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Uncommon Defenses in Federal Criminal Cases

Kish Law LLC

Here in Atlanta and other federal cases that I handle throughout Georgia, Florida, Alabama and other states, lawyers often chuckle (and once in a while enjoy a full belly laugh) at some defenses I come up with once in a while.  Here are a couple.  Now, remember, these are reserved for certain fact patterns, and these defenses are not going to work in every case.  Still, it is worth remembering that these are “real” defenses, and work every once in a while.

One of my favorites is a defense that I affectionately call “the wrong courthouse.” Some cases are  bought in federal court, even though there is a very slim or tenuous connection to the federal government.  The Feds usually try to get past this thin connection by using the “Commerce Clause“, found at Article I, section8 clause 3 of the Constitution of the United States.

The Commerce Clause has been stretched by the courts to cover just about anything involved in our far-flung economy.  The theory goes that if an activity “affects” commerce, then just about any aspect of that activity can be “regulated” by the federal government.  Therefore, even though Mr. Jones is growing marijuana for himself and some friends, his activity has an impact on the overall marijuana market throughout the country.  As a result, the federal government can bring a criminal case against the unfortunate Mr. J by showing that his actions affect commerce, thus letting them prosecute him in a federal courthouse.  Using the wrong courthouse defense, there are a few cases where the connection is too tenuous or basically non-existent.  We argue that while the client did something wrong (growing marijuana, for example), they are bringing the case in the wrong courthouse for there is no federal connection.  The wrong courthouse defense cannot get the client completely out of the stew, for the local state authorities could also bring a case against him or her.  Still, it gives us some wiggle room and potentially the way to a better overall resolution.

Another rarely used defense is the “statute of limitations”, or as I usually call it, the “SOL.”  Most folks have heard about the SOL.  It is based on old English common law that was passed down to the people who created our form of government.  Basically, the SOL is a law that says prosecutors only have a certain amount of time in which to bring a criminal case.  The main federal SOL is found at title 18, United States Code, section 3282.  For most federal crimes, the SOL is 5 years.  In the late 1980s’ and thereafter, Congress created a longer “period” for bringing various fraud-type cases, that law is at title 18, United States Code, 3293. These fraud cases can usually be brought if done within 10 years.

The SOL can be raised as a defense in two kinds of ways.  First, the careful lawyer might notice that the indictment does not allege that anything happened within the relevant SOL period (be that 5 or 10 years).  That could lead to a pretrial Motion to Dismiss.  Second, the attorney might realize that while the indictment alleges that something happened inside the applicable SOL period, there are not facts that can be proved to show that the Defendant him or herself did anything during that time frame.  Some attorneys will lay back until the very end of the prosecutor’s case before raising this defense, when it is too late to bring any more witnesses or evidence into the trial.  Again, in an SOL defense, the lawyer is NOT saying that the client is innocent.  Instead, the defense is that the prosecutor waited too long.

These are very specialized defenses, and should only be used in rare situations.  Nevertheless, it is worth remembering that in some situations, just because the client did the things he or she is accused of doing, that does not automatically mean there is no defense.

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