Supreme Court Agrees To Hear Federal Criminal Case Involving Identity Theft Statute

October 23, 2008 by Carl Lietz

In an earlier post pertaining to a federal criminal statute, we discussed the efforts made by lawyers on both sides of a federal criminal case to convince the Supreme Court to take up the issue of precisely what the Government must prove in cases prosecuted under the federal aggravated identity fraud statute. Fortunately, earlier this week, the Court agreed to take up the case.

As we previously discussed, currently, a split in the circuits exists on the manner in which the term "knowingly" has been interpreted under the federal aggravated identity theft statute. In some circuits, the Government is required to prove that the defendant is aware that the "means of identification" at issue actually belonged to another person. In other circuits, however, the Government is not required to make such a showing.

In the Eleventh Circuit (the Court that hears criminal appeals from Georgia, Florida, and Alabama), the Government is not required to make the higher showing. For this reason, we are pleased that the Court has agreed to take the case and resolve an issue that impacts those facing this type of federal criminal charge.

Crime in the Federal Courts: When Investigators Scrutinize the Judges for Potential Criminal Activity

October 13, 2008 by Paul Kish

Criminal cases in the federal courts here in Atlanta are no different than in other parts of the country. Criminal defense attorneys and prosecutors make their arguments in front of federal judges, who under our Constitution are appointed to lifetime positions by the President, with the consent and approval of Congress. However, what happens when investigators scrutinize not the defendant, but the judge himself?

An article today explains that there currently an unprecedented number of investigations into the activities of sitting federal judges. One of these activities has ripened into a criminal case against the judge, while others are at the stage at which the judge could receive some sanctions.

Two of the open cases involve judges who are alleged to have engaged in possibly illegal or, at the least, highly questionable, acts related to sex. One of the judges supposedly went on a two-night binge at a topless club and used an escort service, and that judge alleges that his acts were "private and personal involving human frailties and foibles." This is exactly the argument we make as criminal defense attorneys on a daily basis, and we, perhaps more than most people, appreciate that even the best and most accomplished of our fellow citizens can engage in some amazingly stupid behavior.

However, it is the second case involving a judge and sexual matters that might be the most disturbing. A very well-known and highly respected conservative appellate judge in California has admitted that his personal web site contained off color videos and photos, including two showing naked women dressed up (for some odd reason) as cows showing bare crotch close-ups. This judge defends his conduct by saying he believed the web site was not open to the general public. This is the same defense we often raise when representing people accused of simple possession of certain kinds of pornography: namely, that what an adult does with his or her computer is no business of the rest of the world.

Judges are people like the rest of us, with strengths and weaknesses. We can only hope that our clients receive the same treatment for their weaknesses when we represent them in front of the federal courts.

Federal Criminal Cases: Prior Convictions Can Really Hurt

October 8, 2008 by Paul Kish

We represent a lot of folks charged in federal criminal cases here in Atlanta, and other parts of Georgia and on occasion in Florida or Alabama. One thing we repeatedly see is when our clients have prior convictions that the prosecutor can use to greatly increase the potential sentence. Yesterday, the United States Court of Appeals for the Eleventh Circuit issued yet another opinion that allows prosecutors to use a defendant's past against him.

Yesterday's case is United States v. Jackson, and it concerns the practice of increasing the potential sentence for drug offenders who have prior convictions. When a person is facing prosecution for a federal drug offense, and has prior drug convictions, the prosecutor has a powerful tool that is set out at section 851 of Title 21 from the United States Code. This section allows the prosecutor to file a "notice" that can basically double any mandatory minimum sentence, and that can in some situations lead to a mandatory life sentence. From the defense perspective, the key is to try and poke holes in the "notice", by arguing that it is somehow flawed. I am currently doing exactly that for a man I am representing here in Atlanta. If I am successful, we will reduce his 15 year sentence down to 5 years, which he has already served and will result in his immediate release from custody.

In yesterday's case, the Court of Appeals ruled against the defendant. Mr. Jackson's lawyer argued that the "notice" was not valid unless it was signed by the United States Attorney himself, instead of being signed and filed by the individual prosecutor handling the case. It was a clever argument by an attorney striving as hard as possible to avoid the harsh result that comes about when the mandatory penalty system in effect allows the prosecutor to name the sentence by filing the 851 "notice." Although the argument was creative, the court likely reached the correct result.

In the case I am handling mentioned above, our argument is a bit more sophisticated. We contend that the although the "notice" was correctly signed and filed, it did not name the correct subsection of the drug laws, and therefore our client was only facing 5 years instead of 10. More on that later.