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Tag: U.S. Attorney

FBI’s Tainted Key Witness Creates Big Problems in Mobster Case for NY U.S. Attorney’s Office

This piece originally appeared in Gang Land News on June 26 and is being reprinted with permission. It’s the most recent story Gang Land News has published about the case since disclosing that prosecutors gave sweet plea deals to two Gambino family gangsters on the eve of trial in January rather than allow their lawyers to question the FBI’s key witness about the reason he agreed to cooperate.The witness was arrested on charges of soliciting sex from a person he believed was a 15-year-old girl, a charge that normally carries a mandatory-minimum penalty of 10 years to life.

U.S. Atty. Preet Bharara/doj photo

By Jerry Capeci
Gang Land News

The office of U.S. Attorney Preet Bharara quietly announced last month that it was dismissing charges against the last three defendants in the snake-bitten labor racketeering case that the FBI made against Genovese gangster Carmine (Papa) Smurf Franco and 28 others. All told, prosecutors have dropped the charges against 10 of the 29 defendants in the indictment.

Throwing in the towel before trial against more than a third of the defendants in the 16-count indictment wasn’t the way things were supposed to turn out. When the arrests were announced, the case was hailed by Bharara and New York FBI boss George Venizelos as a major blow against the Mafia’s control over the waste hauling industry in New York and New Jersey. Instead, this foray against the mob rivals the losing ways of the luckless Mets.

In a two paragraph court filing, prosecutors told Manhattan Federal Judge P. Kevin Castel they were deferring the prosecution of the owner of a Jersey City garbage company and two truck drivers charged with stealing about 130 tons of cardboard between March and July of 2012. The trio, Thomas Giordano, 43, the owner of Galaxy Carting of New Jersey, Michael Russo, 51, and Louis Dontis, 59, were set for trial next month. The charges are slated to be officially dismissed later this summer.

The three men were tape recorded by FBI informer Charles Hughes in dozens of conversations in which they allegedly discussed truckloads of stolen cardboard, and a surprisingly simple, relatively lucrative mob scam. Drivers snatched the cardboard from sites in Brooklyn, Bayonne and beyond. It was then put up for sale by Giordano at a market price that ranged between $106 and $125 a ton, according to an FBI summary of talks that Hughes recorded from March of 2009 until January 8, 2013 – a week before the indictment was unsealed.

But in an apparent effort to keep their key witness, undercover operative Hughes, off the stand, prosecutors have decided to drop the charges. A major concern is that Hughes would have to admit that he became a government witness only after he was arrested for soliciting sex with a girl he believed was 15 years old.

In January, prosecutors gave super sweet plea deals to Gambino mobster Anthony Bazzini and mob associate Scott Fappiano, who faced 20 years if convicted, rather than subject Hughes to a biting cross-examination about that by their lawyers.

But prosecutors had no leverage to wangle guilty pleas from the alleged cardboard thieves.  “They rejected plea deals of zero-to-six months early on,” said one source.

“There was no way they were going to plead to anything,” said one defense attorney whose client accepted a plea offer before it became known that Hughes was a convicted sex pervert. “My guy got a really nice disposition, but he’s not happy. And there’s one other guy I know who’s upset that he didn’t hold out until the end,” the lawyer added.

Sources say that following his arrest in August, 2008, Hughes, now 44, was detained until March of 2009, when he was released on bail and wired up by the FBI to see if he could deliver on a claim that he had worked in the waste hauling industry in his teens and could make cases for the feds. News that his cooperation stemmed from a sex-solicitation arrest surfaced five months ago.

Law enforcement sources say the primary reason the government decided to give Fappiano and Bazzini — who received a year and a day sentence on June 24 — much better plea offers was a “real fear” that jurors would be so outraged by Hughes’s conduct that they would hold it against the government for making a deal with him, ignore the law and acquit, no matter what.

Whether the FBI and U.S. attorney’s office should have entered a cooperation agreement with Hughes in the first place is a bone of contention for some law enforcers. But that issue is difficult to assess since his case is still under seal as are the specifics of his deal with the feds.

But there is agreement by several law enforcement officials, and virtually every defense lawyer Gang Land spoke to, that the decision by Judge Castel to permit defense lawyers to question Hughes about lies he told both his wife and the “teenager” he thought he was seducing convinced prosecutors to give deals to Bazzini and Fappiano in January.

