CLEMENS ACQUITTED ON ALL COUNTS

A federal jury in Washington, DC today found star baseball pitcher Roger Clemens not guilty of all charges in the federal criminal prosecution of him for perjury and related crimes arising from Congressional hearings on the use of performance-enhancing drugs in professional sports.  Clemens was charged with two counts of perjury, one count of obstruction of Congress, and three counts of making false statements in depositions, all stemming from sworn testimony before a Congressional committee in which the seven-time Cy Young Award winner denied having used PEDs during his major league baseball career.  Federal prosecutors asserted that the testimony was false.  After a trial that lasted for nearly nine weeks and involved scores of prosecutors and supporting federal agents, the jury deliberated for just over ten hours before finding Clemens not guilty on all counts.

As reported here previously, in an earlier trial on the same charges a year ago, the judge, Reggie B. Walton, declared a mistrial based on findings of prosecutorial misconduct.  However, Walton refused to dismiss the case completely so as to prevent Clemens from being re-prosecuted for the charges.  Thereafter the Justice Department did choose to prosecute Clemens again, that case culminating in today’s verdict.

The second trial, like the first, was based substantially on the testimony of two key witnesses:  Clemens’s former strength coach, Brian McNamee, who testified that he had injected Clemens with PEDs, and Clemens’s former Yankee teammate, Andy Pettitte, who testified that Clemens had admitted using PEDs to him.  Both witnesses were greatly undermined by Clemens’s lawyers, Rusty Hardin and Michael Attanasio.  Pettitte, who has not said he ever saw Clemens use any PEDs, finally acknowledged in questioning by Attanasio that there was a 50% possibility that he misunderstood even the alleged admission by Clemens.

Even more dramatically, McNamee, the only prosecution witness who claimed to have directly seen Clemens use any PEDs, was subjected to a withering fifteen-hour cross examination over three days by Hardin in the course of which McNamee acknowledged making false statements or at least exaggerations on various earlier occasions, and appeared to be fabricating assertions even during his testimony in this case.  Finally, the defense lawyers produced McNamee’s estranged wife as a witness, who flatly contradicted critical parts of the strength coach’s testimony.

Clemens faced the possibility of thirty years of imprisonment if convicted on all counts.  The duration of the deliberations was very short after such a lengthy trial.  Whatever the verdict on Clemens may be in the (non-criminal) court of public opinion, the quick verdict clearly indicates a complete failure—or defeat—of the Government’s case in the eyes of the jury.

That acquittal comes in the wake of the largely failed federal prosecution of baseball star Barry Bonds for obstruction of justice and three counts of perjury in connection with his testimony before a federal grand jury regarding PED use.  Bonds, who, like Clemens, faced lengthy imprisonment if convicted on all counts, was convicted of only one, the jury deadlocking and failing to reach a verdict on the remainder.  Bonds was sentenced to house arrest and probation.

 Among other defenses, the Clemens legal team placed substantial focus on Congress itself, arguing that with its subject hearings Congress had no real intention of eliminating PED use in professional sports, but instead were merely seeking publicity and political gain for members, so that any misstatements that might have been made would not have been material to any serious Congressional initiatives in any event.

Congressmen Henry Waxman and Tom Davis were the top Democrat and Republican members, respectively, of the Committee that conducted the hearings involving Clemens and then jointly referred Clemens to the Justice Department for prosecution.  After the complete acquittal of Clemens today, both men reportedly insisted on the validity of their committee’s referral of the matter to Justice.  Davis reportedly expressed doubts about the wisdom of the Justice Department in bringing the prosecution that Davis’s committee had referred to it.

WILSON WINS REVERSAL OF CONVICTION AND 20-YEAR SENTENCE

Roger C. Wilson obtained a reversal by the Georgia Court of Appeals of the criminal conviction and 20-year sentence of a Firm client.  The man had been convicted in a DeKalb County jury trial of breaking into a largely abandoned building in a blighted part of DeKalb County and stealing from the building two used vacuum cleaners allegedly worth approximately twenty dollars.  The man, an older local denizen of modest means and hard times, was harshly sentenced under the Georgia recidivism statute because of the existence of multiple prior convictions over a number of earlier years, all for minor, non-violent offenses.

