Georgia Federal Criminal Lawyer Blog

Most of us that practice criminal law in federal court have become familiar with the federal identity fraud statute. In essence, this statute requires a federal judge to impose a two year mandatory minimum sentence on an individual who, in the context of committing a certain enumerated federal felony offense, "knowingly transfers, possesses, or uses . . . a means of identification of another person . . . ." Significantly, this two year sentence must be imposed to run consecutively to any other sentence that the court imposes.

Currently, a split in the circuits exists on the manner in which the term "knowingly" has been interpreted. In some circuits, the Government is required to prove that the defendant is aware that the "means of identification" at issue actually belonged to another person. In other circuits, however, the Government is not required to make such a showing. This showing can be significant because in some cases, particularly those involving undocumented aliens, the Government is unable to prove that the defendant knew that the means of identification actually belonged to someone else.

Earlier this year, in two separate cases, lawyers representing criminal defendants in federal court asked the Supreme Court to resolve the circuit conflict on this important issue. Although these requests were not unusual, the Government's response to these petitions seems to ensure that the Supreme Court will in fact take up this issue in the upcoming term. As reported over at the Scotusblog, in its brief in response to one of the cert petitions, the government conceded that a “clear and entrenched” conflict existed over the proper interpretation of the law. And based on this conflict, the Justice Department recommended that the Court grant cert to resolve the conflict. The Government's response brief can be found here, and additional background on the issue can be found here.

Posted by Carl Lietz | Permalink | Email This Post

Posted In: Fraud

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The United States Court of Appeals for the Tenth Circuit recently issued a very lengthy opinion that covers a variety of sentencing issues we see quite often in federal white collar cases. Although this case came out of the appellate court that covers Denver, we see similar issues in cases here in Atlanta, the rest of Georgia, as well as in Alabama and Florida.

The case out in Denver involved charges of fraud against some bankers. They were convicted, and on appeal both the defendants and the prosecutors argued that the trial judge made mistakes when imposing the sentences.

The main sentencing issue on appeal involved the question of "loss" under the Federal Sentencing Guidelines. I have written at length on the Guidelines in other posts. The "loss" calculation is especially tricky. The defendants in the Denver case, through their very able lawyers, made the rather sensical argument that what they got out of the crime is the same as the "loss." Unfortunately, a lot of lawyers who do not get into federal court all that often mistakenly believe that this is the law. It is not. The concept of "loss" under the Sentencing Guidelines is far greater than what a person gets. It also covers "intended loss", along with losses caused by other people who did the same thing.

The court in the Denver case sent it back for a new sentencing hearing. The defendants' attorneys did a good job for their clients the first time. They will have a rougher road the second time around.

Posted by Paul Kish | Permalink | Email This Post

Posted In: Federal Criminal Trials , Fraud , White Collar Crime

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Recently, the Eleventh Circuit (which is headquartered here in Atlanta, Georgia) identified the issues that it will address in a federal criminal appeal involving the federal mail fraud statute. As both Paul Kish and I have discussed here and here, one of the main issues in the case is whether the pattern jury instruction that courts typically utilize in federal fraud cases accurately defines what the government must prove in order to convict an individual who is charged under the federal mail fraud statute.

In Paul's previous post, he noted that, initially, the court of appeals concluded that the pattern jury instruction is deficient in that it failed to require the government to prove that the defendant participated in a scheme that was "reasonably calculated to deceive persons of ordinary prudence and comprehension." Therefore, since the pattern instruction failed to include this important language, the Eleventh Circuit reversed the fraud convictions in the Svete case.

Svete's victory, however, was short lived. As I previously discussed, not long after this ruling, the Eleventh Circuit vacated its opinion and ordered that the case be heard by the entire court, rather than just the three judges that sat on the panel. I also noted that although the opinion vacating the initial ruling did not identify the issues that the Court will focus on in the en banc sitting, it is safe to assume that the jury instruction issue would in fact be the focus.

Recently, the Court confirmed that it will indeed focus on the jury instruction issue when the case is heard by the entire court. According to a letter recently sent to the parties in the case, the Court will focus on "whether the district court erred when it gave the pattern jury instruction about mail fraud . . . and declined to instruct the jury that the government must prove that the defendants devised or participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension." In addition, however, the Court will also address whether it should overrule the decision that established the rule which now requires the Government to prove that a defendant participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension. As noted previously, this is an important case, and one that should be followed closely by attorneys that defend individuals charged with white collar crimes.

Posted by Carl Lietz | Permalink | Email This Post

Posted In: Appeals , Fraud , White Collar Crime

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In a case that is being closely watched by federal criminal defense attorneys, the Eleventh Circuit vacated its prior opinion in a federal fraud case. In the initial opinion, the Court concluded that the pattern jury instruction for federal mail fraud cases is deficient in that it fails to require the Government to prove that the defendant intended to create a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension. According to the Court, this burden is not reflected in the current Eleventh Circuit pattern jury instruction for mail fraud. For this reason, the Court vacated the defendants' convictions on the mail fraud charges.

Earlier today, however, the Court entered an Order vacating its prior opinion and directing that the case be reheard by the entire Court. Although today's Order did not identify the issues that Court will focus on in the en banc sitting, it is safe to assume that the jury instruction issue will in fact be the focus.

Our firm has been following this case very closely. In fact, shortly after the initial decision was handed down, my law partner Paul Kish outlined the significance of the decision in a previous post. As he pointed out, the decision had the potential to impact a whole host of other cases, including those that involved other varieties of alleged fraud. We will certainly continue to follow the case, as it develops.

Posted by Carl Lietz | Permalink | Email This Post

Posted In: Fraud

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In a federal mortgage fraud case origninating out of Atlanta, Georgia, the Eleventh Circuit affirmed a 360 month sentence against a real estate closing attorney. The appeal arose after a two week federal trial that occurred in the United States District Court for the Northern District of Georgia.

On appeal, the closing attorney made a number of arguments, including the argument that the 360 month sentence was "unreasonable." With respect to that argument, as well as all the others raised on the attorney's behalf, the Eleventh Circuit disagreed. According to the Court of Appeals, "the sentence imposed [was] both procedurally and substantively reasonable."

After the attorney's sentencing, the U.S. Attorney's Office reported that the case involved one of the largest cases of mortgage fraud in this district. In recent years, those of us that handle federal criminal cases have seen a surge in federal mortgage fraud prosecutions. And from what we have seen, we do not expect this surge to slow down anytime soon. Indeed, as an excelent article from a fellow member of the National Association of Criminal Defense Lawyers points out, "the tumultuous state of the mortgage industry, combined with increasing reports of millions of dollars of loss from mortgage fraud schemes, has created the perfect storm for law enforcement initiativies."

Posted by Carl Lietz | Permalink | Email This Post

Posted In: Fraud

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