Federal Jury Trial Acquittal


Looking back this weekend at one of the most memorable cases of my career, which ended a year ago today.

It was a federal mail fraud case in the Eastern District of California, Sacramento, court.  The US Attorney’s office in Sacramento had charged six defendants in the case, but by the time we started the trial on March 3, 2015, four of the six had pled guilty and agreed to testify against the other two.

The two remaining defendants were my client, Deborah Loudermilk, and a co-defendant named Buena Marshall, who was represented by Attorney Mark Reichel of the Sacramento law firm Reichel & Plesser.  Mark is a very experienced federal criminal defense attorney and former federal public defender who proved to be an excellent co-counsel in this difficult case.

The charges grew out of events that occurred in 2006 during the height of the home mortgage frenzy which ultimately led to the monumental mortgage meltdown of 2008.

The trial took 11 trial days over four weeks.  In the prosecution of the case, the government presented 26 witnesses and more than 300 exhibits.  It took more than 8 years to get the case to trial because the allegations were not even investigated until early 2010 and charges were not filed until October of 2011. During the more than three years that the case was pending, four of the original six defendants entered into “cooperative” plea agreements, by which they agreed to testify against the remaining defendants.

Among the prosecution witnesses were five convicted felons, including the four former co-defendants.  One of the highlights of the trial for the defense came during the testimony of one of these “cooperating witnesses”, who had to admit that my client was not the person he had thought the government investigators were referring to when they interviewed him and that he had never even met Miss Loudermilk. 

In my closing argument (which is reproduced below), I characterized the presentation of these witnesses as a “parade of the horribles”. In a discussion with the attorneys after the conclusion of the trial, a number of the jurors agreed, indicating that they had given little credence to the testimony of the convicted felons.

I also called the case the story of “Debbie and Goliath”, noting that it was investigated by the FBI and the IRS, and that the government was represented in court by three Assistant US Attorneys, a US Attorney’s paralegal and an IRS Special Agent.  Despite the government resources invested in the case, I characterized the investigation against my client as inadequate and a rush to judgment.  Among other things, I pointed out that the investigators failed to record interviews with the suspects and ignored exculpatory evidence provided by Loudermilk.

Unconvinced by the parade of witnesses and blizzard of exhibits (which included thousands of pages of documents), the jury took slightly more than one day to acquit my client of the two charges against her and Miss Marshall of the four charges against her.

During our post-trial discussion with the jurors, they said that they found the failure to record the interviews significant because my client testified that she did not make incriminating admissions described in the summary report prepared by the investigators and testified to in court by the IRS investigator. As a result, jurors indicated that they gave equal weight to the testimony of the investigator and Loudermilk, and therefore disregarded the purported admissions.

The jury foreman also indicated that the government had done a good job of proving the case against those who had already pled guilty, but that the investigation had “cast too wide a net” in ensnaring Loudermilk and Marshall, who were real estate agents in the six purchases at issue.

The case was charged as “mail fraud” because interstate mail services were used to send documents involved in the scheme, which was conceived and executed primarily by two of the co-defendants, Kadesta Harris and Temika Reed. The two received the bulk of the approximately $200,000 in “cash-back-to-buyers” payments that resulted from the six purchases.

Miss Loudermilk testified in her own defense, denying that she was aware that fraud was being committed or that she had any intent to defraud either the sellers or lenders involved in the two transactions in which she was served as an agent. Miss Marshall did not testify, but Mark Reichel in his argument contended that the evidence also failed to prove her participation in the scheme to defraud or that she had intended to defraud anyone.

In the end, the jurors agreed, concluding that the evidence did not show that either defendant had been a knowing participant in the scheme to defraud, that either had committed any act material to the fraud, or that either had exhibited any intent to defraud the lenders in these transactions.

The defeat was a rarity for the US Attorney’s Office, which routinely obtains convictions in nearly all of its cases. In 2014, the cases of 908 criminal defendants were concluded, with 902 of them being convicted, either through guilty pleas or jury verdicts. Only six were acquitted at trial.

It was also the first time in his 23 years on the federal bench that Judge Garland E. Burrell, Jr., had presided over a trial in which the defendants were acquitted.

The unusual acquittal was highlighted in some of the news coverage of the case, such as in the Sacramento Bee:

http://www.sacbee.com/news/local/crime/article16558673.html

After the trial, Summit Defense presented me with a plaque commemorating the win.

Summit Loudermilk Placque

Harris and Reed were finally sentenced just this month, with Harris getting 17 months in federal prison and Reed 13 months.

