Presidential Pardons, Denials, and Transparency

An interesting appeal is presently pending in federal court in Washington, D.C. According to the Daily Report, the appeal involves a petition by a retired Washington Post reporter who is seeking information via a FOIA (Freedom of Information Act) request to the Department of Justice concerning cases in which pardon requests have been denied in the past. The reporter won in the district court, but, inexplicably, the Justice Department is now appealing the decision.

The Department of Justice has a process whereby convicted federal felons can apply for a presidential pardon through DOJ's Office of the Pardon Attorney. The retired reporter is apparently writing a book about the history of the clemency process. As you will recall, in the past, various Presidents have gotten into hot water for granting some controversial pardons or clemency petitions shortly before they have left office. For example, you will recall that, during his confirmation hearings, current Attorney General Eric Holder was forced to back-peddle and explain his support of a last-minute pardon granted by President Bill Clinton of fugitive financier Marc Rich.

Current DOJ policy provides that pardons which are granted are revealed, but pardon denials are not. Again, the Obama/Holder Department of Justice is fighting the reporter's request to reveal the additional information about the pardon denials. "Pardon me," but why is DOJ fighting this? I don't know and I don't agree. So much for transparency.

It will be interesting to see what happens in this appeal.

The Sarah Ferguson Fiasco

Have you seen the "sting" video of Sarah Ferguson in which she demands/accepts money from an undercover reporter, ostensibly in exchange for access to Ferguson's ex-husband, the Duke of York? What do you think about this situation?

I have no idea whether or not she has broken, or even come close to breaking, any criminal law. As far as I am concerned, she is presumed innocent of any crime. And anyway, that is not the point of this post. Instead, here are some of my observations:

One point is that this situation illustrates that desperate people will sometimes take desperate action to alleviate their problems. And clearly, the Duchess of York appears to be in a desperate financial situation. In my opinion, this case also illustrates the point that, often, in life, it's not what you know, but who you know!

Also, this case illustrates that extortion, fraud, bribery, kickbacks, and pay-offs like this happen all the time, except that the folks doing it rarely get caught! Finally, this case illustrates that, if you are an average citizen, you will likely get nailed to the wall for your transgressions, but if you are the Duchess of York, you may be home free. We shall see!

I hope she gets help for her problems. What do you think?

Special Challenges in Major White Collar Crime Prosecutions

I want to start a new periodic series in this blog about what it is like to be a federal prosecutor and how, as a former AUSA, I "put together" some of my major prosecutions. Trust me, a lot of planning and hard work goes into many federal criminal investigations. I also want to discuss some of the special challenges I faced, as an AUSA, in prosecuting high profile criminal cases.

As a former federal prosecutor in Augusta, Georgia, I was very lucky to be in the right place at the right times to try some of the largest federal fraud and public corruption cases in Georgia (and United States) history! For example, I tried the largest home healthcare Medicare fraud case and the largest vote-buying case in American history. But big cases often bring big challenges. For example, consider the following:

1. No Precedents to Guide You:
Being a federal prosecutor sometimes feels like being a Star Fleet Commander in Star Trek. Simply put, you confront new problems and new worlds never seen before! Put another way, for some of my major fraud investigations, there were no precedents to guide me. Now, don't get me wrong. The U.S. Department of Justice provides excellent resources and unparalleled training opportunities for federal prosecutors. But my point is that, in some of my major criminal cases, there were no prior criminal cases, or precedents, just like mine, and I was pretty much on my own to face them.

For example, I once prosecuted a major home health care fraud case in which the home healthcare agency owner was accused, among many other allegations, of falsely billing the Medicare and Medicaid programs for tens of thousands of dollars for a luxury Georgia Dome stadium suite, liquor, and parties. I had to determine whether or not this constituted Medicare fraud, i.e. a criminal matter, or whether it was simply a civil matter. In that case, I decided to include some of the allegations, (e.g. billing Medicare and Medicaid for tens of thousands in liquor billings), in my indictment, even though I could find no clear precedent. Fortunately, I prevailed later at trial! I could give you countless other examples.

The point is that, because there were no precedents, as a result, I often had no prosecution models, or sample indictments, to guide me. Instead, I had to do my own research, lead my own task force of agents and auditors where I wanted to go, and draft my own indictments. In other words, as a federal prosecutor, you sometimes must first research and determine whether or not the target's activities are criminal before you can really begin to prove it occurred.

But frankly, I enjoyed this special challenge of federal prosecution. I had a unique opportunity, as an AUSA, to "boldly go where no one has gone before!"

Student Fraud: A Growing Problem?

Perhaps you have read about a new criminal case this week involving the Harvard University student who allegedly used fake documents to get into Harvard and to obtain over $45,000 in student financial aid. Of course, he is entitled to a presumption of innocence. But the question remains: Is "student fraud" a new white collar crime and a growing problem?

