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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Ellen Podgor over at the White Collar Crime Prof Blog recently pointed out a significant decision out of the Ninth Circuit involving the federal mail fraud statute which could be helpful to those of us that handle white collar cases in federal court. Specifically, in United States v. Phillips, Judge Rackoff, writing for the panel and sitting by designation as a visiting judge, reversed the defendant’s mail fraud conviction, concluding that the Government failed to prove that the mail system was used for the purpose of executing the scheme at issue.

The facts in Phillips were relatively unremarkable. In essence, Phillips executed a scheme in which he improperly used company funds to purchase a $10,000 watch for himself. After he paid for the watch, the jeweler mailed the watch to Phillips. In prosecuting him for mail fraud, the Government attempted to use the mailing of the watch to Phillips to satisfy the mailing requirement of the federal mail fraud statute. After he was convicted at trial, Phillips appealed and argued that the mailing of the watch was not in furtherance of the fraudulent scheme to defraud his company, and that he was instead simply using the money he obtained from his company to purchase a watch.
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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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Recently, I read an article in Bloomberg Businessweek entitled: “American Pain: The Largest U.S. Pill Mill’s Rise and Fall.” Among other things, the article recounts the story of two brothers who were investigated and prosecuted in federal court for operating a number of pain management clinics in Florida, Georgia, and at least one other federal district. Ultimately, both brothers were prosecuted and convicted for a host of federal crimes, inluding RICO violations, fraud offenses, possession with intent to distribute controlled substances, and federal conspiracy charges. Both brothers are serving sentences in federal prison of over 15 years.

These days, investigations and prosecutions of doctors, owners, and others associated with alleged overprescribing in pain management clinics are not surprising. As we have discussed before here, in federal courts in Atlanta, Savannah, and many other jurisdictions, federal agents and federal prosecutors are bringing aggressive prosecutions against all of those associated with the prescribing of controlled substances. For the most part, prosecutors bring charges under the Controlled Substance Act, arguing that the prescriptions at issue were issued outside the usual course of practice, a term of art that must be supported by expert testimony.
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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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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.