Federal Criminal Lawyer Blog

Good Lawyers Are Persistent, and Continuous Arguments Result in Supreme Court Victory

Wed, 19 Jun 2013 09:47:01 -0500

As any reader of this blog knows, I am a big fan of good, aggressive and persistent criminal defense lawyers. I have had the chance to practice and observe many great criminal defense lawyers, here in Atlanta, throughout Georgia, and in other parts of the country when my work takes me to places like Florida, Alabama, New York and California. I especially like it when criminal defense lawyers "stay the course", and continue pressing the same argument over the years until they finally prevail. Precisely that situation took place this past Monday when the United States Supreme Court overruled Harris v. United States. What happened was that the Court finally changed its mind, and decided that mandatory minimum sentences are not excluded from the rule first announced in New Jersey v. Apprendi. The case from this Monday is Alleyne v. United States, and can be found here. I previously posted on this issue here.

Mr. Alleyne's Public Defenders were just such persistent and aggressive criminal defense attorneys. They objected to the sentencing judge's ruling, which was correct at the time it was made. They continued their objection all the way to the Supreme Court, which agreed with them Monday and changed that rule. Here's how it happened.

In 2000, the Supreme Court issued the landmark ruling of Apprendi v. New Jersey. That case held for the first time that any fact that can change the maximum punishment to which a Defendant is exposed must be pled in the indictment, and proven to the jury by the usual "beyond a reasonable doubt" standard. This is very important because until that time many facts that result in potentially longer prison sentences could be decided by one person, the sentencing judge, and that judge could use the less stringent "preponderance" evidentiary standard.

However, in 2002 the Court in a case called Harris v. United States restricted the Apprendi rule, holding that it did not apply when a particular fact merely kicked in a "mandatory minimum" sentence, but did not change the potential maximum. Federal crimes often come with mandatory minimum punishments which are extremely harsh, and defense lawyers for years have long chafed under a system that keeps away from the jury the crucial question as to whether the Defendant should be exposed to a very long minimum term in custody.

Harris was decided by what we call a "plurality", with Justice Breyer casting the crucial fifth vote. Justice Breyer had gone along with the other four who wanted to keep the mandatory minimum fact away from the jury. Although he questioned the logic of the whole idea, he thought there might be a difference between raising a minimum sentence and enhancing a maximum one. In a later case, though, Breyer expressed doubts about that distinction. Since that time criminal defense lawyers repeatedly made pleas to reconsider Harris, but until now all such requests have been rebuffed.

Then, along came Mr. Allyene's persistent Public Defenders. Mr. Alleyne was accused of a robbery, and one count of using a gun during a crime of violence, what we call a "gun count" or a "924(c)". He received a forty-six month sentence on the robbery charge. However, the gun charge has a 5-year minimum, and that floor can increase to a 7-year minimum if the firearm was "brandished." The jury did not accept the theory that the gun had been brandished. Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery. The judge then imposed the 7-year minimum, instead of the regular 5-year punishment. Alleyne’s lawyer conceded that the Harris decision did treat brandishing a gun as a sentencing factor, not as an element of the crime, yet the public Defenders argued that Harris was inconsistent with Apprendi and later sentencing cases. The judge rejected that challenge, but commented while imposing the added 2-year sentence that “I don’t like being the reverser of juries.” The judge said the Harris precedent gave him no choice. The Court of Appeals subsequently affirmed the sentencing judge, based on the suspect Harris decision.

This past Monday the Supreme Court overruled Harris. I have not had the chance to study the ruling in detail, but it clearly shows that lawyers need to keep pressing sentencing issues that can help their clients.

Federal Criminal Sentencing Hearings: Constitution Mandates That Judge Use Older Version of Sentencing Guidelines if it Helps the Defendant

Fri, 14 Jun 2013 14:20:37 -0500

We do lots of sentencing hearings in federal criminal cases, here in Atlanta, throughout Georgia and other parts of the country, like Florida, Alabama, New York, California and Tennessee. Whatever state they are in, all federal judge are first required to consult the Federal Sentencing Guidelines when deciding the appropriate sentence for a person who has either pled guilty to or who a jury has found is guilty of a federal crime. These Guidelines are amended all the time, and it seems for some categories of crimes the suggested range of punishment keeps getting more and more harsh. However, what we lawyers call the "Ex Post Facto" clause from the Fifth Amendment to our beloved Constitution says that it is unconstitutional to increase punishments "after the fact." Several days ago ( I was not able to get to this post as I have been in federal court all week) the United States Supreme Court held that the Ex Post Facto clause requires a new sentencing hearing for an Illinois businessman who had been convicted of bank fraud. The case is Peugh v. United States and can be accessed here.

Mr. Peugh was convicted of five counts of bank fraud in a scheme that caused more than $2.5 million in losses by the victim bank. The crimes took place around 1999 and 2000. However, when he went to court years later, the Sentencing Guidelines in effect at the time of his sentencing hearing suggested 70 to 87 months in prison. Peugh objected to use of the 2009 guidelines, insisting that the judge should use the guidelines in effect at the time of his crimes. Under those earlier Guidelines, the appropriate sentence ranged from 30 to 37 months in prison. Peugh argued that relying on higher guidelines enacted after his crimes were committed would amount to the use of an ex post facto law. The sentencing judge rejected the argument, and sentenced Peugh to 70 months in prison. A panel of the Seventh US Circuit Court of Appeals also rejected the ex post facto argument and upheld the sentence.

