The Federal Criminal Appeals Blog

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.

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.

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" »

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.

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.

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.

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.

Continue reading "Does Ferris Bueller Need a Criminal Defense Lawyer?" »

Getting ready for a criminal trial is a stressful time. It's particularly stressful for the relationship between the lawyer trying the case and the person who is trusting the lawyer to try the case well. The lawyer may see the case one way, and the client may have a very different, even inconsistent, view of how the case should be tried.

As a result, it is not uncommon for a person accused of a crime to try to find a new lawyer shortly before trial. The problem, however, is that often the court is uninterested in upsetting its schedule to allow a new lawyer to come into the case.

When does a court grant a motion for new trial? In the Fourth Circuit, which decides the rules for federal trial courts in Maryland, the Virginias, and the Carolinas, the case that describes how a trial court resolves a request for a new lawyer during a trial is United States v. Mullen.

The court should look at three things.

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 "Switching Lawyers Right Before Trial" »

Senator Jim Webb, who is perhaps the best thing to come out of Virginia since Thomas Jefferson, is on a campaign to reform our criminal justice system. He's currently trying to pass legislation that will consider how our criminal justice system is broken, and what we need to do to fix it. He wants to look at how we incarcerate folks with mental illness, and why our incarceration rates are the highest in the civilized world. And, he keeps pushing the proposal.

As Senator Webb puts it a quote from an article in the Washington Monthly:

Let's start with a premise that I don't think a lot of Americans are aware of. We have five percent of the world's population; we have 25 percent of the world's known prison population. There are only two possibilities here: either we have the most evil people on earth living in the United States; or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice.

Obviously, I'm a big fan of this effort. Senator Webb showed a lot of intellectual strength in the way he responded to President Bush's 2007 State of the Union address, and his campaign for Senate in 2006 was a lot of fun to watch. I'm very excited that he's willing to touch such an unpopular, yet deeply troubling, problem.

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 "Senator Webb is a hero" »

Many people ask me what the prosecutor has to prove to have the jury convict them of a crime. At a general level, the answer is pretty straightforward - the prosecutor has to prove each and every element of the charged offense beyond a reasonable doubt.

By way of example, consider a conspiracy charge. The elements of conspiracy, at least under federal law, are (1) an agreement (2) between two or more people (3) to do something criminal, and (4) an overt act in furtherance of the conspiracy by at least one coconspirator. The prosecutor has to prove, then, beyond a reasonable doubt, each of these elements.

And, really, that's it.

It doesn't matter if the agreement wasn't in writing. It doesn't matter if any particular coconspirator didn't realize that the subject of the agreement was a crime. It doesn't matter if the person being charged is just a minor player. If the government can prove the elements of a conspiracy, that's enough for a jury to find someone charged with that crime guilty.

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 "What the government has to prove to convict" »

Apparently Judge Urbina on the federal district court in D.C. has developed his own alternative sentencing regime. He ordered criminal defendants to write a book.

The New York Times, in the opinion piece linked to above, thinks this is a bad idea. They think it isn't terribly significant punishment and can be dispatched too quickly and with too much insincerity. Perhaps.

A publishing blog questions (without saying as much) whether such a condition of probation can be constitutional. With a headline "Torture reinstituted in Washington Courts" the MobyLives blog suggests that writing a book is the kind of thing a person cannot be ordered to do, comparing the requirement that the defendant write a book to being ordered to hit a home run at Nationals Park (which may not be the best metaphor, hitting a home run at Nationals Park seems to be pretty easy for many visiting teams, particularly in, say, the 8th inning).

A person can only be punished for willfully violating a condition of probation - if the defendant/author can't write a book, he can't be punished for not complying with his probation conditions. Perhaps this condition can't be complied with (though, really, compared to spending time at your local Federal Correctional Institution, surely writing a book isn't that hard).

Personally, I think it remedies one big problem with our criminal justice system - that the person who is caught up in the system is too often silenced. His lawyer tells him not to talk (for good reason), he often does not testify at his own trial (for good reason), and prosecutors and agents tend to think that anytime he's talking he's lying.

At least Judge Urbina wants people to tell their stories.

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.

California may have to lay off some of its public defenders. It will not be suprising that I think this is a bad thing. Obviously, this is not a great economy. Most of us are hurting. Governments need to cut costs, just like everyone else.

As the linked to article makes clear, though, cutting public defender budgets is really not a great way to do it.

Defendants would sit in jail longer, increasing incarceration costs. . . . Cases would be delayed while private attorneys get up to speed, creating bigger clogs in a legal pipeline that barely trickles now.

And, of course, paying private counsel to work on cases instead of paying a public defender's office is an illusory cost savings.

That said, budgets must be cut; books must be balanced. What's the best way to implement a cheaper system of criminal justice?

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 "A cheaper system of criminal justice" »

The Fourth Circuit decided today to deny rehearing en banc in a published opinion. Here it is. That, itself, is somewhat remarkable.

