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

The United States Supreme Court has sped up the clock in criminal cases with consequences for how attorneys practicing federal criminal law will practice in the future. The Speedy Trial Act of 1974, 18 United States Code Section 3161 et seq., requires that the trial of a criminal defendant begin within 70 days of the date he is charged or makes an initial appearance, whichever is later. The Act, however, contains numerous periods of delay which are not counted when computing the 70 day time frame. Some of the periods of delay are “automatically” excluded from the 70 day time period, and are contained in Section 3161(h)(1). Other periods are only excludable if the district court makes specific findings, pursuant to Section 3161(h)(7), which provides that certain time periods “may” be excludable if the judge finds that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial,”

One of the “automatic” exclusions is for “(D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion…” 18 United States Code Section 3161(h)(1)(D). Courts traditionally read this provision to include additional time granted to defendants to file pretrial motions. Yesterday, however, the Supreme Court issued its opinion, authored by Justice Clarence Thomas, in Bloate v. U.S., No. 08–728, available here, in which the majority held that “delay resulting from pretrial motions is automatically excludable, i.e., excludable without district court findings, only from the time a motion is filed through the hearing or disposition point specified in the subparagraph, and that other periods of pretrial motion-related delay are excludable only when accompanied by district court findings.” (Emphasis in original).

Counsel for Bloate, who was indicted for possession of cocaine, had obtained an approximately one month extension of time to file pretrial motions, and subsequently filed a motion to dismiss the indictment for Speedy Trial Act violations. The district court held that the extension to file pretrial motions was excludable under Section 3161(h)(1)(D) and the Eighth Circuit Court of Appeals affirmed his conviction, however the Supreme Court reversed and remanded. The majority responded to criticisms by dissenting Justices Samuel Alito and Steven Breyer that its holding would force district courts to choose between denying requests for additional time to file pretrial motions and potential dismissal of the indictment, noting that courts may make specific findings that the time is excludable from the Speedy Trial computation under Section 3161(h)(7), and that, even if the indictment is dismissed without prejudice, the government may still re-indict the defendant.

Most criminal cases already move quickly precisely because of the Speedy Trial Act. Conversely, the cases may be complex, preparation of effective pretrial motions may require substantial time and criminal lawyers may be occupied on other cases. Extensions of time to file pretrial motions are a frequently sought remedy. In view of the Court’s holding in Bloate, practitioners now must consider the implications under the Speedy Trial Act in requesting necessary extensions of time. Lawyers will have to consider how any proposed extension should be excludable from the Speedy Trial clock in the interest of justice, and may be forced to agree or stipulate that any extension will be excludable.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

What a weekend for Indy race car driver Helio Castroneves. As famed trial lawyer Roy Black posited here, the government dropped the lone remaining charge against Castroneves on Friday. Although the Order of dismissal did not state a reason for dropping the remaining charge, Mr. Black set out the reasons that he was going to present to the government as to why they should walk away from the last charge: “the government can't retry Helio on conspiracy because of collateral estoppel. If the jury found no tax deficiency on the substantive evasion counts, then there was no unlawful plan. An agreement to comply with the tax code is not a crime. Or, if the jury found no willfulness on the evasion counts, then there can be no willfulness on the conspiracy. Either way we win.”

Then on Sunday, Castroneves won the Indianapolis 500 for the third time! As the Miami Herald reports, the well publicized trial has given Castroneves a measure of perspective, but he still hopes for a fourth Indy title.

• Email This
• Print
• Comments
• Trackbacks

As everyone knows by now, the Department of Justice has moved to dismiss with prejudice the indictment against former Senator Ted Stevens. While the pleadings in this case are extremely detailed in laying out the factual and legal landscape of the government’s misconduct, at the end of the day, it seems the defense had it right when they argued during trial, in one of their many motions to dismiss that “the government’s misconduct was intentional. This case must be dismissed. No other remedy will deter future prosecution teams from engaging in the same tactics. No other remedy will prevent what has happened in this case from happening again.” In that motion, the government set out in exquisite detail how the government agents and attorneys had knowingly withheld Brady material and knowingly put on false and misleading evidence.

