July 11, 2011

The First Circuit Reverses (One Count Of) a Conviction

The First Circuit today reversed a conviction in a federal criminal appeal. Or, at least one count of one of the co-defendant's convictions. His other nine counts of conviction withstood appellate scrutiny. Still.

In United States v. Newell, two men were accused of fraud involving an Indian tribe of about seventy people in the northern part of Maine. The opinion is exactly the kind that appellate courts should be writing -- it is dense and considers the arguments advanced by the parties in detail. At seventy-eight pages, it is perhaps not the terse read that most consumers of judicial opinions want. That said, if one important function of a court is to make sure the parties recognize that their arguments were heard, this opinion meets that standard. For the members of the tribe involved, there are almost ten pages of opinion per tribe member!

The reversal, though, is exactly the kind of appellate reversal that should happen. One of the men accused of the crime, Parisi, signed a check authorization for a person who was not employed with the tribe. Three witnesses for the government testified that they didn't recall if Parisi knew that the person didn't work for the tribe during the time period covered by the check. Parisi himself didn't work for the tribe during that time period. As the First Circuit noted, "we see no reason to believe that he knew,with in a few months of his arrival, where every tribal member had worked in the previous fiscal year."

This reminds me, just a bit, of the recent Onion piece, "Investigation Finds Man Wrongfully Imprisoned for 3 of 76 Murders".

Still, a reversal of a conviction by a federal appellate court is rare enough it's to be noted, even if it's just the one count.

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, 2011

The Ninth Circuit Says the District Court Can't Negotiate An Appeal Waiver

You've got to feel for federal district court judges.  No one wants someone else looking over their shoulder.  Even though winning a federal criminal appeal is hard to do, district court judges still do get reversed more often than they'd like. 

Yet, when it comes to pleading guilty, only the government can ask the defendant to give up his right to plead guilty -- the judge doesn't have a role in plea negotiations. 

One district court judge in the Ninth Circuit had a novel solution -- he'd just negotiate, "man to man", his own appeal waiver with a defendant.  Which gives rise to a remarkable Ninth Circuit opinion in United States v. Gonzalez-Melchor.

The Court told the defendant he'd sentence him below the guidelines, to something like 60 or 65 months (off the low end in the 80's), if the defendant would agree in open court not to appeal the sentence and "waste" everyone's time with an appeal. (in fairness, the court did retract the characterization of the appeal as wasteful (which is either ironic or appropriate since the Ninth Circuit reversed and remanded)).

Despite his "man to man" pledge not to appeal, the defendant appealed anyway.  The Ninth Circuit, considering this court-negotiated appeal waiver, had little trouble finding the waiver invalid.

Sadly, the Ninth Circuit remanded for resentencing, thereby unraveling the whole deal, rather than letting the appeal go forward without the waiver.  I'm looking forward to reading the opinion in a few years where the sentencing court gives the guy low end, and he appeals saying he should have gotten what he got the first time, and is only getting a higher sentence because he wouldn't agree to an illegal appeal waiver.

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 8, 2011

The Fourth Circuit Invites Open Pleas

In a federal criminal appeal this week, the Fourth Circuit bucked a line of cases in other circuits and held that the government can't try to give a longer sentence to criminal defendants just because they won't give up their right to appeal. 

A bit of background is helpful.

In the federal system, if a person enters a plea of guilty and accepts responsibility for their conduct, their federal sentencing guidelines level is reduced by two-levels automatically.  If the government makes a motion for additional acceptance, the guidelines level will drop an additional, third level.  The government is supposed to make that motion based on whether the person said he was going to plead early in the process, thereby saving the government time in preparing for trial (because, of course, using the government's resources efficiently is a factor in 18 U.S.C. section 3553(a)).

The guidelines provisions are set out in section 3E1.1.

In United States v. Divens, though, the government said that they knew the defendant, Divens, was going to plead early.  It's just that he wouldn't execute a plea agreement that gave up his right to appeal.  The government said they wouldn't move for the additional level if it meant they had the possibility of having to do an appeal.  At sentencing, without a government motion, the Court didn't give Divens credit for the third level.

Divens appealed, saying that the government can only refuse to move for the third level if they have to prepare for trial.  Here, the government didn't have to prepare, because Divens said he'd plead early.

Stunningly, the Fourth Circuit agreed.  Even though a number of other circuits have held that the government doesn't have to make the motion, the Fourth now requires the government to move for an additional level when trial prep has been avoided, regardless of whether the defendant will bend to additional government demands.

