Oklahoma Criminal Defense Blog

Rod Blagojevich, former governor of Illinois, has had his two jury trials in federal court for bribery and corruption.  Now federal prosecutors are mopping up with some of the others caught in the investigation of Blagojevich.  Now it’s William Cellini’s turn.

Cellini is a power broker in Illinois state government.  His investment company, Capri,  made $220 million doing business with the state Teacher’s Retirement System.  And that connection is what allegedly brought him into a scheme to extort a campaign contribution to the Blagojevich campaign coffers.  The Blagojevich team knew how important it was for Cellini to maintain his dealings with Teacher’s Retirement System.

Cellini is being prosecuted for delivering a message to someone already given the message, Hollywood producer Thomas Rosenberg.  Rosenberg had an investment deal with the Teacher’s Retirement System until he got a visit from Antoin Rezko and Christopher Kelly.  Rezko and Kelly told Rosenberg his deal was dead unless made a $1.5 million contribution to Blagojevich.
Rosenberg then turned to an old friend whom he figured could enlighten and advise him.  He turned to Cellini.  But Cellini told him the only way to get his deal done was to make the contribution.  The government accuses Cellini of conspiracy in that extortion scheme, but the evidence so far described omits a critical link.  Granted Cellini had a motive to protect his connection with the Teacher’s Retirement, but Cellini did not deliver any bribe, threat, or (arguably) any message.  Rosenberg plainly said on cross examination by Cellin’s criminal defense lawyer that Cellini never asked for the contribution.  What Rosenberg said could have been simply a statement of fact, that Cellini believed, his opinion was that Rosenberg’s deal was finished unless he made the contribution.

But the government plugged that hole with the testimony of an inside witness.  Stuart Levine was charged and pled guilty to being part of this conspiracy.  He testified that Cellini agreed to approach Rosenberg, and that both Levine and Cellini were doing so to protect their influence with the Teacher’s Retirement System.  Certainly Levine’s testimony is suspect because he is cooperating with the government to lessen his sentences, so he has a motive to lie, fudge, create or enhance his testimony to make himself more valuable to the government.  As usual, critical facts in a trial hinge on the credibility of a witness.

Expungements are more and more common these days.  People who have an arrest record or even a record of conviction have the hope these days to eliminate those records from public view.   Those records often haunt people for years in their job searches and can bring troubles to  people socially.  The trend toward allowing more expungements notwithstanding, in the federal system, expungements are very rare.

Even when a person has been acquitted of charges of terrorism, the F.B.I can keep them on their watch list.  Being on this list can keep people from getting to travel on a plane, certainly exclude non-citizens from entering the country, and most certainly of all subject those persons to very, very thorough scrutiny at airports, border crossings, or even a stop for a routine traffic infraction.

The judicial system is only a speed bump for the F.B.I.  If an individual is acquitted or charges are dismissed for a crime related to terrorism, the individual must still meet the reasonable suspicion standard in order to remain on, or be subsequently nominated to, the terrorist watch list,” the once-classified memorandum says.

Just revealed is the FBI’s policy on how what they term “terror suspects” are to be treated.  Normally, if agents close the investigation without charges, they should remove the subject’s name from the list— as they should also normally do in the case of an acquittal. But for exceptions, the F.B.I. maintains a special file for people whose names it is keeping in the database because it has decided they pose a national security risk even they are not the subject of any active investigation.

The F.B.I.’s Terrorist Screening Center shares the data with other federal agencies for screening aircraft passengers, people who are crossing the border and people who apply for visas. The data is also used by local police officers to check names during traffic stops.

An F.B.I. memorandum lays out procedures for police officers to follow when they encounter people who are listed. For example, officers are never to tell the suspects that they might be on the watch list, and the police must immediately call the federal government for instructions.

Some people, those with outstanding warrants, are to be arrested.  That is no surprise.  But others are to be questioned while officers check with the Department of Homeland Security to see whether it will issue a “detainer” request.  Some are to be allowed to proceed without delay.   The F.B.I. procedures encourage agents to renominate suspects for the watch list even if they were already put on it by another agency — meaning multiple agencies would have to be involved in any attempt to later remove that person.

