Dallas Criminal Lawyers - Broden & Mickelsen

CHANGES TO THE CRACK COCAINE LAWS

    President Obama recently signed legislation reducing, but not eliminating, the disparate ways in which federal criminal law penalizes those involved with crack cocaine and those involved with powder cocaine.  This becomes the second small step in an attempt to eliminate the unjust fashion in which the federal drug laws distinguish between crack cocaine and powder cocaine, but there is  still a long way to go.

    Following the death of University of Maryland basketball star Len Bias from crack cocaine on June 19, 1986, Congress believed it had to adopt strong penalties to stem the growth of crack cocaine use.  Congress believed that crack cocaine was more dangerous than the powder cocaine that was used to “cook” crack.  Therefore, despite the fact that, scientifically, there is no difference between crack and powder cocaine, Congress passed laws that treated the two very differently.  This disparate treatment had the greatest effect on African-Americans because Caucasians tended to favor powder cocaine whereas African-Americans tended to favor crack cocaine.  

    In federal court, an individual’s sentence is determined by two factors.  

    First, there are the statutory penalties that set a sentence’s “floor” and “ceiling.”  Most criminal statutes do not provide for mandatory minimum sentences (i.e. a “floor”).  Nevertheless, drug statutes are among the few statutes with mandatory minimum sentences of five and ten years imprisonment.  In cases where there are such mandatory minimum penalties provided by statute, the mandatory minimum sentence represents the very minimum sentence the judge must given unless the government requests a sentence below the mandatory minimum sentence because a defendant has cooperated.  

    The second factor in determining a sentence is a defendant’s sentencing guidelines.  The guidelines provide an advisory sentencing range to a judge with the proviso that the range cannot be below the “floor” or above the “ceiling” set by the statute.  In other words, if a defendant’s statutory penalty range is 10 years (120 months) to life and his or her guidelines are 97-121 months, the guideline range effectively becomes 120-121 months.   In drug cases, the guideline range is based mostly on a defendant’s criminal history and the type and amount of drugs involved.  Since the United States Supreme Court’s decision in United States v. Booker, the guidelines are advisory and the judge has a lot of discretion to sentence below or above a defendant’s guideline range, but, again, the judge cannot sentence below the mandatory minimum without a “cooperation motion” by the government.

    Because of the crack hysteria, Congress set the statutory penalties for crack and powder at a 100:1 ratio.  In other words, the mandatory minimum penalties for powder kicked in at an amount 100 times greater than for crack.  For example, if a person possessed with the intent to distribute 50 grams of crack he or she faced a ten year mandatory minimum sentence.  On the other hand, a person had to possess with the intent to distribute 5 kilograms of powder to face the same ten year mandatory minimum sentence.  Nevertheless, in August of this year, President Obama signed a bill decreasing the ratio from 100:1 to 18:1.  Now, for example, a person must possess with the intent to distribute 280 grams of crack (instead of the 5 grams) to face the mandatory minimum sentence of ten years.

    As I said, this is the second step, toward sanity.  The first step was taken in 2007 when Congress amended the sentencing guidelines to reduce the crack penalties by two levels.

    Nevertheless, the new law raises several questions.  

    First, will it be made retroactive in order to benefit the many thousands of people in federal prison who were convicted of the unjust crack laws?  When the guidelines were changed in 2007, those changes were made retroactive, however, there is still no word as to whether the statutory changes just signed by President Obama will be made retroactive.  

    Second, will the sentencing guidelines be changed again to recognize the new “floors” set by the statutory change?  The sentencing guidelines still call for a sentence of 121-151 months for a defendant, without any criminal history, who is convicted of possession with the intent to distribute 280 grams of crack cocaine.  Of course, as mentioned above, the judges do not have to follow the guidelines, but, it is still important to amend the guidelines to reflect the new law. 

    Third, many judges, recognizing that there was no basis to treat crack and powder differently, were employing their own 1:1 ratio in computing a defendant’s sentencing guidelines, although they could not sentence below the statutory “floor” absent a “cooperation motion” by the government.  What will happen now?  Will those judges still use the 1:1 ratio rather than the new 18:1 ratio?