Why does this matter?  Because in plea negotiations, the government often demands plenty of concessions that don't have anything to do with avoiding trial preparation.  The government requires defendants to waive their ability to FOIA their investigative files (even though they likely couldn't get them anyway based on other FOIA exceptions), to waive their appeal rights, to give up forfeiture rights, to agree to restitution, and others.  The threat the government uses is that they won't move for the third level if the defendant won't give up these rights.

So, after Divens, the threat of the third level should be substantially different in the Fourth Circuit.

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.

June 10, 2011

OIG Investigations and Federal Employees

Federal employees are in a vulnerable position for an investigation by an Office of Inspector General (or OIG).  Basically, an OIG investigation can run in two different directions.  Each has it's own dangers that a federal employee who hears from an OIG Agent needs to be aware of.

If an OIG Agent is investigating a criminal violation of law, then the federal employee has the risk of being prosecuted.  If the OIG Agent thinks he or she can prove that the federal employee committed a crime, and the OIG Agent can convince an Assistant United States Attorney to bring a case, then the federal government is bringing its resources to bear to convict the federal employee of a crime.  Often, this means that the government wants a felony conviction, and it can quickly mean that prison time is a real risk.

If, however, the Assistant United States Attorney decides that a criminal prosecution is not warranted, either because there isn't enough evidence of a crime, or because what happened isn't serious enough to warrant a prosecution, or because what the OIG Agent is investigating isn't a violation of a criminal law, then the federal employee is still not in a good position, because he or she can lose his or her job.  If criminal charges aren't an option, the OIG Agent can require that a federal employee give an interview.  If the employee doesn't give the interview, then that can be a basis for a disciplinary action.

Federal employees face unique risks.  They're conduct has its own law enforcement offices that are set up to investigate - aside from government contractors, OIG Agents spend a lot of time looking at federal employees. 

For a federal employee who is under scrutiny by an OIG Agent, it is important to know what is happening, and what needs to be done to protect your job, and, possibly, your freedom.

June 7, 2011

Matt Teaches a Course on Campus Sexual Assault Defense

I have represented, successfully, students at Universities in the greater D.C. area who have been charged in internal campus disciplinary proceedings with sexual assault.  In the cases I've handled, no prosecutor would take these cases - the evidence is simply not strong enough to support a conviction.  Moreover, the complaining witnesses have an interest in not having anyone outside of the campus environment look into what happened.

The cases I've handled arise out of romantic relationships that are ending badly, or out of nights out drinking.  There is no question that the couple had sex, the only issue is whether the sex was consensual.

What's challenging about these cases is that schools are not obligated to provide the same rights to their students that people who are accused of a crime in a normal court have.  Normally, the school writes a code of student conduct that defines how these procedures will work.  Sometimes the school doesn't follow its own procedures.  This can seriously undermine a student's ability to defend himself.

Recently, I gave a talk for lawyers on how to represent students accused of sexual assault on campus.

Here's an ad for the lecture:

In the full talk, I explain how there are a number of federal laws that apply to these kinds of situations, and how lawyers who have students who have been accused of these kinds of campus charges can defend their clients. 

This kind of situation can be a minefield, and schools are under tremendous pressure to take action when a sexual assault is reported.  It can be very difficult for a lawyer to effectively help a client, since the rules are not familiar, and the players have a different set of background notions of what should happen.

And, in these cases, the stakes are incredibly high.  A person falsely convicted of sexual assault on campus can have a notation on their transcript that can follow them for life.  It can completely alter a student's educational future, which, in turn, can change the course of a student's life.

March 31, 2011

American Exceptionalism and the United States Prison Population

There has been a lot of debate in the media in the past year, or so, about American Exceptionalism.  Put simply, American Exceptionalism is the idea that the United States of America is fundamentally different than other nations.  The idea was popular during the midterm elections as a way for Republicans to try to show that they love America more than the President.  It's perhaps more interesting to argue about that than the details of health insurance regulation.

I recently took my son to Philadelphia, to the National Constitution Center.  The museum starts with a seventeen minute live action play about our Constitution.  It's hard not to buy into the idea and ideal of American Exceptionalism in Philadelphia.  If there's a reason to think we're different, and better, surely it has it's roots in what happened in that city. (That said, a bit of distance to reflect on the idea of [insert nation here] exceptionalism may simply reveal that it isn't meaningfully different than patriotism).

I do think America is qualitatively different than other countries.  I agree with a form of American Exceptionalism in three ways.  First, I think this country, unique among others, celebrates and encourages people to carve their own path in life.  Americans innovate and rally and strive.  In a deeply unquantitative and unscientific way, I think Americans do that more than other people.  That's to be applauded.

