July 2009 Archives

July 27, 2009

When Can an AUSA Lie?

There's a fascinating case unfolding in Georgia. According to Law.com (reprinting an article from the Fulton County Daily Reporter), United States District Judge Clay Land learned that a prosecutor from the United States Attorney's Office in the Middle District of Georgia lied to a defense attorney. The defense attorney asked if the prosecutor was recording their conversations. The prosecutor says he wasn't. As it happened, that was a lie.

Judge Land said, "I'm shocked. . . . There's got to be some policy about when a U.S. Attorney can lie." I'm also a little surprised that there's apparently no policy on when a U.S. Attorney can lie too.

Though that isn't the problem I have with the case described in this article.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Continue reading "When Can an AUSA Lie?" »

July 24, 2009

The First Circuit Helps Grand Jury Witnesses

Testifying before a grand jury can be nerve wracking. Your lawyer can't be with you. The prosecutors can ask you almost anything, including questions that call for hearsay. You have a right to refuse to testify based on your Fifth Amendment Right against self-incrimination, but the government can overcome that by giving you immunity (for a fuller discussion of immunity, see this article on the topic that I co-wrote with Roger Spaeder).

If you are testifying under an order of immunity, the only way you can refuse to answer a question is if the question calls for an answer that would reveal a privilege, such as the attorney-client privilege or spousal privilege. And it's up to the witness, without his lawyer, to make the determination of whether privilege applies.

To make things even worse for witnesses, you don't have a right to get the transcript of your testimony when you're done. You could testify for hours, based on a stack of documents that you may never have seen before, and at the end of the time you may not remember what documents you saw or what you said about them. Even if you're intending to be fully honest, the most steel-trapped minds can get turned around in a grand jury proceeding.

Happily, courts are starting to recognize that this is not a fair way to treat people who testify before a grand jury. The First Circuit recently joined the D.C. Circuit in expanding the rights of access that a witness has to his grand jury testimony.

The D.C. Circuit has held that grand jury witnesses have a right of access to their grand jury transcripts (though the mechanics of that right have been later narrowed by the U.S.. District Court in D.C.).

The First Circuit held that grand jury witnesses have to meet a lesser standard in showing that they'd like access to their grand jury transcripts. The court recognized that people have a compelling interest in seeing their transcripts, and that the government's interest is relatively limited. Moreover, the government is obligated to create grand jury transcripts anyway; it won't slow things down unduly to show the transcript to a witness.

The First Circuit held that the lesser standard was met where the prosecutors warned the witnesses repeatedly that he could be prosecuted for perjury. The court suggests, but doesn't rule on, just how far this lesser standard would go. And the opinion, by it's terms, deals only with access to the grand jury transcript, not a copy.

Clearly, the First Circuit's opinion is a step in the right direction. It could go farther, and it would be more fair to grand jury witnesses if it did, but it's nice to see that New England is becoming a little more like D.C.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 23, 2009

Sotomayor on Acquitted Conduct?

There is a lot of discussion on Sentencing Law and Policy about judges using acquited conduct at sentencing (see the posts here and here) in light of a recent Eight Circuit opinion. In that case, United States v. Papakee, Judge Bright wrote separately to call on the Supreme Court to address the Due Process implications of sentencing a person based on acquitted conduct, saying,

"the use of 'acquitted conduct' at sentencing in federal district courts is uniquely malevolent." Id. (Bright, J., concurring). We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit. It is now incumbent on the Supreme Court to correct this injustice.

I blogged on this a few weeks ago, and think Judge Bright is exactly right (see Going to Prison for What a Jury Doesn't Think You Did). The issue, as I see it, is really one of respect for the jury.

Jurors want their jury service to matter, and they think that they are playing an important role in our collective civic life. But that's just not true if judges are free to ignore what juries decide.

After Judge Bright's concurring opinion, Papakee will, doubtless, file a petition for certiorari to have the Supreme Court review the issue. If it does, what will the Court's newest member, soon-to-be-Justice Sotomayor think about the acquitted conduct issue?

