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Yesterday, we posted a blog entry concerning an anticipated announcement by Eric Holder involving the Department of Justice’s decision to stop requiring appellate waiver provisions in plea agreements in federal court. Although the announcement has not yet been made, a number of individuals with whom we have spoken confirmed that the announcement should indeed be made soon.

Importantly, however, those same individuals have mentioned that the Department’s decision to alter its current policy on appellate waivers is going to be limited to the removal of ineffective assistance of counsel (IAC) claims only from those waiver provisions. In other words, it is our understanding that the Department will continue to insist on appellate waivers in plea agreements but it will remove the IAC waiver provisions from those agreements. Accordingly, as we understand it, under the anticipated new policy, individuals will not be required to waive current and future IAC claims.

Most of us that practice in federal court have always been troubled by the Government’s appellate waiver policy. To me, though, the most troubling aspect of the current policy has been the inclusion of the provision that requires an individual to waive all IAC claims. Under this policy, except in limited circumstances, at the time an individual enters a guilty plea, he waives his right to file an ineffective assistance of counsel claim. Unbelievably, these waivers have been construed to include waivers on ineffective assistance of counsel claims at a yet-to-be-had sentencing hearing. I have always had difficulty understanding how an individually can logically waive (or give up) the right to challenge deficient performance by his lawyer, months before his lawyer actually performs deficiently.
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Those you that handle white collar matters in federal court may want to take a look at the Court’s decision yesterday interpreting subsection two of the federal bank fraud statute, 18 U.S.C. § 1344(2). Subsection (2) of § 1344 makes it unlawful to knowingly execute or attempt to execute a scheme or artifice to obtain money, assets or property “owned by, or under the custody or control of, a financial institution by means of false or fraudulent pretenses, representations, or promises.”

In the case before the Court yesterday, the defendant attempted to cash fraudulent checks at Target. The checks he attempted to cash were taken from the mailboxes of various individuals and then altered so that they could be presented at Target by the defendant. Ultimately, Target realized that the some of the checks were fraudulent and after doing so, Target declined to present them to the bank. With respect to the one check that was presented to the bank, the bank itself realized the check was fraudulent and refused to pay the check. For these reasons, the record did not conclusively establish that any bank lost money as a result of the scheme.

The Court granted certiorari to resolve the Circuit split on the following question: Whether § 1344(2) requires the Government to show that a defendant intended to defraud a bank. According to the defendant, this really mattered in his case, because although he acknowledged that his scheme intended to deceive Target, he argued that there was no evidence that he ever intended to deceive a bank.

In a much welcomed opinion, the United States Court of Appeals for the Eleventh Circuit, which hears all federal criminal appeals from Georgia, Alabama and Florida, reversed an individual’s conviction last week due to the failure of the indictment to allege all the essential elements of the offense. The case at issue involved alleged violations of the federal statute that prohibits the “structuring” of financial transactions to evade currency reporting requirements. To me, however, the more interesting and significant part of the opinion involved the manner in which the court applied long standing (but often neglected) Fifth Amendment case law.

As federal criminal lawyers know, in federal court, an indictment must contain an allegation on all the elements of the offense. This same rule does not apply in state court because the Indictment Clause is one of the few provisions within the Bill of Rights that has not been incorporated into the Fourteenth Amendment. The “all elements” requirement emanates from the Indictment and Double Jeopardy Clauses of the Fifth Amendment, as well as the Notice Clause of the Sixth Amendment. With respect to the Indictment Clause, courts have recognized that the “all elements” requirement ensures that the members of the grand jury that returned the indictment found probable cause on each of the elements of the crime. Federal criminal lawyers and the individuals they represent have no right to be present inside the federal grand jury session considering an indictment, and under current law, federal prosecutors are not even required to present exculpatory evidence to the grand jury or provide the grand jury with legal instructions. For this and other reasons, the “all elements” requirement and the right to a grand jury indictment is one of the few rights that citizens possess in connection with the federal grand jury process.
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Paul Kish and I started our federal criminal defense firm here in Atlanta over seven years ago. Before that, we were both lawyers with the Federal Defender Office here in Atlanta. Paul was a lawyer in that office for more than twenty years and I was a lawyer in that office for five years. We became friends in that office and after a while, we decided to strike out on our own.

Since starting our firm, we have been very fortunate. We have been able to do what we enjoy most: represent individuals who are facing or dealing with criminal charges in federal court. Although most of the work that we do is here in federal district court in Atlanta, we have handled federal matters in a host of other areas, including Savannah, Macon, Columbus, North Florida, Tennessee, North and South Carolina, and a number of other jurisdictions. For the most part, we handle serious white collar criminal matters. Truth be told, however, we enjoy doing anything and everything in federal court.
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Last week, there was a lot going on for those of us that practice federal criminal law here in Atlanta. First, on Friday, over at the federal courthouse, Justin Anand was sworn in as a federal magistrate judge. Judge Anand is a former federal prosecutor and most recently served as a supervisor in the Office’s Economic Crimes Unit. Not surprisingly, his investiture ceremony was well attended. Those that could make it to the ceremony agreed that one of the highlights of the ceremony was when Jake Waldrop spoke. Jake is a federal criminal lawyer over at the Federal Defender Office and we, of course, are bias. Paul and I both worked with Jake at the Federal Defender Office and Jake is a great friend. By all accounts, Jake’s comments were very well received. He spoke from the heart, injected a healthy dose of humor, and entertained the crowd in a way that could only be pulled off by Mr. Waldrop himself. Great job Jake!

