Oklahoma Criminal Defense Blog

First, it was Barry Bonds.  Next, it is Rogers Clemens, and, after that, maybe Lance Armstrong.  The cost to the federal government so far, including the investigation of BALCO (Bay Area Laboratory Co-Operative), is over $50 million.  Whether it’s worth that brings different responses.   Proponents insist it is worth it for the “integrity of sports” or perhaps for the “integrity of the justice system,” since the government ended up taking Barry Bonds to trial on perjury that had been committed during the investigation.  Similarly, Roger Clemens will be prosecuted for perjury committed in his voluntary giving testimony to Congress.  Opponents insist the $50 million (and counting) could be well used at catching real criminals or otherwise spent by the federal government.

The investigator who has made it all happen is Jeff Novitsky.  He is now employed by the Federal Drug Administration’s Office of Criminal Investigations, but he was an IRS agent when he began the investigation of BALCO and famously searched the dumpster outside its company headquarters in Burlingame, California.  Novitsky has been digging for nine years now.  Until the Barry Bonds trial, Novitsky had succeeded in convicting ten of the eleven charged from the BALCO investigation, including a confession from Olympic sprinter Marion Jones.  Bonds was convicted on one count of perjury, the jury having hung up on three other counts.  There is strong speculation that the trial judge in Bonds’ case will not sentence him to hard time, however.

Novitsky served a subpoena on the laboratory that tested the confidential drug results from Major League Baseball, showing he is willing to squeeze the privacy of anyone whom he perceives as bad guys or anyone at all who can fit into his quest for evidence.  Criminal defense lawyers are well-acquainted with law enforcement heroes who will are willing to “whatever it takes.”   And that is a dangerous attitude to take for those with all the power possessed by federal law enforcement, dangerous to citizens, that it.  Maybe Novitsky is not that dangerous, but you might have a tough time convincing the baseball players as they watch leaks in the press about who failed those “confidential” tests.  Major League Baseball and the player’s union are still fighting to keep these results confidential, notwithstanding those leaks to the press.

Some question the use of the Federal Drug Administration to prosecute the use of steroids by professional sports participants as not even a “danger to the public health.”  Only one U.S. Representative has raised significant questions in hearings before the Congress about Novitsky’s unending investigations, but now Novitsky may get help pursuing Armstrong from other agencies, like the I.R.S., the F.B.I., the D.E.A.  INTERPOL may even get involved.

One angle of investigation the government may take against Lance Armstrong is whether he or his teammates misappropriated money from their team sponsored by the United States Postal Service in 2002 -2004 to purchase performance-enhancing drugs.  That could lead to charges of fraud and illegal importation.  Former Postal Service teammate Floyd Landis has allegedly said the team sold 60 new bicycles to finance the purchase of steroids, and Landis is allegedly in contact with Novitsky.

One area of concern to a criminal defense lawyer is that both Barry Bonds was, and Roger Clemens is, charged with perjury that they could have avoided.  Barry Bonds could have insisted on immunity before testifying to the grand jury before which he was convicted of perjuring himself.  Similarly, Roger Clemens did not have to testify before Congress without immunity.  Surely his criminal defense attorneys told him that.  But Clemens did testify, without a grant of immunity, and he will face trial next month for perjury in that testimony to Congress, in denying he took steroids.

Although the statute of limitations on Armstrong’s activities has or will soon run, all the government needs to do to restart the statute is to issue another subpoena and get a new piece of evidence for a new count.  At least Armstrong has been smart enough not to volunteer to testify.

But now there is a new wrinkle the government is investigating: witness intimidation.  Just this month, the F.B.I. requested surveillance video from a restaurant in Aspen, Colorado.  The bureau wants to know more about a confrontation between Armstrong and his former teammate, Tyler Hamilton.  Hamilton testified last year to a federal grand jury in Los Angeles, and he appeared on a television program telling about a systematic scheme for using dope by the U.S. Postal Service team.

Armstrong has a house in Aspen and is a regular at the Cache Cache restaurant there.   According to Hamilton’s lawyer, Armstrong held out his arm to block Hamilton and began berating him.  It was Hamilton’s lawyer, Chris Manderson, who called the F.B.I. about the incident, quoting Armstrong as saying, “We’re going to destroy you on the witness stand and we’re going to make your life a living hell.”