    As noted above, there is also still a long way to go.  First, ALL disparities between crack and powder should be eliminated.  Second, Congress must do away with mandatory minimum penalties where the only way to get around those minimums is through “cooperation motions” by the government.  These mandatory minimums result in the ridiculously high imprisonment rate in the United States and often produces highly questionable “snitch” testimony from defendants hoping to obtain a favorable “cooperation motion” from the government.

    Of course, it is imperative for defendants charge with any federal drug offense to hire an attorney that practices regularly in federal court and who is familiar with the intricacies related to sentencing in drug cases.  An experienced federal lawyer will be able to prepare an effective sentencing memorandum educating a judge about the unfair disparities in the way crack cocain and powder cocain are treated in order to obtain the least possible sentence for his or her client.

    For more information on how to select a criminal defense lawyer, please visit Selecting a Criminal Defense Lawyer

ARE THE FEDERAL JUDGES IN THE NORTHERN DISTRICT OF TEXAS USING THEIR DISCRETION UNDER BOOKER

    Since the United States Supreme Court decided  United States v. Booker, 543 U.S. 220 (2005), judges in the federal trial courts have had discretion as to whether to impose the harsh sentences that are sometimes called for by the United States Sentencing Guidelines.  Although Booker still requires District Court judges to consider the guidelines in imposing sentences, the judges are no longer bound by the guidelines.  Put another way, the guidelines are now considered advisory rather than mandatory.

    In light of Booker, it was interesting to see the sentencing statistics for the judges in the Northern District of Texas for 2009.  In 1007 cases sentenced in 2009 in this district, the judges followed the sentencing guidelines in 65% of the cases.  In a large majority of the cases in which the judges gave a sentence below the guidelines it was because of a defendant’s cooperation.  Yet in these “cooperation cases,” the defendants would have been eligible for these below guideline sentences even before Booker.  Indeed, the judges only used  their discretion under Booker to give a lesser sentence in 114 (11 percent) of the cases.  Moreover, they used their discretion under Booker to give a higher sentence in 46 (5 percent) of the cases.

    In sum, it does not appear that the judges in the Northern District of Texas are varying as much from the sentencing guidelines as judges in other districts or as much as was hoped by defense attorneys when Booker was first announced five years ago.  

    Of course, when a defendant is charged with a criminal offense in federal court, it is imperative that he or she retain a lawyer that practices regularly in federal court and is skilled in the application of the United States Sentencing Guidelines.  It is also important that lawyers present a comprehensive sentencing memorandum prior to a client’s sentencing and make a full presentation at the time of sentencing along with character witnesses in an attempt to persuade judges to use the discretion that Booker has given them.  It is disappointing that only 11 percent of the cases in 2009 in the Northern District of Texas resulted in a lower sentence as a result of a “Booker variance.” 

    

    CLICK HERE FOR THE 2009 SENTENCING STATISTICS COMPARING THE NORTHERN DISTRICT OF TEXAS WITH OTHER DISTRICTS

    

British Petroleum's Criminal Liability

Now that British Petroleum's deep water well in the Gulf of Mexico is no longer spewing oil, at least for the time being, and hopefully soon a relief well will be established, the public's attention will turn more to issue of punishing the petroleum conglomerate. BP is a fabulously wealthy entity and naturally people will want to see individuals suffer consequences for the devastation that its operation caused.

Recently, private lawyers have brought lawsuits against BP alleging that it engaged in organized criminal activity. One lawsuit claims that BP's role in the 2005 refinery explosion in Texas City, a pipeline leak in Alaska, along with the Deepwater Horizon disaster, demonstrate a pattern of wrongdoing that amounts to criminal activity.

It should be borne in mind, however, that a vast gulf exists between bringing a civil lawsuit designed to force a settlement against a company and the government being able to prove to a jury, beyond a reasonable doubt, that any individual in BP intentionally broke the law.

Although the organized criminal activity statute, commonly known as RICO, permits the prosecutions of individuals who did not commit any discrete criminal act, but oversaw an organization that committed criminal acts, it is nevertheless difficult to prove that executives such as Hayward knew that his organization was engaged in criminality.

Notably, one of the operators on the Deepwater Horizon on the night it exploded, has invoked his Fifth Amendment privilege not to incriminate himself when called to testify before Congress. I suspect that individuals working on that particular well had serious concerns about the safety of the operation and knew corners were being cut. I will not be surprised if further investigation results in the prosecution of these individuals. I will be surprised, however, if the government can show BP executives in Houston or London were aware of these specific problems.

