Georgia Criminal Defense Lawyer Blog

Earlier today, Magistrate Judge Baverman agreed to allow T.I. (Clifford Harris, Jr.) to post bond while facing federal criminal charges in Atlanta. Last week, T.I.'s defense lawyers asked the judge for a multi-million dollar bond with home detention and close supervision (read the post from last week). Today, the judge granted the request and set T.I.'s bond at $3 million with some extraordinary restrictions and conditions, including no visitors after 8 p.m. and no alcohol at all. Visitors are limited to 3 at a time and only during "visiting hours." They must also pass a criminal background check. The Atlanta Journal Constitution has the details.

Now that he's out, the next step for T.I. and his lawyers will be a review of all evidence relating to the case. By now, the government should have already provided the lawyers with discovery materials pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Rule 16 materials usually include any statements of the defendant, copies of relevant documents and access to any physical evidence for inspection and examination. I am sure that the defense lawyers will also conduct their own investigation of the government's potential witnesses and informants. If there are audio or video recorded conversations between the informants and T.I., copies will be provided to the defense team.

If the case goes to trial, the defense lawyers will be provided with any prior statements made by the witnesses against T.I. and any related impeachment material (usually plea deals and special consideration provided by the government to their informants and witnesses). The local practice is for the government to dump all this information on the defense the Friday before a Monday trial.

When would the case go to trial? If there is no deal, the trial is supposed to start within 70 days. But there are almost always delays. Usually, the delays are the result of motions hearings and other pretrial procedures.

This case is expected to be a "short case", but the government has already indicated a possibility of additional charges. If so, it looks like a long and difficult ride for T.I. At least he will be at home while the case is pending. It certainly beats a Union City jail cell.

Genarlow Wilson should soon be a free man. Earlier today, the Georgia Supreme Court issued its decision affirming the habeas court's order vacating Wilson's felony aggravated child molestation conviction. The Court found that the ten year prison sentence was "cruel and unusual" and violated both the Georgia and United States Constitutions. The Court disagreed, however, with the habeas judge's decision to impose a misdemeanor conviction on Genarlow. Instead, the Court held that Genarlow should have no conviction and should be released from prison as soon as the habeas court amended its order. I understand that the habeas judge amended his order earlier today. As a result, Genarlow may be walking out the prison door this afternoon. The full story can be found in the Atlanta Journal Constitution.

The Supreme Court split 4 to 3. The majority opinion was written by Chief Justice Sears. Justices Carley, Hines and Melton dissented. Justice Carley's dissent argues that the Court's decision ignores the legislature's intent that the new misdemeanor punishment for this offense should not be applied retroactively. According to Carley and the other dissenting justices, the legislature's decision to keep people like Genarlow in prison for at least ten years should be controlling, despite the fact that the same offense would now carry only a maximum of 12 months in jail.

The decision surprised some, but pleased many. Given the Court's decision to deny cert to Wilson in an earlier appeal, many commentators thought the cruel and unusual punishment argument would be dead on arrival. But the Court was "comfortable" finding Genarlow's sentence to be excessive considering the "evolving standards of decency" as recognized by the Georgia legislature when they enacted the new misdemeanor statute.

Congratulations to Genarlow and his vigilant team of lawyers, led by B.J. Bernstein. This case proves that hard-work, persistence and the right amount of public pressure can truly change lives.

Rapper T.I. was arrested this weekend in Atlanta, Georgia on federal firearm charges. He was in Atlanta to collect a handful of awards at the BET Hip-Hop award show. Instead, he spent the weekend at the federal detention center awaiting his initial appearance this afternoon.

This afternoon, Magistrate Judge Alan Baverman informed T.I. about the charges he is facing, and ordered him held in custody pending a detention hearing on Friday. The story was reported in the Atlanta Journal Constitution about an hour ago. The affidavit supporting the criminal complaint can be found online. There is also a good description of the type of machine guns involved.

