Four Year Blog Anniversary

Well, it says something about me that on the biggest day of celebration in our little town of Savannah, St. Patrick’s Day, I started my blogging career, March 17, 2008. Tomorrow there are reportedly going to be a million folks wandering the azalea lined streets here, but I’m headed out at zero dark thirty to do a little triathlon and will miss the festivities. My earnest hope, folks, is that in some small measure during the past 4 years we’ve been able to bring some better understanding of and improvement to your practice of law.

New Hampshire Jury Deadlocked in Case Against Woman with Alleged Involvement in Rwandan Genocide

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Beatric Munyenyezi may be found guilty on two counts of lying on applications to enter the U.S. in her trial in the U.S. District Court for the District of New Hampshire. Far, far more disturbing, Munyenyezi may also have been a ringleader in the 1994 genocide of ethnic Tutsis in Rwanda. Some allege that Munyenyezi headed a roadblock in the Rwandan town of Butare during the genocide, at which Hutu militia murdered and raped Tutsis. Munyenyezi has denied the allegations.

The jury in Munyenyezi's trial has deadlocked after three days of deliberations, according to the Boston Globe, and has asked the Judge whether a failure to reach unanimity requires them to acquit Munyenyezi. If convicted, Munyenyezi, who is now a U.S. citizen, would be stripped of her citizenship and potentially removed back to Rwanda.

Injustice in the U.S.

In a deeply troubling speech related to our criminal justice system, TED Talks has a powerful 24 minute talk from Alabama attorney, Bryan Stevenson, that reflects on our criminal justice system. He points out that,

"This country is very different than it was 40 years ago. In 1972, there were 300,000 people in jails and prisons. Today, there are 2.3 million. The United States now has the highest rate of incarceration in the world . . . The opposite of poverty is not wealth . . . in too many places, the opposite of poverty is justice."


Take time from your day today to watch.

DOJ E Discovery Guidelines

The Department of Justice has recently developed a best practices guide for the production of electronically stored information. The protocol was established by the Department of Justice in collaboration with the Office of the Federal Public Defender, the U.S. Administrative Office of the Courts and private counsel. The 21 page protocol is being disseminated to U.S. Attorneys and investigative agencies. The protocol establishes a general framework for E discovery, strategies for E discovery and an E discovery checklist. Similar to civil cases, the recommendations require counsel to meet and confer to discuss:

  1. The nature, volume and mechanics of E discovery;
  2. Formats of production of the discovery;
  3. Method of transmission of E discovery
  4. Use of a discovery coordinator in multi defendant cases; 
  5. Good faith efforts to resolve discovery disputes; and 
  6. Security of the discovery.

We should be hearing more about this from USAO offices and will keep readers up to date as issues arise. Quite frankly, seems a little surprising that this protocol is just now being published.

Government Opposes Clemens' Request for Legal Fees and Costs Relating to Mistrial

As reported in the Wall Street Journal Law Blog, the government has opposed former MLB pitcher Roger Clemens' request for reimbursement of the legal fees and costs incurred by him in the government's prosecution of Clemens for perjury, false statements and obstruction of justice. Clemens' trial in the U.S. District Court for the District of Columbia ended in a mistrial in July after  the prosecution played a video to the jury which referenced statements by fellow Yankees pitcher Andy Pettitte that Clemens allegedly admitted to using human growth hormone, evidence which the Court had ruled was excluded from trial. Clemens is currently scheduled to be retried in April 2012.

Following the mistrial, Clemens filed a Motion for the Award of Fees and Costs Associated with Mistrial. The government has filed a response in opposition, arguing that Clemens' request is barred by the doctrine of sovereign immunity.

In criminal cases, the sole mechanism for recovering fees and costs is under the Hyde Amendment, 18 U.S.C. § 3006A Note. The Hyde Amendment imposes considerable hurdles to reimbursement, however. It provides, in relevant part, that "[t]he court, in any criminal case... may award to a prevailing party... a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust." Therefore, a defendant must first prevail against all charges. Second, he or she must demonstrate that the government's position in the prosecution was "vexatious, frivolous, or in bad faith"--that is, lacking any reasonable grounds or from an improper motive. Lastly, the Amendment permits the government to argue that any award would be unjust. Clemens' lawyers did not invoke the Hyde Amendment, as the government's response points out, and could not do so in any event since he faces re-trial and has not yet prevailed.

