Oklahoma Criminal Defense Blog

Raj Rajaratnam is charged in U.S. District Court for the Eastern District of New York with insider trading on the stock market.  A billionaire hedge fund manager, he is facing evidence of 2,400 telephone recordings of his own voice.  The government placed a tap on his telephone in 2008.

Not surprisingly, Rajaratnam’s lawyers are attacking this evidence.  A federal statute, United States Code, Title 18, Section 2516 identifies a list of crimes for which the government is authorized to record telephone conversations.  Securities fraud is not listed, but money laundering and mail fraud are listed, and these crimes are commonly charged along with securities fraud.

The government had to file an application for a judge to issue an order allowing the wire tap.  In that application, the government recited it needed the wire tap order because it was investigating violations of wire fraud and money laundering.  But the charges filed did not include those charges, so Rajaratnam’s attorneys  are attacking the application as disengenuous, as intended to find only evidence of securities fraud, which is not a valid basis for a wiretap order.  But the U.S. Attorney did specifically give notice it was seeking the wiretap for insider trading as the principal crime it was investigating.  If the defendant’s lawyers can prove the wiretap order would not have been granted if the whole truth were not told, the order could be invalidated and the recorded conversations suppressed.

It is true that the Wiretap Act does not mention securities fraud, but it is not certain that Congress intended to exclude wiretaps from the investigation of securities fraud.  Inferring the omission of something in a legislative enactment to be an affirmative declaration calls for an interpretation.  It is a rule of statutory construction in latin and therefore incontestible:  “Expressio unius est exclusio alterius,” which in English can be translated, “The expression of one thing implies the exclusion of what is not expressed.”
Ck spelling of latin phrase

Another avenue of attack on the application is focusing on the cooperating witness quoted in the application.  The F.B.I. agent’s affidavit quotes a woman named Roomy Khan extensively.  Rajaratnam’s lawyers claim the affidavit does not give a clear picture of her criminal past, the character of her conversations with the defendant, or the changing versions of her recitals.

The application described Ms. Khan as not having been charged with any other crime and had been cooperating with the government since 2007.   But the defendant’s lawyers claim she was charged with wire fraud in 2001 and agreed to cooperate with the government at that time.  Of course, the government will reply they were referring only to the present investigation.

The defendant also attacks what the wiretap application’s affidavit describes as Rajaratnam’s statements to Ms. Khan as conveying insider information, when if fact the information was based on publicly available information.

The final avenue of attack on the government’s affidavit is the constancy of Ms. Khan’s statements.  These are presented in the government’s affidavit as being straightforward.  But the defendant’s lawyers received, as they routinely do in discovery, copies of the F.B.I. interviews, known as 302’s.  These interviews viewed over time show changing stories from Mr. Khan, and government investigators were aware of this when they presented the affidavit for the wiretap to the judge.  But the affidavit softens the changing versions.  It omits any reference to her obstruction of the investigation although, by her initial concealing of facts, this is arguably what she did.  Instead, the affidavit describes her as having been proven to be reliable.

Wiretaps are granted only after other investigative methods have been tried unsuccessfully or would be unsuccessful if tried.  The affidavit does not detail other investigative methods but states that other investigative attempts have failed.  In fact, Rajaratnam and his hedge fund, Galleon Group, were responding to a series of discovery demands, subpoenas and inquiries, and Rajaratnam’s lawyers claim they were cooperating with the government.  Obviously, the government did not agree, else the government would not have sought the wiretap.  The government was on the trail of unusual transactions, and it wasn’t getting the explanations with the methods they had tried.

One of the ghosts of Hurricane Katrina has surfaced – again.  A fifth former police officer has been charged in federal court for covering up the killings of unarmed civilians in the days after Hurricane Katrina.  Ignatius Hills was charged in New Orleans federal court with obstructing justice and misprison of a felony.  Hills resigned from the police force less than a week ago, obviously in anticipation of this filing.

