Federal law requires that the Government provide certain materials to the Defendant and his or her attorney.  Some people call this the “evidence” but it is both broader and more narrow than that.

By law, the Feds have to give the Defendant all documents, physical evidence, and any expert testing that the prosecutor intends to use during a trial.  Note that the last line said nothing about what the witnesses say.  Under the law, the federal prosecutor can hold back the witness statements until the actual trial, which is, obviously, grossly unfair.  In addition, Government also needs to hand over any “Brady” material, which means anything tending to show that then Defendant is not guilty.

While the law only requires a small amount of material to be turned over to the defense, the past 40 years of practice has eroded that rule to an almost meaningless mush of words.  Nowadays, prosecutors drown the defense with data and details.  A single email leading to an individualdual transaction yields mountains of data, and the trick for the defense is to see if there is a way to wade through this bog to find the real heart of the case.  Furthermore, prosecutors now regularly hand over so many witness statements that it is difficult to figure out which one is important as opposed to some meaningless interview with a federal agent.  As a result, over the past four decades I went from not knowing enough to knowing too much, but the bottom line always has remained the same:  figure out what happened and defend my client.

Lots of changes over the years but I still advise people being investigated or prosecuted to consult with an attorney who specializes in these complex matters.  For me, now it is back to my most recent case here in federal court in Atlanta.

TIP NUMBER ONE-dress appropriately.  I know, sounds simple, but we are trying to impress the Judge, and first impressions do matter.  Dress as if you are attending a religious service, a wedding or a similar formal event.  Avoid flashy jewelry and makeup.  When possible, cover tattoos with long sleeves, etc.

TIP NUMBER TWO-be prepared to admit you are guilty.  This one is often difficult, and goes against the grain for many people.  We are naturally reluctant to admit to our mistakes, especially in front of a Judge, but my experience over the many years is that clients who end up with the best sentences are the ones who clearly and honestly admit upfront that they screwed up and committed a crime.

TIP NUMBER THREE-answer clearly and loudly when the Judge asks you questions.  The guilty plea proceeding is always very stressful, and most people are not accustomed to speaking in a formal setting like court.  Many people in such settings mumble and speak quietly, but the key is to practice with the attorney and go over the Judge’s questions ahead of the hearing.

TIP NUMBER FOUR-ask your lawyer all your questions before the hearing.  It always looks bad to the Judge when the client and lawyer need to huddle together during the guilty plea proceeding because they forgot to go over something.  Be fully prepared whenever possible.  And the final tip is:

TIP NUMBER FIVE-remember that the guilty plea proceeding in federal court is NOT the final sentencing hearing.  At the guilty plea hearing the Judge does not want to hear why you committed the crime, only that you did actually do so.  Too many Defendants want to start their argument about why the Judge should be lenient with them during the guilty plea proceeding, and that never goes well.

Pleading guilty is stressful for people accused of federal crimes.  Make sure you use an >experienced federal criminal defense attorney to guide you through the process, and remember some of these tips if that is what you end up doing.

The first stop is a hearing in front of a U.S. Magistrate Judge.  Today was a good assignment, the very capable Judge was a former protege, I helped her try her first federal criminal case in this District many years ago.  All Magistrates inform the accused person of the charges against them and their rights.  The Magistrate then tells the person about the process going forward, he or she goes over bail options and a few other standard details such as assigning the case to another Judge for further proceedings.  Much of the time we work out the bail package ahead of time.  Today was no different, and my client merely had to sign an “unsecured bond”, meaning he and his family did not need to put up any money or property to secure his release on bail.

Next stop: the U.S. Marshal Service for “processing.  This part is sometimes the most scary for clients, in that I surrender them to a Deputy Marshal who takes the accused person back into a “lockup  facility”, which has cells, bars and inmates in handcuffs and ankle chains.  The Marshal Service then takes photographs and fingerprints, and runs one final computer check to make sure there are no “holds” or “detainers” on my client.  Today, the Deputy was very cool with my client, who is only 23 years old. The Deputy came out and explained that he told my client about what it is like back there for the people in cuffs and chains, and the Deputy said he hopes to never see my client again.

