Georgia Criminal Defense Lawyer Blog

A former Bibb County Sheriff’s Deputy stands trial in federal court for allegedly enticing a child for sex. Prosecutors told jurors that he arranged to meet a mother and her 7-year-old child for sex in Sandy Springs. His criminal defense attorney argued that he was role-playing and never intended to have sex with the child.

The Macon Telegraph has the story.

Federal prosecutors say 43-year-old Gregory Todd Bowden, of Byron, drove to a Sandy Springs restaurant to meet the fictitious mother and her daughter for sex. An FBI agent with the Innocent Images Task Force testified that she initially made contact with Bowden in an online chatroom sometime in October 2008. The agent then explained a series of online chats, emails and telephone calls she had with Bowden which spanned around five months.

According to the agent, Bowden initially asked her to join a virtual role-playing relationship. Their chats eventually evolved into setting up an actual meeting in Sandy Springs where Bowden was arrested. One chat reveals Bowden expressing concern that the girl may possibly tell others of the sexual activity. He was also quoted as saying “I don’t want to go to jail.”

In addition to online chats, the jury was shown various pictures including a photo of a woman and a child which the agent had sent to Bowden. Jurors were also shown pictures that Bowden sent to the agent including his face and a man’s genitals.

Bowden’s attorney, Franklin J. Hogue, told jurors in opening statements that Bowden only intended to role play with the woman in an incestuous fantasy. This argument coincides with statements Bowden gave authorities when he was arrested in February. Specifically, he told agents that he did not think the girl was real.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon, Madison and Savannah. 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.

An Atlanta, Georgia doctor was arraigned in federal court on Friday for allegedly billing false claims. He has been charged with committing wire fraud, mail fraud, health care fraud and obstruction of justice. If convicted, the doctor faces a possible 20 year prison sentence.

The Atlanta Journal Constitution has the story.

Prosecutors say that Dr. Rajashakher P. Reddy, 39, committed the fraud through his company, RSI, Inc., by submitting thousands of patient reports without ever reviewing x-rays and other similar film. Reddy’s company supplied radiologist services to hospitals throughout the southeast that do not provide full-time radiology services.

Mail fraud and wire fraud both carry a possible sentence of up to 20 years. Each offense also carries with it a fine of up to $250,000.

Our criminal defense attorneys have successfully represented several health care professionals who have been charged with crimes such as wire fraud and mail fraud. While there are many ways to defend against wire fraud charges and protect a doctor’s good name, one of the strongest defenses is good faith. It is important to remember that the government carries the burden of showing that the defendant knowingly participated in the fraud. If a defendant can show that he believed his actions were made in good faith, and that there was no intent to commit any fraud or other unlawful acts, there can generally be no conviction. Good faith can be shown through industry standards, cooperating with law enforcement, promptly acting to fix complaints and consulting with an attorney.

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 Tuesday, a federal grand jury in Atlanta indicted seven members of an alleged Eastern European organized crime ring on charges of wire fraud, computer fraud and identity theft. The alleged members come from Estonia, Russia and Moldova. Prosecutors say the group stole $9.4 million from the Royal Bank of Scotland Group’s payroll debit systems.

The Atlanta Journal Constitution has the story.

Authorities have called it the most sophisticated computer fraud attack ever. It is believed that the international hacking ring responsible for the attack compromised the data encryption systems of the Royal Bank of Scotland (RBS) WorldPay’s computers in Atlanta. Once compromised, hackers were able to obtain information which connected to payroll debit cards used by corporations to pay their employees by means of ATMs.

Prosecutors believe the hackers raised the account limit and gave “cashers” over 40 fake payroll debit cards. In 12 hours, the cashers were able to withdraw $9.4 million from more than 2,000 ATMs in nearly 300 cities across the globe. The cashers kept a share of the profits and sent the rest to various Eastern Europeans. After the scam occurred, authorities believe that the hackers attempted to cover their tracks by destroying data on the compromised network.

Those charged with identity theft, conspiracy to commit computer fraud, computer fraud, conspiracy to commit wire fraud and wire fraud include Sergei Tsurikov of Tallinn, Estonia; Viktor Pleshchuk of St. Petersburg, Russia; and Oleg Covelin of Chisinau, Moldova. Ronald Tsoi, Igor Grudijev, Mihhail Jevgenov and Evelin Tsoi of Tallinn, Estonia have all been charged with access device fraud. The men range in age from 20 to 33.

Among the most serious of these crimes is wire fraud which typically carries a sentence of up to 20 years and a $250,000 fine for each offense. If the fraud is committed against a financial institution, a conviction can result in a 30 year prison sentence and a possible $1,000,000 fine.

Our criminal defense attorneys have successfully defended numerous clients charged in conspiracies involving wire and computer fraud. We have also helped several international clients who have been involved in multinational investigations. In our experience, innocent people with little to no knowledge of any wrongdoings are often swept into conspiracies and treated just as harshly as those who perpetrated the fraudulent acts. In international conspiracy cases, a good criminal defense attorney will work with U.S. and foreign officials to show that his client had no knowledge of any conspiracies or illegal actions. A defense attorney will also examine every step of the international investigation to ensure that U.S. officials followed proper protocol including determining if all warrants were properly obtained and executed, reviewing police recordings and interviewing all relevant witnesses.

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, nine men were arraigned in a Rome, Georgia federal court for allegedly scamming a paper mill out of $4.8 million dollars. Federal authorities say the mill paid for timber that was never delivered.

The Atlanta Journal Constitution has the story.

The mill, Temple-Inland paper mill, was allegedly conned out of the millions of dollars from 2004 to 2006. Prosecutors believe that Aaron Freeman, who worked as a scale house operator at the mill, used the mill’s computers to create two weight readings when a truck went though the mill’s scale. One reading would be for timber that was actually delivered while the other would be for a phony shipment. Freeman would then allegedly recruit truck drivers to help in the scheme by claiming credit for the phony shipments.

The nine men were charged with conspiracy to commit wire fraud which carries a sentence of up to 20 years and a $250,000 fine per offense. The names charged in the indictment include Aaron Freeman, Kevin Fields, Curtis Hart, Jason Joseph, Roger Carthern, Andrew Carthern, David Carthern, Robert Frank Ferguson and George Tate. Freeman, Fields and Joseph were also charged with conspiracy to commit money laundering which carries a possible sentence of 20 years in prison and a $500,000 fine.

Our criminal defense attorneys have successfully defended numerous clients charged with wire fraud and money laundering. While there are many ways to defend against wire fraud allegations, one of the most powerful defenses is good faith. It is important to remember that the government carries the burden of showing that the defendant knowingly participated in the fraud. If a defendant can show that he believed his actions were made in good faith, and that there was no intent to commit any fraud or other unlawful acts, there can generally be no conviction. Good faith can be shown through industry standards, cooperating with law enforcement, promptly acting to fix complaints and consulting with an attorney.

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 Wednesday, several law enforcement agencies raided at least two homes in Gwinnett County. The raids targeted a Mexican-based organization that police say traffics in drugs.

The Atlanta Journal Constitution has the story.

