Georgia Criminal Defense Lawyer Blog

The Atlanta Journal Constitution (reporters Bill Rankin and Carrie Teegardin) recently penned an outstanding article on the ever-escalating cost of incarcerating people in Georgia. The statistics are disturbing.

Currently, one in 13 people are currently in custody, on parole or on probation. This statistic means that Georgia has a higher percentage of its residents under some form of criminal corrections than any other state in the nation. Already cash-strapped, Georgia now spends approximately $1.1 billion annually to lock people up.

Over the past three decades, Georgia has seen a steady increase in incarceration and in the length of prison sentences. While one in 13 Georgians are under some form of corrections, one in 70 Georgians are physically locked up in prison. That’s the fourth highest incarceration rate in the county. To put the numbers into perspective, Georgia has roughly the same number of people imprisoned as New York even though New York has twice the population.

The lengths of sentences have also increased from an average of 1.6 years in 1990 to 3.4 years today. We’re also spending more. We now spend five times the amount on corrections as we did in 1985. Part of this growth in spending is due to the rising cost of housing prisoners. Over the past 20 years, the cost to house the average prisoner rose from $28,800 to $61,000.

Other states have done much better, at a lower economic and societal cost. Texas, for example, spends $3 billion per year on prisons. The state had decided to focus on alternatives to prison such as probation, parole, drug courts and halfway houses. Many in Texas believe that these types of treatment and supervised programs drastically reduce cost and recidivism and keep the public safer.

Even slight cuts in prison sentences can make a big difference. Each day the average prisoner costs the state $49, but that same prisoner only costs $4.43 on parole. In Georgia, the crime of armed robbery carries a minimum sentence of ten years. If every convicted armed robber served their final year on parole, the state would save $50 million. That’s enough to pay for 1,000 new school teachers. Or, if the average prison sentence was reduced from 60 months to 55 months, Georgia could save $90 million annually.

Politically, reducing the number of prisoners and the length of prison sentences is never an easy sell. The idea, however, has gained traction across party lines. Even former Speaker of the House Newt Gingrich is calling for fundamental change by encouraging alternative programs that transform people’s behavior. David Ralston, Georgia’s Speaker of the House, has also stated that he is open to reform.

As Texas has learned, we can reduce the number of hardened criminals who are simply dumped onto the streets after serving long prison terms by reducing sentences and focusing on alternatives to prison. In turn, offenders have a greater likelihood of getting jobs, paying taxes and staying out of trouble. The result is a safer society, fewer prisons, and more funding for other state programs.

Souksakhone Phaknikone was convicted of robbing seven banks in Northeast Georgia between November 2006 and March 2007. At trial, federal prosecutors introduced portions of his Myspace account including photographs and sections of his subscriber report. On appeal, the Eleventh Circuit Court of Appeals in Atlanta held that the photographs and report were evidence of bad character and therefore inadmissible.

The Atlanta Journal Constitution has the story.

Phaknikone’s Myspace page portrayed him as a “gangster.” In one image, there was a picture of Phaknikone holding a handgun next to a child. The name on his profile page name was “Trigga” and, when the profile page was first opened, $100 bills floated down the screen. Moreover, his subscriber report listed his full name as “Trigga FullyLoaded” with an email address of “gangsta_trigga@yahoo.com”.

The government attempted to introduce this evidence to show identity and modus operandi. Specifically, the government argued that the evidence showed that Phaknikone robbed the banks “like a gangster”. The district court refused to admit the profile page but allowed the government to introduce a redacted copy of the subscriber report which contained profile photos along with his profile name and email address. In closing, the prosecutor referred to the defendant as “Trigga” and showed the picture of Phaknikone holding a gun.

The court then gave limiting instructions to the jury that the evidence could only be used to prove intent or absence of mistake or accident. The jury convicted Phaknikone on all counts and he was eventually sentenced to 160 years in prison.

On appeal, the 11th Circuit employed a three part test to determine if the district court abused its discretion in admitting the evidence of prior bad acts under Federal Rule of Evidence 404(b). The first part of this test requires that the evidence be relevant to an issue other than the defendant’s character. The Court determined that the subscriber report only showed Phaknikone’s nickname. It was also determined that the photograph only demonstrated that Phaknikone had possessed a handgun at some point in time. The Court wrote that, “Although the photograph may portray a “gangster-type personality,” the photograph does not evidence the modus operandi of a bank robber who commits his crime with a signature trait”. The Court concluded that these pieces of evidence were classic examples of bad character evidence which should not have been admitted.

The Court, however, also ruled that the district court’s error was harmless and sustained Phaknikone’s conviction and sentence.

Even though a new trial was not awarded, this ruling marks a pivotal step in determining the admissibility of evidence in an age when many people display their entire lives on social networking sites for all the world to see.

A Macon insurance agent was recently indicted for allegedly collecting the premiums on insurance policies that he had previously sold. The agent is suspected of taking more than $150,000 from various Macon businesses.

The Macon Telegraph has the story.

Broadus W. Marshall Jr., of Marshall Insurance Co., was arrested in December after Goodwill Industries of Middle Georgia discovered the alleged fraud. Authorities believe that Marshall forwarded Goodwill’s premiums to Philadelphia Insurance Co. until December 2008. Marshall then allegedly began to pocket Goodwill’s premiums instead of sending them to Philadelphia. As a result, Goodwill’s policy was canceled. Police believe that Marshall took about $150,000 before Goodwill found out that its policy had been canceled.

Marshall was also indicted for defrauding several other Macon businesses. Destiny Driven Deliverance Church, River Edge Behavioral Health Center and A Little Extra Inc. allegedly had $15,500 taken from them. In addition, the indictment states that Mashall took $1,000 from Pierce and Parker, Inc., a St. Simons business. Two residential customers, Anna and George Hanse, also had $1,000 taken from them according to the indictment.

