When I took on the case, it seemed clear that the main issue for appeal was the use of what is called the “one purpose rule” in AKA cases.  We faced an almost unbroken line of 35 years worth of other federal courts around the country that had all affirmed the use of this “one purpose” test.  Basically, the rule says that a person, like my doctor, is guilty if he or she orders a medical procedure, equipment or prescription if even”one purpose” of the order is to get paid by someone else.  I noted that all the other courts had affirmed the one purpose rule, but that the 11th Circuit had not yet issued a binding and published opinion on the subject.

Like I do in all cases, I sat down one day to read the relevant materials, including the AKA statute in full.  I rubbed my eyes, walked around in circles a few times, then re-read the law.  Absolutely nothing in the language authorized by Congress said anything at all about “one purpose” or “any purpose” in an AKA case.  I then re-read the 35 years’ worth of earlier decisions, and realized they all relied on a single 1985 ruling that simply misapplied the words written by Congress. I felt a bit like the little boy who says “the emperor has no clothes” when I wrote my briefs and pointed out that everyone had been wrong up to now.

We had an oral argument recently in the 11th Circuit.  The Court then issued a speedy ruling, 7 days later.  They agreed with us that the 35-year unbroken line of “one purpose” rulings is not supported by the statute.  Looks like we won, right?  Not so fast! After saying that the government was wrong when using its 35-year strategy of getting convictions under the “one purpose” rule, the Panel then said that the one-purpose rule actually made it harder for the prosecution to win a conviction.  As a result, the Panel claimed that my client was not “harmed”, so his conviction should stand.  The opinion is here.

I am grateful that the Court saw the main legal issue our way.  However, I am highly disappointed about the application of the “harmful error” standard, and plan to ask the entire 11th Circuit to rehear the case.  I simply fail to understand how one side can ask for a rule for 35 years yet when the error of that rule is pointed out the party that wanted the erroneous rule was supposedly harmed.  The panel opinion basically says the government was fighting against itself for the past 35 years.  I don’t know about others, but I rarely see the U.S. government taking positions in court just so they can make their job more difficult.  Stay tuned, we are not finished just yet!

First, many people are not aware that it is only a rare federal appeal that is selected for oral argument.  The federal appellate courts are overwhelmed, and generally only select cases to be orally argued if the issues are unique, there was a lengthy trial, or the matter has some other unusual feature.  Once a case is selected for oral argument, it is placed on a calendar with other cases that will also benefit from oral argument.  Each day there are around 4 or 5 cases set for argument.  Then, a “Panel” of 3 judges is assigned who will hear the arguments and render decisions.  The clerk sets the dates and order of arguments and away we go!

Second, attorneys need to fully recognize that their time is very limited in an oral argument.  As a general rule, each side has only 15 minutes for their argument.  I am almost always the Appellant (because, after all, that is what happens in criminal cases, we lose and then appeal by claiming something went wrong in the lower court).  As the Appellant, we get to open and then have a brief rebuttal.  That means I generally have 10 or 11 minutes for my opening argument, and 4 or 5 for rebuttal.  Experienced oral advocates learn to think, and speak, quickly.

Third, the 3 Judges have already read the parties’ briefs, and usually have the benefit of a “bench brief” written by their law clerks, who are recent high-achieving law school graduates who have normally studied the record of the case more thoroughly than the Judge before the argument.  As a result, the Judges are generally primed and ready before the attorney rises (or in the case of being on Zoom, is on camera) to begin his or her argument.

Fourth, plans and outlines are often useless during an oral argument.  The Judges generally know the areas in which they are interested, and their questions will let the lawyer know what he or she should be focusing upon.  I have done oral arguments in which I barely got any words out of my mouth before one or more of the Judges began peppering me with questions.  Lawyers with less experience sometimes get flustered by the barrage of questions from the court, but in cases where I am somehow able to maintain my composure, I  try to remember that the questions are a benefit.  The Judges are telling me what they consider to be weak points they see in my case, and the questions allow me to rejoinder about how that particular issue is actually not so bad for the defense.

