Trying to Kick a Judge Off a Case is Difficult: the Eleventh Circuit Rejects Recusal Motion by Defendant who Killed Another Eleventh Circuit Judge

January 10, 2014 by Paul Kish

We do criminal cases here, that's just about all we do, whether in federal court in Georgia, Alabama, Florida or other parts of the country, but also throughout the State of Georgia. Many times, clients feel that a particular judge will not be fair, and they want us to talk about getting rid of that judge. To so so, a lawyer needs to file a motion for something we call "recusal". However, when any lawyer is convinced that filing such a motion is appropriate, he or she needs to have pretty good grounds to do so, because you are basically saying that the judge on your case is unfair. If that same judge denies the recusal motion, you are stuck with a judge who you've just challenged.

This same process played out in an opinion published earlier today by the U.S. Court of Appeals for the Eleventh Circuit, which has it headquarters here in Atlanta just down the street from our offices. The case stems from the famous bombing that killed Robert Vance, who was an Eleventh Circuit judge at the time he was murdered.

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Plea Agreements in Federal Criminal Cases: the Importance of Getting it in Writing

November 12, 2013 by Paul Kish

Criminal cases in federal court, as well as the many state court matters we handle, often are resolved with what many people refer to as a "plea agreement." Basically, the prosecutor gives the Defendant something in return for a plea of guilty, such as a recommendation for a lower sentence, or an agreement to not bring further charges, or a decision to not charge the Defendant's company or spouse with other crimes. Just a few hours ago, the United States Court of Appeals here in Atlanta issued an opinion in a federal criminal case which demonstrates, yet again, how important it is to have a defense lawyer who knows the ins and outs of this process. The case is U.S. v. Robertson, and can be found here.

Mr. Robertson seemed to have a life of crime, and was suspected of some robberies. He decided to shorten his sentence, so he agreed to testify against a co-Defendant in order to get a shorter sentence. He claimed that the co-Defendant forced Robertson to do the robbery. The federal prosecutor (who later became a federal Magistrate Judge) got some taped calls demonstrating that Robertson and the co-Defendant were friends, and that there was no "forced" robbery. The prosecutor then retracted the offer of a lower sentence. Robertson and his lawyer then said they had information on two unsolved murders. Here is where it gets murky.

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We Get All Federal Criminal Charges Reversed in Court of Appeals: the Long Saga of the Case Involving the Radiologist

August 18, 2013 by Paul Kish

One of the white collar federal criminal cases me and my partner Carl Lietz have handled here in Atlanta involved a very successful local radiologist. The doctor came to see us after being represented by some other very accomplished attorneys. We took on his case, fought very hard, yet lost the trial in the summer of 2011. The doctor went to prison, but we kept fighting by asking the Court of Appeals to reverse his convictions. This past Friday morning, our efforts paid off, in that the Court of Appeals reversed each and every one of the 35 charges against the doctor. Here is a short version of the story, which should be a lesson for all lawyers and clients on how important it is to make long-range plans while in the middle of a hard-fought trial process.

The government's basic allegation was that our client submitted tens of thousands of radiology "reports", without himself or any other doctor actually looking at the x-ray or other image that was the subject of the report. Some staff members said it looked like he was doing that. Furthermore, the computer system logs only showed him accessing the associated images about 5000 times out or the 72,000 reports issued over his signature. The government's case was made even better when they demonstrated that some reports were issued while he was on vacation or even on international airline flights.

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Whaddya Know? Eleventh Circuit Affirms One and Reverses Other Gun Conviction Based on Different Amounts of "Knowledge" Required

July 3, 2012 by Paul Kish

Federal criminal trials almost always involve the question of "knowledge", meaning that the prosecution is obligated to prove beyond a reasonable doubt that the Defendant "knew" about some fact. In US v. Vana Haile, the Eleventh Circuit here in Atlanta showed how the issue of "knowledge" can change, depending on the facts and the specific crime involved.

Mr. Vana Haile and another man named Beckford were charged with and convicted of conspiracy and attempt to possess with intent to distribute marijuana and cocaine and knowing possession of several firearms in conjunction with their drug trafficking offenses. One of the firearms crimes alleged that the Defendants possessed a machine gun. The government also alleged that a different crime was violated because one of the weapons had an obliterated serial number.

