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

Well, first of all, even if you like the Colts and Peyton Manning (I do), you still have to be happy for the Saints and the City of New Orleans. What a great American story.

Back to business though, the Troubled Asset Relief Program Inspector General (TARP IG), Neil Barofsky, announced in his January 20, 2010 report that TARP has continued to develop into a sophisticated white-collar investigative agency. Through December 31, 2009, TARP has opened 86 and has 77 ongoing criminal and civil investigations. These investigations include complex issues concerning suspected TARP fraud, accounting fraud, securities fraud, insider trading, bank fraud, mortgage fraud, mortgage servicer misconduct, fraudulent advance-fee schemes, public corruption, false statements, obstruction of justice, money laundering, and tax-related investigations.

The Inspector General (IG) highlighted three current investigations. First, the IG remarked that Omni National Bank (“Omni”) a national bank headquartered in Atlanta with branch offices in Birmingham, Tampa, Chicago, Fayetteville, N.C., Houston, Dallas, and Philadelphia continued to be under scrutiny. Omni failed and was taken over by the Federal Deposit Insurance Corporation (“FDIC”) on March 27, 2009. Prior to its failure, Omni had applied for but had not been approved for TARP funds. TARP has participated in several investigations concerning Omni that have led to criminal charges as part of a mortgage fraud task force that includes TARP, the U.S. Attorney’s Office for the Northern District of Georgia, the Office of the Inspector General of the Federal Deposit Insurance Corporation (“FDIC OIG”), the Office of the Inspector General of the Department of Housing and Urban Development (“HUD OIG”), the Federal Bureau of Investigation (“FBI”), and the U.S. Postal Inspection Service.

TARP, the IG noted continues to play a significant role in the investigations by the Office of the New York Attorney General, the U.S. Attorney’s Offices for the Southern District of New York and Western District of North Carolina, the Securities and Exchange Commission (“SEC”), and the FBI into the circumstances of Bank of America’s merger with Merrill Lynch and its receipt of additional TARP funds.

And, finally, as previously reported, in August 2009, TARP, along with the FBI, FDIC OIG, and HUD OIG, conducted search warrants at the offices of Colonial Bancorp and Taylor, Bean & Whitaker (“TBW”). On December 16, 2009, TBW consented to its debarment from participating as an originator of Federal Housing Administration (“FHA”)-insured mortgages. HUD also terminated TBW as a Government National Mortgage Association (“Ginnie Mae”) issuer of mortgage-backed securities and took control of TBW’s $25 billion Ginnie Mae portfolio. In conjunction with the suspensions, HUD also proposed debarments of two officers of TBW. On August 7, 2009, Colonial reported that it is the target of a criminal probe. The investigation, the IG noted is ongoing.

The federal government’s enormous investment of monies into the TARP program and the establishment of the TARP IG, means a continued focus on financial crimes in the future.
 

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The government’s case in many instances will evolve or shift to some extent over the course of a criminal prosecution. It may be a long time between indictment and trial, and the prosecution may come into possession of new evidence before trial, or may not have thoroughly reviewed the evidence which it does possess until after the return of the indictment. In addition, the prosecution may adjust its arguments or evidence in reaction to the defense. Whatever the reason, the prosecution in many criminal cases may determine to argue or present evidence at trial regarding a theory of criminality which differs to some degree from the crimes alleged in its original indictment. A thorough prosecutor will sometimes seek to provide for such a shifting theory by obtaining a superseding indictment from the grand jury, but in other cases the prosecution may not notice any need to do so or may simply neglect to do so. In any event, attorneys should carefully evaluate the prosecution’s arguments and proof at trial, as well as the trial court’s instructions to the jury, in order to determine whether a variance or amendment of the indictment has occurred. Following is a brief survey of the Eleventh Circuit Court of Appeals’ current position on amendments to or variances with the indictment.

