FBI: “Former Executive at First Command Financial Services Pleads Guilty”

August 26, 2014

The Federal Bureau of Investigation (FBI) on August 25, 2014 released the following:

“FORT WORTH, TX—A former executive at First Command Financial Services, an investment advisor and financial planning firm located in Fort Worth, Texas, pleaded guilty this morning before U.S. District Judge Reed C. O’Connor to a felony offense stemming from a fraud scheme she ran while employed there, announced U.S. Attorney Sarah R. Saldaña of the Northern District of Texas.

Redonda Russell, 66, of Fort Worth, pleaded guilty to a felony Information charging one count of wire fraud. She faces a maximum statutory penalty of 20 years in federal prison, a $250,000 fine, and restitution. She will remain on bond pending sentencing, which is set for December 8, 2014.

Russell worked for First Command for 22 years, before leaving the company in the spring of 2013. She is a registered Investment Advisory Representative and Broker-Dealer Agent. She is able to buy and sell securities, and she is authorized to give investment advice to clients. She is a Chartered Financial Consultant (ChFC), a designation she earned by completing a comprehensive course of financial education, examinations, and practical experience. Through First Command’s client database, Russell had access to clients’ personal identifying information (PII), investment/insurance account numbers, and balances for the account holder and beneficiaries.

According to plea documents filed in the case, beginning on approximately April 3, 2012, and continuing through April 18, 2013, Russell obtained PII for at least 18 First Command clients, eight of whom were deceased. Russell admitted using that information to forge, or otherwise present claims as the account holder, beneficiary, or legal representative of the account holder/beneficiary, to First Command’s affiliated investment and insurance partners to liquidate the targeted accounts.

Russell admitted that part of her scheme was to steal funds from inactive clients’ accounts, thus making the fraud harder to detect. She also targeted accounts that were maintained by First Command’s business partners that were part of an industry-standard, paperless signature program that eliminated the need for the verifying entity to send additional substantiating paperwork to the receiver. After Russell altered ownership/control of the targeted customers’ accounts, Russell sent a policy cancellation/disbursement form and W-9 tax withholding form and instructed the affiliated partner to either liquidate or take a loan against the targeted accounts.

Funds were subsequently wired into one of Russell’s 12 bank accounts or, if checks were mailed, Russell would endorse and deposit them. Checks were endorsed by Russell, Russell signing as her husband, Russell signing as her daughter-in-law, or an amalgam of signatures she used to perpetuate the scheme usually having the surname “Russell.”

Russell’s scheme resulted in the liquidation of more than $316,000 from First Command’s clients’ accounts.

The FBI investigated the case; Assistant U.S. Attorney Nancy Larson is in charge of the prosecution.”

More Information on Federal Wire Fraud Statutes, Jury Instructions, and Crimes
Federal Wire Fraud Crimes – 18 U.S.C. § 1343

————————————————————–

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

————————————————————–

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.


“Inmate Charged in Murder-for-Hire Plot Against Federal Judge”

May 16, 2013

The Federal Bureau of Investigation (FBI) on May 15, 2013 released the following:

“FORT WORTH, TX— Phillip Monroe Ballard, 71, has been charged with murder for hire, United States Attorney Kenneth Magidson of the Southern District of Texas announced today.

The indictment, returned just a short time ago, alleges Ballard solicited the murder for hire of a U.S. District Judge in the Northern District of Texas.

Ballard, currently in federal custody on unrelated charges in the Northern District of Texas, will remain in custody pending further criminal proceedings in this case. He is expected to appear before a U.S. Magistrate Judge in Fort Worth in the near future.

If convicted, Ballard faces up to 20 years in prison and a $250,000 fine.

The case is being investigated by the FBI. Assistant U.S. Attorneys Mark McIntyre and Craig Feazel are prosecuting the case.

An indictment is a formal accusation of criminal conduct, not evidence. A defendant is presumed innocent unless convicted through due process of law.”

————————————————————–

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

————————————————————–

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.


Thirteen Individuals Indicted in an Alleged Health Care Fraud and Drug Distribution Scheme

March 20, 2013

The Federal Bureau of Investigation (FBI) on March 19, 2013 released the following:

“Five Doctors, Four Pharmacists, and Home Health Agency Owner Among Those Indicted in Follow-Up to the Babubhai Patel Case

Thirteen individuals have been charged in a large-scale health care fraud and drug distribution scheme, United States Attorney Barbara L. McQuade announced today.