Frankly, I don't know. In my research, I couldn't find any clear evidence or statistics to answer this question. However, I did find some examples of other criminal cases involving fraud in obtaining student loans. For example, in a recent case in Alabama, two men have been indicted for conspiracy and mail fraud in connection with a scheme to obtain college loans while neither man was in college. Also, I am sure we all are familiar with recent cases in which people have been accused of falsifying their resumes and faking college degrees, in order to get jobs. So, while it might be difficult for a student applicant to accomplish the submission of an inflated SAT score, or letters of recommendation, to a university, I'll bet it wouldn't surprise any of us to learn that this actually occurs.

The point is that, even without statistics, each of these cases demonstrates that university administrators, along with lending institutions and employers, must be even more diligent about the possibility of fraud. Student fraud and student loan fraud are apparently here to stay!

What do you think?

Police Raids on the Wrong Houses: They've Done It Again!

They've done it again! News reports today indicate that federal drug agents and local police executed a search warrant at the wrong home in Polk County, Georgia!

Sadly, the home was occupied -- not by any drug dealers -- but by a totally innocent 76 year old woman, who has now reportedly been hospitalized after possibly suffering a heart attack.

The news reports do not clearly specify how the drug agents royally messed up this time. (And it should be emphasized that not all law enforcement agents are lazy and that they get it right most of the time). Sometimes, when these foul-ups do occur, the investigators have simply been too lazy to independently verify information obtained from snitches, including information about where the bad guys actually live.

As in the last post, based upon current news reports, this case appears to be another example of lazy police work. And sadly, as a result, an innocent 76 year old woman must suffer for it.

Medicare and Medicaid Fraud; Lazy Agents and "Lazy Math"

The United States Attorney's Office for the Northern District of Georgia has recently announced the federal indictment of George and Rhonda Houser, owners of nursing homes in Rome and Brunswick, Georgia. The husband and wife defendants reportedly face various federal criminal charges, including $30 million in alleged Medicare and Medicaid fraud. Of course, an indictment is only a charge and the Housers are presumed innocent, unless and until proven guilty in a court of law. But this post isn't about that particular case, anyway.

Instead, this post is about the bad practices of some, (a few), lazy federal agents. As a former federal prosecutor, (and currently, as an Augusta, Georgia criminal defense lawyer), I have seen that, in some federal criminal cases, government agents will attempt to cut corners in their investigations by finding a few examples of mistakes, or false billings. Then, based upon these few examples of false billings, these agents will unfairly extrapolate, based upon how long the suspects have been in business, and contend that the (potential) fraud must be much larger. In other words, these federal agents are too lazy to fully investigate and ferret out ALL the potential fraud. Instead, they take the easy way out, through guess work, and simply claim the fraud case is bigger than it really is!

Again, no one is claiming this occurred in the Houser investigation. I know absolutely nothing about that case other than what is in the news. But, in my opinion, such extrapolating and "lazy math" have occurred in at least some other federal criminal cases! So, please watch out for those lazy agents and their "lazy math!"

Solicitor General Elena Kagan -- the Next Supreme Court Justice?

According to news reports, President Obama has selected Solicitor General (and former Harvard Law School dean) Elena Kagan to fill Justice John Paul Stevens' seat on the Supreme Court.

Laying aside any discussion about her political views, Ms. Kagan's selection will be interesting in several other respects. For instance, it has been widely reported that she has a good sense of humor! Also, it will be the first time in U.S. history that there have been three women justices serving simultaneously on the Supreme Court. Finally, this will also be the first time in 40 years that a candidate with no prior judicial experience has been selected.

So, whether or not you agree with her political views, for each of these reasons, Ms. Kagan should prove to be an interesting selection!

What do you think?

A Goolsby "War Story:" Jury Selection in South Georgia

They don't teach you everything in law school. For example, law school doesn't prepare you for jury selection in some south Georgia counties. Consider the following "war story" from my early days as a prosecutor.

I was a new Assistant D.A. I had been thrown in the deep end by my boss, the D.A., who had given me the entire caseload of criminal cases to try in Brooks County. I guess he figured it was time for me to sink or swim!

Can you imagine how extremely nervous I was the first morning of jury selection!? I had never picked a jury before and really didn't know what to expect. But I learned something new that morning. I learned that, in Brooks County, you didn't need to know much about jury selection. And the reason centered around Sheriff Wilbur Gilbert.

Here is how it worked. Just before jury selection, Sheriff Gilbert would assume his perch in a chair in front of the judge's bench, facing both the jury box and the prosecution table. Then, after each prospective juror stood and answered a few voir dire questions, I would look at the Sheriff and the Sheriff would respond by either vigorously shaking his head up and down, or left to right. Then, I would follow the Sheriff's lead by simply standing and announcing my acceptance or rejection of the juror.

Incredibly, this "method" of jury selection was "out there" for everyone to see. In other words, Sheriff Gilbert made no effort to hide his gesticulating or head shaking. Pretty soon, each juror began looking at the Sheriff for his decision about their fate before I could even announce mine! But I didn't care! The Sheriff had made my life a little bit easier and helped me get over the nervous heebie-jeebies! And we got the job done!

I learned a lot about trying criminal cases during that trial week. But I also learned that they don't teach you about the South Georgia Gilbert jury selection method in law school!