July 17, 2014

Reducing Sentences for Federal Drug Crimes: U.S. Sentencing Commission Votes on Making Reductions Retroactive

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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June 25, 2014

Hooray for privacy! Unanimous Supreme Court Holds That Police Need Search Warrant to Access Data in Cell Phones After an Arrest

Federal criminal cases, State criminal case, here in Atlanta, throughout Georgia and the rest of the country, are all impacted by this morning's blockbuster ruling from the Supreme Court. The Court held that when a person is arrested, law enforcement cannot simply look through all the data in the arrested person's cell phone, unless they first get a warrant from a judge. This massively important ruling is just the latest example of how the breakneck pace of modern technology runs square into the Eighteenth Century privacy considerations enshrined in the Fourth Amendment to our Constitution. I have written about this in earlier posts like this and this. . Read today's case here.

Back in 1969, the Supreme Court issued a decision called Chimel v. California. Police officers looked through a pack of cigarettes in Mr. Chimel's pocket after arresting him, discovering contraband. The Supreme Court in that case said the search was OK, creating what we call the "search incident to arrest" principle. When a person is arrested, it is basically OK for the cops to look through anything he or she is carrying or has on his or her person, with no need for a warrant.

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June 24, 2014

Supreme Court Issues Opinion in Federal Bank Fraud Case

Those you that handle white collar matters in federal court may want to take a look at the Court's decision yesterday interpreting subsection two of the federal bank fraud statute, 18 U.S.C. § 1344(2). Subsection (2) of § 1344 makes it unlawful to knowingly execute or attempt to execute a scheme or artifice to obtain money, assets or property "owned by, or under the custody or control of, a financial institution by means of false or fraudulent pretenses, representations, or promises."

In the case before the Court yesterday, the defendant attempted to cash fraudulent checks at Target. The checks he attempted to cash were taken from the mailboxes of various individuals and then altered so that they could be presented at Target by the defendant. Ultimately, Target realized that the some of the checks were fraudulent and after doing so, Target declined to present them to the bank. With respect to the one check that was presented to the bank, the bank itself realized the check was fraudulent and refused to pay the check. For these reasons, the record did not conclusively establish that any bank lost money as a result of the scheme.

The Court granted certiorari to resolve the Circuit split on the following question: Whether § 1344(2) requires the Government to show that a defendant intended to defraud a bank. According to the defendant, this really mattered in his case, because although he acknowledged that his scheme intended to deceive Target, he argued that there was no evidence that he ever intended to deceive a bank.

In its opinion, the Court rejected the argument that subsection two of the bank fraud statute requires the Government to prove that an individual intended to defraud a bank. The Court relied on the plain language of the statute, as well as general cannons of statutory interpretation. Most notably, the Court recognized that subsection one of the statute explicitly requires that an individual act with an intent to defraud a bank and that if one read a similar requirement into subsection two, it would render subsection one superfluous.

After dealing with the language of the statute and canons of statutory construction, the Court turned to the more difficult issue raised on behalf of the defendant. According to Loughrin's lawyer, if the Court reads subsection two as not requiring an intent to defraud a bank, the statute's coverage would extend to a vast range of fraudulent schemes, thereby intruding on the historic criminal jurisdiction of the States.

To the Court, the expansion of federal jurisdiction argument had some force and appeal. Indeed, in addressing the argument, the Court noted that it "agree[ed] with "much of what Lougrin argues." For that reason, the Court stated: "Unless the text requires us to do so, we should not construe §1344(2) as a plenary ban on fraud, contingent only on use of a check (rather than cash). As we have often (and recently) repeated, we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction."

Ultimately, although it found the expansion of federal jurisdiction argument appealing, the Court rejected Lougrin's invitation to read subsection two as requiring an intent to defraud a bank. The Court, however, addressed the expansion argument by recognizing "a significant textual limitation on §1344(2)'s reach." According to the Court, it is not enough for a "fraudster"to obtain money from a bank and in doing so make a false statement. Instead, in the Court's view, the defendant must also "acquire (or attempt to acquire) bank property by means of the misrepresentation. And in order to satisfy the Court's "by means of" language, the Government must show that the defendant's false statement is the mechanism naturally inducing a bank to part with money in its control.

