Atlanta Criminal Defense Attorney Blog | Georgia Appeals Lawyer | GA Mortgage Fraud Attorneys

Georgia police raid two residences in search of illegal drugs

2012-05-18T17:23:57Z

Prosecutors are eager to tack on any additional criminal charges that they believe they can make stick. Even if it turns out that they would not be able to prove these charges in a criminal trial, the charges can serve as leverage during plea negotiations. By combining a number of different criminal charges the prosecutors create the potential for sentencing enhancements that can dramatically increase the potential period of incarceration that a person may be facing.

From the prosecutor's point of view, any time that law enforcement can conduct a search of a residence, there is an opportunity to discover any number of things that may allow for additional charges or enhancements. When faced with criminal charges, one of the most important factors in obtaining the best possible outcome is challenging the introduction of evidence that may be detrimental to your case.

]]> In one recent raid carried out by a collection of Georgia law enforcement agencies, the search warrants were apparently related to an effort to investigate robberies in a downtown neighborhood. When police officers knocked down the door, they claim to have found not only two video game systems that had been reported stolen, but also crack and powder cocaine, prescription drugs and paraphernalia.

One of the residents of the apartment was charged with possession while another was charged with possession with intent to distribute, as well as a separate charge for intent to distribute within 1,000 feet of a public housing project. A search of a second apartment resulted in similar charges against the resident of that apartment.

Source: Online Athens, "Dealers' apartments raided; part of strategy to reduce downtown Athens robberies," Joe Johnson, May 17, 2012

Federal court says police cannot enforce law banning the tape recording of arrests

2012-05-15T20:43:48Z

There are many factors that could be important when defending oneself from criminal charges. Among these, the circumstances leading up to and including the arrest itself and any associated search and seizure are central to determining if evidence was illegally obtained. Those circumstances can also demonstrate whether the police had probable cause to initiate the arrest in the first place.

Recently, a federal court stepped in to block the enforcement of a law that made it illegal to record police officers while they were arresting someone. The law specifically targeted audio recording, relying on eavesdropping statues. The law was challenged as part of a program aimed at keeping police officers accountable to the public.

]]> The Illinois state law that was enjoined by the ruling relied upon that state's eavesdropping law, which requires the consent of all parties involved before making an audio recording. The federal appeals court determined that the privacy interest that the eavesdropping law seeks to protect would not be negatively impacted by allowing recordings of police officers performing their duties in public spaces.

Fortunately, Illinois is unique in the application of its eavesdropping law, but this inclination to keep under-wraps the specific facts and circumstances surrounding an arrest is interesting. Criminal prosecution would be much easier if suspects never questioned the legality of their arrest or whether the purported evidence was collected as part of an illegal search. We all have constitutional rights that the police must respect, but they are of little use if we do not exercise them.

Source: Chicago Sun Times, "Appellate court halts enforcement of law barring recording of cops," Abdon Pallasch, May 8, 2012

The fallibility of criminal trials and the right to appeal

2012-05-11T19:56:11Z

There are few, if any, more powerful entities in American society and government than the criminal justice system. It has the power to deprive people of their freedom, their assets, and in some cases, even their lives. With this tremendous power over people's lives, it is easy to understand the importance of due process and other constitutional rights that protect us.

Although our constitutional protections from are a powerful shield against the power of federal prosecutors, our criminal justice system is far from perfect. Prosecutorial misconduct, misleading evidence and other factors can all lead to the conviction of innocent individuals. Fortunately we also have a process which allows us to appeal criminal convictions.

]]> A vigorous defense at the trial level is vitally important when facing criminal charges. But when a person has been convicted, a new strategy and team is sometimes more effective. There are many factors that can support a successful appeal, including improper pretrial rulings, a misapplication of the controlling statutes and case law, and various violations of the suspect's constitutional rights.

In recent years, we have seen many individuals convicted of serious crimes in state and federal trial courts only to later be exonerated on appeal and released due to DNA evidence. It is troubling to consider that without the technological advances that allow for this type of evidence, many of those exonerated would have spent many more years deprived of their freedom. This example demonstrates the fallibility of criminal trial courts and underscores the importance of the appeals process.

Source: MPR News, "Is the criminal justice system as good as you think it is?" John Radsan, May 10, 2012

Transitioning from being 'Tough on Crime' to being 'Smart on Crime'

2012-05-08T19:47:02Z

It is rare for the Georgia legislature to provide unanimous bipartisan approval for a major change in public policy. But so dire was the need for reform in the criminal justice system, that the final version a major sentencing overhaul bill passed both chambers unanimously. The new policy reduces or eliminates prison sentences for many non-violent offenders. It instead provides these individuals with rehabilitation and other alternatives to incarceration.

