Companies and attorneys should be wary when turning documents over to a governmental entity while in an adversarial relationship, even when a signed confidentiality agreement is in place. The risks associated with doing so took center stage last summer in a civil defamation case, Gruss v. Zwirn, when United States District Judge Paul Gardephe ruled that Zwirn Entities waived the attorney-client privilege when it disclosed portions of witness statements to the SEC as part of an internal investigation.
Former top officials of the prominent global law firm, Dewey & LeBoeuf, were indicted last week for deceiving banks and hiding the firm’s true financial condition from creditors, investors, auditors, and even its own partners. The lengthy indictment paints an elaborate accounting fraud where executives and financial professionals desperately tried to avert financial disaster. In short, the criminal charges brought by the Manhattan District Attorney allege a massive scheme to “cook the books” where the defendants falsified financial records submitted to banks and investors to demonstrate that the firm had complied with existing loans and therefore was worthy of further investor loans. The charges also allege the defendants made fraudulent accounting entries to support these phony representations.
http://www.mdattorney.com/lawyer-attorney-1300820.htmlAs a Maryland Federal Criminal Attorney I know that nothing in the federal sentencing guidelines strikes more fear into the hearts of defendants and defense attorneys than the Career Offender provisions, found at section 4B1.1. This section is the most overused and perhaps least understood of all components of the guidelines.
In a nutshell, a criminal defendant is considered a Career Offender if he is currently charged with a violent crime or controlled substance offense and has previously been convicted twice of “a felony that is either a crime of violence or a controlled substance offense.” It is basically the federal version of a “third strike” rule. The consequences of being labeled as a career offender are disastrous. First, a defendant’s criminal history category is automatically raised to Category VI—the most serious category in federal law. Second, the offense level for the current charge is also automatically inflated to some of the highest in the guidelines system. In most cases, the level is raised to 37. To give some perspective, level 43 is the highest designation in the sentencing guidelines, and applies to crimes such as 1st degree murder!
Moreover, federal courts have adopted a very wide “strike zone” in determining what constitutes a “controlled substance felony.” While most logical thinkers understand that a controlled substance felony means drug distribution or dealing, federal courts have ruled that a state drug possession conviction can qualify as long as the offense carries a maximum possible punishment of greater than one year. In Maryland, possession of cocaine carries a maximum possible punishment of four years, making it a “felony” for federal purposes, even though the crime is classified as a misdemeanor under state law. So an individual in Maryland who has been twice convicted of cocaine possession will be treated as a career offender if he thereafter is charged in federal court with drug dealing or conspiracy to deal drugs. The results are significant.
A defendant classified as a career offender in a federal drug case will typically face a sentencing range of 30 years – life! Facing such a monstrous guideline range forces many defendants to accept guilty pleas in defensible cases as well as cases where the defendant is actually innocent!
I recently wrote a blog about the recent and dramatic change in the federal DOJ policy regarding the disparity between federal sentencing guidelines for crack and powder cocaine. http://www.marylandcriminalattorneyblog.com/2009/06/the_disparity_between_federal.html On May 1, 2009, the United States Department of Justice (DOJ) released a Memorandum to all U.S. Attorney’s Offices instructing all federal prosecutors to inform sentencing courts “that the Administration believes Congress and the Commission should eliminate the crack/powder disparity . . .” and that prosecutors should not object to variances in sentencing to achieve that result.
The new DOJ memorandum gives federal criminal defense lawyers a powerful new tool to fight the draconian sentences that clients have faced for federal crack cocaine offenses.
Most recently, I convinced a federal judge in Maryland that the new DOJ Memo not only reduced the sentencing “regular” 2D1.1 guidelines for crack cocaine offenses, but it also reduced the Career Offender Guidelines under section 4B1.1. I argued that the DOJ Memo applied across the board to all disparity between crack and powder cocaine. Because my client was charged with conspiracy to distribute more than 50 grams of crack, the maximum possible punishment for the offense was life under 18 U.S.C. §841(b)(1)(A). The maximum possible penalty, however, for a similar offense involving powder cocaine was only 20 years under §841(b)(1)(C). This difference caused the career offender guidelines to drop from level 37, to level 32 because the career offender guidelines are keyed directly to maximum possible sentence for the charged offense.
