As I have posted about previously, federal criminal cases are highly complex, and the “discovery” materials are often daunting for attorneys unaccustomed to handling such matters.  By law and based also on various rulings from the U.S. Supreme Court, prosecutors are only obligated to turn over certain types of evidence prior to trial.  However, with the explosion of data in the past several decades the practice is that many prosecutors turn over anything and everything that is remotely related to the case.  The result is that lawyers are often drowning in data as they try to piece together what happened and how to defend against the allegations.

One of the tricks when reviewing this glut of materials is to do a quick overview of what has been turned over.  Next, the attorney and his or her staff need to begin searching, using various software tools and other aspects of artificial intelligence.  Gone the days when the lawyer touches and reviews each and every piece of paper in the file, because that would take the rest of his or her life in cases such as one I am currently handling which has 15 terabytes of data (and we are still many months away from trial)!  Another key is to try and figure out how the other side is handling the case and sort of replicate their tracks through the maw of material.

The bottom line is that experience makes the process go much more smoothly.  Anyone facing such a case should have an in-depth with his or her attorney as the lawyer plows through all of this material in order to make sure that the client’s story will be brought out at trial.

OK, enough musing, back to going through all this stuff!

Federal crimes are all created by “statute”, meaning laws passed by Congress.  There is no “common law” of federal crimes, which means that virtually all indictments are based on language in a particular statute.  So, the obvious beginning point is to compare the statute’s  language with the words found in the indictment.  Seems clear, right, but I am reminded of several cases over the years where none of the lawyers (on either side) noticed that there was a disconnect between the statutory language and the words in the indictment.

Second, the lawyer needs to figure out what are called the “elements” of the crime.  These are the specific things that the prosecutor will need to prove beyond a reasonable doubt in order to obtain a conviction.   Many statutes contain multiple individual crimes inside this one law, so the attentive attorney needs to drill down to the specific words from the statute that match up with the specific crime alleged in the indictment.  This is often harder than one might imagine, for Congress often writes laws in less-than-specific ways so as to allow for broader application.   One kind of easy way to find the “elements” of a specific crime in a statute is to look for the standard jury instructions that most federal appellate courts  publish.  Some crimes are often used, so the courts have helpfully created jury instructions that set out the basic elements of these “common” federal crimes.  For example, the jury instructions used in the United States Court of Appeals for the Eleventh Ciruct, a few blocks from my office, are here.

Next, the sagacious lawyer will think through whether this particular statute and crime matches up with constitutional principles.  For example, it is well-known that the First Amendment bans many restrictions on free speech.  Does the particular law in question unduly burden the Defendant’s First Amendment rights, or any other constitutional protection.  Federal statutes are often challenged, those challenges rarely succeed, but reading earlier attacks can sometimes highlight some of the law’s weaknesses.

There are also some things the lawyer should NOT do when challenging a federal indictment that alleges a crime.  The caselaw is clear, the attorney cannot challenge the facts prior to a trial.  Believe me, I’ve tried, and failed.  You cannot argue that your client is innocent at the phase of the case where the attorney is filing Pretrial Motions.  The lawyer is not permitted to call witnesses or submit evidence to support a Pretrial Motion that challenges an indictment, for the most part.  Instead, at the Pretrial Motion phase of the case, courts presume that the facts alleged are accurate and true, so the only question is whether those facts properly set out a crime, or whether the crime itself violates some aspect of the United States Constitution.

So, with all of these principles in mind, it’s time for Yours Truly to get back to working on the present cases to see if these indictments can be challenged.

The first matter is a recent article that discusses the Supreme Court case from a month or so ago in which all nine justices agreed that the Constitutional protections against “excessive fines” means that there needs to be some proportion between the crime and the property seized by the police even if the case is in the state court system.  That was the now-famous Timbs case in which the police took a $40,000 Range Rover that Mr. Timbs had bought with the proceeds from his parent’s estate.  The State of Indiana decided to seize the vehicle through the forfeiture process simply because Mr. Timbs foolishly had a relatively small amount of drugs in his possession when he was stopped.  The article points out how the case merely means that the constitutional protection against an excessive seizure applies to all the States.  The Timbs decision did not says what is, or what is not, excessive.  The article points out that question that will be left to future rulings.  The author quotes lawyers on both sides, prosecutors and defense counsel.  A prosecutor who was quoted claimed that she gave up on seizing some property because the value of the seized item was so small that it did not justify the amount of work she was going to have to put into the forfeiture process.  As a result, she supposedly let the defense attorney get the property back for his client.   Apparently, fairness, justice and equity do not matter all that much to this prosecutor, for she is simply worried about how many hours she works.The comment from the prosecutor led to my second thought regarding forfeitures: “smaller” forfeitures are often not worth fighting against from the property owner’s perspective.  Here is how this plays out in the real world.  Forfeiture begins when some law enforcement officer decides to “seize” property because there is reason to believe that property was used in, part of or purchased with the proceeds of a crime.  Other times, property or money is taken as a “substitute asset” in place of the property that was directly connected to a crime.  The owner can then fight against the forfeiture, but that costs money.  Some lawyers charge by the hour, others take on forfeiture matters on a contingency basis, meaning they get paid a percentage of any recovery.  In either situation, it will often be difficult to justify paying legal fees to fight against the seizure of property valued at less than$25,000.  The lawyer’s fees will eat up a significant part of any recovery, so as a result, many clients simply let the government keep the property, even if there was no justification at all for the seizure in the first place!