McQuade was joined in the announcement by Special Agent in Charge Robert L. Corso of the Drug Enforcement Administration, Special Agent in Charge Robert D. Foley, III of the Federal Bureau of Investigation, and Lamont Pugh, Special Agent in Charge of the Inspector General of the Department of Health and Human Services.

The superseding indictment, unsealed yesterday, adds 13 new defendants and new charges to a 2011 indictment, which charged Canton Pharmacist Babubhai ‘Bob” Patel with overseeing a massive health care fraud and drug distribution ring at more than 20 pharmacies that he owned and controlled in metro-Detroit.

The 13 new defendants named in the superseding indictment include five doctors, four pharmacists, and a home health agency owner:

  • pharmacist Mehul Patel, 34, of Canton
  • pharmacist Pradeep Pandya, 49, of Grand Blanc
  • pharmacist Vikas Sharma, 34, of Windsor
  • pharmacist Mukesh Khunt, 33, of Toronto
  • physicians Richard Utarnachitt, 71; of Clinton Township
  • physician Ruben Benito, 72, of Madison Heights
  • physician Javaid Bashir, 59, of Jackson
  • physician Carl Fowler, 60, of West Bloomfield
  • physician Rajat Daniel, 47, of West Bloomfield
  • home health agency owner Vinod Patel, 40, of Canton
  • business associate Atul Patel, 31, of Canton
  • marketer Anthony Macklin, a.k.a. “Jimbo,” of Detroit
  • marketer Michael Thoran, a.k.a. “Ace,” also of Detroit

The 21-count superseding indictment charges that Babubhai Patel was the owner and controller of approximately 26 Michigan pharmacies. The indictment alleges that Babubhai Patel would offer and provide kickbacks, bribes, and other illegal benefits to physicians to induce those physicians to write prescriptions for patients with Medicare, Medicaid, and private insurance. Patel would also direct that those prescriptions be presented to one of the Patel Pharmacies for billing. In exchange for their kickbacks and inducements, the physicians would write prescriptions for the patients and bill the relevant insurers for services supposedly provided to the patients without regard to the medical necessity of those prescriptions and services. The physicians would direct the patients to fill their prescriptions at one of the Patel Pharmacies, where Babubhai Patel and his pharmacists would bill insurers, including Medicare, Medicaid, and private insurers, for dispensing the medications, despite the fact that the medications were medically unnecessary and, in many cases, never provided. Patients were recruited into the scheme by patient recruiters or “marketers,” who would pay kickbacks and bribes to patients in exchange for the patients’ permitting the Patel Pharmacies and the physicians associated with Patel to bill their insurance for medications and services that were medically unnecessary and/or never provided.

The indictment further alleges a conspiracy to distribute controlled substances at the Patel pharmacies to facilitate the submission of false and fraudulent claims to Medicare, Medicaid, and private insurers. According to the indictment, Babubhai Patel and his associates paid physicians kickbacks for prescriptions for controlled substances for their patients and directed those patients to fill the prescriptions at a Patel Pharmacy. The controlled substances included the Schedule II drug oxycodone (Oxycontin), the Schedule III drug hydrocodone (Vicodin, Lortab), the Schedule IV drug alprazolam (Xanax), and the Schedule V drug cough syrup with codeine. According to the indictment, prescriptions for these drugs were written outside the course of legitimate medical practice. Babubhai Patel and his pharmacists would then dispense the controlled drugs to patients without medical necessity. The distribution of controlled substances in this manner was intended, in part, as a kickback to the patients for agreeing to enable their insurance cards to be billed for medications purportedly dispensed at the Patel Pharmacies. The indictment also alleges that Babubhai Patel and his pharmacists dispensed controlled substances outside the scope of legitimate medical practice to patient recruiters or “marketers,” as a kickback for their efforts in to recruit patients into the scheme.

In addition to his pharmacies, the indictment alleges that Babubhai Patel had an ownership interest in a home health agency managed by his brother, Vinod Patel. The indictment alleges that Vinod Patel, Babubhai Patel, and others bribed physicians and other referral sources for referrals to that home health agency and then billed the Medicare program for home health services that were medically unnecessary and never provided.

