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

So whatever happened to indicted billionaire Sir Robert Allen Stanford? Well, not much, as reported by the Houston Chronicle. Stanford, who is charged with allegedly defrauding investors of more than $7 billion, is still incarcerated, despite his extensive efforts to secure release prior to his trial since his arrest in June of last year. Stanford has submitted a report from a physician to U.S. District Judge David Hittner of the U.S. District Court for the Southern District of Texas, in which the physician opines that Stanford is close to “a complete nervous breakdown.” Two psychiatrists have diagnosed Stanford with severe depression as a result of his confinement.

Stanford's counsel complained to the court that Stanford needed to have frequent communication with his defense team in order to review the more than 7 million documents in the case and answer questions by his counsel. Unmoved, Judge Hittner denied Stanford's latest motion for release in an order issued two days before Christmas, and Stanford has appealed the denial.

Stanford's trial is still a year away, scheduled to begin in January 2011. He has denied the government's charges, as well as civil fraud charges brought by the U.S. Securities and Exchange Commission.

Also reported in the Chronicle, similar to confessed attorney/Ponzi schemer, Scott Rothstein, Stanford allegedly had many ties to politicians. The Department of Justice is investigating approximately $2.3 million dollars in alleged contributions from Stanford and his staff to politicians over the past decade, as well as $5 million paid to lobbyists.  Donations by Stanford and his staff included $40,000 to the Senate Republican Campaign Committee, $100,000 to the inaugural committee of George W. Bush and $500,000 to the Democratic Senatorial Campaign Committee. He furthermore set up his own lobbying firm in Washington, D.C. Stanford is alleged to have successfully lobbied to defeat legislation in Congress relating to financial secrecy and offshore banking which would have allegedly revealed his activities.

Stanford allegedly treated politicians to trips to the Carribean, hosting dinners with lobster and caviar. Illustrative of Stanford's high level government contacts was the fact that, mere hours after Stanford was arrested last year, Representative Pete Sessions of Texas, Chairman of the National Republican Congressional Committee, sent Stanford an e-mail stating that he "loved" Stanford and believed in him, and offering his advice or to listen to Stanford. Stanford and his staff contributed $44,375 to Sessions. Stanford entertained numerous Congressional delegations to the Carribean nation of Antigua, where Stanford was based, at a total cost of $311,307. Stanford also hosted a wedding dinner for New York Representative John Sweeney at a five-star restaurant owned by Stanford in Antigua, and held a cocktail fundraiser for Ohio Representative Bob Ney in Miami. Ney was later sentenced to 30 months imprisonment for accepting money and gifts from convicted lobbyist Jack Abramoff.

Stanford opened a trust office in Miami in 2001, which allegedly enabled his bank to sell millions in certificates of deposit. This event allegedly prompted him to become involved in politics in order to prevent legislation which would have forced Stanford to reveal the source of the flow of monies to the office.

19 politicians have returned a total of $87,800 in contributions from Stanford to the court-appointed receiver. Other politicians have stated that they have donated money contributed by Stanford to charity, including $45,000 by Senator Bill Nelson of Florida, and $11,800 by Representative Charlie Rangel.

• Email This
• Print
• Comments
• Trackbacks

The trial of Bear Stearns hedge fund managers Ralph Cioffi and Matthew Tannin continues in the Eastern District of New York. The Court has heard five days of testimony from government witnesses and admitted voluminous documents, mostly e-mail messages, as reported by Dan Slater of the New York Times.

However, the case does not appear to be going as the government had envisioned, with its own witnesses failing to support the allegations in the government's indictment. Even presiding U.S. District Judge Frederic Block has appeared irritated with the prosecution, at one point commenting on the prosecution's introduction of so many documents.

