“Judge: FBI gag orders unconstitutional”

March 18, 2013

San Francisco Chronicle on March 15, 2013 released the following:

By: Bob Egelko

“In a blow against government secrecy, a federal judge ruled Friday that the tens of thousands of “national security letters” the FBI sends each year demanding customer records from phone companies, banks and others, are unconstitutional because they forbid recipients from revealing that the letters exist.

While the government has valid reasons to keep secret the contents of the letters, which involve investigations of terrorism or espionage, a gag order that makes it a crime to disclose one has received such a letter “restrains … speech about government conduct” with little opportunity for judicial review, said U.S. District Judge Susan Illston of San Francisco.

She directed the FBI to stop issuing national security letters that contain gag orders, but put her ruling on hold during an expected government appeal.

Attorney Matt Zimmerman of the Electronic Frontier Foundation, which filed the suit in May 2011 on behalf of an unnamed telecommunications company, said Friday that the gag orders “have truncated the public debate on these controversial surveillance tools.”

The company “looks forward to the day when it can publicly discuss its experience,” Zimmerman said.

The FBI referred questions to its national office, which was unavailable for comment late Friday.

The USA Patriot Act, passed in response to the Sept. 11, 2001, terrorist attacks, authorized the FBI to issue national security letters on its own for information that it considers relevant to an investigation of international terrorism or spying.

Virtually all of the letters include a permanent gag order.

In 2008, a federal appeals court in New York found the gag orders constitutionally defective but said most of the flaws could be cured by reinterpreting the law: for example, requiring the FBI to notify the recipient that it could challenge the order in court, and requiring the government to show a “good reason” to maintain blanket secrecy.

In the current case, Illston said Justice Department lawyers told her the government has followed the appeals court’s standards. But she said those assurances weren’t enough, because the FBI has no such policies in writing, and the underlying law remains unchanged.

“The risks of unwarranted suppression of speech inherent in content-based speech restrictions cannot be adequately ameliorated by governmental promises,” the judge said.

Congress amended the law in 2006 to allow recipients to challenge national security letters on constitutional grounds, but left the government with near-total power over the gag orders, Illston said.

In amending and renewing the law, Illston said, lawmakers showed that they were “concerned with giving the government the broadest powers possible to issue … nondisclosure orders and preclude searching judicial review.”

She said there is “no reasonable construction (of the law) that can avoid the constitutional infirmities.””

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

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

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To find additional federal criminal news, please read Federal Criminal Defense 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 Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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.


Judge set to sentence Barry Bonds

December 16, 2011
Barry Bonds

CNN on December 15, 2011 released the following:

“(CNN) — Baseball legend Barry Bonds is scheduled to be sentenced Friday for his obstruction of justice conviction.

The hearing at 11 a.m. (2 p.m. ET) will take place in a San Francisco federal courtroom less than two miles from the ballpark where Bonds broke Hank Aaron’s major league home run record in August 2007.

Federal prosecutors want Bonds, 47, to serve 15 months in prison, according to a sentencing memo filed in court earlier this month.

Defense lawyers argued in their filing that the judge should accept the probation office’s recommendation that Bonds be sentenced to two years’ probation, fined $4,000 and ordered to perform 250 hours of community service.

Jurors who found Bonds guilty in April said he was “evasive” in his testimony to the federal grand jury investigating illegal steroids use by pro athletes.

“Because Bonds’s efforts were a corrupt, intentional effort to interfere with that mission, a sentence of 15 months imprisonment is appropriate,” the prosecution said in its memo to U.S. District Judge Susan Illston.

But jurors, who were deadlocked on three perjury counts, said that it was not proven that Bonds lied when he testified that he had not knowingly used steroids. Prosecutors decided not to pursue a retrial.

Prosecutors still argued in the sentencing memo that Bonds’ denial that he was “taking steroids and human growth hormone were patently false.”

Bonds’ testimony in December 2003 was part of the investigation that targeted Bonds’ personal trainer Greg Anderson and employees of the California drug testing laboratory known as the Bay Area Laboratory Co-operative (BALCO).

The testimony that led to Bonds’ conviction came when a grand jury prosecutor asked Bonds if Anderson ever gave him “anything that required a syringe to inject yourself with.”

Bonds told the grand jury that only his personal doctors “ever touch me,” and he then veered off the subject to say he never talked baseball with Anderson.

Defense lawyers argued that Bonds thought the creams and ointments Anderson was giving him were made of flax seed oils.

Sentences for other athletes convicted in connection with the BALCO investigation have not included prison time.”

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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 McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Barry Bonds’ lawyers seek home confinement

December 7, 2011
Barry Bonds

San Francisco Chronicle on December 7, 2011 released the following:

“Bob Egelko, Chronicle Staff Writer

Barry Bonds’ lawyers asked a federal judge Tuesday to sentence him to home confinement for obstruction of justice in his testimony about steroids, saying Bonds has a laudable but little-known record of public service and should be sentenced no more severely than other sports figures.

The former Giants star, baseball’s all-time home run leader, was convicted in April of trying to thwart an investigation into steroid distribution by giving evasive answers to a federal grand jury in 2003. The jury deadlocked on three charges that Bonds committed perjury in denying he had knowingly used steroids, and prosecutors have decided not to retry him.

Defense lawyers plan to appeal the conviction. In the meantime, U.S. District Judge Susan Illston of San Francisco is scheduled to sentence Bonds on Dec. 16 and could send him to prison for a year or more – but is unlikely to do so, based on her sentencing in earlier cases.

