Articles Posted in Federal Criminal Defense

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. 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.

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.
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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.

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).
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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.

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).
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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).

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.”
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