Despite having been in effect for nearly 14 years, Courts have rarely awarded defendants fees pursuant to the Hyde Amendment. See United States v. Aisenberg, 358 F.3d 1327, 1335 (11th Cir. 2004) (reducing award of $2,680,602.22 in attorney’s fees to $1,298,980.00 in attorney’s fees and litigation expenses of $195,670.32, where the appellees were prosecuted for alleged false statements in relation to the disappearance of their daughter, and the government dismissed the indictment against the appellees after the district court found that investigating county detectives made false statements, statements in reckless disregard for the truth, and omitted material facts in wiretap applications; failed to inform the state circuit court that they had not yet interviewed several witnesses and that they were still waiting for the crime lab to process evidence and for a financial analysis of the appelleees; reported and quoted alleged telephone conversations in their wiretap applications which were either not present or not intelligible on the tapes and “deliberately or with reckless disregard summarized conversations out of context,” intercepted communications which were unrelated to the offenses and failed to minimize the recordings of conversations not otherwise subject to the interception authorization); United States v. Sherburne, 249 F.3d 1121, 1125 (9th Cir. 2001) (affirming the trial court’s award of attorney’s fees under the Hyde Amendment to the defendants who had charges against them relating to alleged abuses in the construction of a housing development on an Indian reservation dismissed, observing that the government had “distorted the truth,” “ignored evidence,” and failed to present facts establishing any false representations); United States v. Braunstein, 281 F.3d 982, 996 (9th Cir. 2002) (concluding that the government’s position that the defendant had engaged in wire fraud, interstate transportation of goods obtained by fraud, and money laundering in selling discounted computers to domestic distributors and resellers, despite evidence that computer company was aware of the defendant’s actions and had no agreement with the defendant, “was so obviously wrong as to be frivolous”); United States v. Claro, No. Crim. H-04-126-1 2007 WL 2220980, *6 (S.D.Tex. Jul 31, 2007) (Opinion on Defense Fees and Expenses) (unpublished), affirmed in part, vacated in part by, United States v. Claro, 579 F.3d 452, 456 (5th Cir. 2009) (awarding $391,292.29 in fees and expenses under the Hyde Amendment where court had dismissed indictment for conspiracy, mail fraud, and money laundering against the defendant, observing that the government had no evidence to support its allegations and that “[the defendant] defended himself for nearly sixteen months from fifty-four counts derived from shifting legal theories and inaccurate representations of the facts”).


Georgia Resident and DOD Employee Charged with Bribery

As reported by Reuters, Desi Deandre Wade, of Climax, Georgia, was a chief of fire and emergency services for U.S. Department of Defense, based in Kabul, Afghanistan. Wade has been charged with allegedly accepting a $95,000 bribe from a contractor in exchange for providing the contractor with quotes from competing bidders.

Wade was arrested last week in Atlanta while attending a Fire Rescue International Conference.

New Atlanta FBI Team to Investigate Corruption Among Georgia Judges and Legislators

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In other Federal law enforcement news, the Houston Chronicle reports that the FBI has assembled a new team to investigate corruption among judges and legislators in Georgia. Brian Lamkin, Special Agent in Charge of the FBI's Atlanta Office, told reporters that the team was formed in response to a string of recent corruption charges in Georgia, and will utilize approximately 40 percent of the Office's white-collar crimes unit staff. The article also notes that State agencies, including the Georgia Judicial Qualifications Commission and the Georgia Ethics Commission have run into funding difficulties.

For your serious criminal and civil legal needs, please visit us online at, or call (912) 447-8400 (Savannah) and 404-842-9700 (Atlanta).

Economic Concerns Driving DOJ's Prosecutorial Discretion in Large Corporate Prosecutions; Government Files Civil Suit Against Deutsche Bank Over Alleged Massive Mortgage Fraud

Federal officials last week announced that Deutsche Bank and its mortgage division, MortgageIT, allegedly engaged in fraud on a massive scale as a civil complaint was filed against Deutsche Bank. The complaint alleges that the massive German bank allegedly defrauded the government of up to $1.2 billion through alleged reckless lending practices. The Federal Housing Administration has allegedly paid out approximately $386 million in wrongful insurance claims. The government is seeking three times this amount in fines and penalties. Among the government's allegations is a charge that documents which would have informed bank officials about high rates of default were hidden in a closet at MortgageIT. The civil complaint fails to disclose any incriminating documents which could be used to establish an intent to defraud the government.

