Federal Criminal Lawyer BlogObservations On Notable Court Decisions, News And Developments Affecting Federal Criminal Practice

We handle lots of federal criminal cases.  Many of our cases end up with a sentencing hearing. At the sentencing hearing, a federal judge decides what kind of punishment to impose on our client.  A case yesterday from the United States Court of Appeals for the Eleventh Circuit reminds us that sometimes our client can end up losing, even if it appears at first that we “win.”  This case reminds us that attorneys handling federal sentencing hearings need to think through what might happen if they convince the judge they are right about some aspect of a sentencing hearing.  Yesterday’s case is United States v. Slaton, and can be read here.

Mr. Slaton was a letter carrier for the U.S. Postal Service in beautiful Birmingham, Alabama, where I was handling a federal sentencing hearing just yesterday.  He lived about 30 miles away, so he needs to drive to and from work.  Mr. Slaton hurt his back, and eventually received disability benefits, reporting constant pain and need for various therapies.  Other evidence made it appear that he was faking his injuries, with evidence that he regularly went to the gym, remodeled homes, and drove long distances.  He was indicted for a variety of charges, such as making false statements in order to obtain worker’s compensation benefits, wire fraud, and theft of government property.  A jury convicted him of all counts.

The Judge who presided over the trial also conducted a sentencing hearing.  As any reader of this Blog knows, this is the point in the process where a Probation Officer prepares a Presentence Investigation Report to begin the process of calculating the wickedly complex Federal Sentencing Guidelines.  As we have discussed recently in another post, the concept of “loss” is exceedingly important in such cases.  The sentencing judge felt that the “loss” was lower than what the prosecutors wanted,  which led the Judge to calculate the potential Guideline “range” as suggesting 18-24 months custody.  The Judge was obviously not all that impressed with the government’s case, and decided that Slaton did not need to go to jail, and thus take up even more tax dollars.

Mr. Slaton’s defense attorney certainly felt good after the sentencing hearing, having just convinced a federal judge to not send to prison a man who had a complete trial yet was found guilty.  Here is where some lawyers who are not completely up to speed on federal criminal practice can get into trouble.  These attorneys do not always recognize that the government can also appeal the sentence!  It does not appear that happened in Mr. Slaton’s case, for his legal team seemed to put up a good fight each and every step of the way.  However, what we sometimes see with inexperienced lawyers in federal court also took place in this case, for Mr. Slaton appealed his conviction, the prosecutors appealed the sentence, and you can guess which side one on appeal.  That’s right, government win, defense loss–sentence reversed yet convictions upheld.  The technical reason for the sentencing reversal was that the Court of Appeals believed that the sentencing judge made a mistake when calculating “loss”.  Furthermore, the appeals judges believed that the sentencing judge relied on a fact that was contrary to the jury’s findings when deciding that no jail time was needed.

The good news for Mr. Slaton and his attorney is that the case was remanded for a new sentencing hearing.  The appellate judges did not flat out say that a “no-jail” sentence was illegal or wrong.  They hinted at that outcome, but gave the District Judge one more chance to impose a sentence without making any procedural errors.  While Mr. Slaton’s team has another chance, not all such Defendants are as fortunate.  We always urge lawyers to think about the consequences of “winning” a sentencing argument, especially if the “win” jolts the prosecutors into appealing themselves.

The Federal Court of Appeals here in Atlanta yesterday upheld the convictions against a doctor who, among other things, engaged in cash transactions involving less than $10,000, in order to avoid having the bank file a “currency transaction report”, or “CTR.  The case is called United States v. Sperrazza, and can be read here.

We represent a fair number of medical professionals, but the facts of Dr. Sperazza’s case are a bit unusual.  Doctor S. and his partners operated an anesthesiology practice.   Apparently, whenever a patient paid by check (as opposed to by insurance or government program payment) the doctor would have his payment processors send the checks directly to Dr. Sperrazza.  Most of the time, the weekly bundles of checks totaled less than $10,000.  He would then cash groups of checks, always in amounts that totaled less than $9,000.  Over the course of several years the doctor apparently siphoned over $800,000 out of the anesthesiology practice in this manner.  He was then prosecuted for tax fraud, as well as the crime of “structuring” cash deposits to as to avoid the filing of a CTR.  A jury found him guilty, and he appealed his case to the Eleventh Circuit here in Atlanta. Among other things, he argued that the indictment itself was fatally flawed in the way this charging document described the “structuring” crime.