The sentencing reforms would reserve prison beds for violent offenders and channel the savings into programs that focus on rehabilitation and reducing recidivism. In addition to providing a common sense approach to sentencing, the plan is also projected to save more than $250 million in state spending over the next five years.

]]> Traditionally, Georgia had been at the forefront of the campaign to get "tough on crime." To some policy makers it seemed like the best way to make the streets safer was to enact strict mandatory sentences. Coincidentally, this approach was also an easy way to appeal to the voters. Being tough on crime sounds great in a sound bite, but unfortunately it proved to be less effective as a public policy.

While this new initiative makes important strides to improve our criminal justice system, there is still much room for improvement. For instance, in Georgia, many traffic violations are still criminal offenses. In many other states, they are treated as simply a violation carrying a fine. Decriminalizing traffic offenses and other reforms will likely be taken up in future legislative sessions.

Source: Atlanta Journal Constitution, "Governor to sign sweeping justice reform bill," Aaron Gould Sheinin and Bill Rankin, May 1, 2012

More than 100 face federal charges in Medicare fraud investigation

2012-05-04T14:41:46Z

Yesterday, 107 individuals around the country were charged with Medicare fraud. Federal officials claim that the nationwide investigation and crackdown discovered more than $450 million that had been improperly billed to Medicare, making it the largest Medicare fraud investigation ever.

While the investigation was part of a coordinated effort, the suspected fraud schemes discovered by the investigation were unrelated. Over the last three years, the U.S. Attorney General and the Department of Health and Human Services have joined forces and pooled resources in an attempt identify more instances of suspected fraud.

]]> One trend that has gained the attention of federal investigators is allegations of fraud arising out of community mental health centers. Of the $450 million apparently involved in yesterdays operation, about half was attributed to two community mental health centers. Authorities claim that that these centers would find vulnerable patients and then bill Medicare for services for those patients that were never delivered.

Federal authorities have touted their increased enforcement efforts. The number of strike teams around the country has been quadrupled in the last few years. Federal enforcement agencies have also developed a new information system that is designed to review large numbers of submitted bills and automatically flag questionable patterns.

With such a rapid and large scale increase in federal enforcement efforts, it may be more likely than ever that innocent individuals may be drawn into the dragnet. There is potentially even more risk as law enforcement officials begin to rely on computer algorithms as the basis for their fraud allegations.

Source: Atlanta Journal Constitution, "107 charged in Medicare fraud busts in 7 cities," Pete Yost, May 2, 2012

Sentences handed down in alleged mortgage fraud

2012-05-02T14:18:44Z

In the wake of the housing crisis, federal regulators and law enforcement officials are carefully scrutinizing home equity loans and other transactions that could be related to potential fraud charges. In some cases, individuals who were only tangentially involved in one of these suspected schemes may not even have known about the scheme's existence.

Recently, six individuals, including four from the metro Atlanta area, were sentenced in an alleged conspiracy that involved the fraudulent submission of home equity loan applications. The sentences in this matter ranged from one to six years of incarceration.

]]> Prosecutors claim that the individuals who led this scheme would arrange for "straw borrowers" to use invalid deeds and other documents to apply for home equity loans. These alleged straw borrowers did not actually have any valid financial interest in the properties against which they were trying to borrow.

Law enforcement officials claim that the proceeds of the home equity loans would then be funneled back to those conducting the scheme, while the straw borrowers would receive cash and other items of value in exchange for their participation in the scheme.

In any prosecution that involves an alleged conspiracy, there is a question as to how various suspects are prosecuted and sentenced in reference to their level of involvement in the alleged scheme. Prosecutorial zeal to cast a wide net in this type of investigation can lead to serious charges against individuals who had no knowledge of the actual scope and intent of the alleged conspiracy.

Source: Atlanta Journal Constitution, "6 sentenced in home equity scam," Christopher Seward, April 28, 2012

Defrauding banks, or just looking for love?

2012-04-26T18:01:12Z

When a man sought a short term business loan from a bank in Georgia, he offered collateral in the form of an out of state bank account which he claimed contained $21 million. He produced bank statements and other documentation as evidence of this account. The Georgia bank provided a multimillion dollar loan which it believed would be used to fund the man's online payment business. But it turns out that neither the business, nor the $21 million bank account ever existed. The man has now pled guilty to federal bank fraud charges.

