Articles Posted in Federal Criminal Law News

If reports are true, those of us that handle federal criminal cases here in Atlanta and elsewhere received some much welcomed news this morning. It is being reported by Law 360 that within the next week or so, Eric Holder is expected to announce that the Department of Justice will end its longtime policy of requiring individuals who desire to plead guilty to accept plea agreements that include appellate waiver provisions within those agreements. Quite justifiably, these waiver provisions have received a great deal of criticism over the years, and the time for ending this policy is long overdue.

Best I can tell, the DOJ policy of requiring appeal waivers in plea agreements officially began in 1997, when the Department issued a directive requiring prosecutors to include such a provision within plea agreements. Although these provisions are not included in every single plea agreement in federal court, waiver provisions are included within the large majority of federal plea agreements. Under the “standard” waiver provision, individuals are required to waive two statutory rights. First, except for very limited circumstances, an individual is required to waive his statutory right to direct appeal. Second, an individual is also required to waive his right to waive his statutory right to collaterally attack his conviction and sentenced under 28 U.S.C. § 2255.

Federal criminal lawyers have been fighting against and challenging these waiver provisions for many years now. In our District, the Federal Defender Office has been leading the fight, doing everything possible to educate lawyers about the problems with these provisions, as well as coming up with ways in which the pitfalls created with these provisions can be avoided. For example, charge bargaining and appeal waiver exceptions can help cure part of the problem but in most cases, even these solutions do not address all of the risks created by appellate waivers.
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Over at the State Bar today here in Atlanta, the Federal Defender Office is holding its annual Saint Crispin’s Day Seminar. Although I may be off a year or two, the FDP began holding this annual celebration over 10 years ago when Paul and I were still working in that office. The idea for the celebration was conceived by Tasha Silas, a long time federal criminal lawyer who has dedicated her life to public service.

The title of the seminar is a reference to Saint Crispin’s Day, and the Saint Crispin’s Day speech from Shakespeare’s Henry V; in Henry V, Henry gave a rallying speech to the outnumbered English forces in the Battle of Agincourt. The speech inspired the 9000 English forces to overcome the odds and win the battle against the French, whose forces were estimated to be 36,000. Those of us that handle federal criminal cases can attest to the fact that we fight against overwhelming odds on a daily basis, and the seminar is designed to inspire and energize us.
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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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This Wednesday, United States Court of Appeals Judge Beverly Martin will be speaking here in Atlanta at a luncheon sponsored by the Criminal Law Section of the Atlanta Bar Association. Federal criminal lawyers here in Atlanta know Judge Martin well because she served as a district court judge here in the Northern District of Georgia for about nine years. In 2010, the Senate confirmed Judge Martin for a seat on the Eleventh Circuit by a vote of 97-0.

Although Judge Martin has only been a federal appellate judge for a relatively short period of time, she is well on her way to leaving her mark on a court that many see as often leaning towards the Government in criminal cases. Because of the balance that she has brought to this Circuit, many of us that practice in the area of federal criminal defense are particularly fond of Judge Martin. I certainly fall into that category. I tried my first case in front of Judge Martin not long after she came onto the District Court bench and Paul and I have appeared before her many times since. We all miss seeing her in the Green Room cafeteria over at the federal courthouse in Atlanta.

In my experience, Judge Martin is not only a smart, hard working Judge but she (most importantly) has a heart. She wears a robe but she is a down-to-earth person who understands that the decisions that she makes as a judge have a real impact in the lives of the litigants before the court, as well as their families.

A week or so ago over at Ellen Podgor’s White Collar Crime Prof Blog, guest blogger Jon May summarized the testimony of Deputy Attorney General James Cole concerning the Government’s position on the Fairness in Disclosure of Evidence Act 2012, an act which would require prosecutors in federal criminal cases to disclose exculpatory evidence in a timely fashion. Unfortunately, but not surprisingly, the Government is taking the position that Congress should not enact this important federal statute. Among other things, the Deputy Attorney General claims that requiring the Government to turn over this information would endanger the lives of Government witnesses.

As Jon May points out here, this argument relies on fear, not fact. It is, however, not the first time that the Government has used this argument. As I discussed in a previous post, in 1974, the Advisory Committee and the Supreme Court recommended amending the Federal Rules of Criminal Procedure to require the parties in federal criminal cases to exchange witness lists. This proposed amendment had a broad base of support, and ultimately both the Advisory Committee and the Supreme Court agreed that the change should be made. Before the Congressional Committee addressing the legislation, prosecutors argued (just like Deputuy Attorney General Cole) that pretrial disclosure of prosecution witnesses would result in harm to witnesses. Although the Committee recognized that there may be a risk in some cases, it ultimately concluded that “the risk is not as great as some fear that it is.”
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From our offices here in Atlanta, Georgia, we have been following recent developments in a number of federal criminal investigations and prosecutions concerning antitrust violations involving real estate foreclosure auctions. For instance, back in December, the Department of Justice indicted five individuals in federal court for alleged bid rigging and fraud at public real estate foreclosure auctions. In that matter, the indictment included charges against four real estate investors and an auctioneer.

According to the Department of Justice press release issued in connection with the indictment, the defendants and their co-conspirators agreed to suppress and restrain competition by rigging bids to obtain selected properties offered at public, real estate foreclosure auctions. In addition, the Government also alleged that after the conspirators’ designated bidder bought a property at a public auction, they would hold a second, private auction, at which each participating conspirator would bid the amount above the public auction price he or she was willing to pay. The conspirator who bid the highest amount at the end of the private auction won the property. The difference between the price at the public auction and that at the second auction was the group’s illicit profit, and it was divided among the conspirators in payoffs.