The investigation will be extensive and the possibility of a smoking gun implicating BP executives with criminal responsibility certainly exists. However, I predict some low level well operators will face criminal prosecution, and as far as BP and its top executives, the public will have to be satisfied with massive fines and compensation to those more or less directly harmed by the oil spill.

BEING PROACTIVE IF YOU ARE UNDER CRIMINAL INVESTIGATOIN

  Clients often wait to retain us until they are actually indicted.  Many times, however, had the client come to us when they first became aware they were under criminal investigation they might have avoided indictment all together or, at least, been in a better position to defend themselves once they were indicted.  Just as it is important to see a medical doctor before it is too late, it is important to be proactive about a criminal investigation.

    For example, if hired early, a criminal defense lawyer can conduct his or her own investigation while the facts are still fresh in the minds of potentially favorable witnesses.  Likewise, they can interview potential co-defendant’s before the co-defendants hire their own lawyers and become “off limits.”  Time and time again, we have seen the testimony of witnesses undergo subtle changes after they are interviewed by law enforcement officials, therefore, it is often extremely helpful when the defense is able to interview these witnesses and “lock in” their statements before they are interviewed by law enforcement officials.

    Likewise, if hired early on in the process, a lawyer can determine what steps you should take in an attempt to avoid an indictment.  A lawyer can counsel you on whether it is wise to meet with the police or government agents and can be present at any meeting.  A lawyer can also determine if it is wise to hire a polygrapher.  While “lie detector” tests are usually inadmissible at trial, they can be presented to prosecutors or law enforcement officials along with other information in an attempt to persuaded them not to pursue criminal charges.

    Indeed, by putting together as much information as possible, it is sometimes possible for an attorney to convince law enforcement not to pursue criminal charges in the first place or to convince prosecutors not to seek an indictment.  Even if prosecutors cannot be convinced to drop the charges completely, they may be persuaded to pursue less serious charges.  

    Also, in many counties in Texas, lawyers can make a presentation to any grand jury considering your case and present witness statements and alike to the grand jury in an attempt to convince the grand jury not to indict you (in other words return a “no bill” on the indictment).  At Broden & Mickelsen, we have been successful in making presentations to grand juries that have resulted in grand juries not indicting our clients or indicting them on significantly reduced charges.  These clients were often facing very serious charges.

    The bottom line, is that, by retaining a lawyer early, you may save significant money and stress down the line.  It is less costly and much less stressful to be proactive and attempt to avoid an indictment in the first place than to fight criminal charges at a full-blown jury trial.

    Simply put, if you learn you are being investigated and potentially facing criminal charges, you should contact a lawyer IMMEDIATELY.  Most lawyers do not charge for initial consultations, so you really have nothing to lose by being proactive.

    FOR ADDITIONAL QUESTIONS, PLEASE VISIT OUR WEBSITE AT www.texascrimlaw.com
   

DEFENDING CHILD PORNOGRAPHY OFFENSES IN FEDERAL COURT

Federal prosecutors are prosecuting child pornography offenses at an astounding rate both here in the Northern District of Texas and throughout the country.  Because of Broden & Micklesen’s reputation as one of the preeminent federal criminal defense firms in the United States, we were recently hired to represent the husband of an FBI agent who had been charged in federal court with distribution of child pornography.  While we often have to aggressively take on federal law enforcement agents in court, it was flattering that, when one of their own was in trouble, they turned to our firm.  The case of the agent’s husband is typical of how many child pornography cases usually arise and how they are prosecuted.

Often times, a federal agent, with a file sharing program, such as LimeWire, will sit at his computer in a distant state (in the case of the FBI agent’s husband, the federal agent was in South Carolina and the client was in Texas) and send search terms that he or she expects will identify computers with activated file sharing capabilities that have child pornography on them.  Child pornography is defined in the United States Code as meaning:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where--

A.   the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

B.  such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

C.  such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

Once the agent locates a computer with alleged child pornography, he obtains images from the that computer using the file sharing program.  From there, the agent will get the ip address of the computer and obtain a search warrant from the computer’s internet provider to obtain the physical address where the computer is located.  The government then obtains a search warrant for the residence and the computer.  The search is normally conducted in the early hours of the morning.  The adults in the home are aggressively questioned in order to determine who was using the computer to download the alleged child pornography.  Usually, in an effort to protect others in the home, the person who downloaded the alleged pornography admits to having done so or at least admits that they are the one who uses the computer in question.  All computers in the home are then seized and the person is arrested.  Often if there are children in the home, Child Protective Services will get involved and interview the children.