However, according to an article by Fox Business News, the government is holding back in the Deutsche Bank case from bringing criminal charges in response to the alleged massive fraud. The author points to the case as illustrative of a trend by Federal officials to prosecute alleged wrongdoing by corporations through civil, rather than criminal, means.

The article speculates that Federal officials might have elected civil, rather than criminal, proceedings due to the lower burden of proof , as well as the more time and resource-consuming nature of criminal proceedings. It also acknowledges concerns by prosecutors over potential harm to corporations, investors and the economy and markets in general, illustrated by the demise of accounting giant Arthur Andersen in 2002 as a result of the federal prosecution in the wake of the Enron scandal. The article cites the fact that criminal, as opposed to civil, actions, are often accompanied or followed by de-licensing actions by regulatory bodies.

The article also cites the relatively few criminal prosecutions following the financial collapse of 2007. What criminal proceedings there have been have focused on individuals with various Wall Street firms--rather than the firms themselves. Furthermore, several of these prosecutions have ended in failure, as exemplified by the acquittal of former Bear Stearns hedge fund managers Ralph Cioffi and Matthew Tannin in 2009.

World Duck Calling Champion Indicted for Illegal Trafficking and Hunting of Ducks and Geese

Jeffrey B. Foiles, of Pleasant Hill, Illinois, was a world duck calling champion. According to and an indictment in the Central District of Illinois, Mr. Foiles was also allegedly a trafficker in ducks and geese and seller of guided waterfowl hunts in which hunters killed ducks and geese in excess of legal bag limits. Mr. Folies and his alleged coconspirator allegedly falsified records from the illegal hunts. He pled not guilty to 23 counts of wildlife trafficking, conspiracy, and false writings on Thursday.


Head of Georgia Medical Equipment Provider Indicted for Medicare Fraud; Atlanta Inmate Indicted for Selling "Cooperation" Information to Defendants

Samuel Curtis, III, a Texas resident, has been charged with four counts of health care fraud and aggravated identity theft in the U.S. District Court for the Southern District of Georgia for allegedly attempting to steal more than $500,000 from Medicare, according to an article in the Florida Times-Union. Curtis is alleged to have operated Perferred Prosthetics and Orthotics, a medical equipment supply company doing business in Georgia and Texas, and to have allegedly stolen information from Medicare physicians and recipients and used the information to submit false claims to Medicare. The indictment alleges that Curtis and others routinely billed Medicare for ankle, knee and back braces and other medical devices that either were never provided to patients, were not medically necessary or had not been prescribed by a doctor. Curtis' associate, Cecil Risher, of Brunswick, Georgia, was arrested earlier in the investigation.

In other Georgia news, according to 7th Space, Sandeo Dyson, a former inmate of the Atlanta City Detention Center, has found himself indicted once again in the U.S. District Court for the Northern District of Georgia for allegedly obtaining information about crimes being committed in Georgia and North Carolina from other inmates and then selling the information to criminal defendants in cases in the Northern District for five to ten thousand dollars apiece, earning an approximately $50,000 from the scheme. The defendants would offer the information provided by Dyson to have their sentences reduced for cooperation. Dyson allegedly instructed the defendants to lie to authorities by concealing the fact that they had no real personal knowledge of the proffered information, and had  purchased the information from Dyson. Dyson is charged with one count of conspiracy to obstruct justice and to make false statements, three counts of obstruction of justice, and two counts of false statements.