A week after Hurricane Katrina, police were called to the Danziger Bridge on a report that shots had been filed.  Lance Madison, a 40-year-old mentally disabled man, and James Brissette, who was 17, were both shot to death by the police.  Police arrested Madison’s older brother, Ronald, on eight counts of attempted murder of a police officer.  All those charges were later dropped, obviously charges trumped-up by the police to cover their wrongdoing.

Four other former police officers and one civilian have pled guilty to covering up the shootings.  They all plead guilty to plea agreements.  Hills has been charged by Information rather than Indictment, indicating he is going to plead guilty with a plea agreement.  The reason this is indicated by the filing of an Information is that a person has a right under the fifth amendment to the constitution to be charged only by indictment by a grand jury.  The government would not bother to file the Information unless Hills’ attorney, Robert Jenkins, had agreed to plead to it.   Hills is facing a maximum sentence of eight years.

The government Information claims Hills and others shot at unarmed people and then covered up to make the shootings appear justified.  Hills allegedly wrote a police report which accused Lance Madison of eight counts of attempted murder, even though Hills had no firsthand knowledge of wrongdoing by Madison.  The Information claims another officer dictated the report to Hills, who signed it, even though Hills believed Madison was being framed.

Hills is accused of getting together with other officers to develop false stories about the incident.  Those get-togethers included one particular secret meeting in January, 2006.  The government also accuses Hills him of giving false testimony when he testified to a state grand jury in October, 2006.

In Massachusetts, the state probation officer estimates that about a quarter of all restraining orders are violated.  Tracking is designed to follow those against whom judges have issued restraining orders.  Judges order them to Global Positioning System monitoring devices to be sure where they go does not violate their restraining order.
Twelve other states have passed legislation like that in Massachusetts, and about 5,000 domestic abusers and alleged abusers are now being tracked by G.P.S.  nationwide, according to Colorado’s Electronic Monitoring Resource Center, which gathers data from equipment vendors.

The G.P.S. monitor can be used after sentencing, as an alternative to jail, or before conviction, as a condition of bail.  The U.S. Marshals commonly use a monitor for both, since federal authorities always have more money available.

Those who seek restraining orders to protect themselves from stalking often have trouble proving they have stalked.  But if their alleged stalker is wearing a monitor, the monitor can make the case for them by laying a trail of their whereabouts.  The U.S. Department of Justice reports that 3.4 million in the country have stalked in one-year period of time.

Experts claim using the G.P.S. monitors can save lives.  The Jeanne Geiger Crisis Center in Newburyport, MA, has assisted seven other cities follow the model of the Greater Newburyport High Risk Response Team, which trains probation officers, police officers, and district attorneys to decide which domestic violence cases merit electronic monitoring.  The Center trained over 1,000 officers, advocates and prosecutors in 2008, looking at danger signs in the behavior of abusers or alleged abusers.

One approach to G.P.S. monitors views them as devices that can make the criminal justice system capable of detecting escalation in the behavior of potentially very dangerous batterers, of giving the capability of preventing serious injuries.  Some research suggests that one quarter of the women who were killed by a domestic abuser already had obtained restraining orders.

In Massachusetts, about 100 people accused of domestic abuse are monitored by a G.P.S. device.  They pay $8.00 a day for an ankle bracelet, a cell phone type device that is worn on the belt, and a home charger.  Three control centers watch their movements, and they will notify the police if a monitored person goes beyond a certain zone.

But G.P.S. devices are not a guarantee.  The wearer can remove the device and take the consequences, which will follow eventually.  It’s just a question of when those consequences occur and what takes place before those consequences kick in.

Texas’ plan to hire hundreds of child abuse investigators with law enforcement backgrounds did not work out. The idea was to improve the investigative power of Child Protective Services with caseworkers who had better investigative techniques. After four years of trying, hundreds of the “special investigators”have quit the agency.

One-third of the positions are now vacant. Two hundred seventy three of the 431 investigators hired in the last 4 years have left. Those who have left have claimed the agency was ineffective. They claimed the job description was confused

Last year, three children from the Houston area died after they had been reported as possible abuse victims.  A child from Arlington died from being left in a hot car as the agency was contacting the family repeatedly.  The mother had a history of abuse and neglect, but no action had been taken to protect the child.