This case has garnered increased attention because the suspect had appeared on the television show, "The Millionaire matchmaker." The premise of the show was to set up single millionaires with potential spouses. During the show, this suspect portrayed himself as a millionaire who owned a private jet and a mansion. He also told the television audience the same story that he had told the bank regarding the existence of his online payment business.

]]> While this instance of alleged bank fraud seem to reflect a relatively audacious set of circumstances in most instances the allegations revolve around a much more subtle type of activities. Inaccurate business assessments or projections have the potential to raise red flags among federal investigators, despite an absence of intent to defraud on the part of the suspect.

The court has not announced the sentence in this matter. But generally as the amount of money involved in the alleged fraud increases, potential penalties become increasingly severe.

Source: ABC News, "Millionaire Matchmaker' Con Man Pleads Guilty to Bank Fraud," Linsey Davis, April 11, 2012

Man accused of improper use of NASA grant dollars

2012-04-24T14:48:43Z

There exists an important relationship between many federal agencies and various research universities. Many schools receive substantial federal grants to fund research for agencies such as the NASA and the Mine Safety and Health Administration. But these grant funds come with strings attached. Researchers and universities that do not carefully account for the use of these funds can find themselves in serious trouble.

A federal fraud investigation spearheaded by NASA accuses the Vice President of Wheeling Jesuit University, and the university itself of conspiring to misuse grant funds that were intended for space program research. The investigators specifically allege that the salaries of numerous individuals, who were not related to the NASA research, were paid out of the federal grants. Among those salaries was that of the secretary at the university Vice President's private law office.

]]> According to documents filed in this matter, the University is suspected of being complicit in several separate federal criminal acts, including major fraud, conspiracy, theft of federal funds, wire fraud and false claims. The inspectors claim that not only did the vice president of the university misuse the federal grant funds, but also that other administrators at the university were informed of this fact on several occasions and failed to take any action.

While it remains to be seen whether federal grant funds were ever improperly used in this specific matter, it is not difficult to envision a circumstance in which researchers may open themselves to criminal charges. Any failure to fully segregate grant funds from normal operating funds could be viewed by investigators as a potentially fraudulent act despite the absence of any intent to defraud on the part of the researcher.

Source: Atlanta CBS News, "Ex-MSHA chief, W.Va. school accused of fraud," Vicki Smith, April 13, 20212

Georgia kindergartner taken away in handcuffs by police after tantrum

2012-04-20T17:17:23Z

Anyone who has spent any amount of time in a kindergarten classroom, or even just around five and six year-olds, knows that they can be a handful, especially when grouped together. While it is the role of any teacher to educate his students, a large part of the job for a kindergarten teacher is simply keeping the children under control. It is surprising to hear that a teacher and school would have to call in the police for a classroom disruption by a kindergarten student and that the police would respond by taking the child away in handcuffs. She was initially charged with assault and damage to property, though apparently they will not be pursuing criminal charges against the six-year-old girl.

This is apparently the scenario that played out in one Georgia elementary school recently. A local news report indicates that the young girl was throwing toys and books and ripping items off the wall. While this is obviously inappropriate behavior, it raises questions about the judgment of the police force that they would have to restrain such a young child in steal handcuffs and take her down to the police station.

]]> The school called the police during the six-year-old girl's tantrum. When the police arrived, the girl had already been taken out of the classroom and was in the principal's office. Police say that they were unable to clam the girl down and that is when they decided to pin her arms behind her back in handcuffs and take her away.

One would hope that when a police officer arrives on the scene of any incident, the officer would be a source of common sense and attempt to effectively defuse the situation. That does not appear to have been what happened in this instance.

Source: MSNBC, "Kindergartner handcuffed, taken to police station after allegedly throwing tantrum -- and furniture," Miguel Llanos, April 17, 2012

Statute of limitation for tax related charges

2012-04-17T19:45:13Z

As you may know, for most federal criminal charges, there exists a statute of limitations. A statute of limitations is a period of time after an alleged act within which a criminal prosecutor must bring charges. If the charges are not brought by the time the statute of limitations expires, the suspect cannot generally be prosecuted for the alleged act.

A good example of this, particularly as today is tax day, is the statute of limitations on federal criminal tax fraud charges. There are a number of reasons for statutes of limitation, one being basic fairness. Most individuals would find it exceedingly difficult to defend themselves against allegations that they committed tax fraud decades ago. The suspect and other potential witnesses would likely not remember the circumstances surrounding the incident and potentially exculpatory evidence and other relevant documents may no longer be available.