In reversing those decisions this past Monday, the Supreme Court said: “A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” Our new favorite Justice, Sonia Sotomayor, wrote the majority opinion in a 5-4 decision. She was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

The majority ruled that a federal judge’s reliance on the tougher guidelines in fashioning Mr. Peugh’s sentence violated the concept of “fundamental justice.” The ban on ex post facto laws is designed to promote basic fairness by preventing the government from changing the law midway through a criminal case when the new law will result in more severe punishment.

The main issue in this case was whether the ban on ex post facto laws should apply beyond statutes (laws enacted by Congress) to include any new, tougher version of the sentencing guidelines (which are created by this hybrid body called the United States Sentencing Commission). In deciding that the ex post facto clause does apply to the Sentencing Guidelines, Justice Sotomoyor wrote, “The Ex Post Facto Clause forbids the [government] to enhance the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range.”

“That is precisely what the amended guidelines did here,” she said. “Doing so created a ‘significant risk’ of a higher sentence for Peugh, and offended one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice.”

Justice Thomas wrote a dissent, joined by Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito. Justice Thomas said the sentencing guidelines may influence a judge’s sentencing decision but that the final sentence is discretionary. The Constitution bars ex post facto laws that increase punishment, not the enactment of discretionary guidelines that may result in a harsher sentence, he said.

Criminal Law Case in the Supreme Court Says That Police Can Take DNA when Person is Merely Arrested for Serious Crime

Tue, 04 Jun 2013 13:10:28 -0500

In a case that criminal defense lawyers here in Atlanta and around the country need to all read, yesterday the United States Supreme Court ruled that the police can take DNA samples from people who are merely arrested for serious crimes, and that the Fourth Amendment to the United States Constitution does not prohibit this practice. The decision can be found here. I predicted in a previous post that this would be a close decision, and it was: 5-4. One major surprise was that Justice Breyer, normally a friend of personal liberties, sided with the majority in ruling that warrantless extraction of DNA samples passes constitutional scrutiny. The dissent was sort of "Nino and the Ladies", with Justice Antonin Scalia being joined by the three female Justices, Sotomayor, Ginsberg and Kagan.

Recall that this case involved Alonzo King, who was arrested in Maryland for menacing a crowd with a gun. Under Maryland law, the police extracted a DNA swab which was later sent to and made a part of a national database. Sometime later still, King's DNA was matched to a rape investigation from six years earlier. The Maryland Supreme Court threw out King's conviction because the DNA was extracted without a warrant nor was there any individualized suspicion that justified taking the DNA sample. On Monday, the U.S. Supreme Court reversed the Maryland judges, and instead compared the process of taking DNA with other activities during the criminal booking process such as photographing and fingerprinting suspects when they are booked.

Justice Anthony Kennedy, writing for the five members in the majority of the court, noted that while taking a DNA sample is a search, the Fourth Amendment bars unreasonable searches. Kennedy said that a "gentle" swabbing of the cheek is not unreasonable. Nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail. Because Maryland's law was restricted to warrantless DNA extraction only when a person is arrested for a "serious" crime, and because the law bars any collection or use of DNA to detect private genetic information, the majority found that DNA collection is a legitimate booking procedure.

In dissent, Justice Scalia, a staunch conservative, issued a rare oral dissent from the bench. He said the court has never held that the government can conduct general suspicionless searches of anyone it arrests, and by doing so in this opinion, the court, he said, casts aside "a bedrock rule of Fourth Amendment law." "Make no mistake about it," he warned. "Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason."

This is a classic example of a "slippery slope", or the "camel with his nose in the tent." in other words, once a process begins, it is very difficult, if not impossible, to stop it. I tend to agree with Justice Scalia that this is just the beginning of the creation of a national database where all of our DNA will be held, compared, used and possibly mis-used. This case reminds me why all criminal defense lawyers need to fight ceaselessly for the rights of our client, for when they can do such things to "criminals", it is only a short step before they doe these things to the rest of us.

227 Feet Inside a Federal Boundary Line: Making a Federal Case Turns a Life Sentence into a Death Penalty

Thu, 30 May 2013 10:43:29 -0500

Criminal defense lawyers here in Atlanta, and other parts Georgia and the rest of the country all occasionally confront the question of why some prosecutions end up in federal court yet similar cases are handled in the state court system. I've written on this topic previously. Basically, criminal cases come into federal court whenever there is a federal person, place or money, or when the activity has an impact on interstate or foreign commerce. the other day, the United States Court of Appeals for the Sixth Circuit decided that a crime taking place 227 feet inside a federal boundary line was enough to turn a life sentence into the death penalty. The case is United States v. Gabrion, and it's an excellent example of how some matters end up in federal court, and why the stakes can be so much higher when the feds decide to take over a case.

Mr. Gabrion committed brutal murders in Michigan. One of the bodies surfaced from the bottom of Oxford Lake. A national forest boundary line ran through the part of the lake. The body was found 227 feet inside the boundary line of federal property.

Michigan has never used the death penalty to execute a person. The State abolished the death penalty totally in 1846.

The federal government re-enacted the Death Penalty in a series of laws that were enacted in the late 1970's and early 1980's. Therefore, if a person committed a potential death penalty eligible crime in a state like Michigan, they could not be put to death if the local prosecutors handled the matter, but might face the death penalty if the federal government had enough of a connection to take the case over.