Atlanta Investment Firm C.S. Capital Management, Inc., Ordered to Pay $2 Million in Restitution to Plumbers and Pipefitters Pension Plan

As reported by PRNewswire, the U.S. Department of Labor has obtained a consent order ordering C.S. Capital Management Inc. an investment firm based in Atlanta, and its owner, Paul H. Saylor, to restore $1,090,000 to the Plumbers and Pipefitters National Pension Plan as restitution for improperly investing $25 million in risky private placement bonds. The Pension Plan, which has more than 123,000 members nationwide, had hired C.S. Capital Management to evaluate and make recommendations on the purchase of bonds to finance a development project in Los Angeles called Playa Vista. The Department of Labor also filed a lawsuit alleging that C.S. Capital Management violated the Employee Retirement Income Security Act by making the decision to purchase the Playa Vista bonds, which have only paid one interest payment since 2001. Under the consent order, C.S. Capital Management is also required to pay $109,990.91 in fines to the federal government.

Operation Broken Trust Targets Financial Crime in Georgia

According to a news release by the U.S. Attorney's Office for the Southern District of Georgia, Attorney General Eric Holder announced last week the results of Operation Broken Trust, an unprecedented nationwide law enforcement operation targeting a variety of investment schemes. President Obama established an inter-agency Financial Fraud Enforcement Task Force, consisting of federal agencies, regulatory authorities, inspectors general, and state and local law enforcement, which was launched on August 16, 2010. The purpose of the Task Force is to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes. To date, Operation Broken Trust has taken action against 343 criminal defendants and 189 civil defendants for schemes involving more than 120,000 victims and an estimated more than $10 billion in losses.

The news release states that, in the Southern District of Georgia, the operation has resulted in the sentencing of Alvin Charles Ramsey, a former financial advisor, for defrauding his clients out of over $500,000 and Augusta, Georgia, investment advisor Walter Marian Williams for defrauding his clients of over $1.7 million.

President Obama Issues Pardons; To Rob or Not to Rob? 78 Year-Old Georgia Man Charged With Bank Robbery

Today's Atlanta Journal-Constitution has an article on the nine pardons announced by the White House on Friday--the first pardons issued by President Obama. The pardons related to a variety of offenses dating all the way back to 1960. Only recipient appears to have been charged with an alleged federal, "white collar" crime--Laurens Dorsey, of Syracuse, New York, sentenced in 1998 to five years of probation and $71,000 in restitution for conspiracy to defraud by making false statements to the Food and Drug Administration

78 year-old George B. Hamlet of Georgia, unlike his prevaricating namesake, has allegedly taken decisive action to knock off a bank in Knoxville, Tennessee, according to an article at Mr. Hamlet allegedly brandished a  weapon, jumped on the counter at First Tennessee Bank in Knoxville, and began collecting money from the tellers. Mr. Hamlet was stopped by a security guard as he was leaving the bank, and has been charged with one count of bank robbery in the U.S. District Court for the Eastern District of Tennessee.

Georgia Piano Importer Charged Over Alleged 100 Year Old Elephant Ivory; Loganville Man Allegedly Bilked New York Investor Into Paying $5 Million in Foreign Currency Scheme

In Georgia Federal Criminal news, the Associated Press reports that Federal prosecutors charged A-440 Pianos, Inc., a piano importer in the Atlanta area, and its owner, Pascal Vieillard, last week with alleged illegal smuggling of 855 elephant ivory key tops into the U.S. Mr. Vieillard and the company pled not guilty, and Mr. Vieillard's counsel has stated that the ivory at issue is more than 100 years old.

In other news, Tony Leon Smith, a resident of Loganville, Georgia, has been charged with wire fraud in the U.S. District Court for the Northern District of New York, according to the Rochester Democrat and Chronicle. Smith is alleged to have falsely represented himself to an entrepreneur in the Rochester area as a successful investor in foreign currencies and to have promised a 100 percent return within 90 days for investments in alleged foreign exchange instruments. Smith allegedly convinced the man to set up a corporation in the Caribbean island nation of Saint Kitts and to wire $5 million to the corporation. Smith allegedly then withdrew $537,467 from the company's account and converted it to his own use.


