Federal Criminal Lawyer Blog

Last week, the Eleventh Circuit Court of Appeals, sitting en banc, decided United States v. Irey. The 142-page majority opinion recounted gruesome sex crimes that Mr. Irey admitted to committing against as many as 50 Cambodian girls, some as young as four years old. The Court held that the 17½ year sentence ordered by the federal district court judge was a substantively unreasonable downward variance and remanded for sentencing within the Sentencing Guidelines range, which was 30 years at both the top and bottom. As one of the dissenting judges noted, “hard facts often lead to bad law” and we worry that this case will unduly limit district court judges’ discretion in imposing variances in future sentencing decisions.

The lengthy majority opinion began with an account of Mr. Irey’s criminal conduct and case. In short, Mr. Irey repeatedly traveled to Cambodia and China, where he bought underaged Cambodian girls to abuse in horrific ways that the Court said set Mr. Irey apart from “many examples of man’s inhumanity” that steadily flow through the Court of Appeals. During that abuse, he produced “some of the most graphic and disturbing child pornography that has ever turned up on the internet.” He later distributed those images, which have become widely known as “the Pink Wall series.” He was charged with and pleaded guilty to one count of violating 18 U.S.C. § 2251(c), which prohibits producing such images of child pornography elsewhere, then transporting them into the United States.

Under the Sentencing Guidelines, the adjusted offense level for Mr. Irey’s conduct would have led to an advisory sentence of life imprisonment. However, the statutory maximum for his crime as charged was 30 years. For that reason, the Guidelines range was 30 years.

At sentencing, the defense introduced the reports and testimony of two experts in the fields of psychology and psychiatry to address Mr. Irey’s diagnosis of pedophilia. The court also heard from Mr. Irey’s friends and family, who characterized him as a “hero.” The government did not introduce any experts or other witnesses. The sentencing judge focused on Mr. Irey’s diagnosis and otherwise good character in sentencing him to 17½ years in prison, followed by a lifetime of supervised release.

The majority opinion extensively reviewed the history of sentencing law, concluding that it must apply an abuse of discretion standard to its review. The Court held (and the dissenting judges disagreed) that an appellate court may, in its review, itself weigh the 18 U.S.C. § 3553(a) factors to be used in imposing a sentence to determine whether the district court’s balancing of the factors was substantively unreasonable. Based on its own protracted analysis of the § 3553(a) factors, the Court held that the district court’s major variance from the Guidelines sentence was substantively unreasonable.

While the sickening facts in this case make a 17½ year sentence surprising, we worry that the law that the Eleventh Circuit had to make to substitute its reasoning for the district court judge will negatively impact sentencing decisions in this circuit. As Paul Kish commented to the Daily Report, “It is a message to district judges that there are boundaries beyond which you cannot go or you will incur the wrath of certain judges whose views differ from yours.” Judges will be less likely to stray from the Guidelines, despite their advisory status since U.S. v. Booker.

The full opinion in U.S. v. Irey is available here, along with concurring and dissenting opinions, totaling more than 250 pages.

The Daily Report article regarding this case is available here.

This Monday, the Eleventh Circuit held in Gilbert v. United States that, for federal sentencing purposes, the act of being a U.S.S.G. § 4B1.1 career offender is essentially a separate offense. Based upon the Supreme Court’s retroactive decision in Begay and the Eleventh Circuit’s implementation of that decision in Archer, Gilbert is actually innocent of committing two violent felonies, the basis for that offense. Because circuit law squarely foreclosed his claim when he raised it at sentencing, on appeal, and in his first 28 U.S.C. § 2255 motion, Gilbert was entitled to relief under 28 U.S.C. § 2241. He may now be eligible for immediate release.

The Original Sentence and Appeals
In 1997, Gilbert was convicted of a crack cocaine offense and sentenced as a career offender under § 4B1.1 based upon previous convictions for possessing crack with intent to sell and carrying a concealed firearm. Under the then-mandatory Sentencing Guidelines, the enhancement increased his Guidelines range from 151-188 months to 292-365 months. Gilbert argued that carrying a concealed firearm was not a crime of violence, but the district court judge disagreed and, stating that he thought the sentence was too high, reluctantly sentenced Gilbert to 292 months. On appeal, the Eleventh Circuit held that carrying a concealed firearm was a crime of violence for purposes of the career offender guideline. Gilbert’s pro se § 2255 motion was denied in 1999, all post-conviction options now exhausted.

Legal Developments in 2008
In 2008, the Supreme Court decided Begay v. United States, holding that under the Armed Career Criminal Act (ACCA) the term “violent felony” applies only to crimes that are similar in kind and degree of risk to those expressly listed in the statute. That same year, the Eleventh Circuit applied the Begay analysis in United States v. Archer, abrogating its holding in the 1998 Gilbert decision. The Court held that “the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.” Also in 2008, Amendment 706 provided a two-level reduction in base offense levels for crack cocaine offenses and was made retroactive.

In response to these developments, the district court sua sponte ordered the parties in Gilbert’s case to file responses regarding eligibility for a sentence reduction. The government argued that Gilbert was not entitled to any relief under Begay and Archer because a second § 2255 motion is permissible only where new evidence is discovered or the Supreme Court makes a previously unavailable constitutional law retroactive. The government also insisted that Amendment 706 could not apply because Gilbert was sentenced under the career offender guideline. The district court reluctantly agreed.

The Issue Before the Eleventh Circuit
Gilbert filed a motion to reopen his original § 2255 motion, suggesting that the court could treat it as a motion for relief under § 2241, which provides relief when a petitioner can prove actual innocence of the crime for which he was convicted. The district court denied his motion, but granted a certificate of appealability. The Eleventh Circuit held that the “savings clause” of § 2255 permitted relief under § 2241 under the authority of Wofford v. Scott and the doctrine of “actual innocence.”

The “savings clause” of § 2255 permits traditional habeas corpus relief under § 2241 where a § 2255 motion is inadequate or ineffective to test the legality of detention. In Wofford, the Eleventh Circuit held that the savings clause applies in the rare case when (1) the claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of that decision establishes that the petitioner was convicted for a nonexistent offense; and (3) circuit law foreclosed the claim when it should have been raised.

The government argued that Gilbert failed to meet the second requirement: that he was convicted for a nonexistent offense because the career offender guideline was not a separate offense. The Court disagreed, applying the Supreme Court’s analysis in Sawyer v. Whitley that a sentencing enhancement based upon proof of statutory aggravating factors establishes a separate offense and raises the possibility that a defendant might be actually innocent of that offense. The Court extended Sawyer to the career offender context, commenting that, “To accept the government’s position that the law provides Gilbert no remedy for the clear wrong that has been done to him is to elevate form so far over substance as to make unrecognizable the concept of fair play and due process.”

Gilbert has served 171 months of his sentence. The maximum sentence he could have received for his underlying conviction was 188 months. He is likely entitled to an amended Guideline range of 130-162 months under Amendment 706, so “he is, in a very real sense, presently serving his illegal enhancement.” The Court vacated Gilbert’s sentences and remanded for resentencing. In addition, the Court issued a separate order to expedite issuance of the mandate.

The recent Eleventh Circuit opinion in Gilbert v. United States is available here.
The Supreme Court's opinion in Begay is available here.
The Eleventh Circuit's opinion in Archer is available here.

We have discussed cases applying the Begay analysis at the following posts:
Chambers (Supreme Court: failure to report to a penal institution is not violent felony)
Lee (Eleventh Circuit: walkaway escape is not violent felony)
Harris (Eleventh Circuit: fleeing from police at high speed is violent felony)
Hunter (Eleventh Circuit: possession of firearm is not violent felony under Archer, but providing no relief from illegal sentence)

Last Monday, the Supreme Court of the United States reversed the Eleventh Circuit’s decision in Holland v. Florida. The Court held, as have all Courts of Appeal, that the AEDPA’s statute of limitations in habeas corpus cases is subject to equitable tolling. The Court further held that the Eleventh Circuit’s per se rule regarding when such equitable tolling applies is “too rigid.” The Court reversed and remanded without explaining a precise standard for when equitable tolling should apply.

In determining that equitable tolling is available, the Court reasoned that the AEDPA’s statute of limitations is nonjurisdictional and such statutes of limitations are normally subject to a rebuttable presumption in favor of equitable tolling. In addition, equitable principles have traditionally governed the law regarding habeas corpus. The Court distinguished cases in which nonjurisdictional statutes of limitations were interpreted as not subject to equitable tolling.

The Court then explained that, for equitable tolling to be available, a petitioner must show diligence in pursuing his rights and some extraordinary circumstance that prevented timely filing. Emphasizing that equity requires decisions on a case-by-case basis, flexibility, and avoidance of mechanical rules, the Court pointed out that equity’s intent is relief from hardships resulting from “evils of archaic rigidity.”

The Court viewed the Eleventh Circuit’s per se rule as “difficult to reconcile with more general equitable principles.” The Eleventh Circuit had held that an attorney’s unprofessional conduct, even if grossly negligent, could not justify equitable tolling without bad faith, dishonesty, divided loyalty, mental impairment, or the like.

The Court admitted that a “garden variety claim of excusable neglect does not warrant equitable tolling,” but stated this case involved more serious instances of attorney misconduct, that may well qualify as extraordinary circumstances. The Court remanded to the Eleventh Circuit on this question. The Court also commented that Holland had been reasonably diligent in pursuing his rights, although that issue was not part of the question presented.

The opinion in Holland v. Florida is available here. Justice Alito issued a concurring opinion, in which he further analyzed the appropriate standard for when equitable tolling should be available. Justice Scalia issued a dissent. In Part I he explained that equitable tolling should not be available at all, then the rest of his dissent explained why Holland should not receive relief, even if equitable tolling did apply. Justice Thomas joined his dissent, except as to Part I. The concurring and dissenting opinions are also available at the link above.

Today the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, decided U.S. v. Fowler. The court took the government’s side in a circuit court split, holding that evidence is sufficient to establish the federal nexus of 18 U.S.C. § 1512(a)(1)(c) where any “possible or potential communication [may be made] to federal authorities of a possible federal crime.” In other words, the government can make a federal case out of any murder, if the victim might have possibly given information that may have been eventually transferred to a federal officer or federal judge.

The facts of this case are heartbreaking. The case certainly merited the charge of murder of a police officer. The evidence showed that three men robbed a hotel, then recruited Fowler and another man to help them rob a bank the next morning. They prepared in a cemetery, dressing in black clothing, drinking, and taking drugs. Fowler didn’t want them to see his cocaine supply, so he walked away to use it. While he was gone, a local police officer showed up. Fowler snuck up behind him and grabbed his gun, while the others helped him gain control. Fowler eventually shot him in the back of the head.

This was a dreadful crime, but murder cases are not common in federal court. Why was this a federal case? In 2004, a spokesman for the Middle District of Florida’s U.S. Attorney’s office explained that the local authorities requested federal prosecution. He cited the multiple suspects, multiple crimes, and wide jurisdiction, but all of these factors are common in state-prosecuted cases.

The statute used, § 1512, is intended to punish witness tampering. One of the elements of subsection (a)(1)(c) is a federal nexus – the murder must have been intended to prevent communication relating to the possible commission of a federal offense. Fowler argued that the evidence did not sufficiently prove this federal nexus.

The Court held that the federal nexus requirement does not require proof of the victim’s state of mind, i.e. a plan to communicate information to federal authorities (unlikely with the victim in this case.) Instead, the statute focuses on the defendant’s intent “to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense."

Under this holding, any murder intended to cover up anything that could arguably be investigated as a possible federal crime is a federal case. In this previous post, we discussed the danger of over-federalization of crime. We have also discussed some differences between federal and state prosecutions here.

The Court’s opinion is available here.

Last month, the Eleventh Circuit Court of Appeals, which hears appeals in federal cases here in Atlanta, Georgia, heard oral arguments in a habeas corpus case filed by Sholam Weiss. Weiss argues that the United States government has reneged on promises it made to the Austrian authorities to obtain extradition.

Ten years ago, Weiss was sentenced to 845 years in absentia after a jury found him guilty of RICO violations, money laundering, and other charges stemming from the white collar fraud that resulted in the downfall of the National Heritage Life Insurance Company. Just before jury deliberations began, Weiss fled the country. He was eventually arrested in Austria pursuant to an international arrest warrant. Austria initially refused to extradite Weiss, but later agreed after extensive negotiations and exchanges of information.

Weiss’s appellate lawyers argue that Austria would not have extradited Weiss had the U.S. not promised that Weiss would be given the opportunity to appeal his convictions and be resentenced. In his habeas corpus petition to the Middle District of Florida, Weiss argued that the extradition is invalid, so the United States has no personal jurisdiction over him and he should be released in Austria. The Eleventh Circuit is more likely to consider specific performance, requiring the U.S. to follow through on its promises to the Austrian authorities.

We will update when the Eleventh Circuit’s decision is issued.
The unreported decision by the Middle District of Florida is available at 2008 WL 5235162.

