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.

FEDERAL CRIMINAL CHARGES DISMISSED AGAINST TWO WILSON CLIENTS

Federal criminal charges have been dismissed against two clients of Roger C. Wilson and The Roger C. Wilson Law Firm, PC in two different cases several weeks apart.

One client was charged with marijuana offenses based on events in a federal park near Atlanta.  Significant issues were discovered in a thorough review of the case, including in the reports of the investigating law enforcement officers, which issues supported the client's claim of innocence. Substantially as a result of those issues, and in the course of negotiations by Roger C. Wilson with the federal prosecutor, all charges against the client were dropped several days before trial.

Any crimes committed in federal parks or similar federally controlled or administered territories, such as on the Chattahoochee River or elsewhere in the Chattahoochee River National Recreation Area, are federal crimes and are prosecuted in federal courts.

In a separate case, another Wilson client was charged, along with several co-defendants, with multiple offenses involving alleged weapons trafficking, including the alleged illegal possession and distribution of an unregistered weapon.  The charges, and similar charges against many other defendants in other cases, arose from a lengthy sting operation conducted by federal agents, principally from the Bureau of Alcohol, Tobacco and Firearms. 

The agents established a storefront business in Southwest Atlanta as the base for an undercover operation in which they encouraged local residents to sell firearms and other items to the agents at the store, where the agents posed as legitimate business owners.  Those lured into the operation then were charged with such crimes as engaging in or conspiring to engage in gun sales without being registered to do so under federal dealer licensing regulations.  A number of such persons have reported not knowing of the existence of such registration requirements and regulations until their arrests. Other charges also were brought based on the involvement of certain weapons, such as sawed-off shotguns, which require registration to be possessed or sold.

All proceedings inside and outside the store were recorded by an elaborate network of hidden surveillance cameras and microphones.  Wiretap recordings also were made of numerous telephone calls engaged in by the undercover agents with customers who had been lured to the store.


The client of Roger C. Wilson was indicted on multiple counts, relating both to the alleged illegal dealing and to the alleged possession and sale of an unregistered sawed-off shotgun.  Shortly before trial the case was resolved, by means of a resolution of the lesser (in terms of sentencing) counts and then, just before  trial, with a negotiated dismissal by federal prosecutors of the major count (also in terms of sentencing) and of the corresponding remainder of the case.


Roger C. Wilson represents clients charged with crimes and otherwise involved in government enforcement activities at the federal and state levels.  He has represented individuals and companies facing actual or possible criminal prosecution in "white collar" and "blue collar" contexts, including by defending them at trial and by negotiating resolutions with state and federal prosecutors, as well as by negotiated resolutions with federal enforcement agencies in such areas as export controls, foreign assets controls, and customs and import regulations.

PROSECUTOR MISCONDUCT DERAILS ROGER CLEMENS TRIAL

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In a dramatic turn of events the federal judge presiding in the perjury prosecution of star baseball pitcher Roger Clemens declared a mistrial for prosecutorial misconduct early in the government’s presentation of its case in chief against Clemens.  Clemens is being prosecuted for allegedly making false statements in testimony before a Congressional committee investigating the use of performance-enhancing drugs in major league sports.  He faces a maximum of 30 years imprisonment if convicted.  Judge Reggie B. Walton of the United States District Court for the District of Columbia, where Clemens was being tried, issued his mistrial ruling when the prosecution displayed to the jury evidence that the judge had specifically ruled was inadmissible in the trial.   It remains to be seen whether or not Clemens may and will be re-tried.

In his sworn testimony before the Congressional Committee Clemens denied using PEDs.  Federal prosecutors allege that this testimony was false, and they indicted Clemens for perjury and related offenses.  The Government is relying substantially in the case on the testimony of former Clemens friend and teammate, Andy Pettitte, who has alleged that Clemens admitted to him that he had used PEDs, in contradiction of Clemens’s Congressional testimony.  The disputed evidence at trial was an affidavit (a written sworn statement) submitted by Pettitte’s wife in which she stated that Petttite had told her of the alleged admission to him by Clemens.