Observers have noted that the government's alleged case against Cioffi and Tannin is built upon e-mails whose meaning often changes when placed in their surrounding context. For instance, the prosecution has introduced an alleged incriminating e-mail--and one which it has highly touted--an April 22, 2007, e-mail from Tannin to Cioffi in which Tannin allegedly stated that “the whole subprime market is toast.” However, as reported by the Times, Tannin also stated in the same e-mail:

Every so often I worry a bit that because you have been so spectacularly successful so far in almost every way, you might be taking this opportunity to second guess yourself. Well, just in case you are, don’t. At the end of the day, I think we will both be able to look at all that happened and all that we have done and learn from what has gone well as well as from what hasn’t … What a shame it would be for us to not take all we have learned and apply it going forward.

Tannin continued:

We have lived a full and exciting life in the midst of an increasing [net asset value] and I see no reason why the fullness and positive excitement we experience should be any different if the trajectory of NAV changes. On every level I did not think a mature person or any person who is at peace with themselves would allow NAV to be the determining factor in anything except their W2 calculation, and Turbo Tax seems to do that effortlessly.

Former Bear Stearns private client representative/broker George Buxton also testified for the government. Buxton had stated in a pre-trial interview with the government, in regard to the allegation that Cioffi had withdrawn $2 million of his own money from the hedge fund, that it was like “the captain beating the women and children off the boat.” However, while testifying on cross-examination last week, Buxton stated that he had been unaware that Cioffi had reinvested the withdrawn funds in another Bear Stearns fund and admitted that if he had been aware of this fact, he would not have made the "boat" comment. Furthermore, when prosecutor Ilene Jaroslaw asked Buxton whether portfolio managers who intentionally give investors false and misleading information were guilty of a crime, Judge Block sustained an objection by the defense and gave the prosecution a stern warning.

Finally, additional evidence that the prosecution may be having a more difficult road than expected comes in the form of a letter request by the prosecution to Judge Block to introduce evidence of alleged uncharged acts by Cioffi and Tannin, filed on Sunday. The letter takes issue with Cioffi's and Tannin's counsels' arguments in opening statements to the jury to the effect that it was implausible that Cioffi and Tannin suddenly "went criminal" after the hedge funds had experienced months of positive growth and one flat month. In response, the prosecution seeks to introduce alleged evidence that Cioffi and Tannin allegedly defrauded Busey Bank several months earlier, in December 2006. The government contends that Cioffi allegedly executed a pledge agreement with Tannin's signature in which Cioffi and Tannin allegedly falsely represented to the Bank that the Bear Stearns Asset Management (“BSAM”) had consented to Cioffi’s pledge of his entire investment in the Enhanced Fund, when in fact BSAM had allegedly not consented. The government seeks to present the testimony of Greg Quental, former Bear Stearns Global Head of
Hedge Funds and one of the highest ranking Bear Stearns executives apart from CEO Rich Marin, to show that BSAM allegedly did not consent, but that Cioffi and Tannin allegedly pledged Cioffi's investment anyway to obtain a $4.25 million line of credit.

• Email This
• Print
• Comments
• Trackbacks

Sir Robert Allen Stanford entered a plea of not guilty yesterday to the indictment charging him with alleged defrauding investors in a $7 billion Ponzi scheme. U.S. Magistrate Judge Frances Stacy presided over the arraignment in the U.S. District Court for the Southern District of Texas in Houston.

Also yesterday, Stanford's co-defendant and alleged co-conspirator, Leroy King, a former official with Antigua and Barbuda's Financial Services Regulatory Commission, was arrested in Antigua. King is in custody pending a potential extradition request to the United States.

Stanford remains in custody. Magistrate Judge Stacy told the parties yesterday that she intended to order Stanford released on $500,000 bond, but that she would reserve her ruling until today to give the government time to appeal her decision. Assistant United States Attorney Paul Pelletier argued that there are no set of conditions which would guarantee Stanford's appearance at trial. The Government has filed a Memorandum in Support of Detention, arguing that Stanford should be denied bond based on the fact that he has a motive to flee, as well as the means and opportunity, noting, among other things, that Stanford's passport shows that he has traveled to over 30 foreign countries, and entered Antigua over 40 times in 2008. The defense filed a Memorandum in Support of Standford's Right to Pretrial Release on Wednesday, arguing that Standford is not a flight risk and that Stanford is required to be released on his own recognizance or an appearance bond under 18 United States Code section 3142. The memorandum cites the fact that Stanford voluntarily surrendered his passport to the Government after the Securities and Exchange Commission filed a civil fraud suit against him back in February; and that he arranged to voluntarily surrender to authorities upon learning of his indictment. We note that Stanford also has a home in South Florida... complete with a moat.

