Federal Criminal Lawyer Blog

We handle lots of federal criminal cases. The various rules governing these cases are the same here in Georgia, they are the same when we take cases in Florida or Alabama, and we work under the same rules whenever we take cases in other parts of the country. Every so often, there are proposals to change the rules, and these amendments need to be first approved by the United States Supreme Court before they can be sent to Congress for ratification. Several weeks ago, the Supreme Court approved a series of rule changes that federal court practitioners need to keep up with in order to do the best job possible for their clients. Two of the bigger changes are discussed below.

One of the biggest rule changes concerns criminal cases involving immigration crimes or clients who are not U.S. Citizens Recall that under the landmark case of Padilla v. Kentucky, it is ineffective assistance of counsel if the lawyer does not tell his alien client that a guilty plea can have ramifications on the defendant's immigration status. Rule 11 of the Federal Rules of Criminal Procedure discusses what happens when anybody pleads guilty to a crime in federal court. The Supreme Court approved a change which requires the judge, before accepting a guilty plea, to ensure that the defendant understands “that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” The rule change seems to provide protection to both defendants (who will be told about what might happen) and prosecutors (who can argue on appeal or habeas that any failure by defense counsel to provide the advice required by Padilla was harmless because the court gave the defendant the required notice).

Another significant amendment concerns changes to the Federal Rules of Evidence. These are the rules that control what can, and cannot, be introduced by one side or the other during a federal trial. Many readers will be aware of a series of cases over the past decade in which Justice Scalia has breathed new life into the Sixth Amendment's Confrontation Clause. These cases held that criminal defendants have the right to see, confront and cross-examine any witness whose statement is used for an evidentiary purpose by the prosecution. The Supreme Court has approved changes to Rule 803 of the Rules of Evidence to allow, in a criminal case, admission of a government official’s certification of the absence of a public record if the prosecution gives the defendant notice of its intent to introduce the document fourteen days before trial and the defendant does not object within seven days before the trial. This revision seems to be a reaction to the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, which said that certain kinds of documentary evidence (such as a crime lab report indicating that a substance is cocaine) violates a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment if admitted into evidence without the document’s author being put on the stand to testify as to its contents. The new version of Rule 803 contains a procedure under which a defendant will waive that constitutional right – at least with respect to a certification testifying to the absence of a public record – if he does not object to its admission after receiving notice prior to trial.

Again, practitioners need to keep up with these changes to protect their client's rights. We will continue to look for changes and updates so we can do our best for our clients.

As I noted in this post, on Tuesday the Supreme Court granted certiorari in Kaley v. United States, a case calling on the Justices to answer the question of whether the Sixth and Fifth Amendments afford a Defendant the right to a pretrial hearing to challenge the seizure of her assets under the federal forfeiture laws when that seizure basically prevents her from hiring and paying for counsel of her choice. It is more than a little ironic that they decided to review the case on the same day we were all celebrating the 50th anniversary of Gideon v. Wainwright, the landmark case ruling by the Supreme Court that everybody facing felony charges has the right to an attorney, even if he or she cannot afford to pay the lawyer. While we have made strides in the past five decades, in many ways we are worse off when a person faces the wrath of the federal government bent on a criminal prosecution.

On the one hand, we still have a long way to go when we provide counsel to people who cannot afford to pay for a lawyer. Many wonderful lawyers are public defenders who struggle to provide the best defense they can while handling massive and crushing caseloads. While Defendants have the "right" to an attorney, far too often the system is set up so that the public defender simply cannot spend much time with any one client, more or less rendering meaningless the Constitutional "right to counsel" enshrined in the Gideon case.