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Before the trial began the judge had agreed with Clemens’s defense lawyers, Rusty Hardin and Michael Attanasio, that the statement by Pettite’s wife was hearsay and as such was inadmissible in the criminal trial.  Accordingly, the judge had forbidden not only the introduction of that affidavit at trial but also any mention of it to the jury. The judge also had granted earlier defense requests to bar any prosecution reference to other prominent athletes using PEDs, agreeing that such references would threaten to make the jury more likely to convict Clemens, invalidly, from guilt by association.  Yet prosecutors did refer to such other alleged PED users in their opening statement.  That drew a rebuke from Judge Walton, but he allowed the trial to continue after delivering a cautionary, corrective instruction to the jury.

THE FINAL STRAW

However, when the Government violated Walton’s second ruling, regarding the affidavit of  Pettitte’s wife, the judge angrily stopped the proceedings, discussed the matter with counsel outside the presence of the jury, and then declared a mistrial and dismissed the jury, ending this prosecution of the case.  He stated, “I think Mr. Pettitte’s testimony is going to be critical as to whether [Clemens] goes to prison”.  Judge Walton, an appointee of President George W. Bush, complained that "government counsel [should not] do just what government counsel can get away with doing.”  He stated that “a first-year law student” would know not to do what the Government did here, and stated, “we’ll never know what impact that has had on how this jury ultimately decides this case when we’ve got a man’s liberty at interest.  I’m very troubled by this.  I mean, we have expended a lot of government money to reach this point. * * * I don’t see how I can un-ring the bell.”

Walton rebuffed the prosecutors’ request to submit written briefs on the issue:

You’re not going to be able to convince me.  Because if this man got convicted from my perspective, knowing how I sentence, he goes to jail.  And I’m not going to, under the circumstances, when this has happened,, put this man’s liberty in jeopardy.  He’s entitled to a fair trial; in my view he can’t get it now.  And that was caused by the government.

POSSIBLE IMPLICATIONS

Judges often refuse to order a mistrial in such circumstances but instead often provide a cautionary instruction to the jury (e.g. to “ignore” the improperly introduced evidence) and then allow the trial to proceed.  Such cautionary instructions are often criticized based on the perceived improbability that jurors can truly disregard such matter in their deliberations once they have heard or seen it—or, as Judge Walton put it, that they can “un-ring the bell” of the introduction of the evidence.  Walton’s ordering of a mistrial seems clearly to indicate a substantial irritation by him with this the second major misstep of prosecutors at the outset of the trial.  One could also wonder whether it may suggest a skepticism of or dissatisfaction by Walton with the quality of the underlying government's case more broadly.

RETRIAL?

The Government-caused mistrial comes after three years of preparation of the case against Clemens (and at least seven years after the larger investigation began) a process involving scores if not hundreds of Government personnel.  It now leaves the issue of whether Clemens may and will be tried again under the indictment or whether he now may escape ultimate prosecution altogether, e.g., on the basis of the Constitutional doctrine of “double jeopardy”.  That doctrine arises from the Fifth Amendment of the U.S. Constitution, which provides that "[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb".  Walton explicitly wondered about its application in this case and set a hearing on the matter for September.  While it is said that “jeopardy attaches”, to start the application of this doctrine, when the jury is sworn and seated in a criminal jury trial, the application of the doctrine is uncertain where a prosecution ends not in a verdict but in a mistrial.  It is possible, though perhaps not likely, that Judge Walton will conclude that the government actions were intentional and therefore will bar a retrial of Clemens.  It is also possible, though probably even less likely, that the Justice Department will seek to prevent the federal prosecutors from re-trying the case against Clemens.  Probably the most likely result is a retrial.

