The Federal Criminal Appeals Blog

The Ninth Circuit has decided a major case on the way law enforcement searches electronic evidence using search warrants or grand jury subpoenas. The case is United States v. Comprehensive Drug Testing, Inc. and it's a chewy steak dinner for folks who like reading about how our Constitutional rights are going to work in the age of electronic evidence.

It's also a kick in the crotch to the kind of agents and prosecutors who over-reach when it comes to people's Fourth Amendment rights. (Though, as I read the case, I think the agent was overreaching and committed the government lawyers to take some unnecessarily aggressive positions.)

There's so much in this opinion that I'm just going to raise a few of the big parts I find particularly noteworthy. You should really read the whole thing yourself. Clearly, Comprehensive Drug Testing is going to play a huge role in how the Fourth Amendment and electronic data intersect in the years to come. It's also kind of a fun read.

Basically there are three big take away points - (1) the government cannot use the plain view doctrine to justify searching electronic evidence they don't have probable cause to search; (2) the government has an affirmative obligation to disclose any actual risks of destruction of electronic evidence in a search warrant application; and (3) once the government takes electronic evidence pursuant to a search warrant, it is limited to searching for evidence that it already has probable cause to search.

A fuller discussion of each of these points (and more!) is 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 "The Ninth Circuit Changes the Rules for Law Enforcement Searches for Electronic Evidence" »

I'm going to be teaching a course at Solo Practice University!

The course I'll be teaching is on Federal Criminal Practice. It's designed for students who already know how to represent someone in state court on criminal charges but wants to expand his or her practice into federal court. I'll talk about the parts of criminal practice that are unique to federal court - Federal Sentencing, the Federal Rules of Criminal Procedure, the Bail Reform Act, and some of the constitutional challenges to a prosecution that one can make in federal court more frequently than state court. It should be fun.

Solo Practice University, for those who don't know, is a resource for lawyers and law students who have started, or what to start, a solo law practice. There are courses in substantive areas of law (such as my humble offering) as well as the logistics and details of starting a practice, getting clients, and handling the other stresses, challenges, and joys that come from helping folks in our legal system.

I'm looking forward to teaching the course to help lawyers who are coming to federal court represent their clients better. I remember one day, as I was walking into the U.S. Marshall's cell block in federal court, I saw a friend of mine who I knew did a fair bit of state criminal work. He asked if he could bend my ear to talk about a case he had. He's a good lawyer, and he really cares about his clients, but he was so lost in the federal sentencing scheme that applied to his client that he really was not going to do the job he needed to. To his credit, he was asking for help, but I fear what happens when lawyers in that situation don't reach out to someone with federal experience. My hope is that by teaching this class I can better equip state court criminal defense lawyers to go into federal court and represent their clients well.

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.

I've blogged before about how the federal government likes to create task forces to create specific problems. There are health care fraud task forces, mortgage fraud task forces, Hurricane Katrina fraud task forces, and workplace fraud task forces. Creating a fraud task force allows prosecutors to pool their resources relating to a specific industry, consolidate their knowledge of that industry, ask for more money from Congress, and issue press releases.

Out of San Fransisco, however, comes a story that perhaps warrants a new task force on art fraud. Apparently, a federal grand jury has indicted an art dealer for selling fake Miro paintings. An undercover postal inspector allegedly purchased a fake Miro from the art dealer at the man's gallery in San Fransisco.

Worse, the Miro fraud was not just in San Fransisco, but it involved galleries around the country, and in Italy and Spain. One defendant is outside of the U.S., and our government is trying to have him brought over to stand trial here.

Even worse than that, the art fraud ring is not limited to Miro, but also included prints that were not paintings done by Warhol and Picasso.

I have to think that's a pretty good detail for a postal inspector to get assigned to.

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.

Like most folks, I was saddened to learn that Ted Kennedy has passed away. He has, of course, left a tremendous legacy in this country that will be recounted by many in the coming days and weeks.

