White Collar Corner -December 2, 2025

The federal white collar crime lawyers at Evergreen Attorneys are committed to providing the highest level of federal criminal defense to our clients across the country. As part of our dedication to being the top white collar crime attorneys in Colorado and nationwide, we publish a (semi) regularly occurring series known as the White Collar Corner.

In this bi-weekly (monthly?) series of blog posts, the lawyers at Evergreen Attorneys will break down new developments in federal white collar crime law, BOP news, and other items of interest for federal criminal law practitioners. We may cover recent case law developments, changes in the federal prison system, or simply other substantive issues that need to make it out of the lawyer group chat and out to the general public.

If you or someone you know needs help with the federal criminal justice system, do not hesitate to contact the lawyers at Evergreen Attorneys. We can be reached at (303) 948-1489 or by email at [email protected]. Want to talk to Zachary Newland directly? Email him at [email protected] 

About Us: Federal White Collar Lawyers at Evergreen Attorneys

Indictment Dismissed for Failure to Pay Appointed Lawyer

United States v. Ortiz, No. 2:24-CR-00302-JAM, 2025 WL 3157821 (E.D. Cal. Nov. 12, 2025)

At Evergreen Attorneys, we do not regularly take court appointed work. That is because we are typically too busy with our existing caseload. However, we know that the majority of federal criminal defendants have lawyers that are appointed through either the Federal Public Defender’s Office or the Criminal Justice Act (CJA).

CJA attorneys are private lawyers who agree to represent indigent federal criminal defendants on an as-needed basis. And they do it for an incredibly reduced rate.

Some of our careful readers know that due to a lapse in funding, the federal government has not paid private lawyers who are court appointed (CJA) since June 2025 for their work. This means that lawyers in private practice have been required to keep fighting for their clients without being paid at all for almost six months. Even if your case needs a two week long RICO trial your lawyer was required to show up every single day, fight for your rights, and do their absolute best all while knowing they may not get paid for their work.

In the Ortiz case, a federal district court addressed this issue head on. Mr. Ortiz’ lawyer filed a motion to dismiss the indictment arguing that his Sixth Amendment right to counsel was being violated because there was a financial conflict of interest with the lawyer not being paid. The judge ultimately agreed. According to Judge Mendez, there was an untenable conflict between the lawyer’s professional obligations to her client and the lawyer’s own economic survival.

The judge dismissed the indictment without prejudice. Hopefully, Congress will see fit to pay CJA lawyers for the work already performed and stop treating them like a discretionary expense.

Search Warrant Based Entirely on Confidential Informant Required Closer Review

United States v. Felton, No. 23-1352, 2025 WL 3276929 (7th Cir. Nov. 25, 2025)

In the Felton case, Donald Felton went to trial after he filed a motion to suppress that was denied without a hearing. On appeal, Felton argued that the district court improperly denied his motion to suppress and in the alternative that a hearing was necessary to evaluate the credibility of the underlying information.

Pro-Tip: You cannot appeal the denial of a motion to suppress if you plead guilty. The one exception is a “conditional guilty plea” but those are rarely offered.

A confidential source was interviewed by police and candidly snitched on Felton. The source told police that Felton would be making a trip to buy drugs, the type of car he would be driving, where Felton would be going, and other corroborating details. One of the investigators also knew Felton from prior arrests and interactions. In the warrant application the cops told the judge that the informant had “provided information which has proven to be reliable on a number of occasions” and that the source “has a criminal history with a felony conviction for burglary.”

Ordinarily, this would be enough to rely on the source and get a warrant without question. However, the police left out what I will charitably call the lion’s share of information regarding the informant’s credibility:

“Critically, the affidavit did not mention that the confidential source was paid $345 for his information concerning Felton; nor did it explain that, since 2013, the source had been cooperating with law enforcement in exchange for consideration in his pending cases and those of his friends. The affidavit also did not explain that at the time of the confidential source’s interview concerning Felton, law enforcement had discovered suspected methamphetamine in the source’s residence, and that the source may have believed that he would not be charged if he continued to assist in the Felton investigation. The affidavit also omitted additional details about the source’s criminal history, including his eight arrests and four convictions for driving with a suspended license, one arrest for resisting arrest, one conviction for interfering with judicial proceedings, and one conviction for assault. The confidential source also had a pending possession of methamphetamine charge, which was not disclosed in the affidavit.”

Kind of important information to get when you are evaluating the credibility of an informant, right? He is a long-standing paid informant who thinks if he snitches on Felton he won’t be charged with his own new pending drug case?