“A constructive amendment occurs when the essential elements of the offense as alleged in the indictment are altered to broaden the potential bases for conviction beyond what the indictment contains.” United States v. Tampas, 493 F.3d 1291 (11th Cir. 2007) (citing United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004); United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990)); see also United States v. Ward, 486 F.3d 1212, 1227 (11th Cir. 2007). A constructive amendment of the indictment constitutes per se reversible error because it violates a defendant’s Fifth Amendment right to be tried on charges presented to the grand jury. See United States v. Tampas, 493 F.3d 1291 (11th Cir. 2007) (citing United States v. Weissman, 899 F.2d 1111, 1114 (11th Cir. 1990)). Under the Fifth Amendment, “a defendant can only be convicted for a crime charged in the indictment. It would be fundamentally unfair to convict a defendant on charges of which he had no notice.” Ward, at 1227 (citing Keller, at 632-33). The mere presentation of evidence not referenced in the indictment, such as pursuant to Federal Rule of Evidence 404(b), does not constitute an amendment or variance. See United States v. Lavigne, 282 Fed.Appx. 790, 793 (11th Cir. 2008) (unpublished).

In contrast, “a variance occurs when the facts proved at trial deviate from the facts contained in the indictment but the essential elements of the offense are the same.” Ward, 486 F.3d at 1227 (citing Keller, at 634; United States v. Flynt, 15 F.3d 1002, 1005-06 (11th Cir. 1994)). A variance only requires reversal where the defendant can establish that his or her rights were substantially prejudiced. Id. (citing Keller, at 633).

The Court has found no constructive amendment where an indictment charged the defendant with distributing crack cocaine and the trial court instructed the jury that it could find the defendant guilty if he had distributed either cocaine or crack cocaine, based upon the fact that the type of drug is not an element under the controlled substance statute, 21 U.S.C. § 841, United States v. Porter, 293 Fed.Appx. 700, 703, 04 (11th Cir. 2008) (unpublished); where the government argued in its closing arguments that it need not prove that all of the defendants named in the indictment were members of the scheme, but the indictment charged the defendant with conspiring with two named co-defendants as well as “other persons” United States v. Nunnally, 249 Fed.Appx. 776, 778 (11th Cir. 2007) (unpublished); where the trial court failed to instruct the jury that it had to find that the defendant embezzled a specific amount, but the indictment alleged that the defendant embezzled property having a value in excess of $5,000, Tampas, at 1291; where the trial court instructed the jury that it could still convict the defendant on the substantive mail and wire fraud counts of the indictment if it was unable to reach agreement on the conspiracy charge did, despite the fact that the government had referenced the conspiracy in the substantive counts of the indictment, Ward, at 1227, 28; where, despite the fact that the indictment alleged that the defendant possessed “more than 20 kilograms of cocaine,” the trial court instructed the jury that it could find the defendant guilty if it found that he possessed “a measurable amount” of a controlled substance, United States v. Knight, 213 Fed.Appx. 835, 838, 39 (11th Cir. 2007) (unpublished); where the government alleged in its indictment that the defendant committed an act “on or about” a particular date, but the proof at trial showed that the act was committed on a different date, United States v. Strevell, 185 Fed.Appx. 841 (11th Cir. 2006) (unpublished); where the indictment charged the defendant with an offense involving cocaine, but the proof at trial and the trial court’s jury instructions referred to crack cocaine, United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999); where the government’s indictment alleged that a certain person was the victim of the defendant’s extortion, but the proof at trial demonstrated that the person had no connection with the money obtained, United States v. Flynt, 15 F.3d 1002, 1006 (11th Cir. 1994); where the district court deviated in its instructions to the jury from the allegations in the indictment concerning a non-essential element of the crime, United States v. Lignarolo, 770 F.2d 971, 981 (11th Cir. 1985); where the government proved events of a conspiracy at trial which were not listed in the overt acts section of the indictment, United States v. Gold, No. 83-3231, 83-3230, 83-3267, 83-3239, 1984 WL 48339 (11th Cir. 1984); and where the government dropped two alleged co-conspirators from its conspiracy allegations at trial, United States v. Davis, 679 F.2d 845, (11th Cir. 1982).

