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Earlier this week, the Federal Court of Appeals that sits here in Atlanta, Georgia heard arguments in the federal criminal case involving Alabama’s former Governor and former Health South executive Richard Scrushy. As I previously discussed here, there are a number of interesting issues presented in this federal criminal appeal, including the issue of whether it was legally improper for the federal judge that heard the matter to have ex parte conversations with an agent of the Department of Justice concerning an issue presented in a then-pending motion.

In addition to this argument, lawyers representing the defendants in this matter presented a number of other arguments to the Court of Appeals here in Atlanta. For instance, Mr. Siegelman’s lawyer argued that the Government presented insufficient evidence of an explicit quid pro quo and therefore Mr. Siegelman’s conviction on the federal bribery charge should be overturned. Additionally, Mr. Scrushy’s lawyer argued that Scrushy’s conviction should be overturned because of improper jury conduct that allegedly occurred both before and during jury deliberations.

This federal political corruption case has attracted a lot of national attention and according to the New York Times, there is currently a Congressional investigation looking into whether Mr. Siegelman was targeted and investigated for political reasons. You can find the full story concerning the oral arguments and other developments in this case here.

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In an earlier post pertaining to a federal criminal statute, we discussed the efforts made by lawyers on both sides of a federal criminal case to convince the Supreme Court to take up the issue of precisely what the Government must prove in cases prosecuted under the federal aggravated identity fraud statute. Fortunately, earlier this week, the Court agreed to take up the case.

As we previously discussed, currently, a split in the circuits exists on the manner in which the term “knowingly” has been interpreted under the federal aggravated identity theft statute. In some circuits, the Government is required to prove that the defendant is aware that the “means of identification” at issue actually belonged to another person. In other circuits, however, the Government is not required to make such a showing.

In the Eleventh Circuit (the Court that hears criminal appeals from Georgia, Florida, and Alabama), the Government is not required to make the higher showing. For this reason, we are pleased that the Court has agreed to take the case and resolve an issue that impacts those facing this type of federal criminal charge.

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Most of us that practice criminal law in federal court have become familiar with the federal identity fraud statute. In essence, this statute requires a federal judge to impose a two year mandatory minimum sentence on an individual who, in the context of committing a certain enumerated federal felony offense, “knowingly transfers, possesses, or uses . . . a means of identification of another person . . . .” Significantly, this two year sentence must be imposed to run consecutively to any other sentence that the court imposes.

Currently, a split in the circuits exists on the manner in which the term “knowingly” has been interpreted. In some circuits, the Government is required to prove that the defendant is aware that the “means of identification” at issue actually belonged to another person. In other circuits, however, the Government is not required to make such a showing. This showing can be significant because in some cases, particularly those involving undocumented aliens, the Government is unable to prove that the defendant knew that the means of identification actually belonged to someone else.

Earlier this year, in two separate cases, lawyers representing criminal defendants in federal court asked the Supreme Court to resolve the circuit conflict on this important issue. Although these requests were not unusual, the Government’s response to these petitions seems to ensure that the Supreme Court will in fact take up this issue in the upcoming term. As reported over at the Scotusblog, in its brief in response to one of the cert petitions, the government conceded that a “clear and entrenched” conflict existed over the proper interpretation of the law. And based on this conflict, the Justice Department recommended that the Court grant cert to resolve the conflict. The Government’s response brief can be found here, and additional background on the issue can be found here.

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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.”

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In previous posts on this blog, Paul Kish and I have both discussed the important federal criminal appeal that is currently pending here in Atlanta, Georgia before the Eleventh Circuit, the federal court that hears appeals from cases in Georgia, Alabama and Florida. As previously discussed here and here, later this year, the Eleventh Circuit will decide whether the pattern jury instruction that courts typically utilize in federal fraud cases accurately defines what the government must prove in order to convict an individual who is charged under the federal mail fraud statute.

