I have posted previously about the vanishing species known as the federal criminal trial.  Trials are down, way down, and there are many reasons.  One main reason is that penalties for the past three decades increased.  Furthermore, the rule-makers (i.e., the US Congress) gave more and more power to prosecutors and took more and more away from Judges.  The result was that many attorneys felt overwhelmed and that feeling caused those lawyers to stop fighting and to begin looking for ways to avoid lengthy penalties that their clients suffered.  In other words, some lawyers lost their fighting spirit. Don’t get me wrong, in many cases negotiating a deal is the best course of action, but the stiffening penalties led a few lawyers to simply lose the fire in the belly needed to take a case to trial.

Trials are extraordinarily stressful experiences for the client, his or her family, and the attorneys.  The word “trial” came down from the ancient practice of “trial by ordeal“, which was “an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience.”  The current version is not too much different.  But, I always need to remember, it is the client who suffers the most from the stress and pressure.

One of the most stressful parts of a criminal trial is the unknown.  Nowadays, we usually know most of what witnesses will say and what documents or other evidence will be used, but the full picture never really comes out until everybody gets into the courtroom.  The uncertainty makes it hard on everybody involved.

On the other side of the equation, a guilty plea brings at least some certainty.  Generally speaking, we have a good idea of the outcome, even though the specific penalty is up for debate.  However, “giving up” is often very distasteful for me when I know we have some good defenses and answers to the prosecution’s case.  In the end, of course, it is up to the client, but I always try to let them know that if they choose to roll the dice and take the case to trial, I am more than willing to fight my hardest to make the jury see the case out way.

First, we often are able to convince a federal Judge that we are entitled to a “pretrial evidentiary hearing” concerning one or more of our Pretrial Motions.  Most defense lawyers relish such a hearing.  To begin with, it is always a benefit to get one or more of the government witnesses under oath before the trial.  At such a hearing, the defense attorney can sometimes try to “lock in” the government witness.  This means the lawyer will get the witness to thoroughly accept and adopt a certain version of the facts.  When the lawyer locks the witness into this specific story, it means that same witness will have a hard time changing or modifying his or her version when the trial comes along.  The attorney will have the transcript from the pretrial hearing.  It is always an enjoyable sight to see an accomplished criminal defense lawyer armed with a pretrial hearing transcript whipping up on a witness who decided to change his or her version.

In addition to locking the witness into his or her story, the pretrial hearing is also valuable because the attorney gets to kind of measure the witness, to see if the person is going to be a difficult at trial.  Cross examining a government person at trial when the lawyer has never previously encountered the witness can sometimes be frightening.  Having a pretrial hearing where the lawyer more or less gets a free whack at the witness can reduce the fright factor at the later trial.

Above and beyond locking in and knowing more about the government witness, the savvy federal criminal defense lawyer will sometimes break one of the oldest rules when questioning a government witness at a pretrial evidentiary hearing. That old rule says: “Never, never, never ask a question if you do not already know the answer.”  However, at a pretrial hearing, the lawyer has more leeway, less danger, and can take more chances.  Lawyers can ask about areas that are unclear, and with no jury in the room, the attorney is less afraid of hearing information he or she has not previously known about.

Getting additional “discovery” is one more benefit for the criminal defense attorney who gets an evidentiary hearing in a federal case.  Those unfortunate souls who have read this blog on other occasions know about the somewhat restricted nature of “discovery” in federal criminal procedure.  Getting a government witness on the stand well in advance of trial can sometimes rectify this problem.

Prosecutors are kind of tricky, and will try to prevent the defense attorney from using any of the strategies laid out above.  They will call the witness, but not produce any reports the witness may have filled out.   This is when the wily defense lawyer will remind the Judge about Rule 26.2(g) of the Federal Rules of Criminal Procedure.  It basically says that the prosecutor needs to turn over any “statement” previously made by the witness.  This “turn-over-the-statement” rule applies to a federal criminal trial, but many lawyers forget that Rule 26.2(g) also applies to pretrial hearings.

OK, back to work preparing for my upcoming hearings!

Now remember, most lawyers are not “numbers people.”  That’s the reason we went to law school, because some teacher or school just flat-out insisted that we needed to learn calculus. For the most part, attorneys are not at their strongest when dealing with mathematic or scientific issues.  While most good trial lawyers are bright and can quickly pick up new concepts, this is not our main area of expertise.

