The Federal Criminal Appeals Blog

Everyone makes mistakes. Even criminal defense lawyers.

Luis Juarez bought a gun. When he bought the gun, he said that he was a U.S. citizen. The government thought he was lying about that.

Mr. Juarez was charged with violating 18 U.S.C. § 911, which criminalizes making a false statement about being a United States citizen.

(Does Germany have a similar statute? Did Kennedy's "Ich bin ein Berliner" violate it? I suppose not, because being a "Berliner" - whether a resident of Berlin or a jelly donut - is probably not the same as a citizenship claim. Pity.)

A lawyer was appointed to represent him. He reviewed the evidence, and negotiated a guilty plea. Mr. Juarez took the plea and was convicted. He was sentenced to 36 months for lying about being a citizen, and 42 months for reentering the country after a prior deportation following an aggravated felony.

No appeal was taken.

Then, Mr. Juarez, filed a pro se petition for relief under 28 U.S.C. § 2255. A 2255 allows a person who is serving a federal sentence to challenge his conviction because it violated the constitution. We may start to see more of these as a result of the Supreme Court's recent ineffective assistance cases.

Mr. Juarez's 2255 alleged that his lawyer was ineffective - violating Mr. Juarez's right to counsel - because the lawyer didn't investigate whether Mr. Juarez is a United States citizen.

Mr. Juarez, at the time, had already been deported before. Yet, Mr. Juarez asserted that his mother became a citizen when Mr. Juarez was under the age of 18, that his father was deceased, and that he stayed lawfully in the country until his 18th birthday. If all of that is true, it looks like Mr. Juarez would be a citizen under the derivative citizenship statute, 8 U.S.C. § 1432(a), as it then existed.

A hearing was held on Mr. Juarez's petition. His prior counsel did the honorable thing, and told the truth. He said that he simply didn't think about derivative citizenship. If he knew of it earlier, he "would've made a motion to withdraw the plea."

This is clearly the right thing for Mr. Juarez's lawyer to do. It is remarkable, perhaps, only because it isn't always what lawyers do.

Mark Bennett, over at Defending People, had a post about a lawyer who took a different approach - conspiring with the government to lie about a nonexistent defense strategy. It's shameful.

The point of being a criminal defense lawyer is to try to help your clients. If a lawyer is going to save his own skin on a lie instead of tell the truth to help his client, he should just something else with his time. We all make mistakes. Clients shouldn't suffer as a result.

Despite Mr. Juarez's lawyer's candor, the district court denied the 2255. The Fifth Circuit, in United States v. Juarez, reversed.

If Mr. Juarez were a citizen, it would be a complete defense to the crimes he was accused of. For that reason, and because he had a colorable claim of citizenship, the Fifth Circuit reversed and remanded.

James Kimsey was not a lawyer.

But when Frederick Rizzolo was deep in a hard bit of contentious litigation, James Kimsey wanted to help out. Mr. Rizzolo's lawyers withdrew from the case. Mr. Rizzolo tried to go on without a lawyer, but his efforts were poor. One can imagine that Mr. Rizzolo felt the situation was bleak.

James Kimsey came to the rescue. While not a lawyer, Mr. Kimsey had some prior legal experience - he was previously sanctioned for the unauthorized practice of law. He was also, apparently, willing to work for free.

Mr. Kimsey ghostwrote some of Mr. Rizzolo's pleadings in his civil case. He seemed to be acting a lot like a lawyer. He wrote a summary judgment motion. He cited to Erie Railroad Co. v. Thompkins. I suspect he even wore a blue suit with a red tie.

Unfortunately, Mr. Rizzolo's opposing counsel got wind of the help Mr. Kimsey was providing. He filed a "Motion to Reveal Pro Se Litigant Rick Rizzolo's Ghost Writer."

The Motion to Reveal went to a hearing. A United States Magistrate Judge determined that Mr. Kimsey was ghostwriting pleadings for Mr. Rizzolo. The Magistrate Judge referred a prosecution for criminal contempt to the United States Attorney's Office.