Spokesman Patrick Crimmins said the agency knew there would be difficulties assimilating law enforcement types into the agency. He admitted there had been friction but said the special investigators make the agency stronger. Some of those who have left claimed there was a major culture clash between the older, law enforcement types and the usually-younger, less experienced agency caseworkers.

One of those who left was Thomas Davidson, is a 40-year veteran of law enforcement.  He was a special investigator for 2 months with the agency in 2007.  “It just wasn’t the job I was led to believe,” he said. “It’s more of a caseworker than an investigator…”

The agency obviously envisioned making their caseworkers into better investigators, so they hired people with investigator backgrounds.  But those with investigator backgrounds were former police detectives whose former jobs gave them much more free rein.  “Book ‘em, Danno,” was not part of the Child Protective Services culture.

Bernard Kerik was on top of the world.  He had served gloriously as police commissioner of New York City for Mayor Rudolph Giuliani.  Bernie was famous in his own right, often on television screens, sporting his trademark mustache and shaved head.  He was sent by President George Bush to reorganize the police force in Iraq.  Finally, he was nominated to head the Department of Homeland Security.   After that, things went downhill.

Kerik was indicted in federal court with corruption for allegedly accepting unreported gifts of construction work on his home.   Kerik failed to report as income more than $200,000 in rent paid on his behalf to use a luxury apartment where he lived with his family when he left his city post, paid for by Steve Witkoff, a commercial real estate developer. Also, a construction company with alleged mob ties paid for the $165,000 in renovations on Kerik’s home in Riverdale, the Bronx, apparently in hopes of obtaining a city license. In 2006, Kerik plead guilty in the Bronx to state misdemeanor charges stemming from those renovations.

In 2004, after nomination by Rudy Giuliani, President George W. Bush nominated Kerik to head the Department of Homeland Security.  Seven days later, Kerik withdrew his name from consideration.  Then fell the avalanche of questions about Kerik.

Had Kerik inappropriately lobbied New York City on behalf of Interstate Industrial, a construction company with alleged links to organized crime?  At first, Giuliani denied he knew about Kerik’s ties to Interstate Industrial when he appointed Kerik as police commissioner. Then in 2006, Guiliani acknowledged that city investigations commissioner, Edward Kuriansky, said Kuriansky has stated he told Giuliani in at least one briefing about Kerik’s problems, but Giuliani said he did not remember any such briefing.

Kuriansky’s diaries confirm that one of those briefings did take place.  Additionally, Kuriansky stated, based on his recollections and his diaries, he also briefed Dennison Young, Jr., one of Mayor Giuliani’s closest aides, about Kerik’s ties to the construction company only days before Mayor Giuliani appointed Kerik police commissioner.  Giuliani is well-known for the premium he places on loyalty and his own loyalty to others.  Giuliani Partners, his consulting firm did employ Kerik and continues to employ Alan Placa, a high school friend, in spite of allegations he molested young men years ago.

By the time Giuliani recommended Kerik for the Homeland Security job, his administration knew Kerik had acted on behalf of Interstate Industrial and knew about other criticisms of Kerik, including sending detectives to look for his lover’s cell phone and using police officers to research his autobiography.

In 2000, more than half the mayor’s cabinet opposed Bernie Kerik’s appointment to police commissioner.  They had concerns that included the fact that Kerik did not have a college degree, a police department requirement at the time for captains and above.

Giuliani met Kerik in 1990 at a fund raiser in New Jersey honoring a slain new York City police officer. Kerik was a decorated undercover detective with a ponytail and earrings, big biceps. Kerik cultivated political connections, such as the sheriff of Passaic County, N.J., who had made Kerik five years earlier the youngest jail chief in the county’s history.   When Giuliani ran for mayor in 1993, Kerik organized Giuliani’s security detail of off-duty officers to reserve the weekend shift for Kerik himself.

