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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If reports are true, those of us that handle federal criminal cases here in Atlanta and elsewhere received some much welcomed news this morning. It is being reported by Law 360 that within the next week or so, Eric Holder is expected to announce that the Department of Justice will end its longtime policy of requiring individuals who desire to plead guilty to accept plea agreements that include appellate waiver provisions within those agreements. Quite justifiably, these waiver provisions have received a great deal of criticism over the years, and the time for ending this policy is long overdue.

Best I can tell, the DOJ policy of requiring appeal waivers in plea agreements officially began in 1997, when the Department issued a directive requiring prosecutors to include such a provision within plea agreements. Although these provisions are not included in every single plea agreement in federal court, waiver provisions are included within the large majority of federal plea agreements. Under the “standard” waiver provision, individuals are required to waive two statutory rights. First, except for very limited circumstances, an individual is required to waive his statutory right to direct appeal. Second, an individual is also required to waive his right to waive his statutory right to collaterally attack his conviction and sentenced under 28 U.S.C. § 2255.

Federal criminal lawyers have been fighting against and challenging these waiver provisions for many years now. In our District, the Federal Defender Office has been leading the fight, doing everything possible to educate lawyers about the problems with these provisions, as well as coming up with ways in which the pitfalls created with these provisions can be avoided. For example, charge bargaining and appeal waiver exceptions can help cure part of the problem but in most cases, even these solutions do not address all of the risks created by appellate waivers.
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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.

Over at the State Bar today here in Atlanta, the Federal Defender Office is holding its annual Saint Crispin’s Day Seminar. Although I may be off a year or two, the FDP began holding this annual celebration over 10 years ago when Paul and I were still working in that office. The idea for the celebration was conceived by Tasha Silas, a long time federal criminal lawyer who has dedicated her life to public service.

The title of the seminar is a reference to Saint Crispin’s Day, and the Saint Crispin’s Day speech from Shakespeare’s Henry V; in Henry V, Henry gave a rallying speech to the outnumbered English forces in the Battle of Agincourt. The speech inspired the 9000 English forces to overcome the odds and win the battle against the French, whose forces were estimated to be 36,000. Those of us that handle federal criminal cases can attest to the fact that we fight against overwhelming odds on a daily basis, and the seminar is designed to inspire and energize us.
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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.

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