Atlanta-based Federal Court of Appeals Reverses Obstruction Conviction Because No Evidence Defendant Aware of the Proceeding He Supposedly Obstructed

May 19, 2011 by Paul Kish

Our local Federal Court of Appeals, sitting just down the street from our offices here in Atlanta, yesterday reversed a federal criminal conviction for obstruction of justice. The prosecutors contended that the defendant tried to obstruct a forfeiture matter. The Eleventh Circuit joined other courts and relied on some earlier Supreme Court cases by holding that there cannot be a conviction in this context unless there is evidence that the defendant was aware of the forfeiture proceeding he obstructed. The case is United States v. Friske.

Mr. Friske lives in Wisconsin, but his friend (Erickson) got busted in Florida for drug crimes. Law enforcement listened to calls Erickson made from jail to Friske where he asked the latter to do a "repair job" and remove "three things" buried near Erickson's pool. Agents got there before Friske, and found $375,000 buried in that location. Later, they observed Friske coming away from the pool area, covered in dirt. Friske made some baloney statements to the police, and later conceded he was just "trying to help a friend."

The government indicted Friske for attempting to obstruct an official proceeding by attempting to hide and dispose of assets involved in a forfeiture case, in violation of 18 U.S.C. §1512(c)(2). The Eleventh Circuit joined other appellate courts by holding there is a "nexus" requirement in this statute which requires a connection between the obstructive conduct and the proceeding in question. Stated another way, "if the defendant lacks the knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct."

The Eleventh Circuit then turned to the evidence in Mr. Friske's trial. They noted that he certainly acted "suspiciously" in digging around Erickson's pool shortly after getting the recorded calls. However, there was not one "scintilla" of evidence that in performing these suspicious acts Friske knew of a forfeiture proceeding against Erickson's property. As a result, the appellate court reversed the convictions based on the insufficiency of the evidence.

We are always pleased to see courts uphold the law and require that prosecutors prove their case. Likewise, we think this ruling makes great sense, so as to prevent the conviction of innocent persons.

11th Circuit Affirms Most But Not All Convictions in Siegelman/Scrushy

May 10, 2011 by Paul Kish

Just a few hours ago the 11th Circuit Court of Appeals sitting here in Atlanta affirmed most, but not all, of the convictions in the long-running saga of US v. Don Siegelman and Richard Scrushy.

Don Siegelman was the Governor of Alabama. Richard Scrushy was the founder and Chief Executive Officer of HealthSouth. The case stemmed from allegations that Governor Siegelman placed Scrushy and others on a State Board in return for a $500,000 payment. The government charged them with a series of crimes relating to alleged public corruption. Specifically, Siegelman and Scrushy were alleged to have violated 18 U.S.C. §666(a)(1)(B), the law that prohibits bribery involving organizations that receive federal funds. The government also charged the defendants with "honest services" mail fraud, and conspiracy to commit same. Finally, Governor Siegelman was charged with obstruction of justice.

While the case was on appeal, the Supreme Court issued the well-known decision in US v. Skilling, a ruling that restricts the scope of the federal "honest services" branch of mail and wire fraud. Each defendant contended that Skilling changed the landscape, and that their convictions must be reversed. Likewise after the verdicts, the defendants uncovered what appeared to be troubling evidence of juror misconduct and exposure to extrajudicial materials.

A Panel of the Eleventh Circuit affirmed most of the fraud convictions and rejected the claims of juror misconduct. Along the way, the Panel made a few observations that are noteworthy for future cases.

For the charges alleging violations of §666, the Panel held that while there likely must be a quid pro quo between the bribery payor and the recipient, and that while there must be an explicit agreement that the recipient do something in exchange for the bribe, such an explicit agreement need not be express. In other words, the government does not need an email or a recorded conversation between the payor and recipient in order to get a §666 conviction.

The Panel affirmed some, but not all, of the post-Skilling "honest services" fraud convictions. Recall that Skilling restricted the honest services theory to traditional bribery/kickback schemes. Here, because the indictment alleged just such a scheme for many of the counts, the Panel affirmed the convictions on these charges. However, two charges alleged that Scrushy did not bribe anyone, but instead engaged in "self-dealing." The Panel reversed these convictions based on insufficient evidence that either defendant committed these crimes.

Perhaps some of the most sensational aspects of this case have been the post-verdict revelations of possible juror misconduct. Defendants uncovered evidence that the jurors had been exposed to certain extrajudicial information. Furthermore, their legal teams received anonymous emails indicating that some of the jurors began deliberating before it was time to do so, had made up their minds long before the evidence was closed, and that some other jurors did not even participate in the deliberations.

The Panel rejected all the juror misconduct claims. First, the Eleventh Circuit held that the sort of extrajudicial information to which this jury was exposed was innocuous to the point where it did not affect the case. Second, the panel resorted to the rule that courts will rarely, if ever, intrude on a jury's deliberations. Because of this reluctance, the Panel held that the anonymous emails were insufficient to result in a new trial.

