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Lawyers in Federal Criminal Cases: The Importance of Objecting

Kish Law LLC

Here we go again, another federal criminal case which on appeal goes to the United States Court of Appeals for the Eleventh Circuit here in Atlanta, and that court rejects the Defendant because the specific argument was not brought up in the trial court. We have written about this issue many times, the need for lawyers to anticipate issues and, more importantly, the need to “object” or ” preserve” that issue.  An opinion issued yesterday in the Eleventh Circuit reminds me about this whole area,  in which the appellate court basically kicks the Defendant out of court because a good issue she raised on appeal was never mentioned during the trial itself.  The case is United States v. Leon, and can be accessed here.

Ms. Leon was charged with a series of crimes arising out of an “investment” offering. Apparently, she was was the assistant for the head of the investment company.  At his direction, she made a series of cash withdrawals from the company bank account, all in amounts below $10,000.  However, on several days she made multiple withdrawals, and the aggregate amount of cash removed from the bank on those days exceeded $10,000.

Many readers of our little blog know about the rule that requires financial institutions (as well as lawyers) to file a “CTR” if they engage in any financial transaction involving more than $10,000 in cash for a person or institution in a single day.  There are loads of different statutes in this area.  In Ms. Leon’s case, the prosecutors charged her with the specific sub-section of a statute that makes it a crime to cause (or attempt to cause) a financial institution to NOT file the CTR.  A separate sub-section of that same statute involves the crime of “structuring”, which is the very similar but slightly different crime of breaking up transactions into increments below $10,000 with the goal of avoiding the filing of the CTR.  I know, they sound incredibly similar, but they are in fact different.

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

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

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

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