Fifth, some Judges occasionally get a little too aggressive, and I have seen attorneys out in the hallway breaking into tears after an especially rough grilling by the court of appeals.  I know it is not personal, but I try to remember lessons I learned as a kid when someone tries to bully a weaker person.  Standing up often earns more respect from a bully than any amount of fighting, and that is how I try to respond when the Court clearly does not accept my position.  I simply stand on my points and then just sit down without giving in.

I am looking forward to tomorrow, for oral argument in a federal appellate court is often the highlight of a legal career.  I am fortunate to have had many of these, and hope that some of my experience will help during tomorrow’s case.

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.

At Ms. Leon’s trial, all of the lawyers kept referring to the crimes as “structuring”, even though the specific sub-section in the indictment alleged the other, closely-related, crime.  After Ms. Leon was convicted, her lawyers claimed on appeal that the references to “structuring”, along with the way the the trial judge defined the crime ran afoul of the rule that prohibits what we call a “constructive amendment” of the indictment.  And, her lawyers were probably right, for the arguments and the jury instructions seemed far more like a “structuring” case than the specific crime alleged in the indictment.

The problem, of course, is that when a lawyer fails to “object” or “preserve” an issue, this changes what is called the “standard of review” when the case goes up to a higher court.  Failure to object results in the “plain error”review standard, which is much more difficult to overcome.  The Court of Appeals noted that while the prosecutors and the jury instructions presented what seemed like a “structuring” case against Ms. Leon, the failure to object would result in a reversal only if the error was “plain” and affected the Defendant’s “substantial rights.”  Here, the appellate judges determined that the “error” was kind of close and technical, and not “plain”.  As a result, Ms. Leon lost her case on appeal.

These are really difficult cases, and I am in no way faulting Ms. Leon’s trial team.   All of us who do this work occasionally get tunnel vision and only look at our cases one way.  Later, sometimes there are new attorneys who bring a fresh perspective.  While this is helpful, this fresh view often runs headlong into the fact that, without an objection in the trial court, the new analysis of the case often does not help.

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.

Here’s another thing to remember about doing an appeal.  Just about every court has deadlines for doing the initial paperwork on an appeal.  This is usually called the “Notice of Appeal”, and for the most part must be filed within 30 days in State court, and generally within 14 days in the federal criminal justice system.

Many times, we get contacted by a person or his family after a trial where the person was found guilty.  The Defendant wants us to get him or her out of jail with an appeal.  We then turn to what happened, sometimes reviewing materials about the case, often reading parts of the trial or pretrial transcripts.  When doing this we are looking to see if the trial judge or the lawyers made such large mistakes that there is a good chance we might win on appeal.  But far too often, we have to tell people that what appears to be a “good” issue is not so good because the trial lawyer failed to object, or preserve the issue.  That is an important rule: most appellate courts will rarely consider or agree with an issue if the question was not first brought up in front of the trial judge.  Many great issues are waived when trial lawyers forget to properly object, and at the correct time.

When we do agree to take on an appeal, we then need to move all the paperwork in the case over from the trial court to the appellate court. The rules then generally give us around 4-6 weeks in which to file our Opening Brief.  Many clients are naturally unhappy with everything that happened during their trial and want us to bring up each and every instance when rulings went against the defense.  After 34 years of doing these cases, I have come to the conclusion that such an approach is wrong.  When you lump in 5-10 unmeritorious issues along with your three best issues, the “good” issues get kind of lost in the Brief.  Judges are busy, so my feeling is to give them a real solid explanation of the 3 or 4 issues that truly have potential merit.

Finally, many people who contact us about a possible appeal from a criminal conviction want to know how long the process might take.  The Georgia appellate courts have certain “Terms of Court” by the end of which they are supposed to render a decision.  However, some exceptions to these Terms let the judges have almost up to a year in order to issue a ruling.  In the federal appellate courts, there are no time limits.  While many federal criminal appeals are handled there in 6-9 months, I have one case in a federal appellate court that has been pending for three years.

If you or a loved one got convicted and are considering an appeal, remember to talk with lawyers who know about and have experience with doing this kind of specialized legal work.

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.

