“High-profile cases show a pattern of misuse of prosecutorial powers”

September 23, 2013

The Washington Times on September 22, 2013 released the following:

By Jeffrey Scott Shapiro

“It’s hard to imagine the U.S. as a place where citizens have to fear overzealous prosecution, but last week’s reversals in the cases of former House Majority Leader Tom DeLay and five New Orleans police officers are part of a troubling pattern reminiscent of the Soviet criminal justice system — a system in which the state is always right, even when it is wrong.

In both cases, the judges who overturned the original trial-court verdicts cited instances of prosecutorial overzealousness and abuse of power, making the two cases the latest high-profile trials to run aground on the basis of misconduct by the state’s attorneys.

The high-profile cases in recent years run the gamut from the ancient offenses of murder and rape to increasingly esoteric details of campaign finance and contractor law.

In 2008, Sen. Ted Stevens of Alaska, the longest-serving Republican in the U.S. Senate, was charged by federal prosecutors with failing to report gifts. During the campaign season, Barack Obama said Stevens needed to resign “to put an end to the corruption and influence-peddling in Washington,” and Senate Majority Leader Harry Reid, Nevada Democrat, moved to have Stevens expelled.

Stevens lost the election, but three months later, FBI agents accused prosecutors of withholding exculpatory evidence that could have resulted in the senator’s acquittal. Newly appointed U.S. Attorney General Eric H. Holder Jr. asked the court to vacate Stevens‘ conviction, but the damage already had been done.

The prosecutors’ misconduct destroyed Stevens‘ reputation and political career and affected the balance of power in the U.S. Senate in favor of Democrats.

Circumstances were not entirely different in the prosecution of former U.S. House Majority Leader Tom DeLay, who was accused by local Democratic prosecutor Ronnie Earle to influence state elections with corporate money.

Mr. DeLay was convicted in 2010, but the Texas 3rd Court of Appeals overturned his conviction last week, saying the charges were based on “insufficient evidence.” Mr. DeLay called the indictment “an outrageous criminalization of politics,” but again, a Republican had been run out of politics. Mr. DeLay said he would “probably not” run for political office again.

Washington lobbyist and power broker Jack Abramoff is not as sympathetic a figure as Stevens or Mr. DeLay, but some reports indicate that the Justice Department intimidated Mr. Abramoff into a confession, and his case also revealed how the “honest services fraud” law gives federal prosecutors almost unchallengeable power.

Technically, the law lets prosecutors charge people when they “deprive another of honest services,” but it has been used as a catchall charge when the state is looking to secure an indictment from a grand jury but has exhausted all other options.

The U.S. Supreme Court eventually had to narrow the statutory meaning of the honest services fraud law, enacted in 1988, to avoid striking it down for unconstitutional vagueness.

William L. Anderson, an economics professor at Frostburg State University, once wrote of the law, “Have you ever taken a longer lunch break than what you are supposed to do? Have you made a personal phone call at work or done personal business on your employer’s computer? Have you ever had a contract dispute with an employer or client? All of those things can be criminalized by an enterprising federal prosecutor.”

In another case, five police officers were accused of murder in the fatal shootings of two men on a New Orleans bridge amid the chaos after Hurricane Katrina.

The officers were white and the victims black, and racial tensions were running high. Federal prosecutors turned to civil rights charges in accusing the officers.

Despite the Fifth Amendment’s double jeopardy prohibition, federal civil rights statutes enable U.S. prosecutors to pursue felony charges against a defendant in limited instances even if they have been acquitted of underlying state crimes.

Evidence in the New Orleans case was compelling, and the officers were convicted, but U.S. District Court Judge Kurt Engelhardt ordered a new trial last week, saying the government “engaged in a secret public relations campaign” by anonymously making extrajudicial statements against the defendants on a New Orleans news site.

“This case started as one featuring allegations of brazen abuse of authority, violation of the law and corruption of the criminal justice system,” he wrote in his order.

“Unfortunately the focus has switched from the accused to the accusers. The government’s actions, and initial lack of candor and credibility thereafter, is like scar tissue that will long evidence infidelity to the principles of ethics, professionalism and basic fairness and common sense necessary to every criminal prosecutor, wherever it should occur in this country.”

The Duke University lacrosse players’ case is one of the most notorious of selective prosecution designed for political gain. North Carolina prosecutor Michael Nifong made numerous public statements incriminating the team and turning the media against the defendants.

Despite the accuser’s history of falsely reporting incidents and lack of evidence, Mr. Nifong pushed the politically popular case in the midst of his re-election campaign. State officials took over the case, dismissing all charges, taking the unusual step of declaring the defendants innocent — not merely “not guilty” — and Mr. Nifong was ultimately disbarred.