ROGER C. WILSON represents clients in federal and state criminal and civil trials trials, and in other and federal enforcement matters.  He has represented an individual testifying before Congress in connection with the savings and loan situation, and he has participated in the representation of a foreign government in connection with a Congressional subpoena for sensitive documents provided by that government to the United States Executive Branch in a cooperative law enforcement activity concerning the scandal-ridden Bank of Credit and Commerce International or BCCI.

WILSON PARTICIPATES IN SUCCESSFUL DEFENSE OF FEDERAL SECURITIES FRAUD PROSECUTION

Roger C. Wilson recently participated with lead counsel from the Federal Defender Program, Inc. in the defense of a former Chief Financial Officer in a multi-defendant criminal securities fraud prosecution in federal district court in Atlanta. United States v. Darryl Horton, et al., No. 1:11-cr-00268-TCB-1.  The client, Darryl Horton, of Michigan, former CFO of Conversion Solutions Holdings Corp., a Georgia company, was charged along with the former CEO and the former Chief Operations Officer in a seven-plus-count federal indictment involving alleged securities fraud, wire fraud, and conspiracy.  In addition to those counts against all three defendants, the CEO was charged under the federal Sarbanes-Oxley law with falsely certifying corporate financial statements.  The indictment involved alleged misstatements in corporate financial filings and in corporate press releases regarding the nature and valuation of various firm assets.  The trial lasted two full weeks. Near the end of the trial, the former CEO, Rufus Harris, fled the jurisdiction, leading to a national manhunt for him by federal law enforcement agencies.  At the start of the trial, Harris had chosen to waive his right to counsel, then representing him, and to represent himself in the trial.  After Harris's flight the trial continued to completion in his absence. The federal jury convicted Harris (captured a week later in Utah) of all eight counts charged, and it convicted the former COO on most counts, each of those counts involving possible sentences of 20-years or more imprisonment and very large fines.


However, the former CFO, Mr. Horton, was acquitted on three counts and the jury was hung on the remaining four counts against him, when defense counsel and federal prosecutors resolved the remainder of the case against him.   Substantial testimony and other evidence was presented to the jury that Mr. Horton was at most peripherally and unknowingly involved in the particular events underlying the indictment, in contrast with the other two defendants.  Roger Wilson participated in the defense of Mr. Horton with Jake Waldrop and Thomas Hawker, both attorneys with the Federal Defender Program in Atlanta.


Roger C. Wilson has represented and advised many individuals and companies in connection with governmental investigations and enforcement activity involving alleged or possible violations of federal laws and regulations in the areas of export controls, foreign assets controls, the Foreign Corrupt Practices Act, import regulation and customs laws, and federal banking and mortgage fraud statutes.  In addition to representation of clients in federal and state trials, he has represented such clients before federal agencies, including in resolving possible violations prior to the initiation of government enforcement activity, by voluntary disclosures and similar methods.  He also has advised and assisted companies in designing and implementing corporate compliance programs designed to assist the corporations and their personnel in avoiding possible violations of federal laws in many of these areas.

NEW RULES FOR PRACTICE IN FEDERAL APPEALS COURTS

Recently a number of changes were made in the rules governing practice and procedures in federal courts of appeals generally and in the Eleventh Circuit United States Court of Appeals in Atlanta, in particular.  Amendments to the Federal Rules of Appellate Procedure became effective in December 2009, as did amendments to the Eleventh Circuit Rules and Internal Operating Procedures.  Further changes were proposed in the Eleventh Circuit Rules at that time but have not yet become effective.  Among the amendments that did become effective are important changes in the method of computing time in federal appellate practice, and substantial changes with the new "indicative rulings" procedures.  A more detailed examination of the recent changes is provided in an article by Roger C. Wilson published in the current edition of The Appellate Review, the publication of the Appellate Practice Section of the State Bar of Georgia.   Roger C. Wilson is a member of the Appellate Practice Section and is a member of the managing board of its Federal Practice Committee.

