Roger Clemens’ second trial starts Monday

April 16, 2012

The Washington Post on April 15, 2012 released the following:

“By Ann E. Marimow and Del Quentin Wilber

Former pitching powerhouse Roger Clemens returns to the District’s federal courthouse Monday to be tried for a second time on charges that he lied to Congress about using performance-enhancing drugs.

The baseball legend’s first trial ended after just two days last summer when the judge declared a mistrial because of a prosecutorial error.

Now the Justice Department will have another chance to try Clemens, an 11-time all-star accused of perjury, obstruction of Congress and making false statements. Clemens could face 30 years in prison if convicted on all charges.

The high-stakes trial begins Monday with jury selection, a process expected to include lengthy questioning of the backgrounds and biases of more than 80 Washingtonians. Some legal observers familiar with the case said the retrial gives the government an advantage because prosecutors have had a preview of the defense team’s approach and time to retool and prepare witnesses.

The government has the “upper hand” after hearing the defense’s road map for the case the first time around, said Steven Levin, a former federal prosecutor and criminal defense lawyer.

But Michael Volkov, another former federal prosecutor, said the government must overcome the challenge of convincing jurors of the importance of bringing such a case when no one was injured and no major national policy was affected by the allegations.

Volkov suggested that the government would have to tie its case to broader concerns about steroid abuse in professional sports and its potential impact on children.

“The question is, how do prosecutors make people care?” Volkov said. “Everybody believes Congress lies to them anyway.”

In their first round of opening statements last July, prosecutors said Clemens used performance-enhancing drugs to prolong his storied career and then lied about it to a House committee to shore up his legacy.

Clemens, 49, won an unprecedented seven Cy Young awards during his 24-year career with the Boston Red Sox, Toronto Blue Jays, New York Yankees and Houston Astros. His defense team, led by Rusty Hardin, said Clemens had a track record as a hard-working professional who was clean, and never lied.

A central figure in the case is Clemens’s former trainer, Brian McNamee, who told Congress he had injected Clemens with performance-enhancing drugs. Clemens’s lawyers have said McNamee, whose story about steroids has changed over the years, cannot be trusted.

Finding an impartial jury for such a well-publicized case could be tricky. The trial coincides with the start of the Major League Baseball season and the return to the sport of pitcher Andy Pettitte, a former Clemens teammate and friend who may be a key government witness.

“It makes a difficult process exponentially more difficult,” said Andrew White, a former federal prosecutor.

The Justice Department initially took the case after Congress requested an investigation into Clemens’s testimony to the House Committee on Oversight and Government Reform in 2008. Clemens denied using steroids or human growth hormone following a 2007 report by former senator George Mitchell that identified Clemens and dozens of other players as having taken banned substances.

Major League Baseball has since 1971 prohibited the use of steroids and human growth hormone — known as HGH — without a prescription. The league explicitly banned steroids in 1991 and HGH in 2005.

U.S. District Judge Reggie B. Walton declared a mistrial last July after the government showed a video clip that included barred evidence.

Prosecutors led by Steven Durham and Daniel Butler played a videotaped segment of congressional testimony that referenced Pettitte’s wife. Andy Pettitte, who recently came out of retirement to rejoin the Yankees and was also named in Mitchell’s report, told congressional investigators Clemens confided in him about taking a performance-enhancing substance. He said he shared the conversation with his wife.

Laurie Pettitte gave Congress an affidavit backing her husband’s claims, and Walton ruled before the first trial that prosecutors could not raise her statements before the jury.

While Walton said he was troubled by the government’s misstep, he ruled that a second trial would not violate Clemens’s constitutional protection against double jeopardy, which ensures defendants are not subjected to endless prosecutions.”

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


John Edwards gambles on NC jury to avoid prison

April 11, 2012

Associated Press on April 10, 2012 released the following:

“By MICHAEL BIESECKER, Associated Press

RALEIGH, N.C. (AP) — As a young personal injury lawyer in North Carolina, John Edwards earned a reputation for turning down multimillion-dollar settlement offers on bets that jurors would award his clients more money at the end of a trial.

