I sometimes laugh at the notion of lawyers as counselors. We are not trained to be counselors.  We are trained in the law and by experience we learn to be fighters. Advocates. I have always liked the French term "avocat" as it better describes our role in the disputes that dominate our professional lives.  But what do our clients really need from us?  And what does the idea of "wise counsel" include?

First – clients need and deserve our full attention. They need to unload the facts and circumstances that make their case, and they need to know that we understand their plight.  Let’s call this ACKNOWLEDGMENT.  They need to know that we understand all the facts so that we can help them tell their story. Every case is just that – a story.  Our clients are not bit players in their dramas, they are the stars.  So we need to acknowledge their role and give them our best attention.

Second – our clients need the TRUTH about their situation.  We have the benefit of our education and experience. The key to making their position a winner is understanding how their facts fit the law. Once we know how facts and law will join, we need to tell them what we think about their position.  Is there position likely to carry the day? If not, they need to hear that from us, before a judge or jury tells them what we so often know but do not fully articulate.  The truth can save them money and save us the emotional upheaval every trial brings. 

Third – our clients need the benefit of our ability to lead in the face of the storm – this is VISION. Vision encompasses more than just acknowledgement and truth. Vision transcends the tough times and sleepless nights our clients cannot get past.  Vision is our ability to keep moving forward regardless of the collateral damage. But in tough times, vision is the first casualty.  Think of a time in your life where you faced that seemingly impossible situation. Was your ability to see the bigger picture eclipsed by the detail of your personal hardship? Our clients and their families are under incredible stress, handling life and death decisions that grip them. They are often depressed, indecisive, preoccupied and mired down with anxiety and guilt.  They need us to lead and to direct – they need the vision that comes from our view of the territory and understanding of the law.

If you are a lawyer thinking about next year – as I am right now – maybe these thoughts will help with your planning.  My resolution for 2010 is to be a more client-focussed "avocat.."  

I will try to not fight with the folks who have asked me to fight for them.  This is not always easy because of their emotional state and the stakes involved in their case, and sometimes, the client is wrong.  Sometimes the client won’t listen and will not take our advice.  But I will try.

Have some thoughts for the coming year?  Share them – and let’s do it better in 2010.

 Kari Atkinson, a 28-year-old former middle school teacher will spend at least two years in prison for having sex with her 14-year-old student.  To protect the boy, the court also ordered that she not have any contact with him for eighteen years.  The sentence includes two years fixed time – that is time that must be served before Atkinson is eligible for parole – and sixteen indeterminate years.  The indeterminate time runs after the fixed time.  

This case illustrates the Idaho sentencing scheme.  A person sentenced to the Idaho Board of Corrections may be eligible for parole, but never be released.  Release depends on performance in prison.  If Ms. Atkinson is released, her life will be "managed" by a Parole officer assigned to her case.  

We often hear that women and men receive different treatment from the courts when it comes to sex crimes.  Perhaps that is true, perhaps not.  Still, the system takes a very dim view of sex with minors and will continue to punish those who violate the law.  The two years of "fixed" time may not seem like much, but even a few days in jail serves to remind most folks of the value of their liberty.  And if Ms. Atkinson thinks that prison is tough – on release she will still have to face a parole officer who may keep her away from minors and family members, and who will decide where she can live, what she can do and how she can do it.  Parole is not freedom.  Sometimes it can be an opportunity to really change your life, but often it is not.

The high cost of a criminal conviction includes the loss of freedom over your life and the limitation on your liberty.  It also includes the lost opportunities for careers and relationships.  

Have a story to share about lost liberty?  Post it here and let’s start a discussion.

 This week I am in trial preparation mode and only this morning checked my email for the past five days.  In my email I found a post  to a blog written by Trial Lawyers College great, Paul Luvera. Luvera is a master of the game and a wonderful teacher.  If you are a lawyer reading this, go to his blog and learn from his years of experience.  Today’s message from Paul – entitled Random Thoughts – begins with a quote from Shakespeare’s Hamlet:

"When sorrows come – they come not single spies – but in battalions."

