Federal Criminal Trials: should a defendant take the witness stand?

October 31, 2007 by Paul Kish

A person facing a federal criminal trial often asks his or her lawyer for advice about whether to take the witness stand. A recent decision in the United States Court of Appeals for the Eleventh Circuit now provides some help to criminal defense lawyers in Florida, Georgia and Alabama, the states covered by the Eleventh Circuit. The decision in United States v. Moore helps by whittling away at the old rule which said that the defendant's testimony could fill holes in the prosecution's case even when the government failed to produce sufficient evidence of guilt.

One of the hardest questions facing lawyers who represent people accused of crimes is to give advice about whether the defendant should testify in his or her defense. My firm, Kish & Lietz, helps clients with this difficult decision in every case we handle. This decision is especially difficult when we come to the conclusion that the prosecutor's case is extremely weak. Sometime, lawyers recognize that juries will convict, even when there is virtually no evidence. For example, many jurors are so upset about drugs that people who have virtually no involvement can get swept up in a guilty verdict. However, the lawyer often figures out that he or she might win the case on appeal by arguing what we call "insufficiency of the evidence." An appellate court is much less likely to get swept up in the emotion of a trial, and can weigh the sufficiency of the evidence more objectively.

However, for many years, the Eleventh Circuit issued a series of decisions which say that even when the prosecutor did not present sufficient evidence, the lack of evidence could be "fixed" if the defendant took the witness stand. The theory behind this rule was that by convicting the defendant who testified, the jury must have decided that the defendant was lieing, and these lies could form affirmative evidence that would fill the holes in the otherwise insufficient prosecution case. This is a truly unfair rule.

Under the Federal Rules of Criminal Procedure, a defendant can ask the trial judge to throw out a case at the point when the prosecutor finishes up his evidence. We lawyers call this a request for a "judgment of acquittal." A 1994 change allowed the judge to hold off on this decision until the defense lawyer finishes putting up his or her case. However, the old rule in which the defendant's testimony could fill the holes in the prosecutor's case placed defense attorneys in a bad spot when a judge decided to postpone making a decision about the judgment of acquittal until the close of all the evidence.

This past week, the Moore decision fixed this situation a little bit. The case says that when a judge holds off ruling on a request for a judgement of acquittal, yet the defendant is later convicted, the appellate court will look at a "snapshot" of the evidence the way it appeared when the prosecution rested its case. In other words, the defendant's decision to testify cannot be used to fix the holes in a weak prosecution when the judge reserves ruling on a request for a judgment of acquittal.

As I said, giving advice about whether our clients should testify is one of the hardest things we do. In future posts, I plan to discuss other laws that impact this crucial decision.

Federal criminal appeals; reversal of Alabama conviction for environmental crimes

October 25, 2007 by Paul Kish

We do a lot of federal criminal appeals, so I was very interested to read about yesterday's reversal of an Alabama federal conviction for environmental crimes. This case is one more example about how important it is to get a federal criminal defense attorney who not only knows the law, but keeps up with the changes.

The case comes out of the United States Court of Appeals for the Eleventh Circuit, which handles federal appeals from Georgia, Florida and Alabama. The Court of Appeals ruled that the convictions for conspiracy and violations of the Clean Water Act had to be reversed because of incorrect instructions to the jury about the meaning of the term "navigable waters."

This case is quite complicated, involving a criminal prosecution against both a company and several of its executives. However, the defense attorneys did a good job of arguing that the jury was not given correct definitions about what is "navigable water" tht can be regulated under federal laws. The defendants attorneys correctly pointed out that the United States Supreme Court had recently issued an opinion that gives a more restrictive meaning to this term.

Perhaps the most important lesson from this case is that it demonstrates the importance of having a criminal defense attorney who keeps current on the law. The defense attorneys were able to win the appeal because they were aware of this recent Supreme Court case, and they used this relatively recent decision to show that their clients did not get a fair trial the first time around.

Drug Crimes in federal court and young people: how to avoid having a stupid mistake become the defining moment in a young person's life

October 23, 2007 by Paul Kish

Drug crimes in federal court involving young people are unfortunately too common. However, most young people, and many of their parents, do not realize how the harsh sentencing schemes in federal court can have a severe impact on what appears on the surface to be merely a youthful indiscretion.