On the other hand, people facing federal criminal prosecutions face additional difficulties. First, as we have mentioned many times, and as I have written and spoken about on numerous occasions, there is a big difference between a State criminal case and a prosecution handled by the federal government. Federal criminal cases are often exceedingly complex, time-consuming, and beyond the abilities of many otherwise fine lawyers who simply are not equipped to handle the often arcane and weird aspects of defending a criminal case in federal court. Federal criminal defense is a speciality, and like other professions, specialists usually cost a lot more money, which makes it difficult for many people to defend themselves against charges in federal court. Second, defending a case in federal court also puts a Defendant (and his or her attorney) up against a series of very pro-prosecution laws. During the 1980's and 1990's, the U.S. Congress regularly enacted more and more "tough on crime" laws. Some of these laws increased sentences (like the horrible crack cocaine laws and mandatory minimum punishments). Other "crime prevention" legislation was aimed at people in the drug trade, and many statutes were designed to go after the money involved in the drug business. One of these laws greatly increased the scope of the federal forfeiture statutes, which are the laws that permit the feds to sometimes get money or property that was involved in or obtained from certain crimes. And, here's where it all comes back to the Kaley case accepted by the Supreme Court. That is the case where the Justices will need to answer the question of whether the feds can "restrain" a Defendant's assets even before a trial, without the need for a hearing where the Defendant can challenge the prosecutor's evidence. The expansion of forfeiture laws, which were mostly designed to go after dope dealers, is now being used against businesspeople like Mrs. Kaley, in a case that seems from the surface to be a contract dispute!

The right to counsel is important, whether or not a person has the assets to hire counsel, and regardless of whether the case is in State or federal court. We certainly hope that the Justices will recognize that Defendants in federal cases should have the right to use their assets to hire the specialists needed to defend matters in federal court, which is just as important as providing counsel for those without such assets.

Defending federal crimes is always difficult, whether the client is a "white collar" defendant charged with fraud or whether prosecutors charge other crimes, like drug violations. However, the defense is made more difficult in federal court by virtue of the prosecutor's ability to sometimes freeze and then forfeit all of the Defendant's assets. Making it more difficult still, the laws sometimes permit prosecutors to freeze the Defendant's assets even without a hearing in front of a judge! After many years of uncertainty, the Supreme Court the other day agreed to hear a case as to whether the pretrial restraint (or freezing) of a Defendant's assets is permissible if done without a hearing. The case is Kaley v. United States, and the certiorari petition is here.

Ms. Kaley was in the business of selling medical equipment. She and her husband apparently made a good living selling equipment that certain manufacturers no longer wanted. The federal authorities claimed these practices were fraudulent, and indicted the couple. Prosecutors also filed an ex parte request to restrain and freeze much of the couple's assets, claiming that the money they had in the bank and which they'd used to buy their house was obtained as proceeds of the fraudulent conduct charged in the indictment. A Federal Magistrate Judge agreed, and issued an order freezing their assets so they could not be used by the couple to defend themselves. The case has had a complex history, with two trips already to the Court of Appeals here in Atlanta before the defense team finally got the Supreme Court to agree to hear the case.

Under 18 U.S.C. §853(e), when a Defendant has already been charged in an indictment the prosector can file an ex parte motion seeking restraint of assets that are subject to forfeiture upon conviction. The law does not specifically allow for a pretrial adversarial hearing where the indicted defendant may challenge the propriety of the restraints.

Back in 1989, the Supreme Court rejected the idea that such pretrial restraint violated either the Fifth or Sixth Amendments. United States v. Monsanto, 491 U.S. 600 (1989). However, a footnote in that case explicitly left open the question as to whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed. Since that time, the courts have issued contrary rulings resulting in a firmly entrenched split among the eleven circuits that have addressed the issue.

Ms. Kaley's defense team convinced the Supreme Court to accept her case in order to answer the following question:

"When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?"

This case has huge ramifications in situations where the feds go after Defendants with enough funds to hire good lawyers, but those attorneys cannot be paid because a judge agrees with the prosecutors to freeze the assets even without hearing from the defense. We will follow the case closely.

Good lawyering in federal criminal cases often requires that the attorney not only be a student of the law, he or she needs to also recognize when a particular issue might be a current "loser" but the higher courts are waiting to change the rule. That might turn out to be the situation in Alleyne v. United States, a case recently accepted for review by the United States Supreme Court. Mr. Alleyne's prescient Public Defenders objected to a ruling that was correct at the time it was made, but early next year the Supreme Court will hear arguments as to whether the rule should be changed.