However the Eleventh Circuit has found constructive amendments of indictments and improper broadening of the potential bases for conviction where the indictment charged the defendants with knowing or having reasonable cause to believe that pseudoephedrine would be used to manufacture methamphetamine, but the trial court instructed the jury that it could convict the defendants if it found that they knew or had reasonable cause to believe that the pseudoephedrine would be used to make “any controlled substance,” Narog, at 1249; where the government charged that the defendant knowingly and “willfully” committed money laundering, but the court redacted the term “willful” from its charge on the definition of “intentional,” United States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995); where the indictment alleged that the defendant conspired with a particular person and the trial court instructed the jury that it could convict the defendant if it found he conspired with “any” person, Keller, at 636; where the RICO charges in the indictment charged that the “enterprise” was a particular organized crime family but the court instructed the jury that it could convict the defendants if it found a different enterprise, United States v. Weissman, 899 F.2d 1111, 1115 (11th Cir. 1990); and where the trial court instructed the jury that it could convict the defendant if it found the elements of an offense which had not been charged in the indictment, United States v. Peel, 837 F.2d 975, 979 (11th Cir. 1988).

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In an opinion issued on Tuesday, Montejo v. Louisiana, --- S.Ct. ----, 2009 WL 1443049 (2009), the Supreme Court removed a layer of protection of criminal defendants against coercive and badgering police interrogations by overruling, Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404 (1986), in which the Court had held that “if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.”

The petitioner in Montejo was arrested in connection with a robbery and murder and waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), while being interrogated by police detectives. A preliminary hearing was then held in which the court ordered an indigent defender to represent the petitioner. After the hearing, two detectives visited the petitioner and requested that the petitioner lead them to the murder weapon. The detectives read the petitioner his Miranda rights, and the petitioner proceeded to go along with the detectives, writing an inculpatory letter of apology to the widow of the victim in the process. Only following this excursion did the petitioner meet his court-appointed attorney and consult with him. The State admitted the petitioner's letter of apology against him at trial, and the petitioner was convicted of first degree murder and sentenced to death.

The petitioner appealed, arguing that the State's admission of the letter was error pursuant to Jackson. The Louisiana Supreme Court held that Jackson is not triggered unless and until a defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. It held that because the court had appointed the petitioner counsel while the petitioner stood mute, the petitioner had not sufficiently asserted his right to counsel. The Courtaffirmed his conviction and the Supreme Court granted certiorari.

Justice Scalia, writing for the majority, observed that some States require an indigent defendant to affirmatively request counsel before an appointment is made, while other States automatically appoint counsel upon a finding of indigency. Justice Scalia recognized the problem that "Defendants in States that automatically appoint counsel would have no opportunity to invoke their rights and trigger Jackson, while those in other States, effectively instructed by the court to request counsel, would be lucky winners." The majority rejected the petitioner's position that, once a defendant is represented by counsel, police may not initiate any further interrogation.

The majority proceeded to overrule Jackson and its holding that waivers of a defendant's right to counsel after the right to counsel is asserted are presumed invalid. The Court noted that it had created the presumption in Jackson by making an analogy to a similar prophylactic rule which the Court had established in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981), for the Fifth Amendment right to have counsel present at any custodial interrogation under Miranda. The majority held that where a defendant does not invoke his right to counsel, such as where a court appoints counsel in the absence of any request by the defendant,there is no initial election "that must be preserved through a prophylactic rule against later waivers." It noted that the benefits of the prophylactic rule of Jackson were outweighed by its costs in "hindering “society's compelling interest in finding, convicting, and punishing those who violate the law." The majority observed that, even without the rule of Jackson, defendants are still entitled to the protections of Miranda, Edwards and Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486 (1990). It held that "Jackson not only 'operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,' ... but also deters law enforcement officers from even trying to obtain voluntary confessions."

Justices Stevens, Souter, Ginsburg and Breyer all dissented.

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Our summary retrospective of Justice Souter’s contributions to the Supreme Court’s criminal law jurisprudence continues. In addition to writing for the majority in many important criminal decisions, Justice Souter has authored concurring decisions in many cases, including criminal cases. While the Justice’s concurrences in criminal cases have typically been brief, Justice Souter has frequently raised important alternative views on issues on which he disagrees with the majority, or raises issues which the majority has overlooked.

