Federal law requires that the Government provide certain materials to the Defendant and his or her attorney.  Some people call this the “evidence” but it is both broader and more narrow than that.

By law, the Feds have to give the Defendant all documents, physical evidence, and any expert testing that the prosecutor intends to use during a trial.  Note that the last line said nothing about what the witnesses say.  Under the law, the federal prosecutor can hold back the witness statements until the actual trial, which is, obviously, grossly unfair.  In addition, Government also needs to hand over any “Brady” material, which means anything tending to show that then Defendant is not guilty.

While the law only requires a small amount of material to be turned over to the defense, the past 40 years of practice has eroded that rule to an almost meaningless mush of words.  Nowadays, prosecutors drown the defense with data and details.  A single email leading to an individualdual transaction yields mountains of data, and the trick for the defense is to see if there is a way to wade through this bog to find the real heart of the case.  Furthermore, prosecutors now regularly hand over so many witness statements that it is difficult to figure out which one is important as opposed to some meaningless interview with a federal agent.  As a result, over the past four decades I went from not knowing enough to knowing too much, but the bottom line always has remained the same:  figure out what happened and defend my client.

Lots of changes over the years but I still advise people being investigated or prosecuted to consult with an attorney who specializes in these complex matters.  For me, now it is back to my most recent case here in federal court in Atlanta.

TIP NUMBER ONE-dress appropriately.  I know, sounds simple, but we are trying to impress the Judge, and first impressions do matter.  Dress as if you are attending a religious service, a wedding or a similar formal event.  Avoid flashy jewelry and makeup.  When possible, cover tattoos with long sleeves, etc.

TIP NUMBER TWO-be prepared to admit you are guilty.  This one is often difficult, and goes against the grain for many people.  We are naturally reluctant to admit to our mistakes, especially in front of a Judge, but my experience over the many years is that clients who end up with the best sentences are the ones who clearly and honestly admit upfront that they screwed up and committed a crime.

TIP NUMBER THREE-answer clearly and loudly when the Judge asks you questions.  The guilty plea proceeding is always very stressful, and most people are not accustomed to speaking in a formal setting like court.  Many people in such settings mumble and speak quietly, but the key is to practice with the attorney and go over the Judge’s questions ahead of the hearing.

TIP NUMBER FOUR-ask your lawyer all your questions before the hearing.  It always looks bad to the Judge when the client and lawyer need to huddle together during the guilty plea proceeding because they forgot to go over something.  Be fully prepared whenever possible.  And the final tip is:

TIP NUMBER FIVE-remember that the guilty plea proceeding in federal court is NOT the final sentencing hearing.  At the guilty plea hearing the Judge does not want to hear why you committed the crime, only that you did actually do so.  Too many Defendants want to start their argument about why the Judge should be lenient with them during the guilty plea proceeding, and that never goes well.

Pleading guilty is stressful for people accused of federal crimes.  Make sure you use an >experienced federal criminal defense attorney to guide you through the process, and remember some of these tips if that is what you end up doing.

The first stop is a hearing in front of a U.S. Magistrate Judge.  Today was a good assignment, the very capable Judge was a former protege, I helped her try her first federal criminal case in this District many years ago.  All Magistrates inform the accused person of the charges against them and their rights.  The Magistrate then tells the person about the process going forward, he or she goes over bail options and a few other standard details such as assigning the case to another Judge for further proceedings.  Much of the time we work out the bail package ahead of time.  Today was no different, and my client merely had to sign an “unsecured bond”, meaning he and his family did not need to put up any money or property to secure his release on bail.

Next stop: the U.S. Marshal Service for “processing.  This part is sometimes the most scary for clients, in that I surrender them to a Deputy Marshal who takes the accused person back into a “lockup  facility”, which has cells, bars and inmates in handcuffs and ankle chains.  The Marshal Service then takes photographs and fingerprints, and runs one final computer check to make sure there are no “holds” or “detainers” on my client.  Today, the Deputy was very cool with my client, who is only 23 years old. The Deputy came out and explained that he told my client about what it is like back there for the people in cuffs and chains, and the Deputy said he hopes to never see my client again.