Russian author Fyodor Dostoyevsky once said that “you can judge a society by how well it treats its prisoners.” The same could be said of how fairly a judicial system prosecutes its accused defendants. Arrogance, not ethics, is emerging as criteria for prosecutorial discretion, and the result is a society based on fear, not freedom.”

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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 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.


FBI: “Woman Who Allegedly Mailed Threatening Letters to U.S. Supreme Court and Throughout New Jersey Arrested on Federal Charge”

July 9, 2013

The Federal Bureau of Investigation (FBI) on July 9, 2013 released the following:

“NEWARK, NJ—An Irvington, New Jersey woman was arrested at her home this morning by members of the FBI Joint Terrorism Task Force (JTTF) for allegedly mailing letters threatening bodily harm to the U.S. Supreme Court and recipients throughout New Jersey, U.S. Attorney Paul J. Fishman announced.

Karen Waller, 50, is charged in a federal criminal complaint with one count of mailing threatening communications. She is expected to appear to face the charge this afternoon before U.S. Magistrate Judge Mark Falk in Newark federal court.

According to the criminal complaint unsealed today, Waller mailed more than 50 threatening letters in May and June 2013 to multiple entities and individuals, including a number in New Jersey. The recipients of those letters included the U.S. Supreme Court; the town hall in Woodbridge Township, New Jersey; Rutgers University; an insurance company; and the Millburn Township, New Jersey Police Department. The letters threatened to injure and kill unspecified individuals.

The charge carries a maximum potential penalty of 10 years in prison and a $250,000 fine.

U.S. Attorney Fishman credited special agents, detectives, and investigators assigned to the JTTF, under the direction of FBI Special Agent in Charge Aaron T. Ford in Newark, with the investigation. The JTTF comprises law enforcement officers from numerous federal, state, and local agencies throughout New Jersey.

The government is represented by Andrew Kogan, chief of the U.S. Attorney’s Office National Security Unit.

The charge and allegations contained in the complaint are merely accusations, and the defendant is presumed innocent unless and until proven guilty.”

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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

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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.


“US Supreme Court to consider Florida couple’s fight to use frozen assets for criminal defense”

July 1, 2013

The Washington Post on June 30, 2013 released the following:

“By Associated Press, Published: June 30

MIAMI — When Kerri and Brian Kaley came under federal investigation for allegedly stealing medical devices, they took out a $500,000 line of credit on their New York house to hire lawyers. Yet after their indictment in 2007, prosecutors sought to prevent the Kaleys from using the money because the government intended to seize the house.

The Kaleys insisted they were legally reselling the medical items. At the very least, they wanted a hearing to determine whether the government’s case was strong enough to justify freezing most of their assets and denying them the right to hire the attorney of their choice.

It’s an issue federal courts around the country are deeply divided over. Now, the U.S. Supreme Court has a chance to settle the matter after agreeing earlier this year to hear the Kaleys’ appeal.

The case involves both the Fifth Amendment’s due process clause and the Sixth Amendment’s right to counsel, and could potentially affect thousands of cases each year in which the Justice Department seeks to seize defendants’ property. Such cases typically range from alleged drug dealers and Mafia figures to Ponzi schemers and Medicare fraudsters, but also could ensnare people who are wrongly accused.

To property rights advocates, the Kaleys’ case is an opportunity for the court to tip the scales of justice slightly more in the favor of defendants who are routinely deprived of their assets without being convicted. The ruling would not directly impact state courts, which operate under their own forfeiture laws, but lawyers could cite the Supreme Court decision to help a client.

“People who are indicted on criminal charges in the United States are presumed innocent,” said Larry Salzman, an attorney with the Institute for Justice, an Alexandria, Va.-based nonprofit law firm involved in forfeiture and property seizure cases nationwide. “Seizing their assets on the basis of an indictment alone turns the presumption of innocence on its head. It follows the rule of punishment first, evidence later.”

Prosecutors, however, say a grand jury’s decision to bring criminal charges shows the case has enough merit to enable them to freeze assets that may have been obtained through illegal activity.

In fiscal 2012, more than $4.2 billion was deposited in the Justice Department’s asset forfeiture fund. That compares with about $1.6 billion in each of the two previous years.

Prosecutors say adding a hearing to allow a defendant to attack the validity of the grand jury’s indictment would force prosecutors to prematurely lay out their case and might even endanger witnesses.

“No reason exists to think that an extra layer of procedure on that score — one that could be undertaken only at significant cost — would be beneficial, much less that it is constitutionally mandated,” the U.S. solicitor general’s office wrote in Supreme Court papers.

The office, which represents the administration of President Barack Obama before the Supreme Court, also asked the justices to settle the question nationally so there would be a single standard in federal courts.