However, according to the Jodi Larner, co-owner of the restaurant, Armstrong spoke to Hamilton but never left his barstool.   Tony DiLucia, a patron standing next to the two of them, said he could not hear what was said but could tell from the body language that things were not combative.  He said he nothing aggressive.

Larner later on that evening told Hamilton he was not welcome to come back to the restaurant because his group did not tip their server.  The next day she received threatening voicemails because she had stood up for Armstrong the night before.

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.

A total twenty present or former New Orleans police officers have been charged last year with civil rights violations arising out of police misconduct during the aftermath of Hurricane Katrina.  Federal court in New Orleans saw the jury bring verdicts against the first five to go trial last December.  Of those, three were convicted while two were acquitted in the death of a man in September, 2005.  .

Henry Glover was shot to death outside a strip mall.  Charged with manslaughter, former officer David Warren was convicted and Lt. Dwayne Scheuermann was acquitted.  Officer Gregory McRae was convicted of burning Glover’s body in a car.  The jury also convicted Lt. Travis McCabe of writing a false report on the shooting event, while former Lt. Robert Italiano was acquitted of that charge.

Thousands of people were trapped in New Orleans during this chaotic, dangerous time after the flooding of the city.  Bodies rotted in the streets because there was nowhere to take them.  Looting was everywhere.  People were desperate.  All five defendants testified in the trial and described the horrific conditions.

The defendants testified they did not have time to investigate any but the most serious crimes and writing reports was the least important of their duties.  Assistant United States Attorney Tracey Knight, prosecuting the case, urged in opening statement that the conditions prevalent may have made the defendants believe they could get away with their actions because no one was watching.

Several of the officers who testified as government witnesses admitted they had lied to the F.B.I. or the grand jury before they agreed to “cooperate.”   As any criminal defense attorney will tell you, the government makes every case it can from cooperating witnesses.

David Warren was guarding a police substation at a mall when Glover and his friend, Bernard Calloway arrived.  Warren testified that they arrived in what he thought was a stolen truck.  He claimed they ran toward a gate and ignored his commands to stop. He claimed he thought he saw a gun in Glover’s hand and then shot at Glover.

Warren’s partner at the time, officer Linda Howard, testified to the contrary that neither Glover nor Calloway was armed and posed no threat.  Glover’s friend, Calloway, testified that he saw Glover leaning against the truck lighting a cigarette just before he was shot.   And Warren had fired his rifle earlier day, having shot a warning shot at a man on a bicycle because, Warrent testified, the man kept circling and looking up at him on the second-story balcony.

A passing motorist named William Tanner, stopped, picked up and drove the wounded Glover, his brother Edward King, and Calloway to a school.  Tanner and Calloway testified they were ordered out of car at gunpoint, handcuffed and beaten by police while they begged the police to help Glover.

Defendants Scheuermann and McRae beat two of the men according to the testimony of policed Sgt. Sandoz, testifying for the government with a promise of immunity.  Sandoz testified that he lied to the F.B.I. and the grand jury about what happened.

Scheuermann and McRae denied beating the men, of course, but McRae did admit he drove Glover’s car to a levee on the Mississippi River and torched it with Glovers’ body inside.  He said he was just tired of seeing dead bodies rot in the street and didn’t want to add to the corpse count.  McRae said it was his idea alone to burn the body.  Scheuermann testified he was surprised and shocked to see McRae toss a flare into the car.  Lt. Joseph Meisch testified he was nearby and that McRae was laughing after setting the fire.

The government’s theory of the case was that Italiano and Mcabe of trying to cover up the shooting and charged them both with lying to the F.B.I. and of submitting a false, misleading report.  As well, McCabe was charged with perjury in his grand jury testimony.  Sss

Sgt Purnella Simmons who arrived at the mall after the shooting told Italiano that Warren’s partner, officer Linda Howard, did not believe the shooting was justified.  Simmons later lied to the grand jury and adopted a report that covered up the shooting, even though that report contradicted her findings.  But she then returned to testify again to tell the grand jury the truth, she testified.  McCabe testified he helped Simmons interview witnesses and write the report that covered up the shooting, but he blamed Simmons for any omissions in the report.

Italiano signed that report and testified he did nothing to write a false report or cover up the shooting.  He testified he did not even know until years later that the shooting at the mall was connected to Glover’s burned body in the car because Simmons did not give him that information.