D.E.A's Position on Controlled Substances is Inconsistent (and Unfair)

October 25, 2012 by Carl Lietz

Recently, I read an article in Bloomberg Businessweek entitled: "American Pain: The Largest U.S. Pill Mill's Rise and Fall." Among other things, the article recounts the story of two brothers who were investigated and prosecuted in federal court for operating a number of pain management clinics in Florida, Georgia, and at least one other federal district. Ultimately, both brothers were prosecuted and convicted for a host of federal crimes, inluding RICO violations, fraud offenses, possession with intent to distribute controlled substances, and federal conspiracy charges. Both brothers are serving sentences in federal prison of over 15 years.

These days, investigations and prosecutions of doctors, owners, and others associated with alleged overprescribing in pain management clinics are not surprising. As we have discussed before here, in federal courts in Atlanta, Savannah, and many other jurisdictions, federal agents and federal prosecutors are bringing aggressive prosecutions against all of those associated with the prescribing of controlled substances. For the most part, prosecutors bring charges under the Controlled Substance Act, arguing that the prescriptions at issue were issued outside the usual course of practice, a term of art that must be supported by expert testimony.

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Good lawyering results in federal criminal case going to Supreme Court: Will the Apprendi decision be extended to sentencing factors that change mandatory minimum punishments?

October 25, 2012 by Paul Kish

Good lawyering in federal criminal cases often requires that the attorney not only be a student of the law, he or she needs to also recognize when a particular issue might be a current "loser" but the higher courts are waiting to change the rule. That might turn out to be the situation in Alleyne v. United States, a case recently accepted for review by the United States Supreme Court. Mr. Alleyne's prescient Public Defenders objected to a ruling that was correct at the time it was made, but early next year the Supreme Court will hear arguments as to whether the rule should be changed.

In 2000, the Supreme Court issued the landmark ruling of Apprendi v. New Jersey. That case held for the first time that any fact that can change the maximum punishment to which a Defendant is exposed must be pled in the indictment, and proven to the jury by the usual "beyond a reasonable doubt" standard. This is very important because until that time many facts that result in potentially longer prison sentences could be decided by one person, the sentencing judge, and that judge could use the less stringent "preponderance" evidentiary standard.

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A crime long ago and far away: the Supreme Court confronts issues surrounding which side has the burden of proving "withdrawal" from a criminal conspiracy

October 22, 2012 by Paul Kish

We have represented executives who worked years ago in businesses that are now under federal investigation for supposedly committing fraud and other white collar offenses. Because our clients left the business many years ago, we are closely following a case that might have a big impact on how we handle the matter. As most people know, crimes almost always are subject to what most people refer to as "the Statute of Limitations," or "SOL". In a few weeks the Supreme Court will hear arguments in a fascinating case involving the SOL. The main issue is whether a defendant who was in jail for more than the past 20 years can be forced to prove that he was no longer a member of and withdrew from a conspiracy that continued past the year 2000. The case is Smith v. United States.

The SOL means that once the limitations period has passed, prosecutors can no longer bring a case against a defendant. The general SOL in federal criminal cases says that the prosecutors must get an indictment within 5 years of a crime.

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Going to the Dogs-Part 2: Supreme Court to Decide if Pooch Sniff on Porch is a Fourth Amendment "Search"

October 15, 2012 by Paul Kish

While most of our federal white collar criminal cases do not involve drug detection dogs, I noted last week in this post that the Supreme Court will soon hear arguments in a case to decide whether an "alert" on a motor vehicle by a drug-detecting dog is enough to let the police then search the car. In "Going to the Dogs: Part 2", the Supreme Court comes at the same issue from a different context: the pooch is on the porch of a home. The case is Florida v. Jardines, and it will be argued on Halloween Day.

Here is what happened in the lower courts. Miami police got a tip that Mr. Jardines was growing marijuana in his house. Based on that tip, a dog handler took the certified drug detecting dog (named "Franky") to the door of Jardine's house. Franky indicated that he had smelled drugs, and a detective then went to the door, where he too smelled marijuana. The police got a warrant, and found several live marijuana plants growing inside.

Jardines moved to suppress the drugs, arguing that the dog sniff at his door violated the Fourth Amendment, which prohibits unreasonable searches and seizures. The Florida Supreme Court agreed, holding that the dog sniff was a “search” that itself required a warrant. It was very important to the ruling by the Florida Supreme Court that the sniff took place at the front door of a house, because such activity invades the sanctity of the home, which generally gets more protection under the Fourth Amendment.