A couple of interesting things happened in the appeal.  First, the court had to figure out which version of the rules applied.  This was important in that for some unknown reason, the doctor’s legal team never challenged the indictment until after he was convicted.  The rule that talks about pretrial motions (Rule 12) was amended effective December 1, 2014, so the judges had to first figure out whether to use the new or the older version in order to decide how to handle this tardy challenge to the indictment itself.

Perhaps more importantly, Dr. Sperrazzas’s appeal led to a spirited discussion and split among the judges on an interesting question facing many business owners.  One of the newer judges on the Court, Judge Rosenbaum, dissented.  She noted that by affirming Dr. Sperrazza’s conviction the Court allowed federal prosecutors to bring a “structuring” case even if the person only starts out by having less than $10,000 in cash.  Judge Rosenbaum noted that the government’s position would permit a structuring case when “…a salaried person who earned $9,000 a week and deposited it in cash weekly, intending at least in part to evade the reporting requirement”.  The Judge went on to state that while “… most of us do not have the problem of trying to figure out what to do with our $9,000-per-week salary, but this same logic applies to any weekly salary payment under $10,000. And it does not end with weekly salary payments. As a result of today’s ruling, in this Circuit, no matter how small a sum of money a person may possess or otherwise enjoy a right to control—even if only a few dollars—he may find himself facing structuring charges if he goes to the bank often enough to create the appearance to the government of engaging in a pattern of financial transactions of $10,000 or less. I suppose that we will discover in the coming years how frequent a bank visitor one must be to imperil himself, but, in any case, it is clear today that [the structuring statute] has taken on a far broader reach than Congress ever intended.”

This case has important lessons.  Not the least of these messages is that lawyers need to scour indictments and raise challenges to indictments at the earliest feasible time.  Next, everyone needs to consult with an experienced practitioner if he or she is going to engage in a series of cash transactions in which currency is going into or out of a financial institution. Because tax cases are often the last resort when investigators want to go after a target, it is important to get an experienced federal criminal defense lawyer whenever one finds him or herself under investigation.

The United States Supreme Court reversed a federal criminal sentence last week that was imposed on a man who had a lengthy record.  The Defendant fell into the maw of the much-maligned Armed Career Criminal Act (the “ACCA”).  Under the ACCA, a person who possesses a firearm and who has three or more qualifying prior convictions is sentenced to a minimum of 15 years in custody, with the maximum of life imprisonment.  What is called the “residual clause” of the law makes a person eligible for this heavy-duty punishment if any of his or her three prior crimes “otherwise involves conduct that presents a serious potential risk of physical injury to another.”  The Supreme Court, in a very rare move, held this language to be so imprecise as to violate the Constitution.  The case is United States v. Johnson, and can be accessed here.

A couple of important things about the ACCA before we discuss the decision.  First, the law was part of that horrible mess enacted in 1986 when our Nation’s rulers decided to impose amazingly long sentences for a whole variety of crimes.  This mess included the now-derided mandatory minimum sentences for various crimes, mostly involving drugs, which I wrote about recently here.  After these laws passed, most experienced practitioners in the federal criminal justice system could not even wrap their heads around fifteen years in custody for merely possessing a gun.  I recall a number of cases where prosecutors simply ignored this statute, believing it could not mean what it said.  By the early 1990’s, however, prosecutors got more comfortable in asking for these lengthy prison sentences. Pretty soon,  we all became accustomed to it, and defense attorneys then started challenging whether this penalty really applied to all of the Defendant’s prior crimes.

These challenges eventually worked their way up to the Supreme Court, resulting in five separate cases over a nine-year span. The first case told judges to use a “categorical approach” when deciding if the Defendant’s prior crime “involved” a “serious potential risk of physical injury to another.”  In other words, look only at the way the crime was defined, not what the person did.  Succeeding cases looked at whether various crimes like DUI, attempted burglary, not reporting to prison, or vehicular flight from the police did or did not fall within this imprecise standard of serious potential risk of physical injury to another.

Last week, the Supreme Court took the highly unusual step of deciding that this phrase is so imprecise that it violates the Due Process Clause of the Constitution. The Government violates the Due Process Clause when it takes away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Because the ACCA mandates that a judge assess the risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate the risk posed by a crime. Furthermore,  the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.

