Federal Criminal Law News

Eleventh Circuit Takes Government’s Side in Federal Criminal Circuit Split Regarding Section 924(c)

September 29, 2009 | by Finch McCranie, LLP

On September 15, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, decided a federal drug and firearm case, U.S. v. Segarra. Drug laws and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The drug minimums are often longer than the minimum called for by § 924(c). In Segarra the Eleventh Circuit was confronted with what is called the “except” clause in § 924(c). Despite the language in this clause, the Eleventh Circuit ruled for the government, and said that the drug and § 924(c) minimum sentences must run consecutively with one another, instead of having the shorter gun sentence run concurrently with the drug penalty.

Mr. Segarra pleaded guilty to possession with intent to distribute crack, as well as possession of a firearm in furtherance of a drug-trafficking offense, in violation of § 924(c). Generally, § 924(c) provides for a minimum sentence of five years for possession of a gun during any crime of violence or drug trafficking crime, in addition to the punishment for the underlying crime. However, the section begins with the following exception: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law…”

Mr. Segarra, who was sentenced to the minimum sentence of ten years for his drug crime and an additional five years for the firearm, argued on appeal that his five-year minimum consecutive sentence for the firearm was prohibited by the “except” clause because the underlying offense carried a greater mandatory minimum. The Second Circuit Court of Appeals followed this interpretation in U.S. v. Williams, reasoning that the plain language of the statute forbids the mandatory minimum for the firearm from applying where another provision of law requires a higher minimum sentence.

Federal Appeal Regarding Funds Needed to Hire Criminal Defense Lawyers

September 17, 2009 | by Finch McCranie, LLP

Last month, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, and hears appeals from both civil and criminal federal cases, decided United States v. Kaley, a case regarding due process requirements for protective orders over property defendants wish to use to hire criminal defense counsel of their choice.

In Kaley, a wife and husband were each indicted with conspiracy, transportation of stolen property, obstruction of justice, and money laundering. The indictment included a criminal forfeiture count and the government obtained an injunction against the Kaleys encumbering the property listed in the forfeiture count. The government got that injunction ex parte, without a hearing in which the Kaleys could participate.

The property that the government enjoined was the property that the Kaleys planned on using to hire their criminal defense lawyers. Their legal fees were estimated at $500,000. To pay that amount, the Kaleys had gotten a home equity line of credit and used the proceeds to buy a certificate of deposit. The government claimed that those assets were “involved in” the Kaleys’ commission of their alleged crimes and sought to forfeit the property.

Double Jeopardy: Eleventh Circuit Decides Second Federal Criminal Indictment for Same Offenses Must Be Dismissed

September 1, 2009 | by Finch McCranie, LLP

Last week, the Eleventh Circuit Court of Appeals decided United States v. McIntosh, a federal criminal double jeopardy case. The Eleventh Circuit is located here in Atlanta and hears appeals in federal cases from Alabama, Florida, and Georgia. The Double Jeopardy Clause has been whittled down, but this case shows that there are still some circumstances in which the Eleventh Circuit recognizes its necessity.

In McIntosh, the defendant was indicted on drug and firearm charges and pleaded guilty to those charges. Before his sentencing, the prosecutor realized that the offense date in the original indictment was wrong, so he filed a second indictment, identical to the first, with the exception of only the corrected date, and a motion to dismiss the first indictment, which the court granted. McIntosh moved to dismiss the second indictment as barred by the Double Jeopardy Clause, but the court denied the motion. McIntosh then conditionally pleaded guilty to the second indictment, reserving his right to challenge the denial of his motion to dismiss.

The Eleventh Circuit held that jeopardy attached when McIntosh pleaded guilty to the first indictment, so the later indictment for the same offenses violated the Double Jeopardy Clause. The Court vacated his (second) conviction and remanded to the district court with instructions to dismiss the second indictment.

Federal Circuit Court in Atlanta Vacates Criminal Identity Theft Conviction

August 31, 2009 | by Finch McCranie, LLP

In this post in May, we discussed Flores-Figueroa v. United States, in which the Supreme Court held that a federal identity theft statute requires the government to prove that a criminal defendant knew that the identification that he or she used actually belonged to another person. That decision overruled a prior decision by the Eleventh Circuit Court of Appeals, which sits here in Atlanta and hears appeals in all federal cases originating in Georgia, Florida, and Alabama. Last Friday, in United States v. Gomez, the Eleventh Circuit applied the law in Flores-Figueroa, vacating an identity theft conviction because the trial court failed to instruct the jury on the correct law.