Judge Sotomayor applauds jury service

I think there's reason to be hopeful. Judge Sotomayor is a big fan of juries. As reported in the L.A. Times (which incorrectly says Sheldon Whitehouse is a senator from Maryland), soon-to-be-Justice Sotomayor said in her confirmation hearings that

I have found in my experience with juries that virtually every juror I have ever dealt with came away heartened and more deeply committed to the fundamental importance of their role as citizens in that process.

Surely, if cert is granted, the woman who said that is not going to say to those jurors, in effect, "thanks for your service, but we don't care."

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 22, 2009

How Not to Respond to a Grand Jury Subpoena

The Eleventh Circuit recently decided a case that highlights why responding to a grand jury subpoena needs to be taken seriously. The case is United States v. Hoffman-Vaile. As a teaser, a doctor is going to prison for longer than she should because of how she handled a grand jury subpoena.

In the case, a doctor, Dr. Hoffman-Vaile, was being investigated for upcoding a series of dermatological procedures. Basically, the doctor was billing Medicare for a surgical procedure called "an adjacent tissue transfer or rearrangement that measures more than 30 square centimeters and is unusual or complicated." This procedure was billed under code 14300.

The government's suspicion was that Dr. Hoffman-Vaile using the billing code 14300, but, in fact, she was do a simpler dermatological procedure, with a different billing code. Telling Medicare that you're doing a procedure that pays better than the one you're actually doing is called "upcoding," and it's one form of medical billing fraud.

Health and Human Services began investigating Dr. Hoffman-Vaile when it noticed that she used billing code 14300 more times than any other code, and that she used billing code 14300 more than any other doctor in Florida in 1998 or 1999.

These are bad facts. The way Dr. Hoffman-Vaile responded, though, made them much worse. The Inspector General of Health and Human Services raided the doctor's offices with a search warrant. They found files were missing. They then issued a grand jury subpoena asking for those missing files and any accompanying photographs.

Unfortunately, it appears from the opinion that Dr. Hoffman-Vaile directed her employees to strip the files of the photographs before she sent them to the government to satisfy the grand jury subpoena. Since one of the issues about whether code 14300 is proper is the size of the affected area in the procedure, it matters what the photos show.

Dr. Hoffman-Vaile was then indicted for both health care fraud and obstructing justice for stripping the files. She was convicted and sentenced to five years in prison.

I have represented many clients in fraud cases. Basically, the issue is whether your client is a liar. It is really hard to argue that your client is not a liar if the government has evidence that your client tried to lie to the prosecutors, agents, or grand jury during the investigation. That is why a grand jury subpoena has to be looked at very carefully and responded to with the same amount of care.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 21, 2009

Manufacturing Speculation About A Company's Involvement In A Government Contracting Bribery Investigation

Apparently, a Kuwait company is suspected of getting millions of dollars of improper contracts after an Army office plead guilty to bribery.

The article above is an odd bit of journalism. The headline says that a Kuwaiti firm is "tied" to a scandal, but it isn't clear who "ties" the two together. As I read it, there is a bribery case in federal court that may involve, very tangentially, a Kuwaiti company. That company, in an unrelated matter, had a problem with a government contract that was treated a little strangely.

This is a nice example of how journalists have even fewer checks on their power than prosecutors. That this stuff gets published to make a company look bad is disappointing.

Here's the background:

An Army Major named Cockerham has entered a plea to taking about $9.6 million in bribes from a ledger that he maintained that said there were $15 million in bribes. [Note - if you're planning on taking bribes, do not keep them in a ledger.]

On the ledger, the Kuwaiti company, KMS Co., has an entry for $40,000, suggesting that the company gave the Major $40,000 in bribe money.

The company has other problems not related to the Major; it billed the government for gasoline that was reported stolen, and the reporter doubts that's an accurate description of why the gasoline didn't make it to the Army. The sanction for this missing gasoline is not what a source for the reporter says it should be.

The Major is cooperating with prosecutors, hoping to get more time off his sentence. The government isn't saying anything. The Major's defense lawyer says he doesn't know if they're going to talk about the $40,000 at sentencing.