The tremendous and unfair disparity between crack and powder cocaine in the Federal Sentencing Guidelines is no more! For many years, the Federal Sentencing Guidelines for offenses involving the possession or sale of crack cocaine were exponentially more severe than the guidelines for offenses involving only powder cocaine. For example, a defendant with no prior criminal record who possessed a kilo of crack cocaine would face a guidelines sentence of between 15 – 20 years without parole. That same defendant would face a sentencing range of between 5 – 6 years if he possessed a kilo of cocaine powder.
For years, criminal defense attorneys, interest groups, and even many federal judges objected to the disparity, noting that there was no rational basis to treat crack cocaine differently from powder cocaine. Statistics revealed that the disparity adversely affected African Americans, who were most often charged with offenses involving the crack cocaine guidelines.
On December 12, 2007, the United States Sentencing Commission announced that it was retroactively reducing the sentencing guidelines for crack cocaine offenses. While there was still a substantial disparity between crack and powder cocaine, the Sentencing Commission’s actions were promising and were the first official recognition that the disparity between crack and powder cocaine was a problem that needed to be resolved.
On May 1, 2009, the Department of Justice (DOJ) did just that. In a memorandum to all United States Attorney’s offices across the country, the DOJ instructed all federal prosecutors to “inform courts that the Administration believes Congress and the U.S. Sentencing Commission should eliminate the crack powder disparity . . .” That is, federal prosecutors are now instructed to inform sentencing courts that they agree that the disparity between crack and powder cocaine should be eliminated. The impact of this new policy is going to be dramatic.
Aggressive Maryland criminal defense attorneys know that the best way to attack a search warrant is by attacking the affidavit in support of the warrant. This is commonly referred to as a Franks Hearing.
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a "presumption of validity with respect to the affidavit supporting the search warrant", and thus created a rule of "limited scope".
The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit's integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit's integrity, a defendant must first make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." This showing "must be more than conclusory" and must be accompanied by a detailed offer of proof.
In addition to showing that the affidavit contains false information, a defendant must show that the false information is essential to the probable cause determination. That is, if a court finds that “when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required."
Although our federal criminal defense attorneys practice nationally, the majority of our cases are in the mid-Atlantic which falls into the Federal Fourth Circuit. Historically known as a conservative Circuit, the Court, which sits in Richmond, Virginia has directed the District Judges on a specific procedure they want followed in all post Booker federal sentencing
The Fourth Circuit has prescribed the steps the District Court must follow in imposing a sentence. First, the Court should calculate the proper guideline range after making appropriate findings of fact. United States v. Pauley, 511 F.3d 468 (4th Cir. 2007)(citing Gall, 128 S. Ct. at 596); see also Hughes, 401 F.3d at 546. “After calculating the Guidelines range, the sentencing court must give both the government and the defendant an opportunity to argue for whatever sentence they deem appropriate.” Id. The Court should then consider all of the § 3553(a) factors to determine whether they support the requested sentence. Id. If the guideline range does not serve the factors set forth in § 3553(a), then the Court may impose a non-guideline or “variance” sentence. United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006); United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). The Court must articulate reasons for the sentence it imposes, particularly a variance sentence, by reference to the § 3553(a) factors and its factual findings. Id.
The federal criminal sentencing has changed dramatically since the landmark case of United States v. Booker in 2005. Federal criminal defense attorneys have significantly more room for creativity and advocacy. Federal Judges are no longer handcuffed by the Federal Sentencing Guidelines. For decades decades the power in sentencing, and most federal prosecutions, rested with the prosecutor. Booker has shifted the stables-somewhat, in favor of the criminal defense lawyer and given Federal Judges a more "human" role at sentencing.