Last week the Supreme Court decided Berghuis v. Smith in favor of the government. The Court held that criminal defendant Smith was not entitled to federal habeas corpus relief on his claim that the jury selection process had violated his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community.

Because Smith was challenging his state conviction in a federal habeas corpus petition, under AEDPA, the federal courts could grant relief only if the state court decisions involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. The Supreme Court unanimously held that Smith had not met this burden under the law established by Duren v. Mississippi in 1979.

Under Duren, to establish a prima facie violation of this Sixth Amendment right, a defendant must show:
(1) that the group alleged to be excluded is a distinctive group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

The dispositive issue in Smith, and in Duren, was whether underrepresentation was due to systematic exclusion. The Court noted that Smith lacked evidence showing that the jury-selection process caused underrepresentation. He failed to compare the representation in the circuit court of his trial with that of the state district court or federal district court for the same region. Thus, the Court held that the state supreme court decision denying the claim was consistent with Duren.

The unanimous opinion, written by Justice Ginsburg, is available here. Justice Thomas filed a concurring opinion to express that he "would be willing to reconsider [the Court's] precedents articulating the "fair cross section" requirement."

The United States Court of Appeals for the Eleventh Circuit has issued a ruling that deals with whether one victim of an economic crime gets to climb to the top of the heap and get more recovery out of the fraudster than the remaining victims. The Court ruled that even when such a victim can trace his money directly into a bank account used by the criminal, such a victim cannot get the money back. Instead, the money goes into the pot, so to speak, and is divided among all victims pro rata.

The case involves two common themes nowadays: Ponzi schemes and forfeiture proceedings that are part of federal criminal prosecutions. As is well known, in a Ponzi scheme, the fraudster takes money from recent investors to pay off those who invested earlier, until the whole thing collapses. Forfeiture is the process by which the government takes from a criminal defendant any money that comes from, is traceable to, or is a substitute for property that is part of the crime itself.

Altogether the defendant had defrauded about $20 million from over 90 people. Just before the defendant’s scheme was discovered, he got one final investor to put in about $2 million. Almost immediately thereafter, the authorities arrested the defendant and seized his bank accounts. The final investor’s $2 million was sitting in the defendant’s bank account. The federal authorities wanted to forfeit the $2 million in the bank account, along with other assets, in order to give the proceeds back to all 90 victims.

The final investor claimed he had a "constructive trust". In this argument, the last investor said that at the very moment the defendant accepted the final $2 million, it was owed to that last investor, and such a debt is a “superior” and “qualifying” interest under the forfeiture laws. Under such an argument, this means he would get his $2 million off the top from all property seized from the defendant.

The Eleventh Circuit rejected the equitable constructive trust argument from the final investor. The Court said that this issue is controlled by state law, and that Georgia did not recognize such a constructive trust on behalf of the final investor prior to the defendant’s arrest. Instead, the principles of equity require fairness. The Court of Appeals noted that the main idea in forfeiture proceedings is to try to get as much as possible and to treat all victims of fraud equally, so that they each get a pro rata share.

The opinion is available here.

The Supreme Court has granted certiorari in Harrington v. Richter, a federal habeas corpus case out of the Ninth Circuit. The Ninth Circuit held that Richter was prejudiced by his defense lawyer’s unreasonable failure to investigate and present expert testimony on blood evidence and that the state court’s determination that he was not denied effective assistance of counsel was an unreasonable application of clearly established federal law.

The question presented is whether the Ninth Circuit denied the state court the deference mandated by AEDPA and impermissibly enlarged the Sixth Amendment right to counsel by elevating the value of expert opinion testimony to virtually always require criminal defense attorneys to produce such testimony. In addition, the Court asked the parties to brief whether AEDPA deference applies to a state court’s summary disposition of a claim, including under the Strickland test for ineffective assistance of counsel.

The facts of this case would make for an interesting episode of CSI. Both parties agreed that two defendants, Richter and Branscombe, socialized for several hours in Johnson’s house with Johnson and Klein until 2:30 a.m., when they left but Klein decided to spend the night. The prosecution and defense presented divergent theories at trial of the events occurring later that morning, when Klein was killed and Johnson received gunshot wounds.

The central dispute between the prosecution and the defense was Klein's location at the time he was shot. Blood-spatter evidence could have confirmed either the defense’s or the prosecution’s theory of the case, but the state conducted an inadequate forensic investigation. Had Richter’s lawyer chosen to consult a forensic expert for the defense, that expert could have assisted him in evaluating the testimony of the prosecution’s experts or guided him in developing effective cross-examination of those witnesses.

The Ninth Circuit’s lengthy opinion is available here.
The briefs are available at the following links:
Petition for Writ of Certiorari
Brief in Opposition
Reply to Opposition

This week, the Supreme Court agreed to hear Abbott v. U.S. and Gould v. U.S. These criminal cases involve a deep circuit split among the federal courts that we addressed in this post in September, when the 11th Circuit decided U.S. v. Segarra.

The Armed Career Criminal Act (ACCA), drug laws, and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The ACCA and drug minimums are often longer than the minimum called for by § 924(c). § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” The plain language of that clause prohibits application of § 924(c) where defendants are subject to greater minimums.

Continue reading "Supreme Court Grants Certiorari in § 924(c) Cases Regarding Mandatory Minimums in Federal Criminal Firearms Cases" »

Yesterday, the Eleventh Circuit Court of Appeals issued its fourth opinion regarding the federal sentencing of Kenneth Livesay, former chief information officer for HealthSouth Corporation. The Court has insisted that Livesay must serve time in prison for his role in the accounting fraud at HealthSouth. We are disappointed in the Court’s decision, because in our view, the sentence was supported by the Supreme Court’s decision in Gall v. United States.

Prior to 1999, Livesay was an assistant controller for HealthSouth who played a direct role in the accounting fraud that came to light following Sarbanes-Oxley in 2003. In 1999, however, Livesay decided that he could no longer stomach the fraud, so he transferred to the IT department, where he became CIO. Before the fraud was discovered, he was asked repeatedly to return to the accounting department, but he refused.

In 2004, Livesay pleaded guilty to conspiracy to commit wire fraud, securities fraud, and falsifying records; falsely certifying financial information filed with the SEC; and a forfeiture court. Pursuant to his plea agreement, the government agreed to recommend a reduction in his offense level for acceptance of responsibility, a sentence at the low end of the guidelines, and a downward departure in exchange for Livesay’s cooperation with the government.

And cooperate, he did. Livesay immediately assisted the government in its prosecutions relating to the fraud. He created a roadmap for how HealthSouth had manipulated its accounts and provided information, including documents, he had maintained as evidence of the fraud. He met with various governmental agencies on at least 10 occasions and testified against CEO Richard Scrushy for four days and finance exec Sonny Crumpler for two days. The judge in those cases (and his most recent sentencing hearing) was particularly impressed with his credibility as a witness.

Judge Clemon of the Northern District of Alabama sentenced Livesay to 60 months probation, including 6 months of home detention, a $10,000 fine, and forfeiture of $750,000. The government appealed the sentence and the Eleventh Circuit remanded for resentencing in Livesay I, holding that the court below had failed to state the reasons supporting the extent of its departure from the Guidelines sentence.

On remand, he was given the same sentence. The Eleventh Circuit again reversed in Livesay II, holding that the departure and the ultimate sentence were unreasonable due to Livesay’s role in the massive fraud. The Supreme Court granted certiorari, vacated Livesay II, and remanded for reconsideration in light of Gall. On remand, the Eleventh Circuit again vacated Livesay’s sentence in Livesay III, holding that the sentencing court had impermissibly considered Livesay’s repudiation of the conspiracy in its departure. Judge Clemon recused himself.

Judge Bowdre imposed the same sentence again at Livesay’s third sentencing hearing. In explaining its reasoning for the departure, the court focused on the significance and usefulness of Livesay’s assistance to the government, as well as the timeliness of that assistance. Then in its Booker analysis, the court focused on Livesay’s history and characteristics, including his inability to stomach participating in the fraud by remaining in the accounting department.

The court also focused on sentencing disparities in the case, particularly regarding Emery Harris, Kay Morgan, and Richard Botts. Livesay initially directed Harris and Morgan to make false entries, but after his move to another department, they were promoted to positions equal to or higher than his in the fraud and they remained until the end. Harris received only 5 months in custody and Morgan received 48 months of probation. Richard Botts, a senior vice president, received only 60 months probation and 6 months home confinement, like Livesay. After his resentencing for the same amount of time, the government did not appeal his sentence.

In Gall, the Supreme Court held that appellate courts must review the substantive reasonableness of sentences under an abuse-of-discretion standard and must give due deference to the district court’s decision that § 3553(a) factors justify the extent of the variance from the Guidelines range. The Court recognized that “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case” and have “an institutional advantage over appellate courts in making these sorts of determinations.” The Court also pointed out that while custodial sentences are more severe than probation, probation is a “substantial restriction of freedom” that should be given weight.

The Eleventh Circuit ignored the unique position of the sentencing judge and the weight of probation as a sentence in Livesay IV yesterday. Its opinion failed to mention any of the reasons for the sentencing court’s decision, simply holding that the probationary sentence “is patently unreasonable in light of Livesay’s role in this massive corporate fraud” and that “any sentence of probation would be unreasonable.”

Livesay’s attorney has stated his intent to request a rehearing. We hope the Eleventh Circuit reconsiders this case and prevents Livesay from enduring a fourth sentencing hearing. As of now, Livesay has already fulfilled payment of the fine and the forfeiture, as well as serving the home confinement time. He has lost his CPA license and spent 5 years with the agonizing uncertainty of the appellate process. As Judge Bowdre said at the last resentencing: “I believe it’s time for this to come to an end.”

The Eleventh Circuit's opinion in Livesay I is available here.
The Eleventh Circuit's opinion in Livesay II is available here.
The Eleventh Circuit's opinion in Livesay III is available here.
The Eleventh Circuit's opinion in Livesay IV is available here.
The Supreme Court's opinion in Gall is available here.

In this post earlier this month, we discussed U.S. v. Velez, a federal criminal case in which an attorney, Ben Kuehne, was charged with money laundering based upon payments of legal fees. On Monday, the Eleventh Circuit affirmed the Southern District of Florida’s dismissal of the money laundering charges.

Fabio Ochoa-Vasquez was extradited to the U.S. in 2001 to faces charges for cocaine smuggling. His criminal defense team hired Kuehne to investigate the source of the money Ochoa would use to pay their legal fees and verify that it was not criminally derived property. Kuehne drafted six opinion letters advising that the funds were clean. The money to pay the legal fees were wired to his trust account, then he wired them, minus his retainer, to Ochoa’s defense team.

The government alleged that Kuehne and his co-defendants knew that the funds were tainted and supported the opinion letters with falsified documents. They were charged with money laundering in violation of 18 U.S.C. § 1957. However, § 1957(f)(1) excludes “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution” from the scope of the money laundering statute.

The Government argued that the exception in § 1957(f)(1) was nullified by Caplin & Drysdale, a 1989 Supreme Court case holding that the sixth amendment right to counsel does not protect the right of a criminal defendant to use criminally derived proceeds for legal fees. That case, however, dealt with the criminal forfeiture statute, not the money laundering statute. The forfeiture statute contains no exemption for funds used to pay legal fees.

The Eleventh Circuit Court’s opinion pointed out that Caplin & Drysdale actually supports the statutory money laundering exception for payments of legal fees. In Caplin & Drysdale, the Court reasoned that Congress could have included such an exemption, but had not done so. The Eleventh Circuit viewed the exemption as “a crucial distinction” between the money laundering charges and the forfeiture provision, finding that Caplin & Drysdale’s only bearing on the exemption is to affirm it.

The Kuehne opinion then turned to statutory construction, noting that the government had conceded its interpretation would read all meaning out of the exemption. Because only transactions involving criminally derived proceeds are criminalized by § 1957, reading the exemption to refer to only non-tainted funds would render it superfluous. “We do not believe Congress intended such an absurd result, which nullifies the provision and divorces it from its statutory context, thereby violating the basic canons of statutory construction.”

“The district court was eminently correct in holding that Defendants are not subject to criminal prosecution under § 1957(a).” While criminally derived proceeds are subject to forfeiture under Caplin & Drysdale, they may not be the basis for a criminal prosecution.

Significantly, the Eleventh Circuit also recently decided U.S. v. Kaley, another case involving the payment of legal fees to criminal defense attorneys. We discussed that case in this previous post.

The Eleventh Circuit’s opinion in Kuehne is available here.
Thorough commentary on the case is available at the Southern District of Florida Blog.

Earlier this year, we discussed the United States Supreme Court’s decision in Chambers v. U.S. in this post. In that case, the Court held that a conviction for failure to report to a penal institution falls outside the scope of the Armed Career Criminal Act’s definition of “violent felony.” In light of that decision, the Eleventh Circuit held today in U.S. v. Lee that non-violent walkaway escapes from unsecured custody also do not qualify as “violent felonies” under the ACCA. This decision is a reversal of prior Eleventh Circuit law holding that all escapes are violent felonies for the purposes of the ACCA.