In Mr. Gabrion's case, the victim's body was 227 feet inside federal land, so the case was prosecuted in federal court. His lawyers wanted the judge to tell jurors that if the body had been found on State land, then he could not have been put to death. The judge at trial and the majority of judges on appeal rejected this idea, and upheld the death sentence that was imposed on Gabrion. However, there was a spirited dissenting opinion, and there is an outside chance that the United States Supreme Court might take the case for review because of the importance of the issues.

This case involved a brutal crime, but the underlying principles apply to other criminal cases we work on. Over the years I raised a series of challenges to federal cases, arguing that there was not enough of a connection to interstate commerce so as to allow the matter to be brought in federal court. I won a few of these, lost others, but in every one I feel that we put our client's case in a better posture. That is why it's important that when looking for a criminal defense attorney, folks should make sure that the lawyer is creative enough to use any potential argument for the person accused of a crime.

Criminal Cases and Cell Phones: Another Court Confronts How the 18th Century Fourth Amendment Works With Modern Technology

Wed, 22 May 2013 11:48:27 -0500

Criminal defense lawyers here in Atlanta, throughout Georgia and the rest of the Nation, whether in federal court or state court, all need to be aware of developments in the law, especially such hot topic areas like search and seizure. Many attorneys are able to either win, or at least put their client's case in a better posture, by pointing out that the investigating officials either did or came close to going over the Constitutional line when obtaining incriminating evidence. I've written in earlier posts about how more and more courts are grappling with search and seizure rules when applying modern technology to the Fourth Amendment, the rule created by the Founders of our country in the 18th century.

Another of these rulings came out the other day, and was issued by the United States Court of Appeals for the First Circuit. That case held that when the police arrest a person, they generally cannot look through the person's cell phone unless they first get a warrant. The First Circuit case applies to federal criminal matters that arise in Maine, New Hampshire, Massachusetts and Puerto Rico. An earlier ruling by the Seventh Circuit (which is governing authority in federal cases in Illinois, indiana and Wisconsin) came to a different result, holding that no warrant is needed. Look to see this issue going up the the United States Supreme Court at some point in the not too distant future.

In the First Circuit case, the police had probable cause to arrest the Defendant for being involved in a suspected drug deal. They then got his phone out of his pocket, and by pushing a couple of buttons, they then got information as to his home address. They went to the residence, put officers inside to make sure his wife did not destroy anything, and then got a warrant to search the house. In the house they found lots of drugs and a weapon, leading to the Defendant's ultimate 22-year prison sentence. He appealed, arguing that the search of his phone was illegal, and that illegality led to the identification of his house and search there. The First Circuit agreed and reversed his conviction.

The Fourth Amendment says that there shall not be any search unless based on probable cause and after a judge has issued a warrant. We all know that this rule is riddled with holes like Swiss cheese. One such hole is the "search incident to arrest" exception to the Fourth Amendment. This rule says that potential danger to the police and the need to look for evidence before it can be destroyed are reasons why law enforcement officials are permitted to engage in a warrantless search of the arrested person, his belongings and anything he has near him. The cases say that the cops can look through wallets, purses, and the like, but cannot get into boxes or vehicles that are some distance away from the arrested person.

Enter the modern cell phone, which is no bigger than wallets and purses, and oftentimes much smaller. However, more and more courts are recognizing that size ain't everything, for as we all know, our cell phones are often repositories of extraordinary amounts of information, much of which is highly confidential and personal. The prosecutors in the First Circuit case argued that a cell phone is no bigger than a wallet, and the same search rules should therefore apply. However, the First Circuit noted that the "eighty-five percent of Americans who own cell phones and who use the devices to do much more than make phone calls" would probably be surprised to know that their government equated these technological marvels with a wallet. The First Circuit instead recognized that cell phones are actually compact computers, with vast storage capability, and that most folks keep an array of private information on these devices. As a result, the court said that the wallet analogy does not work. If the police want to look through the cell phone of an arrested person, they need to get a warrant.

Now, a caveat. The First Circuit sits in Boston, where the Marathon bombing still is causing shockwaves throughout the community. The First Circuit therefore noted that its ruling did not apply to "exigent circumstances" cases, which are situations in which an emergency situation requires immediate law enforcement action with no need to first get a warrant from a judge. "We assume that the exigent circumstances exception would allow the police to conduct an immediate, warrantless search of a cell phone's data where they have probable cause to believe that the phone contains evidence of
a crime, as well as a compelling need to act quickly that makes it impracticable for them to obtain a warrant -- for example, where the phone is believed to contain evidence necessary to locate a kidnapped child or to investigate a bombing plot or incident."

This is an important case. We will keep track of further developments, so we can use this and other recent cases to help clients we represent.

Federal Criminal Charges Against Public Officials: U.S. Attorney Announces Indictment Naming State Legislator

Fri, 17 May 2013 10:44:11 -0500

Federal Criminal Charges were announced yesterday here in Atlanta by the U.S. Attorney. The feds have indicted a well-known State legislator, Representative Tyrone Brooks. According to the indictment, Representative Brooks committed mail fraud, wire fraud, and tax crimes. The grand jury returned a 30-count indictment which charges that, from the mid-1990s through 2012, Brooks solicited contributions from individuals and corporate donors to combat illiteracy and fund other charitable causes, but then used the money to pay personal expenses for himself and his family.

It seems there are three basic sets of crimes alleged in the indictment. First, there are two separate supposed frauds, followed by allegations that Representative Brooks violated the tax laws.