Of the 26 defendants originally charged in the indictment, six, including Babubhai Patel and four pharmacists, were convicted at a trial last summer. Fifteen additional defendants, including six pharmacists and two doctors, have pleaded guilty in the case. The five remaining defendants whose charges were renewed in the superseding indictment are set for trial on June 10, 2013. On February 1, 2013, Babubhai Patel was sentenced to 17 years’ imprisonment by U.S. District Judge Arthur J. Tarnow.

“Taxpayers fund Medicare and Medicaid to provide health care for needy citizens,” McQuade said. “We hope that doctors and pharmacists will take note that if they exploit these programs for personal profit, they will face serious consequences.”

Robert L. Corso, Special Agent in Charge of DEA’s Detroit Field Division stated, “Confronting the illegal diversion and abuse of controlled pharmaceuticals is a top priority of DEA and our law enforcement partners. Today’s indictments, particularly of the medical professionals are significant. It is alleged that these individuals abused their positions of trust and endangered the lives of countless people by illegally distributing opiate painkillers and depressants throughout southeast Michigan. This investigation makes it clear that the DEA and our partners in law enforcement will continue to investigate and bring to justice those individuals that are responsible for the illegal distribution of prescription medicines.”

FBI Special Agent Robert Foley stated, “Dishonest health care providers and pharmacists who exploit Medicare and Medicaid through fraudulent billing and other schemes will be held accountable for their crimes. The FBI remains committed to investigating this type of fraud and bringing those who abuse the system to justice.”

“Schemes involving the illegal diversion and/or distribution of controlled substances go hand and hand with the fraudulent billing of Medicare and other health care programs,” said Lamont Pugh, III, Special Agent in Charge of the U.S. Department of Health & Human Services, Office of Inspector General—Chicago Regional Office. “The OIG and our law enforcement partners are acutely aware of the potential for those who commit health care fraud to utilize this blended approach when seeking to line their pockets with tax payer dollars. The indictments and arrests announced today illustrate our combined commitment and effort to protect the safety and well-being of the public and as well as the health care programs they rely upon.”

The investigation in this case was handled by the Drug Enforcement Administration, the Federal Bureau of Investigation, and the Department of Health and Human Services Office of Inspector General. The case is being prosecuted by Assistant U.S. Attorneys John K. Neal and Wayne F. Pratt.

An indictment is only a charge and is not evidence of guilt. A defendant is entitled to a fair trial in which it will be the government’s burden to prove guilt beyond a reasonable doubt.”

————————————————————–

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

————————————————————–

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.


8 former federal prosecutors in Chicago are considered for next U.S. attorney

October 17, 2012

Chicago Tribune on October 17, 2012 released the following:

“By Annie Sweeney and Ameet Sachdev, Chicago Tribune reporters

Eight former federal prosecutors in Chicago — six men and two women — have been chosen for interviews as a selection committee narrows its search on who should succeed former U.S. Attorney Patrick Fitzgerald, according to sources.

Six partners in major Chicago law firms are among the finalists, as well as a federal judge and the state’s inspector general, the sources said.

Fitzgerald stepped down in June after a record stint of nearly 11 years as Chicago’s chief federal prosecutor.

With the presidential election hovering over the selection, Illinois’ two U.S. senators, Democrat Dick Durbin and Republican Mark Kirk, have vowed to make a bipartisan pick.

The Tribune previously reported that U.S. District Judge Virginia Kendall was in the running for the U.S. attorney post after court officials last month transferred her criminal caseload to other judges to avoid any appearance of a conflict of interest. She has been on the federal bench since 2006.

Two of the finalists are minorities — Lori Lightfoot, a partner at the law firm of Mayer Brown, and Ricardo Meza, the executive inspector general in Gov. Pat Quinn’s administration.

The best-known candidate could be Patrick Collins, who garnered much attention as the lead prosecutor in the Operation Safe Roads probe that culminated in the 2006 conviction of former Gov. George Ryan and numerous of his former top aides. He is a partner at the law firm of Perkins Coie.

Zachary Fardon, another key member of the prosecution team at Ryan’s six-month trial, is a partner in Chicago at the law firm of Latham Watkins. Fardon, who grew up in Tennessee, held the No. 2 post at the U.S. attorney’s office in Nashville before going into private practice.