Regrettably, America is exceptional in a second, more numerically verifiable way.  We have more people in prison than any other nation on the planet.  That's not in relative numbers, but in absolute ones.  We have 2.3 million people in prison, compared with China's 1.6 million.  Considering that China is four times the size of the United States, and is not, ahem, freedom loving, that's stunning.

I have close relationships with a number of prosecutors, and, at times, I'll ask them about their work.  The question I come back to is this - If the United States locks up more people than any other country on the planet, what does that same about America?  Are our citizens uniquely inclined toward criminal activity?  Are we, as a people, more deserving of prison time? 

I don't think that's the answer.  I think we can accept that it can be the answer (we're not Australia, after all).  Rather, I think the answer, as David Simon has argued, is that the war on drugs has been a war on poor people.  Though I don't think a prosecutor is allowed to agree (unless he or she thinks it's ok for a country to declare war on poor people, which is a separate problem).

Rather, I think a third kind of American Exceptionalism explains how prosecutors react to our unconscionably high number of prisoners.  Years ago, I went to a talk by then Chief-Justice Rehnquist.  He was explaining that he was in Finland, meeting with the Attorney General of that country.  He asked her if the Supreme Court of Finland has the power to declare an act of parliament against the law in Finland.  The Attorney General consulted with her advisors and said that they could, but never had. 

To Rehnquist, this answer illuminated a key difference between Americans and the rest of the world - it is unthinkable for an American to have power and not test it's limits.  We are, according to our late Chief Justice, a power-hungry people. 

I have talked to a number of prosecutors, and I can see the lure of the position.  One can walk into a lot of opportunities from a U.S. Attorney's Office.  But I don't know one yet who I've heard offer a thoughtful response to how dramatically out of whack our prison population is with the rest of the world.  I can see, though, how Rehnquist could offer an explanation why people who increase our prison population don't stop to think much about its size.

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.

March 6, 2011

Why Do People Hate Juries?

Jury trials are under attack. Granted, my perspective is idiosyncratic – I tend to notice things only if they affect the kind of law I practice (mainly federal criminal defense and plaintiffs personal injury) or they get so much attention in the mainstream or legal press that they can’t be ignored. But from a lot of fronts, we’re sliding into a civil law/administrative system of justice instead of the one we learn about in school and that’s in the constitution.
I’m seeing three reasons to worry – federal judges sentencing criminal defendants on acquitted conduct; caps on damages, and Ken Feinberg.
It’s hard to explain to a client that regardless of what a jury says or what he entered a plea to, the Court has the power to sentence him up to the statutory maximum based only on facts that the judge thinks finds to be true by a preponderance of the evidence.  But, hey, that's the law.  Clients reasonably ask what the point of the jury is, if not to find the facts that lead to their sentence (clients, perhaps myopically, tend to focus more on how much time they’ll be away from their family than on the name of their offense of conviction). I don’t know what to tell them.
In the federal district court where I practice most, a guy was just given a life sentence. His guidelines were just over fifteen years. The government proved up state crimes that he was acquitted of. Turns out the federal judge doing his sentencing was more sympathetic to the government's evidence than the state jury was; he decided that the defendant was actually guilty of the state offenses and gave him the statutory maximum based on hearsay testimony and a preponderance of the evidence standard. 
How much violence does that do to the idea that jury trials matter? 
The problem is that federal courts have decided that jury trials only matter to the fact of a conviction – the actual sentence is up to a judge. But, no one but a lawyer cares what the offense of conviction is – people care about how much time in prison they’re going to get. Taking a jury trial away from the thing that really matters – the facts that support a sentence – is a sophistic slight of hand.
Caps on damages in civil suits are the same thing – courts or legislatures think that they should be making decisions about damages, rather than the good citizens of our community, should be making decisions about damages.
Ken Feinberg has built an empire on the idea that jury trials are to be avoided. And he’s showing no signs of turning into Ozymandias any time soon.
I’m not sure if jury determinations about, say, sentencing would always work out well for my clients. Juries can do crazy things – they probably give sentences that are higher than what a judge would give for crimes of violence, but white collar cases may work out better, at least under current federal sentencing guidelines. In civil cases, there are plenty of stories of completely bizarre jury behavior.
What bothers me is that the way jury rights are chipped away at is the very worst about lawyers. Consider the Seventh Amendment –

            Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

“No fact tried by a jury shall be otherwise re-examined in any Court in the United States.” Pretty clear, right? 
Good citizens, here’s what your courts allow – a defendant in a civil case can file a motion for judgment on the evidence before the jury gets the case, then, after an adverse jury verdict, the defense lawyer just renews her prior motion. The Court is ruling, not on the jury verdict, but on the motion that happened before the jury verdict. It’s clever, but I don’t mean “clever” in a good way.
Is this a problem?  I think so.  If we're going to change the way we decide things in our courts, we should do it after we all get together and decide that's the change we're making.  But that's not what we're doing.  The way we decide important questions about what people should be punished for, or how much a life is worth, is changing.  And it's changing in ways that aren't being discussed.

