Federal Criminal Lawyer Blog

Federal Criminal Charges were announced yesterday here in Atlanta by the U.S. Attorney. The feds have indicted a well-known State legislator, Representative Tyrone Brooks. According to the indictment, Representative Brooks committed mail fraud, wire fraud, and tax crimes. The grand jury returned a 30-count indictment which charges that, from the mid-1990s through 2012, Brooks solicited contributions from individuals and corporate donors to combat illiteracy and fund other charitable causes, but then used the money to pay personal expenses for himself and his family.

It seems there are three basic sets of crimes alleged in the indictment. First, there are two separate supposed frauds, followed by allegations that Representative Brooks violated the tax laws.

The first of the two fraud schemes supposedly involves a tax-exempt charity, Universal Humanities, Inc., that Brooks established in the early 1990s. The grand jury alleges that Brooks solicited contributions from corporate and individual donors purportedly to combat illiteracy in disadvantaged communities in Georgia and across the southeastern United States, eventually raising more than $780,000. The feds claim that Representative Brooks made specific false representations about the work that Universal Humanities was doing and how the donated funds would be used. Prosecutors also contend that in reality, Brooks did not use the donations to promote and address literacy in Georgia or elsewhere. Instead, the indictment alleges that Brooks used the money to pay personal expenses for himself and members of his family.

The second fraud scheme alleged involved the organization Georgia Association of Black Elected officials (GABEO). The indictment alleges that Brooks diverted charitable donations he solicited on behalf of GABEO and used much of the money to pay personal expenses for himself and his family.

The indictment alleges that Brooks solicited contributions to GABEO from corporations, organizations and individuals. The feds contend that Brooks secretly opened a second GABEO bank account, and set himself up as the sole signatory on this account, and had the account statements sent to his address rather than the address of the GABEO Treasurer. Brooks then deposited the donations he solicited on behalf of GABEO into this undisclosed account, and used much of these funds to pay personal expenses for himself and his relatives.

Finally, the indictment charges that Brooks underreported his income to the IRS for the years 2007 through 2011. Prosecutors contend that Representative Brooks misappropriated of hundreds of thousands of dollars through the two fraud schemes concerning Universal Humanities and GABEO, yet his tax returns for the years between 2008 through 2011 falsely reported income of only approximately $35,000 annually.

This indictment is like so many we have seen when we have represented public officials who face federal criminal charges. While often the defense team can show there was no fraud, or at least some confusion as to the fraud charges, it is exceedingly difficult to defend the tax charges when they come up with specific expenditures that clearly show the Defendant had income, yet that same income never shows up on the Defendant's tax return. We have represented a number of public officials facing similar charges, and look forward to seeing how the defense responds to these allegations.

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."

For starters, it is not really all that controversial to stand up and say that politics do not belong in the agencies of our government. Whether it is the Department of Justice making decisions on what crime to prosecute, or the Securities and Exchange Commission excersizing discretion in making cases against some but not all securities fraudsters, when politics clearly is driving these discretionary decisions, someone should immediately stop this from happening. We all know about internal compliance programs in the corporate world, so maybe we need to beef up compliance programs and monitoring within the government world.

What truly startles me is that this process of targeting certain groups has been going on for years, but it only becomes a big issue when politically conservative organizations and their outsized ability to scare elected officials are targeted. No one uttered a peep back in the 1980's when prosecutorial discretion in bringing federal drug cases decimated an entire generation of young African American men, with wholesale use of the draconian crack cocaine drug laws and their utterly unfair mandatory minimum penalties that were 100 times more stringent than penalties for powder cocaine that was preferred by most White Americans who used the drug. I never heard the political class up in arms when federal prosecutors used harsh penalties from the Armed Career Criminal Act of 1986 to take over street crime cases and hand out life or near-life sentences when some poor mope merely had a gun and was doing yet one more stupid thing. Nobody said anything when federal prosecutors over the past 15 years have engaged in wholesale prosecutions of aliens, imposing harsh sentences on people who may have committed crimes but who have no political power in that they are from another country.

I always tell young lawyers that federal criminal cases are ALWAYS political. Prosecutorial discretion is always exercised with an eye towards the ballot box. While I am glad that the nattering nabobs are at least discussing the concept that prosecutorial discretion should be even-handed, I just wish they would be as loud when it involves folks with less political clout.