Last stop: U.S. Probation, where they open a file on my client for what is called “pretrial supervision”.  All along the way, I make a point of talking with as many people as possible who work in these various offices and courtrooms.  I have met many of these federal employees in the 40+ years I have been helping clients navigate the “system.”  It makes my client slightly more at ease to see that the individual federal employees in the system are real people and that I have at least some relationship with many of them.

Two members of a family hired me because several of their companies received grand jury subpoenas.  Their experience is rather usual, so I’ll explain  few things just to remind readers about the pitfalls that can happen when such subpoenas are handed out.

First, a grand jury subpoena can be an order to produce documents, to come give testimony before the grand jury, or both.  The first thing to remember is that no one has to provide a defense against him or herself, so anyone getting such a subpoena should go immediately to a reputable criminal defense attorney who knows the ins and outs of federal practice.

Second, such subpoenas are often used as a method for federal agents to sort of get their foot inside someone’s door and see if they will talk.  By law the subpoena has to be “served”, which means handed to the person to whom it is directed. Most people shocked to find a federal agent at their front door with a subpoena, and such agents can be very wily when engaging in this practice.  The bottom line is the usual: do NOT say anything until after you consult with a knowledgeable lawyer.

Third, these subpoenas usually have a deadline.  Do not fret.  A criminal defense lawyer who regularly handles such matters is often acquainted with the individual prosecutor handling the matter, and can most times negotiate in order to get sufficient time to prepare for a response to the subpoena.

OK, the pollen still fills the air, the trees bushes and flowers are gorgeous, and this writer needs to get back to preparing the response to the grand jury subpoena served on my clients recently.

FIRST: In federal court, evidence is admitted (or kept out) pursuant to two sets of rules.  In other words, you need to know the rules before the attorney can really help his or her client.

One set of rules comes from our beloved United States Constitution.  This venerable document contains the promise of “due process”.  It also the promise (in the Fifth Amendment) that no person shall be required to be a witness against him or herself.  The wonderful Sixth Amendment says that all people are entitled to the assistance of an attorney when charged with a crime, and perhaps most importantly, that the accused person has the right to “confront” her or his accusers.

The second set of rules are found in the handily named “Federal Rules of Evidence” or the “FRE”. These rules talk about relevance or irrelevance of certain types of information.  In the FRE you will finds lots of rules (and exceptions) for whether what we lawyers call “hearsay” can be used in a trial.  There are yet more rules that deal with the whether certain documents and other materials are allowed to be used by one side or the other. There are lots of rules and exceptions to the rules in the FRE.

SECOND: you cannot learn these rules from reading a book or website.  This lesson came back to me as I mapped out my week ahead and realized I will soon be attending the 40th reunion of my law school’s class at the University of Georgia.  I first “learned” evidence in a mandatory class at UGA, and did fairly well.  However, when I began as a practicing lawyer I quickly realized that the theory and the reality are often very different from one another.

The bottom line is that it takes a lawyer several years of winning and losing some evidentiary issues in the real world before that attorney truly “knows” the rules of evidence.  Even now, I like to go back and review much of what I first learned 40 years ago to keep a fresh perspective.  That is what I am doing much of this week and I hope the effort will help my client’s case.

I just finished meeting with a client.  We discussed many things related to his case and his life (I am one of those lawyers who simply enjoy getting to know much more about my clients beyond than the matter which  brings them to my office).  Along the way, he and I talked through the two biggest decisions in any criminal case.