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Eyewitness Identification: Eleventh Circuit Won't Join Most Courts that Allow Expert Testimony Showing Unreliability of Such Witnesses

June 12, 2012 by Paul Kish

Our beloved Eleventh Circuit Court of Appeals, just down the street here in Atlanta, recently refused to join the ever-growing chorus of other courts that permit expert witness testimony to illuminate the real shortcomings in eyewitness identifications. A 30-year old ruling in the 11th Circuit said that the Court of Appeals can never overrule a trial judge who won't allow a party to bring in an expert to explain to jurors the many problems with witness identification testimony. A criminal defendant recently asked the entire court to overturn this old decision, but the judges refused to take the case. Judge Rosemary Barkett issued a scathing dissent, which is worth reading. The case is US v. Owens, and can be found here

Judge Barkett first notes her amazement that the 11th Circuit wouldn't join the majority of courts that allow such testimony. She sets out that all other federal courts of appeal, and 42 out of 50 states permit such testimony.

The many problems with eyewitness identification testimony, and recent social science research in this area, both call out for a new view, according to Judge Barkett. In the 30 years since the 11th Circuit outlawed such expert testimony, there have been over 2000 studies concerning the unreliability of eyewitness identification testimony. Judge Barkett quoted from a decision of another federal appellate court demonstrating that “the conclusions of the psychological studies are largely counter-intuitive, and serve to ‘explode common myths about an individual’s capacity for perception.’”

The many studies in this area reveal truly disturbing aspects of identification testimony. First, it appears that eyewitness misidentification is the leading cause of false convictions in this country. Studies in both experiments and real-world settings show that eyewitnesses get it wrong about 1/4 to 1/2 of the time. Second, there is a very high consensus among researchers in this arena that the procedures used by the police can improperly impact what an eyewitness "remembers". A major study conducted by the New Jersey Supreme Court essentially said that the police always influence witnesses during lineup and other procedures during which a potential suspect is displayed to the eyewitness. However, when the policeman conducting the process does not know if the suspect is even in the lineup (which is called a "blind" method), the rate of accuracy doubles! As Judge Barkett notes, jurors need to hear from experts who know about this research because the average person is unaware that “even the best-intentioned non-blind administrator can act in a way that inadvertently sways an eyewitness.”

Judge Barkett also outlined the process of "confirmatory feedback" discussed in the many studies of eyewitness identification testimony. In this processs, the witness first makes a tentative identification, the suspect is arrested, and the witness sees the suspect at the defense table or in pictures. By the time of trial the eyewitness's identification is "confirmed" in his or her mind, not because he or she is more certain, but because the more they see the defendant in court the more likely they are to believe that the defendant is the person who committed the crime.

The literature in this area also describes another counter-intuitive aspect of eyewitness identification: the higher the stress in a situation, the less likely a person will make an accurate identification. Most people tend to believe that a victim of a crime will "never forget the face" of the perpetrator. Studies show just the opposite, that in such high-stress situations victims rarely focus on or accurately remember the facial features of the person who is committing the crime.

Judge Barkett concludes her dissent by explaining that simply cross-examining an eyewitness is insufficient. "In short, scientific research reveals that, in particular circumstances, an eyewitness’s testimony suffers from intrinsic flaws that are unknown to most jurors and undetectable through the typical modes of examining lay witnesses".

It is sad that our local appellate court continues to stick its head in the sand in this area. We hope that lawyers and judges continue to press ahead in helping jurors understand some of the counter-intuitive aspects of eyewitness identifications.

Collateral Estoppel: the "Little Brother" to the Double Jeopardy Clause

February 8, 2012 by Paul Kish

The Fifth Amendment to the U.S. Constitution includes the well-known protection against double jeopardy. Some lawyers and lay people might not realize that there is sort of a "little brother" to the protection against double jeopardy, which is called the rule of "collateral estoppel." The United States Court of Appeals for the Eleventh Circuit, down the street from us here in Atlanta, recently used the "little brother" to reverse a criminal conviction from the Middle District of Florida. The case is United States v. Valdiviez-Garza.

