Federal Sentence Upheld Because of John Dillinger Law: Supreme Court Interprets "to accompany" to Include Moving Victim 9 feet

January 13, 2015 by Paul Kish

We handle lots of federal sentencing hearings, in Atlanta, Savannah, Macon, and throughout the federal courts in Georgia and other states as well. We are always interested when courts interpret laws that can impact the sentence that one of our clients might receive. This morning, the United States Supreme Court interpreted a law that impacts the sentence to be imposed on someone who robs a bank and is prosecuted in federal court. The law was passed by Congress in response to a spate of robberies committed by the notorious John Dillinger in 1934. The law requires a minimum of 10 years, and up to a life sentence, if the Defendant “forces any person to accompany him without the consent of such person”. In the case of the unfortunate Larry Whitfield, the high Court was faced with a situation where foolish Larry muffed a robbery, fled, then broke into an elderly lady's home, where he made her move 9 feet from one room to another, and she then she died. The sentencing judge hit Larry with the enhanced penalty based on forced accompaniment. A unanimous Supreme Court this morning upheld the sentence, the opinion can be read here.

I previously posted about this case here. I pointed out how the Defendant argued that a mere movement of 9 feet cannot be what Congress had in mind when they passed this serious sentencing enhancement for robbers who force a victim to go with the criminal.

In rejecting the Defendant's claims, the Supreme Court noted that this particular language was put into the bank robbery law in 1934. Congress enacted the forced-accompaniment provision in 1934 after “an outbreak of bank robberies committed by John Dillinger and others.” So, like a good strict constructionist that he is, Justice Scalia, writing for the Court, looked to contemporary uses of the phrase "to accompany". "It was, and still is, perfectly natural to speak of accompanying someone over a relatively short distance, for example: from one area within a bank 'to the vault'; 'to the altar' at a wedding; 'up the stairway'; or into, out of, or across a room", according to Justice Scalia. His examples all came from newspapers from that era.

The Defendant made a series of arguments based on the structure of the law, and how Congress could not have envisioned a life sentence simply because a person was moved 9 feet during a robbery escape gone awry. Unimpressed with this argument, Justice Scalia wrote: "The Congress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that. It is simply not in accord with English usage to give 'accompany' a meaning that covers only large distances."

While this case is rather rare, I nevertheless applaud the defense attorneys who kept plugging and tried to save their client some time.

A word worth 10 years in prison: Supreme Court hears arguments in Whitfield v. United States

December 3, 2014 by Paul Kish

"Words, words, words, first from him, then from you--is that all you blighters can do?", moaned Eliza Doolittle when tiring of her speech lessons in "My Fair Lady." Ms. Doolittle should be thankful she is not Larry Whitfield. Larry got an extra 10 years in prison for a bank robbery prosecuted in federal court because of a single word. During the crime he forced someone to "accompany" him by moving a grand total of 9 feet from one room to another. this act resulted in 10 years being added to his sentence. The United States Supreme Court heard arguments in the case yesterday. The docket for the case can be found here.

Larry is not only unlucky, he also seems to be like too many criminals, bad at his work. He botched a bank robbery in 2008 in North Carolina. Fleeing the scene, Whitfield entered the home of a 79-year-old woman, telling her he needed a place to hide. He directed the woman, who was upset and crying, to move with him from her living room to another room some nine feet away.

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Department of Justice Expected to End Insistence on Waiver of Appellate Rights

September 29, 2014 by Carl Lietz

If reports are true, those of us that handle federal criminal cases here in Atlanta and elsewhere received some much welcomed news this morning. It is being reported by Law 360 that within the next week or so, Eric Holder is expected to announce that the Department of Justice will end its longtime policy of requiring individuals who desire to plead guilty to accept plea agreements that include appellate waiver provisions within those agreements. Quite justifiably, these waiver provisions have received a great deal of criticism over the years, and the time for ending this policy is long overdue.

