Los Angeles Doctor Acquitted on Charges of Conspiracy and Falsification of Records Relating to 2003 Liver Transplant

According to the Los Angeles Times, Dr. Richard R. Lopez, Jr., head of the liver transplant program at St. Vincent Medical Center in Los Angeles, was acquitted by a jury in the U.S. District Court for the Central District of California on Friday, on charges conspiracy, concealment of material fact and falsification of records. The charges related to a liver transplant in 2003. Dr. Lopez acknowledged that he was involved in a decision to give a liver intended for a patient to another patient more than 50 places down the transplant waiting list, which constituted a violation of transplant rules. The government charged Dr. Lopez with orchestrating a cover up of the violation. The liver was intended for a patient residing in Saudi Arabia, and was given to another patient residing in Saudi Arabia. Under the transplant rules, the organ should have been given to the next person on the list--a patient at the University of California, Los Angeles, Medical Center.

Image source: www.ehow.com/about_5673429_private-grants-liver_transplant-patients.html

St. Vincent initially reported the actual recipient of the liver to the United Network for Organ Sharing, a private, non-group contracted by the U.S. Department of Health and Human Services which oversees transplantation nationwide. Later the same day, the hospital's staff retracted the notification and incorrectly reported that the liver had gone to the individual which it had been offered to. The government alleged that St. Vincent continued to file false documents concerning the liver. The defense argued that Dr. Lopez had no knowledge of the falsification of the documents, and that Dr. Lopez was being made “a scapegoat for everything that was wrong at St. Vincent’s.”

St. Vincent has subsequently shut down its liver transplant program.


For serious criminal matters, contact the offices of Gillen Withers & Lake LLC in Savannah or Atlanta.

California Businessman Acquitted on Tax Charges; Did Not Review or Authorize Tax Filings Due to Kidnapping of Son

Earlier this month, as reported in the Wall Street Journal's MarketWatch, a Federal jury in the U.S. District Court for the Central District of California acquitted Howard H. Berger, a business consultant, on four criminal tax charges. The charges stemmed from Mr. Berger's alleged filing of 2006 personal and partnership tax returns allegedly claiming a false charitable donation of $1 million.

The defense at trial presented compelling evidence that Mr. Berger never personally reviewed or authorized his 2006 return. The compelling evidence was that, four days before the return was due in October of 2007, Mr. Berger's ex-wife kidnapped their 4 year-old son from his preschool and fled with the child to her native country of South Africa. Furthermore, this was not the first time the former Mrs. Berger had abducted the child--she had refused to return to the U.S. after taking the child to visit her family in 2005. It took Mr. Berger 8 months working with the U.S. State Department to obtain a court order for the return of his son. The defense furthermore undermined the testimony of IRS agents regarding alleged false statements by Mr. Berger regarding his access to the charity's bank accounts or statements.

Image source: discoverlosangeles.com/photos.html

Government Won't Take Another Swing at Barry Bonds

 The United States Attorney's Office for the Northern District of California filed a dismissal last week of its remaining charges against former San Francisco Giants slugger and outfielder, Barry Bonds, as reported by the Associated Press. Bonds was convicted in April on one count of obstruction of justice. However, a mistrial was declared on the three counts of perjury against Bonds.

The dismissal has spared Bonds a second trial. However, the trial judge has upheld his obstruction conviction. Bonds'  recommended sentencing range is 15 to 21 months' imprisonment, but the court may impose a lesser sentence at sentencing. 

Government to Decide Whether to Take a Second Swing at a Bonds Conviction

Former San Francisco Giants slugger and outfielder Barry Bonds was convicted last Wednesday on one count of obstruction of justice, after the U.S. District Court for the Northern District of California declared a mistrial on the three perjury counts against the former player.

The Associated Press has reported that U.S. Attorney for the Northern District of California Melinda Haag has informed the media that the Government may seek a second trial of Bonds as a result of the dismissed counts. The Court has scheduled a hearing on May 20 to determine whether or not the Government will seek a second trial.

Perjury and Obstruction Trial Against Former San Francisco Giant Barry Bonds Commences in San Francisco; Trial to Begin With Hearing on Bonds' Former Weight Trainer--Possible Contempt


The trial of former San Francisco Giants outfielder Barry Bonds on four counts of perjury and one count of obstruction of justice commenced yesterday in the U.S. District Court for the Northern District of California according to the San Francisco Chronicle. The charges against Bonds arise from his statements to a grand jury in 2003 in relating to an investigation into the Bay Area Laboratory Co-Operative (BALCO) in Burlingame, California, and steriods. Bonds told the grand jury that he never knowingly used banned drugs. The transcript of his December 4, 2003, testimony may be read in full here. Jury selection took place yesterday.

