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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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!

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.

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.

In a federal white collar criminal case originating out of the Northern District of Florida (Pensacola Division), the Eleventh Circuit recently affirmed life sentences for a pain management physician convicted of various federal offenses. Among other things, the federal indictment against Dr. David Webb alleged that he unlawfully dispensed controlled substances in violation of federal law (21 U.S.C. § 841), and engaged in health care fraud in violation of § 1347 by issuing prescriptions that were not medically necessary. In connection with both the unlawful dispensing charge, as well as the health care fraud charge, the indictment alleged that Dr. Webb’s prescriptions resulted in the death of three of his patients.

At trial, both the Government and Dr. Webb presented expert testimony concerning the legitimacy of the controlled substance prescriptions at issue. According to the Government’s expert, Dr. Webb: (1) gave inadequate initial evaluations, including failing to obtain prior medical records and sub-standard physical exams; and (2) failed to refer patients to specialists to help manage their pain. In addition, the Government’s expert also testified that Dr. Webb also ignored signs of drug dependency in his patients and continued to prescribe drugs even when patients were “out of control with their self-taking of the medicine.” Accordingly, based on these and other factors, the Government’s expert opined that Dr. Webb’s prescribing practices were “dangerous, absolutely incredible,” and “clearly inconsistent with the usual course of medical practice and for other than legitimate medical purposes.” At the conclusion of the trial, the jury returned guilty verdicts on all counts but one.

On appeal, Dr. Webb raised a number of arguments, seeking to vacate his three life sentences on the resulting in death counts, as well as the other counts for which he stood convicted. Most notably, Dr. Webb argued that the trial court erred in the instructions that it provided to the jury on the three death related counts.

Lawyers that specialize in defending federal criminal cases may be interested to know that the federal sentencing commission recently released a document entitled: “Selected Post-Booker and Guideline Application Decisions for the Eleventh Circuit”. According to the Commission, “[t]he document is not a substitute for reading and interpreting the actual Guidelines Manual or researching specific sentencing issues.” However, those of you that practice federal criminal law in Georgia, Alabama and Florida will find the document useful, because it does contain helpful “annotations to certain Eleventh Circuit judicial opinions that involve issues related to the federal sentencing guidelines.”

I reviewed the document this morning and it is a fairly comprehensive. It not only includes case annotations dealing with many of the more common guideline provisions (including fraud, internet, and immigration offenses), but it also includes several sections that involve general principles of federal sentencing law, such as burden of proof issues, the requirements for sentencing on acquitted conduct, and departures and variances.

The document can be found here and for those of you that practice in other federal circuits, links to similar documents for those other circuits can be found here.

Last week, the Eleventh Circuit Court of Appeals affirmed the convictions of Larry Langford, the former mayor of Birmingham, Alabama who was convicted last year on various federal white collar offenses, including mail and wire fraud, bribery, money laundering, and federal tax offenses.

To me, the most interesting aspect of the opinion is the way in which the Court of Appeals discussed the honest services portion of the federal mail and wire fraud charges. As we discussed in this previous post, last summer, the Supreme Court issued its opinion in United States v. Skilling, a case which, in essence, limited the honest services provision of the federal fraud statutes to bribery and kickback schemes.

Before Skilling was decided, many (if not all) federal circuits made a distinction between honest services prosecutions that involved public officials, as opposed to those working in the private sector. At the risk of simplifying the issue too much, it was far easier for the government to prove an honest services violation against a public official. Skilling itself, however, did not distinguish between public officials and private actors, leading some to believe that after Skilling, the prosecution of both public and private officials would be governed by the same standards.

Earlier this year, the United States Attorney’s Office for the Northern District of Georgia announced that federal prosecutors and federal agents are ramping up criminal investigations and prosecutions of so-called “pill-mills” in metro Atlanta. The statement (which was reported in the Atlanta Journal Constitution) was made during a “summit” on prescription drug abuse held here in Atlanta back in March.

Since that “summit”, federal prosecutors in Atlanta have secured indictments against doctors and others, claiming that these individuals have violated federal controlled substance laws. Indeed, as recently as last month, federal prosecutors indicted doctors, managers, and owners of “Atlanta Medical Group”, charging these individuals with a number of federal offenses. According to the press release issued in connection with the federal indictment, these individuals operated a “pill-mill”, illegally distributing oxycodone in violation of federal law.

There is no doubt that prescription drug abuse is a serious problem that needs to be addressed. However, it is equally true that chronic pain is also a serious problem in the United States. Indeed, just last week, the New York Times published an article discussing a sweeping review on this issue that was recently released by the Institute of Medicine – the medical branch of the National Academy of Sciences. According to that review, it is “estimated that chronic pain afflicts 116 million Americans, far more than previously believed.” The article goes on to describe that “[t]he toll documented in the report is staggering[,]” leading the chief of pain management at the Stanford School of Medicine (Dr. Sean Mackey) to conclude that number of people suffering from chronic pain “is more than diabetes, heart disease and cancer combined.”

Earlier today, the Eleventh Circuit reversed a federal conviction of a pain management doctor prosecuted in federal court. The case originated out of the Southern District of Georgia, and after a lengthy trial, the jury convicted the pain management doctor on 129 counts of unlawfully dispensing certain controlled substances by means of written prescriptions made “outside the usual course of professional practice and without legitimate medical purpose,” in violation of federal controlled substance laws.

On appeal, the doctor raised a number of issues, the most significant one being that the federal trial judge effectively denied him his right to testify by failing to notify him that he could testify in a narrative format. At trial, the doctor was not represented by a a lawyer. And when it came time to decide whether he wanted to testify on his own behalf, the trial judge failed to correct an obvious misunderstanding the doctor had concerning his right to testify.

More specifically, according to the trial transcript, the doctor incorrectly believed he could testify on direct examination only if was questioned by an attorney. Although the record established that the doctor was clearly ignorant of his ability to provide narrative testimony, the federal trial judge failed to correct this obvious misunderstanding. Rather, the trial judge merely informed the doctor that he had “an absolute right to testify.”

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.