Many people believe that by deleting a file on a computer, the file is completely “wiped” off the computer.  Often people charged with child pornography offenses learn the hard way that this is not true.  Law enforcement will send the seized computers off for a complete forensic analysis and often files that a person thought had been deleted will be found in the computer’s unallocated space.

In our experience, a person arrested for a child pornography offense will normally have no criminal record and no familiarity with the criminal justice system.  He will truly feel like he has fallen through the looking glass.  In many districts, he will be charged with DISTRIBUTION of child pornography since it was “distributed” through the file sharing program.  Distribution charges in federal court carry a five year mandatory minimum prison sentence and the person is NOT eligible for probation.  Moreover, while Broden & Mickelsen has, in many instances, been able to obtain the release of their clients pending trial, there is a presumption in the Bail Reform Act that no bond be set in these type of cases and the person should be detained pending trial.

It is very important that a person who finds themselves in this position hire an attorney skilled in federal court and skilled in defending child pornography case IMMEDIATELY.  A skilled attorney will increase the chances that the person will be released pending resolution of the charges.  A skilled attorney can also arrange for his own forensic analysis of the person’s computer to determine if the alleged child pornography was inadvertently placed on the computer or if there is some other defense to the charges.  Likewise, he cna determine if the images qualify legally as "child pornography."A skilled attorney will also analyze any “confessions” to determine if they are subject to a motion to suppress.

In our experience, many child pornography cases do ultimately wind up in a guilty plea given that, as mentioned above, the person will often have admitted to the offense at the time their computer is seized.  Nevertheless, this should only come after an experience lawyer fully evaluates the case.  Moreover, if a person is even considering pleading guilty to a child pornography offense in federal court, it is imperative that the person’s attorney understands the federal sentencing guidelines inside and out.  The federal sentencing guidelines, although advisory, attempt to guide judges in setting sentences. Unfortunately, over the past decade, the recommended imprisonment ranges for child pornography offenses have skyrocketed as a result of politicians attempting to curry favor with the public.  

It has gotten so ridiculous that many times a person who downloads child pornography and makes it available with a file sharing program actually faces a much harsher sentence than a person actually abuses a child.  In a recent case, based upon the number of images on his computer and other factors, the sentencing guidelines for a client we represented ,who was charged with distribution of child pornography through a file sharing program ,actually faced 151-188 months in prison.  We filed a sentencing memorandum, attempting to show the judge how dramatically the guidelines for these offense have been increased over the years by showing what sentence the guidelines would have called for over the past decade:

1987-11/1990 13 12-18 months

11/1990-11/1996 18 21-27 months

11/1996-11/2000 22 41-51 months

11/2000-4/2003 27 70-87 months

4/2003-11/2004 29 87-108 months

11/2004-pres. 34 151-188 months

Likewise, we pointed out that, had the client actually contacted a twelve year-old girl over the Internet, convinced her to meet him, and then the two engaged in repeated sexual acts, the client’s guidelines would only be 70-87 months- less than half of what he was facing for having images of child pornography on his computer.  We even pointed out, that under the sentencing guidelines, our client faced the same sentence as a defendant in a reported case who had paid $20 to have a mother hold down her nine year-old child while the defendant raped the young girl twice a week for two years. 

To see the full sentencing memorandum, click here:  SENTENCING MEMORANDUM

In more than in any other type of case, judges are ignoring the sentencing guidelines in child pornography cases.  Indeed, recent statistics show that judges in approximately 50 percent of the cases are imposing sentences in child pornography cases lower than provided for by the sentencing guidelines (although recall that, in distribution cases, there is a mandatary minimum sentence of five years).  In one case, the judge wrote:

The guidelines for child exploitation offenses were not developed using an empirical approach by the Sentencing Commission, but rather were mainly promulgated in response to statutory directives.  Specifically, the Protect Act directly amended guideline 2G2.2 by amending the guideline enhancements for specific offense characteristics.  These modifications do not appear to be based on any sort of empirical data, and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses.

