Criminal Justice Issues

Federal Supreme Court Decides Criminal Collateral Estoppel Issue

June 25, 2009 | by Finch McCranie, LLP

In this post last year, we discussed Yeager v. United States, a white collar federal criminal case on appeal to the Supreme Court. The case involved the prosecution wanting to re-try a defendant who had been acquitted on some counts, but the jury had remained undecided on other counts. Because those other counts relied on facts that the jury must have resolved in the defendant’s favor to acquit, the defense argued (and we agreed) that the doctrine of collateral estoppel precluded the prosecution from retrying the issue. The Supreme Court issued its opinion last week, agreeing with us.

We reviewed the facts and legal issues in Yeager in our previous post. The Fifth Circuit Court of Appeals ruled that the acquitted counts meant that the jury found that Mr. Yeager did not have insider information. To prove the hung counts, the prosecution had to show that he had possessed insider information. The Fifth Circuit held that the inconsistency between the jury’s acquittals and hung counts justified a retrial. The Supreme Court declined to review the record to determine whether the Fifth Circuit’s ruling on the fact issue was correctly decided, permitting the Fifth Circuit to revisit the issue. Instead, the Court resolved only the narrower legal question.

Justice Stevens wrote the opinion for the court. He focused on the rule in Ashe v. Swenson, a 1970 case that held that the Double Jeopardy Clause precludes the government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. The government argued, as the Fifth Circuit had held, that the inconsistency between the jury’s decision in acquitting and indecision in the hung counts justified retrial, but the Supreme Court held that courts should scrutinize juries’ decisions, not failures to decide, in identifying what they necessarily determined at trial.

Criminal Defendants Lose Another Protection of Federal Constitutional Rights

May 27, 2009 | by Finch McCranie, LLP

Yesterday the Supreme Court eliminated a federal protection of criminal defendants’ right to counsel. Criminal defendants here in Atlanta, Georgia, as well as the rest of the country, now may be interrogated by police even after they secure representation by defense lawyers, if they don’t specifically request the lawyers’ presence or if they are not in police custody.

In yesterday’s Montejo v. Louisiana, the deeply divided Court overruled its 1986 opinion in Michigan v. Jackson, which prohibited police from initiating interrogation of a criminal defendant once he or she had invoked the right to counsel at an arraignment or similar proceeding. Justice Scalia, writing for the majority, reasoned that the rule in Jackson was unworkable because some states appoint public defenders without any request from the defendant, whereas other states require defendants to formally request counsel. That discrepancy led to different treatment of defendants based on only geography. Scalia went on to explain that the Sixth Amendment right to counsel, which Jackson protected, is sufficiently guarded by the Fifth Amendment right to counsel rules proscribed in Miranda v. Arizona, Edwards v. Arizona, and Minnick v. Mississippi.

Frankly, we disagree. The Fifth Amendment protections are limited to only custodial interrogations, so they do not apply to any defendants who are not in custody or who are interacting with police in a non-interrogation situation, such as a line-up. They are significantly narrower protections than Jackson provided. In addition, the whole point of getting a lawyer is that he or she can evaluate the situation and provide advice to the defendant during a very stressful time. Simply Mirandizing a person who has been formally charged and who has already obtained counsel is not sufficient, particularly if that person has not yet had a chance to even meet his or her lawyer, as was the case in Montejo.

Eleventh Circuit Court of Appeals in Atlanta Issues Heads-Government-Wins, Tails-Defendant-Loses Decision in Federal Criminal Case

May 13, 2009 | by Finch McCranie, LLP

Because our offices are in Atlanta, our firm primarily handles federal criminal cases in Georgia. However, we also have experience in Florida, as well as Alabama. Two of us have lived and worked in Florida and spent a lot of time driving on I-95, where the events relevant to this case occurred. The majority supports heads-I-win, tails-you-lose government evidence and justifies its decision with facts that, viewed by anyone who has spent any time in Florida, demonstrate racial profiling.

The case is United States v. Bautista-Silva. In March 2008, a Border Patrol agent was parked in a marked car at a rest stop along I-95 in Orlando, Florida, watching the southbound traffic. He saw a Chevy Suburban with California plates with two Hispanic men in the front seat and four more passengers in the back. As it drove past the rest area, it passed a pickup truck pulling a flat trailer. At this point the agent decided that this was an alien smuggling case and took off to catch the SUV. He had to drive 90 miles per hour to catch up. When he finally caught up, the driver slowed down to let him pass. None of the passengers made eye contact, even when the agent waved at them. That is when he pulled them over.