18 U.S.C. § 402

Mr. Kimsey was prosecuted under section 402 - the criminal contempt of court statute. Eighteen U.S.C. section 402 reads:

Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.

The government argued that Mr. Kimsey violated this, by breaking one of the standing local rules of the Court that says that only lawyers can practice law in federal court.

Mr. Kimsey asked for, and was denied, a jury trial. He was convicted. And, in United States v. Kimsey, the Ninth Circuit reversed, and dismissed the criminal contempt charges against Mr. Kimsey.

Mr. Kimsey's case was reversed for two reasons. First, he had a right to a jury trial that was not honored. Second, the Ninth Circuit held that violating a local rule does not subject a person to criminal contempt.

A Statutory Jury Right

Normally, if the most you can receive in prison is six months or less, you do not have a right to a jury trial. The constitutional right to a jury trial only kicks in after you are eligible for a sentence or more than six months.

However, Section 402 refers to 18 U.S.C. § 3691. Section 3691 grants a right to a jury trial. Thus, even though there was no constitutional jury trial right, there was a statutory jury trial right. And, Mr. Kimsey didn't get one.

So the case was remanded for that reason.

There Are Rules and Then There Are Rules

More significantly, though, the court of appeals held that a local rule is not the kind of rule that a person can be punished with criminal contempt for violating.

This was a straightforward question of statutory interpretation - does violating a "rule" mean (a) violating a local rule or a court rule (e.g., the Federal Rules of Civil Procedure) or (b) violating a rule directed at a specific person (or narrowly defined class of persons).

The district court assumed that it meant (a), as had the Ninth Circuit and Seventh Circuits earlier. Though, assuming isn't the same as deciding, so the Ninth Circuit reconsidered the question here. Moreover, the D.C. Circuit had actually decided that "rule" for these purposes means something directed at a specific person.

The court of appeals looked at what the dictionary says -- though sadly the dictionary from the time that section 402 was made law has both definitions. So, the Ninth Circuit had to turn elsewhere.

A Word Is Known By The Company It Keeps

The appellate court, implicitly following up on Judge Posner's observations about statutory interpretation and reading words in context, noted that,

although standing court rules already existed in the early twentieth century,9 and so, based on etymology alone, it would not be inconceivable that § 402's use of the term "rule" referred to them, this possibility is severely under- mined by the application of a basic canon of statutory interpretation: "The canon, noscitur a sociis, reminds us that a word is known by the company it keeps, and is invoked when a string of statutory terms raises the implication that the words grouped in a list should be given related meaning."

Noting that the string of words in section 402 is actually "any lawful writ, process, order, rule, decree, or command of any district court of the United States" and that each of these is an action directed at a person specifically - except perhaps "rule" - the court of appeals read "rule" to mean something directed at a person specifically too.

You Will Not Probably Go To Jail For Using Comic Sans

The court of appeals also reasoned that allowing a criminal contempt prosecution for violating a local rule would lead to a deliciously absurd result:

If "rule[s]" encompass local court rules, then . . . a court would be able to fine or imprison attorneys for, let's say, failing to conform to local rules specifying the width of margins, appropriate typeface, or kind of paper used for pleadings. See, e.g., D. Haw. L.R. 10.2 ("All documents presented for filing shall be on white opaque paper of good quality . . . with one inch margins . . . ."); C.D. Cal. L.R. 11-3.1.1 ("A monospaced [type]face may not contain more than 10-1/2 characters per inch."); C.D. Cal. L.R. 11.3.2. ("All documents shall be submitted on opaque, unglazed, white paper (including recycled paper) not less than 13-pound weight."). It is at least exceedingly unlikely that Congress intended to authorize convictions of criminal contempt for disobeying ministerial, generally applicable requirements forbidding low-quality paper or excessively small type.

Though I suspect some workers in some court's Clerk's offices would not see criminal sanctions for using the wrong font or paper as a bad result.

