Georgia Criminal Defense Lawyer Blog

On Thursday, Jim Williamson was sentenced to three years in federal prison for fraud in connection with his job as Sheriff of Telfair County.

The Macon Telegraph has the story.

Williamson’s second term as sheriff ended in December of last year. A month later he pleaded guilty to allegations of accepting bribes, purchasing personal items with county funds, and embezzling fine money. In one instance, Williams is alleged to have kept $5,000 seized from a traffic stop. He also allegedly used county money to purchase an ATV for personal use. Prosecutors say he also transferred a state prison inmate to the county jail to be closer to his girlfriend after accepting money to do so.

The federal presentence report indicated that Williamson should receive around 4 years in prison, and under federal law, he faced a possibility of 20 years. Williamson’s defense attorney argued that he was a good man, and that his infractions constituted only a small part of his life and career. Ultimately, U.S. District Judge Dudley Bowen handed down a sentence of 36 months and three years of supervised release. Williamson must also pay restitution to the county; however, the exact amount is still being determined.

Our firm has also represented public officials in federal and state criminal investigations. These cases can be uniquely difficult because of the intense scrutiny and media attention that surrounds such an arrest and prosecution. Politics also plays a big role in these cases and can complicate a defense.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Thursday, the Supreme Court of the United States ruled that a state’s laboratory analyst must testify in person at a criminal defendant’s trial if the state wishes to introduce forensic reports showing a substance to be drugs.

In Melendez-Diaz v. Massachusetts, the defendant, Melendez-Diaz, was arrested for distributing and trafficking in cocaine. Police were notified that he was acting in a suspicious manner while working at a Kmart and witnessed him make an apparent drug sale outside the store. An officer then detained and searched Melendez-Diaz and found white plastic bags containing a substance resembling cocaine. More bags were found in the police car after he had been transported to jail. The police submitted the substance to a state laboratory for a chemical analysis.

At trial, the prosecution entered into evidence the bags holding the substance and three “certificates of analysis” which were sworn to by a notary public as required by state law. The certificates stated that the substance was in fact cocaine and gave the weight as well. The defense objected to the evidence, since under the former Supreme Court case of Crawford v. Washington, a defendant’s accuser must testify in court unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Specifically, Crawford requires a witness to testify at trial when giving “testimonial” statements. Crawford was based on every citizen’s right to confront his accusers under the Sixth Amendment of the Constitution. The trial court disagreed with the defense and allowed the certificates to be introduced into evidence without compelling the analyst who made the reports to testify. Melendez-Diaz was then convicted. He lost on appeal until his case reached the Supreme Court of the United States.

The state argued that analysts do not have to testify in court since they are not accusatory witnesses. The Court disagreed with the state and determined that a witness is not excused from testifying at trial simply because he did not interrogate the witness. A witness is also not excused simply because his statements come from neutral and scientific testing. The Court found that the statements on the certificates were the type of statements Crawford intended to cover, since an objective witness would have reasonably believed that the statements made on the certificates would be available for use at trial. Furthermore, the purpose of the evidence was to show the substance’s composition and weight for which he was on trial for. Thus, information stating that a substance is a drug is in fact testimonial in nature which requires a witness to testify at trial.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The former principal and assistant principal of Atherton Elementary School in Decatur have been arrested on charges of cheating on student tests. A state investigation revealed last week that the two changed answers on student tests in an attempt to increase their school’s performance.

The Atlanta Journal Constitution has the story.

The principal, James Berry, had resigned last week during the investigation and was arrested at his home on Friday. He is currently being held without bond. The vice principal, Doretha Alexander, turned herself into police on Thursday after being reassigned by school district officials. She has since been released on $1,500 bond. Both face charges of altering public documents.

The two arrests come after the state audited test scores and discovered that four schools had higher scores which helped them avoid sanctions under No Child Left Behind. Specifically, the audit revealed that some answer sheets had as many as 40 erasures and that most had been changed from wrong to right. The average number of erasures on tests that were not altered was two.

The state school board must now decide whether to keep the scores of those four schools. If the state does not keep the scores or if a school does not meet the standards of No Child Left Behind, the school must offer extra tutoring and give parents the opportunity to send their kids to a better school.