I have several current clients who come from very nice families, young people whose lives can be impacted severely because of some stupid involvement in drug crimes. The reason that these crimes can have severe impacts are the set of mandatory minimum sentencing schemes enacted by Congress back in the 1980's. These harsh sentencing laws can result in 5 or 10 year minimum sentences, even for some of those least involved in a drug crime. A good example on how even the least involved person can get caught up in these harsh mandatory sentences is an appeal we won for a client several years back.

These mandatory sentences can be amazingly harsh, especially for anyone foolish enough to deal in either crack cocaine or LSD. Small amounts of either substance can yield 5 or 10 years in a federal prison, with absolutely no hope of parole. What makes it even more absurd is that the sentence depends on the weight of the "mixture of substance" that contains even a "detectable amount" of the drug. The Supreme Court has had held that the blotter paper on which some foolish young person drips the drug is included in the weight. Many families have been so incensed about these ridiculous sentencing schemes that they have bonded together in the Families Against Mandatory Minimums lobbying group.

Many parents and young people are also shocked when they realize that there is no "first offender" or records expungement procedure in federal court. In other words, young people caught up in a federal drug case can be stuck with the stigma of a criminal conviction for the rest of their lives.

We have been able to help a few young people in these situations. Obviously, the most important thing anyone can do when they know a young person caught up in a federal drug investigation is to contact an experienced federal criminal defense attorney.

Federal Prosecutor's Apparent Suicide Highlights the Stress Associated with the Defense of Internet-Based Federal Charges

October 17, 2007 by Carl Lietz

Earlier this month, the Pensacola News Journal reported that a federal prosecutor who was charged with an internet based sex crime committed suicide by hanging himself inside his cell at a federal detention facility. In recent years, those of us who engage in the defense of individuals charged with federal crimes have literally witnessed an explosion in the number of internet based crimes that are being prosecuted at both the federal and state level. In my view, this tragic situation involving the federal prosecutor from Pensacola highlights the overwhelming stress that typically accompanies any internet based federal charge.

From what Paul Kish and I have seen, in cases like this, the individual often has strong community ties, a supportive family, and no criminal history or prior encounters with law enforcement. However, several years ago, Congress created a rebuttable presumption in favor of detention for certain internet-based federal crimes. For this reason, in cases like this (and in any case in which the Government moves for detention), it is important for defense counsel to get to up to speed as quickly as possible so that he can be prepared to address the issues that arise during a detention hearing.

In addition to the obvious stress that one encounters upon the initiation of a federal charge, the potential penalties that one may face if convicted can certainly add tremendously to the stress level. In recent years, Congress has not only increased the number of federally-based internet crimes, but it has also substantially increased the sentences that are often associated with certain crimes. For instance, in connection with the enactment of the Adam Walsh Act, Congress increased the mandatory minimum penalty associated with one of the charges the Pensacola federal prosecutor was facing to thirty years.

For all of these and other reasons, individuals facing criminal charges must seek competent counsel immediately. Indeed, as Senator Larry Craig recently acknowledged during his interview with NBC's Matt Lauer, failure to seek counsel in connection with any criminal charge can lead to regrettable consequences.

Criminal defense in Atlanta: Can rapper T.I. get a bond?

October 16, 2007 by Paul Kish

Criminal defense attorneys in Atlanta, like lawyers all around the United States, all know how important it is to try and get a bond for their clients, and get the defendant out of jail early in a criminal prosecution. The recent criminal prosecution of the rap artist T.I here in Atlanta on firearms charges is a great example of how the whole process works in a federal criminal case. My law partner Carl Lietz and I have handles hundreds, if not thousands, of such cases, and we recognize how incredibly important it is to our clients and their families to remain free while they fight against a federal criminal case. Not only do we realize how crucial this is, we also know from vast experience how to "work the system" during this early phase of a criminal case.

First, let's talk about the law. Something called the Bail Reform Act was enacted by Congress in 1984. Readers might remember from an earlier post that this was the same time that Congress enacted the unfortunate Sentencing Guidelines, and all in all, Congress made some very unwise choices when these laws were created. Anyway, under the Bail Reform Act, a prosecutor can try and hold a defendant in jail with no bail or bond whatsoever, something we call "detention." Before that can happen, there has to be a "detention hearing", which generally takes place in front of a Federal Magistrate Judge. The prosecutor can put off this detention hearing for up to three business days, which means that some of our clients are held over a weekend just because a prosecutor claims he or she will later win at the detention hearing.


