Here in Atlanta and the rest of Georgia we have a law that prohibits texting and driving.  This law says that a driver cannot operate his or her motor vehicle “…while engaging in a wireless communication using a wireless telecommunications device.”  To “engage in a wireless communication” means “talking, writing, sending, or reading a text-based communication, or listening on a wireless telecommunications device. ”  Indiana has a similar law, a statute that allows talking on a cell phone but which prohibits texting.  Many years ago, the United States Supreme Court said that if a police officer has probable cause to believe that a driver has violated any law while driving the officer can stop the motorist.  In many of our federal criminal cases, these traffic violations leads to a search of the vehicle, and some unfortunate motorists end up in jail when the policeman or woman finds drugs, illegal weapons and the like.

When I first heard about these anti-texting laws in Georgia, they made a lot of sense, especially since my then teenagers were just learning to drive when the law went into effect in 2008.  However, I wondered, how can an officer know if the motorist whose head is pointed down toward a cellphone is “engaging in a wireless communication” as opposed to looking at photos or his calendar?  The difference can be huge, especially if the reason the officer stopped the vehicle is for an alleged violation of the no-texting law, and the officer subsequently finds contraband.

It turns out I was not the only person pondering whether a traffic stop in this context would be legal.  In the case of United States v. Paniagua-Garciathe Defendant was prosecuted for a large quantity of heroin located after his vehicle was stopped and searched.  However, here is why he was stopped:

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.

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.

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.

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.

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.

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.

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.

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.

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.