Overstreet himself then filed a series of rambling attacks over the next several years, first in the state courts, and then in a federal “habeas corpus” action under 28 U.S.C. §2254.  Again, no judge noticed that in the midst of his pleadings Mr. Overstreet himself did raise the asportation issue, and argued that his appeals lawyer was ineffective in not bringing this issue up. Federal habeas corpus cases are very limited, and when a District Judge denies such a petition, the Defendant does not have the right to appeal to a higher court unless either the District Judge or the Court of Appeals itself grants what is called a “certificate of appealability.”  That is what happened, for someone in the federal appellate court noticed this issue, they granted a certificate of appealability, and two days ago the Eleventh Circuit issued its decision, holding that the failure by the appeals lawyer to bring up the asportation issue was ineffective, and Mr. Overstreet was “prejudiced” by the error.  They sent the case back to the lower courts with directions that the kidnapping convictions be reversed.

Overstreet contains a number of lessons.  First off, any lawyer handling a criminal appeal needs to keep up on legal developments, as we do in trying to regularly read the opinions from the Court of Appeals, the Supreme Court and other relevant sources.  Second, if an issue is not raised, it rarely can be brought back up years later.  Overstreet is the rare case where courts decided that an appeal lawyer’s performance was so sub-standard that the judges simply could not stand for the result, and they reversed his kidnapping convictions.

A  man named Streinz was one of the Defendants in a large mortgage fraud prosecution in the Middle District of Florida.  Streinz and his lawyer informed the trial judge that Streinz would be testifying on his own behalf.  Just before he testified, the attorney turned over some late materials that Streinz said he had just found in his home office, materials that impacted his testimony.  The trial judge apparently smelled a bit of a rat, and directed that the prosecutor and federal agents go to the home office with Streinz and his attorney in order to sort out the documents.  Streinz became outraged during this process, claiming that the agents were seizing excessive materials.

The Court of Appeals had little difficulty in ruling that this procedure grossly violated Strein’s Sixth Amendment right to counsel. While there is good reason to prevent witnesses from consulting with attorneys while the witness is up for cross-examination, a Defendant in a criminal case is in a far different situation. Referring to two rulings from the United States Supreme Court, yesterday’s ruling noted that while a non- party witness will likely have little to discuss with trial counsel other than his upcoming testimony, an accused and his attorney will often have many other matters to discuss during an overnight recess. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed.  The defense lawyer might need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events.

This was a highly unusual case.  We are glad to see that the Court of Appeals reversed the conviction, in order to protect the right to counsel for everybody, both the guilty and the innocent.

The case involves a man named Patrick Henry Joseph (you’d think the courts would be reluctant to be unfair with someone with such a grand history behind his first two names). Mr. Joseph was convicted of several drug offenses. Using the well-known Federal Sentencing Guidelines, the trial judge imposed a lengthy sentence after deciding that Mr. Joseph was a “career offender.” Joseph’s very able Public Defender then appealed his case to the United States Court of Appeals for the Eleventh Circuit. So far, so good.

At the point when his Public Defender filed what we lawyers call the “Opening Brief”, she was faced with certain precedent, or earlier cases, from the Eleventh Circuit, that clearly prohibited a claim that Mr. Joseph was not a career offender. In other words, the Public Defender did not argue that Mr. Joseph should have not been sentenced as a career offender.

Soon after the Public Defender filed the Opening Brief, the United States Supreme Court issued a ruling in the case of Descamps v. United States. The Descamps decision, made clear that the earlier cases in the Eleventh Circuit were “no longer good law.” Within a mere five days, the Public Defender asked for permission to file a replacement brief in order to challenge whether Mr. Joseph truly was a “career offender.” This request to file a replacement brief was nine days before the Government’s brief came due. To its credit, the Government did not oppose the motion, and only asked for additional time to file its own brief.

The Eleventh Circuit nonetheless refused to accept Joseph’s request to file a replacement brief. That Court has a judge-made rule providing that issues not raised in an opening appellate brief are forfeited, and so may not be raised in subsequent filings. Most of the time, such a rule makes sense. However, among all 12 federal appellate courts, only the Eleventh Circuit applies the rule in a mandatory fashion to completely prevent a person from litigating an issue not raised in the Opening Brief. Every other federal appellate circuit accepts supplemental or substitute briefs as a matter of course when the Supreme Court issues a decision that upsets precedent relevant to a pending case and thereby provides an appellant with a new theory or claim.