Three finalists have ties to a co-chair of the selection committee, Mark Filip, who resigned from the federal bench to take the No. 2 post in the Justice Department in the final year of President George W. Bush’s administration. Jonathan Bunge and John Lausch are partners at the same law firm — Kirkland & Ellis — as Filip. And Gil Soffer joined Filip at the Justice Department in a high-ranking post. Soffer is now a partner at the law firm of Katten Muchin Rosenman.”

————————————————————–

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

————————————————————–

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.


Adel Daoud Indicted By a Federal Grand Jury for Allegedly Trying to Detonate a Car Bomb Outside a Chicago Bar

September 21, 2012

Chicago Tribune on September 20, 2012 released the following:

“Man indicted for attempted bombing of Chicago bar

Peter Bohan
Reuters

CHICAGO (Reuters) – An 18-year-old man his attorney described as a “misguided kid” was denied bail and indicted on Thursday for attempting to detonate what he thought was a car bomb outside a Chicago bar.

Adel Daoud was subdued in federal court, dressed in bright orange prison clothing with shackled legs, a mop of frizzy black hair and a sparse beard and mustache. He exchanged a few words with his attorney but said nothing during the hearing.

Daoud, a U.S. citizen who lives in the Chicago suburb of Hillside, was arrested on September 10 after trying to explode a fake bomb provided by an undercover FBI agent as part of an investigation lasting several months, authorities said.

A grand jury on Thursday indicted him on two counts of attempting to use a weapon of mass destruction and maliciously attempting to use an explosive to destroy a building. If convicted on the first count, Daoud faces up to life in prison.

Daoud’s attorney Thomas Durkin argued before U.S. Magistrate Judge Arlander Keys that Daoud had been entrapped by the FBI and “this kid couldn’t build a bomb if his life depended on it.”

But Assistant U.S. Attorney William Ridgway read through details of the charges against Daoud with evidence recorded over months, including alleged comments that Daoud said he would “only be satisfied of 100 were killed and 300 injured” in the attack. Daoud had repeatedly rejected suggestions to delay or halt plans for the attack, Ridgway said.

Ridgway described Daoud as deceptive, charismatic and knowledgeable, arguing that the defendant was dangerous and a flight risk. The judge agreed.

“The evidence shows he was predisposed to do it before the FBI” got involved, Judge Keys said of the bomb plot, adding that Daoud appeared to have “a strong desire to kill Americans, felt justified in doing so, and the more he could kill the better.”

The judge ordered Daoud held without bail after the 20-minute hearing. Daoud shuffled out silently but glanced at his father, Ahmed, who was seated in the front row at court.

According to an FBI affidavit, Daoud used email accounts starting in about October 2011 to gather and send materials “relating to violent jihad and the killing of Americans.”

Undercover FBI employees began corresponding with Daoud in May and later provided Daoud with a Jeep apparently full of explosives – but which was an inert device produced by undercover law enforcement, according to the affidavit. Daoud was arrested after trying to detonate it outside a downtown bar located near the Chicago Board of Trade building.

Durkin, who has experience as a defense lawyer in terrorist trials including representing detainees held at Guantanamo Bay, told reporters after the hearing that he was not surprised by the denial of bail.

“No judge in the world is going to let anybody out on a terrorism case,” he said.

But he accused the FBI of coming down hard on Daoud because Islam and terrorism were involved and despite evidence that his father and two religious leaders had tried to dissuade Daoud from “ideas” like jihad.

“Anybody at 18 years old who was raised in America who would be seriously questioning those type of values I would think might have some mental issues, and I think the FBI would know that as well,” Durkin told reporters.

The next hearing will be an arraignment before U.S. District Judge Sharon Coleman. No date was set.”

————————————————————–

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

————————————————————–

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.


Feds drop terrorism charges against Miami cab driver accused of aiding Taliban

June 14, 2012

The Miami Herald on June 13, 2012 released the following:

“Federal prosecutors have dropped charges against a member of a South Florida family accused of supporting the Pakistani Taliban, a designated terrorist group.

BY JAY WEAVER
JWEAVER@MIAMIHERALD.COM

A one-time Miami cab driver who was detained for nearly a year on charges alleging that he provided aid to Pakistani Taliban terrorists won’t face trial, after federal prosecutors dropped the case against him, according to a dismissal order filed Wednesday.