18 U.S.C. § 3553(a) in light of United States v. Booker, 543 U.S. 220 (2005) requires the Court to fashion a sentence “sufficient but not greater than necessary” to achieve the statutory purposes of punishment. In Booker, the Supreme Court restored this Court’s ability to fashion a sentence tailored to the unique circumstances of each case and each criminal defendant by requiring courts to consider factors other than the sentencing range prescribed by the United States Sentencing Guidelines. Thus, although the Federal Judge still must take the Sentencing Guidelines into account, Booker rendered the Sentencing Guidelines advisory. See Gall v. United States, 128 S. Ct. 586, 594 (2007); United States v. Pauley, 511 F.3d 468 (4th Cir. 2007). The sentencing guideline range is not binding on the Court, but is only one of several factors in §3553 (a) to be considered in determining the sentence. Booker, 543 U.S. at 258-60.
In fact, the sentencing guidelines do not even enjoy a presumption of reasonableness. Nelson v. United States, 129 S.Ct. 890, 892 (2009)(“The guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.”)(emphasis in original). See also Rita v. United States, 127 S. Ct. 2456 (2007). The “overarching” command of § 3553(a) is the Parsimony Clause, which “instruct[s] district courts to ‘impose a sentence sufficient, but not greater than necessary’ to accomplish the goals of sentencing.” Kimbrough, 128 S.Ct. 558, 563 (2007)(quoting Gall, 128 S.Ct. at 600).
As a result, since 2005, our attorneys have been able to secure probationary sentences in federal criminal cases-which previously would have been unthinkable. For more information on the changes in the landscape post Booker and other Federal Criminal issues, please contact the criminal defense attorneys at our firm.
The United States Federal Sentencing Guidelines are not mandatory on sentencing courts. The Guidelines are also not presumed to be reasonable. That was the very clear and very recent message sent by the United States Supreme Court in Nelson v. United States, 129 S.Ct. 890 (2009). In so ruling , the Supreme Court made it very clear that the federal sentencing guidelines are NOT what they used to be!
The federal sentencing guidelines used to strike fear into the hearts of criminal defendants accused of federal offenses. Not only were the guidelines mandatory, but they were VERY harsh. Under the old sentencing guidelines scheme, even first time offenders with compelling personal circumstances were forced to serve large non-paroleable prison terms. Federal prison populations swelled with non-violent drug offenders incarcerated for long terms of incarceration. Judges who wished to vary from the guidelines were routinely reversed by federal circuit courts. Federal prosecutors, emboldened by the harsh mandatory guidelines, had no incentive to be reasonable. Under the mandatory guidelines system, prosecutors – not Judges –were the most powerful players in determining the fate of criminal defendants. By deciding which crimes to charge, the prosecutors could effectively dictate the result faced upon conviction. Even the most skilled defense attorneys were often powerless to stop unfairly harsh sentences. Judges were equally powerless.
The sentencing landscape has now changed dramatically. The guidelines are now just that – GUIDELINES – to be considered but not necessarily followed by federal district judges. The sea change began in United States v. Booker, 543 U.S. 220 (2005). Booker held that the then-mandatory U.S. Sentencing guidelines were unconstitutional. The only way to salvage the guidelines as a system was to make them advisory only. Even after the Court’s decision in Booker, federal appellate courts continued to treat the guidelines with reverence. For example, at least one federal appeals court had ruled that a district court judge was not free to disregard the guidelines except for “extraordinary circumstances.” Other courts held that judges could not disagree with the disparate treatment of offenses involving crack versus powder cocaine under the guidelines.
