Federal Criminal Lawyer Blog

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.

Federal Court of Appeals Affirms Sentences in Theft of Trade Secret Case

May 14, 2008 | by Carl Lietz

In a federal criminal case that was prosecuted in Atlanta, Georgia, the Eleventh Circuit Court of Appeals recently affirmed the sentences of two individuals convicted of conspiracy to commit theft of trade secrets. This federal case received a lot of media attention because it involved an allegation that a Coca-Cola Company employee and others attempted to sell confidential documents and materials to one of Coke’s main competitors, Pepsi. After learning of the alleged scheme, an FBI agent posed as a Pepsi employee who was interested in purchasing the documents.

Ultimately, the Coke employee and two others were charged and convicted in federal court here in Atlanta. On appeal, the lawyers for two of the defendants raised a number of arguments, including the argument that the sentences that the trial court imposed, both of which were above the applicable guideline range, were unreasonable. The Court of Appeals disagreed, however. According to the Court of Appeals, neither defendant was able to show that the sentence at issue was either procedurally or substantively unreasonable.

Federal Appellate Court in Atlanta Issues Ruling Concerning an Individual’s Right to an Attorney

March 18, 2008 | by Carl Lietz

In a federal criminal appeal involving an individual’s right to counsel, the United States Court of Appeals for the Eleventh Circuit recently ruled that the dual sovereignty doctrine applies in the Sixth Amendment context. Although the legal issue presented in the case was one of first impression, the underlying facts were fairly straightforward.

A federal grand jury in Florida indicted the defendant for a number of drug offenses. In his federal criminal case, the defendant moved to suppress statements that he had previously given to federal agents before the federal indictment was returned. At the time the statements were made, the defendant was represented by counsel on a pending state charge; the state charge was based upon the same facts that ultimately gave rise to the federal charges.

On appeal, the defendant argued that by questioning him while he was represented on the state matter, the federal agents violated his Sixth Amendment right to counsel. The Court of Appeals disagreed. According to the Eleventh Circuit, the Sixth Amendment right to counsel is offense specific. The court acknowledged that there is no question that the defendant’s right to counsel had attached to the state drug charge at the time the federal agents interviewed him. However, the court concluded that because the state and federal charges originated from autonomous sovereigns that each had the authority to define and prosecute criminal conduct, the defendant’s state drug charge was a different offense than his federal drug charges for Sixth Amendment purposes. Therefore, the court concluded that the defendant’s invocation of his Sixth Amendment right to counsel for the state drug charge did not attach to the federal offenses which were uncharged at the time of the interview.

Winning Strategies Seminar Held for Federal Criminal Lawyers

February 19, 2008 | by Carl Lietz

Last week, I traveled from Atlanta to New Orleans to attend a seminar for attorneys that represent individuals who have been accused of federal criminal offenses. The seminar was sponsored by the Office of Defender Services in Washington, D.C. The seminar was entitled “Winning Strategies” and it included sessions on white collar offenses, computer crimes, firearms offenses, sentencing proceedings in federal court, and a host of other federal offenses.

I attended the seminar with Jake Waldrop, a good friend and fellow criminal defense lawyer here in Atlanta. Jake and I lectured on Internet Based Sex Offenses in Federal Court. As we discussed during the seminar, in recent years, the federal government has placed a high priority on the prosecution of these offenses. And from all indications, the increase in the number of prosecutions in this area is not expected to slow down.

Federal Judge’s Ruling Provides Some Hope For Individuals Detained On Internet-Based Sex Charges

January 13, 2008 | by Carl Lietz

In a federal criminal case involving an internet sex crime, a federal judge recently ruled that the phrase “minor victim” does not include an undercover detective posing as a minor. The decision in the case interpreted provisions of the recently-enacted Adam Walsh Child Protection and Safety Act, as well as a previous Act.

As part of the Adam Walsh Act, Congress amended the Bail Reform Act by establishing that for certain offenses involving a “minor victim”, defendants should not be released on bail unless they are subjected to electronic monitoring and a host of other mandatory conditions. In addition, in an Act which predated the Adam Walsh Act, Congress amended the Bail Reform Act by creating a rebuttable presumption in favor of detention for certain enumerated offenses involving a “minor victim”. In many cases, these two provisions, particularly the latter one, make it virtually impossible to secure the release of an individual facing a federal internet-based sex charge.

This recent decision, however, appears to provide some hope for those individuals. In United States v. Kahn, the federal magistrate judge presiding over the matter pointed out that Congress failed to define the phrase “minor victim” in either the Adam Walsh Act or the Bail Reform Act. Accordingly, based on fundamental principles of statutory interpretation, the court interpreted the phrase in accordance with its plain meaning. Significantly, based on such an interpretation, the court concluded that “the plain meaning of the term ‘minor victim’ does not encompass the undercover detective or her fictitous thirteen year-old daughter.” I anticipate that the Government will appeal this decision and this issue of statutory interpretation will be an interesting one to follow as it develops further.

