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

Whether here in Atlanta or other places, Carl and I represent a lot of folks who eventually face a sentencing hearing at the end of a federal criminal case.  Anyone whose spare time has brought them here knows that we chat about federal sentencing a lot, whether to analyze or to criticize how it is applied.  But whether we are analysts or critics, we always recognize that the topic remains one of the hottest subjects in the United States Supreme Court.  Yet another case this term, Beckles v. US, exemplifies this point.

OK, first the background.  The infamous “Armed Career Criminal Act” (or “ACCA”), part of the 1986 criminal law re-work that led to the mass-incarceration we are only now digging out from, yields a 15-year mandatory minimum sentence for anyone foolish enough to have anything to do with a firearm after having 3 or more prior convictions for drug dealing or a “violent felony”.  As always, the devil is in the details, and the question of what is a “violent felony” has bedeviled federal judges for the past 3 decades.  The issue was made even more difficult when the brains in Congress included as a violent felony any crime that “involves conduct that presents serious potential risk of physical injury to another.”  We call this latter phrase the “residual clause” of the ACCA.  After 25 years of trying to figure out what this squishy definition might mean, the late Justice Antonin Scalia (may he rest in peace) convinced his brethren to invalidate the entire clause as being unconstitutionally vague. That case was Johnson v. United States. Continue Reading

Here we go again, another federal criminal case which on appeal goes to the United States Court of Appeals for the Eleventh Circuit here in Atlanta, and that court rejects the Defendant because the specific argument was not brought up in the trial court. We have written about this issue many times, the need for lawyers to anticipate issues and, more importantly, the need to “object” or ” preserve” that issue.  An opinion issued yesterday in the Eleventh Circuit reminds me about this whole area,  in which the appellate court basically kicks the Defendant out of court because a good issue she raised on appeal was never mentioned during the trial itself.  The case is United States v. Leon, and can be accessed here.

Ms. Leon was charged with a series of crimes arising out of an “investment” offering. Apparently, she was was the assistant for the head of the investment company.  At his direction, she made a series of cash withdrawals from the company bank account, all in amounts below $10,000.  However, on several days she made multiple withdrawals, and the aggregate amount of cash removed from the bank on those days exceeded $10,000.

Many readers of our little blog know about the rule that requires financial institutions (as well as lawyers) to file a “CTR” if they engage in any financial transaction involving more than $10,000 in cash for a person or institution in a single day.  There are loads of different statutes in this area.  In Ms. Leon’s case, the prosecutors charged her with the specific sub-section of a statute that makes it a crime to cause (or attempt to cause) a financial institution to NOT file the CTR.  A separate sub-section of that same statute involves the crime of “structuring”, which is the very similar but slightly different crime of breaking up transactions into increments below $10,000 with the goal of avoiding the filing of the CTR.  I know, they sound incredibly similar, but they are in fact different.

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A recent state court criminal case here in Atlanta is very similar to a federal criminal case we handled in Savannah last year.  In each case, one person made a demand against another person, and the demand arose out of civil litigation.  Prosecutors in each case alleged that the “demand” was actually the crime of “extortion.”  The recent case here in Atlanta was handled by our friend Brian Steel, who is an excellent lawyer.  Just like in our case last year in Savannah, Brian got the charges dismissed against his client.  You can read about the recent Atlanta case here.

These cases came about because of statutes (which some people refer to as “laws”) that make it a crime to engage in extortion.  Generally, it is illegal to threaten another person and ask that person to pay you money in return for which you will take some action that benefits that other person.  However, (and this is the big exception) it is NOT illegal to make such a threat (or “demand”) if you have every right to make such a claim.  In other words, if someone damages your car, it is OK for you (or your lawyer) to send a “demand” to the person who wrecked your auto, seeking money, and threatening a lawsuit if they do not comply with the demand.  It is NOT OK to send a demand if the person never caused you any damage at all. Continue Reading

We represent many people who are under investigation for (or who later face) federal criminal charges.  In the past week the national news media are having spasms over the fact that the head of the FBI decided to publicly acknowledge that his agents are looking at emails scoured from a laptop sometimes used by the well-named Anthony Weiner, and that these emails may be connected to former Secretary of State Hillary Clinton (who, in case you have not heard it, is running for President).

I am fascinated by how politics intersects with the criminal justice system.  Over the past 34 years I have represented people involved in politics who either were charged with or investigated for crimes, both federal crimes and state criminal accusations.  While my cases are obviously different from whatever challenges are facing attorneys for Hillary Clinton and others, there are also striking similarities. Continue Reading

We are seeing more and more federal criminal prosecutions for alleged medicaid fraud, here in Atlanta, throughout Georgia, and in other cases that take us to other parts of the country.  Whenever federal prosecutors bring up these kinds of charges, they almost always issue a press release.  The local media lap up these press releases like kittens at a bowl of milk.  Because of ethical and constitutional issues, these press releases always include a line to the effect that the indictment, issued along with bells and whistles and a press release, only “contains charges” and the public should remember that the charged persons are “presumed innocent.”  Here is a recent example of one such press release.

