Yesterday's case is United States v. Jackson, and it concerns the practice of increasing the potential sentence for drug offenders who have prior convictions. When a person is facing prosecution for a federal drug offense, and has prior drug convictions, the prosecutor has a powerful tool that is set out at section 851 of Title 21 from the United States Code. This section allows the prosecutor to file a "notice" that can basically double any mandatory minimum sentence, and that can in some situations lead to a mandatory life sentence. From the defense perspective, the key is to try and poke holes in the "notice", by arguing that it is somehow flawed. I am currently doing exactly that for a man I am representing here in Atlanta. If I am successful, we will reduce his 15 year sentence down to 5 years, which he has already served and will result in his immediate release from custody.

In yesterday's case, the Court of Appeals ruled against the defendant. Mr. Jackson's lawyer argued that the "notice" was not valid unless it was signed by the United States Attorney himself, instead of being signed and filed by the individual prosecutor handling the case. It was a clever argument by an attorney striving as hard as possible to avoid the harsh result that comes about when the mandatory penalty system in effect allows the prosecutor to name the sentence by filing the 851 "notice." Although the argument was creative, the court likely reached the correct result.

In the case I am handling mentioned above, our argument is a bit more sophisticated. We contend that the although the "notice" was correctly signed and filed, it did not name the correct subsection of the drug laws, and therefore our client was only facing 5 years instead of 10. More on that later.

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.

In a methodical and well-supported decision, the Court agreed with the defendant's position, concluding "that a 30-year mandatory minimum sentence for [the defendant], under the specific facts of his case, is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution."

In reaching its decision, the Court recognized "the serious nature of [the defendant's] offense. [The Defendant] believed a ten year old child to exist and took steps to engage in sexual activity with her." However, the Court pointed out that "it is also a fact that [the defendant] never had any contact, sexual or otherwise, with the child. No harm was suffered. Of course, it was not possible for a child to be harmed, because the child was a creation of law enforcement, and no real child exists."

The federal public defenders that handled this case have obviously done an outstanding job. For those of you who want all the details, the full opinion can be found here.

In our case, the couple were in the middle of a divorce. The husband moved out, but left behind several computers, one for personal use, and others that were apparently for his job. On the personal computer, the wife got her "friend" to hack into it. This is crucial, because when the police showed up, she told them that her husband used a password which previously prevented her from getting into certain parts of the computer. The police took the computers, and later found information that prosecutors want to use in the criminal case. We are in the middle of fighting over whether this was OK.

The general rule is that police can get "consent" from a person who has "common authority" over an area or item, and if the police then seize and search through such an area, their actions are lawful. The United States Court of Appeals for the Eleventh Circuit recently published an opinion on this exact issue. In that case, the Court of Appeals ruled that the police were justified in believing that a motel manager had the authority to allow for the search of a room even though the guest's time had not yet run out. The reason the police should have believed that the manager had authority to consent to the search was because the guest had just been arrested on other charges and it was unlikely he would get out on bond before morning.

Our case is somewhat similar to a decision issued by the U.S. Supreme Court two years ago. That case involved a wife who gave the police permission to search, but the husband objected. The Supreme Court ruled that when a present occupant objects, the police cannot use the consent given to them by the other occupant to justify their entry and seizure of incriminating evidence.

In our case in Atlanta, we will be fighting over whether the wife's statement that her husband had prevented her from getting into certain parts of the computer put the police on notice that she did not have authority to hand over that computer. As said previously, this issue is becoming more and more common, and could have an impact on other cases.

Specifically, the Court will decide "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, 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 discussed by Ellen Podgor over at the White Collar Crime Prof Blog, the attorneys representing the defendant in this important federal criminal case recently filed their initial brief. In addition, the National Association of Criminal Defense Attorneys also recently filed an amicus brief in support of the positions asserted by the defendant. The defendant's brief can be found here, and the brief filed on behalf of NACDL can be found here. The importance of this case cannot be overstated, and we will be sure to follow this case until it concludes.

It has been a standard practice for many years for large companies to pay the defense fees for its high ranking employees. Many companies are regularly investigated, and operate in areas where the law is not always clear. Few people would agree to take high-ranking positions in such companies if they anticipated having to pay huge legal fees every time the company comes under scrutiny. As a result, most companies agree to indemnify the defense expenses for their employees. This is important in that getting qualified counsel is a very expensive proposition, especially when the investigation is far-flung and results in the defense attorney having to cull through millions of documents in order to properly advise his or her client.

