TENNESSEE STATE SENATOR CHARGED WITH THEFT OF GOVERNMENT FUNDS

According to various news reports, earlier this week, Tennessee State Senator Katrina Robinson was indicted by a federal grand jury for allegedly embezzling $600,000 in federal funds from a healthcare institute she operated.  According to a criminal complaint filed by a Memphis U.S. Attorney, Ms. Robinson improperly spent federal funds on numerous personal things, including a wedding, a divorce, and a vacation.

As a former federal prosecutor in Augusta, Georgia, I once handled many prosecutions like this one involving embezzlement of government funds.  One oddity I would note about this case is that, generally, when I prosecuted, I didn't first obtain a complaint and then indict.  I simply obtained an indictment.  In this case, it appears the prosecutor filed a complaint first, and then obtained an indictment.  Was this done in order to get juicy details about the facts of the case out into the public arena?  Maybe not.

Of course, every defendant is presumed innocent unless and until proven guilty beyond a reasonable doubt.

 

A Goolsby "War Story:" The Case of the Mysterious Purse

Have you ever been in a situation in which you sensed danger and realized you needed to think fast in order to escape it? Consider the following fact-based "war story" from my days as a federal prosecutor.

I will never forget how tired I felt that afternoon. I was an Assistant U.S. Attorney in Augusta, Georgia. Several months earlier, I had fought for the opportunity to handle the prosecution of a major healthcare fraud case. This was a major white collar criminal case --a career-making case -- which had made the news headlines nearly every day. Ever since my assignment, I had been working hard, seven days a week.

On this particular afternoon, I was sitting at my desk and reviewing some boring F.B.I. 302s, (investigative reports of witness interviews). The U.S. Attorney's Office receptionist buzzed and told me that a lady, a Ms. Johnson, was up front, waiting in the reception area. The receptionist didn't know exactly who this visitor was or why she was there to see me.

When I opened the door which divided the inner offices from the reception area, I immediately saw a middle aged woman who was neatly dressed. I still had no idea who she was. I also quickly noticed that she seemed emotionally distraught and that, oddly, she had one of her hands inside her purse.

I introduced myself to her and asked if I could help her. She proceeded to tell me that her name was Irene Johnson. She added that she was the wife of Jim Johnson. I also noticed that she continued to fumble with her purse -- nervously opening and closing it as she talked.

Immediately, I realized who she was. I had learned from my case agent that her husband had just been fired by the big healthcare company which was the target of my federal grand jury investigation. According to the local newspaper, Mr. Johnson, her husband, had confronted his boss about alleged wrongdoing at the company. As a result, the boss had just given her husband the ax. 

Even though I was not the guilty party who had fired her husband, I soon realized that this lady, as she continued to ramble and vent her anger, somehow blamed me, and our federal investigation, for their predicament.

And again, I watched as she kept fumbling with her purse, and kept putting one hand in it, as she continued to ramble on and on about how I didn't realize the damage I had caused her family.

Then, I started getting a little nervous. I was unsure what to do. Now, this woman was getting all worked up and chewing me out! And I had an errie feeling, and a sense of danger, but, still, I couldn't be sure about what I faced. Naturally, I couldn't see what was in her purse, but, just as naturally, I feared she had a pistol in it. To this day, I truly believe that she had a gun and that she was undecided about whether or not to use it. Maybe, I believe, she simply wanted to speak her peace before she took her revenge against me.

I quickly considered my options. I calculated that it would be difficult for me to attempt to tackle her, from across the room, before she snatched out her gun and shot me. But still, that seemed like one good option. However, on the other hand, I still just couldn't be sure she even had a weapon. I certainly didn't want to face the embarrassing prospect of taking down an innocent person who was simply reaching in her purse for a tissue! How would that look in the local newspaper? Nevertheless, I knew I needed to do something quick. I was in a situation in which I sensed that I needed to think and act fast, or possibly face dire consequences!

So, rather than tackling her, I decided to try a different approach. I chose to put on my best preacher's son's hat. In short, I elected to try to talk with her and show her some compassion. I proceeded to let her know how sorry I was about her predicament and, then, I told her that I would pray for her and her family.

That's what did it. That's what worked! I believe that when she saw that I was not a cold government prosecutor, but simply a nice young man doing his job, it melted her resolve to do what, (if anything), she might have been contemplating. But I don't want to overstate things. I didn't completely disarm her with my charm! Ms. Johnson did not smile at me, nor did she offer any apology. She seemed confused. Without a parting word, but after hearing I would pray for her, the flummoxed Ms. Johnson simply closed her purse, turned, and left.