In any criminal case, whether in Federal Court or one of the State Court systems, prosecutors are supposed to "play fair". The Fifth Amendment to our dear Old Constitution enshrines this fairness obligation in what we lawyers call the "Due Process Clause." Yesterday was the 50th anniversary of the day in 1963 when the United State Supreme Court issued its landmark ruling of Brady v. Maryland. That was the case in which, for the first time, the Supreme Court said that the Due Process Clause mandates that a prosecutor play fair by telling the defense about any exculpatory evidence, or evidence that tends to show that the defendant was not guilty. However, as basic as this obligation seems to be, I often wonder if our clients are that much better off than 50 years ago.

Like defendants in many famous Supreme Court cases, John Brady was no saint. On June 27, 1958, he and Donald Boblit robbed and killed a man named William Brooks. Boblit quickly confessed that he had strangled Brooks to death, and that he acted alone. However, the prosecutors handling the case against John Brady never informed the defense attorneys about this confession and never turned over the transcript of Boblit's remarks.

Both Boblit and Brady were convicted and sentenced to death. Only after the trial did Brady's lawyers discover that prosecutors had a confession from Boblit that helped exonerate Brady. The attorneys found out by reading a transcript of Boblit's trial. So, Brady's attorneys sensibly asked for a new trial. The trial judge refused. Next, the Maryland Court of Appeals concluded that the suppression of the confession violated Brady's Due Process rights, but said he was only entitled to a new sentencing trial. Because his lawyers believed the whole trial had been tainted, they asked the United States Supreme Court to look into the matter.

The justices used Brady's case to memorialize a constitutional rule that imposed on prosecutors the affirmative duty to share with criminal defendants evidence that by its very definition would undermine the prosecution's case. The motives behind the suppression of the evidence didn't matter. However, in later years the Supreme Court greatly reduced the impact of this landmark ruling, by holding that an unfair prosecutor who hides exculpatory evidence will not cause a new trial unless that hidden evidence was "material". Evidence is material, only when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." This was a big victory for prosecutors and an even bigger defeat for aggrieved defendants.

As a young lawyer, I was kind of shocked about how the Brady rule is played out in a real case. I would always ask the Judge to make the prosecutor turn over the "Brady materials." The prosecutor would routinely roll his or her eyes, and intone that the government was well aware of its obligations, and that was it. The judge never made any inquiries, and I was left with the distinct impression that the Brady rule is merely an example of the fox guarding the henhouse. Why would a prosecutor ever turn over evidence that helps the Defendant if the prosecutor truly believes the Defendant is guilty? Furthermore, even if a prosecutor is not trying to hide anything, it seems ridiculous to ask that same prosecutor to figure out if a piece of evidence is potentially exculpatory, in that the prosecutor does not really know where the defense is going. Federal court is the worst of all, in that the discovery rules do not make a prosecutor turn over very much at all, and so no one really knows if there is some truly good defense evidence lurking in the files of one of the investigators.

Not only does the Brady rule seem to fall flat in real cases, it seems that when a prosecutor is caught withholding evidence, very little is done. Prosecutors who violate the obligation to disclose favorable evidence are rarely sanctioned by courts, and almost never by disciplinary bodies. I remember one case where I caught the prosecutor red-handed. Fortunately, my client was acquitted. When I complained about the prosecutor's violation, his boss shrugged, saying "Why does it matter, you walked your man didn't you?" That attitude seems to still prevail 50 years after the Brady decision was issued. Things might be better if all prosecutors would simply use an "open file" discovery system, but for some reason, they often are reluctant to do so. That is truly bizarre, since when there is a fight over money, each side has to make full disclosure to the other, but when freedom (or even the death sentence) is at issue, one side gets to hide the ball and only has to turn over exculpatory evidence when it is "material." Have we really improved since 1963?

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).

A federal statute requires a 20-year mandatory minimum sentence for a person dealing drugs "if death results." At trial, the Defendant wanted the judge to tell the jury that selling heroin "played a substantial part" in bringing about the death, and that the death was a "direct result of or a reasonably probable consequence of" using the heroin. Mr. Burrage's attorney also wanted a jury instruction on the well-known first-year law school concept of "proximate cause" . The trial judge and the court of appeals rejected the Defendant's contentions, and said it was OK to tell the jury that it was enough if they decided that the heroin was a "contributing cause" of Mr. Banka’s death. The instruction told the jury that "a contributing cause is a factor that, although not the primary cause, played a part in the death[.]” The jury found Burrage guilty, the Court of Appeals rejected his arguments, and his very competent Iowa lawyer asked the United States Supreme Court to look at the case.