The jurors' names will be kept secret until the conclusion of the trial (however, the jury includes at least one Oakland Athletics fan). Opening statements are expected to take place today, followed by a hearing concerning Bonds' former weight trainer, Greg Anderson. Anderson pled guilty in the BALCO case and has served a year in prison for refusing to cooperate in the investigation of Bonds. The prosecution has subpoenaed him as a witness at trial, however Anderson has stated his intention not to testify against Bonds. The Court has stated that it will rule Anderson in contempt if he refuses to testify and hold him in prison for the duration of the trial.

Bonds, who played as a left fielder for the Pittsburgh Pirates from 1986 to 1993, and for the Giants from 1993 to 2007, holds Major League Baseball records for home runs in a single season, is an all-time leader in walks and intentional walks, and is also the recipient of 14 All-Star awards, 8 Golden Glove awards and 7 Most Valuable Player awards.

Georgia Prisons Big Source of Tax Fraud According to USA Today


An article in USA Today claims that prison inmates in Georgia, Florida, California and elsewhere caused the Internal Revenue Service to issue $39 million in undeserved federal tax refunds in 2009. Georgia came in second with $3,560,562 in fraudulent refunds issued to prisoners, but was far outstripped by Florida's $12,576,944 in refunds. The IRS identified 44,944 false or fraudulent tax returns filed by prisoners in 2009, however an audit identified 54,410 tax returns which the IRS had failed to identify as having been filed by prisoners.The number of undeserved refunds paid out was up from $13.4 million in 2004.

While some inmates came legally receive income from investments, inheritances and other sources, the false tax returns are typically based on fictitious jobs and taxes that were never withheld. Although inmates do work in prison, prison jobs do not pay enough to trigger withholding. The scams often involve the theft of Social Security Numbers and other information from others. In some cases, the inmates will find the names of businesses which have declared bankruptcy, in order to make it more difficult for the IRS to verify the claims.

A Florida inmate, Danilo Suarez, obtained $58,022 in tax refunds by filing 14 or more false tax returns. Jeanni Renee Hillin, a Tennessee inmate, received $58,651 in refunds in 2006. 

Charges Dismissed Against Executives in Titanic West Titanium Case for Alleged Government Contract Fraud; Prosecution Provides Alleged Favorable Evidence 6 Weeks Into Trial

Two years ago, Western Titanium was indicted in the U.S. District Court for the Southern District of California on 19 counts, including mail fraud and conspiracy, for allegedly selling substandard titanium to the government to use in aerospace equipment and engine mounts for military jets and allegedly falsely certifying that the metal met technical specifications, according to an article on San Diego Signon. Also indicted were Western Titanium's CEO, Daniel Schroder, and three other current and former executives. The "titanic" prosecution involved some 900 docket entries, extensive pretrial hearings and finally an 11 week trial.

However, the trial terminated last week with Western Titanium pleading guilty to a single count of mail fraud for causing an alleged loss of $51,350 and the charges against the executives being dismissed under deferred prosecution agreements. The reason for the abrupt end was the defense's accusations that the prosecution had withheld thousands of pages of documents favorable to the defense showing that the titanium was not substandard. Counsel for the defendants claimed that the government did not disclose the materials until approximately six weeks into the trial in an act of intentional prosecutorial misconduct.

The U.S. Attorney's Office has denied that the prosecution acted in bad faith.

Federal Prosecutors Observe "No Touch" Ruling on Possible Retrial of San Diego Councilman for Alleged Honest Services Fraud; Former Alaska Chief of Staff to Have Honest Services Conviction Dismissed

Last week was a good one for public officials charged with Federal crimes. First, the U.S. Attorney's Office for the Southern District of California announced that it would not seek a second trial of former San Diego Councilman Michael Zucchet on alleged honest services fraud charges pursuant to 18 U.S.C. 1346, relating to political contributions from the owner of a strip club, as reported by the Los Angeles Times. Mr. Zucchet was indicted with two other City Council members and an aide in 2003. The government alleged that the Council members had a meeting with a lobbyist for the strip club owner for the alleged purpose of changing the City's "no touch" ordinances relating to strip clubs. The Council members, however, argued that they reported the contributions on their financial disclosure forms. The government's decision was prompted by the U.S. Supreme Court's recent decision in U.S. v. Skilling, No. 08-2349, in which, as we have noted,  the Court held that the "honest services" mail fraud statute, 18 U.S.C. §1346, applies to bribery and kickback schemes, and not to mere "undisclosed self-dealing by a public official or private employee," alone.

Councilman Charles Lewis died before trial. Mr. Zucchet and Councilman Ralph Inzunza were convicted by a jury following trial in July of 2005. However, U.S. District Judge Jeffrey Miller dismissed the jury's guilty verdict on seven counts against Mr. Zucchet. The Judge permitted the government to retry Mr. Zucchet on the two remaining counts. The Ninth Circuit Court of Appeals upheld the district court's ruling on appeal. Mr. Inzunza has also appealed his convictions. Mr. Zucchet resigned from the Council soon after his conviction, and is currently General Manager of the San Diego Municipal Employees Association.

