The Federal Docket is a monthly newsletter providing lawyers and the community a summary of recent important decisions in the area of federal criminal law from the United States Supreme Court and the Circuit Courts of Appeal. The opinions are compiled, summarized and analyzed by Tom Church, an attorney in our firm’s federal criminal defense practice.


In The News

  • Purdue Pharma Pleads Guilty to Violating Anti-Kickback Laws & Defrauding the U.S.

    The DOJ has announced that Purdue Pharma, the pharmaceutical corporation best known for making the opioid pain killer Oxycotin, will plead guilty to three federal criminal charges relating to its role in creating to the opioid crisis. Purdue Pharma will be pleading guilty to conspiracy to defraud the U.S. and violate the Food, Drug and Cosmetic Act and two counts of conspiracy to violate the Federal Anti-Kickback Statute based on payments to healthcare providers and a cloud-based electronic health records company that Purdue worked with in relation to its distribution of opioid pain medication. The plea agreement calls for over $8 billion in fines and fees and will require the company, which previously filed for bankruptcy, to dissolve.

  • DOJ Charges 14,200 People with Firearms Offenses in 2020

    October 13, 2020. The Department of Justice announced today that it has charged over 14,200 people with various kinds of firearms offenses in 2020, with potentially more to come.The U.S. Attorney's Office in Atlanta announced that its office brought in at least 336 of the 14,200 firearms cases, and the charges include possession of a firearm by someone in a prohibited class (such as felon, illegal alien, or drug user), possession of a firearm in furtherance of a violent crime of drug trafficking offense (924(c)), unlawful purchase of a firearm, and false statements in connection with registering a firearm with the Bureau of Alcohol Tobacco and Firearms, such as by lying on an ATF Form.

  • Federal Judge Blocks DOJ’s Presidential Commission on Law Enforcement From Publishing Report

    A federal judge in D.C. issued an order preventing the Trump DOJ's Presidential Commission on Law Enforcement and Administration of Justice from continuing to work and release its final report, holding that the make up of the commission, almost entirely construed of former and current members of law enforcement and prosecutors, violated statutory obligations under the Federal Advisory Committee Act to have a "fairly balanced" membership and provide transparency.

  • Compilation of Compassionate Release Grants

    Attorney Tom Church has compiled a list of Compassionate Release grants and some of the key findings and information in the corresponding opinions. The list includes grants of release for inmates with specific medical conditions, inmates who have already tested positive for COVID-19 and/or recovered, inmates released from facilities that are reporting zero confirmed cases, and inmates whose request is based, not on COVID-19, but on their family circumstances or excessive sentences. NEW - The compilation now includes opinions involving releases and sentence reductions for individuals based on "excessive sentences."

  • South Georgia Feds Target Telemedicine Fraud in Operation Rubber Stamp

    On October 7, 2020, the DOJ and U.S. Attorney's Office for the Southern District of Georgia announced several prosecutions of "telemedicine fraud" as a result of the federal government's aggressive approach in Operation Rubber Stamp, including one case involving $1.5 billion in allegedly fraudulent bills to government health insurance programs. The feds allege that several individuals and companies involved in "telemedicine," where patients can attend virtual appointments with their doctors, were collecting patient data and selling it to pharmacies, labs, and durable medical equipment (DME) suppliers. These "telemedicine executives" are accused of paying doctors and other healthcare providers to order unnecessary DME, lab tests, or prescription pain medication after brief telemedicine appoints or for patients they never actually saw, and bill the government for those allegedly unnecessary services. Hence, the rubber stamp.

  • Feds Announce 170+ Arrests in Dark Net Opioid Investigation

    The DOJ and DEA have announced the arrests of 179 people and the seizure of $6.5 million stemming from an international investigation targeting suspected opioid trafficking through the Darknet. Individuals have been arrested in 7 different countries on charges relating to selling opioids through the internet and will likely see additional charges such as money laundering.

  • Prosecutor Quits Presidential Commission on Law Enforcement, Citing “Tough on Crime” Bias

    Prosecutor John Choi, the elected head prosecutor of Ramsey County, Minnesota, has resigned his position on the Presidential Commission on Law Enforcement and Administration of Justice. The Commission was established under President Trump to study the social impact of policing and explore ways to improve policing. Choi cited the Commission's pro-law enforcement bias and "tough on crime" agenda in his resignation, foreshadowing that the Commission's recommendations and findings will likely inspire controversy.

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Recent Supreme Court Opinions

  • Andrus v. Texas (U.S. Supreme Court, June 2020)

    In a per curiam opinion, a majority on the Supreme Court vacated a defendant's death sentence and held that his trial counsel was constitutionally ineffective based on his failure to perform mitigation investigation, putting up mitigating evidence that backfired by bolstering the state's case, failing to investigate the state's aggravating evidence, and failing to present significant mitigating evidence that he could have discovered.

  • Ramos v. Louisiana (U.S. Supreme Court, April 2020)

    In a patchwork opinion involving a lengthy discussion of stare decisis, a majority of the Court held that the Sixth Amendment right to a unanimous verdict in a criminal prosecution applies to the states through the Fourteenth amendment.