The government protested that the Supreme Court should not review the case because the "if death results" issue rarely comes up in federal criminal prosecutions, and that any dispute among the lower federal courts on these questions is really more of a tempest in a teapot. However, it seems that the Supreme Court believes this really is an important case, for they accepted Mr. Burrage's case for review and argument next Fall. The case will have important lessons for many other federal criminal prosecutions, issues as diverse as how to read a statute written in the passive voice ("if death results" is different than the active voice "caused death"), whether it is OK to construe a criminal statute with mandatory penalties in a manner akin to strict liability, and varying levels of "causation", a concept that applies in criminal and civil cases alike.

We look forward to the Briefs and arguments, and how this decision might affect the matters we handle for our clients. Stay tuned.

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.

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.

Recent publicity about airline passengers accused of federal crimes while on airplanes (such as the executive accused of hitting a crying child while on a Delta flight arriving here in Atlanta) got me to thinking about how flying has changed over the years. It's much less fun, that's for sure. The recent publicity reminded me also that over the years I have represented many people accused of crimes while on airplanes. The federal prosecutors are bringing more and more criminal cases based on actions of passengers in airplanes. Such cases are challenging, even though on occasion we have been able to get good results for our clients.

I recall one case where our client was accused of basically "touching himself" while sitting next to a couple of teenage girls. We had a long trial, a challenging sentencing hearing, but all along I had hope that we might prevail. We lost, but not until we made the other side work very hard. Here is the final ruling by the Court of Appeals. I still think we were right.

Some of the recent cases also reminded me of a medical doctor I represented who got caught up in the post 9-11 laws that criminalize lots of innocent conduct. One of those laws (18 United States Code, section 1038) makes it a crime to make a false report of something, which if it was true, would be a terrorist act. Through a series of mishaps, the doctor was pulled off a plane, but they would not remove his luggage, and planned on sending the flight along without him but leaving his bags on board. He complained, explaining that was stupid, in that for all they knew, his bags could contain explosives. That was not a smart thing to say, but it also was not a crime, in my estimation. Over the course of several years, I filed hundreds of pages of legal motions challenging the statute, and argued that the doctor had a First Amendment right to make a truthful statement: it is stupid to allow a passenger's bags to remain on a flight when the passenger himself is no longer one of the passengers. After lots of work, we eventually convinced the prosecutors to drop all charges. The incident still pops up from time to time when the doctor's medical license is up for renewal, but every time it has we convinced the regulatory bodies that he did nothing wrong.

The federal authorities like to make criminal cases when activities take place on airplanes. I probably will see more of these in the years ahead.

Earlier today, the Department of Justice issued a press release announcing that it reached an agreement with BP Oil in which BP agreed to plead guilty to a number of federal criminal violations. More specifically, according to the press release, BP has agreed to enter guilty pleas to violations of various federal criminal statutes involving the Clean Water Act, the Migratory Bird Treaty Act, Obstruction of Congress, and a number of even more obscure federal criminal laws pertaining to the Seaman's Manslaughter Act. In addition to agreeing to plead guilty to these federal criminal offenses, BP also agreed to pay $4.5 billion, including $1.3 billion in criminal fines. At a press conference announcing the resolution of these federal criminal charges, Attorney General Eric Holder stated that "[t]his marks the largest single criminal fine and the largest total criminal resolution in the history of the United States."

I grew up in the Northern District of Florida and the impact that the oil spill had on the people and the environment in that area is something that hits close to home for me. My family was down on the Gulf Coast the summer that the spill occurred and we observed firsthand how the people, the economy, and the environment were unquestionably impacted in negative ways that most of us never envisioned. In addition, I still have many close friends that live in Pensacola and one of our special friends (and a fellow federal criminal defense lawyer) lives on the beach over in Alabama. For these and other reasons, although I am not particularly familiar with the "evidence" against BP, I was pleased to hear of today's criminal settlement with the company.

Sometimes, however, it feels like the Department of Justice goes too far. And, again, although I am not familiar with the evidence, I could not help feeling that way today when I read that in addition to the settlement of the criminal matters against BP, the Department indicted three former BP employees for alleged violations of federal criminal statutes. Back when the spill occurred, it was not difficult to predict that the Government would ultimately indict individuals in federal court. And today, the Government made that prediction a reality.