The bottom line is that Congress has truly gone mad in increasing the penalties in child pornography cases. Therefore, if you find yourself charged in federal court with a child pornography offense, you must have a skilled attorney that knows how to defense these cases and who knows how to “deconstrtuct” the sentencing guidelines in these type of cases.   Even if you have to go outside the district in which you are charged, you owe it to yourself to find an attorney who is an expert in this area.  At the end of the day, it could save you from spending over a decade of your life in prison!

If you are charged with a child pornography offense, we urge you to call Clint Broden or Mick Mickelsen and we will consult with you about your case at no charge.

SHOULD I HIRE A TEXAS ATTORNEY THAT WILL ALSO POST MY BOND?

There are many Texas attorneys who advertise that they will “serve as both your bail bond agent (bondsman) and your attorney” and that they provide “competitive rates” for bail bonds that can later be applied to legal fees.

We strongly recommend that you NEVER hire an attorney that also agrees to be your bail bondsman.  Although “attorney bonds” are permitted in Texas, it appears that Texas may be the only state that explicitly allows this practice.

There is an excellent article written by two law professors, Dayla S. Pepi and Donna Bloom, entitled “Take the Money or Run: the Risky Business of Acting as Both Your Client's Lawyer And Bail Bondsman.” This article fully discuss this practice of attorneys acting as bondsmen and closely analyzes the practice..  As Professors Pepi and Bloom point out, most states and the American Bar Association(the “ABA”)  believe that it is unethical for attorneys to also act as their clients’ bondsmen.  For example, at the time of the article, ABA Formal Opinion 432, ABA's Standards for Criminal Justice 4-3.5 and ethics opinions and/or laws in Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Kansas, Kentucky, Michigan, Minnesota, New York, North Carolina, Oklahoma, Oregon, South Carolina, Virginia, West Virginia, and Wisconsin  suggested that this practice is illegal and/or unethical except in limited circumstances.

The reason for this is clear.  Where a lawyer is both a client’s attorney and bondsman, there is an obvious conflict of interest.  Remember, if a client fails to appear in court, a bondsman can lose the full bond amount, therefore, an attorney wearing both hats has conflicting loyalties.  For example, a lawyer might refrain from informing a client about the weakness in his case for fear the client will jump bond and the attorney will be out his bond money.  Conversely, a lawyer may be quick to get off a bond in order to protect his own assets when he learns information, sometimes confidential information, that causes him any unease that the client may not comply with bond conditions. Likewise, the lawyer might not inform you that he is getting off the bond and you could find yourself at your next court appearance facing a bond revocation and no lawyer to advocate against it.   In many ways, a bondsman, is your “jailer,” as you await trial.  You want your attorney to be your advocate and a person you can fully confide in.  You do not want your lawyer to be your  jailer who is constantly monitoring you and analyzing what you tell him in order to make sure you are complying with bond conditions.

Besides, what if, forever reason, you decide later decide that you do not want the lawyer who you hired to post your bond to represent you anymore?  You are probably trapped and that is just the way the lawyer wants it.  It is almost certain that the lawyer who also serves as your bondsman will tell you that, if you fire him, he will go off your bond.  This could result in you being arrested for an insufficient bond before you are able to hire a new lawyer and arrange for a real bail bondsman to assume your bond.

At Broden & Mickelsen, we have clients come to us after their attorney/bondsmen have went “off the bond” without providing any notice to the client.  We have successfully used a section of the Texas Occupation Code to force the attorney to return the bond fee to the client and/or stay on the bond.  Tex. Occ Code § 1704.207 provides: “If the court finds that a contested surrender was without reasonable cause, the court may require the person who executed the bond to refund to the principal all or part of the fees paid for execution of the bond.”  Nevertheless, despite this provision in the Occupation Code,  you could wind up sitting in jail while this is all sorted out if you do not have money to post a new bond.

