Federal Criminal Lawyer Blog

Like our federal cases here in Atlanta and throughout the country, it is important to keep in mind how a federal sentencing hearing takes place. The various phases of the federal sentencing process require the Defendant's attorney to not only know the law, but also to know the procedure, so that "objections" are properly preserved. A decision issued today by the United States Court of Appeals for the Eleventh Circuit makes this point. In that case, the attorney properly objected, thus preserving the issue for appeal. In the Court of Appeals, the Defendant raised the same argument, and the appellate tribunal agreed. The result is a lower sentence for the Defendant. The case is United States v. Washington.

Mr. Washington was charged in a large fraud scheme involving banks and credit card customers. He pled guilty. As a result, the United States Probation Officer prepared the very important document called the "Presentence Investigation Report", which is often called the "PSR". The PSR has two major parts, one of which is sort of a miniature biography of the Defendant. The second part of the PSR is where the probation officer makes some recommendations as to how the complex Federal Sentencing Guidelines should apply.

In a federal fraud case, there is a specific enhancement under the Sentencing Guidelines that is based on the number of victims. For example, if there are more than 250 victims, then a six-level enhancement is added to the Guideline score.

Mr. Washington was one of many people charged in this particular fraud scheme. The same judge had found more than 250 victims while imposing sentence on some of the other Defendants. However, Mr. Washington's lawyer properly objected to the enhancement for more than 250 victims, because the prosecutor never produced any evidence. In response to Mr. Washington’s objections, the probation officer stated that he had been provided with “spreadsheets detailing the victims,” and that the number exceeded 250. The prosecutor said that “thousands of individuals” had their credit card numbers stolen. However, the prosecutor did not submit any evidence to support this assertion. During the sentencing hearing, the Defendant's lawyer reiterated his objection, but was interrupted by the Judge. “That’s the figure that’s been applied to other defendants." Therefore, the Judge used the enhancement for more than 250 victims.

The Court of Appeals reversed the sentence. First, they repeated what has been said in numerous previous cases: the prosecution bears the burden of producing at least some evidence to support any enhancement of the Guidelines. Mere argument is not enough. Also, it's not good enough to simply refer to evidence from a co-Defendant's case, unless the record shows that the Defendant and his attorney at least had a chance to review such evidence and contest it.

Perhaps the most important part of the case is what happens next. The Court of Appeals noted that sometimes it sends the case back so the prosecution can basically "fix" the problem. They refused to take that approach here. The government had its chance, and blew it. No "do-over", said the appellate court. As a result, they ordered that the lower court resentence Mr. Washington without using the 6-level enhancement, which will almost certainly reduce his Guideline range and probably the overall sentence.

Again, it is important to hire a lawyer who knows the law and procedure. Mr. Washington's attorney knew when to object, and likely saved his client additional time in prison.

Defending federal crimes is always difficult, whether the client is a "white collar" defendant charged with fraud or whether prosecutors charge other crimes, like drug violations. However, the defense is made more difficult in federal court by virtue of the prosecutor's ability to sometimes freeze and then forfeit all of the Defendant's assets. Making it more difficult still, the laws sometimes permit prosecutors to freeze the Defendant's assets even without a hearing in front of a judge! After many years of uncertainty, the Supreme Court the other day agreed to hear a case as to whether the pretrial restraint (or freezing) of a Defendant's assets is permissible if done without a hearing. The case is Kaley v. United States, and the certiorari petition is here.

Ms. Kaley was in the business of selling medical equipment. She and her husband apparently made a good living selling equipment that certain manufacturers no longer wanted. The federal authorities claimed these practices were fraudulent, and indicted the couple. Prosecutors also filed an ex parte request to restrain and freeze much of the couple's assets, claiming that the money they had in the bank and which they'd used to buy their house was obtained as proceeds of the fraudulent conduct charged in the indictment. A Federal Magistrate Judge agreed, and issued an order freezing their assets so they could not be used by the couple to defend themselves. The case has had a complex history, with two trips already to the Court of Appeals here in Atlanta before the defense team finally got the Supreme Court to agree to hear the case.