LAPD Officer Acquitted on Weapons Export Charges

It is a rather slow news day, so the Blog would like to take the opportunity to note that, earlier this month, a jury in the U.S. District Court for the Central District of California acquitted Los Angeles Police Department Officer Johnny Augustus Baltazar on charges of illegally exporting weapons and ammunition to the Central American nation of Belize, as reported in the L.A. Times. Baltazar was alleged to have purchased eight .40-caliber handguns, two 9-millimeter handguns and more than 1,500 rounds of ammunition from the LAPD police academy store for his Belize business, Elite Security. The guns and ammunition were shipped inside a safe, however the shipment was stopped by Belize officials who determined that the shipment was allegedly not in compliance with regulations banning the export of handguns larger than 9 mm. The officials sent the shipment back, and Baltazar planned to substitute smaller caliber guns for the larger caliber ones, however Immigration and Customs Enforcement agency discovered them and started an investigation.

Baltazar's counsel emphasized the confusing nature of export regulations to the jury at trial. He cited errors by the shipping company. He also argued that Baltazar was a law-abiding person merely looking to build a business in Belize for his retirement. A juror questioned following the verdict stated that he believed that Baltazar was merely following the advice of the shipping company. Baltazar remains an LAPD officer, however he has been on leave since the LAPD was notified of the investigation.

Rascos Give Up the Fight; U.S. Senate Assumes Role of a Court for Impeachment Trial of Louisiana District Judge G. Thomas Porteous, Jr.

We have commented on the case of Alfredo and Niurka Rasco of South Georgia, who were charged in a $6.5 million Medicare fraud scheme. Well, despite a heated and well-founded defense against the charges based upon illegal use of immunized evidence by the government, Mr. Rasco and his wife pled guilty to the charges against them last week during their trial, according to a press release by the U.S. Attorney's Office for the Southern District of Georgia. Mr. and Mrs. Rasco face maximum terms of imprisonment of 12 years and 6 months respectively.

In other news, the U.S. Senate will convene next week to hold an impeachment trial of U.S. District Judge G. Thomas Porteous, Jr., of the Eastern District of Louisiana according to the National Law Journal. Judge Porteous is charged with corruption. Specifically, Judge Porteous is charged with accepting meals, trips and other gifts from bail bondsman Louis Marcotte III and his sister Lori Marcotte in return for giving the Marcottes and their clients special treatment while he was a state court judge. Judge Porteous is also alleged to have made false statements to the Senate and to the FBI in 1994 regarding his past.

Judge Porteous' attorneys are vigorously defending him, however, pointing out that much of the conduct charged against Judge Porteous occurred prior to his appointment to the bench. Furthermore, a federal grand jury had investigated Judge Porteous as part of wide-ranging probe into Louisiana corruption, however no charges resulted. The U.S. Department of Justice also decided to drop the case against Judge Porteous. Judge Porteous' attorneys have denied any wrongdoing by Porteous, and state that he has done nothing to justify his removal from office.  The defense also contends that the FBI and the Senate were aware of the allegations against Judge Porteous prior to voting to confirm his appointment.

A fascinating fact is that Congress is also the nation's least used court. The trial of Judge Porteous will be the Senate's first since the impeachment trial of President William Jefferson Clinton (who appointed Judge Porteous to the bench) in 1999, and the first of a federal judge since 1989. The U.S. House of Representatives has considered bringing impeachment proceedings against federal judges in the interim, but the judges had resigned before the proceedings could be brought. Judge Porteous was referred to the Senate for impeachment by the Judicial Conference of the United States, led by Supreme Court Chief Justice John Roberts Jr., in June of 2008. A committee of 12 senators will serve as both judges and jurors at his trial. Members of the House will serve as prosecutors, or "managers." The Senators will vote on whether to convict Judge Porteous, with a two-thirds majority required to convict. Any of the Senators may question witnesses following examination and cross-examination by counsel. The Senate Committee will first gather evidence for consideration by the full Senate. Each side will have 20 hours to put on evidence. The Senate can only vote to impeach Judge Porteous, and cannot impose any sentence of imprisonment or fine. The trial will take place in the same chamber the Senate uses for confirmation hearings.

In-House Counsel to the Mob? Court Denies Government's Motion to Disqualify Attorney Joseph Corozzo, Jr.

As reported by the New York Law Journal, Michael Scarpaci is current charged as an alleged associate of the Gambino crime organization in the Southern District of New York in an indictment charging racketeering violations, including murder, witness tampering, murder of a witness, extortion, narcotics and sex trafficking a minor. In a twist, however, Scarpaci's lawyer, Joseph R. Corozzo, Jr., is also alleged to have connections to the Gambino family, and the prosecution sought to disqualify Corozzo from the case for alleged conflicts of interest. Specifically, Corozzo's father, Joseph Corozzo Sr., is a consigliere of the Gambino family. His uncle, Nicholas Corozzo, is a capo. And Corozzo himself is alleged to serve as the organization's "in house counsel."

