Don’t Play No Game That I Can’t Win (A Sort Of Memoir)


Don't Play No Game That I Can't Win (A Sort Of Memoir)

Ooo baby she walks with a thorn in her side
Them big sunglasses on her eyes
All the uptown girls say "hi, old woman"
"I can't take another day of this", she says
"All I wanted was a drink and a kiss,
But I guess I'll just have to call on my bank 'cause its Swiss."

By: THE LAST ROYALS, Crystal Vases (Single). Ooh La La Records, 2010.

Francesca was in her late 40's, smoking hot, long thick shiny dark hair, big sunglasses, designer low cut dress, and Christian Louboutin super high black patent leather pumps. She was indicted for 40 plus counts of wire fraud, access device fraud, and aggravated identity theft, all based on allegations of unauthorized use of credit cards; a.k.a. garden variety credit card fraud. In her sexy European accent, while showing just the right amount of cleavage to be convincing, she told me her story. I was hooked; I was going to save this beautiful woman from the clutches of the big bad United States Department of Justice.

I jumped right in. Truckloads of credit card receipts, calendars dating back to before civilization, client files. Francesca was a beautician, but not just any beautician. Francesca's clients were the uber rich; they were the beautiful people from the lifestyles of the rich and famous. The kind of people jurors wanted to believe; like OJ. Francesca's prices for her services and her products were such that only these kinds of people, the 1%, could afford her.

Glamorous and beguiling as she was, I soon learned her record keeping was a disaster. Scraps of paper with a name written on it with no date qualified as a "record." Her and her assistants each kept hand written calendars of appointments which were riddled with cross outs, question marks, and indecipherable notations. There were handwritten receipt books for services rendered, but the copies were never provided to the clients. There were also client sign in sheets, which more frequently than not, were unsigned. Finally, Francesca didn't always run her client's credit cards at the time of the service. Sometimes she ran the card before the client got there, sometimes days after. The biggest problem was that there was no way to consistently match up the date of a service performed, with a calendar entry, a receipt, a credit card charge, and a client sign in entry.

As I learned more about my client, I discovered that Francesca frequently performed services for no charge, or gave her clients products for free. This practice caused a blurring of the lines between a service rendered for a fee, and a service; and a product given as a gift, and a product sold. The lack of any consistent record keeping was making it more and more difficult for me to build a defense. Worse still, since the documents and records were incomplete, the only way to succeed in trial was for Francesca to testify; a thought that gave me nightmares. Charming as Francesca was, she was not skilled at oratory, or for that matter, directly answering a question. I had premonitions of slowly sliding back in my chair at counsel table while the government crossed her, and eventually I would get so small, I would just disappear.

As I learned more about the evidence, so did the government. A document was discovered during the search that appeared to depict a forged signature. As the months dragged on, and hundreds of hours had been spent reviewing materials, and preparing a massive motion to suppress, I painfully realized the case was turning into a train wreck. I had neither documents nor witnesses to lodge a successful trial. My visions of myself as Joan of Arc, saving my client from sure persecution, were rapidly fading away, but I still knew I had to save her; it was slowly dawning on me I would have to save her from herself as much as from the government.

The government wanted my client's cooperation. They suspected, (as did I), that my client could not possibly have been the mastermind to what they believed was an intricately devised scheme to pray on the rich and fabulous. My client vehemently refused. Despite our refusal to cooperate, the government offered a deal, a deal I thought wasn't too bad: "Plead to 2 counts, we'll drop the mandatory minimum counts, and maybe you can do your magic at sentencing." The "magic" he referred to happened several years ago in United States v. Whitehead [i], when in the wake of United States v. Booker [ii] and United States v. Ameline [iii], Mr. Whitehead was sentenced to probation, despite the government's frenzied and focused efforts to achieve a sentence of 41 months.

My biggest concern in the event of a train wreck was the triggering of the mandatory minimum sentences. 18 U.S.C. 1028A (Aggravated Identity Theft) [iv] provides for a two year mandatory minimum sentence to run consecutively to any other sentence imposed, and, negates the possibility of probation. Initially I couldn't fathom how unauthorized use of a credit card could be considered identity theft, but the prosecutor was kind enough to show me where the code stated it could. [v] If my client was convicted of a single count at trial of the 40 plus counts she was charged in, the whole house of cards would come down and she would be subject to potentially consecutive mandatory minimum sentences in addition to whatever other sentence was imposed based on loss numbers.

