Federal Criminal Charges Dismissed in Atlanta Against Doctor: Be Careful What you Say on an Airplane

February 19, 2008 by Paul Kish

The final step of dismissing federal criminal charges against a medical doctor took place today in Atlanta when we got word that the United States Attorney's office agrees that our client fulfilled his part of a pretrial diversion agreement. This case is a lesson in several aspects of federal criminal cases: 1) the feds will always try to use a new law if they get the opportunity, 2) clients need criminal defense attorneys who will fight like crazy against new statutes, 3) reasonable prosecutors can usually be convinced to do the right thing.

Here is what happened. We have been representing a medical doctor for several years who was hauled off an airplane in Atlanta, and accused of making hoax statements about something in his luggage. Here is a web site created by his supporters that lays out some of what happened. Through numerous mistakes, airline and security personnel allowed the doctor to get on the wrong flight, and when the mistake was discovered, he was asked to leave. The doctor was understandably angry, and insisted that his bags be removed as well. Airline personnel refused, and he said that was a very bad idea. By virtue of his work, the doctor was trained about terrorism matters, and it was foolish to let his bags stay on theplane. He explained that for all the airline people knew, there COULD be something in his bag that COULD explode. He was arrested, and for the past two and one-half years Paul Kish has been trying to get this matter concluded.

The major problem with the case was that the government decided to try and use a brand new criminal statute, 18 U.S.C. section 1038. This law basically makes it a crime to make a false statement, which if true, would cause another person to think that an act of terrorism was about to take place. The law is way out there, an example of governmental overreaching after the horrible events of September 11, 2001.

We filed a whole bunch of challenges to the statute, pointing out that it was extremely vague, and arguing that the prosecution infringed on the doctor's First Amendment right to say the obvious: namely, that it was a damn stupid idea to allow bags to remain on a flight when the passenger has been removed. This is a know terrorism tactic, to check baggage and then not take the flight. For over a year, we had a legal battle over the statute, and the first judge who looked at it almost, but not quite, agreed with us.

On the eve of trial, I met with the prosecutors who were in charge of the case. We convinced them to dismiss, in return for an agreement by the doctor to perform community service. This was no problem, in that the doctor is a very civic minded person anyway, and was glad to give back to his community. Today, I got the official word that the prosecutors concede that the doctor has done all he was obligated to do, and therefore the case is completely finished.

As I said above, this case shows the dangers of when new laws are handed down. There always is a danger that investigators and prosecutors will want to try it out, to see how far they can push it. The case also demonstrates that attorneys need to fight long and hard, but if they are facing reasonable prosecutors, they usually can convince everybody to do the right thing.

Winning Strategies Seminar Held for Federal Criminal Lawyers

February 19, 2008 by Carl Lietz

Last week, I traveled from Atlanta to New Orleans to attend a seminar for attorneys that represent individuals who have been accused of federal criminal offenses. The seminar was sponsored by the Office of Defender Services in Washington, D.C. The seminar was entitled "Winning Strategies" and it included sessions on white collar offenses, computer crimes, firearms offenses, sentencing proceedings in federal court, and a host of other federal offenses.

I attended the seminar with Jake Waldrop, a good friend and fellow criminal defense lawyer here in Atlanta. Jake and I lectured on Internet Based Sex Offenses in Federal Court. As we discussed during the seminar, in recent years, the federal government has placed a high priority on the prosecution of these offenses. And from all indications, the increase in the number of prosecutions in this area is not expected to slow down.

Federal Criminal Sentences in Georgia, Florida & Alabama

February 7, 2008 by Paul Kish

I recently posted a blog entry about the review on appeal of federal criminal sentences by the the 11th Circuit Court of Appeals, a court that covers Georgia, Florida and Alabama. Now comes another case, United States v. Pugh, which seems to show that this is still an unresolved issue for federal criminal cases in these three states.

Readers will remember the basic question. After the recent Supreme Court decision in Gall v. United States, federal appeals courts are supposed to give "great deference" to a sentencing judge who decides to give a more lenient, or more severe sentence than otherwise called for by the Sentencing Guidelines. Shortly after the Gall case was issued, the Eleventh Circuit issued a couple of rulings that seemed to indicate some level of dissension among the judges as to how much deference should be given to lenient sentences. The bottom line from those cases, and virtually every other case issued after the Supreme Court decision, is that a sentencing judge will be affirmed when he or she decides to give a sentence either below or above what is called for by the Sentencing Guidelines.

All of this was true until last week, when the Pugh case was issued. That was a possession of child pornography case, where the Public Defender from the Southern District of Alabama convinced the sentencing judge that probation was a good sentence. The government appealed, and the 11th Circuit reversed. In a lengthy and strident opinion written by Judge Stanley Marcus, the Court of Appeals basically said that probation can never be a reasonable sentence for such a case. Judge Marcus essentially inserted his own opinion of reasonableness for that of the judge who sat eye-to-eye with the defendant.

