Federal Criminal Appeal Explores Extent of "Aiding and Abetting" Liability

November 14, 2013 by Paul Kish

We do lots of federal criminal appeals, and one such case was argued earlier this week in the United States Supreme Court. The case is Rosemond v. United States, and it involves a question that comes up frequently in federal criminal cases. Federal prosecutors often try to hold one person accountable for the actions of another person under a law that prohibits a person from "aiding and abetting" a crime. The person who does the crime is the "principal", and the question in Rosemond is whether the "aider and abettor" needs to have the same state of mind, or "mens rea", as the person who does the criminal act.

They say you always "remember your first", so I have a fond memory of the initial time (23 years ago, time flies!) I won an appeal of a federal criminal conviction, which also involved the aiding and abetting theory of liability. My case involved a young man who foolishly drove other guys who committed a series of armed bank robberies. I was able to convince the Court of Appeals that for the very first of those robberies, my client could not be held accountable for the gun that was used inside the bank. The Court of Appeals agreed that under the "aiding and abetting" theory of liability there must be proof that the aider and abettor had knowledge of the gun and the same intent or purpose as the other person who does the dirty deed. In my case, there was no proof that my guy knew about and agreed with the use of the very first gun before it was used. On appeal, I was able to convince the judges to reverse the conviction for use of that first gun, and thus lopped 20 years off my client's sentence.

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Challenges to Whether Something is Even a Federal Crime: My 15-Year Battle Against the "Straw Purchase" Theory Might Bear Fruit in the Supreme Court

October 16, 2013 by Paul Kish

I am always harping about how lawyers defending against federal crimes need to be creative, and need to challenge whether their clients even committed a crime. About 15 years ago, I raised a series of challenges against what is called the "straw purchase" theory of liability when a person buys a gun but later transfers the weapon to another person. The law merely says that gun dealer needs to keep records, and also says that the buyer cannot make a false statement about a "material" matter. ATF kept changing position, but finally said that it is a false statement about a material matter if the buyer intended to give the gun to another person. One of the cases where I raised this challenge resulted in an opinion in the United States Court of Appeals for the Eleventh Circuit, and can be seen here.

Earlier this week, the United States Supreme Court accepted a straw purchase case for review later this year or early in 2014. The case is United States v. Abramski.

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Federal Gun Laws: Supreme Court Will Decide if Anyone Convicted of Misdemeanor Family Battery Crimes is Always Prohibited from Having a Firearm

October 15, 2013 by Paul Kish

The United States Supreme Court recently announced that it will take on the case of U.S. v. Castleman. In that case, the federal court of appeals decided that Mr. Castleman's prior conviction in Tennessee for "misdemeanor domestic assault" did not fall within the federal crime that prohibits gun possession by anyone with a prior conviction for a "misdemeanor crime of domestic violence". This case encompasses not only the national debate concerning guns and violence, it also shows how the federal government is trying to further and further expand the reach of federal crimes. Likewise, it demonstrates how good lawyers often prevail in federal criminal cases.

Like many Americans, Mr. Castleman apparently got into a domestic squabble. He was charged with a crime because he committed an assault on the mother of his child, and like so many incidents, he got a sentence of probation. Several years later, federal authorities investigated him for gun crimes, resulting in charges for violating Title 18, United States Code, section 922(g)(9), which makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The phrase “misdemeanor crime of domestic violence” is defined as a misdemeanor offense, committed by a person with a specified domestic relationship to the victim, that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”

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Good Lawyers Are Persistent, and Continuous Arguments Result in Supreme Court Victory

June 19, 2013 by Paul Kish

As any reader of this blog knows, I am a big fan of good, aggressive and persistent criminal defense lawyers. I have had the chance to practice and observe many great criminal defense lawyers, here in Atlanta, throughout Georgia, and in other parts of the country when my work takes me to places like Florida, Alabama, New York and California. I especially like it when criminal defense lawyers "stay the course", and continue pressing the same argument over the years until they finally prevail. Precisely that situation took place this past Monday when the United States Supreme Court overruled Harris v. United States. What happened was that the Court finally changed its mind, and decided that mandatory minimum sentences are not excluded from the rule first announced in New Jersey v. Apprendi. The case from this Monday is Alleyne v. United States, and can be found here. I previously posted on this issue here.


Mr. Alleyne's Public Defenders were just such persistent and aggressive criminal defense attorneys. They objected to the sentencing judge's ruling, which was correct at the time it was made. They continued their objection all the way to the Supreme Court, which agreed with them Monday and changed that rule. Here's how it happened.

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Criminal Law Case in the Supreme Court Says That Police Can Take DNA when Person is Merely Arrested for Serious Crime

June 4, 2013 by Paul Kish

In a case that criminal defense lawyers here in Atlanta and around the country need to all read, yesterday the United States Supreme Court ruled that the police can take DNA samples from people who are merely arrested for serious crimes, and that the Fourth Amendment to the United States Constitution does not prohibit this practice. The decision can be found here. I predicted in a previous post that this would be a close decision, and it was: 5-4. One major surprise was that Justice Breyer, normally a friend of personal liberties, sided with the majority in ruling that warrantless extraction of DNA samples passes constitutional scrutiny. The dissent was sort of "Nino and the Ladies", with Justice Antonin Scalia being joined by the three female Justices, Sotomayor, Ginsberg and Kagan.