Even more surprisingly, the decision last week overturned the part of the earlier decisions which said that the law was not “void-for-vagueness.”  First-year law students learn about stare decisis, the principle that courts must be bound by earlier rulings on the same subject.  The Supreme Court last week went to great lengths to point out how unworkable the law was.  The justices  explained how the earlier ACCA decisions had tried very hard to make the statute somehow comprehensible, but that effort failed, because federal courts were all over the place when applying the ACCA to various prior crimes.

I happen to think this is part of a trend, as I have discussed previously.  The U.S. went a bit bonkers in the late 1980’s on criminal justice issues, resulting is our Nation having more people behind bars than almost any other country.  The pendulum is swinging the other way , and this ruling from last week is just one point along that spectrum of more sensible views on crime.

Yesterday the Court of Appeals here in Atlanta reversed a federal criminal conviction in a mortgage fraud case.  The Defendant was in the middle of testifying in his own defense.  During two overnight recesses, the trial judge told the Defendant he could not speak with “anyone” about his testimony, and could only talk with his lawyer about his “constitutional rights.”  The Court of Appeals, relying on a series of earlier decisions, decided that this prohibition against speaking with the Defendant’s own attorney amounted to a violation of the Sixth Amendment’s promise that a person may consult with counsel during a criminal case. The case is United States v. Cavallo, and can be found here.

A  man named Streinz was one of the Defendants in a large mortgage fraud prosecution in the Middle District of Florida.  Streinz and his lawyer informed the trial judge that Streinz would be testifying on his own behalf.  Just before he testified, the attorney turned over some late materials that Streinz said he had just found in his home office, materials that impacted his testimony.  The trial judge apparently smelled a bit of a rat, and directed that the prosecutor and federal agents go to the home office with Streinz and his attorney in order to sort out the documents.  Streinz became outraged during this process, claiming that the agents were seizing excessive materials.

The next day Streinz began his testimony.  As the trial recessed at the end of the day, the court instructed Streinz that he could not discuss his testimony with “anyone,” but that he could talk to his lawyer about his “constitutional rights.” The court did not, however, explain what that phrase might mean.

Before he resumed his testimony, Streinz sent a letter directly to the court expressing distress at his situation. The court acknowledged Streinz’s letter, but merely let him go over some of the documents that had been taken from his home office.  Streinz continued his testimony all that day.  At the end of that day, the trial judge again said that Streinz could talk to his lawyer about “constitutional rights” during the overnight recess, but could not talk to his lawyer “about the case.”  The next morning, Streinz sent a second letter to the court, again expressing his anxiety.

The Court of Appeals had little difficulty in ruling that this procedure grossly violated Strein’s Sixth Amendment right to counsel. While there is good reason to prevent witnesses from consulting with attorneys while the witness is up for cross-examination, a Defendant in a criminal case is in a far different situation. Referring to two rulings from the United States Supreme Court, yesterday’s ruling noted that while a non- party witness will likely have little to discuss with trial counsel other than his upcoming testimony, an accused and his attorney will often have many other matters to discuss during an overnight recess. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed.  The defense lawyer might need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events.

This was a highly unusual case.  We are glad to see that the Court of Appeals reversed the conviction, in order to protect the right to counsel for everybody, both the guilty and the innocent.

A major decision on the future of technology and crime investigations was issued a few hours ago by all the judges who sit on the United States Court of Appeals for the Eleventh Circuit, the offices of which are a few blocks away from us here in Atlanta.  The eleven judges wrote over 100 pages of opinions on the question of whether the police can use information that is less than the usual “probable cause” standard when obtaining data about the various cell towers hit by your mobile phone as you move through your daily life.  This “less than probable cause” standard is written into the Stored Communications Act  (the SCA), a law that was enacted before smart phones became such prevalent features of modern life.  The case is United States v. Davis, and can be read here.

As we see so often, whether we win or lose, the best description of what a case is really all about comes from the judges who disagree, or as we lawyers call it, “the dissent.”  Judge Beverly Martin described the case this way:

In this case, the government got 67 days of cell site location data disclosing Quartavious Davis’s location every time he made or received a call on his cell phone. It got all this without obtaining a warrant. During that time, Mr. Davis made or received 5,803 phone calls, so the prosecution had 11,606 data points about Mr. Davis’s location. We are asked to decide whether the government’s actions violated Mr. Davis’s Fourth Amendment rights. The majority says our analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.