Did she really have a gun? Did she really intend me harm? I will never know for sure. But I do know that, sometimes, when you sense danger, you had better think and act fast in order to escape!

And yes, I did pray for her. But you'd better believe that I never again entered the reception area of the U.S. Attorney's Office without first knowing who was waiting there and exactly what they were toting!  

The Federal Grand Jury, Julian Assange, and Leaks about the Leaker

Yesterday, a criminal lawyer for WikiLeaks founder, Julian Assange, announced to the news media that he had heard that his client is currently being investigated by a federal grand jury in Virginia.  Who or what is the source of this information about the grand jury and Mr. Assange?  In other words, who could be leaking about the leaker!?

As a former federal prosecutor, I can attest to the fact that government entities, (including federal agents and prosecutors), are generally very careful about avoiding leaks to the news media, particularly concerning the federal grand jury.  However, in a high profile case, such as this one, involving the internet disclosures of war secrets and diplomatic cables by WikiLeaks, it could be difficult to keep things completely under wraps.  For example, while prosecutors and agents cannot disclose matters occurring before the grand jury, there are generally no prohibitions against witnesses, or witnesses' attorneys, telling others what has happened.  In addition, I have seen, or heard of, instances in which the grand jurors themselves may have disclosed what transpired before the grand jury.

Of course, no matter how you view Mr. Assange, whether or not someone has leaked information about a grand jury may be the least of Mr. Assange's problems right now, don't you agree? 

United States Attorney General Eric Holder has disclosed nothing about a grand jury investigation, but he has announced that he has authorized significant action in the matter.  It will be interesting to see what else unfolds in this case in the new year!

A Goolsby "War Story:" My First Grand Jury Case

If I practice law until I am 100 years old, I will never forget my first grand jury case. Here's why! Years ago, I was an Assistant D.A. in south Georgia. My boss, the D.A. had quickly taught me the drill about how to handle the presentation of grand jury cases. It went like this: the prosecutor takes the witness, usually a sheriff's investigator, into the grand jury room, swears the witness in, and then quickly gets the witness to tell the grand jury about the case. If there are no questions, then the prosecutor and investigator step outside the grand jury room while the grand jurors deliberate and vote either to "true bill" or "no bill" the case. I had watched my boss methodically indict scores of cases in this manner. Now, it was my turn to handle my own stack of grand jury cases.

I quickly realized that my first case was going to be just a little bit different. Inexplicably, no investigator was assigned to handle it. Instead, there was only a kind, blind, elderly man who had made a complaint that he was the victim of a residential burglary. I wondered how much proof existed, as I escorted the gentleman inside the grand jury room to the witness stand.

The blind gentleman proceeded to tell the grand jury about how his neighbor's son had entered his home one night and taken his property. Then, the old man added that, if we didn't believe him, we could ask his "friend," who had allegedly seen everything. This piqued my interest. I asked the man to tell us more about his eyewitness. I hoped that we could somehow salvage the case, and help this man, if another eyewitness existed.

Then, the bottom fell out of the case. The old man responded that his eyewitness was two inches tall and that he lived in the old man's mattress! "Go ask him," the old man exclaimed. "He saw everything!"

I never accepted the kind old man's invitation. But now you know why I will never forget my first grand jury case and my first "no bill!"

Special Challenges in Major White Collar Crime Prosecutions

This post is about another example of special challenges faced by federal prosecutors in handling major fraud, or other white collar crime, investigations. As many of you know, before I became an Augusta, Georgia criminal defense lawyer, I was a federal prosecutor for over 20 years. Today, I want to describe how lengthy federal investigations can really stress a federal prosecutor out! The real problem is that, in a lengthy federal criminal investigation, you can't get any real "closure," or sense of accomplishment, for a long, long time.

1. How Lengthy Federal Investigations Can Wear You Out!

Most criminal cases, especially on the state court level, are relatively simple to prepare and try. Even most murder cases involve just ten or so witnesses and a handful of exhibits. You try them and, win or lose, you put them to bed and go on to the next case. But it is really different when you are tasked with putting together a super-sized federal criminal investigation. For example, on one fraud and public corruption case, my team of agents and I interviewed several hundred witnesses over many months. Also, I nearly wore out my eyeballs by reading approximately a million pages of documents.

