Federal Crimes: Can Prosecutors Use Similar Act Evidence?

November 27, 2007 by Paul Kish

One of the hardest questions lawyers need to answer in a federal criminal case is whether the prosecutor can use "similar act" or "other crime" evidence. Sometimes, the law permits the prosecutor to introduce evidence that on a time OTHER than the one charged in the indictment, the defendant did something similar to what he or she is charged with. I discussed this issue a little bit the other day in an article in the Atlanta Journal and Constitution. There are three major problems in this area: 1) many lawyers do not really know the law, 2) the judge lets the prosecutor introduce such evidence, but the prosecutor then makes improper use of the "similar act," and 3) the lawyer fails adequately object to the evidence, which is a shame because many times the court of appeals will reverse a conviction if the evidence was either improperly admitted or incorrectly used.

In federal court, this issue for the most part is controlled by Federal Rule of Evidence 404(b). Under this rule, evidence of "other crimes" is NOT admissible to show the defendants character. This part of the Rule prohibits "propensity" evidence, which is a fancy way of saying that just because a person did something on one occasion this does not mean he did it again another time. However, the prosecutor CAN use "other crimes" evidence to show intent, motive, identity or lack of accident. In other words, if the defendant intended to sell drugs one day, this makes it more likely he intended to do so on another occasion he had drugs in his possession. If the defendant knew he was carrying a gun one day, this makes it more likely that is was not some sort of mistake he had a gun in his vehicle on another occasion. Unfortunately, too many lawyers are not familiar with the ins and outs of the Federal Rules, and they make mistakes that can harm their clients.

Besides not knowing the rules, some lawyers fail to recognize when the prosecutor makes improper use of such evidence. For example, if a judge allow evidence of another occasion when the defendant had a gun in his car, this does not allow the prosecutor to argue that the defendant is a gun dealer. Remember, in the examples set out above, there are limited uses for "other crimes" evidence, and such evidence cannot be used to show "propensity."

When a prosecutor is making improper use of such evidence, the defense attorney needs to recognize it, object, and then most importantly, the lawyer needs to "perfect" his objection. This means that the attorney has taken the proper steps to preserve this issue for appeal. This is extremely important, in that the courts of appeals sometimes reverse convictions when prosecutors make improper use of "other crime" evidence. Our lawyers regularly take over cases where these issues have not been adequately "perfected" by the first attorney, which makes it even more difficult to assist the client.

Eleventh Circuit Affirms 360 Month Sentence in a Federal Mortgage Fraud Case

November 26, 2007 by Carl Lietz

In a federal mortgage fraud case origninating out of Atlanta, Georgia, the Eleventh Circuit affirmed a 360 month sentence against a real estate closing attorney. The appeal arose after a two week federal trial that occurred in the United States District Court for the Northern District of Georgia.

On appeal, the closing attorney made a number of arguments, including the argument that the 360 month sentence was "unreasonable." With respect to that argument, as well as all the others raised on the attorney's behalf, the Eleventh Circuit disagreed. According to the Court of Appeals, "the sentence imposed [was] both procedurally and substantively reasonable."

After the attorney's sentencing, the U.S. Attorney's Office reported that the case involved one of the largest cases of mortgage fraud in this district. In recent years, those of us that handle federal criminal cases have seen a surge in federal mortgage fraud prosecutions. And from what we have seen, we do not expect this surge to slow down anytime soon. Indeed, as an excelent article from a fellow member of the National Association of Criminal Defense Lawyers points out, "the tumultuous state of the mortgage industry, combined with increasing reports of millions of dollars of loss from mortgage fraud schemes, has created the perfect storm for law enforcement initiativies."

Federal Criminal Trials: More thoughts on whether the Defendant should testify

November 6, 2007 by Paul Kish

Trials of Federal criminal cases are difficult enough to defend, but helping the client figure out whether to testify in his or her defense might be the single hardest job for the lawyer. In an earlier post, I described some rules by which the courts say that the defendant's testimony can "fix" the holes in an otherwise insufficient prosecution case. Today, I want to go over a few other issues that can affect whether the client should or should not testify.

The Sentencing Guidelines control much of the potential sentence that our clients are facing in Federal court, but these Guidelines also have a huge impact on the trial itself. First, a Defendant who pleads guilty can earn up to three points off the Guideline score, while a defendant who goes to trial will almost never get this reduction. In other words, the Guidelines punish a defendant who wants his or her day in court.This seems manifestly unfair when we explain it to many of our clients, and I basically agree with them.

However, the Guidelines have a second, and even more dangerous, effect on trials. Under the Sentencing Guidelines, a defendant who engages in "obstruction of justice" gets two more points added to his or her score. When a defendant testifies yet is found guilty by the jury, prosecutors always claim that the defendant lied on the witness stand, and therefore should get these two extra points for obstruction of justice. The United States Supreme Court has said that it is OK to do this, and these two points are not an unconstitutional infringement of a person's right to defend him or herself.

What this means in effect is that whether to have a trial and whether the client should testify in his own defense can result in as much as a five point swing under the Sentencing Guidelines. These five points can make the difference between many years in prison as opposed to a much shorter sentence. Clients need an attorney who knows these rules, and who can assist in determining whether it is worth the risk to have a trial and testify. My law partner Carl Lietz and I regularly go over these risks with all our clients who have been charged with federal crimes.

I often talk with or sometimes even represent people who had other lawyers in their federal cases. The vast majority of lawyers know these rules, or at the very least, they learn about the rules from more experienced attorneys. People who are charged with crimes need to make sure they select an attorney who not only knows the law, but who is capable of helping the client with these difficult decisions. Here at Kish & Lietz, we pride ourselves on working with our clients to come up with the best decision about whether or not to testify.