Last stop: U.S. Probation, where they open a file on my client for what is called “pretrial supervision”.  All along the way, I make a point of talking with as many people as possible who work in these various offices and courtrooms.  I have met many of these federal employees in the 40+ years I have been helping clients navigate the “system.”  It makes my client slightly more at ease to see that the individual federal employees in the system are real people and that I have at least some relationship with many of them.

Two members of a family hired me because several of their companies received grand jury subpoenas.  Their experience is rather usual, so I’ll explain  few things just to remind readers about the pitfalls that can happen when such subpoenas are handed out.

First, a grand jury subpoena can be an order to produce documents, to come give testimony before the grand jury, or both.  The first thing to remember is that no one has to provide a defense against him or herself, so anyone getting such a subpoena should go immediately to a reputable criminal defense attorney who knows the ins and outs of federal practice.

Second, such subpoenas are often used as a method for federal agents to sort of get their foot inside someone’s door and see if they will talk.  By law the subpoena has to be “served”, which means handed to the person to whom it is directed. Most people shocked to find a federal agent at their front door with a subpoena, and such agents can be very wily when engaging in this practice.  The bottom line is the usual: do NOT say anything until after you consult with a knowledgeable lawyer.

Third, these subpoenas usually have a deadline.  Do not fret.  A criminal defense lawyer who regularly handles such matters is often acquainted with the individual prosecutor handling the matter, and can most times negotiate in order to get sufficient time to prepare for a response to the subpoena.

OK, the pollen still fills the air, the trees bushes and flowers are gorgeous, and this writer needs to get back to preparing the response to the grand jury subpoena served on my clients recently.

I just finished meeting with a client.  We discussed many things related to his case and his life (I am one of those lawyers who simply enjoy getting to know much more about my clients beyond than the matter which  brings them to my office).  Along the way, he and I talked through the two biggest decisions in any criminal case.

DECISION NUMBER ONE: trial versus guilty plea (or other alternative resolution).  This is often the toughest decision, and is based on  the  evidence (obviously), the potential penalties, the complexity of a trial, plus a myriad of other factors. Some lawyers who have lesser trial experience subtly shade their recommendation so that their client is less likely to seek a trial.  I think that is a mistaken way to approach the trial/plea decision.  I have tried approximately 100 federal criminal cases of all types, and I relish the courtroom experience!  However, I always remind clients that while I personally enjoy the courtroom battle, it is their life and future on the line so my  enjoyment of the experience is completely beside the point.  The decision is completely up to the client in the long run, I simply make my professional recommendation.

DECISION NUMBER TWO: Client testifies/asserts Fifth Amendment right to remain silent.  If my client and I decide that the best strategy is to have a trial, then we have to confront the question of whether he or she should testify in their own defense.  Every situation is different, and I get kind of angry when I hear lawyers say stuff like they never let their clients testify, etc.  In my view that is the wrong approach, because no two cases are the same.  While there are obvious dangers when the accused person takes the witness stand, it is always an option worth discussing.

OK,  back to work everyone!

The current law on being out on bond stems from a 1984 Act which was part of a huge Crime Bill that year.  The part of the law regarding pretrial release was called the “Bail Reform Act of 1984.”  That law now allows a Judge to hold or “detain” a criminal Defendant with no bail at all if the Court determines that the person is either a “danger to the community” or a “risk of flight.”

In several of my current cases I got my client released on bond, but am still tussling with the prosecutors over some of the conditions imposed on my clients during their time out on bail.  This is somewhat common.  We get our client released at the beginning of the case by agreeing to some rather stringent and strict conditions.  As the case drags on we try to convince prosecutors (and the Court) that the harsh condition is no longer needed months and sometimes years after the person was originally released on bail.

Travel is often a big issue, especially for some of our clients who operate businesses.  Generally, these clients need permission from a “Pretrial Officer” before they can travel.  Other times, the permission can only be granted by a Judge.  Either way, I always try to fashion an agreement with the prosecutor before we approach the person with the final say-so on my client’s travel.

Another condition we often fight about is contact between our client and others in the case.  Generally it is very unwise to let the accused person have any contact with witnesses or other people who are charged in the case.  However, sometimes those witnesses and co-Defendants are family members or co-workers.  These situations require a lot of negotiation and evaluation so as to do the best we can for our client while still accounting for the Judge’s concerns.

A third issue relates to a criminal defendant’s employment while out on bail or bond.  Some Judges restrict the Defendant’s work so that he or she is no longer involved in the business or field from which the criminal charges arose.