Lawyers also need to do at least two other major tasks before the detention hearing. First, the attorney needs to understand and be ready to fight against whatever evidence or arguments that the prosecutor will put forward. This might mean getting defense witnesses, or making legal arguments. However, when fighting against the prosecutor at this early stage, it is usually an extremely bad idea to let the client say or do anything. The second thing a competent federal criminal defense attorney needs to do is to prepare a set of proposed release conditions to present to the Magistrate. The lawyer should let the Magistrate know very early that the defendant can post a bond in a certain amount, or that the client's family are willing to pledge real estate, or that upstanding community members are stepping forward and will co-sign any bond in the case. No two cases are alike, but the lawyer needs to be creative in coming up with conditions that the Magistrate might accept, and which the client and his or her family can fulfill.

Perhaps one of the most important things at this early stage of a case is to know the relevant players. As former federal public defenders, my law partner and I know most of the jailers, the clerks, virtually all the prosecutors, and perhaps most importantly, all the Magistrates. For example, the Magistrate that the Rap Artist T.I. will appear in front of is someone I know very well both professionally as well as socially. I cannot stress enough how important it is to have a lawyer who knows the people involved, as well as knowing the law. The Rap Artist T.I. has very accomplished attorneys who will do their very best to get their client out on bond. Getting the client out of jail is crucial at the early stages of a criminal case.

Search and Seizure in Atlanta, Georgia argued in the Federal Court of Appeals

October 15, 2007 by Carl Lietz

Last week, I argued a federal criminal case here in Atlanta in the United States Court of Appeals for the Eleventh Circuit. The main issue in the case was whether a search warrant that was obtained by an Atlanta Police Department Officer could survive scrutiny under the Fourth Amendment.

Procedurally, the case was somewhat unique in that, in the lower court, the federal magistrate judge concluded that the warrant was unconstitutional. His decision was based primarily on the fact that the warrant completely failed to link the items sought in the warrant to the crime at issue, or provide any basis as to why those items would be present at the location searched. Thus, the judge concluded (rightly I believe) that Eleventh Circuit precedent required him to hold that the warrant was unconstitutional because it simply was not supported by probable cause. Ultimately, however, this decision was not sustained by the federal district judge that presided over the matter. Obviously, we disagree with this decision, which is why we ended up in the Court of Appeals.

This was my sixth oral argument in the Federal Court of Appeals (Paul Kish has argued about fifty cases there) and I am always amazed at how much preparation time is required to get ready for an oral argument. I spent several days reading cases, reviewing briefs and the record below, and outlining my argument. The folks at the Federal Defender office here in Atlanta helped me tremendously. Several of them took time from their busy schedules to read the briefs and spend several hours grilling me with questions. It was a huge help. Based on my reading of the case law, I am very optimistic.

White Collar Criminal Defense in Atlanta, Georgia: fighting against appeals by the government in the United States Court of Appeals for the Eleventh Circuit when defendant gets probation

October 12, 2007 by Paul Kish

Here in Atlanta, Georgia we convinced a federal judge to impose probation as a sentence for a client in a white collar fraud case, but we now are fighting against an appeal by the government. This is happening more and more, judges ruling that sentences are just too long for some minimally involved white collar defendants, and the government appealing because they are unhappy with the sentence. Fortunately for our client, we do a lot of appeals in federal court and are comfortable in helping defend the proper sentence.

This whole issue started with the unfortunate 1984 passage of the Federal Sentencing Guidelines, a set of complicated rules that generally call for harsher sentences. The Guidelines were mandatory, and many judges felt as if they were being forced to hand down unfair sentences. Myself and many other criminal defense attorneys fought against these rules for many years, culminating in a decision from the U.S. Supreme Court which held that the Guidelines are unconstitutional, but can nevertheless be used in an "advisory" fashion. After this ruling, many judges started imposing shorter sentences.

In white collar fraud cases, some judges simply do not see the need to incarcerate a defendant who made no money, whose entire life has been turned upside down, and who already has been forced to shell out a small fortune in order to hire an attorney who knows his way around the dangers facing a criminal defendant in federal court. Earlier this year, we convinced a judge to impose a sentence of 6 months home confinement and several years of probation on just such a client.

The government was very unhappy with the decision from this respected judge, and appealed the case to the United States Court of Appeals for the Eleventh Circuit. We did a lot of research, and discovered that many other clients such as ours received similarly reduced sentences, because it was the fair thing to do. We called these other cases to the attention of the court of appeals in our brief, which can be found on the PACER system for electronic filing in federal court.

I will continue to write about appeals in white collar fraud cases in other posts. There is another major case before the U.S. Supreme Court which likely will be decided in late 2007 or early 2008, which could have an impact on these situations.