The federal indictment against these individuals includes antitrust charges under the Sherman Act, as well as a charge that the defendants conspired to commit mail fraud. Since the return of this indictment, one of the individuals has entered a guilty plea and the others appear to be headed for a trial in federal court sometime later this year. This, however, is not the only investigation or prosecution concerning alleged antitrust violations in connection with real estate foreclosure auctions. From what we have read, however, the investigations and prosecutions in other districts appear to involve similar allegations.

I just returned from the Twentieth Annual National Seminar on the Federal Sentencing Guidelines. Kevin Napper, Laurel Moore Lee, and many others organized an outstanding seminar dealing with all aspects of federal criminal sentencing. It is always fun to get together with other federal practitioners and discuss how things are handled in federal jurisdictions throughout the United States.

Yesterday, we had an enjoyable panel discussion dealing with the “Presentence Report and the Sentencing Process” in federal court. We had a great group of individuals on our panel, including defense lawyers (Donna Elm and Adrienne Wisenberg), a federal prosecutor (Laurel Moore Lee), an Assistant Deputy Chief Federal Probation Officer (Ray Owens), and a sentencing mitigation specialist (Tess Lopez).

We covered a lot of ground in our discussion and part of that discussion reminded me that, in my humble opinion, at least one aspect of federal sentencing needs to change. In federal court, before most every sentencing hearing, a federal probation officer prepares a Presentence Report, also known as the PSR. Before the sentencing hearing, the PSR is disclosed to both parties. Very frequently, however, before the sentencing hearing, the federal probation officer that prepared the PSR meets with the federal judge that is conducting the sentencing hearing (in chambers) and makes a recommendation to the judge on what the ultimate sentence should be.

Earlier today, I learned of the Federal Criminal Rules Advisory Committee’s decision to vote down (on a 6-5 vote) a proposed change to the Federal Rules of Criminal Procedure that would have required prosecutors to turn over all favorable evidence to the accused. Apparently, the Department of Justice convinced the Criminal Rules Advisory Committee to reject this proposed change. Although I am disappointed in this result, I can’t say that I am surprised. This is not the first time that the Department of Justice has flexed its muscle to prevent the Federal Criminal Rules from being amended in ways that require broader disclosure in federal criminal cases.

Several years ago, I learned that in 1974, the Advisory Committee and the Supreme Court recommended amending the Rules to require the parties in federal criminal cases to exchange witness lists. This proposed amendment had a broad base of support, and ultimately both the Advisory Committee and the Supreme Court agreed that the change should be made. Shortly before the effective date of the new rule, however, Congress (at the behest of the Department of Justice) suspended the effective date of this amendment to Rule 16, and ultimately removed the witness list disclosure provisions. As a result of this action, (and the Advisory Committee’s decision not to take up the issue again), the government is not required to provide the accused with a witness list in federal court.

Criminal lawyers that do not practice in federal court are often surprised (and shocked) to learn that the federal government is not required to turn over something so basic as a witness list when it prosecutes one of its citizens. Those of us that do practice regularly in the federal criminal system seem to just accept this as a reality and the price of doing business in federal court. This practice is particularly unfair, though, and the Rule needs to be changed. Most (if not all) state systems (including Georgia) require the disclosure of witness lists, and some states even permit the parties to take depositions in criminal cases.

Michael Diaz was charged with armed robbery and gun offenses nearly seven years ago. Since the age of 13, he has “changed identities” five times and has been diagnosed with schizophrenia and psychosis. He represented himself during a bench trial in 2006, but the Eleventh Circuit vacated his convictions, holding that he had not knowingly waived his right to a jury trial. He refused treatment for his mental illness and was found incompetent to stand re-trial.

In 2003, the Supreme Court addressed involuntarily medicating criminal defendants for the sole purpose of rendering them competent to stand trial in Sell v. U.S. Last week in Diaz, the Eleventh Circuit explained:

Sell laid out these four standards the government must satisfy for involuntary medication to render a defendant competent to stand trial: (1) important government interests must be at stake, (2) involuntary medication must significantly further the state interests in assuring a fair and timely trial, (3) involuntary medication must be necessary to further the state interests, and (4) administration of the medication must be “medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.”

In this post in August, we reported that the Eleventh Circuit had held that a trial court abused its discretion in failing to instruct the jury on good faith reliance. In that opinion, the Court vacated convictions on three counts, but affirmed a conspiracy conviction. Last week, in United States v. Kottwitz, the Court decided on rehearing that the “[d]efendants introduced enough circumstantial evidence to warrant an instruction that — at some pertinent point –[they] may have relied on the accountant’s advice” on the conspiracy count, as well.

Good faith defenses are often significant in white-collar criminal cases. As we have lamented, the government continues to prosecute people on the basis of business decisions that are not intended to break the law. It is imminently important for defense lawyers to convey to the jury that a person acting in good faith cannot be guilty.

To receive a jury instruction in the Eleventh Circuit, a defendant need only show “any foundation in the evidence.” The first Kottwitz opinion, which is still good law inasmuch as it is consistent with this most recent opinion, provides a detailed explanation of when the trial court must instruct the jury on good faith reliance.