Many people are asking what will happen next. In federal court, the procedures are fairly straight-forward. At the initial appearance this afternoon, the government filed a motion for detention arguing that T.I. should be held without bond pending trial. That's not unusual in this district and probably has less to do with T.I.'s celebrity than with his prior felony drug record. I doubt there will be any strong evidence that T.I. is a flight risk, but the government may try to argue that he is a "danger to the community" given his criminal record and the nature of the new charges.

At the detention hearing (scheduled for this Friday) Judge Baverman will decide whether T.I. will be held in custody or released on bond. If he is released, the judge may impose certain conditions like electronic monitoring, curfews and travel restrictions. The judge may also set a high bond considering T.I.'s financial resources. If the judge denies bond, T.I. and his defense lawyers will be able to appeal that ruling to a district court judge.

Regardless of the outcome of the detention hearing, there will also be a preliminary hearing on Friday. Because T.I. was arrested on a criminal complaint he is entitled to a hearing to determine if there was probable cause to arrest him. It is rare for a complaint to be dismissed at such a hearing, but it is legally possible.

The government will then have 30 days to indict the case. If T.I. is indicted, he will be brought back to court for an arraignment. At that time, the case will be assigned to a new judge and motions will be filed. A trial date will be set sometime later, unless there is a plea.

I have defended many people charged with firearm offenses in this district, and we won a machine gun trial last year. Gun cases, however, are difficult to win at the federal level because the government need only prove that the person has a current felony conviction and had "possession" of a firearm that has "affected interstate commerce" at some time.

Fortunately for T.I., he has hired two very experienced and effective federal defense attorneys. And, of course, he's innocent until proven guilty beyond a reasonable doubt.

But no matter what happens on Friday, I am sure T.I.'s weekend in Atlanta was not at all what he had planned.

The U.S. Attorney's Office in Atlanta, Georgia confirmed today that Dr. Phil Astin will likely face additional criminal charges in federal court for over-prescribing testosterone to Chris Benoit, the pro wrestler who killed himself, his wife and young son earlier this year in Fayetteville, Georgia.

The Atlanta Journal Constitution has the details.

Dr. Astin was already under a federal indictment due to an alleged "excessive" number of prescriptions he wrote while practicing medicine in Carrollton, Georgia. The criminal case is currently pending in federal court. Dr. Astin's former defense lawyer had challenged the basis for the search warrant that led to the seizure of his file and patient records. No word on when the court will rule on that challenge. (Usually, it takes several months. First, the magistrate judge issues a "report and recommendation" that goes to the district judge. That judge then evaluates the report and makes the final decision.)

This is not the first time federal prosecutors in Atlanta have challenged a physician's decision about prescribing medications. I am currently representing a well-respected physician who is being charged with authorizing certain medications to be prescribed over the internet for patients with obesity problems or erectile dysfunction. That case is scheduled to go to trial in December. The government's theory is that the doctors (there are several being charged) should not have authorized medications to people based on medical histories and other information they provided over the internet. At the time, however, there were no federal laws preventing such prescriptions, and the American Medical Association had not yet developed a position on that practice. Our position is that a doctor should not be held criminally liable for what is basically a medical decision. We'll see what happens in December.

As for Dr. Astin, I am not representing him, so I do not know all the facts of his case. To me, it appears that the government is trying to do the same thing to him - turn some questionable medical decisions into federal crimes. Not sure how his case will turn out, but it may set a precedent for prosecuting doctors for being negligent in their practice. Being negligent used to mean a trip to the state medical board, now it may mean a trip to the pokey.

In the past few months, we have been fortunate to convince district attorneys in two different Georgia counties to dismiss serious felony charges against our clients that had arisen out of business disputes. In one case, it was a former employer charging his employee with computer trespass and theft charges to avoid paying severance pursuant to a valid employment contract. In another case, it was a business partner who charged his former partners with robbery and kidnapping to cover up his own theft of company funds. Both clients are now free, but only after an incredible amount of work by their lawyer.

These cases are an example of a trend I've seen developing in the past few years - the pursuit of criminal charges in civil disputes. Some people (and even some lawyers) think the best way to win a business dispute is to have the other person arrested. And sometimes they're right. The pursuit of a criminal arrest warrant can be a devastating and highly effective weapon, if it is used correctly. But it can also be greatly abused, with drastic consequences for the innocent person involved.