The United States District Court for the Middle District of Florida held that the agent lacked reasonable suspicion to stop the vehicle and granted the defendant’s motion to suppress all statements and evidence obtained as a result of the stop. The Eleventh Circuit Court of Appeals reversed that decision, holding that the agent had acted based upon specific and articulable facts that, under the totality of the circumstances, created a reasonable suspicion of illegal activity. Judge Pryor wrote the majority opinion, joined by Judge Farris from the Ninth Circuit, and Judge Barkett dissented.

Supreme Court Decision in Federal Identity Theft Case Overrules Eleventh Circuit Precedent, Changing Criminal Law Here in Atlanta

May 5, 2009 | by Finch McCranie, LLP

On Monday the Supreme Court issued its opinion in Flores-Figueroa v. United States, resolving a split in the circuits in favor of criminal defendants. The Court held that a federal aggravated identity theft statute requires the government to prove that the defendant knew that the means of identification that he or she used, transferred, or possessed actually belonged to another person. This decision overrules a prior decision by the Eleventh Circuit Court of Appeals, which hears appeals from federal cases in Georgia, Florida, and Alabama.

The statute is 18 U.S.C. § 1028A, entitled “Aggravated Identity Theft,” which provides, in pertinent part:

Whoever, during and in relation to any felony violation enumerated in [§ 1028A(c)], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Supreme Court Ends Its Streak Protecting Rights With Georgia Federal Criminal Case

May 1, 2009 | by Finch McCranie, LLP

We first discussed Dean v. United States in December, when the Supreme Court agreed to review the Eleventh Circuit’s opinion of the federal case. During a robbery of a bank in Rome, Georgia in 2004, Christopher Michael Dean accidentally fired his gun while taking money from a teller drawer. No one was injured.

The Eleventh Circuit, here in Atlanta, Georgia, upheld Dean’s eighteen-year sentence, which included a ten-year minimum sentence for firing the gun. We hoped that the Supreme Court would overturn this decision, because such significant criminal liability should never be imposed without criminal intent OR injury.

In the last couple of weeks, the Supreme Court has guarded our 4th Amendment rights against unlawful searches and protected us from secret detention and government overreaching. This week, however, the Court ended its short streak with Dean. The Court held that a ten-year mandatory minimum sentence applies if a gun is discharged during a violent or drug trafficking crime, even if the gun is fired entirely by accident. This disregard for the most basic element of criminal liability, mens rea, is extraordinarily disappointing.

Supreme Court Agrees to Resolve Circuit Split Regarding Speedy Trial Act in Federal Criminal Cases

April 30, 2009 | by Finch McCranie, LLP

In 1996, in United States v. Mejia, the Eleventh Circuit federal appeals court in Atlanta, Georgia, held that a court order granting a criminal defendant’s motion for additional time to file pretrial motions tolled the Speedy Trial clock for the duration of the extension of time. Last July, the Eight Circuit agreed with the Eleventh Circuit and five others in United States v. Bloate. However, two circuit courts of appeals, the Fourth and the Sixth, have held the opposite. Due to this split, the Supreme Court of the United States has granted certiorari in Bloate. We hope the justices of the Court agree with the Fourth and Sixth Circuits when it hears arguments in the fall.

The federal Speedy Trial Act requires that a criminal defendant be tried within 70 days of whichever is later: the indictment or the defendant’s first appearance in court. In calculating the 70-day period, the Act excludes “delay resulting from other proceedings concerning the defendant, including but not limited to… delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Rather than the time between filing and disposition of motions, Bloate and Mejia have dealt with the time defendants request for preparing motions, prior to filing.

The government and the majority of circuit courts have argued that such time should be excluded from the 70-day period because that time is “delay resulting from other proceedings concerning the defendant.” They say that the phrase “including but not limited to” in the Speedy Trial Act indicates that the specifically enumerated delays are only examples, rather than an exhaustive list. The Fourth and Sixth Circuits point out, though, that the Congressional decision to specifically address a time period involving pre-trial motions, but to limit it to the time between filing and disposition, strongly indicates that Congress did not intend to exclude the preparation time from the Speedy Trial Act.

Farias-Gonzalez: Another Atlanta Federal Criminal Case We Hope Gets Reversed by the Supreme Court

February 10, 2009 | by Finch McCranie, LLP

Last Tuesday, the Eleventh Circuit Court of Appeals issued its opinion in the Farias-Gonzalez case, which originated in a metro-Atlanta area of DeKalb County, Georgia. Judge Cox wrote for the Court, which held that identity-related evidence is not suppressible when offered in a criminal prosecution only to prove who the defendant is. The opinion is available here.