Prosecutors Bruce Baird and Patrick Egan had tried to limit the cross examination, but when Castel indicated during a pretrial session that he was going to grant defense lawyers Raymond Perini and Lee Ginsberg some leeway in their questioning of Hughes, the prosecutors gave the gangsters a plea offer they couldn’t refuse.

“The mobsters were charged with extortion but it’s really stealing garbage stops and bid-rigging,” said one source. “That’s pretty tame stuff for jurors to deal with compared to having sex with little girls who but for the grace of God could be their daughters or granddaughters. The chance of jury nullification was very real.”

The decision to toss the charges against the alleged cardboard thieves was presumably even easier to make: The total value of the stolen cardboard was about $16,000, an amount not likely to sway jurors versus a sex-scheming witness.

Nor was playing the dozens of tapes Hughes made without having him testify to authenticate them a good option. Some conversations appear to back up the notion that the men knew they were dealing in stolen cardboard. For instance, according to the indictment, on May 29, 2012, Giordano was recorded saying “he did not care where the cardboard came from as long as it went to him.”

But others, like one a few days earlier, according to an FBI summary obtained by Gang Land, appear to tilt the other way. In one such conversation, Dontis is heard telling Hughes that “he doesn’t want to do anything wrong. He’s not a brokester, he’s just a hard working Greek who just wants to make money.”

Even if convicted, the trio could have received non jail terms, or sentences of less than a year behind bars.

Giordano’s attorney, Michael Bachner, the only lawyer who responded to a Gang Land request for comment, said he and his client were pleased by the deferred prosecution decision. “From the get go,” said Bachner, “we have taken the position that Mr. Giordano should not be prosecuted. And while it took longer than we would have wished, we’re gratified with the result.”

Neither Bharara, nor the FBI, would comment about this week’s deferred prosecution, or the embarrassing decision to drop the charges against a third of the defendants in the case. They also declined to discuss the status of Hughes, including whether he is behind bars, or if, as prosecutors indicated last week, he is free on bail, and what type of supervision he has now.

In court papers, prosecutors wrote that Hughes “remains in virtual hiding, fearful for his safety and the safety of his close family members.” His “ability to earn a living and to support his family is essentially non-existent,” they wrote, adding that his “life will never return to the way it was prior to his arrest.”

Prosecutors also wrote that different accounts they gave defense lawyers about how roll-off containers belonging to a Bazzini-connected carting company ended up in a Giordano company storage lot were caused by “miscommunication or misunderstanding” between Hughes and his supervising FBI agents, “rather than a deliberate effort by (Hughes) to mislead the government.”

Gang Land News, which is run by Jerry Capeci, a noted mobster expert, is a subscription site, but well worth it.

Supreme Court Effortlessly Throws Out Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.
 
By Ross Parker
ticklethewire.com

Guessing the correct result and even the basic rationale of the Supreme Court’s cell phone case could be considered a minor achievement, but not even the most ardent defense attorney would have predicted that the opinion would be a unanimous 9-0 decision authored by the normally pro-law enforcement Chief Justice. Chief Justice Roberts’ opinion held, without a single dissent, that the warrantless search of an arrestee’s cell phone incident to his arrest was in violation of the 4th Amendment. It’s embarrassing to miss the ease with which the Court made the decision.

In doing so the Court resolved a split in lower courts and rejected a line of cases which compared the cell phone search to be analogous to the previously authorized search of an arrestee’s papers, diaries and the like. That had been the rationale of one of the two cases reviewed, the California Court of Appeals decision in Riley v. California, which had upheld the police search of a man’s cell phone when he was stopped on a traffic charge and then arrested for illegal firearm possession. The search had produced data linking him to a gang shooting, and he was convicted of attempted murder. Instead the Court followed the other decision reviewed, U.S. v. Wurie, in which the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest.

The Court rejected the Justice Department position and reasoned that the invasion of privacy was not comparable to the other cases involving the search of notes, private documents and the like. The extent of private material exposed in a modern cell phone is of an entirely different magnitude than that which could be kept in such papers. The extra-legal consideration was perhaps left between the lines. Everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of private and extensive purposes.

The opinion found a clear distinction in the latest cell phone technology and its ever-expanding capacity to store a vast trove of private information. From a legal analysis standpoint (and foreseeable only with 20-20 hindsight), the case was a logical extension of the Court’s increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques which had been found to be “unreasonable searches” without prior judicial authorization.