I don't see any link in this story between the bribery investigation and the gasoline issue. Which makes me wonder who is feeding this story to the reporter.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Continue reading "Manufacturing Speculation About A Company's Involvement In A Government Contracting Bribery Investigation" »

July 20, 2009

Why Melendez-Diaz is good policy

In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing.

This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people.


I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.

One writer argues that Melendez-Diaz is a bad idea because,

The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It's rare where a legitimate challenge can be raised to the reliability of a particular drug screening.

I think this is wrong; Melendez-Diaz is good policy for two reasons. I'll explain what they are, after the jump.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Continue reading "Why Melendez-Diaz is good policy" »

July 20, 2009

Is Eric Holder Providing Change We Can Believe In?

I'm very excited about our new President. I like his pick for Attorney General a lot. And I really like the signals he's sending. But I don't think the great words we're hearing are resulting in much action to improve the lot of people being charged in federal court.

Lanny Breuer, who runs the Criminal Division of the Department of Justice, came out forcefully in support of eliminating

Just words?

the disparity between the sentences for crack and powder cocaine. Indeed, as Lanny Breuer put it, "[t]he administration believes Congress's goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine."

Similarly, at the Vera Institute of Justice last month, Attorney General Eric Holder gave a dramatic address laying out his philosophy of criminal justice enforcement. Here are some of my favorite parts (with emphasis added),

[J]ust as everyone should concede that incarceration is part of the answer, everyone should also concede that it is not the whole answer. Simply stated, imprisonment is not a complete strategy for criminal law enforcement.

To begin with, high rates of incarceration have tremendous social costs. And, of course, there also is the matter of simple dollars and cents, and the principle of diminishing marginal returns. Every state in the union is trying to trim budgets. States and localities are laying off teachers and canceling sanitation department shifts, but in almost all cases, spending on prisons continues to increase. Not only is this unsustainable economically, but it is also not proving to be effective at fighting crime. For while prison building and prison spending continue to increase, public safety is not improving. Since 2003, spending on incarceration has continued to rise, but crime rates have flattened. Indeed, crime rates appear to have reached a plateau, and no longer respond to increases in incarceration.

I agree with all of this. There is, though, a sleight of hand here - the Attorney General focuses on prison construction and spending. Of course, someone has to fill all those prisons. Many of those people work for him. But, he's right about the larger point that simply filling prisons is not a viable, humane, or just law enforcement strategy.

And check out what the Attorney General is saying about drug crimes,

One specific area where I think we can do a much better job by looking beyond incarceration is in the way we deal with non-violent drug offenses. We know that people convicted of drug possession or the sales of small amounts of drugs comprise a significant portion of the prison population. Indeed, in my thirty years in law enforcement, I have seen far too many young people lose their claim to a future by committing non-violent drug crimes.

I couldn't agree more with these statements. Holder has the right attitude on where law enforcement should go, and what criminal justice policy should be.

But does any of it matter? Is it changing the behavior of line attorneys? Are defendants in federal criminal court being treated any different because Eric Holder is the Attorney General? I think the answer is no.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Continue reading "Is Eric Holder Providing Change We Can Believe In?" »

July 18, 2009

Riding the Melendez-Diaz Rollercoaster

At the risk of turning this into the Melendez-Diaz blog, I will note that there is a nice article in the Washington Post this morning about a Virginia court throwing out a DUI because of Melendez-Diaz.

Perhaps my favorite part of the article:

[A] phalanx of defense lawyers who watched the hearing left the courtroom quietly jubilant and congratulating colleague David Bernhard, who first tried to use the new Supreme Court ruling on the same morning it was issued. That caused Roush to crack, "You're going to make me read Justice Scalia before lunch?"

A hearty congratulations to Mr. Bernhard!

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 17, 2009

The D.C. Court of Appeals Dismisses a Case Relying on Melendez-Diaz

The D.C Court of Appeals has dismissed a conviction relying on Melendez-Diaz! The case is Tabaka v. District of Columbia.