So, we have a system where most of the main participants are not all that great with numbers or science, and then we have cases that are chock full of both types of information. Here is what usually happens.  A prosecutor hears about a new type of evidence, such as DNA analysis and comparisons to see if the person on trial had some connection with the victim or crime scene.  It’s only been 30 years since this evidence was first accepted into court, and in the early years virtually all prosecutors and defense lawyers simply deferred to whatever the “experts” claimed.  Then as time progressed, more and more lawyers got comfortable with the basic science behind DNA analysis, and began poking holes in the claims, leading to the far too many cases where DNA analysis has actually exonerated previously convicted Defendants.

Cases involving statistics often follow the same path.  Federal criminal cases arise from a variety of federal agencies, but inside each agency there usually is some small group responsible to keeping and analyzing statistics.  These are the supposed “experts.” After a few years of analysis, these experts massage the numbers to the point where they look as if the analysis shows that a person or company committed a crime, like fraud for example.  The poor criminal defense attorney (the same man or woman who after all went to law school because math was not their strong suit) now has the task of unspooling whatever data and expert analysis is involved.

Most good federal criminal defense attorneys make a practice of using highly competent and experienced experts of their own when taking on a case involving statistics, scientific concepts or otherwise unusual evidence.  I really enjoy working with the experts, for the interchange of ideas back and forth often helps me identify weaknesses in my defense, holes we can poke in the prosecution’s presentation, and often opens new areas of investigation that leads to other helpful evidence.

Another way to handle statistics is to simply sit down and plow through them with an open mind.  It often helps when, as in my office, the attorney is assisted by very bright people who are very accomplished in using various tools for understanding large quantities of data.  But often, there is no substitute for having the lawyer him or herself methodically go through the data to see if the government’s statistical claims hold water.  I sort of enjoy the process of learning new data and analyses, and it often helps that I know the numbers better than the lawyer on the other side of the courtroom.  And, in those few cases where I really know the numbers and find some weakness in the government’s presentation, I get to pull out my old joke about the three kinds of lies!

A journalist named Matthew Keys was charged with giving login credentials to hackers with the group Anonymous.  Those online saboteurs supposedly went on the website of the Los Angeles Times newspaper, and changed a headline.  It was about 40 minutes or so before anyone noticed the hack, and the headline was changed back to the original form.  The feds took the case, and charged Mr. Keys with one count of conspiring to make changes to Tribune’s website and damage its computer systems, one count of transmitting damaging code and one count of attempting to transmit damaging code.  The jury found him guilty.

As we talk about all the time on this blog and on our own website, the sentencing process in federal court is very formalized, arising from the wickedly complex Federal Sentencing Guidelines.  First off, a Federal Probation Officer (or “USPO”) interviews the Defendant, gets information from the prosecutor, and then files the first version of the very important “Presentence Report”, sometimes called the “PSR”.  In the PSR, the Probation Officer makes recommendations as to how the sentencing judge should apply the Sentencing Guidelines.  If either side is unhappy with the Probation Officer’s recommendations, that party can file Objections, which the Judge then has to hash out and rule on at the final sentencing hearing, unless the Probation Officer agrees to change the final PSR in a manner acceptable to the objecting party.

In Mr. Keys’ case, the USPO suggested that the hack caused damages exceeding $250,000.  If the Judge agrees, this results in a 12-level increase under the scoring mechanism used by the Guidelines.  Defense Counsel objected, arguing that the increase should only be around $5,000 for a 40-minute change to the online site of a newspaper. What struck me is that that the objections by the defense team were filed on the open docket, meaning the public gets to see what can sometimes be private information that forms the basis of issues arising in a PSR.

My case here in Georgia is being handled within the state court system (although it was originally investigated by the FBI).  One difference is that Georgia has a “Computer Trespass” law that makes it a crime to engage in unauthorized access of a computer system if the person merely “alters” the system.  Obviously, even the smallest change could result in an “alteration” and thus lead to a criminal charge.

Sentences for State cases in Georgia are not constrained by any specific guidelines or ranges, such as those found in federal cases.  The judge can do just about anything he or she wants, so long as it is within the overall ranges set out by the legislature (and even then, other Georgia laws allow a Judge to impose a non-custodial sentence in the vast majority of situations).  Another difference from the California case involving Mr. Keys and our practice is that, generally, most of our objections to a PSR are handled by private and non-public communications between the lawyers and the USPO.  I am always reluctant to file anything in a public forum that deals with private information relating to my client, unless of course I feel that the risk is worth the gamble.