This thinking came crashing to a halt in Nelson v. United States, 129 S.Ct. 890 (2009), and Spears v. United States, 128 S.Ct. 840 (2009). In the Nelson case, the Court overruled the Fourth Circuit Court of Appeals and held that a federal district judge cannot presume that a sentence within the federal sentencing guidelines is reasonable. That is, the advisory federal sentencing guidelines are only one factor in a multi-part system of determining a sentence for a person convicted of a federal offense. http://www4.law.cornell.edu/uscode/18/3553.html A sentencing judge is free to sentence a defendant to whatever is reasonable, regardless of the sentenced called for under the sentencing guidelines.
In the Spears decision, the Court made clear that federal judges are also free to disregard Sentencing Commission policies in arriving at a fair and reasonable sentence. In that case, the Court upheld the decision of a federal judge to impose a sentence below the sentencing guidelines because the judge disagreed with the U.S. Sentencing Commission’s policy to treat crack cocaine offenses more harshly than those involving powder.
Not only can a district judge choose to not follow the guidelines, but a court can also impose a sentence that disregards U.S. Sentencing Commission policies.
I recently won a significant victory for a federal criminal client in United States District Court for the District of Maryland in a re-sentencing under Booker. http://www.mdattorney.com/lawyer-attorney-1301200.html In the Booker case, the Supreme Court of the United States ruled that the federal sentencing guidelines that apply to all criminal cases prosecuted in federal courts were no longer mandatory. The Court in Booker held that federal judges should consider the sentencing guidelines in fashioning a sentence, but that the guidelines were just one of many factors to be weighed in sentencing. These factors are laid out in federal law at 18 U.S.C.§3553(a) & (b). They include the nature and circumstances of the person, the need to protect the public from further crimes by the defendant, as well as the nature and circumstances of the offense.
While the Court’s decision in Booker was not retroactive, the case does apply to cases that were on appeal at the time of the decision. In my recent case, the client had been convicted prior to Booker and sentenced to 174 months incarceration for being part of a multi-state drug conspiracy. The client’s trial defense attorney did not ask the federal appeals court to remand the case for a new sentencing in light of the Booker decision. I represented the client in a federal habeus suit in Maryland seeking that the client be re-sentenced.
In that case, the Chief Judge Legg agreed with our argument that the prior counsel’s failure to raise the Booker issue on appeal constituted ineffective assistance of counsel. He set the case in for a new sentencing hearing.
At the re-sentencing, the Assistant United States Attorney argued that the Court should re-impose the same 174 month sentence on the client. We convinced Judge Legg to reduce the client’s sentence by over four years, over the objection of the federal prosecutor. A large part of our case at re-sentencing concerned the strides that the client had made during the two year period after the original sentencing hearing. The client had successfully completed drug treatment, accounting, business, and other academic classes while in federal prison awaiting the re-sentencing. Chief Judge Legg ruled that the client’s exemplary behavior while in prison, coupled with the successful completion of class study at the facility was sufficient to grant a significant sentence reduction.
The victory in federal court meant that the client saved four years of his life. The lesson learned from this case is that the federal criminal defense attorney needs to be prepared to aggressively raise all legitimate bases for sentence reduction under the Booker case. While it may not seem like a big deal, small accomplishments like finishing a course in electronics or history while in federal prison can result in large reductions in a re-sentencing under Booker.
I have conducted hundreds of federal sentencing hearings in the District of Maryland and other federal districts and have been able to achieve very significant results for my clients. The federal criminal defense attorneys at Silverman, Thompson, Slutkin & White http://www.mdattorney.com are experienced in federal cases and can get the best possible results for our clients in all types of federal criminal cases. There is not an issue that we cannot handle.
Many federal criminal defense attorneys are not aware of the pitfalls of the federal safety valve provisions. Persons charged with federal drug crimes need to retain an experienced criminal attorney familiar with all aspects of federal criminal law. An inexperienced or unknowing lawyer can expose a client to catastrophic risks. Here is why.