Under 18 U.S.C. §853(e), when a Defendant has already been charged in an indictment the prosector can file an ex parte motion seeking restraint of assets that are subject to forfeiture upon conviction. The law does not specifically allow for a pretrial adversarial hearing where the indicted defendant may challenge the propriety of the restraints.

Back in 1989, the Supreme Court rejected the idea that such pretrial restraint violated either the Fifth or Sixth Amendments. United States v. Monsanto, 491 U.S. 600 (1989). However, a footnote in that case explicitly left open the question as to whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed. Since that time, the courts have issued contrary rulings resulting in a firmly entrenched split among the eleven circuits that have addressed the issue.

Ms. Kaley's defense team convinced the Supreme Court to accept her case in order to answer the following question:

"When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?"

This case has huge ramifications in situations where the feds go after Defendants with enough funds to hire good lawyers, but those attorneys cannot be paid because a judge agrees with the prosecutors to freeze the assets even without hearing from the defense. We will follow the case closely.

Here in Atlanta, the local federal Court of Appeals just affirmed a conviction in a mail fraud and bribery white collar case out of Jacksonville, Florida. The case is but the latest saga in the long-running debate over the contours of "honest services fraud", the species of fraud so often used by federal prosecutors when they go after what they perceive to be "local corruption." In a 2-1 decision, the majority held that the Defendant's convictions should be affirmed, even though one of the two judges in the majority had real problems upholding the lower court's rulings. Judge Hill issued a blistering dissent, perhaps foreshadowing a more full review by the entire court. The case is US. v. Nelson, and can be found here.

Mr. Nelson was the chairman of the board of Jaxport, the entity that basically oversaw the port authority in Jacksonville. The board members worked part-time, were not paid, and were prohibited from voting on any matter in which they had a financial interest.

Mr. Nelson lobbied on behalf of a company named SSI, received payments from SSI, and therefore did not vote on any SSI-related matters that came before the JaxPort board. He did urge staff members to help SSI on certain payment issues, but as noted by the dissent, "The evidence was that no economic harm befell JaxPort as the result of Nelson’s lobbying for SSI". At one point he got an opinion from the City's chief legal officer that he would have no problems in continuing his lobbying on behalf of SSI so long as he did not vote on anything that affected that company. His biggest problem was that he and SSI concealed the payments he received, the money was routed through a couple of other intermediary companies before it got to Nelson. The FBI got wind of the relationship between Nelson and SSI, they tapped their phones, and one morning agents showed up at Mr. Nelson's house for a "talk." He told them that once they arrived on his doorstep he then knew the payments were wrong, but did not say he previously was aware of the wrongfulness of his conduct.

Despite all this, the feds indicted Mr. Nelson for "honest services" mail fraud and federal services bribery. Many of us know the history of the honest services theory, a method of criminalizing what is basically the violation of a fiduciary duty. In the famous Skilling case, the U.S. Supreme Court restricted the honest services theory to "core" cases involving bribery and kickbacks, and seemed to hold that concealing one's financial relationship is not the sort of conduct which can be prosecuted under these laws.

The majority in Nelson used a round-about way of deciding that he was guilty. Although he could lobby on behalf of SSI, and although he did abstain from voting on SSI business, the concealment of his payments from SSI meant that he had the intention to accept a bribe. Judge Hill's dissent seems to be far more on point: "[C]oncealment alone is legally insufficient to prove Nelson had corrupt intent to be bribed. If Nelson had no duty to disclose his financial relationship with SSI, as Skilling says, and the payments were permitted, as he was told, then the jury was not permitted to infer a corrupt intent to be bribed by his concealment. The government’s theory was that – although concealment is not a crime – it was evidence of corrupt intent and this mens rea turned lawful lobbying into unlawful bribery. I disagree. Bribery requires a corrupt agreement to perform an unlawful official act – an actus reus. In this case, Nelson agreed to perform a lawful act. The lobbying was permitted. An agreement to perform a lawful act is called a contract, not bribery."

The case also involved some serious problems with the jury instructions. Again, however, the trial lawyers failed to object, letting the appellate court use the "plain error" standard way of gutting the argument. As I have noted many times before, none of us is perfect, as trial lawyers we all make mistakes, but we also all need to remember to try and object as often as possible to any potential problem with jury instructions.

