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

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.

“Words, words, words, first from him, then from you–is that all you blighters can do?”, moaned Eliza Doolittle when tiring of her speech lessons in “My Fair Lady.” Ms. Doolittle should be thankful she is not Larry Whitfield. Larry got an extra 10 years in prison for a bank robbery prosecuted in federal court because of a single word. During the crime he forced someone to “accompany” him by moving a grand total of 9 feet from one room to another. this act resulted in 10 years being added to his sentence. The United States Supreme Court heard arguments in the case yesterday. The docket for the case can be found here.

Larry is not only unlucky, he also seems to be like too many criminals, bad at his work. He botched a bank robbery in 2008 in North Carolina. Fleeing the scene, Whitfield entered the home of a 79-year-old woman, telling her he needed a place to hide. He directed the woman, who was upset and crying, to move with him from her living room to another room some nine feet away.
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All lawyers must deal with rules, whether practicing mostly in Atlanta and Georgia like our firm, or in any other part of the country. Most rules are made by the legislature, but sometimes, judges themselves get to make rules. These judge-made rules control the procedure or process of how a particular case works through the court system. Today, the United States Supreme Court refused to take a case that shows that sometimes these judge-made rules can allow judges to avoid justice. The discussion of the case noting the refusal to hear the matter is found here.

The case involves a man named Patrick Henry Joseph (you’d think the courts would be reluctant to be unfair with someone with such a grand history behind his first two names). Mr. Joseph was convicted of several drug offenses. Using the well-known Federal Sentencing Guidelines, the trial judge imposed a lengthy sentence after deciding that Mr. Joseph was a “career offender.” Joseph’s very able Public Defender then appealed his case to the United States Court of Appeals for the Eleventh Circuit. So far, so good.
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Posted in: Appeals

People who have the misfortune of finding this blog know that I like to write about the intersection of the modern tech-filled world with older rules that govern criminal cases, rules like the Fourth Amendment and the like. The United States Court of Appeals for the Second Circuit recently reversed a federal criminal case out of New York when the prosecutor convinced the trial judge to let her use a page off what is supposedly the Russian version of Facebook. The prosecutor and the judge essentially said that because the page had the Defendant’s picture and some other information related to him he must have been the one to create it. The appellate court took a different view, and reversed the conviction, the ruling can be found here.

Aleksandr Zhyltsou is from the Ukraine, and supposedly is a professional forger. Another Ukrainian con man named Timku was caught in a series of frauds, pretending to be a diplomat and the like. Timku tried to help himself by agreeing to testify against Zhyltsou concerning a bogus birth certificate that Timku used to avoid military service back in the Ukraine (a not unreasonable effort, considering recent events). According to Timku, he saw the Defendant put the birth certificate together on a laptop when they were at a cafe, and noted that the document was sent to him via an email address that the Defendant had previously used. The prosecutor shored up parts of Timku’s story with witnesses showing that birth certificates can be used to avoid military service, and that this particular email with the birth certificate did indeed come through this particular email address, However, there was no proof that the human being on trial, Zhyltsou, was the person who created and sent the document, other than Timku’s testimony.
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Yesterday, we posted a blog entry concerning an anticipated announcement by Eric Holder involving the Department of Justice’s decision to stop requiring appellate waiver provisions in plea agreements in federal court. Although the announcement has not yet been made, a number of individuals with whom we have spoken confirmed that the announcement should indeed be made soon.

Importantly, however, those same individuals have mentioned that the Department’s decision to alter its current policy on appellate waivers is going to be limited to the removal of ineffective assistance of counsel (IAC) claims only from those waiver provisions. In other words, it is our understanding that the Department will continue to insist on appellate waivers in plea agreements but it will remove the IAC waiver provisions from those agreements. Accordingly, as we understand it, under the anticipated new policy, individuals will not be required to waive current and future IAC claims.

Most of us that practice in federal court have always been troubled by the Government’s appellate waiver policy. To me, though, the most troubling aspect of the current policy has been the inclusion of the provision that requires an individual to waive all IAC claims. Under this policy, except in limited circumstances, at the time an individual enters a guilty plea, he waives his right to file an ineffective assistance of counsel claim. Unbelievably, these waivers have been construed to include waivers on ineffective assistance of counsel claims at a yet-to-be-had sentencing hearing. I have always had difficulty understanding how an individually can logically waive (or give up) the right to challenge deficient performance by his lawyer, months before his lawyer actually performs deficiently.
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If reports are true, those of us that handle federal criminal cases here in Atlanta and elsewhere received some much welcomed news this morning. It is being reported by Law 360 that within the next week or so, Eric Holder is expected to announce that the Department of Justice will end its longtime policy of requiring individuals who desire to plead guilty to accept plea agreements that include appellate waiver provisions within those agreements. Quite justifiably, these waiver provisions have received a great deal of criticism over the years, and the time for ending this policy is long overdue.