Being out on bond is obviously far better than being in jail while a federal criminal case moves forward.  However, it often means that the federal criminal defense lawyer needs to be ready to do a lot more than just read the discovery and prepare pretrial motions.  When selecting a lawyer to represent you or a family member, remember that working on the bond conditions is also a large part of what the attorney might need to do.

The current law on being out on bond stems from a 1984 Act which was part of a huge Crime Bill that year.  The part of the law regarding pretrial release was called the “Bail Reform Act of 1984.”  That law now allows a Judge to hold or “detain” a criminal Defendant with no bail at all if the Court determines that the person is either a “danger to the community” or a “risk of flight.”

In several of my current cases I got my client released on bond, but am still tussling with the prosecutors over some of the conditions imposed on my clients during their time out on bail.  This is somewhat common.  We get our client released at the beginning of the case by agreeing to some rather stringent and strict conditions.  As the case drags on we try to convince prosecutors (and the Court) that the harsh condition is no longer needed months and sometimes years after the person was originally released on bail.

Travel is often a big issue, especially for some of our clients who operate businesses.  Generally, these clients need permission from a “Pretrial Officer” before they can travel.  Other times, the permission can only be granted by a Judge.  Either way, I always try to fashion an agreement with the prosecutor before we approach the person with the final say-so on my client’s travel.

Another condition we often fight about is contact between our client and others in the case.  Generally it is very unwise to let the accused person have any contact with witnesses or other people who are charged in the case.  However, sometimes those witnesses and co-Defendants are family members or co-workers.  These situations require a lot of negotiation and evaluation so as to do the best we can for our client while still accounting for the Judge’s concerns.

A third issue relates to a criminal defendant’s employment while out on bail or bond.  Some Judges restrict the Defendant’s work so that he or she is no longer involved in the business or field from which the criminal charges arose.

Being out on bond is obviously far better than being in jail while a federal criminal case moves forward.  However, it often means that the federal criminal defense lawyer needs to be ready to do a lot more than just read the discovery and prepare pretrial motions.  When selecting a lawyer to represent you or a family member, remember that working on the bond conditions is also a large part of what the attorney might need to do.

A “proffer” is when a criminal Defendant (or someone under investigation yet not currently charged) goes to see prosecutors and federal agents to give his or her version of what really happened in a case.  Often, the proffer is preceded by an “attorney proffer”, during which the person’s attorney gives prosecutors an outline of what his or her client will likely say during the later session when the accused person comes to the office to talk.  As I have written about before, these can be both valuable, and are simultaneously dangerous.

Today I met with a prosecutor ahead of the formal proffer.  This particular prosecutor truly wants to make this case move forward and resolve short of a trial or contested sentencing hearing.  Sensing that, I pushed a bit harder than I normally do, and essentially asked him to give me an outline of what the agents will ask of my client when I bring that person in for the formal proffer session.  It seemed to work.  By the end of the meeting I had more a less a roadmap of what they want my client to say (assuming it is the truth, of course) after which we should be on the road to resolve the matter more favorably to my client (and his family).

Again, my message to readers remains the same: federal criminal defense is a speciality, so please do not trust the future of you or a loved one to an attorney who is not highly experienced in these matters.

You tainted regular readers know that I regularly discuss how federal criminal cases are creatures of politics and current events.  This year is no different.  Lawyers like myself still have lots of work based on investigations arising from the Government’s response to the COVID outbreaks. These are usually what are sometimes called “white collar” or “economic crime” matters.  The Payroll Protection Plan (“PPP) involved lots of fraud, what a shock when Congress allowed banks to shovel money out the doors with virtually no oversight and federal government backing if the loans went bad.  The same is true for the EIDL program (formally known as the Economic Injury Disaster Loan program).  Federal criminal investigations into these loan programs can be very dangerous for individuals or companies who come under the microscope of a federal agent looking at possible fraud.  I strongly recommend that you consult with an expert who has significant experience defending such cases.

Health care fraud investigations and prosecutions remain a staple of my work.  Any company or individual caught up in one of these situations needs to consult with and possibly hire a lawyer who has lots of experience in these very specialized matters.