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.

February 21, 2011

Office of Inspector General Investigations and You

I have represented a number of people in investigations by an Office of Inspector General (or "OIG").  Many of my clients have been federal employees who were being looked at by the OIG for their agency.  For federal employees in this situation, there really isn't very much information available about the process.

For that reason, I was curious to see online a pamphlet called "OIG Investigations and You."  It's put out by the Office of Inspector General for the Corporation for National and Community Service (did you know there's a Corporation for National and Community Service, and that they have an Office of Inspector General?  Well, now you do.)

I don't agree with everything in this pamphlet.  For example, the pamphlet tells you that you shouldn't talk to others about if you've been interviewed by OIG agents because it might be obstruction of justice.  I suppose that's true in an extreme case, but it seems to me more likely that it's a pain for OIG agents to not control all the information in an investigation and they'd like to scare people out of talking to, say, a lawyer hired to represent a target of an investigation. 

That aside, it's actually a fairly decent starter document about what happens in an OIG investigation and what a federal employee's rights in an OIG investigation are.

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.

February 19, 2011

Matt Kaiser Teaches Stuff On The Internet

I'm teaching an online CLE for lawyers who practice in state court and want to learn about federal criminal procedure.  It's available at Lawline.  Here's a link to a teaser video (and, yes, that is an odd way to hold my hand).


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.

October 5, 2010

Prosecutorial Misconduct Goes Unpunished

Here's a sad, though not surprising, report.  Apparently, in California, prosecutorial misconduct goes unpunished.  According to a blog on the San Francisco Weekly's page, there have only been six cases of California disciplining a prosecutor for misconduct, despite a study identifying prosecutorial misconduct based on appellate decisions in more than 700 cases.

This is troubling for three reasons.  First, most cases plead, and don't result in an appeal.  So, if there are 700 cases where misconduct can be recognized in an appellate court, that radically understates the amount of prosecutorial misconduct out there.

Second, only six prosecutors were disciplined out of the 700 cases; which is incredibly low.

Third, the post only says that they were disciplined.  It doesn't say how they were disciplined.  A discipline can include something like an admonishment; it doesn't necessarily mean that anything actually happened to the prosecutors to prevent them from continuing to engage in misconduct in the future.

This looks a lot like the kind of behavior that one finds in, say, the mortgage industry.  People are put in jobs where misconduct isn't punished, where racking up completed cases (either of mortgages sold or convictions obtained) is rewarded, and where there are few other checks on the actions of the people in the system.  Of course, folks will look into what happens at Enron.  Why won't they investigate prosecutorial misconduct?  Oh, right, because the people who would do that investigation are prosecutors.

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.

June 22, 2010

Perez Hilton, Miley Cyrus, Child Pornography, and The Kaiser Law Firm PLLC

I was interviewed recently for an article about a Perez Hilton picture of Miley Cyrus.   There's something a little more interesting about this that I alluded to when I was talking to the reporter, but that didn't come out as clearly in the article.  If you're simply looking for Perez Hilton/Miley Cyrus information, feel free to click the article; if you're curious about one interesting legal issue with the situation, read on.

First, a bit of background.  Miley Cyrus is 17, and she appears to be trying to present herself as an adult (in at least two senses of the word).  As a part of this campaign, she apparently emerged from a car in a short skirt without any underwear on.  Perez Hilton snapped a picture up her skirt that revealed what would have been hidden if she'd been wearing underwear.

Here's the interesting point.  Assume the image is pornographic (I haven't seen it, so don't have an opinion).  If Miley Cyrus were, say 19, and this had happened, the interesting question would be whether Perez Hilton's photograph was pornography, and, then, whether there was any redeeming social value to the image.  Because Miley Cyrus has been spending a lot of time in the public eye displaying a more provocative image of herself, Perez Hilton could argue that his photograph was somehow a comment on that, and could probably argue successfully that it was a further conversation about Miley Cyrus and how provocative she is.