After Senator Stevens was convicted one of the co-case agents, Agent Chad Joy, filed a self styled whistle blower complaint that detailed how the lead case agent, Agent Mary Beth Kepner, had intentionally redacted Brady and Jencks Material that the defense was entitled to receive, and how one of the prosecutors, Nick Marsh of the Department of Justice Public Integrity Section, schemed to relocate a prosecution witness, who had also been subpoenaed by the defense.

Of course, when that complaint was made public, defense counsel, again moved to dismiss the indictment arguing that the “complaint submitted by FBI Agent Chad Joy now confirms what the defense has long believed and alleged: the government cheated and lied in order to obtain a verdict against Senator Ted Stevens.”

Litigation then ensued where the district court was trying to sort out who knew what and when. For almost 3 months, Brenda Morris, the lead prosecutor continued to file pleadings defending the government’s actions, that the court ultimately rejected. Judge Sullivan noted that “over and over again the government has been caught in false representations and otherwise failing to perform its duties . . . and over and over again, when caught, the government has claimed that it has simply made good faith mistakes.”

In mid-February the Department of Justice brought in a new team of prosecutors after members of the original team were held in contempt. The district court withheld ruling as to what sanction is to be imposed with respect to that finding of contempt. No doubt collateral litigation will continue regarding the appropriate penalty for the prosecutors’ contumacious conduct.

Ultimately that new team of prosecutors concluded that evidence material to the defense of Senator Stevens was withheld and that government pleadings regarding that material evidence were inaccurate. The government concluded, in moving to dismiss the indictment that “based on the totality of circumstances and in the interests of justice, it will not seek a new trial.”

A press release by Williams & Connolly, Senator Stevens’ counsel, noted that had the district court simply “accepted the word of government prosecutors as is done often in our courts, the extraordinary misconduct would never have been uncovered.”

The DOJ Office of Professional Responsibility is conducting an investigation into the conduct of the government agents and prosecutors.

District Court Judge Sullivan has scheduled a hearing for next Tuesday, April 7, 2009 on the government’s motion to dismiss.

• Email This
• Print
• Comments
• Trackbacks

In a fascinating case out of the District of Nevada, the Ninth Circuit (opinion available here, 2008 WL 1946744) has affirmed the district court’s dismissal of the indictment against three defendants who were charged in a 64 count indictment with, among other things, wire fraud, securities fraud, and money laundering. The government’s case revolved around what the Ninth Circuit described as a “box job” scheme where a small number of individuals control a corporation’s stock through strawmen officers, directors and shareholders. One of the core allegations was that the defendants allegedly made more than $12 million, which was laundered through the law firm of two of the defendants.

The Motion to Dismiss filed in the district court, available here, outlines a litany of what the district court called “unconscionable” conduct by the government that including Brady and discovery violations as follows: 1) failing to provide the defense with Jencks materials relating to the case agent, 2) failing to disclose the rap sheet and prior convictions of one of the government witnesses, 3) failing to produce notes a witness had provided to the investigating agent, 4) failing to disclose that the investigating agent had countenanced the continued unlawful activity of a cooperating witness, 5) failing to produce documents essential to the “box job” allegation, 6) failing to disclose memoranda that contradicted witness testimony, and 7) producing some 650 pages of documents, including rap sheets, during trial. The motion to dismiss was filed during the third week of trial. In declaring a mistrial, the district court noted that the AUSA in charge of the prosecution had acted “flagrantly, willfully, and in bad faith.” 2008 WL 1946744, *4.

In an excellent discussion of the applicable law dealing with dismissal of an indictment for prosecutorial misconduct and whether that ultimate sanction was required here, the Ninth Circuit, noted that the government even conceded that a mistrial was an appropriate remedy, for the government’s violations of “its constitutionally imposed discovery obligations.” Id., *12.  Both the district court and, apparently, the Ninth Circuit, were concerned that any sanction short of dismissal, would have countenanced the government's unlawful conduct.

• Email This
• Print
• Comments
• Trackbacks