The DEA spearheaded the raids which resulted in dozens of arrests and an undisclosed sum of drugs and money. The organization which agents targeted, La Familia Michoacana, has been described by police as being an extremely violent drug trafficking organization. In addition to the DEA, agents from the GBI, Atlanta High Intensity Drug Trafficking Area Task Force and the Gwinnett County District Attorney’s Office also took an active role.

Our criminal defense attorneys have successfully defended many clients charged with drug offenses after police discovered drugs in a home. In our experience, there is almost always a question of whether a search was lawfully conducted any time drugs are found by law enforcement. To challenge the search and seizure of contraband in a private home, a criminal defense attorney must generally be able to argue that the warrant which authorized the search (if there was one) was not supported by probable cause, that police exceeded the scope of the warrant or that the warrant was somehow defective on its face. A good criminal defense attorney will do this by reviewing every aspect of the police investigation including police interviews, witness and informant statements and any electronic monitoring such as video surveillance or wire taps.

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 Eleventh Circuit recently vacated the sentence of a defendant after determining that the district court improperly found that he was a leader in a drug conspiracy for purposes of the Sentencing Guidelines. That erroneous finding had increased his sentence by four levels.

In US v. Martinez, the defendant, Martinez, pled guilty to conspiring to distribute and to possess with the intent to distribute 100 kilograms or more of marijuana. Specifically, he made weekly shipments of pounds of marijuana from Texas to Florida, used fictitious return addresses and used wire transfers to receive drug proceeds. When sentencing Martinez, the district court found that he took a leadership role in shipping the marijuana. This led to an increase in his sentence by four levels under the United States Federal Sentencing Guidelines and resulted in a 78 month sentence. To have this four level increase, a court has to find that the defendant was either an organizer or a leader, and that the criminal activity involved either five or more participants or was otherwise extensive. The Sentencing Guidelines put forth seven factors which a court considers when determining if a defendant is a “leader” or an “organizer”: decision making authority, nature of participation, recruitment, right to a larger share of the proceeds, degree of participation in planning, scope of illegal activity and degree of control over others.

The increased sentence was largely due to the judge’s reliance on Martinez’s Presentence Investigation Report (PSI) which had been prepared by a probation officer. The PSI stated that he “orchestrated” weekly shipments of marijuana and recruited others. Martinez strenuously objected to the idea that he orchestrated shipments, recruited others or was a leader in any way. If a defendant objects to a fact contained in a PSI, the government bears the burden of proving the fact in dispute by a preponderance of the evidence. However, during the guilty plea, Martinez admitted to orchestrating drug shipments and that he used others in the scheme. When a defendant admits a fact during a guilty plea, the government does not have to provide evidence of those facts.

However, even with Martinez’s admissions, the appellate court found that his actions did not fit within the seven elements which would make him a “leader.” First, the term “orchestrate” is not synonymous with control. Moreover, there was no evidence that he recruited any of his co-conspirators, or that they were his subordinates. He also did not claim a larger share of the proceeds and was in fact destitute. In addition, it was unclear where he was in the chain of command. And finally, the fact that he “utilized” others did not show control over others. Instead, Martinez had always maintained that he was equally involved with his co-conspirators. Since the government failed to provide evidence of a leadership role, the 11th Circuit vacated the sentence and instructed the district court judge to resentence Martinez.

Obviously, it is important for people convicted in federal court to understand that they generally have the right to appeal their sentence if they were convicted at trial. In most cases, the United States Federal Sentencing Guidelines will determine how a convicted person is sentenced, but district court judges can and do make mistakes when employing the Guidelines.

An experienced criminal appeals attorney will analyze a sentence for any inconsistencies with the Guidelines and relevant statutes (usually, 18 U.S.C. Section 3553) and can raise any sentencing issues on appeal. In fact, our lawyers have won several recent federal appeals and have reduced our clients' sentences by a few months to many years.

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.

Federal and state authorities are probing allegations of misconduct on the part of Cochran police officers. However, the FBI and GBI have released few details about the investigation.

The Macon Telegraph has the story here.

The GBI reported that the current accusations stem from a 2008 investigation in which two former Cochran police officers were charged with enticing a child and interfering with custody. The two officers were working part-time in Pineview at the time the charges arose.

Brent Powell, one of the officers, was convicted of violation of oath of office and received five years on probation. The other officer’s case is still pending.

The mayor of Cochran, Gene Towns, has commented that no police officers have been arrested or suspended so far.

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 House Judiciary Committee passed the Fairness in Cocaine Sentencing Act of 2009 last week which would remove the words “cocaine base” in federal drug statutes. If the bill becomes law, it would effectively close the wide gap between sentences for crack and powder cocaine.

The Minneapolis Star Tribune has the story.

In 1986, Congress passed the Anti-Drug Abuse Act which created the vast disparity. Many of the original supporters and drafters of the 1986 law have since come out to oppose it. The law essentially created a 100-to-1 sentencing disparity between crack and powder cocaine. For instance, a person convicted of possessing five grams of crack cocaine will receive a minimum sentence of five years. However, it would take 500 grams of powder cocaine for a person to receive the same sentence.

This disparity has fallen hardest upon African Americans. It is estimated that around 80% of those convicted of crack offenses are black even though the majority of crack users are white or Hispanic.

President Obama’s Administration seems to be onboard with the proposed change in the law. Last month Attorney General Eric Holder was quoted as saying that the difference in punishment is “simply wrong.” The President will have the opportunity to sign the bill into law assuming both the House and the Senate vote in favor.

And not a moment too soon, although it is uncertain whether this proposed law will be retroactive. It's too early to tell if this legislation will help those people who have already been convicted under the existing version of this law.

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 head of the Hindu Temple of Georgia, Annamalai Annamalai, was arrested in November for theft and practicing medicine without a license. The Gwinnett County District Attorney’s Office has dropped those charges.

The Atlanta Journal Constitution has the story.

Annamalai, also known as Dr. Commander Selvam, was accused of charging a credit card which belonged to a member of the Temple without her permission. In another incident, a woman claims that he gave her medical advice.

However, Georgia law allows for the practice of medicine without a license if it is done by a religious healer. The District Attorney’s Office also explained that there was no evidence that Annamalai made the charges on the credit card.

Annamalai maintains that the two women and a police detective conspired against him and the Temple.

The Hindu leader was represented by Atlanta lawyer Jerry Froelich, a well-respected defense attorney and a friend of our firm.

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, a former Henry County lawyer pleaded guilty in federal court to running a real estate scam in which he stole more than $2 million. Authorities say 24 individuals across Georgia, Tennessee and Florida fell victim to the scheme.

The Atlanta Journal Constitution has the story.

Steven H. Ballard was accused of operating the scheme between 2002 and 2006. Authorities say he promised clients profits in excess of 50 percent, but upon taking their money, he would simply deposit the funds into his firm’s escrow account. Prosecutors believe he would show investors forged legal documents and deeds to make them think transactions had occurred. Perhaps most shocking of all is the fact that many of the victims were friends and colleagues of Ballard.

In one case, Ballard sold a condo in Panama City, Florida to a retired firefighter. However, the condo was actually an empty lot that had been sold to numerous parties. The firefighter used his life savings to make the investment.

Ballard is scheduled to be sentenced in late September and faces a possible 20 years in prison. He must also pay the money back he stole. He has thus far returned about half the money, and is currently working at a convenient store and organizing golf tournaments to pay back the rest.

