Politics and Criminal Law: The Curious Case of Tom Delay and Reversal of His Convictions for Money Laundering

September 25, 2013 by Paul Kish

Politics impacts many of our criminal cases here in Atlanta, throughout Georgia, Florida and Alabama, and in federal cases we do throughout the country. The intersection of politics and criminal prosecutions is especially prevalent in public corruption investigations. Prosecutors often have a political motive in "going after" a particular defendant, and many a prosecutor has made a name for him or herself by bagging a politician. These principles were on full display in the case against Tom Delay, the former Majority Leader of the United States House of Representatives. Last week, the Texas Court of Appeals reversed Delay's convictions, ruling that he had not committed any crime. The ruling is here.

Delay was known as a hard-charging Republican advocate, whose nickname of "the Hammer" demonstrated his supposedly ruthless tactics. In 2002, Delay wanted to have the Texas Legislature turn solidly Republican, which it did. To accomplish, he asked for a series of corporate political contributions to a campaign committee. Afterwards, that solidly Republican legislature allegedly jiggered the voting districts so that the Texas federal delegation was far more likely to elect Republicans to the U.S. Congress. All well and good, hard nosed politics.

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Reversal of Federal Criminal Case Because Trial Judge Prevented Defense From Presenting Important Evidence

September 6, 2013 by Paul Kish

I recently posted about how we convinced the United States Court of Appeals for the Eleventh Circuit here in Atlanta to reverse the federal criminal case against our radiologist client because the trial judge prevented us from using important "peer review" testimony from another doctor who would have told the jury that he reached the same conclusions as did our client. Recently, another federal court did something similar, reversing a federal criminal conviction because the trial judge would not allow the defense to present certain evidence to the jury. That case was decided by the Seventh Circuit, which was sitting in what we lawyers call an en banc session, meaning all of the judges on that entire court participated. The case is U.S. v. Lacey Phillips and Erin Hall, and can be viewed here.

The basic story is familiar. Back in 2006, the defendants, an unmarried couple (they've since married) were looking for a house to buy. She had good credit, he did not. She applied for the loan, and the application asked for the "borrower's income." The defendants wanted to tell the jury that the mortgage broker had told them that "borrower's income" was really a term of art, and meant the total amount of money that would be used for paying the mortgage, whether or not it was money earned by the person signing the mortgage. So, like many couples, they combined her income and his income on the loan application. They also sort of dressed up her job title, making it look as if she had the sort of employment that would generate the overall joint income of the couple.

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Federal Criminal Sentencing Hearings: Constitution Mandates That Judge Use Older Version of Sentencing Guidelines if it Helps the Defendant

June 14, 2013 by Paul Kish

We do lots of sentencing hearings in federal criminal cases, here in Atlanta, throughout Georgia and other parts of the country, like Florida, Alabama, New York, California and Tennessee. Whatever state they are in, all federal judge are first required to consult the Federal Sentencing Guidelines when deciding the appropriate sentence for a person who has either pled guilty to or who a jury has found is guilty of a federal crime. These Guidelines are amended all the time, and it seems for some categories of crimes the suggested range of punishment keeps getting more and more harsh. However, what we lawyers call the "Ex Post Facto" clause from the Fifth Amendment to our beloved Constitution says that it is unconstitutional to increase punishments "after the fact." Several days ago ( I was not able to get to this post as I have been in federal court all week) the United States Supreme Court held that the Ex Post Facto clause requires a new sentencing hearing for an Illinois businessman who had been convicted of bank fraud. The case is Peugh v. United States and can be accessed here.

Mr. Peugh was convicted of five counts of bank fraud in a scheme that caused more than $2.5 million in losses by the victim bank. The crimes took place around 1999 and 2000. However, when he went to court years later, the Sentencing Guidelines in effect at the time of his sentencing hearing suggested 70 to 87 months in prison. Peugh objected to use of the 2009 guidelines, insisting that the judge should use the guidelines in effect at the time of his crimes. Under those earlier Guidelines, the appropriate sentence ranged from 30 to 37 months in prison. Peugh argued that relying on higher guidelines enacted after his crimes were committed would amount to the use of an ex post facto law. The sentencing judge rejected the argument, and sentenced Peugh to 70 months in prison. A panel of the Seventh US Circuit Court of Appeals also rejected the ex post facto argument and upheld the sentence.