Public corruption cases also capture headlines, and last year was no different.  I am currently handling one such matter, and likely will continue our fight through the rest of this year and possibly the next.  Such cases require a defense attorney willing to go the distance, so to speak, in order to get the best result possible for the client.

Finally, federal drug cases remain a constant.  Defending controlled substance cases is rapidly evolving, with many States and local jurisdictions de-criminalizing or even legalizing drugs that the Feds still call “illegal.”  Anyone caught up in such matters needs the services of a specialist, and should not put their future in the hands of an inexperienced attorney.

Back to work and I promise to post more this coming year!

As is well known, the vast majority of cases or investigations end up without a trial.  That means much of the federal criminal defense lawyer’s time is devoted to talking with an Assistant United States Attorney (“AUSA”) in an effort to see if there is a way to resolve the client’s case more favorably.  However, the fact that most cases end up in a plea does not mean that the lawyer should always look to negotiate.  Instead, we need to simultaneously prepare to both fight and talk peace, a difficult balancing act.

This leads to negotiating Tip #1.  Sometimes the best negotiating tactic is to fight, fight, and fight some more.  Over the years I’ve noticed that even the best federal prosecutors get weary when the defense just keeps on coming at them with one issue or another. Every once in a while, this approach causes the AUSA to offer a better “deal” simply to stop the work of responding to the defense motions.  Now, this only works when the defense lawyer’s moves are well-founded, and not just some off-the-wall pleading or motion.  So, tip #1, work hard, sometimes it pays off for the client down the road.

Negotiating tip#2: Be an Upfront Human Being.  As lawyers, we have a job to do, and ours is an adversarial system of justice which means that the opposing lawyers are essentially fighting with one another.  But, if the defense lawyer is at least real, genuine and trustworthy in what he or she says, this can go a long way toward getting a better resolution.  Obviously, the process of negotiating involves some posturing, but if the defense attorney has a reputation of being a straight shooter then prosecutors are more likely to come back quickly with their “best offer.”  So, as much as possible the defense lawyer should be a person who the prosecutor can trust while recognizing that the two sides are opposing one another.

Which leads to Tip#3: Know the Law.  This seems obvious, but many young defense attorneys fail to recognize this aspect of negotiating.  When I was a younger lawyer, I sometimes made this mistake.  I would negotiate, and only later realize that under the law some additional issues needed to be discussed. If the AUSA had already given me some concessions, he or she was less likely to be as agreeable when I had to bring up additional issues.  So, the lesson is clear, the defense attorney should do as much research as possible and know the law BEFORE they begin negotiating with the prosecutor.

Finally, Tip #4: Don’t be Afraid of Trial.  Sometimes we just need to fight the case out in court, and no amount of negotiating will avoid that.  I know too many lawyers who are afraid of the courtroom battlefield, and prosecutors also know who those attorneys are.  The AUSA therefore has a great advantage, knowing the the defense attorney fears a trial.  Tip #4 therefore tells us that having a reputation of enjoying trial can go a long way toward getting a good negotiated resolution.

OK, now back to work!!

I have two matters on my desk this morning that exemplify this need to get the final word.  One is a post-conviction matter, the other concerns an upcoming sentencing hearing.

In the post-conviction case, we argue that my client’s previous attorney performed so poorly that the conviction should be over-turned because of the Sixth Amendment violation caused by “ineffective e assistance of counsel.”  Both sides filed briefs after the court hearing, and because we went first I am thinking about filing a “reply brief.”  I like these reply  briefs, for they give me the chance to plow through the prosecutor’s arguments and they try to dissect and destroy them, one at a time.

In the federal sentencing case, I have on my desk one of the famous “Presentence Investigation Reports“, or as we call them, the “PSR.” These are lengthy documents prepared by a federal Probation Officer (the “PO”) who makes recommendations to the Judge about how the Federal Sentencing Guidelines might operate.  The PO also provides a summary of the Defendant’s personal history, education, work history, medical issues and his or her financial condition.  No matter how accurate or thorough it is, the PSR is written by a Government employee.  I want the Judge to see the case from our perspective.  As a result, I usually try to get the final written word in preparing for a sentencing hearing by filing a “Sentencing Memorandum.”  Every case is different, but we usually ask that the Court see how the client and his or her offense look from the defense point of view.

Having the final word can be important, whether one is arguing with a loved one or in court. Just make sure the final word is the truth.

