Federal Criminal Trials

Practical Challenges in Asserting an Advice-of-Counsel Defense in a Federal Criminal Case: Proving Disclosure of “All Material Facts”

February 18, 2020 | by Finch McCranie, LLP

As we noted in a prior post entitled, “The Promise and Pitfalls of the Advice-of-Counsel Defense,” an individual accused of a federal crime may be able to take advantage of the good-faith reliance on advice-of-counsel defense. The Eleventh Circuit’s pattern jury instruction on point requires that an accused attempting to assert this defense show, in part, that he sufficiently disclosed “all material facts” to a competent attorney.[1]

What are “material facts”?

Materiality is context specific; what is “material” in one case may not be in another. And what is material now, may not have been material then. As circumstances change, the legal significance of certain facts may change.

BP Settles Federal Criminal Case and Attorney for Rig Worker Accuses Government of Indicting a Scapegoat

November 15, 2012 | by Carl Lietz

Earlier today, the Department of Justice issued a press release announcing that it reached an agreement with BP Oil in which BP agreed to plead guilty to a number of federal criminal violations. More specifically, according to the press release, BP has agreed to enter guilty pleas to violations of various federal criminal statutes involving the Clean Water Act, the Migratory Bird Treaty Act, Obstruction of Congress, and a number of even more obscure federal criminal laws pertaining to the Seaman’s Manslaughter Act. In addition to agreeing to plead guilty to these federal criminal offenses, BP also agreed to pay $4.5 billion, including $1.3 billion in criminal fines. At a press conference announcing the resolution of these federal criminal charges, Attorney General Eric Holder stated that “[t]his marks the largest single criminal fine and the largest total criminal resolution in the history of the United States.”

I grew up in the Northern District of Florida and the impact that the oil spill had on the people and the environment in that area is something that hits close to home for me. My family was down on the Gulf Coast the summer that the spill occurred and we observed firsthand how the people, the economy, and the environment were unquestionably impacted in negative ways that most of us never envisioned. In addition, I still have many close friends that live in Pensacola and one of our special friends (and a fellow federal criminal defense lawyer) lives on the beach over in Alabama. For these and other reasons, although I am not particularly familiar with the “evidence” against BP, I was pleased to hear of today’s criminal settlement with the company.
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Eleventh Circuit Reverses Federal Conviction of Pain Management Doctor

July 20, 2011 | by Carl Lietz

Earlier today, the Eleventh Circuit reversed a federal conviction of a pain management doctor prosecuted in federal court. The case originated out of the Southern District of Georgia, and after a lengthy trial, the jury convicted the pain management doctor on 129 counts of unlawfully dispensing certain controlled substances by means of written prescriptions made “outside the usual course of professional practice and without legitimate medical purpose,” in violation of federal controlled substance laws.

On appeal, the doctor raised a number of issues, the most significant one being that the federal trial judge effectively denied him his right to testify by failing to notify him that he could testify in a narrative format. At trial, the doctor was not represented by a a lawyer. And when it came time to decide whether he wanted to testify on his own behalf, the trial judge failed to correct an obvious misunderstanding the doctor had concerning his right to testify.

More specifically, according to the trial transcript, the doctor incorrectly believed he could testify on direct examination only if was questioned by an attorney. Although the record established that the doctor was clearly ignorant of his ability to provide narrative testimony, the federal trial judge failed to correct this obvious misunderstanding. Rather, the trial judge merely informed the doctor that he had “an absolute right to testify.”

Federal Criminal Rules Should Require Prosecutors To Turn Over Witness Lists

May 3, 2011 | by Carl Lietz

Earlier today, I learned of the Federal Criminal Rules Advisory Committee’s decision to vote down (on a 6-5 vote) a proposed change to the Federal Rules of Criminal Procedure that would have required prosecutors to turn over all favorable evidence to the accused. Apparently, the Department of Justice convinced the Criminal Rules Advisory Committee to reject this proposed change. Although I am disappointed in this result, I can’t say that I am surprised. This is not the first time that the Department of Justice has flexed its muscle to prevent the Federal Criminal Rules from being amended in ways that require broader disclosure in federal criminal cases.

Several years ago, I learned that in 1974, the Advisory Committee and the Supreme Court recommended amending the Rules to require the parties in federal criminal cases to exchange witness lists. This proposed amendment had a broad base of support, and ultimately both the Advisory Committee and the Supreme Court agreed that the change should be made. Shortly before the effective date of the new rule, however, Congress (at the behest of the Department of Justice) suspended the effective date of this amendment to Rule 16, and ultimately removed the witness list disclosure provisions. As a result of this action, (and the Advisory Committee’s decision not to take up the issue again), the government is not required to provide the accused with a witness list in federal court.

Criminal lawyers that do not practice in federal court are often surprised (and shocked) to learn that the federal government is not required to turn over something so basic as a witness list when it prosecutes one of its citizens. Those of us that do practice regularly in the federal criminal system seem to just accept this as a reality and the price of doing business in federal court. This practice is particularly unfair, though, and the Rule needs to be changed. Most (if not all) state systems (including Georgia) require the disclosure of witness lists, and some states even permit the parties to take depositions in criminal cases.

Fowler: Miniscule Evidence Needed to Show Federal Nexus when Murder Prosecuted under Statute Intended to Punish Federal Witness Tampering

April 14, 2010 | by Finch McCranie, LLP

Today the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, decided U.S. v. Fowler. The court took the government’s side in a circuit court split, holding that evidence is sufficient to establish the federal nexus of 18 U.S.C. § 1512(a)(1)(c) where any “possible or potential communication [may be made] to federal authorities of a possible federal crime.” In other words, the government can make a federal case out of any murder, if the victim might have possibly given information that may have been eventually transferred to a federal officer or federal judge.