Mr. Joseph’s legal team asked the Supreme Court to take his case in order to decide whether the Eleventh Circuit’s lone wolf position could withstand scrutiny. Earlier today the Supreme Court refused to accept Mr. Joseph’s case for review. However, in a very meaningful statement, Justices Kagan, Ginsburg and Breyer wrote at length about the Eleventh Circuit’s odd position. The Justices noted that there is a good reason every other court would have allowed Mr. Joseph’s argument. “When a new claim is based on an intervening Supreme Court decision-as Joseph’s is on Descamps-the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance.”

Although the Supreme Court refused to accept the case, Justice Kagan’s statement sent a very firm warning to the Eleventh Circuit. “We do not often review the circuit courts’ procedural rules. And we usually allow the courts of appeals to clean up intra-circuit divisions on their own, in part because their doing so may eliminate any conflict with other courts of appeals. For those combined reasons, I favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a ‘reasoned exercise[ ]’ of its authority. “

Rules can make sense. Slavish adherence to rules can be downright silly. Some rules are used to avoid justice. We only hope that the Eleventh Circuit has the wisdom to recognize those times when the job of bringing justice to litigants sometimes requires an exception to the rules.

The case revolves around a federal statute that requires a 20-year mandatory minimum sentence for a person dealing drugs “if death results.” Mr. Burrage was charged with selling heroin to a man who died after a drug binge involving multiple illegal substances. The jury would have to decide if the heroin sold by the Defendant to the victim caused the man’s death. Mr. Burrage’s lawyers wanted the judge to tell the jury that they would need to find 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. 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 the victim’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, and the United States Supreme Court agreed to hear the case.

Justice Salia wrote the opinion in which all 9 Justices agreed with the Defendant in one way or another. Justice Scalia said that at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable for the 20-year penalty enhancement unless such use is a but-for cause of the death or injury. This specific law never defined the phrase “results from,” so Scalia said it should be given its “ordinary meaning.” Usually this means actual causality, or proof that the harm would not have occurred in the absence of-that is, but for-the defendant’s conduct. The Court looked at similar phrases in other laws, such as “because of,” or “based on”, noting that in these other contexts the laws have been read to impose a but-fo rcausation requirement. The Court rebuffed the Government’s argument that “results from” means that use of a drug distributed by the defendant need only contribute to an aggregate force, e.g., mixed-drug intoxication, that is itself a but-for cause of death.

Again, as I wrote earlier, this is not merely a case involving drug dealing. The issue of causation comes up again and again in law suits. We applaud the attorneys who stuck to their guns in this case, and who likely saved their client some time in prison in this otherwise very sad case.

Meister was sentenced for having child pornography. His lawyers asked that be be permitted to remain on bond during the appeals process. The Bail Reform Act denies release for Defendants who appeal certain serious crimes. Defendants who violate the child pornography laws are thus prohibited from remaining on bail during appeal.

However, smart attorneys know that there is a way around the “no bail” rule in these otherwise very serious cases. By reading the various cross-references in the different sections of the Act, the lawyer discovers that if a Defendant appealing one of these serious cases can fulfill four criteria, then he or she is eligible for release on bail. The major criteria that comes up in these situations is whether the appeal involves “exceptional reasons” to permit the Defendant to remain on bond. I have used this method several times to try and convince a judge to permit my client to stay on bail. It has not worked every time, but it often is worth the effort.

In the Meister case, the Defendant is quite ill with cancer and is undergoing chemotherapy. The District Judge read the Bail Reform Act as saying that only the Court of Appeals can decide if the matter involves “exceptional reasons” that might justify letting Mr. Meister remain on bond during the appeals process. In the opinion issued today, the Eleventh Circuit reversed that holding. The appellate court decided that the trial judge erred in believing that he could not make the “exceptional reasons” determination, and sent the matter back down for such a ruling.

Again, lawyers need to closely read the laws that affect their clients. It now appears the Mr. Meister might be allowed to remain on bond during the appeals process.

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.

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.

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.

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.

The Defendants and their company imported dairy products into the U.S. from Central America. Apparently, several of their imported products were contaminated with E. Coli and salmonella.