DECISION NUMBER ONE: trial versus guilty plea (or other alternative resolution).  This is often the toughest decision, and is based on  the  evidence (obviously), the potential penalties, the complexity of a trial, plus a myriad of other factors. Some lawyers who have lesser trial experience subtly shade their recommendation so that their client is less likely to seek a trial.  I think that is a mistaken way to approach the trial/plea decision.  I have tried approximately 100 federal criminal cases of all types, and I relish the courtroom experience!  However, I always remind clients that while I personally enjoy the courtroom battle, it is their life and future on the line so my  enjoyment of the experience is completely beside the point.  The decision is completely up to the client in the long run, I simply make my professional recommendation.

DECISION NUMBER TWO: Client testifies/asserts Fifth Amendment right to remain silent.  If my client and I decide that the best strategy is to have a trial, then we have to confront the question of whether he or she should testify in their own defense.  Every situation is different, and I get kind of angry when I hear lawyers say stuff like they never let their clients testify, etc.  In my view that is the wrong approach, because no two cases are the same.  While there are obvious dangers when the accused person takes the witness stand, it is always an option worth discussing.

OK,  back to work everyone!

The current law on being out on bond stems from a 1984 Act which was part of a huge Crime Bill that year.  The part of the law regarding pretrial release was called the “Bail Reform Act of 1984.”  That law now allows a Judge to hold or “detain” a criminal Defendant with no bail at all if the Court determines that the person is either a “danger to the community” or a “risk of flight.”

In several of my current cases I got my client released on bond, but am still tussling with the prosecutors over some of the conditions imposed on my clients during their time out on bail.  This is somewhat common.  We get our client released at the beginning of the case by agreeing to some rather stringent and strict conditions.  As the case drags on we try to convince prosecutors (and the Court) that the harsh condition is no longer needed months and sometimes years after the person was originally released on bail.

Travel is often a big issue, especially for some of our clients who operate businesses.  Generally, these clients need permission from a “Pretrial Officer” before they can travel.  Other times, the permission can only be granted by a Judge.  Either way, I always try to fashion an agreement with the prosecutor before we approach the person with the final say-so on my client’s travel.

Another condition we often fight about is contact between our client and others in the case.  Generally it is very unwise to let the accused person have any contact with witnesses or other people who are charged in the case.  However, sometimes those witnesses and co-Defendants are family members or co-workers.  These situations require a lot of negotiation and evaluation so as to do the best we can for our client while still accounting for the Judge’s concerns.

A third issue relates to a criminal defendant’s employment while out on bail or bond.  Some Judges restrict the Defendant’s work so that he or she is no longer involved in the business or field from which the criminal charges arose.

Being out on bond is obviously far better than being in jail while a federal criminal case moves forward.  However, it often means that the federal criminal defense lawyer needs to be ready to do a lot more than just read the discovery and prepare pretrial motions.  When selecting a lawyer to represent you or a family member, remember that working on the bond conditions is also a large part of what the attorney might need to do.

The current law on being out on bond stems from a 1984 Act which was part of a huge Crime Bill that year.  The part of the law regarding pretrial release was called the “Bail Reform Act of 1984.”  That law now allows a Judge to hold or “detain” a criminal Defendant with no bail at all if the Court determines that the person is either a “danger to the community” or a “risk of flight.”

In several of my current cases I got my client released on bond, but am still tussling with the prosecutors over some of the conditions imposed on my clients during their time out on bail.  This is somewhat common.  We get our client released at the beginning of the case by agreeing to some rather stringent and strict conditions.  As the case drags on we try to convince prosecutors (and the Court) that the harsh condition is no longer needed months and sometimes years after the person was originally released on bail.

Travel is often a big issue, especially for some of our clients who operate businesses.  Generally, these clients need permission from a “Pretrial Officer” before they can travel.  Other times, the permission can only be granted by a Judge.  Either way, I always try to fashion an agreement with the prosecutor before we approach the person with the final say-so on my client’s travel.

Another condition we often fight about is contact between our client and others in the case.  Generally it is very unwise to let the accused person have any contact with witnesses or other people who are charged in the case.  However, sometimes those witnesses and co-Defendants are family members or co-workers.  These situations require a lot of negotiation and evaluation so as to do the best we can for our client while still accounting for the Judge’s concerns.

