Gillen Withers & Lake LLC has launched a new website at http://twitherslaw.com/. The site lists many of the notable successes which the firm has had in its history. We would like to thank our readers and encourage them to take a look at the new site.
As reported by the Macon Telegraph, on Friday the Georgia Court of Appeals reversed a ruling of the Superior Court of Bibb County, Georgia, dismissing Racketeer Influenced and Corrupt Organization (RICO) charges against Jimmy Collins, the former pastor of God's Worship Center (GWC), near Macon, Georgia, and Steven Pittman, a former employee of BB&T Bank. Collins and Pittman were alleged to have fraudulently induced church members into taking out more than $600,000 worth of loans.
Superior Court Judge S. Phillip Brown had dismissed the indictment against Collins and Pittman last July, finding that the State's indictment was not specific enough in alleging the RICO violations. However, the Court of Appeals held that the indictment contained sufficient detail, including a list of specific loan transactions.
Collins and Pittman are alleged to have used Pittman's position as a bank officer to obtain loans and lines of credit for approximately 10 members of Collins' church between 2002 and 2008. Collins allegedly requested that the church members "assist" the church by taking out personal loans, allegedly telling them that they would have no personal risk because the church would be responsible for repaying the loans. Collins is alleged to have targeted church members lacking in "sophistication," allegedly telling them that it was their "Christian duty." Collins and Pittman also allegedly forged documents, provided false financial information regarding the members and falsely represented the intended use of the loan funds. One couple incurred more than $350,000 worth of debt, and claimed that Collins and Pittman executed at least two loans without their knowledge.
Church members filed five civil suits against Collins, Pittman and BB&T. BB&T reached a confidential settlement with the plaintiffs and the claims against it were dismissed.
The power bills at the FBI will likely rise in the future. That's because the Bureau, as it has announced, has found a use for its many computers while its employees are out of the office. Scientists at the FBI's Operational Technology Division (OTD) have launched a new program, the Grid Computing initiative, conceived in 2004, which uses all Bureau computers which are "resting" to run calculations for criminal and terrorism investigations. Idle computers which are not being used are left on to run mathematical calculations while employees are out of the office or on vacation. The program utilizes the FBI's internal network, allowing it to harness the power of thousands of computers and processors at FBI Headquarters and field offices around the country to run calculations for a central server.
The technology, called grid computing, has been used by corporations and universities for years. Grid computing provides an alternative to large supercomputers. The system can solve problems which it would otherwise take years or decades to work through. The University of California at Berkeley used 5 million computers belonging to members of the public in 1999 to run a program to find extrterrestrial life. The computers which run the calculations for the FBI are classified as secret. The Bureau states that it has had several breaks in cases since launching the initiative.
The Fulton County Daily Report's "The Snark" has illustrated, in a tounge-in-cheek manner, what has indisputably been the biggest change in the practice of law--including criminal law--over the decade just passed--technology. We have noted on this blog before that the technology boom of the last ten and more years has also presented inventive new avenues for crime and has created unusual challenges to the impartiality and sanctity of jury trials.
To be sure, e-mail had become widespread in the legal community by the late 1990s. However, as the comment notes, during the 2000s attorneys truly came into the full realization of the potential for e-mail as a more reliable and permanent way to document interactions between parties. The other edge of the sword is, of course, e-mail's evidentiary potential which can come back to haunt clients in various unpleasant ways. Few indeed are the defense attorneys who have not had at least one case where a client's computer was seized and imaged by the government, only to have e-mails alleged to be incriminating returned as highlights in government reciprocal discovery. While the positive side of e-mail is that it has made communication easy and easily preserved, the negative side of e-mail is... that it has made communication easy and easily preserved. E-mail is forever, and savvy 21st century lawyers would do well to counsel clients to be mindful not only of what they say, but of what they type and (increasingly in the decade ahead) of what they "text."