The day after Judge Anand’s investiture, current and former lawyers from the Federal Defender Office here in Atlanta gathered to celebrate nearly 40 years of great lawyering. In 1964, Congress passed the Criminal Justice Act, which provided the authority for this and other federal districts to establish Federal Defender Offices. And in 1973, pursuant to that federal statute, the Northern District of Georgia established the Federal Defender Office here in Atlanta. Over the years, the office has grown substantially but its core mission has remained the same: to represent people who are charged with federal criminal offenses in the Northern District of Georgia who cannot afford to hire counsel. The lawyers at the Defender Office do an outstanding job and the reunion on Saturday night was a huge success. Here’s to nearly forty years of great lawyering in federal court!

In a federal white collar criminal case originating out of the Northern District of Florida, the Eleventh Circuit recently reversed a physician’s conviction and 292 month sentence. The case involved a family practice doctor who was charged by the federal government with health care fraud and overprescribing. In essence, the Government’s theory of prosecution under both the health care fraud and overprescribing charges was the same — that the family practice physician had prescribed unnecessary or excessive quantities of controlled substances without a legitimate medical purpose and “outside the usual course of professional practice.”

The charges at issue related to the treatment of twenty of the doctor’s patients and two of those charges alleged that “death resulted” from the use of the controlled substances which the doctor allegedly overprescribed. Although all of the charges were significant, the “death resulting” allegation was especially significant because, as we previously reported here, it can carry a mandatory minimum sentence of 20 years and a number of doctors have received life sentences for those charges.

Like many doctors who face the loss of their livelihood and their liberty, Dr. Ignasiak made the decision to take his case to trial. At the conclusion of the trial, however, the jury returned guilty verdicts on the majority of charges and the judge sentenced the doctor to 292 months.

Earlier today, in a federal criminal case that originated in Montgomery, Alabama, the Supreme Court issued an opinion rejecting the application of the exclusionary rule, even though the police conduct at issue was ultimately deemed to violate the Fourth Amendment. The case at issue was Davis v. United States.

In Davis, the defendant and his passenger were arrested for DUI and providing a false name to police officers. After both individuals were arrested, they were placed in separate patrol cars. The police then searched Davis’s vehicle and the search uncovered a firearm. Sometime later, Davis was indicted in federal court in the Middle District of Alabama for possession of a firearm in violation of federal law.

At the time of the search, the search of Davis’s car was permissible under then-existing Supreme Court precedent. While Davis’s case was pending on direct appeal, however, the Supreme Court issued its decision in Arizona v. Gant. In Gant, the Supreme Court ruled adopted a new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional only (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains evidence relevant to the crime of arrest. Therefore, under Gant, the search in Davis was unconstitutional, and it seemed as though Davis’s conviction would be overturned.

Federal criminal lawyer (and crackerjack fishing guide) Steve Salter sent us a link to a unique story involving a request by a lawyer to delay a federal trial so that he could attend the BCS title game in Arizona. In his request, the lawyer (and Auburn football fan) asked the judge to delay scheduling the federal trial so that he and his family could attend the game. The lawyer also stated that “[s]ince the last National Championship Game for Auburn was 1957 (and I was born in 1965) it is fair to say that this is a once in a life-time opportunity. Without Cam Newton (or Nick Saban as our coach) it is hard to imagine this ever happening again.” Along with his filing, the lawyer included a photo of his three young daughters wearing Auburn football jerseys.

United States District Judge Kristi DuBose granted the motion, stating that “[t]he Court has a unique understanding of the predicament of Hartford’s lead counsel. See Exhibit A.” Exhibit A, which was attached to the judge’s order, was a photograph of a young girl in what appears to be an Auburn cheerleader outfit with a stuffed tiger sitting next to her.

When asked about the reference to Nick Saban as the Auburn coach, the lawyer said he was “hedging [his] bets in case the judge was an Alabama fan.”

Last week, the Eleventh Circuit decided U.S. v. Harris. Anthony Harris was charged in federal court with being a felon in possession of a firearm. Mr. Harris’s felony conviction was under Florida Statute § 316.1935, which makes it a second degree felony to flee or attempt to elude a police officer while driving at a high speed or in any manner which demonstrates a wanton disregard for the safety of persons or property.

Mr. Harris fled from police while driving between 70 and 80 miles per hour, eventually crashing his car into a tree and injuring his passenger. The Eleventh Circuit held that such a crime qualifies as a “crime of violence” along the same lines as burglary and arson.

As we mentioned in this post two weeks ago, the law regarding “violent felonies” under the Armed Career Criminal Act (ACCA) has been in a state of flux following the Supreme Court decisions in Chambers, Begay, and James in the past couple of years. We discussed Chambers in this post. Courts have looked to those decisions to define “crime of violence” under the Sentencing Guidelines, as well, because the definitions for both phrases are virtually identical.

Later this month, the National Academy of Sciences (the nation’s pre-eminent scientific research group) is scheduled to release a report that is sure to impact the manner in which criminal defense attorneys litigate some federal criminal cases. According to news stories, people who have seen the report “say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting.”

Among other things, the report concludes that forensic analysts are often poorly trained technicians who exaggerate the accuracy of their methods in court. In addition, the current draft of the report states that the forensic science field suffered from a reliance on outmoded and untested theories by analysts who often have no background in science, statistics or other empirical disciplines. The report also “concludes that Congress should create a federal agency to guarantee the independence of the field, which has been dominated by law enforcement agencies, say forensic professionals, scholars and scientists who have seen review copies of the study.”

Criminal defense attorneys that practice in both federal and state court routinely encounter forensic science issues. For this reason, our firm will continue to follow this story as it develops, and we are anxious to see the final report. Indeed, according to an individual who has reviewed the report: “I’m sure that every defense attorney in the country is waiting for this report to come out. There are going to be challenges to fingerprints and firearms evidence and the general lack of empirical grounding. It’s going to be big.” The full New York Times story discussing the draft report can be found here.