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

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.

“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
Updated:

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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