Here at Kish & Lietz, we have a somewhat similar case pending in the 11th Circuit. Our client pled guilty to insider trading, the sentencing judge imposed six months home confinement and probation, and the government appealed. The Panel of three judges from the 11th Circuit reversed, but this happened just shortly before the Supreme Court decision in Gall. We have asked them to rehear the case, or for all of the judges on the 11th Circuit to re-consider the matter.

Criminal Defense Lawyers in Atlanta: What Can We Learn from the Brian Nichols case?

February 6, 2008 by Paul Kish

Criminal defense lawyers in Atlanta are like those throughout the country, I suspect. We enjoy our work, are a bit clubby and territorial, and for the most part pay attention to high profile cases, even when we are not ourselves involved in the matter.

Most people know about the case against Brian Nichols, a man accused of shooting a judge, court reporter, guard and others during a rampage in and near the Fulton County Superior Courthouse a couple of years back. There have been a variety of problems in the case, ranging from the lack of funding for the defense team, squabbles over the location of the trial, and finally, the judge's decision to step down after he was quoted as saying that everybody knew that the defendant did the crime. A new judge was appointed just this past week.

The Fulton County Daily Report, a local paper for lawyers, did a recent piece on how the new judge might handle the case. The Daily Report quoted me as saying that most new judges would want to familiarize themselves with what happened so far, and that "clever" lawyers would try to re-visit earlier rulings by repackaging previous arguments. Several other lawyers were quoted about other aspects of having a judge replaced in the middle of a high profile case.

The Brian Nichols case teaches a number of lessons. First, and perhaps foremost, there seems to be an almost direct inverse relationship between publicity and justice. The glare of publicity seems to impact how the court system handles a case. The more publicity, the less likely that the case will get handled like all other cases.

A second lesson from the Nichols case is that death penalty prosecutions are extremely difficult to handle, from the defense side, from the prosecution perspective, and from the point of view of the judge. Our lawyers here at Kish & Lietz handled a very high profile death penalty case a few years back, along with a number of other lawyers. The need to keep our plea negotiations secret made it extremely difficult to do our jobs. We were able to keep the press unaware of our attempts to strike a plea bargain, but not without difficulty. We knew that in some cases, publicity can get in the way of achieving a good result for our client.

Another lesson from the Nichols case is that good lawyers cost money. While there has been a lot of talk about excessive defense costs, we all need to remember two things: 1) you get what you pay for, and 2) good defense lawyers need to respond to evidence presented by the prosecution. If the prosecutors wanted to keep the case simple, they had that option all along, and could have saved the taxpayers a lot of money.

The Nichols case is something we criminal defense attorneys talk about, even when we are not involved. In many ways, it's like a car wreck: horrible, but impossible to look away from when you pass by.

Practicing federal criminal law in Atlanta: sometimes it gets a little weird

February 1, 2008 by Paul Kish

Most folks who know me or who might stumble across this blog recognize that I practice mostly federal criminal law here in Atlanta. I have been doing this for about 23 years now, and still enjoy my work immensely. Nevertheless, there are some aspects of being a criminal defense lawyer here in Georgia (or anywhere else for that matter) which are downright weird, scary and at times depressing. Let me explain a recent example of this.

My law partner Carl and I recently represented a very good and honorable family man in a large mortgage fraud prosecution. Our client was one of the least involved people in the whole scheme. He had nothing to do with the actual fraudulent transactions with the lending institution. After we talked the case over for a long time, this man decided that the best option for himself and his family was to enter a guilty plea, even though we had some serious doubts as to whether a jury would find him guilty at a trial.

Anyone who has ever read this blog knows how I ramble on about the Sentencing Guidelines and the spate of decisions in the past 7 years from the Supreme Court. One part of the Guidelines allows for a judge to consider a lower sentence if a defendant cooperates in the investigation or prosecution of other people. However, this reduction for cooperation only can happen when the prosecutor asks for it, in what we call a "5K" motion or a "Rule 35" proceeding. Individual prosecutors need to get approval from their supervisors as to how much of a reduction they can request for a particular defendant. Most U.S. Attorney's offices have groups of senior prosecutors who screen these 5K requests, supposedly to make sure that they are handled uniformly.

Here's the weird part. The Sentencing Guidelines are based on a table, which sets out ranges of potential sentences. The higher the number (and the greater the criminal history), the higher the range. However, the table is not a straight arithmetic progression, which is a fancy way of saying that a difference of one level up at the top end of the Guidelines results is far greater than a one level change at the bottom end. For example, a much more involved defendant might be at offense level 30, and if he gets a 2 level reduction for cooperating, his Guideline range is reduced by almost two years. On the other hand, a client barely involved in a case (like our recent client) who is down at level 15, will also get a 2 level reduction for cooperating, but this results in a mere 6 month reduction in his sentencing range.

In our recent case, we argued strenuously that this was unfair, that our client should get an even better reduction, in return for his cooperation (he had testified at trial against some other people). We did get a significant reduction in other areas of the sentencing process, but this case highlights some of the truly weird and unfair aspects of sentencing in federal court.