As we are all keenly aware, the federal government’s “war on drugs” is ensnaring hundreds of people with little or no criminal records who are caught up, for a myriad of reasons, with the distribution of drugs. This can range from a person carrying cash for a friend to pay for an airline ticket, to delivering a package to another person in exchange for cash to pay the rent or feed a child. Because of very harsh federal sentencing laws, the smallest players in a drug ring often end up being the most harshly treated. Most of time this is because the leaders of drug operations very often end up cooperating against others – including those below them whose “loyalty” they often gained through fear and threats of harm. Oftentimes, those persons caught on the lowest rungs of a drug conspiracy find themselves with few alternatives because they do not have significant information to provide to federal prosecutors, who retain exclusive control over who gets cooperation departures under the federal sentencing guidelines. As a result, defendants with minor or minimal culpability in a drug operation frequently end up on the receiving end of prosecutions involving tremendously high sentencing guidelines and, more critically, large minimum mandatory sentences.
In many situations, the only relief from mandatory sentences for those with little or no criminal history is the so-called “safety valve.” Many lawyers talk about the safety valve, but very few understand what it is and what it truly entails. It is perhaps the most misunderstood and most difficult opportunity for relief from mandatory minimum sentences and the sentencing guidelines. Federal crimes lawyers who do not specialize in federal criminal defense work run the risk of harming their clients through misguided efforts to gain relief under the safety valve provision.
It is critical to remember that there are only two ways to avoid minimum mandatory sentences upon conviction for a drug trafficking or drug conspiracy offense in federal court. One way is to cooperate with law enforcement and provide “substantial assistance” in the prosecution of others under section 5K1.1 of the guidelines. The other is to seek relief under the safety valve -- Section 5C1.2 of the federal sentencing guidelines. (18 U.S.C. § 3553(f)) This section allows a judge to reduce federal sentencing guidelines and ignore mandatory minimum sentences in determining punishment for eligible defendants.
But while understanding the possible benefits of relief under the safety valve is easy, becoming eligible for the relief is more difficult and fraught with peril for the unwary defendant. In fact, a failed attempt to gain “safety valve” relief can have a tremendously negative impact on a federal criminal defendant.
Discussion of the Use of Extrinsic Evidence to Impeach a Confidential Informant in a Federal Criminal Case
In federal criminal cases, defense attorneys may use extrinsic evidence to show a witness’ bias, but you may not use is to impeach by showing a specific instance of conduct.
FRE 608(b) states: Evidence of Character and Conduct of Witness
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross- examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.
This rule is well settled by the Courts, as they do not want to risk confusing the jury with a “mini trial” on issues that do not tend to prove or disprove the guilt of the defendant. See U.S. v. Martz, 964 F.2d 787 (8th Cir. 1992) but really I could refer you to any case dealing with this issue because there seems to be no exceptions.
A risk of proceeding under 608(b) is that if the Court does not allow you to introduce extrinsic evidence to impeach a witness, you will be bound by the witness's answer. See U.S. v. Martz, 964 F.2d 787, 789 (8th Cir. 1992). Therefore the attorney must make a tactical decision, because once the question is asked, you are stuck with the response.
It has been pretty well laid out in case law that extrinsic evidence can be used to show bias even though the FRE’s do not specifically deal with the term “bias.” See U.S. v. Abel, 469 U.S. 45, 49 (1984). FRE 608 does not apply to evidence of bias or interest. Johnson v. Brewer, 521 F.2d 556, 562 (8th Cir. 1975). However it is in the judge’s discretion as whether to admit the evidence. U.S. v. Gomes, 177 F.3d 76, 81 (1st Cir. 1999). The judge may exclude the evidence it it would distract from the main issues and would add little practical value to the defense. Id. Inherent in this rule allowing is the rule that the cross-examiner is not bound by the witness’ answer when attempting to show the witness’ bias. See Johnson at 562.
The 5th Circuit went on further to explain the reasoning behind this concept. It explained that a witness’ bias, as opposed to veracity, is not a collateral issue and thus evidence of past behavior that proves or disproves bias is admissible. U.S. v. Fusco, 748 F.2d 996, 998 (5th Cir. 1984).