While there are obvious differences between Mr. Keys’ case and the matter I am handling here in Atlanta, the similarities struck me.  More and more large organizations are highly protective of their computer systems, and even the smallest intrusion results in that company running to law enforcement.  Even a relatively minor change can result in serious potential penalties.  If you or someone you know has done anything similar to this, it is wise to stop it, and then get advice from a competent criminal defense lawyer who handles these difficult situations.

In the recent Ford case in the Court of Appeals, the Defendant was convicted after a trial.  During the investigation of the case, and Atlanta-based TV station got wind that Ms. Ford was supposedly engaging in some kind of fraud, so they sent in an undercover reporter wearing a secret camera.  The camera caught Ms. Ford saying and doing some things that were very harmful, and the TV station then aired the typical “gotcha” story, replete with the seemingly angry reporter who was “shocked” that crime happens.  Before trial, Ms. Ford’s attorney argued that putting an incendiary TV show in front of the jury was excessively prejudicial.  The Court of Appeals rejected  this argument, mostly because the prosecutors wisely agreed to take out just about everything from the TV story except the part where Ms. Ford was talking with the undercover reporter.  One lesson for attorneys who represent people accused of fraudulent activities is to always be aware that in this modern media-frenzy culture there always might be a TV story or something on social media you need to be prepared for when defending the case.

As I mentioned in my earlier post on using changes to the Federal Sentencing Guidelines as a method for trying to get a lower sentence, the concept of “loss” and the number of “victims” are two crucial factors that go into the sentencing range that every federal judge faces when starting the process of figuring out the correct sentence for a person convicted of a crime involving fraud.  In the Ford case from yesterday, the defense team argued that the sentencing judge made mistakes when calculating the amount of loss and whether certain people were victims.  While the Court of Appeals rejected these arguments, it is important to remember to object to rulings in such areas so that the Defendant at least has the chance of appealing to a higher court when the sentence is longer than anticipated.  We unfortunately sometimes have clients come to us after another lawyer represented them at the sentencing hearing and failed to remember that it is important to object when the Judge makes a decision that could lead to a higher range under the Sentencing Guidelines.

The two matters mentioned above involve some folks who apparently engaged in some fraudulent conduct while preparing tax returns.  However, thousands of legitimate tax preparers help taxpayers work through the insanely arcane and complex ritual that is required for filing a tax return in this country.  We all know about the big companies that sell software that supposedly allows an individual to plug in a few numbers and then file their taxes.  However, many people feel more comfortable going to a trusted local small business for this process.  My recent work has shown me that the IRS is often exceedingly hard on these small tax preparers, sometimes using even the smallest mistake as grounds for shutting them down or making them pay penalties. I want all of my clients to adhere strictly to the rules of whatever business they operate, but the IRS can sometimes be an especially difficult agency to deal with when problems arise, as they do in every business in this country.

Reduced to the basics, Ms. Kaley and her husband were suspected of crimes. They hired an amazingly good lawyer, and set aside the money needed to let this specialist do his job. The Feds got an indictment, and also got an order freezing the money Ms. Kaley had put aside to pay the attorney. Kaley eventually took the case to the Supreme Court, arguing that she at least had the right to a hearing to challenge whether there was enough evidence to justify tying up her assets even before a trial. She probably has a pretty good chance, in that a trial against a CoDefendant charged with the same crime resulted in an outright acquittal. However, Ms. Kaley did not fare so well in the Supreme Court, which ruled that she has no right to a hearing to challenge the seizure of her money even before a trial.

The best thing about this decision is the dissent by Chief Justice Roberts. Here’s a couple of quotes that lawyers, Judges, prosecutors and all participants in the criminal justice system need to remember:

“An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.”

The Chief Justice wrapped up with this stirring language:

“The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial. … Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers- one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent.”

I always read such stories with a jaundiced eye. The press if often captive to the prosecution at these early stages of a criminal case. Reporters often do nothing other than paraphrase whatever charging document is filed in court or parrot back the government’s press release.

What really caught my eye, however, is that the lawyers for all of the Defendants “declined to comment.” That leads to a brief discussion of when it is appropriate to make a public comment on behalf of a person charged with a crime, whether it’s a major federal bribery investigation or some other matter.