When I explained this, she cried like an Italian widow at a funeral. The situation got tense. My duty to save the client became clouded-what does "save" mean? What do words like advice and counsel mean? Where is that line between "advice and counsel" on the one hand, and "coax and convert" on the other? How does a lawyer fulfill her duty to her client when the client is naïve, proud, righteous, and impractical? How far are we, as criminal defense lawyers, expected to go to influence a client's decision?

The Preamble to the ABA Model Rules of Professional Conduct states:

As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications.

I pondered the "practical implications." If the jurors believed that Francesca had used just one of her client's credit cards just one time without authorization and found her therefore guilty of a single count of wire fraud [vi], she was looking at a mandatory minimum sentence of 2 years, which would only go up based on the loss amount. The government had named more than 17 alleged victims and had estimated the loss at $1 million. On the other hand, if I could work a deal with a loss cap but no base, and none of those beautiful people would testify, then the amount of loss at sentencing, and the sentence imposed, would become "a game" (a crude reference for color only), I could win. As luck would have it, that is precisely the opportunity that presented itself.

The ABA Model Rules of Professional Conduct, Rule 1.2 states:

In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

The comment to 1.2 states:

Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.

Certainly, the end game or "objective" for this client, as with most clients, was "no jail." My experience told me in no uncertain terms, barring something unforeseen (which of course could happen); this case was a train wreck at trial. However, with a plea at sentencing, given the actual confusion over what was an authorized credit card use and what was an unauthorized credit card use, I thought the "no jail" objective could be accomplished. Again, my client cried like an Italian widow at a funeral.

The commentary to 1.2 refers to rule 1.14 for guidance when the client suffers from "diminished capacity." Rule 1.14 provides no guidance other than this:

When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

What does "some other reason" mean? Could it be being faced with the prospect of years in a federal prison? Maintaining a "normal client-lawyer relationship" with the beautiful wailing lady who begged me not to let her go to "that place" was challenging. When a person is charged in a 40 count indictment and is threatened with the prospect of losing her freedom, how is it even remotely possible that her "capacity" to logically evaluate the situation and make a monumental life impacting decision would not be "diminished?"

The Model Rules don't account for the human factor as it relates to the attorney and the client. The criminal defense attorney just wants to save the client. The client, while riddled with terror, processes the available information based on preconceived notions. Frequently, clients have a romantic image of a jury trial, of vindication, "of truth, justice, and the American way." Combined with those images is frequently the narcissistic inability to honestly and realistically reflect on ones conduct and actions, particularly when they involve fraud, and to see those actions as other people would or might see them.

So then, what is the job of the criminal defense lawyer? How much of a prosecutor do we have to be with our clients, just how mean is mean? When we see a train wreck on the horizon, do we have a duty to say "train wreck on the horizon," or do we have a duty to say more than that? Is that particular duty to say more heightened when alternative strategies to accomplish the client's objectives exist? By our very nature, we all want to be crusaders, and we all want to win. The client that says "let's go to trial" gives us an adrenaline rush. But when that "let's go to trial" is spoken by the client in the face of a likely train wreck, what is our duty to the client? Where is the balance between crusader and conductor? Where is the line, and as lawyers, how much responsibility should we bear for another person's life?

Well, for Francesca, the "magic" happened and she never went to "that place." A "happy ending," however, I am haunted by the prospect of the "not happy ending" that could have been, and I recall my personal fear that I might lose this game and in turn Francesca would go to prison. I'm not sure I will ever put myself out there again to save someone from themselves, or maybe I will. Maybe the next train ...


[i] 532 F.3d 991 (9 th Cir. 2008)

[ii] 543 U.S. 220 (2005)

[iii] 409 F3d. 1073 (9 th Cir. 2005)

[iv] 18 U.S.C. § 1028A. Aggravated identity theft

(a) Offenses.--

(1) In general.--Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

(2) Terrorism offense.--Whoever, during and in relation to any felony violation enumerated in section 2332b(g)(5)(B), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person or a false identification document shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 5 years.