In 2006, Mr. Farias-Gonzalez was working on his car in DeKalb County, Georgia when a couple of federal immigration agents saw his tattoos and suspected he might be in a gang. After Mr. Farias-Gonzalez told them that he was not affiliated with any gangs, one of the agents lifted his sleeve to get a better look at his tattoos, then asked him for ID. He gave them three forms of identification identifying himself as Norberto Gonzalez. They took his picture and then ran a check on Norberto Gonzalez, finding no records associated with that name and the birth date on the ID. Concluding he may be in the country illegally, they fingerprinted him on a portable electronic machine. That machine identified him as Jose Farias-Gonzalez, who had previously been deported from the United States.

The District Court found, and on appeal the Eleventh Circuit assumed for the sake of argument, that the agents committed an unconstitutional search and seizure when lifting Mr. Farias-Gonzalez’s shirt sleeve. In the usual case, all evidence found as a result of an unconstitutional search would be excluded from use at trial. In this case, however, where the evidence was offered only to prove who the defendant was, the Court determined that the social costs of excluding the evidence were too great.

Federal Court of Appeals in Atlanta, Georgia Overrules 1996 Brown Decision Regarding Criminal Fraud Statute

February 3, 2009 | by Finch McCranie, LLP

As you may remember, we have been closely following United States v. Svete, which involves the federal criminal mail fraud statute, in the Eleventh Circuit Court of Appeals in here Atlanta, Georgia. In this post back in April 2008, Paul Kish explained the facts of the case and the original Eleventh Circuit’s decision’s potential implications for criminal defendants. In early July, Carl Lietz reported in this post that the Court had vacated its opinion in Svete and decided to re-hear the case before the entire Court. He later reported in this post that the Court had identified the issues on which it would focus. In September we again kept you updated with this post by linking to the briefs that had been submitted to the court by the defendants and the National Association of Criminal Defense Lawyers.

This Monday, the Eleventh Circuit Court of Appeals finally filed their en banc opinion in this case. Unfortunately for criminal defendants, the Court overruled its very sensible opinion in United States v. Brown and broadened its definition of mail fraud, and by extension, probably the other types of federal fraud, as well. We hope that this is not the final installment in this case, as we believe that the Court violated the contemporary understanding doctrine in this case.

Elementary social studies classes teach about one of the most important aspects of our government: the separation of powers between the three branches of government. This separation of powers provides checks and balances so no single branch becomes too powerful. This system, established by the framers of the Constitution, is the basic foundation of our democracy.

Federal Criminal Sentences May Be Enhanced by Acquitted Conduct

January 27, 2009 | by Finch McCranie, LLP

Did you know that, even after a jury has acquitted a criminal defendant of charged crimes, a federal court judge may still consider that conduct at sentencing? This unfair and disrespectful-to-juries rule of law is barred by nearly every state, but is permissible in federal courts. We hope the U.S. Supreme Court will soon correct the situation on appeal from a recent Sixth Circuit case.

The Eleventh Circuit Court in Atlanta, Georgia has addressed this injustice and permitted it to continue. In July 2006, the court issued an opinion in U.S. v. Faust, a case in which Nathan Faust had been convicted of possession with the intent to distribute cocaine, but acquitted of possession with the intent to distribute ecstasy and two gun charges. In calculating Faust’s sentence, the District Court determined the initial Sentencing Guidelines range by including the 94 grams of ecstasy that Faust had been acquitted of possessing. The Court then added two more levels to his sentence for possession of a dangerous weapon, despite his acquittal on the gun charges. Faust objected on the basis of his acquittal, but the Court overruled his objection, stating that the Guidelines were advisory and its calculations were based on a preponderance of the evidence.

Faust appealed his sentence on several grounds, one of which being the Sixth Amendment right to a jury trial. He argued that even when the Sentencing Guidelines are applied in an advisory manner, the Sixth Amendment right to a jury trial prohibits courts from considering relevant conduct for which a defendant was acquitted when making sentencing calculations. The Eleventh Circuit rejected his argument because both Eleventh Circuit and Supreme Court precedent allowed such consideration when the relevant conduct was proved by a preponderance of the evidence. Judge Barkett wrote a lengthy special concurrence stating that she concurred in the decision only because she was bound by Eleventh Circuit precedent, further saying that she “strongly believe[s] this precedent is incorrect” and that the Supreme Court precedent cited by the majority opinion has no bearing on this case. She concludes her concurrence with, “I do not believe the Constitution permits this cruel and perverse result.”