Deerwood Academy, Parklane Elementary, and Burroughs-Molette Elementary are also being investigated for possible alterations.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

In Rincon, a city near Savannah, the husband and wife of a Chinese buffet were arrested for conspiring to harbor and employ illegal immigrants. The 36-year-old husband, Guo Hua Jiang, was sentenced to 21 months in prison on Thursday.

The Savannah Morning News has the story.

The indictment against the couple states that they employed one or more illegal immigrants since February in order to “obtain commercial advantage and private financial gain.” Prosecutors believe that at least 10 illegal immigrants worked at the restaurant.

District Court Chief Judge William T. Moore Jr. sentenced Jiang to 21 months in prison and three years on supervised release once his prison sentence has ended. The sentence comes after Jiang entered a guilty plea in May. Jiang also agreed to forfeit $75,000 instead of giving up two residencies in Rincon. His wife has also entered a guilty plea but has yet to be sentenced.

The couple now faces deportation.

We have handled several immigration fraud allegations, and have so far been successful in getting charges dismissed against our clients. (One case was dismissed the week before trial.)

Like other federal attorneys in Georgia, we noticed an increase in these cases due to Justice Department priorities under the Bush Administration. We'll see if that pace continues with the new folks in charge.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A Gwinnett County woman was arrested last Friday for restraining her 15-year-old son with handcuffs while trying to perform an exorcism. A family friend was also arrested with the mother.

The Atlanta Journal Constitution has the story.

Sandra Alfred, 46, has been charged with false imprisonment and cruelty to children for restraining her son against his will. The family friend, Larry Powell, was also charged with cruelty to children.

Police say that on June 10 one of the two called Lilburn Police to report an unruly juvenile. Upon investigating, police discovered that the boy had been restrained with handcuffs against his will. Police also learned that the boy had not been allowed to eat or drink for 12 hours at a time over a period of three days. Alfred and Powell apparently told police that they were trying to perform an exorcism on the boy. Police believe the mother may suffer from delusions.

The boy was treated at Gwinnett Medical Center for injuries and dehydration before being released. For now, Alfred and Powell are being held in jail and are scheduled to appear in court on June 26.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

Since 1998, Georgia has collected the DNA of certain felons in a database in the hopes of solving cold cases and future crimes. Authorities accomplish this effort by taking DNA found at a crime a scene and comparing it with the DNA of prisoners collected in the database. Thus far, the database has led to 1,415 cases being solved in Georgia. There were 75 solved cases in the month of May alone.

The Macon Telegraph has the story.

The state’s DNA database known as the Combined DNA Index System (CODIS) currently contains more than 186,000 samples from Georgia prisoners. The original database began in the mid 90s when the FBI used it as a test program. Authorities realized that a DNA profile is essentially a bunch of numbers, and that it could easily compare one sample of DNA against another sample through a database. Congress then passed a law allowing the federal government to keep a database of DNA from offenders and evidence, and states were able to decide which offenders would be required to give DNA samples.

Georgia became the first state to form a state database in 1998. In the early years, only people convicted of sex crimes were put into the database. This rule expanded to include all felons sent to prison or released on or after July 1, 2000, inmates sentenced to death or serving life sentences, and those sentenced to felony probation for violent crimes.

To collect DNA, prisoners were once subjected to giving blood, but after 2000, DNA began to be collected by swabbing the inside of the cheek. DNA that is collected from evidence is automatically put into the database. The samples collected in Georgia’s CODIS are then sent to the FBI’s national database. This allows law enforcement from all over the country to compare different samples. To date, the database has matched 287 crimes in other states to Georgia offenders.

If a match is found, analysts take the original samples of DNA from the suspect and the evidence and run the test a second time. The proper law enforcement agents are then contacted, and those agents are then required to obtain new DNA sample for a third evaluation.

Most crimes solved with CODIS are sexual in nature; however, the database has also solved burglaries and robberies. In one case, a man was arrested for burglary after his DNA was found on a cigarette butt he left behind at a burglarized home.

All in all, the database represents a powerful tool for law enforcement. That power is only expected to grow as more and more people are taken into the criminal justice system and required to turn over their DNA.

