Federal Firearms Offenses: Speech in Birmingham, Alabama

January 21, 2008 by Paul Kish

I spoke recently on the topic of Federal Firearms Offenses to a group of lawyers in Birmingham, Alabama. My law partner Carl Lietz and I each periodically speak to attorneys in various parts of the country, usually in the South but occasionally in other regions as well. Carl also spoke to the same group about Internet Sex Crimes, a growing segment of crimes we now see prosecuted in federal court.

My presentation about gun cases in federal court focused on the two major crimes in this area: possession by a "prohibited person" (such as a previously convicted felon) and use of a gun during another federal crime (such as bank robbery or drug dealing). Many people are shocked as to how much time they can get for weapons offenses in federal court. In my speech to the Alabama attorneys, I focused on the law, but also discussed some tricks and tips for either winning their case altogether or at least to reduce their client's potential jail sentence.

We also discussed how gun crimes are often among the dumbest criminal episodes we ever encounter. For some reason, people seem to forget how dangerous a weapon can be. These same people are shocked when their lawyer tells them that they are facing an incredibly longer jail sentence because they brought a gun into the bank.

Finally, we discussed how the Second Amendment to the Constitution impacts federal firearms cases. Remember that the Second Amendment to the United States Constitution in some ways prevents the federal government from regulating the possession and use of firearms. The Supreme Court currently has taken a case involving a Washington D.C. law that completely prohibits law-abiding citizens from even possession certain weapons in their homes. This should be an interesting decision, although it likely will not have a real big impact on the vast majority of gun crimes prosecuted in federal court.

Federal Judge's Ruling Provides Some Hope For Individuals Detained On Internet-Based Sex Charges

January 13, 2008 by Carl Lietz

In a federal criminal case involving an internet sex crime, a federal judge recently ruled that the phrase "minor victim" does not include an undercover detective posing as a minor. The decision in the case interpreted provisions of the recently-enacted Adam Walsh Child Protection and Safety Act, as well as a previous Act.

As part of the Adam Walsh Act, Congress amended the Bail Reform Act by establishing that for certain offenses involving a "minor victim", defendants should not be released on bail unless they are subjected to electronic monitoring and a host of other mandatory conditions. In addition, in an Act which predated the Adam Walsh Act, Congress amended the Bail Reform Act by creating a rebuttable presumption in favor of detention for certain enumerated offenses involving a "minor victim". In many cases, these two provisions, particularly the latter one, make it virtually impossible to secure the release of an individual facing a federal internet-based sex charge.

This recent decision, however, appears to provide some hope for those individuals. In United States v. Kahn, the federal magistrate judge presiding over the matter pointed out that Congress failed to define the phrase "minor victim" in either the Adam Walsh Act or the Bail Reform Act. Accordingly, based on fundamental principles of statutory interpretation, the court interpreted the phrase in accordance with its plain meaning. Significantly, based on such an interpretation, the court concluded that "the plain meaning of the term 'minor victim' does not encompass the undercover detective or her fictitous thirteen year-old daughter." I anticipate that the Government will appeal this decision and this issue of statutory interpretation will be an interesting one to follow as it develops further.

Perfect Storm in federal prosecution: taxes, publicity and race in the Wesley Snipes case

January 9, 2008 by Paul Kish

The high profile prosecution of actor Wesley Snipes in Orlando, Florida seems to be an example of the "perfect storm" phenomenon. The combination of publicity, taxes and race has led to a variety of interesting rulings and tactics in this federal criminal tax case. These factors are a lesson to other potential high profile targets who fall into the sights of aggressive federal prosecutors. The main lesson: get good accounting, legal and public relations advice very early on.

Mr. Snipes was indicted in federal court in Orlando, and charged with two other men with a complicated scheme to avoid paying taxes, and also with improperly requesting a $12 million dollar refund. Prosecutors claim that Mr. Snipes asked for a refund, and then later stopped filing tax returns altogether based on a legal theory created by the other two defendants.

Criminal tax cases are in some sense very complicated, yet in other ways, they are simple. Too many people believe they need a lawyer well-schooled in the intricacies of the Internal Revenue Code when the feds bring a criminal tax case. While the lawyer obviously needs to understand the tax law, it is very important to remember that it still is a criminal case, the sort of legal proceeding best handled by experienced criminal defense attorneys. It appears that some of this confusion between the two types of lawyers has come up in the Snipes case. For example, Mr. Snipes asked the trial judge to let him switch lawyers on the eve of trial, supposedly because the first lawyer simply did not understand what was going on in a criminal case. The trial judge believed this tactic was merely a ploy, but later delayed the trial because an insurmountable conflict developed between Snipes and the attorney.

In another development, Mr. Snipes claims that race played a role in which charges were brought against him. He contended that he was indicted on more charges than his white co-defendants, and that prosecutors used his race as a reason for charging him more harshly than the others.