The comment also notes the changes in practice wrought by two other trends which began in the 90s: the continued spread of computer-assisted legal research and the growth of electronic filing. The need to page through compendious reporter volumes and indexes, or to spend hours at the local law library, has become an increasing rarity. Likewise, attorneys are increasingly relieved of the pressure to race to the courthouse before the clerk's office closes in order to file with the adoption of electronic case filing by more and more courts. The Blog notes that Case Management/Electronic Case Filing "CM/ECF," "PACER", a veritable blessing to both Federal courts and attorneys practicing in them, was first implemented by the Northern District of Ohio in 1996, and today is used by all Federal courts, a development which has heroically saved numerous acres of trees, millions in postage and reliance on the vagaries of the mails for reciept of notice of filings.
We close, fittingly, with a reminder of the challenges that the growth of technology will continue to pose for law and criminal enforcement. Ashby Jones at the Wall Street Journal Law Blog reports that the Los Angeles firm of Gibson Hoffman & Pancione has alleged that a cyber-attack originating in the People's Republic of China. The firm has alleged that its software code has been stolen by malicious e-mails which appeared to be sent by other members of the firm, and which contained a "Trojan" code enabling the takeover of the firm's computers. The firm coincidentally represents the California-based company CYBERsitter in a $2.2 billion lawsuit against China, alleging that filtering programs used by China contain over 3,000 lines of code illegally taken from content filtering software produced by CYBERsitter. The FBI is investigating the attack.
As the final hours of 2009 were running out on New Years' Eve, U.S. Supreme Court Chief Justice John Roberts issued the Chief Justice's Year-End Report on the Federal Judiciary, available here, a tradition begun by Chief Justice Warren Burger in 1970 to address the most critical needs of the federal judiciary. The Chief Justice has used the Year-End Report in the past to call for salary increases for federal judges. However, this year, the Report merely states that the federal courts are operating soundly, citing the hardships experienced by the nation in 2009.
The Appendix to the Report surveys the workload of the federal courts in 2009. It notes that the total number of cases filed in the Supreme Court decreased by about 6.1% from 2007 to 2008, however the Court hear more cases argued and issued more signed opinions in 2008 than 2007. Filings in the Federal Circuit Courts of Appeals also declined 6% to 57,740, mostly due to a drop in appeals from the Board of Immigration Appeals.
The Year-End Report notes, however, that criminal case filings in federal district courts rose 8% to 76,655, and the number of defendants climbed 6% to 97,982, surpassing the previous record for the number of defendants, 92,714, set in 2003, and reached its highest level since 1932. Filings relating to immigration, fraud, marijuana trafficking, and sex offenses increased. The number of mmigration cases and defendants reached record levels, as a result of illegal re-entries and visa or entry permit fraud. Most of the increase was in five federal districts near the southwestern border. The Report also observes that, as of September 30, 2009, the number of persons under post-conviction supervision was 124,183, an increase of 3% from the previous year. Supervised release cases and pretrial services cases also rose by several percent.
Senior U.S. District Court Judge Anthony A. Alaimo of Brunswick died yesterday morning at the age of 89 years. Judge Alaimo was a force of a person and Judge. If we all strive to lead as full a life as Judge Alaimo our nation will be blessed and our world a better place.
A member of “the Greatest Generation,” Judge Alaimo was born in Sicily and his family moved to New York when he was an infant. Judge Alaimo attended Northern Ohio University and then enlisted in the Army Air Corp. His B26 was shot down over the North Sea and he was captured by the Germans having sustained a fractured right collar bone, a broken nose and head lacerations. Over 60 years after his captivity, Judge Alaimo could still recount in exquisite detail the horror of that loss of liberty.
After the War, Judge Alaimo attended Emory University Law School graduating in 1948. Judge Alaimo then practiced for several years with famed lawyer Rueben Garland in Atlanta before moving to Brunswick in 1957 where he continued to practice until 1971. Judge Alaimo was appointed to the federal bench by President Nixon in 1971 when the political South was dominated by Democrats.
Judge Alaimo quickly distinguished himself as jurist, serving as Chief Judge for the Southern District of Georgia from 1976 until 1990. He personally presided over the dismantling of the constitutionally deprived conditions at the infamous Georgia State Prison in Reidsville. Judge Alaimo was one of 2 federal judges to file a judicial complaint against then federal Judge Alcee Hastings following his acquittal on corruption charges.
