Criminal

Federal Judge Chides Counsel on Manafort Investigation

A federal judge in Virginia on Friday grilled lawyers from the office of special counsel Robert S. Mueller III about their motivations and authorization for bringing a fraud case against former President Trump campaign manager Paul Manafort, who is accused of crimes related to his work for a pro-Russian political party in Ukraine, The Washington Post Reports. Manafort was seeking to have bank and tax fraud charges against him dismissed, with his lawyers arguing that the alleged crimes have nothing to do with the election or with President Trump. “You don’t really care about Mr. Manafort’s bank fraud… You really care about getting information Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment,” Judge T.S. Ellis III said during a morning hearing. Ellis also requested an un-redacted version of an August 2017 memo from the Deputy Attorney General for the USDOJ Rod Rosenstein authorizing to investigate whether Manafort illegally coordinated with Russia in 2016.
 
Michael Dreeben, a prosecutor with the special counsel’s office, responded that the Manafort investigation has expanded significantly since it was taken over by Mueller and the specific parameters of the special counsel investigation have not been publicly revealed because to do so would jeopardize ongoing probes and sensitive national security information. Manafort’s attorneys have requested the judge address a motion alleging leaks to reporters that conversations were intercepted between their client and Russian officials and other issues in a hearing on May 25.
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Tennessee’s ‘Fresh Start Act’ Signed into Law

Last Friday, Gov. Bill Haslam signed Tennessee SB2465, relative to occupational licenses, into law. The bill, known as the "Fresh Start Act," creates a uniform process that all licensing authorities must follow and requires that denials and refusals to renew occupational and professional licenses based on a criminal conviction must only occur when the offense relates to the offender's ability to perform the occupation or profession. This bill Amends TCA Title 62, Chapter 76, Part 1 and Title 63, Chapter 1.

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Next Week: Criminal Law Basics

The Tennessee Bar Association will offer a Criminal Law Basics CLE program at the Bar Center in Nashville. This program will feature intangibles such as what to do when you get a new client (from opening a file to getting paid), the life cycle of the attorney-client relationship, obtaining the charging instruments and filing requests, notices, motions and more. Don’t miss this chance to learn from seasoned practitioners while networking with professionals who have a similar focus. Here is the key info:
 
When: Monday, May 21, 12 p.m., CDT
Where: Tennessee Bar Center, 221 4th Avenue North, Nashville, TN 37217
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Chattanooga Racketeering Indictment Raises Concerns of Overreach

Most of the 54 people charged in last month's racketeering indictment against a Chattanooga street gang don't know what they're specifically accused of doing, reports The Chattanooga Times Free Press. Criminal defense attorneys who've previously represented many of the accused are seeking as much information as possible before April 27, when all 54 defendants are set to appear in Hamilton County Criminal Court to plead guilty or not guilty.
 
Critics say these cases can be an overreach, creating collateral damage for those who may not have committed serious crimes, yet can be punished for their previous affiliation with gang members. Prosecutors declined to comment on this case, so the extent of their evidence is unknown. You can read the full presentment here.
 
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Former Skadden Associate Charged in Russia Probe Seeks Leniency

Alex van der Zwaan, the former Skadden, Arps, Slate, Meagher & Flom associate who pleaded guilty to lying in the Russia investigation earlier this year, told a Washington, D.C., judge that his cooperation and remorse justify a non-jail sentence, reports The National Law Journal.

Van der Zwan’s lawyer, Cooley partner William Schwartz, wrote in a sentencing memo to U.S. District Judge Amy Berman Jackson that the 33-year-old’s career is ruined, and that he has “been serving a sentence while stuck in limbo” in the United States. The memo states that while it did not excuse his conduct, van der Zwaan lied to investigators in a Nov. 3, 2017, meeting because he feared for his career, as Skadden lawyers represented him at that time.

“During the interview, Alex was keenly aware that he was not speaking only to the OSC,” the document said. “Alex was represented by Skadden lawyers, and anything he shared with the OSC would simultaneously be heard by Skadden. In his mind, his boss was listening to every word.” The memorandum continues: “Focused on preserving his career at Skadden, and fearful that truthful answers could lead to discovery of the recordings (and in particular, the discovery that he had recorded a Skadden partner), Alex made a terrible decision… The conduct that brings Alex before this court was inexcusable… And while his actions following his initial meeting with the OSC cannot absolve him from culpability, they are compelling mitigating factors in considering just punishment.”

In their own memo, lawyers for Mueller told the judge she should not rule out prison time, because of a “scarcity of mitigating factors and several aggravating circumstances.” They said van der Zwaan “is a person to whom every advantage in life has been given,” and that the government rightly expected “candor and uprightness” from him. “While there might eventually be additional professional consequences that befall a foreign lawyer who commits a United States felony, those consequences do not themselves obviate the need for his current sentence to reflect the seriousness of his crime, to promote respect for the law, or to provide adequate specific and general deterrence,” prosecutors wrote.

The filing also included pleas for a lenient sentencing from van der Zwaan’s wife, the daughter of a Russian oligarch who is expecting a baby in August, and his mother, whom the filing said he helps with errands and household tasks. Van der Zwaan faces up to six months in prison.

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Store Owners Caught in 'Operation Candy Crush' Contemplate Legal Action

Store owners involved in the recent “Operation Candy Crush,” where Rutherford County law enforcement agencies raided and shuttered 23 businesses selling cannabidiol (CBD) candies, are contemplating legal action reports The Murfreesboro Post. Law enforcement action culminated on Feb. 12, when the Rutherford County Sheriff’s Department and the Smyrna Police Department seized all merchandise containing CBD and padlocked the almost two dozen businesses, citing them as a public nuisance.
 