Shawntrail Lee was convicted of felony possession of a firearm in the Southern District of Georgia. He had three prior convictions: eluding police officers in the second degree, conspiracy to commit armed robbery, and escape based upon leaving a halfway house. The district court granted Lee a downward variance and sentenced him to the mandatory minimum 180 months (15 years) required by the ACCA.

Conviction for being a felon in possession of a firearm ordinarily carries a mandatory minimum sentence of 10 years in prison. The ACCA increases that minimum to 15 years where the defendant has three prior “violent felony” or serious drug convictions.

The law regarding “violent felonies” has been in a state of flux. Before last year, any crime that posed a serious risk of harm qualified as a violent felony under the ACCA. The Eleventh Circuit held in U.S. v. Taylor that, because even peaceful walkaway escapes always posed a serious risk of injury, failure to return to a halfway house was a violent felony under the ACCA. Every circuit but the Ninth held that all escapes were violent felonies. In 2008 in Begay v. U.S., however, the Supreme Court held that to be a violent felony, the crime must be “roughly similar, in kind as well as degree of risk posed, to the examples” enumerated in the statute: burglary, arson, extortion, or the use of explosives. Then in Chambers, the Court held that failure to report to a penal institution does not fall within the ACCA, rejecting the “notion that all escapes are created equal.”

Today the Eleventh Circuit vacated Mr. Lee’s sentence and remanded it for resentencing. Shortly after Chambers was decided, the Supreme Court vacated Mr. Taylor’s sentence. Following a letter brief from the government that it no longer sought the ACCA enhancement, the Eleventh Circuit remanded his case for resentencing without the ACCA enhancement, as well.

The Eleventh Circuit's opinion in Lee is available here.

The United States Supreme Court granted certiorari in Berghuis v. Thompkins. The Court will decide what the default rule ought to be where a suspect confirms that he understands his rights, but neither waives nor invokes them.

In this case, Thompkins was read his Miranda rights and confirmed that he understood them, but then was uncommunicative for nearly three hours of interrogation before answering “Yes” to a question regarding whether he prayed for forgiveness for “shooting that boy down.” He nodded his head every so often and declined a peppermint, but was otherwise withdrawn, refusing to sign an advice of rights form or anything else. His statement was used at trial and a jury convicted him.

The Sixth Circuit Court of Appeals below reversed the denial of his federal habeas petition, holding that the state had failed to show that Thompkins’s course of conduct amounted to an implied waiver of his rights. We hope the Supreme Court remembers its words from Miranda: “[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the facts that a confession was in fact eventually obtained.”

The 6th Circuit’s opinion below is here.
The Petition for Certiorari is here.
The Brief in Opposition is here.
The Petitioner's Reply Brief is here.
Connecticut and six other states' Amicus Brief is here.

Earlier this week, the Supreme Court granted certiorari in another honest services fraud case: Skilling v. United States. Jeffrey Skilling, of Enron notoriety, is challenging his conviction for honest services fraud and the venue of his trial.

The honest services fraud statute, 18 U.S.C. § 1346, expands the definition of a scheme or artifice to defraud under the mail and wire fraud statutes to encompass schemes that “deprive another of the intangible right of honest services.” This federal criminal case will address whether the statute requires the government to prove that the defendant’s conduct was intended to achieve “private gain” rather than to advance the employer’s interests, and, if not, whether the statute is unconstitutionally vague. A second issue in the case involves when a presumption of jury prejudice arises.

We have previously discussed two other honest services fraud cases, Black v. United States and Weyhrauch v. United States, that the Court will also hear this term. Our discussion of Black is here and of Weyhrauch is here.
The differences between the three cases are:
Black: A corporate executive’s use of a fraudulent scheme to increase his own compensation that caused no harm to the corporation.
Skilling: A corporate executive’s use of a fraudulent scheme with no personal gain or benefit to the corporation.
Weyhrauch: A state legislator’s failure to disclose conflict of interest where state law does not require such disclosure.
Although these three cases have not been consolidated, we hope that the Court takes a comprehensive approach and straightens out the myriad issues plaguing interpretation of this law.

In its amicus brief in support of Skilling’s petition for a writ of certiorari, the National Association of Criminal Defense Lawyers (NACDL) encouraged the Court to resolve three principal issues: whether courts have the power to engraft limiting principles on the vague language of § 1346; if courts do not have that power, whether § 1346 is void for vagueness; and if they do, the content of those limiting principles. In addition to addressing these three issues, we hope that the Court takes the opportunity to create some meaningful and clear distinctions between public sector and private sector honest services fraud.

For an interesting analysis of the potential outcomes from these cases, see this post at the SCOTUSblog.
For more detail on the chaos plaguing interpretation of this statute, see this New York Times article. (A favorite tidbit of ours quotes Justice Scalia carrying it to its logical extreme, saying, “it would seemingly cover a salaried employee’s phoning in sick to go to a ballgame.”)
The briefs filed in Skilling are available at the SCOTUSblog.

Last month the Eleventh Circuit Court of Appeals heard oral arguments in U.S. v. Velez, a federal criminal case in which the lower court dismissed a money laundering charge based upon payments of legal fees. The Eleventh Circuit sits here in Atlanta, but also hears oral arguments in Montgomery, Alabama, and Jacksonville and Miami, Florida. The judges’ questions showed skepticism of the prosecution’s arguments.

The case revolves around a defendant’s payment of legal fees to his criminal defense team, including Roy Black. Fabio Ochoa-Vasquez was extradited to the U.S. in 2001 to face charges of conspiracy to smuggle cocaine. His defense team hired Ben Keuhne, a well-respected attorney in South Florida, to investigate the source of the money Ochoa would use to pay fees and to verify that it was not criminally derived property. Kuehne was assisted by Gloria Velez, a CPA in Colombia, and Oscar Saldarriaga Ochoa, a Colombian attorney. Velez, Kuehne, and Saldarriaga are the defendants in the case.

Kuehne’s trust account received wire transfers totaling more than 5 million dollars from various bank accounts. Kuehne drafted six opinion letters advising the criminal defense team that he had analyzed the sources of all funds. Immediately after each of the first four opinion letters, a wire transfer was made to the criminal defense team, totaling the amount sent to Kuehne’s trust account minus $50,000, which the court assumed to be Kuehne’s retainer.

Count One of the indictment charged the defendants with money laundering in violation of 18 U.S.C. § 1957, despite § 1957(f)(1), which provides an exception for “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” Because the funds were used to pay the criminal defense team, the district court judge dismissed Count One. The district court’s order is available here. The government appealed the dismissal to the Eleventh Circuit.

At oral arguments on September 23, the judges questioned the government’s attorney aggressively with questions on the exception. At one point, a judge commented “Oh come on.” The mood shifted considerably when Kuehne’s lawyer began. He argued that legal fees that are criminally derived property may be seized, but lawyers cannot lose their liberty. Allowing that result would cause a chilling effect, which Congress tried to remove by including the exception. Another judge even cracked a joke when Congress’s public policy choices were raised.

For more information on this case, visit the Southern District of Florida Blog, by David Oscar Markus. He wrote an amicus brief on behalf of the National Association of Criminal Defense Lawyers on this issue. He also has blogged on the many other problems the prosecution has encountered with this case.

Last month, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, and hears appeals from both civil and criminal federal cases, decided United States v. Kaley, a case regarding due process requirements for protective orders over property defendants wish to use to hire criminal defense counsel of their choice.

In Kaley, a wife and husband were each indicted with conspiracy, transportation of stolen property, obstruction of justice, and money laundering. The indictment included a criminal forfeiture count and the government obtained an injunction against the Kaleys encumbering the property listed in the forfeiture count. The government got that injunction ex parte, without a hearing in which the Kaleys could participate.

The property that the government enjoined was the property that the Kaleys planned on using to hire their criminal defense lawyers. Their legal fees were estimated at $500,000. To pay that amount, the Kaleys had gotten a home equity line of credit and used the proceeds to buy a certificate of deposit. The government claimed that those assets were “involved in” the Kaleys’ commission of their alleged crimes and sought to forfeit the property.

The Kaleys argued that the protective order prohibiting them from using the money prevented them from retaining counsel of their choice, in violation of their 6th Amendment right to the representation of counsel. The magistrate judge found that no hearing regarding the restraint on the property was necessary until trial and the district court agreed. The Kaleys appealed to the Eleventh Circuit.

The Court held that under Eleventh Circuit precedent, “a defendant whose assets are restrained pursuant to a criminal forfeiture charge in an indictment, rendering him unable to afford counsel of choice, is entitled to a pre-trial hearing only if the balancing test enunciated in Barker v. Wingo is satisfied. “ The Court further held that the District Court had not correctly applied the balancing test in the Kaleys’ case and reversed, requiring the district court to re-weigh the factors and determine whether the Kaleys may have a pre-trial hearing on the matter.

The most interesting part of this case is the Court’s discussion of its obligation to follow its own precedent in the case. The Court stated that, had it been writing from a blank slate without that precedent, it would have applied a different test to determine whether the Kaleys were entitled to a hearing. The case the Court was bound to follow, U.S. v. Bissell, was decided by the Eleventh Circuit in 1989.

Had the Court not been bound by Bissell, it would have applied the test announced by the Supreme Court in Mathews v. Eldridge, which decided whether an individual was entitled to a hearing under the 5th Amendment to contest governmental deprivation of a property interest in civil cases. Other circuits have applied Mathews in situations such as the Kaleys’. Had that test been applied, “the Kaleys would be entitled to a pretrial hearing on the merits of the protective order,” said the Court. “At the end of the day, however, we are duty bound to apply our case precedent and examine this matter under the framework outlined by this Court in Bissell.”

Last week, the Eleventh Circuit Court of Appeals decided United States v. McIntosh, a federal criminal double jeopardy case. The Eleventh Circuit is located here in Atlanta and hears appeals in federal cases from Alabama, Florida, and Georgia. The Double Jeopardy Clause has been whittled down, but this case shows that there are still some circumstances in which the Eleventh Circuit recognizes its necessity.

In McIntosh, the defendant was indicted on drug and firearm charges and pleaded guilty to those charges. Before his sentencing, the prosecutor realized that the offense date in the original indictment was wrong, so he filed a second indictment, identical to the first, with the exception of only the corrected date, and a motion to dismiss the first indictment, which the court granted. McIntosh moved to dismiss the second indictment as barred by the Double Jeopardy Clause, but the court denied the motion. McIntosh then conditionally pleaded guilty to the second indictment, reserving his right to challenge the denial of his motion to dismiss.

The Eleventh Circuit held that jeopardy attached when McIntosh pleaded guilty to the first indictment, so the later indictment for the same offenses violated the Double Jeopardy Clause. The Court vacated his (second) conviction and remanded to the district court with instructions to dismiss the second indictment.

It wasn’t all victory for the defense, though. In its opinion, the Court discussed that the flaw in the original indictment was not fatal, but, at most, procedural. The district court had concluded that the dismissal of that indictment “effectively withdrew McIntosh’s guilty plea,” but the Eleventh Circuit pointed out that the district court had not vacated the conviction or set aside the guilty plea, so the “conviction still exists and awaits a sentence.”

The Court’s opinion is available here.

In this post in May, we discussed Flores-Figueroa v. United States, in which the Supreme Court held that a federal identity theft statute requires the government to prove that a criminal defendant knew that the identification that he or she used actually belonged to another person. That decision overruled a prior decision by the Eleventh Circuit Court of Appeals, which sits here in Atlanta and hears appeals in all federal cases originating in Georgia, Florida, and Alabama. Last Friday, in United States v. Gomez, the Eleventh Circuit applied the law in Flores-Figueroa, vacating an identity theft conviction because the trial court failed to instruct the jury on the correct law.

The defendant, Ramon Gomez, is an undocumented alien from the Dominican Republic. Because of his illegal immigration status, he was unable to find a job, so he purchased a Social Security card and birth certificate bearing the name Raul Rodriguez Delgado for $800. In April 2008, he used those documents to apply for a U.S. passport. Because another person using the same identity had obtained a passport in 2001, the State Department investigated and Gomez admitted to his true identity. Gomez was charged and convicted with making a false statement in a passport application, falsely representing himself as a citizen of the United States, and aggravated identity theft.

The Eleventh Circuit recognized that its earlier decision was no longer good law and that the district court erred when it failed to instruct the jury that it had to find that Gomez knew that the birth certificate he used belonged to another actual person. It then determined that the district court’s error was not harmless. The United States had introduced circumstantial evidence that Gomez knew Delgado was an actual person, but Gomez contested that evidence. An agent had tried to locate Delgado, but failed, so the jury may have questioned whether he existed. Because the error was not harmless, the Court vacated Gomez’s conviction for aggravated identity theft.