Prosecutors moved to disqualify Corozzo from representing Scarpaci, citing Corozzo's disqualification in April from representing Gaetano Napoli, Sr., on the ground that Corozzo had been present at two meetings with his client in 2009 in which they discussed what to do if Napoli was ever approached by law enforcement. Corozzo had advised Napoli to say nothing and give investigators the number for his attorney. Sound advice from a criminal defense attorney--which the government of course alleged constituted obstruction of justice.

Prosecutors also cited a 2006 recorded conversation in which Scarpaci's co-defendant, Daniel Marino, and an alleged Gambino associate, Lewis Kasman, discussed the possibility of Corozzo being arrested and disbarred, arguing that the conversation implicated Corozzo in the racketeering conspiracy charged in the indictment. Finally, the government contended that Corozzo had previously represented a witness for the government in the case.

District Judge Lewis Kaplan denied the government's motion, holding that the government had not identified any actual conflict from Corozzo's representation of Scarpaci, and noted that Scarpaci could make a knowing and intelligent waiver of any potential conflicts. The Judge found that the alleged conflict in the Napoli case was not related to the case against Scarpaci, and that the Court in that case never made any finding that Corozzo's alleged conduct obstructed justice. Judge Kaplan also observed that the conversation between Marino and Kasman did not suggest that Corozzo had engaged in any criminal conduct. The Court further noted that the subject matter of Corozzo's representation of the government witness, and was only "tangentially related" to the subject matter of the case. Finally, regarding Corozzo's family connections with the Gambino family, the Court held that there was no evidence that Corozzo's father or uncle had had in any way supervised any of the RICO acts allegedly committed by Scarpaci.

Smith & Wesson Investigated for Foreign Corrupt Practices Violations; Ponzi Schemer Scott Rothstein's Partner Invokes Fifth in Deposition

Ashby Jones of the Wall Street Journal Law Blog writes today that Firearms manufacturer Smith & Wesson is being investigated by the U.S. Department of Justice for alleged violations of the Foreign Corrupt Practices Act (FCPA). The company disclosed the investigation and potential future criminal indictments of the company and its officers and employees to investors in filings with the U.S. Securities and Exchange Commission. Smith & Wesson also acknowledged that it could face debarment by the U.S. State Department. The investigation is related to an FCPA sting operation which resulted in the indictment of 22 individuals in the arms industry.

According to, Stuart Rosenfeldt, of Rothstein Rosenfeldt Adler--as in Scott Rothstein, the convicted $1.2 billion Ponzi schemer--was deposed last week by the law firm's bankruptcy trustee concerning his law firm's finances and political contributions. Rosenfeldt repeatedly invoked his Fifth Amendment privilege against self-incrimination in response to many of the questions. Rosenfeldt stated that he never looked at the firm's books. Also, when asked about groups which he made donations to, such as Common Sense Coalition and Broward Coalition for Truth, Rosenfeldt denied being familiar with the groups or what they stood for. Rosenfeldt's attorney has stated the U.S. Attorney's Office for the Southern District of Florida is investigating Rosenfeldt's contributions.

Warning to Tax Violators by U.S. Attorney's Office, Northern District of Georgia; Marietta Men Sentenced for Investment Schemes Involving Raquel Welch, Faster Growing Trees

Georgia federal criminal news today includes:

A warning by the U.S. Attorney's Office for the Northern District of Georgia to would-be tax law violators, listing recent tax prosecutions (which has become something of an annual tradition as April 15 approaches).

Two Marietta, Georgia, men were sentenced in the U.S. District Court for the Northern District of Georgia for defrauding investors, as reported by the Atlanta Journal Constitution. James Reece's and Patrick Soltis' outlandish false representations included claims that actress Raquel Welch was the spokeswoman for a cosmetics company they owned, and that they were working in conjunction with the University of Minnesota to develop a faster growing species of tree. Reece was sentenced to 6 years and 6 months. Soltis recieved 3 years and 5 months. Both men were ordered to pay hundreds of thousands in restitution.

