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I got a notice recently that in a few weeks will be the 35th anniversary of the day I was sworn into the Bar as a lawyer.  Also, I decided to look back at the history of this little blog, and discovered that soon after my 35th Bar anniversary we will pass the 10th anniversary of this “weblog” (which is how these little publications were originally known).  Like all milestone anniversaries, these two caused a bit of reflection, something kind of rare for a busy practicing lawyer.

Life in general is quite different than the day in 1982 when I became an attorney at law.  I had more hair, it was a different color, had no children, and was plagued by fewer worries.  Now, me, my graying hair and always opinionated kids live in the data-driven world where devices are always at our reach, information can be summoned at a moment’s notice from a variety of fora, and individual privacy is a thing of the past.  I’m not complaining, progress is good.  However, these many changes have greatly changed law and lawyering. Practicing law is now much more fast-paced, but likewise the data revolution has made me far more efficient.   Continue Reading

Here at beloved K&L we do a fair number of appeals in criminal cases, mostly in federal court but occasionally in the state court system. Winning an appeal in a criminal case is always hard, it takes lots of work to understand what happened in the lower court, it takes even more time and energy to figure out all the potential legal issues, and then it takes more time still to write, revise, refine and get the arguments down in a manner that is both correct yet easily understood. Even when we do all that, we face one more hurdle before we can get relief for our clients; the “Harmless Error” rule. A case decided last week by all 11 Judges on the federal Court of Appeals here in Atlanta clearly shows this difficulty. The decision is United States v. Roy, and can be found here.

First, the “harmless error” rule. For a long time, courts reversed criminal cases whenever the trial judge made an error or mistake, such as allowing a prosecutor to use inadmissible evidence, or failing to properly instruct the jury on the elements of a crime. About 50 years ago the courts began using a rule that looks to whether the error or mistake “harmed” the Defendant, or if the mistake was just a “technicality” and had no impact on the overall result. If the trial judge made a mistake, under the harmless error analysis the court of appeals then looks to whether the error contributed to the jury’s verdict. The beneficiary of the error (meaning the prosecutors in criminal cases) had the burden on appeal to show beyond a reasonable doubt that the error did not contribute to the conviction. So far, so good. Continue Reading

My law partner Carl and I represent lots of people who are charged with federal crimes, both here in Atlanta and throughout the country.  Each of us recently had cases where we believed that our clients were innocent.  In each case, we also each faced federal prosecutors who aggressively went after our clients.  All charges were dismissed recently against these clients, which leads to some thoughts as to why this happens in some cases but not in other situations.

Not everyone recognizes the differences between how federal criminal cases are brought and the system used in most state court systems.  In the state systems, investigators bring their work to an Assistant District Attorney.  For the most part, these assistant DA’s cannot refuse a case that the police bring to them.  In federal court, on the other hand, the Assistant United States Attorney (or “AUSA”) has broad discretion to accept or reject just about anything brought to him or her by one of the federal investigative agencies.  This greater discretion means that federal prosecutors usually weed out, and reject, the weakest criminal cases.  Because AUSA’s have greater discretion to turn down less strong cases, they end up winning far more of the matters that they do take on.   Continue Reading

The online Merriam-Webster dictionary defines the root word of “fascination” as “to transfix or hold spellbound by an irresistible power.”  Since 1971, the Supreme Court of the United States has on all least 13 occasions directly addressed various aspects of the federal gun crime found at 18 U.S.C. §924(c).  A total of forty-three Supreme Court cases involve people convicted of this law, even if the issue did not directly involve the language of this statute.  The High Court’s “fascination” with this statute continues, this time with a case out of Iowa, Dean v. United States, the docket for which can be found here.  The Supreme Court granted review of the case this past October, and will hear arguments on the last day of February, 2017.

Those of us who regularly practice criminal law in the federal court system generally refer to this statute as “924(c)”.  The history of the law is interesting, and somewhat relevant to current public debates.  In 1968, violent crime rates were rising, reaching a peak in the early 1990’s, after which they have dropped significantly.  The FBI numbers can be found on their database. Continue Reading

As a criminal defense lawyer I often get questions as to whether there is a difference between a “regular” guilty plea and a “nolo” plea.  Technically, the latter is from the Latin phrase, “nolo contendre”, more or less translating into “no contest.”  A few days ago the United States Court of Appeals for the Eleventh Circuit, where we handle lots of cases, issued an opinion discussing the “nolo” plea, its ramifications, and issued a ruling as to when a prosecutor can make use of an earlier “no contest” plea.  The case is United States v. Green.