Getting someone arrested is, unfortunately, not as hard as you may think. There are basically two ways to do it. First, call the police (Atlanta Police Department, Cobb County Police, Gwinnett County Police, etc.). If the responding officer thinks there is probable cause to arrest someone, he/she can do it. The other alternative is to visit your local magistrate court (Fulton County,Cobb County, Gwinnett County). If you can convince a magistrate judge that there is probable cause that a crime has been committed he/she can issue a warrant on the spot. If not, then the magistrate may set the case down for a pre-warrant hearing. At that hearing, both parties can present their witnesses and evidence and the magistrate judge will determine whether to issue a warrant.

Of course, if you do this, be careful and tell the truth. I have seen magistrate judges issues warrants for the people who asked for the hearing in the first place. The judge decided that the person made a false report of a crime and they were arrested on the spot.

Fortunately for both our clients, all charges were dismissed before any trial or conviction. But that doesn't mean they didn't suffer. In the kidnapping case, our client was held in jail for days before we could secure his release (kidnapping is a serious violent felony charge and bond can only be set by a superior court judge). In the computer trespass case, the client had to suffer the indignity of a public arrest and indictment (and a record that will take many months if not years to clean up). And, of course, both clients had to pay some hefty legal fees for all the work we had to do to vindicate them.

There is a remedy for our clients, and others who are falsely charged with a crime as a result of a business dispute. There are Georgia laws that prohibit malicious prosecution and defamation and allow people to pursue civil lawsuits and recover money judgments. But that involves more litigation, more lawyers and, of course, more money.

Hopefully, police officers and magistrate judges will be especially diligent in issuing warrants when there is evidence that a business dispute is behind the allegations of misconduct. It is also a good practice for magistrates to hold more pre-warrant issuance hearings to hear from both parties before someone is arrested. Many magistrates already do this, and we have been successful in representing our clients at these hearings and having the charges dismissed before anyone is ever arrested.

But people will still get arrested for crimes they didn't commit. As long as that happens, we will have plenty of work to do. If a deputy sheriff ever knocks on your door and serves you with notice to appear at a warrant hearing, don't panic. Just give us a call. We've been down that road before.

A federal criminal trial in Rome, Georgia continues today. It's an interesting case involving a local businessman (Mario Armas) who is accused of funding a multi-million dollar drug smuggling operation. He is charged with violating federal drug laws, and also of being involved in a Continuing Criminal Enterprise. He is looking at 20 years minimum if convicted. Read the indictment filed in the federal district court in Rome.

The trial is expected to last over a week. The government witnesses will include Armas' former business partner (an admitted drug smuggler) and two professional rodeo workers who allegedly transported truckloads of cash and drugs. According to the federal indictment, over 2,000 pounds of marijuana was distributed in Georgia through this conspiracy. And millions of dollars in cash changed hands, including over $1 million as ransom for a kidnapped associate.

The case is covered in the Macon, Georgia Telegraph, and in the Rome News-Tribune.

Although the facts of this case are somewhat unusual, there is nothing unusual about the U.S. Attorney's Office using drug dealers as snitches at trial. I have tried over a dozen federal drug trials in the last few years and have seen it happen many times. Sometimes it's successful, and sometimes not. It usually depends on how credible the snitch is, and how many snitches the government calls to testify.

Considering the severity of the federal statutes and sentencing guidelines, there is an incredibly strong motivation to become a government witness. The only way to avoid the mandatory minimum sentences in federal drug cases is to either cooperate and give the government "substantial assistance" in a criminal investigation, or qualify for "safety valve" treatment as a first-time drug offender. Even under the safety valve, a person only gets credit if they agree to tell the government everything about their offense, and that assumes the government believes their story.

So, the only real way to significantly reduce a federal drug sentence is to testify and get the coveted 5K2.1 motion. That allows the court to give a much lower sentence than either the sentencing guidelines or the statutes ordinarily require.

But there are no guarantees. Once you roll over, you're at the government's mercy. We'll see if these witnesses end up better off than Mr. Armas as a result of their guilty pleas.