The opinion in Flores-Figueroa is available here.
The opinion in Gomez is available here.

One of Justice Sotomayor’s first decisions on the Supreme Court will be in Maryland v. Shatzer, which is set for argument on October 5, 2009. The Court will decide whether the federal criminal constitutional protections afforded by Edwards v. Arizona in 1981 extend to Shatzer.

Edwards prohibits interrogation of a suspect who has requested counsel, unless an attorney is provided. This rule protects suspects from police coercion and serves an administrative purpose of providing judges and law enforcement with a clear and easily enforceable rule. Shatzer requested counsel when he was interrogated in 2003, while he was in prison for a different crime. Counsel was never provided. In 2006, while he was still incarcerated, another officer interrogated him again about the same subject, again without providing a lawyer. That time, Shatzer gave a statement that eventually led to his conviction. The highest appeals court in Maryland found that the Edwards rule applied, reversing his conviction.

The state of Maryland asserts 3 primary points in its briefs to the Supreme Court:
(1) The Edwards rule should not apply where a break in custody occurred;
(2) A break in custody has occurred where a prisoner returns to the general prison population; and
(3) The Edwards rule should not apply when significant time passes.
To argue these points, the State argues that the purposes of the Edwards rule are not met in these situations and that social costs require limitations on the rule. The same arguments are reiterated in amicus curie briefs submitted by the United States, 37 states (not including Georgia,) and the Criminal Justice Legal Foundation, a organization that advocates reducing rights for persons accused of crimes.

Briefs in support of Shatzer seek to protect the bright-line rule established by Edwards, arguing that:
(1) Any custodial reinterrogation is improper until an attorney is provided;
(2) Passage of time and breaks in custody should not render Edwards inapplicable; and
(3) Correctional custody qualifies as “custody” for the purpose of the Edwards rule.
Shatzer and the National Association of Criminal Defense Lawyers argue that the purposes of Edwards would be undermined by the requested exceptions and that there is no effective alternative to the bright-line rule.

The passage of time does nothing to change a suspect’s belief in his vulnerability to the pressures of custodial interrogation. Additionally, any exceptions regarding time-passage would be arbitrary and erode the bright-line rule imposed by Edwards. A break in custody does no more to change the custodial pressures without the presence of a lawyer. As NACDL's amicus brief points out, such an exception would only increase those pressures by incentivizing police to badger suspects through repetitive catch-and-release tactics. Arguing that incarceration does not qualify as “custody” for Miranda/Edwards purposes is simply absurd. Under Miranda, (on which the Edwards rule is based,) “a person is in custody if a reasonable person would understand he was under formal arrest or restrained in his freedom of movement.” A person in the general prison population is certainly restrained in his freedom of movement. The pressure to cooperate with authorities to be eligible for parole after a significant passage of time in prison creates even stronger custodial pressures than where the initial interrogation was recent.

The Eleventh Circuit Court of Appeals, which hears federal appeals here in Atlanta, Georgia, has held that Edwards does not apply where a suspect invoked the right to counsel during an interrogation regarding one offense, was convicted of the offense and incarcerated, then was interrogated regarding a separate offense while still in custody for the first offense. Georgia state criminal law has a similar “break in custody” exception. While this case is distinguishable from such a situation, we hope that the Supreme Court clarifies that incarceration is "custody" within the context of Edwards.

The Court of Appeals of Maryland's opinion below is available here.
The briefs in this case are available at the following links:
Brief for Petitioner
Brief for Respondent
Reply Brief for Petitioner
Amicus Brief of NACDL
Amicus Brief of United States
Amicus Brief of Florida, et al
Amicus Brief of CJLF

Last Friday, the Tenth Circuit Court of Appeals decided U.S. v. Nacchio, a white collar criminal case involving insider trading by the former CEO of Quest Communications. The Court held that, in calculating Mr. Nacchio’s gain for purposes of sentencing, the district court must determine the proceeds related to his insider information, rather than simply calculating total net profit. The Eighth Circuit Court of Appeals held the opposite in U.S. v. Mooney in 2005. The Eleventh Circuit, which hears appeals in federal cases here in Atlanta, Georgia, has never addressed this issue.

Mr. Nacchio began earning stock options through his position as CEO of Quest in 1997. By early 2001, he held over 4.4 million vested options. Between April and May 2001, he sold more than 1.3 million of his shares. That July, the company announced to investors that its expected revenue for 2001 would be near the lower end of previously announced ranges. In August, Quest disclosed the magnitude of its prior use of nonrecurring sources of revenue, such that it was at substantial risk of not meeting its year-end guidance.

Alleging that Mr. Nacchio was aware of material, nonpublic information when he sold his shares of Quest stock, the federal government charged him with forty-two counts of insider trading in 2003. He was convicted on nineteen counts covering the trades he made in April in May. The district court sentenced him to 72 months imprisonment, 2 years of supervised release, a $19 million fine, and forfeiture of $52 million. The Tenth Circuit reversed the sentencing order and remanded to the district court for resentencing.

The problem with the district court’s original sentencing calculation involves Section 2F1.2 of the 2000 Sentencing Guidelines, which is in the current Guidelines at Section 2B1.4, and applies specifically to insider trading. The Sentencing Guidelines prescribe progressively greater penalties based on the relevant amount of losses to victims. For insider trading, however, because victims and their losses would be so difficult to identify, the courts must look to the defendant’s gains.

The dispute in this case was over how to calculate those gains. Rather than agreeing with the district court’s use of the net proceeds from the sale, the Tenth Circuit decided that the method used for figuring disgorgement in civil insider cases was an appropriate analogue to the sentencing calculation. Disgorgement seeks to strip wrongdoers of ill-gotten gains and deter improper conduct, while taking into account that stocks have inherent value and some purported gain amounts may actually be the product of the ordinary influences of the market.

Basically, the district court’s approach ignored that some profits from the sale of Mr. Nacchio’s stock could have been (and probably were) due to normal appreciation in market prices during the period from 1997 to 2001 that he owned it. The Tenth Circuit’s disgorgement approach takes normal market forces into account and holds defendants culpable for only those gains attributable to the information based upon with they improperly traded.

The Tenth Circuit’s opinion is available here.

A couple of weeks ago, the federal Supreme Court decided a criminal case, Melendez-Diaz v. Massachusetts, holding that the admission of crime lab reports requires the forensic analysts to testify in person. The Georgia Supreme Court adopted the same rule in 1996 for state criminal cases brought here in Georgia and we are pleased that it will now apply in federal criminal cases, as well as in other states that didn’t previously have the rule.

Justice Scalia, a strong defender of the Sixth Amendment Confrontation Clause, wrote the majority opinion in Melendez-Diaz. The basic idea of the Confrontation Clause is that people have the right to be confronted with witnesses against them so they have a chance to defend themselves against the charges. In Crawford v. Washington, the Court held that testimonial statements against a defendant are inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant has had a prior opportunity for cross-examination. In this case, Scalia explained that the crime lab reports were affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause and addressed in Crawford. For that reason, the analysts making the statements must appear at trial.

The dissent argued that forensic evidence is uniquely reliable compared to other types of testimony and that cross-examination of the analysts would be empty formalism. To most people who watch TV shows like CSI, this argument has merit – scientific evidence seems indisputable. But not all forensic analysts are as intelligent and well-educated as Gil Grissom. The Court noted that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials… One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.” Confrontation will help assure accurate forensic analysis by weeding out both fraudulent and incompetent analysts.

The opinion in Melendez-Diaz is available here.

Last Monday, the Supreme Court granted certiorari in a related case, Briscoe v. Virginia. We will follow that case and update on it when it is decided. More information on that case can be found at the Confrontation Blog.

Last week the Supreme Court decided District Attorney’s Office for the Third Judicial District v. Osborne in favor of the District Attorney’s Office. Although this was technically a civil case, it deals with federal constitutional criminal issues. Mr. Osborne was convicted of kidnapping, assault, and sexual assault in the early 1990s. An early type of DNA testing on the main evidence against him cleared other suspects, but could not narrow the perpetrator down to less than 5% of the population. Mr. Osborne sought access to the evidence now to subject it to a newer type of DNA test that can determine whether biological evidence matches an individual with near certainty.

The Court recognized the power of DNA testing in both exonerating wrongly convicted people and confirming the convictions of others. However, the Court’s “dilemma [was] how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.” In a disappointing and surprising 5-4 decision, the Court rejected Osborne’s argument for a Due Process right to DNA evidence.

An insightful analysis of the case by a staff attorney for the Innocence Project is available at this post in the American Constitution Society Blog.

Information on the flaws in the criminal justice system that lead to wrongful convictions of innocent people is available at The Innocence Project’s website, along with information on individual cases. Cases here in Georgia are handled by the Georgia Innocence Project, with information on their website. The Osborne opinion is available here.

In this post last year, we discussed Yeager v. United States, a white collar federal criminal case on appeal to the Supreme Court. The case involved the prosecution wanting to re-try a defendant who had been acquitted on some counts, but the jury had remained undecided on other counts. Because those other counts relied on facts that the jury must have resolved in the defendant’s favor to acquit, the defense argued (and we agreed) that the doctrine of collateral estoppel precluded the prosecution from retrying the issue. The Supreme Court issued its opinion last week, agreeing with us.

We reviewed the facts and legal issues in Yeager in our previous post. The Fifth Circuit Court of Appeals ruled that the acquitted counts meant that the jury found that Mr. Yeager did not have insider information. To prove the hung counts, the prosecution had to show that he had possessed insider information. The Fifth Circuit held that the inconsistency between the jury’s acquittals and hung counts justified a retrial. The Supreme Court declined to review the record to determine whether the Fifth Circuit’s ruling on the fact issue was correctly decided, permitting the Fifth Circuit to revisit the issue. Instead, the Court resolved only the narrower legal question.

Justice Stevens wrote the opinion for the court. He focused on the rule in Ashe v. Swenson, a 1970 case that held that the Double Jeopardy Clause precludes the government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. The government argued, as the Fifth Circuit had held, that the inconsistency between the jury’s decision in acquitting and indecision in the hung counts justified retrial, but the Supreme Court held that courts should scrutinize juries’ decisions, not failures to decide, in identifying what they necessarily determined at trial.

The Court's opinion is available here.

As we discussed in this post, the Supreme Court of the United States agreed to hear media mogul Conrad Black’s appeal regarding whether the honest services fraud statute applies in a purely private setting where the defendant’s conduct risks no foreseeable harm to the putative victims. We are very interested in the outcome of this case because it has the potential to change the law in the Eleventh Circuit (the court that hears federal criminal appeals from Georgia, Florida, and Alabama.) Unfortunately, we will have to wait a while. The appeal will not be heard until after the beginning of the Court’s new term this fall, likely as late as November or December.

As reported over at the SCOTUS Blog, Black has requested bail during the time his appeal is pending. He has served 15 months of a 78-month prison sentence and, if bail is denied, will have served about two years before the Justices decide his case. If his conviction is reversed, those are several months he cannot get back. His lawyers also argue that he should be released from prison in the meantime because his co-defendant, John Boultbee, has been released on a $500,000 bond and allowed to return to Canada to await the Supreme Court’s decision.

You can read Black’s application here.

Last Tuesday, in Abuelhawa v. United States, the Supreme Court ruled that using a cell phone to make a misdemeanor purchase of drugs does not “facilitate” a felony drug distribution crime. The government charged Mr. Abuelhawa with six felony charges, one for each cell phone call, for facilitating the sale of drugs, although his two, first-time, small cocaine purchases qualified only as misdemeanors. Those charges resulted in a potential sentence of 24 years in federal prison, compared with a potential two-year sentence for two misdemeanors. Just for using a cell phone.

The government argued that Abuelhawa’s use of a phone to buy cocaine counted as “facilitation” because it made the drug dealer’s sale easier, hence violating a section of the Controlled Substances Act that makes it a felony “to use any communication facility in committing or in causing or facilitating” felony drug distribution. While at first glance, the common meaning of “facilitate” may give this impression, the result is absolutely absurd. And, as the Court points out, in any sale, the two parties have specific roles and “it would be odd to speak of one party as facilitating the conduct of the other.”

Justice Souter, in his opinion for the unanimous Court, was diplomatic in his criticism of the government’s inane argument. He called it “improbable” and “just too unlikely” because it “comes up short” and “does not follow.” The Court reasoned that the distinction Congress made in the Controlled Substances Act between distribution (a felony) and simple possession (a misdemeanor) makes it “impossible to believe that Congress intended ‘facilitating’ to cause that twelve-fold quantum leap in punishment for simple drug possessors.”

While we are still disappointed with the Court’s other criminal law decision last Tuesday, we at least take solace in that they recognized blatant government overreaching in this case.

Eleventh Circuit case law, the controlling federal law here in Georgia, is at risk of changing next fall, when the Supreme Court will likely decide a criminal case and resolve a split among the circuit courts of appeals.