There is no doubt that the "by means" test created by the Court in Loughrin will be the subject of litigation in later cases. For that reason, federal practitioners will be well served by reading Lougrhin, which can be found here. While doing so, do not forget to read Justice Scalia's concurrence which, as usual, is entertaining. Although Justice Scalia agreed with the result, he did not join the portion of the majority's opinion involving the "by means" test. Instead, since that issue had not been adequately briefed and argued, Justice Scalia believed that the meaning of "by means" should be left for another day. In his concurrence, though, Justice Scalia challenges the majority's view of "by means" and his argument provides ammunition for later argument concerning the application of what that phase now means.


June 4, 2014

Another Federal Criminal Case Reversed by the Supreme Court

Readers know that federal criminal cases are a large portion of our work, so we pay attention to the laws, reported decisions and news stories about how the "feds" sometimes brings really unfortunate criminal cases. This past Monday, the United States Supreme Court reversed yet another unfortunate federal criminal case, because what the Defendant did was not even a federal crime. The case is a perfect example of how some federal prosecutors will take even the smallest case and try to"make a federal case out of something." The case is Bond v. United States, and can be read here.

A Pennsylvania woman learned that her husband had impregnated her former best friend. The woman put some caustic chemicals on the pregnant woman's door handle. The victim was slightly burned on her hand, which she remedied by washing. Sounds like a state law case, right? Wrong! Some ambitious federal prosecutors brought a federal case against the Defendant for violating a 1998 statute that was designed to implement US treaty obligations concerning chemical weapons. A divided Supreme Court reduced the scope of this statute. The majority ruled that Congress could not have intended to make it a federal crime — with global implications — for a woman to try to poison her husband’s lover.

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April 18, 2014

Good Laws Sometimes Yield Bad Consequences: The Crime Victims Rights Act

Over the past 20 years or so, there has been a real push to protect the rights of victims in the criminal justice system. People who are victims of crime now have the right to speak in court, to receive restitution, and to be informed about all phases of a criminal case against the person who victimized them in the first place. In federal criminal cases, where we do a bulk of our work, this trend to give victims more rights culminated in the 2004 Crime Victims Rights Act (CVRA). I have spoken to lawyer meetings around the country since 2004, pointing out how criminal defense attorneys need to account for the fact that victims are now more heavily involved in federal criminal cases.

A decision issued yesterday by the United States Court of Appeals here in Atlanta shows how even good laws like the CVRA can sometimes lead to bad consequences. The case is Jane Doe #1 and Jane Doe #2 v. Roy Black, et al. You can access the decision here.

A man named Epstein apparently sexually abused two minor girls. Epstein hired Roy Black, a prominent criminal defense attorney in Miami. Epstein faced potential criminal charges in both the local Miami courts as well as in the federal court system. Recall, the under the CVRA, victims have lots of rights, one of which is to be notified about all developments in a case. Victims also own the right to have their opinions heard when prosecutors are considering resolving a case with an agreement of some sort.

The federal prosecutors told the victims that they were considering a case against Epstein. However, they ultimately decided to not prosecute Epstein in return for his plea of guilty in the local court system. Here's the problem: although they properly informed the victims about the state court guilty plea, the feds failed to tell the victims there would not be a federal prosecution, thus potentially violating the victims' rights to be heard as to the fairness of this resolution.

The victims eventually filed a law suit, but the important part of the case is that they wanted all correspondence and communications between Epstein's lawyers and the federal prosecutors. Everybody knows that it is is very important to keep plea negotiations (and just about every other type of negotiation) secret. Lawyers and their clients are far less likely to put their cards on the table if they know that their communications later can be opened up to outsiders. However, that is exactly what happened in the decision issued yesterday. The Court of Appeals ruled that there is no privilege or other reason that prevents the victims from getting access to Epstein's attorneys' confidential communications with the federal prosecutors.

Again, I am mostly in favor of the greater rights we not afford to victims of crimes. This movement has helped regain respect for the criminal justice system. However, I fear that this ruling and others like it will make it far harder for criminal defense attorneys and prosecutors to do their jobs, knowing that somebody down the line one day can pry open an old file and try to use a seemingly private business communication for another purpose.

March 10, 2014

Federal Criminal Case Reversed by the U.S. Supreme Court: We Were Right All Along!