The U.S. attorney’s office provided no reason for dismissing charges against Irfan Khan, 39, a U.S. citizen who is married with two children. The one-paragraph dismissal order was signed Tuesday by U.S. District Judge Robert Scola.

“We are unable to comment on the internal deliberations that led to our decision,” said Alicia Valle, special counsel to U.S. Attorney Wifredo Ferrer. “However, the charges against his co-defendants remain in place and trial is pending for those defendants in U.S. custody.”

Khan was arrested in May 2011 in Los Angeles, where he was working part-time in a software computer job. He was indicted on charges of conspiring with his father and brother, imams who led two mosques in Miami-Dade and Broward counties, and three others to provide financial support to the Pakistani Taliban, a designated terrorist organization.

Khan had been detained in the Federal Detention Center in downtown Miami until April, when he was granted a bond by a federal magistrate judge.

“Irfan is obviously pleased that the government has recognized what we’ve long known — that he did not send any money to Pakistan to aid the Taliban,” said his attorney, Miami acting federal public defender Michael Caruso. “His happiness is tempered by his father and brother’s continued imprisonment, but he looks forward to rebuilding his life with his wife and two young children.”

Last year, Irfan Khan; his father, Hafiz Khan, 77, the former leader of a Miami mosque; his brother, Izhar Khan, 25, the one-time head of a Margate mosque; and three others were charged with conspiring to collect and send at least $50,000 from South Florida to the Taliban between 2008 and 2010. The other defendants — all believed to be living in Pakistan — are Irfan Khan’s sister, Amina Khan; her son, Alam Zeb; and Ali Rehman.

Irfan Khan, in particular, was accused of making four wire transfers — for $990, $980, $980, and $500 — to Pakistan, including one to his sister.

The FBI used a confidential informant, bank transfer records and more than 1,000 wiretapped phone calls to build the case, which made national headlines.

The Taliban has been accused of attacking both U.S. and Pakistani interests. It has been linked to al-Qaida, and is suspected of playing a role in the failed May 2010 attempt to bomb New York’s Times Square.

Last August, U.S. District Judge Adalberto Jordan ordered that Hafiz Khan, the elderly Muslim cleric, and both of his sons remain in custody until trial. Jordan said evidence against the two younger Khans was less compelling than that against their father. But the judge decided the case was still strong enough to warrant detention, citing their danger to the community and risk of flight.

In April, however, Magistrate Judge Patrick White released Irfan Khan from detention to home confinement on a combined bond package totaling about $700,000. White granted the bond after prosecutors agreed to the terms proposed by Khan’s lawyers in exchange for their dropping his appeal.

His father and brother are still locked up and prohibited from having contact with each other in the federal detention center.

Their trial, a complex case built on wiretaps authorized under the Foreign Intelligence Surveillance Act, is set for early November.”

————————————————————–

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 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.


An aggressive, all-out defense

June 6, 2012

ESPN on June 6, 2012 released the following:

“By Lester Munson

WASHINGTON — It would be easy for Roger Clemens and his legal team to poke a few holes in the evidence against him and then argue to the jury that federal prosecutors have failed to meet the Constitution’s requirement of proof “beyond a reasonable doubt.” If they managed to convince one or two jurors, they could hope for a deadlock in the jury’s deliberations and a mistrial and a technical victory.

That is not what they are doing. As they presented their 14th witness on Tuesday, they were in the middle of a massive effort that seeks nothing less than the total destruction of the government’s effort and a not-guilty-on-all-counts verdict that will vindicate Clemens and begin to restore his legacy as one of baseball’s greatest pitchers.

It’s a highly unusual strategy. There was enough doubt about the government’s evidence after the four-day cross-examination of the prosecutors’ star witness, Brian McNamee, that many defense lawyers would have concluded their efforts and relied on the jury to find the necessary “reasonable doubt.” McNamee confessed to numerous lies, mistakes and exaggerations, the kinds of admissions that most defense lawyers agree are enough to persuade one or more dubious jurors to hold out for a not guilty verdict.

But lead Clemens attorney Rusty Hardin’s cross-examination of McNamee was only the beginning, not the end, of the defense effort.

Relying on a high school teammate, retired ballplayers, expert witnesses, a housekeeper, two masseuses, a broadcaster, and even an FBI agent, Hardin is offering answers to every element of the government’s charges against Clemens. And there is more to come. Hardin says he’ll finish his presentation of as many as 21 witnesses on Friday, and when he is done, it promises be an impressive accumulation of evidence.

