Articles Posted in Criminal Strategy

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Talk to anyone lucky enough to earn his/her livelihood through criminal appellate practice, and you’ll likely hear some version of the following complaint: the Government is never held to the same standard as the criminal defendant on appeal.  Whether it’s waiver during the trial-level proceedings, or a purported waiver during oral argument or in the briefing, it often seems like appellate courts give the Government a degree of latitude that is not usually afforded to the defense.  This case is an exception and a refreshing reminder to the Government that not dotting i’s and crossing t’s can have some meaningful consequences.

In United States v. Reyes-Rivas, the defendant/appellant argued during sentencing and on appeal that he did not meet the criteria for a “career offender” enhancement under section 4B1.1 of the Sentencing Guidelines.  Specifically, he argued one of his priors – a Puerto Rico conviction for fourth degree aggravated battery – did not qualify as a “crime of violence.”  He also argued that the conviction could not qualify as a “crime of violence” under the residual clause of section 4B1.1.  He reasoned that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) applied to the career offender enhancement because the residual clause language in the Armed Career Criminal Act was almost identical to the residual clause language in the Sentencing Guidelines.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He is a First Circuit CJA attorney and practices in federal appellate courts around the country.  He is also the founding member of The Brownlee Law Firm.  To learn more, visit or email Mike at 

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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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One of the trickiest problems in a criminal trial, in federal court or any other court, is determining if the person accused of a crime should testify.

On one hand, the jurors instinctively want to hear what the person has to say. They’re instructed not to hold it against him if he doesn’t testify, but, as a matter of human psychology, people want the guy who just sat and listened to others say bad things about him to say something back.

Dice.jpgAnd, of course, the person on trial may have something useful to say in his own defense.

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As I blogged about before, it is not a crime to violate MySpace’s terms of use. And, now, there’s a judicial opinion that sets forth the court’s reasoning!

Here’s the key language:

[T]he question is whether individuals of “common intelligence” are on notice that a breach of a terms of service contract can become a crime . . . . Arguably, they are not.

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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.

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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.

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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.

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In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing.

This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people.

I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.

One writer argues that Melendez-Diaz is a bad idea because,

The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It’s rare where a legitimate challenge can be raised to the reliability of a particular drug screening.

I think this is wrong; Melendez-Diaz is good policy for two reasons. I’ll explain what they are, 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.
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At the risk of turning this into the Melendez-Diaz blog, I will note that there is a nice article in the Washington Post this morning about a Virginia court throwing out a DUI because of Melendez-Diaz.

Perhaps my favorite part of the article:

[A] phalanx of defense lawyers who watched the hearing left the courtroom quietly jubilant and congratulating colleague David Bernhard, who first tried to use the new Supreme Court ruling on the same morning it was issued. That caused Roush to crack, “You’re going to make me read Justice Scalia before lunch?”

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The D.C Court of Appeals has dismissed a conviction relying on Melendez-Diaz! The case is Tabaka v. District of Columbia.

The Court determined that, after Melendez-Diaz‘s very powerful language about how a Certificate of Nonexistence of Record (a “CNR”) is a testimonial statement which requires a person have a right to cross-examine the person offering the evidence, a conviction which was based on such a certificate must be dismissed.

The Supreme Court’s analysis conclusively shows that the CNR in this case, “a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it,” id., was inadmissible over objection without corresponding testimony by the . . . official who had performed the search.

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