There's a full-plate of criminal justice related bills up in committee this week in a variety of committees and complete agendas for individual committees are hyperlinked under each panel's name, but let's run through a small of highlights that jumped out at me:Senate Criminal Justice CommitteeSB 991 by West would allow release of invalid 3g offenders on medical parole.SB 834 by Estes would make the names of grand jurors permanently secret. The bill analysis says the feds already do it that way, so must be a good idea, huh? What's a secret tribunal or two among friends?SB 1316 by Whitmire is an excellent, common sense bill to extend the "Romeo and Juliet" defense for indecency with a child to same-sex partners. Good for him.While we're on this committee, see Jordan Smith's coverage of a good bill related to professionalizing police evidence retention which was referred to here that deserves consideration sooner than later.Senate JudiciarySB 915 by West would allow juvenile records to be sealed automatically when the youth reaches 17 as opposed to 19 under current law.House Criminal JurisprudenceRep. Senfronia Thompson's HB 990 creating a sentencing council has already been mentioned. HB 2653 by Allen and HB 2803 by Toth/Burnam are both modest probation reforms, with the latter including a hammer at the end for fourth-time state-jail drug offenders.HB 3334 by Hughes would require recording of all witnesses questioned by a grand jury, not just the defendant. HB 2988 by Canales is a crackerjack bill related to disclosure of exculpatory evidence by prosecutors, creating a proactive duty to hand over both exculpatory and impeachment evidence. My favorite part:not later than 30 days before a trial is scheduled to commence for an offense other than a misdemeanor punishable by fine only, the court shall require the attorney representing the state to affirm in open court that the attorney has:(1) been diligent in identifying any exculpatory or impeachment evidence that is material to the defendant's guilt or punishment and in the possession of or otherwise known to any peace officer, investigator, or other individual involved in the investigation or prosecution of the case; and(2) provided all evidence described by Subdivision (1) to the defendant and the defendant's attorney, regardless of whether the defendant has made a motion under Article 39.14.House CorrectionsWill hear the TDCJ Sunset bill on an otherwise short agenda. House Homeland Security and Public SafetyHB 3672 by state Rep. Allen Fletcher would require that members of the Public Safety commission to maintain secret-level federal security clearance.HB 375 by Ryan Guillen would let the State Board of Veterinary Examiners have its own law enforcement wing with guns and badges, etc..HB 1656 by Eilanc/Zerwas would create a $5 surcharge on moving violations to pay for indigent EMS services.
The week ahead in Texas criminal-justice related committtees
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US Airstrike Kills 11 Afghani Children
A US airstrike in Afghanistan yesterday targeting a Taliban leader killed 11 children. Also yesterday, 6 Americans including a young female diplomat were killed in a suicide bombing: The battle unfolded on Saturday, the same day that a total of...
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Drunk Driver Given Millions After Hellish 22-Month Incarceration
A man from New Mexico who was forced to spend nearly two years behind bars, much of which was in solitary confinement, was recently awarded $15.5 million in arbitration from the county responsible for his horrific mistreatment.
The case, which took place in Dona Ana County, NM, revealed just how horrible things can go awry when someone slips between the cracks of the criminal justice system. The man, Stephen Slevin, was arrested back in 2005 after being pulled over by an officer who suspected he was driving drunk. Slevin was then taken to Dona Ana County jail and booked. Soon after, Slevin was placed in solitary confinement because prison administrators believed he was mentally unstable and may pose a danger to himself and others. The solitary confinement went on for 22 months, including several stretches where Slevin was not allowed to leave his cell for months at a time.
The man's time in prison was a nightmare, something that is unimaginable given he was only arrested on suspicion of drunk driving, hardly a crime worthy of such ghastly treatment. During his time in solitary confinement his health was so neglected that he developed bedsores, had fungus growing on his skin, had toenails that curled under his feet and suffered from a bad tooth infection which caused him to have to pull his own tooth without anesthesia. While all this was going on Slevin wrote several letters to prison administrators begging them to release him or to at least give him help for his severe depression. Sadly, no help came and Slevin wasted away, losing 50 pounds over the time he spent behind bars.