This has been a sensational case, with law and politics colliding. I have a feeling it's not over yet.

Federal Criminal Sentencing Seminar and Transparency in Federal Sentencing

May 6, 2011 by Carl Lietz

I just returned from the Twentieth Annual National Seminar on the Federal Sentencing Guidelines. Kevin Napper, Laurel Moore Lee, and many others organized an outstanding seminar dealing with all aspects of federal criminal sentencing. It is always fun to get together with other federal practitioners and discuss how things are handled in federal jurisdictions throughout the United States.

Yesterday, we had an enjoyable panel discussion dealing with the "Presentence Report and the Sentencing Process" in federal court. We had a great group of individuals on our panel, including defense lawyers (Donna Elm and Adrienne Wisenberg), a federal prosecutor (Laurel Moore Lee), an Assistant Deputy Chief Federal Probation Officer (Ray Owens), and a sentencing mitigation specialist (Tess Lopez).

We covered a lot of ground in our discussion and part of that discussion reminded me that, in my humble opinion, at least one aspect of federal sentencing needs to change. In federal court, before most every sentencing hearing, a federal probation officer prepares a Presentence Report, also known as the PSR. Before the sentencing hearing, the PSR is disclosed to both parties. Very frequently, however, before the sentencing hearing, the federal probation officer that prepared the PSR meets with the federal judge that is conducting the sentencing hearing (in chambers) and makes a recommendation to the judge on what the ultimate sentence should be.

Importantly, unlike the PSR, the sentencing recommendation itself is not disclosed to the parties. I am not sure exactly how or why this process started, and I am not sure what purpose it really serves. In addition, during our talk yesterday, we discussed the fact that this process is not uniformly followed throughout the federal sentencing system.

For example, Tess Lopez described how the process works in the Northern District of California. There, the probation officer's recommendation is disclosed in the PSR, so everyone knows exactly what the recommendation is well before the sentencing hearing. According to Tess, complete disclosure of the probation officer's sentencing recommendation has existed in that federal district for quite sometime. To me, this system of transparency makes sense. I am hoping that federal judges in other jurisdictions reconsider how they handle this issue and adopt the procedure adopted by the federal judges in the Northern District of California and similar jurisdictions.

Federal Criminal Rules Should Require Prosecutors To Turn Over Witness Lists

May 3, 2011 by Carl Lietz

Earlier today, I learned of the Federal Criminal Rules Advisory Committee's decision to vote down (on a 6-5 vote) a proposed change to the Federal Rules of Criminal Procedure that would have required prosecutors to turn over all favorable evidence to the accused. Apparently, the Department of Justice convinced the Criminal Rules Advisory Committee to reject this proposed change. Although I am disappointed in this result, I can't say that I am surprised. This is not the first time that the Department of Justice has flexed its muscle to prevent the Federal Criminal Rules from being amended in ways that require broader disclosure in federal criminal cases.

Several years ago, I learned that in 1974, the Advisory Committee and the Supreme Court recommended amending the Rules to require the parties in federal criminal cases to exchange witness lists. This proposed amendment had a broad base of support, and ultimately both the Advisory Committee and the Supreme Court agreed that the change should be made. Shortly before the effective date of the new rule, however, Congress (at the behest of the Department of Justice) suspended the effective date of this amendment to Rule 16, and ultimately removed the witness list disclosure provisions. As a result of this action, (and the Advisory Committee's decision not to take up the issue again), the government is not required to provide the accused with a witness list in federal court.

Criminal lawyers that do not practice in federal court are often surprised (and shocked) to learn that the federal government is not required to turn over something so basic as a witness list when it prosecutes one of its citizens. Those of us that do practice regularly in the federal criminal system seem to just accept this as a reality and the price of doing business in federal court. This practice is particularly unfair, though, and the Rule needs to be changed. Most (if not all) state systems (including Georgia) require the disclosure of witness lists, and some states even permit the parties to take depositions in criminal cases.

In my view, the Advisory Committee needs to go back to the roots it established in 1974. Again, then, both it and the Supreme Court agreed that witness lists should be disclosed in federal criminal cases. Back then, neither the Advisory Committee nor the Supreme Court found any legitimate reason not to make this important change and one certainly does not exist now. Moreover, given the broad base of support that previously existed for this change, the Advisory Committee's recent 6- 5 vote (on what many perceive to be a more controversial change) suggests that the time is right to do again what the Advisory Committee did over 35 years ago.

Here is a link to an article that includes a more in depth discussion of the Supreme Court's previous approval requiring the disclosure of witness lists in 1974, and here is a link to David Markus's discussion of the Advisory Committee's recent decision not to require the government to disclose all favorable evidence.