Ken’s practice focuses on federal criminal defense, appeals, and related civil matters. He also handles complex California criminal matters. Ken efficiently provides cutting edge legal analysis, top notch brief writing, and a confident and persuasive court-room presence.
Recent Experience
Ken’s recent successes include:
- After obtaining reversal of client’s sentence by the Ninth Circuit, Ken convinced the district court judge to impose a new sentence that was almost 3 years less than that same judge imposed the year before (November 2021).
- After more than a year of litigation and extensive negotiations, Ken was part of the legal team that settled a civil action by the Federal Trade Commission for a cash payment that was less than ½ of the FTC’s initial settlement demand, and a total judgment amount that was less than 20% of the FTC’s initial settlement demand (August 2021).
- Convinced district court and U.S. Attorneys Office to admit client, who was indicted on federal bank-fraud charges, into central district’s diversion program. All charges will be dismissed once client completes the program (August 2021).
- Oral argument (Dec. 8, 2020) and reversal (Jan. 21, 2021) in United States v. Gutierrez, 9th Cir. No. 19-50167.
- Part of legal team that convinced U.S. Treasury Department, Office of Foreign Assets Control (OFAC), to issue a No Action Letter to client (Oct. 2019).
- In 2019, brought a 2015 plea agreement in large drug case to fruition with nunc pro tunc withdrawal of felony guilty plea, plea to misdemeanor instead, and then dismissal of misdemeanor.
- Multiple, significant downward departures from sentencing guidelines.
Ken was a named partner at Bienert, Miller & Katzman, PLC, from 2007 through 2018. During that time, the firm was consistently recognized as a Best Law Firm by U.S. News & World Report. Ken’s successes included:
- Ken worked with teams from multiple firms to obtain written declination from SEC for his accountant-clients, after SEC’s multiyear investigation into publicly traded company.
- A suppression motion was granted and all charges were dismissed against a nationally recognized cancer surgeon. The case involved extensive discovery motions, “Franks motions,” expert testimony re computer forensics, and false statements by FBI agents. After Ken and a colleague convinced a United States District Judge to suppress key evidence, the government was forced to dismiss all charges.
- Ken led a legal team that convinced a Superior Court Judge to appoint a “Special Master” to review legal files for privileged material after they were seized by law enforcement officers executing a search warrant on a lawyer’s office.
- Ken convinced a Superior Court Judge to dismiss murder charges stemming from the death of a drug rehabilitation company’s client at a residential treatment facility. Ken and his co-counsel “hung” the jury on the remaining charge of dependent-adult abuse. The AG dismissed all charges.
- In an Anti-SLAPP case before California’s Fourth District Court of Appeal, Ken briefed, argued and obtained the affirmance of the dismissal of the civil fraud complaint and an award of attorney’s fees against the other side.
Trial-Court Work
With over 20 jury trials, many evidentiary hearings and depositions, and vast motion experience, Ken is at home in any court room. His experience includes a defense verdict in a civil Section 1983 jury trial against civil rights lawyer Steve Yagman, a stunning victory against the City of Bell Gardens in a First Amendment case (Vasquez v. City of Bell Gardens) and the defense of the first-ever federal criminal trial under the Economic Espionage Act.
Ken has convinced courts to dismiss numerous criminal cases outright, both before, during, and after trial. These include charges as serious as kidnapping and murder. In many cases where he has not been able to avoid or beat charges, Ken has been able to obtain a substantially reduced sentence, fine, or restitution.
Misdemeanors can also have serious consequences for those holding professional licenses or positions of responsibility. Ken has had such misdemeanors simply dismissed, negotiated away through a “civil compromise,” and by winning at trial.
Appellate-Court Work
Ken’s appellate work in the Ninth Circuit Court of Appeals includes over 30 oral arguments. His Ninth Circuit advocacy has led to fourteen reversals, one dismissal and three petitions for rehearing being granted. Representative cases include:
- Reversal of 189-month sentence for RICO violation. United States v. Gutierrez
- Reversal of client’s manslaughter conviction. United States v. Anderson
- Reversal of life sentence and habeas relief for client. Caliendo v. Warden
- After reversing district court twice for client serving life sentence, Ken negotiated a 12-year sentence that resulted in client’s release from prison. See United States v. Sanchez I and United States v. Sanchez II and,
- Obtained reversal of client’s lengthy sentence, United States v. Woods, and negotiated her release for “time served.”
- Pro bono relief for Sudanese asylum seeker through Ninth Circuit Court of Appeal’s Mediation Program.
Ken’s work in California’s Second and Fourth District Courts of Appeal led to the reversal of summary judgment against a sexual harassment claimant and the affirmance of a fraud victim’s Anti-SLAPP motion.
Witness Representation
Ken has years of experience representing witnesses in investigations by the U.S. Department of Justice, the California Department of Justice, the SEC, and other law enforcement and regulatory agencies. For example:
- Ken convinced prosecutors in the Central District of California to grant client-witness Use and Derivative Use Immunity (December 2021).
- Ken convinced prosecutors in the Eastern District of California to recall grand jury subpoena because of privilege issues.
- Ken recently represented a witness who was subpoenaed to testify before the SEC’s Chicago Office, which was conducting an investigatory examination. Ken then obtained “use and derivative use immunity” from the U.S. Attorney’s Office for the Southern District of New York for that same witness, so the witness could safely testify before the grand jury.
- In 2015, Ken convinced the U.S. Attorney’s Office in Raleigh, North Carolina, not to charge his client with government contract fraud, and then convinced the Department of Navy in Washington D.C. not to “debar” the client from continuing to work on government contracts.
Ken has also represented witnesses as “pool” or company counsel on matters throughout the United States, including investigations of off-label pharmaceutical promotion, pharmaceutical diversion, bank and loan fraud, health care fraud, and fraud on the government.