What's more remarkable are the underlying facts of the case of United States v. Whorely. Mr. Whorely was communicating with other adults via email. He did not send pictures. Instead, he transmitted, through text alone, his sexual fantasies. His fantasies, as it happened, involved kids and, therefore, were obscene (though the opinion makes it clear the kids were only imagined; no real children were harmed while Mr. Whorely was typing).

Judge Niemeyer, writing for everyone on the Fourth Circuit but Judge Gregory, sums the case up like this, "Whorley violated criminal statutes regulating obscenity, and his convictions may not be forgiven because his conduct was prompted by his sexual fantasies."

After noting that this may be a very unfortunate case of a criminal defense lawyer not preserving an issue properly in an appeal, Judge Gregory pulls out the rhetorical big guns in dissent.

I am hard-pressed to think of a better modern day example of government regulation of private thoughts than what we have before us in this case: convicting a man for the victimless "crime" of privately communicating his personal fantasies to other consenting adults.

Judge Gregory's view is that Stanely v. Georgia, which held that possession of obscene material in your house is protected by the First Amendment, should also apply to your email inbox.

In today's world, our e-mail inbox, just as much as our home, has become the place where we store the "memorabilia of [our] thoughts and dreams," and the same principles that animated Stanley call now for Stanley's extension to the circumstances of this case.

I have two reactions to this decision.

First, as a lawyer, I see where the court is coming from. Surely Gregory's view that your inbox is basically the same as your bedroom is factually (and probably morally) questionable. Email is out there in the world. Your bedroom is, well, not.

On the other hand, really? We're really putting people in prison for writing fiction and sending it to other people? Not to be cliche, but if Lolita were more graphic I could go to prison for faxing it to someone (you've got to use the wires to meet the other statutoy elements in the case)?

I'm with Gregory when he says that

The Supreme Court's obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this kind of governmental intrusion into individual freedom of thought are incredibly worrisome.

Why can't we just ostracize Mr. Whorely? Whatever happened to nongovernmental shaming?

Regardless of the policy arguments, the moral is clear - if you live in Maryland or any of the other states in the Fourth Circuit, watch what you put in your email.

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 Fourth Circuit has ruled that a federal district court cannot assume that a sentence within the guidelines is reasonable. The case is United States v. Cordell Smith. Check out the opinion here.

It has been far too easy for federal judges to look at the conveniently calculated guidelines range and give a sentence within that range.

As I've written about before, the things you have to think about in sentencing a person are complicated and hard to get traction on. How do you balance "respect for the law" with the nature of the offense and an individual defendant's background in such a way as to arrive at a specific number of months in prison?

It's very easy for judges to look to the guidelines, which at least provide a mechanism for solving these kinds of problems. And they have the imprimatur of objectivity; an agency solicited input from lots of different sources, did a bunch of complicated (and opaque) empirical work, and generated a big book of rules.

The Supreme Court has said that a guidelines sentence is not presumptively reasonable. The Fourth Circuit last month agreed. Will this make a difference in the way judges sentence in Maryland, the Virginias, and the Carolinas? Will it change the way criminal defense lawyers approach sentencing?

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 "Change We Can Believe In (in federal sentencing)?" »

Your case may be bad. It may be really bad. But your lawyer should not tell you to plead guilty before he or she looks at the evidence in your case.

Maybe six cops found you with a counterfeit machine on your lap dripping with ink and newly created "currency" stacked around you. Maybe they found a video tape of you telling your broker to sell because you've got inside information that the company's product causes head lice. Maybe you went door to door confessing to a crime and the story is now on youtube. Regardless, your lawyer should look at the evidence the government has against you before trying to figure out whether to make a deal with the government or go to trial.

Sure, there are times when you need to make a decision quickly. But normally that means a prosecutor should get your lawyer his evidence more quickly.

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 "Things a criminal defense lawyer should not do during an initial consultation, part 2" »

Federal courts do not hear every case; they are courts of limited jurisdiction. Most criminal conduct is prosecuted in state court, both because federal prosecutors are (supposed to be) selective about when they make a federal case out of it, and because there is not federal jurisdiction over every case.

That said, there are many ways to meet the thresholds for federal jurisdiction. The accused D.C. Madam, for example, was charged in federal court with using the mail in furtherance of her alleged prostitution ring. Had she avoided using the mail, she also might have avoided a federal trial. (Perhaps Federal Express missed a marketing possibility.)

The Fourth Circuit decided a case on June 10, that shows another way to allow a federal court to assert jurisdiction over you.

In United States v. Wadford, the Fourth Circuit reviewed the conviction of Mr. Kelly Wadford. The opinion is available here. Mr. Wardford is, to put it mildly, not the kind of guy you would want your daughter to bring home.

According to the opinion, Mr. Wadford is an afficiandao of Rohypnol, the date rape drug. Repugnant as it is, though, it was not Rohypnol use alone that landed him in federal court. Rather, Mr. Wadford chose to use his Rohypnol on a business trip with a female colleague who he drugged and assaulted. While on the trip, the travellers crossed several state lines. This provided the basis for a charge under the Mann Act.

Even that may not have been what got him a federal indictment though. How did Mr. Wadford ensure he'd wind up in federal court?

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

Continue reading "How to get indicted in federal court" »