The procedures offer no way for people who are on the watch list to be notified of that fact or given an opportunity to see and challenge the specific allegations against them.  The American Civil Liberties Union, called the watch list system a “Star Chamber” — “a secret determination, that you have no input into, that you are a terrorist. Once that determination is made, it can ripple through your entire life and you have no way to challenge it.”

The F.B.I. said the government could not reveal who was on the list, or why, because that would risk revealing intelligence sources. He also defended the idea of the watch list, saying the government would be blamed if, after a terrorist attack, it turned out the perpetrator had attracted the suspicions of one agency but it had not warned other agencies to scrutinize the person.  The federal government believes there is no such thing as “too much” secrecy when it comes to someone whom some agent somewhere at sometime for some reason tagged a “terror suspect.”

Of course the government explains it all away and says fears of the watch list are exaggerated.  He says there are many other reasons that people are subjected to extra screening at airports.  He also said more than 200,000 people have complained to the Department of Homeland Security about their belief that they were wrongly on the list, but fewer than 1 percent of them were actually on it.   So the government’s secret police lists casts a shadow of fear on Americans by a factor of 100 to 1.   The government trumpets that it is only 1 percent, but fails to see that the fear itself, if the calls amount to fear, is a problem in itself.

Crime declined last year to the lowest rate in 40 years.  The findings reported by the F.B.I. has baffled experts for a number of reasons.  This drop in crime continues declines in previous years, and that continuation of decline also baffles the experts.

The statistics, reported to the F.B.I. from 13,000 local law-enforcement agencies, show that in small towns with populations under 10,000. the number of murders declined more than 25 percent from the year before.  Nationally, violent crimes declined by 5.5 percent from the previous year, and that previous year (2010) had also witnessed about a 5.5 percent decline from the year 2009.  Nationally, murder declined while property crimes, including larceny, burglary, car theft, and arson, dropped only 2.4 percent last year, following a drop of 4.6 percent drop the year before.  Last year in all regions of the country, the odds of being murdered or robbed were not even half what they had been at the statistical apex of reported violent crimes in the 1990s.

New York and San Antonio were the only cities of over a million to witness an increase in violent crimes.  These increased in New York 4.6 percent last year to the total number of violent crimes reported of 48,489.  In New York last year, rapes reported increased 24.5 per cent, murders 8.24 percent with an increase of 65 murders over 2009, which had been the lowest number since the 1960s.  The further historical backdrop for this that 2,245 murders were recorded in New York in 1990, but less than 900 for the last 9 years.

Some of the standard explanations are that, when crime statistics go up, they are explained as the result of better reporting due to more effective police “encouraging victims to come forward, “ and when crime shows a decrease, it’s a result of good police work.   Criminal defense attorneys hear that all the time.

Crime is supposed to increase in times of economic distress and recession, such as we are, in periods of higher unemployment.  The experts are therefore puzzled.  Neither can they explain how crime has dropped another year after the previous declines.

Another popular theory, certainly among the public, is that higher incarceration rates are supposed to lower crime, yet these drops are taking place as the country has been lowering incarceration rates.

The U.S. Supreme Court has issued an opinion that helps defendants at sentencing in federal courts. Since 1984, the sentencing powers of district judges has been limited by the Sentencing Guidelines, thanks to enactment of Congress in the Sentencing Reform Act.

Most significantly, the Court in the decision styled Peppers vs. United States reversed the Court of Appeals, holding that a defendant’s rehabilitation after sentencing may be considered in a subsequent sentencing.  The opinion also reminded Courts of Appeal that the character of the defendant is just as important in adjudging a a sentence as the character of the offense.  That is significant indeed for criminal defense lawyers who have labored so long under the prosecution- helpful Sentencing Guidelines.