Readers (you three know who you are) recognize this is a somewhat regular topic I write about, the changing trends in federal criminal enforcement.  For many years, the Feds could not take their eyes off drug crimes.  Then came “illegal” aliens.  Then it was “terrorism.”   Now, after we opened the Federal Treasury for what seems to be much-needed pandemic-assistance, the federal law enforcement agencies are going after individuals who possibly committed fraud to get some of this money.

Astute readers of the previous paragraph will note that I never mentioned the words “corporation,” “companies,” or “businesses.”  That is because the history of the past four decades of federal law enforcement clearly demonstrates that the Feds prefer targeting individuals, and let the bigger players get off with little pain.  Sure, we occasionally see a big federal criminal case against a company, but this is the rare exception.  Instead, we seem to prefer going after the poorest and weakest, make lots of cases and act as if we are doing something about a societal problem.  The author  Matt Taibbi has written extensively about this trend, I recommend his work.

Whether they go after the smaller fish or the really big thieves, we are certain of one thing: federal fraud investigations and prosecutions are and will continue to be on the rise.

A Judge’s clerk will set the date for the sentencing hearing when the client pleads guilty, or in the unfortunate situation where the clerk reads the dreaded one-word jury verdict (“guilty” instead of the happier sounds of the two-word “not guilty”).  This is generally 2-3 months down the road.  Pitfall Number One: remind the client that he or she must still be on their best behavior, no matter how down or depressed is the client after pleading or being found guilty.  The key is to arrive at sentencing with a life that is worth living, so the attorney has a story to tell and why the sentence should be the shortest interruption possible for that client’s life.

Next comes the interview with the U.S. Probation Officer (the “PO”) who has the task of researching and then writing the Presentence Investigation Report (the “PSR” in our lingo).  Pitfall Number Two: please, please, please,  I never again want to hear about an attorney who lets his or her client attend this interview alone.  Tip: experienced federal criminal defense attorneys have been through dozens (or if the lawyer has done this as long as me, several hundred) of these interviews.  Experienced federal criminal defense attorneys know what to expect, and we spend a significant amount of time prepping the client to avoid mistakes when communicating with the PO.  The biggest problem the client can make is to lie when speaking with the PO, so prep to avoid any of that.

The PSR gets released to both sides, and here is Pitfall Number Three. Too many lawyers (often at the urging of the client) want to fight every word, every comma, and each aspect of the Sentencing Guidelines discussed in the PSR.  Don’t get me wrong, keep fighting, but over the years I get better results focusing on the issues we truly have a chance of winning.  In other words, the tip for handling objections to the PSR is to go after the portions that can really make a difference, and jettison objections that are more peripheral.

Next comes the Sentencing Memo that we try to file in every case.  The PSR is written by a government employee, no matter how objective and well-meaning the PO is who created that document.  I want the Judge to see an evaluation of the case written from the defense perspective.  We file these to, in the immortal words of the Johnny Mercer song, “Accentuate the Positive.”  We want the Judge to hear the good things about the client, his or her future prospects, and why the sentence should be the most lenient possible under the circumstances.  This brings us to  Pitfall Number Four:  this is NOT the place to re-fight the issues at trial or how the prosecutor brought unfair charges against the client.  Judges tend to remind lawyers the client already pled or was found guilty, so the lawyer loses a lot of credibility when re-arguing the case at the sentencing hearing.

The best tip for getting through the sentencing hearing is to have a lawyer that is highly experienced in such matters, or who is smart enough to consult with others who are.  Good luck to all clients and lawyers facing these in the future.

In January our work filing and pressing a Motion to Suppress led to the complete dismissal of all charges against our client.

Relying on the tips for using pretrial evidentiary hearings as a tool, we got a client’s case resolved when the Judge imposed the lowest possible sentence.

The COVID pandemic is horrible, especially for incarcerated people.  About the only good news is that I learned that my letters, calls and other efforts led the Bureau of Prisons to release one of my favorite clients.  He is now at home with his family.

The pandemic also led to a glut of investigations and prosecutions for supposed COVID-based fraud.  Some of the investigations were warranted, many were not, as I described earlier. In one memorable matter, prosecutors came after my client and his company, claiming fraud.  For a variety of reasons we let the company and the client plead guilty to a strict liability misdemeanor, meaning that there was no proof that the Defendant intended to break the law.  It was especially pleasing to see the Judge reject an effort to impose a jail sentence, and the Court simply placed the client on a short term of probation.

