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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.

In what ultimately may become a federal criminal case here in Georgia, the BBC is reporting that earlier today, the Federal Bureau of Investigation executed search warrants at the Peanut Corporation of America’s plant in Blakely, Georgia, as well as its headquarters in Lynchburg, Virginia. In addition to the federal criminal investigation that was launched last month, the FDA recently announced that the Company was “not compliant with Current Good Manufacturing Practices required by the FDA”. And more recently, the FDA issued a statement which claimed that the Peanut Corporation of America “knowingly sold contaminated nuts.”

This appears to be a wide-ranging investigation, with potential federal criminal implications here in Georgia, Virginia, Texas, and possibly other locations as well. To date, more than 1500 food products containing Peanut Corporation of America have been recalled, and a total of 575 people have have fallen ill with the outbreak strain of salmonella typhimurium since September 2008.

In addition to these federal criminal problems, the company is also facing civil lawsuits filed by personal injury lawyers on behalf of those that have fallen ill. The full BBC story concerning this ongoing federal criminal investigation can be found here.

Earlier this week, the Federal Court of Appeals that sits here in Atlanta, Georgia heard arguments in the federal criminal case involving Alabama’s former Governor and former Health South executive Richard Scrushy. As I previously discussed here, there are a number of interesting issues presented in this federal criminal appeal, including the issue of whether it was legally improper for the federal judge that heard the matter to have ex parte conversations with an agent of the Department of Justice concerning an issue presented in a then-pending motion.

In addition to this argument, lawyers representing the defendants in this matter presented a number of other arguments to the Court of Appeals here in Atlanta. For instance, Mr. Siegelman’s lawyer argued that the Government presented insufficient evidence of an explicit quid pro quo and therefore Mr. Siegelman’s conviction on the federal bribery charge should be overturned. Additionally, Mr. Scrushy’s lawyer argued that Scrushy’s conviction should be overturned because of improper jury conduct that allegedly occurred both before and during jury deliberations.

This federal political corruption case has attracted a lot of national attention and according to the New York Times, there is currently a Congressional investigation looking into whether Mr. Siegelman was targeted and investigated for political reasons. You can find the full story concerning the oral arguments and other developments in this case here.

In an earlier post pertaining to a federal criminal statute, we discussed the efforts made by lawyers on both sides of a federal criminal case to convince the Supreme Court to take up the issue of precisely what the Government must prove in cases prosecuted under the federal aggravated identity fraud statute. Fortunately, earlier this week, the Court agreed to take up the case.

As we previously discussed, currently, a split in the circuits exists on the manner in which the term “knowingly” has been interpreted under the federal aggravated identity theft statute. In some circuits, the Government is required to prove that the defendant is aware that the “means of identification” at issue actually belonged to another person. In other circuits, however, the Government is not required to make such a showing.

In the Eleventh Circuit (the Court that hears criminal appeals from Georgia, Florida, and Alabama), the Government is not required to make the higher showing. For this reason, we are pleased that the Court has agreed to take the case and resolve an issue that impacts those facing this type of federal criminal charge.

In a federal criminal case that was prosecuted in Atlanta, Georgia, the Eleventh Circuit Court of Appeals recently affirmed the sentences of two individuals convicted of conspiracy to commit theft of trade secrets. This federal case received a lot of media attention because it involved an allegation that a Coca-Cola Company employee and others attempted to sell confidential documents and materials to one of Coke’s main competitors, Pepsi. After learning of the alleged scheme, an FBI agent posed as a Pepsi employee who was interested in purchasing the documents.

Ultimately, the Coke employee and two others were charged and convicted in federal court here in Atlanta. On appeal, the lawyers for two of the defendants raised a number of arguments, including the argument that the sentences that the trial court imposed, both of which were above the applicable guideline range, were unreasonable. The Court of Appeals disagreed, however. According to the Court of Appeals, neither defendant was able to show that the sentence at issue was either procedurally or substantively unreasonable.

In a federal criminal appeal involving an individual’s right to counsel, the United States Court of Appeals for the Eleventh Circuit recently ruled that the dual sovereignty doctrine applies in the Sixth Amendment context. Although the legal issue presented in the case was one of first impression, the underlying facts were fairly straightforward.

A federal grand jury in Florida indicted the defendant for a number of drug offenses. In his federal criminal case, the defendant moved to suppress statements that he had previously given to federal agents before the federal indictment was returned. At the time the statements were made, the defendant was represented by counsel on a pending state charge; the state charge was based upon the same facts that ultimately gave rise to the federal charges.

On appeal, the defendant argued that by questioning him while he was represented on the state matter, the federal agents violated his Sixth Amendment right to counsel. The Court of Appeals disagreed. According to the Eleventh Circuit, the Sixth Amendment right to counsel is offense specific. The court acknowledged that there is no question that the defendant’s right to counsel had attached to the state drug charge at the time the federal agents interviewed him. However, the court concluded that because the state and federal charges originated from autonomous sovereigns that each had the authority to define and prosecute criminal conduct, the defendant’s state drug charge was a different offense than his federal drug charges for Sixth Amendment purposes. Therefore, the court concluded that the defendant’s invocation of his Sixth Amendment right to counsel for the state drug charge did not attach to the federal offenses which were uncharged at the time of the interview.

Last week, I traveled from Atlanta to New Orleans to attend a seminar for attorneys that represent individuals who have been accused of federal criminal offenses. The seminar was sponsored by the Office of Defender Services in Washington, D.C. The seminar was entitled “Winning Strategies” and it included sessions on white collar offenses, computer crimes, firearms offenses, sentencing proceedings in federal court, and a host of other federal offenses.

I attended the seminar with Jake Waldrop, a good friend and fellow criminal defense lawyer here in Atlanta. Jake and I lectured on Internet Based Sex Offenses in Federal Court. As we discussed during the seminar, in recent years, the federal government has placed a high priority on the prosecution of these offenses. And from all indications, the increase in the number of prosecutions in this area is not expected to slow down.

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