• Email This
• Print
• Comments
• Trackbacks

The trial of Syed Haris Ahmed is Georgia’s most significant terrorism case and we will collect for readers daily information on the trial and additional information. Today’s information on the Ahmed/Sadequee Trial comes from the Atlanta Journal-Constitution, WSBTV and CNN.

Ahmed is 24, an Atlanta area native and a former student at Georgia Tech. Ahmed waived his right to jury trial, and his case is being tried before District Court Judge William S. Duffey in the U.S. District Court for the Northern District of Georgia without a jury. Jack Martin, of Martin Brothers, P.C., is representing Ahmed. Assistant U.S. Attorney Robert McBurney is representing the United States. Ahmed’s co-defendant, Ehsanul Islam Sadequee, will be tried in August. Stephanie Kearns of the Federal Defender Program is representing Sadequee.

On Monday, Mr. Martin gave his opening statements to the Court, describing Ahmed as a confused, frustrated and immature young man who “fell prey” to websites espousing extremist views. Mr. Martin characterized the alleged plans for terrorist acts as “passing random thoughts, momentary ideas, childish fantasies, unformed, inchoate notions.” Mr. Martin argued that Ahmed had the ability to commit the alleged acts but said “No.” He stated that Ahmed’s idea of paramilitary training was shooting paintball guns with a friend in the North Georgia woods.

Mr. McBurney argued that Ahmed “one step removed from the bomb throwers” and intended to wage violent jihad. Mr. McBurney argued that Ahmed was a would-be terrorist who went to Pakistan to join the Taliban. He said that the videos made by Ahmed while allegedly “casing” locations in Washington, D.C., including the Capitol and the Pentagon, were intended to prove to terrorists overseas that Ahmed had access to Washington’s “backyard” and could get in close to targets. McBurney said the government’s case is about supporting terrorism and not actually “pulling the trigger or dropping the bomb.”

FBI Special Agent Mark Richards testified for the government. During Agent Richard’s testimony, the government showed some of the videos. In one video of the World Bank Building, Ahmed bobbed up and down so much that Mr. Martin asked Special Agent Richards “If a terrorist was attacking on a pogo stick, this might be useful, right?” However, another video shows Ahmed and Sadequee driving past the Pentagon with Sadequee stating “This is where our brothers attacked.”

• Email This
• Print
• Comments
• Trackbacks

Following his recent victory in the Helio Castroneves tax evasion trial, Roy Black, famed trial attorney from Miami spent some time with us reflecting on that trial:

Q: Thanks for your time and congratulations on the not guilty verdicts in the Helio Castroneves case. Any indication from the government on whether they will retry the conspiracy count against Castroneves and his sister?

Mr. Black: No, but in our view, 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. At a minimum we get interlocutory review in 11th Circuit before we start any litigation on this issue, we will meet with the government and see what their views are. There are civil remedies the government should be satisfied with.

Q: Did the district court permit the use of jury questionnaires specifically tailored to a tax evasion case?

Mr. Black: Yes, the judge allowed a moderately extensive questionnaire, mainly because of Helio's public image. Ironically few knew him as a driver, but everyone remembered him winning Dancing with the Stars. That tells you a lot about American culture today!

Q: This case presented some interesting issues - the international entities involved, the idea of “constructive receipt” of income and the testimony of attorney witnesses testifying for the government. Did the defense present any expert testimony? Character evidence? Did any defendant testify?