In another COVID-related matter, the client’s name was blasted all over the internet.  After a lot of work, we demonstrated that the investigators and prosecutors had much of the case wrong.  You guessed it, same result, plea of guilty to a misdemeanor crime that did not require proof the Defendant knew she did anything wrong, and she had to pay $654.

Toward the end of the year we had a partial win in the Court of Appeals, reversing 35-years of bad law in Anti-Kickback Act cases.  We are still trying to get the entire Court to rehear the case, in order to solidify the law and get relief for our client, but I was grateful to see that the Judges at least agreed with us on the basic legal principle at the heart of the matter.

This has been a very hard year for so many people.  Me and my family have been fortunate, and our thoughts and prayers to out to those in need.  I am grateful to have been able to help many of my clients.

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!

The clients are a husband and wife who have a small child together.  They are immigrants to the US, but are now citizens.  English is not their native language, as shown in the very nice statement the husband was willing to publish about their experience with me:  “I am grateful that we were able to retain Mr. Kish to represent my wife through an online research. We were panic before we met Mr. Kish. As a professional, intelligent lawyer, Mr. Paul Kish also provides outstanding customer service. Mr. Kish treats his client with respect and care. A HUGE Thank You here, Mr. Kish saved our family and got our life back on the right track.”

The wife was arrested in a blaze of publicity.  Turns out that the government made several incorrect assumptions when arresting this relatively guileless woman.  Over time, we were able to convince them they were wrong on several major matters.  We got all felony charges dropped, and agreed to a plea to a misdemeanor crime that does not require proof that the wife acted with criminal intent. Oh yes, we also agreed she would have to pay a whopping $632 fine. What started out as a big deal for the prosecution ended with a whimper when the Judge imposed a total of 1-year probation for the misdemeanor violation.

So, here are some features of this recent case that repeat in other federal criminal cases.  Massive publicity at the time of the arrest, and no reporters trying to get the defense side of the story (we fixed that when I issued a statement that outlined the prosecution’s mistaken assumptions that led the the relatively innocuous crime to which she pled guilty).  Clients who are totally scared and inexperienced in the criminal justice system, and who need someone to not only advocate on their behalf, but who will take time to make sure they understand what happens each step of the way (we made a point of paying for top-notch interpreters who were on each and every attorney-client conference so she could ask questions and have my explanations translated into her native language).  And finally, an agreement with reasonable prosecutors who are willing to admit their incorrect assumption when it is explained to them, resulting in what is probably a fair end result.  No two federal criminal cases are the same, but many have similar features.

First let’s discuss the “proffer.”  I tell clients that the proffer is kind of like when you go car shopping and take one of the vehicles out for a test drive.  The dealership is not obligated to sell, you are not obligated to purchase, each side kind of wants to see how the situation might look if it all works out.  In a proffer, the person under investigation goes in (with his or her attorney, PLEASE!).  The prosecutor and agents ask questions, but the person’s answers are basically off-limits if the person is later prosecuted, with several major exceptions that we have discussed on other occasions. The prosecutor and agents want to hear the person’s answers, to see if they want to work out some kind of “deal” in return for the person’s information or possible testimony.

A “reverse proffer” is when the prosecutor feels that he or she might be able to convince the person under investigation that the Government has a very strong case. The prosecutor brings the individual under investigation and their counsel to the office (or everybody gets on a video call) and the prosecutor and agents lay out what they feel are the strongest parts of the Government’s potential criminal case. Such a prosecutor does this in the hopes that the person under investigation will realize that the game is over, and the person will tell his or her lawyer to negotiate plea agreement, thus saving the prosecutor the work of actually making a case.

Experienced federal criminal defense lawyers do these reverse proffers often.  But, if anyone reading this is a client considering a reverse proffer, or an attorney with little or no experience in these matters, here are some things to keep in  mind.

First, lay out the ground rules in writing.  This seems obvious, but my heart falls when I hear about lawyers who bring their clients into a reverse proffer without a written agreement, and things then go badly for the person.