The defendant, Ramon Gomez, is an undocumented alien from the Dominican Republic. Because of his illegal immigration status, he was unable to find a job, so he purchased a Social Security card and birth certificate bearing the name Raul Rodriguez Delgado for $800. In April 2008, he used those documents to apply for a U.S. passport. Because another person using the same identity had obtained a passport in 2001, the State Department investigated and Gomez admitted to his true identity. Gomez was charged and convicted with making a false statement in a passport application, falsely representing himself as a citizen of the United States, and aggravated identity theft.

The Eleventh Circuit recognized that its earlier decision was no longer good law and that the district court erred when it failed to instruct the jury that it had to find that Gomez knew that the birth certificate he used belonged to another actual person. It then determined that the district court’s error was not harmless. The United States had introduced circumstantial evidence that Gomez knew Delgado was an actual person, but Gomez contested that evidence. An agent had tried to locate Delgado, but failed, so the jury may have questioned whether he existed. Because the error was not harmless, the Court vacated Gomez’s conviction for aggravated identity theft.

Federal Supreme Court Will Hear Argument on Federal Criminal Constitutional Law, Affecting Law Here in Atlanta, Georgia

August 17, 2009 | by Finch McCranie, LLP

One of Justice Sotomayor‘s first decisions on the Supreme Court will be in Maryland v. Shatzer, which is set for argument on October 5, 2009. The Court will decide whether the federal criminal constitutional protections afforded by Edwards v. Arizona in 1981 extend to Shatzer.

Edwards prohibits interrogation of a suspect who has requested counsel, unless an attorney is provided. This rule protects suspects from police coercion and serves an administrative purpose of providing judges and law enforcement with a clear and easily enforceable rule. Shatzer requested counsel when he was interrogated in 2003, while he was in prison for a different crime. Counsel was never provided. In 2006, while he was still incarcerated, another officer interrogated him again about the same subject, again without providing a lawyer. That time, Shatzer gave a statement that eventually led to his conviction. The highest appeals court in Maryland found that the Edwards rule applied, reversing his conviction.

The state of Maryland asserts 3 primary points in its briefs to the Supreme Court:

The Effect of the Pressure to Cooperate by Federal Prosecutors on White-Collar Criminal Defendants

August 14, 2009 | by Finch McCranie, LLP

Frank DiPascali, Bernie Madoff‘s top financial aide, pleaded guilty on Tuesday to ten criminal counts, including conspiracy, tax evasion, and securities fraud. He was taken into federal custody immediately after the hearing, at which he had waived indictment and admitted to helping Madoff falsify trading records for decades.

Although he faces up to 125 years in federal prison for his crimes, he may receive a lenient sentence due to his cooperation with the prosecution. Other than Madoff (who received a 150-year sentence) and DiPascali, only accountant David Friehling has been charged in connection with the massive Madoff fraud. DiPascali likely has a wealth of information on many potential targets of investigation and has been cooperating with the prosecution since January. Based upon his cooperation, the prosecution recommended a bail package pending sentencing in his case. Despite the recommendation, Judge Richard Sullivan denied bail, ordering DiPascali into custody immediately. Whether he will benefit from his cooperation at sentencing remains to be seen.

One of the prosecution’s most formidable tools in a criminal case is the bargaining power inherent in its prosecutorial discretion. The prosecution usually wields significant power at sentencing. In other accounting scandal cases, highly culpable defendants who have cooperated have received light sentences in comparison to their former co-workers. Scott Sullivan, for instance, former WorldCom CFO who testified against CEO Bernard Ebbers, has already returned to his home in Boca Raton, after serving four years of his five-year sentence. Ebbers, on the other hand, is scheduled for release in 2028. Jeffrey Skilling, former president of Enron, is also scheduled for release in 2028, whereas CFO Andy Fastow received only six years, due to his significant cooperation with the prosecution.

New Federal Criminal Law Targets Internet Drug Sales

July 9, 2009 | by Finch McCranie, LLP

A new federal criminal law directed at online pharmacies went into effect in April. We have represented many targets and potential targets of investigations and prosecutions involving these types of online pharmacies, as well as other drug prosecutions. Recent Internet drug sale laws may encompass more behavior than the primary reasons for their enactment.

