Articles Posted in Appeals

In 2005, the United States Supreme issued its landmark decision in the federal criminal case of United States v. Booker. Among other things, the Court in Booker ruled that the federal sentencing Guidelines are no longer mandatory, but are instead advisory. Before Booker, it was undisputed that courts were required to apply the Guidelines that were in effect when the federal crime at issue was committed, if applying a later Guideline created Ex Post Facto concerns. In other words, if the Guideline in effect on the date of a sentencing established a harsher Guideline range, the sentencing court was required to apply the more lenient Guideline that was in effect when the crime was committed. An example that comes to mind arises in federal, white collar cases. For instance, under the Guideline that applied up until October 31, 2002, the base offense level in white collar cases was 6, rather than 7. For this reason, under the law as it existed before Booker, courts in white collar cases were required to use the Guideline with the base offense level of 6, as long as the crime was completed prior to the effective date of Guideline that changed the base offense from 6 to 7.

When Booker was decided, however, some people (mostly prosecutors) claimed that since the Guidelines were no longer mandatory, the Ex Post Facto principles discussed above no longer applied. According to these individuals, courts were now free to apply the Guideline in existence on the date of the sentencing, even when the Guideline in effect when the crime was committed provided for a more lenient sentencing range.

Recently, the Eleventh Circuit squarely addressed this issue for the first time, and in our view, reached the right result (for the most part). In Wetherwald, (a federal white collar case), the defendants were convicted of defrauding investors out of millions of dollars. On appeal, the defendants argued that the trial court erred by applying the federal sentencing Guidelines that were in effect on the day of sentencing, rather than the more lenient Guidelines that were in place when the crimes at issue were committed.

Today the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, decided U.S. v. Fowler. The court took the government’s side in a circuit court split, holding that evidence is sufficient to establish the federal nexus of 18 U.S.C. § 1512(a)(1)(c) where any “possible or potential communication [may be made] to federal authorities of a possible federal crime.” In other words, the government can make a federal case out of any murder, if the victim might have possibly given information that may have been eventually transferred to a federal officer or federal judge.

The facts of this case are heartbreaking. The case certainly merited the charge of murder of a police officer. The evidence showed that three men robbed a hotel, then recruited Fowler and another man to help them rob a bank the next morning. They prepared in a cemetery, dressing in black clothing, drinking, and taking drugs. Fowler didn’t want them to see his cocaine supply, so he walked away to use it. While he was gone, a local police officer showed up. Fowler snuck up behind him and grabbed his gun, while the others helped him gain control. Fowler eventually shot him in the back of the head.

This was a dreadful crime, but murder cases are not common in federal court. Why was this a federal case? In 2004, a spokesman for the Middle District of Florida’s U.S. Attorney’s office explained that the local authorities requested federal prosecution. He cited the multiple suspects, multiple crimes, and wide jurisdiction, but all of these factors are common in state-prosecuted cases.

Last month, the Eleventh Circuit Court of Appeals, which hears appeals in federal cases here in Atlanta, Georgia, heard oral arguments in a habeas corpus case filed by Sholam Weiss. Weiss argues that the United States government has reneged on promises it made to the Austrian authorities to obtain extradition.

Ten years ago, Weiss was sentenced to 845 years in absentia after a jury found him guilty of RICO violations, money laundering, and other charges stemming from the white collar fraud that resulted in the downfall of the National Heritage Life Insurance Company. Just before jury deliberations began, Weiss fled the country. He was eventually arrested in Austria pursuant to an international arrest warrant. Austria initially refused to extradite Weiss, but later agreed after extensive negotiations and exchanges of information.

Weiss’s appellate lawyers argue that Austria would not have extradited Weiss had the U.S. not promised that Weiss would be given the opportunity to appeal his convictions and be resentenced. In his habeas corpus petition to the Middle District of Florida, Weiss argued that the extradition is invalid, so the United States has no personal jurisdiction over him and he should be released in Austria. The Eleventh Circuit is more likely to consider specific performance, requiring the U.S. to follow through on its promises to the Austrian authorities.

The United States Court of Appeals for the Eleventh Circuit has issued a ruling that deals with whether one victim of an economic crime gets to climb to the top of the heap and get more recovery out of the fraudster than the remaining victims. The Court ruled that even when such a victim can trace his money directly into a bank account used by the criminal, such a victim cannot get the money back. Instead, the money goes into the pot, so to speak, and is divided among all victims pro rata.

The case involves two common themes nowadays: Ponzi schemes and forfeiture proceedings that are part of federal criminal prosecutions. As is well known, in a Ponzi scheme, the fraudster takes money from recent investors to pay off those who invested earlier, until the whole thing collapses. Forfeiture is the process by which the government takes from a criminal defendant any money that comes from, is traceable to, or is a substitute for property that is part of the crime itself.

Altogether the defendant had defrauded about $20 million from over 90 people. Just before the defendant’s scheme was discovered, he got one final investor to put in about $2 million. Almost immediately thereafter, the authorities arrested the defendant and seized his bank accounts. The final investor’s $2 million was sitting in the defendant’s bank account. The federal authorities wanted to forfeit the $2 million in the bank account, along with other assets, in order to give the proceeds back to all 90 victims.

The Supreme Court has granted certiorari in Harrington v. Richter, a federal habeas corpus case out of the Ninth Circuit. The Ninth Circuit held that Richter was prejudiced by his defense lawyer’s unreasonable failure to investigate and present expert testimony on blood evidence and that the state court’s determination that he was not denied effective assistance of counsel was an unreasonable application of clearly established federal law.