Second, the attorney absolutely MUST school the client about how he or she will react to anything said during the reverse proffer session.  The client must not react, speak, fidget, or give any indication one way or another that he or she agrees or disagrees with anything that is said during the session.  Prosecutors and agents often gain valuable insights from a client’s reaction to certain information, so do not give that to them.  Tell the client ahead of time that he or she needs to be like a statue during the entire session.

Third, the lawyer should try to somehow record or document everything that anyone on the government side of the table says during a reverse proffer session.  This might be the only time that the prosecution lays out some of their cards prior to a trial, and down the road there are some nifty ways to get such statements or representations into evidence through the hearsay exception for statements made by an agent of a party-opponent.

Finally, the lawyer should always try to reserve the right to make a counter-presentation at a later date.  Sometimes prosecutors and agents simply get it wrong, and it can often be very impactful to prove that their assumptions were mistaken.  In other words, try to avoid a situation where the prosecutor says that the only reaction after the reverse proffer is the on-off decision of guilty plea or trial.

Reverse proffers can be helpful, and I hope these thoughts help others make the best use of these sessions.

First, it helps when the federal criminal defense lawyer has a good reputation.  There are many federal prosecutors around the country, and they simply cannot know all attorneys who handle federal criminal cases.  However, the group of lawyers who regularly handle such cases, whether prosecutors or defense lawyers, is relatively small.  Lots of great criminal defense practitioners never venture out of the state court systems, which means that the “federal bar” is a much smaller group.  Because the attorneys on each side is a relatively small number, it is very easy to find out information about a prospective opposing lawyer, even if the attorney might not know the person from earlier cases.  A good reputation is valuable, and a bad one very hard to shake. Having that good reputation does not get a better “deal”, but it does assure the federal prosecutors that the defense lawyer at least knows what he or she is doing.  And, this makes the early steps easier, for a known quantity is easier to trust. Next, the pandemic-related investigations and cases remind me that federal criminal prosecutions are often far more related to politics and current events as opposed to cases in the state court systems.  Right now, federal prosecutors are just about under orders to “make” fraud cases arising out of the sale of products or services related to COVID-19.  Local federal prosecutors’ offices are coordinating to handle the glut of fraud that always seems to arise in such situations.  However, the pressure to make it look like the Feds are truly preventing fraud means that sometimes they go after the wrong target. This made me remember how over my 37-year career, there have been other “targets” when the Feds were ordered to make cases by going after certain groups or types of crimes.  One example was the idiotic “War on Drugs”, where the wholesale effort to go after crack cocaine dealers taught some hard lessons about how political moves causing mandates to go after certain crimes/criminals can end up costing far more than it was worth.  Now, there is a real danger that federal prosecutors will go after the penny-ante fraudsters scoring a few bucks selling cheap junk, when the real crimes are the millions and billions being siphoned off relief efforts by unscrupulous “businessmen and women”.

One more lesson before I dismount from my soapbox and get back to work.  Defending against allegations that my clients are profiting from the misery of others during a pandemic is difficult.  I always have to keep in mind how the case might look to a jury down the road, and there is a natural tendency for people to hate any Defendant who supposedly ripped people off during a national crisis.  The key is to know the facts better than the prosecutors, and to then use a cold-hearted view to advise my client whether the case can be won, or likely will be lost.  In other words, the federal criminal defense lawyer has the difficult and sometimes unenviable job of trying to get jurors to put their natural inclinations to the side and focus solely on what happened, or did not happen.

The worldwide coronavirus outbreak is wreaking havoc on many people.  It also makes the job of defending clients against allegations that they committed a federal crime just a bit more difficult, but that is what the federal criminal defense lawyer has to do.

One lesson came from a case where I  represented a client who pled guilty to a federal economic crime.  We had one of the last “in-person” sentencing hearings in federal court just before all the courts closed down.   We convinced the Judge to impose a sentence well below what the prosecutor asked for, and well beneath the range suggested by my sometime nemesis, the Federal Sentencing Guidelines. The case reminded me that a better-than-expected result in a federal case where the client pleads guilty depends on many factors, but the lawyer needs to focus on two areas to achieve this.  First, the attorney needs to do whatever he or she can to maneuver the dreaded Guidelines into the best position possible under the circumstances.  Second, the lawyer then needs to get especially creative when trying to convince the Judge to impose a sentence below those same Guidelines.  In this particular case I had to juggle a series of areas to come up with a combination of reasons why the Judge should do what I was asking of her.  So, that recent lesson reminded me:  the lawyer’s work is far from over when the client decides to plead guilty, for that is often the point when the attorney can make the greatest impact and salvage the best result under the circumstances.