“The twelve souls who spend full days, full weeks, or sometimes long months sitting only a few feet from you get to know you almost as well as you know yourself,” Edwards wrote in “Four Trials,” his 2003 autobiography. “They take in every movement, fact, word, hesitation, and glance. My faith in the wisdom of ordinary people took root in the mill towns of my youth. But the juries of my adulthood deepened that faith.”

Now the former U.S. senator and two-time Democratic presidential candidate is making the biggest courtroom gamble of his life — that a jury will clear him of alleged campaign finance violations and keep him from being sent to prison.

Jury selection for Edwards’ criminal trial is set to begin Thursday in the Middle District of North Carolina. The sprawling 24-county federal judicial district includes the town where he grew up, Robbins, as well as dozens of other small communities where old textile mills now sit idle but evangelical churches are routinely full.

U.S. District Court Judge Catherine C. Eagles, who was appointed in 2010 by President Barack Obama, will preside. She said she expects the proceedings to last about six weeks.

Edwards, who declined an interview request through his lawyers, was indicted by a federal grand jury last year on six felony and misdemeanor counts related to nearly $1 million secretly provided by wealthy campaign donors to help hide his pregnant mistress, Rielle Hunter, as he sought the White House in 2008. If convicted, he faces a maximum penalty of 30 years in prison and as much as $1.5 million in fines.

Before his indictment, Edwards rejected a potential plea agreement with federal prosecutors that would have allowed him to serve as little as six months and keep his law license, according to two people with direct knowledge of the offer. More than a year after his wife, Elizabeth, died of cancer, Edwards is now a single parent of two children, ages 13 and 11, who live with their father at the family’s gated estate outside Chapel Hill. Eldest daughter Cate Edwards, 30, is a lawyer who married last year.

A graduate of the University of North Carolina law school, John Edwards made his fortune handling medical malpractice and corporate negligence cases before turning to politics following the death of his 16-year-old son Wade in a 1996 auto accident. Edwards was elected to the U.S. Senate in 1998 and was John Kerry’s running mate in 2004. His law license has been listed as inactive for more than a decade.

For his part, Edwards has said he is looking forward to getting back in front of a jury, even though he’ll be the one at the defense table.

“After all these years, I finally get my day in court and people get to hear my side of this, and what actually happened,” Edwards said on the steps of the federal courthouse in Greensboro following a pretrial hearing in October. “And what I know with complete and absolute certainty is I didn’t violate campaign laws and I never for a second believed I was violating campaign laws.”

Regardless of the outcome, the coming trial in USA v. Johnny Reid Edwards is sure to set legal precedents for what constitutes a campaign donation under federal law.

A key issue will be whether Edwards knew about the payments made on his behalf by his national campaign finance chairman, the late Texas lawyer Fred Baron, and campaign donor Rachel “Bunny” Mellon, an heiress and socialite who is now 101 years old. Both had already given Edwards’ campaign the maximum $2,300 individual contribution allowed by federal law.

Edwards denies having known about the money, which paid for private jets, luxury hotels and Hunter’s medical care. Prosecutors will seek to prove he sought and directed the payments to cover up his affair, protect his public image as a “family man” and keep his presidential hopes viable.

Defense attorneys and prosecutors declined to comment about likely trial issues. But hundreds of pages of pre-trial motions and hours of oral arguments in recent months offer insights into their likely strategies.

Abbe Lowell, Edwards’ lead lawyer, contends that even had Edwards known about the secret payments, his actions wouldn’t amount to a crime under federal law because his motivation was keeping his wife from learning of the affair, not influencing the outcome of an election. Lowell has said in court that the government’s case relies on flawed legal reasoning, that the grand jury process was tainted and that the Republican federal prosecutor who led the investigation, now-congressional candidate George Holding, was motivated by partisanship.

Lowell has derided what he calls the government’s “crazy” interpretation of federal law whereby money that was never handled by the candidate nor deposited in a campaign account is being defined as campaign contributions.