2. Lengthy Federal Investigations Are Also Like "Ground Hog Day!"

But the real problem with handling a really big case involves much more than just the tiredness and tedium inherent in dealing with so many witnesses and exhibits. The real challenge is that you also have to deal with the same case and the same problems, over and over again, every day, for many months, or even years. It's the repetition, and dealing with the same problems, and the lack of closure that can get to you. As a federal prosecutor, you sometimes feel like Bill Murray in "Ground Hog Day." For instance, if you have personality clashes with agents in your investigative task force, you might as well learn to simply live with them, because you will be seeing each other and working together on the same old stuff every day. In short, as the federal prosecutor in charge, you must deal with the problem that you won't get any "closure," or sense of accomplishment, for many months in the future, when the case is finally finished. And, at the beginning, you have no idea as to when that might be. In contrast, when you only prosecute small criminal cases, you can get them resolved, for better or worse, in just a few weeks, or months, and go on to frying other fish. But the psychology and stressors are much different when you have only one case to work on and there is no clear finish line in sight. I worked on some of my largest cases for a couple of years. So, the point is that I had to learn to cope and deal with the same problems and issues for that long, too.

3. So, Which Is Better: Prosecuting the "Big Fish" Or Prosecuting A Lot of "Smaller Fish?"

In short, learning to cope with the special problems inherent in big cases is one of the biggest challenges which a federal prosecutor must learn to face. Would you enjoy being a federal prosecutor, prosecuting the big "paper cases," and locking up the "big fish?" Or would you prefer to be a state prosecutor and handle a lot of "small fish?" Or, better yet, would you prefer, instead, to simply find another, less stressful, line of work!?

Reasons Why You Need An Experienced Federal Criminal Defense Lawyer For A Federal Criminal Case

There are so many kinds of lawyers "out there!" For example, there are divorce lawyers, real estate lawyers, personal injury attorneys, and bankruptcy lawyers, just to name a few. But did you know that there are also different kinds of criminal lawyers, based upon the types of criminal cases which they are experienced in handling?

So, what should you do if you are a target of a federal grand jury investigation? In other words, what kind of criminal lawyer do you need if you face potential federal criminal charges?

In my opinion, any person facing the possibility of a federal criminal indictment should try to find an experienced federal criminal defense lawyer, and not just any criminal defense attorney will do. Naturally, I will admit I am biased, because I am a former federal prosecutor who has over twenty years of experience in trying all types of criminal cases in federal court. But please also consider the following reasons why, in my opinion, you should look only for an experienced federal criminal lawyer to help you in this situation.

First of all, the federal court procedural rules are different. Most criminal lawyers, (even some outstanding advocates I know), who practice only in the state courts, essentially have no clue about the pretrial rules which apply in federal court. In federal court, the government must comply, for example, with the federal Speedy Trial Act and the Jencks Act. Also, many state criminal lawyers do not know the difference between a "Rule 11" and "Rule 16!"

In addition, an experienced federal criminal lawyer will more likely know the federal agents and prosecutors and how to plea bargain in federal court. Trust me, folks, things are different when you deal with the feds!

Also, jury selection rules and trial procedural rules are often different from the procedures followed by the state courts. While it is not always the case, sometimes federal criminal cases are also a lot more complex than state cases. As a result, federal criminal cases may also require a more sophisticated understanding of the federal charges and what the government must prove at trial. The difference between the two court systems is like the difference between playing checkers and chess!

Finally, sentencing in federal court is vastly different from sentencing in state court. In federal court, a criminal lawyer must be familiar with the infamous federal sentencing guidelines. These guidelines can be very complicated! At times, sentencing in a federal criminal case can resemble a "mini-trial."

So, have I convinced you to look for an experienced federal criminal defense attorney in your area for your federal criminal case?

Lengthy Federal Criminal Investigations: Just Like Waterboarding

I want to get on the soapbox today! As many of you know, I am a former federal prosecutor. I've seen the good, the bad, and the ugly about federal investigations. Today, I have a beef about some federal prosecutors who needlessly drag out some federal criminal investigations! A lot has been written about waterboarding of terrorists recently. But that is not the point of this post. Instead, the point here is that, sometimes, lengthy federal grand jury investigations must feel like waterboarding to the business people and other targets of such investigations.