A decision from an Atlanta case that was issued last Friday once again demonstrates that sentencing hearings in federal criminal cases are amazingly complex, and can lead to surprises. In the case from last week, US v. Kuhlman, the Sentencing Guidelines called for a range of 57-71 months in custody. Prosecutors asked for 36 months. The Defendant paid almost $3 million in full restitution. The Judge continue the case for 6 more months, during which time the Defendant performed almost 400 hours of community service. At the next sentencing hearing, the Judge decided it made no sense to put the Defendant in prison, so he imposed a "time served" sentence. The prosecutors appealed, and the Court of Appeals agreed with them, reversing the probationary sentence and remanding for another sentencing hearing.

The Defendant was a local Atlanta area chiropractor who owned and operated a series of clinics. Beginning in January 2005, he began a five-year scheme, falsely billing health insurance companies for services he knew were not rendered to his patients. The Defendant was charged in a criminal information with one count of health care fraud in violation of 18 U.S.C. §§ 1347 and 2. He pleaded guilty pursuant to a plea agreement. At the plea hearing, the chiropractor admitted that he did not steal out of need—he was not in financial trouble and he did not have creditors breathing down his neck asking for money. Instead, he conceded that he simply pushed the envelope of billing practices.

A few days before sentencing, the doctor paid $2,944,883 in full restitution. The Judge was obviously impressed and remarked that the chiropractor was the first Defendant that the Judge could recall who made such a large restitution payment prior to sentencing.

The very experienced Judge proceeded to discuss the rising costs of incarceration, citing a recent Georgia state commission formed to explore alternatives to prison for nonviolent criminals. The Judge alluded to the fact that the chiropractor would need time to pay off his fine and support his family. The Judge also hinted that if given extra time before sentencing, perhaps the doctor should perform public service. The Judge continued to express concerns over the rising costs of prison and suggested that a continuance would save “the court . . . at least $10,000 by not incarcerating the Defendant during this period." The Judge, who has been on the bench since the early 1980's, also noted that he had ordered a similar sentencing continuance for a “budding rock star,” which had yielded positive results. The Judge explained that when given the extra six months, the “budding rock star” made “hundreds of visits to young people” and had a positive impact on the community.

Over the following six months, the doctor made good on the opportunity given to him by the Judge. The Defendant performed 391 hours of community service. He visited various medical, nursing, and chiropractic schools and gave presentations on health care insurance fraud. He also provided 18 days of free chiropractic services at homeless shelters across Atlanta and painted a gym at an elementary school. At the second sentencing hearing, the Judge commended the doctor's work during his six-month continuance. In light of the full restitution payment, the community service, and the rising costs of incarceration, the Judge sentenced the chiropractor to probation for the “time served” while awaiting his sentence.

The Court of Appeals decided that the sentence was simply too lenient. The opinion goes on for pages railing against the idea that "white collar" criminals somehow get a break by paying full restitution.

This case is highly disappointing. As kids we are taught that a person stealing something should pay back that which was taken. Then, when showing remorse, we are told that the person should say they are sorry, and demonstrate to others the wrongfulness of their conduct. Here, the three judges felt they knew better than the highly experienced Senior District Judge. These judges believed that it's better to put a productive man in prison and spend tens of thousands of taxpayer dollars, even though the chiropractor paid back every penny. We sincerely hope this case does not show a trend of appellate judges reversing what they perceive to be unduly "lenient" sentences.

In an amazing opinion issued in Atlanta by the Eleventh Circuit, the court reversed a series of federal criminal convictions because the indictment did not even charge a crime. And, they did so even though none of the lawyers for either side bothered to address whether the indictment properly charged a federal criminal offense! The whole issue came down to whether the Defendant's actions were "contrary to law", and because they were not, the court of appeals reversed all their convictions.

The Defendants and their company imported dairy products into the U.S. from Central America. Apparently, several of their imported products were contaminated with E. Coli and salmonella.

Some of the post-9/11 laws beefed up the statutes that criminalize the unlawful importing of goods into the United States. One of those laws is 18 U.S.C. § 545. The unlawful importation charges in the indictment here were based on violations of a Customs regulation, alleging the failure to deliver, export, and destroy with FDA supervision certain imported goods found to be adulterated. See 19 C.F.R. § 141.113(c). Failure to comply with this regulation typically gives rise to a civil remedy of liquidated damages in the amount of three times the value of the goods.