Walter Blair was a full-service lawyer. He received a phone call from a woman who wanted to hire a criminal defense lawyer. The woman's name was Ms. Nicely. Ms. Nicely had a relatively intricate problem.

The Safe Full of Money

As it happened, she was in possession of a safe that contained a substantial amount of money that belonged to Mr. Rankine. Mr. Rankine was a drug-dealer. The money was drug money. Mr. Rankine's girlfriend had been found murdered, and Mr. Rankine was missing.

Ms. Nicely had been receiving threats about the money in the safe and became frightened. Through a referral from a co-worker, Mr. Henry, she contacted Mr. Blair.

They met. Mr. Blair told her to open the safe "by any means necessary" and bring the money to him. She did.

 

$170,000

Mr. Blair and Mr. Henry counted the money - there was approximately $170,000. Mr. Blair made up a cover story about a joint investment headed by Mr. Rankine's girlfriend. Since she was no longer living, she couldn't repudiate the story.

Mr. Blair then had his law partner create a corporation to take the money so that Ms. Nicely and Mr. Henry could invest in real estate. This was in 2003 when investing in real estate seemed less like investing in Smurf collectibles.

Mr. Blair also told Mr. Henry and Ms. Nicely that they would need to set aside money to cover the legal fees for two of Mr. Rankine's colleagues who had been arrested and were charged in the U.S. District Court in Richmond Virginia.

The Federal Case In Virginia

Mr. Blair reached out to two Virginia lawyers to represent Mr. Rankine's colleagues. Mr. Blair also retained himself to represent the men. Eventually, he filed a pro hac vice motion in the federal case in Virginia.

(A pro hac vice motion is a motion that lets an attorney practice law in a court that she is not otherwise admitted to practice in for one time only, provided certain conditions are met).

As a part of the pro hac vice motion, Mr. Blair told the court that he had never been disciplined by any bar association. As it happened, that was not entirely accurate - Mr. Blair had previously had his law license suspended in West Virginia for witness tampering.

Things Break Bad

Mr. Blair gave Ms. Nicely a set of things to memorize about how all of these transactions were supposed to have gone down. Sadly, when interviewed by the FBI, Ms. Nicely was not 100% in line with Mr. Blair's instructions. Oh what a tangled web we weave.

Mr. Blair was indicted for money laundering, in violation of 18 U.S.C. § 1956 and § 1957 for his handling of the funds brought into his office. He was charged with obstruction of justice for his false statement in his pro hac vice motion under 18 U.S.C. § 1503. He was also charged with failing to file a tax return.

On appeal, he had two main challenges. The Fourth Circuit gave Mr. Blair a split decision in United States v. Blair.

The Money Laundering Safe Harbor Issue

First, the money laundering statute has a safe harbor provision for criminal defense attorneys who are receiving money from someone to mount a defense. Mr. Blair contended that this safe harbor provision sheltered him from one of the money laundering charges against him.

There's been a lot of attention to this issue lately, particularly since the Eleventh Circuit rejected a government money laundering prosecution in United States v. Velez. The basic rule of the safe harbor provision is that if a person has money that was derived from illegal conduct, and uses that money to pay for a defense attorney, that transfer cannot be the basis of a money laundering conviction. Section 1957(f)(1) recognizes that the Sixth Amendment protection of the right to counsel is more important than criminalizing this behavior.

Here, though, the Fourth Circuit rejected the safe harbor provision's application to Mr. Blair. As Judge Wilkinson said,

Blair used someone else's criminally derived proceeds to bankroll counsel for others.

This, the majority found, exceeds the scope of the safe harbor provision. Though Judge Traxler wrote a forceful dissent arguing that the safe harbor provision should apply.

Obstruction of Justice Challenge

Mr. Blair fared much better on his challenge to the obstruction of justice conviction. The government argued that lying on a pro hac vice motion is obstruction of justice. To do that, the prosecutors had to successfully "establish a nexus between the false statement and the obstruction of the administration of justice." That is, the government had to show that Mr. Blair's false statement "had a natural and probable effect of impeding justice."