Even more amazing than his horrific treatment is that Slevin was never brought before a judge or convicted of having done anything wrong. His prison stay took place only after an arrest, nothing more. It was only after his release in 2007 that he sought an attorney who pursued Dona Ana County for the money it owed Slevin for such disturbing care.
Slevin was initially awarded $22 million from a jury, but later agreed to the reduced amount to end the already lengthy litigation with his former captors. Dona Ana County had tried to highlight Slevin's previous criminal record, including other DUI convictions, to deflect attention away from its actions. The fact is that no prior criminal behavior justifies the way Slevin was treated. Thankfully, the case serves as a message to other law enforcement agencies across the country and here in Missouri to avoid trampling on a suspect's rights. Though Slevin will never get those two years of his life back, we can hope that the millions he was awarded will send a strong enough message so that no one else arrested on suspicion of drunk driving has to endure such horrible treatment again.
If you've had a run in with the law and find yourself in need of a Missouri DWI defense lawyer capable of aggressively protecting your interests, contact our St. Louis DWI law firm today at (314) 863-0500.
Source: "Man left in solitary confinement in New Mexico jail for 22 MONTHS after horrific treatment awarded $15.5M," by Erik Ortiz, published at NYDailyNews.com.
See Our Related Blog Posts:Missouri Measure Makes Refusing To Submit To Breath Test A CrimeWill Missouri move towards mandatory ignition interlock devices for DWI offenders?
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Case o' The Week: A Taxing Decision - Jennings and Sophisticated Means
With the Judiciary battered by reduced federal funding, on the eve of the April 15 filing deadline, in a case submitted without oral argument, will the government prevail when tax evaders appeal a guideline enhancement? As sure as death and taxes. United States v. Jennings, 2013 WL 1317017 (9thCir. Apr. 3, 2013), decision available here.Players: Decision by Judge Clifton, joined by Judges O’Scannlain and Trott. Facts: Defendants Jennings and Feuerborn sought investors for a process that would separate oil from dirt without producing hazardous waste. Id. at *1. They used a vendor, “Eco-Logic Environmental Engineering” to develop the technology. Id. Using Jennings’ real name and social security number, they opened a bank account called, “Ecologic.” Id. Without telling investors, board members, or accountants, they deposited about $2.5 million in investments into the Ecologic account and spent on private expenses. Id. That money wasn’t reported to the IRS as expenses. Id. The men were convicted at trial of conspiracy to defraud the US and tax counts. Id. At sentencing, Probation urged a two-level enhancement under USSG § 2T1.1 for the defendants’ “sophisticated means.” Id. Over defense objection, the district court imposed that enhancement, concluding the Ecologic account disguised income as company expenses. Id.Issue(s): “Under the Guidelines, a two-level sentencing enhancement should be imposed when a defendant's offense ‘involved sophisticated means .’ [U.S.S.G.] § 2T1.1(b)(2) (2010). Application Note 4 explains that the term ‘sophisticated means,’ for purposes of subsection (b)(2), “means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. Conduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts ordinarily indicates sophisticated means.” Id. at cmt. n.4. Defendants argue that they did not employ means as sophisticated as those listed in the application note. They argue, for instance, that the enhancement should not apply because they did not create corporate shells or offshore accounts.” Id. at *2.Held: “[T]he list contained in the application note is not exhaustive. We agree with other circuits that the enhancement properly applies to conduct less sophisticated than the list articulated in the application note.” Id. at *2. “[T]he fact that the concealment might not have been total [because it was using Jennings’ real name and social security number] does not mean that there was no effort at concealment or that the method employed was not sophisticated. Application of the enhancement does not necessarily turn on the scheme's likelihood of success in remaining undetected.” Id. at *3. “Defendants’ effort to disguise funds taken for their own personal use as money paid to a third party vendor for business expenses through use of a bank account with a deceptive name constituted a sufficiently complex method of concealment to warrant application of the sophisticated means enhancement.” Id. Of Note: The Ninth joins the Second, Seventh, and Eleventh Circuits in holding that the “sophisticated means” enhancement can apply to conduct less sophisticated than the examples in the application note. Id. at *2. While that holding isn’t particularly surprising, applying the enhancement to conduct so – well, unsophisticated – is. If you can suffer that bump for opening an account using your real name and social security number, what conduct is not “sophisticated?”How to Use: Jenningsdeals with “sophisticated means” in the tax guideline. What about that enhancement in the fraud guideline, USSG § 2B1.1(b)(10)? The two definitions are uncomfortably close. Mull Jenningswhen running the guideline calculations for tax or “vanilla” fraud cases. For Further Reading: Defenders are officially singing the sequestration blues. Many offices have laid-off staff, others have started furloughs, all will have furloughs underway by May. For a recent article describing the devastation, see Federal Defenders Face Deep Cuts, Delays In Cases, available here. Image of Uncle Sam from http://www.mhpbooks.com/amazon-tax-holiday/Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at www.ndcalfpd.org.