]]> For criminal tax fraud matters investigated by the Criminal Investigation Division (CID) of the IRS, the statute of limitations is generally six years. There are, however, a number of exceptions that can extend this length of time. If conspiracy is suspected, the limitations period can be extended. Furthermore, the expiration of the criminal statute of limitations will not block a civil fraud action by the IRS.

It would be much simpler if there was a single statute of limitations period that always applied to criminal tax fraud cases. But depending on the nature of the charges and how the time is measured the answer can change. While complicated, the application of the statute of limitations to specific charges can be a crucial factor criminal tax fraud cases.

Source: Wall Street Journal, "When Can Tax Cheats Relax?" April 13, 2012

Verdicts questioned after it is revealed that the judge used drugs

2012-04-13T15:19:55Z

The judgment and impartiality of our federal judges is one of the bedrocks of our federal criminal justice system. So when it was discovered that a judge for the Federal District Court in Atlanta had been abusing drugs and made statements indicating that his decisions may have been racially motivated, it calls into question the fairness and impartiality of our federal judiciary.

The U.S. Attorney's office recently completed an unprecedented investigation into the propriety of the judgments handed down by this federal judge. This judge had apparently been involved in a relationship with a stripper which involved snorting cocaine, smoking marijuana, and using synthetic heroin. At one point, the judge apparently accompanied the woman to a drug deal in which he carried a loaded handgun.

]]> After an undercover FBI investigation caught the judge, he resigned from the bench and pled guilty to various charges. In addition to the concern that the judge may have been under the influence of drugs when he ruled on various federal criminal cases, there was also concern that racial bias may have played a role in his decisions. The woman with which he was involved had an African American boyfriend. A witness reported that the judge had said he had difficulty imposing sentences against African American defendants because he could not differentiate them from the boyfriend.

The investigation into the propriety of the judge's decisions apparently did not find widespread instances of obviously improper sentences. But 11 defendants were given new trials in front of a different judge. Of these 11, five received shorter sentences than they had received previously.

Source: Atlanta Journal Constitution, "Review of 28 of disgraced judge's cases finds no bias, impairment," Bill Rankin and Rhonda Cook, April 12, 2012

When is a police strip search reasonable?

2012-04-11T12:53:50Z

During the last few decades, federal courts had routinely found that subjecting an individual to a strip search, absent suspicion that the individual was concealing something, was a violation of the individual's constitutional rights. But in 2008, federal appeals courts in Atlanta and several other circuits, changed course and said that security risks justified strip searching regardless of the reason why someone was being detained. These cases were the first round of appellate rulings after the attacks of September 11^th.

Now, in a 5 - 4 decision, the U.S. Supreme Court has decided that government officials may perform invasive strip searches for people who are arrested for even very minor offenses. In the dissenting opinion in the case, Justice Breyer argued that the government should at least be required to have a reasonable suspicion that a suspect is actually concealing something before a serious invasion of the suspect's personal privacy in the form of a strip search.

]]> This decision arose from a case in which a the police pulled over a vehicle driven by a pregnant woman, her husband was riding as a passenger and their four-year old son was in the backseat. There was a warrant for arrest out on the husband related to a fine that he had actually already paid. Having been stopped before, the husband even carried a letter that explained that the fine had been paid. But he was arrested, put in handcuffs and taken to jail.

Over the course of the next six days, the husband was kept in custody and strip-searched twice. During that time, he had not received a hearing. When he finally had a hearing before a judge, all charges against him were dismissed.

There are likely times when law enforcement officials have a strong reason to believe that people whom they have arrested may be concealing weapons, drugs, or other contraband on their person. But it is troubling that a person can be stripped naked and forced to expose himself or herself when officials have no reasonable suspicion that the arrested person is concealing anything.

Source: Atlanta Journal Constitution, "Supreme Court OKs routine jailhouse strip searches," Mark Sherman, April 2, 2012

Georgia advances legislation to limit public arrest records

2012-04-05T20:07:28Z

After being accused of a crime and then being cleared of wrongdoing, you would hope that the justice system would protect you against any negative consequences of that investigation.

Record expungement and record sealing are possibilities after a conviction, but what if your case was dismissed, and your name was cleared all together? What if the initial investigation and accusation was an error or mistake?

A Georgia woman who was accused of child abuse 13 years ago has suffered from the stigma of a criminal allegation, even after police cleared her of any wrongdoing. When officials realized that the welts and bruises on her daughter's body were actually just an allergic reaction to antibiotics, the charges were dropped.

