Reducing Sentences for Federal Drug Crimes: U.S. Sentencing Commission Votes on Making Reductions Retroactive

July 17, 2014 by Paul Kish

We handle lots of federal criminal cases. We also occasionally represent people accused of federal drug crimes, both here in Atlanta and around Georgia, Alabama and Florida. Over the past decade there has been a slow recognition that sentences for drug crimes are simply too long. This week, the United States Sentencing Commission votes on an important aspect of the decade-long effort to reduce sentences for federal drug offenses. You can read a paper here that describes the potential reduction and how it would impact people who are already serving sentences for federal drug crimes.

A little history lesson helps to understand this vote and how it can possibly help people already sentenced to federal prison for a drug crime. Back in the 1980's, the media hyped up what it called the crack cocaine explosion. Politicians fell all over themselves in efforts to be "tough on crime." This resulted in a very bad law enacted in 1986 which created mandatory minimum penalties for federal drug crimes. These mandatory penalties caused automatic enhancements to another set of rules for federal criminal sentences called the "Sentencing Guidelines." As a result, an entire generation of offenders were subject to increased sentences, whether or not the Defendant was a young first-time offender or a seasoned long-term criminal. Taxpayers spent billions of dollars on useless and inhumane incarceration.

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U.S. Attorney General Intends to Reduce Mandatory Sentences for Non-Violent, Drug Crimes: Will our Clients in Federal and Georgia Courts See a Change?

August 16, 2013 by Paul Kish

Finally, with Monday's announcement by Eric Holder, we have a public acknowledgment by our country’s top law enforcement official that the War on Drugs and its policies, implemented since the 1970’s, have failed. Holder went further than to offer an empty statistic. He basically stated that the U.S. has not only utterly failed at its claimed mission to reduce criminal drug activity, but our criminal justice system has instead exacerbated an epidemic of poverty, addiction, and criminality enough to create the almost inability to achieve public safety and effective law enforcement in our current society.

In federal courts each year, 25,000 people are convicted for drug offenses, with 45% of those convictions for lower level offenses. According to the Justice Department, the cost of incarceration in the United States was $80 billion in 2010. Despite the fact that the U.S. contains 5% of the world’s population, we incarcerate 25% of the world’s prisoners. Justice Department officials said federal prisons are operating at nearly 40 percent over capacity.

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Supreme Court Accepts Case to Decide What it Means When "Death Results" From Drug Dealing

May 2, 2013 by Paul Kish

Sitting here in Atlanta, I really like when I find out about bright, energetic lawyers handling federal criminal cases all around the country. One such case is Burrage v. United States, where this past Tuesday the United States Supreme Court agreed to review important questions as to what it means when "death results" from drug dealing. To many lawyers and others in this field, it might seem that a case like this only really matters to folks defending drug cases. However, this is an important appeal on issues related to causation, the appropriateness of jury instructions, and construing federal statutes.

Mr. Burrage was like too many folks, caught up in the drug business, selling relatively small amounts of controlled substances. His life intersected with Joshua Banka, another lost soul who was a long-standing poly-substance abuser. Burrage sold some heroin to Banka, who died after using some of the drug. Banka had lots of other drugs in his system as well, and his girlfriend acknowledged he'd used some of these other drugs in the day before he died. The experts who testified at trial gave complex answers about the cause of Banka's death, but they could not say that Banka would not have died if he had not used heroin (this method of saying the word "not" three times in the same sentence appears in the briefs for each side of the case).

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Supreme Court Says Dog Sniff on Porch of Private Residence is a Search that Requires a Warrant

March 27, 2013 by Paul Kish

In a earlier posts, I wrote about the Supreme Court's "dog sniff" cases, the former in which the Defendant was stopped while driving his truck and a drug dog eventually alerted to the presence of dogs, the latter case where (based on a "tip") the police walked a drug detector dog on the Defendant's porch, the pooch alerted, and based on that they got a warrant to search the house. As I predicted, the Supreme Court affirmed the search of the truck, and yesterday, they sided with the homeowner in the sniff that took place on the porch of the home. Yesterday's case is Florida v. Jardines, and by a 5-4 margin the Court held that the sniff on the porch was illegal as being a search not done pursuant to a warrant.

The opinion resulted in a somewhat unusual alignment of justices. Justice Scalia, perhaps the Court's most conservative member, wrote the majority decision. He was joined by Justice Clarence Thomas, a frequent ally, and three of the court’s more liberal members, Justices Ginsburg, Sotomayor and Kagan.

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Going to the Dogs: Supremes Says Lack of Performance Records for Drug-Dog Doesn't Invalidate Search

February 19, 2013 by Paul Kish

The Supreme Court today issued one of the two dog cases on its docket, Florida v. Harris. Recall that we blogged on this case when it was accepted for review. In today's unanimous ruling, the Supreme Court held that just because there are no performance records for how a dog does in the field, this by itself does not mean that a dog's positive alert cannot form the basis for a probable cause search.