The Kaleys, who live in Cold Spring Harbor, N.Y., have been battling the government for more than six years. They declined an interview request through their Miami-based attorneys, Howard Srebnick and Richard Strafer.

It all started when the Food and Drug Administration began an investigation in 2005 into what appeared to be a highly lucrative but unregulated market of resale of various medical devices, from hardware to sutures. The probe led investigators to a Delray Beach middleman in South Florida who was buying the devices from the Kaleys and others and then selling them to other medical providers. He did some $10 million in business in one year.

At the time, Kerri Kaley was a sales representative for Ethicon Endosurgery, a subsidiary of medical supplies giant Johnson & Johnson. She and her lawyers insist that she was legally allowed to resell the medical items she was given because Johnson & Johnson would not accept them as returns after a certain date and because hospitals wanted to clear out space for newer products. Hospitals also traded the older items for newer, free devices from the sales force.

Another sales representative, Jennifer Gruenstrass, was charged along with the Kaleys but went to trial separately. She was acquitted in November 2007. Gruenstrass’s assets were not frozen before the trial.

“There is a vibrant trading culture that exists between reps and between hospitals,” Gruenstrass’ attorney Robert Casale said. “Nobody is reporting a theft at any of the hospitals. Nobody at Ethicon is saying, ‘We were missing stuff.’ No theft.”

The prosecutor, Assistant U.S. Attorney Thomas Watts-Fitzgerald, said there was evidence the Kaleys and Gruenstrass knew what they were doing was illegal. For example, he said, Brian Kaley set up two shell construction businesses that actually acted as only conduits for the checks his wife was getting through the device sales. And, he said, the Kaleys hastily cleaned out their garage of the devices when they were first contacted by the FDA.

“Those were stolen devices,” Watts-Fitzgerald said. “She had no right, title and interest in any of the equipment they were selling.”

Still, the acquittal of Gruenstrass could indicate the Kaleys have a point in questioning the strength of the federal case. What they want from the Supreme Court is a chance to show that weakness to a federal judge so they can win access to the money they need to pay the lawyers they choose.

The $500,000 line of credit the Kaleys took out on their house was based on their lawyers’ estimate of their fees and expenses to take the case all the way through trial.

The 11th U.S. Circuit Court of Appeals, which handles cases from South Florida, said the Kaleys were only entitled to a hearing on whether their frozen assets were connected to the alleged crimes. Three other circuits have similar standards, while five others do require prosecutors to show at least some evidence of guilt.

The Kaleys face an eight-count indictment on conspiracy, transportation of stolen property, money laundering and obstruction of justice charges that carry maximum combined penalties of 85 years in prison. If convicted, they would likely lose their New York house and the $500,000 line of credit.

“With so much at stake in a criminal case, we believe due process requires a pretrial hearing to determine the propriety of the restraint of assets needed to retain counsel of choice at trial,” said Srebnick, one of the Kaley attorneys.

The criminal prosecution is on hold in federal court in West Palm Beach until the Supreme Court makes its decision. Oral arguments are not expected until October, with a ruling likely in late 2013 or early 2014.”

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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 – Appeal

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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.


“Supreme Court to consider when assets can be frozen pre-trial”

March 19, 2013

Reuters on March 18, 2013 released the following:

“By Lawrence Hurley

(Reuters) – The Supreme Court agreed on Monday to consider in what circumstances the assets of a defendant can be frozen before trial.

The question before the high court is whether prosecutors can prevent defendants from using their assets to pay for a lawyer without a hearing on the issue.

The case concerns Kerri Kaley, a sales representative for a subsidiary of Johnson & Johnson Inc, who was indicted by federal prosecutors in Florida for reselling certain medical devices, including sutures, that she obtained from hospitals to which she had previously sold the same products.

Kaley and her husband Brian were both indicted in February 2007 on seven counts. Prior to the trial federal prosecutors sought to seize their assets.

The case will be argued and decided in the court’s next term, which starts in October and runs until June 2014.

The case is Kaley v. United States, U.S. Supreme Court, No. 12-464.”

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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

————————————————————–

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.


“Supreme Court: Defendants must prove abandoning conspiracies to take advantage of time limit”

January 9, 2013

The Washington Post on January 9, 2013 released the following:

“By Associated Press

WASHINGTON — The Supreme Court says it is up to defendants to prove they withdrew from criminal conspiracies in time to take advantage of a five-year statute of limitations on prosecution.

The high court unanimously ruled against Calvin Smith, who was convicted for his role in a drug organization in Washington, D.C.

He says he shouldn’t have been convicted as part of the conspiracy because he was in prison on another crime for the last six years. He argued that the government should be forced to prove that he participated in the conspiracy within the time limit.