_____________________________________________

Webpage photo

Transcript of my closing argument in U.S. v. Loudermilk:Scan0030Scan0001Scan0002Scan0003Scan0004Scan0005Scan0006Scan0007Scan0008Scan0009Scan0010Scan0011

Scan0012Scan0013Scan0014Scan0015Scan0016Scan0017Scan0018Scan0019Scan0020Scan0021Scan0022Scan0023Scan0024Scan0025Scan0026Scan0027Scan0028Scan0031

Advertisements

I Side With … Libertarians


I took the “I Side With” political quiz again tonight:

https://www.isidewith.com/political-quiz

The quiz now includes Libertarian Party candidates and, unsurprisingly, I agree most with them … in fact, my three most agreed with candidates were all Libertarians … though I have to admit that I was somewhat surprised that my highest level of agreement — 90% — was with John McAfee, who I did not even know was running.

I Side With Candidates 160319

After McAfee were Gary Johnson 88% (I voted for him in 2012), Austin Peterson 84% and — finally a major party candidate — Bernie Sanders 73%. I was also somewhat surprised that my lowest level of agreement was with John Kasich 51%, who I consider the most palatable of the Republican candidates.

Next to lowest was with Donald Trump 58%, though I’m not sure how “I Side With” determines that, since Trump never says anything substantive about how he would accomplish any of his purported political objectives.

As far as parties are concerned, I agree most with the Libertarian Party at 85%, followed by the Green Party 67%, the Constitution Party 66%, and the Socialists 62%.  My lowest levels of agreement were with the Democrats 60% and … at the very bottom … the Republicans 53%.

I Side With Party 160319

The test also describes my overall political philosophy as moderately libertarian (and slightly left of center) and that among “political themes”, my most significant preferences are for Decentralization over Centralization … Multilateralism over Unilateralism … Isolationism over Imperialism … Laissez-faire over Keynesian … Capitalism over Socialism … and Pacifism over Militarism.

I Side With Political Themes 160319

The map showing “Support for My Political Beliefs” across the United States also shows quite clearly that I would not fit in very well in the Deep South … though that is not much of a surprise.

—–oooooOOOOOooooo—–
FLA 79

The False Equivalence Between Cars and Guns


A comment today about one of the suggestions being made by advocates of more stringent control of guns in the United States.Let's Treat Guns Like Cars

Simply put, the idea is that we should license gun owners the same way we license drivers of motor vehicles and that we should register guns the same way we register vehicles. The argument in favor of this suggestion is, essentially, that since it is acceptable that we register vehicles and license drivers for public safety, it should acceptable to register guns and license gun owners for public safety.

The comparison between cars and guns, however, exemplifies two forms of classic logical fallacy, false equivalence and false analogy.

The reason, of course, is that … despite the way the argument is put in the gun context … we do NOT register all cars … nor do we require all drivers to have licenses.

What? “Of course we do”, you say.

No, we don’t.

What we actually do is to require registration of all vehicles that are to be operated on public roads or in publically-owned off-road venues. And what we actually do is to require anyone who wants to drive on a public road or in a publically-owned off-road venue to have a driver’s license.

On the other hand, if a vehicle is not going to be operated on public roads or in a publically-owned off-road venue and is to be driven only on the owner’s private property, it does not have to be registered. In California, this is called “Planned Non-Operation” or “PNO”, which is described in this DMV online publication:

California Department of Motor Vehicleshttps://www.dmv.ca.gov/portal/dmv/detail/pubs/brochures/fast_facts/ffvr01/

It says:

PNO means that the vehicle will not be driven, towed, stored, or parked on public roads or highways for the entire registration year.

Similarly, any person who does not intend to operate a motor vehicle on a public highway or in publically-owned off-road venue is not required to have a drivers license. Individuals in California who do not have drivers licenses MAY (but are not required to) obtain a California ID card.

See this California DMV online publication for the ID card requirements:

California Department of Motor Vehicleshttps://www.dmv.ca.gov/portal/dmv/detail/idinfo/idcard

It describes the ID card as follows:

DMV issues ID cards to persons of any age. The ID card looks like a driver license, but is used for identification purposes only. A regular ID card is valid for six years, and a senior citizen ID card is valid for 10 years. To qualify for a senior citizen ID card, you must be age 62 or older.

In short, cars and guns are not equivalent; car owners and gun owners are not equivalent; and the analogy between cars and guns in this regard is false.

A true equivalence between cars and guns would be that the state should require anyone who wants to carry a gun in public to have a license … and that any gun which is going to be carried in public has to be registered.

On the other hand, if a person is going to own a gun, but will keep it only at home or otherwise only on his private property, there should be no requirement to either register the gun or have a license to own it.

THAT would be consistent with the way we treat motor vehicles and their drivers.

———-

For an interesting and entertaining alternative view of this issue, see the post “We Need to Regulate Cars the Way We Regulate Guns” on Mike Z. Williamson’s blog “The Sacred Cow Slaughterhouse”:

The Sacred Cow Slaughterhouse header

http://www.michaelzwilliamson.com/blog/index.php?itemid=227

This blog is interesting because it shows what we would have to do to buy cars if they were subject to all of the requirements already in place with respect to guns … and demonstrates quite clearly that the purchase and use of guns is already much more heavily-regulated than the purchase and operation of cars.

—–oooooOOOOOooooo—–

FLA 78