He goes on to point out that "nothing ever goes the way it is planned or expected when it comes to trial work."  Like those sorrows, our cases tend to unravel first by a thread and then by the entire cloth. We need to keep focussed on our end game.  We need to keep working toward resolution of the case, preparing to win while recognizing that something will come undone – and then something else.  When that happens we look at ourselves and question whether we have done enough for the case and for the client. That’s where those sleepless nights come in – over and over again.

In a recent case I had that eleventh hour complication every lawyer fears.  Some little fact the client had left "unsaid" until the night before she was to testify.  That "little gem" would have given the prosecutor the door to run a train through our case, so we decided to not call our client to the stand. That created additional problems because in opening I had told the jury they would hear certain testimony which seemingly could only come from my client.  Not a single problem, a battalion of problems created because I did not have the "whole" story.  The client had not trusted me with the entire truth.

So how does a criminal defense lawyer, or any other trial lawyer handle this type of problem during trial of the case?  You’ve gotta’ be quick on your feet.  And even then, you may not recover.  It is better to know all the case before, than get to trial and discover that one fact that betrays you.  

Off to meet with a client.  Luvera has inspired me to talk in ernest with him about that one little spy in the case.  Seems almost certain to me that there is a battalion out there waiting to attack my flank if I am not fully fortified in my defense, and experienced trial lawyers know that preparation is the only fortification we have.  F. Lee used to say "the defense is never ready, enough."

If you are a lawyer with a "spy" problem – send in a comment and start a discussion here.  How do we best prepare for the coming battalion?

If you are have a legal problem, do the same. If I can’t help, perhaps I can put you in touch with someone who can.

 I am doing a little research on a case I have and googled "real estate developer fraud."  Check out the resulting IRS case reviews on just how seriously their enforcement efforts have been.  Certainly a good reminder that real estate fraud by developers can cause some serious time in prison.  No time to really write much about this, but just time enough to remember that the IRS plays for keeps.

Here’s how the New York Times announced it:

"Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four other men accused in the plot will be prosecuted in federal court in New York City, a federal law enforcement official said early on Friday."

And of course the talking heads will be weighing in on how this course of action will impact on other Gitmo detainees.  Four others are reportedly also headed to NY to face trial, but some of those prosecutions may still occur before military commissions.  The biggest concern for prosecutors has reportedly been the fact that KSM has been water-boarded some 170 times.  Evidence (confessions) that is the result of torture is generally not admitted in criminal trials, and any defense lawyer tasked with defending the man accused of killing 3000 people will have to make the government meet its burdens under the Constitution.  Still, a show trial in NY seems right to me.  The towers came down in NY.  New Yorkers lived with the terror.  Ground Zero remains a work in progress. The federal courts there are used to handling big cases and providing great security.  And this is a country dedicated to the proposition that we try these cases in public, before the people of this country.  And did I mention the 3000 or so who died that day in NY?  Their children, spouses and families deserve the chance to see the system at work.  That won’t make the case easy for the United States – quite the contrary.  That collision of personal rights and public anger will lead to hours of interesting "education" for Americans and others as they watch the court system in action. 

 A 16 year-old Boise boy will face a criminal charge of vehicular manslaughter for his actions that are alleged to have caused the death of Kevin Pavlis.  Kevin worked at Idaho Mountain Touring and was well known in the bicycle community. His death – just a day before Boise’s Ironman 70.3 race – left his young wife and child without a husband and father. The sadness at his loss affected those who knew Kevin and many who did not. And the tragedy started a dialog about providing safe passage in Boise for bicyclists.

The criminal courts may not be the best place to handle cases like this, but this young man will have his fate decided in Juvenile court.  He should not and will not be treated like an adult.  Kevin is gone, and nothing done in Juvenile Court will bring him back.  Likely nothing about the criminal case will make Kevin’s family feel better either.  Maybe though, some other 16 year-old kid will look a little closer before making that turn, and save a life.