The first of the two fraud schemes supposedly involves a tax-exempt charity, Universal Humanities, Inc., that Brooks established in the early 1990s. The grand jury alleges that Brooks solicited contributions from corporate and individual donors purportedly to combat illiteracy in disadvantaged communities in Georgia and across the southeastern United States, eventually raising more than $780,000. The feds claim that Representative Brooks made specific false representations about the work that Universal Humanities was doing and how the donated funds would be used. Prosecutors also contend that in reality, Brooks did not use the donations to promote and address literacy in Georgia or elsewhere. Instead, the indictment alleges that Brooks used the money to pay personal expenses for himself and members of his family.

The second fraud scheme alleged involved the organization Georgia Association of Black Elected officials (GABEO). The indictment alleges that Brooks diverted charitable donations he solicited on behalf of GABEO and used much of the money to pay personal expenses for himself and his family.

The indictment alleges that Brooks solicited contributions to GABEO from corporations, organizations and individuals. The feds contend that Brooks secretly opened a second GABEO bank account, and set himself up as the sole signatory on this account, and had the account statements sent to his address rather than the address of the GABEO Treasurer. Brooks then deposited the donations he solicited on behalf of GABEO into this undisclosed account, and used much of these funds to pay personal expenses for himself and his relatives.

Finally, the indictment charges that Brooks underreported his income to the IRS for the years 2007 through 2011. Prosecutors contend that Representative Brooks misappropriated of hundreds of thousands of dollars through the two fraud schemes concerning Universal Humanities and GABEO, yet his tax returns for the years between 2008 through 2011 falsely reported income of only approximately $35,000 annually.

This indictment is like so many we have seen when we have represented public officials who face federal criminal charges. While often the defense team can show there was no fraud, or at least some confusion as to the fraud charges, it is exceedingly difficult to defend the tax charges when they come up with specific expenditures that clearly show the Defendant had income, yet that same income never shows up on the Defendant's tax return. We have represented a number of public officials facing similar charges, and look forward to seeing how the defense responds to these allegations.

Federal Criminal Cases and Discretion: the Recent Furor Over IRS Targeting Politically Conservative "Non-Profits"

Thu, 16 May 2013 10:36:11 -0500

Federal criminal cases here in Atlanta, throughout Georgia, in Alabama or Florida, and anywhere around the country are all brought after a federal prosecutor makes an independent decision as to whether the matter truly should be brought in federal court. Making this decision involves the time-honored concept of discretion. The recent publicity about the fact that the IRS seemed to have harsher standards for some politically conservative "non-profit" organizations has brought the white-hot light of scrutiny on the whole idea that federal officials use their discretion to go after some groups, while leaving others alone.

First, let's look at the recent furor over the IRS practices. There has been a report by the Treasury Inspector General for Tax Administration Office of Audit, and this document shows how "Early in Calendar Year 2010, the IRS began using inappropriate criteria to identify organizations applying for tax-exempt status to review for indications of significant political campaign intervention." This Report was only issued a couple of days ago, but it caused a firestorm. The other day President Obama stated that the Reports findings are "intolerable and inexcusable," and last night he fired the Acting IRS Commissioner. The Report made several recommendations, including "develop training or workshops to be held before each election cycle including, but not limited to, the proper ways to identify applications that require review of political campaign intervention activities."

For starters, it is not really all that controversial to stand up and say that politics do not belong in the agencies of our government. Whether it is the Department of Justice making decisions on what crime to prosecute, or the Securities and Exchange Commission excersizing discretion in making cases against some but not all securities fraudsters, when politics clearly is driving these discretionary decisions, someone should immediately stop this from happening. We all know about internal compliance programs in the corporate world, so maybe we need to beef up compliance programs and monitoring within the government world.

What truly startles me is that this process of targeting certain groups has been going on for years, but it only becomes a big issue when politically conservative organizations and their outsized ability to scare elected officials are targeted. No one uttered a peep back in the 1980's when prosecutorial discretion in bringing federal drug cases decimated an entire generation of young African American men, with wholesale use of the draconian crack cocaine drug laws and their utterly unfair mandatory minimum penalties that were 100 times more stringent than penalties for powder cocaine that was preferred by most White Americans who used the drug. I never heard the political class up in arms when federal prosecutors used harsh penalties from the Armed Career Criminal Act of 1986 to take over street crime cases and hand out life or near-life sentences when some poor mope merely had a gun and was doing yet one more stupid thing. Nobody said anything when federal prosecutors over the past 15 years have engaged in wholesale prosecutions of aliens, imposing harsh sentences on people who may have committed crimes but who have no political power in that they are from another country.

I always tell young lawyers that federal criminal cases are ALWAYS political. Prosecutorial discretion is always exercised with an eye towards the ballot box. While I am glad that the nattering nabobs are at least discussing the concept that prosecutorial discretion should be even-handed, I just wish they would be as loud when it involves folks with less political clout.

Prosecutors Must Play Fair: Are We Any Better Off on the 50th Anniversary of the Brady Decision?

Tue, 14 May 2013 13:40:41 -0500

In any criminal case, whether in Federal Court or one of the State Court systems, prosecutors are supposed to "play fair". The Fifth Amendment to our dear Old Constitution enshrines this fairness obligation in what we lawyers call the "Due Process Clause." Yesterday was the 50th anniversary of the day in 1963 when the United State Supreme Court issued its landmark ruling of Brady v. Maryland. That was the case in which, for the first time, the Supreme Court said that the Due Process Clause mandates that a prosecutor play fair by telling the defense about any exculpatory evidence, or evidence that tends to show that the defendant was not guilty. However, as basic as this obligation seems to be, I often wonder if our clients are that much better off than 50 years ago.