One of his lesser known contributions to our nation was as one of the original forces behind the legislation that created the Federal Sentencing Guidelines. Though, of course, he didn't see how they would come to be used, his original impulse was good and progressive.

Senator Kennedy (and others, to be sure) was rightly unhappy with the unwarranted disparities between defendants of different races and economic statuses in federal court. Well-off white defendants received more lenient treatment, in general, than poor minority defendants. The Sentencing Reform Act was supposed to ameliorate that disparity.

Sadly, it worked for the most part, but by jacking up the sentences of well-off whites and tweaking which disparities count as "unwarranted" (see, e.g., the crack/powder guidelines), as well as reducing the kinds of facts about individual defendants that judges can consider.

Still, you have to give Senator Kennedy credit for being willing to get involved in the structure of the criminal justice system, and to try to work to change things for the better.

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.

It appears that there is a new national task force to combat mortgage fraud. DOJ is teaming up with HUD, Treasury, and the FTC, as well as a number of state Attorneys General to investigate and prosecute mortgage fraud.

Perhaps I'm slow, but I thought there was already a big task force combating mortgage fraud as a result of the last housing bubble.

The difference, if you read the article carefully, must be that this task force is focusing on "bogus foreclosure rescue" schemes. It's much more of a housing market collapse mortgage fraud task force, as opposed to the prior mortgage fraud task force which focused on schemes from when real estate prices were high.

That's a relief. I'd hate to think that prosecutors are doubling up their efforts just so they could issue press releases.

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.

There's a story out of Connecticut that I find particularly troubling; a woman has entered a guilty plea to obstruction of justice after lying to federal agents in a health care fraud investigation. To my mind, obstruction of justice charges have one cause - failing to hire a lawyer when you need one.

Too many people think they can go it alone in a federal investigation and wait to hire a lawyer. This is a mistake. To be sure, there are drawbacks to hiring a lawyer - lawyers are expensive, they take time, they tell you things you may not want to hear. But they also can advise you how to act when you, or someone you know, is caught up in an investigation.

The woman in this story said she lied about whether a patient signed an admissions form. One may think that some folks are liars and some folks aren't and that hiring a lawyer won't make a difference. I disagree. A good lawyer can intelligently explain why lying is a remarkably bad strategy when you're caught up in an investigation.

Moreover, most folks who are going to lie, lie when someone is talking to them. Hiring a lawyer early is an excellent way to make sure that you have to do the least amount of unaccompanied talking possible. And reducing the amount of your unaccompanied talking is a good way to reduce your exposure to an obstruction of justice charge.

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.

The Second Circuit has rebuffed the New York Times' attempt to get access to the information learned from wire taps of the folks involved in the Emperor's Club, the same organization that brought down Eliot Spitzer.

The opinion is here.

The result seems obvious, to me at least. Certain parts of a judicial proceeding are not public. Grand jury proceedings, for example. The court lists these proceedings at length in footnote 4.

Wiretaps just look more like grand jury proceedings than, say, public criminal trials. There is, thus, no First Amendment right of access for the press, just like there's no First Amendment right of access to a grand jury.

Though, happily, there is reason to think that we may have Eliot Spitzer to kick around a little bit more, despite the Second Circuit's ruling.

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.

Brace yourselves, because, according to the National Law Journal, the Department of Justice is hiring more lawyers to rain grand jury subpoenas and search warrants on the doctors and executives of the United States.

This should probably not be surprising, since the government has been pretty clear about what they're doing with health care investigations. And, on the campaign trail, Obama was hardly secretive about wanting to prosecute executives.

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.

Sorry to have been off line recently; technical updates have been happening. All in an effort to give you a better Kaiser blog experience.

I wanted to quickly note that the New York Times ran an AP article last week revealing that the health care fraud prosecutions are continuing. Thirty more people have been rounded up and arrested, allegedly for committing Medicare Fraud.

The article says that doctors were giving "arthritis kits" that consisted of heating pads and braces. And that was just for the lucky ones who got a kit.

Apparently Eric Holder and Kathleen Sebelius remain eager to prosecute health care providers.

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.