One of the former employees that got indicted today was BP's former vice-president of exploration for the Gulf of Mexico. In the indictment unsealed against him, the Government alleged that he obstructed justice and provided false statements in connection with the Government's investigation of the BP spill.

In addition to this higher ranking former BP employee, however, the Government unsealed indictments against two rig workers. According to those indictments, these two workers acted negligently in their supervision of key safety tests, and failed to phone engineers onshore to alert them of problems in the drilling operation. Not surprisingly, the indictments against these low level rig workers were signed by Lanny Breuer, the Assistant Attorney General, and five members of the "Deep Water Horizon Task Force." From what I have observed, when the Government devotes resources like this to a matter, indictments will inevitably follow.

The attorneys for one of these rig workers expressed what I perceive to be as the feeling of many concerning these relatively low level workers. According to this federal criminal attorney, the Government was making "scapegoats" out of the two rig workers." This attorney also pointed out that his client "was not an executive or high-level BP official. He was a dedicated rig worker who mourns his fallen co-workers every day." In the view of this attorney, "No one should take any satisfaction in this indictment of an innocent man. This is not justice."

It will be interesting to watch this case unfold. It certainly seems destined for a trial in federal court. We intend to follow it and post developments here.

We have represented executives who worked years ago in businesses that are now under federal investigation for supposedly committing fraud and other white collar offenses. Because our clients left the business many years ago, we are closely following a case that might have a big impact on how we handle the matter. As most people know, crimes almost always are subject to what most people refer to as "the Statute of Limitations," or "SOL". In a few weeks the Supreme Court will hear arguments in a fascinating case involving the SOL. The main issue is whether a defendant who was in jail for more than the past 20 years can be forced to prove that he was no longer a member of and withdrew from a conspiracy that continued past the year 2000. The case is Smith v. United States.

The SOL means that once the limitations period has passed, prosecutors can no longer bring a case against a defendant. The general SOL in federal criminal cases says that the prosecutors must get an indictment within 5 years of a crime.

A subsidiary principle in SOL cases involves the idea of "withdrawal" from a conspiracy. Under this principle, a Defendant who is a member of a conspiracy can get out of the illegal agreement, but only if he does something to defeat the purposes of the conspiracy or lets the other members know that he is through with it. A Defendant who withdraws therefore is not guilty of the crime if he withdraws from the illegal agreement more than 5 years before the indictment was issued by the grand jury.

Mr. Smith has been in prison continually since 1990, except for about 16 months in 1993-94. During those 16 months prosecutors proved that he was a member of a far-flung and very violent drug gang in Washington, D.C. Mr. Smith went back to prison the last time on June 1, 1994. In the year 2000, federal prosecutors got an indictment which included a claim that Mr. Smith was a member of a conspiracy that started back in the early 1990's and went up to 2000. Mr. Smith's legal team argued that he had withdrawn from the conspiracy by virtue of being locked up for the 6 years preceding the day when the feds got their indictment.

The trial took 10 months. After 12 days of deliberation, the jury asked a very reasonable question: which side has the burden of proving whether a Defendant withdrew from a conspiracy? The trial judge told the jury that it was the Defendant who had the burden of proof, and furthermore, that he had to prove his withdrawal by a "preponderance" of the evidence, meaning it was more likely than not he had gotten out of the illegal agreement. In other words, the trial judge told the jurors that if they were 50% convinced that he had not withdrawn, then Smith was still guilty.

This issue has caused a big rift among the various federal courts of appeals, with 6 going one way, and 6 seeing it differently. The Supreme Court will address a series of questions in this important federal criminal appeal. First, under the Due Process Clause of the Fifth Amendment the prosecutors always have the burden of proof beyond a reasonable doubt for all "elements" of a crime. Because the existence and membership are elements of any federal conspiracy crime, Mr. Smith contends that it violates the Due Process Clause to make him disprove that he continued to be a part of the illegal gang. Second, the Supreme Court will confront a series of questions stemming from how to analyze the case if the trial judge made a mistake when telling the jury that Mr. Smith had the burden of proof. A very important case from a few years back written by Justice Scalia held that an erroneous instruction about the burden of proof means that the whole trial was tainted, regardless of how much evidence implicated the Defendant in question.

We think this is a very important federal criminal case, and will follow it closely.

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.