The criminal statute, 18 U.S.C. §545, says it is a crime to import items if doing so is "contrary to law". To summarize what is a quite lengthy decision, the Court of Appeals decided that the regulation is not the kind of "law" referred to in this particular criminal statute.

To me there are two notable items from this decision. First, the Court of Appeals itself brought up the whole issue of whether the indictment even charges a crime. The judges told the lawyers for both sides to file more briefs on the questions of whether 1) the appeals court can even address the issue if no one raised it (they decided they could), and 2) whether the charges, as set out in the indictment, even alleged a crime. I've been doing this a very long time, but cannot ever remember a similar case.

The second thing that popped out to me when reading the opinion is that the Court of Appeals totally rejected the prosecutor's arguments that any problems with the indictment could be fixed by "inferring" the missing pieces. My law partner, Carl, and I have been fighting this fight for over a decade now. Prosecutors get invalid indictments that do not allege everything needed to prove a crime, but judges have been increasingly letting them get away with it by referring to some faulty and flimsy earlier rulings where the missing elements of the crime are put back in by the process of making an "inference.

It is cases like this that re-energize me. I am glad to see judges who take their jobs seriously and who do not think they are supposed to merely rubber stamp every conviction that comes along. While such cases get my juices flowing, the decision also reminds me that all lawyers need to take a good long look at the charges in an indictment, and not just assume the charging document actually alleges a crime.

My law partner, Carl Lietz, has previously had good results when we represented medical doctors accused of over-prescribing pain medication. He has written earlier posts on this subject. We are seeing more and more of these cases, as shown by recent press releases and news reports. Today, the United States Court of Appeals for the Eleventh Circuit, just a few blocks away here in Atlanta, affirmed the conviction of a doctor, a pharmacist, and a physician's assistant for conspiracy and dozens of counts of over-prescribing pain medications. The case is United States v. Joseph.

The case was prosecuted in the Middle District of Georgia where Dr. Green ran a clinic. His Physician's Assistant was Ms. Mack, and most of the prescriptions were filled by a local pharmacist, Mr. Joseph. The Court of Appeals' opinion recounts the usual evidence we see in such cases involving "pill mills", hundreds of patients paying in cash or credit cards, no insurance, patients traveling long distances just to go this particular clinic, and limited or non-existent medical exams prior to writing or re-filling prescriptions for addictive pain medications.

There are several notable features of this case. One is that both sides called expert witnesses on the "standard of care" to be used by doctors and pharmacists. This is a crucial aspect when defending such cases. Many lawyers fail to recognize they need to prepare for a government "expert" who routinely tells juries the same thing: "I would never do what this doctor did." However, these government experts often fail to recognize the true need many patients have for pain medicines. My partner Carl has previously used a well-recognized defense expert witness who was able to at least counter what the government doctor was prepared to say.

Another important aspect of the case is that most of the defense arguments were rejected by the Court of Appeals under the "plain error" standard, because the trial lawyers failed to properly object to a mistake by the trial judge. Even very good lawyers often fail to preserve objections, which makes it very hard to win a case on appeal. Our firm does lots of appeals, and while we are far from perfect, we believe our appellate cases helps us do a better job in trial when trying to preserve an issue for appeal.

Finally, the case is instructive in that the doctor was given a sentence of 30 years in prison, because patients died or suffered serious bodily injury stemming from their use of the excessive pain medications. Such a sentence demonstrates the serious nature of these cases, and why medical practitioners need to find lawyers who are skilled in federal court when defending such matters.