Proprietors argue that they broke no laws since CBD contains only trace amounts of THC, the psychoactive element in illegal marijuana. Legal CBD products must be derived from industrial hemp and contain less than 0.3 percent THC. When isolated from the plant, CBD can be distilled into an oil and added to food and beverages to be sold. If derived from an industrial plant with a clear chain of command, the oil is not inherently illegal.
 
Defense attorney Tommy Santel, who is representing several store owners, argued that CBD and industrial hemp are not identified as controlled substances. "The state has failed to even plead a sufficient case," Santel said, when asking for the dismissal of all civil injunctions and the removal of the padlocks. "The state needed to go further, the state needed to say 'derivative of marijuana' or 'derivative of industrial hemp.”
 
All criminal and civil charges against the store owners in Rutherford County part of Operation Candy Crush will be dismissed and their records wiped clean.
 
Attorneys representing those business owners are discussing how to structure any legal action, which could involve “an overarching” state injunction by stores that took their items off of shelves because they feared prosecution, as well as the Rutherford County business owners who were arrested and lost days of business, according to Joe Kirkpatrick, president of the Tennessee Hemp Industries Association. 
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TBI Director Announces Retirement

Tennessee Bureau of Investigation (TBI) Director Mark Gwyn announced his retirement earlier today after 14 years in charge, according to the Chattanooga Times Free Press. Gwyn, who has spent a cumulative 30 years in law enforcement, said it's the "right time" for both himself and the organization. 
 
The organization has faced much criticism of late regarding hiring practices, fiduciary concerns that sparked a state audit questioning the financial management of the agency and recent debate over a $250 DUI fee deemed unconstitutional that went into TBI coffers.
 
"I believe I have done all that I can do to improve our resources, training and equipment for the Bureau family," Gwyn said. "It was my goal to leave the Bureau better than it was when it was given to me."
 
Gwyn will remain TBI director until June 1, allowing a special commission that recommends the agency's directors to search for his successor.
 
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Bill Proposes Amendments Regarding Children's Testimony in Criminal Trials

Proposed amendments to Tennessee Code Annotated, Title 24, Chapter 7, Part 1 aim to permit out-of-court statements made by children from being excluded as hearsay. Under HB1480, an out-of-court statement made by a child who is under 12 years of age at the time of a criminal trial describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child will not be excluded from evidence at the criminal trial as hearsay if all of the following apply:
 
The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted under certain rules of the Tennessee Rules of Evidence. This bill lays out in detail the circumstances a court must consider in making a determination of the reliability;
 
1. The child's testimony is not reasonably obtainable by the proponent of the statement. This bill details the circumstances in which a child's testimony is not reasonably obtainable;
 
2. Independent proof exists of the sexual act or act of physical violence;
 
3. At least 10 days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the content of the statement, the time and place at which the statement was made, the identity of the witness who is to testify about the statement, and the circumstances surrounding the statement that are claimed to indicate trustworthiness of the statement.
 
4. The bill will require the court to make the findings based on a hearing conducted outside the presence of the jury and to make findings of fact on the record as to the bases for the court's ruling. 
 
Similar proposed legislation has been met with consternation out of constitutional concerns for defendants. The bill has passed the first reading and has been assigned review by the Criminal Justice Subcommittee. More information is available on the General Assembly website.
 
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Criminal Law Forum 2017

The Tennessee Bar Association will host the 2017 Criminal Law Forum in Nashville on Dec. 8. This one-day event is a staple for Tennessee attorneys, offering timely analysis of important issues to educate and enrich your practice.
 
Do not miss this opportunity to fulfill CLE requirements while networking with attorneys who share your focus and cultivating relationships with fellow practitioners. Section members receive a discounted rate for the program. Here's the key info: 
 
When: Dec. 8, registration begins at 8 a.m., CDT
 
Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219
 
Topics include:
  • Sentencing issues and case law statutory updates 
  • The Indigent Representation Task Force recommendations and the Supreme Court's response
  • Post-conviction relief
  • Voire dire
  • Ethical considerations for criminal law attorneys
Speakers/Producers include:
  • David Veile, Schell & Oglesby, LLC, Franklin 
  • Joseph Fuson, Freeman & Fuson, Nashville 
  • William Koch Jr., Nashville School of Law, Nashville 
  • William Lamberth II, William Lamberth Attorney at Law, Portland
  • Roger Nell, District Public Defender, Clarksville
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Help Solve Court Reporter Shortage in Tennessee

Like many states, Tennessee has been experiencing a shortage of court reporters in our criminal courts. Adding to this problem is the closure of several specialized court reporter schools, which leaves us without in-state training for these good-paying jobs for qualified, trained reporters. 
 
 
New and innovative ways to address the shortage of reporters must be studied to fulfill the critical role these reporters play in our criminal justice system. Due process rights, including an official record in criminal trials, are insured by the Constitution and crucial to the right to a fair trial. 
 
To help solve this problem, the Tennessee Supreme Court recently created a task force of judges, clerks and court reporters, to assist the Administrative Office of the Courts in studying the issue and making recommendations regarding innovative ways to address this shortage.
 
With a grant from the Office of Criminal Justice Programs, the Administrative Office of the Courts and the Court Reporter Task Force have begun developing a pilot educational program with the goal of increasing the number of well-trained court reporters for our courts and our citizens.
 
To assist in this effort, the TBA Criminal Justice Section is soliciting comments that you may have on this subject. Please take a moment to complete this very brief survey, which will be reviewed by the Criminal Justice Section Executive Council to determine if the section will take a position on the issues involved.
 
Please respond by Nov. 6. Thanks for your help with this important endeavor.
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