]]> Despite her innocence, the investigation has showed up on her background checks. This stigma and exposure of a criminal investigation restricted her access to jobs and housing, and even resulted in limited access to her daughter's school. She was required to call ahead and inform the school of her arrival and get special clearance to attend school activities.

Finally, last year, her attorney was able to remove the investigation from public criminal records.

Our "innocent until proven guilty" standard in the U.S. criminal justice system may be irrelevant for individuals whose arrest record has implicated them, even after a dismissal of charges. Arrest records can still be made available to the public, including employers, which sounds more like, "guilty after proven innocent," especially when those records impact your rights.

Now, Georgia lawmakers are seeking to advance legislation to protect others who suffer similar injustices because of their arrest records. Advocates for the law understand that many individuals face this problem because district attorneys decide whether to restrict arrest records, even if there was no conviction. The new legislation would restrict law enforcement from disclosing records of dismissed charges to employers and other non-police entities.

Last week, the Georgia Senate unanimously passed a version of this legislation, but it is unclear whether it must return to the House for final approval. The new law would take effect in July 2013.

Source: Fox DFW, "Guilty after proven innocent? Georgia pols fight law opening criminal records even without crime," March 28, 2012.

Georgia has 100 year history of self-defense law

2012-04-03T20:46:48Z

The increased pressure on the prosecutors, an FBI investigation, and the national media focus on the Trayvon Martin case stem from public outrage after a teenager lost his life to a shooter who claimed self-defense. In addition to the accusations that the crime was racially motivated, the divisive case also call into question expanded self-defense or "Stand Your Ground" laws in twenty-five states, including Georgia.

These criminal defense laws are rooted in the common law "castle doctrine," giving an individual the right to use self-defense if threatened on his or her own property. The conflict in this case and in the legislation, focuses on the right the law gives defendants to use deadly force, even when they alleged attacker is not on their property or in pursuit. Earlier versions of the law require that the shooter retreat first, then use force.

]]> In Georgia, it is legal to "stand your ground" with deadly force when faced with a threat of death or serious injury. In 1898, the Supreme Court wrote that there is "no requirement that a victim of an attack first try to escape before using deadly force to stop an aggressor."

The big question: are the laws simply a "license to kill?"

Essentially, the laws provide a legal defense to prosecution if you kill in self-defense. In the Trayvon Martin case, the shooter was a self-described neighborhood watch captain who claimed that he was justified in shooting the teenager. According to other reports, the shooter was actually the aggressor and it is unlikely that he was using deadly force in self-defense.

Proponents of the stand your ground law include prosecutors, defense attorneys and gun rights advocates who believe that the use of deadly force should be legal under certain circumstances. However, opponents believe that this "shoot first ask questions later" type of law can lead to uncontrolled gunfire and tragedy.

While many of these laws are under scrutiny, it is unclear how the Trayvon Martin case will impact the future of self-defense legislation and whether new language may limit the scope of their application.

The Atlanta Journal-Constitution, "Stand your ground law' in effect in Georgia more than 100 years," Rhonda Cook, March 31, 2012.

Police departments relying on seized assets for their budgets

2012-03-30T20:25:40Z

The role of police departments is to protect public safety and enforce the criminal laws of Georgia. When police are provided with incentives to make arrests and facilitate convictions, it can create a situation in which their judgment is improperly influenced. More and more frequently however, Georgia police departments are relying on vehicles, weapons and cash that they seize from criminal suspects for regular operation of their departments.

It is not implausible that a police officer knowing his department needs a new patrol car, might more easily determine that there is probable cause to pull over and search a vehicle if that vehicle might be seized for use by the police department.

]]> Over the last few years, the value of the property and money forfeited in Georgia has been growing steadily, adding up to almost $56 million dollars last year. Of that amount, Georgia law enforcement agencies received almost $30 million.

In this time when state and local budgets are squeezed, it is likely that additional assets for a law enforcement agency are being put towards maintain staffing levels and ensuring annual wage increases. This creates a very real potential for law enforcement personnel to feel motivated to make arrests based on factors other than whether they reasonably believe someone is breaking a law.

Many salespeople work on commission. The majority of their salary is dependent on making the sale. For these salespeople, every person looks like a customer. If our police departments are operating under a similar principle, isn't it likely that every citizen looks like a criminal?

Source: The Republic, "Georgia police upgrading cars and gear with increasingly lucrative seizures of cash, property," March 28, 2012