Most recently, in Gall v. U.S., 128 S.Ct. 586 (2007) Justice Souter authored a concurring opinion in which he expressed his view that the best resolution of the tension between the Sixth Amendment right to trial by jury and consistency in sentencing was for Congress to enact a new statutory system of mandatory sentencing guidelines which provide for jury findings on all facts necessary to set the upper range of sentencing discretion. Justice Souter also concurred with the majority in U.S. v. Knights, 534 U.S. 112 (2001), in which the majority held that no more than reasonable suspicion was required to support a warrantless search of a probationer’s apartment, reserving the question of whether the Court’s holding in Whren v. U.S., 517 U.S. 806 (1996) that the subjective intentions of investigating officers play no role in searches based upon probable cause should also extend to searches based upon reasonable suspicion. In Illinois v. McArthur, 531 U.S. 326 (2001), the majority of the Court held that police officers preventing the petitioner from entering his home unaccompanied by an officer for about two hours while the officers obtained a warrant to search the home constituted a reasonable seizure of the premises pursuant to the Fourth Amendment. Justice Souter joined the majority in a concurring opinion in which the Justice observed that the exigent circumstances created by the risk that the defendant would have destroyed the illegal drugs stashed on the property would have justified a warrantless search of the premises by the police. In his concurrence in Florida v. White, 526 U.S. 559 (1999), which involved the warrantless seizure of an automobile from a public place by police as contraband under Florida’s contraband forfeiture law, Justice Souter took issue with the majority’s holdings to the extent that they endorsed the warrantless seizure of anything alleged to be “contraband,” holding that “[t]he Fourth Amendment does not concede any talismanic significance to use of the term ‘contraband’ whenever a legislature may resort to a novel forfeiture sanction in the interest of law enforcement, as legislatures are evincing increasing ingenuity in doing…” (citing Bennis v. Michigan, 516 U.S. 442, 443-446, 458 (1996); U.S. v. James Daniel Good Real Property, 510 U.S. 43, 81-82 & n. 1 (1993) (Thomas, J., concurring in part and dissenting in part)). And in Carlisle v. U.S., 517 U.S. 416 (1996), Justice Souter disagreed with the majority opinion that a district court possesses inherent authority to grant a motion for a judgment of acquittal, observing that Congress might possess the power to abrogate courts’ inherent authority legislatively, citing Federal Rule of Criminal Procedure 29(c).

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Spam e-mail is nearly universally despised. However, recipients of spam may not fully appreciate the inventiveness and intricateness of some spammers' methods, however dubious or illegal, before considering the charges against Missouri residents Amir Ahmad Shah, age 28, and Osmaan Ahmad Shah, age 25, who operated a company I2O. As reported by IDG News Service, the brothers, along with Paul Zucker of New Jersey and Liu Guang Ming, a citizen of China, were indicted today by a federal grand jury for an e-mail spamming scheme which targeted more than 2,000 U.S. colleges and universities and sold more than $4.1 million worth of products to students. The scheme involved e-mail extracting programs which illegally harvested more than 8 million student e-mail addresses. The defendants then sent targeted spam e-mails to students in at least 31 campaign selling a variety of products and services, including digital cameras, MP3 players, teeth whiteners, pepper spray, magazine subscriptions and spring break travel offers. They developed programs to falsify header information and rotate URLs, subject lines, content, reply addresses and other information to avoid spam filters. The defendants would include false and misleading information in the e-mails suggesting an association with the college or university, using fictitious names, claiming to be "campus representatives," and that the businesses selling the products were "alumni owned." They also created dozens of identical websites for each e-mail campaign to conceal the source of the e-mails and to keep the e-mails from being blocked by spam filters, and initially set up the hosting for the websites in China. The defendants made money through referral fees for sending spam for products and services sold by others, and by buying products in bulk and reselling them. They also offered "offshore hosting" services for other spammers.

Federal investigators began investigating the Shah brothers in 2005, after University of Missouri officials identified them as the source of the spamming. The brothers proceeded to remove all Missouri students' e-mails from their lists, but continued to spam other colleges and universities. The defendants are charged in the indictment with 26 counts of aiding and abetting each other to access a protected computer without authorization and transmit commercial e-mails with the intent to deceive or mislead the recipients about the origin of the messages, and the indictment seeks $4.1 million in forfeiture and other property. Colleges and universities have spent large amounts repairing the damage from the hacking and spamming and in implementing protective measures.