The bottom line is that we strongly urge you to not only walk away, but quickly run away from any attorney who advertises that they also post bonds for their clients.  The lawyer will tell you that the reason they do this is to “help” the client or to provide “one stop shopping.”  Don’t be fooled.  In reality, most lawyers do this for one reason: to make more money.  They make money for legal fees and for acting as a bondsman.  Again, this practice is not prohibited in Texas, but is generally considered unethical by many states, bar associations, and legal scholars.  Why then hire a lawyer who is willing to engage in such a questionable practice in order to make a bit more money at the possible expense of their client?

HIRING A CRIMINAL DEFENSE LAWYER FOR A FEDERAL CASE

A potential client came to see me the other day.  The potential client was charged in federal court with possession and distribution of child pornography.  When the potential client called me to set up the appointment, it was clear that he did not have much money.  He was being represented by a Federal Public Defender (FPD) and was not working.  I do not charge for initial consultations and was happy to meet with the gentleman even though I recognized that it was unlikely that he would be able to retain our firm.

What is noteworthy regarding my consultation with this person is the discussion we had regarding counsel.  I explained to him that there are several hundred criminal defense lawyers in the Dallas area and I could recommend several great attorneys if he was being charged in STATE court.  However, he was being charged in federal court and faced a mandatory minimum sentence of five years.  I explained to him that there are only a handful of lawyers in the Dallas area that practice regularly in FEDERAL court.  Federal court, I informed him, is very different than state court.  Generally speaking the federal judges are stricter about following rules of procedure and there are stricter deadlines.  Most importantly, there are mandatory minimum sentences in federal court and sentencing in federal court are driven by the sentencing guidelines.  As I explained to the potential client, the sentencing guidelines for child pornography offenses are particularly open to attack and, therefore, it was very important that any lawyer he hired knew about “deconstructing” these guidelines and the latest case law related to these guidelines.  

  I explained to the gentleman that, given the small number of area lawyers who regularly appear in federal court, legal fees did generally tend to be higher to retain a qualified lawyer in a federal case.  I spent a great deal of time explaining to him that, if he was unable to hire a lawyer that regularly practiced in federal court, he was much better off keeping his FPD.  He told me that he was leery of the FPD because the FPD had not returned several phone calls.  I informed him that, while it is true that many FPDs carry high caseloads making it difficult to give the client the type of attention a retained attorney might give them, that FPDs were experienced in representing clients in federal court and the application of the federal sentencing guidelines.  As he left my office, I implored the potential client to keep his FPD unless he was able to retain the funds to hire a criminal defense lawyer that practiced regularly in federal court.

I talked to the potential client several weeks later and he told me that he was going to hire a lawyer who he found in the yellow pages.  I know this lawyer.  The lawyer pays to advertise his practice on several pages in the yellow pages and is regularly seen running around the state courthouse with a printout that has a long list of clients set for that day.  I looked the lawyer up on PACER (a listing of cases in federal court) and found out that, during his long career, he had only represented defendants in our federal district in handful of cases and, in many of those cases, he withdrew or was fired before the case was finished.  I said to the potential client, “Let me guess, the lawyer said he would ‘get started’ on the case if you brought him $1,000.”  The potential client was amazed I knew that.  The reason I knew that is because it  is that lawyer’s practice to take any money the client has available and then, without a written contract, put the client on a payment plan.  However, as soon as the client stops paying, the lawyer will try to withdraw from the case and keep the fees previously paid.

The most ironic thing is that when somebody runs a volume practice like this lawyer and makes money on the fact that he has thousands of clients paying small fees, it is impossible for the lawyer to communicate with his client.  Nevertheless, this is why the client was not satisfied with the FPD attorney in the first place.  Of course, given the volume of practice, if the lawyer ever had to take a case to trial and spend several days in trial, his practice would implode.  

Out of curiosity, I checked PACER recently and, at least for now, it appears that the potential client has taken my words to heart and has stayed with the FPD.

The bottom line is that, for defendants charged in federal court, it is important to realize that there are only a small subset of criminal defense lawyers that practice regularly in federal court.  For defendants charged in federal court who are seeking to retain private counsel it is imperative that you ask any lawyer you are considering hiring how many cases he or she has handled in federal court.  You should demand that the lawyer show you on PACER the number of cases he or she has handled in federal court.  If a lawyer is not willing to do this, it should tell you that he or she does not practice in federal court on a regular basis.  Again, the reason this is so important is that the rules in federal court and the sentencing guidelines used in federal court make federal court practice very different than state court practice.