Specifically, the Court will decide “whether the district court erred when it gave the pattern jury instruction about mail fraud . . . and declined to instruct the jury that the government must prove that the defendants devised or participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension.” In addition, the Court will also address whether it should overrule the decision that established the rule which now requires the Government to prove that a defendant participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension.

As discussed by Ellen Podgor over at the White Collar Crime Prof Blog, the attorneys representing the defendant in this important federal criminal case recently filed their initial brief. In addition, the National Association of Criminal Defense Attorneys also recently filed an amicus brief in support of the positions asserted by the defendant. The defendant’s brief can be found here, and the brief filed on behalf of NACDL can be found here. The importance of this case cannot be overstated, and we will be sure to follow this case until it concludes.

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Although we do not normally report on decisions issued in federal criminal cases that do not directly apply to matters in Georgia, Florida, or Alabama, a case that was recently decided by a federal appellate court that sits in Louisiana (the Fifth Circuit) is certainly interesting and therefore worth mentioning. As noted by Professor Ellen Pogdor over at the White Collar Crime Prof Blog, recently, the Fifth Circuit issued a decision involving the statute of limitations that applies in federal cases that charge an individual based on an aiding and abetting theory of liability. Specifically, in United States v. Rabhan, the Fifth Circuit concluded that “aiding and abetting is a form of derivative liability and should be treated the same as the substantive or underlying offense.” In other words, since 18 U.S.C. section 2 (the aiding and abetting statute) does not establish a distinct offense, but is instead “simply a different method of demonstrating liability for the substantive offense (and one which is derivative of, rather than separate from, the underlying or substantive offense),” the statute of limitations for the underlying substantive offense must govern.

Even though this decision will not have an impact on a significant number of federal criminal cases, it did have an impact in this particular case. That is because in Rabhan, the Government charged the defendant after the expiration of the five year statute of limitations that typically applies in most federal criminal cases, but before the expiration of the ten year statute of limitations applicable to the underlying substantive offense at issue. Therefore, based on the ruling described above, the Fifth Circuit reversed the trial court’s decision dismissing the offense that was charged beyond the five year statute of limitations.

Again, this case will not have an impact on a significant number of federal criminal cases; however, since this issue has apparently not yet been addressed in the Eleventh Circuit (the Court that hears federal appeals in Georgia, Alabama, and Florida), federal criminal attorneys that practice in these areas may want to make a mental note of this issue. Professor’s Pogdor’s analysis of this case can be found here, and the opinion itself can be found here.

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Recently, the Eleventh Circuit (which is headquartered here in Atlanta, Georgia) identified the issues that it will address in a federal criminal appeal involving the federal mail fraud statute. As both Paul Kish and I have discussed here and here, one of the main issues in the case is whether the pattern jury instruction that courts typically utilize in federal fraud cases accurately defines what the government must prove in order to convict an individual who is charged under the federal mail fraud statute.

In Paul’s previous post, he noted that, initially, the court of appeals concluded that the pattern jury instruction is deficient in that it failed to require the government to prove that the defendant participated in a scheme that was “reasonably calculated to deceive persons of ordinary prudence and comprehension.” Therefore, since the pattern instruction failed to include this important language, the Eleventh Circuit reversed the fraud convictions in the Svete case.

Svete’s victory, however, was short lived. As I previously discussed, not long after this ruling, the Eleventh Circuit vacated its opinion and ordered that the case be heard by the entire court, rather than just the three judges that sat on the panel. I also noted that although the opinion vacating the initial ruling did not identify the issues that the Court will focus on in the en banc sitting, it is safe to assume that the jury instruction issue would in fact be the focus.

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Over at the White Collar Crime Prof Blog, Ellen Pogdor discusses an interesting development in the federal criminal case of Alabama’s former governor, Don Siegelman, and Richard Scrushy. Governor Siegelman and Richard Scrushy were both convicted in a federal criminal trial that took place in Montgomery, Alabama. After the jury returned the verdicts, the defense attorneys received documents that purported to be printouts of emails. The documents were received from an unknown source and seemed to suggest that one or more of the jurors was improperly exposed to extraneous information during the trial, and during the jury deliberations.