Double jeopardy protects against multiple prosecutions for the same offense. Collateral estoppel, on the other hand, teaches that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. In other words, if there was an earlier criminal case that the Defendant won, and if the jury in that previous case "necessarily determined" a certain fact in the Defendant's favor, then there cannot be a later case against that same Defendant if the subsequent case requirs proof of that same fact. Therefore, the big issue in this context almost always is whether the earlier trial involved a fact or issue that was "necessarily determined" in the defendant's favor.

In Valdiviez-Garza, he had previously been charged with illegally re-entering the U.S. after a previous deportation. He won that case by arguing that he was not an illegal alien because he obtained citizenship through his father, who was also a citizen. Several years later, he was prosecuted again for illegally entering the country, and this later case also required the prosecutor to prove he was not a citizen. However, he got convicted the second go-round. He appealed to the Eleventh Circuit, and they agreed that he should have never faced the second prosecution because of the collateral estoppel rule. The only issue in his first trial was whether he was an alien, and he won. There never should have been a second prosecution, because the issue of his alienage had already been determined in the earlier trial.

This is a rather rare case. It is refreshing to see the courts remember that the government should only get one whack at a Defendant, otherwise we could all be in jeopardy time and time again.

APPEALS COURT IN ATLANTA REVERSES TAX CASE: FEDERAL JUDGES PROHIBITED FROM PARTICIPATING IN PLEA DISCUSSIONS

December 21, 2011 by Paul Kish

The United States Court of Appeals for the Eleventh Circuit, siting here in Atlanta, reversed a federal tax conviction today because the judge impermissibly participated in plea discussions with the Defendant. The case is United States v. Davila.

The Federal Rules of Criminal Procedure make it crystal clear that while the prosecutor and defense attorney can negotiate toward a plea agreement, the Judge may not in any way participate in these discussions. There are three main reasons for this prohibition: to avoid coercing a defendant into pleading guilty, to protect the integrity of the judicial process, and to preserve the Judge's impartiality after the negotiations are completed. The Federal Rules are quite different than what takes place in many State courts, where Judges regularly get involved in the plea discussions.

The Eleventh Circuit also has a rule holding that judicial participation in plea discussions amounts to "plain error." There are no exceptions to this rule, and a Defendant does not have to object or even show any prejudice he suffered from the judge's improper intrusion into the plea discussions. This is one of the few areas where the appeals court here in Atlanta has a rule that is more friendly to criminal defendants than other courts around the country.

In the Davila case issued this afternoon, the Federal Magistrate Judge conducted a hearing to look into Mr. Davila's dissatisfaction with appointed counsel. Davila was unhappy because the appointed lawyer only wanted to talk about a potential guilty plea. The Magistrate Judge told Davila that perhaps a plea was his best option, there might not be any defenses, and a plea might be a good idea especially because of Davila's long criminal record.

On appeal the Eleventh Circuit reversed the sentence and conviction based on the Magistrate Judge's comments. The appellate court held that these comments violated the prohibition against participation in plea discussion, because the Magistrate basically implied that Mr. Davila would certainly get a longer sentence if he did not plead. The Eleventh Circuit reversed even though it noted that the Magistrate may well have only intended to help Davila, not harm him. Additionally, the rule in the Eleventh Circuit is that when the case gets back to the District Court, it must be re-assigned to a new Judges who had no role in the earlier proceedings.

Federal Sentencing Law in the Eleventh Circuit: United States Sentencing Commission Issues Summary of Decisions To Assist Federal Practitioners

August 29, 2011 by Carl Lietz

Lawyers that specialize in defending federal criminal cases may be interested to know that the federal sentencing commission recently released a document entitled: "Selected Post-Booker and Guideline Application Decisions for the Eleventh Circuit". According to the Commission, "[t]he document is not a substitute for reading and interpreting the actual Guidelines Manual or researching specific sentencing issues." However, those of you that practice federal criminal law in Georgia, Alabama and Florida will find the document useful, because it does contain helpful "annotations to certain Eleventh Circuit judicial opinions that involve issues related to the federal sentencing guidelines."

I reviewed the document this morning and it is a fairly comprehensive. It not only includes case annotations dealing with many of the more common guideline provisions (including fraud, internet, and immigration offenses), but it also includes several sections that involve general principles of federal sentencing law, such as burden of proof issues, the requirements for sentencing on acquitted conduct, and departures and variances.

The document can be found here and for those of you that practice in other federal circuits, links to similar documents for those other circuits can be found here.