A recent case out of Alabama addressed the intersection between gun possession and having the right to vote restored after an earlier felony conviction. As just about everybody knows, a person convicted of a felony usually loses some of their "civil rights", even if they never go to jail. The federal government makes it a separate crime if a previously-convicted felon possesses a firearm. Many states, however, have laws that quite sensibly restore a person's "civil rights". Another portion of the federal gun laws says that when a convicted felon's civil rights have been "restored", then the conviction does not count when deciding if the person violated the law prohibiting felons from having guns. Our beloved Eleventh Circuit Court of Appeals here in Atlanta decided that having a person's right to vote restored under Alabama law was not the same as having ones civil rights (plural) restored, so that the person could be convicted for possession of a gun after a felony conviction. The case is United States v. Thompson.

in March, 1994 Mr. Thompson was convicted of assault, and under Alabama law he automatically lost the right to possess a firearm, to hold office, to serve on juries, and to vote. Eleven years later, Thompson applied to the State of Alabama for restoration of his civil rights. He got a letter from the State of Alabama Board of Pardons and Paroles in early, 2006, which said that he could once again register to vote and actually vote in elections. However, the letter also said that "THIS CERTIFICATE IS NOT A PARDON AND DOES NOT RESTORE, REMOVE OR ADDRESS ANY OTHER RIGHTS, PRIVILEGES OR REQUIREMENTS.” Another letter said that, “ If you desire to have any additional rights restored, please inquire at your local probation and parole office.” Three and a half years later, the police arrested Mr. Thompson while he had a gun. A federal grand jury charged Thompson in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Thompson moved to dismiss the charges, pointing out that because his right to vote was restored, he fell within the exception described at 18 U.S.C. § 921(a)(20), which provides that “[a]ny conviction . . . for which a person . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” § 921(a)(20) (emphasis added).

The Eleventh Circuit began by noting that neither the statute nor the legislative history clarifies which civil rights must be restored to a convicted felon in order to satisfy the § 921(a)(20) exception. Earlier cases said that when a convicted felon’s civil rights are “unreservedly” restored, the person qualifies for the § 921(a)(20) exception, but that that the exception does not apply where a convicted felon has no civil rights restored after his conviction. One of the earlier cases noted it was an open question as to whether “all civil rights must be restored or merely some of them, and if only some, which ones, in order for § 921(a)(20) to preclude a convicted felon’s prosecution under § 922(g)(1).” With that as background, the Court of Appeals turned to the question of whether the restoration of only the right to vote was a sufficient restoration of civil rights under § 921(a)(20) to preclude a convicted felon’s prosecution for possessing a gun.

For two reasons, the Eleventh Circuit decided that restoration of only the right to vote is not good enough to use the exception. First, the Court pointed out that the law was written using the plural word "rights" and not the singular "right." Second, the Eleventh Circuit surveyed the landscape of other federal appellate decisions, concluding that the single restoration of the right to vote was not enough to allow for a defendant to use this exception.

The bottom line is that when a person gets a state felony conviction, he or she should try everything possible to get as many of their rights restored as possible, if they ever want to again possess a gun.

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.

As we all know, the Constitution is the beginning point for all laws enacted by Congress. Under the Constitution, Congress has the power “define and punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10. Using the Maritime Drug Law Enforcement Act (MDLA), prosecutors got an indictment against the sailors alleging they had the intent to distribute five kilograms or more of cocaine, and actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States. See 46 U.S.C. §§ 70503(a), 70506; 21 U.S.C. § 960(b)(1)(B).

Prosecutors argued that the MDLA, as applied to the defendants, was a constitutional exercise of the power granted to Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” In rejecting this claim, the Court of Appeals first discussed how the power of Congress to define and punish conduct under the Offences Clause is limited by customary international law. Second, the court explained that drug trafficking is not a violation of customary international law and, as a result, fell outside of the power of Congress under the Offences Clause. As a result, the Panel took the highly unusual step of deciding that a federal law (the MDLA) was unconstitutional.

There still are other federal laws that prosecutors can use when trying to haul an international criminal into a court sitting in the U.S. However, this decision is important for a variety of reasons, not the least of which is that it shows that lawyers need to try each and every avenue available in trying to assist their clients.

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.

Concerning the machine gun, the Defendants claimed that the trial judge committed an error by failing to instruct the jury that they knew the firearm was a machine gun when they possessed it. The district court instead merely instructed the jury that they needed to find that each defendant “knowingly possessed” each firearm, including the machine gun. The Defendants argued that this instruction was insufficient because the jury was required to find, beyond a reasonable doubt, that the defendants knew the gun they possessed had the characteristics of a machine gun, relying on United States v. O’Brien 130 S. Ct. 2169, 2180 (2010). The Court of Appeals rejected this claim, holding that the Supreme Court merely held that whether a firearm was a machine gun was an element of the offense, rather than merely a sentencing enhancement. The Eleventh Circuit decided that the Supreme Court did not require that a defendant’s knowledge that a firearm is a machine gun must also be so proved.

