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The Feds Go After Alleged Coronavirus Fraud: Some Lessons for Criminal Defense Lawyers

Kish Law LLC

Yet another gorgeous Spring morning in Atlanta where I am handling federal criminal defense matters from my home “office”.  I am working on various situations related to alleged fraud concerning the Coronavirus pandemic. This got me to thinking of lessons I learned (and some re-learned) when it comes to dealing with the “feds.”  Some of these current matters on which I am working are merely “investigations“, while a few others are actual ongoing federal criminal cases.  Some of the lessons I’ll discuss below are common to each type of situation.

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

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

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

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