About 7 years ago the Department of Justice (DOJ) began taking the position that companies which pay the legal fees for their employees are less deserving of a break when it came to resolving potential criminal charges. In 2004, the massive accounting firm KPMG was under investigation. The company then worked out its own deal through which no charges would be brought (although KPMG agreed to pay over $450 million in fines, etc.) but DOJ then indicted 13 employees.Under pressure from DOJ, the company restricted its usual practice of paying the legal fees for its employees under investigation who actually got indicted. The case was massive, and the attorneys for the defendants pointed out there was no way they could ever get paid unless the company adhered to its usual practice of indemnifying legal expenses.

The District Judge agreed with the defendants. He found that DOJ pressure was the reason the company changed its usual practice of paying legal fees. He determined that there was no way to put the clients back into their previous status, and that dismissing the indictment was the only remedy. The prosecutors appealed, and yesterday the Court of Appeals agreed that the dismissal was appropriate.

This case is based on the idea under the Sixth Amendment that a person is entitled to get the lawyer of his or her choosing in order to defend against criminal charges. When the government forces a company to change its usual practice of indemnifying for legal expenses, that is the same as government action that infringes on the constitutional right to counsel of one's own choice.

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.

On the surface, one might wonder if emails could be abused by people convicted of white collar crimes, fraud, money laundering and the like. After all, people in these type cases are accomplished at using business tools to commit crimes. However, as the USA Today story explains, the same could be said for inmates using the phone or old fashioned "snail mail." The emails are screened for certain words. Furthermore, recipients must agree to receive messages from an inmate, and can reject any message they do not want to accept.

I have written previously about some bad aspects of our federal criminal justice system. The move to emails is a positive side, a method to allow incarcerated persons to remain in closer contact with the outside world.

Even though this decision will not have an impact on a significant number of federal criminal cases, it did have an impact in this particular case. That is because in Rabhan, the Government charged the defendant after the expiration of the five year statute of limitations that typically applies in most federal criminal cases, but before the expiration of the ten year statute of limitations applicable to the underlying substantive offense at issue. Therefore, based on the ruling described above, the Fifth Circuit reversed the trial court's decision dismissing the offense that was charged beyond the five year statute of limitations.

Again, this case will not have an impact on a significant number of federal criminal cases; however, since this issue has apparently not yet been addressed in the Eleventh Circuit (the Court that hears federal appeals in Georgia, Alabama, and Florida), federal criminal attorneys that practice in these areas may want to make a mental note of this issue. Professor's Pogdor's analysis of this case can be found here, and the opinion itself can be found here.

The case in New York was a complicated set of prosecutions targeted at "floor supervisors" at stock exchanges. These supervisors matched up buyers with sellers. The prosecutors claimed that these supervisors would make a few pennies for themselves on the matches by purchasing the stock and quickly flipping it, then skimming the profits. The defense lawyers argued that it was absurd for such highly paid supervisors to go after what was in effect, chump change, and pointed out that a few mistakes does not mean the supervisors were trying to make a profit. The Court of Appeals agreed, based on a ruling in a similar case, that there was no proof that the supervisors acted deceptively.

The lawyers in those cases kept fighting, even after the jury found their clients guilty. I have a similar case, a matter I will post about in the future, as it is currently pending in front of the judge. It involves a case where a man was found guilty by the jury, but there simply is no evidence that he knew he was doing anything wrong! I was brought into the case after the trial, and have filed a request for both a new trial and that the judge throw the charges out altogether. We will see what happens!

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.

As we know, the Sentencing Guidelines are a grid based on two factors: Offense Level and Criminal History Category. There are six separate Criminal History Categories, with "criminal history points" assigned for various interactions with the criminal justice system. Arrests do no count, nor do convictions more than 10 years ago. However, and here's the important part, the lowest category (Category I) applies to everybody who has either 0 or 1 "criminal history points." This means that a 64 year old businessman never previously arrested is in the same category as a 35 year old with 19 arrests, and all of his convictions were over 10 years ago. In the major 1995 case involving the Guidelines, the United States Supreme Court said that a judge would "abuse his or her discretion" by trying to go BELOW Category I because the Sentencing Commission already took into account the low likelihood of recidivism when it created Category I.

