Author: Kate Forrest

Kate is a criminal defense lawyer with an impressive record of “not guilty” verdicts and dismissals in serious criminal cases.

What is the MDLEA and How Does It Work?

The Maritime Drug Law Enforcement Act (“MDLEA”) is a series of federal laws that allow the United States to prosecute nautical drug crimes even outside of its own territory.

First implemented in 1986 as part of the larger Anti-Drug Abuse Act, the MDLEA remains a key player in federal drug prosecutions, accounting for 296 cases in fiscal year 2021 alone. Due to the expansive jurisdiction granted by this law, the U.S. Coast Guard is able each year to seize more cocaine than all other American law enforcement agencies combined, removing over 1,100 metric tons of the drug from smugglers between 2015 and 2020.

The core provision of the MDLEA makes it illegal for a person to take any of the following actions while aboard a “covered vessel”:

  • Making or distributing drugs (or possessing them with the intent to do either)
  • Destroying anything that is subject to legal forfeiture under U.S. drug laws—including any drugs and any money received for drugs
  • Concealing (or trying to conceal) cash worth more than $100,000

The law then goes on to define a “covered vessel” as either:

  • any ship at all, so long as the person charged is either a U.S. citizen or resident alien
  • a vessel of the United States, or
  • a “vessel subject to the jurisdiction of the United States”

The third of these categories gives the MDLEA an unusually broad sweep. The law defines the term “vessel subject to the jurisdiction of the United States” to include not only ships in United States territorial waters and those that are under the jurisdiction of consenting foreign nations, but also ships that are found to be “without nationality.”

When a ship is stopped on suspicion of drug trafficking, the Coast Guard officer or other U.S. agent conduction the operation must ask whoever is in charge of the boat what its nationality is. If the nation claimed either denies or fails to confirm the claim, or if the ship’s captain does not claim any nation at all, then the vessel can be designated as “without nationality” and is subject to U.S. jurisdiction under the MDLEA.

Hundreds of foreign nationals are arrested each year under the MDLEA, many of whom are poor fishermen from Latin America. Though many such prosecutions are successful, recent developments in the law have given rise to new potential defenses to challenge these charges.

In 2020, one of the federal appellate courts found unconstitutional overreach in the MDLEA’s authorization of U.S. prosecutions for vessels stopped in the territories of consenting foreign nations. Even more promisingly, in January of this year, a different court found it unconstitutional for the law to apply to people on vessels whose claims to a nationality were neither confirmed nor denied.

For now, at least, these rulings only affect people in some areas of the country. Even in cases where they do not apply, however, making constitutional and jurisdictional challenges is an important part of mounting an effective defense. Constitutionally speaking, strong arguments can be made for:

Additionally, in every case, a diligent lawyer will need to consider and argue:

  • whether and how the captain of the vessel claim nationality for the craft and whether it flew any flags
  • the citizenship status of all occupants of the vessel
  • the registration or lack of registration of the ship with any country
  • the identified place where the vessel was stopped and the legal claims any country has on those waters

If you or someone you know is facing charges under the MDLEA, you need an experienced federal criminal defense attorney to scrutinize the circumstances of the case and determine how best to fight it. For more information and to find out how our firm can help, contact us today.

pretrial diversion

How to Apply for the New Pretrial Diversion Program in Federal Court

Accountability courts and pretrial diversion allow some people that have been charged with a federal criminal avoid prison and a criminal record. Federal district courts across the country are now experimenting with these projects, including the Northern District of Georgia in Atlanta.

On April 11, the federal court in Atlanta announced the formation of a new pretrial diversion court, the Accountability, Treatment, and Leadership Court (ATL Court), which will provide rehabilitation opportunities to certain criminal defendants while also allowing them to avoid serving prison time. As a joint creation of the District Court, the U.S. Probation Office, the U.S. Attorney’s Office, and the Federal Defender Program, the court will be run by a body of representatives from each of these agencies known as the ATL Court Team.

Participants in the ATL Court will plead guilty with a binding plea agreement under Rule 11(c)(1)(C) and enter into a 12–24-month period of intensive supervision wherein they must participate in individualized treatment and education programs. Upon successful completion of all their requirements, participants will receive whichever benefit they were promised in their initial plea agreement: either a sentence on their original charge without prison time, a reduction of their charge to a misdemeanor (also without prison time), or a complete dismissal of their case.

Not everyone will be eligible for the program. Since it is a new program, only people who were formally charged in 2022 or later can apply. While there are no other positive requirements a defendant must meet to enter it, all participants must be unanimously approved by the entire ATL Court Team.  Additionally, certain things have been identified by the court as factors that will cause a person to be presumed ineligible, though exceptions can be made.