The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription or to advertise for such distribution. “Valid prescription” is defined as “a prescription that is issued for a legitimate medical purpose in the usual course of professional practice” by a practitioner who has evaluated the patient in person at least once or, if that practitioner is unavailable and has evaluated the patient in-person within the past year, then a practitioner whom he requests to evaluate the patient. The Act also permits states to sue online pharmacies and imposes registration and reporting requirements on certain online pharmacies.

The primary function of the Act is to address online pharmacies, which deliver controlled substances by means of the Internet. Its chief provisions amend 21 U.S.C. Section 841, a part of the Controlled Substances Act that lists illegal conduct and penalties. The new law is targeted at people and entities such as doctors, pharmacists and pharmacies, and web site owners involved with online pharmacies that issue and fill prescriptions for controlled substances based solely on completion of online medical questionnaires. It is not expressly limited to online pharmacies, however, or to the types of targets listed. Federal prosecutors may use this law against anyone who delivers, distributes, or dispenses a controlled substance by means of the Internet, or helps someone do so, without authorization.

Supreme Court Agrees to Hear Argument on Federal Criminal Honest Services Fraud

July 8, 2009 | by Finch McCranie, LLP

Last Monday, the Supreme Court granted certiorari in Weyhrauch v. United States, a federal criminal honest services fraud case. We are in Atlanta, Georgia, which is in the Eleventh Circuit. Because this case may impact Eleventh Circuit law, we will follow this case closely and provide any updates.

The question to be decided in Weyhrauch is “Whether, to convict a state official for depriving the public of its right to the defendant’s honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. Sec. 1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.”

The defendant in this case is a lawyer and was a member of the Alaska House of Representatives. He is accused of honest services fraud due to conflicts of interest in conducting business with an oil field services company. The government wanted to introduce evidence of his concealment of the conflicts of interest to support the fraud charges, even though the state did not require disclosure.

Supreme Court Establishes New Federal Rule Regarding Criminal Forensic Lab Reports

July 6, 2009 | by Finch McCranie, LLP

A couple of weeks ago, the federal Supreme Court decided a criminal case, Melendez-Diaz v. Massachusetts, holding that the admission of crime lab reports requires the forensic analysts to testify in person. The Georgia Supreme Court adopted the same rule in 1996 for state criminal cases brought here in Georgia and we are pleased that it will now apply in federal criminal cases, as well as in other states that didn’t previously have the rule.

Justice Scalia, a strong defender of the Sixth Amendment Confrontation Clause, wrote the majority opinion in Melendez-Diaz. The basic idea of the Confrontation Clause is that people have the right to be confronted with witnesses against them so they have a chance to defend themselves against the charges. In Crawford v. Washington, the Court held that testimonial statements against a defendant are inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant has had a prior opportunity for cross-examination. In this case, Scalia explained that the crime lab reports were affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause and addressed in Crawford. For that reason, the analysts making the statements must appear at trial.

The dissent argued that forensic evidence is uniquely reliable compared to other types of testimony and that cross-examination of the analysts would be empty formalism. To most people who watch TV shows like CSI, this argument has merit – scientific evidence seems indisputable. But not all forensic analysts are as intelligent and well-educated as Gil Grissom. The Court noted that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials… One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.” Confrontation will help assure accurate forensic analysis by weeding out both fraudulent and incompetent analysts.

Supreme Court Finds No Federal Constitutional Due Process Right to Access to DNA Evidence in Criminal Cases After Conviction

June 26, 2009 | by Finch McCranie, LLP

Last week the Supreme Court decided District Attorney’s Office for the Third Judicial District v. Osborne in favor of the District Attorney’s Office. Although this was technically a civil case, it deals with federal constitutional criminal issues. Mr. Osborne was convicted of kidnapping, assault, and sexual assault in the early 1990s. An early type of DNA testing on the main evidence against him cleared other suspects, but could not narrow the perpetrator down to less than 5% of the population. Mr. Osborne sought access to the evidence now to subject it to a newer type of DNA test that can determine whether biological evidence matches an individual with near certainty.

The Court recognized the power of DNA testing in both exonerating wrongly convicted people and confirming the convictions of others. However, the Court’s “dilemma [was] how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.” In a disappointing and surprising 5-4 decision, the Court rejected Osborne’s argument for a Due Process right to DNA evidence.

An insightful analysis of the case by a staff attorney for the Innocence Project is available at this post in the American Constitution Society Blog.