Lawyers are notorious for wanting to get into the papers and on TV. Over the past decade, a veritable marketplace has sprung up to get attorneys on TV to blab on about some case they know nothing about. The attorney is touted as an “expert,” often a former prosecutor who now does defense work and claims to therefore have some special insight into the whole process. The media gobbles up such blather, filling the airwaves with the ramblings of a series of attorneys who simply are trying to get their name out in the public realm by commenting on another lawyer’s case. I cannot criticize good marketing by lawyers, but sometimes these “talking heads” really do not know what they are talking about.

Because lawyers almost always welcome publicity, clients need to hire an attorney who knows the differnce between a case that requires public comment, and another matter where “no comment” is the best approach. Clients should be especially wary of an attorney who seems to always want to make a public statement, no matter what case he or she is working on.

Saying “no comment” is often the right move, but not always. Other times, an experienced criminal defense lawyer knows that he or she can trade a public statement in return for learning some other facts from the reporters. On occasion, it is important to get a certain “message” out that will be one of the central themes of the defense. There is no single answer, but I am always pleased when I see experienced attorneys who decline the chance for easy publicity in a high profile matter. Often, these are the lawyers who are best suited for the case, and recognize that there is a time to talk, and a time to keep their mouths shut.

The basic story goes like this. In the havoc following Hurricane Katrina, there were reports that police officers shot victims of that natural disaster. There was an internal investigation. Cops were interviewed, and were told that they had to answer questions, and that their answers could not be used against them in any subsequent case (we call this “immunized testimony”). State prosecutors thereafter got indictments and convictions. The state appellate courts overturned the convictions, because the immunized testimony WAS used against the cops.

Thereafter, federal prosecutors took over the case, and the Defendants were all convicted and given lengthy prison sentences. Shortly after the Defendants were sentenced, it came to light that a high-ranking federal prosecutor in that office had a habit of anonymously posting in the “comments” section of the New Orleans’ newspaper. These postings basically whipped up support for convicting the cops, before, during and after the trial. Eventually, it came out that the First Assistant Attorney (the Number Two person in the office) also had been posting in a similar manner. She then said she told her boss (the US Attorney) what she had done. Both of them resigned. The final straw happened when the Judge recently discovered that a Washington, DC based federal prosecutor had been doing the same thing concerning this case. The reason this was such a huge problem is that this DC lawyer was the “taint” person, the government lawyer who was supposed to protect the cops from having their immunized testimony leaking over to the trial prosecutors.

The Judge was (and still is) incensed. He reviewed the law, noting that due process requires fairness, whether or not the bad actions of the prosecutors’ had an impact on the actual trial. Here’s what he said: “In every criminal trial, a defendant is entitled to a fair trial before an impartial jury, at which time the government must prove his or her guilt, for each count charged, with admissible evidence, and beyond a reasonable doubt. This sacrosanct principle ensures that no defendant is deprived of his or her liberty as a result of an unfair, biased, or slanted proceeding skewed to achieve a conviction, as opposed to finding the truth with requisite certainty. In this instance, it is difficult to conceive, much less accept, that this time-honored constitutional procedure successfully withstood an attack of the ferocity seen here, a campaign extending back to the commencement of the DOJ’s active investigation of this case in 2008, and continuing through the acceptance of related plea agreements, the indictment, and the trial itself. To conclude that such misconduct was only a little unfair, but not enough to be harmful, turns the fundamental principle of due process on its head.“

The Judge reversed the convictions, and is granting all the Defendants a new trial. Stay tuned, we have not heard the last of this, I predict.

I recall one case where our client was accused of basically “touching himself” while sitting next to a couple of teenage girls. We had a long trial, a challenging sentencing hearing, but all along I had hope that we might prevail. We lost, but not until we made the other side work very hard. Here is the final ruling by the Court of Appeals. I still think we were right.

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.

The SOL means that once the limitations period has passed, prosecutors can no longer bring a case against a defendant. The general SOL in federal criminal cases says that the prosecutors must get an indictment within 5 years of a crime.

A subsidiary principle in SOL cases involves the idea of “withdrawal” from a conspiracy. Under this principle, a Defendant who is a member of a conspiracy can get out of the illegal agreement, but only if he does something to defeat the purposes of the conspiracy or lets the other members know that he is through with it. A Defendant who withdraws therefore is not guilty of the crime if he withdraws from the illegal agreement more than 5 years before the indictment was issued by the grand jury.

Mr. Smith has been in prison continually since 1990, except for about 16 months in 1993-94. During those 16 months prosecutors proved that he was a member of a far-flung and very violent drug gang in Washington, D.C. Mr. Smith went back to prison the last time on June 1, 1994. In the year 2000, federal prosecutors got an indictment which included a claim that Mr. Smith was a member of a conspiracy that started back in the early 1990’s and went up to 2000. Mr. Smith’s legal team argued that he had withdrawn from the conspiracy by virtue of being locked up for the 6 years preceding the day when the feds got their indictment.