Ballard started practicing law in 1981 and was even an adjunct professor at Clayton State University. He was disbarred in 2006.

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, 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.

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.

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.

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.

On Thursday, 13 people from the Atlanta area were indicted by a federal grand jury for making and distributing counterfeit DVD movies.

The Atlanta Journal Constitution has the story.

The 13 allegedly counterfeited movies such as Gran Torino, Changeling, and Dark Knight. They also allegedly pirated recordings of Lil Wayne, Kanye West, T.I., and Robin Thicke.

Most of the defendants are from Atlanta while the others are from Lawrenceville, Fairburn, Austell, Decatur, Lithonia, and Barry. The ages of the defendants range from 24 to 68 years old.

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 Tuesday, police raided 14 stores and homes in Clarke, Oconee, and Gwinnett counties which capped a three-month investigation into fencing and gambling operations.

The Athens Banner-Herald has the story.

Police say that convenience store owners and employees placed orders with criminals to steal certain items from homes, businesses, and vehicles. Authorities grew suspicious when they began finding lists of items on burglars such as specific flat screen televisions and laptops. This fact combined with the high rates of thefts for those goods led to the conclusion that there must be some sort of outlet. After further investigation, police armed themselves with arrest warrants for nine individuals they believed were connected with the fencing rings.

Police also believe some of the businesses ran illegal gambling operations. These businesses allegedly gave cash to customers who played poker machines.

The raids began around 9:30 a.m. at five businesses and two homes in Clarke County, one store and four homes in Oconee County, and two homes in Gwinnett County. The nine suspects were arrested and face 40 criminal charges including theft by receiving and illegal gambling.

Reports state that the suspects may also face state and federal racketeering charges. Federal charges can be brought in theft and fencing cases that involve Interstate commerce, and there are federal laws that regulate certain gambling activities.

If the case goes federal, charges could be brought in either the Northern or Middle Districts of Georgia.

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.

U.S. Marshals arrested two Macon residents in Colorado on Tuesday for their involvement in a Ponzi scheme which took in over $2 million.

The Macon Telegraph has the story.

Federal authorities have charged both Gary Hutcheson and Saundra McKinney Pyles with five counts of mail fraud and five counts of money laundering in connection with the Ponzi scheme. Generally, each of these charges may carry with it a sentence of up to 20 years.

Authorities believe that between May 2006 and July 2008 the two devised a scheme to defraud individual investors and groups of investors. Hutcheson allegedly created a company called Georgia Ionics Fund and used two securities brokers named CyberTrade Inc. and Cobra Trading to carry out the scheme. Hutcheson is believed to have attracted investors by asking them to place funds in what he called a hedge fund. He also claimed to have expertise in making investments by lauding his past success when in fact he had never succeeded in investing.

The government claims that Hutcheson deposited more than $2.1 million into bank accounts which he received from investors. Of this, he invested only $780,000 and lost the majority of it. In order to convince investors that the fund was successful, Hutcheson paid out $457,000 to certain investors claiming that the money was profit. In fact, the money was simply a return of the investor’s own money or money which was acquired from new investors. In the end, authorities believe he kept more than $1.3 million for himself.

Even though Hutcheson and Pyles did not make any profits, the government claims that they falsely represented that profits were being made and that the fund was successful. The two now await extradition proceedings from Colorado to Georgia.

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.

Two Fulton County sheriff’s deputies were arrested today for allegedly beating an inmate and lying to FBI agents who conducted an investigation into the beating.

The Atlanta Journal Constitution has the story.

The jailers, Robert Hill and Early Glenn, were arrested at the Fulton County Jail. They have been charged with violating the inmate’s civil rights, obstructing justice, filing a false report, and making false statements to federal agents.

The two deputies are scheduled to make an appearance before a federal magistrate judge later today.

Our firm has represented several law enforcement officers charged with similar crimes in the past. These cases can be very difficult to prosecute and prove. The credibility of the witnesses becomes the most critical issue.

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, Robert Price Copeland, a Marietta Georgia lawyer, pleaded guilty to federal wire fraud charges in connection with a $28 million Ponzi scheme. The government alleges that the scheme defrauded over 125 people.

The Atlanta Journal Constitution has the story.

The 48 year old was accused of scamming victims across the nation from 2004 to 2009. In some cases, the victims were senior citizens who lost their life savings. Investigators say that Copeland promised some victims up to 15 percent on their investments in under a year. It is believed that Copeland solicited his victims through seminars and financial planners.

Copeland could face 20 years in prison, a $25,000 fine, restitution, and forfeiture of all proceeds gained from his fraudulent schemes when he is sentenced. The Security Exchange Commission has also brought a civil case against Copeland.

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.

Federal agents arrested 37 year old Michael Macaluso on Thursday for allegedly enticing a minor to engage in sexually explicit conduct and receiving and distributing child pornography.

The Atlanta Journal Constitution has the story.

Authorities believe that Macaluso has been targeting teenage boys online and enticing them to send naked photos of themselves since May 2006. It is also alleged that he threatened to black mail boys if they refused.

Specifically, an affidavit claims that in one instance he pretended to be a young girl and sent pictures of a naked female to a 15 year old boy. It is alleged that he then requested pictures of the boy involved in sexual acts. However, the victim refused, and Macaluso allegedly threatened to post naked photos of the boy online as blackmail. In another instance, Macaluso allegedly threatened to “out” a 15 year old boy to his classmates when the boy attempted to end their online relationship.

In 2006, Macaluso was arrested by Cobb County authorities on three counts of sexual exploitation of children. However, Cobb authorities decided not to try that case. Instead, the case files were passed to the U.S. Attorney’s office which is reported to have a stronger case against Macaluso. A bond hearing is set for next week, and prosecutors have said they will oppose any bond at that hearing.

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. For many years, our firm has been listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

No surprise, but TI was finally sentenced. And the deal was as sweet as expected. A federal judge in Atlanta sentenced rapper Clifford “T.I.” Harris Jr. to one year and one day in federal prison. The sentence stems from an incident in October 2007 in which T.I. attempted to purchase machine guns and silencers in a Midtown parking lot from undercover ATF agents.

The plea deal T.I. made with the U.S. Attorney’s Office has come under fire as another example of a celebrity receiving a light sentence. The federal sentencing guidelines suggest that a defendant who pleads guilty to such offenses should receive nearly five years in prison. However, the plea deal also required T.I. to serve 1,500 hours of community service, pay a $100,000 fine, and be confined to his home for one year. T.I. has already served over 1,000 hours of his community service requirement.

Page Pate of our firm was interviewed by Entertainment Weekly about TI's extraordinary deal. He has also previously provided expert commentary to the local media on this high-profile case.

U.S. Attorney David E. Nahmias defended the plea deal by arguing that T.I. has made hundreds of appearances in front of thousands of kids denouncing gangs and crime. The hope is that T.I.’s appearances will deter some kids from entering a life of crime. Former U.N. Ambassador and Atlanta Mayor Andrew Young also applauded the large impact T.I.’s community service has had on reaching kids in underprivileged communities. Young and T.I. worked together in a community outreach program in New York.

T.I.’s sentence of one year and one day may be reduced to around 10 months for good behavior. The sentence is set to begin in late May when he will voluntarily report to prison.