In particular, the program will exclude most people with the following charges:

  • any offense that involves using or threatening violence or directing someone else to use or threaten violence
  • possession of a firearm during an offense
  • possession or receipt of a firearm by a prohibited person
  • any terrorism offense
  • any human trafficking offense
  • any child exploitation offense, including possession or distribution of child pornography
  • any other sexual offense serious enough to be classified as “Tier II” or “Tier III” under 34 U.S.C. §§ 20911(3) and (4)

Additional factors that may keep someone from being accepted to the program:

  • significant involvement with large-scale fraud or drug distribution schemes
  • prior convictions for Tier II or III sexual offenses
  • prior deportation and removal by immigration authorities
  • a criminal history or offense that would disqualify the defendant from receiving the benefit of the “Safety Valve” under 18 U.S.C. § 3553(f)

The ATL Court is a pilot initiative in the Northern District, and so for its first two years it will only be available in the Atlanta. Several other jurisdictions operate diversion courts with various requirement, however, including:

The U.S. Attorney’s Office also operates a Pretrial Diversion Program entirely within its own discretion that is available in any district.

All federal diversion programs accept only a limited number of criminal defendants to participate. In the case of the ATL Court, a request to apply must be granted by the court team before a full application can even be submitted. If you or someone you love is interested in entering a federal diversion court, an experienced criminal defense attorney can help you collect the needed documentation and present your application in the best possible light.

Our team can help you to prove that you are eligible under the court’s requirements—or to argue for an exception if you are not. For your application, we will compile a package of information about your circumstances, health history, character, and other needed details and then advocate for you to the court. Finally, if you are accepted, we will work to negotiate fair terms for your plea agreement and help you navigate its requirements while you remain in the program.

Our firm has decades of experience helping people successfully resolve and sometimes avoid federal charges. We have represented clients in federal courts in Atlanta, Virginia, Washington DC, and across the country. To find out more about how our firm can help with your specific case, contact us today.

protest lawsuit

Can Someone Hit By the Police During a Protest Sue the Government?

Yes. If a person is assaulted by law enforcement during a lawful protest, they can not only file a section 1983 lawsuit against the individual officers, but they may also be able to bring a suit against the local government running the police force.

Injuries inflicted by the police are sadly not uncommon during group demonstrations, and they were especially frequent during the nationwide protests that occurred following the murder of George Floyd in the summer of 2020. As a result of this, lawsuits have been filed against the governments in multiple cities, several of which have already led to multi-million-dollar payouts for the victims.

In March of this year, a jury ordered the city of Denver, Colorado to pay $14 million to a group of protestors who were pepper-sprayed and shot at with rubber bullets and lead. Earlier that same month, the city of Austin, Texas reached a fourth settlement agreement in a series of cases brought by protesters who were injured by bean-bag rounds, bringing the city’s total payout so far to $13 million. At the end of last year, Columbus, Ohio settled several cases for $5.75 million. In Minneapolis, Minnesota, the city settled for $2.4 million with a man who lost an eye to a police projectile during the demonstrations. The city of Santa Rosa, California paid $2.3 million for three such lawsuits during 2021.

Similar cases are still pending in cities across the country, and many more could yet be filed. The New York Times identified 100 cities where tear gas was deployed against protesters during the summer of 2020, and the use of potentially devastating rubber bullets and beanbag rounds was also widespread.

The different ways to file a lawsuit against the government

In general, state governments cannot be sued without their own permission because they have sovereign immunity under the Eleventh Amendment. That federal protection does not extend to county and city governments, but many of the states have their own laws that grant their localities some degree of immunity in their state courts. Since most lawsuits involving personal injuries cannot be filed in federal court, this often leaves people without a way to go after local governments for their recovery.

A case involving an assault by the police, especially during a protest, is different, however. An excessive use of force by law enforcement violates a person’s rights under the Fourth and Fourteenth Amendments to be free from unreasonable seizures. When such force is used during a social or political demonstration it can also violate the First Amendment by preventing or chilling free speech and assembly. Since federal constitutional rights have been violated, these cases can therefore be filed in federal courts, where cities and counties have no immunity.

A skilled attorney is needed to draft a federal complaint that clearly and comprehensively lays out the case to the court. In addition to being the first step in preparing the case for a trial, a good complaint also lays the foundation for successful settlement negotiations with the local government. Media releases and effective comparisons to other cases that, like the one in Denver above, ended in major judgments to the victims are also important negotiating tools.

How we can help

Our team of constitutional lawyers have the knowledge and experience needed to work towards the best outcome at every stage of these cases. We have successfully represented victims of police misconduct in federal civil rights cases in the past, and we understand the complicated procedural rules involved in this type of litigation.

For more information about how our firm can help you or someone you know get compensation for a protest injury, contact us today.