FALSE ADVERTISING/LANHAM ACT: JURY FINDS NAME-BRAND MANUFACTURER LIABLE TO STORE-BRAND COMPETITOR FOR $13.5 MILLION

          In another example of the value of the Lanham Act to businesses whose competitors make false advertising claims, a Virginia jury has found the manufacturer of the Enfamil baby formula, Mead Johnson & Co., liable under the Act for $13.5 million in damages to a competing manufacturer of a similar, store-brand product for what the latter claimed were false statements disparaging of its own product made in the Enfamil  ad campaign.  PBM Products, LLC v. Mead Johnson Nutrition Co.,E.D.Va., No.3:09–CV–269.  The challenged ads were said to imply that Enfamil had health benefits that the store-brand product lacked, stating,  "It may be tempting to try a less expensive store brand, but only Enfamil LIPIL is clinically proven to improve brain and eye development,” and “There are plenty of other ways to save on baby expenses without cutting back on nutrition.”  The jury determined that these statements were false and misleading including in their disparagement by inference of the competing product.  In addition to jury's monetary award to the competitor, PBM Products, the judge ordered Mead Johnson to refrain from further making such claims, and ordered the company to retrieve from the public domain all advertising material containing the claims.

          The Lanham Act provides very powerful remedies to persons or entities harmed by various types of false and misleading activities pertaining to their products or services.  The most widely known provisions of the Act are those prohibiting trademark infringement; but section 43(a)(1)(B) of the Act also provides for remedies more generally when false or misleading statements are made in advertising or promotions that create a likelihood of harm to the the business of another company or person.  Under the Act such victims may obtain court orders stopping the improper activity, and also may recover very considerable monetary damages from the violator, consisting not only of any monetary harm suffered by the victim but also the profits of the violator, as well as the costs of the lawsuit.

GERMANY V. ITALY LAWSUIT TO TEST SOVEREIGN IMMUNITY RULES

          A pending a lawsuit filed late last year by Germany against Italy before the International Court of Justice provides a very interesting occasion for treatment by the Court of the rules of international law pertaining to sovereign immunity.  Germany contends that Italy is violating those rules by permitting (recently via the Italian Supreme Court) the litigation of claims and entry of judgments in Italian courts (and the registration there of foreign judgments) against Germany by Italian citizens and others involving alleged wrongful actions taken by the German military and officials during World War II, such as the forced deportation of such persons to Germany and their subjection to forced labor there during the War.  Briefing is proceeding  pursuant to a Court-ordered schedule, to culminate at the end of this year, with oral arguments and a decision possible next year.  The German contentions are stated in the German application filed with the Court, equivalent to a complaint in domestic US litigation.  Germany claims that these actions of the Italian courts violate rules of international law providing for the immunity of foreign governments in the courts of another countries.

          Historically, the main exceptions recognized to that sovereign immunity have been for claims relating to actions of foreign governments constituting commercial activity.  However, more recently, some countries have also begun to assert jurisdiction over foreign states (and exceptions to sovereign immunity) for claims related to non-commercial activities, such as alleged involvement in terrorism and violations of certain international human rights.  It is on the latter basis that Italian courts have recognized jurisdiction over the claims against Germany, even approving the attachment of Italian real estate owned by German Government entities in connection with enforcement of the judgments obtained against that Government.  A number of commentators have criticized this result, and the courts of other countries have reached the opposite result.  The ICJ itself has previously sustained a sovereign-immunity-based challenge by a country to an assertion of criminal jurisdiction over one of its top national officials by other country based on the alleged involvement of that official in gross human rights violations. E.g., Dem. Rep. Congo v. Belgium.