In 2000, the Supreme Court issued the landmark ruling of Apprendi v. New Jersey. That case held for the first time that any fact that can change the maximum punishment to which a Defendant is exposed must be pled in the indictment, and proven to the jury by the usual "beyond a reasonable doubt" standard. This is very important because until that time many facts that result in potentially longer prison sentences could be decided by one person, the sentencing judge, and that judge could use the less stringent "preponderance" evidentiary standard.

However, in 2002 the Court in a case called Harris v. United States restricted the Apprendi rule, holding that it did not apply when a particular fact merely kicked in a "mandatory minimum" sentence, but did not change the potential maximum. Federal crimes often come with mandatory minimum punishments which are extremely harsh, and defense lawyers for years have long chafed under a system that keeps away from the jury the crucial question as to whether the Defendant should be exposed to a very long minimum term in custody.

Harris was decided by what we call a "plurality", with Justice Breyer casting the crucial fifth vote. Justice Breyer had gone along with the other four who wanted to keep the mandatory minimum fact away from the jury. Although he questioned the logic of the whole idea, he thought there might be a difference between raising a minimum sentence and enhancing a maximum one. In a later case, though, Breyer expressed doubts about that distinction. Since that time criminal defense lawyers repeatedly made pleas to reconsider Harris, but until now all such requests have been rebuffed.

Mr. Alleyne was accused of a robbery, and one count of using a gun during a crime of violence, what we call a "gun count" or a "924(c)". He received a forty-six month sentence on the robbery charge. However, the gun charge has a 5-year minimum, and that floor can increase to a 7-year minimum if the firearm was "brandished." The jury did not accept the theory that the gun had been brandished. Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery. The judge then imposed the 7-year minimum, instead of the regular 5-year punishment. Alleyne’s lawyer conceded that the Harris decision did treat brandishing a gun as a sentencing factor, not as an element of the crime, yet the public Defenders argued that Harris was inconsistent with Apprendi and later sentencing cases. The judge rejected that challenge, but commented while imposing the added 2-year sentence that “I don’t like being the reverser of juries.” The judge said the Harris precedent gave him no choice.

Again, this is an important case. Perhaps more importantly, it reminds all of us about how important it is to keep up on the law, to note potential trends, and to never give up on an argument that can help our clients.

Well it's early October, a beautiful time of year here in Atlanta, and also the time when the United States Supreme Court kicks off its new "term." There are a couple of cases of interest that the Supreme Court will decide in the upcoming term. I will focus on cases that impact our federal and state criminal matters. We will start with one case today, and look at the others in subsequent posts.

First, we have Bailey v. United States. This is an old-fashioned Fourth Amendment appeal, arising out of the execution of a search warrant. Thirty-one years ago, the Supreme Court issued a decision called Michigan v. Summers. In that case, the Supreme Court decided that officers executing a search warrant for contraband may detain the occupants of the premises while the search is conducted. In the past three decades, a substantial conflict has developed among federal courts of appeals and state courts of last resort on the question of whether the rule of Summers extends to the detention of an individual who has left the immediate vicinity of the premises before the warrant is executed. The Supreme Court will hear the Bailey case to clear up this conflict among the lower courts.

Here is what happened in Bailey. Police officers had a warrant for an apartment. They were staking it out before executing the warrant, and noticed two men leaving the apartment. They followed Mr. Bailey from the apartment to be searched and detained him approximately one mile away. During the detention, the officers discovered a key to the apartment on Bailey’s person, and he made statements linking himself to the apartment. In the course of the search back at the apartment, officers found guns and drugs, and Bailey was later charged with various federal offenses. The federal district court denied Bailey’s motion to suppress the fruits of his detention, and the key was the main evidence used at trial to support the prosecution's theory that Bailey owned the guns and drugs in the apartment. Bailey was convicted, and on appeal he again argued that the police violated the Fourth Amendment when they stopped him many blocks away from the apartment. The Court of Appeals sided with the Government. After recognizing the conflict among the various courts during the past three decades, the Court of Appeals held that the rule of Summers extends to the detention of an individual who has left the immediate vicinity of the premises. Bailey thereafter asked the Supreme Court to review the case, and in late September they agreed to do so.