Like defendants in many famous Supreme Court cases, John Brady was no saint. On June 27, 1958, he and Donald Boblit robbed and killed a man named William Brooks. Boblit quickly confessed that he had strangled Brooks to death, and that he acted alone. However, the prosecutors handling the case against John Brady never informed the defense attorneys about this confession and never turned over the transcript of Boblit's remarks.

Both Boblit and Brady were convicted and sentenced to death. Only after the trial did Brady's lawyers discover that prosecutors had a confession from Boblit that helped exonerate Brady. The attorneys found out by reading a transcript of Boblit's trial. So, Brady's attorneys sensibly asked for a new trial. The trial judge refused. Next, the Maryland Court of Appeals concluded that the suppression of the confession violated Brady's Due Process rights, but said he was only entitled to a new sentencing trial. Because his lawyers believed the whole trial had been tainted, they asked the United States Supreme Court to look into the matter.

The justices used Brady's case to memorialize a constitutional rule that imposed on prosecutors the affirmative duty to share with criminal defendants evidence that by its very definition would undermine the prosecution's case. The motives behind the suppression of the evidence didn't matter. However, in later years the Supreme Court greatly reduced the impact of this landmark ruling, by holding that an unfair prosecutor who hides exculpatory evidence will not cause a new trial unless that hidden evidence was "material". Evidence is material, only when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." This was a big victory for prosecutors and an even bigger defeat for aggrieved defendants.

As a young lawyer, I was kind of shocked about how the Brady rule is played out in a real case. I would always ask the Judge to make the prosecutor turn over the "Brady materials." The prosecutor would routinely roll his or her eyes, and intone that the government was well aware of its obligations, and that was it. The judge never made any inquiries, and I was left with the distinct impression that the Brady rule is merely an example of the fox guarding the henhouse. Why would a prosecutor ever turn over evidence that helps the Defendant if the prosecutor truly believes the Defendant is guilty? Furthermore, even if a prosecutor is not trying to hide anything, it seems ridiculous to ask that same prosecutor to figure out if a piece of evidence is potentially exculpatory, in that the prosecutor does not really know where the defense is going. Federal court is the worst of all, in that the discovery rules do not make a prosecutor turn over very much at all, and so no one really knows if there is some truly good defense evidence lurking in the files of one of the investigators.

Not only does the Brady rule seem to fall flat in real cases, it seems that when a prosecutor is caught withholding evidence, very little is done. Prosecutors who violate the obligation to disclose favorable evidence are rarely sanctioned by courts, and almost never by disciplinary bodies. I remember one case where I caught the prosecutor red-handed. Fortunately, my client was acquitted. When I complained about the prosecutor's violation, his boss shrugged, saying "Why does it matter, you walked your man didn't you?" That attitude seems to still prevail 50 years after the Brady decision was issued. Things might be better if all prosecutors would simply use an "open file" discovery system, but for some reason, they often are reluctant to do so. That is truly bizarre, since when there is a fight over money, each side has to make full disclosure to the other, but when freedom (or even the death sentence) is at issue, one side gets to hide the ball and only has to turn over exculpatory evidence when it is "material." Have we really improved since 1963?

Supreme Court Approves Amendments to Federal Rules: Practitioners Need to Keep Up with the Changes

Thu, 09 May 2013 10:05:59 -0500

We handle lots of federal criminal cases. The various rules governing these cases are the same here in Georgia, they are the same when we take cases in Florida or Alabama, and we work under the same rules whenever we take cases in other parts of the country. Every so often, there are proposals to change the rules, and these amendments need to be first approved by the United States Supreme Court before they can be sent to Congress for ratification. Several weeks ago, the Supreme Court approved a series of rule changes that federal court practitioners need to keep up with in order to do the best job possible for their clients. Two of the bigger changes are discussed below.

One of the biggest rule changes concerns criminal cases involving immigration crimes or clients who are not U.S. Citizens Recall that under the landmark case of Padilla v. Kentucky, it is ineffective assistance of counsel if the lawyer does not tell his alien client that a guilty plea can have ramifications on the defendant's immigration status. Rule 11 of the Federal Rules of Criminal Procedure discusses what happens when anybody pleads guilty to a crime in federal court. The Supreme Court approved a change which requires the judge, before accepting a guilty plea, to ensure that the defendant understands “that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” The rule change seems to provide protection to both defendants (who will be told about what might happen) and prosecutors (who can argue on appeal or habeas that any failure by defense counsel to provide the advice required by Padilla was harmless because the court gave the defendant the required notice).

Another significant amendment concerns changes to the Federal Rules of Evidence. These are the rules that control what can, and cannot, be introduced by one side or the other during a federal trial. Many readers will be aware of a series of cases over the past decade in which Justice Scalia has breathed new life into the Sixth Amendment's Confrontation Clause. These cases held that criminal defendants have the right to see, confront and cross-examine any witness whose statement is used for an evidentiary purpose by the prosecution. The Supreme Court has approved changes to Rule 803 of the Rules of Evidence to allow, in a criminal case, admission of a government official’s certification of the absence of a public record if the prosecution gives the defendant notice of its intent to introduce the document fourteen days before trial and the defendant does not object within seven days before the trial. This revision seems to be a reaction to the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, which said that certain kinds of documentary evidence (such as a crime lab report indicating that a substance is cocaine) violates a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment if admitted into evidence without the document’s author being put on the stand to testify as to its contents. The new version of Rule 803 contains a procedure under which a defendant will waive that constitutional right – at least with respect to a certification testifying to the absence of a public record – if he does not object to its admission after receiving notice prior to trial.