The mail fraud and wire fraud laws are the bread and butter for federal prosecutors bringing white collar cases. Each of these laws requires a scheme to defraud another person out of “money or property.” For many years, federal prosecutors successfully argued that the word “property” included the right to “honest services” from public employees (such as elected officials). In 1988, the Supreme Court ruled that the word “property” does not include “honest services,” but several months later Congress amended these statutes so as to include the concept of “honest services” within the universe of cases that can be prosecuted under the federal mail and wire fraud statutes. Specifically, Section 1346 of the Federal Criminal Code expands the definition of a “scheme or artifice to defraud” under the mail and wire fraud statutes to encompass schemes that “deprive another of the intangible right of honest services.”

Despite the background of this type of fraud, the concept of “honest services” has now been extended by federal prosecutors beyond situations where a public official may have engaged in fraud. Recently, federal prosecutors are bringing more and more cases against people who work for private companies, arguing that the employee breached his or her duty of rendering “honest services” to the employer.

Last Monday the United States Supreme Court granted certiorari in Black v. United States. The Court will decide whether this Section applies in a purely private setting where the defendant’s conduct did not risk any foreseeable harm to the putative victims.

The case involves media mogul Conrad Black, who built an international newspaper empire from a single Canadian newspaper, eventually owning hundreds of community newspapers, as well as several large newspapers, such as the Chicago Sun-Times and London’s Daily Telegraph. In the late 1990s, Black predicted the affect the internet would have on newspapers and suggested that the company sell most of its smaller newspapers. As a part of those deals, purchasers paid Black for covenants not to compete, which the government construed as a scheme to defraud the company’s shareholders, although the money from those deals would have been paid to a different company controlled by Black and his co-defendant, anyway. The trial court’s instructions permitted the jury to convict even if they found that the shareholders didn’t lose any money. Black was convicted. The Seventh Circuit upheld the conviction, even though the law in at least five other circuits would have required reversal.

In 1999, the Eleventh Circuit here in Atlanta decided United States v. DeVegter, requiring the government to prove that economic harm was at least reasonably foreseeable in a private “honest services” case such as this one. Without this rule, Black argued in his petition to the Supreme Court, “[t]he only obstacle to converting every violation of corporate governance or company rules into federal crimes would seem to be the moment-to-moment whims of federal prosecutors.” We hope that the Supreme Court, when it decides this case, agrees with the Eleventh Circuit.

The Court's docket for this case is available here.
The Seventh Circuit's opinion below is available here.
Mr. Black's petition for certiorari is available here.
The government's brief in opposition is available here.
Mr. Black's reply brief is available here.

Yesterday the Supreme Court eliminated a federal protection of criminal defendants’ right to counsel. Criminal defendants here in Atlanta, Georgia, as well as the rest of the country, now may be interrogated by police even after they secure representation by defense lawyers, if they don’t specifically request the lawyers’ presence or if they are not in police custody.

In yesterday’s Montejo v. Louisiana, the deeply divided Court overruled its 1986 opinion in Michigan v. Jackson, which prohibited police from initiating interrogation of a criminal defendant once he or she had invoked the right to counsel at an arraignment or similar proceeding. Justice Scalia, writing for the majority, reasoned that the rule in Jackson was unworkable because some states appoint public defenders without any request from the defendant, whereas other states require defendants to formally request counsel. That discrepancy led to different treatment of defendants based on only geography. Scalia went on to explain that the Sixth Amendment right to counsel, which Jackson protected, is sufficiently guarded by the Fifth Amendment right to counsel rules proscribed in Miranda v. Arizona, Edwards v. Arizona, and Minnick v. Mississippi.

Frankly, we disagree. The Fifth Amendment protections are limited to only custodial interrogations, so they do not apply to any defendants who are not in custody or who are interacting with police in a non-interrogation situation, such as a line-up. They are significantly narrower protections than Jackson provided. In addition, the whole point of getting a lawyer is that he or she can evaluate the situation and provide advice to the defendant during a very stressful time. Simply Mirandizing a person who has been formally charged and who has already obtained counsel is not sufficient, particularly if that person has not yet had a chance to even meet his or her lawyer, as was the case in Montejo.

We are very disappointed by this decision.

The Court's opinion can be found here.

Because our offices are in Atlanta, our firm primarily handles federal criminal cases in Georgia. However, we also have experience in Florida, as well as Alabama. Two of us have lived and worked in Florida and spent a lot of time driving on I-95, where the events relevant to this case occurred. The majority supports heads-I-win, tails-you-lose government evidence and justifies its decision with facts that, viewed by anyone who has spent any time in Florida, demonstrate racial profiling.

The case is United States v. Bautista-Silva. In March 2008, a Border Patrol agent was parked in a marked car at a rest stop along I-95 in Orlando, Florida, watching the southbound traffic. He saw a Chevy Suburban with California plates with two Hispanic men in the front seat and four more passengers in the back. As it drove past the rest area, it passed a pickup truck pulling a flat trailer. At this point the agent decided that this was an alien smuggling case and took off to catch the SUV. He had to drive 90 miles per hour to catch up. When he finally caught up, the driver slowed down to let him pass. None of the passengers made eye contact, even when the agent waved at them. That is when he pulled them over.

The United States District Court for the Middle District of Florida held that the agent lacked reasonable suspicion to stop the vehicle and granted the defendant’s motion to suppress all statements and evidence obtained as a result of the stop. The Eleventh Circuit Court of Appeals reversed that decision, holding that the agent had acted based upon specific and articulable facts that, under the totality of the circumstances, created a reasonable suspicion of illegal activity. Judge Pryor wrote the majority opinion, joined by Judge Farris from the Ninth Circuit, and Judge Barkett dissented.

The “specific and articulable” facts were:

1. The vehicle was an SUV;
2. The six passengers were Hispanic males;
3. The vehicle was registered in California;
4. They traveled south on I-95;
5. They passed by a pick-up truck pulling a flat trailer;
6. The defendant may have accelerated, then slowed down when the marked car caught up; and
7. The passengers refused to look at the agent.

Judge Pryor ignored the usual rule that appellate courts construe the facts in the light most favorable to the party who prevailed in the court below (in this case, the defendant.) Instead, he focused on the agent’s testimony that smugglers often use large vehicles to transport illegal aliens, California is a known staging area for human smuggling, and the passengers were nervously avoiding his attention. The judge also said that southbound I-95 is a route known to be used by smugglers to transport aliens to South Florida and characterized the defendant’s driving as an attempt to hide behind the flat trailer, then evade the agent by driving erratically.

The district court judge in Florida and Judge Barkett, who has spent most of her life living in Florida, viewed most of the facts as neutral and too commonplace to lend any meaningful weight in a totality of the circumstances analysis. Our firm’s former Florida residents agree. SUVs are too popular, I-95 is too crowded, and tourism is too large a sector of Florida’s economy for those facts to support reasonable suspicion, even when added together. In addition, the District Court found no evidence that smugglers use I-95 disproportionately and there was no evidence that the defendant had even seen the agent’s car when passing the trailer.

And, of course, the occupants were Hispanic. Did I mention this case took place in Florida? According to the U.S. Census Bureau, 20 percent of Florida’s population was of Hispanic or Latino origin in 2007. They were headed toward Miami-Dade County, where 62 percent of the population was of Hispanic or Latino origin in 2007.

In weighing the occupants’ “suspicious” behavior, the Court majority supported the common heads-I-win, tails-you-lose government approach to evidence. The defendant “hid” behind the flat trailer, which, by the way, was not an eighteen-wheeler or other object that could actually hide a Suburban from view. He also “evaded” the agent, staying on the road despite an available exit and driving with the flow of traffic. He drove “erratically” by slowing down when approached by a marked car. The passengers were “nervous” because they didn’t look at the agent (although, in our experience, agents tend to claim that looking at them is suspicious behavior, too.)

The Border Patrol agent saw Hispanic men in an SUV and had a hunch they may be illegal immigrants. Because a hunch isn’t legally sufficient, he had to come up with specific, articulable facts to support his decision to pull them over. We are disappointed that the majority’s zeal for helping the police seems to have led to a ruling that allows law enforcement officials to engage in racial profiling.

On Monday the Supreme Court issued its opinion in Flores-Figueroa v. United States, resolving a split in the circuits in favor of criminal defendants. The Court held that a federal aggravated identity theft statute requires the government to prove that the defendant knew that the means of identification that he or she used, transferred, or possessed actually belonged to another person. This decision overrules a prior decision by the Eleventh Circuit Court of Appeals, which hears appeals from federal cases in Georgia, Florida, and Alabama.

The statute is 18 U.S.C. § 1028A, entitled “Aggravated Identity Theft,” which provides, in pertinent part:
Whoever, during and in relation to any felony violation enumerated in [§ 1028A(c)], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

The analysis of the statute involved its syntax – the sentence diagrams of grade school. The basic sentence that the Court analyzed was “Whoever knowingly uses identification of another.” In this sentence, “whoever” is the subject, “uses” is a transitive verb, and “identification” is the direct object. “Of another” is a prepositional phrase modifying the direct object. The dispute boiled down to whether the adverb “knowingly” modified the entire predicate, including the propositional phrase. The government argued, and the Eleventh Circuit held in United States v. Hurtado, that the knowledge requirement in the statute did not extend to the phrase “of another person.” The Supreme Court disagreed “as a matter of ordinary English grammar.”

Justice Breyer, writing for the majority, first pointed out that it would be nonsensical to claim that “knowingly” modified only the verb, penalizing someone who uses “a something, but does not know, at the very least, that the ‘something’ (perhaps inside a box) is a ‘means of identification.’” Rather, “knowingly” must modify both the verb and the direct object.

The government argued that “knowingly” applies to all but the last three words, which are the propositional phrase modifying the direct object. The Court explained, though, that “[i]n ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.” In this statute, the object was set forth as modified by the prepositional phrase. The opinion included several examples of sentences with a similar structure in which a listener would assume “knowingly” modified both the verb and the direct object, but could not come up with any sentences that would lead the hearer to believe that the adverb modifies only a transitive verb without the full object.

Following its syntactic analysis, the Court emphasized its consistency with how courts ordinarily interpret statutes, saying, “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word “knowingly” as applying that word to each element.” Criminal defense attorneys can use this reasoning to renew challenges to other statutes in which mens rea has not been applied to all elements, including statutes involving minors and aliens ineligible to enter the country. This potential for new challenges makes this decision extremely important.

The Court also rejected the government’s legislative history argument and practicality of enforcement concerns.

The opinion in Flores-Figueroa is available here.

We first discussed Dean v. United States in December, when the Supreme Court agreed to review the Eleventh Circuit’s opinion of the federal case. During a robbery of a bank in Rome, Georgia in 2004, Christopher Michael Dean accidentally fired his gun while taking money from a teller drawer. No one was injured.

The Eleventh Circuit, here in Atlanta, Georgia, upheld Dean’s eighteen-year sentence, which included a ten-year minimum sentence for firing the gun. We hoped that the Supreme Court would overturn this decision, because such significant criminal liability should never be imposed without criminal intent OR injury.

In the last couple of weeks, the Supreme Court has guarded our 4th Amendment rights against unlawful searches and protected us from secret detention and government overreaching. This week, however, the Court ended its short streak with Dean. The Court held that a ten-year mandatory minimum sentence applies if a gun is discharged during a violent or drug trafficking crime, even if the gun is fired entirely by accident. This disregard for the most basic element of criminal liability, mens rea, is extraordinarily disappointing.

The Supreme Court's opinion is available here.

In 1996, in United States v. Mejia, the Eleventh Circuit federal appeals court in Atlanta, Georgia, held that a court order granting a criminal defendant’s motion for additional time to file pretrial motions tolled the Speedy Trial clock for the duration of the extension of time. Last July, the Eight Circuit agreed with the Eleventh Circuit and five others in United States v. Bloate. However, two circuit courts of appeals, the Fourth and the Sixth, have held the opposite. Due to this split, the Supreme Court of the United States has granted certiorari in Bloate. We hope the justices of the Court agree with the Fourth and Sixth Circuits when it hears arguments in the fall.

The federal Speedy Trial Act requires that a criminal defendant be tried within 70 days of whichever is later: the indictment or the defendant’s first appearance in court. In calculating the 70-day period, the Act excludes “delay resulting from other proceedings concerning the defendant, including but not limited to… delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Rather than the time between filing and disposition of motions, Bloate and Mejia have dealt with the time defendants request for preparing motions, prior to filing.

The government and the majority of circuit courts have argued that such time should be excluded from the 70-day period because that time is “delay resulting from other proceedings concerning the defendant.” They say that the phrase “including but not limited to” in the Speedy Trial Act indicates that the specifically enumerated delays are only examples, rather than an exhaustive list. The Fourth and Sixth Circuits point out, though, that the Congressional decision to specifically address a time period involving pre-trial motions, but to limit it to the time between filing and disposition, strongly indicates that Congress did not intend to exclude the preparation time from the Speedy Trial Act.

