Significant cases in the Supreme Court
1. Cases as a defense lawyer.
Test v. United States, 420 U.S. 28 (1975) (A defendant has the right to discovery of information from the master and qualified jury lists in order to mount a challenge to the jury selection system that the district court utilized)
2. Cases I did while working at the Department of Justice.
Helstoski v. Meanor, 442 U.S. 500 (1979) (involving whether a defendant has a right to interlocutory appeal of the denial of his claim that the Speech or Debate Clause bars his prosecution or the introduction of evidence)
Johnson v. United States, 520 U.S. 461 (1997) (trial court's failure to instruct the jury on the element of the materiality of false statements did not constitute plain error because the defendant never challenged the materiality of her statements)
Peguero v. United States, 526 U.S. 23 (1999) (trial judge's failure to advise guilty-pleading defendant of his right to appeal did not justify vacating conviction on collateral review when the defendant knew of his right to appeal)
Schmuck v. United States, 489 U.S. 705 (1989) (mailings at issue fell within mail fraud statute, and "elements" test is proper one to use in determining whether to give a lesser included offense instruction)
United States v. Gillock, 445 U.S. 360 (1980) (no common-law evidentiary privilege prevents introduction in a federal criminal prosecution of a state legislator's legislative acts)
United States v. Helstoski, 442 U.S. 477 (1979) (the Speech or Debate Clause of the Constitution bars introduction in the prosecution of a Member of Congress of his past legislative acts)
United States v. Villamonte-Marquez, 462 U.S. 579 (1983) (Coast Guard may board a vessel, without probable cause or reasonable suspicion, on inland waters to conduct a safety and documents inspection)
United States v. Young, 470 U.S. 1 (1985) (prosecutor's rebuttal argument did not constitute plain error because it responded to arguments made by defense counsel)
Wheat v. United States, 486 U.S. 153 (1988) (a trial court has discretion to decline a defendant's pretrial waiver of his right to conflict-free counsel)
Significant cases in the courts of appeals
My four en banc cases:
Landry v. Hoepfner, 840 F.2d 1201 (5th Cir. 1988) (en banc) - whether state DUI offense was a "petty offense" for purposes of the right to jury trial under the Sixth Amendment. I presented the government's argument as amicus curiae in the case.
United States v. McGuire, 99 F.3d 671 (5th Cir. 1996) (en banc). This case involved the question whether the district court had improperly removed the element of materiality from a prosecution for filing false tax receipt forms. I managed to convince the Court that the trial judge in fact had not removed materiality from the jury's consideration, and, when the argument was over, one of the judges nearest me complimented me on my argument.
Dillon v. United States, 188 F.3d 507 (6th Cir. 1999) (en banc) (Table), 1999 WL 511697. This case involved the adequacy of the defendant's notice of appeal under Fed. R. App. P. 3(c)). It was unusual in that the government sided with the defendant, so the court had to appoint counsel to represent the judgment below. The court ultimately agreed with the position I advanced.
United States v. Herrera, 313 F.3d 882 (5th Cir. 2002) (en banc). This was a strange case in which the panel had reversed the defendant's conviction on the basis of an argument that the defendant had not made at trial or on appeal about the adequacy of an instruction. I did the rehearing en banc petition, a supplementary brief on rehearing en banc, and the en banc argument, which was notable primarily for the intense and rather nasty disagreement between the majority of the court and the primary dissenter, who wrote the panel opinion.
Other cases of interest:
United States v. Neufeld, 149 F.3d 1185 (Table), 1998 WL 320985 (6th Cir. June 4, 1998). In this prosecution for Medicaid fraud, the prosecutor introduced evidence that he had agreed to exclude prior to trial. After a mistrial was declared, the defendants unsuccessfully moved to dismiss their prosecution on double jeopardy grounds. The court of appeals held that the prosecutor had not intended to provoke a mistrial. This was a particularly hard-fought case on the briefs and at oral argument.
United States v. Schwimmer, 892 F.2d 238 (2d Cir. 1989), and 924 F.2d 443 (2d Cir. 1991). In a prosecution of a financial adviser for failing to reveal information to union employee benefit plans, the court of appeals initially remanded to determine whether the joint defense privilege, in which two defendants shared information with an accountant, had been breached. Following remand, at which the district court determined that no information that fell within the attorney-client privilege had been used in the defendant's prosecution, the court of appeals rejected his privilege claims and his argument that 18 U.S.C. 1954 (receiving illegal payments to influence the operations of employee benefit plans) did not reach his conduct. .
United States v. Scott, 270 F.3d 30 (1st Cir. 2001). This opinion deals with three separate cases against Scott, two for bank fraud (involving identity theft) and the third for filing false federal income tax returns. I argued the three cases back-to-back. I won two (one involving a novel venue issue); the third was reversed for a Speedy Trial Act violation. I wanted to confess error on that point but was overruled by superiors. No one else in my section has ever argued three cases on the same day.
United States v. Yefsky, 994 F.2d 885 (1st Cir. 1993). This was one of my many cases with a long record - in this instance more than 20,000 pages of transcript and over 1,000 exhibits from an 86-day trial concerning mail fraud and kickbacks in setting up the Boston-area police radio network. As always, I did the appeal alone, and this time I was able to get authority to confess error as to two lesser defendants. See 994 F.2d at 890. This case involved a tremendous amount of work, but in the end I was confident that justice was done.