Marshall has stated that the money in dispute is simply the result of accounting errors and misunderstandings. River Edge Behavioral Center also says that they have no evidence that Marshall did anything wrong.

Marshall has been indicted on seven counts of insurance fraud. If convicted, he would face two to ten years in prison for each count.

In March, three Athens-Clarke County Leisure Services employees were arrested for taking bribes from probationers. In addition to the three arrests, probation officers have sought to revoke the probation of numerous individuals who officers say bribed the three county employees. Authorities are also still trying to determine if the alleged corruption involved more Athens-Clarke County employees.

The Athens Banner-Herald has the story.

The accused Leisure Services employees supervised individuals sentenced to probation for misdemeanor offenses such as public intoxication and DUI. The employees kept track of the number of hours of community service each probationer performed. About six months ago, probation officers began to see irregularities in time sheets filled out by the employees. These irregularities sparked the initial investigation which ultimately led to the arrests.

So far, county employees Tracey Leon Woods and Charles Edward Robinson have been charged with bribery and making false statements. Thomas Lay Park has also been charged with making false statements. In addition, Joseph Siskey, a UGA student, was arrested for allegedly bringing friends of his who were on probation to meet with and bribe the employees. It is also unclear as to how many probationers may have their probation revoked due to their alleged involvement in the corruption.

The Georgia Insurance Commissioner’s Office sent law enforcement agents to search two Bibb County homes last week. The searches were part of an insurance fraud investigation that was launched after insurance companies complained that two Macon women tried to fraudulently collect $400,000.

The Macon Telegraph has the story.

The two women, Sharon Marberry and her daughter-in-law Jessica Marberry, allegedly falsified pharmacy bills in order to receive reimbursements. Specifically, police claim that the women used pharmacy receipts from CVS to file for reimbursements from Aetna and Golden Rule. Police have also alleged that the women used fictitious names to acquire the insurance policies.

Aetna and Golden Rule alerted authorities after paying out approximately $130,000. In total, the women are accused of submitting claims in the amount of around $400,000. Authorities believe that the fraud lasted for less than a year, but police also say that the total extent of the alleged fraud is unknown.

The women’s two homes were searched last Thursday for computer files, receipts, bank records or any other documents which may point towards fraud.

Under Georgia law, a person who is convicted of filing a fraudulent insurance claim faces two to ten years in prison and a $10,000 fine. A person accused of this crime may face additional charges as well.

Our firm has successfully handled many insurance fraud cases. In our experience, people accused of insurance fraud often have no knowledge of any illegal activity or simply did not intend to commit any fraud. A good criminal defense attorney will work with prosecutors and law enforcement to show that his or her client never intended any wrongdoing. A good defense attorney will also seek to suppress any evidence that police confiscated during the search of a home or office. In many cases, these early efforts will result in a dismissal or reduced charge well before trial.

Federal authorities in Atlanta, Georgia have indicted two former officers of Integrity Bank for bank fraud, insider trading, bribery and conspiracy. A Florida real estate developer has also been indicted.

The Atlanta Journal Constitution has the story.

Integrity Bank was formed in 2000, but state regulators and the FDIC closed the Alpharetta bank in 2008. Federal prosecutors say that two of the bank’s officers, Joseph Todd Foster and Douglas Ballard, gave $80 million to a developer and then sold their stock in Integrity Bank before the failed loans surfaced. Prosecutors also allege that the two officers made large commissions and accepted payoffs from the developer. Ballard was the bank’s executive vice president and Foster was a vice president.

The real estate developer, Guy Mitchell of Florida, allegedly used the money for his own personal use including buying a private island.

The indictments come on the heels of a federal investigation which is trying to determine why 37 north Georgia banks have failed over the past two years.

Prosecutors and law enforcement believe that many of the closures were largely due to fraud and not simply a downturn in the economy.

Ballard, Foster and Mitchell will appear in federal court on Friday afternoon for their initial appearance. The crimes with which the men have been charged carry severe penalties. Bank fraud alone carries a maximum 30 year prison sentence and a possible $1,000,000 fine. Similar sentences may be imposed for bribery and securities fraud as well.

A man from Marietta, Georgia was arrested on Monday after allegedly flying into Illinois with 340 pounds of marijuana on board a private plane. Two other individuals from California have also been arrested.

The Atlanta Journal Constitution has the story.

Police in Pontiac, Illinois searched a 1971 Beechcraft airplane at the Pontiac Municipal Airport after they suspected that drugs may be on board. The plane was traveling from California to Ohio but landed in Illinois due to bad weather. Upon searching the plane, officers found duffel bags stuffed with marijuana.

Alan Luster, of Marietta, Georgia, was arrested in connection with the marijuana. Ernest Austin and Cher Holland, both of California, were also arrested. Luster is currently in the Livingston County jail on $400,000 bond. Austin and Holland were both given a $200,000 bond.

If prosecuted in federal court, the three will be facing a prison sentence of between at least five and 40 years assuming no prior drug convictions. In addition, the government may move to forfeit the private plane which transported the marijuana.

Our firm was recently hired to represent a Texas pilot charged in federal court with transporting nearly 400 pounds of cocaine from Texas to Atlanta, Georgia. After a three day trial, we were able to convince the jury that our client had no knowledge of the drugs or conspiracy to transport the drugs. It took the jury only an hour and a half to deliberate before announcing that our client was not guilty.

Such drug conspiracy cases are unfortunate reminders of how people with no knowledge of any illegal activity can be treated just as harshly as those who planned and devised the conspiracy.