Judge Alaimo frequently traveled outside of his home district, clearing clogged dockets in other jurisdictions through the force of his personality and work ethic. Judge Alaimo was appointed by the Eleventh Circuit to preside over the first trial of Walter Leroy Moody’s (who was later convicted of killing Judge Vance of the Eleventh Circuit) on obstruction charges. Judge Alaimo was shortly thereafter tapped to preside over the Atlanta airport corruption trial in 1993. Judge Alaimo remained active as a judge until just recently having presided earlier the Fall over the largest verdict in the history of the Southern District of Georgia.
I frequently appeared before Judge Alaimo. He was fair, but tough to parties on both sides of the bar and brooked no foolishness. He was a dynamic speaker. I once heard Judge Tjoflat of the Eleventh Circuit describe Judge Alaimo’s personality as a vortex of activity. Judge Alaimo was extremely well read and eloquent.
Just over a year ago the Georgia Trial Lawyers established an award in Judge Alaimo’s name. In an elegaic eight minute speech, Judge Alaimo invoked the words of poet John Donne, writers Solzhenitsyn, Proust and Honegger’s “King David” in describing his life. Judge Alaimo capturing that inexplicable touch of infinity told of how Honegger portrays King David at the end of his life overlooking Jerusalem and the coronation of his son, Solomon, and Judge Alaimo said, “as he contemplates the wonders of the universe and reminisces over his life, he looks to the heavens and cries out to Jehovah, ‘Oh, what a beautiful life this has been. Bless you for having given it to me.’ And, I join in that cry. God bless you.”
A life wonderfully lived.God bless.
Leading the Georgia news today is the nomination of Assistant United States Attorney Sally Quillian Yates by President Barack Obama to be the United States Attorney for the Northern District of Georgia. The President announced Mrs. Yates' nomination in a Christmas Eve press release.
Mrs. Yates has served as the interim head of the U.S. Attorney's Office for the Northern District of Georgia since August, when the former U.S. Attorney, David E. Nahmias, stepped down to become Chief Justice of the Georgia Supreme Court. She has had a distinguished career as a federal prosecutor since joining the U.S. Attorney's Office in 1989. Mrs. Yates became the Chief of the U.S. Attorney's Office's fraud and public corruption unit in 1994, and became a top aide to the U.S. Attorney in 2002. Prior to joining the U.S. Attorney's Office, Mrs. Yates, a double graduate of the University of Georgia, was in private practice with King & Spalding. Notably, Mrs. Yates successfully prosecuted former Atlanta Mayor Bill Campbell and former Georgia State Schools Superintendant Linda Schrenko for corruption, and was an integral part of the investigation into the 1996 Olympic Park bombing in Atlanta. Mrs. Yates is married to J. Comer Yates, an attorney and Executive Director for the Atlanta Speech School, which has served children with speech, hearing, language or learning disabilities since 1938.
Mrs. Yates' nomination has been widely praised, including by the criminal defense bar. The nomination must be approved by the United States Senate. If confirmed, Mrs. Yates will be the first female U.S. Attorney for the Northern District of Georgia. Georgia was one of the 13 original federal districts created by the Judiciary Act of 1789, and was subdivided into the Northern and Southern Districts in 1848, and further subdivided again to include the Middle District in 1926. The Act provided that "there shall be appointed in each district a meet person learned in the law to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the supreme court in the district in which that court shall be holden." Judiciary Act of 1789, Sec. 35. There are currently 93 U.S. Attorneys in a corresponding number of districts across the nation. The Federal Criminal Defense Blog congratulates Mrs. Yates on her nomination and expected confirmation.
The Telegraph in the U.K. reports that a select group of prisoners from France will be participating in their own version of the Tour de France. Starting this Thursday, June 4 almost 200 prisoners from France will participate in the first version of the prisoner’s Tour de France, which will take them 1,400 miles around the country. The prisoners will be accompanied by 124 guards and prison sports instructors and will stop in 17 towns, each of which has a prison, although the cyclists will be staying in hotels.
One of the participants, Daniel, no last name given, said prophetically, “It’s kind of an escape for us.” No word from Professor Berman over at the Sentencing Law and Policy blog yet on whether this idea will be floated to the Sentencing Commission.