          The outcome of the Germany v. Italy case will be of particular interest to American international lawyers, as the United States law, particularly in the Foreign Sovereign Immunities Act, (28 USC 1602-1607) and recent amendments thereto contains assertions of extraterritorial jurisdiction, including for attachment of foreign sovereign assets, and corresponding exceptions to foreign sovereign immunity (e.g., for so-called state-sponsored terrorism) that are similar in important espects to those contained in Italian law being challenged by Germany.  An interesting analysis of the pending ICJ case is provided in a recent publication of the American Society of International Law.

SUMMARY JUDGMENT FOR FIRM CLIENTS IN CASE INVOLVING BANKING AND FINANCIAL INSTRUMENTS REGULATIONS

A Fulton County, GA Superior Court judge recently awarded summary judgment to clients of the Roger C. Wilson Law Firm on all claims by those clients in a case involving state and federal banking and financial instruments regulations, and state law rules governing administration of estates.  Judge Alford Dempsey entered summary judgment in favor of Firm clients Mark and Reid Tuvim, acting individually and as administrators of their mother's estate, ruling that a number of financial instruments made by the Tuvims' deceased mother were properly assets of the estate and did not pass to a corporate entity under purported terms of the underlying instruments.  This followed a ruling of the Georgia Supreme Court earlier this year also in favor of the Firm clients, in which the Supreme Court reversed a trial court's earlier rulings and verdict to the contrary.  (The case was transferred to Judge Dempsey after appeal, solely as part of an administrative re-allocation of cases in the Superior Court, having nothing to do with this case.)  In a ruling of first impression in important respects, a majority of the Supreme Court agreed with the Tuvims' argument that to transfer those assets to a corporate entity would in the circumstances of this case directly contravene federal and state banking and financial instruments laws.  The Court also sided with the Tuvims in their arguments that equitable doctrines such as cy pres, constructive trust, and unjust enrichment were not properly applicable to circumvent these state and federal financial rules.  After remand by the Supreme Court, further litigation ensued over certain aspects of these issues.  Upon further briefing and oral arguments, Judge Dempsey ruled in favor of the Tuvims on all claims.

TRAGIC VICTIMS OF OVER-CRIMINALIZATION AND OVER-FEDERALIZATION

Although they occurred in the summer, another review of the videotape of the U.S. Congressional hearings on over-criminalization of conduct and over-federalization of criminal law, and the heartbreaking testimony therein by several individual citizens whose lives were destroyed by a marauding federal criminal law enforcement regime, suggests the need to post a link to those hearings, which makes available the written statements submitted by prominent experts and the oral testimony given by those experts as well as, harrowingly, by two private citizens from Middle America Central Casting.  In addition to the fine analyses provided by the experts, including former high-ranking federal law enforcement officials Richard Thornburgh and Stephen A. Saltzburg, there is the unforgettable testimony of Kathy Norris (beginning at elapsed time 41:50 of the hearings video) and Krister Evertson (beginning at 55:15), the two individuals whose lives were devastated by overreaching federal law enforcement agents and prosecutors.  No one genuinely concerned about individual civil liberties in modern America can watch this testimony without a sinking stomach.

COLUMBUS LAWYER ACQUITTED OF FEDERAL CRIMINAL CHARGES

In a tremendous defense victory, a Columbus, GA lawyer has been acquitted by a federal jury of money-laundering, bribery, drug conspiracy, and other charges brought against him by federal prosecutors, after a six-day trial and twelve hours of jury deliberations in a Columbus federal court.  The jury acquitted the lawyer, Mark Shelnutt, a Columbus criminal defense lawyer, of all thirty-six charges included in the indictment, which were brought against him by prosecutors in connection with his representation of a defendant in an earlier drug case.  Mr. Shelnutt was represented by Savannah lawyer Tom Withers of the Atlanta and Savannah law firm Gillen, Withers, & Lake. See here for a full description of the case and trial. The acquittal occurred just several weeks after the Eleventh Circuit U.S. Court of Appeals ruled in favor of a defendant lawyer in similar circumstances in the case U.S. v. Velez.