So what does the case portend? The loss of free rein to investigate the secrets of those arrested without prior judicial authorization will be an inconvenience to law enforcement, especially since nearly every person arrested possesses a smart phone. But enterprising agents will mitigate this loss in many cases by imaginative considerations of probable cause to present to a judge. Other advanced tools of the expanding sources of technology should probably be second-guessed in terms of the need for a warrant. But most prosecutors and case agents were already aware of this trip for the unwary.

Does it mean a cutting back from the wide scope of non-cell phone searches incident? Probably not since the prior cases in this category set forth a fairly well defined course of action by arresting officers.

On the other hand, being presumptuous about who your friends are on the High Court can be a humbling experience.

 

Whistleblower, Ex-Arizona U.S. Attorney Says His Office Was Cast As Scapegoat

Fprmer U.S. Attorney Dennis Burke

Steve Neavling
ticklethewire.com

Former Arizona U.S. Attorney Dennis Burke, who blew the whistle on the Fast and Furious gun investigation, said he leaked the information because he feared his superiors in Washington would unfairly blame the problems on his office, Main Justice reports.

During an Arizona State Bar disciplinary proceeding on March 27, Burke said his bosses were more concerned with political expediency than getting to the bottom of the problem.

Burke “believed that his office and employees were not being protected by DOJ, and that accurate and complete information was not being provided to the national media,” according to the disciplinary agreement.

Burke was issued a reprimand and accepted responsibility and agreed to $1,200 to reimburse the state bar, Main Justice wrote.

OTHER STORIES OF INTEREST


FBI Probes Claims That Baltimore Police Falsify Reports to Build Cases

Steve Neavling
ticklethewire.com

The FBI is investigating claims that a plainclothes unit of the Baltimore Police Department falsified reports to help their cases, the Baltimore Sun reports.

The complaints come from Kendall Richburg, who served on the Violent Crimes Impact Section and was charged with federal drug and gun offenses.

The Sun reported that Richburg told authorities he was among many on the unit to falsify reports.

Assistant U.S. Attorney David Copperthite said Thursday that some cases of improper paperwork were found among his colleagues.

OTHER STORIES OF INTEREST

Parker: U.S. Attorney Joe Hayes, A Contributor to the Rule of Law (1940-2013)

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office. He is the author of the book “Carving Out the Rule of Law: The History of the United States Attorney’s Office in Eastern Michigan 1815–2008″.

Roy Hayes

 
By Ross Parker
ticklethewire.com

Roy C. (Joe) Hayes, the 45th United States Attorney for the Eastern District of Michigan (1986-89), died earlier this month.  Although his contributions extended to several other venues, it is this service that stands out for those of us who were privileged to work with and for him in the federal system.

Considering the epochal changes that occurred to the federal criminal justice system during his term, Joe’s common sense and leadership provided a steady hand at the Office tiller. Plus he was one of the nicest guys you could work for. His personal and professional history made a significant contribution to the rule of law in Michigan, in both the state and federal systems.

He was born on June 19, 1940 in Detroit, and he grew up in the city, where his father operated an advertising and public relations business.  At an early age, he was given the nickname “Joe,” and it stuck throughout his life among his friends and co-workers. He was graduated from the University of Notre Dame High School in 1958, and with his strong Irish and Roman Catholic background, he naturally chose to attend the University of Notre Dame, where he received a bachelor’s degree in 1962.  He then went to law school at the University of Detroit, graduating in 1965.

Joe was selected in 1966 to be the Editor of the Detroit Lawyer, the primary publication of the Detroit Bar Association.  During this same time, he served as public relations counsel of the State Bar of Michigan and of the Detroit Bar Association.  In 1967, a tumultuous time for the city, he became an Assistant Prosecuting Attorney in the Wayne County Prosecutor’s Office. 

He was soon assigned to a heavy schedule of trying major felony cases in one of the busiest criminal courts in the nation.  He developed an expertise in trying murder, arson and fraud cases.  In 1969 he left the office to be Assistant Director of the Crime Control Project for the American Bar Association in Chicago.  The experience of working under the direction of famed trial lawyers Leon Jaworski and Edward Bennett Williams left a strong impression on him.

From 1970 until 1975, Joe Hayes headed the Wayne County Organized Crime Task Force in Detroit.  As the director of the operation, he supervised a task force of prosecutors and law enforcement officers who investigated major corruption. His most important case of was the 10th Precinct Police Corruption trial, which involved one of the longest trials in Michigan history.  The nine-month trial involved the first use of metal detectors in a Michigan courtroom.  The case resulted in the conviction of fourteen police officers and six drug traffickers.