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. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

Another mortgage fraud conviction in Atlanta, and another lengthy sentence. In federal court last Friday, Joseph Sterling Jetton received a 14 year prison sentence and was ordered to pay over $11 million in restitution.

The Macon Georgia Telegraph has the story.

Our criminal defense lawyers have handled many mortgage fraud cases in Atlanta and other parts of Georgia. We have represented real estate agents, mortgage brokers, closing attorneys, investors and straw purchasers.

Our lawyers have been able to successfully resolve a few complex mortgage fraud investigations on behalf of our clients by showing that these clients were not aware of the fraudulent statements made on the loan applications and closing documents. In cases that cannot be resolved without a plea, the ultimate sentence usually depends on the amount of loss attrbuted to the person, and that person's role in the overall offense.

Considering the continued decline of the real estate market, and the amount of properties going into foreclosure, our lawyers expect more criminal investigations into mortgage fraud and other questionable real estate transactions in Atlanta.

Georgia and federal law enforcement agents are investigating a large identity theft ring alleged to have cloned numerous credit cards in the Athens Georgia area. Investigators allege that the ring was led by Vikas Yadav from his home in Clarke County. According to law enforcement, Yadav was able to obtain credit card numbers through his employment at a local liquor store.

The Athens Banner Herald has the story. The article also contains a link to the search warrant obtained by the Athens Georgia police and U.S. Secret Service agents involved in the investigation.

No arrests have been made in Georgia, although Yadav has been arrested and charged in federal court in Mississippi. Other arrests have been made in North Carolina and Atlanta. Considering the fact that the alleged conspiracy appears to involve multiple states, all of the people arrested will likely face federal fraud charges.

Our firm has recently handled many identity theft and fraud cases in federal court in Atlanta and other parts of Georgia. The punishment for this type of offense can be severe. The amount of time in custody usually depends on the total amount of money involved. The federal sentencing guidelines also call for significant sentencing enhancements in fraud cases when identify theft is involved.

The investigation in this case remains pending.

A new mortgage fraud indictment was returned in federal court in Atlanta last week.

The new indictment alleges a mortgage fraud scheme involving the purchase of condos on Memorial Drive in Atlanta. The government alleges that the scheme involved fraudulently inflated appraisals. One of those charged is a former IRS employee.

The Atlanta Journal Constitution has the story.

There have been several large federal mortgage fraud prosecutions in Atlanta over the past few years. Our firm has been involved in many of them. We have represented closing attorneys, mortgage brokers, appraisers, investors and the inevitable "straw buyers." The alleged losses have been staggering, usually in the many millions of dollars.

While the government has been mostly successful in these prosecutions, defense lawyers who have represented defendants in these cases often try to point the finger at the lenders who were accepting obviously false loan applications and inflated appraisals without question. There's no doubt that mortgage lenders had a role in the rampant fraud that plagues the residential mortgage industry, especially in the so-called "sub-prime" market. The lenders were approving loans left and right with little concern if the borrowers later defaulted. While that sounds strange, the fact is that most lenders sell the mortgage on the secondary market shortly after the borrower closes on the property. At that point, it's someone else's problem.

But a false statement is still a false statement, and we expect both federal and state prosecutors in Georgia to continue to purse mortgage fraud indictments. There is certainly no shortage of foreclosed properties to review.

We've seen this before.

A federal grand jury in Savannah recently indicted Christian and Jennifer Navoy, a couple from Roswell, Georgia, on illegal distribution of controlled substances through the internet.

The Atlanta Journal Constitution has the story.

We are currently representing a doctor who is being charged with a similar offense for his involvement in an internet medicine business operated out of Atlanta. I discussed the case in a previous post.

In the Atlanta case, our client reviewed medical information submitted by patients through an online questionnaire. It was the same information they would have had to provide if they made a personal visit to the doctor's office; it just saved them time and money to do it this way. The drugs involved in our case are non-narcotic drugs like Viagra and weight loss medication, some of the same drugs involved in the Savannah case.

One of the doctors in the Atlanta case has already gone to trial. The jury deadlocked and could not reach a decision. A retrial for this doctor, and any other defendant left in the case, is set for this Fall.

The government is not guaranteed a conviction in this type of case. We think juries will require more evidence than just the fact that someone used the internet to order drugs. Ultimately, the jury's verdict may depend on whether there was a doctor involved, and whether the doctor had sufficient information available to determine the person's need for the medication he ordered. Some jurors may find it difficult to convict a doctor for doing the same thing he would have done if the person had made an appointment to see him at the office.

Yesterday, we were able to successfully resolve a federal criminal case for our client in Atlanta. He had initially been threatened with prosecution for false statements and violations of federal law governing the importation of endangered species for his involvement in assisting a Texas hunter and South African safari operator get a leopard skin into the United States.

The Atlanta Journal Constitution reported the case, based on a press release issued by the United States Attorney's Office in Atlanta.

Although our client was facing the possibility of being charged with more serious offenses (felony charges with possible prison time), we were able to resolve the case for a plea to a misdemeanor, 12 months of probation and a fine. Read the misdemeanor sentence here

Although Endangered Species Act cases are not a large part of our practice, federal law enforcement agents from the Fish and Wildlife Service expect the number of these cases to increase in Atlanta.

Because there are very few Atlanta criminal defense lawyers experienced in fish and wildlife prosecutions, we will follow these cases and watch for any developments in the law.

William "Bill" McArthur III, a South Georgia doctor, recently pleaded guilty to violating federal drug laws as a result of his involvement in an internet pharmacy. The Macon Telegraph has the story.

Apparently, the doctor agreed to prescribe medication to patients who submitted orders via the internet or by telephone. The doctor, his father and another physician operated a "call center" in Mississippi where the orders were filled. Several discount pharmacies were also involved.

This is not the first time an internet pharmacy operation has been charged with violating federal drug laws. Our firm is currently representing a physician charged with approving certain low-level prescription drugs after reviewing and evaluating medical information submitted by patients through the internet. In our case, the government contends that doctors cannot approve any sort of controlled substance without a face-to-face physical examination of the patient. We disagree, and the case remains pending in federal court in Atlanta.

These cases can be difficult to defend because many doctors would say that the best way to determine if a patient should received a certain medication is to conduct a physical examination of that patient. The government usually calls these doctors to testify as experts in the "legitimate practice of medicine."

The problem with the government's theory is that it ignores reality (many people receive prescription drugs from nurses and p.a.'s without ever seeing a doctor), and it assumes that a doctor cannot get the medical information he or she needs online. That is especially true when the drugs are pills like Viagra and weight loss medications. Just because it's not the best way to practice medicine doesn't mean it's a federal crime.

It looks like internet medicine cases will continue to be charged as computer crimes and/or federal drug crimes, and lawyers will continue to litigate them because there is so much money involved. In the South Georgia case, the government alleges that the business generated approximately $1.8 million.

Maybe if they had not been so successful they could have stayed under the radar. Now, the doctor is facing the loss of his ability to practice medicine, a hefty fine and up to five years in federal prison.

Looks like T.I. won't have to stay at home this Easter. This week, a federal magistrate judge in Atlanta agreed to modify T.I.'s bond to allow him to attend Easter Sunday services at the Georgia Dome. The Atlanta Journal Constitution has the story on T.I.'s bond modification.

