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

It is college football season, and appropriately the most notable news in an otherwise slow Federal criminal news day appears to be that the Federal Bureau of Investigation has interviewed John Bond, a former quarterback for the Mississippi State Bulldogs, regarding Auburn quarterback Cam Newton, according to the Atlanta Journal and Constitution.

Bond told Mississippi State officials in January that a former teammate had asked him for $180,000 in order to secure Newton's commitment to the Bulldogs. The teammate was subsequently revealed to be Kenny Rogers, another former player for the Bulldogs and owner of a company called Elite Football Preparation, which holds camps in Alabama, Chicago and Mississippi, and matches football prospects with colleges. Rogers, in turn, has publicly stated that he met with Newton's father, Cecil Newton, as well as assistant coaches for MSU, on November 27, 2009, in Starkville, Mississippi, and that Newton demanded between $100,000 and $180,000 in order to ensure that his son signed with the Bulldogs.

Newton originally signed a letter of intent with the University of Florida, where he spent the 2007-2008 season as a back-up quarterback to Heisman Trophy winner Tim Tebow. He subsequently transferred to Blinn College in Texas, where he led the Blinn Buccaneers to the NJCAA National Championship before signing with Auburn. According to ESPN, Cecil Newton told Rogers at the meeting that his son's transfer to Auburn was not going to be "free." Rogers was referred to Mississippi State booster and former Bulldogs offensive lineman Bill Bell. Bell confirmed to ESPN that Rogers did contact him to ask for money in exchange for Newton signing with Mississippi State. Rogers has stated that he doesn't know if Cam Newton knew about his father's demand for money. However, ESPN reported that recruiting sources for Mississippi State had disclosed that they had had telephone conversations with Cam Newton, as well as his father, that Newton's college choice would be based on a pay-for-play plan.

The allegations are further not limited to Newton's dealings with Mississippi State. One recruiter has reported that Cam Newton telephoned him after committing to Auburn and informed him that he had chosen Auburn over Mississippi State because "the money was too much."

Mississippi State compliance officials reported the allegations to Southeastern Conference compliance officials in January. The NCAA and the FBI are both conducting investigations into these allegations. The news has cast a shadow over Auburn's so-far undefeated season, and Newton himself, the current leading contender for the Heisman Trophy. Newton's reputation was already previously marred by charges of burglary, larceny and obstruction relating to an alleged stolen laptop while he was at the University of Florida.

The Federal investigation could result in criminal proceedings for conspiracy, fraud, bribery and other offenses. In a case which college football fans will have some familiarity with, U.S. v. Young, NO. 03-20400 BV, (W.D.Tenn. 2004), Tennessee businessman and University of Alabama booster Logan Young was indicted for structuring, in violation of 31 U.S.C. § 5324; Travel Act violations under 18 U.S.C. § 1952; and conspiracy, in violation of 18 U.S.C. § 371, for paying $150,000 to Lynn Lang, coach of Trezvant High School in Memphis, to ensure that high school defensive player Albert Means signed a letter of intent with Alabama. Young, Lang and Trezvant Assistant Coach Milton Kirk were subsequently convicted. Alabama was placed on probation for five years by the NCAA as a result of the conduct, and given a two year bowl ban. The University of Kentucky was given a one year bowl ban for a $6,000 payment by a booster to Lang in order to have Means visit the school. Similar misconduct was alleged against the University of Georgia, the University of Arkansas and the University of Memphis, however those schools were not sanctioned. An old Sports Illustrated article has more on the Means scandal.

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The New Jersey Law Journal contains an article concerning the continuing struggles of federal district courts to come to terms with the discretion which the Supreme Court granted to them in sentencing in U.S. v. Booker, 543 U.S. 220 (2005). The article notes that the courts continue to follow the Guidelines, but that there has been a trend away from strict adherence to the Guidelines.

Statistics show that in 2009, slightly more than one half--56.8 percent--of federal sentences were within the sentencing ranges recommended by the Guidelines--down from 61.7 percent in 2006. However, the percentage of sentences within the recommended Guidelines range varies from district to district--from a low of 27.8 percent for the District of Arizona and 30.8 percent for the District of Vermont to a high of 80.7 percent for the Southern District of Mississippi and 92.3 percent for the District for the Northern Mariana Islands. Nationwide, courts varied downward from the recommended Guidelines ranges in 41.2 percent of cases. Statistics also show that courts were most likely to adhere to advisory Guidelines ranges in drug and burglary cases, and least likely in kidnapping or bribery cases.

The article quotes Professor Douglas Berman of Ohio State University and the author of the influential Sentencing Law and Policy blog, who notes that the Supreme Court has consistently upheld district judges' exercise of their post-Booker sentencing discretion.

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Judge Davidson of the Northern District of Mississippi denied Circuit Judge Bobby Delaughter’s Motions to Dismiss the judicial bribery and mail fraud counts in the Dickie Scruggs related judicial bribery prosecution. Count One charges a conspiracy to violate 18 U.S.C. § 666, the federal bribery statute. The defense alleged that Count One failed to charge an offense because the bait dangled in front of Judge Delaughter, consideration for a federal judgeship, is not a thing of value. Giving short shrift to the motion to dismiss as more akin to a civil motion for summary judgment, Judge Davidson, opines that the government is entitled to put their proof on at trial.

As to the mail fraud counts, the defense contended that they failed because an ex parte communication does not equal a federal crime. Judge Davidson, states that, in fact, the indictment, “alleges that DeLaughter afforded the Scruggs’ legal team secret access to the court, along with the court’s proposed opinions, and therefore, received an unfair advantage in the Wilson v. Scruggs litigation.” Of course, this just simply makes sense, and the defense’s attempt to minimize this conduct will blow up on them if they take this case to trial. And, quite frankly, it is almost inconceivable that any fair minded judge could argue with a straight face that unfettered, ex parte access to the judge, in what is supposed to be an adversary system is not a violation of honest services mail fraud. Couch it as they may, Judge Delaughter’s counsel are straining at gnats in attemmpting to put the broad brush of innocence on this conduct.
 

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