DNA has become very important in solving cases in Georgia and throughout the U.S. DNA has also helped free some innocent people in Georgia who had been convicted of crimes they did not commit, thanks to the work of groups like the Georgia Innocence Project. We hope that this database is used properly, and helps free the innocent as well as help resolve serious unsolved crimes.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Monday, the Supreme Court of Georgia reversed the conviction of a high school teacher who had a sexual relationship with a 16-year-old student. The court overturned the conviction after determining that the teacher should have been allowed to argue that the student consented to the sexual activity.

The Atlanta Journal Constitution has the story.

Melissa Lee Chase, 28, was convicted of sexual assault of a person enrolled in school. Chase was a respected teacher and coach at Harlem High School which sits just outside of Augusta. However, she developed a romantic relationship with a 16-year-old female student between August and November of 2006. The student’s mom found a note in her daughter’s purse written by Chase. The mother called the police and Chase was arrested as a result. At Chase’s bench trial, the girl testified that she initiated the relationship and pushed the issue. However, Chase was not allowed to argue that the girl consented to the sexual acts. Under Georgia law, a person may be sentenced up to 30 years in prison but no less than 10 for having a sex with a student. Chase was sentenced to the minimum 10 years with five years on probation. She would also have to register as a sex offender.

On appeal, the appellate court agreed that consent cannot be a defense to having sex with a student. However, the Supreme Court of Georgia disagreed. The age of consent in Georgia is 16. This means it is generally not a crime to have sexual contact with anyone who is 16 or older. Yet, the Court noted that the crime Chase was convicted of would make it illegal for a teacher to have sex with a student of any age. The Court gave the hypothetical that under the law a 30 year old college professor could be sentenced to 30 years for having a sexual relationship with a 50 year old student.

The Court refused to adopt such a reading of the statute calling it “truly absurd and unjust.” Instead, the court found that the statute does not prohibit the defense of consent, and that sex with a 16-year-old is generally not a violation of the law. Thus, consent is a viable defense in such cases so long as the student has reached the age of consent.

Two justices, Carley and Thompson, argue that the Court’s ruling produced a disturbing result. They believe that the statute was enacted to protect students from exploitation by teachers, and that the Court’s ruling strips students of that protection.

Our firm has represented many people, including teachers, doctors and other professionals charged with this offense. The Court's ruling in this case will, hopefully, allow a more common sense application of this statute in the future.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

New York authorities are seeking to extradite Raoul Desmin Cooper, 38, of Cobb County for a murder which occurred 18 years ago. New York and Georgia authorities arrested Cooper Wednesday night in Cobb, but New York authorities returned home empty handed as Cooper fights extradition.

The Atlanta Journal Constitution has the story.

The 1991 case stems from the shooting death of a 17-year-old victim in New York City. Authorities say the teenager was shot in the face by two men who wanted his 8-ball jacket. At the time, 8-ball jackets were very popular and led to numerous robberies. In late 2007 or early 2008, detectives received tips on the cold case which led them to Cooper and another man who has already been charged.

Cooper moved to Georgia in 1998 to be closer to family and has held a job installing fiber optic cable. Since moving to Georgia, he has lived in eight different cities in the metro area although detectives say he was not trying to hide.

On Wednesday night, Cooper thought he was meeting police in a vacant parking lot in Mableton to discuss a child neglect case. Upon his arrival, he was immediately surrounded and arrested by police from New York City, Cobb County, and a SWAT team. Cooper now faces the charge of second degree murder in New York which carries a sentence of 25 years to life.

New York detectives attempted to bring Cooper back to New York on Friday but were unable to do so as Cooper fights extradition. The governors of New York and Georgia will now have to decide how to handle extradition. For the time being, Cooper remains in the Cobb County jail.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A Twiggs County man stood trial earlier this week for allegedly holding a sheriff’s deputy at gunpoint in his home in 2007. A jury of his peers found him not guilty on all charges.

The Macon Telegraph has the story.