Federal prosecutors are entrusted with an awesome power and virtually unlimited resources to investigate and prosecute. But occasionally, that prosecutorial power is abused. And in some federal criminal investigations, it occasionally appears as though the federal prosecutors have no tangible goal other than the harassment of their targets. The grand jury investigations drag on and on, and the water just keeps on dripping.

The length and complexity of some federal criminal investigations are primary distinctions from most state criminal investigations. For example, a typical state murder investigation may take only a few days or weeks to wrap up, but some complex federal grand jury investigations may literally drag on for years.

In my opinion, as a former federal prosecutor, as long as there legitimately are targets and evidence which you are pursuing, then the prosecutor may be justified in continuing the investigation. But at some point, if the evidence does not materialize, then the federal agents and prosecutors are obliged to "pull the plug" and leave the poor targets alone! As Kenny Rogers would say, "You've got to know when to fold 'em...." But a few prosecutors never seem to know.

This post isn't about a liberal view or a conservative view--it's about fundamental fairness!

In addition, in my opinion, after pulling the plug, the federal prosecutor should also then send a letter to the former target's lawyer which informs them that the investigation has ended and no charges will be brought. Unfortunately, such "closure letters" are not often sent in the real world! In the real world, the former targets generally never get any real closure after they have been stepped on by the government.

All you get, as a former target, after tangling with the government, is huge legal fees, a loss of time, and, in some cases, a loss of reputation. I can imagine that many former targets feel like former Defense Secretary Casper Weinberger, who declared after jousting with, and beating, the government, "where do I go now to get my reputation back?"

But it doesn't have to be this way. Federal prosecutors must always consider the impact of the awesome power they wield and they should try harder to make their investigations fair. In short, more federal prosecutors should be willing to stop the water torture and pull the plug sooner on dead end investigations.

There, I feel better now, and I'll get off the soapbox...at least for now! What do you think?

Use Immunity or Transactional Immunity: Which One is Better?

Let's assume you have been accused of committing a white collar crime and that you are in big trouble with the government! Next, let's assume your attorney, "Mr. Sluggo," tells you that he can "get you a deal;" that is, Sluggo says that the federal prosecutor has offered you "immunity" if you will cooperate and testify before the federal grand jury against your co-defendants. You then ask Mr. Sluggo what kind of immunity it is, and he merely shrugs his shoulders and replies, "all immunity is the same." What should you do?

First of all, it is always imperative that you get an experienced federal criminal lawyer and do so quickly! You see, all immunity is NOT the same! In federal grand jury investigations, there are generally two types of immunity that the government will offer: use immunity and transactional immunity. In most cases, an experienced criminal defense attorney will try to obtain transactional immunity. And here are the critical reasons why:

Use immunity is a more limited type of immunity which will NOT give you full protection against prosecution. Statutory use immunity, whether granted formally or informally, (in accordance with 18 U.S.C. 6000-6003), simply provides that, if you agree to cooperate, then the government will only agree not to use what you say against you. In other words, they may still prosecute you if they have sufficient evidence independent of your testimony to nail you!

Transactional immunity, on the other hand, generally goes further and offers you complete protection, (and a "walk"), against prosecution for the crimes in question.

The bottom line is, you need an experienced federal criminal lawyer who knows how to deal with the government, and who, unlike Mr. Sluggo, at least knows the difference between use immunity and transactional immunity! Your freedom may depend upon it!

Ethics Investigations of Federal Prosecutors: O.P.R.

Did you know that federal prosecutors have someone to fear, if they violate your Constitutional rights? Of course, they fear a federal judge or an appellate court zapping them for denying a defendant a fair trial. And they should also fear that their state bar may sanction them, too. But there is another person who federal prosecutors fear even more! It is an attorney-investigator from the Office of Professional Responsibility, (or OPR), of the Department of Justice.

Each year, OPR investigates ethics complaints made against federal prosecutors around the country. In a recent year, according to the OPR website, there were over 869 complaints made against government attorneys, including a wide range of prosecutorial misconduct allegations. The complaints included such things as prosecutors withholding evidence favorable to the defense, prosecutors improperly coercing witnesses, and prosecutors misrepresenting facts to the court. Fortunately, not many federal prosecutors violate ethics rules and not many are disciplined by the Attorney General based on these OPR investigations. In a recent year, for example, out of 869 complaints, only 18 federal prosecutors were actually fired or otherwise disciplined.