 The Idaho Statesman is reporting that a Kooskia man was sentenced to four years in federal prison for fraud.  The ghost of Charles Ponzi – the father of all Ponzi schemes – rides again into the court room only to meet up with Judge Ed Lodge.  This guy stole $1.6 million from "investors" who saw big returns in their future.  In addition to that prison adventure, Steven Tennies will have to repay the money.  That is almost never what really happens because it is so difficult to save $1.6 million on that "after prison" employment opportunity.  "Would you like fries with that sir?"

Here’s the deal with Ponzi schemes – your investment money becomes the "personal" money of the promoter.  They almost always end up with the money you thought was going to be invested.  Your returns come at the price of those who follow you.  The promoter uses their money to pay you a little interest and then takes the rest of the money to spend on his own life.  

But wait – there is more.  If you were lucky enough to pocket those early returns and got your money back, the government may attempt to "claw back" that money you received because it was stolen from some later "investor."  Check out what is happening to the early Madoff "investors" who received their money and big returns.  The government has taken the position that they pocketed millions and billions from others, which they must now return.

So another Ponzi defendant falls.  There will be more – and some of you may find yourself tempted to  "invest" with someone promising you big interest each month.  As they used to say in that old cop show Hill Street Blues – "be careful out there folks."  If it sounds too good to be true, Charles Ponzi may be knocking at your door.

 In an interesting and confusing decision, the Ninth Circuit gave us US v. Van Alstyne last week, and again considered just when do funds arising from specified illegal activity constitute "proceeds" for purposes of the money laundering statute, 18 USC § 1956.  To decide the matter, the Court had to address the Supreme Court’s decision in United States v. Santos, 128 S.Ct. 2020 (2008), which had arisen in the interim.  

So here are the basics – Van Alstyne was convicted of running a ponzi scheme.  Usual stuff here – limited liability companies, millions of "investor" dollars that never produced any real investment in anything except the lining of the appellant’s pockets, and the Government, jumping into the fray to try and get some of the "investment" money back for the retired and other folks who forgot that most important rule:  if it sounds too good to be true, IT IS!  Here the investors gave up their savings and then shortly after began receiving their 10% return on investment from the investors who followed them toward the sea.  As is always the case, eventually there are not enough lemmings to keep the march going, and alas, the ghost of Charles Ponzi rides again.

Van Alstyne was convicted in 2001 of 7 counts of mail fraud and 3 counts of money laundering.  He picked up 24 years (yes, YEARS) in prison and a variety of other inconveniences, including $9 million in restitution.  For the court’s consideration here was whether the proceeds contemplated under the money laundering statute meant profits or gross receipts.  Based on a serious reading of Santos, the term means profits, or else every violation of the underlying specified illegal activity would be a violation of the money laundering statute, a problem because of the merger doctrine. Before Santos, the 9th Circuit had taken the view that "proceeds" meant "gross receipts."  Now, the Court concludes that a uniform "receipts" approach would violate Santos, although that case dealt only with money taken in from an illegal lottery – which might somehow be different from an Illegal ponzi scheme and mail fraud.  Of the three counts on which Van Alstyne was convicted, the Court overturns the two transfers which were intended to provide distributions to individual investors, but upheld the one transfer of money intended to refund the entire amount one investor had entrusted to the appellant.  Bottom line – this is still very murky water.  Why is it money laundering when the funds of many go to one specific recipient, but not to the many?  It is likely that this matter is not fully resolved yet.