A third issue relates to a criminal defendant’s employment while out on bail or bond.  Some Judges restrict the Defendant’s work so that he or she is no longer involved in the business or field from which the criminal charges arose.

Being out on bond is obviously far better than being in jail while a federal criminal case moves forward.  However, it often means that the federal criminal defense lawyer needs to be ready to do a lot more than just read the discovery and prepare pretrial motions.  When selecting a lawyer to represent you or a family member, remember that working on the bond conditions is also a large part of what the attorney might need to do.

Recall, the PSR is a document prepared by a U.S. Probation Officer who works for the Judge.  The PSR is only prepared if a Defendant is either found guilty by a jury, or if he or she admits to committing a crime in a guilty plea proceeding.

The PSR has two basic part.  First, the Probation Officer (or “the PO”) outlines the crime and as part of that then makes recommendations as to how the Sentencing Guidelines might apply to that conduct.  Second, the PO writes up what is essentially a miniature biography of the accused person, with information about the Defendant’s family, education, health, financial situation and other factors that  might impact what is or is not a “reasonable sentence”.

The PO then gives both sides the opportunity its to submit “objections” to the initial version of the report.  If one side or the other does not like something that the PO has written, they can try to change the PO’s position on something before the final PSR is sent to the Judge.  This is a very important stage, in that the failure to properly object can sometimes prevent an otherwise good sentencing argument from being raised in a later appeal.

The final PSR goes to the Judge no later than 10-14 days before the sentencing hearing.  The Judge begins the sentencing hearing by first referring to the PSR, and discusses whether there are any unresolved objections.  As a result, the PSR is sort of the jumping off point for the hearing, so getting this document into the best shape possible from the defense perspective is crucial.

Today I am drafting objections to a PSR.  There always is the temptation to write out a long explanation of why the PO got it wrong, but the longer I do this work (we are over 40 years now) the more that I find a short and directly focused attack often works the best.

A “proffer” is when a criminal Defendant (or someone under investigation yet not currently charged) goes to see prosecutors and federal agents to give his or her version of what really happened in a case.  Often, the proffer is preceded by an “attorney proffer”, during which the person’s attorney gives prosecutors an outline of what his or her client will likely say during the later session when the accused person comes to the office to talk.  As I have written about before, these can be both valuable, and are simultaneously dangerous.

Today I met with a prosecutor ahead of the formal proffer.  This particular prosecutor truly wants to make this case move forward and resolve short of a trial or contested sentencing hearing.  Sensing that, I pushed a bit harder than I normally do, and essentially asked him to give me an outline of what the agents will ask of my client when I bring that person in for the formal proffer session.  It seemed to work.  By the end of the meeting I had more a less a roadmap of what they want my client to say (assuming it is the truth, of course) after which we should be on the road to resolve the matter more favorably to my client (and his family).

Again, my message to readers remains the same: federal criminal defense is a speciality, so please do not trust the future of you or a loved one to an attorney who is not highly experienced in these matters.

As I have posted about previously, federal criminal cases are highly complex, and the “discovery” materials are often daunting for attorneys unaccustomed to handling such matters.  By law and based also on various rulings from the U.S. Supreme Court, prosecutors are only obligated to turn over certain types of evidence prior to trial.  However, with the explosion of data in the past several decades the practice is that many prosecutors turn over anything and everything that is remotely related to the case.  The result is that lawyers are often drowning in data as they try to piece together what happened and how to defend against the allegations.

One of the tricks when reviewing this glut of materials is to do a quick overview of what has been turned over.  Next, the attorney and his or her staff need to begin searching, using various software tools and other aspects of artificial intelligence.  Gone the days when the lawyer touches and reviews each and every piece of paper in the file, because that would take the rest of his or her life in cases such as one I am currently handling which has 15 terabytes of data (and we are still many months away from trial)!  Another key is to try and figure out how the other side is handling the case and sort of replicate their tracks through the maw of material.