Ross Parker

In January 1976, he left the task force to accept the appointment as Charlevoix County Prosecuting Attorney.  In 1978 he formed the law firm of Hayes and Beatly in Charlevoix and, for seven years, engaged in a diverse legal practice, which he left in 1986 to become United States Attorney.

Few USAs have managed the changes and challenges Joe Hayes faced in his term. The biggest of these was probably the Sentencing Reform Act which caused one of the most important changes in the federal criminal justice system in the twentieth century.  Under the prior “indeterminate” sentencing system, there were almost no limitations on the range of sentences a judge could impose for a particular offense committed by a particular defendant.  The result was a wide disparity of sentences for similarly situated defendants.  The other complaint about this system was that defendants were eligible for parole after serving only one-third of their sentence.  That fact plus a generous good time system made the actual time served by an offender impossible to predict until his or her release on parole.

The Sentencing Guidelines system tried to avoid disparity, uncertainty and unfairness by requiring judges to impose sentences within a narrow range.  The Sentencing Commission developed a time grid based on the category of the offense and the criminal record of the offender. 

The defendant would serve “real time” sentences, minus the prescribed good time allowance. Parole was replaced by a mandatory period of supervised release tacked on after an inmate left prison. Although it had several important benefits, the system was incredibly complicated and many practitioners predicted disastrous chaos. Plus mandatory minimums could be indiscriminately harsh. AUSAs faced criticism for the new system on a daily basis. Joe’s patience and encouragement got us through a challenging time of adjustment.

 

Read more »

Former Detroit U.S. Attorney Roy Hayes Dies at 73

Roy Hayes

By Allan Lengel
Deadline Detroit

DETROIT -- Roy C. (Joe) Hayes was one of those U.S. Attorneys who took the job seriously, but seemed to enjoy what he did while keeping a pretty good sense of humor about him.

I got to know Joe when I was a reporter at the Detroit News covering the federal courthouse. He loved to schmooze and he seemed to be the kind of guy who got what he wanted. He died Thursday of pneumonia in Charlevoix at age 73, according to the Detroit Free Press.

In 1985, he became the U.S. Attorney in Detroit at age 44. He was appointed by President Ronald Reagan. He came with some experience in that area. He had been with the Wayne County Prosecutor’s Office where he battled corruption, organized crime, violent crime and fraud.

As U.S. Attorney, his office prosecuted some high profile cases including the Chambers Brothers crack-cocaine gang, which dominated the city’s east side. Hayes himself was the co-prosecutor on the case, which I ended up covering for the News. His office also oversaw the massive investigation into corrupt judges in Detroit’s 36th District Court and Recorder’s Court.

Joe loved a good laugh and he used always kid me about the “Grey Rabbit,” a hippie bus I once took in college during winter break from Portland, Ore., to Indianapolis (I had to take a Greyhound on the final leg of the journey to Detroit.) I told him the amusing story about the Grey Rabbit, which included a passenger in front of me “borrowing” my tooth brush. I never used it again after it left my possession.

To read more click here.

Audit: Justice Department Overstates Terrorism Conviction Statistics

Steve Neavling
ticklethewire.com 

The Justice Department grossly overstated the number of terrorism convictions and made other inaccuracies because of shoddy record keeping, a federal audit has found, the Washington Post reports.

Justice Department Inspector General Michael E. Horowitz concluded in a report that the federal agency, which has 93 U.S. attorneys’ offices, over-reported the number of defendants who had been found guilty of terrorism.

The number was overstated by 13% in 2009 and 26% in 2010, the Post wrote.

The investigation found other significant errors in record keeping, according to the Post.

Detroit’s U.S. Attorney Barbara McQuade Knew Feds Would Be Subject to Some Ridicule in Hoffa Dig

Featured_mcquade3_6597U.S. Attorney Barbara McQuade
By Allan Lengel
Deadline Detroit

DETROIT — Things haven’t been dull for Barbara McQuade.

Right after being sworn in as the Detroit U.S. Attorney in January 2010, she started dealing with the “Underwear Bomber” case involving Umar Farouk Abdulmutallab, who tried to detonate an explosive aboard a Detroit-bound plane on Christmas day.

Later that year, her office indicted ex-Detroit Mayor Kwame Kilpatrick.