Picture courtesy of

It's April First

April Fool's Day is not listed among the "legal holidays" in Federal Rule of Civil Procedure 6(a)(6). The courts do not close when April 1 falls on a weekday. It cannot be excluded in calculating the amount of time one has to file a response to a motion (even a frivolous one). In general, the law takes little or no notice of this occasion for hoaxes and practical jokes and when it does, it is typically not amused.

Furthermore, few noteworthy April 1 pranks surface in caselaw, especially criminal caselaw. The exact origin of the occasion is lost in history, but there are 16th century references to Dutch noblemen sending servants on "fool's errands" on the first day of April, and 17th century English writer John Aubrey referred to April 1 as the "Fooles holy day."

There is, however, one criminal law development on April 1, which should be more widely known than it likely is. On that date, a former Army Corporal received five year court sentence for treason. He ended up serving only eight months, however.

The defendant, perhaps the most infamous defendant to ever answer in a court of law, was Adolph Hitler, leader of the National Socialist German Worker's Party, or Nazi Party, who had been arrested for organizing the "Beer Hall Putsch," or coup d'etat, in Munich, Bavaria, in an effort to overthrow the German Weimar government. The coup was so named because Hitler and members of the SA, or "brownshirts,"  the paramilitary wing of the Nazi Party, initiated it when the conspirators stormed a Munich beer hall where the Bavarian Commissioner and other officials were making speeches to a crowd of about 3,000. Hitler proclaimed a revolution and called on various officials, the police and the Army to rally to his side. The police and the military were unmoved, and 16 SA members were killed by soldiers in a conflict at the Odeonplatz the following day. The SA members were led by General Erich Ludendorff, a hero of the First World War, who had allied himself with Hitler in order to overthrow the Weimar government. General Ludendorff had marched directly into hostile fire while Hitler fled the conflagration, gaining him a reputation as a coward.

Hitler was arrested two days after the putsch. Hitler, Ludendorff, Ernst Rohm, leader of the SA, and other leaders were arrested and charged with high treason to be tried by a panel of judges. Coincidentally, the presiding Judge, Georg Neithardt, had seen defendant Hitler before--having sentenced Hitler to a three month sentence in 1921 for disrupting a meeting of the Bavarian legislature with members of the SA (Hitler only served one month). The trial began on February 26, 1924, and lasted a month. Hitler used the trial as a vehicle to deliver incendiary speeches which were reported in the papers. Judge Neihardt allowed Hitler to run the trial, and showed sympathy for the defendants. Ludendorff was acquitted and Rohm was convicted but released. Hitler served less than a year at Landsberg am Lech prison in Bavaria, where he and Ruldolph Hess composed Hitler's manifesto, Mein Kampf.

Hitler's experience during the putsch and the subsequent trial caused him to realize that legal methods were the way to seizing power, as opposed to violent revolution. He would become Chancellor and dictator of Germany through political alliances and machinations less than ten years after his release, and would become the catalyst for history's costliest war and the mastermind of its most unspeakable genocide six years later. Much of history would have been different and many lives spared had those Bavarian judges sentenced the defendant thug and agitator--who had a previous criminal history--to the sentence recommended by the German statute for "high treason"--ten years to life imprisonment. It was the last time history's most notorious mass murderer would ever be subject to the rule of law.




More Suggested Guidelines for Electronic Evidence in Federal Criminal Investigations from the National Law Journal

Today's National Law Journal has another article relating to electronically stored information in criminal investigations. For large organizations, subpoenas or requests for information by the government in a criminal investigation are always an unwelcome development, frequently as much because of the potential massive expenditures of time, money and resources they entail as because of their criminal nature. They must, however, be taken with the utmost seriousness, with extreme care to safeguard the rights of the corporation and individuals, and to guard against possible criminal exposure from the very act of responding itself.

The author advises corporations, on becoming aware of a criminal investigation, to issue a notice regarding preservation of evidence to every employee in the corporation, or in relevant offices or departments. Ideally, corporations should already have a comprehensive and thorough document and electronic information retention policy in preparation for any possible demands for information in not only criminal, but civil matters as well. Companies are also advised to take affirmative steps to gather and preserve evidence which might be relevant to a criminal probe upon learning of an investigation or inquiry.