It's not unusual for a defendant to get court permission to leave his home or travel outside the district while the case is still pending. In the Northern District of Georgia, and most other federal judicial districts, bonds usually have conditions that restrict a defendant's travel to the district where the case is pending. (Some defendants are detained without bond at all. In fact, in most major drug and firearm cases in federal court in Atlanta defendants are held in pretrial custody until the case is resolved.)

No word yet on a trial date for T.I. because the case has not yet been "certified ready for trial" by the magistrate judge. There is still a motion to suppress evidence pending that will have to be heard and ruled on before the case can proceed. T.I.'s Atlanta criminal defense lawyers have challenged the search of T.I.'s vehicle and residence and are trying to keep the guns that were found out of the case. If they are successful, it probably won't end the case because there are still cooperating witnesses who are expected to testify that T.I. was involved in unlawful gun purchases. But the suppression of the guns will make the case a whole lot more difficult for the government to prove.

I expect the hearing on the lawyers' motion will take place soon. After the hearing, the attorneys will probably file another legal brief with their arguments to suppress the evidence. The magistrate judge will then review their arguments and make a recommendation to the district court that the motion should be granted or denied. After the district court makes the final determination, the case can be set down for trial.

Although there is a speedy trial act in federal court, it usually doesn't mean much. Cases are supposed to be tried within 70 days after arraignment, but any pending motion will toll the time and keep the clock running. That's why cases often take a year or longer to get to trial in federal court, at least in Atlanta.

I doubt this case will last more than a year, but I don't expect the case to be resolved until late summer at the earliest. With or without the guns, it should be an interesting trial.

Georgia State Rep.Ron Sailor, Jr. pleaded guilty this week to federal money laundering charges in Atlanta. All the local news media covered the story. (The picture on the left is Sailor and his Atlanta criminal defense lawyer Bruce Maloy.) Bill Rankin provides a good summary of the investigation and the plea in the Atlanta Journal Constitution.

Now we know why Sailor has missed so many votes in the Georgia General Assembly - the government told him to. Federal prosecutors apparently instructed Sailor not to vote during the time he was cooperating with the government to avoid any appearance that the feds (a Republican controlled Justice Department) were telling Sailor how to vote. I am not sure how his constituents feel about that, or how silencing a reliable Democratic vote may have affected pending legislation. Because Sailor had not entered a guilty plea until this week, he would not have been prevented from holding his seat and voting on legislation. Interesting issue, but unlikely to get any attention. Another interesting issue is why Sailor was approached by this undercover agent. What led them to Sailor? Was it another cooperating witness? Or, did they just chose him at random?

U.S. Attorney David Nahmias told reporters that Sailor has been cooperating with law enforcement in an ongoing investigation into public corruption in Georgia. Apparently, he's been cooperating for several months while his arrest was kept under seal. Nahmias described Sailor's cooperation as "useful." Anyone who follows Georgia politics would not be surprised if there are additional legislators under investigation for violating various federal laws. The dome may be gold, but it's certainly not pure.

As with most plea agreements in federal court, Sailor is not guaranteed any specific sentence. The amount of time he will have to spend in federal custody will be determined by the judge after a Presentence Investigation Report is prepared by the U.S. Probation Office. The judge will consider the federal sentencing guidelines, but ultimately make his decision based on the sentencing factors set forth in the federal criminal code (18 U.S.C. 3553).

I am sure Sailor and his defense attorneys are hoping that the government will reward him for his cooperation by filing a "5K" motion before he is sentenced. "5K" refers to a section in the federal sentencing guidelines that rewards a defendant with a possible reduction in his sentence for providing "substantial assistance" to the government. Whether the defendant has provided "substantial assistance" is always up to the government. If a "5K" motion is filed, the judge can disregard any mandatory minimums and impose a reasonable sentence. That usually means the defendant will get less time. Although the government attorney usually makes a recommendation, the amount of the reduction is ultimately up to the judge.

Now that Sailor's plea is public, we should soon see if his cooperation results in any arrests. I expect the feds will likely wait until after the legislative session if they intend to charge any other state representative. But after March, who knows...

In Atlanta, Georgia, two TSA security screeners and one Delta Airlines employee appeared in federal court yesterday after being indicted on drug charges. The charges are based on their alleged involvement in agreeing to help courier drugs on Delta flights from Atlanta to New York. The arrests, and the recent indictment, are the result of a undercover investigation by federal agents in Atlanta.

The Atlanta Journal Constitution has the story. So does the Atlanta Business Chronicle. The arraignment was also covered by the local Atlanta tv news media.

It appears the charges relate to an undercover operation by the DEA. A DEA agent convinced a TSA employee to help smuggle suitcases containing drugs through the security checkpoints and deliver them to a Delta employee. The Delta employee would then fly the suitcases to the undercover source in New York. The DEA apparently used fake drugs in the sting. According to the criminal complaint, the price for the delivery was $8,000 for two suitcases in the first deal. There were apparently two other transactions with the same DEA agent.

Apparently, this is not the first time Delta employees have been charged with smuggling drugs. Here is a story from the New York Times in 1997.

These are serious charges in federal court. Depending on the quantity of drugs involved, there may be mandatory minimum penalties of 10 years and up. Heavy fines are also a possibility. Losing their jobs is almost a certainty.

Defense lawyers for the defendants were able to secure bond for the three, and they are likely out of jail now and awaiting another court date. In federal court, at least in Atlanta, there is usually a pretrial conference shortly after the arraignment to determine if there are any substantive motions that need to be heard prior to trial. It is also a good opportunity for the defense attorneys to make sure they have all the evidence and other discovery materials that the government must provide pursuant to the federal criminal rules.

The fact that the government did not ask for detention for these defendants suggests that case may be resolved for something less than the mandatory minimum sentences. That usually happens only when the defendants cooperate with the government, or when they have no prior convictions and qualify for "safety valve" treatment under the federal sentencing guidelines.

Of course, that all assumes that the government can prove its case. As we have learned in several other federal cases, the facts are not always as they appear from reading a criminal complaint. But those facts do make interesting headlines. And blog topics.

Our law firm was retained last week to represent one of the U.S. Army Rangers in a federal criminal case currently pending in Atlanta, Georgia. The arrest of these soldiers was widely covered by the Atlanta and national media. Here is the story from CNN.

We have not been in the case for very long, so it wouldn't make sense to comment on the facts. But from what we've read in the press and public court records, it appears that the ATF (Bureau of Alcohol Tobacco and Firearms) set these soldiers up to commit a crime that the soldiers would never have even imagined had the ATF not been involved. The ATF came up with the idea, and then actively recruited people to join in. Apparently, the ATF did not initially succeed in convincing anyone to do this, so they kept on trying.

There is no dispute that these soldiers all have honorable service records. Our client has absolutely no criminal record, and has served several combat tours. He is well-liked, respected and valued by his fellow soldiers and superior officers. Everyone who knows him has a very hard time believing he would be involved in something like this. So do we.

The charges are very serious - drug conspiracy and firearm offenses that carry mandatory minimum sentences of 15 years and up. But it appears to be a very defensible case from what we know, especially in regards to our client's alleged involvement.