On the night of July 11, 2007, Twiggs County Sheriff’s Deputy Tony Watson went to the home of Harold Lee Hartel after a neighbor complained that Hartel had dumped watermelon rinds in a county ditch. In addition to Hartel, two women were also inside the home. When Watson arrived, prosecutors allege that Hartel pulled a handgun on Watson and forced him inside the home. Prosecutors believe that Hartel threatened to kill Watson, but that Watson was able to talk his way of the situation and eventually call for backup. The situation progressed into an hour long standoff after which time Hartel surrendered. As a result, Hartel was charged with aggravated assault, false imprisonment, and terroristic threats.

The jury returned a verdict of not guilty after deliberating for two and a half hours Wednesday and Thursday. Watson is still currently employed as a deputy, and Sheriff Darren Mitchum says he still stands behind Watson’s story.

Hartel’s criminal defense lawyer, Laura Hogue, was the winning attorney. She is a well-known Macon attorney, and a good friend of our firm. We congratulate her and her client on their impressive victory in a difficult jurisdiction.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

Judge Kenneth E. Fowler has been charged with 16 counts of violating the Code of Judicial Conduct. This marks the beginning of formal proceedings against Judge Fowler by the state’s Commission on Judicial Qualifications.

The Macon Telegraph has the story.

The Commission on Judicial Qualifications has the duty of investigating complaints of judicial misconduct and for disciplining judges in Georgia. It is made up of two judges, three attorneys, and two lay people. Typically, they conduct an investigation and hold hearings into allegations of misconduct. After these proceedings are held, the Commission may recommend to the Supreme Court of Georgia that a judge should be removed, disciplined, or retired from the bench. The Supreme Court makes the ultimate determination.

In this case, the Commission alleges that Judge Fowler abused his power and suppressed the rights of defendants who came before him. Among the 16 counts, the Commission alleges that Judge Fowler told criminal defendants that they had the burden to prove their innocence, expressed bias in criminal matters, gave false or misleading information to criminal defendants, improperly questioned defendants, held fees paid by criminal defendants in his own account and failed to turnover the fees to the county, failed to be courteous to individuals in probate court, improperly used the prestige of being a judge, and allowed unqualified persons to serve as interpreters in court.

Judge Fowler has 30 days to respond the charges against him. If he chooses to fight the charges, a hearing will be set by the Commission at the earliest convenient date.

Our firm has previously represented a probate judge from Middle Georgia and helped that judge defend a JQC complaint. It is important for lawyers involved in these sensitive matters to be sure that such a complaint not lead to discipline, false press reports, or anything else that could permanetly damage the judge's reputation.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

Arthur James Marshall Jr., 40, was arrested on Wednesday for allegedly swindling more then $1 million from banks. Prosecutors say Marshall used false information to obtain loans for his real estate enterprises.

The Atlanta Journal Constitution has the story here.

A grand jury in Savannah indicted Marshall last week on 22 counts including bank fraud, money laundering, and mail fraud. On Wednesday, Marshall was arrested in Miami. The indictment states that Marshall provided three banks with false information on documents to qualify for loans to buy and build on seven properties in Augusta and Evans. The documents in question included financial statements, sales contracts, and pre-approval letters. The loans were taken out in 2007 and 2008.

The indictment also alleges that Marshall deceived a mortgage lender in 2007 by using a fake buyer to apply for a loan in order to buy a home Marshall wanted. Allegedly, Marshall gave the fake buyer falsified paperwork and a down payment to carry out the fraud. Additionally, Marshall is accused of taking $100,000 from an Evans couple in 2008 who paid Marshall to build a house. Prosecutors say that Marshall did little work on the home and refused to hand over the property’s title to the couple.

Marshall is known for playing as a wide receiver for the Denver Broncos and the New York Giants from 1991 to 1996. He also played for the University of Georgia between 1988 and 1991. After his career in the NFL, Marshall moved to Augusta where he operated four real estate and construction businesses. One of his businesses, Custom Contractors and Associates, filed for bankruptcy last year after owing more than $10 million to creditors.

Marshall is expected to appear in court for his initial appearance this week.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A federal judge has set a bond for a woman accused of swindling more than $2 million from investors in an alleged Ponzi scheme. The granting of bond comes after a prior judge refused to set bond

The Macon Telegraph has the story.

