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

A seat on the Court of Appeals for the Eleventh Circuit and two judgeships with the U.S. District Court for the Northern District of Georgia remain vacant, as reported in the Atlanta Journal-Constitution. All of the three positions have been vacant for at least a year, with one of the District Court judgeship having been vacant for 31 months. The vacancies have been declared "judicial emergencies" by the U.S. Courts.

On January 26, 2011, President Obama nominated U.S. Magistrate Judge, Linda Walker, and Natasha Perdew Silas, a Federal public defender in Atlanta, for the District Court judgeships. If confirmed by the Senate, they would become the first African-American women District Court judges in the Northern District. Georgia's Senators, Saxby Chambliss and Johnny Isakson, have given blue slips of approval for Judge Walker, but have not for Ms. Silas. The failure to give Ms. Silas a blue slip effectively blocks the Senate from voting to confirm her. The failure has caused friction between the White House, which views Judge Walker and Silas as a package nomination, and Congressional Republicans.

Image source

The Eleventh Circuit vacancy is the result of the retirement of Justice Stanley Birch, who was appointed by President George H.W. Bush in 1990, in August of 2010. The White House has not nominated any replacement for Justice Birch.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As reported by ESPN (and virtually every other media outlet), United States District Judge Reggie Walton of the U.S. District Court for the District of Columbia granted former New York Yankees pitcher Roger Clemens' request for a mistrial in his prosecution on three counts of making false statements, two counts of perjury, and one count of obstruction for his testimony relating to steroid use before the House Committee on Oversight and Government Reform in February of 2008.

The defense request for a mistrial came after prosecutors showed the jury alleged video evidence of Maryland Representative and Committee member Elijah Cummings referencing statements by former Yankees pitcher and Clemens' friend Andy Pettitte that he had told his wife, Laura Pettitte, that Clements had allegedly confessed in 1999 or 2000 to using human growth hormone. The Court had ruled before trial that this evidence was to be excluded from the trial on the ground that Pettitte's wife's statement did not involve direct knowledge of what Clemens had said.

In granting the mistrial, Judge Walton opined that Clemens could not get a fair trial as a result of the introduction of the alleged statements, and apologized to the jury for the waste of their time. The Judge had earlier criticized the prosecution for stating, during opening statements, that Pettitte and former Yankee second baseman, Chuck Knoblauch, and relief pitcher, Mike Stanton, had also allegedly used human growth hormone.

Judge Walton has scheduled a hearing on September 2nd to determine if there will be a new trial of Clemens.  It appears, however, that a second trial of Clemens will not be barred by double jeopardy. As the United States Court of Appeals for the District of Columbia Circuit and other courts have held, "when a mistrial is declared with the consent of the defendant or upon his motion, it is 'ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error.'” Lee-Thomas v. U.S., 921 A.2d 773, 775-76 (D.C. Cir. 2007) (quoting Carter v. U.S., 497 A.2d 438, 441 n. 4 (D.C. 1985); citing Anderson v. U.S., 481 A.2d 1299, 1300 (D.C. 1984)); U.S. v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547 (1971)).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Brad Heath points out a disturbing trend in today's USA Today--federal prosecutions of serious corporate, financial and other white-collar crimes have fallen to new lows. In this age of Enron, Madoff and massive failures of financial institutions, this is a serious breach of the public trust. The article contains a chart which shows that, in fiscal year 2009, the Department of Justice opened only 63 new corporate fraud prosecutions. That is barely one case per year per district and represents a 55% decrease since 2003. Securities fraud charges have decreased 17% and bankruptcy fraud cases have decreased 44% over the same period. The article cites Professor Ellen Podgor of Stetson University College of Law and creator of White Collar Crime Prof Blog who attributes the decline was the result of the Bush administration's push of federal prosecutors and the FBI to focus on terrorism and national security.

However, relief appears to be on the way. The article states that lawmakers have put new pressure on DOJ officials, who have launched thousands of new criminal probes into financial crimes. Congress has approved extra money to target financial crime, and Attorney General Eric Holder announced a new task force to target financial fraud last month. As if to herald a change of direction, prosecutors in New York also announced indictments yesterday against Raj Rajaratnam, founder of Galleon, claiming that the case is the largest hedge fund insider trading case ever. The article also states that the FBI currently has more than 2,800 open mortgage fraud cases..

• Email This
• Print
• Comments
• Trackbacks
• Share Link