One particularly disconcerting aspect of Mejia did not factor into the Bloate decision, but we hope that the Supreme Court takes notice of the issue. The district court judge in Mejia granted an indefinite extension of time, allowing for filing of pre-trial motions until fifteen days prior to trial, rather than extending the deadline a certain number of days. Trial did not begin for another ten months in that case. The opinion does not reveal when additional motions were filed, if any, and whether any non-excludable delays accounted for any part of that ten-month period. Furthermore, in this multi-defendant case, the request for extension of time by only one defendant resulted in an extreme excludable delay for all of the codefendants.

The Eleventh Circuit placed the burden on the defendant, suggesting he limit his request for extra time to a definite period, choose not to request an extension at all, or object to an open-ended extension. Just three years later, though, in United States v. Williams, the Eleventh Circuit decided a similar question regarding a court’s sua sponte grant of addition time for filing motions, and stated, “[W]e believe that the burden should not be on the defendant to take affirmative steps to keep the speedy-trial clock running.” Even failing to consider the affect one defendant’s actions can have on all of his codefendants, such a view of the defendant’s burden is a fundamental principle of criminal law.

The United States Supreme Court must not address the issue of defendants’ requests for additional time without taking into consideration whether the court limits the extension to a definite time period. An indefinite period until only days before trial allows courts to vitiate the Speedy Trial Act altogether. We most hope, of course, the Supreme Court renders this point moot by agreeing that extensions granted for filing pre-trial motions are not excludable for purposes of calculating time under the Speedy Trial Act.

In a potentially huge decision for criminal law in Georgia, Florida, and Alabama, the Eleventh Circuit federal appeals court in Atlanta held that twenty-one days was an unreasonably long time for law enforcement to wait before obtaining a search warrant after seizing a man’s computer hard drive. Because the circumstances of this case, United States v. Mitchell, failed to justify the three-week delay, the trial court should have suppressed the evidence discovered on the hard drive.

The Fourth Amendment’s protection against unreasonable seizures both guards us against unreasonable arrests and protects our possessory interests in personal property. Even with probable cause to seize property, the duration of the seizure pending the issuance of a search warrant must still be reasonable. Courts determine reasonableness by weighing the government interests against private interests. This rule ensures the prompt return of property, should a search reveal no incriminating evidence.

In Mitchell, the Court acknowledged the substantial possessory interest people have in their computers’ hard drives. Computers are heavily relied upon for both personal and business uses, storing information including financial information, passwords, photos, e-mails, and countless other items. The Court called the hard-drive “the digital equivalent of its owner’s home, capable of holding a universe of private information.”

On the other hand, in this case, the government’s justification for the delay was less than compelling. Although the eventual search warrant application contained only three pages of original content, the hard-drive was detained for three weeks due to an agent’s attendance at a two-week training program. The agent “didn’t see any urgency” in obtaining the warrant because of the defendant’s admission that the hard drive contained contraband. The Court noted that another agent could have been assigned the task and that the defendant’s admission could have been wrong.

The Court emphasized that this rule depends on all of the circumstances of the case. The opinion noted situations in which the Court would be sympathetic to delays, such as where resources of law enforcement are overwhelmed. However, this case will potentially impact future cases involving seizure of computers, due to the importance (rightfully) placed on the private interests in such property.

The full opinion is available here.

Here in Atlanta, we have been involved in many criminal cases in which police arrested people for traffic offenses, then searched their vehicles and found evidence of completely unrelated crimes. The search incident to arrest rule has been unfairly used by police as an investigatory tool since New York v. Belton extended the rule in Chimel v. California to automobiles in 1981. Last Tuesday, the United States Supreme Court, in Arizona v. Gant, limited this rule to constitutional bounds. Dividing down unusual lines, the Court formulated a new rule that is more in keeping with the original rationale for Chimel and Belton. The rule will apply in both federal and state cases.

Chimel was decided in 1969, holding that police may search the space within an arrestee’s immediate control, “from which he might gain possession of a weapon or destructible evidence.” Belton extended the rule to vehicle searches, but has unfortunately been widely understood to permit vehicle searches even where the arrestee could not gain access to a weapon or evidence. Police have been trained to secure arrestees, then routinely search everything within the passenger compartment of the car. Though these searches have no officer safety or preservation of evidence justification, the police have on occasion acted as if the Belton rule gave them the right to search wherever and whenever they wanted to do so.

In last week’s case, Mr. Gant happened to be at a house that police thought may contain drugs, based only on an anonymous tip. With no probable cause to search Gant or the house for drugs, the officers later arrested Gant after he drove into the driveway, on a warrant for driving with a suspended license. After Gant had been handcuffed and placed in the back of a patrol car, officers searched his vehicle and found a gun and a bag of cocaine. When asked under oath why they performed the search, one of the officers responded, “Because the law says we can do it.”

A chorus of scholars, courts, and Supreme Court justices has called for the Court to revisit Belton, questioning its fidelity to the Fourth Amendment and its clarity. The majority in Gant finally rejected the overbroad reading of Belton and held that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” The Court further held that a search might be justified when it is reasonable to believe that evidence related to the crime for which the person is arrested may be found in the vehicle.

Justice Alito wrote the dissenting opinion in this case and was joined by Chief Justice Roberts, Justice Kennedy, and, in part, Justice Breyer, who disagreed with Alito that Belton was well-reasoned. The dissent focused on stare decisis, insisting that the majority was over-ruling Belton, without properly addressing the abandonment of prior precedent. Justice Stevens, writing for the majority, and Justice Scalia, in a concurring opinion, stressed that stare decisis does not justify unconstitutional results.

We are relieved that the court finally limited this rule, which police have taken advantage of for nearly thirty years to invade citizens’ privacy and conduct searches without probable cause. However, we take issue with the second part of the rule, permitting a vehicle search incident to arrest when officers have “reason to believe” they might find evidence related to the crime of arrest. The Court does not address why it chose this standard, rather than probable cause. This part of the rule will create confusion and could tempt officers to fabricate potential crimes in order to search the car in hopes of finding evidence.

Demarick Hunter is serving a sentence of 15 years and 8 months in federal prison for possessing a firearm. The Armed Career Criminal Act (ACCA) provides for a minimum sentence of 15 years for career criminals who carry firearms. Mr. Hunter’s prior convictions do not qualify him as a career criminal under the ACCA. The Eleventh Circuit acknowledged that he is serving an illegal sentence, but refused to allow him to appeal it.

The ACCA applies to people with at least 3 prior convictions for violent felonies or drug offenses. Mr. Hunter was sentenced as a career criminal under this act because in addition to one conviction for a drug offense, his two prior convictions for carrying a concealed weapon were considered violent felonies. Last year the Eleventh Circuit acknowledged that carrying a concealed weapon may not be a violent felony. In the Hunter case last month, the Eleventh Circuit agreed that Hunter was erroneously sentenced, but denied his request for a certificate of appealability because “a sentencing error alone does not amount to a substantial showing of the denial of a constitutional right.” The miscarriage of justice in this decision for Mr. Hunter is maddening in and of itself.

However, there is an even more infuriating aspect to this decision. The Court notes at the end of this decision that Mr. Hunter can’t show ineffective assistance of counsel because his lawyers didn’t argue at sentencing or direct appeal that carrying a concealed weapon was not a violent felony under the ACCA. Most lawyers wouldn’t have done so. At the time of Mr. Hunter’s sentencing and direct appeal, binding case law held that carrying a concealed weapon was a violent felony.

The reason this is so galling is that Mr. Hunter’s lawyers, like many attorneys, presumably did not challenge this law because judges often get upset with lawyers for raising challenges that are contrary to established precedent. Judges think lawyers are being unprofessional when they raise such challenges. Down the road, though, when the law finally turns in the favor of defendants, they suffer the consequences. Had Mr. Hunter’s attorneys raised this argument at sentencing and on appeal, the outcome of this case would have been quite different.

Lawyers must not be afraid of upsetting trial judges by challenging bad law. We must be willing at the trial and appellate level to raise challenges that may fly in the face of existing precedent. The Hunter case reminds us yet again of why we fight with such resolve.

The opinion in the Hunter case can be found here.

Last Tuesday, the Eleventh Circuit Court of Appeals issued its opinion in the Farias-Gonzalez case, which originated in a metro-Atlanta area of DeKalb County, Georgia. Judge Cox wrote for the Court, which held that identity-related evidence is not suppressible when offered in a criminal prosecution only to prove who the defendant is. The opinion is available here.

In 2006, Mr. Farias-Gonzalez was working on his car in DeKalb County, Georgia when a couple of federal immigration agents saw his tattoos and suspected he might be in a gang. After Mr. Farias-Gonzalez told them that he was not affiliated with any gangs, one of the agents lifted his sleeve to get a better look at his tattoos, then asked him for ID. He gave them three forms of identification identifying himself as Norberto Gonzalez. They took his picture and then ran a check on Norberto Gonzalez, finding no records associated with that name and the birth date on the ID. Concluding he may be in the country illegally, they fingerprinted him on a portable electronic machine. That machine identified him as Jose Farias-Gonzalez, who had previously been deported from the United States.

The District Court found, and on appeal the Eleventh Circuit assumed for the sake of argument, that the agents committed an unconstitutional search and seizure when lifting Mr. Farias-Gonzalez’s shirt sleeve. In the usual case, all evidence found as a result of an unconstitutional search would be excluded from use at trial. In this case, however, where the evidence was offered only to prove who the defendant was, the Court determined that the social costs of excluding the evidence were too great.

The exclusionary rule is one of the most important rules in criminal law. It is a legal technicality that protects all of us, guilty and innocent, from federal and state police misconduct. The rule prevents prosecutors from using evidence that is found in violation of the defendant’s constitutional rights. Because the rule makes the cost of a constitutional violation so high, it deters police from ignoring the rights that we fight so hard to protect.

The exclusionary rule applies only where its deterrence benefits outweigh its social costs. In the Farias-Gonzalez case, the Court weighed the societal costs and deterrence benefits of applying the exclusionary rule to Mr. Farias-Gonzalez’s photographs and fingerprints. The Court found that the deterrence benefits in this case were minimal because identity evidence is freely obtainable and the prosecution could re-indict as soon as the charges are dropped.

The Court noted the argument that, without the deterrence effect of the exclusionary rule, immigrants would be subject to rampant violations, but the Court rejected that argument hastily, saying that civil lawsuits will provide sufficient deterrence for constitutional violations. We disagree. Sovereign immunity is a significant bar against those civil suits. In addition, many immigrants do not have the means to bring those lawsuits, let alone the knowledge that any rights were violated. Deported defendants face still more considerable barriers.

Furthermore, although the deterrence benefits in this particular case were minimal, the exclusionary rule could prevent much more substantial violations than the lifting of a sleeve. Although police may freely obtain fingerprints from persons they meet on the street, police are now less deterred from unconstitutionally stopping vehicles with no probable cause or reasonable suspicion of criminal activity, simply to obtain the fingerprints of the occupants. They are less deterred from unconstitutionally entering homes without consent in hopes of fingerprinting illegal immigrants. They may find illegal immigrants that way, but they also may find legal immigrants and American citizens who have done no wrong.

Because police are now less deterred from violating your rights and mine, we hope that the United States Supreme Court takes this case and reverses it. The deterrence benefits of the exclusionary rule, even for only identity-related evidence, are far too important and our constitutional rights are far too valuable to sacrifice for the sake of finding a few more illegal immigrants.

As you may remember, we have been closely following United States v. Svete, which involves the federal criminal mail fraud statute, in the Eleventh Circuit Court of Appeals in here Atlanta, Georgia. In this post back in April 2008, Paul Kish explained the facts of the case and the original Eleventh Circuit’s decision’s potential implications for criminal defendants. In early July, Carl Lietz reported in this post that the Court had vacated its opinion in Svete and decided to re-hear the case before the entire Court. He later reported in this post that the Court had identified the issues on which it would focus. In September we again kept you updated with this post by linking to the briefs that had been submitted to the court by the defendants and the National Association of Criminal Defense Lawyers.

This Monday, the Eleventh Circuit Court of Appeals finally filed their en banc opinion in this case. Unfortunately for criminal defendants, the Court overruled its very sensible opinion in United States v. Brown and broadened its definition of mail fraud, and by extension, probably the other types of federal fraud, as well. We hope that this is not the final installment in this case, as we believe that the Court violated the contemporary understanding doctrine in this case.

Elementary social studies classes teach about one of the most important aspects of our government: the separation of powers between the three branches of government. This separation of powers provides checks and balances so no single branch becomes too powerful. This system, established by the framers of the Constitution, is the basic foundation of our democracy.

The contemporary understanding doctrine helps maintain the separation of powers by preventing judges from usurping Congress’s legislative role. It mandates that judges interpret laws by taking their ordinary meaning at the time Congress enacted them, rather than giving laws a modern interpretation. The idea is that Congress is the branch of government that should update laws, not judges. Judges should not be lawmakers. Our elected representatives in Congress are the lawmakers.