The Federal Election Commission reviewed Edwards’ case and declined to seek charges or issue a fine. The defense is likely to call two former FEC commissioners as expert witnesses.

Edwards’ legal position is also supported in a court brief filed by the Center for Responsibility and Ethics in Washington, a campaign finance watchdog group.

“In the United States, we don’t prosecute people for being loathsome, we prosecute them for violating the law,” CREW executive director Melanie Sloan said this week. “The real reason for these payments is obvious: To prevent Mr. Edwards’ cancer-stricken wife from finding out about the affair. This makes him despicable, but not a criminal.”

Much of the money at issue was funneled to Andrew Young, a former campaign aide once so close to Edwards that Andrews initially claimed paternity of his boss’s illegitimate child. Young and his wife invited the pregnant Hunter to live in their home near Chapel Hill and later embarked with her on a cross-country odyssey as they sought to elude tabloid reporters trying to expose the candidate’s extramarital affair.

Young later fell out with Edwards and wrote an unflattering tell-all book, “The Politician.” Young and Hunter recently ended a two-year legal battle over ownership of a sex tape the mistress recorded with Edwards during the campaign, agreeing to a settlement that dictates that copies of the video will be destroyed.

Young is expected to be a witness for the prosecution, while the defense is likely to call Hunter to testify. Two of the lawyers who represented Hunter in her civil suit against the former aide joined Edwards’ legal team last month. After years of adamant public denials, Edwards acknowledged paternity of Hunter’s daughter, Frances Quinn Hunter, in 2010. The girl, now 4, lives with her mother in Charlotte.

It has not yet been decided whether Edwards, who was once known for his ability to charm jurors, will testify in his own defense.

But if he does take the witness stand, the case could hinge on which admitted liar the jury chooses to believe — Edwards, who appeared on national television to deny having an affair with Hunter and fathering her child, or Young, who claimed in a written statement that the baby was his.

“Juries seek the truth, and even as a (law) clerk I learned that neither silver-tongued cunning nor hapless bungling will find it for them,” Edwards wrote in “Four Trials.” ”So the best lawyer must be honest and in a way plain in answering any doubts or confusions, and you must know the facts — all of them — for otherwise the jury will lose faith in you. As it should.””

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Louis Gendason, Kimberly Mackey, John Incandela, and Marcos Echevarria Charged by a Criminal Complaint with Conspiracy to Commit Wire Fraud

July 6, 2011

The U.S. Department of Justice on July 6, 2011 released the following:

“Coinciding with One-Year Anniversary of “Operation Stolen Dreams,” Three Loan Officers and a Title Agent Charged in $2.5 Million Reverse Mortgage and Loan Modification Scheme

WASHINGTON – The Justice Department announced today the unsealing of a criminal information earlier today, charging four defendants – Louis Gendason, 42, of Delray Beach, Fla.; Kimberly Mackey, 46, of Pittsburgh; John Incandela, 24, and Marcos Echevarria, 29, both of Palm Beach, Fla. – with conspiracy to commit wire fraud involving a nation-wide reverse mortgage scam that defrauded elderly borrowers, financial institutions and the Department of Housing and Urban Development (HUD). A reverse mortgage allows borrowers, who are at least 62 years of age, to convert the equity in their homes into a monthly stream of income, or a line of credit. Three of the defendants made their initial appearances at the federal courthouse in Fort Lauderdale, Fla., earlier today. If convicted, the defendants each face a statutory maximum term of up to 30 years in prison and a fine of up to $1 million. These charges coincide with the one-year anniversary of “Operation Stolen Dreams,” the department’s anti-mortgage fraud enforcement initiative announced by Attorney General Eric Holder last June.