The Court determined that, after Melendez-Diaz's very powerful language about how a Certificate of Nonexistence of Record (a "CNR") is a testimonial statement which requires a person have a right to cross-examine the person offering the evidence, a conviction which was based on such a certificate must be dismissed.

The Supreme Court's analysis conclusively shows that the CNR in this case, "a clerk's certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it," id., was inadmissible over objection without corresponding testimony by the . . . official who had performed the search.

It's a humble case, involving the offense of driving when a driver's license hadn't been issued, but, hey, it's a start.

In other D.C. Court of Appeals news, the Court held that a 911 call immediately after a shooting, where the caller spent a most of the call describing the shooter, was only for the purpose of allowing police to respond to an emergency.

The statements made by an unknown 911 caller about the clothing worn by the person who had recently discharged a gun, as well as the sequence of events that surrounded the shooting, were not made to help the police prosecute the shooter later (though they did prove very useful for that purpose).

Thus, there was no Confrontation Clause right that attached to those statements, so the person's trial wasn't constitutionally infirm, which, I'm sure, is a huge relief to everyone.

When it comes to the Confrontation Clause, the D.C. Court of Appeals giventh, and it taketh away.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 17, 2009

Sotomayor on Melendez-Diaz

Admittedly, I'm a little worked up about Melendez-Diaz. It's a pretty exciting decision.

What's worrisome, of course, is that the Supreme Court has the power to change it. Melendez-Diaz was a 5-4 decision, and Justice Souter was in the majority. Which means that if a Justice Sotomayor thinks that it was wrongly decided, it could be gone tomorrow.

There is reason to think Justice Sotomayor will not be great for criminal defendants and their lawyers in general. As a biographical matter, she's a former prosecutor, and former prosecutors tend to look at the world a little differently than criminal defense lawyers do.

More significantly, there is reason to think that her prior opinions are not exactly defendant-friendly. That said, maybe her biography means things will be a little more nuanced.

But, happily, someone asked her about Melendez-Diaz in her confirmation hearings!

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Continue reading "Sotomayor on Melendez-Diaz" »

July 17, 2009

A note to readers

Dear Readers,

Hi! First, of all, thanks very much for reading this blog.

Second, I wanted to let you know that I have changed the formatting for the permalinks on this blog. As a result, if you have previously linked to a specific post on this blog, that link is now not going to work.

I'm very sorry for any trouble this will cause you, but I think it will look much better going forward, and I'm vapid enough to think that a moderate gain in appearance outweighs the inconvenience to you and me.

Again, thanks for reading, and have a nice day.

Matt

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 16, 2009

Standing Up for Criminal Defense Lawyers

Judge Pollak on the Eastern District of Pennsylvania has issued an opinion that is remarkable. He granted a new trial based on impermissible vouching by the prosecutor during closing arguments, and, as I read it, the prosecutor basically not being a very good guy. Check the opinion out here. [Note - Impermissible vouching is when a prosecutor tells the jury that a witness is believable based on facts outside of the evidence at trial]

Let me say, at the outset, that Judge Pollak rocks.

Judge Pollack

There are two remarkable things about this opinion. First, Judge Pollak addresses what is too often a favorite argument of prosecutors - that criminal defense lawyers are slick liars who are paid to confuse juries, unlike the gentlemen and women in the U.S. Attorney's office who are completely lacking in self-interest (which is why AUSAs tend to not be ambitious; notice how they almost never pursue a later career in politics).

Judge Pollak noted that

[T]he prosecutor accused [the defendant]'s counsel of going "beyond the pale" in suggesting that the government was concealing the truth from the jury by failing to provide telephone records . . . and by "accusing an honorable" officer of testifying untruthfully.

I would wager that any reasonably experienced criminal defense lawyer has heard this argument - how dare the lawyer challenge a law enforcement witness! Worse are two stories the prosecutor told in his rebuttal argument:

I'm reminded by [defense] counsel's argument of something that occurred to me, not that long ago. I ran into a defense attorney who I knew and was friends with, from years gone by, and he was about to close to a jury early in the day. I said, hey, Brian, can I buy you lunch? He said, don't wait, it might take me a while to confuse the issue.