(b) Consecutive sentence.--Notwithstanding any other provision of law--

(1) a court shall not place on probation any person convicted of a violation of this section;

(2) except as provided in paragraph (4), no term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment imposed on the person under any other provision of law, including any term of imprisonment imposed for the felony during which the means of identification was transferred, possessed, or used;

(3) in determining any term of imprisonment to be imposed for the felony during which the means of identification was transferred, possessed, or used, a court shall not in any way reduce the term to be imposed for such crime so as to compensate for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section; and

(4) a term of imprisonment imposed on a person for a violation of this section may, in the discretion of the court, run concurrently, in whole or in part, only with another term of imprisonment that is imposed by the court at the same time on that person for an additional violation of this section, provided that such discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28.

(c) Definition.--For purposes of this section, the term "felony violation enumerated in subsection (c)" means any offense that is a felony violation of--

(1) section 641 (relating to theft of public money, property, or rewards [FN1]), section 656 (relating to theft, embezzlement, or misapplication by bank officer or employee), or section 664 (relating to theft from employee benefit plans);

(2) section 911 (relating to false personation of citizenship);

(3) section 922(a)(6) (relating to false statements in connection with the acquisition of a firearm);

(4) any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7);

(5) any provision contained in chapter 63 (relating to mail, bank, and wire fraud);

(6) any provision contained in chapter 69 (relating to nationality and citizenship);

(7) any provision contained in chapter 75 (relating to passports and visas);

(8) section 523 of the Gramm-Leach-Bliley Act (15 U.S.C. 6823) (relating to obtaining customer information by false pretenses);

(9) section 243 or 266 of the Immigration and Nationality Act (8 U.S.C. 1253 and 1306) (relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration card);

(10) any provision contained in chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. 1321 et seq.) (relating to various immigration offenses); or

(11) section 208, 811, 1107(b), 1128B(a), or 1632 of the Social Security Act (42 U.S.C. 408, 1011, 1307(b), 1320a-7b(a), and 1383a) (relating to false statements relating to programs under the Act).

[v] 18 U.S.C.§ 1028. Fraud and related activity in connection with identification documents, authentication features, and information

(a) Whoever, in a circumstance described in subsection (c) of this section--

(1) knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document;

(2) knowingly transfers an identification document, authentication feature, or a false identification document knowing that such document or feature was stolen or produced without lawful authority;

(3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents;

(4) knowingly possesses an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document or feature be used to defraud the United States;

(5) knowingly produces, transfers, or possesses a document-making implement or authentication feature with the intent such document-making implement or authentication feature will be used in the production of a false identification document or another document-making implement or authentication feature which will be so used;

(6) knowingly possesses an identification document or authentication feature that is or appears to be an identification document or authentication feature of the United States or a sponsoring entity of an event designated as a special event of national significance which is stolen or produced without lawful authority knowing that such document or feature was stolen or produced without such authority;

(7) knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law; or

(8) knowingly traffics in false or actual authentication features for use in false identification documents, document-making implements, or means of identification;

shall be punished as provided in subsection (b) of this section.

(b) The punishment for an offense under subsection (a) of this section is--

(1) except as provided in paragraphs (3) and (4), a fine under this title or imprisonment for not more than 15 years, or both, if the offense is--

(A) the production or transfer of an identification document, authentication feature, or false identification document that is or appears to be--

(i) an identification document or authentication feature issued by or under the authority of the United States; or

(ii) a birth certificate, or a driver's license or personal identification card;

(B) the production or transfer of more than five identification documents, authentication features, or false identification documents;

(C) an offense under paragraph (5) of such subsection; or

(D) an offense under paragraph (7) of such subsection that involves the transfer, possession, or use of 1 or more means of identification if, as a result of the offense, any individual committing the offense obtains anything of value aggregating $1,000 or more during any 1-year period;

(2) except as provided in paragraphs (3) and (4), a fine under this title or imprisonment for not more than 5 years, or both, if the offense is--

(A) any other production, transfer, or use of a means of identification, an identification document,, [FN2] authentication feature, or a false identification document; or