The other soldiers are also represented by capable federal criminal lawyers and well-regarded Atlanta defense attorneys. We are pleased that everyone involved in this case will be defended by an experienced federal lawyer. It is incredibly important to know both the federal rules and the federal sentencing guidelines when defending federal drug and firearms charges. All the defense lawyers in this case have certainly been around the block, and we feel sure they will represent their clients well.

This should be an interesting case, but our ability to cover it in this blog will be limited since we are directly involved. But I expect the Atlanta media will be following any major developments. So stayed tuned.

The Federal Bureau of Investigation announced this week that it is investigating 14 companies for their involvement in the subprime mortgage business. CNN has the story.

The companies were not named, but the companies that have been targeted certainly know it by now. As in most fraud investigations, the FBI is looking into over-valued assets and false documentation. Executives with these companies may have also been involved with insider trading (selling company stock on non-public information before the problems in their asset portfolios became obvious).

The FBI claims that they are on track to receive 60,000 reports of suspicious activity in connection with mortgage transactions, a huge jump from a few years ago.

It's no secret that Atlanta, and other parts of Georgia, have been hit hard with mortgage fraud. The real question is where to place the blame. We have represented all types of people in mortgage fraud investigations and prosecutions - from the "straw-buyers" to the closing attorneys, and everyone else in between. (See my earlier post on our appraiser client, and my earlier post on the dynamics of mortgage fraud prosecutions.)

I have often said that there would have been no fraud had the lenders not been so greedy. They were out to close as many loans as possible and it became a free-for-all. Of course people took advantage of the "no doc" loans, and the "wink, wink" advice from their brokers to fudge the paperwork. But lenders approved some pretty sorry loans, and they knew it. It should come as no surprise that many of these loans are going into default.

Writing off a bad loan is one thing, but appearing in front of a federal judge in a criminal case is a whole other ballgame. I don't know if the feds will start naming some corporate defendants in these cases, but it would be nice if they didn't always just go after the little guys.

I don't have a blog category for "I can't believe he said that," but if I did, this would top the list. For reasons that are known only to him, Judge Fuller agreed to be interviewed by The New Yorker Magazine about the Brian Nichols death penalty case currently (indefinitely?) pending in Atlanta, Georgia. Just so I don't get it wrong, here's the quote:

If the case ever gets to trial, the defense will offer an even more contentious argument: that Nichols, who has pled not guilty, acted out of a “delusional compulsion” (a version of the insanity defense allowed under Georgia law). “That’s their only defense, because everyone in the world knows he did it,” Judge Fuller told me.

I'm not saying he's wrong. No sane person doubts Nichols' guilt. But the real question is why in the world would he publicly say this when the case is still pending in his court? Why did he agree to an interview at all? Didn't he put a gag order on everyone involved in the case? Doesn't that also apply to him? I really don't get it. Maybe it's an intentional move to get off the case. But why not simply recuse himself without all the fuss and delay? As much as I would like to explain his comment, or offer some insight, I just don't get it.

The Atlanta Journal Constitution helped spread the news in Atlanta, and included some additional commentary from local criminal defense lawyers in Atlanta. The consensus is that Judge Fuller's comment may violate the judicial cannon of ethics. It will certainly provide fodder to members of the Georgia General Assembly who want to get him off this case. The Assembly is currently in session in Atlanta.

I was also interviewed about Judge Fuller's comment on Atlanta's local National Public Radio affiliate, WABE FM 90.1.

I expect we will soon see another motion to recuse, but I'm not sure who will file it. His comment obviously prejudices the defense, but the D.A. has not been shy about expressing his desire to remove Fuller from this case. Perhaps we'll see a joint motion to recuse, which the judge may reluctantly grant. This may be the only time the prosecutors and defense lawyers actually agree about something in this screwed up case.

It's not breaking news that there have been a lot of federal mortgage fraud prosecutions in Atlanta. One of the biggest cases is finally finishing up. Several of the last remaining defendants in the Phillip Hill case will be sentenced soon. We represented one of the appraisers in this case who agreed to cooperate with the government. His story was recently covered by Bloomberg News.

I discussed these cases in an earlier post on mortgage fraud in federal court. It's always been my opinion that the lenders share some responsibility for the fraud. Most "white collar" crimes (actually, most all crimes) are crimes of opportunity. When you have lenders throwing money around, it's not difficult to find people who will willingly take it. Especially people who are not worried about ever paying it back. It's only when the loans stopped performing that the lenders screamed "fraud!"

We have represented appraisers, mortgage brokers, real estate agents, investors and even closing attorneys in mortgage fraud cases in Georgia and several other states. There were also some "strawbuyers" who we defended. Fortunately, we kept most of them from being prosecuted because the "strawbuyers" are often just as much the victims as the lenders. The "strawbuyers" usually end up holding the bag and stuck with ridiculous mortgages they could not afford. Their savings were lost, and their credit ratings ruined.

For a while, we were handling so many of these cases and related investigations that I thought mortgage fraud was going to consume our practice. But I think we've seen the high-water mark for these cases. I don't expect to see this much mortgage fraud in the future, now that money is tighter and the lenders are finally becoming a little more diligent.

Not that this is surprising news, but a "reliable" confidential drug informant pleaded guilty today in federal court in Atlanta, Georgia to lying to federal drug agents about drug deals. The Atlanta Journal Constitution has the story.

Any defense lawyer who has tried a drug case in federal court can tell you about snitches. In virtually every federal drug case (especially those involving drug conspiracy charges), the government will call informants to testify. Sometimes the informants are paid by the government, sometimes they are trying to avoid being charged by cooperating. The most common type of informant, however, is the co-defendant who has already pleaded guilty and is hoping for a reduction in his sentence pursuant to Section 5K1.1 of the federal sentencing guidelines.

Defendants who are facing time for federal drug charges have a strong motivation to do whatever the government asks them to do. It is one of only two ways to avoid a draconian mandatory minimum sentence; and it is the only way to avoid a mandatory minimum if the person already has a record.

The problem is that informants in drug cases are generally not the most credible people to begin with (most have long criminal records). When these informants are offered the chance to cut their sentence by several years for "cooperating," you often end up with some highly dubious testimony, and more often than not, some questionable convictions.

There is no way to tell how many people have been convicted based on informants who have lied. Our firm is often asked to handle federal criminal appeals where the person was convicted of federal drug charges based solely on informant and co-defendant testimony. Unfortunately, the defense lawyer who tried the case could only try to impeach the informant with his criminal record and his plea deal with the government. It is very difficult to prove that an informant is actually lying unless the defense lawyer has access to the same information the government has. But that doesn't happen in federal court.

There is some good news. I tried a federal drug case recently where the government's evidence against my client was based almost entirely on the testimony of five informants who were given deals to testify. Despite the testimony of these five witnesses, the jury did not convict my client. Several of the jurors told me afterwards that they did not believe the informants. They said they placed very little weight on their testimony because they thought the informants had a strong motivation to lie. I was pleased to hear that, and I've been told by other federal criminal lawyers that they have heard the same thing from their jurors.

But the best way to stop informants from lying is to stop rewarding them for it and start prosecuting them. Maybe the prosecution of this informant in Atlanta will be the first of many. I know there is no shortage of lying informants out there if the government wants to pursue them.

Looks like we can finally close the book on this case. At least in federal court.