Recall that this case involved Alonzo King, who was arrested in Maryland for menacing a crowd with a gun. Under Maryland law, the police extracted a DNA swab which was later sent to and made a part of a national database. Sometime later still, King's DNA was matched to a rape investigation from six years earlier. The Maryland Supreme Court threw out King's conviction because the DNA was extracted without a warrant nor was there any individualized suspicion that justified taking the DNA sample. On Monday, the U.S. Supreme Court reversed the Maryland judges, and instead compared the process of taking DNA with other activities during the criminal booking process such as photographing and fingerprinting suspects when they are booked.

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"You Have the Right to Counsel, But We Are Going to Take Away Any Money You Have to Hire the Type of Lawyers Who Specialize in Federal Cases": Contrasting Gideon v. Wainwright With Federal Pretrial Forfeiture Laws

March 21, 2013 by Paul Kish

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.

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U.S. Supreme Court says that Double Jeopardy Clause prevents retrial when trial judge erroneously granted acquittal at Defendant's first trial

February 21, 2013 by Paul Kish

Both in federal criminal cases here in Atlanta and around the country, as well as in the state court proceedings we handle throughout Georgia, we occasionally deal with issues relating to "Double Jeopardy," the portion of the Fifth Amendment that says prosecutors only get one bite at the apple. Yesterday, by a 8-1 vote, the United States Supreme Court continued to protect all of us against multiple prosecutions by holding there cannot be a second trial even when the judge made a mistake by erroneously granting an acquittal to the Defendant in the first trial. The case is Evans v. Michigan.

Mr. Evans was accused of setting a building on fire. One Michigan law makes it a crime to burn a dwelling, while a second law makes it a crime to burn "other real property." At the close of the evidence, the Defendant's lawyer pointed to standard jury instructions which require proof that the property was a "non-dwelling" before a person could be convicted of the crime of burning "other real property." The trial judge, noting that the property owner said the building WAS a dwelling, granted an acquittal for the Defendant because the prosecution had failed to prove the property was NOT a dwelling. It turns out the trial judge was completely wrong, in that burning "other real property" is a lesser-included offense of the greater crime of burning a dwelling. The prosecution appealed, and Michigan's appellate courts decided that a second trial was OK, even despite the protections from the Double Jeopardy Clause.

The U.S. Supreme Court reversed, holding that retrial following a court-decreed acquittal is barred, even if the acquittal was based upon an egregiously erroneous foundation. An "acquittal" includes any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. This is different from procedural rulings, which lead to dismissals or mistrials for reasons unrelated to factual guilt or innocence. An acquittal is a substantive ruling that concludes proceedings absolutely, and thus raise significant Double Jeopardy concerns. Here, the trial court clearly evaluated the prosecution's evidence and determined that it was legally insufficient to sustain a conviction. While the acquittal was the product of an erroneous interpretation of governing legal principles, that error affects only the accuracy of the determination to acquit, not its essential character.

Along the way, the Supreme Court addressed the prosecution's argument that Mr. Evans got a "windfall", and he should not get the benefit of a real bonehead ruling by the trial judge. The U.S. Supreme Court was unimpressed, noting that States and the federal government have the power to prevent such situations by disallowing the practice of midtrial acquittals, encouraging courts to defer consideration of a motion to acquit until after the jury renders a verdict, or providing for mandatory continuances or expedited interlocutory appeals. The bottom line: the Double Jeopardy Clause remains intact as one of the bulwarks protecting individuals from multiple prosecutions, even when the first case was erroneously decided against the prosecution.

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Going to the Dogs: Supremes Says Lack of Performance Records for Drug-Dog Doesn't Invalidate Search

February 19, 2013 by Paul Kish

The Supreme Court today issued one of the two dog cases on its docket, Florida v. Harris. Recall that we blogged on this case when it was accepted for review. In today's unanimous ruling, the Supreme Court held that just because there are no performance records for how a dog does in the field, this by itself does not mean that a dog's positive alert cannot form the basis for a probable cause search.

The pooch in this case is "Aldo." His handler obviously had it out for Mr. Harris. The officer stopped Harris two times, and had Aldo run around the truck, sniffing for the odors of dope, etc. The first time, Aldo "alerted", but the officer did not find any of the substances for which the dog was trained to alert. However, they did find chemicals used to make methamphetamine, so they arrested Harris. The same officer again stopped Harris while the latter was out on bail. Once again, the loyal pooch ran around the vehicle, again alerted, but this time no illegal substances or precursors were discovered.

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New Term in the United States Supreme Court: Cases of Interest

October 2, 2012 by Paul Kish

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.

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Another loss for the Confrontation Clause: the Supreme Court's decision in Michigan v. Bryant

April 28, 2011 by Paul Kish

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.