Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

As reported in this Clarion Ledger story, the Department of Justice is reportedly looking at bringing RICO charges against Dicky Scruggs related to the bribery of Judge Bobby DeLaughter in the Wilson v. Scruggs case. As previously noted here, Joey Langston has already plead guilty to offering Judge DeLaughter a bribe in the form of a United States District Court judgeship.

What is particularly interesting in the context of a federal investigation and subsequent guilty plea,  is that Scruggs’ plea offers him no protection in the ongoing investigation in the Wilson case.

Scruggs and his co-defendants, including his son, Zach, are all pending sentencing. I expect that the presentence reports for Scruggs and the others will be forthcoming any day now. That will, no doubt produce a number of filings. The docket in this case has been exceedingly silent for almost 2 months, but I expect we will shortly see a number of sentencing memoranda. I’m particularly interested to see if Zach Scruggs, for instance, will receive a downward adjustment for acceptance of responsibility given his post plea statements that he really didn’t do anything wrong.

If the government is, in fact, pursuing RICO charges against Scruggs and others, we can expect that that case will not be brought for many months.

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In an Order issued Thursday, the Third Circuit Court of Appeals has delayed the retrial of Dr. Cyril Wecht. By way of brief background, the jury in Wecht’s case (a case that I’ve previously stated needs to be canned by Main Justice) hung on all 41 counts against him.

Wecht’s counsel then filed a Motion to Dismiss based on Double Jeopardy grounds. The district court subsequently found that the attempt to delay a retrial on the basis of that claim would be frivolous and would not delay the retrial, jury selection for which was to start today. An immediate appeal followed, and the Third Circuit issued an Order putting the retrial on hold and setting a rather ambitious briefing schedule.

Raising a Double Jeopardy claim following the declaration of a hung jury is a reasonably dense legal issue, and I would be surprised if the Third Circuit can turn out its opinion within a month of the final brief, which is scheduled for May 20, 2008.

In the meantime, the trial judge has issued a deliberate and studious Order denying another motion to recuse.

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   According to the U.S. Attorney's Office for the Northern District of Georgia, 24 defendants have entered guilty pleas in the United States District Court for the Northern District of Georgia on money laundering conspiracy charges. The charges against the defendants allege that the defendants attempted to launder millions of dollars through the "black market peso exchange." The black market peso exchange is comprise of Colombian narcotics traffickers who need to convert U.S. currency earned from the drug trade into Colombian pesos, since U.S. currency is generally not accepted in Colombia.
    The defendants were apprehended through a sting operation by the U.S. Bureau of Immigration and Customs Enforcement called "Operation Rainmaker." ICE agents, posing as money launderers, made 33 pickups of drug proceeds in Atlanta, New York, Boston, Philadelphia, Miami, Puerto Rico, as well as ICE's first ever pickup in Mexico. $9,000,000 in proceeds, as well as quantities of narcotics, were seized as the result of the operation. The Atlanta defendants were arrested following two pickups by agents at a store parking lot in Gwinnett County.

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   Despite the Eleventh Circuit Court of Appeals' seeming to take district courts to task in other decisions for failure to consider factors under 18 U.S.C. § 3553(a) which tend to favor the government pursuant to Booker, Section 3553(a) mitigating factors which tend to favor the defendant apparently do not have to be considered, as shown by the Court's recent decision in United States v. Brown, No. 05-16128, 2008 WL 1869727 (11th Cir. 2008). Brown was convicted for enticing a minor in interstate commerce for the purpose of engaging in sexual activity and appealed, arguing, inter alia, that the sentencing court failed to consider the unwarranted sentencing disparities between individuals subject to the retroactive application of the Court's decision in United States v. Searcy, 418 F.3d 1193, 1198 (11th Cir.2005) and those who were not, as well as Brown's traumatic childhood and attempts to live a law abiding life. Id. at *15. The Court of Appeals held that the district court did not abuse its discretion in sentencing Brown, quoting its prior decision in United States v. Amedeo, 487 F.3d 823 (11th Cir.2007) for the proposition that a sentencing court "need not discuss each of these factors in either the sentencing hearing or in the sentencing order."

