Top-Notch Federal Criminal Defense Lawyers Are Expensive, But the Supreme Court Says It's OK for Prosecutors to Freeze Assets Before Trial to Prevent Defendant From Hiring Counsel of Choice

February 27, 2014 by Paul Kish

I write often about criminal defense lawyers, and regularly point out how defending a client against federal crimes is a rare speciality that requires an attorney who keeps up on the law and who will fight for his or her client. In private practice, it is expensive to hire the rare lawyer who has all these qualities. Yesterday, the Supreme Court ruled that it is OK for prosecutors to tie up all the Defendant's assets pretrial with seizure of bank accounts that prevent the Defendant from hiring the specialist he or she has chosen to defend himself. The case is Kaley v. United States, you can read it here. I previously posted about this important case here and here.

Reduced to the basics, Ms. Kaley and her husband were suspected of crimes. They hired an amazingly good lawyer, and set aside the money needed to let this specialist do his job. The Feds got an indictment, and also got an order freezing the money Ms. Kaley had put aside to pay the attorney. Kaley eventually took the case to the Supreme Court, arguing that she at least had the right to a hearing to challenge whether there was enough evidence to justify tying up her assets even before a trial. She probably has a pretty good chance, in that a trial against a CoDefendant charged with the same crime resulted in an outright acquittal. However, Ms. Kaley did not fare so well in the Supreme Court, which ruled that she has no right to a hearing to challenge the seizure of her money even before a trial.

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Federal Bribery/Fraud Investigations: Lawyers Need to Keep Their Mouths Shut Occassionally

November 8, 2013 by Paul Kish

A major federal criminal investigation is apparently brewing in the San Diego area. According to news reports, like this one, there are allegations and criminal charges being alleged against some high-ranking Navy officers, and the owner of a major Asia-based supplier of fuel for US ships. While this is still very early, the charges seem to imply that Navy officials took bribes that helped the fuel supplier get more business. According to the charges, the supplier then gouged the Navy with higher prices. At least one Navy officer is also alleged to have kept the owner of the fuel supply company apprised on the internal investigation into all this "fuelishness".

I always read such stories with a jaundiced eye. The press if often captive to the prosecution at these early stages of a criminal case. Reporters often do nothing other than paraphrase whatever charging document is filed in court or parrot back the government's press release.

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Crime and the Internet: Federal Judge Throws Out Case Against Cops in Hurricane Katrina Shooting Because Prosecutors Were Anonymously Posting About the Matter

September 19, 2013 by Paul Kish

I write and think a lot about how federal criminal cases, and all criminal matters for that matter, intersect with the technological explosions we've seen in our lifetime. For example, in earlier posts like this one I've written about how courts are grappling with how to apply the principles from the 18th Century enshrined in our Fourth Amendment (no search and seizure unless based on probable cause and a warrant from a Judge) with the 21st century fact that cell phones can be searched and followed from just about anywhere. A few days ago, we heard about another instance where the modern world of the internet intersected with a federal criminal case, resulting in the dismissal of all charges when the Judge concluded that prosecutors violated the Constitution by anonymously posting about the case on a newspaper's web site.

The basic story goes like this. In the havoc following Hurricane Katrina, there were reports that police officers shot victims of that natural disaster. There was an internal investigation. Cops were interviewed, and were told that they had to answer questions, and that their answers could not be used against them in any subsequent case (we call this "immunized testimony"). State prosecutors thereafter got indictments and convictions. The state appellate courts overturned the convictions, because the immunized testimony WAS used against the cops.

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Federal Crimes on Airplanes: Flying is not as fun anymore

February 22, 2013 by Paul Kish

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.

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BP Settles Federal Criminal Case and Attorney for Rig Worker Accuses Government of Indicting a Scapegoat

November 15, 2012 by Carl Lietz

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.

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A crime long ago and far away: the Supreme Court confronts issues surrounding which side has the burden of proving "withdrawal" from a criminal conspiracy

October 22, 2012 by Paul Kish

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.

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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.

Federal Criminal Rules Should Require Prosecutors To Turn Over Witness Lists

May 3, 2011 by Carl Lietz

Earlier today, I learned of the Federal Criminal Rules Advisory Committee's decision to vote down (on a 6-5 vote) a proposed change to the Federal Rules of Criminal Procedure that would have required prosecutors to turn over all favorable evidence to the accused. Apparently, the Department of Justice convinced the Criminal Rules Advisory Committee to reject this proposed change. Although I am disappointed in this result, I can't say that I am surprised. This is not the first time that the Department of Justice has flexed its muscle to prevent the Federal Criminal Rules from being amended in ways that require broader disclosure in federal criminal cases.