The bottom line is that experience makes the process go much more smoothly.  Anyone facing such a case should have an in-depth with his or her attorney as the lawyer plows through all of this material in order to make sure that the client’s story will be brought out at trial.

OK, enough musing, back to going through all this stuff!

Dr. King was no stranger to the criminal justice system.  He was jailed, prosecuted and reviled by many who were in charge of the criminal justice systems here in the South.  I strongly urge people to read (or re-read) his famed “Letter from a Birmingham Jail” a part of which is one if his most famous quotes: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

I’ve been licking  my wounds from a recent fight that I lost in Court.  It was (and is) the epitome of “injustice”.  It affects a single criminal defendant along with her family and friends (plus her legal team).  However, this single injustice is, just like Dr. King wrote, “a threat to justice everywhere”.  After several weeks of being down about this result I now have the fight back in my blood and bones.  We cannot tolerate injustice, large or small, and this MLK Day is a great way for all of us to remind ourselves that the fight for a better and more perfect society is never-ending.

Happy Birthday Dr. King, your words and memory have rejuvenated one of the foot soldiers in the cause for justice.  Now I need to get back to work.

You tainted regular readers know that I regularly discuss how federal criminal cases are creatures of politics and current events.  This year is no different.  Lawyers like myself still have lots of work based on investigations arising from the Government’s response to the COVID outbreaks. These are usually what are sometimes called “white collar” or “economic crime” matters.  The Payroll Protection Plan (“PPP) involved lots of fraud, what a shock when Congress allowed banks to shovel money out the doors with virtually no oversight and federal government backing if the loans went bad.  The same is true for the EIDL program (formally known as the Economic Injury Disaster Loan program).  Federal criminal investigations into these loan programs can be very dangerous for individuals or companies who come under the microscope of a federal agent looking at possible fraud.  I strongly recommend that you consult with an expert who has significant experience defending such cases.

Health care fraud investigations and prosecutions remain a staple of my work.  Any company or individual caught up in one of these situations needs to consult with and possibly hire a lawyer who has lots of experience in these very specialized matters.

Public corruption cases also capture headlines, and last year was no different.  I am currently handling one such matter, and likely will continue our fight through the rest of this year and possibly the next.  Such cases require a defense attorney willing to go the distance, so to speak, in order to get the best result possible for the client.

Finally, federal drug cases remain a constant.  Defending controlled substance cases is rapidly evolving, with many States and local jurisdictions de-criminalizing or even legalizing drugs that the Feds still call “illegal.”  Anyone caught up in such matters needs the services of a specialist, and should not put their future in the hands of an inexperienced attorney.

Back to work and I promise to post more this coming year!

Anyone reading our website knows that there are “federal fraud” cases, and then there are sub-species of federal fraud.  Health Care Fraud is an especially dangerous and pernicious charge to defend against.  For starters, the wickedly complex Federal Sentencing Guidelines  make the potential sentences for Health Care Fraud even longer than what is suggested for regular run-of-the -mill fraud.  Certain “specific offense characteristics” bump up the scoring mechanism when prosecutors include an allegation that an accused person’s supposedly fraudulent conduct violated one of the Health Care Fraud laws that Congress has enacted over the years.

The accused person and his or her lawyer also need to be keenly aware that there are sub-sets of Health Care Fraud.  For example, there is an illegal “kickback”, which the Government defines as: “the knowing and willful payment of ‘remuneration’ to induce or reward patient referrals or the generation of business involving any item or service payable by the Federal health care programs (e.g., drugs, supplies, or health care services for Medicare or Medicaid patients)”.  Anti-kickback cases are weirdly complicated with many people wondering why the Feds are interested in the normal back and forth payments that arise in many sectors of our economy.