Some of the post-9/11 laws beefed up the statutes that criminalize the unlawful importing of goods into the United States. One of those laws is 18 U.S.C. § 545. The unlawful importation charges in the indictment here were based on violations of a Customs regulation, alleging the failure to deliver, export, and destroy with FDA supervision certain imported goods found to be adulterated. See 19 C.F.R. § 141.113(c). Failure to comply with this regulation typically gives rise to a civil remedy of liquidated damages in the amount of three times the value of the goods.

The criminal statute, 18 U.S.C. §545, says it is a crime to import items if doing so is “contrary to law”. To summarize what is a quite lengthy decision, the Court of Appeals decided that the regulation is not the kind of “law” referred to in this particular criminal statute.

To me there are two notable items from this decision. First, the Court of Appeals itself brought up the whole issue of whether the indictment even charges a crime. The judges told the lawyers for both sides to file more briefs on the questions of whether 1) the appeals court can even address the issue if no one raised it (they decided they could), and 2) whether the charges, as set out in the indictment, even alleged a crime. I’ve been doing this a very long time, but cannot ever remember a similar case.

The second thing that popped out to me when reading the opinion is that the Court of Appeals totally rejected the prosecutor’s arguments that any problems with the indictment could be fixed by “inferring” the missing pieces. My law partner, Carl, and I have been fighting this fight for over a decade now. Prosecutors get invalid indictments that do not allege everything needed to prove a crime, but judges have been increasingly letting them get away with it by referring to some faulty and flimsy earlier rulings where the missing elements of the crime are put back in by the process of making an “inference.

It is cases like this that re-energize me. I am glad to see judges who take their jobs seriously and who do not think they are supposed to merely rubber stamp every conviction that comes along. While such cases get my juices flowing, the decision also reminds me that all lawyers need to take a good long look at the charges in an indictment, and not just assume the charging document actually alleges a crime.

Mr. Evans was accused of setting a building on fire. One Michigan law makes it a crime to burn a dwelling, while a second law makes it a crime to burn “other real property.” At the close of the evidence, the Defendant’s lawyer pointed to standard jury instructions which require proof that the property was a “non-dwelling” before a person could be convicted of the crime of burning “other real property.” The trial judge, noting that the property owner said the building WAS a dwelling, granted an acquittal for the Defendant because the prosecution had failed to prove the property was NOT a dwelling. It turns out the trial judge was completely wrong, in that burning “other real property” is a lesser-included offense of the greater crime of burning a dwelling. The prosecution appealed, and Michigan’s appellate courts decided that a second trial was OK, even despite the protections from the Double Jeopardy Clause.

The U.S. Supreme Court reversed, holding that retrial following a court-decreed acquittal is barred, even if the acquittal was based upon an egregiously erroneous foundation. An “acquittal” includes any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. This is different from procedural rulings, which lead to dismissals or mistrials for reasons unrelated to factual guilt or innocence. An acquittal is a substantive ruling that concludes proceedings absolutely, and thus raise significant Double Jeopardy concerns. Here, the trial court clearly evaluated the prosecution’s evidence and determined that it was legally insufficient to sustain a conviction. While the acquittal was the product of an erroneous interpretation of governing legal principles, that error affects only the accuracy of the determination to acquit, not its essential character.

Along the way, the Supreme Court addressed the prosecution’s argument that Mr. Evans got a “windfall”, and he should not get the benefit of a real bonehead ruling by the trial judge. The U.S. Supreme Court was unimpressed, noting that States and the federal government have the power to prevent such situations by disallowing the practice of midtrial acquittals, encouraging courts to defer consideration of a motion to acquit until after the jury renders a verdict, or providing for mandatory continuances or expedited interlocutory appeals. The bottom line: the Double Jeopardy Clause remains intact as one of the bulwarks protecting individuals from multiple prosecutions, even when the first case was erroneously decided against the prosecution.