After receiving the emails, the defense attorneys brought them to the attention of the court in the form of a motion for a new trial. Among other things, the federal criminal defense attorneys asked the Judge to conduct an investigation to determine the authenticity of the emails. According to Governor Siegelman’s attorney, however, the prosecutors opposed this request for any real investigation into the authenticity of the emails. Consistent with the prosectors’ position, the Judge denied the motions for a new trial, as well as the request for an investigation into the authenticity of the emails. After additional printouts were received, the defense attorneys filed additional motions with the Judge, asking the Judge to investigate the authenticity of the emails. On each occasion, this request was denied.

Significantly, earlier this month, the Department of Justice revealed that it was aware of an investigation that was conducted to determine the authenticity of the emails. Specifically, it was recently revealed that while one of the motions referenced above was pending, the U.S. Marshals Service informed the Judge that Postal Inspectors had conducted an investigation into the matter and reached the conclusion that the emails were not authentic. This conversation between a Department of Justice agent and the Judge took place outside the presence of defense counsel; moreover, it was not revealed to defense counsel until 15 months after it occurred.

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In an article published on law.com, Scott Horton raises the question of whether the chief federal prosecutor in the Northern District of Alabama “knowingly prosecuted innocent people?” Among other cases, Scott discusses the well known federal fraud prosecution of Richard Scrushy, who was acquitted of all charges. In addition, Scott discusses the prosecution and acquittal of Axion, a prosecution that Scott describes as the “latest in a string of aggressive prosecutions brought by Birmingham U.S. Attorney Alice Martin.” According to Scott, “those prosecutions are marked by convictions overturned and innocent men wronged. Two judges have openly questioned whether she knowingly prosecuted innocent people.” In addition, Scott reports that “the American Lawyer has learned that the U.S. Department of Justice’s Office of Professional Responsibility has opened an investigation into allegations of misconduct that were made by Axion against Martin.”

There are a number of things about the Axion prosecution that are particularly interesting. First, unlike in most federal criminal cases, Axion waived its right to a jury trial and agreed to a bench trial, a trial that allows the judge alone to decide whether the accused is guilty. Second, after the Government presented its evidence, the case was ultimately dismissed by Judge Inge Johnson of the federal district court in Birmingham, who wrote, “Evidence was received … that at least raises the possibility in the eyes of the district court that the government continued to investigate and prosecute the defendants even after uncovering evidence demonstrating that the defendants were not guilty.” Third, as a result of a motion filed by Axion, Judge Johnson awarded $363,000 in costs, attorney fees and interest to Axion.

This story will be interesting to follow as it develops. According to Scott, “a Justice [Department] spokesman says that the Department’s Office of Professional Responsibility, which investigates allegations of misconduct by Justice attorneys, is investigating Martin for “allegations of political prosecution involving both the Northern and Middle Districts of Alabama, arising out of the prosecution of former Gov. Siegelman and other matters.” Scott’s full story can be found here.

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In a case that is being closely watched by federal criminal defense attorneys, the Eleventh Circuit vacated its prior opinion in a federal fraud case. In the initial opinion, the Court concluded that the pattern jury instruction for federal mail fraud cases is deficient in that it fails to require the Government to prove that the defendant intended to create a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension. According to the Court, this burden is not reflected in the current Eleventh Circuit pattern jury instruction for mail fraud. For this reason, the Court vacated the defendants’ convictions on the mail fraud charges.

Earlier today, however, the Court entered an Order vacating its prior opinion and directing that the case be reheard by the entire Court. Although today’s Order did not identify the issues that Court will focus on in the en banc sitting, it is safe to assume that the jury instruction issue will in fact be the focus.

Our firm has been following this case very closely. In fact, shortly after the initial decision was handed down, my law partner Paul Kish outlined the significance of the decision in a previous post. As he pointed out, the decision had the potential to impact a whole host of other cases, including those that involved other varieties of alleged fraud. We will certainly continue to follow the case, as it develops.

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