Defendant Jason Peppers had pled guilty to possession of over 500 grams of methamphetimine, an offense that carried a mandatory minimum sentence.  However, since Peppers had essentially no criminal history, he qualified for the “Safety Valve” provision for defendants who are in the zero criminal history category.   Moreover, Peppers lent significant cooperation and assistance to the government,  giving the government information about others involved with drugs and guns in the case.    As is usual in such a deal, the government filed a 5K letter with the district court.  As to an appropriate sentence for the court to assess, the government urged a lesser sentence than called for by the sentencing guidelines and specifically urged a 15% downward departure from a sentence calculated from the Sentencing Guidelines.

District Judge Mark Bennett went further, however, departed downward 75% from the Guidelines calculations and sentenced Peppers to a 24-month sentence.  This the government did not like.  The prosecution appealed the sentence to the Eighth Circuit Court of Appeals, which reversed the sentence on the basis of the then-recent Booker decision from the U.S. Supreme Court.  The matter was remanded back to Judge Bennett to render a new sentence.

At the second sentencing hearing, Judge Bennett considered evidence of Peppers’ rehabilitation since the original sentence.  The court heard the testimony of three witnesses.  Peppers himself testified to the significant progress he had made in his life since the original sentencing, a long-time drug addict, he completed one the many excellent federal drug rehabilitation programs while incarcerated and since had enrolled in college while employed part-time.  Peppers’ father testified that he had had no contact at all with his son for the five years before his arrest but since had witnessed a complete change in his son, with whom he had reestablished his relationship.  Finally, Peppers’ probation officer testified to Peppers’ compliance on supervised release, submitted his own sentencing memorandum to the court and even testified that a 24-month sentence was appropriate in this case.  Judge Bennett then issued once again the sentence he originally issued: twenty-four months.

Once again, the government appealed the judge’s sentence to the Court of Appeals, which Court decided Judge Bennett had abused his discretion in rendering this sentence and had in particular impermissibly considered Peppers’ post-sentencing rehabilitation in setting the sentence.  The Court of Appeals then reversed, sent the case back to the district court but took the unusual step of assigning the case to some judge other than Judge Bennett for a third sentencing hearing.

Not surprisingly, the newly-assigned district judge in his resentencing rejected any consideration of Peppers’ post-sentencing rehabilitation and sentenced Peppers to 65 months in custody.  Peppers, by then out of custody, was returned to custody to begin serving his new sentence.  Now it was Peppers’ turn to appeal the sentence.  The Court of Appeals predictably affirmed Peppers’ increased sentence, and Peppers appealed further, this time to the Supreme Court, with a petition for writ for certiorari.

Before the Supreme Court, the government promptly confessed error on the issue of the district court’s ability to use post-sentencing rehabilitation in considering a sentence.  The Supreme Court then appointed an amicus curiae to argue that issue alone in the appeal.  Clearly the Supreme Court wanted to decide this issue.

The Court ruled that it was error for the district court to reject categorically the evidence of petitioner’s post-sentence rehabilitation.  The Court of Appeals had relied on the Sentencing Guidelines in rejecting this evidence because the Sentencing Guidelines directed courts not to consider such evidence.

Justice Sotomayor, author of the majority opinion, criticized this exclusion and pointed to the sentencing statute, U.S. Code, Title 18, Section 3661, which directs consideration of any limitation on relevant information without limitation.

In a concurring opinion, Justice Breyer, long a promoter of the Sentencing Guidelines and even a former Sentencing Commissioner, wrote that the Commission erred in excluding postsentence considerations from the Sentencing Guidelines.  Bryer pointed out that the sentencing statute, Section 3661 of Title 18, prevents any limitation on relevant information a court may consider at sentencing.  Justice Breyer justifies its exclusion as a decision by the Commission that such evidence is not relevant.  He went on to point out the Sentencing Reform Act specifically rejected the practice before 1984 of tailoring a sentence to the individual, instead balancing the need for individual sentences with the need for uniformity in sentences.   That may be where we are headed, to the detriment of uniformity in sentencing, but likely for the benefit of individual defendants at sentencing.