The State of Florida convinced the U.S. Supreme Court to review the case. The prosecution relied on several earlier Supreme Court cases holding that dog sniffs in other contexts are not searches. For example, the Supreme Court previously held that a sniff of a car or luggage in an airport is not a search because the sniff merely uses the circulating air to indicate whether drugs are present. Because here the dog merely signaled that he smelled drugs in Jardines’ house, the prosecution contends that this case is more like the other dog sniff cases. The State of Florida also noted that the Florida Supreme Court decision conflicts with the rulings by two federal appellate courts, each of which held that a dog sniff of a residence is not a search.

Mr. Jardines is relying significantly on Kyllo v. United States, as did the Florida Supreme Court. In Kyllo, the Court held that the warrantless use of an infrared device to detect a marijuana-growing operation in a house was unconstitutional because the device could reveal otherwise private information about legal activities within the home.

As mentioned earlier, dog searches only come up in a fraction of our cases, but constitutional principles are always important. We are always interested in cases where the Court is called on to protect the sanctity of a person's home, so we will watch this matter closely.

Going to the Dogs: the upcoming Supreme Court case of Florida v. Harris

October 3, 2012 by Paul Kish

Here in Atlanta, in both federal court and in state court criminal cases, we regularly see situations where the police stop a person's vehicle, and walk a drug detecting dog around the car. If the dog "alerts", the police contend they have sufficient grounds, or "probable cause", to search the vehicle. I am currently litigating just such a case in the Georgia Court of Appeals, but the issue turns on whether they had the right to keep the driver at the side of the road long enough so as to let the dog do his thing. This term, the United States Supreme Court will confront a case out of Florida that presents a clear question: whether the police may conduct a warrantless search for drugs based solely on an alert by a drug-sniffing dog without any other evidence of the dog’s reliability so long as the dog has been “trained” or “certified.” The case if Florida v. Harris, and it will be argued in a few weeks.

Here's how the case got to the Supreme Court. In rural Liberty County, a sheriff’s deputy was on patrol with his trusty drug-detecting dog named Aldo. The dog had been trained to detect the illegal drug methamphetamine. The deputy pulled over Clayton Harris, because his truck's license plate had expired. The officer noticed that Harris was shaking badly, and was breathing rapidly — telltale signs, for the officer, that Harris might be on drugs. The officer wanted to search the truck, but Harris refused. The officer then had the dog walk around the truck, and the animal “alerted” to a drug on the door handle of the driver’s side of the truck. With that “alert” as legal justification, the officer searched the interior of the truck’s cab, and found ingredients for making methamphetamine.

Harris was charged with possessing materials for making meth. His very able public defenders argued that the search of the truck’s interior violated the Fourth Amendment because the deputy had no legal basis for conducting such a search. The Florida Supreme Court subsequently agreed, concluding that Aldo’s “alert” to a substance on the truck door handle was not sufficient to justify searching the cab. The state Supreme Court said that an "alert" is not enough by itself to satisfy a court that the dog is properly trained and certified for the detection of a specific illegal drug. Instead, the highest court in Florida held that an “alert” can provide the basis for a search only if the evidence shows how the particular dog was trained, what was done to satisfy an expert that the dog was adequately trained, how the dog had actually performed in “alerting” to drugs in other situations, and how well trained and how experienced was the dog’s police handler.

Florida, most of the various states, and the federal government, are all asking that the U.S. Supreme Court reverse the decision by the Florida Supreme Court. They want a ruling that the fact that a trained and certified dog does make an “alert” should be enough, all by itself, to justify a police officer’s further search of a vehicle for illegal drugs.

Frankly, it appears that the Florida Supreme Court's ruling stands alone. Most states, and virtually all federal courts, hold that an alert by a drug dog is sufficient for searching a vehicle. Some folks in law enforcement call the detector dogs "four-legged probable cause." While we will watch the case closely, it will be a surprise if the U.S. Supreme Court says that anything more is required for a search in this context.

New Term in the United States Supreme Court: Cases of Interest

October 2, 2012 by Paul Kish

Well it's early October, a beautiful time of year here in Atlanta, and also the time when the United States Supreme Court kicks off its new "term." There are a couple of cases of interest that the Supreme Court will decide in the upcoming term. I will focus on cases that impact our federal and state criminal matters. We will start with one case today, and look at the others in subsequent posts.

First, we have Bailey v. United States. This is an old-fashioned Fourth Amendment appeal, arising out of the execution of a search warrant. Thirty-one years ago, the Supreme Court issued a decision called Michigan v. Summers. In that case, the Supreme Court decided that officers executing a search warrant for contraband may detain the occupants of the premises while the search is conducted. In the past three decades, a substantial conflict has developed among federal courts of appeals and state courts of last resort on the question of whether the rule of Summers extends to the detention of an individual who has left the immediate vicinity of the premises before the warrant is executed. The Supreme Court will hear the Bailey case to clear up this conflict among the lower courts.

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