What should we take away from the decision?  First, remember that Van Alstyne got canned for seven mail fraud convictions.  Those convictions were not at issue, but rather, the question was whether the money laundering counts would survive.  Here is the court’s reminder:

Our question, then, is whether mail fraud is, or can be, a crime presenting the “merger” problem that was a fulcrum consideration for the Santos plurality and concurrence. Mail fraud has two elements: “(1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts).” Carter v. United States, 530 U.S. 255, 261 (2000); see also Bridge v. Phoenix Bond & Indem. Co., 128 S.Ct. 2131, 2138 (2008). The Supreme Court has emphasized that 18 U.S.C. § 1341 prohibits “the ‘scheme to defraud’ rather than the completed fraud. . . . ,” Neder v. United States, 527 U.S. 1, 25 (1999), and that a mailing need only be “incident to an essential part of the scheme” to satisfy the second element. Bridge, 128 S.Ct. at 2138

Again, the scheme is focus of the mail fraud statute, just as in the wire fraud setting.  This is also true under Idaho state law and in civil cases involving fraud.  Convicting him for having paid the cost of keeping the scheme going – that is – the lulling payments to investors that kept them thinking they had made a great investment – would only serve to make this necessary part of the scheme an additional crime.  Merger makes sense when you interpret these payments as the cost of doing business for Van Alstyne.  In fact, as the Court points out, each of the mail fraud counts could have been charged instead as money laundering, so that crime is viewed as having merged into the fraud.  The one count upheld was different because this involved a specific transfer of money taken by fraud back to a particular investor as a refund.  

The rumors continue to swirl that we can expect to see grand jury indictments in the United States District Court for Idaho in several new fraud cases, some of which are likely to involve Ponzi schemes similar to this one.  That having been said, the issue of whether the money laundering statute will provide a hook to the money remains subject to analysis on a case-by-case basis.

In a year that I have not found myself in trial that often (only one other time), I am happy to report that I heard those words again on Friday – Not Guilty, Not Guilty, Not Guilty, Not Guilty and – Not Guilty.  The case involved fish and game violations and my client, an Outfitter whose very life depends on his ability to take paying clients in search of big game, was tried by jury in Challis.  After the state concluded its evidence the Judge granted motions for judgment of acquittal on four of five counts.  The jury finished the matter up by acquitting on the only remaining charge.  Let me share a couple things I learned again from this case:

First – you have to believe in your client and his or her case.  A friend of mine says that you can’t ask a jury to do something you won’t do. Translated – if you don’t believe in your case the jury won’t either.

Second – take your time in trial and tell your story.  It is all about that story, and if rushed, it may not make it to the jury as you intend it.  So slow it down.  Let the jury take it in and think about it.  Let them spin it and examine it and in the end, the story will be the thing that makes it work.

Third – make sure you know the facts.  Know the case better than the other side. 

Now – with the year to finish and two more cases headed for trial before years end, I will hunker down and keep reading.  The fact that only two of my cases have gone to trial this year is not a bad thing.  Some cases were settled under situations that brought value to the clients.  Two were dismissed and another two more – felony cases that alleged armed robbery – resulted in a dismissal of the felony counts and pleas to simple misdemeanors.  Some years are like that – and next year might result in more or fewer trials.

Have a question about a case?  Send a comment or use our contact sheet.  Calls this week are not likely going to get returned because I am, again, in trial.

 I had a call this week from someone who wondered if the court would require him to have an ignition interlock placed on his car as a result of his plea of guilty to a second DUI.  The answer is – probably.

The law provides for the use of the interlock – which is an electronic device that prevents the driver from starting a car if there is alcohol present in his/her breath – as an option in any DUI conviction.  Idaho allows the Court to impose this as a condition of probation.  Additionally, the Idaho statute provides that the drivers license for such a person shall reflect the condition.  So – if you have to use an interlock device – it would be virtually impossible to rent a car if on a trip outside the state.

The other thing to remember about the interlock device is that it will cost you, as the driver, an additional amount of money each month for the use of the device.  The only real good news is that the requirement will end when your probation ends.  If you are in this situation you are likely on supervised probation – another revenue generator for the state and another source of accountability for anyone convicted of driving under the influence of drugs or alcohol.

I heard yesterday that another person dies as a result of drinking and driving every thirty seconds. That is a lot of needless death and suffering.  Make a decision today to not drink and drive.  And if you can’t seem to quit drinking, maybe it is time to get some help for your problem drinking.