Yesterday, Michael Vick was sentenced to serve 23 months for his role in the dogfighting operation known as Bad Newz Kennels. ESPN and virtually every other news outlet in the U.S. covered the sentencing.

Vick and his lawyers were probably a little surprised by the length of the sentence because the judge did not go along with the original plea agreement Vick had with the government. That agreement called for a sentencing guideline range of 12 to 18 months. The judge found that Vick had not "accepted responsibility" for his conduct so he did not give Vick the 2-level reduction that would have applied. That put Vick's guideline range at 18 to 24 months, and the judge went with the higher end of that range. The minute sheet explaining the sentence was filed with the court later that day.

There is no parole in the federal system, but 23 months doesn't usually mean 23 months in custody. If Vick does his time without any problems, he should receive "good time credit" and get a 15% reduction in his sentence. That would get Vick home sometime in May 2009.

The judge said that he denied Vick credit for acceptance of responsibility because Vick made false statements about his drug use while on bond, and he minimized his role in executing some of his dogs. A judge has a lot of discretion under the sentencing guidelines in awarding credit for acceptance of responsibility. Most federal judges would have taken away acceptance of responsibility credit when Vick failed his drug test. All of the other things Vick did - apologies, early surrender, etc. did not seem to make a difference with this judge.

Of course, there's still the state indictment. I expect Vick's lawyers are now trying to resolve that case with a plea to concurrent time so that Vick will not be facing time in state custody once he is finished with his federal sentence. That may be the best his lawyers can do for him given the circumstances of this case.

The U.S. Attorney's office in Atlanta indicted 88 individuals who are alleged to be connected to two major drug cartels in Mexico. According to the Atlanta Journal-Constitution, the federal government's investigation in this case, which involved law enforcement officers from 300 agencies, led to the seizure of $10 million in cash, 111 kilograms of cocaine, 17 pounds of crystal methamphetamine, and 32 weapons.

The Drug Enforcement Administration (DEA) alleges that the currency was headed back to Mexico and the packaging of the drugs revealed unique markings indicating that they originated with the Mexican drug cartels.

The DEA has spent much of its resources over the past several years targeting Mexican drug trafficking organizations and considers the recent indictments a major blow to their alleged movement of drugs through Atlanta. Atlanta has become a major hub for drug trafficking in recent years.

Our firm has handled several recent federal cases involving alleged Mexican drug trafficking organizations in Atlanta, several of those cases involved literally truckloads of drugs and millions of dollars in seized cash. In these cases, the government sought to tender their DEA agents as "experts" in the field of Mexican drug trafficking organizations. The agents would then testify that the seemingly innocent conduct that our clients had engaged in was consistent with what their investigations had revealed were the practices employed by Mexican drug trafficking organizations. We have vigorously fought for the exclusion of this sort of testimony on the grounds that the agents were not "experts" in this field and that they could never prove that they ever reliably determined just how Mexican drug trafficking organizations did, in fact, operate. Moreover, the government has never been able to prove that "Mexican" drug trafficking organizations actually behave any different than those of other nationalities.

Many Georgia criminal defense attorneys have been critical of this "expert testimony" believing that it is nothing more than a ploy to allow the agents to tell the jury "trust us, we know these guys are drug dealers." This type of testimony has been offered in several cases where there was no other evidence at trial that the defendants had possessed or distributed drugs.

With the wealth of information that these recent indictments should reveal about Mexican drug trafficking organizations, we'll see whether these agents really knew what they were talking about.

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.

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.

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.

I argued a federal criminal appeal in front of the Eleventh Circuit Court of Appeals yesterday in Atlanta, Georgia. It was my sixth trip for an oral argument before that court. The case involved a very large drug seizure in Cobb County, Georgia ($4 million in cash and 270 kilos of cocaine and methamphetamine).

We were arguing about the scope of a consent search given by our client, the owner of the auto repair shop where the trailer was found. Our client told agents they could search the shop, but specifically told them that he did not own the trailer. Our position was that our client's statement limited the scope of the search under the Fourth Amendment, so that the agents had no right to look in the back of the trailer where they found the cash.

Under United States Supreme Court authority, a person has the absolute right to limit the scope of a search they otherwise consent to. For example, a person could consent to a search of their car when stopped by a police officer, but tell him that he could not search the trunk. The cops could then only search the trunk if they had independent probable cause to do so. (Ironically, the person telling them not to search the trunk may have just given it to them!)

In our case, our client had no problem allowing the agents to search his shop, but felt he did not have the authority to let them search a trailer that did not belong to him. They searched it anyway and found all that cash.

The judges were very prepared (as they usually are in that court), and asked a lot of questions. I don't expect a decision for at least a few weeks, maybe months.

The outcome could be huge. If we win, our client gets a new trial in federal court here in Atlanta. And, more importantly, the government can't use the $4 million in cash against him. That won't guarantee a win, but it will certainly help.

This is my last posting on this case unless something extraordinary happens. We have now seen the plea agreement, and it's nothing special. The federal government and Vick agreed to a specific offense level from the federal sentencing guidelines, and the government agreed to recommend the low-end of the sentencing range. Basically, that means the government will be recommending a 12 month sentence, but the guidelines would authorize a sentence of 12 to 18 months. Of course, as the judge told Vick, he could get a lot more time in federal prison. The statutory maximum is 5 years, and the judge previously told the co-defendants that he considers this case to be an aggravated violation of federal criminal law.

I was interviewed on the Atlanta, Georgia National Public Radio affiliate about the case. Here is the story on the possibility of additional state charges:

ATLANTA, GA (2007-08-24) The Atlanta Falcons' Michael Vick signed a plea agreement filed today in federal court that says he conspired to moving dogs across state lines for the purpose of dog fighting.

A judge will make plans to sentence Vick.

But what does the star quarterback's plea in federal court mean for possible state charges in Virginia?

The answer to that question lies in the hands of Virginia prosecutor Gerald Poindexter.

Dog fighting is a felony in Virginia punishable by up to five years behind bars. Vick could face a 40 year sentence if found guilty of abusing 8 dogs. A spokesman for Poindexter says the prosecutor has yet to make up his mind.

If Vick does face state charges, criminal defense attorney Page Pate says the quarterback's federal plea would hurt instead of help.

PATE: In fact, he's now agreed to a summary of facts that could put him in a very difficult position if the commonwealth of Virginia wanted to charge him.

Among other things, the summary of facts attached to the federal plea says Vick and his former co-defendants had their dogs practice brawling against each other to prepare for dog fights.

© Copyright 2007, WABE

I also contributed to a story on the possibility that the judge would go above the recommended sentence of 12 months:

ATLANTA, GA (2007-08-24) Atlanta Falcons quarterback Michael Vick says he's guilty of being a part of a conspiracy to operate a dog fighting ring across state lines.

Vick admitted to the charge in a plea agreement filed today in federal court in Virginia.

After a week of negotiations, Vick has agreed to cooperate with the government if they want to go after other dog fighting rings.

In exchange, federal prosecutors agreed to throw out the charges of killing dogs and gambling on the dog fights and they're recommending Judge Henry Hudson give Vick the lowest sentence possible; a year.

PATE: I don't see the judge going with the government's recommendation.

Page Pate is a criminal defense attorney based in Atlanta.