Now that the Guidelines are no longer mandatory, more and more cases show that judges are slowly recognizing that we need to do better for "true first offenders", in other words, people never previously arrested as opposed to people never convicted within the recent past. The recent case mentioned above is from the Sixth Circuit, United States v. Duane, No. 06-6536, (6th Cir. 7-17-08). Although they did not rule for the defendant, the court noted that, "Because Duane had zero points at age 57, he might plausibly argue that even category I — which applies when a defendant has zero or one criminal history point(s) — overstated his criminal history to some degree." In other words, maybe a "true first offender" deserves more of a break than simply placing him or her into the lowest Criminal History Category.

The recent decision by the Eleventh Circuit Court of Appeals here in Atlanta in the case of United States v. De la Mata is a perfect example of this principle. Many years ago, the feds prosecuted Mr. De La Mata and others, and got convictions and lengthy sentences. Significantly, some of the defendants included corporations owned and controlled by De La Mata and others. The prosecutors also wanted to forfeit assets owned by the people and by the corporations. However, and here's the important part, the prosecutors tried to use a short cut, and got the individual defendants to agree to turn over a large quantity of assets. The prosecutors forgot that the corporations were separate entities. As a result, the order entered by the judge turned over assets owned by the corporations, without ever hearing from the corporations themselves.

Several years passed, and the corporations asked for a return of their property. The government refused, and the judge also would not give back the assets. The court of Appeals recently agreed with the corporations. The opinion notes how the prosecutors could not use the shortcut of an agreement with the individual defendants to get property owned by the corporations.

In many of our cases, we negotiate with prosecutors about assets they want to seize from our clients. This recent decision shows how important it is to do our homework in this area.

After receiving the emails, the defense attorneys brought them to the attention of the court in the form of a motion for a new trial. Among other things, the federal criminal defense attorneys asked the Judge to conduct an investigation to determine the authenticity of the emails. According to Governor Siegelman's attorney, however, the prosecutors opposed this request for any real investigation into the authenticity of the emails. Consistent with the prosectors' position, the Judge denied the motions for a new trial, as well as the request for an investigation into the authenticity of the emails. After additional printouts were received, the defense attorneys filed additional motions with the Judge, asking the Judge to investigate the authenticity of the emails. On each occasion, this request was denied.

Significantly, earlier this month, the Department of Justice revealed that it was aware of an investigation that was conducted to determine the authenticity of the emails. Specifically, it was recently revealed that while one of the motions referenced above was pending, the U.S. Marshals Service informed the Judge that Postal Inspectors had conducted an investigation into the matter and reached the conclusion that the emails were not authentic. This conversation between a Department of Justice agent and the Judge took place outside the presence of defense counsel; moreover, it was not revealed to defense counsel until 15 months after it occurred.

According to Sieglman's attorneys, "there can be no doubt that the ex parte communication from representatives of the Department of Justice to the District Court, about matters that were directly at issue in a pending motion, was highly improper." Among other things, Governor Siegelman's attorneys have asked for a thorough investigation to determine who took part in, or approved, or knew about but failed to disclose, this misconduct." You can access the letter Governor Siegleman's wrote to the Department of Justice here.

There are a number of things about the Axion prosecution that are particularly interesting. First, unlike in most federal criminal cases, Axion waived its right to a jury trial and agreed to a bench trial, a trial that allows the judge alone to decide whether the accused is guilty. Second, after the Government presented its evidence, the case was ultimately dismissed by Judge Inge Johnson of the federal district court in Birmingham, who wrote, "Evidence was received ... that at least raises the possibility in the eyes of the district court that the government continued to investigate and prosecute the defendants even after uncovering evidence demonstrating that the defendants were not guilty." Third, as a result of a motion filed by Axion, Judge Johnson awarded $363,000 in costs, attorney fees and interest to Axion.

This story will be interesting to follow as it develops. According to Scott, "a Justice [Department] spokesman says that the Department's Office of Professional Responsibility, which investigates allegations of misconduct by Justice attorneys, is investigating Martin for "allegations of political prosecution involving both the Northern and Middle Districts of Alabama, arising out of the prosecution of former Gov. Siegelman and other matters." Scott's full story can be found here.