WILSON WINS SUPREME COURT VICTORY FOR CLIENTS IN CASE OF FIRST IMPRESSION

The Roger C. Wilson Law Firm, PC  has won a substantial victory for several of its clients before the Georgia Supreme Court in a complex case involving federal and state banking, financial, and estate laws, Tuvim, et al. v. United Jewish Communities, et al., no. S09A0006,decided June 15, 2009. In the case, handled on appeal by Roger C. Wilson, the Supreme Court ruled in favor of the Firm clients on all claims presented there and reversed a lower court’s decisions to the contrary.
 

The principle issue in the case was the propriety of a corporation being a “pay-on-death” beneficiary on certain financial instruments (trust and deposit bank accounts and federal government bonds) so that the corporation would receive the assets from those instruments after the death of the person who created them. Roger C. Wilson argued to the Court that under both state and federal law, corporations are forbidden from being such a beneficiary on those kinds of
instruments. Consequently, he argued, upon the death of the person who created those instruments, the assets underlying them should pass not to such corporation but instead to the
individual heirs of the deceased person.

The Supreme Court agreed and ruled in favor of the Firm’s clients, the individual heirs in this case.

The case also involved additional issues under Georgia law applicable to administration of estates. The lower court had ruled at trial that even if corporations were disqualified as pay-on-death beneficiaries on the financial instruments at issue in this case, the underlying assets should nevertheless pass to the corporation involved, and not to the individual heirs, based on other doctrines of Georgia law known as cy pres and unjust enrichment. On appeal Roger C. Wilson challenged those rulings too, arguing that those doctrines are inapplicable in this case.
 
The Supreme Court agreed and ruled in favor of his clients on these issues as well. Thus, on all substantive claims and issues involved in the case on appeal, the Supreme Court agreed with
Roger Wilson’s arguments, ruled in favor of his clients, and reversed the rulings and judgments of the lower trial court to the contrary.

SECOND JURY DEADLOCKS AND FAILS TO CONVICT WILSON CLIENT IN CRIMINAL CASE

A second jury has deadlocked and failed to convict a client of Roger C. Wilson of criminal charges relating to alleged driving under the influence of alcohol in a second trial in Coweta County, Georgia State Court.  Wilson defended the same client in a previous trial for the same charges in the same court.  In that earlier trial the jury also deadlocked and failed to convict the client of the charges.  It was discovered that the earlier jury was deadlocked 4 to 2 to acquit when a mistrial finally was declared.  Notwithstanding that, the Coweta prosecutors chose to re-try the case.  It was in that re-trial, also tried by Roger C. Wilson that the second jury ended up deadlocked and thus also failed to convict the Wilson client on the same charges.

The case involved a single-vehicle accident in the late hours of the night.  Allegedly the client was tested and determined to have a blood/alcohol content of more than three times the legal limit.  The client also allegedly made incriminating statements to the investigating police officers shortly after the crash.  However, during extensive pretrial investigation by the defense, it was discovered that multiple critical items of evidence had been destroyed or lost by the police authorities involved, including all audio and video recordings of the investigation and interrogation of the client made by those authorities from multiple recording sources:  on the front of the police car, inside the car, and on the investigating officer himself.

Based on that destruction or loss of evidence by the State, Wilson sought to have excluded at trial any testimony by the police officer regarding allegedly incriminating statements by the client (because the police had destroyed all evidence by which the allegations concerning such statements could be confirmed).  However, the judge refused those requests, leaving only the possibility of  arguing to the jury regarding the unfairness of these circumstances.

Additionally, on cross-examination at trial it was established, and finally admitted by the police witness, that the written reports of the investigation contained several false statements, including regarding the identification of the defendant client.  The defense also obtained and presented to both juries important information from a witness who had arrived at the scene of the crash before police did, and from whom trial testimony was obtained that significantly supported the defense in the case.

Post-trial interviews with jurors suggested that these circumstances played a significant part in their refusal to convict the client in either of the two trials.