Some of the recent cases also reminded me of a medical doctor I represented who got caught up in the post 9-11 laws that criminalize lots of innocent conduct. One of those laws (18 United States Code, section 1038) makes it a crime to make a false report of something, which if it was true, would be a terrorist act. Through a series of mishaps, the doctor was pulled off a plane, but they would not remove his luggage, and planned on sending the flight along without him but leaving his bags on board. He complained, explaining that was stupid, in that for all they knew, his bags could contain explosives. That was not a smart thing to say, but it also was not a crime, in my estimation. Over the course of several years, I filed hundreds of pages of legal motions challenging the statute, and argued that the doctor had a First Amendment right to make a truthful statement: it is stupid to allow a passenger’s bags to remain on a flight when the passenger himself is no longer one of the passengers. After lots of work, we eventually convinced the prosecutors to drop all charges. The incident still pops up from time to time when the doctor’s medical license is up for renewal, but every time it has we convinced the regulatory bodies that he did nothing wrong.

The federal authorities like to make criminal cases when activities take place on airplanes. I probably will see more of these in the years ahead.

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.

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.

Again, this is an important case. Perhaps more importantly, it reminds all of us about how important it is to keep up on the law, to note potential trends, and to never give up on an argument that can help our clients.

Here’s how the case got to the Supreme Court. In rural Liberty County, a sheriff’s deputy was on patrol with his trusty drug-detecting dog named Aldo. The dog had been trained to detect the illegal drug methamphetamine. The deputy pulled over Clayton Harris, because his truck’s license plate had expired. The officer noticed that Harris was shaking badly, and was breathing rapidly – telltale signs, for the officer, that Harris might be on drugs. The officer wanted to search the truck, but Harris refused. The officer then had the dog walk around the truck, and the animal “alerted” to a drug on the door handle of the driver’s side of the truck. With that “alert” as legal justification, the officer searched the interior of the truck’s cab, and found ingredients for making methamphetamine.

Harris was charged with possessing materials for making meth. His very able public defenders argued that the search of the truck’s interior violated the Fourth Amendment because the deputy had no legal basis for conducting such a search. The Florida Supreme Court subsequently agreed, concluding that Aldo’s “alert” to a substance on the truck door handle was not sufficient to justify searching the cab. The state Supreme Court said that an “alert” is not enough by itself to satisfy a court that the dog is properly trained and certified for the detection of a specific illegal drug. Instead, the highest court in Florida held that an “alert” can provide the basis for a search only if the evidence shows how the particular dog was trained, what was done to satisfy an expert that the dog was adequately trained, how the dog had actually performed in “alerting” to drugs in other situations, and how well trained and how experienced was the dog’s police handler.

Florida, most of the various states, and the federal government, are all asking that the U.S. Supreme Court reverse the decision by the Florida Supreme Court. They want a ruling that the fact that a trained and certified dog does make an “alert” should be enough, all by itself, to justify a police officer’s further search of a vehicle for illegal drugs.

Frankly, it appears that the Florida Supreme Court’s ruling stands alone. Most states, and virtually all federal courts, hold that an alert by a drug dog is sufficient for searching a vehicle. Some folks in law enforcement call the detector dogs “four-legged probable cause.” While we will watch the case closely, it will be a surprise if the U.S. Supreme Court says that anything more is required for a search in this context.

Mr. Vana Haile and another man named Beckford were charged with and convicted of conspiracy and attempt to possess with intent to distribute marijuana and cocaine and knowing possession of several firearms in conjunction with their drug trafficking offenses. One of the firearms crimes alleged that the Defendants possessed a machine gun. The government also alleged that a different crime was violated because one of the weapons had an obliterated serial number.

Concerning the machine gun, the Defendants claimed that the trial judge committed an error by failing to instruct the jury that they knew the firearm was a machine gun when they possessed it. The district court instead merely instructed the jury that they needed to find that each defendant “knowingly possessed” each firearm, including the machine gun. The Defendants argued that this instruction was insufficient because the jury was required to find, beyond a reasonable doubt, that the defendants knew the gun they possessed had the characteristics of a machine gun, relying on United States v. O’Brien 130 S. Ct. 2169, 2180 (2010). The Court of Appeals rejected this claim, holding that the Supreme Court merely held that whether a firearm was a machine gun was an element of the offense, rather than merely a sentencing enhancement. The Eleventh Circuit decided that the Supreme Court did not require that a defendant’s knowledge that a firearm is a machine gun must also be so proved.