According to the Seventh Circuit, where the affidavit hinged entirely on the testimony of the confidential source, but the affidavit did not provide the issuing judge with even a minimum of information about his lack of credibility, the court would not defer to the finding of probable cause based on those facts. Without any independent corroboration of the informant’s information there was no probable cause.

More importantly, the Seventh Circuit held that when an officer makes credibility omissions in applying for a search warrant, that alone is sufficient circumstantial evidence that the officer obtained a search warrant in “reckless disregard for the truth.” Why does this matter? Because you need to show “reckless disregard for the truth” in order to obtain a Franks hearing and potentially throw out an otherwise validly issued search warrant.

Felton’s case was sent back for more hearings in the district court.

Police and Government investigators routinely lie and intentionally omit facts to obtain judicial search warrants. It is important for federal white collar defense attorneys to carefully analyze the affidavits and the facts supporting them to bring 4th Amendment challenges whenever possible.

Sentencing Lawyer Ineffective for Failing to Obtain Military Records

Coleman v. Dotson, No. 20-7083, 2025 WL 3248192 (4th Cir. Nov. 21, 2025)

At Evergreen Attorneys, veterans hold a special place in our hearts. Especially after the Global War on Terror, many military veterans suffer from severe Post-Traumatic Stress Disorder due to the intensity of the physical and psychological toll on their bodies. This is even more true with our volunteer armed services where many service members deployed multiple times over many years.

Christopher Coleman was a decorated Sergeant in the United States Army. In our mind, he was an actual hero. Mr. Coleman pleaded guilty to multiple county of state crimes of violence that took place on one day in 2011.

However, at the time of the crimes, Sergeant Coleman was actually on leave from the military because he needed to recover from injuries sustained during his wartime deployment to Afghanistan. Among those injuries were repeated traumatic brain injuries.

For his crimes, Sergeant Coleman was sentenced to a prison term of 46 years in Virginia Prison; a sentence well above the Virginia state discretionary sentencing guideline range.

Unfortunately, at sentencing Sergeant Coleman’s court-appointed lawyer failed to present compelling mitigating evidence which included the military service, the significant combat injuries, and the PTSD. More glaringly, the prosecutor cross-examined Sergeant Coleman at sentencing and made arguments undermining the Sergeant’s testimony about the PTSD and military injuries.

According to the Fourth Circuit, Coleman’s counsel failed without justification to conduct a thorough mitigation investigation. This meant that the presumption of a sound trial strategy did not apply. Any decision not to investigate or to limit an investigation must be directly assessed for reasonableness in all circumstances under the Sixth Amendment.

In Coleman’s case, the failure to investigate did not reflect reasonable professional judgment so it amounted to deficient performance under Strickland v. Washington. In the end, the Fourth Circuit determined that there was a reasonable probability that Coleman would have received a lesser sentence but for his attorney’s errors. This meant that Coleman was able to obtain habeas relief based on his ineffective assistance of counsel.

All too often at Evergreen Attorneys, we see inexperienced state lawyers in federal court. These lawyers fail to perform even basic investigations or make rudimentary legal arguments. This can amount to ineffective assistance of counsel. IAC can be a basis to later challenge federal convictions in a 2255 motion.

Federal Bail Denial Reversed

United States v. Stimka, No. 25-4125, 2025 WL 3213557 (10th Cir. Nov. 18, 2025)

There is a tendency in federal criminal cases for the Government to seek to deny bail to federal criminal defendants. Why? Well, because when our clients are not on bail it is harder for them to defend themselves. Also, people who are already locked up are more likely to be coerced by the Government into taking a guilty plea.

Federal Bail Explainer: What do you need to show to get out on bond in federal court?

The Bail Reform Act is the federal law that governs the rules on when and how criminal defendants should be held in pre-trial custody (i.e., jail). See 18 U.S.C. Section 3142(e)(1). Under that law, a criminal defendant is entitled to be out on bail during pretrial unless a judge finds that “no condition or combination of conditions will reasonably assure the appearance of the person….and the safety of any other person in the community.” Id.

There is, however, a rebuttable presumption that 1) a defendant will flee and 2) they are a risk to the community for certain enumerated crimes including serious drug offenses and sex crimes. However, a criminal defendant is able to rebut that presumption by simply providing the court with “some evidence” that 1) his appearance could be assured and 2) he would not be a danger to the community.  United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991)

This is supposed to be an easy showing because there is still a constitutional presumption of innocence and bond being appropriate. The burden of proven the risk-of-flight and danger to the community always remains with the Government. They must show why bail is improper.