U.S. v. Phillips, 888 F.2d 38 (6th Cir. 1989) deals with both these issues. Here the defendant wanted to introduce testimony of the informant’s drug use at a certain party that the informant’s had denied. The Court did not allow in the testimony under 608(b) because it was too far removed from the case to have a bearing on the defendant’s guilt or innocents. However in this case the Court states, “Though the Federal Rules of Evidence do not specifically so state, prior misconduct of a witness which is probative of the bias of that witness may be proved by extrinsic evidence.” Id. at 41.
For further information, please contact the federal criminal defense attorneys at Silverman, Thompson, Slutkin & White.
When the federal Sentencing Guidelines were first implemented in the late 1980’s, federal judges quickly became frustrated with a new system that virtually tied their hands in terms of deciding an appropriate criminal sentence. Prior to the Guidelines, federal judges had wide discretion in imposing sentences on those who pled guilty or were convicted in federal court. The judges could take into consideration the full picture of the defendant – not only the crime he or she was charged with but also his or her family, background, education, and expression of remorse. The Guidelines dramatically changed that system, and set forth rather rigid – and mandatory -- Guidelines. Whether the defendant had been accused of an intricate white collar financial fraud scheme, racketeering, drug distribution, or conspiracy to sell illegal weapons, the Guidelines left very few mechanisms for the judges to allow for any leniency or exceptions.
I remember when the Guidelines went into effect, my uncle, the late Norman P. Ramsey, Judge, U.S. District Court for the District of Maryland, never missed an opportunity to express his frustration – whether on the bench or at a family gathering. Were my uncle still alive, he would now be thanking the Supreme Court, which three years ago swung the pendulum back toward the pre-Guideline days.
In Booker v. United States, 125 S.Ct. 738 (2005), the Supreme Court ruled that the Federal Sentencing Guidelines are advisory provisions that recommend a particular sentencing range, rather than require it. Rather than simply impose a sentence within the recommended Guideline Range, a sentencing Judge must “consider the guideline range” but tailor the sentence in light of other statutory concerns as well,” particularly those set forth in 18 U.S.C. §3553(a). See Booker, 125 S.Ct. at 757. In the wake of Booker, the Fourth Circuit found plain error in a sentencing and remanded the case to the district court for re-sentencing, with the following instructions to the sentencing court:
Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence. . . . If the court imposes a sentence outside the guideline range, it should explain its reasons for doing so.
United States v. Hughes, 2005 WL 147059, *3 (4th Cir. Jan. 24, 2005)(citations and footnote omitted). The Fourth Circuit noted that in light of the excision of § 3742(e) by the Supreme Court, it would affirm a sentence “as long as it is within the statutorily prescribed range . . . and is reasonable.” Id. (citations omitted).
In establishing a process by which a sentencing judge may depart outside the guideline range, the Federal Sentencing Commission recognized that “it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision.” U.S.S.G. ch. 1, pt. A, intro. comment 4(b).
Cognizant of the fact that unusual or atypical cases would arise, the Sentencing Commission explicitly reserved a certain degree of flexibility to the sentencing court: “The Commission intends the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” Id. However, a departure may be warranted where “a particular guideline linguistically applies but where conduct significantly differs from the norm.” Id. Unless specifically forbidden, the Commission, in creating the Sentencing Guidelines, did “not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” Id. See also Koon v. United States, 518 U.S. 81, 98 (19__)(recognizing departure decisions as “embod[ying] the traditional exercise of discretion by a sentencing court”).
Although the Federal Sentencing Guidelines are now advisory, most federal judges rely on the guidelines as a baseline for sentencing. It is critical that a federal crimes attorney be familiar with the vast universe of available downward departures available for his client.
For further information regarding downward departures in Federal criminal cases, please consult former Assistant United states AttorneyAndrew C. White for a complimentary consultation.