  • Kelly v. United States (U.S. Supreme Court, May 2020)

    In a unanimous opinion, the Supreme Court reversed the convictions of the Port Authority officials involved in the infamous "Bridgegate scandal," holding that their convictions for wire fraud on a federally funded program, predicated on their blocking off certain lanes as political retribution against an opposition mayor, were not supported by sufficient evidence because they did not involve a scheme "to obtain money or property."

  • Kansas v. Charles Glover, Jr. (U.S. Supreme Court, April 6, 2020)

    In an 8-1 opinion, the Supreme Court held that an officer has reasonable suspicion justifying a traffic stop when he runs a vehicle's license plate and learns that the registered owner's license has been revoked or suspended. The Court held that it is reasonable for an officer to assume that the vehicle's driver is the registered owner, even where the registered owner's license has been suspended, because the data shows that many individuals who have suspended licenses continue to drive anyway.

  • Kahler v. Kansas (U.S. Supreme Court, March 2020)

    The Supreme Court held that Kansas's insanity defense, which turns on whether the defendant was capable of understanding his conduct as opposed to understanding whether his conduct was morally wrong, did not offend due process. The Court stressed that the insanity defense changes in response to developments in mental health science and that state governments are better equipped to design the defense.

  • Shular v. United States (U.S. Supreme Court, February 2020)

    In a unanimous decision, the Supreme Court held a defendant's prior conviction under state law qualifies as a "serious drug offense" under the ACCA if the defendant's conduct involves "manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance" as spelled out under the statute. In doing so, the Court rejected a categorical approach that would require courts to match the defendant's state offenses to a "generic offense."

  • McKinney v. Arizona (U.S. Supreme Court, February 2020)

    The Supreme Court held that allowing a state appellate court to reweigh the aggravating and mitigating factors in a capital case under Clemons v. Mississippi is a permissible remedy after a finding on collateral review that the sentence court failed to consider mitigating factors in violation of Eddings v. Oklahoma.

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Recent Circuit Court Opinions

  • United States v. Mohammed Jabateh (3rd Cir. September 2020)

    In a matter of first impression, the Third Circuit affirmed a defendant’s conviction of immigration fraud and perjury for lying during his oral interview with a USCIS officer about his involvement with organizations and killing others in his home county. Although the Court held that the statute applied only to written documents, the defendant's conviction was not plain error since the statutory interpretation was not clear and no other court had considered the statute’s ordinary meaning before.

  • United States v. Volvy “Zev” Smilowitz (2d Cir. September 2020)

    The Second Circuit affirmed defendant’s conviction for bribing individuals to register to vote and submitting false voter registrations, holding that the federal election statute applied to defendant influencing a strictly local election since voter registration is part of a unitary system that governs local, state and federal elections regardless of the defendant’s intent to affect only a local election.

  • United States v. Miguel Angel Cano (9th Cir. September 2020), Denying Rehearing En Banc

    The Ninth Circuit declined a rehearing en banc, leaving in place a panel opinion holding that a warrantless forensic search of the defendant’s phone was outside the scope of a permissible routine border search and violated the Fourth Amendment. The Court held that warrantless border searches are limited in scope to routine customs inspections for contraband, not evidence, that the only kind of contraband on a phone is child pornography, and that the officers did not have reasonable suspicion that the phone contained child pornography.

  • United States v. Javier Garcia (9th Cir. August 2020)

    The Ninth Circuit vacated the defendant’s conviction and held that the attenuation doctrine should not have been applied to deny his motion to suppress. The officers' second, discretionary search of the defendant's home was a direct result of a prior unlawful sweep of the home during which officers discovered that the defendant had a condition of supervised release allowing searches. The temporal proximity between the searches and the investigatory motives of the officers outweighed the intervening nature of discovering the condition of supervised release, and evidence discovered during the second search should have been suppressed.

  • United States v. Manndrell Evann Lee (6th Cir. September 2020)

    The Sixth Circuit under abuse of discretion vacated the defendant’s sentence and remanded for resentencing, holding that upward variance applied by the district court based on the defendant’s criminal history was unreasonable because it applied too much weight to a prior conviction and parole violations from the same offense. The Court also held that it was the defendant’s first firearm offense, a 15-year gap existed from prior dangerous conduct, and compared to similar cases, the doubling of his sentence had no meaningful relationship to his likelihood of reoffending.

  • United States v. Seneca Harrison (8th Cir. September 2020)

    The Eighth Circuit vacated a defendant’s sentence and held that the judge improperly participated in plea negotiations when he excused the prosecutor from the court room, told the defendant that the federal system “sucks” and is “really harsh,” and suggested that the defendant would be sentenced by a more lenient if he went to trial and lost rather than plead guilty. The Court held this was reversible plain error where the defendant proceeded to trial and received a higher sentence than discussed by the parties and the judge at the change of plea hearing.

  • United States v. Bryan Bailey, Calvin Bailey, Sandra Bailey (6th Cir. September 2020)

    The Sixth Circuit vacated a defendant's sentence for healthcare fraud based on the district court's abuse of discretion in attributing losses to the defendant stemming from his wife''s use of forged prescriptions and referral payments since there was no evidence that he agreed to undertake those acts. The Court held that while jointly undertaken criminal activity can be used to determine conspiracy criminal liability, the acts of a co-conspirator cannot be used in the scope of conduct analysis to calculate a defendant’s offense level under the sentencing guidelines if the defendant did not agree to undertake the specific activity, though those acts could be held against the defendant in calculating restitution.

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