Finally, if you cannot afford a lawyer who handles at least several cases a year in federal court, I almost guarantee you that you will be better off with a Federal Public Defender than trying to hire a lawyer out of the yellow pages or a lawyer who rarely deals with federal procedures and the United States Sentencing Guidelines.

MAKING THE GOVERNMENT PAY

In rare cases in federal court it is possible to make the government pay for a wrongful prosecution.  On November 26, 1997, Congress passed the Hyde Amendment which provides that if a defendant prevails in a prosecution brought in federal court and the court finds that the prosecution was “vexatious, frivolous or in bad faith,” the government can be required to pay the attorney’s fees and litigation costs that the defendant incurred in connection with the prosecution.

Broden & Mickelsen recently forced the government to pay its client $356,000 under the Hyde Amendment.  It is only one of only a handful of Hyde Amendment claims that have been won since the passage of the law twelve years ago.  Nevertheless, the road was a very long one.

Count Wolfgang Von Schlieffen, a German Count, was arrested in 1993 and convicted at trial in 1994 of drug distribution after a trial held in the United States District Court for the Southern District of Florida.  He was sentenced to ten years imprisonment.

After going through approximately six sets of lawyers, Count Von Schlieffen retained Broden & Mickelsen in 1999.  Through the tireless efforts of one of the best private investigators in the country, Gary McDaniel from Palm Beach Florida, Count Von Schlieffen was awarded a new trial.  click for link to Gary McDaniel

At that trial Broden & Mickelsen was able to convince Judge Wilkie Ferguson that the main witness against the Count, a paid informant named Helmut Groebe, had entrapped the Count.  As a result, Judge Ferguson dismissed all the charges and released Count Von Schlieffen after the Count had spent almost seven years in prison.

Broden & Mickelsen then brought a Hyde Amendment claim on behalf of Count Von Schlieffen.  The Count had spent several hundred thousands of dollars on lawyers and investigators in order to defend himself and expose Groebe.  It was not until 2003, when Judge Ferguson was in the hospital and dying of Leukemia, that Judge Ferguson granted the Hyde Amendment claim. It would be the last order Judge Ferguson signed as he died approximately one week later.  In his order Judge Ferguson was highly critical of the way in which the government’s case agent, DEA Agent Lee Lucas, controlled Groebe.

The government sought to take advantage of Judge Ferguson death and sought reconsideration of his order.  Unfortunately, the motion actually sat with a magistrate judge for several years.  During that time, Count Von Schlieffen died but Broden & Mickelsen represented his estate in connection with the Hyde Amendment claim.

It was not until early this year, sixteen years after Count Von Schlieffen's death, that a final order was entered awarding the Estate of Wolfgang Von Schlieffen $356,000 for the government’s wrongful prosecution of Count Von Schlieffen.

Coincidentally, a few months later DEA Agent Lee Lucas, the agent that Judge Ferguson found had mishandled informant Groebe in this case, was indicted in the United States District Court for the Northern District of Ohio for conspiring with informants to falsely accuse innocent people of distributing drugs in the Cleveland, Ohio area.