At trial no direct evidence was presented of the client’s having broken into the building or stolen the vacuum cleaners. The principal evidence used to convict him was self-inculpatory statements that he was alleged to have made to a policeman who detained and interrogated him.  The client denied making the statements.  But at trial the policeman was permitted to testify about the alleged statements, even though the policeman, when detaining and interrogating the client, had never informed him of his Constitutional rights (to remain silent, to have an attorney present before questioning) as is required by the Georgia and U.S. Constitutions and the U.S. Supreme Court’s Miranda opinion.  With that testimony of the policeman, the client was convicted, and sentenced to 20 years, to serve 10. 

Wilson did not handle the case at trial but was engaged to represent the man post-conviction in an attempt to obtain an amelioration of the conviction or sentence.  Wilson first filed and pursued a motion for new trial with the trial court in which the man was convicted, arguing that a new trial was necessary because of the improper police interrogation of the man which rendered inadmissible any testimony regarding the confession allegedly obtained during that interrogation. When the trail judge denied the motion, Wilson filed and pursued an appeal in the Georgia Court of Appeals. 

After full briefing of the case, the Court of Appeals agreed with Wilson and reversed the man’s conviction in its entirety, including the sentence. Thompson v. State, No. A11A1798, 313 Ga.App.844 (2012).

The Court of Appeals began its opinion by pointing out the substantial hurdles faced by those appealing a criminal conviction:

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence.  And we do not weigh the evidence or determine witness credibility, “but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.”

* * *

[W]e note that “[u]nless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of the defendant's statement at a Jackson-Denno hearing will be upheld on appeal.”  And in conducting our review, “we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.

However, despite these hurdles, the three-judge Court of Appeals panel considered the arguments made by Wilson and unanimously agreed with them.  It stated that, although the client

was not handcuffed or told that he was under arrest, the officer confiscated the contents of his pockets by placing the items on the patrol car before continuing to detain him.  Under these circumstances . . . a reasonable person would certainly perceive himself to be in police custody.  Additionally, the accusatory nature of Officer Findley's question required the benefit of Miranda warnings, because although officers may make initial on-the-scene inquiries without Miranda warnings to ascertain the nature of the situation at hand, “[t]he questioning must not be aimed at obtaining information to establish a suspect's guilt.”  Officer Findley's question, which came after a witness identified Thompson as the suspect, was clearly aimed at establishing his guilt.  Accordingly, Thompson's admission regarding the vacuum cleaners should have been suppressed.

The Court then found as is required for a reversal, that the error in admitting the faulty testimony must be viewed as having been prejudicial to the client at trial:

Having determined that the trial court erred in admitting [the] statement, we must now determine whether “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction....”   In this regard, the record reflects that the jury deliberated for some time and requested direction on the witness testimony and a lesser-included offense of criminal trespass;  there was testimony that the daycare center was located in a neighborhood subject to high crime and drug activity and that the owner had previously—and since—had trouble with burglaries; the witnesses gave inconsistent descriptions concerning the color of the vacuum cleaners and the suspect's clothing; and one eyewitness repeatedly referred to [the client[ by another person's name. Accordingly, we conclude that there is a reasonable possibility that the improperly admitted evidence contributed to the jury's verdict.

The case and reversal demonstrate that even notwithstanding the substantial hurdles facing one on appeal who has been convicted of a crime, sometimes erroneous trial rulings and results, and violations of Constitutional rights, can be vindicated and corrected on appeal.

The reversal also supports the proposition that Constitutional rights must be protected, and violations of them vindicated, whether the defendant is a CEO, CFO, or government official (whom Wilson also has represented in state and federal cases) or a local vagabond of extremely modest means improperly interrogated about an alleged theft of old vacuum cleaners from an abandoned ghetto building.  If the Constitution and Constitutional rights (all of them) are not vigorously protected at both ends of that social spectrum, then no one can have confidence that his or her rights (under whichever numerations in the Bill of Rights) will be respected at any point in between.