Again, practitioners need to keep up with these changes to protect their client's rights. We will continue to look for changes and updates so we can do our best for our clients.

Florida Development Relating to Modern Technology and the Fourth Amendment: Police Cannot Browse Through Your Smartphone in Sunshine State Without a Search Warrant

Tue, 07 May 2013 09:44:18 -0500

We occasionally handle cases in Florida, and since I am also licensed in the Sunshine State we pay attention to legal issues happening there. As readers of this Blog realize, I have a fascination with how the law is developing in the intersection between modern technology and the Eighteenth Century rules enshrined in our Fourth Amendment, and have written on such issues, such as in this post. Two weeks ago me and my law partner Carl had a big oral argument in front of a federal judge concerning such issues, so this area of the law is on my mind currently.

The Florida Supreme Court issued what could be a very important decision last week, Smallwood v. Florida. In that case, a police officer arrested Mr. Smallwood for an armed robbery that happened the previous day. The robber had taken currency from a local store. After the arrest, the police officer opened up Smallwood's smartphone, looking through his pictures. Like too many foolish criminals, Mr. Smallwood had apparently taken pictures so he could brag about his crime, photos that showed the gun, the money, and his girlfriend all in proximity to the loot. The defense attorney argued that Mr. Smallwood, like all of us, had an expectation of privacy in the contents of his cell phone, and that a search without a warrant was therefore unreasonable and illegal. The trial court and intermediate appellate judges sided with the prosecution, ruling that the older Supreme Court cases on searches incident to an arrest justified the officer's actions. One of these older cases was issued in 1973, United States v. Robinson. In that case, the U.S. Supreme Court said it was OK for the arresting officer to look through a package of cigarettes in the Defendant's pocket after the arrest, a peek which led to the discovery of heroin.

Last week the Florida Supreme Court reversed the lower courts, holding that the police cannot plow through an arrested person's cell phone without a warrant. "Thus, we agree and conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone."

Modern technology is wonderful. I can have a videophone call with my son when we are on opposite sides of the world. However, this same wonderful technology allows the government to learn the most intimate details of our lives once our cell phones, computers and online accounts are accessed. I salute the Florida Supreme Court for protecting individual rights, while still acknowledging that the police can get such private information, they simply need to do what the authors of our Constitution told them to do: GET A WARRANT!

Supreme Court Accepts Case to Decide What it Means When "Death Results" From Drug Dealing

Thu, 02 May 2013 09:19:09 -0500

Sitting here in Atlanta, I really like when I find out about bright, energetic lawyers handling federal criminal cases all around the country. One such case is Burrage v. United States, where this past Tuesday the United States Supreme Court agreed to review important questions as to what it means when "death results" from drug dealing. To many lawyers and others in this field, it might seem that a case like this only really matters to folks defending drug cases. However, this is an important appeal on issues related to causation, the appropriateness of jury instructions, and construing federal statutes.

Mr. Burrage was like too many folks, caught up in the drug business, selling relatively small amounts of controlled substances. His life intersected with Joshua Banka, another lost soul who was a long-standing poly-substance abuser. Burrage sold some heroin to Banka, who died after using some of the drug. Banka had lots of other drugs in his system as well, and his girlfriend acknowledged he'd used some of these other drugs in the day before he died. The experts who testified at trial gave complex answers about the cause of Banka's death, but they could not say that Banka would not have died if he had not used heroin (this method of saying the word "not" three times in the same sentence appears in the briefs for each side of the case).

A federal statute requires a 20-year mandatory minimum sentence for a person dealing drugs "if death results." At trial, the Defendant wanted the judge to tell the jury that selling heroin "played a substantial part" in bringing about the death, and that the death was a "direct result of or a reasonably probable consequence of" using the heroin. Mr. Burrage's attorney also wanted a jury instruction on the well-known first-year law school concept of "proximate cause" . The trial judge and the court of appeals rejected the Defendant's contentions, and said it was OK to tell the jury that it was enough if they decided that the heroin was a "contributing cause" of Mr. Banka’s death. The instruction told the jury that "a contributing cause is a factor that, although not the primary cause, played a part in the death[.]” The jury found Burrage guilty, the Court of Appeals rejected his arguments, and his very competent Iowa lawyer asked the United States Supreme Court to look at the case.

The government protested that the Supreme Court should not review the case because the "if death results" issue rarely comes up in federal criminal prosecutions, and that any dispute among the lower federal courts on these questions is really more of a tempest in a teapot. However, it seems that the Supreme Court believes this really is an important case, for they accepted Mr. Burrage's case for review and argument next Fall. The case will have important lessons for many other federal criminal prosecutions, issues as diverse as how to read a statute written in the passive voice ("if death results" is different than the active voice "caused death"), whether it is OK to construe a criminal statute with mandatory penalties in a manner akin to strict liability, and varying levels of "causation", a concept that applies in criminal and civil cases alike.

We look forward to the Briefs and arguments, and how this decision might affect the matters we handle for our clients. Stay tuned.