Mr. Green has had some previous problems with law enforcement, and his problems got worse when he was charged with new crimes.  He got out on bail, but only with the condition that he wear a GPS-monitored ankle bracelet.  He apparently removed the ankle monitor, so the police went looking for him at a woman’s residence where they figured to find him.  Once inside the master bedroom, the police saw a large jacket (and the woman was not that size), men’s shoes on the floor, and most importantly, a firearm and ammunition scattered around. They subsequently discovered the unlucky Mr. Green hiding nearby in the closet. The feds charged him with being a previously (12 times!) convicted felon in possession of a firearm, and he went to trial represented by a very capable Federal Public Defender. Continue Reading

Here at our firm we do a fair number of criminal appeals.  Some cases come out of the federal courts, here in Atlanta, throughout Georgia, and occasionally in other parts of the country.  We also handle criminal appeals arising out of Georgia’s state courts.  As described in an opinion issued two days ago by the U.S. Court of Appeals for the Eleventh Circuit, Overstreet v. Warden, “The fundamental purpose of an appellate lawyer representing a defendant in a direct criminal appeal is to identify and argue bases for reversal of a conviction.”  The value of appellate counsel is based on his or her “examination into the record, research of the law, and marshalling of arguments on [the defendant’s] behalf”.   But what happens if the appellate attorney misses an issue?  The Overstreet decision is one of those rare cases in which a federal court of appeals overruled the lower federal court, and the state courts, in concluding that the attorney handling the appeal made such an egregious mistake that the Defendant was entitled to have some of his convictions reversed many years after the fact.

Johnny Overstreet apparently was no angel.  A jury found him guilty for a series of crimes arising out of robberies at five fast food establishments.  For each incident, he was also found guilty of kidnapping store employees.  Prosecutors successfully argued that Overstreet kidnapped the store managers by forcing them to walk back to a safe or office, and then return to the front of the establishment. At the time of Overstreet’s trial, Georgia’s kidnapping law required  even a “slight movement” of a victim in order to comply with the “asportation” aspect of this crime.   However, the following year, well before Overstreet appealed his own convictions, the Georgia Supreme Court reversed this “slight movement” test.  Under the new test, movement of a victim that is “part and parcel” of an independent crime, such as armed robbery, would generally not be considered asportation.  Even more importantly, two later cases with facts almost identical to Overstreet’s trial reversed kidnapping convictions based on the Georgia Supreme court’s new rule.

Here is where the problem arose.  The lawyer handling Overstreet’s appeal filed his legal papers 15 months after the new test for asportation had been announced by the Georgia Supreme Court, and several months after the other cases with identical facts had resulted in reversals.  The lawyer never mentioned asportation, the new cases, or any attack on the kidnapping convictions at all other than to say that the evidence was insufficient.  Not surprisingly, the state appeals courts did not look at nor reverse the kidnapping  convictions.

Casual readers of this blog (are there any other kinds) know that we handle various types of criminal cases here in Atlanta, throughout Georgia, and in federal court throughout the country.  More and more of these cases in these various courts involve crimes that relate in one way or another to use (or misuse) of computers.  One issue that comes up a lot in these cases concerns how much “damage” a person truly caused when he or she got into a website without authorization.  A case in the Eastern District of California, discussed in this post here, has some valuable lessons,  and also some contrasts with a matter I am handling now in a Georgia court.  First to the California case, then we’ll pivot over to the comparisons to my case.

A journalist named Matthew Keys was charged with giving login credentials to hackers with the group Anonymous.  Those online saboteurs supposedly went on the website of the Los Angeles Times newspaper, and changed a headline.  It was about 40 minutes or so before anyone noticed the hack, and the headline was changed back to the original form.  The feds took the case, and charged Mr. Keys with one count of conspiring to make changes to Tribune’s website and damage its computer systems, one count of transmitting damaging code and one count of attempting to transmit damaging code.  The jury found him guilty.

As we talk about all the time on this blog and on our own website, the sentencing process in federal court is very formalized, arising from the wickedly complex Federal Sentencing Guidelines.  First off, a Federal Probation Officer (or “USPO”) interviews the Defendant, gets information from the prosecutor, and then files the first version of the very important “Presentence Report”, sometimes called the “PSR”.  In the PSR, the Probation Officer makes recommendations as to how the sentencing judge should apply the Sentencing Guidelines.  If either side is unhappy with the Probation Officer’s recommendations, that party can file Objections, which the Judge then has to hash out and rule on at the final sentencing hearing, unless the Probation Officer agrees to change the final PSR in a manner acceptable to the objecting party.

We handle lots of federal criminal cases.  Many of our cases end up with a sentencing hearing. At the sentencing hearing, a federal judge decides what kind of punishment to impose on our client.  A case yesterday from the United States Court of Appeals for the Eleventh Circuit reminds us that sometimes our client can end up losing, even if it appears at first that we “win.”  This case reminds us that attorneys handling federal sentencing hearings need to think through what might happen if they convince the judge they are right about some aspect of a sentencing hearing.  Yesterday’s case is United States v. Slaton, and can be read here.