Here’s a look at how the Clemens lawyers have responded so far to the government’s charges that Clemens lied to Congress when he denied that he had ever used steroids or HGH.

At the center of the government’s case is a trove of syringes, cotton balls, vials, and ampoules that McNamee claims he used to inject Clemens with performance-enhancing drugs. McNamee gathered the physical evidence after injecting Clemens in August 2001, stored it in a beer can and a FedEx box in his house, and finally turned it in to the government in January 2008. The prosecutors used an FBI expert and a forensic scientist from a private lab to show that Clemens’ DNA was present on some of the materials.

On Tuesday afternoon, Bruce Goldberger, a Ph.D. forensic toxicologist who is the founder and director of a lab at the University of Florida, explained to the jury that the physical evidence did not meet the standards that apply to the collection and preservation of physical evidence.

Goldberger’s testimony came after a vigorous and extended argument from Asst. U.S. Attorney Daniel Butler, who insisted to U.S. District Judge Reggie Walton that Goldberger was not qualified to offer expertise on the collection of evidence and was qualified only to examine substances (blood, urine, drugs) in his laboratory. Clearly impressed with Goldberger and his knowledge of evidence collection, Walton allowed Hardin to present the expert to the jury.

Commingling the cotton balls, the syringes, and the other materials in what may have been a damp beer can, Goldberger said, leads to the possibility of “cross-contamination” and precludes the connection of any of the materials to anyone.

Speaking calmly and persuasively in what was the most powerful testimony in the entire trial, Goldberger told the jury that “the possibility of contamination leads to unreliable laboratory conclusions” and “there must be certainty beyond a reasonable doubt before we can make the scientific connection” between the material and an individual.

In the course of Goldberger’s testimony, the language of the trial was transformed with words like “manipulation” and “fabrication” and “garbage” suddenly being used in connection with materials the prosecutors had described as “medical waste.”

Goldberger told the jury that the material was doubly suspicious because it had been “collected and preserved by the accuser.” Hardin was soon referring to McNamee as the “accuser-collector.”

Butler’s cross-examination of Goldberger did not help as he quarreled with Goldberger about his qualifications and picked at him with questions about the “back story” of a piece of evidence. Butler succeeded only in allowing Hardin to come back with a question that prompted Goldberger to conclude that the physical evidence was the worst Goldberger had seen in 30 years of working with trial evidence.

On another central issue in the trial, Hardin has managed to suggest something that seemed totally unlikely ballplayers’ use injections of Vitamin B12 the way most of us use aspirin or Tylenol. Clemens, in what once seemed to be a weak response to allegations that he had been injected with steroids, claimed that the injections were B12.

Former pitcher Mike Boddicker told the jury that B12 injections were common during his 13 years in the big leagues and that he once walked into the Boston Red Sox training room and was surprised to see Clemens with his pants down being injected in the buttocks with B12. Boddicker, another charming and engaging witness for the defense, told the jury that he could see “B12” on the vial on the training table.

Like the other MLB players that Hardin and Clemens have presented, Boddicker seemed to capture the attention of the jury with his stories that he survived in the big leagues for 13 years with an 84-mph fastball and that he was once traded from the Baltimore Orioles to the Red Sox for Brady Anderson and Curt Schilling.

Prosecutor Steven Durham tried to cross-examine Boddicker by raising the well-known, unwritten law of an MLB clubhouse that what happens in the clubhouse stays in the clubhouse. It was supposed to show that Boddicker would skew his testimony to help Clemens. But, instead, it opened the door for Hardin to return with Boddicker’s report that Clemens would frequently leave the clubhouse in uniform to visit children in Boston hospitals and that he insisted that his teammates tell no one, especially media, about it.

The enormous Clemens-Hardin effort clearly has the prosecutors scrambling. In his attempt to prepare for Goldberger’s testimony, Butler was on the phone with Goldberger on Tuesday morning, only hours before Goldberger appeared before the jury. To prepare for Boddicker’s testimony, the prosecutors sent an FBI agent to interview him on Sunday before his Tuesday appearance.

The defense strategy is proactive, and it is aggressive. It fits what we know of the Clemens way of doing things. It’s working now, but as another great ballplayer said, “It ain’t over ’til it’s over.””

————————————————————–

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 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.