Just about all of the judges noted that in the past several years there has been a ground swell of rulings in which older decisions are being cast aside in the context of new technologies.  Rulings from 20 years ago where prosecutors regularly got judges to permit ever larger incursions into personal privacy are now being reconsidered, mostly because cell phone and other technologies permit amazing entry into our personal lives with a few touches of a button or a screen.  The storm caused when Edward Snowden revealed that our government has been keeping warehouses of our cell and internet traffic has also effected this debate.  Despite these changes, the majority in today’s case falls back on the old rationales.  They say that Mr. Davis (and by extension, the rest of us) do not have an expectation of privacy in the data transmitted between our phones and the cell towers that connect those phones to our friends, loved ones, social media sites and the internet.  Furthermore, the judges in the majority distinguish the recent Supreme Court cases that disallowed warrantless GPS trackers or warrantless cell phone searches.  Finally, they say that if some crazy Americans (meaning all of us) want to assure that our government does not unnecessarily snoop into our lives, we should gather our pitchforks and storm Congress to make changes to the SCA.

I applaud the lawyers on both sides, for representing their clients in this fascinating and fast-changing landscape where the 18th Century language embedded into the Fourth Amendment runs headlong into the iPhone 6 and similar devices.  I just wish judges were a little more brave sometimes and willing to see what is obvious to the rest of us: the world is changing at a rapid pace and the legal system should be tired of always bringing up the rear.  Stay tuned, this set of issues is far from over.

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.

The two matters mentioned above involve some folks who apparently engaged in some fraudulent conduct while preparing tax returns.  However, thousands of legitimate tax preparers help taxpayers work through the insanely arcane and complex ritual that is required for filing a tax return in this country.  We all know about the big companies that sell software that supposedly allows an individual to plug in a few numbers and then file their taxes.  However, many people feel more comfortable going to a trusted local small business for this process.  My recent work has shown me that the IRS is often exceedingly hard on these small tax preparers, sometimes using even the smallest mistake as grounds for shutting them down or making them pay penalties. I want all of my clients to adhere strictly to the rules of whatever business they operate, but the IRS can sometimes be an especially difficult agency to deal with when problems arise, as they do in every business in this country.

The United States Supreme Court yesterday issued another “dog case”, an opinion discussing whether and when the police can use a K-9 to sniff for drugs or contraband prior to getting authorization to do so from a judge.  We have previously posted about these issues.  Yesterday’s case concerned the question as to how long the police can detain a motorist who has done nothing other than commit a minor traffic violation, in order to keep the driver at the side of the road while the cops bring out the pooch to sniff for dope.  The answer? Twenty-two minutes is too long, and evidence obtained as a result of an “alert” by the dog must be suppressed unless the cops otherwise had reasonable suspicion to continue detaining the motorist.  The case is Rodriguez v. United States, and can be read here.

This is just the latest in a series of cases in which the majority of the Supreme Court have reinvigorated the need to protect personal freedom from unwarranted police intrusion.  These cases have renewed the recognition that courts need to protect against “unreasonable searches and seizures.”   As is now well-known, the Supreme Court held last year that the police now need a warrant in order to inspect the cellphone of an arrested person.  Two years ago the court held that police need a warrant before they can let a drug-sniffing dog wander around the outside of a person’s home.  A few years ago, they also issued a unanimous decision that mandated a warrant from a Judge before the police can install a GPS tracker on a person’s automobile.

Yesterday’s case tightens up the rules that the cops need to follow when using drug-sniffing dogs during a traffic stop.  In essence, the Supreme Court held that such procedures become unlawful if the cop holds the driver at the side of the road solely to conduct the search. “We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures,” Justice Ruth Bader Ginsburg wrote for the majority. “A seizure for a traffic violation justifies a police investigation of that violation,” Justice Ginsburg wrote. While the court has allowed police to take certain actions in a traffic stop that go beyond its narrow purpose, such as requiring motorists to exit their vehicles, those have been closely tied to officer safety or other practical needs, she said.