In this case, the Eleventh Circuit used modern sources to update (and expand) its prior interpretation of the very old mail fraud statute. By disregarding the definition of fraud as it was intended at the time the statute was made law, the Court has legislated from the bench. This decision violates the fundamental principles of democracy.

Chief Judge Edmondson, who wrote the opinion in Brown, wrote a concurring opinion in Svete that stressed the necessity of capturing the historical meaning of the statute as Congress enacted it. He concurred in the result because he believed the error was harmless due to the complexity of the scheme in this case, but his analysis of the law was faultless. The historical meaning of fraud, combined with the rule of lenity, "requires the government to show that the pertinent scheme or misrepresentation was capable of inducing reliance on the part of a reasonable person exercising ordinary prudence for the protection of his own interests." We hope that the United States Supreme Court will decide to hear this case on appeal and agrees with Chief Judge Edmondson.

Did you know that, even after a jury has acquitted a criminal defendant of charged crimes, a federal court judge may still consider that conduct at sentencing? This unfair and disrespectful-to-juries rule of law is barred by nearly every state, but is permissible in federal courts. We hope the U.S. Supreme Court will soon correct the situation on appeal from a recent Sixth Circuit case.

The Eleventh Circuit Court in Atlanta, Georgia has addressed this injustice and permitted it to continue. In July 2006, the court issued an opinion in U.S. v. Faust, a case in which Nathan Faust had been convicted of possession with the intent to distribute cocaine, but acquitted of possession with the intent to distribute ecstasy and two gun charges. In calculating Faust’s sentence, the District Court determined the initial Sentencing Guidelines range by including the 94 grams of ecstasy that Faust had been acquitted of possessing. The Court then added two more levels to his sentence for possession of a dangerous weapon, despite his acquittal on the gun charges. Faust objected on the basis of his acquittal, but the Court overruled his objection, stating that the Guidelines were advisory and its calculations were based on a preponderance of the evidence.

Faust appealed his sentence on several grounds, one of which being the Sixth Amendment right to a jury trial. He argued that even when the Sentencing Guidelines are applied in an advisory manner, the Sixth Amendment right to a jury trial prohibits courts from considering relevant conduct for which a defendant was acquitted when making sentencing calculations. The Eleventh Circuit rejected his argument because both Eleventh Circuit and Supreme Court precedent allowed such consideration when the relevant conduct was proved by a preponderance of the evidence. Judge Barkett wrote a lengthy special concurrence stating that she concurred in the decision only because she was bound by Eleventh Circuit precedent, further saying that she “strongly believe[s] this precedent is incorrect” and that the Supreme Court precedent cited by the majority opinion has no bearing on this case. She concludes her concurrence with, “I do not believe the Constitution permits this cruel and perverse result.”

The Faust opinion is available here.

In the recent Sixth Circuit case, Roger Clayton White was the getaway driver for a bank robbery committed by his brother and an accomplice. He led the police on a lengthy car chase, which ended when White crashed into a roadblock. White was convicted of armed robbery and possessing a firearm with the serial number removed. The court considered acquitted conduct in calculating his sentence, including discharging a firearm during the robbery and assaulting a law enforcement officer during flight. This consideration of acquitted conduct resulted in White’s sentence nearly tripling, from 8 years in prison to 22. The Sixth Circuit, sitting en banc, affirmed the sentence, stating that the sentence passed constitutional muster because it did not increase the sentence beyond the statutory maximum for the convicted crime.

The White opinion is available here.

White’s attorney has said that the case will be appealed to the United States Supreme Court. Let’s hope they take the case and correct this shocking and unconstitutional rule of law.

In a case arising out of the Eleventh Circuit Court of Appeals in Atlanta, Georgia, the Supreme Court of the United States limited the exclusionary rule by holding that where an unlawful search results from isolated police negligence, the evidence obtained from that unlawful search may still be used against a criminal defendant.

The exclusionary rule generally protects citizens against violations of their rights under the search and seizure provisions of the Fourth Amendment. The Fourth Amendment provides people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It doesn’t expressly provide for any remedies when that right is violated, but the Courts established the exclusionary rule, which forbids the use of improperly obtained evidence at trial. The rule is useful for it’s deterrent effect: the police are less likely to violate citizens’ rights if they won’t be able to use evidence found as a result of their violation.

In this case, Herring v. United States, police in Alabama arrested and searched Bennie Dean Herring under the mistaken belief that a warrant for his arrest existed. During that search, they found methamphetamine and a pistol, which he was not allowed to possess because he was a convicted felon. Soon after the search, the police discovered that the warrant had been recalled 5 months earlier, but their computers had not been updated.

Because there was no warrant or probable cause for the search, it was a violation of Herring’s Fourth Amendment rights. Herring argued that the exclusionary rule required suppression of the drugs and pistol found during the search. The judges in the Middle District of Alabama, however, denied his motion to suppress because in this case, where the police acted under a good faith belief that a warrant was outstanding, there was “no reason to believe that application of the exclusionary rules here would deter the occurrence of any future mistakes.” Herring appealed and the Eleventh Circuit agreed, noting that the police error was negligent, rather than deliberate, and the benefit of excluding the evidence “would be marginal or nonexistent.”

The United States Supreme Court took this case because other courts have excluded evidence in similar cases. They resolved the conflict in favor of the Eleventh Circuit’s judgment, stating that “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’” The Court divided along ideological lines, with Chief Justice Roberts writing the opinion and joined by Justices Alito, Kennedy, Scalia, and Thomas. Justice Ginsburg dissented, joined by Justices Stevens, Souter, and Breyer.

The Court's opinion can be found here.

The United States Supreme Court issued an opinion on Tuesday resolving a split in the circuits regarding whether failure to report for prison is a violent felony for the purposes of the Armed Career Criminal Act (ACCA). This federal law provides for a mandatory minimum sentence of fifteen years or up to life imprisonment for possession of a firearm by an individual with three previous convictions for violent felonies or serious drug offenses.

In the case decided this week, Deondery Chambers pleaded guilty to a charge of being a felon unlawfully in possession of a firearm. Chambers conceded that two of his prior convictions qualified under the ACCA, but disputed the third conviction, which was for failure to report to a penal institution. This conviction resulted from his failure to report to a local prison for weekend confinement on four occasions.

The District Court treated this conviction as a form of “escape from a penal institution” and held that it qualified as a violent felony. Mr. Chambers appealed from this decision, but the Seventh Circuit Court of Appeals agreed with the District Court. The First Circuit has also held that failure to report is a violent felony, but the Ninth Circuit has held that such a crime does not qualify. The Supreme Court granted certiorari to resolve this split in the circuits.

The statutory definition of “violent felony” in the ACCA includes crimes “punishable by imprisonment for a term exceeding one year” that also involve “conduct that presents a serious potential risk of physical injury to another.” The Department of Justice argued that failure to report for prison is such conduct and that “a failure to report reveals the offender’s special, strong aversion to penal custody.” The Court was not convinced by this argument.

The Court stated that this type of crime, which “amounts to a form of inaction,” is a “far cry from the ‘purposeful,’ ‘violent,’ and ‘aggressive’ conduct potentially at issue” in the specific crimes enumerated as violent felonies in the ACCA. Addressing the District Court’s analogy of failure to report to escape, the Court said that the behavior underlying failure to report is less likely to involve risk of physical harm than the more aggressive behavior underlying escape. The Court reviewed a United States Sentencing Commission report that “strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury.”

Justice Breyer delivered the opinion of the Court, which held that failure to report falls outside the scope of the ACCA’s definition of “violent felony.”

On November 14, the United States Supreme Court agreed to review an Eleventh Circuit decision interpreting a federal criminal law. This decision held that firing a gun during a violent crime requires a sentence of at least ten years, even if the gun went off unintentionally. The Eleventh Circuit is located in Atlanta, Georgia and hears appeals from federal cases in Georgia, Florida, and Alabama. By hearing this appeal, the Supreme Court will remedy a discrepancy between the circuit courts.

In 2006 Christopher Michael Dean was convicted of taking by force and discharging a weapon during a violent crime. During an armed robbery of a bank in Rome, Georgia on November 10, 2004, Dean accidentally fired his gun while grabbing money from a teller drawer. He was sentenced to 18 years in prison.

A federal criminal law requires a minimum of ten years in prison for discharging a firearm during a violent crime. This ten-year sentence is in addition to the punishment for the underlying offense. Two federal appellate courts, the Ninth Circuit and the D.C. Circuit, have held that the law requires intent. In other words, in those circuits a defendant must intend to fire the gun to incur the additional ten years. The Tenth Circuit, however, has held that the law applies even when the discharge of the weapon is unintentional. This February, the Eleventh Circuit sided with the Tenth Circuit.

This split in the circuits could result in criminal defendants receiving drastically inconsistent sentences for similar crimes. In this case, Dean’s sentence was more than doubled due to his mistake. Under the Tenth and Eleventh Circuits’ decisions, the same result would occur for defendants in nine states, including Georgia. But in nine other states and Washington, D.C., defendants who accidentally fire their guns would receive significantly shorter sentences under the Ninth and D.C. Circuits’ decisions. The Supreme Court will resolve this inconsistency when they hear this case.

The Supreme Court docket for this case is available here and the Defendant’s reply in support of his petition is available here.

Some prosecutors are a little like complaining children, they are never satisfied unless they get their way, and they will continue to whine for a long time until they do. This past Friday, in an appeal involving a white collar federal criminal prosecution the Supreme Court took a case to answer whether federal prosecutors can get a second bite at the apple when at the first trial the defendant was acquitted of the major counts, the jury hung on other counts, and in finding the defendant not guilty the jury must have resolved the facts in the defendant's favor. (Defendant's Petition here)

The defendant was involved in the Enron mess. He was charged with conspiracy, mail and wire fraud, securities violations, insider trading and for laundering the money related to the insider trading. The jury found him not guilty of everything except the insider trading and money laundering, and on these charges, they were unable to reach a verdict. The prosecutors tried to crank up a new set of charges based on the areas where the jury did not reach a verdict. The defendant pointed to the Double Jeopardy protection which includes what we call "collateral estoppel". This is the issue the Supreme Court will address in the case.

The collateral estoppel question is both a technical legal issue, along with being a common-sense concept that the average man or woman on the street can figure out (think "Joe the Plumber" gets prosecuted a second time when the first jury found him innocent on basically everything charged). Here's the technical description. Under the rule of collateral estoppel, when a first jury necessarily decides a certain fact against a party, that same party is prevented (or what as we lawyers say, is "estopped") from again trying to litigate that same fact at a later trial. However, what happens when a first jury rules for the defendant, but the jury for some reason is unable to reach a verdict on other charges that have the same basic factual underpinnings? Some of the federal courts say that the hung counts prevent the courts from being certain that the facts underlying the acquitted counts were necessarily found in the defendant's favor. Other federal courts rule in the complete opposite direction: saying that it makes no sense to even consider the charges where the jury was unable to reach a verdict when deciding whether certain facts were necessarily found in the defendant's favor. These inconsistent rulings were likely the major reason the Supreme Court agreed to take the case involving the Enron defendant.

As I said above, the question in this case is both highly technical, yet also something that non-lawyers can grasp. Most folks would understand that when you go through a trial and the jury finds you not guilty on basically everything, prosecutors should not get a second chance. Let's hope that the Supreme Court remembers to apply the Constitution that most of us live under, and not the version wanted by some whining prosecutors who will do anything to get their way.

Recently, the Eleventh Circuit (which is headquartered here in Atlanta, Georgia) identified the issues that it will address in a federal criminal appeal involving the federal mail fraud statute. As both Paul Kish and I have discussed here and here, one of the main issues in the case is whether the pattern jury instruction that courts typically utilize in federal fraud cases accurately defines what the government must prove in order to convict an individual who is charged under the federal mail fraud statute.

In Paul's previous post, he noted that, initially, the court of appeals concluded that the pattern jury instruction is deficient in that it failed to require the government to prove that the defendant participated in a scheme that was "reasonably calculated to deceive persons of ordinary prudence and comprehension." Therefore, since the pattern instruction failed to include this important language, the Eleventh Circuit reversed the fraud convictions in the Svete case.

Svete's victory, however, was short lived. As I previously discussed, not long after this ruling, the Eleventh Circuit vacated its opinion and ordered that the case be heard by the entire court, rather than just the three judges that sat on the panel. I also noted that although the opinion vacating the initial ruling did not identify the issues that the Court will focus on in the en banc sitting, it is safe to assume that the jury instruction issue would in fact be the focus.

Recently, the Court confirmed that it will indeed focus on the jury instruction issue when the case is heard by the entire court. According to a letter recently sent to the parties in the case, the Court will focus on "whether the district court erred when it gave the pattern jury instruction about mail fraud . . . and declined to instruct the jury that the government must prove that the defendants devised or participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension." In addition, however, the Court will also address whether it should overrule the decision that established the rule which now requires the Government to prove that a defendant participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension. As noted previously, this is an important case, and one that should be followed closely by attorneys that defend individuals charged with white collar crimes.