Mr. Black: We presented expert testimony from a tax attorney on all the tax issues in the case. He also testified all the returns were correct, etc. The government called two former tax attorneys of the defendants and also their CPA's. So, the government used these witnesses to present their claims on the tax issues and then called an IRS summary witness who spent a day on the stand putting it together. As you know a summary witness like this gives the government a big advantage because it is really just their summation. We were able to do the same thing with our tax expert and thus overcame some of the government advantage. The defendants didn't testify. Unfortunately for us there had been a civil suit on the same issues and the government used parts of that trial and depositions from that as admissions. We called three days worth of witnesses from Brazil about the business and background of the defendants, which was very effective. We needed it to prove the business necessity of some large deductions. For instance, Helio paid his father a large salary for several years and we needed to prove the payments were proper business expenses.

Q: Were you able to argue that the defendant’s actions after the time frame of the conspiracy were relevant? For instance, I read in the news reports that you had argued that Helio was going to pay his taxes in May of this year. How were you able to persuade the trial judge that evidence of the defendant’s conduct 4 years after the conspiracy ended was relevant?

Mr. Black: After my opening statement mentioning this the government filed an in limine motion to exclude this evidence. The court ruled that it could come in only if Helio testified. He didn't, so it didn't.

Q: Did the fact that you were dealing with a number of international entities hurt, or help the defense?

Mr. Black: It almost always hurts when a U.S. taxpayer has an offshore corporation and bank accounts. Especially Swiss bank accounts. But Helio's situation is different than the usual defendant. Helio is a Brazilian citizen and only in the U.S. on an non-immigrant work visa. He has to leave once his racing career here is finished. So, there is a good reason to have bank accounts in Brazil etc.

Q: Attached is a request that the trial judge order the government to produce all interview memoranda for all witnesses. Were you successful in persuading the judge to provide the defense with that information?

Mr. Black: In the Southern District of Florida we rarely get any agent reports. The government takes the position that they are not verbatim statements., etc, under Jencks [18 U.S.C. 3500]. And as you know the 11th Circuit is not helpful on this issue. So, we got a couple of paragraphs of Brady, but that's all. After Stevens and Shaygan this might change. I think any defense lawyer today must push those cases hard and disgorge more agent interviews. The U.S. Attorney here is reeling after Shaygan and Judge Gold's hard hitting order, so I expect they should be more liberal in discovery. Judge Gold expanded their Brady obligation. Most lawyers have adopted the government's language that Brady is for exculpatory evidence only, instead it is for any favorable evidence which is a much more liberal and useful concept for us.

Q: Was there a particular issue that you felt was outcome determinative in the context of the case to persuade the jury to return not guilty verdicts on the substantive counts?

Mr. Black: There was a huge battle over constructive receipt. It would take me pages to explain it all, but it was a highly contentious issue and for three days of deliberation the jury kept asking for more instructions and definitions of the concepts. The court had a lot of trouble with that. I think the jury got the idea that no one can give an accurate definition of constructive receipt and concepts like beneficial ownership. So, they probably figured a 22 year old from Brazil who barely spoke English didn't understand it either.

Q: How was the experience of trying this case with Bob Bennett out of Washington, D.C.?
Anything you gained from observing his courtroom demeanor/preparation?

Mr. Black: I have known and worked with Bob before and he is a wonderful lawyer. Not just that but the has a great sense of humor which really connects with the jury. One of the funnier parts of the trial dealt with Hugo Boss suits. The government claimed Helio should have reported the income from getting free suits from them. Our defense was that Hugo Boss was a sponsor of the racing team and Helio had to wear the suits. The claim was pretty petty. The total retail value of the suits was around $12,000. The summary government expert even admitted the amount was not material to the return. I cross-examined the CEO of Hugo Boss about how wonderful their suits were and that they wanted to show them off by having a slim good looking guy like Helio wear them. Then Bob got up, stuck his stomach out (which I can attest goes pretty far) and asked how would the suits look on his body. The jury got a good laugh out of that.

Q: I know that you continue to be a student of the law and work tirelessly on behalf of your clients - what can you tell us out in the trenches you learned from this trial?

Mr. Black: Tom as you know, we defense lawyers are counter-punchers. The government always goes first and usually gets all the good rulings from the court. We had some tough days during the trial but our team never lost hope and just kept fighting back. So despite how dark things might look we should not give up.

Roy, thanks very much for your time.