For a news article about this case, click here: Hyde Amendment article

Montejo v. Lousiana

    On May 26, 2009, the Supreme Court handed down another important decision pertaining to Constitutional procedure.   Almost everyone is familiar with "Miranda" rights.  These are the warnings that police give suspects upon arrest.  They are derived from the Supreme Court's decision in Arizona v. Miranda, in which the Supreme Court held that suspects are entitled to know that they have a right to have the assistance of a lawyer before they are subjected to interrogation.  A closely related decision is Edwards v. Arizona, in which the Supreme Court held that if a suspect requests the assistance of a lawyer while being interrogated, no further interrogation may occur until a lawyer has been made available.  Following Edwards v. Arizona the Supreme Court's decided Michigan v. Jackson, in which the Supreme Court held that if a defendant requests that the court appoint him a lawyer at his initial court appearance, then law enforcement may not initiate any further interrogation.
    In Montejo v. Louisiana, the defendant did not actually request that a lawyer be appointed but stood passively in court while a lawyer was appointed.  Shortly thereafter, law enforcement approached him again in jail.   After having been advised one more time that he had the right to have his lawyer present, he incriminated himself in relation to a murder that ultimately resulted in him receiving the death penalty.    The Louisiana Supreme Court held that Michigan v. Jackson did not apply because Montejo did not specifically request a lawyer, but merely accepted the appointment of a lawyer passively.   Because Jackson v. Michigan did not apply the Lousiana Supreme Court reasoned, Montejo could, and did, voluntarily waive his right to have counsel present during the interrogation.
    The U.S. Supreme Court agreed to hear the case.  The Supreme Court was concerned about extending Michigan v. Jackson to Montejo' situation, because Montejo had never actively sought the intervention of a lawyer.  The Supreme Court believed that the rational in Jackson was that when a defendant asks for the assistance of a lawyer, a presumption is created that he does not want to be subjected to further interrogation without the assitance of that lawyer.  The Supreme Court did not think the presumption made sense when the defendant automatically is appointed a lawyer such as in Montejo's case.  On the other hand, the Supreme Court was concerned that in states where the defendant has to affirmatively do something in order to be appointed a lawyer, the defendant is entitled to more constituional protection than in those states where no such request need be made in order to have a lawyer appointed.  The Supreme Court decided, in a five to four decision, that the best solution was to overrule Jackson v. Michigan. Thus, whether a state automatically appoints the defendant a lawyer, or whether the defendant has to actually request the appointment of a lawyer, the appointment of a lawyer to the defendant does not create a presumption that incriminating statements made after the appointment of a lawyer, and outside the presence of that lawyer, were involuntarily made.
    The ramifications of this case are probably limted to cases in which the defendant has been appointed a lawyer rather than retained a lawyer.   If the defendant has hired a lawyer, the courts should still presume to be involunatry any subsequent waivers of the right to counsel made pursuant to contact that was initiated by law enforcement.  Where the court appoints the defendant a lawyer, however, law enforcement will now attempt to contact the defendant after the appointment of the lawyer, outside the presence of the lawyer, and hope that the defendant waives his right to have counsel present and then incriminate himself.  All court appointed counsel should do their utmost to insure that their clients understand the improtance of continuing to invoke their right to remain silent when law enforcement officres come to interrogate them outside the presence of their attorneys.   On every court appointed case, counsel would be advised to send a letter to law enforcement advising them of their client's wish to remain silent.

The Fourth Amendment Lives!

    On April 21, 2009, the Supreme Court decided Arizona v. Gant.  The issue in this case was whether the fact the police made an arrest of the driver automatically gave them the right to search his car.  In New York v. Belton , decided in 1981, the Supreme Court had created a "bright line" rule that allowed police officers to search the entire contents of an automobile pursuant to the arrest of the driver.  The justification for that rule was that in order to protect the safety of the arresting officer he needed to be able to insure there was no weapon within the car.  Although in Belton the arresting officer suspected that the car contained marijuana, and he searched an area of the car out of reach of the arrestee, the Supreme Court created a simple rule that the police officer could search the entire contents of a car pursuant to an arrest.  In Arizona v. Gant, the arrested had been placed in handcuffs and put in the back seat of the squad car when the police officers conducted the search.  The question thus presented to the Court was whether the "bright line" rule established in Belton permitted the police to search the car when the arrestee was, in fact, in no position to reach anything within the car.
    The Supreme Court held, that in order to conduct a search pursuant to Belton the police either have to have an evidentiary basis to believe there is contraband or evidence in the car, or the arrestee has to still have some possibility of gaining access to the car, in order for the police to be able to search the car without a warrant.  (It should be noted the police still retain the right to search an arrestee's car if they impound it.)
    What is most heartening about this decision in my opinion is the fact that the current conservative court not only ruled in favor of a Fourth Amendment restriction, there were no rumblings from the Court about abolishing the exclusionary rule.  This rule, that illegally seized evidence may not be used in court, has had its share of detractors over the years.  In 2006 the Supreme Court in Hudson v. Michigan held that even if the police violate the "knock and announce" rule, the rule that require them to first knock and announce their presence before barging into someone's house in order to effect an arrest, did not mean that eny evidence procured as a pursuant to the violation had to be supressed (barred from court).  The Court held that the exclusion of evidence in this circumstance did not further the goals of the exclusionary rule.  I thought this decision would pave the way for the conservative Court to abolish the exclusionary rule but it appears that it remains alive and well for the time being at least.