The trial took 10 months. After 12 days of deliberation, the jury asked a very reasonable question: which side has the burden of proving whether a Defendant withdrew from a conspiracy? The trial judge told the jury that it was the Defendant who had the burden of proof, and furthermore, that he had to prove his withdrawal by a “preponderance” of the evidence, meaning it was more likely than not he had gotten out of the illegal agreement. In other words, the trial judge told the jurors that if they were 50% convinced that he had not withdrawn, then Smith was still guilty.

This issue has caused a big rift among the various federal courts of appeals, with 6 going one way, and 6 seeing it differently. The Supreme Court will address a series of questions in this important federal criminal appeal. First, under the Due Process Clause of the Fifth Amendment the prosecutors always have the burden of proof beyond a reasonable doubt for all “elements” of a crime. Because the existence and membership are elements of any federal conspiracy crime, Mr. Smith contends that it violates the Due Process Clause to make him disprove that he continued to be a part of the illegal gang. Second, the Supreme Court will confront a series of questions stemming from how to analyze the case if the trial judge made a mistake when telling the jury that Mr. Smith had the burden of proof. A very important case from a few years back written by Justice Scalia held that an erroneous instruction about the burden of proof means that the whole trial was tainted, regardless of how much evidence implicated the Defendant in question.

We think this is a very important federal criminal case, and will follow it closely.

The ACCA applies to people with at least 3 prior convictions for violent felonies or drug offenses. Mr. Hunter was sentenced as a career criminal under this act because in addition to one conviction for a drug offense, his two prior convictions for carrying a concealed weapon were considered violent felonies. Last year the Eleventh Circuit acknowledged that carrying a concealed weapon may not be a violent felony. In the Hunter case last month, the Eleventh Circuit agreed that Hunter was erroneously sentenced, but denied his request for a certificate of appealability because “a sentencing error alone does not amount to a substantial showing of the denial of a constitutional right.” The miscarriage of justice in this decision for Mr. Hunter is maddening in and of itself.

However, there is an even more infuriating aspect to this decision. The Court notes at the end of this decision that Mr. Hunter can’t show ineffective assistance of counsel because his lawyers didn’t argue at sentencing or direct appeal that carrying a concealed weapon was not a violent felony under the ACCA. Most lawyers wouldn’t have done so. At the time of Mr. Hunter’s sentencing and direct appeal, binding case law held that carrying a concealed weapon was a violent felony.

The reason this is so galling is that Mr. Hunter’s lawyers, like many attorneys, presumably did not challenge this law because judges often get upset with lawyers for raising challenges that are contrary to established precedent. Judges think lawyers are being unprofessional when they raise such challenges. Down the road, though, when the law finally turns in the favor of defendants, they suffer the consequences. Had Mr. Hunter’s attorneys raised this argument at sentencing and on appeal, the outcome of this case would have been quite different.

Lawyers must not be afraid of upsetting trial judges by challenging bad law. We must be willing at the trial and appellate level to raise challenges that may fly in the face of existing precedent. The Hunter case reminds us yet again of why we fight with such resolve.

The opinion in the Hunter case can be found here.

The defendant was involved in the Enron mess. He was charged with conspiracy, mail and wire fraud, securities violations, insider trading and for laundering the money related to the insider trading. The jury found him not guilty of everything except the insider trading and money laundering, and on these charges, they were unable to reach a verdict. The prosecutors tried to crank up a new set of charges based on the areas where the jury did not reach a verdict. The defendant pointed to the Double Jeopardy protection which includes what we call “collateral estoppel”. This is the issue the Supreme Court will address in the case.

The collateral estoppel question is both a technical legal issue, along with being a common-sense concept that the average man or woman on the street can figure out (think “Joe the Plumber” gets prosecuted a second time when the first jury found him innocent on basically everything charged). Here’s the technical description. Under the rule of collateral estoppel, when a first jury necessarily decides a certain fact against a party, that same party is prevented (or what as we lawyers say, is “estopped”) from again trying to litigate that same fact at a later trial. However, what happens when a first jury rules for the defendant, but the jury for some reason is unable to reach a verdict on other charges that have the same basic factual underpinnings? Some of the federal courts say that the hung counts prevent the courts from being certain that the facts underlying the acquitted counts were necessarily found in the defendant’s favor. Other federal courts rule in the complete opposite direction: saying that it makes no sense to even consider the charges where the jury was unable to reach a verdict when deciding whether certain facts were necessarily found in the defendant’s favor. These inconsistent rulings were likely the major reason the Supreme Court agreed to take the case involving the Enron defendant.