Back when it first decided Summers, the Supreme Court reasoned that detaining a person on the scene who is present while the individual’s own home is being searched is not a whole lot more more intrusive than the search itself. The Court further reasoned that three rationales supported a rule allowing the police to detain a person present while a warrant is being executed: (1) preventing flight in the event that incriminating evidence is found; (2) minimizing the risk of harm to the officers; and (3) facilitating the orderly completion of the search. In Bailey, however, the person was far from the house, and the police had not even started executing the warrant, so it would be difficult to argue he might flee from an event that had not yet happened. The "risk of harm" rationale likewise seems weak, in that the safer course would be to let him go away and not be a potential problem. Additionally, taking police away from the scene to follow Bailey seemed to impede, not facilitate, the search.

As we all know, the Supreme Court in the past 40 years has not been kind to our joint rights that are supposedly protected by the Fourth Amendment's prohibition against unreasonable searches and seizures. Many people get confused, thinking that we are only fighting for people like Mr. Bailey, who after all, had drugs and guns inside his house they they executed a warrant. However, if they can follow and detain Bailey, they can do the same to you and me just because we are present at a place where someone else has done something that causes the police to get search warrants. We will follow this case closely to see if the Supreme Court will protect our joint rights.

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.

One of the few bright spots in the Supreme Court's criminal law cases over the past few years has been the resurgence in emphasis on the protections afforded by the Sixth Amendment's Confrontation Clause. However, yesterday in a badly fractured 5-4 decision, the High Court took a step backwards, or maybe even sideways. The case is Williams v. Illinois.

Recall that a couple of years ago the Supreme Court ruled that prosecutors cannot use crime lab reports in criminal trials unless the analysts responsible for creating the report came to court and gave live testimony. Last year that rule was reaffirmed and deepened when the Court said the Confrontation Clause was violated if the prosecutor called a colleague or supervisor of the analyst who did the work.

Into this background came the case of Sandy Williams. A sexual assault occurred in Illinois in 2000, and biological material recovered by the police was sent for analysis to Cellmark Diagnostics Laboratory in Maryland. Williams was later arrested on other charges, and his DNA was sent to the Illinois State Police Crime Lab. Eventually, a prosecution expert witness compared the DNA from the Illinois lab with the material analyzed in the Maryland lab, opining that they came from the same person. The prosecutor never called anyone from the Maryland lab nor even offered the reports authored by the Cellmark Diagnostics analyst.

As noted above, the case is a mess, with 4 Justices signing on to the majority opinion written by Justice Alito. According to Justice Alito, there was no Confrontation Clause problem, for two reasons.

First, Justice Alito said that while the prosecution's expert did discuss the report written by the Cellmark analyst, this discussion was not offered to prove that what was in it was true. Even more troubling is that Justice Alito and three others believe that the report itself was not the sort of evidence to which the confrontation clause applies because it was made “for the purpose of finding a rapist who was on the loose.” In other words, the Constitution's protections seem to be elastic, stretching very thin when a violent or unsolved crime is at issue.

Justice Alito gave a second reason for affirming the conviction. Williams elected to have a bench trial, which seemed important to Justice Alito. The fact that the trial judge was so impressed by the analyst's testimony somehow, for Justice Alito and the other three, showed there was no Confrontation Clause problem.

The crucial fifth vote came from Justice Thomas, who wrote an opinion that no other member of the Court would join. He suggested “a reading of the Confrontation Clause that respects its historically limited application to a narrow class of statements bearing indicia of solemnity.” According to Justice Thomas, the Cellmark report was not within that class.

Justice Kagan issued a spirited dissent joined by three others. First, she noted that the Cellmark analyst who was not called had, in an earlier trial, admitted to having made an egregious mistake when comparing DNA. The confrontation clause, Justice Kagan wrote, is “a mechanism for catching such errors,” demonstrating “the genius of an 18th-century device as applied to 21st-century evidence.” She also noted that under the two recent confrontation clause precedents “this is an open-and-shut case.” But the decision issued on Monday, she said, had turned a clear rule into a murky one. She urged lower courts to continue to follow the recent rulings on crime lab evidence “until a majority of this court reverses or confines those decisions.”