The pooch in this case is "Aldo." His handler obviously had it out for Mr. Harris. The officer stopped Harris two times, and had Aldo run around the truck, sniffing for the odors of dope, etc. The first time, Aldo "alerted", but the officer did not find any of the substances for which the dog was trained to alert. However, they did find chemicals used to make methamphetamine, so they arrested Harris. The same officer again stopped Harris while the latter was out on bail. Once again, the loyal pooch ran around the vehicle, again alerted, but this time no illegal substances or precursors were discovered.

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Federal Court of Appeals in Atlanta Rules that Law Allowing U.S. Prosecution of International Drug Dealers is Unconstitutional

November 7, 2012 by Paul Kish

I am looking down from my office here in Atlanta at the U.S. Court of Appeals for the Eleventh Circuit, the federal appellate court that handles cases from Georgia, Florida and Alabama. Yesterday, that court issued a huge decision in which they decided that Congress violated the Constitution by enacting a law that allows for prosecuting international drug dealers in U.S. courts. It's kind of complicated, and even after this case there still can be similar prosecutions using different laws, but the case is nevertheless worth looking at. The case is U.S. v. Bellaizac-Hurtado.

United States surveillance detected a vessel sailing in international waters near Panama with no flag or lights. They informed the Panamanian navy, which went after the boat, eventually capturing its crew and the boatload of drugs inside the vessel. Eventually, the crew were brought to Florida and prosecuted in federal court. The defense lawyers wisely argued that a U.S. court did not have jurisdiction, and in yesterday's decision, the Court of Appeals agreed and threw out their convictions.

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

October 15, 2012 by Paul Kish

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

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

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

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

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

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

Constructive Possession: Court of Appeals Won't Reverse Even When Trial Judge Gave Bad Instructions to Jury

June 15, 2012 by Paul Kish

Federal crimes often involve questions about whether a person "possesses" an item. The concept of "constructive possession" allows a jury to convict a Defendant if he or she does not have actual possession, but has the power and intention to take control of the item at a later point. The United States Court of Appeals for the Eleventh Circuit, here in Atlanta, recently confronted a case where the trial judge used faulty language when telling the jury about the concept of constructive possession. Although the instruction was bad, the Court of Appeals refused to reverse the Defendant's conviction. The case is U.S. v. Cochran.

Roderick Cochran was seen outside a house, and a police officer claimed she observed him from a block away going in and out of the property. When the police used a warrant to go inside and search the house, they found drugs in the kitchen, and ammunition hidden in a bedroom. Cochran's driver's license listed him as living two doors down, and a piece of mail was found inside addressed to he and his niece, who had also lived there. Like some of the early scenes in "My Cousin Vinny", the defense established that trees and other obstructions made it impossible for the officer to have observed Cochran from a block away. Additionally, the defense showed that including Mr. Cochran's name on the letter addressed to his niece was a standard format, but it did not show he lived with the niece.

Like most federal courts, the Eleventh Circuit publishes Pattern Jury Instructions for use in federal criminal trials. The Pattern Instruction on possession tells jurors that even if a Defendant does not actually possess an item, he or she can have "constructive possession" if the Defendant has power and intention to take control of it later. In Mr. Cochran's trial, prosecutors convinced the trial judge to add a sentence that read:“Constructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing.” Cochran's very able lawyers from the Federal Public Defender objected to the instruction. The jury was quite confused, asking questions about how it should decide if Mr. Cochran possessed either the ammunition or the drugs. “If you have free access to a home then do you have constructive possession of the contents?” The district court replied that it could not answer the question and instructed the jury to consult the jury instructions. During deliberations the next day, the jury again sent a note to the district court, this time asking: “Regarding Count 1 [the ammunition charges] does the definition of constructive possession apply to the phrase ‘knowingly possess?’”
Again, the trial judge wold not answer the questions. The jury ultimately acquitted Cochran of the charge concerning the ammunition, but convicted on the drug crimes.

The Court of Appeals agreed that the government’s addition that, “[c]onstructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing,” eliminated the “power and the intention to take control over it later” language. That omission was especially troubling given that the definition of “constructive possession” immediately follows the instruction that “[a]ctual possession of a thing occurs if a person knowingly has direct physical control of it.” 11th Cir. Pattern Jury Instructions (Criminal), Special Instruction 6 (2010) . According to Judge Wilson (who wrote the opinion) "such a juxtaposition could create an inference that constructive possession, as defined by the government’s instruction, lacks an intentionality requirement."

Judge Wilson found a second problem with the prosecutor's extra language for the constructive possession instruction. The supplemented constructive possession instruction said that control over the premises—rather than control over the contraband itself—was sufficient to convict. However, the jury makes all choices about the facts and what inferences can be drawn from such evidence. Judge Wilson noted that the Court regularly "disapproves" of jury instructions that invade the jury’s province by implicitly mandating an inference.