Apparently worried that this did not clearly enough convey his contempt for the criminal defense bar, the prosecutor continued:

At this moment, I'm reminded of a discussion I had outside of a courtroom one time, where I was trying to persuade a number of people, and I was interrupted by my opponent, my adversary in the argument. And eventually, after his second or third time, he said, hey, shut up, Joe you're making sense.

Somewhere a nightclub in Vegas is softly weeping.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Continue reading "Standing Up for Criminal Defense Lawyers" »

July 16, 2009

Breaking News - Prosecutors Dislike Additional Work

Some prosecutors have been complaining about the Supreme Court's recent Melendez-Diaz opinion. They worry that if they have to prove each and every element of the offenses that they've charged, and criminal defense lawyers get to challenge that evidence, that, perhaps, they'll have to do more work before destroying a person's life.

Prosecutors are worried that "[t]he percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases." They're also concerned that with less incentive to plea bargain, defense attorneys might try more cases, and "that's going to put more stress on the system."

I can appreciate how Melendez-Diaz is going to be a big change. And it will require the criminal justice system to do additional work, by having people who collected and tested evidence against a defendant actually show up and be cross-examined by a criminal defense lawyer.

Here's why this is a good thing - for too long our criminal justice system has allowed people to be convicted based on paper. As my former boss used to enjoy saying, you can't cross examine a piece of paper. And lab techs, and others, have been allowed to fax in their reports, sit in their offices, and never have their work tested by the lawyer's for the people they were sending to prison.

These tests are not infallible. They have error rates and the people who perform them are still human. Obviously, a civil society has to prosecute crime, but for too long defendants have been denied meaningful opportunities to challenge the evidence against them. Now, defense lawyers will have that opportunity.

Moreover, it's good to have trials. Defendants have a right to have their cases go to trial, regardless of how much that stresses the system, or the prosecutor.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 15, 2009

More on Melendez-Diaz

Over at the Fifth Circuit blog, Brad Bogan has a great post about the effect of Melendez-Diaz on prosecutions for illegal reentry.

The Fifth Circuit, including Texas which is right on the border, has a tremendous caseload of illegal reentry cases. Thus, Melendez-Diaz and its effect on those prosecutions is of intense interest to folks in federal court in that Circuit.

Mr. Bogan rightly points out that Melendez-Diaz is crystal clear about the inadmissibility of a certificate that shows that a record does not exist in a particular file. These certificates have been a mainstay in illegal reentry prosecutions. He sums up:

While the effect of Melendez-Diaz on [certificates of non-existence of records] admissibility is clear, the broader ramifications for illegal reentry prosecutions are not. There's always the possibility that the Government will still fight to admit a CNR, meaning that you'll have to litigate the issue. If the Government brings in a witness, you'll have to be prepared for cross-examination both as to the hearsay-exception predicate and with an eye to a failure-of-proof defense. Of course, all this will take a while to shake out, meaning that the effect of Melendez-Diaz on plea negotiations, the decision whether to go to trial, and client advice is even murkier than its effect on trial practice. In the meantime, anyone handling illegal reentry cases will need to pay close attention to these issues.

I would argue, and, in fact, did, argue that the change is bigger than just illegal reentry (not that I take Mr. Bogan to disagree with that). Felon-in-possession charges, some tax charges, some export act charges, and many other kinds of criminal charges require that someone show that some record does not exist. The proof for all of these charges at trial is now very different.

Think, for example, about an export act charge. A person is charged with shipping to, say, Croatia, some item that requires a license from the United States State Department to ship. The government, therefore, needs to prove that no license was issued. It used to be that a certificate of nonexistence of that record would be enough. Now, it looks like someone from Washington has to go to trial as a government witness. How many such people are there? I don't know, but it makes the cost of going to trial higher from both a financial and logistical sense.

Mr. Bogan is spot on when he says the law is changing fast. It's an exciting time to be a lawyer.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 15, 2009

Federal pre-trial detention is about more than money

One of the biggest shocks for people who are facing federal charges is that the court normally does not set bail.