The prosecution of present and former Tulsa police officers inches closer to jury trial.  U.S. District Judge Bruce Black, from New Mexico and sitting in the Northern District of Oklahoma in Tulsa, has ruled the indictment against Tulsa police officers Nick DeBruin, Bruce Bonham and Harold Wells may proceed to trial and overruled pretrial motions by the defense.  Wells is retired from the police department.

The judge has set their trial on May 20.  Set in June is a related indictment against others arising from the same sting, an indictment against Tulsa Police Officers Jeff Henderson and Bill Yelton.
Henderson and Yelton, both are accused of multiple counts, Henderson on 58 counts and Yelton on 7 counts, respectively, including civil rights violations and witness tampering, Henderson’s including attempted bribery and Yelton’s including witness retaliation and suborning of perjury.  Both are still on the police payroll but suspended with pay, and both are held in jail pending trial.  DeBruin was indicted on 6 counts, Bonham on 5 counts, and Wells on 10 counts.  All have been released on bond.  DeBruin and Bonham are still on the Tulsa Police Department payroll while suspended without pay.  Wells is retired from the department.

The case began when a woman named Debra Clayton who had been an informant for Tulsa Police officers.  Heretofore identified in court documents only as “informant No. 2″, Ms. Clayton has now made her own name public.  A drug user claiming to have finally gotten off drugs now, she had been an informant for former officer John Gray and A.T.F. agent Brandon McFadden for some time and got tired of their continuing to pressure her to continue to participate in selling or delivering methamphetamine.  Eventually, she called the F.B.I. and told them what Gray and McFadden were up to.  The F.B.I. then set up a sting operation.  Gray and McFadden have pleaded guilty and are listed as government witnesses in both indictments.

The F.B.I. sting was set up at the Super 8 Motel on East Archer Street in Tulsa.  Video and audio recorders were set up to record the events inside the motel room.  An undercover agent posed as a drug dealer  When he was arrested his cash was seized by the arresting officers.  He had $15,000 in cash, $5,000 of which the police defendants are accused of stealing, for which they are accused of stealing government funds.  Some of the accused noticed government surveillance of the motel room, so they returned cash to the motel room.  However, defendant Bruce Bonham had already taken home the $5,000 cash before the others were alerted.  The remaining police officers accused met at a Conwy Island hot dog stand to discuss their problem and try to get Bonham’s cash back.   They were too late.

The Tenth Circuit Court of Appeals has affirmed U.S. District Court Judge Ronald A. White’s dismissal in September, 2007, of a pitiful lawsuit brought by former Ada District Attorney Bill Peterson against author John Gresham and others.  The lawsuit was filed in the Muskogee in the United States District Court for the Eastern District of Oklahoma by Richardson.  Richardson is certainly a capable lawyer, but the journalists noted that he had called a news conference when he filed the lawsuit and “could not be reached” to comment on the affirmance of the dismissal.

Former Pontotoc County District Attorney Bill Peterson filed the lawsuit over John Gresham’s book, “The Innocent Man,” which described Peterson’s conviction of two innocent men based in reliance upon the testimony of one Glen Gore and the evidence of jailhouse “snitches.”  Dennis Fritz, then a schoolteacher, and his friend, Ronald Williamson, a former minor-league baseball player, were the two convicted in Pontotoc County District Court in 1982.
Fritz received a life sentence and Williamson received the death penalty.  Both men were later exonerated by DNA tests in 1999.  Not only were the accused men proven to be innocent, but the prosecution’s star witness, Glen Gore, was proven by DNA evidence to have been the perpetrator of the murder.  He is now serving a sentence of life without parole, tried for murder after the release of Fritz and Williamson.

Gresham’s book details the faulty police and prosecution work that never investigated Glen Gore, that relied on “confessions” that resulted form questionable interrogation of the suspects as well as the reliance on jailhouse informers, known as “snitches.”   Snitches, as every criminal defense lawyer knows, are motivated by presenting as much damaging evidence as possible against whoever is being prosecuted.  Their situation requires them to help the prosecution as much as possible, and they have a motive to lie, have a motive to create false evidence.  Whether they do create false evidence in a given case is difficult for a jury to judge.  A reader of “The Innocent Man” wondered just how much instigation there was from the police and prosecution to obtain the snitch testimony, but it was clear that the prosecution never hesitated in taking it at face value to help their case.