The case was something we see a lot in our practice.  An officer stopped the driver for straying out of his lane.  It took the officer 22 minutes to perform the license check and other normal actions associated with such a stop.  The cop then gave a warning to the driver, and asked for permission to search.  The driver, wisely, declined, so the officer proceeded to let his dog sniff around, and when the dog “alerted” the officer searched and found a bad of drugs.  The Federal Magistrate Judge agreed that the officer merely had a “large lunch” as the reason he wanted to search this particular car, but the lower courts said the search was nevertheless OK.  Yesterday’s case sent the matter back to the lower courts to determine if anything else would have justified keeping the motorist at roadside, and if not, the Defendant will likely win the case.

A couple of years ago, I was talking in private with a friend who is also a judge.  I predicted that issues concerning personal liberty will change because the relatively elderly Justices on the Supreme Court were becoming more attuned to modern technology, and could see first-hand how the handy device they keep in their pockets or purses could be used to investigate anyone.  Justices also are not blind in that they see the wholesale stopping of people on roadsides, at airports and other locations so that law enforcement can search the person in some way or another.  I told my friend that when the Justices begin to see how such law enforcement tactics can affect them personally, the trajectory of Supreme Court rulings likely would change.  I am not a savant, by any means, but it appears that my prediction is coming closer to being accurate.

Readers know that we handle lots of federal criminal cases, in Georgia, Florida, Alabama, and throughout the country.  I just finished a sentencing this afternoon in which we got a lower sentence by pointing the Judge to some proposed changes to the Federal Sentencing Guidelines.  Along with some other factors, these proposed changes led the Judge to decide that the Guidelines were too high, and he reduced my client’s sentence.  I always set my sights pretty high, and had hoped that the Judge would reduce my client’s sentence even more than he did, but the fact that we got a lower sentence at all shows how there are many ways to get the Court to impose something below what the Guidelines recommend.

Most people reading this blog know that there are two types of rules that govern a sentence that is imposed for a federal crime.  First, Congress passes statutes, which many people call the “laws.”  The “statute” generally sets out any minimum punishment, along with the maximum sentence that can be imposed.  Second, way back in the 1980’s Congress created a body called the United States Sentencing Commission.  This group publishes the Sentencing Guidelines.  These Guidelines recommend a sentence somewhere between the minimum and the maximum set out by the statutes.

The Sentencing Guidelines are not only wickedly complex, they also are amended on an almost-yearly basis.  Each year, the Sentencing Commission recommends changes, which Congress either approves of rejects.  The yearly proposed amendments tend to come out in January, and go into effect the following November. The trick for the experienced federal criminal defense lawyer is to pick out the upcoming changes that might help their client, point out that it is unfair for the client to not get the benefit of that change simply because the sentencing hearing will not take place after November 1, and then try to convince the Judge that a lower sentence is therefore appropriate.

We used this tactic in today’s hearing.  My client was being sentenced for a crime that impeded the Internal Revenue Service.  For economic crimes such as this, a variety of factors can cause the Guidelines to go higher, factors such as the amount of “loss”, and the number of “victims.”  We pointed out to the Judge that the “loss” and “victim” concepts are part of the proposed changes to the Guidelines, and that if my client had been sentenced after November 1 of this year, he likely would be facing a lower sentencing range.  It worked, just not as much as I had hoped.  Today’s case just reminds me that getting the best and lowest sentence for a client requires lots of work, creativity and sometimes, just a bit of good fortune.  The key is to not give up and keep trying to do the best we can for our clients.

Ever since I was a young federal criminal defense attorney, our country has been locking up people at an unprecedented pace.  The United States holds the title as the country that has locked up the highest number of people.  On a per capita basis, we are number 2, only behind the tiny Seychelles Islands.  Ever since I was a young man I have observed firsthand how these short-sighted “lock ’em all up” policies decimated entire communities, ruined families, and basically did no good (other than making a lot of jobs for jailers, people who design and operate jails, drug agents, prosecutors, probation officers, judges, and yes, criminal defense lawyers). However, over the past 5-8 years, some changes have come about.  Furthermore, it is now possible to reduce many federal criminal sentences that were imposed years ago.  More changes could be on the horizon.

As many readers know, one big change that resulted in reductions of some federal sentences is the “crack reduction”.  Back when our Nation locked up tens of thousands of citizens, our lawmakers decided that some dumb kid dealing in crack cocaine should be punished 100 times more severely than the disco-dancing fool who peddled the powder version of the very same drug.  After an entire generation was impacted by such unfair sentencing, Congress and the U.S. Sentencing Commission changed the rules, resulting in some prisoners getting reductions to their sentences.