• Email This
• Print
• Comments
• Trackbacks (1)

Former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy were convicted of federal funds bribery, honest services conspiracy, honest services mail fraud, racketeering conspiracy, racketeering, honest services wire fraud, obstruction of justice and extortion in the U.S. District Court for the Middle District of Alabama back in 2006. Siegelman has alleged that his prosecution was spurred by the Republican party, especially former White House advisor Karl Rove. Siegelman and Scrushy appealed their convictions.

On March 6, a three judge panel of the Eleventh Circuit issued a per curiamopinion, U.S. v. Siegelman, NO. 07-13163, 2009 WL 564659 (11th Cir., Mar. 06, 2009) (per curiam). The Court began its opinion by acknowledging that the case was an “extraordinary” one, involving corruption at the highest levels of theAlabama government, and straining the resources of both the Alabama and federal governments. Id. at *1. It recited the facts as follows: Siegelman was elected Governor in 1998 and, after his election, established the Alabama Education Lottery Foundation (“Foudation”) to raise money for a ballot initiative to establish a state lottery. Id. at *2. Scrushy had served on the Alabama Certificate of Need (CON) Board, a healthcare regulatory body, by appointment under three previous Governors, but had supported Siegelman’s opponent in the 1998 election. Id. After the election, Nick Bailey, one of Siegelman’s associates, met with Eric Hanson, a lobbyist for HealthSouth, and told Hanson that Scrushy needed to contribute at least $500,000 to the Foundation to “make it right.” Id. Bailey and Mike Martin, former Chief Financial Officer of HealthSouth, testified at trial that Scrushy communicated that he was interested in making the contribution in exchange for the position on the CON Board. Id. at *2, *3. Martin testified that Scrushy instructed him to have HealthSouth’s investment banker, Bill McGahan of UBS, make the contribution, but McGahan balked at doing so, and instead had Integrated Health Services (“IHS”) of Maryland write a $250,000 donation to the Foundation in July of 1999, which Scrushy personally delivered to Siegelman. Id. at *3, *4. Siegelman subsequently contacted the designee Chariman of the CON Board and informed her that Siegelman wanted Scrushy to be Vice-Chair of the CON Board, and the CON Board selected Scrushy for the position. Id. at *4. In March of 2000, Scrushy gave Siegelman another check from HealthSouth for $250,000. Id.

The Court first considered Siegelman’s and Scrushy’s argument that the trial court’s instructions to the jury on bribery, pursuant to 18 U.S.C. § 666, erroneously failed to require the jury to find a quid pro quo, and that the defendants “expressly” agreed to a quid pro quo, in order to convict them.Id. at *6, *7. The Court recognized that the Supreme Court’s decision in McCormick v. United States, 500 U.S. 257 (1991) required more to convict a defendant of bribery than mere proof of a campaign donation followed by an act favorable for the donor. Id. at *7. It noted the Supreme Court’s holding that payments are only criminal if they “‘are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act…’” Id. (emphasis in original) (quoting McCormick, at 273). However, the Court held that an “explicit” promise does not mean an “express” promise, and cited the Supreme Court’s subsequent decision in Evans v. United States, 504 U.S. 255 (1992), which held that the “‘Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.’”Id. at *8 (quoting Evans, at 258). “[T]here is no requirement that this agreement be memorialized in a writing, or even, as defendants suggest, be overheard by a third party. Since the agreement is for some specific action or inaction, the agreement must be explicit, but there is no requirement that it be express.” Id. (emphasis in original). On the contrary, an “explicit” agreement may be implied from words and actions. Id. (citing Evans, at 274). The Court also rejected Siegelman’s and Scrushy’s arguments that the evidence was insufficient to support their bribery, conspiracy and honest services mail fraud convictions, noting that Bailey had testified at trial that Siegelman had told him that Scrushy wanted “the CON Board” in exchange for the donation, and that Bailey and Martin had given other testimony which indicated that Scrushy bribed Siegelman, holding that the jury could have inferred that Scrushy and Siegelman agreed to a corrupt quid pro quo from the surrounding circumstances. Id. at *10, *11.

