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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December 18, 2013

Federal Criminal Appeals: Sometimes the Defendant Can be Released on Bail During the Appeals Process

We do lots of criminal appeals, both in Federal Court and in the Georgia State Courts. On occasion, we ask the judge to allow our client to remain free on bail, or bond, while the case is appealed to a higher court. This is kind of tricky, in that the attorney must be well-versed in the intricacies of the Bail Reform Act, a 1984 law that kind of flipped the playing field when it comes to having a defendant released on bail. Perhaps even more tricky is the question of when the case usually calls for no bail, can the lawyer get around that by a part of the law that seems to permit release on bond if the case involves "exceptional reasons." Beyond that is the question of who decides whether the Defendant's case involves "exceptional reasons: the trial judge or the court of appeals itself? An opinion issued earlier today by the United States Court of Appeals for the Eleventh Circuit answers that question once and for all in federal cases arising in Georgia, Florida and Alabama. In cases that fall into the category of no bail during the appeals process, it is the district judge gets to first decide whether the case involves "exceptional reasons", and thus can still let the Defendant stay out on bail. the case is United States v.Meister, and can be found here.

Meister was sentenced for having child pornography. His lawyers asked that be be permitted to remain on bond during the appeals process. The Bail Reform Act denies release for Defendants who appeal certain serious crimes. Defendants who violate the child pornography laws are thus prohibited from remaining on bail during appeal.

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November 20, 2013

Search and Seizure: How far Does the Rule From Georgia v. Randolph Extend?

Criminal cases involving search and seizures by police officers continue to bedevil the courts more than two centuries after the Fourth Amendment was added to our Constitution. As we all know, the Fourth Amendment says that there cannot be a "search" or a subsequent "seizure" of evidence unless there is a search warrant, or unless there is "probable cause." One of the many exceptions to this rule is that the police can search if the owner of some property "consents" to the search. However, what happens when two people live there, and one says they can search, but the other refuses? A case that started here in Georgia a few years back ended up at the Supreme Court, Georgia v. Randolph. In that case, the wife told the cops they could search, the husband showed up and demanded that they not look for evidence unless they had a warrant. The cops searched anyway, and the U.S. Supreme Court ruled that the search was illegal because the cops should not have relied on the wife's consent when the husband refused to let them in. Last week, the Supreme Court heard oral arguments in a case that will decide how far the rule from Randolph will extend. This recent case is Fernandez v. California, and can be accessed here.

The police suspected Walter Fernandez of being involved in a stabbing. They went to his building and heard screaming from in and near his apartment. His girlfriend answered the door, and appeared to be bloody and bruised. Mr. Fernandez, who was inside, told the police “Get out. I know my rights. You can’t come in.” Despite not being allowed to enter, the cops took Fernandez into custody on suspicion of domestic violence . About an hour later, the police returned and obtained the girlfriend’s consent to search the apartment. You guessed it, they found evidence used to later convict Fernanzed of the stabbing crime.

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November 14, 2013

Federal Criminal Appeal Explores Extent of "Aiding and Abetting" Liability

We do lots of federal criminal appeals, and one such case was argued earlier this week in the United States Supreme Court. The case is Rosemond v. United States, and it involves a question that comes up frequently in federal criminal cases. Federal prosecutors often try to hold one person accountable for the actions of another person under a law that prohibits a person from "aiding and abetting" a crime. The person who does the crime is the "principal", and the question in Rosemond is whether the "aider and abettor" needs to have the same state of mind, or "mens rea", as the person who does the criminal act.

They say you always "remember your first", so I have a fond memory of the initial time (23 years ago, time flies!) I won an appeal of a federal criminal conviction, which also involved the aiding and abetting theory of liability. My case involved a young man who foolishly drove other guys who committed a series of armed bank robberies. I was able to convince the Court of Appeals that for the very first of those robberies, my client could not be held accountable for the gun that was used inside the bank. The Court of Appeals agreed that under the "aiding and abetting" theory of liability there must be proof that the aider and abettor had knowledge of the gun and the same intent or purpose as the other person who does the dirty deed. In my case, there was no proof that my guy knew about and agreed with the use of the very first gun before it was used. On appeal, I was able to convince the judges to reverse the conviction for use of that first gun, and thus lopped 20 years off my client's sentence.

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November 12, 2013

Plea Agreements in Federal Criminal Cases: the Importance of Getting it in Writing

Criminal cases in federal court, as well as the many state court matters we handle, often are resolved with what many people refer to as a "plea agreement." Basically, the prosecutor gives the Defendant something in return for a plea of guilty, such as a recommendation for a lower sentence, or an agreement to not bring further charges, or a decision to not charge the Defendant's company or spouse with other crimes. Just a few hours ago, the United States Court of Appeals here in Atlanta issued an opinion in a federal criminal case which demonstrates, yet again, how important it is to have a defense lawyer who knows the ins and outs of this process. The case is U.S. v. Robertson, and can be found here.

Mr. Robertson seemed to have a life of crime, and was suspected of some robberies. He decided to shorten his sentence, so he agreed to testify against a co-Defendant in order to get a shorter sentence. He claimed that the co-Defendant forced Robertson to do the robbery. The federal prosecutor (who later became a federal Magistrate Judge) got some taped calls demonstrating that Robertson and the co-Defendant were friends, and that there was no "forced" robbery. The prosecutor then retracted the offer of a lower sentence. Robertson and his lawyer then said they had information on two unsolved murders. Here is where it gets murky.

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