Despite these problems, the Eleventh Circuit nevertheless upheld Mr. Cochran's drug convictions. "We find that although the wording of the final sentence of the constructive possession instruction would have been more clear if it included language about knowledge or intent, that flaw is mitigated by the totality of the instructions." The Court noted that the trial judge did tell jurors that it had to find "knowing possession, and that the prosecutors repeatedly argued that Cochran did in fact know about the drugs found in the home. These twin factors led the Court to affirm the conviction.

First Federal Criminal Case for Selling Prescription Adderall: Our Client Won't go to Jail;

April 17, 2012 by Paul Kish

Yesterday, I concluded my case where we represented the Defendant in what seems to be the very first federal criminal prosecution for selling the prescription drug "Adderall". Early in the case, the prosecutor (and the probation officer) argued that the Sentencing Guidelines for this crime exceeded 10 years. Later, we got them down to 57-71 months. We filed an aggressive Sentencing Memorandum (Download file) arguing that the Guidelines and the whole case was far out of line. Yesterday, a United States District Judge sitting in Brooklyn, New York agreed with us, refused to put our client in jail, and imposed a sentence of 6 months home confinement.

We live in a pill-popping culture where pharmaceutical companies create more and more drugs that they claim we "need" to survive. Adderall is a drug prescribed mostly for Attention Deficit and Hyperactivity Disorder. It is well-known that this drug is often used, traded and sold by college students as a "study aid." More and more professionals use the drug to get through a big test or hard and stressful workload. Some stories have called it "Ivy League Crack."

Our client wanted to go to medical school. She had a romantic relationship with a medical doctor, who wrote Adderall prescriptions to supposedly "help" her study for the MCAT's. The doctor came up with the bright idea of writing more and more Adderall prescriptions, and then selling the excess pills to other Yuppies through Craiglist. He had our client fill most of the prescriptions, and showered her with gifts and trips using the proceeds. The couple broke up, he got busted, and turned on our client, resulting in her arrest as she got off a plane here in Atlanta. The case was prosecuted in the Eastern District of New York, where the doctor had been doing his medical residency.

This case is a perfect example of how recent societal trends show up in our federal criminal cases. We are glad that the sentencing judge understood and accepted our basic premise that sending this young woman to prison makes no sense. We hope that other people caught up in such situations look for attorneys who know the federal system well enough to navigate through these difficult cases.

Chronic Pain, Federal Criminal Law, and the Prosecution of Pain Management Doctors in Federal Court

July 27, 2011 by Carl Lietz

Earlier this year, the United States Attorney's Office for the Northern District of Georgia announced that federal prosecutors and federal agents are ramping up criminal investigations and prosecutions of so-called "pill-mills" in metro Atlanta. The statement (which was reported in the Atlanta Journal Constitution) was made during a "summit" on prescription drug abuse held here in Atlanta back in March.

Since that "summit", federal prosecutors in Atlanta have secured indictments against doctors and others, claiming that these individuals have violated federal controlled substance laws. Indeed, as recently as last month, federal prosecutors indicted doctors, managers, and owners of "Atlanta Medical Group", charging these individuals with a number of federal offenses. According to the press release issued in connection with the federal indictment, these individuals operated a "pill-mill", illegally distributing oxycodone in violation of federal law.

There is no doubt that prescription drug abuse is a serious problem that needs to be addressed. However, it is equally true that chronic pain is also a serious problem in the United States. Indeed, just last week, the New York Times published an article discussing a sweeping review on this issue that was recently released by the Institute of Medicine — the medical branch of the National Academy of Sciences. According to that review, it is "estimated that chronic pain afflicts 116 million Americans, far more than previously believed." The article goes on to describe that "[t]he toll documented in the report is staggering[,]" leading the chief of pain management at the Stanford School of Medicine (Dr. Sean Mackey) to conclude that number of people suffering from chronic pain "is more than diabetes, heart disease and cancer combined.”

The article goes on to note that "[f]or patients, acknowledgment of the problem from the prestigious Institute of Medicine is a seminal event. Chronic pain often goes untreated because most doctors haven’t been trained to understand it. And it is isolating: Family members and friends may lose patience with the constant complaints of pain sufferers. Doctors tend to throw up their hands, referring patients for psychotherapy or dismissing them as drug seekers trying to get opioids."

As I mentioned in an earlier post, we have represented a number of doctors in alleged over-prescribing cases, and in those cases, we learned a lot about this unique area of the law. Typically, the federal government prosecutes doctors under the same federal statute that it uses to prosecute cocaine dealers and other alleged drug offenders. In federal cases against doctors, however, the government has to prove that the prescriptions at issue were written “outside the usual course of professional practice and without legitimate medical purpose." Not surprisingly, the resolution of this important issue often depends upon expert testimony and the experts that the Government uses, quite often, take a very conservative view of what legitimate pain management physicians should be permitted to prescribe. That view, however, is not the only view. As the New York Times article quoted above recognized, the "proper use of the drugs early in a pain cycle can resolve pain problems sooner, and . . . opioids are also particularly useful for pain management near the end of life."

We will continue to follow developments in this interesting area of federal law. For those of you that may be interested, the full New York Times article can be found here.