As I said above, the question in this case is both highly technical, yet also something that non-lawyers can grasp. Most folks would understand that when you go through a trial and the jury finds you not guilty on basically everything, prosecutors should not get a second chance. Let’s hope that the Supreme Court remembers to apply the Constitution that most of us live under, and not the version wanted by some whining prosecutors who will do anything to get their way.

An article today explains that there currently an unprecedented number of investigations into the activities of sitting federal judges. One of these activities has ripened into a criminal case against the judge, while others are at the stage at which the judge could receive some sanctions.

Two of the open cases involve judges who are alleged to have engaged in possibly illegal or, at the least, highly questionable, acts related to sex. One of the judges supposedly went on a two-night binge at a topless club and used an escort service, and that judge alleges that his acts were “private and personal involving human frailties and foibles.” This is exactly the argument we make as criminal defense attorneys on a daily basis, and we, perhaps more than most people, appreciate that even the best and most accomplished of our fellow citizens can engage in some amazingly stupid behavior.

However, it is the second case involving a judge and sexual matters that might be the most disturbing. A very well-known and highly respected conservative appellate judge in California has admitted that his personal web site contained off color videos and photos, including two showing naked women dressed up (for some odd reason) as cows showing bare crotch close-ups. This judge defends his conduct by saying he believed the web site was not open to the general public. This is the same defense we often raise when representing people accused of simple possession of certain kinds of pornography: namely, that what an adult does with his or her computer is no business of the rest of the world.

Judges are people like the rest of us, with strengths and weaknesses. We can only hope that our clients receive the same treatment for their weaknesses when we represent them in front of the federal courts.

In our case, the couple were in the middle of a divorce. The husband moved out, but left behind several computers, one for personal use, and others that were apparently for his job. On the personal computer, the wife got her “friend” to hack into it. This is crucial, because when the police showed up, she told them that her husband used a password which previously prevented her from getting into certain parts of the computer. The police took the computers, and later found information that prosecutors want to use in the criminal case. We are in the middle of fighting over whether this was OK.

The general rule is that police can get “consent” from a person who has “common authority” over an area or item, and if the police then seize and search through such an area, their actions are lawful. The United States Court of Appeals for the Eleventh Circuit recently published an opinion on this exact issue. In that case, the Court of Appeals ruled that the police were justified in believing that a motel manager had the authority to allow for the search of a room even though the guest’s time had not yet run out. The reason the police should have believed that the manager had authority to consent to the search was because the guest had just been arrested on other charges and it was unlikely he would get out on bond before morning.

Our case is somewhat similar to a decision issued by the U.S. Supreme Court two years ago. That case involved a wife who gave the police permission to search, but the husband objected. The Supreme Court ruled that when a present occupant objects, the police cannot use the consent given to them by the other occupant to justify their entry and seizure of incriminating evidence.

In our case in Atlanta, we will be fighting over whether the wife’s statement that her husband had prevented her from getting into certain parts of the computer put the police on notice that she did not have authority to hand over that computer. As said previously, this issue is becoming more and more common, and could have an impact on other cases.

It has been a standard practice for many years for large companies to pay the defense fees for its high ranking employees. Many companies are regularly investigated, and operate in areas where the law is not always clear. Few people would agree to take high-ranking positions in such companies if they anticipated having to pay huge legal fees every time the company comes under scrutiny. As a result, most companies agree to indemnify the defense expenses for their employees. This is important in that getting qualified counsel is a very expensive proposition, especially when the investigation is far-flung and results in the defense attorney having to cull through millions of documents in order to properly advise his or her client.

About 7 years ago the Department of Justice (DOJ) began taking the position that companies which pay the legal fees for their employees are less deserving of a break when it came to resolving potential criminal charges. In 2004, the massive accounting firm KPMG was under investigation. The company then worked out its own deal through which no charges would be brought (although KPMG agreed to pay over $450 million in fines, etc.) but DOJ then indicted 13 employees.Under pressure from DOJ, the company restricted its usual practice of paying the legal fees for its employees under investigation who actually got indicted. The case was massive, and the attorneys for the defendants pointed out there was no way they could ever get paid unless the company adhered to its usual practice of indemnifying legal expenses.