We pay attention to federal criminal cases everywhere in the country, not just those here in Atlanta or other parts of Georgia, nor merely those arising in nearby states like Florida, Alabama or Tennessee. One reason we pay attention is so we know all the hot issues that might help our clients. One such issue focuses on how far one person can be held accountable for the actions of another person who was involved in the same crime. The fancy name for this is "aider and abettor" liability. In an earlier post I noted how I pushed this issue over 20 years ago, resulting in my very first win on appeal. I also noted how the U.S. Supreme Court recently took on a case that focused on whether my original arguments were correct. Last week, they issued their ruling in Rosemond v. United States, and they agreed with the defense perspective. You can read it here.

Justus Rosemond took part in a drug deal where either he or another participant fired a gun. Federal prosecutors charged everybody involved in the deal with shooting the weapon, and their theory was either that Rosemond himself shot the weapon, or that he "aided and abetted" the shooter. That's crucial because an aider and abettor is just as responsible as the actual shooter, and would get the same mandatory additional 5 or 7 years tacked on to a sentence.

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March 1, 2014

Criminal Defense Attorneys Win Case in Supreme Court: Decision Turned on the Meaning of When " Death Results"

This past Wednesday some federal criminal defense attorneys won a case in the United States Supreme Court when they convinced the Justices that they had the better interpretation of the part of a law that increased their client's sentence if "death results" from something he did. I previously posted about the case here. The case issued on Wednesday is Burrage v. United States, and can be read here.

The case revolves around a federal statute that requires a 20-year mandatory minimum sentence for a person dealing drugs "if death results." Mr. Burrage was charged with selling heroin to a man who died after a drug binge involving multiple illegal substances. The jury would have to decide if the heroin sold by the Defendant to the victim caused the man's death. Mr. Burrage's lawyers wanted the judge to tell the jury that they would need to find that selling heroin "played a substantial part" in bringing about the death, and that the death was a "direct result of or a reasonably probable consequence of" using the heroin. The trial judge and the court of appeals rejected the Defendant's contentions, and said it was OK to tell the jury that it was enough if they decided that the heroin was a "contributing cause" of the victim's death. The instruction told the jury that "a contributing cause is a factor that, although not the primary cause, played a part in the death[.]” The jury found Burrage guilty, and the United States Supreme Court agreed to hear the case.

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February 28, 2014

Supreme Court Restricts Reach of Earlier Case from Georgia Concerning Searching a House Without a Warrant

I previously posted here about a case in front of the United States Supreme Court that deals with how far does the rule from Georgia v. Randolph extend. Recall that in Randolph, the Supreme Court confronted the question of what happens when one resident of a home (there it was the wife) tells the police it's OK to search the house even if they don't have a warrant, yet the other occupant (the husband) refuses to consent to a search. In that earlier case from right here in Georgia, the Supreme Court said it is not reasonable for the police to think they have the right to enter a home and search without a warrant if one of the occupants is right there on the scene and objects to the search. Two days ago, the Supreme Court issued its ruling in Fernandez v. California, which restricted this rule a bit. You can read the opinion here.

The facts in Fernandez are a little different than the case from Georgia. Mr. Fernandez shared his apartment with his wife. When the police came to the door, he refused them the right to enter, although she said it was OK. The police arrested Fernandez for other reasons, and later returned after he was in custody and asks his wife again if they could look in the apartment. She again consented, and they entered, searched, and found incriminating evidence.

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February 27, 2014

Top-Notch Federal Criminal Defense Lawyers Are Expensive, But the Supreme Court Says It's OK for Prosecutors to Freeze Assets Before Trial to Prevent Defendant From Hiring Counsel of Choice

I write often about criminal defense lawyers, and regularly point out how defending a client against federal crimes is a rare speciality that requires an attorney who keeps up on the law and who will fight for his or her client. In private practice, it is expensive to hire the rare lawyer who has all these qualities. Yesterday, the Supreme Court ruled that it is OK for prosecutors to tie up all the Defendant's assets pretrial with seizure of bank accounts that prevent the Defendant from hiring the specialist he or she has chosen to defend himself. The case is Kaley v. United States, you can read it here. I previously posted about this important case here and here.

Reduced to the basics, Ms. Kaley and her husband were suspected of crimes. They hired an amazingly good lawyer, and set aside the money needed to let this specialist do his job. The Feds got an indictment, and also got an order freezing the money Ms. Kaley had put aside to pay the attorney. Kaley eventually took the case to the Supreme Court, arguing that she at least had the right to a hearing to challenge whether there was enough evidence to justify tying up her assets even before a trial. She probably has a pretty good chance, in that a trial against a CoDefendant charged with the same crime resulted in an outright acquittal. However, Ms. Kaley did not fare so well in the Supreme Court, which ruled that she has no right to a hearing to challenge the seizure of her money even before a trial.