Health Care Fraud cases are also  complicated by the fact that many accused individuals are licensed professionals such as medical doctors, nurses, physicians assistants and the like.  Regulatory bodies often work in tandem with federal prosecutors.  The federal criminal defense attorney handling such a matter also needs to be keenly aware of what might be happening in these regulatory proceedings which can result in the loss of the license for the health care professional who is under indictment or investigation.   On rare occasions a wily criminal defense lawyer can use these parallel proceedings to aid in the defense of the federal case, but that is a topic for another post down the road.

Finally, there is the fact that Health Care Fraud cases arise out of, well, Health Care!  Lawyers are not doctors, nurses or medical professionals.  We often need a quick tutorial about the medical issues that our clients are addressing in order to help the accused person defend against allegations that they violated federal criminal laws.  This means that the lawyer needs to be a quick study, needs to ask lots of questions, and needs to fully understand what his or her client was trying to accomplish when the Feds claim that fraud was afoot.

Federal Health Care fraud cases are complicated.  There are more and more of these cases being brought.  Anyone reading this should consult with a specialist if they, their friends or their family member are facing one of these cases.

This morning when meeting with a client I remembered one of the things that has not changed in 40 years.  Clients who come to see a criminal defense lawyer are almost always scared.  Some do not show fear, others are overwhelmed, all are in stress.  I remembered that one reason I still love my work after four decades is that I get the chance to help someone in a stressful situation.  I am not always successful, but I always try to make my clients lives just a bit better as they go through the stress of an investigation or prosecution.  Obviously, winning the case us the best stress reducer of all!

Another thing I remember today is how clients need to know they can trust their lawyer.  A different client followed my advice recently and entered a guilty plea.  I had won an earlier case for this client, so he trusted my judgment and advice already.  Today’s case turned out well, he likely will not have a criminal conviction after a couple of years because of some changes in the law, and his decision to trust my advice led to this positive result.

Finally, today I remembered my passion for this work.  I had a lengthy meeting set up for today with a client in a complex fraud case, and I was brimming with enthusiasm this morning on my way to the office.  I had spent much of yesterday working on her case, plowing through the mountain of “discovery” materials, and I wanted to share my observations with her while also getting her perspective on what happened and how we can deal with the accusation.  She commented on the obvious passion I have for my job, which was gratifying on a  number of levels.  While a lot of time has passed, I still feel just as amped up with a new case, a new issue, or a fight that needs to be fought.

The world has changed a lot since that June morning in 1982.  In many ways, it remains the same.

As is well known, the vast majority of cases or investigations end up without a trial.  That means much of the federal criminal defense lawyer’s time is devoted to talking with an Assistant United States Attorney (“AUSA”) in an effort to see if there is a way to resolve the client’s case more favorably.  However, the fact that most cases end up in a plea does not mean that the lawyer should always look to negotiate.  Instead, we need to simultaneously prepare to both fight and talk peace, a difficult balancing act.

This leads to negotiating Tip #1.  Sometimes the best negotiating tactic is to fight, fight, and fight some more.  Over the years I’ve noticed that even the best federal prosecutors get weary when the defense just keeps on coming at them with one issue or another. Every once in a while, this approach causes the AUSA to offer a better “deal” simply to stop the work of responding to the defense motions.  Now, this only works when the defense lawyer’s moves are well-founded, and not just some off-the-wall pleading or motion.  So, tip #1, work hard, sometimes it pays off for the client down the road.

Negotiating tip#2: Be an Upfront Human Being.  As lawyers, we have a job to do, and ours is an adversarial system of justice which means that the opposing lawyers are essentially fighting with one another.  But, if the defense lawyer is at least real, genuine and trustworthy in what he or she says, this can go a long way toward getting a better resolution.  Obviously, the process of negotiating involves some posturing, but if the defense attorney has a reputation of being a straight shooter then prosecutors are more likely to come back quickly with their “best offer.”  So, as much as possible the defense lawyer should be a person who the prosecutor can trust while recognizing that the two sides are opposing one another.

