Articles Posted in Federal Criminal Law News

Those of us that handle federal criminal cases are closely watching a case that is currently before the Supreme Court concerning the use of acquitted conduct at sentencing.  The case, Asaro v. United States, which the Court has not yet decided it will hear, provides the Court with an opportunity to revisit its holding in United States v. Watts.

The background in Watts is fairly straightforward.  In Watts, the defendant was charged with a drug offense and a separate offense involving a firearm.  At trial, the jury acquitted Watts of the firearm offense but convicted him of the drug offense.  However, although Watts was found not guilty of the firearm related offense, the court that sentenced Watts concluded that it was permissible for courts to nonetheless hold defendants like Watts responsible for conduct for which they have been acquitted, as long as the government can establish the various factual prerequisites on the acquitted conduct by a preponderance of the evidence.  Finding that the government had indeed satisfied that standard in Watts, the lower court applied a firearm enhancement against Watts and increased his sentence, despite the jury’s conclusion that Watts was not guilty of the firearm related conduct.  Although the lower court’s decision was reversed on appeal, the Supreme Court, in a 7-2 ruling, reinstated the lower court’s decision in Watts.

Not surprisingly, the Court’s decision in Watts received a great deal of criticism on a number of grounds.  On its face, the idea that one can be held accountable for conduct for which one has been acquitted not only appears to offend the basic and fundamental Sixth Amendment right to a jury trial, but it also seems to be plainly unfair.  Significantly, though, over 15 years after the Court’s decision in Watts, Justice Scalia (joined by Justice Thomas and Justice Ginsburg) urged the Court to reconsider its decision in Watts.  Unfortunately, however, on that particular occasion and others, the Court has been unable to gather the 4 votes that are needed in order for the Court to accept a case that would allow it to revisit this issue.

As we move towards the holidays and the year end rush to get as many things done as possible, I am sure that most folks are not thinking about CLE hours in 2020.  But for those of you that handle federal criminal cases in the white collar area, be sure to mark your calendars for the annual White Collar Crime Seminar here in Atlanta on January 31, 2020.  Danny Griffin and Paul Murphy have been hosting this great seminar for years.  Although they took last year off, the seminar is back in full force this year.  As everyone knows, Paul moved over to work at the FBI in the summer of last year.  But Danny teamed up with Matt Baughman over at King & Spalding to continue the tradition of hosting an outstanding white collar crime seminar here in Atlanta.  And this year, Danny and Matt have put together another great program.

The morning starts off with a session on Hot Topics and Trends in White Collar Crime, with the panel being moderated by Tom Bever, who incidentally, is starting a new white collar crime practice group over at Smith Gambrell and Russell, along with long time friend and partner, Tony Cochran, and colleague and friend Emily Ward.  From there, Paul Monnin moderates a panel on Securities and Financial Fraud.  I know this will be an interesting panel and I look forward to seeing and listening to Lynsey Baron, who left the U.S. Attorney’s Office not long ago to take a position over at UPS.  After that, Deputy Assistant Attorney General Matt Miner leads a panel that includes Paul Murphy, our local U.S. Attorney, BJ Pak, and other government lawyers. The topic of this panel is Views from the Government.

Over lunch, Sally Yates, our former U.S. Attorney and Deputy Attorney General, will be there to give a talk.  Sally’s talks are always interesting and entertaining and I am sure this one will be as well.  After the lunch break, Judge Baverman, Natahsa Silas, Gary Spencer, and Steve Sadow will participate in a session entitled Practical Tips: From Bonds to the BOP and In Between.  The participants on this panel have a ton of trial and courtroom experience in white collar cases and I look forward to participating in this panel as the moderator.  One highlight of the afternoon session will be the panel discussion on Health Care Fraud moderated by our friend Brian McEvoy.  Mr. McEvoy has a way of livening things up and I was glad to see that Tom Clarkston is traveling up from the Southern District of Georgia to participate in this session.  Finally, to close out the day, our buddy Joey Burby will lead a panel on Trial Tactics in White Collar Cases.  Undoubtedly, this will be a fun and lively session as well, with Craig Gillen and Amanda Clark Palmer participating along with a few others.

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.