RARE FEDERAL DEATH PENALTY CASE HEADED TO TRIAL IN ATLANTA

Federal prosecutors and defense lawyers are heading toward a rare Federal death penalty trial in Atlanta.  The case, United States v. Richardson, no. 1:08-CR-139-CC-CCH, pending before United States District Court Judge Clarence Cooper, is scheduled to be tried next month.  The defendant, Brian Richardson, a former U.S. Marine raised in Alabama, is alleged to have murdered another federal inmate, Steven Obara, from Connecticut, while both men were incarcerated at the Federal Penitentiary in Atlanta, Richardson for bank robbery and Obara for possessing child pornography.  Richardson allegedly strangled and stabbed Obara to death because of his revulsion at the crimes for which Obara had been convicted (including a state conviction for sexual assault).  Richardson also allegedly has threatened that he would kill again in prison if he had another chance to do so.  After initially being ruled inadmissible, evidence of such statements by Richardson subsequently was ruled admissible in his upcoming trial.

Roger C. Wilson has been assigned by United States Magistrate Judge Christopher Hagy to represent an alleged material witness in the case.  That person, also incarcerated in a federal penitentiary, is one of numerous similar witnesses scheduled to be called at trial by federal prosecutors. The Wilson client is not alleged to be involved in any way in the killing of Mr. Obara, but instead is alleged only to be a material witness in connection with certain aspects of that killing.  Nevertheless, in such circumstances, the witness is Constitutionally entitled to independent legal representation in connection with any attempts to elicit testimony from him at or in connection with the coming trial.

Lawyers for the defendant Richardson have raised numerous, serious challenges to the conduct of the prosecution, including allegations that one or more of those prosecutors made improper promises to potential witnesses in order to induce them to testify favorably to the prosecution in the case.  At least one of those prosecutors has been removed from the case.

Death penalty trials are very unusual in the federal system, as opposed to state judicial systems.  There are a variety of crimes that can be punishable by death in the federal system—not only uniquely federal crimes such as espionage, treason, war crimes, and kidnappings or assassinations of high federal officials, but also, in certain circumstances, more generic crimes, including murder by a federal prisoner already sentenced to at least 15 years or life imprisonment.  Most crimes possibly carrying a death sentence, including most murders, are state crimes and are prosecuted in state, not federal, courts.

There have been only three federal executions since a 28-year suspension of the federal death penalty was lifted in 2001.  The first of those executions, in 2001, was of Timothy McVeigh, convicted of bombing the Oklahoma City federal building.  The second, in the same year, was of Juan Raul Garza, convicted of multiple murders in connection with major Mexican drug smuggling operations into the United States.  The latest, in 2003, was of Louis Jones, a decorated Grenada and Iraq War combat veteran convicted of murdering a fellow soldier in peacetime.  Other notable, earlier federal executions are those of Soviet spies Julius and Ethel Rosenberg in 1953 and of six German and German-American alleged saboteurs in 1942.

FEDERAL CRIMINAL COUNTERFEITING CASE RESOLVED AGAINST WILSON CLIENT

A federal criminal counterfeiting case against a Roger C. Wilson client was resolved recently, with the dismissal of the majority of the charges.  The client was one of several defendants charged in multi-count federal indictments in Atlanta with allegedly producing nearly a million dollars in counterfeit currency.  The Wilson client was charged with three counts, carrying maximum possible punishments of more than twenty years of imprisonment and hundreds of thousands of dollars in fines.  Another defendant charged in connection with the matter tried the case to a jury, was found guilty on all charges, and was sentenced to imprisonment.  In contrast, a resolution of the case with respect to the Wilson client was reached in the course of plea bargaining between Wilson and federal prosecutors.  As a part of that resolution, two of the three counts against the Wilson client were dismissed along with a plea by the Wilson client to the remaining count.  That count too carries a statutory maximum of twenty years’ imprisonment.  However, in sentencing proceedings culminating in a hearing before United States District Judge Charles A. Pannell, Jr., the Wilson client was sentenced to 41 months of imprisonment, with no fine.  This favorable sentencing was obtained in substantial part as a result of negotiations between and joint recommendations to the Court by the defense and prosecutors.