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a "presumption of validity with respect to the affidavit supporting the search warrant," 438 U.S. at 171, 98 S.Ct. at 2684, and thus created a rule of "limited scope," id. at 167, 98 S.Ct. at 2682. The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit's integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit's integrity, a defendant must first make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Id. at 155-56, 98 S.Ct. at 2676-77. This showing "must be more than conclusory" and must be accompanied by a detailed offer of proof. Id. at 171, 98 S.Ct. at 2684.
In addition to showing that the affidavit contains false information, a defendant must show that the false information is essential to the probable cause determination. That is, if a court finds that “when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." Id. at 171-72, 98 S.Ct. at 2684-85.
The Franks test not only applies to cases where false information is included in an affidavit, but also applies when affiants omit material facts "with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading." United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) and United States v. Colkley, 899 F.2d 297, 300 (4th. Cir.1990).
Government wire interceptions must be conducted in a manner to minimize interceptions of communications not subject to interception. 18 U.S.C. Section 2518(5). Minimization embodies the constitutional requirement of avoiding, to the greatest extent possible, seizure of conversations which have no relation to the crimes being investigated or the purpose for which electronic surveillance has been authorized. United States v. Clearkley, supra, 556 F.2d at 715 & n.3 (and cases and authorities cited therein). Law enforcement personnel must exhibit a high regard for the right to privacy and do all they reasonably can to minimize interceptions of non-pertinent conversations. Id. at 716; United States v. Tortorello, 480 F.2d 764, 784 (2nd Cir.), cert. denied, 414 U.S. 866 (1973).
The minimization concept is tested on a case by case basis under a standard of reasonableness. United States v. Clearklev, supra, Id.; United States v. Webster, 473 F.Supp 586, 597, (D.Md. 1979), aff’d in part, 639 F.2d 174 (4th Cir. 1981), cert. denied, sub-named 454 U.S. 857 (1982). The Order directs that electronic surveillance "shall be conducted in such a way as to minimize,, non-pertinent calls.
Title 18, U.S.C. Section 2515 expressly prohibits disclosure of information obtained from intercepted communications if disclosure would be in violation of Title III. This exclusionary measure is triggered where a communication was unlawfully intercepted, where the order authorizing the interception is facially insufficient, or where the interception was not made in conformity with the order. 18 U.S.C. Section 2518(10)(a). The Supreme Court has held that suppression is mandated wherever an interception fails "to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept-procedures to those situations clearly calling for the employment of this extraordinary device." United States v. Giordana, 416 U.S. 505, 527 (1974) (quoted in United States v. Donovan, 429 U.S. 413, 433-34 (1977). See also United States v. Chaves, 416 U.S. 562, 575 (1974). This Court, writing for the U.S. Court of Appeals for the Fourth Circuit, has observed that Donovan, Chaves and Giordana require suppression of those instances where law enforcement agents violate Title III in bad faith. United States v. Couser, 732 F.2d 1207, 1209 (4th Cir. 1984).
For further information regarding wiretap law in Federal cases, please contact us for a complimentary consultation.
The United States Supreme Court decision of United States v. Booker, 543 U.S. 220 (2005) restored the Federal Disstrict Judge's ability to fashion a sentence tailored to the unique circumstances of each case and each criminal defendant by requiring courts to consider factors other than the sentencing range prescribed by the United States Sentencing Guidelines. Thus, although the trial courts still must take the Sentencing Guidelines into account, Booker rendered the Sentencing Guidelines advisory.
Now in federal criminal cases in Maryland and across the country, the sentencing guideline range is no longer binding on the Court, but is only one of several factors to be considered in determining the sentence. The other factors the Court is directed to consider are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to afford adequate deterrence, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care or other correctional treatment; (3) the kinds of sentence available; (4) the need to avoid unwarranted sentencing disparity; and (5) the need to provide restitution.
In considering the § 3553(a) factors, the sentencing guidelines are to be given no more or less weight than any other factor. In addition, the Guidelines are not to be given any “presumption of reasonableness.”