The Eleventh Circuit reached a different result when it addressed the conviction of Mr. Beckford for knowing possession of a gun with an obliterated serial number. In a case of first impression in that Court, the Eleventh Circuit joined all other federal courts to address the question by holding that that knowledge of the obliterated serial number is an element of the offense. "Beckford must have possessed a gun with an obliterated serial number and known the number was obliterated." After making this legal ruling, the Court of Appeals then turned to whether there was enough proof that Beckford actually knew the serial number was obliterated. Usually, possession of a gun allows the jury to "infer" that the person possessing the firearm inspected it and should have know the serial number had been removed. However, in Mr. Beckford's case the evidence at trial was not sufficient to show that he possessed the gun for a period of time during which an ordinary man would have discovered that the serial number was obliterated. The court reversed Beckford's conviction for the following reasons: "Although the government established that Beckford discussed guns in general before the arrest and that agents found the gun in the flatbed of his truck (out of his reach) after the arrest, the government put forth no evidence that Beckford actually possessed the gun for any significant length of time. The government essentially proved only that Beckford had constructive possession of the gun at the time of the arrest. But this constructive possession alone cannot be sufficient to establish Beckford’s knowledge of the obliterated serial number because, if it was sufficient, the standard would eviscerate the knowledge element of [the statute] altogether."

Again, it is important to always challenge every aspect of the government's case when going to trial in federal court. Who "knows", the Court of Appeals might agree with the defense, as in Mr. Beckford's case.

Here in Atlanta we have a good relationship with the federal prosecutors, and can generally work out some good arrangements when we represent a client who is served with a federal grand jury subpoena. As we explain elsewhere, it is always a good idea to have a lawyer help one through this dangerous process. Yesterday the Eleventh Circuit issued an opinion that demonstrates the dangers of going through this process without at least first consulting with an experienced federal criminal defense lawyer. The case is US v. Merrill.

Mr. Merrill was involved in a company that sold munitions to the Army. The munitions would then be shipped to Afghanistan. There is a federal statute and regulation saying that companies cannot provide any such munitions if the material was manufactured by a company in Communist China. Merrill and others had "old" munitions that had been made by a Chinese Communist manufacturer years before the prohibition went into effect. When they tested the waters, they discovered that the US government would still not allow the use of this "old" Communist material, so they did what any self-respecting international arms dealer would do: they removed all signs of its origin and shipped the stuff to Afghanistan.

The feds eventually got wise, and sent Mr. Merrill a federal grand jury subpoena, telling him to appear in Miami two days before he was supposed to testify in front of a federal grand jury. Merrill apparently showed up with no lawyer helping him. You guessed it, during those two days a federal prosecutor and several agents "dry cleaned" Mr. Merrill, telling him that they had the goods on him, telling him it would be better if he 'fessed up, and getting him to basically incriminate himself.

They later indicted Mr. Merrill. His defense team argued that Merrill's statements should be suppressed because a court cannot admit against a defendant “a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.” Fed.R. Evid. 410(a)(4). However, there were no charges pending at the time of the interview. Furthermore, the Court of Appeals found it important that Merrill was free to end the interview or to consult with his attorney, and he declined to do either even though he was advised of his rights. And here's the important part: the trial court "credited the testimony of Agents Vasquez and Perez who testified that any discussions of leniency were general in nature and that no specific promises were made." As a result, the Court ruled that even if Merrill thought that he was cutting a deal when he made admissions to the prosecutor and the agents, the Court decided to believe the agents who testified that no such deal was discussed.

It is always important to have a lawyer when a person speaks with a federal prosecutor or agent. It is perhaps more important to have another person accompany the Defendant and the lawyer, so that if there is a dispute the Courts cannot always simply rubber-stamp whatever the agents "remember" from such a meeting. This recent case is further proof of why people should consult experienced federal criminal defense lawyers when they get a grand jury subpoena.