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

Here at our firm we do a fair number of criminal appeals.  Some cases come out of the federal courts, here in Atlanta, throughout Georgia, and occasionally in other parts of the country.  We also handle criminal appeals arising out of Georgia’s state courts.  As described in an opinion issued two days ago by the U.S. Court of Appeals for the Eleventh Circuit, Overstreet v. Warden, “The fundamental purpose of an appellate lawyer representing a defendant in a direct criminal appeal is to identify and argue bases for reversal of a conviction.”  The value of appellate counsel is based on his or her “examination into the record, research of the law, and marshalling of arguments on [the defendant’s] behalf”.   But what happens if the appellate attorney misses an issue?  The Overstreet decision is one of those rare cases in which a federal court of appeals overruled the lower federal court, and the state courts, in concluding that the attorney handling the appeal made such an egregious mistake that the Defendant was entitled to have some of his convictions reversed many years after the fact.

Johnny Overstreet apparently was no angel.  A jury found him guilty for a series of crimes arising out of robberies at five fast food establishments.  For each incident, he was also found guilty of kidnapping store employees.  Prosecutors successfully argued that Overstreet kidnapped the store managers by forcing them to walk back to a safe or office, and then return to the front of the establishment. At the time of Overstreet’s trial, Georgia’s kidnapping law required  even a “slight movement” of a victim in order to comply with the “asportation” aspect of this crime.   However, the following year, well before Overstreet appealed his own convictions, the Georgia Supreme Court reversed this “slight movement” test.  Under the new test, movement of a victim that is “part and parcel” of an independent crime, such as armed robbery, would generally not be considered asportation.  Even more importantly, two later cases with facts almost identical to Overstreet’s trial reversed kidnapping convictions based on the Georgia Supreme court’s new rule.

Here is where the problem arose.  The lawyer handling Overstreet’s appeal filed his legal papers 15 months after the new test for asportation had been announced by the Georgia Supreme Court, and several months after the other cases with identical facts had resulted in reversals.  The lawyer never mentioned asportation, the new cases, or any attack on the kidnapping convictions at all other than to say that the evidence was insufficient.  Not surprisingly, the state appeals courts did not look at nor reverse the kidnapping  convictions.

Overstreet himself then filed a series of rambling attacks over the next several years, first in the state courts, and then in a federal “habeas corpus” action under 28 U.S.C. §2254.  Again, no judge noticed that in the midst of his pleadings Mr. Overstreet himself did raise the asportation issue, and argued that his appeals lawyer was ineffective in not bringing this issue up. Federal habeas corpus cases are very limited, and when a District Judge denies such a petition, the Defendant does not have the right to appeal to a higher court unless either the District Judge or the Court of Appeals itself grants what is called a “certificate of appealability.”  That is what happened, for someone in the federal appellate court noticed this issue, they granted a certificate of appealability, and two days ago the Eleventh Circuit issued its decision, holding that the failure by the appeals lawyer to bring up the asportation issue was ineffective, and Mr. Overstreet was “prejudiced” by the error.  They sent the case back to the lower courts with directions that the kidnapping convictions be reversed.

Overstreet contains a number of lessons.  First off, any lawyer handling a criminal appeal needs to keep up on legal developments, as we do in trying to regularly read the opinions from the Court of Appeals, the Supreme Court and other relevant sources.  Second, if an issue is not raised, it rarely can be brought back up years later.  Overstreet is the rare case where courts decided that an appeal lawyer’s performance was so sub-standard that the judges simply could not stand for the result, and they reversed his kidnapping convictions.

One version of “white collar crime” that often winds in federal court is called “honest services fraud”.  The basic version of the crime is when someone (usually a person who works either for some large organization, like a business or government) engages in a “scheme to defraud” that is intended to deceive or cheat another and to obtain money or property or cause the potential loss of money or property to another by means of materially false or fraudulent pretenses, representations or promises, or to deprive another of the intangible rights to honest services.  In 2010, the Supreme Court limited the words “intangible rights to honest services” to mean this law only applies to situations involving either a bribery or a kickback.   As a general rule, prosecutors need to prove an exchange, or “quid pro quo”, and must prove that the Defendant did, or refrained from doing, an “official act”, in exchange for money or something else of value.  However, there have been questions as to the type of “official act” which forms the basis of this crime.  Last Friday, the United States Supreme Court agreed to review the case of former Virginia Governor Robert McDonnell which could provide some answers in this area.

