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In white-collar cases, loss drives the sentencing guidelines. If a person is convicted of a federal fraud charge, probably the single biggest legal issue that will matter to that person’s sentence is what the loss amount is.

By contrast, the biggest thing about the case that will matter is what judge the person draws. It’s better to have a great sentencing judge and a high loss amount than a low loss amount with a judge who sentences more aggressively.

But I digress.

money-choise-concept-1439274-m.jpgThe government’s view of most fraud cases, in my experience, benefits from the clarity of hindsight. After everything has fallen apart, it’s easy to see that, say, a person selling an investment vehicle was using a new investor’s funds to pay someone who is clamoring for his or her money back.

In hindsight, it’s easier to see a Ponzi scheme than it may be in the crush of the moment. Some people plan to run Ponzi schemes, others fall into them through circumstance. Such is the way of the world.

In any event, loss for a Ponzi scheme can be tricky. Generally, the loss amount under the sentencing guidelines is the amount of money that was reasonably foreseeable to be lost by the victims. And it’s what’s reasonably foreseeable for the person committing the crime.

Ok, fair enough. The trouble is with the “credit against loss” rule. The sentencing guidelines explain that when the person being sentenced has paid some money back before the authorities or the victims cottoned onto the scheme, that money should be deducted from the loss amount.

This makes sense. If my son steals $20 from my wallet, but feels bad and puts it back before I notice, he should get some credit for that.

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There are two cases in this batch of short wins that I think deserve a special shout out.

First, there’s United States v. Torres-Perez. Appeal waivers are the bane of federal criminal practice (or one of them). Their only advantage is that they make prosecutors’ lives easier. The downside, which is significant, is that they discourage the development of the law. I’d rather have the government work more and know what the law is. Though I may be crazy. In Perez, the Fifth Circuit slapped down an appeal waiver requirement in order to get credit for a acceptance.

Second, there’s United States v. Barta – another great entrapment case from the Seventh Circuit. That circuit is bustin out entrapment cases like Taylor Swift and Katy Perry bust out insults of each other. Or something.

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United States v. Fard is a nice study in the wrong way for a lawyer to handle a plea hearing.

Let me say, at the start, that I get that a plea hearing can be hard. Sometimes a lawyer sees what’s in his client’s best interests more clearly than the client. There can be a temptation to push a client really hard to take a plea when the client doesn’t want to. And getting a client who has reluctantly inked a plea through a plea hearing can also be hard.

There are few things you can do to handle that. Maybe you spend more time with the client explaining why a plea makes sense. Maybe you talk – with permission – to the client’s loved ones about whether a plea makes sense. Maybe, if the client doesn’t want to plead, you reflect that it’s the client’s Sixth Amendment right to go to trial, and not the lawyer’s and you take the case to trial.

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It’s been an interesting week in the federal circuits. Aside from the normal and expected sentencing appeals, there are two cases that caught my eye.

The first is United States v. Fard on withdrawing a plea. I often hear from people who have entered a plea and want to talk about hiring me to withdraw it. It can be maddening to see how other lawyers have poorly advised their clients, or have simply had them enter pleas that their client does not understand (sometimes, especially when the lawyer has no prior criminal defense experience, I fear the lawyer doesn’t understand the plea either). Fard helps, a bit, in attacking pleas that aren’t knowing and voluntary.

The second case I find interesting solely for the schaedenfraude it gives me. The case is United States v. Smith. There, an AUSA was appointed and confirmed to be a judge. As a judge, he worked on a case he also worked on as an AUSA. Hijinks ensue.

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the-money-trap-621161-m.jpgAs I’ve been writing about a lot over on Above the Law, one thing that is really not good about the federal criminal system is that it is extremely hard to attack government conduct.

This isn’t to say that all prosecutors or cops are bad. But they have massive amounts of unchecked power. And, my view at least, is that human nature is such that any given with power has at least a decent chance of abusing it. Prosecutors and cops aren’t saints – some of them are going to do what they ought not. And, when that happens, absent an egregious Brady violation and a really good judge, nothing much is likely to happen to the prosecutor.

Perhaps the hardest part of this is in entrapment law. The government should be in the business of catching crime, not creating crime to catch.

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And, after a really long break, we’re back. Apologies. This day job has been very busy lately.

And, of course, if you ever find yourself jonesing for my writing, you can always check out my stuff on Above the Law.

You saw our guest post on Hite last week – it’s a great case that bears a close read.

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Editor’s Note – We’ve never had a guest post before, and normally I give a blanket no to a request for one. But, Assistant Federal Public Defender extraordinaire Jon Jeffress wrote a great piece about the D.C. Circuit’s recent decision in United States v. Hite that I’m very pleased to publish here.

If you’re looking at this as a precedent for other guest posts, please know that if you are an AFPD or credible attorney working in the federal system on criminal cases, I’d be happy to look at anything. Otherwise, no.

Finally, I should say that the opinions here are solely Jon’s, not those of his office or anyone else. Except where he’s quoting the D.C. Circuit – those are the opinions of the Circuit.

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Fake stash house robbery cases are an embarrassment to a civilized society.

Here’s what happens. An undercover ATF agent finds a guy and does some deals with him. He then tells the guy he knows of a stash house where there are a lot of drugs and guns. Probably money too. Maybe a unicorn. Whatever it takes to get the guy interested.

The guy gets some other guys involved. They get weapons and gear up for this robbery of someone they believe is a drug dealer.

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Child porn cases are turning out to be a surprisingly large portion of what’s in federal court.

Child pornography is gross and wrong, to be clear. But these cases are, I think, a symptom of a larger problem.

All of us have times in our lives when we’re in the wilderness, when we feel adrift and alienated and unsure of where we’re going or where we are. Some folks in this time of life turn to alcohol, Some turn to drugs, video games, or other ways to keep themselves from facing the great chasm of dissatisfaction that their lives have become. “The mass of men lead lives of quiet desparation” and all that.

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It’s been an interesting few weeks in the circuits (and, apologies for the gap in posting – pesky family vacations).

Probably my favorite is United States v. Mergen, about whether an FBI agent’s statements that what the guy charged with a crime was doing were ok and legal were admissible. I tend to think FBI stings that take advantage of how weak the entrapment defense is are one of the more loathsome things our federal government does – any time you can poke holes in that I think it’s a good thing.

Also of note is United States v. Bagdy – there, a guy who spent an inheritance on stuff that wasn’t restitution, instead of restitution, didn’t violate his supervised release conditions. Supervised release can be insane – especially when restitution is in play. Nice work for the Third Circuit in dialing it back.