For example, as Bonds’ lawyers noted Tuesday, Illston sentenced former cycling champion Tammy Thomas to six months of house arrest for four convictions of lying about steroids. The judge gave track coach Trevor Graham a year of home confinement for a perjury conviction after evidence that he had supplied drugs to athletes.

A court-appointed probation officer has recommended that Bonds be given probation and home confinement for some period below six months, and Illston should follow that proposal, defense lawyer Allen Ruby said. He did not specify the recommended period and said the officer’s report was confidential.

“Mr. Bonds does not dispute that he was convicted of a serious offense,” Ruby said. But he cited the probation officer’s conclusion that his conviction appears to be “an aberration when taken in context of his entire life.”

Prosecutors have not yet submitted their sentencing recommendation.

Bonds, 47, was charged with lying to and misleading the grand jury that was investigating steroid distribution to athletes by BALCO, the Bay Area Laboratory Co-Operative in Burlingame.

His longtime friend and former trainer, Greg Anderson, refused to testify against him and spent more than a year in prison for contempt of court, preventing prosecutors from tying Bonds to BALCO tests showing steroid use.

He was convicted of obstructing justice by replying to a question about whether Anderson had ever given him injectable drugs with an answer that discussed their friendship, Bonds’ childhood and other subjects but never saying yes or no. Bonds’ lawyers said he later answered the question truthfully with a denial, but Illston upheld the conviction.

In Tuesday’s filing, Ruby said Bonds should be given credit for “charitable and civic contributions” that “have taken place away from the public eye.”

He quoted a letter to the court from a nurse at UCSF Children’s Hospital, where a new family playroom bears Bonds’ name.

Bonds has made numerous “unannounced and unpublicized visits” and is “always unfailingly kind and attentive to the many young children who flock to his side,” the nurse said. “Frequently he will go to the bedside of a particularly ill child and gently give him/her words of encouragement to ‘never give up.’ “”

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

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

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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 McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Barry Bonds’ Obstruction Conviction in Steroids Probe Upheld by Federal Judge

August 29, 2011

Bloomberg on August 26, 2011 released the following:

“By Peter Blumberg

Barry Bonds, Major League Baseball’s home-run record holder, lost a bid to overturn his conviction for obstruction of justice in a government probe of steroid use by athletes, according to a court filing.

U.S. District Judge Susan Illston in San Francisco issued a ruling yesterday denying the slugger’s request for an acquittal and refusing to grant a new trial.

Illston rejected Bonds’s argument that there was no crime in his 146-word answer to a grand jury about whether his trainer Greg Anderson ever gave him anything that required an injection with a syringe. His attorney, Dennis Riordan, said at an Aug. 25 hearing before Illston that the former San Francisco Giants outfielder took about 75 seconds to respond to prosecutors’ direct question and eventually answered “no.”

“Defendant repeatedly provided nonresponsive answers to questions about whether Anderson had ever provided him with injectables, resulting in the prosecuting attorneys asking clarifying question after clarifying question, and even once resulting in one prosecutor interrupting another who was about to move on to a new topic in order to clarify defendant’s mixed responses,” Illston wrote in her ruling. “An evasive answer about an issue material to the grand jury is not necessarily rendered immaterial by the later provision of a direct answer, even if that direct answer is true.”

Convicted in April

Bonds, 47, was convicted in April by a federal jury in San Francisco of obstructing a U.S. probe of steroid use by professional athletes. Jurors were unable to agree on whether Bonds lied when he told a grand jury in 2003 that he didn’t knowingly take steroids, didn’t take human growth hormone and didn’t receive injections by Anderson. A mistrial was declared on those counts.

Riordan didn’t immediately respond to a phone message seeking comment on the ruling after regular business hours.

Bonds broke Hank Aaron’s record of 755 career home runs in August 2007. He was indicted in November of that year for allegedly lying to a 2003 grand jury about steroids use. He was the first Major League ballplayer to be charged in a years-long federal probe of steroid use in professional sports.

Bonds’s attorneys said at trial that he truthfully testified that he received performance-enhancing substances from Anderson without knowing what they were because the drugs were new at the time and Anderson told him one was flaxseed oil.

In the grand jury proceedings, Bonds didn’t say yes or no when asked if Anderson ever gave him anything “that required a syringe to inject yourself with.”

‘One Doctor’

He responded that he “only had one doctor touch me” and he didn’t talk baseball with his trainer or “get into other people’s business.” Bonds said that’s what kept his friendship with Anderson going.

“I became a celebrity child with a famous father,” Bonds told the grand jury, referring to his father, Bobby Bonds, a three-time All-Star who played for eight teams including the Giants and the New York Yankees. “I just don’t get into other people’s business because of my father’s situation, you see.”

At the Aug. 25 hearing, Assistant U.S. Attorney Merry Jean Chan argued that Bonds could have answered yes or no, “but instead went on this exploration of his relationship with Greg Anderson” and engaged in “rambling that the jury found was given to evade.”

Bonds’s eventual answer of “no” to the question was untruthful “in light of all the evidence at trial” including testimony from his former personal shopper who said she saw Bonds receiving an injection from Anderson, Chan said.

The case is U.S. v. Bonds, 07-00732, U.S. District Court, Northern District of California (San Francisco).”

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 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.

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