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     Bill Smith, Sheriff of Camden County, Georgia, is being investigated by a federal grand jury over his use of convict labor, as well as his use of seized drug monies and assets. Smith allegedly made Camden County inmates work on a private property on Cumberland Island which was slated to be used by the Shepherd Center, a nonprofit organization in Atlanta which treats spinal cord injuries. Smith’s son was paralyzed in 2003 in an automobile accident. The District Attorney for Camden County forwarded investigative materials in the case to the United States Attorney’s Office for the Northern District of Georgia in Atlanta. Several witnesses have been called before the grand jury this year.

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The fur continues to fly in the Wecht case in the run up to the retrial, currently scheduled for May, 27 2008. 

As I have previously stated in this blog, it is my hope that this blog will raise the standard of the criminal defense bar by posting pleadings that can be accessed and then used in one’s own practice. In that respect, the filings by Wecht’s counsel provide us with an excellent standard to emulate:

•             The defense has recently filed a Motion to Dismiss for Prosecutorial Misconduct (the brief is available here), alleging that the investigating agent and the lead AUSA have committed prosecutorial misconduct which infected the search warrant affidavit and the trial by suggesting that the movement of certain evidence occurred on one day in an effort at concealment, when, in fact, it occurred on a different day, such that no concealment could have occurred. This post trial motions practice is of an exceptionally high quality and brings to light some very disturbing allegations related to the prosecution’s handling of this troubling case.
•             The defense has Renewed its Motion for Verdict of Acquittal under Federal Rule of Criminal Procedure 29 alleging that the government failed to prove any misrepresentation or concealment. It is particularly interesting how interwoven these pleadings are because the Renewed Motion for Verdict of Acquittal ties in nicely with the prosecutorial misconduct motion and the government contention of concealment of evidence, which, is at the very least mistaken.  
•             And, finally, the defense has raised a Double Jeopardy claim related to the manner in which the mistrial was declared (this is no doubt a long shot, but generally a litigant is entitled to a direct appeal from the denial of a double jeopardy claim), and now seeks to appeal the trial judge’s denial of that motion.

Wecht is being capabably represented. These pleadings provide all of us in the defense bar with exceptional post judgment guides.

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     In its decision in Baze v. Rees, 553 U.S. ___ (2008) last month, the United States Supreme Court affirmed the judgment of the Kentucky Supreme Court that Kentucky’s lethal injection protocol, which involved the administration of four drugs: Valium, which relaxes the person; sodium thiopental, which renders the person unconscious; Pavulon, which stops the person’s breathing; and potassium chloride, which puts the person into cardiac arrest and ultimately causes his or her death, does not constitute cruel and unusual punishment. The primary opinion, authored by Chief Justice Roberts, noted that the petitioners had conceded that Kentucky’s procedure was humane if properly performed, and held that the petitioners failed to show that there was a risk that the procedure would not be properly followed—namely in the misadministration of the sodium thiopental—sufficient to present a “substantial risk of serious harm,” an “objectively intolerable risk of harm” in violation of the Eighth Amendment. The Court further rejected the petitioners’ showing of arguably safer alternatives which had not been tried or tested as a justification that Kentucky’s current method was “cruel and unusual.”

     Georgia will be the first state to execute a convict by lethal injection following Baze. William Earl Lynd was convicted of murder for shooting his girlfriend Ginger Moore in the head three times in 1988 and then burying her body near his Berrien County farm. After the shooting, Lynd fled to Ohio, where he shot another woman, Leslie Joan Sharkey, who had pulled over to help Lynd with car trouble. Sharkey gave a full account of the shooting to police before dying in a hospital three days later. Lynd then went from Ohio to Florida, where he eventually surrendered to authorities. He is scheduled to be executed tomorrow at 7 p.m. Lynd’s attorneys are making a last ditch appeal to the Georgia State Board of Pardons and Paroles to save Lynd’s life, arguing that the crime was not premeditated, since Lynd and Moore had consumed marijuana, Valium and alcohol on the day of the shooting.

     Mississippi is vying with Georgia to be the first state to execute by lethal injection following Baze, attempting to execute Earl Wesley Berry for a 1987 murder today, however the Attorney General has not received permission from the courts. There are currently 109 men and one woman on death row in Georgia, according to the Georgia Department of Corrections.