More recently, Congress and the Sentencing Commission approved a reduction in the “drug table”.  Those who know about federal criminal sentencing realize that the “Sentencing Guidelines” is a point-based system designed to spit out a recommended sentence.  In drug cases, the biggest factor is the quantity of drugs for which the Defendant will be held accountable.  This quantity is then tied to an “offense level”.  The more drugs in a case, the higher the offense level.  Realizing that we have locked up way too many people for far too long, Congress and the Sentencing Commission last year reduced everything in the Drug Table by 2 levels, which can mean a fairly sizable reduction even for a Defendant serving a lengthy sentence.  Just this morning I got an agreement from the federal Probation Office that the judge should reduce one of my client’s sentences by almost three years.  This means my client will be getting out of prison very soon, to the relief of his family (not to mention the overburdened taxpayers).

Although there have been positive developments over the past few years, more is needed.  One of the bigger remaining problems is the concept of “mandatory minimum sentences.”  These crimes require a certain minimum sentence, even if the experienced Judge thinks the sentence is excessive.  By enacting these truly bad laws, Congress gave some wet-behind-the-years young federal prosecutor out to make a name for him or herself the right to name the sentence, as opposed to letting the sentence be decided by an experienced Judge who was nominated by the President and approved of by Congress.  Just the other day, two Justices on the U.S. Supreme Court testified before a congressional hearing, and gave them an earful about the stupidity of mandatory minimums sentences. “This idea of total incarceration just isn’t working,” Justice Anthony Kennedy said.  In lots of cases, Kennedy said it would be wiser to assign offenders to probation and other supervised release programs.   Justice Stephen Breyer, who also testified at the hearing, added that setting mandatory minimum sentences for specific crimes was “a terrible idea.” He called on Congress to “prioritize” improvements to the criminal-justice system.  You can read about their testimony here.   Other potential good news is that the Sentencing Commission is poised to reduce the “loss table”, which is one of the biggest factor in setting fraud sentences.

I feel really bad for all the clients and families whose lives were ruined by our Nation’s foolish foray into mass incarceration.  Doing crime should require some people to “do time,” but our country went overboard.  We will try to help our clients, both old and new, to get the lowest and most fair sentence for the crime they committed.

We handle lots of federal sentencing hearings, in Atlanta, Savannah, Macon, and throughout the federal courts in Georgia and other states as well. We are always interested when courts interpret laws that can impact the sentence that one of our clients might receive. This morning, the United States Supreme Court interpreted a law that impacts the sentence to be imposed on someone who robs a bank and is prosecuted in federal court. The law was passed by Congress in response to a spate of robberies committed by the notorious John Dillinger in 1934. The law requires a minimum of 10 years, and up to a life sentence, if the Defendant “forces any person to accompany him without the consent of such person”. In the case of the unfortunate Larry Whitfield, the high Court was faced with a situation where foolish Larry muffed a robbery, fled, then broke into an elderly lady’s home, where he made her move 9 feet from one room to another, and she then she died. The sentencing judge hit Larry with the enhanced penalty based on forced accompaniment. A unanimous Supreme Court this morning upheld the sentence, the opinion can be read here.

I previously posted about this case here. I pointed out how the Defendant argued that a mere movement of 9 feet cannot be what Congress had in mind when they passed this serious sentencing enhancement for robbers who force a victim to go with the criminal.

In rejecting the Defendant’s claims, the Supreme Court noted that this particular language was put into the bank robbery law in 1934. Congress enacted the forced-accompaniment provision in 1934 after “an outbreak of bank robberies committed by John Dillinger and others.” So, like a good strict constructionist that he is, Justice Scalia, writing for the Court, looked to contemporary uses of the phrase “to accompany”. “It was, and still is, perfectly natural to speak of accompanying someone over a relatively short distance, for example: from one area within a bank ‘to the vault’; ‘to the altar’ at a wedding; ‘up the stairway’; or into, out of, or across a room”, according to Justice Scalia. His examples all came from newspapers from that era.

The Defendant made a series of arguments based on the structure of the law, and how Congress could not have envisioned a life sentence simply because a person was moved 9 feet during a robbery escape gone awry. Unimpressed with this argument, Justice Scalia wrote: “The Congress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that. It is simply not in accord with English usage to give ‘accompany’ a meaning that covers only large distances.”

While this case is rather rare, I nevertheless applaud the defense attorneys who kept plugging and tried to save their client some time.