Best I can tell, the DOJ policy of requiring appeal waivers in plea agreements officially began in 1997, when the Department issued a directive requiring prosecutors to include such a provision within plea agreements. Although these provisions are not included in every single plea agreement in federal court, waiver provisions are included within the large majority of federal plea agreements. Under the "standard" waiver provision, individuals are required to waive two statutory rights. First, except for very limited circumstances, an individual is required to waive his statutory right to direct appeal. Second, an individual is also required to waive his right to waive his statutory right to collaterally attack his conviction and sentenced under 28 U.S.C. § 2255.

Federal criminal lawyers have been fighting against and challenging these waiver provisions for many years now. In our District, the Federal Defender Office has been leading the fight, doing everything possible to educate lawyers about the problems with these provisions, as well as coming up with ways in which the pitfalls created with these provisions can be avoided. For example, charge bargaining and appeal waiver exceptions can help cure part of the problem but in most cases, even these solutions do not address all of the risks created by appellate waivers.

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Another Federal Criminal Case Reversed by the Supreme Court

June 4, 2014 by Paul Kish

Readers know that federal criminal cases are a large portion of our work, so we pay attention to the laws, reported decisions and news stories about how the "feds" sometimes brings really unfortunate criminal cases. This past Monday, the United States Supreme Court reversed yet another unfortunate federal criminal case, because what the Defendant did was not even a federal crime. The case is a perfect example of how some federal prosecutors will take even the smallest case and try to"make a federal case out of something." The case is Bond v. United States, and can be read here.

A Pennsylvania woman learned that her husband had impregnated her former best friend. The woman put some caustic chemicals on the pregnant woman's door handle. The victim was slightly burned on her hand, which she remedied by washing. Sounds like a state law case, right? Wrong! Some ambitious federal prosecutors brought a federal case against the Defendant for violating a 1998 statute that was designed to implement US treaty obligations concerning chemical weapons. A divided Supreme Court reduced the scope of this statute. The majority ruled that Congress could not have intended to make it a federal crime — with global implications — for a woman to try to poison her husband’s lover.

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Federal Criminal Case Reversed by the U.S. Supreme Court: We Were Right All Along!

March 10, 2014 by Paul Kish

We pay attention to federal criminal cases everywhere in the country, not just those here in Atlanta or other parts of Georgia, nor merely those arising in nearby states like Florida, Alabama or Tennessee. One reason we pay attention is so we know all the hot issues that might help our clients. One such issue focuses on how far one person can be held accountable for the actions of another person who was involved in the same crime. The fancy name for this is "aider and abettor" liability. In an earlier post I noted how I pushed this issue over 20 years ago, resulting in my very first win on appeal. I also noted how the U.S. Supreme Court recently took on a case that focused on whether my original arguments were correct. Last week, they issued their ruling in Rosemond v. United States, and they agreed with the defense perspective. You can read it here.

Justus Rosemond took part in a drug deal where either he or another participant fired a gun. Federal prosecutors charged everybody involved in the deal with shooting the weapon, and their theory was either that Rosemond himself shot the weapon, or that he "aided and abetted" the shooter. That's crucial because an aider and abettor is just as responsible as the actual shooter, and would get the same mandatory additional 5 or 7 years tacked on to a sentence.

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Federal Criminal Law: Supreme Court Agrees that Defendant Should not get Longer Sentence

February 3, 2014 by Paul Kish

Recently, the United States Supreme Court issued another ruling that impacts federal criminal cases. The issue in this recent case was whether the Defendant should get an automatic longer sentence that is imposed when "death results" from drugs that the Defendant sold. I previously posted about this case here, and the the recent decision (which was published when I was away on a well-needed vacation) is here.

In this recent case, the Supreme Court looked for the meaning of the term "result from" in a case where the district court imposed a 20-year mandatory minimum sentence upon a Defendant for the sale of one gram of heroin since a buyer's death had "result[ed] from" the use of the heroin as one of several drugs he consumed that contributed to the death. The Defendant (a man named Burrage) had sold drugs to Banka, who died after using both Burrage's heroin and several other drugs. Medical experts at trial could not say whether Banka might have died from using the other drugs even if he had not taken the heroin, but the experts all though that the heroin was a contributing cause of death.