Finally, these recent developments showing that forfeitures cannot be “excessive” led me to thinking about other times that people simply give up and let the police take their property.  The property owner is sometimes, but not always, investigated for or charged with a crime that is connected to the seized property. If so, most criminal defense attorneys tell their clients that fighting against the forfeiture can be dangerous when there is a possible or ongoing criminal case.  Every situation is different, but some prosecutors are able to use the lawyer’s arguments or the Defendant’s words in the forfeiture case against the Defendant in the parallel criminal matter.  As a result, I sometimes advise my client to let the property go and worry about the criminal case.

The recent Timbs case and publicity has made me think more about ways to protect my clients from forfeitures.  I hope that the lawyers likewise have rekindled their urge to fight against these seizures.

However, I have another matter where we convinced the government that they should not seek criminal charges against my clients, we worked out a civil settlement in which my clients agreed to pay money but did not agree they did anything wrong, and the prosecutors just issued a lengthy and over-the-top press release announcing the civil settlement.  My clients and I are trying to decide whether to make a public statement in light of this press release.

I have written previously on how the modern “press” often avoids its responsibility in such matters by simply repeating whatever press release is issued by law enforcement agencies and prosecutors offices.  Old-fashioned journalists used to try and get both sides of a story prior to publication, and a few of those reporters still exist.  However, in modern times that is becoming more and more rare.

Lawyers need to also consider the old “let sleeping dogs lie” principle when counseling their clients on whether to “go public” in the face of a government press release.  Sometimes, there is so much “news” that reporters simply do not write a story about each and every governmental press release.   The always-gabby lawyer who fires off a statement when no reporter intended to write a story seems to be doing a disservice to his or her client in this context.  The judgment call is whether to be proactive, or to ride out the storm.

I get calls and messages on a regular basis from family members who, years later, want me to challenge the conviction or sentence imposed on a person serving a lengthy prison sentence.  This is often very difficult, because the court systems have erected rules over the years that make it increasingly difficult to bring such challenges.  First, most courts now have time limits that severely limit when such challenges can be raised.  Furthermore, even if we get the challenge into court within these timelines, we then have the problem that previous lawyers on the case might not have raised or preserved the best issues.  If the better claims were not properly preserved by the earlier lawyers on the case, the prosecutors will respond to my efforts with all kinds of rules for kicking such issues out, rules called “waiver”, “default” and the always-difficult “harmless error” principle.

Handling an appeal or post-conviction matter can get even more complex when the underlying crime or trial got some publicity.  In my experience, most judges who are reviewing such appellate or post-conviction matters do not really care all that much if the crime got a lot of press coverage.  Nevertheless, prosecutors often argue that it will be a “travesty of justice” if this highly publicized conviction is overturned.  This dynamic is an extra hurdle I need to confront when someone asks me to take on a case that got lots of publicity in the early stages.

I will likely post more on this particular federal appellate case in the upcoming weeks, for it contains many of the recurring issues that come up in criminal appeals and post-conviction matters.  This particular appeal was a real challenge, with lots of the usual procedural bars and hurdles raised by prosecutors.  It also was a challenge because earlier lawyers kind of limited my arguments by virtue of the issues they raised earlier in the appellate process.  The case is also a good example of how difficult it is to reduce and simplify a case for the judges who must make a decision many years after a crime and a trial.   And, finally, the court granted oral argument, and I want to talk a bit about this aspect of lawyering, which is often the career highlight for many lawyers.

The case that my friends defended was one of the increasingly complicated federal white collar criminal matters that I handle on a regular basis.  As I’ve discussed other places, white collar matters involve not only complex business transactions, the law and the evidence is often exceedingly dense.  In many such cases, emails are often the most damaging evidence. An email (or text) is a less formal manner of communicating,  and people often are far less careful in these electronic messages than they otherwise would be if they were writing a formal letter or document.  Many times, we all respond to an email or text late at night before going to bed, and perhaps don’t think about how the message will appear to someone else who is not so tired.  Not only do electronic communications often provide an unfiltered view into how someone is approaching a transaction, the messages are located all over the place, and number in the hundreds of thousands in a complex business deal.  Wading through all this is a chore, but it has to be done.  My friends who told me about their recent victory did the hard work, plowing through the tens of thousands of messages, identifying those that could be damaging, and locating the materials to be used when cross-examining government witnesses.  Good results always are preceded by lots of hard work.

Another thing that my lawyer friends talked about was the effort to streamline and simplify the defense so that the jury could more easily understand the case and the reasons why there was reasonable doubt as to their client’s guilt or innocence.  They kept reminding themselves about the “themes” of the case, and the need to repeat and reiterate these themes with each and every witness if possible.  In the end, the goal is to make the defense themes easily understood and recalled, the themes must be based on the evidence, and the themes must be part of the case from beginning to the end.