Then, according to the Achorage Daily News, the U.S. Attorney's Office for the District of Alaska announced that it would agree to the dismissal of the honest services fraud conviction of Jim Clark. Mr. Clark was the former Chief of Staff to Alaska Governor Frank Murkowski, a lobbyist and attorney, and was once viewed as the most powerful unelected official in Alaska. The U.S. Attorney's Office announced that Mr. Clark's 2008 guilty plea was to a felony that no longer exists, pursuant to the Supreme Court's Skilling decision. Mr. Clark pled guilty to alleged conspiring with former officials of the defunct oil-field services company Veco Corp. to channel $68,550 in illegal contributions to Governor Murkowski's political campaign -- without the Governor's knowledge. He is expected to be a witness for the government in a possible upcoming trial of State Representative Bruce Weyhrauch on bribery, extortion and conspiracy charges. Mr. Clark's law license, which was suspended following his guilty plea, is expected to be reinstated by the Alaska Supreme Court.

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.

Sheriff Deputies Acquitted on Charges of Alleged Leaks and False Statements in Road Dog Cycle Motorcycle Gang Racketeering Investigation

Two years ago, Deputy Sheriff David Swanson and Sheriff's Captain Raul DeLeon of the Stanislaus County Sheriff's Department in California were indicted in the U.S. District Court for the Eastern District of California for making alleged false statements to federal investigators regarding leaks during a federal investigation of Road Dog Cycle in Denair, California. The owners of Road Dog Cycle, Robert and Brent Holloway, were also indicted for heading a racketeering enterprise, which involved members of the East Bay Dragons outlaw motorcycle club of California; the Merced, California, chapter of the Hell's Angels; and the Red Devils outlaw motorcycle club of Sweden. The defendants were charged with acts of trafficking in stolen motor vehicle parts, robbery, making extortionate extensions of credit and collecting extensions of credit by extortionate means.

Swanson was charged with allegedly leaking confidential law enforcement information to an associate of Robert Holloway who informed Holloway of search warrants which were to be executed at Road Dog Cycle. DeLeon was similarly charged with allegedly concealing his relationship with Robert Holloway and having contact with Holloway during the execution of a State search warrant at the residence of one of Holloway's employees in order to enable the employee to conceal evidence. Swanson and DeLeon faced a maximum of 15 years imprisonment.

Well, as reported by the Modesto Bee, the prosecution of Swanson and DeLeon turned out to be a case of prosecutorial overreaching when a jury acquitted Swanson and DeLeon on all charges earlier this month. Following the verdict, one juror told reporters that Swanson and DeLeon had been "railroaded." The problems in the government's case caused it at one point to offer Swanson the chance to plead to one felony count with no jail time and not even any probation. Even courthouse employees told the defense that they did not believe that he could have conspired to impede the federal investigation into the Holloways' activities.

Former Brocade CEO Greg Reyes Sentenced to 18 Months; Counsel Blames Lawyers for Failure to Catch Stock Option Backdating

From Law.com, the former Chief Executive Officer of Brocade Communications Systems, Inc., Gregory Reyes was sentenced to 18 months in prison yesterday in U.S. District Court for the Northern District of California for securities fraud and backdating stock options. The government had sought a 37 month sentence and a loss amount of $137 million.

Reyes' counsel attempted to argue that his lawyers should have done a better job in advising Reyes. U.S. District Judge Charles Breyer apparently found the argument an interesting one, stating "Yes, it's not a bad question to ask, 'Where were the lawyers?'" However, the Court rejected the argument, finding that Reyes was a sophisticated executive who understood what he was doing.

Reyes was first tried and convicted on the charges in 2006 and was sentenced to 21 months' imprisonment. However, the Ninth Circuit Court of Appeals reversed his conviction last year based on prosecutorial misconduct in interfering with witness testimony. Reyes was tried a second time in February and March of this year, and was convicted on nine counts. During the trial, Reyes' counsel blamed Brocade's outside counsel, attorneys with the law firm of Wilson Sonsini Goodrich Rosati, for failing to catch stock option backdating. However, Reyes' trial counsel never called anyone from the firm to testify. One of the documents at issue in the case was drafted by two experienced attorneys.

The Court received over 400 letters on Reyes' behalf.

Judge Dismisses SEC Complaint, Drug Charges, Against Former Broadcom Executives in Case of Prosecutorial Misconduct

Yesterday, a federal judge dismissed alleged drug charges against Henry Nicholas, the former Chief Executive of Broadcom Corp., a manufacturer of integrated circuits for broadband communications. In a related civil action, the judge, U.S. District Judge Cormac Carney of the U.S. District Court for the Central District of California, also ordered the Securities and Exchange Commission to amend alleged fraud charges against Mr. Nicholas and other former Broadcom executives within seven days, stating that he found "serious problems of proof" with the SEC's complaint against the former executives and inquired as to what proof the SEC had against them, as reported by The National Law Journal. The court had previously dismissed the SEC's complaint without prejudice.