The defense team also tried to get a change of venue, to remove the case from Orlando, a request rejected by the trial judge. Mr. Snipes's lawyers then tried to raise this issue to a higher court right away, what we call an "interlocutory appeal." Yesterday, the Eleventh Circuit Court of Appeals rejected this interlocutory appeal. As a result, Mr. Snipes's case will be back on the docket in Orlando soon, and he will either have to go to trial or work out some kind of deal.

Again, this case is another example of a perfect storm: a combination of factors that makes it very difficult for a defendant to get a fair trial. Status, race, publicity and tax concerns always make it difficult to defend such cases.

Federal Court of Appeals Affirms Sentence Reductions in Federal Criminal Case

January 4, 2008 by Carl Lietz

In a federal criminal case originating in Atlanta, Georgia, the Eleventh Circuit Court of Appeals affirmed substantial sentence reductions for two executives who were convicted of public corruption charges. In the lower court, the two defendants faced sentencing ranges under the United States Sentencing Guidelines of 41 to 51 months. Based on a variety of factors, however, the lower court varied from that guideline range and imposed custodial sentences of thirteen months, and seven months, respectively.

In its third appeal to the Eleventh Circuit, the Government attacked the downward variances on a number of grounds. Among other arguments, the Government claimed that the defendants's sentences were unreasonably low given the nature of the crimes. The Court of Appeals rejected this argument, stating that "whether we agree or not with the disrict court's rationale for the downward variances or its characterization of the crimes, we cannot say that the sentences imposed in consideration of the factors delineated in 18 U.S.C. section 3553(a) were unreasonable."

Unlike most of the decisions that come out of the Court of Appeals, the decision in this case was not unanimous. In dissent, Judge Carnes stated that the sentences imposed should be vacated, because in calculating the guidelines ranges the court violated the law of the case doctrine.

As Paul Kish pointed out in the previous post, a recent decision involving an affirmance of a substantial variance in a child pornography case provoked a dissent from Judge Dubina. Two dissents in less than one week from the Eleventh Circuit is certainly an anomaly. And this surely seems to suggest that in spite of the Supreme Court's recent decision in Gall v. United States, sentencing law in the Eleventh Circuit remains unsettled at this point.

Appellate review of federal criminal sentences: Let the Battle Begin!

January 2, 2008 by Paul Kish

There are battles brewing over appellate review of federal criminal sentences. The recent decision from the United States Supreme Court in Gall v. United States appeared to end these battles, but recent cases show that the controversy will continue for a while.

Let's go over again for a moment how all this came about, and then let's talk about what has happened recently. Remember, the United States Sentencing Guidelines came into law in 1987, and these rules are considered by many to be overly harsh. Many judges who were required to follow these rules also felt the Guidelines went way too far in requiring long prison sentences. Myself and other lawyers fought against these rules for years, and the Supreme Court finally declared the Guidelines unconstitutional in 2005. However, the Supreme Court also said that the Guidelines are "advisory", and that judges at least need to consult these rules before imposing a sentence. After the Supreme Court said that the Guidelines are no longer mandatory, a growing group of judges used their new-found discretion to impose sentences that were shorter than what was called for by these sentencing rules. Predictably, prosecutors got angry and went running to the appellate courts asking that these shorter sentences get reversed. I have written previously about this topic.

In the recent Gall decision, the Supreme Court made clear that it wants the sentencing judge to have the greatest amount of discretion in this area. In that case, the Guidelines called for 30-37 months in prison, but the sentencing judge chose to put that young defendant on probation. The appellate court reversed, but the Supreme Court said the sentencing judge was well within his discretion in imposing that sentence. Gall would seem to show that sentences outside the range called for by the Guidelines will almost always be upheld.

However, a battle seems to be brewing in the United States Court of Appeals for the Eleventh Circuit. Three days after Christmas (and a mere 18 days after the ink was dry on the Supreme Court's Gall decision) a split panel of that court affirmed a lower sentence imposed on a defendant convicted of possessing child pornography. The defendant had a truly horrific childhood, with his father getting murdered, the defendant was then physically abused by other family members, and the defendant then was put into foster care, where he was repeatedly sexually abused. The sentencing judge reduced the sentence for this defendant down to 7 years, which was below the Guidelines' range. The majority of two judges affirmed this shorter sentence. However, a blistering dissent from Judge Joel Dubina perhaps is the opening salvo in the next line of battles in this area. Judge Dubina simply could not understand how such a lower sentence is "reasonable", even though the Supreme Court recently said that the sentencing judge has tremendous discretion in this area. Look for this and other cases to possibly be taken up by the entire Eleventh Circuit when they occasionally give what we call "en banc" review to selected decisions.