The article also points out the fact that preservation of potential evidence is critical given the danger of obstruction of justice charges by the government. In numerous instances, the government has indicted on charges of obstructing an investigation alone, and not for any alleged underlying crime. The author also notes possible use by the government of any improper handling of evidence as evidence of the corporation's or employees' "consciousness of guilt."

The article recommends forensic management of the hard drives of relevant officers and employees.However, corporations must take care to carefully review the material on the hard drives for any privileged material, at the risk of possible waiver of privileges through disclosure to the government. The author stresses that, even after conducting their own review of the information on hard drives, companies should negotiate an agreement with the government as to a protocol which will ensure that the government's forensic review does not include reviewing privileged information before counsel for the corporation has an opportunity to review and identify the information as privileged. The government and the corporation may enter into a confidentiality agreement under Federal Rule of Evidence 502(e) to guard against possible waiver.

Responding to Criminal Subpoenas for Electronically Stored Information

An article in the New York Law Journal today analyzes the difficulty faced by corporations having countless bytes of electronically stored information when they are served with subpoenas in a federal criminal investigation. In addition to a need for caution in disclosing information so as not to waive any privileges, companies can face staggering costs and consumption of resources in attempting to comply with government demands for information. The authors also note the risk that targeted searches for information might be alleged to be insufficient by a prosecutor or regulator after the fact, creating a risk of additional demands for information or, at worst, charges of obstruction of justice. There are currently no Department of Justice guidelines for requesting electronically-stored information.

The article points out the potential for negotiating with the government regarding the scope of the subpoena and the actions to be taken in compliance. The authors recognize that prosecutors may often be reluctant to narrow the scope of a subpoena out of a concern that doing so may reveal information about its investigation. A corporation may also not want to reveal its methods for responding to a subpoena, considering it to be confidential attorney work-product.

The authors note that Federal Criminal Rule 17(c) sets forth some limitations on the government's power to subpoena. A subpoena must be reasonable, including in the scope of the requests and the burden on the party responding to the subpoena. The article indicates that an objection to the overbreadth of a subpoena's requests for information may be used to negotiate a narrower scope to the subpoena or the manner in which the subpoena will be complied with. The authors cite the Supreme Court's decision in Hale v. Henkel, in which the Court held that subpoena requests must be particularized, as a basis to argue that subpoena requests for electronic information are not sufficiently particularized enough to allow the recipient to identify responsive documents throught the use of targeted search terms or other methods.

The authors further note recent decisions by courts which indicates that courts may soon impose such a requirement that the government negotiate with targets of subpoenas over the scope and manner of compliance. They advocate meet and confer sessions between investigators and recipients of subpoenas, or possible meetings overseen by a magistrate judge or a special master approved by the government, similar to civil litigation, as a step before filing a motion to quash. Involvement of a magistrate or special master would also provide the added benefit allowing a subpoena recipient to submit information in camera.

Firm's Brand New Website Launched

Gillen Withers & Lake LLC has launched a new website at 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.

Georgia Court of Appeals Reverses Trial Court's Dismissal of RICO Indictment Against Pastor, Bank Officer

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.


FBI's Computer Network Solving Crimes Even When Employees Away in new Grid Computing Initiative

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 00s:The Decade Technology Transformed the Practice of Law; Chinese Cyber-Attack on L.A. Firm

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.

Chief Justice John Roberts Issues Year-End Report on the Federal Judiciary; Judiciary "Operating Soundly"; New Criminal Cases at Highest Levels Since 1932

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.

Judge Anthony A. Alaimo

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.

Assistant United States Attorney Sally Quillian Yates Nominated by President Obama to Be United States Attorney for the Northern District of Georgia

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.


French Prisoner Tour de France

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 Podgor on Judge Sotomayor on White Collar Criminal Law

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.

Second Circuit Judge Sonia Sotomayor Nominated for Supreme Court

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.

Memorial Day

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.

The Criminalization of Politics

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.

The New Department of Justice at 100 Days

 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.

Justice Souter, Juror No. 6 and Taxes

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.