Federal Criminal Lawyer Blog

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.

One thing I did learn when reading the article, however, is this: Every year, the Drug Enforcement Administration (the same federal agency that prosecutes doctors for over-prescribing) establishes the quota of controlled substances (including opiods) that may be produced in the United States for the following year. For example, for 2012, the DEA set the quota for oxycodone production at 108 tons. Significantly, the article further points out that from 2008 to 2012, the DEA increased the permissible production quota of oxycodone by 40 percent.

To me, the Government's position on oxycodone seems particularly inconsistent. On the one hand, the DEA has increased the production quota of oxycodone by 40 percent in the last four years. In that same time period, however, the DEA has also increased in significant respects federal prosecutions of doctors and others associated with the prescribing of oxycodone and other controlled substances regulated by the DEA. Indeed, as the U.S. Attorney from the Northern District of Georgia announced during a "summit" on prescription drug abuse, federal investigators and prosecutors in the Atlanta area are ramping up investigations and prosecutions of pain management clinics.

There is no question that prescription drug abuse is a serious problem in the United States. However, in many respects, the DEA's apparent answer to this problem seems way off base. The DEA has spearheaded the prosecution of doctor after doctor (and others associated with pain management clinics) in the United States. At the same time, though, the DEA itself has increased in significant respects the flow of oxycodone (and other controlled substances) into the United States.

Given its apparent position that far too many oxycodone pills are being distributed by America's physicians, the DEA needs to try a different approach. Instead of continuing on its current path, the DEA needs to police itself and reduce the number of pills that that it permits drug companies to produce in this country.

The Bloomberg Businessweek article can be found here.

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.

However, in 2002 the Court in a case called Harris v. United States restricted the Apprendi rule, holding that it did not apply when a particular fact merely kicked in a "mandatory minimum" sentence, but did not change the potential maximum. Federal crimes often come with mandatory minimum punishments which are extremely harsh, and defense lawyers for years have long chafed under a system that keeps away from the jury the crucial question as to whether the Defendant should be exposed to a very long minimum term in custody.

Harris was decided by what we call a "plurality", with Justice Breyer casting the crucial fifth vote. Justice Breyer had gone along with the other four who wanted to keep the mandatory minimum fact away from the jury. Although he questioned the logic of the whole idea, he thought there might be a difference between raising a minimum sentence and enhancing a maximum one. In a later case, though, Breyer expressed doubts about that distinction. Since that time criminal defense lawyers repeatedly made pleas to reconsider Harris, but until now all such requests have been rebuffed.

Mr. Alleyne was accused of a robbery, and one count of using a gun during a crime of violence, what we call a "gun count" or a "924(c)". He received a forty-six month sentence on the robbery charge. However, the gun charge has a 5-year minimum, and that floor can increase to a 7-year minimum if the firearm was "brandished." The jury did not accept the theory that the gun had been brandished. Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery. The judge then imposed the 7-year minimum, instead of the regular 5-year punishment. Alleyne’s lawyer conceded that the Harris decision did treat brandishing a gun as a sentencing factor, not as an element of the crime, yet the public Defenders argued that Harris was inconsistent with Apprendi and later sentencing cases. The judge rejected that challenge, but commented while imposing the added 2-year sentence that “I don’t like being the reverser of juries.” The judge said the Harris precedent gave him no choice.

Again, this is an important case. Perhaps more importantly, it reminds all of us about how important it is to keep up on the law, to note potential trends, and to never give up on an argument that can help our clients.

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.

A subsidiary principle in SOL cases involves the idea of "withdrawal" from a conspiracy. Under this principle, a Defendant who is a member of a conspiracy can get out of the illegal agreement, but only if he does something to defeat the purposes of the conspiracy or lets the other members know that he is through with it. A Defendant who withdraws therefore is not guilty of the crime if he withdraws from the illegal agreement more than 5 years before the indictment was issued by the grand jury.