The Fourth Circuit found no evidence that Mr. Blair lying about his West Virginia disciplinary troubles caused any problems, or was likely to cause any problems, with anything. Mr. Blair's representation was already a massive conflict of interest - his lie was just icing.

The court of appeals concluded that the government's allegations rested on "mere speculation."

The appellate court, then, vacated Mr. Blair's conviction for obstruction of justice, and remanded for resentencing without that count of conviction.

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.

I was in court the other day waiting for a hearing, and I saw a heart breaking scene. A woman who looked to be in her late twenties was the defendant in a criminal case and she had brought her daughter to court with her. I would bet her daughter was about four.

She didn't have anyone with her to watch her daughter, so she brought her up to counsel table for her hearing. When she got to counsel's table, the judge asked her where her lawyer was. She said she didn't have one. As it turned out, she had already plead guilty to felony theft. She was coming back for her sentencing hearing.

The judge asked her why she didn't have a lawyer. From looking at the docket for her case and his notes, he told her that he could see that they had continued the trial date twice for her. Each time the judge inquired about her eligibility for a public defender, and concluded that she was eligible. Each time he told her to go to the public defender's office. He also told her to go get a public defender after her plea hearing.

The judge was clearly frustrated. The woman rambled a little bit about how she didn't commit the crime (!), then told the judge that she didn't know, but she thought she might be depressed, and that she knew she was supposed to go to the public defender but she just couldn't make herself do it.

It was an incredibly sad, and all too familiar, moment. I find that too many of my clients are overwhelmed by the charges pending against them and can't really function to work on their case. It's hard to watch that happen, both as a person and as a lawyer. I've seen it hurt people badly. The criminal justice system is not forgiving of people who don't act in their own defense.

I find that when my rapport with my client is strong I can get through some of that depression to help the client focus on the case a little. When the rapport isn't strong, well, it's just a lot harder. I'd be very eager to hear from any readers about how they handle depression in their clients; it's a problem that I don't think gets enough attention in the criminal defense bar.

Perhaps the only solution is the one that came to the woman I saw in court that day. A lawyer in the courtroom, moved by the scene that she was watching, stood up and asked the judge if she could talk to the woman for a minute in the hallway. She didn't know if she would get paid (she may, in fact, have known that she wouldn't), but she was willing to help.

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.

Continue reading "When Can an AUSA Lie?" »

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.

Continue reading "When Criminal Defense Lawyers Go Bad" »

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.

Continue reading "Switching Lawyers Right Before Trial" »

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.

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

The second rule of being charged with a crime is to not talk about being charged with a crime. Do not talk about being charged with a crime with anyone who is not your lawyer.

Your communications with your lawyer are protected. Unless you're hatching a crime or scheming up a lie with your lawyer, the government cannot find out what you talk about with your lawyer.

Conversations with other people are not protected. The government can learn what you told your mom. It can subpoena your dad. A prosecutor can make your sister talk. Your boyfriend can be brought before a grand jury.

Jurors will find your words through the voice of your family and friends to be very persuasive and credible evidence against you. Do not create such powerful evidence.

You may think your family will lie for you. Your friends may be willing to protect you. But that's a horrible position to put people in and it may not work. The only thing worse than going over a cliff is taking your loved ones with you.

Continue reading "The second rule of being charged with a crime" »

I am amazed at the things I hear that lawyers are doing when they first meet with a potential client, particularly a client who is accused of a crime. It's a big moment in the case, and it sets the tone for the rest of the lawyer's working relationship with the client.

In the hopes that you'll be amazed, and, perhaps, amused, at these stories, I'm starting this series on Things A Lawyer Should Not Do During Your Initial Consultation.

The First Thing a Lawyer Should Not Do During Your Initial Consultation is . . . Lecture You.

Continue reading "Things a criminal defense lawyer should not do during an initial consultation, part 1" »