But Justice Antonin Scalia says prosecutors only need prove that the conspiracy continued past the statute of limitations cut-off. The justice says the “burden of establishing withdrawal before that cut-off rests upon the defendant.””

Supreme Court Opinion in Smith v. United States, No. 11–8976 (S. Ct. Jan. 9, 2013).

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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

————————————————————–

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.


Top court to hear arguments over government spying

October 26, 2012

Reuters on October 26, 2012 released the following:

“By Terry Baynes

(Reuters) – A debate over how freely the U.S. government can eavesdrop on international communications reaches a climax on Monday in the country’s highest court.

At issue is a law passed by Congress in 2008 allowing the government to monitor the overseas communications of individuals without obtaining a warrant for each target.

The government has said it needs flexible surveillance power to help prevent strikes by foreign militants such as the attacks of September 11, 2001.

But a group of attorneys, journalists and human rights organizations has challenged the law, saying thousands or even millions of innocent Americans are likely being monitored merely because they are communicating with people overseas.

In oral arguments on Monday, the U.S. Supreme Court will consider whether the challengers have the right to bring a suit against the law.

The government argues that, because the surveillance is secret, the challengers cannot prove they have been harmed by the law and therefore do not have standing to challenge it.

The challengers argue that they are harmed because they must travel to meet their clients and sources in person, to avoid wiretaps. Human Rights Watch, one of the challengers, has had to pay for more plane tickets, translators, drivers and guides because of the law, the group’s general counsel, Dinah PoKempner, said.

Although the question of standing is a technical one, a victory for the government could end the challenge to the law.

If the government prevails at this stage, it will have shielded its surveillance laws from review by the courts, said Jameel Jaffer, a lawyer who represents the individuals and organizations challenging the law.

It’s unclear how the high court will rule. Since the September 11 attacks, the court has shown a reluctance to intervene in the executive branch’s national security and intelligence-gathering procedures. The fact that the court took the case means that at least four justices saw problems with a lower court ruling allowing the case to proceed.

Congress passed the original Foreign Intelligence Surveillance Act in 1978 to clamp down on government spying, which had escalated in the 1960s and 1970s. The law required the government to submit a surveillance application to a special court for each overseas individual it was targeting.

After the attacks of September 11, 2001, President George W. Bush authorized the National Security Agency’s use of warrantless wiretaps in the hunt for people with ties to al Qaeda and other militant groups. The Bush administration ended that program in 2007, but Congress legalized parts of it in an overhaul of the Foreign Intelligence Surveillance Act in 2008.

Under the new law, the government no longer has to provide the court with specific names, phone numbers or email addresses of people to be tapped. Instead, it can apply for permission to conduct mass surveillance merely by stating that it plans to monitor non-U.S. persons overseas to gather foreign intelligence.

The challengers filed a lawsuit saying the new procedures violate the U.S. Constitution’s Fourth Amendment protection against unreasonable search and seizures by allowing the government to sweep up communications with little judicial oversight.

One of the challengers, David Nevin, who is a lawyer for the accused September 11 mastermind Khalid Sheikh Mohammed, said the 2008 law puts lawyers on the “horns of a dilemma.”

Ethics rules prohibit lawyers from holding sensitive conversations with clients when there’s a chance the government is eavesdropping, he said. As a result, Nevin limits what he says by phone and email and instead travels to Guantanamo Bay, Cuba, to talk to his client. But those constraints can make it harder to provide the effective legal assistance that ethical rules also require.

“We’ve gone back to the Stone Age,” said Tina Foster, a human rights lawyer who joined a brief in support of the challengers. “It’s like eliminating the benefit of telecommunication and access to information.”

In 2009 a federal district court in New York found that the challengers failed to prove they had been harmed by the law. But in 2011 the 2nd U.S. Circuit Court of Appeals disagreed, allowing the suit to proceed based on the plaintiffs’ fear of surveillance and the cost of trying to avoid it.

The government then petitioned the Supreme Court, arguing that the challengers did not have standing to bring their suit. To have standing, the challengers had to show that their injuries were “actual or imminent, not conjectural or hypothetical,” the government said in its petition.

Six former U.S. attorneys general have submitted a brief supporting the government, warning that allowing the suit to proceed would open the floodgates to litigation that would risk exposing state secrets.

The Justice Department declined to comment before Monday’s oral arguments.

In separate litigation, civil liberties groups tried to hold phone companies including AT&T Inc, Sprint Nextel Corp and Verizon Communications Inc accountable for helping the government eavesdrop on private conversations. A federal appeals court in December found the companies immune to the suits, and the Supreme Court this month declined to review that case.

The case before the U.S. Supreme Court is Clapper et al v. Amnesty International et al, No. 11-1025.”

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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

————————————————————–

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.