Mr. Slaton was a letter carrier for the U.S. Postal Service in beautiful Birmingham, Alabama, where I was handling a federal sentencing hearing just yesterday.  He lived about 30 miles away, so he needs to drive to and from work.  Mr. Slaton hurt his back, and eventually received disability benefits, reporting constant pain and need for various therapies.  Other evidence made it appear that he was faking his injuries, with evidence that he regularly went to the gym, remodeled homes, and drove long distances.  He was indicted for a variety of charges, such as making false statements in order to obtain worker’s compensation benefits, wire fraud, and theft of government property.  A jury convicted him of all counts.

The Judge who presided over the trial also conducted a sentencing hearing.  As any reader of this Blog knows, this is the point in the process where a Probation Officer prepares a Presentence Investigation Report to begin the process of calculating the wickedly complex Federal Sentencing Guidelines.  As we have discussed recently in another post, the concept of “loss” is exceedingly important in such cases.  The sentencing judge felt that the “loss” was lower than what the prosecutors wanted,  which led the Judge to calculate the potential Guideline “range” as suggesting 18-24 months custody.  The Judge was obviously not all that impressed with the government’s case, and decided that Slaton did not need to go to jail, and thus take up even more tax dollars.

The Federal Court of Appeals here in Atlanta yesterday upheld the convictions against a doctor who, among other things, engaged in cash transactions involving less than $10,000, in order to avoid having the bank file a “currency transaction report”, or “CTR.  The case is called United States v. Sperrazza, and can be read here.

We represent a fair number of medical professionals, but the facts of Dr. Sperazza’s case are a bit unusual.  Doctor S. and his partners operated an anesthesiology practice.   Apparently, whenever a patient paid by check (as opposed to by insurance or government program payment) the doctor would have his payment processors send the checks directly to Dr. Sperrazza.  Most of the time, the weekly bundles of checks totaled less than $10,000.  He would then cash groups of checks, always in amounts that totaled less than $9,000.  Over the course of several years the doctor apparently siphoned over $800,000 out of the anesthesiology practice in this manner.  He was then prosecuted for tax fraud, as well as the crime of “structuring” cash deposits to as to avoid the filing of a CTR.  A jury found him guilty, and he appealed his case to the Eleventh Circuit here in Atlanta. Among other things, he argued that the indictment itself was fatally flawed in the way this charging document described the “structuring” crime.

A couple of interesting things happened in the appeal.  First, the court had to figure out which version of the rules applied.  This was important in that for some unknown reason, the doctor’s legal team never challenged the indictment until after he was convicted.  The rule that talks about pretrial motions (Rule 12) was amended effective December 1, 2014, so the judges had to first figure out whether to use the new or the older version in order to decide how to handle this tardy challenge to the indictment itself.

The United States Supreme Court reversed a federal criminal sentence last week that was imposed on a man who had a lengthy record.  The Defendant fell into the maw of the much-maligned Armed Career Criminal Act (the “ACCA”).  Under the ACCA, a person who possesses a firearm and who has three or more qualifying prior convictions is sentenced to a minimum of 15 years in custody, with the maximum of life imprisonment.  What is called the “residual clause” of the law makes a person eligible for this heavy-duty punishment if any of his or her three prior crimes “otherwise involves conduct that presents a serious potential risk of physical injury to another.”  The Supreme Court, in a very rare move, held this language to be so imprecise as to violate the Constitution.  The case is United States v. Johnson, and can be accessed here.

A couple of important things about the ACCA before we discuss the decision.  First, the law was part of that horrible mess enacted in 1986 when our Nation’s rulers decided to impose amazingly long sentences for a whole variety of crimes.  This mess included the now-derided mandatory minimum sentences for various crimes, mostly involving drugs, which I wrote about recently here.  After these laws passed, most experienced practitioners in the federal criminal justice system could not even wrap their heads around fifteen years in custody for merely possessing a gun.  I recall a number of cases where prosecutors simply ignored this statute, believing it could not mean what it said.  By the early 1990’s, however, prosecutors got more comfortable in asking for these lengthy prison sentences. Pretty soon,  we all became accustomed to it, and defense attorneys then started challenging whether this penalty really applied to all of the Defendant’s prior crimes.

These challenges eventually worked their way up to the Supreme Court, resulting in five separate cases over a nine-year span. The first case told judges to use a “categorical approach” when deciding if the Defendant’s prior crime “involved” a “serious potential risk of physical injury to another.”  In other words, look only at the way the crime was defined, not what the person did.  Succeeding cases looked at whether various crimes like DUI, attempted burglary, not reporting to prison, or vehicular flight from the police did or did not fall within this imprecise standard of serious potential risk of physical injury to another.