Spamming is regulated by the CAN-SPAM Act of 2003, codified at 15 U.S.C. s 7704, which prohibits false, misleading or deceptive information in spam, as well as for sexually explicit spam without sufficient warnings, and carries a maximum sentence of 5 years imprisonment. Some sources estimate that spam now comprises 95% of the e-mails in the world.

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In follow up to the post earlier today on the Fifth Circuit's letter to counsel in the Minor case, it seems that the Fifth Circuit is obviously troubled by the proof, if any, between the agency receiving federal funds, the Administrative Office of the Mississippi Courts, and the allegedly corrupt activity of Minor and the judges (Whitfield and Teel) that he sought to influence. First, the limiting cases on 666 violations have generally interpreted that statute very broadly, but a reasonable reading of the Court’s questions indicates a concern for the level of proof of the “nexus” between the Administrative Office of the Mississippi Courts and any agent, or activity of a particular matter before the judges.

Secondly, if such a nexus is required, it seems the Court is concerned whether the issue has been properly preserved both at trial and on appeal.

Thirdly, and most surprisingly, the Fifth Circuit, obviously knows what effect a reversal of those counts would have on the other counts of conviction, “even if the convictions on those other counts were not to be reversed?” The posing of that question by the Fifth Circuit seems almost gratuitous. Counts of conviction are routinely reversed that either don’t effect the sentence imposed, or that require re-sentencing consistent with the Court’s opinion. One has to look no further that Governor Siegelman’s recent case in front of the Eleventh Circuit. Quite frankly, re-sentencings happen all of the time after the reversal of some counts of conviction. Just odd that the Fifth Circuit would pose that question publicly.

As for Paul Minor’s quest for vindication before the Fifth Circuit, sadly, the court's letter indicates that they are going to affirm the other counts of conviction.

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Yesterday, the Fifth Circuit in a letter to counsel, requested additional briefing regarding Counts 11, 12, 13, and 14, which allege a violation of 18 U.S.C. § 666 (what I've always referred to as the devil statute). In Minor the government charged that the agency receiving government funds was the administrative office of the courts of Mississippi. Generally you see a Section 666 violation when someone has stolen monies from say, a local transit authority, which receives in excess of $5,000 in a given year (thereby conferring federal jurisdiction). And, we all know that almost any program receives that amount from the federal government now.

The Fifth Circuit requested additional briefing on the following questions:

1) What evidence shows that the Mississippi judges were influenced or rewarded in connection with matters related to the Administrative Office of the Courts of Mississippi?

2) Describe the nexus that the “in connection with” clause of 666 requires between the Administrative Office of the Courts of Mississippi and the particular matters in front of the judges supposedly influenced by Minor’s actions.

3) What was the proof of that nexus?

4) Did the appellants adequately preserve the issue in the district court and did they adequately raise the issue on appeal?

5) If the Fifth Circuit reverses any of the Counts 11-14, what effect would that have on any of the other counts of conviction, “even if the convictions on those other counts were not to be reversed?”

The Court gave the parties until May 15 to file briefs of less than 15 pages.

More commentary on this later.
 

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As previously reported here, the Department of Justice and UBS entered into a deferred prosecution agreement wherein UBS is to pay a fine and disclose to DOJ the names of its some 52,000 clients that have used UBS to park income in violation of U.S. tax laws. The New York Times reports today that the President of Switzerland has asked Treasury Secretary, Timothy Geithner, to drop what the Times inexactly reports to be a lawsuit to disclose the names of the UBS clients. In fact, under the deferred prosecution agreement, UBS has to cooperate with DOJ by providing the client’s names. My guess, Mr. Geithner, who had his own tax issues, isn’t going to touch this one. DOJ has already prosecuted two folks whose names UBS disclosed and, inevitably, many more such prosecutions will follow.