Federal Court in Atlanta Overturns Fraud Sentence: the Importance of Good Lawyering at the Sentencing Hearing

Fri, 26 Apr 2013 16:48:25 -0500

Like our federal cases here in Atlanta and throughout the country, it is important to keep in mind how a federal sentencing hearing takes place. The various phases of the federal sentencing process require the Defendant's attorney to not only know the law, but also to know the procedure, so that "objections" are properly preserved. A decision issued today by the United States Court of Appeals for the Eleventh Circuit makes this point. In that case, the attorney properly objected, thus preserving the issue for appeal. In the Court of Appeals, the Defendant raised the same argument, and the appellate tribunal agreed. The result is a lower sentence for the Defendant. The case is United States v. Washington.

Mr. Washington was charged in a large fraud scheme involving banks and credit card customers. He pled guilty. As a result, the United States Probation Officer prepared the very important document called the "Presentence Investigation Report", which is often called the "PSR". The PSR has two major parts, one of which is sort of a miniature biography of the Defendant. The second part of the PSR is where the probation officer makes some recommendations as to how the complex Federal Sentencing Guidelines should apply.

In a federal fraud case, there is a specific enhancement under the Sentencing Guidelines that is based on the number of victims. For example, if there are more than 250 victims, then a six-level enhancement is added to the Guideline score.

Mr. Washington was one of many people charged in this particular fraud scheme. The same judge had found more than 250 victims while imposing sentence on some of the other Defendants. However, Mr. Washington's lawyer properly objected to the enhancement for more than 250 victims, because the prosecutor never produced any evidence. In response to Mr. Washington’s objections, the probation officer stated that he had been provided with “spreadsheets detailing the victims,” and that the number exceeded 250. The prosecutor said that “thousands of individuals” had their credit card numbers stolen. However, the prosecutor did not submit any evidence to support this assertion. During the sentencing hearing, the Defendant's lawyer reiterated his objection, but was interrupted by the Judge. “That’s the figure that’s been applied to other defendants." Therefore, the Judge used the enhancement for more than 250 victims.

The Court of Appeals reversed the sentence. First, they repeated what has been said in numerous previous cases: the prosecution bears the burden of producing at least some evidence to support any enhancement of the Guidelines. Mere argument is not enough. Also, it's not good enough to simply refer to evidence from a co-Defendant's case, unless the record shows that the Defendant and his attorney at least had a chance to review such evidence and contest it.

Perhaps the most important part of the case is what happens next. The Court of Appeals noted that sometimes it sends the case back so the prosecution can basically "fix" the problem. They refused to take that approach here. The government had its chance, and blew it. No "do-over", said the appellate court. As a result, they ordered that the lower court resentence Mr. Washington without using the 6-level enhancement, which will almost certainly reduce his Guideline range and probably the overall sentence.

Again, it is important to hire a lawyer who knows the law and procedure. Mr. Washington's attorney knew when to object, and likely saved his client additional time in prison.

Supreme Court Limits Deportation When Client Merely Possessed Small Amount of Marijuana

Tue, 23 Apr 2013 16:28:24 -0500

Here in Georgia a Defendant was stopped by the police, who thereafter found 1.3 grams of marijuana. Because of our State's relatively harsh drug laws, he was forced to plead guilty to drug distribution, although his lawyers were able to get the conviction expunged if the Defendant successfully completed a period of probation. However, the Defendant was not a U.S. Citizen. Two years later, immigration authorities threw him into custody to begin deportation proceedings. After a fight that took several more years, the United States Supreme Court yesterday held that this man was not automatically subject to deportation. The Supreme Court said that not all marijuana distribution offenses rise to the level of being an "aggravated felony", which in the immigration context means that the person is just about automatically deportable. The case is Moncrieffe v. Holder.

Mr. Moncrieffe is originally from Jamaica, but has legally lived here in the U.S. for many years. His lawyers faced the same dilemma we face when representing aliens accused of crimes, the question of whether a guilty plea might make the person subject to deportation (or "removal" as the term is now called). Like many people, Mr. Moncrieffe seemed ready to accept a deal that called for no jail time and expungement. Little did he know that the feds wanted to kick him out of the country for this relatively minor offense.

Under the immigration laws, a drug distribution crime falls into the category of "aggravated felonies". These more serious crimes make it almost impossible for an alien to avoid removal once the immigration authorities start their machinery in that direction. Pursuant to the immigration laws, a noncitizen convicted of an “aggravated felony” is not only deportable, but also is not eligible for discretionary relief. Under the immigration laws, an “aggravated felony” includes anything that is the “illicit trafficking in a controlled substance.” To understand yesterday's ruling, it is also important to realize that pursuant to the federal drug laws, marijuana distribution is a felony, but if it only involves "small amounts" that are distributed for no remuneration, then the offense is merely a misdemeanor.

The emerging star of this Supreme Court Term, Justice Sonia Sotomayor, wrote for the majority in the 7-2 opinion. Justice Sotomayor noted that under Georgia law, marijuana distribution encompasses a range of conduct from social sharing to distribution of larger amounts. She also noted an issue that has regularly bedeviled the federal courts: how to categorize a person's prior offenses. Over the recent decade, the Court seems to be inclined to use something called the "categorical" approach. Under this analysis, courts examine what the state conviction necessarily involved and not the facts underlying the case. In using this approach, the federal court assessing the impact of a prior conviction presumes that the conviction rested upon nothing more than the least of the acts criminalized. After using this "least serious version of the crime" approach, a judge is then supposed to determine whether even those acts are encompassed by the generic federal offense that is similar to the state crime at issue.