Joining Bill Peterson as co-plaintiffs were former state criminologist Melvin Hett and former Shawnee police officer Gary Rogers.  Defendants in the case were John Gresham, well-known attorney Barr Scheck, Gresham’s publisher, Doubleday Dell Publishing Group and Robert Mayer, author of “The Dreams of Ada,” a nonfiction book about the 1984 murder in Ada, Oklahoma, and the conviction for that murder of Tommy Ward and Karl Fontenot.  Ward and Fontenoy, who are still in prison, were convicted by jailhouse snitch testimony, similar to that used to convict Fritz and Williamson.

This lawsuit never did not appear to have any legs when it was filed because it was based on a claim of libel brought by public officials. This is First Amendment territory, the “free speech” area that courts have repeatedly ruled should remain hands-off to the courts, and a complaint brought by public officials, who have been held to be less deserving of court protection.  The Tenth Circuit Court opinion pointed to an Oklahoma Statute that provides “criticism upon the official acts of any and all public officers” cannot be considered libelous unless a defendant makes a false allegation that official engaged in criminal behavior.

When the lawsuit was filed, Ron Fritz was quoted as saying, “ The only reason [Peterson’s] filing this is he’s trying to wipe the egg off his face because he convicted two innocent men.”  It certainly looks that way.

So many federal agents were moved to counter-terrorism investigations after the 9/11 attacks that the prosecution of more traditional crimes could not be given much attention.  Carter Stewart, newly-appointed United States Attorney for the Southern District of Ohio is going to change that.

Stewart’s district includes Cincinnati, Columbus, Dayton and all of southern Ohio.  “I would like to have more resources go back to our bread-and-butter cases,” Stewart said.  By “bread-and-butter,” Stewart referred to his priorities: financial crime, mortgage fraud, public corruption, environmental crime and the exploitation of children.  Criminal defense lawyers know those are traditional areas of federal prosecution because local law enforcement usually do not have the expertise or resources to pursue crimes in those areas.

Financial crimes and mortgage frauds obviously require experts in tracking down long, often sophisticated paper trials, sometimes in dealings local law enforcement personnel have never heard of.  Public Corruption focuses on the wrong-doing of state and local politicians, so state and local prosecutors have an obvious conflict, assuming they even want to pursue the wrong-doers in any given case.  Environmental crimes require specific expertises and can cross state lines.  Exploitation of children, most commonly prostitution of children, often requires investigations across state lines as the prostitutes are moved to locations like truck stops in various cities.

In Oklahoma, federal prosecutors have continued to prosecute the crimes they traditionally pursued, in addition to national security/counter-terrorism: more commonly those in the areas of drug distribution conspiracies, violent crimes, public corruption, and white collar crimes, child computer crimes, and gun possession charges on previously-convicted felons.

The headquarters of the F.B.I. for years after 9/11 decreed that counter-terrorism shall dominate all resources.   What was surprising was how much withdrawal there was from other areas of investigation in some districts.  In those years after 9/11, Ohio had several cases of alleged terrorism since 2001, including the case involving three men from Toledo convicted last year of plotting to recruit and train terrorists.  Authorities also prosecuted three loosely-linked terrorists over four years, including Iyman Faris, also known as Mohammad Rauf and sometime F.B.I. double agent, was convicted of helping in a plot to destroy the Brooklyn Bridge at the request of Khalid Sheikh Mohammed, the alleged architect of the 9/11 attacks.

Carter Stewart is following the lead of U.S. Attorney General Eric Holder, who has instructed new U.S. Attorneys to return to basic areas of prosecution.  Stewart’s top priority is still counter-terrorism but he has not decided on this next most important emphasis. But he is taking a close look at financial crimes.  “With today’s economy and the issues that we’re facing, I think that’s a direct result from fraudulent activity,” he said.