 

As noted above, honest services bribery or kickback requires an exchange of an official act for money or property. Some earlier decisions rejected efforts by prosecutors to expand the phrase “official acts” to include actions that are “customary” in the performance of many jobs. One court reversed the conviction of a state official who offered, for a fee, to introduce an architectural firm to high-ranking officials who could then secure contracts for the firm. The Defendant there promised to make introductions, but no evidence established that he promised to use his official position to influence those to whom the architectural firm was introduced. That court recognized a distinction between affording access versus actions that influence a decision.

Another federal court of appeals seems to take the same position. That Court said a legislator could not be convicted for taking money from a hospital in return for lobbying mayors to comply with state law in a way that benefited the hospital. That case also seemed to distinguish between actions that use or threaten the use of official powers versus actions that merely trade on reputation or access that accompanies the holding of a certain office.  Yet one more federal appellate court said that “official acts” are limited to those that influence an actual decision about real policies. That case involved a policeman who took payments in exchange for using an official police database to perform license plate and outstanding warrant searches. While accessing the database was part of the officer’s duties, he did not perform an “official act” in return for the money, in that the officer did not exercise any inappropriate influence on decisions made by the organization for which he worked.

In contrast to these three decisions, the Fourth Circuit affirmed the conviction of former Governor Robert McDonnell. On appeal Governor McDonnell’s lawyers argued that he had merely extended “routine political courtesies” to the person who paid him money. “This is the first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision,” their brief said.

I am currently handling several matters involving potential or actual prosecutions under the “honest services” theory.  I will keep looking at the McDonnell case, as it likely will impact these and future cases we handle in this area.

Casual readers of this blog (are there any other kinds) know that we handle various types of criminal cases here in Atlanta, throughout Georgia, and in federal court throughout the country.  More and more of these cases in these various courts involve crimes that relate in one way or another to use (or misuse) of computers.  One issue that comes up a lot in these cases concerns how much “damage” a person truly caused when he or she got into a website without authorization.  A case in the Eastern District of California, discussed in this post here, has some valuable lessons,  and also some contrasts with a matter I am handling now in a Georgia court.  First to the California case, then we’ll pivot over to the comparisons to my case.

A journalist named Matthew Keys was charged with giving login credentials to hackers with the group Anonymous.  Those online saboteurs supposedly went on the website of the Los Angeles Times newspaper, and changed a headline.  It was about 40 minutes or so before anyone noticed the hack, and the headline was changed back to the original form.  The feds took the case, and charged Mr. Keys with one count of conspiring to make changes to Tribune’s website and damage its computer systems, one count of transmitting damaging code and one count of attempting to transmit damaging code.  The jury found him guilty.

As we talk about all the time on this blog and on our own website, the sentencing process in federal court is very formalized, arising from the wickedly complex Federal Sentencing Guidelines.  First off, a Federal Probation Officer (or “USPO”) interviews the Defendant, gets information from the prosecutor, and then files the first version of the very important “Presentence Report”, sometimes called the “PSR”.  In the PSR, the Probation Officer makes recommendations as to how the sentencing judge should apply the Sentencing Guidelines.  If either side is unhappy with the Probation Officer’s recommendations, that party can file Objections, which the Judge then has to hash out and rule on at the final sentencing hearing, unless the Probation Officer agrees to change the final PSR in a manner acceptable to the objecting party.