Which leads to Tip#3: Know the Law.  This seems obvious, but many young defense attorneys fail to recognize this aspect of negotiating.  When I was a younger lawyer, I sometimes made this mistake.  I would negotiate, and only later realize that under the law some additional issues needed to be discussed. If the AUSA had already given me some concessions, he or she was less likely to be as agreeable when I had to bring up additional issues.  So, the lesson is clear, the defense attorney should do as much research as possible and know the law BEFORE they begin negotiating with the prosecutor.

Finally, Tip #4: Don’t be Afraid of Trial.  Sometimes we just need to fight the case out in court, and no amount of negotiating will avoid that.  I know too many lawyers who are afraid of the courtroom battlefield, and prosecutors also know who those attorneys are.  The AUSA therefore has a great advantage, knowing the the defense attorney fears a trial.  Tip #4 therefore tells us that having a reputation of enjoying trial can go a long way toward getting a good negotiated resolution.

OK, now back to work!!

I have two matters on my desk this morning that exemplify this need to get the final word.  One is a post-conviction matter, the other concerns an upcoming sentencing hearing.

In the post-conviction case, we argue that my client’s previous attorney performed so poorly that the conviction should be over-turned because of the Sixth Amendment violation caused by “ineffective e assistance of counsel.”  Both sides filed briefs after the court hearing, and because we went first I am thinking about filing a “reply brief.”  I like these reply  briefs, for they give me the chance to plow through the prosecutor’s arguments and they try to dissect and destroy them, one at a time.

In the federal sentencing case, I have on my desk one of the famous “Presentence Investigation Reports“, or as we call them, the “PSR.” These are lengthy documents prepared by a federal Probation Officer (the “PO”) who makes recommendations to the Judge about how the Federal Sentencing Guidelines might operate.  The PO also provides a summary of the Defendant’s personal history, education, work history, medical issues and his or her financial condition.  No matter how accurate or thorough it is, the PSR is written by a Government employee.  I want the Judge to see the case from our perspective.  As a result, I usually try to get the final written word in preparing for a sentencing hearing by filing a “Sentencing Memorandum.”  Every case is different, but we usually ask that the Court see how the client and his or her offense look from the defense point of view.

Having the final word can be important, whether one is arguing with a loved one or in court. Just make sure the final word is the truth.

My client in this second matter is an extremely bright guy who made some mistakes and got involved in a fraud scheme. I could tell shortly after he and others were indicted together that the prosecutor suspected but did not yet realize that my client was actually the brains behind the operation.  We decide to take the chance of going through the “proffer” exercise.  I have written before on this, but it is worth describing once again.

When a federal prosecutor believes that a suspect or Defendant has valuable information that might assist in the prosecution of other people, the prosecutor will sometimes ask the defense lawyer to bring the client in for a “proffer.”  The Government asks for these to see if the accused person has important and useful information, and also to assess whether my client might make a good witness if he or she decides to cooperate against others.

These proffer sessions to me are much like taking a test drive at an auto dealer.  The driver is not obligated to buy, nor is the dealer obligated to sell.  They just want to see whether the vehicle fits that particular person.

The dangerous part of the proffer is that the defense lawyer does not necessarily know everything that the prosecutor and federal agents know, so the lawyer needs to thoroughly and completely prepare his client beforehand.  Furthermore, some people have a hard time admitting when they did something wrong, so quite often the attorney needs to assist his or her client in the way they admit what they did, as much as the actual admission itself.

In the case I am discussing, we spent a lot of time with the client working on the method for admitting what he did.  It seemed to work.  At the end of the proffer session, the prosecutor marveled, saying that he was surprised that my client was so clear and forthright when admitting what he had done.  That clarity and certainty came  back to help the client when he was asked to testify against one of his co-Defendants.  Although the client had already started his sentence, he followed my advice and continued to cooperate truthfully.  Amazingly, within an hour of his testimony, we had a ruling from the Judge letting him out of jail to recognize his assistance.  It was one of those unfortunately rare situations where I walked a client out of custody based on my work for him or her.