Mr. Smith has been in prison continually since 1990, except for about 16 months in 1993-94. During those 16 months prosecutors proved that he was a member of a far-flung and very violent drug gang in Washington, D.C. Mr. Smith went back to prison the last time on June 1, 1994. In the year 2000, federal prosecutors got an indictment which included a claim that Mr. Smith was a member of a conspiracy that started back in the early 1990's and went up to 2000. Mr. Smith's legal team argued that he had withdrawn from the conspiracy by virtue of being locked up for the 6 years preceding the day when the feds got their indictment.

The trial took 10 months. After 12 days of deliberation, the jury asked a very reasonable question: which side has the burden of proving whether a Defendant withdrew from a conspiracy? The trial judge told the jury that it was the Defendant who had the burden of proof, and furthermore, that he had to prove his withdrawal by a "preponderance" of the evidence, meaning it was more likely than not he had gotten out of the illegal agreement. In other words, the trial judge told the jurors that if they were 50% convinced that he had not withdrawn, then Smith was still guilty.

This issue has caused a big rift among the various federal courts of appeals, with 6 going one way, and 6 seeing it differently. The Supreme Court will address a series of questions in this important federal criminal appeal. First, under the Due Process Clause of the Fifth Amendment the prosecutors always have the burden of proof beyond a reasonable doubt for all "elements" of a crime. Because the existence and membership are elements of any federal conspiracy crime, Mr. Smith contends that it violates the Due Process Clause to make him disprove that he continued to be a part of the illegal gang. Second, the Supreme Court will confront a series of questions stemming from how to analyze the case if the trial judge made a mistake when telling the jury that Mr. Smith had the burden of proof. A very important case from a few years back written by Justice Scalia held that an erroneous instruction about the burden of proof means that the whole trial was tainted, regardless of how much evidence implicated the Defendant in question.

We think this is a very important federal criminal case, and will follow it closely.

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.

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.

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.

Here is what happened in Bailey. Police officers had a warrant for an apartment. They were staking it out before executing the warrant, and noticed two men leaving the apartment. They followed Mr. Bailey from the apartment to be searched and detained him approximately one mile away. During the detention, the officers discovered a key to the apartment on Bailey’s person, and he made statements linking himself to the apartment. In the course of the search back at the apartment, officers found guns and drugs, and Bailey was later charged with various federal offenses. The federal district court denied Bailey’s motion to suppress the fruits of his detention, and the key was the main evidence used at trial to support the prosecution's theory that Bailey owned the guns and drugs in the apartment. Bailey was convicted, and on appeal he again argued that the police violated the Fourth Amendment when they stopped him many blocks away from the apartment. The Court of Appeals sided with the Government. After recognizing the conflict among the various courts during the past three decades, the Court of Appeals held that the rule of Summers extends to the detention of an individual who has left the immediate vicinity of the premises. Bailey thereafter asked the Supreme Court to review the case, and in late September they agreed to do so.

Back when it first decided Summers, the Supreme Court reasoned that detaining a person on the scene who is present while the individual’s own home is being searched is not a whole lot more more intrusive than the search itself. The Court further reasoned that three rationales supported a rule allowing the police to detain a person present while a warrant is being executed: (1) preventing flight in the event that incriminating evidence is found; (2) minimizing the risk of harm to the officers; and (3) facilitating the orderly completion of the search. In Bailey, however, the person was far from the house, and the police had not even started executing the warrant, so it would be difficult to argue he might flee from an event that had not yet happened. The "risk of harm" rationale likewise seems weak, in that the safer course would be to let him go away and not be a potential problem. Additionally, taking police away from the scene to follow Bailey seemed to impede, not facilitate, the search.

As we all know, the Supreme Court in the past 40 years has not been kind to our joint rights that are supposedly protected by the Fourth Amendment's prohibition against unreasonable searches and seizures. Many people get confused, thinking that we are only fighting for people like Mr. Bailey, who after all, had drugs and guns inside his house they they executed a warrant. However, if they can follow and detain Bailey, they can do the same to you and me just because we are present at a place where someone else has done something that causes the police to get search warrants. We will follow this case closely to see if the Supreme Court will protect our joint rights.