Best I can tell, the DOJ policy of requiring appeal waivers in plea agreements officially began in 1997, when the Department issued a directive requiring prosecutors to include such a provision within plea agreements. Although these provisions are not included in every single plea agreement in federal court, waiver provisions are included within the large majority of federal plea agreements. Under the “standard” waiver provision, individuals are required to waive two statutory rights. First, except for very limited circumstances, an individual is required to waive his statutory right to direct appeal. Second, an individual is also required to waive his right to waive his statutory right to collaterally attack his conviction and sentenced under 28 U.S.C. § 2255.

Federal criminal lawyers have been fighting against and challenging these waiver provisions for many years now. In our District, the Federal Defender Office has been leading the fight, doing everything possible to educate lawyers about the problems with these provisions, as well as coming up with ways in which the pitfalls created with these provisions can be avoided. For example, charge bargaining and appeal waiver exceptions can help cure part of the problem but in most cases, even these solutions do not address all of the risks created by appellate waivers.
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Federal criminal cases are no different than cases brought in state courts such as Georgia, Florida or Alabama. The explosion of technology requires courts to balance the needs of law enforcement with the protections for individual liberty enshrined in our Constitution. Sometimes, when the suspect is investigated for a “bad” crime like targeting minors for sex, the courts simply ignore that the protections for individual liberty apply to everybody equally. In an opinion issued today by the United States Court of Appeals here in Atlanta several blocks from our offices, that court permitted the search of a cellphone that had no connection to the alleged crime from seven years earlier. The case is U.S. v. Mathis and can be read here.

In 2004, the Defendant supposedly got a then 14-year old to have sex. Remember, this was 2004, a veritable lifetime ago in the world of cellphones and communication technology. Seven long years later, the young person was by then 21, and decided to tell the police about his encounter with the Defendant back in 2004. The young person said that back in 2004 he and the Defendant had phone calls and exchanged text messages using the Defendant’s phone. Now, here’s the important part: the police knew that the Defendant, like just about everybody else, had changed cellphones in the intervening seven years.
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We handle lots of federal cases involving supposedly illegal activity over the Internet, which means some of our clients are far from our offices here in Atlanta. Because of that, we try to pay attention even when a federal criminal case is far away, such as the recent ruling by the Court of Appeals in California that invalidated a federal criminal conviction because of an illegal search. What really piqued my interest is that the case is yet another example of the trend where judges are becoming ever more suspicious of Internet-based surveillance techniques that lead to evidence of a crime. The Court was especially vexed because a military investigator in Georgia used the Navy’s vast resources basically to investigate a local crime in Washington State, which led to Michael Dreyer’s indictment and conviction in federal court. The opinion is here.

The federal Naval Investigator was working undercover from his office in lovely Brunswick, Ga. He signed on to a large file-sharing network sometimes used by traders in child pornography, using a special computer program called RoundUp. The agent then scanned computer activity by the network’s members in the state of Washington, regardless as to whether the computer was being used by anyone in military. Finding a computer that had child pornography, the agent downloaded some photos and forwarded the material to local investigators who then got search warrants which led to federal criminal charges against Mr. Dreyer.
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We handle lots of federal criminal cases. We also occasionally represent people accused of federal drug crimes, both here in Atlanta and around Georgia, Alabama and Florida. Over the past decade there has been a slow recognition that sentences for drug crimes are simply too long. This week, the United States Sentencing Commission votes on an important aspect of the decade-long effort to reduce sentences for federal drug offenses. You can read a paper here that describes the potential reduction and how it would impact people who are already serving sentences for federal drug crimes.

A little history lesson helps to understand this vote and how it can possibly help people already sentenced to federal prison for a drug crime. Back in the 1980’s, the media hyped up what it called the crack cocaine explosion. Politicians fell all over themselves in efforts to be “tough on crime.” This resulted in a very bad law enacted in 1986 which created mandatory minimum penalties for federal drug crimes. These mandatory penalties caused automatic enhancements to another set of rules for federal criminal sentences called the “Sentencing Guidelines.” As a result, an entire generation of offenders were subject to increased sentences, whether or not the Defendant was a young first-time offender or a seasoned long-term criminal. Taxpayers spent billions of dollars on useless and inhumane incarceration.
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