These latest charges demonstrate the department’s continued commitment to the identification and eradication of mortgage fraud. The scheme charged today contains many of the characteristics common to mortgage fraud around the country. The information charges Louis Gendason, John Incandela and Marcos Echevarria with using a Florida-based loan modification business known as Lower My Debts.com L.L.C. as a front to identify elderly borrowers who were financially-vulnerable. They are alleged to have in their capacity as loan officers at 1st Continental Mortgage LLC. solicited borrowers to refinance their existing mortgages with a reverse mortgage loan financed by Genworth Financial Home Equity Access Inc. To induce Genworth and HUD to fund and insure the reverse mortgage loans, the defendants allegedly changed the unwitting borrowers’ real estate appraisal reports to fraudulently represent equity in the properties. The information alleges that Gendason, Incandela and Echevarria originated fraudulent loans on properties located in seven different states between May 2009 and November 2010 exceeding $2.5 million.

As a further part of the charged conspiracy, a fourth defendant, Kimberly Mackey, a licensed title agent and proprietor of the Pittsburgh title agency Real Estate One Land Services Inc., fraudulently closed the Genworth loans by failing to pay off the seniors’ existing liens. Instead, Mackey wired nearly $1 million in Genworth loan proceeds to the business checking account for Lower My Debts.com. She conspired to conceal the fraudulent loan closings from financial institutions by preparing written settlement documents which falsely represented that the borrowers’ existing mortgages had, in fact, been paid off. In some instances, after Mackey wired the loan proceeds to bank accounts in Florida controlled by her co-conspirators, she is alleged to have assisted them with defrauding the banks holding the borrowers’ first mortgages by negotiating fake short sales. This was designed to induce these banks to release their valid liens on the seniors’ properties at a fraction of their existing loan balance. All of the defendants are accused of pocketing the illegally-obtained loan proceeds.

“Protecting Americans from financial fraud is one of our top priorities,” said Tony West, Assistant Attorney General of the Justice Department’s Civil Division. “With these charges, we are taking another important step in the effort we began with Operation Stolen Dreams by holding accountable those whom we believe lined their own pockets with money that should have gone to help vulnerable seniors.”

“These defendants preyed on senior citizens on fixed and modest incomes. While legitimate loan modifications and reverse mortgages are useful tools to help those who need it, we will remain vigilant to make sure these tools are not misused by those who seek to line their own pockets,” said Wifredo Ferrer, U.S. Attorney for the Southern District of Florida. “We urge potential borrowers to use caution when entrusting their homes and savings to those offering financial alternatives, including loan modifications and reverse mortgages.”

This case was investigated by agents from the HUD-Office of Inspector General; the Internal Revenue Service-Criminal Investigation; the U.S. Postal Inspection Service; the FBI Miami Field Office; and the state of Florida’s Office of Financial Regulation. The case was prosecuted by Trial Attorney Kevin J. Larsen from the Civil Division’s Office of Consumer Protection Litigation, along with Assistant U.S. Attorneys Jeffrey H. Kay and Thomas P. Lanigan from the U.S. Attorney’s Office for the Southern District of Florida.

Anyone with knowledge of such schemes is encouraged to contact the HUD hotline at 1-800-347-3735.

Initiated in June 2010, Operation Stolen Dreams targeted mortgage fraudsters throughout the country and was the largest collective enforcement effort ever brought to bear in confronting mortgage fraud. The operation was organized by the Mortgage Fraud Working Group of President Obama’s interagency Financial Fraud Enforcement Task Force, which was established to lead an aggressive, coordinated and proactive effort to investigate and prosecute financial crimes. The President’s Financial Fraud Enforcement Task Force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general, and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources. Operation Stolen Dreams targeted 1,517 criminal defendants nationwide, included 525 arrests, and involved an estimated loss of more than $3 billion.

The operation also resulted in 191 civil enforcement actions and the recovery of more than $196 million. Combating mortgage fraud continues to be a primary focus of the Civil Division. Since the end of Operation Stolen Dreams last June, Civil Division attorneys have continued to vigorously pursue mortgage fraud cases throughout the country, working with our partners in the U.S. Attorneys’ Offices and various federal agencies, specifically including HUD.”

To find additional federal criminal news, please read The Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Bookmark and Share