JUDGMENT ENTERED FOR WILSON CLIENT IN COMMERCIAL LITIGATION AS SANCTION AGAINST OPPOSING PARTY

Full judgment, including for interest and attorneys’ fees, was obtained recently for a Roger C. Wilson client in a commercial litigation in Cobb County Superior Court, by court order, before trial, as a sanction for violation of discovery rules by the opposing party.

The Wilson client was the plaintiff in the case, Willson v. Tselios, et al. (no relation between client and attorney), case no. 10-1-3929-49.  The client had contracted to sell restaurant equipment to a commercial buyer under an installment purchase arrangement as a part of the disposition of a Sandy Springs restaurant of the Wilson client.  The defendant-opponent, the buyer, failed or refused to make full payments under the contract even after taking possession of all the equipment.  Only after the initiation of the litigation did the buyer raise allegations of lien-type encumbrances of the equipment, which allegations Wilson and his client rebutted.

The defendant-opponent repeatedly failed to properly respond to discovery requests (formal demands for information and documents about the case and defenses) submitted by Wilson on behalf of his client.  After first obtaining orders from the Court requiring the defendant to fully respond to those discovery requests, Wilson ultimately moved the Court to enter judgment in favor of his client as a sanction when the defendant continually failed to provide such responses.

After the presentation of written briefs and oral arguments, the Court granted Wilson’s motion and entered judgment in favor of the Wilson client for the full amount demanded by the client in the case.  In addition the Court granted Wilson’s request to add pre-judgment interest to the award, running from the time of the initial breach of the underlying contract.  Post-judgment interest generally is available as a matter of right, but pre-judgment interest is not and is more difficult to obtain.  Additionally, the Court awarded attorneys’ fees to the Wilson client in connection with the efforts to obtain the requested discovery.

Although courts have considerable leeway in fashioning remedies for violations of discovery rules, it is unusual to obtain an entry of final judgment against a litigant on this basis.  That remedy generally is reserved for cases of very substantial violations by a litigant.  Such was the case here, where the defendant repeatedly failed to respond to orders obtained from the Court specifically regarding discovery and related matters.

Defendants sometimes adopt such delaying tactics in order to increase the time and costs to a plaintiff of obtaining any judgment, hoping to dilute the plaintiff's resources and heart for the litigation before a trial is reached.  A great advantage of obtaining judgment on the basis and at the stage of litigation obtained by the Wilson client in this case is that this mitigates such delays and costs.  Occasionally, as in this case, the client is thereby able to obtain the full benefits sought in the litigation even without the expenses normally entailed by a trial of the case.



Roger C. Wilson represents companies and individuals in litigation in all state and federal courts in Georgia.  He has represented many clients in commercial and other civil litigation, both as plaintiffs and as defendants.

WILSON OBTAINS DISMISSAL OF CIVIL LAWSUIT AGAINST TWO CLIENTS

The Roger C. Wilson Law Firm, PC  has obtained the dismissal of a civil action filed against two of its clients in Cobb County, Georgia Superior Court involving a dispute over the sales of several area office buildings.  In the case, Grund v. Crescent Holdings, et al., the former owner of the buildings sued to obtain the restoration of his ownership of the buildings.  The office buildings had been sold by the Cobb Sheriff's Department in enforcement of judgments for many hundreds of thousands of dollars that had been obtained against the plaintiff by another party in separate litigation.  In the Crescent Holdings case, the former owner of the buildings sued various defendants, including Cobb Sheriff's Department officials, seeking a court ruling that the Sheriff's sales were invalid as having been made at unreasonably low prices and allegedly otherwise contrary to law, and seeking a court order returning ownership of the buildings to the plaintiff.

The purchasers of the buildings also were sued in the case, including the two clients of Roger C. Wilson.  After substantial pretrial proceedings, Wilson obtained a dismissal of all claims against both of his clients.  A motion for an award of attorneys' fees to the Wilson clients remains pending.