Professor Ellen S. Podgor of Stetson University College of Law made an excellent post yesterday on the White Collar Crime Prof Blog surveying Second Circuit Court of Appeals Judge and Supreme Court nominee Sonia Sotomayor's white collar criminal opinions. Professor Podgor perused some 100 cases involving Judge Sotomayor and the term "fraud." She came to the conclusion that, at least as far as the sphere of criminal law goes, Judge Sotomayor is hardly a "liberal" or "activist" judge, siding with the government the vast majority of the time. Professor Podgor notes that in cases where Judge Sotomayor has shown favor towards the defense, it has been because of obvious errors.
As everyone now knows President Obama has chosen Second Circuit Judge Sonia Sotomayor as his Supreme Court nominee. If confirmed Judge Sotomayor will be the third woman and first Hispanic on the Supreme Court. Her parents came to New York from Puerto Rico during World War II. The New York Times has an excellent personal history of Judge Sotomayor here, detailing her rise from the housing projects of the East Bronx and overcoming childhood diabetes and the loss of her father to graduate at the top of her class from Princeton as a history major, then from Yale Law where she was on Law Review. Interestingly, Judge Sotomayor will be one of the few Supreme Court Justices that, if confirmed, has actually been a trial lawyer. She was a prosecutor in the Manhattan District Attorney’s Office prior to joining a boutique commercial law firm in Manhattan. In 1991 the first President Bush nominated her for a federal district judgeship in the Southern District of New York. President Clinton nominated her for the Second Circuit in 1997.
Tom Goldstein at Scotusblog has an excellent analysis of Justice Sotomayor’s scholarship and fantastical personal tale here, where he writes that, “The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.”
In a fairly brief analysis of her work on the Second Circuit, the New York Times reports here that her writings on the Second Circuit “reveal no larger vision, seldom appeal to history and consistently avoid quotable language.”
Goldstein reports that the Senate Judiciary Committee will likely hold hearings the third week of July with a floor vote before Congress prior to the Summer recess in August.
I take the opportunity on this solemn day, Memorial Day, to honor those who have fallen in the service of our Country. I for one, am thankful for the sacrifices made daily by the men and women of our Armed Services who have accepted a life of service to our Nation and who have accepted that service, which may call upon them to step into harms way, so that we can live our lives in peace. It proper on this day to honor those who have given the ultimate sacrifice.
In our daily lives we rarely experience the pain and sacrifice of the families who have lost loved ones in the Service. The distance of that sacrifice was made more acute because of some of the policies of the prior administration, which hid that sacrifice, rather than honor it.
Pericles wrote over two thousand years ago about the war dead that, “Not only are they commemorated by columns and inscriptions, but there dwells also an unwritten memorial of them, graven not on stone, but in the hearts of men.” Let us dedicate our hearts to the sacrifices made.
I had the privilege of attending our daughter’s graduation Friday from the United States Naval Academy. It was President John F. Kennedy who stated just a few month prior to his untimely death, “any man who may be asked in this century what he did to make his life worthwhile, I think can respond with a good deal of pride and satisfaction: ‘I served in the United States Navy.’”
It was a joyous occasion, but there were somber reminders of the sacrifice of those who have gone before. Last week, just as I began my trip to Annapolis, I received an email regarding the sacrifice made by USMC First Lieutenant Travis Manion, a 2004 graduate of the Naval Academy. First Lieutenant Manion was killed in his second tour of duty in Iraq and was awarded the Bronze Star and posthumously awarded the Silver Star. The complete text of both commendations can be seen here.
On this solemn day, let us long remember the sacrifices of those who have fought and fallen to preserve our liberty.
I haven’t really weighed in on the issue of whether an independent investigation (the law providing for the appointment of an independent counsel passed by the wayside several years ago) should be initiated for the purpose of determining whether the attorneys (and others) in the DOJ Office of Legal Counsel who drafted the torture memos should be prosecuted. There have been several thoughtful pieces on this issue this week, including over at the Letter of Apology blog, which effectively cabins the issues and makes a powerful argument regarding the need for a fair view of the facts regarding whether laws were broken in the penning of the memos authorizing torture.
As Professor Podgor correctly points out, the current case against Ben Kuehne in the Southern District of Florida is premised on his giving of legal advice regarding the propriety of Roy Black’s receipt of attorneys fees in a rather large drug cartel case. So, do folks get prosecuted for giving legal advice - absolutely. Just two weeks ago, Helio Castroneves’ lawyer was found not guilty in a trial in Miami.