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Today the Eleventh Circuit held in United States v. Carter, No. 08-14460, that a search of the home of a probationer is reasonable under the Fourth Amendment, if supported by reasonable suspicion. Carter was on probation in 2007, however, his probation did not contain a Fourth Amendment waiver provision. His probation officer though, was suspicious that his lifestyle could not be supported by the unskilled labor he performed and he, along with other probation officers, searched Carter’s town home, which lead to him being charged with possession with intent to distribute crack and possession of a firearm by a convicted felon.

Carter moved to suppress the evidence discovered during the warrantless search. Relying on the balancing test set forth in United States v. Knights, 534 U.S. 112 (2001), Judge Carnes writing for the Court, noted that the Knights case first addressed the probationer’s individual privacy interests - in short - not much. Then Judge Carnes addresses the “governmental interests at stake” - in short - for a guy like Carter - prior violent crime and drug conviction - “the government’s interest in monitoring the probationer is particularly high.” This may be a common sense conclusion, but Judge Carnes draws this conclusion virtually out of thin air, citing only U.S.S.G. 4B1.1(a)(providing enhanced penalties for criminals with a history of drug felonies or crimes of violence). However, U.S.S.G. 4B1.1 says nothing about probationers, or the government’s interest in monitoring them more closely. 

Judge Carnes ultimately holds that “the search in this case need only be supported by reasonable suspicion to be reasonable under the Fourth Amendment” and that the search of Carter’s home was permissible.

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In a case of remarkable chutzpah, Mark Anthony McBride, plead guilty in Atlanta on Friday to a two count information charging him with one count of conspiring to obtain million of dollars in fraudulent mortgages and other loans and one count of bankruptcy fraud.

McBride plead to a scheme he started in 2001 after being released from prison and continued until he reported back to prison in 2002. As soon as he was released from prison in 2006 he was back at making a living in the only, apparent. fashion he knew, being a con artist by completing fraudulent mortgage loans, car loans, lines of credit and continued his scheme until his arrest in September of 2008 for violating his federal probation.

Showing exceptional criminal ingenuity, McBride was able to retain the proceeds of his fraud by filing 8 bankruptcies in Georgia, Alabama and South Carolina.

Methinks McBride's schemes have come to an end. He faces up to 35 years in prison at his sentencing, which is scheduled for July 9, 2009.

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U.S. Attorney David Nahmias said on Thursday that more charges are expected in the continuing investigation of inmate abuse at the Fulton County Jail. On Thursday, two lieutenants, Lt. Earl Glenn and Lt. Robert Hill, pleaded innocent to federal charges of using excessive force and lying to FBI agents investigating the case.

Nahmias has taken an unusual interest in this case, announcing last month the initial arrest of Curtis Jerome Brown, on civil rights, obstruction and false statement charges.

Last week Nahmias said that more charges were expected in the investigation of inmate abuse.

Judge Shoob has monitored conditions at the jail following a lawsuit filed on behalf of inmates accusing the jail of overcrowding and dangerous conditions.

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John McTiernan, who directed “Die Hard” and “Predator,” was indicted on Friday by a federal grand jury in Los Angeles, on two counts of making false statements to the FBI in their investigation of private investigator John Pellicano and one count of perjury for lying to a federal judge while seeking to withdraw an earlier guilty plea. The AJC has the story here.

In April 2006, McTiernan waived indictment by a grand jury and entered a plea to one count of lying to FBI agents in violation of 18 U.S.C. § 1001. When the government informed McTiernan’s counsel that his cooperation had not been significant enough to warrant a departure from the sentencing guidelines and that the government would seek a sentence of imprisonment, McTiernan, now represented by new counsel, moved to withdraw his guilty plea. The district court denied his motion to withdraw his guilty plea and sentenced McTiernan to 4 months in prison. McTiernan appealed and the Ninth Circuit Court of Appeals reversed his sentence. United States v. McTiernan, 546 F.3d 1160 (9th Cir. 2008). Interestingly, the district judge then permitted McTiernan to remain free on bond pending his appeal, which, obviously was successful.

The government has now upped the ante and has charged McTiernan with two false statements counts and one perjury count. Sometimes we have to be careful about what we ask for. McTiernan has obviously bought himself a trial, and, in all likelihood, a stiffer sentence, if convicted.
 

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