Eleventh Circuit Affirms Former Birmingham Mayor's Federal Conviction But Doubts About the Constitutionality of the Honest Services Statute Remain

August 10, 2011 by Carl Lietz

Last week, the Eleventh Circuit Court of Appeals affirmed the convictions of Larry Langford, the former mayor of Birmingham, Alabama who was convicted last year on various federal white collar offenses, including mail and wire fraud, bribery, money laundering, and federal tax offenses.

To me, the most interesting aspect of the opinion is the way in which the Court of Appeals discussed the honest services portion of the federal mail and wire fraud charges. As we discussed in this previous post, last summer, the Supreme Court issued its opinion in United States v. Skilling, a case which, in essence, limited the honest services provision of the federal fraud statutes to bribery and kickback schemes.

Before Skilling was decided, many (if not all) federal circuits made a distinction between honest services prosecutions that involved public officials, as opposed to those working in the private sector. At the risk of simplifying the issue too much, it was far easier for the government to prove an honest services violation against a public official. Skilling itself, however, did not distinguish between public officials and private actors, leading some to believe that after Skilling, the prosecution of both public and private officials would be governed by the same standards.

In its decision in Langford last week, though, the Eleventh Circuit appeared to recognize that the public official/private actor distinction that existed in this Circuit before Skilling still exists. According to the Eleventh Circuit: Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public’s best interest. . . . [I]n a democracy, citizens elect public officials to act for the common good. When official action is corrupted by secret bribes or kickbacks, the essence of the political contract is violated. Illicit personal gain by a government official deprives the public of its intangible right to the honest services of the official."

Well before Skilling, there was considerable disagreement among judges regarding the reach and meaning of the honest services statute in both the public and private sector. Although Skilling limited the reach of the statute to cases that involve bribery and kickbacks, it did not address the abundance of issues over which this considerable disagreement existed. Given the Eleventh Circuit's apparent decision to return to the pre-Skilling era in which a distinction exists between the standards governing the prosecution of public officials and private actors, there are many issues that should and will be litigated in this amorphous area known as "honest services" fraud. As Justice Scalia himself recognized in Skilling, even with the majority's pairing down of the statute, the honest services statute nonetheless remains unconstitutionally vague.

The full opinion in Langford can be found here.

Eleventh Circuit Reverses Federal Conviction of Pain Management Doctor

July 20, 2011 by Carl Lietz

Earlier today, the Eleventh Circuit reversed a federal conviction of a pain management doctor prosecuted in federal court. The case originated out of the Southern District of Georgia, and after a lengthy trial, the jury convicted the pain management doctor on 129 counts of unlawfully dispensing certain controlled substances by means of written prescriptions made “outside the usual course of professional practice and without legitimate medical purpose,” in violation of federal controlled substance laws.

On appeal, the doctor raised a number of issues, the most significant one being that the federal trial judge effectively denied him his right to testify by failing to notify him that he could testify in a narrative format. At trial, the doctor was not represented by a a lawyer. And when it came time to decide whether he wanted to testify on his own behalf, the trial judge failed to correct an obvious misunderstanding the doctor had concerning his right to testify.

More specifically, according to the trial transcript, the doctor incorrectly believed he could testify on direct examination only if was questioned by an attorney. Although the record established that the doctor was clearly ignorant of his ability to provide narrative testimony, the federal trial judge failed to correct this obvious misunderstanding. Rather, the trial judge merely informed the doctor that he had "an absolute right to testify."

On appeal, the Government argued that the doctor failed to preserve the issue in the trial court and that as a result, the plain error standard of review should apply on appeal. The Eleventh Circuit rejected this argument outright, going so far as to characterize the Government's argument as "absurd."

With respect to the underlying issue, the Eleventh Circuit reached the following conclusion: "[T]he district court is duty-bound to correct a pro se defendant’s obvious misunderstanding of his right to testify. Because this error was not harmless, [the doctor's convictions cannot stand."

In the last few years, the Government has certainly focussed a great deal of attention on the prosecution of pain management physicians in this District, as well as others. The law in that area is very interesting, and we have become very familiar with it, because we have represented a number of doctors facing similar charges. Although the fact pattern in today's decision is fairly unique, it is worth reading and the full opinion can be found here.