First – a disclaimer – I watched the DBSI trial in federal court here in Boise with considerable interest over the past three months and I admire the lawyers involved on both sides. I also had a client who was a witness (a key witness perhaps, after viewing a juror interview on local television).

I may not be seen as entirely neutral on this one but the case serves as such a great reminder of the difficulties defending against any federal felony charge.

Federal cases begin with the Government already way ahead – their investigations take years in cases like this one. They have more investigators and more time into the build up before indictment than you will ever have if you have to defend yourself. I watched a few years ago as a war chest of money (in the millions) was "burned" by east coast, big city, big firm lawyers who promptly got out of the case, coincidently, when the money ran out, and that was long before any indictment. The money that would be needed to fight governmental agencies and defend against a criminal indictment are now long gone, and so are the big time lawyers.

The federal government has unlimited resources, unlimited experience and the ability to out churn and burn almost any defendant. They can grind you up, and in a big case, like DBSI, that is precisely what they do. If you are under investigation, check out this post from 2010.

I think I had forgotten that as I watched the DBSI trial unfold.

By the time that case started, only the best lawyers and the best of circumstances would give the defendants a chance at avoiding conviction.

The defendants in DBSI had both, and still, jurors returned guilty verdicts within a few days deliberation on charges of securities fraud, and after a trial that lasted roughly three months. In part, the explanation for the speedy decision likely rests with the inherent advantage that comes with having spent years investigating and preparing for the trial. 

Trials are wars. Epic battles. And such adventures are won by the best prepared and equipped.

Even the greatest lawyers can’t change the facts. They can craft a defense and move the conversation toward another way of interpreting a case history, but sometimes that may not be enough. Jurors in fraud cases hear that mountain of information, and watch the story unfold, but in the end they may not be moved from what they have heard – "scam."  "Ponzi-scheme." "Millions of investor money gone." 

Moving the needle in these case is so difficult. To defend here you have to "justify" the actions of men who were argued as having "taken millions" of investor money knowing their company was losing money without fully disclosing that fact.

DBSI presented the toughest of cases to win for any defendant.

Investors have lost plenty of money investing in stocks in big companies that lost traction. Rite-Aid. AIG. Shearson Lehman Brothers. Once the money is gone, they generally cannot "blame" anyone – although the "investment gurus" who touted each in the face of obvious problems seems to me to be partially responsible. But in each case, we made the investments. We made decisions. We took risks.

DBSI provided faces and bodies in the courtroom on which to focus blame. The investor decisions didn’t really seem to count. It didn’t matter that the investors had advisors, accountants and lawyers to review their decisions. What mattered were the faces of the defendants, the claims that these "suits" had special knowledge that had not been shared with investors before they parted with their cash.

Maybe the verdict simply reflects a deeper belief, that people with special knowledge of the underlying viability in an investment will shout it from the rooftops. But that is not always possible in the face of a crisis like the market meltdown and the real estate collapse. Condos bought for $300,000  eight or nine years ago may today be worth only $150,000. Who is to blame? The realtors, appraisers and bankers who should have seen it coming but kept selling, valuing and lending?

As a lawyer, DBSI just reminds me that there are tough cases that will eat up our lives and destroy our clients, sometimes no matter how hard we work.

And it reminds me that to win any case we need to focus our cases on themes that will play well with jurors. Ultimately the jurors will have to carry our clients to the other side if we are to win.

This is no knock against the great lawyers who defended the case. They fought like warriors. But even Ragnar Lothbrok and his Vikings ultimately must battle better equipped forces and circumstances favoring their opponents.

So too the fate of the DBSI defendants and their lawyers – and anyone facing off against the federal government. 

Fighting the feds? Better get an army.


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The Sixth Amendment to the Constitution provides you with many of your most important tools at trial. It is intended to guarantee a fair trial to every person accused of a crime. Whether you are charged with DUI, a drug crime, a sex offense, fraud, manslaughter or murder, the Sixth Amendment helps us to get you a fair trial.

If you have been charged with a crime, we will be happy to meet with you to explain your Sixth Amendment rights and how they can help us defend you in your particular criminal defense matter.

So what does the Sixth Amendment provide?  It provides you with these essential rights at trial:

You have the right to be tried by an impartial jury.
You must be informed of the nature of the charges against you.
You have the right to confront the witnesses against you.
You have the right to a lawyer.

These basic rights are just the start – for example you don’t want just any lawyer – you want an experienced trial lawyer.

You don’t really want just any jury that might be impartial – you want a lawyer who can use his or her experience to choose jurors most likely to listen to your story, and jurors who will want to help you.

So the Sixth Amendment gives us a framework to defend you, but the key to your defense – your trial and your innocence – is the lawyer you choose.

Before you hire a lawyer who says he or she has the experience you need to face a prosecution – STOP.  Ask that lawyer the five questions we have here.  Then give us a call. For over thirty years we have been providing the best defense in criminal cases in state and federal courts.


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 Alan Ellis is well regarded as "THE" Federal Sentencing guru among those of us who spend time in federal court. An article he co-authored with John Steer and Mark Allenbaugh appears in the American Bar Association’s Criminal Justice Magazine entitled At A Loss For Justice, Federal Sentencing For Economic Offenses.  A copy can be obtained from the author here.  If you are a lawyer who ventures into the guidelines arena with white collar clients, read the article.  If you are a person facing fraud charges, read the article!

Generally, our friends in the Ponzi and stock scheme business have brought a little heat to fraud offenses.  The government has modified the guidelines to "equalize" punishment for white collar and non-white collar theft and fraud offenses in light of Bernie Madoff and Bernie Ebbers and the like. The net effect is that white collar crimes are now likely to bring a bigger sentence than before.

In Idaho as in most other federal districts, fraud and other white collar crimes seem to net greater time in confinement than they did in the past. For that reason the preparation of these cases requires some serious consideration of how the "loss" will be calculated for the defendant, but more importantly, consideration of how best to achieve a more complete picture of the defendant so that the sentence achieves the § 3553(a) objectives. That means that we have to look beyond the numbers on the grid and place our client in the best light possible so that the amount of the fraud is less important in the complete picture.

Federal fraud cases are a challenge.  My best advice here is to hire the very best criminal defense attorney  you can afford, and always look for actual experience in this complex area of the law.

 


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 This week I had to write that "sorry, but I cannot take your civil rights case" letter to a man who had been badly assaulted in prison.  In Idaho over the past year there have been a number of lawsuits filed by prisoners and lawyers on their behalf for damages they received when the prison failed to protect them from


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 Yesterday a friend stopped me in court. "Hey – what’s the deal with your blog?"

"What deal?" I said.

"The no entries since June deal…."

Guilty. I have been running, riding, swimming, occasionally golfing, raking pine needles and burning them in McCall, boating, recovering from a couple of trials and trying to answer life’s great questions.

Why am I


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 In another one of those confusing 9th Circuit fraud decisions – the Court of Appeals has upheld the convictions and sentences of three men who summoned the likes of Charles Ponzi and swindled 1700 investors out of $40 million. In US v. Treadwell the Court upheld an instruction  that “intent to defraud is an intent to deceive or cheat,” and


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 A few years ago I caught a radio interview of a Canadian hockey coach who had been fired, but not told so by his team before it was reported in the press. When questioned about his situation the coach (in his best Canadian accent) reflected, "I’d like to have ‘beeen’ notified!"

This phrase has become a family expression in our


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 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


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