My lawyer buddies also talked about how their client trusted them and their judgment.  This is crucial, for a winning strategy requires that the lawyer sometimes uses a tactic that might seem dangerous to the client.  The attorney needs to work hard to assure that the client understands the need for this potentially dangerous move. Other clients want to bring up every conceivable defense argument, and fail to appreciate that the jury only is looking at the big picture.  In cases involving a client such as this, the attorney must work very hard to understand whether the client’s inclination is right, and if not, to explain why less is often better than more.  From time to time, all lawyers have a client who is the kind of person who micromanages situations.  The key for each type of client is for the attorney to diligently explain to the client why a certain defense tactic is the right way to go, so that the client fully understands and trusts what the attorneys are doing.  In the end, client trust in the attorney’s judgment is crucial to winning a case.

My conversation with these other lawyers reminded me of lessons I have learned over the years when looking back at a case that resulted in a not guilty verdict.  One lesson I have gleaned from 35 years of defending criminal cases is that just about every defense win is an incremental process.  The “win” rarely comes from a single line of questioning or defense exhibit or closing argument.  Instead, a “win” is the sum of a series of small victories.  My friends had the same series of incremental advances, resulting in their client going back to his life without this hanging over his head. I love my work, and it was great to hear from other people who do also, and whose hard work was rewarded.

OK, here’s the first point, and it is painful.  Lawyers are expensive.  Lawyers who specialize in federal criminal defense are very expensive.  And, lawyers who are among the best at handling federal criminal cases are sometimes extraordinarily expensive.   There are several reasons why really good criminal defense lawyers handling federal cases are so expensive.  I’ll talk about that in a minute.  However, just because the top federal criminal defenders usually charge a lot of money, that does not mean a good defense is too expensive for most people.

For starters, there is the nationwide system funded by the Criminal Justice Act, or “CJA”.  Under the CJA, there is a “public defender” in every federal judicial district.  Furthermore, qualified private lawyers handle overflow work and cases where the public defender might have a conflict of interest.  The vast majority of federal public defenders and CJA private counsel are capable lawyers, and a few are very good.  Therefore,  if someone is “indigent”, it is possible to have the court appoint a “free” lawyer, and these attorneys are often better than some attorney who says he or she will take a federal case for far less than the fees most attorneys are charging.  People should be wary and suspicious of an attorney who says she or he can handle a federal criminal case for less than $10,000 (most cases are far, far more expensive than this amount).  These matters are usually so complex that the lawyer who charges such a fee will have a very big incentive to not work hard and to try and convince the client to plead guilty without every assessing the merits of the case.

Also, most good federal criminal defense lawyers look at each case separately.  Just because we charge large fees, that does not mean we automatically reject a client who has fewer resources.  If someone comes to me with a very good and interesting case, but less money than what I generally charge, I will try to be creative to see if we can come to an agreement concerning fees.  I need to make sure that my firm gets paid enough to make it worthwhile, but at the same time I will try to work with the client and his or her family to see if we have other options to let them hire my firm.  I am running a business, and always need to assure that the staff is paid, that our rent and other expenses are handled, and when all that is taken care of, that I am fairly compensated.  But that does not mean we reject every person who might not be as well-off as the next client.

Many people ask, do we charge by the case, or by the time we put into the case.  The answer is, “it depends.”  I’ve been doing this for over 35 years, so by now I have a fairly good understanding of how much work a certain type of case might require.  If the client has not yet been charged, and is merely being investigated, I will often ask for a retainer and bill against that for my time and out-of-pocket expenses.  Some portion of the retainer might be non-refundable, for several reasons.  To begin with, when I take a case in the early phases of an investigation, that means I am usually conflicted from representing anyone else who is caught up in the matter.  I need to take that into account when someone hires me before they are indicted, because it means I likely have to turn away other business down the road.  Furthermore,  I only take on a limited number of clients, so when I accept one person’s case that work prevents me from working on other new cases.  That is another reason why a part of the initial retainer is sometimes non-refundable.

Other times, we charge a “flat fee.”  This type of fee is usually involved when a client has been indicted and is facing a full-blown criminal case.  There are are at least five reasons why the flat fee is often better for the client and for the lawyer.

First,  I need to take into account the fact that I have to notify the court, through a document called a “Notice of Appearance” (or “NOA”) that I am the attorney for that Defendant.  Every court is different, but some courts take the position that filing the NOA means that the lawyer is in the case from the beginning to the end, even if the lawyer does not get paid the fee he or she anticipated getting.  As a result, I need to figure out in advance how much time (and money) a case will require, if the matter drags on for many months and years prior to trial and possibly a sentencing hearing.

Second, I rely on my experience when setting the fee.  I have a good idea as to how much work will be involved.  I need to account for the fact that after I ask the client to pay a large flat fee, I often will be working for months, and sometimes years, on that same case.

Third, cases have become extremely complex, both legally and factually.  Most cases now involve huge quantities of  information, and new types of software and data arise every month that we need to learn and use.  My staff and I need to hire outside help many times, from computer experts to forensic accountants.  We often use professional investigators.  The complexity and these expenses are taken into account when we figure out the flat fee for a federal criminal case.

Fourth, sometime the flat fee is easier for both me and my client emotionally.  Both sides of the equation want to get the fee out of the way. I much prefer working on my client’s case as opposed to making sure that our bill is paid each month.  Similarly, many clients feel better knowing exactly what he or she will have to pay, and can then take care of other portions of their financial lives.  The certainty is often a very beneficial aspect for all of us as we go through the stresses of defending a federal criminal case.