The question presented is whether the Ninth Circuit denied the state court the deference mandated by AEDPA and impermissibly enlarged the Sixth Amendment right to counsel by elevating the value of expert opinion testimony to virtually always require criminal defense attorneys to produce such testimony. In addition, the Court asked the parties to brief whether AEDPA deference applies to a state court’s summary disposition of a claim, including under the Strickland test for ineffective assistance of counsel.

The facts of this case would make for an interesting episode of CSI. Both parties agreed that two defendants, Richter and Branscombe, socialized for several hours in Johnson’s house with Johnson and Klein until 2:30 a.m., when they left but Klein decided to spend the night. The prosecution and defense presented divergent theories at trial of the events occurring later that morning, when Klein was killed and Johnson received gunshot wounds.

Supreme-Court This week, the Supreme Court agreed to hear Abbott v. U.S. and Gould v. U.S. These criminal cases involve a deep circuit split among the federal courts that we addressed in this post in September, when the 11th Circuit decided U.S. v. Segarra.

The Armed Career Criminal Act (ACCA), drug laws, and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The ACCA and drug minimums are often longer than the minimum called for by § 924(c). § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” The plain language of that clause prohibits application of § 924(c) where defendants are subject to greater minimums.
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Yesterday, the Eleventh Circuit Court of Appeals issued its fourth opinion regarding the federal sentencing of Kenneth Livesay, former chief information officer for HealthSouth Corporation. The Court has insisted that Livesay must serve time in prison for his role in the accounting fraud at HealthSouth. We are disappointed in the Court’s decision, because in our view, the sentence was supported by the Supreme Court’s decision in Gall v. United States.

Prior to 1999, Livesay was an assistant controller for HealthSouth who played a direct role in the accounting fraud that came to light following Sarbanes-Oxley in 2003. In 1999, however, Livesay decided that he could no longer stomach the fraud, so he transferred to the IT department, where he became CIO. Before the fraud was discovered, he was asked repeatedly to return to the accounting department, but he refused.

In 2004, Livesay pleaded guilty to conspiracy to commit wire fraud, securities fraud, and falsifying records; falsely certifying financial information filed with the SEC; and a forfeiture court. Pursuant to his plea agreement, the government agreed to recommend a reduction in his offense level for acceptance of responsibility, a sentence at the low end of the guidelines, and a downward departure in exchange for Livesay’s cooperation with the government.

In this post earlier this month, we discussed U.S. v. Velez, a federal criminal case in which an attorney, Ben Kuehne, was charged with money laundering based upon payments of legal fees. On Monday, the Eleventh Circuit affirmed the Southern District of Florida’s dismissal of the money laundering charges.

Fabio Ochoa-Vasquez was extradited to the U.S. in 2001 to faces charges for cocaine smuggling. His criminal defense team hired Kuehne to investigate the source of the money Ochoa would use to pay their legal fees and verify that it was not criminally derived property. Kuehne drafted six opinion letters advising that the funds were clean. The money to pay the legal fees were wired to his trust account, then he wired them, minus his retainer, to Ochoa’s defense team.

The government alleged that Kuehne and his co-defendants knew that the funds were tainted and supported the opinion letters with falsified documents. They were charged with money laundering in violation of 18 U.S.C. § 1957. However, § 1957(f)(1) excludes “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution” from the scope of the money laundering statute.

Earlier this year, we discussed the United States Supreme Court’s decision in Chambers v. U.S. in this post. In that case, the Court held that a conviction for failure to report to a penal institution falls outside the scope of the Armed Career Criminal Act’s definition of “violent felony.” In light of that decision, the Eleventh Circuit held today in U.S. v. Lee that non-violent walkaway escapes from unsecured custody also do not qualify as “violent felonies” under the ACCA. This decision is a reversal of prior Eleventh Circuit law holding that all escapes are violent felonies for the purposes of the ACCA.

Shawntrail Lee was convicted of felony possession of a firearm in the Southern District of Georgia. He had three prior convictions: eluding police officers in the second degree, conspiracy to commit armed robbery, and escape based upon leaving a halfway house. The district court granted Lee a downward variance and sentenced him to the mandatory minimum 180 months (15 years) required by the ACCA.

Conviction for being a felon in possession of a firearm ordinarily carries a mandatory minimum sentence of 10 years in prison. The ACCA increases that minimum to 15 years where the defendant has three prior “violent felony” or serious drug convictions.

Last month, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, and hears appeals from both civil and criminal federal cases, decided United States v. Kaley, a case regarding due process requirements for protective orders over property defendants wish to use to hire criminal defense counsel of their choice.

In Kaley, a wife and husband were each indicted with conspiracy, transportation of stolen property, obstruction of justice, and money laundering. The indictment included a criminal forfeiture count and the government obtained an injunction against the Kaleys encumbering the property listed in the forfeiture count. The government got that injunction ex parte, without a hearing in which the Kaleys could participate.

The property that the government enjoined was the property that the Kaleys planned on using to hire their criminal defense lawyers. Their legal fees were estimated at $500,000. To pay that amount, the Kaleys had gotten a home equity line of credit and used the proceeds to buy a certificate of deposit. The government claimed that those assets were “involved in” the Kaleys’ commission of their alleged crimes and sought to forfeit the property.