Last month, during the trial of Mr. Nicholas and former Broadcom Chief Financial Officer William Ruehle, the court had granted Nicholas' and other defendants' motions to dismiss charges of backdating stock options based on prosecutorial misconduct and entered judgments of acquittal. Judge Carney found that the government "distorted the truth-finding process" and infringed on the defendants' due process rights to a fair trial. The court also questioned the evidence supporting the charges, noting that there was "considerable debate" regarding certain accounting practices used by Broadcom and many other major companies, including Microsoft and Apple.

The defendants made their prosecutorial misconduct claims after the court granted immunity to former Broadcom executives David Dull and Henry Samueli at the request of counsel for Mr. Ruehle so that the witnesses would not refused to answer based upon their Fifth Amendment privilege against self incrimination. Mr. Ruehle wanted Mr. Dull and Mr. Samueli to testify in order to rebut the testimony of Nancy Tullos, former Broadcom Chief of Human Resources, a witness for the government who had pled guilty in 2007 to obstruction of justice charges. The court found that the prosecution had improperly influenced Dull's, Samueli's and Tullos' testimony. Judge Carney also reprimanded the government for leaking misleading information regarding the grand jury proceedings to the news media. It set a hearing for the government to show cause as to why the narcotics case against Mr. Nicholas should continue.

At trial, he court also set aside Mr. Samueli's plea of guilty to making alleged false statements to the SEC following his testimony in Mr. Ruehle's and Mr. Nicholas' trial, stating that he had difficulty finding how Mr. Samueli had committed any crime. Judge Carney found that the government had pressured Broadcom into terminating Mr. Samueli, calling the government's treatment of him "shameful."

The court furthermore criticized the government for leaving Mr. Dull "hanging in the wind" for two years, treating him as an alleged co-conspirator but not charging him. The prosecution had entered a nonprosecution agreement with Mr. Dull after threatening to charge him with perjury based upon statements which Mr. Dull intended to make in his testimony in the Ruehle/Nicholas trial.

The extensive allegations of prosecutorial misconduct in the case against Mr. Nicholas and the other defendants included an allegation by the defense that the government had used Mr. Nicholas' 13 year-old son to gather evidence against his father.

Defendant in Stock Option Backdating Case Requests Hearing Based on Prosecutorial Misconduct/Interference with Witnesses

As reported by Law.com, Bruce Karatz, Chief Executive Officers of KB Home, a home construction corporation based in Los Angeles, California, was indicted in the action of U.S. v. Nicholas, 2:09-cr-00203-ODW (C.D.Ca. 2009), on 20 counts of fraud for defrauding the company and its shareholders of millions of dollars in undisclosed backdated stock option over a period of seven years, and concealing the fraud from KB Home's  directors, compensation committee and shareholders. Karatz's trial in the U.S. District Court for the Central District of California is scheduled to begin on February 23.

Karatz's attorneys have requested a hearing regarding whether prosecutorial misconduct has tainted the government's case against Karatz. Karatz contends that two witnesses for the government--James Johnson, former Chairman of the Board of Directors' Compensation Committee for KB Home, and Gary Ray, former Vice President of Human Resources--initially believed that the stock options grant practice was lawful, but changed their position following contacts with the prosecution. Karatz's lawyers want to examine Johnson regarding why he denied allegedly defending KB Home's option granting process during an internal investigation by the company's outside counsel in his statements to prosecutors. 

The defense also wants to question Ray, who has pled guilty to obstruction of justice and is cooperating with the government, regarding why he had allegedly previously maintained that the process was "lawful and proper." Following is a link to

Karatz's Motion for Evidentiary Hearing Regarding Testimony of Crucial Witnesses


Karatz's motion is based on an order in December by U.S. District Judge Cormac Carney in the action of U.S. v. Nicholas, SACR 08-00139 CJC (C.D.Ca. 2008), another backdating case, in which the Court dismissed the government's indictment against co-founder of Broadcom Corp., Henry Nicholas, and former Broadcom Chief Financial Officer William Ruehle, blasting the prosecution for "distorting the truth-finding process" by intimidating and improperly influencing key witnesses. Karatz also relies on the Ninth Circuit Court of Appeals' overturning last August of the conviction of former Chief Executive Officer for Brocade Communication Systems, Inc., Gregory Reyes, for backdating based on false statements by the prosecution in closing arguments that Brocade's finance department didn't know about backdating. A hearing on Karatz's motion has been scheduled for February 8.