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February 3, 2014

Federal Criminal Law: Supreme Court Agrees that Defendant Should not get Longer Sentence

Recently, the United States Supreme Court issued another ruling that impacts federal criminal cases. The issue in this recent case was whether the Defendant should get an automatic longer sentence that is imposed when "death results" from drugs that the Defendant sold. I previously posted about this case here, and the the recent decision (which was published when I was away on a well-needed vacation) is here.

In this recent case, the Supreme Court looked for the meaning of the term "result from" in a case where the district court imposed a 20-year mandatory minimum sentence upon a Defendant for the sale of one gram of heroin since a buyer's death had "result[ed] from" the use of the heroin as one of several drugs he consumed that contributed to the death. The Defendant (a man named Burrage) had sold drugs to Banka, who died after using both Burrage's heroin and several other drugs. Medical experts at trial could not say whether Banka might have died from using the other drugs even if he had not taken the heroin, but the experts all though that the heroin was a contributing cause of death.

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January 10, 2014

Trying to Kick a Judge Off a Case is Difficult: the Eleventh Circuit Rejects Recusal Motion by Defendant who Killed Another Eleventh Circuit Judge

We do criminal cases here, that's just about all we do, whether in federal court in Georgia, Alabama, Florida or other parts of the country, but also throughout the State of Georgia. Many times, clients feel that a particular judge will not be fair, and they want us to talk about getting rid of that judge. To so so, a lawyer needs to file a motion for something we call "recusal". However, when any lawyer is convinced that filing such a motion is appropriate, he or she needs to have pretty good grounds to do so, because you are basically saying that the judge on your case is unfair. If that same judge denies the recusal motion, you are stuck with a judge who you've just challenged.

This same process played out in an opinion published earlier today by the U.S. Court of Appeals for the Eleventh Circuit, which has it headquarters here in Atlanta just down the street from our offices. The case stems from the famous bombing that killed Robert Vance, who was an Eleventh Circuit judge at the time he was murdered.

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December 27, 2013

Search and Seizure in the Eleventh Circuit: Police Cannot Enter Apartment Without a Warrant But It's OK to Install GPS Monitor on Automobile if Cops Do So In "Good Faith"

Casual readers know that we try to keep abreast of federal criminal cases, including appeals of criminal convictions involving decisions where the issue revolves around whether a particular search or seizure of evidence falls within the Fourth Amendment. As many of us know, if evidence is seized in violation of the Constitution's Fourth Amendment, such evidence generally is inadmissible and cannot be used against the accused person (assuming that the Defendant in question has "standing" to contest the search). A pair of recent cases from the United States Court of Appeals for the Eleventh Circuit reached opposite conclusions on this issue. In one case, the appellate court ruled that the police violated the Constitution when they entered an apartment without a warrant. In the second case, the police installed GPS monitors on the Defendant's vehicle without getting a warrant. In that case, the Eleventh Circuit ruled that earlier decisions from decades ago made it reasonable for the police to think they would be acting in "good faith" by installing the monitors, even if later Supreme Court rulings reached a different conclusion.

In the first case, one of Ronald Timmann's neighbors noticed a bullet hole in her apartment wall, and the hole indicated that it was caused by a weapon that likely was discharged from inside Timman's adjacent apartment. After the police were unsuccessful in trying to locate and talk with Timman, they decided about 39 hours later to enter his apartment. Inside they found weapons that were used to prosecute him for criminal violations. His attorneys argued that the warrantless entry into the apartment was illegal. Prosecutors pointed to the "emergency aid" exception, by which in certain situations the police are allowed to enter locations without a warrant in order to assist a person who might be in danger. Here, the appellate court decided that the situation the officers confronted wasn't an urgent emergency. "The officers here did not receive an emergency report regarding an ongoing disturbance, but rather a service call regarding what appeared to be a bullet hole, which circumstances known to the officers indicated had been made at least 39 hours prior to when the officers made entry." The first office on the scene "...did not encounter a tumultuous scene, nor were the officers met with chaos when they returned to the building the next day. The officers observed no violent behavior, nor did they see or hear evidence that a fight had taken place or that anyone had been hurt…" As a result, the Court held that the entry and discovery of the guns and certain statements made by Timman could not be used against him.

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