Federal Court of Appeals Affirms Sentence Reductions in Federal Criminal Case

January 4, 2008 | by Carl Lietz

In a federal criminal case originating in Atlanta, Georgia, the Eleventh Circuit Court of Appeals affirmed substantial sentence reductions for two executives who were convicted of public corruption charges. In the lower court, the two defendants faced sentencing ranges under the United States Sentencing Guidelines of 41 to 51 months. Based on a variety of factors, however, the lower court varied from that guideline range and imposed custodial sentences of thirteen months, and seven months, respectively.

In its third appeal to the Eleventh Circuit, the Government attacked the downward variances on a number of grounds. Among other arguments, the Government claimed that the defendants’s sentences were unreasonably low given the nature of the crimes. The Court of Appeals rejected this argument, stating that “whether we agree or not with the disrict court’s rationale for the downward variances or its characterization of the crimes, we cannot say that the sentences imposed in consideration of the factors delineated in 18 U.S.C. section 3553(a) were unreasonable.”

Unlike most of the decisions that come out of the Court of Appeals, the decision in this case was not unanimous. In dissent, Judge Carnes stated that the sentences imposed should be vacated, because in calculating the guidelines ranges the court violated the law of the case doctrine.

Eleventh Circuit Affirms 360 Month Sentence in a Federal Mortgage Fraud Case

November 26, 2007 | by Carl Lietz

In a federal mortgage fraud case origninating out of Atlanta, Georgia, the Eleventh Circuit affirmed a 360 month sentence against a real estate closing attorney. The appeal arose after a two week federal trial that occurred in the United States District Court for the Northern District of Georgia.

On appeal, the closing attorney made a number of arguments, including the argument that the 360 month sentence was “unreasonable.” With respect to that argument, as well as all the others raised on the attorney’s behalf, the Eleventh Circuit disagreed. According to the Court of Appeals, “the sentence imposed [was] both procedurally and substantively reasonable.”

After the attorney’s sentencing, the U.S. Attorney’s Office reported that the case involved one of the largest cases of mortgage fraud in this district. In recent years, those of us that handle federal criminal cases have seen a surge in federal mortgage fraud prosecutions. And from what we have seen, we do not expect this surge to slow down anytime soon. Indeed, as an excelent article from a fellow member of the National Association of Criminal Defense Lawyers points out, “the tumultuous state of the mortgage industry, combined with increasing reports of millions of dollars of loss from mortgage fraud schemes, has created the perfect storm for law enforcement initiativies.”

Federal Prosecutor’s Apparent Suicide Highlights the Stress Associated with the Defense of Internet-Based Federal Charges

October 17, 2007 | by Carl Lietz

Earlier this month, the Pensacola News Journal reported that a federal prosecutor who was charged with an internet based sex crime committed suicide by hanging himself inside his cell at a federal detention facility. In recent years, those of us who engage in the defense of individuals charged with federal crimes have literally witnessed an explosion in the number of internet based crimes that are being prosecuted at both the federal and state level. In my view, this tragic situation involving the federal prosecutor from Pensacola highlights the overwhelming stress that typically accompanies any internet based federal charge.

From what Paul Kish and I have seen, in cases like this, the individual often has strong community ties, a supportive family, and no criminal history or prior encounters with law enforcement. However, several years ago, Congress created a rebuttable presumption in favor of detention for certain internet-based federal crimes. For this reason, in cases like this (and in any case in which the Government moves for detention), it is important for defense counsel to get to up to speed as quickly as possible so that he can be prepared to address the issues that arise during a detention hearing.

In addition to the obvious stress that one encounters upon the initiation of a federal charge, the potential penalties that one may face if convicted can certainly add tremendously to the stress level. In recent years, Congress has not only increased the number of federally-based internet crimes, but it has also substantially increased the sentences that are often associated with certain crimes. For instance, in connection with the enactment of the Adam Walsh Act, Congress increased the mandatory minimum penalty associated with one of the charges the Pensacola federal prosecutor was facing to thirty years.

Search and Seizure in Atlanta, Georgia argued in the Federal Court of Appeals

October 15, 2007 | by Carl Lietz

Last week, I argued a federal criminal case here in Atlanta in the United States Court of Appeals for the Eleventh Circuit. The main issue in the case was whether a search warrant that was obtained by an Atlanta Police Department Officer could survive scrutiny under the Fourth Amendment.

Procedurally, the case was somewhat unique in that, in the lower court, the federal magistrate judge concluded that the warrant was unconstitutional. His decision was based primarily on the fact that the warrant completely failed to link the items sought in the warrant to the crime at issue, or provide any basis as to why those items would be present at the location searched. Thus, the judge concluded (rightly I believe) that Eleventh Circuit precedent required him to hold that the warrant was unconstitutional because it simply was not supported by probable cause. Ultimately, however, this decision was not sustained by the federal district judge that presided over the matter. Obviously, we disagree with this decision, which is why we ended up in the Court of Appeals.

This was my sixth oral argument in the Federal Court of Appeals (Paul Kish has argued about fifty cases there) and I am always amazed at how much preparation time is required to get ready for an oral argument. I spent several days reading cases, reviewing briefs and the record below, and outlining my argument. The folks at the Federal Defender office here in Atlanta helped me tremendously. Several of them took time from their busy schedules to read the briefs and spend several hours grilling me with questions. It was a huge help. Based on my reading of the case law, I am very optimistic.