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 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.

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.

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.

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.