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     Despite the substantial deference granted to sentencing courts pursuant to Gall v. United States, 552 U.S. ----, 128 S.Ct. 586 (2007), the Eleventh Circuit Court of Appeals will still expect unusual sentences to be supported by good reasons in the record. Kenneth K. Livesay was the Assistant Controller and Chief Information Officer of HealthSouth Corporation, who was involved in a conspiracy to inflate HealthSouth's revenues by making false statements on HealthSouth's books and in filings with the Securities and Exchange Commission, which resulted in losses of $1.4 billion to investors after the fraud was discovered and HealthSouth's stock plummeted. Livesay pled guilty to conspiracy to commit wire and securities fraud and falsification of financial information, and the government filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1, based on Livesay's cooperation and substantial assistance.
     Livesay's recommended sentencing level was 28 and the government recommended a three level departure in its 5K1.1 motion to level 25 and a sentence of 60 months imprisonment. The sentencing court, however, apparently harbored considerably more lenient views towards Livesay, and granted the government's motion and departed downward 18 levels to a level 10, and sentenced Livesay to 60 months probation with the first six months to be served on home detention.
     The government appealed, and the Eleventh Circuit vacated and remanded for resentencing. See United States v. Livesay, 484 F.3d 1324, 1325-26 (11th Cir.2007). On resentencing, the government again filed a 5K1.1 motion, but in light of Livesay's continued substantial assistance since the first sentencing, recommended 20 months' imprisonment. The sentencing court again granted the government's motion and again imposed a sentence of 60 months probation with 6 months home detention, finding that Livesays assistance was extraordinary and warranted an extraordinary departure. The Court further stated that, even without the downward departure, it would have made the same variance under United States v. Booker, 543 U.S. 220 (2005) based upon the factors under 18 U.S.C. s 3553(a). Another appeal followed, and the United States Supremen Court eventually remanded to the Eleventh Circuit for reconsideration pursuant to Gall. See Livesay v. United States, --- U.S. ----, 128 S.Ct. 872, 872-73 (2008).
     The Eleventh Circuit noted that a “‘sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.’” United State v. Livesay, No. 06-11303, 2008 WL 1810195 (11th Cir., April 23, 2008) (quoting United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir.2007); quoting Rita v. United States, --- U.S. ---, 127 S.Ct. 2456 (2007)). held that the sentencing court committed procedural  error pursuant to Gall by considering Livesay's repudiation or withdrawal from the conspiracy in determining the extent of the departure pursuant to 5K1.1, since withdrawal is not one of the factors enumerated under 5K1.1. Id. at *9. The Court further held that the sentencing court also committed Gall procedural error by failing to adequately explain its variance from the advisory Sentencing Guidelines range in a way which would allow for meaningful appellate review, noting that the lower court had offered:

[N]o explanation or reasoning of how a sentence of 60 months’ probation (with 6 months' home detention) for an individual who pled guilty to knowingly playing an active and crucial supervisory role in a massive $1.4 billion fraud for at least five years reflected the seriousness of the offense or the nature and circumstances of the crime. The district court did not state or explain in any way why it rejected the government's argument that, notwithstanding Livesay's timely assistance, Livesay should receive “some sentence of significance” in this $1.4 billion fraud scheme because he was a “key player, a significant cog, in the operation of this fraud at HealthSouth for a number of years.”

Id. at *11.

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          Several soldiers stationed at Camp Frank D. Merrill in Dahlonega, Georgia, have been indicted in the United States District Court for the Northern District of Georgia. Sandeo Pablo Dyson, an Army Ranger, pled guilty last Thursday in the United States District Court for the Northern District of Georgia to burning down Club Onyx, an adult entertainment establishment on Cheshire Bridge Road in Atlanta. Dyson worked as director for security for Platinum 21, another adult club, which began to experience competition from Onyx for African-American clientele. Platinum 21’s management allegedly formulated a plan to burn down Onyx. He faces 5 years in prison.

            However, federal authorities’ investigation of the matter greatly expanded when Dyson told a confidential information that four other soldiers from Camp Merrill, some of whom, coincidentally, also worked security at Platinum 32, would be willing to rob a Mexican “stash house” for a cut of cocaine. This prompted an undercover Bureau of Alcohol Tobacco and Firearms agent to meet with Army Rangers Carlos Lopez, David Ray White and Randy Spivy, and Army medic Stefan Andre Champagne, and laid out a fictitious plan to hold up drug deals at a house in Atlanta and steal 25 kilograms of cocaine. The soldiers were arrested when they showed up at the house with their weapons, and face pending charges.

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