• Email This
• Print
• Comments
• Trackbacks (1)

            As part of a new, ongoing weekly feature, following are summaries of relevant criminal decisions by the Eleventh Circuit Court of Appeals for the previous week. Only substantive opinions by the Court discussing criminal law will be covered—summary opinions and orders will not be listed.

In U.S. v. Watley, NO. 08-11768, 2009 WL 635185 (11th Cir., Mar. 13, 2009), a prosecution of the defendant for drug and firearm offenses, the Court affirmed the trial court’s admission of evidence of prior controlled drug buys not charged in the indictment, relying on the rule that “‘[e]vidence of criminal activity other than the charged offense is not extrinsic under [Federal Rule of Evidence] 404(b) if it is... necessary to complete the story of the crime, or [ ] inextricably intertwined with the evidence regarding the charged offense,’” id. at *2 (quoting U.S. v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004)). The Court also held that the district court did not abuse its discretion in refusing to compel disclosure of the identity of a confidential informant to the defense, finding that the CI was not involved in the events underlying the charges against the defendant, and that the CI’s proposed testimony would have harmed, rather than helped, the defendant. Id. at *3.

The Court in U.S. v. Strachan, No. 08-13949, 2009 WL 641225 (11th Cir., Mar. 13, 2009), held that it was not required to dismiss the defendant’s appeal of his sentence for various drug and firearms offenses despite a sentence appeal waiver in the defendant’s plea agreement where the record contained no transcript of the plea hearing and did not indicate that the defendant “clearly understood the consequences of his sentence appeal waiver,” id. at * 2. The Court proceeded to find that the district court did not discuss any of the sentencing factors under 18 U.S.C. § 3553(a) at sentencing and vacated the case and remanded for resentencing, observing that a sentencing court “‘need not make detailed findings with respect to each § 3553(a) factor, but the record must make it clear that it considered them.’” Id. at *2 (quoting U.S. v. Williams, No. 08-11361, at 5-7 (11th Cir. Feb. 9, 2009); U.S. v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997)).

Gillen Withers & Lake LLC have several of the most aggressive and successful criminal defense attorneys in Georgia and the Southeast, with national reputations, focusing on  federal and state white collar and corporate criminal litigation. Call Thomas Withers in Savannah (912) 447-8400 or Craig Gillen in Atlanta (404) 842-9700.

• Email This
• Print
• Comments
• Trackbacks

The fur continues to fly in the Wecht case in the run up to the retrial, currently scheduled for May, 27 2008. 

As I have previously stated in this blog, it is my hope that this blog will raise the standard of the criminal defense bar by posting pleadings that can be accessed and then used in one’s own practice. In that respect, the filings by Wecht’s counsel provide us with an excellent standard to emulate:

•             The defense has recently filed a Motion to Dismiss for Prosecutorial Misconduct (the brief is available here), alleging that the investigating agent and the lead AUSA have committed prosecutorial misconduct which infected the search warrant affidavit and the trial by suggesting that the movement of certain evidence occurred on one day in an effort at concealment, when, in fact, it occurred on a different day, such that no concealment could have occurred. This post trial motions practice is of an exceptionally high quality and brings to light some very disturbing allegations related to the prosecution’s handling of this troubling case.
•             The defense has Renewed its Motion for Verdict of Acquittal under Federal Rule of Criminal Procedure 29 alleging that the government failed to prove any misrepresentation or concealment. It is particularly interesting how interwoven these pleadings are because the Renewed Motion for Verdict of Acquittal ties in nicely with the prosecutorial misconduct motion and the government contention of concealment of evidence, which, is at the very least mistaken.  
•             And, finally, the defense has raised a Double Jeopardy claim related to the manner in which the mistrial was declared (this is no doubt a long shot, but generally a litigant is entitled to a direct appeal from the denial of a double jeopardy claim), and now seeks to appeal the trial judge’s denial of that motion.

Wecht is being capabably represented. These pleadings provide all of us in the defense bar with exceptional post judgment guides.

• Email This
• Print
• Comments
• Trackbacks