In Mr. Keys’ case, the USPO suggested that the hack caused damages exceeding $250,000.  If the Judge agrees, this results in a 12-level increase under the scoring mechanism used by the Guidelines.  Defense Counsel objected, arguing that the increase should only be around $5,000 for a 40-minute change to the online site of a newspaper. What struck me is that that the objections by the defense team were filed on the open docket, meaning the public gets to see what can sometimes be private information that forms the basis of issues arising in a PSR.

My case here in Georgia is being handled within the state court system (although it was originally investigated by the FBI).  One difference is that Georgia has a “Computer Trespass” law that makes it a crime to engage in unauthorized access of a computer system if the person merely “alters” the system.  Obviously, even the smallest change could result in an “alteration” and thus lead to a criminal charge.

Sentences for State cases in Georgia are not constrained by any specific guidelines or ranges, such as those found in federal cases.  The judge can do just about anything he or she wants, so long as it is within the overall ranges set out by the legislature (and even then, other Georgia laws allow a Judge to impose a non-custodial sentence in the vast majority of situations).  Another difference from the California case involving Mr. Keys and our practice is that, generally, most of our objections to a PSR are handled by private and non-public communications between the lawyers and the USPO.  I am always reluctant to file anything in a public forum that deals with private information relating to my client, unless of course I feel that the risk is worth the gamble.

While there are obvious differences between Mr. Keys’ case and the matter I am handling here in Atlanta, the similarities struck me.  More and more large organizations are highly protective of their computer systems, and even the smallest intrusion results in that company running to law enforcement.  Even a relatively minor change can result in serious potential penalties.  If you or someone you know has done anything similar to this, it is wise to stop it, and then get advice from a competent criminal defense lawyer who handles these difficult situations.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We have been following some recent developments in federal criminal prosecutions brought against people who operate  businesses that prepare federal and state income tax returns for their clients.  First,  the U.S. Court of Appeals for the Eleventh Circuit yesterday affirmed a conviction and lengthy sentence imposed on an Atlanta-based tax preparer who had apparently stolen the identities of her own clients and used that information to file bogus requests for tax refunds.  The case is United States v. Ford, and can be accessed here.  Second, I recently finished a case where I was able to convince the federal judge to impose a somewhat lower sentence on another tax preparer because of some upcoming changes in the Federal Sentencing Guidelines.  An earlier post about this sentencing tactic is here.  Finally, I have been representing other tax preparers who are battling with the IRS over issues concerning the operation of their businesses.

In the recent Ford case in the Court of Appeals, the Defendant was convicted after a trial.  During the investigation of the case, and Atlanta-based TV station got wind that Ms. Ford was supposedly engaging in some kind of fraud, so they sent in an undercover reporter wearing a secret camera.  The camera caught Ms. Ford saying and doing some things that were very harmful, and the TV station then aired the typical “gotcha” story, replete with the seemingly angry reporter who was “shocked” that crime happens.  Before trial, Ms. Ford’s attorney argued that putting an incendiary TV show in front of the jury was excessively prejudicial.  The Court of Appeals rejected  this argument, mostly because the prosecutors wisely agreed to take out just about everything from the TV story except the part where Ms. Ford was talking with the undercover reporter.  One lesson for attorneys who represent people accused of fraudulent activities is to always be aware that in this modern media-frenzy culture there always might be a TV story or something on social media you need to be prepared for when defending the case.

As I mentioned in my earlier post on using changes to the Federal Sentencing Guidelines as a method for trying to get a lower sentence, the concept of “loss” and the number of “victims” are two crucial factors that go into the sentencing range that every federal judge faces when starting the process of figuring out the correct sentence for a person convicted of a crime involving fraud.  In the Ford case from yesterday, the defense team argued that the sentencing judge made mistakes when calculating the amount of loss and whether certain people were victims.  While the Court of Appeals rejected these arguments, it is important to remember to object to rulings in such areas so that the Defendant at least has the chance of appealing to a higher court when the sentence is longer than anticipated.  We unfortunately sometimes have clients come to us after another lawyer represented them at the sentencing hearing and failed to remember that it is important to object when the Judge makes a decision that could lead to a higher range under the Sentencing Guidelines.

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

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

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

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

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

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