Finally, the flat fee takes into account my experience and level of accomplishment.  I’ve been doing this for over 35 years.  I’ve won more than my share of cases.  I am well-known in my field.  I am asked to teach other attorneys.  The bottom line is that I am good at what I do, and I charge for that.

Good lawyers cost a lot.  People should be sure that they are very clear about the type of arrangement and the amount of fees to be charged before they hire an attorney to work on defending a federal criminal case.

For starters, everybody is entitled to a trial on criminal charges, it says so right in the Sixth Amendment.  However, the almost unmatched power of federal prosecutors brought about by various statutes enacted by Congress, along with the draconian Sentencing Guidelines, means that even innocent people are now pleading guilty.  The report sets out what I already know, those who plead guilty get far less punishment.  The report notes two seemingly equal Defendants, one who “flipped” and cooperated against the other who went to trial.  You guessed it, the flipper gets a couple of years, the Defendant who had the gall to assert his Constitutional right to trial got 45 years! My own recent experience is the same, my client got ten years while the far more culpable co-Defendant who pled guilty and testified got a mere 24 months!

The NACDL report concluded that guilty pleas have replaced trials because anyone who exercises his or her right to take the case to a jury is facing “exponentially higher sentences.” Defense lawyers and prosecutors now spend most of their time “negotiating”.  Judges rarely preside over trials, and therefore have no or very little experience when such a case comes before them.  However, when just about every case ends after a long negotiation instead of a public trial, we all lose.  The public no longer sees the facts of a case.  Prosecutors no longer have to prove their allegations beyond a reasonable doubt.  And, most importantly, some clearly innocent people will “take a plea” instead of taking the chance that their life will be ruined by an excessively long sentence.  Like the Endangered Species Act, we need a new law to prevent the extinction of the right to trial.

Many people who do this kind of work find themselves representing clients who look at the criminal case differently than their own lawyer.  Such differences of opinion lead to the interesting constitutional question of who is in charge of the defense, and what decisions are reserved for the lawyer and which ones are exclusively reserved for the client.  The United States Supreme Court recently issued the opinion in McCoy v. Louisiana, which partly answers a few of these questions.   This decision reminds lawyers that our Constitution means that a criminal Defendant possesses the fundamental right to make decisions about his defense and prevents a defense lawyer from going against his client’s instructions.  This rule holds true even  when the attorney’s  strategy seems to be right on the money.

Robert McCoy was charged with killing his estranged wife’s son, mother and stepfather.  Prosecutors decided to ask for the death penalty.  Mr. McCoy told his defense lawyer that he was innocent and the the local police were framing him because he had revealed the cops were all drug dealers, which sounds a bit far-fetched.  The lawyer, who from all accounts sounds to be an accomplished attorney, looked at the case differently.  The attorney believed the case against the client was “overwhelming”.  A common defense tactic in death penalty defense is to see if the prosecutors will “take death off the table” if the client will plead guilty.  That did not work, and with the trial approaching, the defense lawyer planned on telling the jury that McCoy killed the victims,  hoping that this tactic would convince the jury to sentence McCoy to life in prison, rather than death. The client, McCoy, was furious, but the lawyer did as planned, telling the jury that McCoy was “crazy” and “lives in a fantasy world.” The strategy failed, and the jury found McCoy guilty and sentenced him to death

During the post-conviction process,  Mr. McCoy’s new lawyers claimed that the trial lawyer violated the client’s rights during trial by not following McCoy’s explicit instructions.  The argument won the day in the U.S. Supreme Court, in a decision written by Justice Ruth Bader Ginsburg

According to the majority opinion,  when a Defendant is represented by an attorney, he does not give up all control over his case to the lawyer. The lawyer gets to handle “trial management”, tasks such as deciding what evidence to object to and what arguments to make.  On the other hand, certain decisions are reserved solely for the accused, such as whether to plead guilty or to waive a jury trial.  Justice Ginsburg’s opinion says that the decision to maintain one’s innocence falls within the category of decisions reserved solely for the Defendant.  If the clients says “I did not do it”,  the attorney must follow that instruction and cannot “override it by conceding guilt.”

There is another important part of this ruling, and it deals with what happens when a higher court finds an “error” in a criminal case.  Most of the time, mistakes (or “errors” as we call them) are measured against the harm caused by that same error.  If the error made little impact, the Defendant does not get a new trial.  On the other hand, if the error was harmful, then the Defendant wins and gets some relief.  Over the years, the Supreme Court has carved out some mistakes that are so crucial that appellate courts do not need to even go through with this weighing process.  These are called “structural errors.”  Justice Ginsburg’s opinion says that when the client insisted that the lawyer maintain the Defendant was innocent, the lawyer’s strategy of conceding guilt blocked McCoy’s “right to make the fundamental choices about his own defense.” Her opinion went own to note that “the effects of the admission would be immeasurable, because a jury would almost certainly be swayed by a lawyer’s concession of his client’s guilt.”  As a result, this was a called a structural error, meaning the client gets a new trial, without having to show that he was harmed by the lawyer’s strategy.

This opinion is a good reminder for lawyers that cases are about the clients, not about the attorney and his or her feelings or opinions.  I urge other criminal defense lawyers to read this so that we all remember that our clients are in control of the crucial aspects of their cases.