Another lesson I learned is that a “virtual meeting” is merely a substitute for an in-person consultation.  I have a new matter where my client and I have had many calls, but have not met fact-to-face because of the shutdown.  After many discussions, I came to realize that I had misunderstood a crucial detail.  It likely would have been cleared up much earlier if we would have been able to meet in person.  I am glad we figured out that particular miscommunication, but the lesson is obvious: it will be much easier to do my job properly after I can again meet clients in person.

Lesson Number Three: the Court and prison systems are slow, and the pandemic makes things move even closer to the pace of a glacier.  I have some elderly clients who, quite frankly, should not be in prison in the first place, but even so, they should be released so they do not have to be cooped up with other prisoners who are infected with the virus.  The US Attorney General “promised” to release such prisoners, but nothing has happened, even through I’ve written many letters and made numerous phone calls trying to get my clients out of harm’s way and back to their homes where they can be supervised on home confinement. The courts likewise are mostly unsympathetic, rejecting my motions on technical grounds and deferring the vast majority of release cases back to the prison officials, who are letting hardly any prisoners out.  It is very frustrating to realize how slow and sclerotic our systems can be in an emergency.

Now, back to work trying to help clients facing these difficult federal criminal cases.

Some of these laws are found in the US Code.  Others are based on regulations issued by various federal department.  When combined with prosecutors who are rarely restrained by the courts, these laws may sound funny but actually represent potential dangers to all of us.

1) 21 U.S.C. §333 and the associated 21 Code of Federal Regulations §102.39 makes a criminal out of anyone who sells onion rings resembling normal onion rings, but which are made from diced onion, without saying so.  So, now we are safe from these criminals.

2) Those who like wine need to consider 27 U.S.C. §205, 207 and 27 C.F.R. §4.64(a)(8).  Taken together, these make it a federal crime to advertise wine in a manner that suggests it has intoxicating qualities.  You can say it’s good, just don’t say it will get you drunk, because we all need to be protected from these arch-villains.

3) For those who like to punish their grandkids with the old “pull  my finger” joke, consider  21 U.S.C. §333, and 352 combined with 21 C.F.R. §332.30(b).  You guessed it, these laws make it a crime to sell anti-flatulent drugs without noting that flatulence is “referred to as gas.”  Questions?

4)  Take a close look at the water spigots in the national forest to avoid being a criminal violator of 16 U.S.C. §551 and 36 C.F.R. §261.16(c).  If you are not being observant, you might violate these laws which make it a federal crime to wash a fish at a faucet if it’s not a fish-washing faucet.  Say that fast three times, I dare you.

5)  Were you aware that it is a federal crime to knowingly let your pig enter a fenced-in area on public land where it might destroy the grass?  I thought so, you failed to read 18 U.S.C. §1857.

6)  Be wary if you are a golfer and have business in or near Washington D.C. or any national park. Why, you coyly ask?  Because under 18 U.S.C. §1865 and 36 C.F.R. §7.96(b)(3) it is a separate federal crime to harass a golfer in any of these locations.

There are many more, such as those mentioned here.

I’ll close with a reference to the late and greatly missed Justice Antonin Scalia of the U.S. Supreme Court.  A law emanating out of the Enron accounting scandal criminalizes the destruction or concealment of “any record, document, or tangible object” to obstruct a federal investigation.  Prosecutors actually brought a federal criminal case against a fisherman under this law when he threw back 72 grouper to supposedly avoid being caught with undersized fish.   Prosecutors were trying to convince the Supreme Court that a grouper is a “tangible object” under this law.  This crime has a 20-year maximum sentence.  In the highlight of the oral argument Justice Scalia noted the potential for 20 years and asked “what kind of mad prosecutor” would use that law in a case like this one?  The government lawyer weakly responded that the prosecutors had not asked for a twenty-year sentence against the fisherman.  The Court ruled for the fisherman, but the lesson remains: stupid laws and barely restrained federal prosecutors remain a danger to all who love liberty.