There are a couple of lessons from these two cases discussed in these recent posts.  First, avoiding jail in a federal fraud case is difficult.  Second, every case is different, and the attorney needs to pick the correct strategy and tactics that seem best for that client under those circumstances.

Many people contact us because they are fearful that they might go to a federal prison for one of these fraud-type cases.  A case I recently finished included some of the arguments that help such clients avoid a jail sentence in a federal fraud prosecution.

My client was married to one of the other people charged in a large federal fraud prosecution.  Her spouse was a former law enforcement official who convinced his wife and others to get involved in a certain business proposition.  As you likely guessed already, that business proposition was based on false and untrue (meaning fraudulent) statements in loan applications sent to various banks.

The prosecution made a big deal about her husband’s law enforcement status.  The Judge imposed a lengthy jail sentence on the husband.

When we prepared to go to the sentencing hearing for the wife, we rounded up our best arguments.  First, we noted that there were others who had trusted the husband based on his law enforcement status, yet these others had not been charged with crimes.  These other uncharged people also knew that the bank applications contained untrue information, yet the Government let them go without being charged.  So, our first argument was that a spouse should be given at least the same amount of credit when she simply following the lead of her husband into a business venture.  Second, we focused on my client’s family obligations.  Without revealing confidential information in this blog post, it made a big impact when we explained to the Judge what would happen with the family if the wife was incarcerated.  Third, I did my best to maintain good relations with both the Prosecutor and the Probation Officer.  While they are my opponents and I often do not agree with them, maintaining good relations can help in a close case.  Here, it did help, for the Prosecutor did not really put up much of a fight when we asked the Judge to figure out a way to avoid sending my client to a prison.  Furthermore, the Probation Officer was the one who came up with the suggestion as to the method that could allow the Judge to impose a sentence that did not contain any further time in custody.  Fourth, my client decided to trust me and the strategy I had mapped out.

The Fifth and final factor is more difficult to describe, but might be the most important.  I knew this Judge very well from having appeared before him many times.  I have also been on professional programs with this Judge, and had the chance to talk with him about non-lawyer issues. I have a fairly good idea of what arguments work, and those which won’t work.  Knowing the Judge can sometimes be a tremendous help when crafting the best argument in trying to keep a client out of prison.

All of these factors came together in this recent case.  The Judge said he was going to do something he never does, and he gave my client a sentence that kept her at home with her family.  As you can imagine, she is very relieved.

Every case is different.  Nevertheless, when trying to avoid a prison sentence in a federal fraud case, it is so important that the attorney map out a multi-pronged strategy when trying to help the client avoid jail.  This recent case was gratifying not only because my client avoided prison, it also made me feel good that our strategy was the proper course to take.

Readers (you three know who you are) recognize this is a somewhat regular topic I write about, the changing trends in federal criminal enforcement.  For many years, the Feds could not take their eyes off drug crimes.  Then came “illegal” aliens.  Then it was “terrorism.”   Now, after we opened the Federal Treasury for what seems to be much-needed pandemic-assistance, the federal law enforcement agencies are going after individuals who possibly committed fraud to get some of this money.

Astute readers of the previous paragraph will note that I never mentioned the words “corporation,” “companies,” or “businesses.”  That is because the history of the past four decades of federal law enforcement clearly demonstrates that the Feds prefer targeting individuals, and let the bigger players get off with little pain.  Sure, we occasionally see a big federal criminal case against a company, but this is the rare exception.  Instead, we seem to prefer going after the poorest and weakest, make lots of cases and act as if we are doing something about a societal problem.  The author  Matt Taibbi has written extensively about this trend, I recommend his work.

Whether they go after the smaller fish or the really big thieves, we are certain of one thing: federal fraud investigations and prosecutions are and will continue to be on the rise.