Saundra McKinney Pyles, 52, and Gary Sheldon Hutcheson, 56, are accused of defrauding more than four dozen investors including prominent business owners and doctors from Macon. The scheme allegedly began in 2006 when Hutcheson told potential investors that he would place their money in a hedge fund named Georgia Ionics Fund LLC. Authorities believe that Hutcheson invested $780,000 while pocketing over $1.3 million of the investors’ money. Most of the money that was invested was lost. As a result, Pyles was indicted in April on five counts of mail fraud and five counts of money laundering in the Middle District of Georgia.

On May 20, Magistrate Judge Leon Barfield from the Southern District of Georgia refused to set bond for Pyles. Barfield presided over the case, because the magistrate judge and all four district judges of the Middle District of Georgia recused themselves due to their connections with the alleged victims. The case has since been assigned to Chief Judge Jack T. Camp of the Northern District of Georgia.

Pyle’s attorney, Reza Sedghi, appealed the ruling denying bond, and at the hearing asking the court to reconsider on Tuesday, the judge agreed with Sedghi and Pyles was given a $20,000 bond. However, the bond carries with it a condition that someone will have to come forward and say that they will house Pyles. Further conditions are set to be issued this week.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

Georgia’s sex offender law has come under intense fire from critics, since a provision of the law requires some people who did not commit sex crimes to register as sex offenders. On Monday, the lawyer of a man who had to register for being convicted of false imprisonment moved a Fulton County judge to declare the provision as being unconstitutional.

The Atlanta Journal Constitution has the story.

When Jake Rainer was 18, he and some friends picked up a 17 year old girl with the intention of buying marijuana from her. After taking the marijuana, they drove her to a cul de sac and dropped her off without paying. As a result, Rainer pleaded guilty to robbery and false imprisonment and was sentenced to five years in prison and five years on probation. He also had to register as a sex offender.

Anyone convicted of kidnapping or false imprisonment of a minor in Georgia is required to register as a sex offender. Whether sexual conduct was involved is irrelevant. Aside from the stigma, registered sex offenders cannot live or work within 1,000 feet of anywhere children congregate. This includes schools, parks, and pools. Under Georgia law, Rainer cannot ask a judge to be removed from the registry until 10 years after the completion of the sentence. For Rainer, that will be in 2020.

Rainer’s Atlanta criminal attorney, Ann Marie Fitz, argued that the provision of the Georgia sex offender law making her client register should be held as unconstitutional, since Rainer never committed a sex crime. The Attorney General’s Office sympathized but simply argued that the law is the law. Fulton County Superior Court Judge Jerry Baxter also sympathized, and he is expected to make a ruling on the matter soon. However, Judge Baxter seemed inclined to uphold the law, and he suggested that Rainer should try to get his false imprisonment conviction stricken from his record.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A federal magistrate judge has denied bond to a woman indicted for operating a Ponzi scheme which cheated investors out of $2.11 million. Her lawyer has filed a motion with the court to reconsider releasing her on bond.

The Macon Telegraph has the story.

Saundra McKinney Pyles, 52, was indicted on five counts of mail fraud and five counts of money laundering for her alleged involvement in a Ponzi scheme. Today, she sits in jail after Magistrate Judge Leon Barfield refused to grant her a bond. Her lawyer argues that Barfield erred in denying bond, and that the court should grant bond upon a motion to reconsider.

Under federal law, it is within the power of a magistrate judge to grant or deny bond. At a bond hearing, the judge may release the defendant on his or her own recognizance, set conditions for bond, deny bond, or temporarily detain the defendant to allow for proceedings such as deportation. A defendant may be released on his or her own recognizance unless the judge determines that such release will not reasonably assure the appearance of the defendant at future court dates or that such release will endanger the safety of other persons.

A defendant who is not released on his own recognizance may still be released subject to various conditions such as reporting to law enforcement and avoiding contact with victims and witnesses. The judge is directed to impose conditions so as to assure the return of the defendant as well as the safety of others. For some crimes, the government may move the court to determine if such conditions can carry out the goals of return and safety. This occurs when a defendant has committed certain violent offenses, crimes which carry life imprisonment or death, certain offenses under the Controlled Substances Act, any felony if the person has been convicted of two or more specific offenses, and certain felonies that involve a minor victim, possession of a firearm or destructive device, or the failure to register. When a person has been convicted of these crimes, it generally gives rise to a presumption that he will not appear in court and is not safe to be released in the community. The government or court may also hold a hearing to see if any conditions will be effective in cases involving a serious risk that the defendant will flee, obstruct justice, or threaten, injure, or intimidate a prospective witness or juror. It is also presumed that no condition will reasonably assure the appearance of the defendant and the safety of others for certain offenses under the Controlled Substances Act, various violent acts, and acts involving minor victims.