Roger C. Wilson represents companies and individuals in litigation in all state and federal courts in Georgia.  He has represented many clients in commercial and other civil litigation, both as plaintiffs and as defendants, including in the enforcement of judgments from assets located outside Georgia.

FEDERAL JUDGE REJECTS $285 MILLION SEC/CITIGROUP SETTLEMENT AS TOO LENIENT

A federal Judge has rejected as unduly lenient a $285 million settlement reached between the U.S. Securities and Exchange Commission and Citigroup to resolve civil litigation by the SEC against the financial services giant for various alleged abuses, including some types widely thought to have materially contributed to the financial and real estate market collapses.  Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York refused to accept the settlement, finding it inadequate in multiple respects, including the amount of the payment to be required of Citigroup and the fact that Citigroup would not be required to acknowledge any wrongdoing. 

The SEC civil suit is based principally on Citigroup’s actions in marketing collateralized debt obligations (CDOs) to its customers as good investments while at the same time selling such instruments short itself (a technique essentially constituting a bet that the investment would drop in price in the future), and after having secretly included in the CDOs a great amount of highly undesirable assets, in order to unload those assets from its own books or accounts.

The proposed settlement is embodied in a consent decree providing for disgorgement of $160 million in profits by Citigroup and payment of $30 million in interest and $95 million in penalties, as well as the adoption by the conglomerate of internal controls designed to hold company officials responsible for signing public statements regarding the worthiness of the investments marketed by the company.

Judge Rakoff wrote in his opinion that in deciding whether to grant the judicial approval that is prerequisite for such consent decrees involving injunctive relief, federal judges are required by US Supreme Court precedent to consider the public in relation to the decree.  “[R]egretfully”, Judge Rakoff wrote, the proposed Citigroup consent judgment “is neither fair, nor reasonable, nor adequate, nor in the public interest."  He noted that, while

[p]urely private parties can settle a case without ever agreeing on the facts . . .when a public agency asks a court to become its partner in enforcement by imposing wide-ranging injunctive remedies on a defendant, enforced by the formidable judicial power of contempt, the court, and the public, need some knowledge of what the underlying facts are: for otherwise, the court becomes a mere handmaiden to a settlement privately negotiated on the basis of unknown facts, while the public is deprived of ever knowing the truth in a matter of obvious public importance.

The judge expressed particular concern about the SEC practice of allowing companies to enter such consent judgments without admitting or denying the underlying allegations, which, he wrote, deprived the court of critical facts by which to assess the activities involved and the relief or punishment to be imposed.

Particularly in this context Judge Rakoff criticized the payment amounts provided in the settlement:

It is harder to discern from the limited information before the Court what the S.E.C. is getting from this settlement other than a quick headline. By the S.E.C.'s own account, Citigroup is a recidivist . . . , and yet, in terms of deterrence, the $95 million civil penalty that the Consent Judgment proposes is pocket change to any entity as large as Citigroup.

Consequently, Rakoff rejected the proposed consent judgment, consolidated the case with a separate, related case against an Citigroup official individually, and “direct[ed] the parties to be ready to try this case on July 16, 2012.”

This is the latest in a series of criticisms or refusals by Judge Rakoff to approve proposed settlements by the SEC with Wall Street corporate alleged wrongdoers.  As another example, in 2009 he refused for months to approve a proposed settlement with Bank of America relating to alleged disclosure deficiencies in connection with its acquisition of Merrill Lynch.  He only approved that settlement early the following year after the penalties against the company were increased from $33 million to $150 million and safeguards were added to inhibit such conduct in the future. He also stoutly criticized a settlement of backdating claims that the SEC reached with Vitesse Semiconductor earlier this year, decrying the same SEC practice of permitting the corporation to avoid admitting any wrongdoing.  He stated, "The disservice to the public inherent in such a practice is palpable."

It is likely that the SEC will appeal Judge Rakoff’s rejection of the Citigroup settlement.  But his reputation seems now established as a firebrand judge determined not to be used by the US Executive Branch as a rubber stamp for consent judgments that he considers to be mere slaps on large, powerful corporate wrists.