Matt Kaiser

Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. He can be reached at mattkaiser@thekaiserlawfirm.

Posts by Matt Kaiser

Good bye, sweet Generalist. We hardly knew ye.

I’m a white-collar criminal defense lawyer. I love it. There are times when I think that I’ve won the work lottery. Yet, in this column, I’m going to complain about it.

Normally, I think that being a white-collar defense lawyer means that I represent folks who are under investigation by the Department of Justice, a law enforcement agency that would refer a case to the Department of Justice, or a regulator like the SEC, CFTC, or Office of Inspector General (in some situations — OIG’s both handle debarment and developing a case for DOJ).

But sometimes I’ll do other kinds of work too. Recently, I’ve represented clients in civil litigation. I’ve represented clients in arbitrations. And I’ve negotiated resolutions of disputes where litigation is looming but not yet happening. I’ve gotten really good results for clients in these kinds of cases (and, like any lawyer, I’ve had some cases break bad too). I like to think that if a case comes in that presents a relatively sophisticated litigation problem that doesn’t require a specialist (think of an ERISA case) I would consider doing it. And there are other lawyers in my firm who, to be sure, do primarily civil work.

But, despite that, I identify myself as a white-collar defense lawyer.

Sometimes, even though a potential client is exactly the kind of person I want to represent, presenting myself or being known as a white-collar defense lawyer is a problem.

When is that?

double red triangle arrows Continue reading “The Downside To A Professional Identity; Or The Demise Of The Litigation Generalist”

In the past few columns, I’ve talked about the reasons why white-collar trials are hard in federal court. So few of them go to trial and, of those that go to trial, so few have a win for the defense. One reason is how people accused of crimes are treated as witnesses and Rule 608(b). Another reason is that, especially in white-collar cases it seems, folks who are later accused of crimes are chatty with agents, and that seemingly never fails to break bad.

Another reason is that lots of folks cooperate with the government. When many people realize that there’s going to be someone going to prison (see, e.g., the statistics on plea rates), they reason that they’d rather someone else go to prison instead of them.

Snitches are tricky. Often you don’t know what they’ve said before to the government until late in the game. Their statements are Jencks — so a defense lawyer is supposed to get them, but often federal judges only require that they’re turned over very close to trial.

Snitches are also crafty witnesses….

double red triangle arrows Continue reading “White Collar Trials, Snitches, And Telling The Truth”

Last month, I wrote about the Department of Justice’s case against Nicholas Slatten, a Blackwater employee who was being prosecuted — along with other members of Blackwater’s Raven 23 team — for a shooting incident in Iraq.

As one FBI Agent is reported to have described it, the shooting was “[t]he My Lai massacre of Iraq.”

That’s a really good sound bite. Nice work FBI!

DOJ brought charges based on the shooting against Slatten, which were dismissed by the court because, basically, DOJ failed to notice that the statute of limitations was running against Slatten after a dismissal of his case.

As the New York Times recently described it,

the government suffered another self-inflicted setback in April when a federal appeals court ruled that the prosecution had missed a deadline and allowed the statute of limitations to expire against a second contractor, Nicholas A. Slatten, a former Army sniper from Tennessee who investigators believe fired the first shots in Nisour Square. A judge then dismissed the case against Mr. Slatten.

(for more on this, see last month’s column on the case)

And, of course, the legal fire fight continues . . .

double red triangle arrows Continue reading “A Vindictive Prosecution Motion in the Continuing Saga of Nicholas Slatten”

Last week, I wrote about why so few people go to trial, and I talked about some of the challenges of going to trial in a criminal case in federal court, particularly in a white-collar case.

This week, I’d like to talk about another challenge with going to trial — statements made to law enforcement by the person who is accused of a crime.

After Zachary Warren was indicted in connection with the Dewey implosion, there was a lot of coverage of why, exactly, a smart, educated, fancy lawyer would talk to law enforcement without a lawyer present. (See, e.g., here, and here, and here).

As these prior pieces talk about, there’s a tactical problem with talking to law enforcement in the first place — the agent may say that he or she is just giving you a chance to “tell your side of the story” or “get the truth out” but, really, that person’s interest is in getting a conviction so they get a stat. They’re trying to build a case against you and that has less to do with celebrating the importance of impartial truth seeking, and much more to do with boxing you in so that a trial would be hopeless (see this on one way to think about the agent’s priorities when they’re taking a statement).

There is, though, another problem with talking to law enforcement — one that, hopefully, DOJ is actually making better.

double red triangle arrows Continue reading “The Perils of A Criminal Trial Redux; or, DOJ Belatedly Notices It Has Recording Equipment”

Criminal defense lawyers who practice in federal court bemoan the lack of jury trials these days.

According to the administrative office of the U.S. courts, in the twelve months ended March 31, 2013, in our federal courts, 83,614 people entered a plea of guilty. Only 1,953 went to a jury trial (there were 173 bench trials too, for what it’s worth).

So, around 2 percent of the folks who are charged in federal court go to trial — the rest plead guilty.

The numbers in white-collar cases are a little better. For fraud cases there were 9,925 guilty pleas and 411 jury trials — so about 4 percent of people accused of fraud opt to see a jury. For regulatory offenses there were 1,480 pleas and 47 jury trials — about 3 percent.

There are a lot of reasons why so many people plead guilty and so few go to trial. One reason is that the acquittal rate is low — about 13 percent overall (there were 260 acquittals overall in FY 2013). For what it’s worth, while fraud acquittals were in line with that, regulatory offenses had an acquittal rate that was much higher — 20 acquittals (counting bench and jury trials) out of 55 trials. That’s about 35 percent.