In state court in most states and on TV, a person is arrested, charged, comes before a judge, and bail is set. If you'd like, you can work with a bail bondsman, or if you have the cash you don't have to.

In federal court, whether you stay locked up before trial depends on a lot more than whether you have cash for bail. This is good, for folks who are likely to get out and who don't have any cash, and bad, for folks with a lot of cash who are likely not to get out in federal court.

Greatly simplified, a federal court looks at two things in deciding whether you can be released - whether you're a danger to the community or a risk of flight. The court also looks at whether there are any conditions of pretrial release that might reasonably make sure that you don't hurt anyone and show up for court.

In fact, the court has an entire agency that does nothing but administer the pretrial release program. They report to the court whether folks who are on pretrial release have complied with their conditions, and people on pretrial release are required to check in with them on a regular basis.

So, for example, if you have a history of not showing up for court, but only for very minor traffic offenses, you may have to check in with a pretrial services officer on a regular basis. Similarly, if you have a history of alcohol abuse that leads you to do regrettable things, you may be ordered to complete alcohol treatment.

The bottom line, though, is that in federal court, what matters is less whether you can afford to pay to be released, but whether there are conditions that can satisfy the court that you'll show up and not hurt anyone between court dates.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 14, 2009

The Government Is Coming After Health Care Providers

The Department of Justice and Department of Health and Human Services have announced a massive joint effort to prosecute health care fraud. The press release details an indictment against fifty-three people across the country.

And there is other health care fraud news around the country. Just today, a surgeon was charged in New Jersey, and a doctor who runs three clinics was indicted in Illinois. Last week, forty-two people were arrested in California on health care fraud charges. Health care fraud is a hot law enforcement priority.

I've represented people being investigated for health care fraud charges, and I've represented people charged with crimes related to health care fraud. These prosecutions and investigations are tricky for defense lawyers. They routinely require defense counsel to investigate the details of Medicare regulations in order to effectively represent their clients.

In addition to focusing on the specific regulations at issue, one good thing to look at is what evidence of fraudulent intent is there. I have found that not infrequently law enforcement agents, even federal law enforcement agents, focus on whether a statement on a form is true or false, without focusing on whether the person made the statement with the specific intent to defraud.

Obviously, a crucial part of this is how forms are processed in a health care provider's office. A carefully crafted claims process may be the best defense that a health care professional has against a criminal charge. Conversely, a process for filing Medicare claims that is sloppy or, worse, absent, can make a defense lawyer's job harder.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 14, 2009

When Criminal Defense Lawyers Go Bad

Last week the Sixth Circuit decided a case with stunningly bad conduct by a defense lawyer. The case is United States v. Herrera-Zuniga. In it, Richard Stroba of Grand Rapids, Michigan turned himself into a prosecutor against his own client.

Mr. Herrer-Zuniga was charged with entering the country illegally after having been previously deported subsequent to a felony conviction. He plead guilty in federal court in Michigan.

Instead of submitting a sentencing memorandum on behalf of his client, Mr. Stroba submitted a copy of a letter he had sent to Mr. Herrera-Zuniga. The letter is simply stunning. Here are some quotes from the Court's opinion:

My duty now is to try to write a sentencing memorandum on your behalf. I knew this day was coming and I knew it would be a difficult task, but . . . I must admit that I am completely stymied (i.e., without a place to go). There is not one thing about your situation that lends itself to a positive thought, save that you have a good work history.

Wow, that's quite a start. But wait, it gets worse . . .

You are clearly an alcoholic with either no ability or desire to quit drinking . . . . At some point either you will stop consuming alcohol on your own, or you will develop cirrhosis of the liver and you will die a slow, painful, horrible death. And then you will be done drinking for sure.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Continue reading "When Criminal Defense Lawyers Go Bad" »

July 10, 2009

After Melendez-Diaz, it's cross-examination for everyone!

At the end of June, the Supreme Court decided a case that will fundamentally change much about criminal procedure. The case is Melendez-Diaz v. Massachusetts, and the Court held that folks charged with a crime have the right to cross-examine the lab technicians who submit reports against criminal defendants.