Westby is a bit more interesting, and salacious, than my aborted party that one Saturday eons ago.  First, there was someone named either “Peaches” or “Tasty” identified by some of the partiers as the person who told them about the shindig.  Also, when the cops arrived, some of the women were selling lap dances, some had money hanging out from their undergarments, and most shockingly, the officers smelled marijuana.  

Putting to the side that parties (the good ones anyway) get interrupted all the time when someone calls the police, the bigger issue is the extent of the Fourth Amendment’s probable cause requirement in similar circumstances. The police officers argue that the question is whether, in light of all the facts, the officers could have reasonably believed that the partygoers were trespassing. The police point out that the party was in an apparently vacant house, it was nighttime, when they entered they observed the scantily clothed women who were seemingly removing their garments in exchange for currency, everybody scattered like cockroaches when the cops arrived, there were marijuana smells everywhere, and the homeowner told police that they didn’t have permission to be there. The District of Columbia says that officers should not be required to determine exactly what a suspect knows before arresting him, for just about everybody professes innocence. The government and the officers say that if the lower court rulings are allowed to stand, it will “have a broad chilling effect on law enforcement officers when making on-the-scene credibility judgments, adversely affecting their everyday ability to do their jobs and protect the public.”

I rather doubt the the partygoers will win, for the Court tends to protect officers who are on the scene and need to make split-second decisions.  However, the right to be free from an unreasonable arrest is substantial, and the next time, it could be one of the Justices getting down on a Saturday night when the law comes busting in.  I just hope Peaches is OK.

I will do a series of posts about the new cases.  These subsequent posts will give more detail and some of the juicier aspects of the case to show that these are not just dry legal disputes, but instead involve real people and lawyers fighting for our rights.  But today, I’ll just do brief reviews of the 3 big criminal justice cases announced today that will be on the Supreme Court’s plate this upcoming Term.

Two of the cases involve automobiles and the Fourth Amendment.  In Byrd v. United States, the question is whether society should recognize an “expectation of privacy” for the driver of a rental car who has the renter’s permission to use the vehicle, but who is not listed as a driver on the rental agreement.  With no such “expectation”, the driver cannot fight back against any police search of the car, but one who has such an “expectation” at least has a fighting chance if he or she can prove that the searching official engaged in a search found to be unreasonable under the Fourth Amendment. The second “car case” really involves a motorcycle. Police officers entered private property, approached the house, and pulled up the tarp covering a motorcycle, discovering from the vehicle ID number that it was listed as being stolen. Collins v. Virginia concerns the question of whether the “automobile exception” to the Fourth Amendment allows the police to engage in such a warrantless search.

Another case involving constitutional rights arises in the context of a civil lawsuit, but the civil case arose out of an aborted criminal prosecution.  A police officer named Vogt was compelled to make statements about a knife in his possession, and those statements were then used in the preliminary hearing of a criminal case.  The criminal charges were dismissed, and by-then former-Officer Vogt brought a civil lawsuit against the city and his supervisors who compelled him to make the statements.  Our wonderful Fifth Amendment tells us that “no person…shall be compelled in any criminal case to be a witness against himself.”  The Supreme Court took this case for review to answer the question of whether the Fifth Amendment applies not only when a prosecutor uses a compelled statement at a criminal trial, but also to the prosecution’s use of such statements in pretrial proceedings, including probable cause of preliminary hearings.  That case is City of Hays, Kansas v. Vogt.

We do lots of appeals here at Kish & Lietz, so we keep up on this type of material.  There are other criminal cases on the Supreme Court’s docket, those that were accepted for review late in the previous Term.  We will also take a look at those and some of the issues we are facing in our own matters where we have taken appeals.  Stay tuned!

First, the “harmless error” rule. For a long time, courts reversed criminal cases whenever the trial judge made an error or mistake, such as allowing a prosecutor to use inadmissible evidence, or failing to properly instruct the jury on the elements of a crime. About 50 years ago the courts began using a rule that looks to whether the error or mistake “harmed” the Defendant, or if the mistake was just a “technicality” and had no impact on the overall result. If the trial judge made a mistake, under the harmless error analysis the court of appeals then looks to whether the error contributed to the jury’s verdict. The beneficiary of the error (meaning the prosecutors in criminal cases) had the burden on appeal to show beyond a reasonable doubt that the error did not contribute to the conviction. So far, so good.

Over the years, the United States Supreme Court carved out some exceptions to the harmless error doctrine. There are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless. They call these kinds of errors “structural defects” in the process. One such structural defect is the total deprivation of counsel, another is the right to be tried before an unbiased judge. Other structural rights that get around the harmless error rule are violations of: the right of self-representation, the right to a public trial and the right to have the jury instructed on the theory or proof beyond a reasonable doubt. For all these errors, the weighing and balancing from the harmless error test is not used and the lawyer generally gets an automatic reversal for his or her client.

