I am a criminal defense lawyer who practices mostly in Atlanta, but I try to keep up with other cases from around the country if they involve the federal court system where I handle the bulk of my practice. I recently came across a case from south Florida, a case that reminded me that criminal defense lawyers need to fully understand and be able to explain to their clients that there really is no difference between “regular” evidence and “circumstantial evidence.” The case comes out of the United States Court of Appeals for the Eleventh Circuit, where I have done hundreds of appeals in my career and where I need to go for yet another oral argument in a few weeks.
The federal Court of Appeals here in Atlanta (technically, called “the United States Court of Appeals for the Eleventh Circuit) has its main office and courthouse a few blocks from me here in downtown ATL. I do lots of cases over there. Like many criminal appeals, I usually request what is called an “oral argument” when I take a case that is in the Eleventh Circuit. I spent some time today getting ready for an upcoming oral argument, and wanted to discuss a little bit about this and the appellate process in general.
Although I am in Atlanta and tend to handle federal criminal cases here in Georgia and nearby states, I also work on cases throughout the country when asked to do so. As a result, I also try to keep up with federal criminal matters arising in other “circuits.” Yesterday a Federal Court of Appeals (the Sixth Circuit) that deals with cases out of Kentucky affirmed some health care fraud convictions for doctors and others who operated labs that tested patient urine samples. The case is called United States v. Bertram. 18-5002-2018-08-20. This decision is yet another lesson as to how complicated these cases can be, and how issues can be missed by even the best lawyers and judges.
The Defendants were some small-town doctors and business people who were in an area where the opioid scourge has caused so much pain and agony. A couple of the doctors operated addiction clinics and needed labs to test patient urine samples for drug use and other information. They formed their own test lab, but test samples began to back up when the equipment did not operate at first. The samples were frozen for up to 10 months before being tested. The lab then sent requests for payment to private insurance companies. The government said this was health care fraud, because the lab operators failed to disclose that they had waited up to 10 months to test the frozen urine samples, and this constituted a “scheme to defraud.” The jury rejected most of the prosecutors’ case, but each Defendant was found guilty of some charges related to bills submitted to Anthem Insurance. The judge imposed what to my eye seemed to be rather modest sentences, ranging between 13-21 months. Reading the case yields two observations.
First, the sentencing part of the case is exceedingly similar to my recent securities fraud matter where we had the two-day sentencing hearing, whittling down the Guideline range from close to 30 years to point where the judge imposed 10 years on my client. Federal criminal sentencing proceedings for these white collar criminal matters often involve the same common issues: calculation of “loss,” whether to bump the Defendant’s score up for “sophisticated means”, did the Defendant abuse a “position of trust”, and what was his or her “role in the offense.” Anyone facing such a case needs an attorney well-versed in these complex sentencing subjects.
Criminal Defense Attorneys and Their Clients: Who is in Charge?
Many people who do this kind of work find themselves representing clients who look at the criminal case differently than their own lawyer. Such differences of opinion lead to the interesting constitutional question of who is in charge of the defense, and what decisions are reserved for the lawyer and which ones are exclusively reserved for the client. The United States Supreme Court recently issued the opinion in McCoy v. Louisiana, which partly answers a few of these questions. This decision reminds lawyers that our Constitution means that a criminal Defendant possesses the fundamental right to make decisions about his defense and prevents a defense lawyer from going against his client’s instructions. This rule holds true even when the attorney’s strategy seems to be right on the money.
When do we ever really “know” something is a question often asked in the many federal criminal cases I handle here in Atlanta, throughout Georgia and around the country. Most criminal cases require that the prosecutor prove that the Defendant “knew” something. The issue might be whether the Defendant “knew” that a package contained drugs, or, like a case I handled recently, whether a CEO “knew” about the bribery shenanigans done by lower-level executives in a different state. Many of the cases I have won over the years in federal court came about because the jury had significant doubts as to whether there was sufficient evidence that my client “knew” a certain fact. However, a recent case from the United States Court of Appeals for the Eleventh Circuit seems to make the prosecutor’s burden far easier. That case, U.S. v. Duenas, greatly expands what is called the “prudent smuggler” doctrine, and seems to foretell a harder time for me and other criminal defense lawyer in the future.
The rationale behind the “prudent smuggler doctrine,” as it has become known, is straightforward. A prudent smuggler seeks to facilitate the exchange of contraband in order to enrich himself while evading apprehension by law enforcement officers. He is, therefore, not inclined to navigate the contraband markets’ perils and uncertainties alone…Rather, he is disposed to trust a confidant to provide loyal and competent assistance in securing the illicit transaction’s smooth performance…Loyalty is necessary to ensure that the confidant will not abscond with the valuable contraband; and competency is necessary to ensure that the confidant will effectively consummate the plan. In entrusting the confidant, then, the smuggler will likely apprise him of the transaction’s essential details, including the nature of the contraband involved, so that the confidant may overcome the “normal but deadly hazards implicit in [contraband] trafficking.” The emphasis on the word “likely” comes from me. In other words, this is a made-up rule, based merely on the Judge’s own beliefs, supplanting his inclinations for that of jurors.
Here at beloved K&L we do a fair number of appeals in criminal cases, mostly in federal court but occasionally in the state court system. Winning an appeal in a criminal case is always hard, it takes lots of work to understand what happened in the lower court, it takes even more time and energy to figure out all the potential legal issues, and then it takes more time still to write, revise, refine and get the arguments down in a manner that is both correct yet easily understood. Even when we do all that, we face one more hurdle before we can get relief for our clients; the “Harmless Error” rule. A case decided last week by all 11 Judges on the federal Court of Appeals here in Atlanta clearly shows this difficulty. The decision is United States v. Roy, and can be found here.