DOJ-Antitrust-Bid-Rigging

Criminal Antitrust Prosecutions Expected in Bid Rigging Cases

If passed, the Infrastructure Investment and Jobs Act (IIJA) will create enormous profit opportunities for government contractors. With this increased opportunity, however, comes an increased chance for companies to run afoul of antitrust regulations.

The IIJA is a bipartisan piece of legislation that would invest $550 billion into the improvement and expansion of bridges, rail systems, mass transportation, broadband access, and electric vehicle infrastructure while also creating 2 million jobs each year over a decade. Such projects will necessarily open up massive contracts for construction, planning, engineering, and more.

Contracts like these, however, will be carefully watched for anti-competitive conduct by the U.S. Department of Justice’s new Procurement Collusion Strike Force (PCSF). Based on the recent history of enforcement actions by the PCSF and other parts of the DOJ’s Antitrust Division, former industry insiders suggest there are four key areas where the risk of prosecution for government contractors is the highest:

1.    Joint Bidding

Companies that engage in joint bids with potential competitors face more scrutiny than those who bid alone. Collaboration between companies is perfectly legal, and joint bids are as well—but only when they are necessary to achieve the otherwise legitimate and pro-competitive aims of a collaboration. When they are not necessary, joint bids may be found to exist solely to limit competition, as in U.S. v. Gaines, and result in criminal penalties.

2.    Dual Distribution

Companies that bid on contracts in direct competition with their dealers or distributors are also in danger of facing criminal sanctions. If a bid is determined to be designed to assist a partner’s bid rather than to itself win the contract, then, like the North Carolina engineering firm, Contech Engineered Solutions, a company can find itself pleading guilty to bid-rigging.

3.    Legal Certifications

Many government contracts require that bidding companies certify their eligibility in various ways. When these certifications are inaccurate or falsified, then prosecutions for fraud can ensue. An example of this came earlier this year, when the former owner of a series of construction companies was indicted for falsely certifying in a bid that his business was owned and controlled by a service-disable veteran.

4.    Hiring and Compensation

Trade restraints in the labor market can also lead to criminal antitrust charges, as all companies are considered competitors in the employment marketplace. Limiting competition through wage-fixing or no-poach agreements is thus still chargeable as market collusion.

These are just some of the ways a company can find itself facing criminal charges for placing a bid on a government contract. If you or someone you know is under investigation for antitrust violations, contact our team of experienced federal attorneys to find out more.

search-unconstitutional

Google Search Algorithm Finding Child Pornography Challenged as Unconstitutional

On September 21, the U.S. Court of Appeals for the Ninth Circuit ruled that a warrantless search of email attachments that have been flagged by an automated system as child pornography violates the Fourth Amendment. In doing so, the court overturned the conviction of Luke Noel Wilson, finding that the evidence from his attachments should not have been admitted at his trial.

The Fourth Amendment to the U.S. Constitution gives people the right to be free from unreasonable searches by the Government, and the so-called exclusionary rule devised by the Supreme Court in Mapp v. Ohio prohibits the Government from using evidence it obtained in violation of that right in a criminal trial against the person who it wronged.  As a general rule, any search that is conducted without a warrant is per se “unreasonable” by constitutional standards, and any evidence collected from such a search is therefore inadmissible—but there are several exceptions.

One of these is the private search exception. Fully articulated by the Supreme Court in United States v. Jacobsen, this doctrine allows the Government to use the fruits of a warrantless search so long as that search was performed by a private party rather than by an agent of the Government. This exception extends even into cases where, in order to obtain the evidence, the Government itself has to repeat the search already performed by the private party. This is only true, however, if the Government search does not exceed the scope of the private one.

In Wilson’s case, a computer algorithm devised by Google reviewed his email attachments and judged them to be apparent child pornography. The files were then forwarded to law enforcement, who opened and viewed them. The court found that this Government viewing of the images was a new search that exceeded the scope of the private one, since no actual person at Google had previously viewed them.

In making this ruling, the Ninth Circuit departed from the approach taken by the Fifth and Sixth Circuits on the same issue. Those courts found that similar Government searches did not exceed the scope of the private search because Google’s algorithm was sufficiently reliable and because the files were opened merely to confirm the suspicion that they were flagged because they contained child pornography. Since this difference of opinion splits the federal Circuits, it is possible that the Supreme Court of the United States may soon decide to review this or a similar case to resolve the question of which approach is a more correct interpretation of the case law and the Constitution.

If you or someone you know is facing a case involving an electronic search, you need a seasoned federal attorney to help you challenge it. Our lawyers work tirelessly to fight such questionable Government tactics, and as a result, our firm has a long track record of successes in federal cases. For more information about how we can help in your case, contact us today.

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