A year after Giuliani became mayor, he appointed Kerik first deputy correction commissioner to include supervision of Riker’s Island.   One year after that, Kerik was appointed  correction commissioner, where he showed up for spot inspections at 2:00 a.m.  When violence in the jails dropped, public praise climbed.  Now reported are some of his questionable activities then, such as his dating a woman who was a correction officer and his getting close to the department’s inspector general, whose responsibilities required him to avoid such closeness with other city personnel.  Later, one of his top deputies was convicted of taking $142,000 from a Correction Department that Kerik headed.  Another deputy was convicted of forcing staff members to do political campaign work and dispatching officers to renovate his home.

Lawrence Ray was a friend of Kerik and served as best man at Kerik’s wedding.  Ray even paid for much of the wedding, and Kerik in turn recommended Ray for a $100,000 job at Interstate Industrials, a New Jersey construction company with tens of million dollars in contracts with New York City.

Interstate Industrials hoped that Lawrence Ray could change relations with the City because, two years before, city investigators had found the company employed mob figures and denied the company an operating license. After hiring Ray, Interstate hired Kerik’s brother, and from then on, the then-correction commissioner began lobbying unofficially for Interstate. Kerik defended Interstate to the chief of enforcement for the city commission, a cousin of Giuliani who was reviewing Interstate’s license application.  Kerik telephoned an assistant commissioner at the Department of Investigation to say Interstate’s owners were clean of mob ties, so far as he knew.  He even had city detectives who were investigating Interstate meet Lawrence Ray in Kerik’s own city office, sending a strong signal to the detectives.  But the lobbying stopped in March, 2000, when Lawrence Ray and Edward Garafola, a mob soldier associated with Interstate, were indicted on a federal stock scheme not related to Interstate’s business.  New York City suspended Interstate’s $85 million in city contracts.

Three weeks later, Bernie Kerik interviewed for two hours with the Department of Investigation and talked about his relationship with Lawrence Ray, Interstate and its owners and his brother.  However, Kerik never mentioned that Interstate was paying for $165,000 worth of renovations on his new apartment in the Bronx.

That is when the police commissioner job came open.  Bernie Kerik was one of the candidates with his eight years experience as a police officer.  Edward Kuriansky, the city investigations commissioner, was assigned to oversee background investigations of Kerik and the other candidate, Joseph Dunne.    Kuriansky’s agency was supposed to be semi-independent, but Kerik had coopted it to some extent, appointing friends like Kuriansky to the commission and having them attend his morning meetings.  Kuriansky was a former prosecutor, and he knew Kerik had intervened on behalf of the company suspected of mob ties and that Kerik’s best friend and brother worked for that company.  Kuriansky, however, did not know Interstate was renovating Kerik’s apartment.

Giuliani selected Kurik as his police commissioner, and he served in that capacity for 16 months.  Crime fell, and Kerik enjoyed not only public approval during his tenure but celebrity.   Bernie Kerik adopted the persona of a steady figure after the World Trade Center attack on 911.  He continued to receive good press.  Three years later, after he had withdrawn his nomination as head of Homeland Security, it came to light that Kerik had used an apartment dedicated for weary rescue workers at ground zero for an extramarital affair with his book publisher, Judith Regan.

After Kerik’s three months in Iraq, he spoke at the Republican National Convention. But his candidacy to head Homeland Security lasted only a week.  He withdrew himself, saying he discovered his nanny was in the country illegally and he had not paid taxes on her.

Kerik couldn’t even stay out of trouble after he was indicted in federal court.  U.S. District Judge Stephen Robinson revoked Kerik’s bail when the judge found Bernie had, in apparent hopes of generating sympathy in his trial, leaked information the judge had ordered sealed.  Kerik ultimately pled guilty to eight counts in hopes of receiving a  two or three years sentence, as indicated by the Sentencing Guidelines and the expectations of the prosecutors.      Whoops. The judge gave him four years and said Kerik had violated the public trust immeasurably.   While waiting for his sentencing, Kerik complained that he had not heard from Rudy Giuliani.  Small wonder why.  The wonder is that he overlooked Kerik’s fleas so long.