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Federal Criminal Charges Against Public Officials: U.S. Attorney Announces Indictment Naming State Legislator

May 17, 2013 by Paul Kish

Federal Criminal Charges were announced yesterday here in Atlanta by the U.S. Attorney. The feds have indicted a well-known State legislator, Representative Tyrone Brooks. According to the indictment, Representative Brooks committed mail fraud, wire fraud, and tax crimes. The grand jury returned a 30-count indictment which charges that, from the mid-1990s through 2012, Brooks solicited contributions from individuals and corporate donors to combat illiteracy and fund other charitable causes, but then used the money to pay personal expenses for himself and his family.

It seems there are three basic sets of crimes alleged in the indictment. First, there are two separate supposed frauds, followed by allegations that Representative Brooks violated the tax laws.

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Public Corruption Cases in Federal Court: New York Arrests Show the Feds Keep Using "Honest Services" Fraud to Go After Politicians

April 5, 2013 by Paul Kish

Many public corruption investigations turn into federal criminal cases, here in Atlanta and around the country. Our firm is involved in several of these matters right now. Most of these "white collar" cases result in our clients being charged with some variety of fraud. The feds almost always resort either to the mail or wire fraud statutes. Each of these laws requires a "scheme or artifice to defraud" another out of money or property. A 1988 law says that these statutes include schemes to defraud another out of the "intangible right of honest services." A 2010 case from the United States Supreme Court restricted the "honest services" version to cases involving bribes and kickbacks, and held that these statutes cannot be used to prosecute a person merely because the Defendant violated some fiduciary duty to a governmental agency or other entity or otherwise engaged in a conflict of interest. I wrote a recent post about how the local federal court of appeals issued a recent decision upholding the conviction of a man in Jacksonville, Florida. That case was an example of how the feds try to get around the recent restrictions on the honest services theory.

The feds recently made a splash in New York, arresting a politician who allegedly was trying to buy his way into the Republican race for Mayor. This is but the latest in a string of high-profile cases in that city involving allegations of bribery, payoffs and the like. A recent article I came across notes that despite the restrictions on the honest services theory, federal prosecutors continue to use this species of fraud when going after politicians. The article quoted a former high ranking federal prosecutor as saying that the restrictions on honest services actually helped the government when making such cases.“I thought the court did us — prosecutors — a favor, because I never thought juries liked conflict-of-interest cases. ... Juries want to see bribes or kickbacks" because conflicts of interest “seem more like ethical violations than criminal.”

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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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Federal Criminal Defense Difficult when Government Freezes Client's Assets: Supreme Court Finally Agrees to Hear Case About Whether Prosecutors can Obtain Pretrial Restraint of Assets Without a Hearing

March 19, 2013 by Paul Kish

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.

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Bankers Get Indicted: New Crimes still require Old Approaches

February 25, 2013 by Paul Kish

More and more both here in Atlanta and around the country we see news stories about bankers getting indicted, financial professionals being accused of fraud, and other white collar criminal actions brought against people working in the financial sector. Also, in a recent post, I wrote about a federal criminal case where the indictment did not even charge a federal crime, yet none of the lawyers nor judges noticed the problems until the judges on the Court of Appeals brought up the issue after the case was on appeal. The combination of these two stories reminded me of how important it is for lawyers to carefully scrutinize the charging documents when the attorney is defending a person in the financial industry against criminal charges.

This also reminded me about a case we had a couple of years ago where we represented a young banker here in Georgia. Back when the real estate market was flying high, he was a superstar, bringing in millions of dollars in loans to developers who were fueling the Atlanta housing boom. When the market began getting soft, he was dismayed by how his bosses were treating him, so he took his book of business to another local bank. The bosses at the first bank did an "investigation", and turned over to the authorities the dirt they had supposedly uncovered on this young banker. The local District Attorney thought he'd be a star also, and could get his name in the papers by indicting a banker just as the housing market was collapsing. They accused our client of claiming in memos to the loan committee that his developer/clients were putting 10% into the deals, when in fact they were not. The DA then got an indictment that charged our client with making "false entries" in the "books reports or statements" of a financial institution.

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Federal Criminal Convictions Reversed Even When Lawyers Failed to Make Argument: No One Bothered to Look at Whether the Defendant's Actions Were "Contrary to Law"

February 24, 2013 by Paul Kish

In an amazing opinion issued in Atlanta by the Eleventh Circuit, the court reversed a series of federal criminal convictions because the indictment did not even charge a crime. And, they did so even though none of the lawyers for either side bothered to address whether the indictment properly charged a federal criminal offense! The whole issue came down to whether the Defendant's actions were "contrary to law", and because they were not, the court of appeals reversed all their convictions.

The Defendants and their company imported dairy products into the U.S. from Central America. Apparently, several of their imported products were contaminated with E. Coli and salmonella.

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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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