Now we come to the recent Eleventh Circuit decision. It was decided by what we lawyers call the “en banc” court, meaning that after an initial set of 3 judges took a whack at the case all 11 decided to hear it together. The case itself is a horrible child pornography/exploitation trial from South Florida. For some reason, the records from the case indicate that the Defendant’s lawyer was not in the courtroom for one of the 13 witnesses, and returned after missing 7 questions. At first glance, this seems like the “total deprivation of counsel” that gets around the weighing and balancing of the error against the harm. However, the majority of the Judges carved out an exception to the exception, meaning they applied the harmless error doctrine to a structural defect in the process. In essence, the majority says that even when counsel is completely out of the situation, the harmless error rule will apply if the evidence introduced during counsel’s absence is not “inculpatory”, or damaging.

This is a big deal in the world of criminal appeals. Many judges wrote concurring or dissenting opinions, a total of 281 pages for the entire case. It is also a big deal because I can anticipate prosecutors now citing to this case as a reason to expand the harmless error doctrine even further, thus preventing us from helping our clients on appeal. We will keep a close eye on the case to see if the Supreme Court weighs in on the subject.

Not everyone recognizes the differences between how federal criminal cases are brought and the system used in most state court systems.  In the state systems, investigators bring their work to an Assistant District Attorney.  For the most part, these assistant DA’s cannot refuse a case that the police bring to them.  In federal court, on the other hand, the Assistant United States Attorney (or “AUSA”) has broad discretion to accept or reject just about anything brought to him or her by one of the federal investigative agencies.  This greater discretion means that federal prosecutors usually weed out, and reject, the weakest criminal cases.  Because AUSA’s have greater discretion to turn down less strong cases, they end up winning far more of the matters that they do take on.  

The Department of Justice (or “DOJ”) has a Manual that is more or less the Bible for federal prosecutors.  The main policy statement (section 9.27.220) on when an AUSA should accept a case for federal prosecution says the following: “The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, that the admissible evidence will probably be sufficient to obtain and sustain a conviction, and that a substantial federal interest would be served by the prosecution, unless, in his/her judgment, prosecution should be declined because:: The person is subject to effective prosecution in another jurisdiction; or There exists an adequate non-criminal alternative to prosecution.”  In other words, when a federal prosecutor believes he or she has enough “admissible evidence…to obtain and sustain a conviction”, then that federal prosecutor can move forward with an indictment and seek a conviction.

My friends and family sometimes ask why we are occasionally able to get federal prosecutors to drop all charges even after an indictment, and once in a while even in the final weeks leading up to a trial.  After all, didn’t the prosecutor already have enough evidence to “obtain and sustain a conviction?”  If they had sufficient evidence to indict the client, then why are they now willing to drop all the charges?  What we often find is that that prosecutor loses faith in his or her case, perhaps because their witnesses change their stories, sometimes because the AUSA learns new information about its own witnesses, or other times when we on the defense side reveal exculpatory information about which the government was not previously aware.

On occasion, I hear lawyers (and others) says something like “the AUSA did the right thing” in dismissing a case.  I try to not be a cynic, but in my 34 years experience the ONLY reason a federal prosecutor drops a case is because of the fear of losing.  They have so much discretion, and win so often, that the prospect of losing is an AUSA’s greatest nightmare.  We are fairly certain that is what happened in the recent cases where all charges were dropped against our clients.  We had very strong defenses (as I mentioned, we each believed in our clients’ innocence), and each prosecutor realized they were in for a real battle if the matters ended up in trial.   They simply had doubts about whether they would win.

We are always grateful when a prosecutor decides to drop charges.  However, we are also mindful of the toll on our clients.  The client was charged with a federal crime, had their name in public, and faced the prospect of going to jail.  We are glad to get a good result, but also recognize it came with a cost to the person we represented.

Those of us who regularly practice criminal law in the federal court system generally refer to this statute as “924(c)”.  The history of the law is interesting, and somewhat relevant to current public debates.  In 1968, violent crime rates were rising, reaching a peak in the early 1990’s, after which they have dropped significantly.  The FBI numbers can be found on their database.

With crimes rates on the rise, Congress in 1968 added this law with the obvious idea of both trying to heavily punish and possibly deter people who feel it is a good idea to bring a gun to a crime.  Under 924(c), anyone who uses or carries or possesses a firearm (or explosive device) as part of a violent crime faces mandatory prison time.  This mandatory prison sentence has to follow, or in the words we use in federal court, must be “consecutive” to, any penalty for the underlying crime.  Furthermore, if the Defendant did more than one violent crime, and had a gun each time, the penalties get multiplied (the first is 5 the second is 25 on top of the first 5, you get the idea).  It is not unheard of for the 924(c) component of a federal sentence to be 5-30 years or more, before the judge even gets around to figuring out the penalty for the crime the gun was used in.

Not only does the law have severe penalties, it also is exceedingly difficult to read and understand.  As noted before, the Supreme Court has waded into the thicket of the language over a dozen times, trying to figure out the meaning of ambiguous phrases like “use or carry” or “during and in relation to.”  The Justices have realized over the years that the 924(c) statute gives a huge advantage to prosecutors who can bring (or threaten to bring) charges under this statute against a Defendant to make him and his lawyer knuckle under and plead guilty (or more likely, to rat on somebody else involved).