In determining whether there are conditions of release which will assure appearance and safety, the judge must take into account the nature and circumstances of the offense charged, the weight of evidence against the person, the history and characteristics of the person, and the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release. If the judge finds that no conditions for the crime alleged will reasonably assure the defendant’s appearance at future proceedings and the safety of others, he may order the detention of the defendant before trial.

In Pyles’ case, the court found that Pyles represents a serious risk to obstruct justice or to intimidate witnesses when it denied her bond. Pyles’ attorney argues that such a determination is erroneous, since there is no evidence to suggest she represents a threat to anyone. However, an FBI agent testified that Pyles violated conditions of her bond by calling family, potential witnesses, and alleged victims. Yet, the FBI agent also testified that family members initiated some of the calls, and that none of the family members expressed any fear of Pyles. In addition, only three or four phone calls were placed to family members and one of those was to a mentally ill member.

Aside from detaining Pyles until trial, the court could put her under house arrest, give her a security bond, or impose travel restrictions.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Supreme Court of the United States recently ruled that a person who calls a drug dealer in order to make a misdemeanor drug purchase cannot be said to have facilitated the felony of drug distribution. In holding so, such a person cannot be convicted of the felony of using communications to facilitate drug distribution.

In Abuelhawa v. United States, the defendant, Abuelhawa, arranged to buy cocaine over the phone from a man named Mohammed Said. Prior to the arrangement, the FBI acquired a warrant to tap Said’s cell phone to listen for drug deals. The FBI monitored six calls that were placed between Abuelhawa and Said during which Abuelhawa arranged for two separate transactions for one gram of cocaine each time.

Under federal law, the two purchases by Abuelhawa were misdemeanors and the two sales by Said were felonies. However, federal law also provides that it is a felony “to use any communication facility in committing or in causing or facilitating” certain felonies including the felonies committed by Said. As a result, the government charged Abuelhawa with six felonies under this law for the six calls placed between Abuelhawa and Said. Abuelhawa moved for acquittal arguing that his calls to Said did not facilitate Said’s felonies. The District Court denied his motion, and Abuelhawa was convicted by a jury on all six felony counts.

On appeal, the Court of Appeals for the Fourth Circuit agreed with the District Court and reasoned that ‘facilitate’ should be given its common meaning: “to make easier or less difficult, or to assist or aid.” The Fourth explained that the phone calls made the sale of cocaine easier and possible, and thus, Abuelhawa did facilitate the felony distribution of cocaine. The Supreme Court granted cert in order to resolve a split among the circuit courts.

The Court disagreed with the Fourth’s interpretation and reversed Abuelhawa’s felony convictions. The Court reasoned that Congress provided a more lenient punishment for the buyers of drugs than for the sellers under these circumstances. If the government were allowed to increase the penalty of the buyer for facilitating the action of the seller, the calibration of punishment established by Congress would be upended.

The Court also looked at the history of the law. It reasoned that simple possession of a controlled substance was once a felony; however, Congress downgraded the crime to a misdemeanor in 1970. At the same time, Congress also limited the communications provision to prohibiting only the facilitation of a drug felony. Thus, Congress reduced the culpability for possession, and imposing a felony in such a case would be inconsistent.

The government further contended that Congress often adds aggravating factors to laws, and that the phone is simply an aggravating factor. However, the Court noted that there is no language stating that Congress wanted a first-time buyer’s six phone calls to attain a small amount of drugs for personal use to subject him to 24 years in prison when misdemeanor possession would only carry one year for each buy. Thus, the felony of facilitating a drug distribution should apply to those using phones to coordinate illegal drug operations and not to a first time buyer seeking a small amount for personal use such as Abuelhawa.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.