The facts of this case are heartbreaking. The case certainly merited the charge of murder of a police officer. The evidence showed that three men robbed a hotel, then recruited Fowler and another man to help them rob a bank the next morning. They prepared in a cemetery, dressing in black clothing, drinking, and taking drugs. Fowler didn’t want them to see his cocaine supply, so he walked away to use it. While he was gone, a local police officer showed up. Fowler snuck up behind him and grabbed his gun, while the others helped him gain control. Fowler eventually shot him in the back of the head.

This was a dreadful crime, but murder cases are not common in federal court. Why was this a federal case? In 2004, a spokesman for the Middle District of Florida’s U.S. Attorney’s office explained that the local authorities requested federal prosecution. He cited the multiple suspects, multiple crimes, and wide jurisdiction, but all of these factors are common in state-prosecuted cases.

Briscoe v. Virginia: Federal Supreme Court Upholds Recent Opinion Regarding Testimony By Forensic Analysts in Criminal Trials

February 4, 2010 | by Finch McCranie, LLP

Crime%20lab%20photo%20courtesy%20of%20U.S.%20Army Last week the Supreme Court vacated and remanded Briscoe v. Virginia for proceedings consistent with the decision in Melendez-Diaz v. Massachusetts. We discussed Melendez-Diaz last summer in this post.

In Melendez-Diaz, the Supreme Court held that crime lab reports are testimonial statements covered by the Confrontation Clause of the Sixth Amendment. For such reports to be admissible, the forensic analysts must testify as witnesses in criminal trials, both federal and state. Shortly after that decision, the Court granted cert in Briscoe, a case presenting the same issue. Justice Scalia criticized the grant of cert, asking, “Why is this case here except as an opportunity to upset Melendez-Diaz?”

He asked that question at oral argument less than one month ago. SCOTUSblog covered that oral argument thoroughly in this post. They also explained last week’s decision in the context of the changing Court in the first half of this SCOTUSblog post.

Georgia Criminal Defense Lawyer Acquitted of Money Laundering, Drug Conspiracy, and Attempted Bribery

November 19, 2009 | by Finch McCranie, LLP

Yesterday a jury found Georgia criminal defense attorney J. Mark Shelnutt not guilty on all counts. He was acquitted of money laundering, drug conspiracy, and attempted bribery.

Three weeks ago, the Eleventh Circuit Court of Appeals, which hears appeals from cases in Georgia, Florida, and Alabama, decided U.S. v. Velez in favor of the defendant. That case involved a money laundering charge against a criminal defense attorney under 18 U.S.C. § 1957. Shelnutt was prosecuted under 18 U.S.C. § 1956, which required federal prosecutors to attempt to prove that ill-gotten gains were used for certain prohibited purposes, including facilitating underlying criminal activity, tax evasion, or evading money laundering statutes. The prosecution was unable to prove its case.

More information in the Shelnutt case can be found here.

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.

Federal Judge in Atlanta Declares Mandatory Minimum Portion of Federal Statute Unconstitutional

September 17, 2008 | by Carl Lietz

In a ruling that is all too rare in federal court, a federal district judge presiding here in Atlanta, Georgia declared the mandatory minimum portion of a federal criminal statute unconstitutional. At trial, the defendant was convicted of an offense that required the Court to impose a mandatory minimum sentence of 30 years. Before sentencing, however, the criminal defense attorney who represented the defendant filed a motion with the Court, asking the Judge to declare the mandatory minimum portion of the statute unconstitutional under the Eighth Amendment’s prohibition on cruel and unusual punishment.

In a methodical and well-supported decision, the Court agreed with the defendant’s position, concluding “that a 30-year mandatory minimum sentence for [the defendant], under the specific facts of his case, is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.”

In reaching its decision, the Court recognized “the serious nature of [the defendant’s] offense. [The Defendant] believed a ten year old child to exist and took steps to engage in sexual activity with her.” However, the Court pointed out that “it is also a fact that [the defendant] never had any contact, sexual or otherwise, with the child. No harm was suffered. Of course, it was not possible for a child to be harmed, because the child was a creation of law enforcement, and no real child exists.”

United States Supreme Court Rules that Federal Court of Appeals Cannot Increase Sentence on its own Initiative

June 23, 2008 | by Carl Lietz

In a federal criminal case involving a sentencing issue, the United States Supreme Court ruled that a federal appellate court cannot increase a defendant’s sentence in the absence of a Government request to do so. In Greenlaw v. United States, the defendant was convicted of various drug and firearms offenses. At his sentencing hearing, the district court sentenced Greenlaw to a term of imprisonment of 442 months. This sentence, however, was in direct contravention of Supreme Court law (and 15 years too low), because the district court failed to impose a 25 year mandatory minimum term of imprisonment on Greenlaw’s second and subsequent conviction for a 924(c) offense.

Importantly, although the United States objected to the imposition of this sentence in the lower court, it failed to raise this issue in the court of appeals. On its own initiative, however, the court of appeals addressed this issue. According to the court of appeals, since Greenlaw’s sentence directly conflicted with Supreme Court law, the court ordered the district court to enlarge Greenlaw’s sentence by 15 years, yielding a total prison term of 662 months.

Earlier today, the Supreme Court vacated and remanded the ruling of the court of appeals. According to the Supreme Court, absent a Government appeal or cross-appeal, a federal court of appeals cannot, on its own initiative, order an increase in an individual’s sentence.