The District Judge agreed with the defendants. He found that DOJ pressure was the reason the company changed its usual practice of paying legal fees. He determined that there was no way to put the clients back into their previous status, and that dismissing the indictment was the only remedy. The prosecutors appealed, and yesterday the Court of Appeals agreed that the dismissal was appropriate.

This case is based on the idea under the Sixth Amendment that a person is entitled to get the lawyer of his or her choosing in order to defend against criminal charges. When the government forces a company to change its usual practice of indemnifying for legal expenses, that is the same as government action that infringes on the constitutional right to counsel of one’s own choice.

The case out in Denver involved charges of fraud against some bankers. They were convicted, and on appeal both the defendants and the prosecutors argued that the trial judge made mistakes when imposing the sentences.

The main sentencing issue on appeal involved the question of “loss” under the Federal Sentencing Guidelines. I have written at length on the Guidelines in other posts. The “loss” calculation is especially tricky. The defendants in the Denver case, through their very able lawyers, made the rather sensical argument that what they got out of the crime is the same as the “loss.” Unfortunately, a lot of lawyers who do not get into federal court all that often mistakenly believe that this is the law. It is not. The concept of “loss” under the Sentencing Guidelines is far greater than what a person gets. It also covers “intended loss”, along with losses caused by other people who did the same thing.

The court in the Denver case sent it back for a new sentencing hearing. The defendants’ attorneys did a good job for their clients the first time. They will have a rougher road the second time around.

The recent decision by the Eleventh Circuit Court of Appeals here in Atlanta in the case of United States v. De la Mata is a perfect example of this principle. Many years ago, the feds prosecuted Mr. De La Mata and others, and got convictions and lengthy sentences. Significantly, some of the defendants included corporations owned and controlled by De La Mata and others. The prosecutors also wanted to forfeit assets owned by the people and by the corporations. However, and here’s the important part, the prosecutors tried to use a short cut, and got the individual defendants to agree to turn over a large quantity of assets. The prosecutors forgot that the corporations were separate entities. As a result, the order entered by the judge turned over assets owned by the corporations, without ever hearing from the corporations themselves.

Several years passed, and the corporations asked for a return of their property. The government refused, and the judge also would not give back the assets. The court of Appeals recently agreed with the corporations. The opinion notes how the prosecutors could not use the shortcut of an agreement with the individual defendants to get property owned by the corporations.

In many of our cases, we negotiate with prosecutors about assets they want to seize from our clients. This recent decision shows how important it is to do our homework in this area.

The Sixth Amendment to the United States Constitution includes one of our most cherished personal rights. This amendment says that “in all criminal prosecutions the accused shall enjoy the right…to have the assistance of counsel for his defense.” However, over the past two decades the courts have been slowly but surely chipping away at our personal freedoms, and the Sixth Amendment’s promise of “the right…to have the assistance of counsel” is one more casualty in this process. One way that the courts have been restricting this right is by ruling that the Sixth Amendment is “offense specific.” Another method for restricting this right is when the courts have ruled that the right to counsel only starts at the “initiation of adversary judicial criminal proceedings”, which means that if the police want to speak to you before a criminal prosecution has begun, they basically can do so even if you have a lawyer already. However, once a case has started, and you have a lawyer, the police or investigators cannot talk with the defendant, and if they do, any statements are generally inadmissible in court.

In a recent decision, the Eleventh Circuit continued the unfortunate trend of chopping away at the right to counsel. The defendant was arrested by state authorities and charged with possession of cocaine. He hired a lawyer, thereby asserting his Sixth Amendment right to have an attorney whenever some agents wanted to question him. After he hired his lawyer, some federal agents went to visit this defendant at the jail, and they got him to confess. Later, federal prosecutors brought a case for the same incident, but charged it slightly differently. In the federal case, the defendant’s lawyer argued that the statement to the federal agents was obtained in violation of his client’s Siixth Amendment right, in that the defendant had already hired an attorney for the charges at the point when the federal agents went to the state jail.

The Court of Appeals ruled that this questioning by the federal agents was permissible, and therefore, that the confession could be used as evidence. They got around the Sixth Amendment by relying on the “dual sovereignty” fiction. It goes like this: the United States is made up of a single national government along with 50 separate state governments. Each government (the national one and each state) is a separate “sovereign”, just like a king back in the Middle Ages. Therefore, just because a person has exercised his right to have a defense lawyer fight against one sovereign, that person needs to again say he wants a lawyer when other investigators come to talk with him about a case that will be brought by a different government.