A former A.T.F. agent is in jail, awaiting prosecution for a fabricated drug buy.  Brandon McFadden was an agent for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives for seven years before resigning last year.  He was arrested by the F.B.I. and is now in the Tulsa County Jail awaiting prosecution in U.S. District Court there.  McFadden pled guilty soon after he was arrested to participating in a drug conspiracy.

McFadden is alleged to have coached a drug informant and fabricated a drug buy on May 8, 2007.   Not charged but implicated along with McFadden in the crime is Jeff Henderson, a Tulsa Police Officer.  Upon pleading guilty, McFadden named Henderson as a co-conspirator in the drug conspiracy, saying he and Henderson stole drugs and money and set up drug dealers to sell drugs on their behalf.

The drug buy with the coached informant led to the conviction of Larita Annette Barnes and Larry Wayne Barnes of federal drug charges.  They were both released from federal prison last July because the informant, Ryan Logsdon, said he lied about the drug buy.   Larry Barnes had served about a year on a 5 ½ year sentence.  Larita Barnes had served about a year on two concurrent 10-year sentences.

Jeff Henderson was put on paid leave from the Tulsa Police Department in April after the local newspaper published the report about the Barnes’s being released from prison.  He should be getting ready for prison because McFadden will do whatever he can to help the U.S. Attorney to convict him.

Tulsa County District Attorney Tim Harris has ordered a review of the cases in which Henderson had been involved, which could number more than 100.   Harris announced in court that he could not release any information because there is an ongoing grand jury investigating matters, but Harris’s office acknowledged that it was contacted by Jane W. Duke, special prosecutor assigned to investigate corruption in law enforcement in Tulsa.  She is U.S. Attorney for the Eastern District of Arkansas.

This sort of thing does not come as a surprise to criminal defense lawyers.  Some people, however, believe uncritically in “law enforcement,” they will alibi without reason for these false-swearers.   Some people will continue to believe such “law reenforcement” types are the good guys, in spite of clear evidence they are the bad guys, law-breakers, perjurors, those who bear false witness and wrongfully put people in prison.  There are those who believe that just because someone wears a uniform, that someone can do no wrong.  That is a dangerous attitude, that someone can commit no wrong.  It is not the principle that drives our American system of justice, and that is why McFadden is being prosecuted.

Veteran’s Court was created to help people.  Veterans Treatment Court in Tulsa treats veterans who would otherwise face criminal charges in a different courtroom in the Tulsa Count District Court.  It is one of four in the country   It is being considered as a model by the National Drug Court Institute.

Representatives from five states have come to observe Tulsa County Special District Court Judge Sarah Day Smith conduct proceedings.  The participants report to the judge on their progress through the five phases of the program.

Veterans of wars in Vietnam, Iraq, Afghanistan appear.  They carry the psychic wounds of their service.  It usually manifests itself to the courts as drug problems, but those are only part of the problems in the lives of the veterans.  Some of them homeless, unable to hold a job, they need help instead of prosecution.  Of the homeless in Tulsa, 20% are veterans.  Many have been to drug treatment center after center.

They tell their story in open court.  Just as in drug court or in AA, they share their lives and their success in the treatment program.  The others in attendance share their feelings of accomplishment, their hopes for the future, since they will address the court in turn.  There are 48 participants now in the court, and they each have up to 12 months to complete the program.

District Judge Tom Thornbrugh and District Attorney Tim Harris have pledged their support of the program.  The District Attorney acknowledged that the veterans need to be looked at differently once they come into the criminal justice system.

Judge Day instigated the Tulsa veterans court in 2008 after she had seen one in Buffalo, New York.  She was convinced it worked.  Veterans commonly suffer from post-traumatic syndrome and traumatic brain injuries related to their military service.  No matter how desperate, they rarely ask for help.

As in drug court, familiar to criminal defense lawyers, the participants had to plead guilty to the criminal charges they were facing in order to enter into the Veterans Court process.  If they violate the terms of their probation, they face the maximum sentence of the charge to which they pled guilty.   Only two have dropped out and went to prison.  But veterans organizations and the U.S. Department of Veterans Affairs help out with services.   Only about 10% of the participants in the program had applied for the veterans benefits before entering Veterans Court.