Federal Appellate Court in Atlanta Issues Ruling Concerning an Individual's Right to an Attorney

March 18, 2008 by Carl Lietz

In a federal criminal appeal involving an individual's right to counsel, the United States Court of Appeals for the Eleventh Circuit recently ruled that the dual sovereignty doctrine applies in the Sixth Amendment context. Although the legal issue presented in the case was one of first impression, the underlying facts were fairly straightforward.

A federal grand jury in Florida indicted the defendant for a number of drug offenses. In his federal criminal case, the defendant moved to suppress statements that he had previously given to federal agents before the federal indictment was returned. At the time the statements were made, the defendant was represented by counsel on a pending state charge; the state charge was based upon the same facts that ultimately gave rise to the federal charges.

On appeal, the defendant argued that by questioning him while he was represented on the state matter, the federal agents violated his Sixth Amendment right to counsel. The Court of Appeals disagreed. According to the Eleventh Circuit, the Sixth Amendment right to counsel is offense specific. The court acknowledged that there is no question that the defendant's right to counsel had attached to the state drug charge at the time the federal agents interviewed him. However, the court concluded that because the state and federal charges originated from autonomous sovereigns that each had the authority to define and prosecute criminal conduct, the defendant's state drug charge was a different offense than his federal drug charges for Sixth Amendment purposes. Therefore, the court concluded that the defendant's invocation of his Sixth Amendment right to counsel for the state drug charge did not attach to the federal offenses which were uncharged at the time of the interview.

Federal Criminal Sentence of Probation Affirmed on Appeal in Case from Atlanta, Georgia

March 5, 2008 by Paul Kish

In a federal criminal case out of Atlanta, Georgia, I recently convinced the United States Court of Appeals for the Eleventh Circuit that probation was the appropriate sentence for a former bank executive we represented. This is not only a huge win for our client, it also is one more case showing the recent trend of lower sentences for federal criminal cases.

I have written in previous posts about how sentencing is changing in federal court. Specifically, I wrote about how the decision from the Supreme Court in Booker v. United States gave judges more freedom in selecting the appropriate sentence for a person who violates a federal law. In the recent case of Gall v. United States, the Supreme Court made it clear that the judge who imposes the sentence should be given a great deal of deference if either party appeals to a higher court.

Here is what happened in our case. As mentioned above, we represented a bank executive. He used some inside information to make stock trades in his own company. When he was confronted by the SEC, he immediately admitted to what he had done. He paid all the money back. He also had to pay about $150,000 on top of that. Furthermore, he no longer worked at the bank, and had a hard time finding work in his field.

The U.S. Attorney's office decided to "make an example" of him by bringing criminal charges against this man, even though he had already paid a huge fine to the SEC. Our client pled guilty, and was facing a 18-24 months in custody under the Federal Sentencing Guidelines. Me and my law partner Carl convinced the judge to give him 6 months home confinement and 3 years probation. Here is where the "fun" began.

Federal prosecutors rarely lose, and when they do, they sometimes complain to the Court of Appeals. In our case, the prosecutors took the case up on appeal. At first, the Court of Appeals sided with the prosecution, and ruled that the judge was wrong to give our client probation. I got mad, filed a lengthy Petition for Rehearing, and continued to submit more pleadings to the court. Last week, my hard work paid off. The Eleventh Circuit reversed its earlier opinion, and put back the original sentence of probation.

Again, this case shows that our clients need aggressive advocacy at all stages of the case. People charged with federal crimes need somebody who knows the judges, knows the law, and perhaps most importantly of all, knows how to keep fighting. After several years, justice prevailed in this case.