Judges Flipped the Bail Presumption

Day to day in federal court, federal prosecutors and judges assume that the rebuttable presumption is an automatic “do not pass go” card for bail in certain cases. They routinely rely simply on the type of crime charged to try and lock up U.S. citizens without bail and before any trial on the criminal allegations.

They also get confused on the law. That is what happened in Stimka. In this case, the Court improperly believed that Stimka had the burden of disproving the rebuttable presumption in order to obtain bail. But that’s not how it works.

The Government always must carry their burden of showing 1) risk of flight and 2) danger to the community to deny someone bail. The Tenth Circuit reversed the denial of bail in Stimka’s case.

Has your loved one been denied bail in federal court? Do you need to file an appeal from the denial of bail in federal court? Contact the experience federal bail lawyers at Evergreen Attorneys to discuss your options.

Federal Court Could Not Impose “No-Contact” Order for Defendant’s Children

United States v. Honors, No. 24-3118, 2025 WL 3289983 (10th Cir. Nov. 26, 2025)

Federal criminal defendants, even those convicted of very serious and very despicable sex crimes, enjoy a constitutional right of association with their spouses and children. That right to association means that a court cannot issue blanket “no contact” orders which apply to a defendant’s own children and family without a particularly high showing. See United States v. Lonjose, 663 F.3d 1292, 1303 (10th Cir. 2011)

It was improper for the Court to impose a no-contact order with the Defendant’s children. This case was also important for its discussion of a sentencing court’s limited ability to later modify a criminal sentence.

Federal Attorney-Client Privilege Waiver and Involvement of Counsel Defense

United States v. SpineFrontier, Inc., No. 25-1251, 2025 WL 3294591 (1st Cir. Nov. 26, 2025)

The CFO and CEO of SpineFrontier were charged with a federal crime under the anti-kickback statute. In general, the two SpineFrontier officers were charged with improperly paying surgeons millions of dollars in exchange for those surgeons using SpineFrontier devices and charging the federal government for those devices (think Medicare, Medicaid, etc.).

SpineFrontier engaged lawyers prior to entering into the consulting deal with surgeons. The lawyers provided opinion letters that said essentially the consulting agreements would be legal. SpineFrontier continued to engage with these attorneys throughout the consulting doctor agreement programs and even gave copies of those letters to the surgeons to induce them to join the scheme.

The officers planned to use the law firm advice to try and negate the intent element at trial. Put differently, they wanted to use the evidence of SpineFrontier’s counsel to show they did not act “willfully” and instead acted in good faith.

The district court found that the criminal defendants impliedly waived SpineFrontier’s attorney-client privilege. This meant that the Government could get copies of all communications between SpineFrontier and the law firm who gave the prior advice. SpineFrontier and the defendants resisted and filed an immediate appeal.

However, on appeal the First Circuit held that courts should be cautious about finding an implied waiver of attorney-client privilege. Courts should only find an implied waiver in limited cases and when principles of logic and fairness demand such a finding.

Even more importantly, an individual criminal defendant’s ability to waive a corporations attorney-client privilege depends of the “extent of his shared identity and interests” with the corporation. This is because you need to show that the interests of the corporation and the criminal defendant are aligned to take the drastic step of waiving the corporation’s privilege.

According to the First Circuit, not every  involvement of counsel defense necessarily works an implied waiver of attorney-client privilege. This is because an involvement of counsel defense might not disclose an otherwise privileged attorney-client communication for strategic reasons.

So where no privileged communication is disclosed, the First Circuit made clear that a waiver conclusion is difficult to justify.

Attorney-client privilege attaches to corporations as well as individuals.  Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985). As a result, in white collar criminal defense cases, federal lawyers will often need to perform a detailed analysis of what attorney-client privileges might exist, who might be able to lawfully disclose information, and what defenses might be available as a result.

Our white collar clients often need to decide if they want to rely on an advice-of-counsel defense. For good reason: many federal white collar defendants seek out legal advice in advance before taking steps into murky waters. Deciding whether or not to disclose this privileged information is a key tactical decision that requires expertise in federal criminal law.

Corporate CEOs, CFOs, and other officers are among the roster of clients we regularly represent at Evergreen Attorneys. Contact us today if you need to cover these delicate issues in a confidential setting.

Contact the Federal White Collar Crime Lawyers at Evergreen Attorneys

Federal criminal defense is a special beast. Most lawyers are not equipped or ready to help you with you federal white collar crime defense. You need a dedicated team that solely focuses on defending complex federal criminal defense cases. You need Evergreen Attorneys.

If you are in need of experienced federal criminal defense attorneys to assist you with your case, contact us today. You can call us at (303) 948-1489 or email to [email protected] or by emailing Zachary Newland directly at [email protected] today.