The latest incarnation of the Supreme Court’s infatuation with 924(c) deals with what information the sentencing judge can consider when deciding the appropriate sentence for the underlying crime.  Ever since 2005, judges have had the ability to “vary” from the Sentencing Guidelines that apply to this underlying crime.  However, a case from the Eighth Circuit (the federal appeals court that covers all federal cases in Iowa) says that a judge cannot think about how much time the Defendant will automatically receive under 924(c) when the judge is deciding what kind of sentence the person should get for the underlying crime. In the Dean case, the Defendant and his even-more foolish brother used guns to rob drug dealers and then “jack” a vehicle, yielding 35 years worth of 924(c) time in prison.  The Judge thought that was plenty for the brother who was basically along for the ride, and the Judge said he would have given only a single day in prison for the underlying crimes but for previous Eighth Circuit case.  As mentioned above, arguments will take place February 28, stay tuned for the last example of the Court’s fascination with this statute.

Mr. Green has had some previous problems with law enforcement, and his problems got worse when he was charged with new crimes.  He got out on bail, but only with the condition that he wear a GPS-monitored ankle bracelet.  He apparently removed the ankle monitor, so the police went looking for him at a woman’s residence where they figured to find him.  Once inside the master bedroom, the police saw a large jacket (and the woman was not that size), men’s shoes on the floor, and most importantly, a firearm and ammunition scattered around. They subsequently discovered the unlucky Mr. Green hiding nearby in the closet. The feds charged him with being a previously (12 times!) convicted felon in possession of a firearm, and he went to trial represented by a very capable Federal Public Defender.

The Public Defender realized that he had something to work with in that no one ever saw Mr. Green with the gun, even if his presence under the laundry was kind of suspicious.  As a result, the prosecutors wanted to amp up their case, and they resorted to a tried-and-true method in federal court, introducing a “prior bad act” pursuant to Rule 404(b) from the Federal Rules of Evidence.   This “prior bad act” was a ten year old conviction under Florida state law for possession of a firearm by a convicted felon.  However, here’s where it got interesting, the prior Florida conviction was only obtained through a “nolo” plea.  In other words, back in 2006 Mr. Green did not admit he had a gun, he simply agreed to not contest the allegation that he had the firearm on that earlier occasion.  The prosecutors apparently had no witnesses to the 2006 incident, so they simply wanted to introduce the judgment, which is the paper setting out that Mr. Green was convicted of the felon-in-possession charge in 2006, with nothing more about the facts of that incident.

There are  three requirements for admitting a prior bad act under Rule 404(b), one of which is that the prosecutor needs to show that the prior bad act actually happened.  Mr. Green’s Public Defender pointed out that two other aspects of the Federal Rules of Evidence (Rules 410 and 803(22)(A)) restrict the use of previous “nolo” pleas in various contexts, and that this same principle should prevent a prosecutor from using a “nolo” plea when trying to prove a prior bad act really took place pursuant to Rule 404(b).  The Court of Appeals hemmed and hawed for many pages, finally agreeing that a prosecutor cannot be permitted to prove the facts of a prior bad act under Rule 404(b) simply by admitting a copy of the judgment obtained after a “nolo” plea.    However, as they do so many times, the appellate court said the error was “harmless”, so unlucky Mr. Green will serve the next 22 years in custody.  I applaud his legal team for their creativity and persistence, and figure they have a better than average chance of getting the U.S. Supreme Court to accept the matter for review.

Johnny Overstreet apparently was no angel.  A jury found him guilty for a series of crimes arising out of robberies at five fast food establishments.  For each incident, he was also found guilty of kidnapping store employees.  Prosecutors successfully argued that Overstreet kidnapped the store managers by forcing them to walk back to a safe or office, and then return to the front of the establishment. At the time of Overstreet’s trial, Georgia’s kidnapping law required  even a “slight movement” of a victim in order to comply with the “asportation” aspect of this crime.   However, the following year, well before Overstreet appealed his own convictions, the Georgia Supreme Court reversed this “slight movement” test.  Under the new test, movement of a victim that is “part and parcel” of an independent crime, such as armed robbery, would generally not be considered asportation.  Even more importantly, two later cases with facts almost identical to Overstreet’s trial reversed kidnapping convictions based on the Georgia Supreme court’s new rule.

Here is where the problem arose.  The lawyer handling Overstreet’s appeal filed his legal papers 15 months after the new test for asportation had been announced by the Georgia Supreme Court, and several months after the other cases with identical facts had resulted in reversals.  The lawyer never mentioned asportation, the new cases, or any attack on the kidnapping convictions at all other than to say that the evidence was insufficient.  Not surprisingly, the state appeals courts did not look at nor reverse the kidnapping  convictions.

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

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

The issue in Bailey stems from a prior ruling issued thirty-one years ago, Michigan v. Summers. In that case, the Supreme Court decided that officers executing a search warrant for contraband may detain the occupants of the premises while the search is conducted. However, over the past three decades, there has been a big conflict among federal courts of appeals and state courts of last resort about whether the rule of Summers permits detaining individual who has left the immediate vicinity of the premises before the warrant is executed.