Justice Sotomayor then turned to how drug offenses are analyzed to see if they fall into the "aggravated felony" pigeonhole. She said that a state drug offense must meet two conditions: it must proscribe conduct that is an offense under the federal drug laws, and the federal drug laws must “necessarily” prescribe felony punishment for that conduct. Although possession of marijuana with intent to distribute is clearly a federal crime, as noted above it turns into a misdemeanor when it involves only a small amount distributed for no remuneration. The Georgia drug distribution statute includes people (like Mr. Moncrieffe here) who had small amounts of pot with no desire to be paid for sharing their stash. Using the categorical approach, federal courts must assume the least serious version of the crime, and therefore violation of this statute cannot be the "aggravated felony" that causes almost automatic deportation.

Again, this kind of case reveals the difficulty in defending clients who are not citizens. It also shows the problem in dealing with seemingly minor drug cases. People need to be careful when hiring lawyers for such matters, to make sure their attorney is up on the law and possible consequences of a conviction.

Supreme Court Says Police Need Search Warrant to Perform Blood Test on Suspected Drunk Driver

Thu, 18 Apr 2013 16:58:44 -0500

Hallelujiah! The Supreme Court yesterday continued its recent string of protecting all of our rights by reinvigorating the reach of the Fourth Amendment's requirement that police need a search warrant to get incriminating evidence from a suspect. Yesterday's case involved the forcible removal of blood from a drunk driving suspect. By an 8-1 margin the Court held that getting the blood without a warrant violated the Fourth Amendment. The case is Missouri v. McNeely.

In the early-morning hours of Oct. 3, 2010, Missouri State Highway Patrol Cpl. Mark Winder pulled over Tyler G. McNeely. McNeely, whose speech was slurred and who had alcohol on his breath, failed a field sobriety test and twice refused to take a breath test.
Winder arrested McNeely. While en route to the jail, the officer stopped by a hospital. McNeely refused to submit to a blood test. Officer Winder then ordered a technician to draw blood anyway. The officer later said he did not try and get a warrant because he thought Missouri law did not require it.

The Missouri Supreme Court unanimously disagreed and said the blood test could not be used. Courts nationwide were divided on the issue, which led the U.S. Supreme Court to take the case, and ultimately issue yesterday's ruling.

The prosecution argued that the natural dissipation of alcohol in a person's bloodstream was the reason the Supreme Court should create yet one more exception to the Fourth Amendment's rather clear mandate that there shall be no search or seizure unless based on a probable cause determination resulting in a warrant. Writing for herself and four other members of the majority, Justice Sotomayor rejected this argument. She said such emergencies must be determined by the circumstances in a case-by-case examination and rejected the notion that officers face a “now or never” situation in obtaining blood alcohol tests. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so,” Sotomayor wrote.

Chief Justice John G. Roberts Jr. agreed with the outcome of the case,but criticized the vagueness of the majority’s test. “If there is time to secure a warrant before blood can be drawn, the police must seek one,” Roberts wrote. “If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue.”

I have written posts here and here about the seeming resurgence in the Supreme Court's inclination to protect individual liberties against over-intrusive police practices. We hope this trend continues, for it is perfectly reasonable to have effective law enforcement alongside a robust respect for personal liberty and freedom.

Public Corruption Cases in Federal Court: New York Arrests Show the Feds Keep Using "Honest Services" Fraud to Go After Politicians

Fri, 05 Apr 2013 09:52:53 -0500

Many public corruption investigations turn into federal criminal cases, here in Atlanta and around the country. Our firm is involved in several of these matters right now. Most of these "white collar" cases result in our clients being charged with some variety of fraud. The feds almost always resort either to the mail or wire fraud statutes. Each of these laws requires a "scheme or artifice to defraud" another out of money or property. A 1988 law says that these statutes include schemes to defraud another out of the "intangible right of honest services." A 2010 case from the United States Supreme Court restricted the "honest services" version to cases involving bribes and kickbacks, and held that these statutes cannot be used to prosecute a person merely because the Defendant violated some fiduciary duty to a governmental agency or other entity or otherwise engaged in a conflict of interest. I wrote a recent post about how the local federal court of appeals issued a recent decision upholding the conviction of a man in Jacksonville, Florida. That case was an example of how the feds try to get around the recent restrictions on the honest services theory.

The feds recently made a splash in New York, arresting a politician who allegedly was trying to buy his way into the Republican race for Mayor. This is but the latest in a string of high-profile cases in that city involving allegations of bribery, payoffs and the like. A recent article I came across notes that despite the restrictions on the honest services theory, federal prosecutors continue to use this species of fraud when going after politicians. The article quoted a former high ranking federal prosecutor as saying that the restrictions on honest services actually helped the government when making such cases.“I thought the court did us — prosecutors — a favor, because I never thought juries liked conflict-of-interest cases. ... Juries want to see bribes or kickbacks" because conflicts of interest “seem more like ethical violations than criminal.”

I thought this article was worth noting for a couple of reasons. First, it is further evidence that federal public corruption cases continue, even after the restrictions on the honest services theory. More importantly, the quote from the article explains something I have mentioned previously, namely, that decisions which seem on the surface to hurt law enforcement actually help prosecutors and policemen in the long run. The famous Miranda warnings are but one example, for once the warnings are given, there is no doubt that the Defendant's statements will be admissible. Many of these rulings at first were criticized by law enforcement, but over the years, many policemen and women have told me they end up doing a better job when complying with these restrictions. And, we all have the added benefit of protecting individual liberties!