This year, her staff scored a major victory, convicting Kilpatrick, his buddy Bobby Ferguson and his dad Bernard Kilpatrick.  She was involved in the decision that lead to the FBI digging for Jimmy Hoffa in June. And her prosecutors continue to investigate corruption in Wayne County government.

In a wide-ranging interview, McQuade, who has been a prosecutor in the office for 15 years,  sat down with Deadline Detroit to talk about public corruption, terrorism,  Hezbollah’s links to Metro Detroit,  Kwame Kilpatrick’s upcoming sentencing, the Hoffa mystery, the credibility of ex-mobster Tony Zerilli who provided the latest tip as to Hoffa’s whereabouts, and what went into the decision to dig for the legendary union leader recently in Oakland Township.

“We knew there’d be some ridicule, like ‘Oh my gosh, they’re digging for Hoffa again,” she says.

The following interview was condensed and the questions were edited for clarity.

DD: Can we expect more indictments out of City Hall?

McQuade: I don’t know about city hall per se. I guess I wouldn’t want to comment on that. The pension fund case is pending and we’ll go to trial early part of next year. It’s no secret that we’re currently investigating Wayne County government because that has all been very public despite our efforts to do our best make sure we protect the integrity of people involved in that investigation. I think there have been six defendants convicted to date in that investigation.

DD: I noticed in the paper that former U.S. Attorney Jeff Collins, who works for Bob Ficano, has asked you for a letter for Ficano saying he’s not a target of the investigation. Apparently he’s not gotten one. Is there a reason not to issue a letter?

McQuade: I don’t want to comment on that other than we are investigating all aspects of Wayne County and we don’t know yet where the evidence may lead us. So people should not infer anything positive or negative from that.

DD:  It’s unusual for a federal judge to detain a defendant in a white collar case before sentencing. Were you surprised Judge Nancy Edmunds detained Kwame Kilpatrick?

McQuade: We thought we had a reasonable chance of that outcome.  I don’t know I expected that outcome. I wasn’t stunned in light of the history he had in the state court with flouting court orders.

DD: Have you seen that before in a white collar case?

McQuade: From time to time people get detained in white collar cases. I agree with you that it is more rare. There was no argument that he was a danger to the community and more often, those are the kind of defendants who get detained.  This was more along the lines of risk of flight and a history of not complying with court orders.

DD: How involved was the Justice Department with the Kwame case and how worried were they about pulling the trigger and indicting?

McQuade: Not much at all.  The Justice Department does get involved in certain kinds of cases with national implications. For example, the Abdulatalab case (Underwear Bomber), which was an international terrorism case. They were very involved in that and wanted to be kept apprised at every step of the way and we needed approval from them every step of the way.  The Kilpatrick case much less so. Really we were notifying them of significant events in that case.  But other than that, they really let us run that case on our own.

Featured_22_33_49_874_bernard_kilpatrickBernard Kilpatrick

DD: You indicted Bernard Kilpatrick, Kwame’s dad, who worked as a business consultant for city contractors. I know prosecutors sometimes worry the jury might be more sympathetic when they see a family unit on trial.  Was that something that was debated?

McQuade: I guess I don’t want to talk about specifics of what we debated. But you’re absolutely right that those are always the kinds of things that you think about: How does this affect the jury’s perception of the case? Are we overreaching in any way? But we felt very strongly about charging Bernard Kilpatrick because we thought the evidence against him was very strong. Ultimately, the jury was hung on him with respect to RICO charges but did convict him of the tax charges. There was wire tap evidence, video evidence, that we thought was very strong that (showed) he was just not a participant but a leader in this activity.

DD: Do you think in his case or others the laws involving lobbying and consulting are too vague?

McQuade: Well, sometimes the lines are unclear about what is permitted and what is not permitted. But the evidence we thought in this case was very strong that there was no gray matter, that this was misconduct. But as I said, reasonable minds can disagree.

DD: A lot of people were happy to see the indictment, but some supporters of his  wondered if it was racially motivated. Did you feel pressure if he walked that it would bolster his cries of racism?

McQuade: I wasn’t worried about it. Defendants always have some argument about why they’re being unfairly targeted.  That’s a fairly common tactic. Certainly it was an important case for the city of Detroit. And so we did feel strongly and had great hopes the jury would see it our way and convict him.  If he had not been held accountable I think it would have sent a terrible message to the entire city of Detroit and the entire community.

To read full interview click here.