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Federal Criminal Lawyers in Atlanta Celebrate Saint Crispin's Day!

October 23, 2013 by Carl Lietz

Over at the State Bar today here in Atlanta, the Federal Defender Office is holding its annual Saint Crispin's Day Seminar. Although I may be off a year or two, the FDP began holding this annual celebration over 10 years ago when Paul and I were still working in that office. The idea for the celebration was conceived by Tasha Silas, a long time federal criminal lawyer who has dedicated her life to public service.

The title of the seminar is a reference to Saint Crispin's Day, and the Saint Crispin's Day speech from Shakespeare's Henry V; in Henry V, Henry gave a rallying speech to the outnumbered English forces in the Battle of Agincourt. The speech inspired the 9000 English forces to overcome the odds and win the battle against the French, whose forces were estimated to be 36,000. Those of us that handle federal criminal cases can attest to the fact that we fight against overwhelming odds on a daily basis, and the seminar is designed to inspire and energize us.

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227 Feet Inside a Federal Boundary Line: Making a Federal Case Turns a Life Sentence into a Death Penalty

May 30, 2013 by Paul Kish

Criminal defense lawyers here in Atlanta, and other parts Georgia and the rest of the country all occasionally confront the question of why some prosecutions end up in federal court yet similar cases are handled in the state court system. I've written on this topic previously. Basically, criminal cases come into federal court whenever there is a federal person, place or money, or when the activity has an impact on interstate or foreign commerce. the other day, the United States Court of Appeals for the Sixth Circuit decided that a crime taking place 227 feet inside a federal boundary line was enough to turn a life sentence into the death penalty. The case is United States v. Gabrion, and it's an excellent example of how some matters end up in federal court, and why the stakes can be so much higher when the feds decide to take over a case.

Mr. Gabrion committed brutal murders in Michigan. One of the bodies surfaced from the bottom of Oxford Lake. A national forest boundary line ran through the part of the lake. The body was found 227 feet inside the boundary line of federal property.

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Federal Criminal Cases and Discretion: the Recent Furor Over IRS Targeting Politically Conservative "Non-Profits"

May 16, 2013 by Paul Kish

Federal criminal cases here in Atlanta, throughout Georgia, in Alabama or Florida, and anywhere around the country are all brought after a federal prosecutor makes an independent decision as to whether the matter truly should be brought in federal court. Making this decision involves the time-honored concept of discretion. The recent publicity about the fact that the IRS seemed to have harsher standards for some politically conservative "non-profit" organizations has brought the white-hot light of scrutiny on the whole idea that federal officials use their discretion to go after some groups, while leaving others alone.

First, let's look at the recent furor over the IRS practices. There has been a report by the Treasury Inspector General for Tax Administration Office of Audit, and this document shows how "Early in Calendar Year 2010, the IRS began using inappropriate criteria to identify organizations applying for tax-exempt status to review for indications of significant political campaign intervention." This Report was only issued a couple of days ago, but it caused a firestorm. The other day President Obama stated that the Reports findings are "intolerable and inexcusable," and last night he fired the Acting IRS Commissioner. The Report made several recommendations, including "develop training or workshops to be held before each election cycle including, but not limited to, the proper ways to identify applications that require review of political campaign intervention activities."

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The Fourth Amendment in the Modern Age: Supreme Court Looks at DNA Samples Taken From Everybody Who Gets Arrested

February 26, 2013 by Paul Kish

Here we go again, the intersection of the Eighteenth Century concept of privacy enshrined in our Fourth Amendment (no searches or seizures except when done pursuant to a warrant based on probable cause) versus the modern "CSI" world where investigators take biological shards to solve the most difficult of crimes. Today, the Supreme Court hears arguments in Marlyand v. King.

Most of the states along with the federal government have laws that provide for automatic DNA collection from people at the time of their arrest. The King case argued today asks the question whether it is unconstitutional to do that without a warrant, for the sole purpose of checking the DNA against a national DNA crime scene database.

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