PATE: I think the judge considers this to be an egregious case and he has already put the co-defendants and everybody else in the world on notice that this is an aggravated sort of an offense.

The highest possible sentence is 5 years. Vick will officially enter his plea in court on Monday. It's unclear when the judge will schedule Vick's sentencing date.

© Copyright 2007, WABE

We'll see what happens to Vick on December 10. Until then, he and his top defense lawyers will review the presentence report prepared by the probation office, and do everything they can to prepare for the sentencing hearing. It looks like their strategy will be to focus on the good things Vick has done outside of football, and his recent apology. It's the only strategy available to them, but I wouldn't be making travel plans for the next couple of years if I were Vick. My guess (and that's all it is) is 18 months to serve.

It looks like Michael Vick's defense lawyers have convinced him to enter a guilty plea to federal criminal charges in Virginia. Considering the evidence, and the co-defendants lining up to testify against him, it's not a surprise. The story is still developing, and the details of the plea agreement have not been released. But Vick's lawyer said the following earlier today:

"Mr. Vick has agreed to enter a plea of guilty to these charges and to accept full responsibility for those actions and for the mistakes he has made," Billy Martin, Vick's attorney, said in a statement issued Monday afternoon. "Michael wishes to apologize to everyone who has been hurt by this matter."

The Atlanta Journal Constitution discusses the plea and its possible effect on Vick's career with the Atlanta Falcons.

What happens now is simple, but uncertain. Vick will appear in federal court on Monday for a change of plea hearing under Rule 11 of the Federal Rules of Criminal Procedure. The judge will review the factual basis of the plea to determine if there are enough facts to prove that Vick committed a federal crime. The judge will also advise Vick about the rights he is giving up by entering a guilty plea. The judges will probably discuss the main provisions of any plea agreement between the defendant and the government to make sure Vick understands them and they are on the record.

After the plea agreement is accepted by the judge, Vick should be free to go until his sentencing hearing. In the meantime, the federal probation office will draft a presentence investigation report that will discuss the facts of the offense and Vick's personal background. The report will also recommend a sentence based on the federal sentencing guidelines.

Like his co-defendants, Vick may be able to get the benefit of a reduction in his sentence if he cooperates with the government and gives them any information that leads to other people involved in dogfighting. My previous post discusses the benefits of cooperating under the federal sentencing guidelines.
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Vick's sentencing will not occur for another few months. Until then, his lawyers may try to negotiate with the Atlanta Falcons, the NFL and the state prosecutors. It will be interesting to see how the state prosecutors deal with this case. Vick could be facing more prison time on animal cruelty charges if Virginia pursues this case aggressively.

I know this is not a Georgia criminal case, but it is a case involving a famous Georgian. It seems impossible to avoid coverage of this case in the Atlanta news media. (I've even been quoted a few times on the local National Public Radio affiliate about my opinions.)

Here's what's happening now. Three of Vick's co-defendants have entered pleas and will almost certainly be testifying against Vick if he goes to trial. That changes things. Before the plea agreements, Vick was facing the testimony of some unknown informants who were expected to say that Vick attended and bet on some dog fights. There was also undisputed evidence that Vick owned the house where the dogs were trained. All of that information is outlined in the indictment. But the real evidence will come from the people who were at the dog fights and who know Michael Vick. Unfortunately for Vick, three of those people just joined the government's team.

But Vick is not completely without hope. Any decent defense lawyer would be able to impeach the testifying co-defendants based on their plea deals with the government. As reported today in the Atlanta Journal Constitution, Vick's co-defendants have entered plea agreements that will help them avoid some jail time if they help the government convict Vick.

It's a common practice in federal criminal cases. In most federal prosecutions, a convicted defendant's sentence is primarily determined by the federal sentencing guidelines. In a dog-fighting case like this, the guidelines would likely call for some prison time. The best way to avoid prison time, or at least reduce it, is to get credit for cooperating with the government. When someone enters a plea and cooperates with the government, there is a provision in the plea agreement that allows for a "5K motion." A 5K motion is a motion filed by the government pursuant to Section 5K1.1 of the federal sentencing guidelines. Section 5K1.1 allows the sentencing judge to depart from the federal guidelines when a defendant has provided "substantial assistance" to the government in a criminal investigation. It is up to the government to determine whether the assistance has been substantial, but once the motion has been filed, the amount of the reduction is up to the judge.

Even if Vick cuts a deal, his co-defendants will probably get that 5K reduction because their pleas helped bring Vick to the table. Unfortunately for Vick, the first to talk is usually the first to walk in a federal criminal case. We should know by Friday if Vick will bite the bullet and cut a deal.

An Atlanta real estate closing attorney was sentenced yesterday in a federal mortgage fraud case. The Atlanta Journal Constitution reports that the lawyer received a three year sentence for his role in a large-scale mortgage fraud scheme involving real estate investor Phillip Hill.

Our firm has handled many mortgage fraud cases in the past few years. We have represented closing attorneys, appraisers, mortgage brokers, investors and "straw-buyers" investigated for mortgage fraud in federal and state court.

Mortgage fraud cases can be complex, but they usually follow a similar pattern. A house is purchased by an investor, then resold to a straw-buyer at an inflated value. The inflated value is the result of an overstated appraisal. The loan documents are usually falsified so that the straw-buyer can qualify for the loan. The house is then sold to the straw-buyer from the investor and the investor gets the profit. The straw-buyer gets a little something for his role, usually a few thousand dollars. Unfortunately, the straw-buyer also gets a house that's worth less than he owes on it.

Mortgage fraud prosecutions usually focus on the key players in real estate transactions - investors, brokers, appraisers and attorneys. One of our recent mortgage fraud cases involves a prominent real estate lawyer arrested on RICO and mortgage fraud charges in Georgia. Here is the story from the local newspaper:

Attorney: Fraud case flimsy

An Athens attorney might have worked on some 60 mortgages that authorities allege were part of a $7 million fraud scheme, but he turned away about 40 more because he sensed there was something amiss, said the Atlanta attorney who is defending the local lawyer.

"Based on everything I have seen, they should never have charged him," said Page Pate, the attorney representing C. Michael Rose. Pate, who specializes in mortgage fraud, said the case against Rose is so flimsy he should never have been arrested for allegedly violating the state's Racketeering Influenced and Corrupt Organizations Act.

Although Rose was the closing attorney for many sales in the subdivision, he turned down others that involved "insufficient paperwork and other indications the documents were not in order," Pate said. The closings Rose did participate in were all legitimate, Pate claimed. "Any disbursements or payments that were made in connection with those loans were fully disclosed to the lenders, and the lender approved each and every closing that Mike Rose did," he said...

Prosecutors often overlook the fact that there would be very little mortgage fraud if lenders had not been so greedy to fund questionable deals. Some of the mortgage brokers are also to blame because they did everything they could to get people qualified for loans that they could not afford. In many cases, the brokers and the lenders did not care what happened after the loans closed because they sold the loans to some other lender or investor. Getting the mortgages paid became someone else's problem.

I expect an increase in mortgage fraud prosecutions on both the federal and state level as more and more lenders get into financial trouble because of bad loans. We've heard of a lot of mortgage lenders getting out of the business and announcing major financial losses. If history is any guide, they will be looking for someone to blame and encouraging federal and state prosecutors to indict more cases.