This case will make the next few years of being a criminal defense lawyer very interesting.

This case says, in essence, that Crawford v. Washington, means what it says. If the government is going to introduce evidence against you at trial, it has to make sure that every single witness who is going to provide evidence against you testifies and is available to be cross-examined.

The impact of this decision on drug cases and DUI cases will be almost immediate - it will be harder for the government to convict because they will have to call more witnesses to the stand. And those witnesses will be subject to cross examination. Moreover, it will open up new lines of attack by defense lawyers on government witnesses.

Less clear, though, is how this will affect other prosecutions. There is language in the opinion that says that when a clerk of court submits an affidavit that he has looked in the court files and does not see any records of a specific kind, that he has to be available for cross-examination.

Assume that language sticks (it's arguably dicta now); it could mean that IRS certificates that a person never filed income tax returns will require an agent to testify. It could mean that in a felon in possession of a firearm case, the governor's office will have to send a representative to testify that the defendant was never pardoned. It could mean in an immigration case that an Immigration agent will have to testify as to the fact of a person's deportation, rather than proving that through documentary evidence.

The point is, we don't know exactly how this will play out; there are a lot of ways to use it and see how far the Court will let this go. Which makes it very exciting!

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 9, 2009

It's Not A Crime to Violate MySpace's Terms of Use

A federal judge in Missouri dismissed the MySpace suicide-hoax case. Here's a very good article from the LA Times on the case.

Aside from the question of whether it's a good idea to pose as someone you aren't in order to upset a teenage girl, this case presents an extraordinarily muscular theory of criminal liability from the United States Department of Justice.

A little background - federal law prohibits unauthorized access to a computer or computer server. The idea is that if I'm having a dinner party, and you're a guest, and you sneak up to my computer and access it without my permission to look at my bank records or iTunes playlist, that conduct should be criminalized. Similarly, if you hack into my online banking accounts, independent of whether you commit another crime (like wire fraud) that conduct should be illegal. So federal law makes it a crime to use a computer without authorization.

MySpace, like just about every other thing you find on the web these days, requires that you agree to Terms of Use in order to use their service. If you're a sophisticated enough computer user to read this blog, you've probably seen two or three dozen of these. And if you've read a single one of them I'd be very surprised. Almost no one reads the Terms of Use, including, I suspect, the prosecutors at the Department of Justice who brought this case.

One of the provisions of the MySpace Terms of Use is that you not use the service to pretend to be someone else to make a teenage girl feel bad (that may not be the precise language). So, the Department of Justice brought criminal charges on a theory that violating the Terms of Use mean that the access to MySpace's server was unauthorized, and, as a result, was a crime.

Had this prosecution been allowed to stand, it would have meant that any time you violate any of the myriad unread Terms of Use that you have agreed with without reading, you could have been charged with a crime in federal court. Surely, most "criminals" of this sort wouldn't be charged, but the potential for government abuse is obvious and widespread.

Very happily, a federal judge has put a stop to this nonsense. Let's hope the appellate court agrees.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 9, 2009

Does Ferris Bueller Need a Criminal Defense Lawyer?

There was a fun article on the NPR webpage yesterday about summer teen movies and how they are, basically, movies about a crime spree. I have to admit, my knee-jerk reaction to just about any teen movie is to mentally chronicle the crimes that are being depicted, going back to when I first saw Ferris Bueller's Day Off. Perhaps that reveals something deep about my chosen career path.

What can this man teach you about trial advocacy?

Regardless, there is, I think, an important lesson in this observation. When we watch these movies, such as Ferris Bueller's day off, the audience's reaction is not "Arrest the Scofflaw" but, rather, sympathy with the main character in the movie. Why is that? Why do we, as audience members, forgive criminal conduct when it's done in the name of teenage fun?

This is an important question for people accused of a crime because the only meaningful difference between a moviegoer and a juror is whether the person was compelled to learn about the subject of the movie or trial. So why does the audience root for the person committing a crime when watching these movies?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

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