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Samuel Leibowitz
Samuel Leibowitz August 14, 1893 – January 11, 1978 While reading an article in Thursday’s New York Times (4/4/13),I flashed back forty years deep into my public defender days. Alabama lawmakers voted to issue posthumous pardons to the Scottsboro Boys, nine black teenagers, who were wrongly convicted of rape more than 80 years ago based [...]
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Investors Sue "SEC APPROVED" Ponzi Schemers And County Bank For $5.1 Million
A group of investors that lost millions of dollars in what authorities alleged was a $60 million Ponzi scheme filed a lawsuit against the alleged Ponzi schemers and the community bank listed on their marketing materials as a reference. The lawsuit named Santa Cruz County Bank (the "Bank") as a co-defendant, along with John A. Geringer, Christopher Luck and Keith Rode, who operated the GLR Growth Fund. The lawsuit asserted claims of conspiracy and violations of federal securities laws against all defendants, as well as claims of aiding and abetting fraud, aiding and abetting breach of fiduciary duty, and negligent misrepresentations against the Bank.
Geringer, Luck and Rode formed the GLR Growth Fund, L.P. (the "Fund") in 2003. Geringer, who managed the Fund's trading accounts and made investing decisions, told potential investors that the Fund consistently achieved annual returns ranging from 17% to 25%, including a return of 24% in 2008 (when the S&P 500 lost 38.5%.). In marketing materials distributed to investors, the Fund purported to invest 75% of its assets in publicly traded securities, options, and commodities. Investors were also told that the Fund used the services of an independent accountant, and account statements regularly included the caption "MEMBER NASD AND SEC APPROVED". Based on these representations, the Fund raised at least $60 million from hundreds of investors.
However, the Fund did not consistently earn double-digit returns, but in reality experienced trading losses every year from 2005 to 2009, including a 33% loss in 2008 and a 92% decline in 2009. Additionally, rather than invest in publicly traded securities, the Fund instead invested nearly $30 million, or half of the total funds raised from investors, in two private startup technology companies that were highly illiquid. By mid-2009, the Fund had stopped trading entirely after suffering massive losses. With no trading returns to pay to investors, Geringer instead used funds contributed by existing investors to create the false appearance of profitability - a classic hallmark of a Ponzi scheme. The SEC filed a civil enforcement action in May 2012, and Geringer, Luck, and Rode were indicted in December 2012.
According to the lawsuit, the Fund's marketing materials listed the Bank and Chuck Maffia - then a vice-president at the Bank - as a "Banking Reference". Investors that contacted Maffia were told that the Fund was a safe, conservative investment option, with Maffia disclosing that his own retirement funds were invested in the Fund. Additionally,
Maffia emphasized that the Fund’s clients had never sustained any losses; Geringer was an excellent investment manager; and the Bank handled and oversaw all the funds in the Fund Account. Finally, Maffia told Mr. Elliot that Maffia would not have invested his own retirement money in the Fund but for the confidence both the Bank and he had in Geringer.