The Eleventh Circuit reached a different result when it addressed the conviction of Mr. Beckford for knowing possession of a gun with an obliterated serial number. In a case of first impression in that Court, the Eleventh Circuit joined all other federal courts to address the question by holding that that knowledge of the obliterated serial number is an element of the offense. “Beckford must have possessed a gun with an obliterated serial number and known the number was obliterated.” After making this legal ruling, the Court of Appeals then turned to whether there was enough proof that Beckford actually knew the serial number was obliterated. Usually, possession of a gun allows the jury to “infer” that the person possessing the firearm inspected it and should have know the serial number had been removed. However, in Mr. Beckford’s case the evidence at trial was not sufficient to show that he possessed the gun for a period of time during which an ordinary man would have discovered that the serial number was obliterated. The court reversed Beckford’s conviction for the following reasons: “Although the government established that Beckford discussed guns in general before the arrest and that agents found the gun in the flatbed of his truck (out of his reach) after the arrest, the government put forth no evidence that Beckford actually possessed the gun for any significant length of time. The government essentially proved only that Beckford had constructive possession of the gun at the time of the arrest. But this constructive possession alone cannot be sufficient to establish Beckford’s knowledge of the obliterated serial number because, if it was sufficient, the standard would eviscerate the knowledge element of [the statute] altogether.”

Again, it is important to always challenge every aspect of the government’s case when going to trial in federal court. Who “knows”, the Court of Appeals might agree with the defense, as in Mr. Beckford’s case.

Double jeopardy protects against multiple prosecutions for the same offense. Collateral estoppel, on the other hand, teaches that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. In other words, if there was an earlier criminal case that the Defendant won, and if the jury in that previous case “necessarily determined” a certain fact in the Defendant’s favor, then there cannot be a later case against that same Defendant if the subsequent case requirs proof of that same fact. Therefore, the big issue in this context almost always is whether the earlier trial involved a fact or issue that was “necessarily determined” in the defendant’s favor.

In Valdiviez-Garza, he had previously been charged with illegally re-entering the U.S. after a previous deportation. He won that case by arguing that he was not an illegal alien because he obtained citizenship through his father, who was also a citizen. Several years later, he was prosecuted again for illegally entering the country, and this later case also required the prosecutor to prove he was not a citizen. However, he got convicted the second go-round. He appealed to the Eleventh Circuit, and they agreed that he should have never faced the second prosecution because of the collateral estoppel rule. The only issue in his first trial was whether he was an alien, and he won. There never should have been a second prosecution, because the issue of his alienage had already been determined in the earlier trial.

This is a rather rare case. It is refreshing to see the courts remember that the government should only get one whack at a Defendant, otherwise we could all be in jeopardy time and time again.

Mr. Lander was the County Attorney of Dixie County, Florida. He also was trying to develop a vitamin company. The Court affirmed the fraud conviction that arose from the scheme involving the vitamin company.

Other fraud and money laundering charges emanated from a different set of facts. Some real estate investors wanted to develop property in the county and approached Lander for assistance. The developers put up about $850,000 as assurance that the project would go forward. Lander deposited these funds into his law firm’s trust account, but used a large chunk of these funds for purposes not related to the real estate development.

The indictment alleged that Mr. Lander engaged in a scheme to defraud by falsely telling the developers that the county required the $850,000 as a performance bond. However, at trial the developers did not recall hearing Landers say this. The government then shifted gears mid-trial, arguing that the scheme to defraud involved Lander falsely telling the developers that he would help them through the regulatory process, when instead he used some of the funds for other purposes.

The Eleventh Circuit noted that a defendant has the right to defend against the specific allegations in an indictment, and when the prosecution changes theories mid-stream this can result in what we lawyers call a “material variance.” If the defendant was surprised and disadvantaged by this change in theory, the variance is deemed to be “prejudicial.” Here, the Court noted that Landers walked into trial planning on defending against a claim that he falsely told the developers one thing, but by the time the prosecutor made the closing argument the government had shifted to a different theory. This prejudicial material variance thus doomed the fraud charges, the money laundering crimes that came out of this supposed scheme, and the sentence that was predicated in part of the reversed charges.