In criminal trials throughout the United States, whether here in Atlanta or elsewhere, the Sixth Amendment's Confrontation Clause protects defendants from being convicted based on out-of-court statements by people who never show up to testify. The Confrontation Clause means what it says, our clients can "confront" the evidence against them and prosecutors should not be allowed to put up one person to say what some other person told him or her. However, the Supreme Court's relatively recent decision in Michigan v. Bryant is a step backward and lets prosecutors get convictions even when the accuser never gets on the witness stand.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court ruled that the Confrontation Clause is violated when a prosecutor uses hearsay which is "testimonial," the hearsay is admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial. The Court in Crawford used various formulations of the term "testimonial." Now, the most commonly adopted version defines a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), finding that "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

The basics facts in the recent Bryant case are that police found Anthony Covington in a gas station parking lot. Covington claimed he had been shot by Richard Bryant outside Bryant's house. Covington's story was that he had then driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial.

The Supreme Court used the "primary purpose test" to decide whether Covington's statements were testimonial or nontestimonial. If the "primary purpose" was to investigate a crime, then the statements are "testimonial" and thus inadmissible, unless the declarant gets on the witness stand. On the other hand, if the "primary purpose" of the session was to respond to an emergency, then the statements are nontestimonial, and can later be used by a prosecutor even if the declarant is unavailable.

In applying this test that looks for the "primary purpose", the Court first decided that an objective, and not a subjective view, should be used by judges who are deciding whether a prior statement was testimonial or nontestimonial. According to the Court, it doesn't matter what the officer (or the dying Mr. Covington) thought they were doing. Instead, judges should take an "objective" view of what was going on. Here, the majority decided that the police were responding to an emergency, and not merely trying to investigate a crime. Justice Scalia in his dissent calls this view of the facts a "transparently false ...tale", because in fact the cops and the dying Mr. Convington all were concerned about the same thing: making a case against the guy who had just plugged Covington with bullet holes.

Next, the Court ruled that judges should look to both the Declarant (here, the dying Mr.Covington) and the Interrogator (the 5 cops who kept asking questions like, "Who" "Where" "When" and "How long ago?") when deciding the "primary purpose" of the session. The Supreme Court decided that judges should not look merely to what the person said, but should also see what the questioners did or did not do.

The bottom line here is that the Court's decision in Michigan v. Bryant made it a lot easier for prosecutors to get around the Confrontation Clause. While the decision somewhat reduces the protections offered by the Sixth Amendment, we hope that judges everywhere will zealously guard our rights and not allow wholesale use of out-of-court statements in criminal trials.

Last Wednesday, the Eleventh Circuit Court of Appeals, which hears appeals from Georgia, Alabama, and Florida federal cases, voted to rehear Childers v. Floyd en banc. The Court vacated a panel opinion holding that Childers’s Confrontation Clause rights had been violated when the trial court refused to allow certain credibility evidence regarding the prosecution’s star witness.

This June, an Eleventh Circuit panel majority granted Mr. Childers § 2254 habeas relief. In a previous case stemming from the same activities, in which another defendant was acquitted, the star witness gave confusing and inconsistent testimony. The trial court refused to allow the jury to hear evidence that the prosecution had unsuccessfully tried to revoke the witness’s plea deal due to those inconsistencies. The Eleventh Circuit held that this refusal was a violation of the defendant’s sixth amendment right to confront witnesses against him.

This case is an important reminder of the value of effective cross-examination and the necessity to continue litigating on behalf of clients. We will watch for the en banc decision in Childers. The vacated panel opinion is available here.

The Eleventh Circuit Court of Appeals held last week that a ten-year delay between indictment and arrest did not deprive Victor Garcia Villarreal of his constitutional right to a speedy trial. The Court employed a four-factor balancing test, holding that although the length of the delay gave rise to a presumption of prejudice, the reason for the delay, failure to promptly assert the right, and lack of actual prejudice showed that Villarreal was not denied his right to a speedy trial. In weighing the final three factors, the Court gave substantial deference to the district court’s factual findings that Villarreal had evaded arrest and the delay had caused the government actual prejudice, rather than the defendant.

The full opinion in United States v. Villarreal is available here.