Georgia Federal Criminal Lawyer Blog

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.

Posted by Carl Lietz | Permalink | Email This Post

Posted In: Appeals , Fraud , White Collar Crime

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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.

Posted by Paul Kish | Permalink | Email This Post

Posted In: Appeals

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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.

Posted by Paul Kish | Permalink | Email This Post

Posted In: Appeals

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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.

Posted by Paul Kish | Permalink | Email This Post

Posted In: Appeals , Federal Criminal Trials , White Collar Crime

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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.

Posted by Paul Kish | Permalink | Email This Post

Posted In: Appeals

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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.

Posted by Paul Kish | Permalink | Email This Post

Posted In: Appeals , White Collar Crime

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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.

Posted by Paul Kish | Permalink | Email This Post

Posted In: Appeals

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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.

Posted by Carl Lietz | Permalink | Email This Post

Posted In: Appeals

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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.

Posted by Paul Kish | Permalink | Email This Post

Posted In: Appeals , White Collar Crime

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