Several years ago, I learned that in 1974, the Advisory Committee and the Supreme Court recommended amending the Rules to require the parties in federal criminal cases to exchange witness lists. This proposed amendment had a broad base of support, and ultimately both the Advisory Committee and the Supreme Court agreed that the change should be made. Shortly before the effective date of the new rule, however, Congress (at the behest of the Department of Justice) suspended the effective date of this amendment to Rule 16, and ultimately removed the witness list disclosure provisions. As a result of this action, (and the Advisory Committee's decision not to take up the issue again), the government is not required to provide the accused with a witness list in federal court.

Criminal lawyers that do not practice in federal court are often surprised (and shocked) to learn that the federal government is not required to turn over something so basic as a witness list when it prosecutes one of its citizens. Those of us that do practice regularly in the federal criminal system seem to just accept this as a reality and the price of doing business in federal court. This practice is particularly unfair, though, and the Rule needs to be changed. Most (if not all) state systems (including Georgia) require the disclosure of witness lists, and some states even permit the parties to take depositions in criminal cases.

In my view, the Advisory Committee needs to go back to the roots it established in 1974. Again, then, both it and the Supreme Court agreed that witness lists should be disclosed in federal criminal cases. Back then, neither the Advisory Committee nor the Supreme Court found any legitimate reason not to make this important change and one certainly does not exist now. Moreover, given the broad base of support that previously existed for this change, the Advisory Committee's recent 6- 5 vote (on what many perceive to be a more controversial change) suggests that the time is right to do again what the Advisory Committee did over 35 years ago.

Here is a link to an article that includes a more in depth discussion of the Supreme Court's previous approval requiring the disclosure of witness lists in 1974, and here is a link to David Markus's discussion of the Advisory Committee's recent decision not to require the government to disclose all favorable evidence.

Fowler: Miniscule Evidence Needed to Show Federal Nexus when Murder Prosecuted under Statute Intended to Punish Federal Witness Tampering

April 14, 2010 by Kish & Lietz

Today the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, decided U.S. v. Fowler. The court took the government’s side in a circuit court split, holding that evidence is sufficient to establish the federal nexus of 18 U.S.C. § 1512(a)(1)(c) where any “possible or potential communication [may be made] to federal authorities of a possible federal crime.” In other words, the government can make a federal case out of any murder, if the victim might have possibly given information that may have been eventually transferred to a federal officer or federal judge.

The facts of this case are heartbreaking. The case certainly merited the charge of murder of a police officer. The evidence showed that three men robbed a hotel, then recruited Fowler and another man to help them rob a bank the next morning. They prepared in a cemetery, dressing in black clothing, drinking, and taking drugs. Fowler didn’t want them to see his cocaine supply, so he walked away to use it. While he was gone, a local police officer showed up. Fowler snuck up behind him and grabbed his gun, while the others helped him gain control. Fowler eventually shot him in the back of the head.

This was a dreadful crime, but murder cases are not common in federal court. Why was this a federal case? In 2004, a spokesman for the Middle District of Florida’s U.S. Attorney’s office explained that the local authorities requested federal prosecution. He cited the multiple suspects, multiple crimes, and wide jurisdiction, but all of these factors are common in state-prosecuted cases.

The statute used, § 1512, is intended to punish witness tampering. One of the elements of subsection (a)(1)(c) is a federal nexus – the murder must have been intended to prevent communication relating to the possible commission of a federal offense. Fowler argued that the evidence did not sufficiently prove this federal nexus.

The Court held that the federal nexus requirement does not require proof of the victim’s state of mind, i.e. a plan to communicate information to federal authorities (unlikely with the victim in this case.) Instead, the statute focuses on the defendant’s intent “to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense."

Under this holding, any murder intended to cover up anything that could arguably be investigated as a possible federal crime is a federal case. In this previous post, we discussed the danger of over-federalization of crime. We have also discussed some differences between federal and state prosecutions here.

The Court’s opinion is available here.

Briscoe v. Virginia: Federal Supreme Court Upholds Recent Opinion Regarding Testimony By Forensic Analysts in Criminal Trials

February 4, 2010 by Kish & Lietz

Crime%20lab%20photo%20courtesy%20of%20U.S.%20Army
Last week the Supreme Court vacated and remanded Briscoe v. Virginia for proceedings consistent with the decision in Melendez-Diaz v. Massachusetts. We discussed Melendez-Diaz last summer in this post.

In Melendez-Diaz, the Supreme Court held that crime lab reports are testimonial statements covered by the Confrontation Clause of the Sixth Amendment. For such reports to be admissible, the forensic analysts must testify as witnesses in criminal trials, both federal and state. Shortly after that decision, the Court granted cert in Briscoe, a case presenting the same issue. Justice Scalia criticized the grant of cert, asking, “Why is this case here except as an opportunity to upset Melendez-Diaz?”

He asked that question at oral argument less than one month ago. SCOTUSblog covered that oral argument thoroughly in this post. They also explained last week’s decision in the context of the changing Court in the first half of this SCOTUSblog post.

The extremely short per curium opinion is available here.

Photo courtesy of the U.S. Army.