(B) an offense under paragraph (3) or (7) of such subsection;

(3) a fine under this title or imprisonment for not more than 20 years, or both, if the offense is committed--

(A) to facilitate a drug trafficking crime (as defined in section 929(a)(2));

(B) in connection with a crime of violence (as defined in section 924(c)(3)); or

(C) after a prior conviction under this section becomes final;

(4) a fine under this title or imprisonment for not more than 30 years, or both, if the offense is committed to facilitate an act of domestic terrorism (as defined under section 2331(5) of this title) or an act of international terrorism (as defined in section 2331(1) of this title);

(5) in the case of any offense under subsection (a), forfeiture to the United States of any personal property used or intended to be used to commit the offense; and

(6) a fine under this title or imprisonment for not more than one year, or both, in any other case.

(c) The circumstance referred to in subsection (a) of this section is that--

(1) the identification document, authentication feature, or false identification document is or appears to be issued by or under the authority of the United States or a sponsoring entity of an event designated as a special event of national significance or the document-making implement is designed or suited for making such an identification document, authentication feature, or false identification document;

(2) the offense is an offense under subsection (a) (4) of this section; or

(3) either--

(A) the production, transfer, possession, or use prohibited by this section is in or affects interstate or foreign commerce, including the transfer of a document by electronic means; or

(B) the means of identification, identification document, false identification document, or document-making implement is transported in the mail in the course of the production, transfer, possession, or use prohibited by this section.

(d) In this section and section 1028A--

(1) the term "authentication feature" means any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified;

(2) the term "document-making implement" means any implement, impression, template, computer file, computer disc, electronic device, or computer hardware or software, that is specifically configured or primarily used for making an identification document, a false identification document, or another document-making implement;

(3) the term "identification document" means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a sponsoring entity of an event designated as a special event of national significance, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals;

(4) the term "false identification document" means a document of a type intended or commonly accepted for the purposes of identification of individuals that--

(A) is not issued by or under the authority of a governmental entity or was issued under the authority of a governmental entity but was subsequently altered for purposes of deceit; and

(B) appears to be issued by or under the authority of the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international governmental or quasi-governmental organization;

(5) the term "false authentication feature" means an authentication feature that--

(A) is genuine in origin, but, without the authorization of the issuing authority, has been tampered with or altered for purposes of deceit;

(B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the issuing authority and not in connection with a lawfully made identification document, document-making implement, or means of identification to which such authentication feature is intended to be affixed or embedded by the respective issuing authority; or

(C) appears to be genuine, but is not;

(6) the term "issuing authority"--

(A) means any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features; and

(B) includes the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international government or quasi-governmental organization;

(7) the term "means of identification" means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any--

(A) name, social security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, employer or taxpayer identification number;

(B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;

(C) unique electronic identification number, address, or routing code; or

(D) telecommunication identifying information or access device (as defined in section 1029(e)); [emphasis added]

(8) the term "personal identification card" means an identification document issued by a State or local government solely for the purpose of identification;

(9) the term "produce" includes alter, authenticate, or assemble;

(10) the term "transfer" includes selecting an identification document, false identification document, or document-making implement and placing or directing the placement of such identification document, false identification document, or document-making implement on an online location where it is available to others;

(11) the term "State" includes any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any other commonwealth, possession, or territory of the United States; and

(12) the term "traffic" means--

(A) to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value; or

(B) to make or obtain control of with intent to so transport, transfer, or otherwise dispose of.

(e) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States, or any activity authorized under chapter 224 of this title.

(f) Attempt and conspiracy.--Any person who attempts or conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

(g) Forfeiture procedures.--The forfeiture of property under this section, including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the provisions of section 413 (other than subsection (d) of that section) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853).

(h) Forfeiture; disposition.--In the circumstance in which any person is convicted of a violation of subsection (a), the court shall order, in addition to the penalty prescribed, the forfeiture and destruction or other disposition of all illicit authentication features, identification documents, document-making implements, or means of identification.

(i) Rule of construction.--For purpose of subsection (a)(7), a single identification document or false identification document that contains 1 or more means of identification shall be construed to be 1 means of identification.