In my career as a federal prosecutor, I have seen a relatively small number of actual ethics violations. But I know they do occur! For example, I have seen one prosecutor improperly subpoena a defendant to testify before a grand jury. Another prosecutor threatened grand jurors if they failed to indict a case! I could tell you other "war stories!" Believe me, federal prosecutors are not immune against violating defendants' Constitutional rights. It happens! So, in my opinion, I am thankful that OPR exists, just to make the bad apples -- the unscrupulous federal prosecutors --have someone to fear; that is, at least if they get caught!

The Grand Jury: A Federal Prosecutor's Tool

Much has been written about grand jury abuses. But not many people really understand the role of the federal grand jury in a federal criminal investigation. In particular, not many people really know how federal prosecutors utilize the federal grand jury as a tool to help make a federal criminal case. Do you want to learn from a former federal prosecutor what really "goes on behind closed doors?!"

Unlike state prosecutors, federal prosecutors, or Assistant U.S. Attorneys, (often called "AUSAs"), are very active participants in federal criminal investigations. That was one part of being an AUSA that I loved! Working closely with federal agents, AUSAs help prepare grand jury subpoenas for business records. Also, AUSAs help plan which witnesses to take before the grand jury. For instance, during an investigation of corporate fraud, if the corporate defense attorneys won't allow interviews of corporate employees, an AUSA may get around this obstacle by issuing grand jury subpoenas to the corporate employees and taking them to the grand jury. In addition, AUSAs will often decide to take recalcitrant, uncooperative witnesses before the grand jury where they can be locked in as to their testimony, under oath. Then, if a hostile witness later "breaks bad" at trial, the AUSA can use a transcript of their prior grand jury testimony to impeach them! These are some of the ways in which federal prosecutors use the federal grand jury as a legitimate tool in federal grand jury investigations.

So, now you can see how the federal grand jury plays an important role in federal criminal investigations, and you can better understand the role of a federal prosecutor in relation to the grand jury. And now, you also really know what "goes on behind closed doors!"

Federal Grand Jury Target Letters

In the last blog article, we discussed what you should do if you are served with a federal grand jury subpoena. But what should you do if, instead of a receiving a subpoena, you receive a "target letter?" In federal grand jury practice, a target letter typically informs the recipient that he or she is a target of a grand jury investigation and that a federal prosecutor has decided you are a potential defendant. In addition, the federal prosecutor has decided to "invite" you to appear before a federal grand jury and see if you will incriminate yourself! So, what should you do?

The answer is: RUN to your (criminal defense) lawyer! In other words, receiving a target letter, which informs you that you may be indicted on federal criminal charges, is a very serious matter! Your criminal defense attorney should be an attorney who is experienced in federal court and in dealing with federal prosecutors. An experienced criminal defense attorney will contact the federal prosecutor, find out what is going on, and attempt either to obtain some concessions from the government, or perhaps "decline" the "gracious" invitation to appear before the grand jury.

In any event, if you have received a grand jury target letter, it is absolutely imperative that you seek legal help as soon as possible! You have a target on your back and need an attorney!

Grand Jury Subpoenas -- "Come On Down...!"

Here's a scary hypothetical for you to consider: Let's assume you are an executive who works for a home health care agency. For some time, you have suspected that your supervisor may be submitting some questionable billings to Medicare, but you have no proof. And then, one evening, you are visited at home by two F.B.I. agents who hand you a federal grand jury subpoena! What should you do?

In my opinion, you should call an experienced federal criminal defense attorney. And preferably, you will call a white collar crime defense lawyer who has extensive federal grand jury experience. In another blog article, we will discuss how the feds use the grand jury as a tool to investigate criminal cases. But the important point here is that, if you have been served with a federal grand jury subpoena, you should treat it as a very serious matter and get experienced legal help as soon as possible! One thing an experienced lawyer will do is to contact, on your behalf, the federal prosecutor, and/or the F.B.I. agents, in order to clarify your status as a grand jury witness, subject, or target. If your attorney learns that you are a target of the federal grand jury investigation, then he or she may attempt to obtain some concessions from the government in exchange for your cooperation. Many other possible scenarios may exist, but it is important, at this juncture, for your lawyer to learn as much as possible about your status BEFORE you go before the grand jury to testify. Hopefully, your lawyer will learn that you are not a target and that you are viewed by the government only as a witness. Even so, perhaps your lawyer can still confirm your status in writing.

So, the bottom line is: Federal grand jury subpoenas are serious matters which require the attention of an experienced federal criminal defense attorney. Call your lawyer promptly before you "come on down" as the "next contestant!"