Obviously, this is merely a charade to let the police get around people’s right to defend themselves with the help of a lawyer. Courts regularly help the police, but they dress this help up in flowery language supposedly based on an “interpretation” of our Constitution. The bottom line is that people suspected of a crime should generally only speak with their lawyer about the facts, and should remember that they have the right to have their attorney with them whenever they are confronted by the police or investigators.

Here is what happened. We have been representing a medical doctor for several years who was hauled off an airplane in Atlanta, and accused of making hoax statements about something in his luggage. Here is a web site created by his supporters that lays out some of what happened. Through numerous mistakes, airline and security personnel allowed the doctor to get on the wrong flight, and when the mistake was discovered, he was asked to leave. The doctor was understandably angry, and insisted that his bags be removed as well. Airline personnel refused, and he said that was a very bad idea. By virtue of his work, the doctor was trained about terrorism matters, and it was foolish to let his bags stay on theplane. He explained that for all the airline people knew, there COULD be something in his bag that COULD explode. He was arrested, and for the past two and one-half years Paul Kish has been trying to get this matter concluded.

The major problem with the case was that the government decided to try and use a brand new criminal statute, 18 U.S.C. section 1038. This law basically makes it a crime to make a false statement, which if true, would cause another person to think that an act of terrorism was about to take place. The law is way out there, an example of governmental overreaching after the horrible events of September 11, 2001.

We filed a whole bunch of challenges to the statute, pointing out that it was extremely vague, and arguing that the prosecution infringed on the doctor’s First Amendment right to say the obvious: namely, that it was a damn stupid idea to allow bags to remain on a flight when the passenger has been removed. This is a know terrorism tactic, to check baggage and then not take the flight. For over a year, we had a legal battle over the statute, and the first judge who looked at it almost, but not quite, agreed with us.

On the eve of trial, I met with the prosecutors who were in charge of the case. We convinced them to dismiss, in return for an agreement by the doctor to perform community service. This was no problem, in that the doctor is a very civic minded person anyway, and was glad to give back to his community. Today, I got the official word that the prosecutors concede that the doctor has done all he was obligated to do, and therefore the case is completely finished.

As I said above, this case shows the dangers of when new laws are handed down. There always is a danger that investigators and prosecutors will want to try it out, to see how far they can push it. The case also demonstrates that attorneys need to fight long and hard, but if they are facing reasonable prosecutors, they usually can convince everybody to do the right thing.

My law partner Carl and I recently represented a very good and honorable family man in a large mortgage fraud prosecution. Our client was one of the least involved people in the whole scheme. He had nothing to do with the actual fraudulent transactions with the lending institution. After we talked the case over for a long time, this man decided that the best option for himself and his family was to enter a guilty plea, even though we had some serious doubts as to whether a jury would find him guilty at a trial.

Anyone who has ever read this blog knows how I ramble on about the Sentencing Guidelines and the spate of decisions in the past 7 years from the Supreme Court. One part of the Guidelines allows for a judge to consider a lower sentence if a defendant cooperates in the investigation or prosecution of other people. However, this reduction for cooperation only can happen when the prosecutor asks for it, in what we call a “5K” motion or a “Rule 35” proceeding. Individual prosecutors need to get approval from their supervisors as to how much of a reduction they can request for a particular defendant. Most U.S. Attorney’s offices have groups of senior prosecutors who screen these 5K requests, supposedly to make sure that they are handled uniformly.

Here’s the weird part. The Sentencing Guidelines are based on a table, which sets out ranges of potential sentences. The higher the number (and the greater the criminal history), the higher the range. However, the table is not a straight arithmetic progression, which is a fancy way of saying that a difference of one level up at the top end of the Guidelines results is far greater than a one level change at the bottom end. For example, a much more involved defendant might be at offense level 30, and if he gets a 2 level reduction for cooperating, his Guideline range is reduced by almost two years. On the other hand, a client barely involved in a case (like our recent client) who is down at level 15, will also get a 2 level reduction for cooperating, but this results in a mere 6 month reduction in his sentencing range.

In our recent case, we argued strenuously that this was unfair, that our client should get an even better reduction, in return for his cooperation (he had testified at trial against some other people). We did get a significant reduction in other areas of the sentencing process, but this case highlights some of the truly weird and unfair aspects of sentencing in federal court.