Some investors also allegedly were provided with tax returns and other documents that supposedly verified the Fund's consistent returns. As the Complaint makes clear, investors were assured by Maffia's statements regarding the safety and legitimacy of the Fund, and would not have invested absent these assurances.
While asserting claims against financial institutions for their role in facilitating Ponzi schemes has been historically difficult due to the high standard of proof required to show liability, the case evokes multiple similarities to the circumstances surrounding TD Bank's role in the massive Ponzi scheme by Florida lawyer Scott Rothstein. There, TD Bank was ultimately forced to pay out hundreds of millions of dollars in settlements and adverse verdicts from investors who alleged that Rothstein was assisted by a TD Bank vice-president who lent the scheme an aura of legitimacy.
A copy of the complaint is below.
2013-03-21 Geringer_Complaint
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A Cop's Opinion Gets a Case Overturned
Everybody is entitled to their opinion. But, not everybody is entitled to have that opinion heard by a jury. Judges limit testimony of witnesses based upon their expertise of a subject, or lack thereof. More often than not, its law enforcement testimony that reaches beyond the scope of their "criminal justice degree". Nothing wrong with a bachelor's degree in criminal justice, nothing wrong with the training at the police academy. That being said, such training does not make a police officer an expert in everything under the sun. Let's take a look at a recent real life example of how opinion testimony can get a conviction overturned.
In Proctor v. State, Eric Proctor took his case to a jury trial in Osceola County. 97 So.3d 313 (Fla. 5th DCA 2012). He had two counts of grand theft, and two counts of worthless checks. Here's what happen: two fraudulent checks were written out to Eric Proctor, and cashed by "him" at a SunTrust bank. The lead detective pulled the bank video, and testified at trial that the person on the video was, in fact, Eric Proctor. Furthermore, the detective then pulled a copy of Proctor's driver's license, and testified that the signature on Proctor's driver's license matched the signature on the worthless checks. Obviously, the lead detective was not an expert in either category.
SPECIAL CRIMINAL DEFENSE NOTE: Hats off to Proctor's criminal defense attorney, a public defender from Bob Wesley's office (according to the clerk's website). They did a great job on this, from my reading of the 5th DCA's opinion. Why do I say that? Well, it is obvious that the public defender looked at the state's witness list and noticed a glaring absence: no expert witness listed for handwriting analysis, and no expert witness listed on eyewitness identification. After all, how can anyone say the person on the bank video is Eric Proctor, or testify that the signatures match--but an expert in that field? (or, somebody that is personally familiar with either). So, Proctor's attorney then filed a "Motion in Limine to Exclude Hearsay Evidence and Improper Inferences Drawn From Hearsay Evidence". Bam, right there on Osceola's Clerk of Court website, this PD is telling everyone that the state doesn't have a case, and that the court must not permit the detective to testify about stuff that he has no business testifying to.
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Man Accused of Committing Mortgage and Tax Fraud
Jon C. Cooper, 64, Washington, D.C., was indicted by a federal grand jury on charges that he filed a false tax return concealing embezzled income, and committed mortgage fraud, among other alled crimes.
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Mea Maxima Culpa
Last week I was in trial (my first bench trial in federal court; we came in second). I was also excited to be scheduled to speak to Professor Ray Moses’s “Opening and Closing” class at South Texas College of Law. I’ve spoken to the class the last couple of years, and it has always been [...]
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Fugitive Pleads Guilty to Making False Statements to Obtain Loan
James Gordon Fields, 47, whose last known address in unknown, a man who was a fugitive for more than a year, pled guilty in the United States District Court for the Western District of Virginia in Lynchburg to a variety of fraud charges.