Another big reason is that people accused of a crime are meaningfully prevented from testifying — and if a trial turns on what a person knew, as many white-collar cases do, their ability to put on a defense is compromised by their inability to testify. They can see a bad verdict coming….

double red triangle arrows Continue reading “Why Johnny Can’t Talk: Federal Rule of Evidence 608(b) and the Difficulty of Trial”

A famous criminal defense lawyer was asked about how to hire a lawyer for a criminal defense case. Imagine, he was asked, that a relative was charged with a serious crime in a place where he didn’t know anyone. How would he go about finding a lawyer for his friend?

The answer — hire the best lawyer in the next town over.

A good criminal defense attorney will have relationships with the local prosecutors. She’ll know the local judges. And when you hire a criminal defense attorney, you assume that one thing you’re getting is a favorable presentation to those prosecutors and judges. The trouble is, that lawyer may have more of an interest in her professional standing in the community than in your case.

If you’re really in trouble — life is on the line kind of trouble — that criminal defense lawyer’s advice was to hire someone who knows what they’re doing and is willing to ruffle feathers on your behalf. Everyone is a little beholden to their own community. Find someone from another community.

There’s a nice example of that principle in action in a complex white-collar case in the Wall Street Journal this week.

double red triangle arrows Continue reading “If You Have a FERC Problem, Maybe Don’t Hire a FERC Lawyer”

Raven 23 was a team of Blackwater employees who provided security in Iraq for U.S. government personnel. On September 16, 2007, a car bomb went off, and Raven 23 was called on to secure an evacuation of a diplomat. As a federal court described it later, “a shooting incident erupted, during which [some of the members of Raven 23] allegedly shot and killed fourteen [Iraqi civilians] and wounded twenty others.”

After September 16, the firefight moved to federal district court in the District of Columbia when the U.S. Attorneys Office for the District of Columbia brought charges against some of the members of Raven 23.

And, as legal battles go, what a firefight it is.

There’s been a Kastigar hearing, a direct appeal, a mandamus action, a judicial call for an Inspector General investigation into the State Department’s conduct in the case, a promised request for the government to pay attorneys’ fees for one of the members of Raven 23, posturing about new charges, and threats of motions for vindictive prosecution.

If you find yourself with some time, reading the papers in the case – the case number is 08-360 on D.D.C.’s docket – isn’t a bad way to spend it.

If you find yourself without that kind of time, here’s a blow by blow of some of the most interesting bits.

double red triangle arrows Continue reading “A Battle in Iraq Leads to a Battle in the Federal Courts in D.C.”

For a guy who hasn’t done much in the last few weeks but go to Vegas, Chris Christie’s past and future has gotten a lot of attention this week.

Ryan Lizza has a long piece in the New Yorker about Christie that is not terribly dissimilar in conclusion than Joe Patrice’s prior Christie observations on these pages. Lizza’s piece starts with a description of a roast of Lat’s former boss, where, among other zingers,

a New Jersey judge turned comedian, noted, “It really is an honor to be standing next to what could be the next President of the—.” He shuffled some papers on the lectern. “I’m sorry, these are the wrong notes. I’m doing a roast next week with Jeb Bush.”

Ouch.

More damning, though, and more relevant to this column, is Jeff Smith’s piece over at Politico – “Chris Christie is Toast.” (incidentally, Joy Behar makes the same bread-based observation about Christie in Lizza’s piece).

Jeff Smith is an interesting guy to write that article. The former Wunderkind of Missouri Democratic politics was brought down by a federal investigation into campaign finance problems that ultimately landed him in a federal prison.

So, why might one think that Christie is toast?

double red triangle arrows Continue reading “Chris Christie And The Toaster”

Zachary Warren

Recently, Lat suggested that it wouldn’t have been worth it for Zachary Warren to hire a lawyer early in the Dewey investigation. As Lat frames the question, “How much could a lawyer have helped?”

Now that we know a little more about the case — especially the identities of the Secret Seven — let’s think about whether Warren could have benefited from hiring counsel early. And, more generally, what benefit anyone gets who is in a white-collar investigation from hiring a lawyer early.

We know that Warren was concerned about money (as most folks are). The reasonable question is what Warren would get with the money he’d spend on a lawyer.

Of course, there are no certainties — hiring a lawyer in a white-collar case, like in most litigation matters, is a little like buying a lottery ticket. How much does your spend on counsel change the odds in your favor?

So, what are the odds that a good lawyer could have made a difference?

double red triangle arrows Continue reading “Should Zachary Warren Have Hired A Lawyer Sooner?”

Here’s a sentence from a recent Seventh Circuit opinion:

[T]his case shows every sign of being an overzealous prosecution for a technical violation of a criminal regulatory statute — the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud.

This was a sentence from the dissent.

Amazingly, though, the majority voted to reverse the conviction. Judge Sykes, who authored the dissent, would have affirmed the conviction — though, presumably, not because she thinks a Javert-like prosecution is a model that the Department of Justice ought to aspire to.

It’s an odd day when such strong language appears in an opinion that supports a court of appeals affirming a district court decision. And this case, United States v. Abair, is odd. (And thank you, Professor Volokh, for pointing the case out!)

Why is the case odd?

double red triangle arrows Continue reading “Inspector Javert Goes Smurfing In Indiana”

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