A lawyer handling the defense of a person accused of defrauding the medicaid system has a lot of work on his or her hands.  First, the law is complicated.  The facts are usually very complex.  The information is almost always voluminous.  The practice of medicine, providing mental health services, or selling products or drugs to be used in the medical field are all businesses that generate gigantic amounts of information and data.  We are regularly amazed at the volume of material we need to assess when representing our clients in one of these highly sophisticated types of federal criminal cases.

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People who are trying to get their criminal conviction reversed or overturned often contact us at our criminal defense firm here in Atlanta.  Sometimes, they are trying to help a friend or loved one.  Often, the people who contact us are a little confused about the appellate process and how we prepare the written Brief for the appellate courts.  I am currently working on appeals in both the Georgia Court of Appeals and the United States Court of Appeals for the Eleventh Circuit.  Working on these two matters made me realize that I often spend a lot of time explaining the process or procedures to the folks calling our firm, and this realization made me wish that their original lawyers took the time to explain it all to the family or friends of the person who got convicted of a crime.

To begin with, many people think that when they appeal their case they get to argue all over again as to whether they are guilty of a particular crime.  For the most part, this is not true.  An appellate court does not decide guilty/not guilty.  Instead, a court of appeals mostly decides whether the process that led up to the guilty verdict was fair.  There are some cases where we raise what is called the “sufficiency of the evidence.”  In these cases, we are NOT claiming that the jury was “wrong.” Instead, in this type of appeal we are claiming that the trial judge was wrong for even letting the jury make a decision, because the evidence was legally insufficient.  This might seem like the same thing, but it is significantly different.  The important thing to remember is that appeals for the most part focus on whether the trial judge (or prosecutor, or defense lawyer) did his or her job correctly.

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We represent lots of people convicted of federal white collar crimes, and in many of these cases, our clients have defrauded or caused losses to individual or institutional victims. We always try to have our client pay back to any victim as early as possible, if the client was truly responsible for the victim’s loss.  Repayment is not only the right thing, it also helps us in trying to get the best possible sentence.  However, we often run into the situation where the client needs to avoid prison in order to keep working to pay off the defrauded victims.  The United States Court of Appeals for the Eleventh Circuit, right here in Atlanta, recently issued an opinion that reversed a criminal sentence imposed on a woman who was unable to make full restitution.  The case is United States v. Pate, and can be found here.

Ms. Pate is a native of Polynesia, and she married a man from the mainland when she was very young.  By all accounts, she was totally dependent on her husband when the couple moved to South Florida.  Ms. Pate also worked in a bank and had befriended an elderly couple who were customers of the bank.  When her husband died leaving her completely alone, doctors and friends all noted that she went into a tailspin.  She ended up embezzling about $176,000 from the elderly couple.  When confronted, she confessed, and pled guilty to embezzlement by the employee of a federally insured bank.  Continue Reading

Here in Atlanta and the rest of Georgia we have a law that prohibits texting and driving.  This law says that a driver cannot operate his or her motor vehicle “…while engaging in a wireless communication using a wireless telecommunications device.”  To “engage in a wireless communication” means “talking, writing, sending, or reading a text-based communication, or listening on a wireless telecommunications device. ”  Indiana has a similar law, a statute that allows talking on a cell phone but which prohibits texting.  Many years ago, the United States Supreme Court said that if a police officer has probable cause to believe that a driver has violated any law while driving the officer can stop the motorist.  In many of our federal criminal cases, these traffic violations leads to a search of the vehicle, and some unfortunate motorists end up in jail when the policeman or woman finds drugs, illegal weapons and the like.

When I first heard about these anti-texting laws in Georgia, they made a lot of sense, especially since my then teenagers were just learning to drive when the law went into effect in 2008.  However, I wondered, how can an officer know if the motorist whose head is pointed down toward a cellphone is “engaging in a wireless communication” as opposed to looking at photos or his calendar?  The difference can be huge, especially if the reason the officer stopped the vehicle is for an alleged violation of the no-texting law, and the officer subsequently finds contraband.

It turns out I was not the only person pondering whether a traffic stop in this context would be legal.  In the case of United States v. Paniagua-Garciathe Defendant was prosecuted for a large quantity of heroin located after his vehicle was stopped and searched.  However, here is why he was stopped:

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.