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.

I recently posted a blog entry about the review on appeal of federal criminal sentences by the the 11th Circuit Court of Appeals, a court that covers Georgia, Florida and Alabama. Now comes another case, United States v. Pugh, which seems to show that this is still an unresolved issue for federal criminal cases in these three states.

Readers will remember the basic question. After the recent Supreme Court decision in Gall v. United States, federal appeals courts are supposed to give "great deference" to a sentencing judge who decides to give a more lenient, or more severe sentence than otherwise called for by the Sentencing Guidelines. Shortly after the Gall case was issued, the Eleventh Circuit issued a couple of rulings that seemed to indicate some level of dissension among the judges as to how much deference should be given to lenient sentences. The bottom line from those cases, and virtually every other case issued after the Supreme Court decision, is that a sentencing judge will be affirmed when he or she decides to give a sentence either below or above what is called for by the Sentencing Guidelines.

All of this was true until last week, when the Pugh case was issued. That was a possession of child pornography case, where the Public Defender from the Southern District of Alabama convinced the sentencing judge that probation was a good sentence. The government appealed, and the 11th Circuit reversed. In a lengthy and strident opinion written by Judge Stanley Marcus, the Court of Appeals basically said that probation can never be a reasonable sentence for such a case. Judge Marcus essentially inserted his own opinion of reasonableness for that of the judge who sat eye-to-eye with the defendant.

Here at Kish & Lietz, we have a somewhat similar case pending in the 11th Circuit. Our client pled guilty to insider trading, the sentencing judge imposed six months home confinement and probation, and the government appealed. The Panel of three judges from the 11th Circuit reversed, but this happened just shortly before the Supreme Court decision in Gall. We have asked them to rehear the case, or for all of the judges on the 11th Circuit to re-consider the matter.

The high profile prosecution of actor Wesley Snipes in Orlando, Florida seems to be an example of the "perfect storm" phenomenon. The combination of publicity, taxes and race has led to a variety of interesting rulings and tactics in this federal criminal tax case. These factors are a lesson to other potential high profile targets who fall into the sights of aggressive federal prosecutors. The main lesson: get good accounting, legal and public relations advice very early on.

Mr. Snipes was indicted in federal court in Orlando, and charged with two other men with a complicated scheme to avoid paying taxes, and also with improperly requesting a $12 million dollar refund. Prosecutors claim that Mr. Snipes asked for a refund, and then later stopped filing tax returns altogether based on a legal theory created by the other two defendants.

Criminal tax cases are in some sense very complicated, yet in other ways, they are simple. Too many people believe they need a lawyer well-schooled in the intricacies of the Internal Revenue Code when the feds bring a criminal tax case. While the lawyer obviously needs to understand the tax law, it is very important to remember that it still is a criminal case, the sort of legal proceeding best handled by experienced criminal defense attorneys. It appears that some of this confusion between the two types of lawyers has come up in the Snipes case. For example, Mr. Snipes asked the trial judge to let him switch lawyers on the eve of trial, supposedly because the first lawyer simply did not understand what was going on in a criminal case. The trial judge believed this tactic was merely a ploy, but later delayed the trial because an insurmountable conflict developed between Snipes and the attorney.

In another development, Mr. Snipes claims that race played a role in which charges were brought against him. He contended that he was indicted on more charges than his white co-defendants, and that prosecutors used his race as a reason for charging him more harshly than the others.

The defense team also tried to get a change of venue, to remove the case from Orlando, a request rejected by the trial judge. Mr. Snipes's lawyers then tried to raise this issue to a higher court right away, what we call an "interlocutory appeal." Yesterday, the Eleventh Circuit Court of Appeals rejected this interlocutory appeal. As a result, Mr. Snipes's case will be back on the docket in Orlando soon, and he will either have to go to trial or work out some kind of deal.

Again, this case is another example of a perfect storm: a combination of factors that makes it very difficult for a defendant to get a fair trial. Status, race, publicity and tax concerns always make it difficult to defend such cases.

There are battles brewing over appellate review of federal criminal sentences. The recent decision from the United States Supreme Court in Gall v. United States appeared to end these battles, but recent cases show that the controversy will continue for a while.

Let's go over again for a moment how all this came about, and then let's talk about what has happened recently. Remember, the United States Sentencing Guidelines came into law in 1987, and these rules are considered by many to be overly harsh. Many judges who were required to follow these rules also felt the Guidelines went way too far in requiring long prison sentences. Myself and other lawyers fought against these rules for years, and the Supreme Court finally declared the Guidelines unconstitutional in 2005. However, the Supreme Court also said that the Guidelines are "advisory", and that judges at least need to consult these rules before imposing a sentence. After the Supreme Court said that the Guidelines are no longer mandatory, a growing group of judges used their new-found discretion to impose sentences that were shorter than what was called for by these sentencing rules. Predictably, prosecutors got angry and went running to the appellate courts asking that these shorter sentences get reversed. I have written previously about this topic.

In the recent Gall decision, the Supreme Court made clear that it wants the sentencing judge to have the greatest amount of discretion in this area. In that case, the Guidelines called for 30-37 months in prison, but the sentencing judge chose to put that young defendant on probation. The appellate court reversed, but the Supreme Court said the sentencing judge was well within his discretion in imposing that sentence. Gall would seem to show that sentences outside the range called for by the Guidelines will almost always be upheld.

However, a battle seems to be brewing in the United States Court of Appeals for the Eleventh Circuit. Three days after Christmas (and a mere 18 days after the ink was dry on the Supreme Court's Gall decision) a split panel of that court affirmed a lower sentence imposed on a defendant convicted of possessing child pornography. The defendant had a truly horrific childhood, with his father getting murdered, the defendant was then physically abused by other family members, and the defendant then was put into foster care, where he was repeatedly sexually abused. The sentencing judge reduced the sentence for this defendant down to 7 years, which was below the Guidelines' range. The majority of two judges affirmed this shorter sentence. However, a blistering dissent from Judge Joel Dubina perhaps is the opening salvo in the next line of battles in this area. Judge Dubina simply could not understand how such a lower sentence is "reasonable", even though the Supreme Court recently said that the sentencing judge has tremendous discretion in this area. Look for this and other cases to possibly be taken up by the entire Eleventh Circuit when they occasionally give what we call "en banc" review to selected decisions.

A person facing a federal criminal trial often asks his or her lawyer for advice about whether to take the witness stand. A recent decision in the United States Court of Appeals for the Eleventh Circuit now provides some help to criminal defense lawyers in Florida, Georgia and Alabama, the states covered by the Eleventh Circuit. The decision in United States v. Moore helps by whittling away at the old rule which said that the defendant's testimony could fill holes in the prosecution's case even when the government failed to produce sufficient evidence of guilt.

One of the hardest questions facing lawyers who represent people accused of crimes is to give advice about whether the defendant should testify in his or her defense. My firm, Kish & Lietz, helps clients with this difficult decision in every case we handle. This decision is especially difficult when we come to the conclusion that the prosecutor's case is extremely weak. Sometime, lawyers recognize that juries will convict, even when there is virtually no evidence. For example, many jurors are so upset about drugs that people who have virtually no involvement can get swept up in a guilty verdict. However, the lawyer often figures out that he or she might win the case on appeal by arguing what we call "insufficiency of the evidence." An appellate court is much less likely to get swept up in the emotion of a trial, and can weigh the sufficiency of the evidence more objectively.

However, for many years, the Eleventh Circuit issued a series of decisions which say that even when the prosecutor did not present sufficient evidence, the lack of evidence could be "fixed" if the defendant took the witness stand. The theory behind this rule was that by convicting the defendant who testified, the jury must have decided that the defendant was lieing, and these lies could form affirmative evidence that would fill the holes in the otherwise insufficient prosecution case. This is a truly unfair rule.

Under the Federal Rules of Criminal Procedure, a defendant can ask the trial judge to throw out a case at the point when the prosecutor finishes up his evidence. We lawyers call this a request for a "judgment of acquittal." A 1994 change allowed the judge to hold off on this decision until the defense lawyer finishes putting up his or her case. However, the old rule in which the defendant's testimony could fill the holes in the prosecutor's case placed defense attorneys in a bad spot when a judge decided to postpone making a decision about the judgment of acquittal until the close of all the evidence.

This past week, the Moore decision fixed this situation a little bit. The case says that when a judge holds off ruling on a request for a judgement of acquittal, yet the defendant is later convicted, the appellate court will look at a "snapshot" of the evidence the way it appeared when the prosecution rested its case. In other words, the defendant's decision to testify cannot be used to fix the holes in a weak prosecution when the judge reserves ruling on a request for a judgment of acquittal.

As I said, giving advice about whether our clients should testify is one of the hardest things we do. In future posts, I plan to discuss other laws that impact this crucial decision.

We do a lot of federal criminal appeals, so I was very interested to read about yesterday's reversal of an Alabama federal conviction for environmental crimes. This case is one more example about how important it is to get a federal criminal defense attorney who not only knows the law, but keeps up with the changes.

The case comes out of the United States Court of Appeals for the Eleventh Circuit, which handles federal appeals from Georgia, Florida and Alabama. The Court of Appeals ruled that the convictions for conspiracy and violations of the Clean Water Act had to be reversed because of incorrect instructions to the jury about the meaning of the term "navigable waters."

This case is quite complicated, involving a criminal prosecution against both a company and several of its executives. However, the defense attorneys did a good job of arguing that the jury was not given correct definitions about what is "navigable water" tht can be regulated under federal laws. The defendants attorneys correctly pointed out that the United States Supreme Court had recently issued an opinion that gives a more restrictive meaning to this term.

Perhaps the most important lesson from this case is that it demonstrates the importance of having a criminal defense attorney who keeps current on the law. The defense attorneys were able to win the appeal because they were aware of this recent Supreme Court case, and they used this relatively recent decision to show that their clients did not get a fair trial the first time around.

Last week, I argued a federal criminal case here in Atlanta in the United States Court of Appeals for the Eleventh Circuit. The main issue in the case was whether a search warrant that was obtained by an Atlanta Police Department Officer could survive scrutiny under the Fourth Amendment.

Procedurally, the case was somewhat unique in that, in the lower court, the federal magistrate judge concluded that the warrant was unconstitutional. His decision was based primarily on the fact that the warrant completely failed to link the items sought in the warrant to the crime at issue, or provide any basis as to why those items would be present at the location searched. Thus, the judge concluded (rightly I believe) that Eleventh Circuit precedent required him to hold that the warrant was unconstitutional because it simply was not supported by probable cause. Ultimately, however, this decision was not sustained by the federal district judge that presided over the matter. Obviously, we disagree with this decision, which is why we ended up in the Court of Appeals.

This was my sixth oral argument in the Federal Court of Appeals (Paul Kish has argued about fifty cases there) and I am always amazed at how much preparation time is required to get ready for an oral argument. I spent several days reading cases, reviewing briefs and the record below, and outlining my argument. The folks at the Federal Defender office here in Atlanta helped me tremendously. Several of them took time from their busy schedules to read the briefs and spend several hours grilling me with questions. It was a huge help. Based on my reading of the case law, I am very optimistic.

Here in Atlanta, Georgia we convinced a federal judge to impose probation as a sentence for a client in a white collar fraud case, but we now are fighting against an appeal by the government. This is happening more and more, judges ruling that sentences are just too long for some minimally involved white collar defendants, and the government appealing because they are unhappy with the sentence. Fortunately for our client, we do a lot of appeals in federal court and are comfortable in helping defend the proper sentence.

This whole issue started with the unfortunate 1984 passage of the Federal Sentencing Guidelines, a set of complicated rules that generally call for harsher sentences. The Guidelines were mandatory, and many judges felt as if they were being forced to hand down unfair sentences. Myself and many other criminal defense attorneys fought against these rules for many years, culminating in a decision from the U.S. Supreme Court which held that the Guidelines are unconstitutional, but can nevertheless be used in an "advisory" fashion. After this ruling, many judges started imposing shorter sentences.

In white collar fraud cases, some judges simply do not see the need to incarcerate a defendant who made no money, whose entire life has been turned upside down, and who already has been forced to shell out a small fortune in order to hire an attorney who knows his way around the dangers facing a criminal defendant in federal court. Earlier this year, we convinced a judge to impose a sentence of 6 months home confinement and several years of probation on just such a client.

The government was very unhappy with the decision from this respected judge, and appealed the case to the United States Court of Appeals for the Eleventh Circuit. We did a lot of research, and discovered that many other clients such as ours received similarly reduced sentences, because it was the fair thing to do. We called these other cases to the attention of the court of appeals in our brief, which can be found on the PACER system for electronic filing in federal court.

I will continue to write about appeals in white collar fraud cases in other posts. There is another major case before the U.S. Supreme Court which likely will be decided in late 2007 or early 2008, which could have an impact on these situations.