However, here, President Obama can make a decision that he thinks is best for the country - and that is to move forward. As much as I truly despise our former Vice President and as much as I think Judge Bybee isn’t fit to be a judge anywhere in this nation - prosecuting these folks would be a step backward. After all, Speaker Pelosi was, the Washington Post reports, informed of the “enhanced interrogation techniques” being used. Now she says that she thought waterboarding was just being considered, not "used." Pitiful really.
We as a nation do not need sunshine patriots. We need good folks willing to stand for what is right, even when it is not popular to do so, or even when there is a political risk to do so. Everyone can swim downstream. I think the President's decision here is the right one, and the more difficult one to make.
Along with the White House, the Department of Justice also issued a Progress Report 100 days into the new administration. The stated goals of the Progress Report are:
(1) protecting our national security vigilantly and consistently with the rule of law;
(2) reinvigorating the Department’s traditional missions, such as fighting crime, safeguarding the civil rights of all Americans, preserving our environment, protecting our public institutions from corruption, and ensuring fairness in the marketplace; and
(3) recommitting the Department to its vital traditions of independence, non-partisanship, transparency, and fealty to the law.
The Report lists new DOJ initiatives including closing the Guantanamo Bay Detention Facility, combatting Mexican drug cartels, investigating and prosecuting financial crimes and mortgage fraud, issuing new Freedom of Information Act guidelines for greater transparency, and $4 billion in funds to state, local and tribal law enforcement authorities under the American Recovery and Reinvestment Act of 2009 to combat violence against women and child pornography.
The Report mentions that Attorney General Eric Holder has established the Guantanamo Detainee Review Task Force to make recommendations regarding detainees still interned at the Guantanamo faciltiy. Also established is the Detention Policy Task Force, to formulate lawful options regarding the apprehension, detention, trial, transfer, release or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and an Interrogation and Transfer Policy Task Force, to ensure that means of interrogation and transfer of persons captured or apprehended in armed conflict or counterterrorism comply with legal requirements.
In regard to Mexican drug cartels, the Report states that the DEA has placed 16 new positions in the Southwest to deal with drug trafficking and violence, and is deploying four new Mobile Enforcement teams; the ATF is redeploying 100 agents in "Project Gunrunner" in criminal enforcement teams and is assigning two agents to the U.S. consultates in Juarez and Tijuana; the FBI is creating a Southwest Intelligence Group as a clearinghouse for information; and DOJ's Office of Justice Programs will be investing $30 million in stimulus funds for state and local law enforcement in high activity drug areas to combat drug trafficking.
Lastly, in regard to financial crimes and mortgage fraud, the Report states that the White House's 2010 budget provides for additional federal prosecutors, FBI agents and others to combat financial and mortgage fraud. The Report proceeds to state that the DOJ has begun to prosecute financial and mortgage fraud cases with renewed aggressiveness.
So, I’m out of the office for a few days and all hell breaks loose in the federal blogosphere. First, Justice Souter announces his retirement from the Supreme Court (don’t you wonder why many Supreme Court Justices die in office). I mean, seriously, at some point doesn’t someone reach retirement age. Seems to me a distinct lack of dignity to just hang on. I believe that Justice Leah Sears on the Georgia Supreme Court will be a serious candidate for the position.
Then, the Letter of Apology blog had an excellent piece over the weekend regarding the use of uncharged and acquitted conduct to enhance a defendant’s sentence. Interestingly, that post originated from a Washington Times article (interesting because it is the more conservative of the two D.C. newspapers) regarding Juror No. 6 from a drug trial in the district several years ago, where the trial lasted 10 months. On finding out that one of the defendants, who was largely exonerated by the jury's verdict, was going to get 16 years based on either uncharged, or acquitted conduct, the juror wrote a thoughtful letter to the sentencing court. It is worth a read.
And, finally, today, the administration announces according to the Washington Post, that it is going to crack down, not only on individual tax fraud by parking monies in secret overseas accounts, but also on the corporate parking of profits in overseas companies for the purpose of limiting tax exposure.
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