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Sentenced Handed Down for Fraudulent Loan Scheme
Kenneth Koehler, 43, Baltimore, Maryland, was sentenced to 18 months in prison followed by two years of supervised release for conspiracy to commit wire fraud in connection with a mortgage fraud scheme in which fraudulent loans were obtained on six properties, all of which subsequently went into foreclosure.
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¿Es posible defenderse de una extradición?
La respuesta es si. Contrariamente a lo que se puede esperar, el proceso de extradición tiene por finalidad encausar la cooperación judicial pero sin lesionar los derechos del extraditable.Si bien los Tratados de Extradición establecen compromisos muy sólidos de prestar la cooperación entregando al extraditable, lo cierto es que los Tratados establecen causales de denegatoria que no son otra cosa mas que garantías para el extraditable de que su proceso de extradición será ajustado a ley.Los Tratados de Extradición también hacen referencia a la ley interna, de modo que ésta es la que determina como se debe verificar la legalidad del pedido.La cooperación judicial internacional, entre ella la extradición, parte de una premisa importante: no puede lesionar la legislación interna, por que al hacerlo estaría lesionando la soberanía del Estado requerido.Por último, así el extraditable se allane a la extradición, el Tratado le otorga la garantía de la especialidad que significa en términos prácticos que solo será entregado para el delito materia de petición y no otro.Urge si, y es lo más recomendable, que el abogado conozca la legislación extradicional y sepa aconsejar a su cliente, pero también que el extraditable conozca esta legislación, por que es una forma de verificar que la defensa contratada le este salvaguardando sus derechos. Como lo señalé en algunos foros, hay extradiciones que pudieron ganarse si es que el abogado hubiera tenido el cuidado de leer los Tratados y a veces las entrelíneas que hay en la legislación extradicional.
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California Man Pleads Guilty to $3 Million Ponzi Scheme; Could Be Released By End-Of-Year
Facing trial for thirty-eight counts of securities fraud, conspiracy, and grand theft, a California man agreed to plead guilty to running a $3 million Ponzi scheme that counted a former mayor as its victims. Glenn Kane Jackson, 46, agreed to plead guilty to twenty-seven counts of securities fraud and grand theft just as jury selection was set to commence. Jackson's wife, Gina McGee, had previously pled guilty and served a short stint in prison before being released. Jackson was facing a maximum sentence of thirty years had he lost at trial, but with the plea deal, he could be free by the end of the year with credit for time served and good behavior.
Jackson and his wife operated several entities under the Highlands Capital name, telling investors they could deliver lucrative returns through a foreign-currency trading operation that carried little risk. Jackson befriended investors by describing himself as a former Navy Seal, and also relied on recruiting efforts by Kirk Hanson, a former mayor of Tiburon, California. In total, the pair took in more than $4 million from investors.
However, Highlands Capital was not operating a profitable forex trading operation; to the contrary, Jackson racked up over $1.6 million in trading losses. Investors were not told that the state of Wisconsin had ordered Jackson to cease-and-desist the sale of securities, or that Jackson had been fired from a previous job for misuse of company funds. Nor was Jackson a former Navy Seal - rather, he had failed basic training and was involuntarily disenrolled. Instead, the pair operated a Ponzi scheme, using new investor funds to pay returns to existing investors, in an attempt to show profitability. The couple also used investor funds to support a lavish lifestyle that included luxury travel, casinos, vehicles, clothing, jewelry, spas and dermatology treatments.
More than $2 million remains unaccounted for.
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Top-Ten Recent SSRN Downloads
in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 3086 The Dangers of Surveillance Neil M. Richards, Washington University in Saint Louis - School of Law, Date posted to database: March 25, 2013 [new...
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Edging Closer To A Deal On Immigration Reform...
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Arrested celebrating big events in Atlanta? You're not the only one.
