, I focused on the law, but also discussed some tricks and tips for either winning their case altogether or at least to reduce their client's potential jail sentence.

We also discussed how gun crimes are often among the dumbest criminal episodes we ever encounter. For some reason, people seem to forget how dangerous a weapon can be. These same people are shocked when their lawyer tells them that they are facing an incredibly longer jail sentence because they brought a gun into the bank.

Finally, we discussed how the Second Amendment to the Constitution impacts federal firearms cases. Remember that the Second Amendment to the United States Constitution in some ways prevents the federal government from regulating the possession and use of firearms. The Supreme Court currently has taken a case involving a Washington D.C. law that completely prohibits law-abiding citizens from even possession certain weapons in their homes. This should be an interesting decision, although it likely will not have a real big impact on the vast majority of gun crimes prosecuted in federal court.

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Posted In: Federal Criminal Trials

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