So, the Court yesterday cleared up the conflict in the case of Chunon Bailey. The police had a search warrant for an apartment. While staking it out before executing the warrant, and officers noticed two men leaving the apartment. They followed Mr. Bailey from the apartment to be searched and detained him 0.7 miles away. During the detention, the officers discovered a key to the apartment on Bailey’s person, and he made incriminating statements that linked him to the apartment. The cops then haul everybody back to the apartment, where the search was in progress. In the course of the search, law enforcement located guns and drugs, and Mr. Bailey was later charged with various federal offenses. The federal district court denied Bailey’s motion to suppress the fruits of his detention, and the key was the main evidence used at trial to support the prosecution’s theory that Bailey owned the guns and drugs in the apartment. It must have been a close case, for the docket shows the jury deliberated over the course of three days. However, Bailey was convicted, and based on his extensive prior record, got a 30-year sentence. On appeal he again argued that the police violated the Fourth Amendment when they stopped him many blocks away from the apartment. The Court of Appeals sided with the Government.

In reversing the court of appeals, the Supreme Court held that the rule in Summers is limited to the immediate vicinity of the premises to be searched and does not apply here, where Bailey was stopped almost a mile away. The Summers rule permits officers to detain occupants even when there is no particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers. Detention is permitted because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial. Here, however, Bailey left the apartment before the search began and was detained nearly a mile away. None of the three law enforcement interests identified in Summers applies with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched. Limiting the rule in Summers to searches of current occupants is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of thesearch and not at a later time in a more remote place.

This is a good decision, one which protects individual liberties while also allowing law enforcement to safely execute search warrants. We hope the Supreme Court continues to recognize that we all win in such cases.

Gregory Louis Clarke, pastor of New Hope Baptist Church, Superintendent of New Hope Christian School, and manager of New Hope Federal Credit Union in Birmingham, Alabama, was convicted in federal court of committing tax fraud for failing to declare income in his 2000, 2001, and 2002 returns. In December 2007, he was sentenced to 21 months in federal prison. Last month the Eleventh Circuit Court of Appeals in Atlanta, Georgia affirmed Reverend Clarke’s conviction and sentence.

Evidence presented at trial showed that Rev. Clarke filed tax returns for 2000-2002 based solely on his W-2s and 1099s, failing to declare additional income in those years. His undeclared income included insurance and car payments, a housing allowance, and personal bills paid out of church and school bank accounts, in addition to fees for speaking engagements and referrals to a mortgage company and car dealership.

Rev. Clarke appealed his conviction on three grounds: that the jury selection process violated the Sixth Amendment, that evidence was insufficient to support a guilty verdict, and that the District Court erred in calculating his sentence under the Sentencing Guidelines. The Eleventh Circuit held that Rev. Clarke failed to show that the under-representation of African-Americans on the jury venire in his case was due to systematic exclusion of the group from juries. The Court went on to say that the government had presented ample evidence of all elements of the crimes charged. The Court then determined that the District Court had accurately calculated his sentence both by assessing the total tax loss correctly and by appropriately applying the two-level enhancement for using “sophisticated means.”

Having handled tax evasion and fraud cases like this one, we understand that these issues are not unusual. However, it is important for attorneys to read opinions as they are issued to remain abreast of legal developments. The full opinion in this case is available here. A list of recent opinions issued by the Eleventh Circuit is available here.

Yesterday’s case is United States v. Jackson, and it concerns the practice of increasing the potential sentence for drug offenders who have prior convictions. When a person is facing prosecution for a federal drug offense, and has prior drug convictions, the prosecutor has a powerful tool that is set out at section 851 of Title 21 from the United States Code. This section allows the prosecutor to file a “notice” that can basically double any mandatory minimum sentence, and that can in some situations lead to a mandatory life sentence. From the defense perspective, the key is to try and poke holes in the “notice”, by arguing that it is somehow flawed. I am currently doing exactly that for a man I am representing here in Atlanta. If I am successful, we will reduce his 15 year sentence down to 5 years, which he has already served and will result in his immediate release from custody.

In yesterday’s case, the Court of Appeals ruled against the defendant. Mr. Jackson’s lawyer argued that the “notice” was not valid unless it was signed by the United States Attorney himself, instead of being signed and filed by the individual prosecutor handling the case. It was a clever argument by an attorney striving as hard as possible to avoid the harsh result that comes about when the mandatory penalty system in effect allows the prosecutor to name the sentence by filing the 851 “notice.” Although the argument was creative, the court likely reached the correct result.

In the case I am handling mentioned above, our argument is a bit more sophisticated. We contend that the although the “notice” was correctly signed and filed, it did not name the correct subsection of the drug laws, and therefore our client was only facing 5 years instead of 10. More on that later.

The case in New York was a complicated set of prosecutions targeted at “floor supervisors” at stock exchanges. These supervisors matched up buyers with sellers. The prosecutors claimed that these supervisors would make a few pennies for themselves on the matches by purchasing the stock and quickly flipping it, then skimming the profits. The defense lawyers argued that it was absurd for such highly paid supervisors to go after what was in effect, chump change, and pointed out that a few mistakes does not mean the supervisors were trying to make a profit. The Court of Appeals agreed, based on a ruling in a similar case, that there was no proof that the supervisors acted deceptively.

The lawyers in those cases kept fighting, even after the jury found their clients guilty. I have a similar case, a matter I will post about in the future, as it is currently pending in front of the judge. It involves a case where a man was found guilty by the jury, but there simply is no evidence that he knew he was doing anything wrong! I was brought into the case after the trial, and have filed a request for both a new trial and that the judge throw the charges out altogether. We will see what happens!