Other than being an international city, Atlanta is certainly one of the United States' top five intercontinental cities. This past weekend was no exception. Between hosting the NCAA final four basketball tournament championship, the Chicago Cubs in town to play the Atlanta Braves, free concerts by the likes of The Zac Brown Band, Sting, and The Dave Matthews Band, and other fun celebratory events, thousands of Atlanta residents welcomed tens of thousands more people from all over the country to enjoy the festivities and the perfect weather. These times of the year are huge boosts to the local economy. But a lot of the money generated by these kinds of events comes from a source that most people forget. Criminal fines.
Any time Atlanta plays host to so many people doing so many different things, the many police departments within Atlanta and the surrounding Atlanta metropolitan area become especially vigilant. Officers work extra shifts and longer hours, so more officers are in more places. Police will issue hundreds upon hundreds of traffic tickets, and even more citations for other minor offenses. Police will likely make several thousand more arrests for offenses like disorderly conduct, criminal trespass, public drunkenness, minor in possession of alcohol, DUI and other alcohol related crimes; misdemeanor marijuana possession and other drug related offenses; different types of violent crimes like battery, domestic violence, assault, and possession of guns and other weapons; and theft offenses like shoplifting, fraud and identity theft.
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Federal judge decides California still cannot run its prison without monitoring
As reported in this article, which is headlined "Judge refuses to end prison monitoring," the California prison system appears not to be getting out of federal court monitoring anytime soon. Here is the story: Treatment of 32,000 mentally ill inmates...
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Roth on Stuntz on American Criminal Justice
Andrea L. Roth (UC Berkeley School of Law) has posted Book Review: William J. Stuntz, The Collapse of American Criminal Justice (Journal of Legal Education, Vol. 62, p. 377, 2012) on SSRN. Here is the abstract: One of the better...
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“Officer on a Train” Enforcement at Rail Intersections This Friday
MERIDIAN - On Friday, April 12, 2013, the Idaho State Police, in cooperation with city and county law enforcement officers, will be conducting an “Officer on a Train” and “Adopt a Crossing” enforcement operation throughout western Idaho. The purpose of this enforcement operation is to increase public awareness of the potential dangers that exist at highway railroad intersections and eliminate driver actions that can have tragic consequences, by focusing on the traffic laws that pertain to these intersections. Operation Lifesaver leads a three part effort through enforcement, engineering and education, designed to eliminate car/train collisions. During the “Officer on a Train” enforcement effort, one officer rides in the lead locomotive of a train as a spotter. This officer observes traffic approaching the highway rail intersections as the train proceeds down the tracks. Other officers pace the train or are parked at specified locations. When a motorist is observed violating the laws pertaining to approaching a rail intersection, the officer on the train radios the nearest officer in a patrol car, with the information. That officer will stop the motorist, explain the dangers and issue a citation, if warranted. The “Adopt a Crossing” program will also take place on Friday. Idaho State Police and city and county law enforcement officers throughout western Idaho will pick a rail crossing within their jurisdiction and focus on enforcing the laws that pertain to that crossing. Already in 2013, there have been 4 car/train collisions reported in Idaho, with 1 fatality. There have also been two incidents involving trespassing on railroad property or tracks which resulted in 1 fatality. Since 1990, the “Officer on a Train” and “Adopt a Crossing” programs have been instrumental in helping to reduce the number of car/train collisions in Idaho. State and federal transportation agencies, city, county and state law enforcement officers, along with the private business and the railroads that operate in Idaho sponsor the Idaho Operation Lifesaver program. Idaho Operation Lifesaver is dedicated to eliminating car/train collisions, which result in preventable deaths and injuries. For additional information visit the national Operation Lifesaver website at www.oli.org, or to schedule a free presentation for your school or organization, please call Idaho Operation Lifesaver at 208-236-5626.
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E.D.Cal.: Invalid parts of warrant severed
The search warrant here authorized seizure of things not remotely related to a completed crime, and they were suppressed and were severable from the whole warrant. Thus, the parts lawfully seized under the rest of the warrant were not suppressed. A state law issue to the conduct of searches is irrelevant under Virginia v. Moore. United States v. Khan, 2013 U.S. Dist. LEXIS 49171 (E.D. Cal. April 3, 2013):
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