Here, though, Miley Cyrus is under 18, and the Supreme Court has held that a pornographic depiction of a minor is per se obscene.  Which means that it doesn't matter if Perez Hilton took the picture in order to comment on a pressing social issue; it can be banned based on the fact that it's pornography and that she's under 18 alone.  Her status as a public figure is completely irrelevant to the analysis.

The interesting question is this - does that comport with our current understanding of how protective we should be of someone like Miley Cyrus?  She's already in the public realm in a pretty explicit way.  At some point, when someone is so close to the age of majority, and is already a public figure, can they lose the protection that the Supreme Court clearly intends?  

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.

January 15, 2010

Does Law Enforcement Get Laid Off When the Crime Rate Drops?

In most industries, when there's a drop in activity in that industry, people get laid off. For example, lots of title companies laid people off when the real estate market slowed down and there were fewer closings. When people buy fewer cars, autoworkers get laid off. Sadly, in this economy, one sees quite a few examples of this phenomenon.

Recent reports of a drop in crime got me wondering, what happens to law enforcement if the crime rate drops? If, for example, there were a 50% decrease in people using drugs in the country, would half the DEA agents get fired? What if it were a 10% drop?

Or, instead, would law enforcement just push for prosecution of more marginal cases? Perhaps folks who they would have decided aren't appropriate for prosecution would now be thought of as public enemies.

Law enforcement is a competitive business. Federal agents can reasonably fear losing funding for their jobs if they don't bring in the statistics to justify their positions. Would they push for more marginal prosecutions to keep bread on their table? Would you?

This is, perhaps, a little fanciful, but I wonder, is there a single example of a prosecutor's office or law enforcement department losing staff because of a drop in the crime rate? If not, why not?

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.

January 5, 2010

The Kaiser Law Firm on the Radio

I was interviewed today on The LaVar Arrington show with Chad Dukes on 106.7 FM here in Washington DC about Gilbert Arenas and his legal troubles.

Click here if you'd like to here the interview.

My basic point was that Mr. Arenas is likely going to be able to work out a plea to a no-jail misdemeanor when you look at how he's handled this and who his lawyer is. But, hey, I could be wrong.

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.

December 10, 2009

Round Up The Usual Suspects!

The National Law Journal reports that senators have been questioning Lanny Breuer about why there haven't been more fraud prosecutions. Apparently, the Senate wants the Department of Justice "to do more about those who might have contributed to the credit crisis and the recession."

Why does there have to be a criminal enforcement response to every macroeconomic change that negatively effects people? Are there any serious economists who think that recessions are caused by white collar crime?

More plausible, is that members of the Senate stand a better chance of being reelected if they badger DOJ into trying to put people in prison.

That's change we can believe in.

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.

December 8, 2009

Feeling Your Client's Pain

I recently read a very successful personal injury lawyer's advice to a lawyer who was starting a personal injury practice. His advice was "make your client's pain your own and everything else will take care of itself."

I suspect that's excellent advice, and not just for a personal injury practice.

It presents unique challenges for a criminal practice though. On one hand, I know that the best results I've achieved for clients have come when I take their case completely to heart. Cases tend to go better than I think they will when I wake up at 3 a.m. thinking about what I'll say at a hearing, or I find myself thinking of an argument to make to a prosecutor when I should be listening to one of my kids tell me about his day. Clients deserve to have a lawyer who is thinking about their cases obsessively. I know if I, or a member of my family, need a lawyer, I'd want that lawyer to be thinking about the case often.

On the other hand, criminal defense lawyers, particularly in the federal system, lose. And when you lose and you've taken your client's pain to heart, it becomes your pain. There's a tremendous amount of burnout among criminal defense lawyers; worse, too often defense lawyers prevent themselves from burning out by just not caring about their clients in the first place. The lawyer who yells at his client at the initial consultation, or doesn't explain to his client what will happen if he pleads or goes to trial, or browbeats his client into a quick plea, is the worst of our profession, and may just be keeping himself from feeling how desparate his client's situation is.

Which is not to say that this is excusable. There's an important difference between a defense and an argument you make at sentencing.

The hard part, I find, is striking a balance between being too close and too distant to how my clients. Too close and you lose perspective and can't function. And, while it hurts to see a guy who has robbed a bank go to prison, you're not going to be able to prevent that from happening in most cases. Whether or not you feel the guy's pain, he's likely going to BOP. But if you don't feel what he's going through at all, I don't know why you'd bother to do this work.

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.