Wal-Mart Embezzelment Sentence too light?

August 31, 2007

It’s not too often an appellate court finds a criminal sentence too light. Usually, the appeals courts focus on technicalities of procedure and evidence, and occasionally find a sentence too harsh. But The 8th Circuit United States Court of Appeals found the sentence handed out to ex-Wal-Mart executive Thomas Coughlin too lenient.

Coughlin had gotten a sentence of home detention and probation even though Wal-Mart estimated the loss he caused them at $500,000. Coughlin pled guilty and admitted to embezzling cash, gift cards and merchandise from Wal-Mart stores. He had worked there for 28 years as a protege of founder, Sam Walton, and was the number two executive at Wal-Mart before he retired in 2005.

For his wire fraud and tax evasion charges, Coughlin was facing up to 28 years in prison and fines of $1.3 million. But the U.S. District Judge gave Coughlin only 27 months of home detention and 33 months of probation with a fine of $50,000 and $400,000 of restitution to repay Wal-Mart.

The appeals court found Coughlin’s sentence did not justify such a departure from the norm, departing downward eight levels in the sentencing guidelines. The dissenting appellate judge, however, agreed with the sentencing district judge that Coughlin suffered from extraordinary health problems, including heart failure, obesity, diabetes, and gout, which might not receive adequate treatment in prison.

The appellate decision directed the sentencing judge to give Coughlin another sentence, but the appellate decision was a split decision by a small panel of judges, so Coughlin could now seek a rehearing before the full nine-judge panel or the full Circuit Court to ask reinstatement of his original sentence.

Meanwhile, Wal-Mart is still trying to break two retirement contracts with Coughlin, one for $12 million and the other for $15 million. Apparently, these were not sweet enough to deter Coughlin from dipping further into the Wal-Mart honey pot.

I’m sure my clients would join me in my amazement that someone with those kind of resources would feel the need to embezzle $500,000 when he expected to receive $28 million from that same source. This light sentence also shows that justice is not always equal, which further emphasizes the need for the best criminal defense possible for people who don’t fall into the category of the ultra wealthy.

Dog Fighting Prosecution of Michael Vick, Star Quarterback

August 20, 2007

Michael Vick, the star quarterback of the Atlanta Falcons professional football team, has reportedly decided to plead guilty to federal charges filed against him. Vick was accused of running a dog-fighting gambling operation.

Reportedly, Vick will accept a plea bargain which will result in his spending about a year behind bars. For a few weeks, while the charges were pending, Vick was silent. The public could watch the federal government build the pressure on Vick to plead guilty.

However, a month ago, one of Vick’s co-defendants in the case had entered a guilty plea and, in order to obtain leniency in his own sentence, promised to assist federal prosecutors in their case against Vick. Then, two more of the Vick’s fellow defendants in the case entered guilty pleas, both of them also agreeing to testify on behalf of the United States Government against Vick.

The fact that investigators had discovered extensive dog kennels and arguably other evidence of dog fighting on Vick’s private property was not a good start for Vick. There was likely other evidence, but then to have three of your fellows line to testify against you was typical of the pressure the federal government puts on those it accuses of crimes.

To up the ante further, the federal government was threatening to file a superceding indictment against Vick if he did not plead guilty by last Friday. That superceding indictment was supposed to accuse him of running a criminal enterprise, accusing Vick of a violation of R.I.C.O. (Racketeer Influenced Corrupt Organizations Act), so the five year maximum sentence Vick now faces would have been considerably increased, making the plea bargain much more appealing than his other alternatives.

R.I.C.O. (as many are probably wondering what that is) was enacted by Congress to go after organized crime, the Mafia. But once on the books, as usual, federal prosecutors got creative. They have used the law whenever they can, and often file or threaten to file it in order to bring pressure on any accused to plead guilty to lesser charges.

The Gambling Referee and Double Jeopardy

August 19, 2007

Now that he has pled guilty, it is no longer an allegation. Tim Donaghy admitted to gambling and helping others gamble in the National Basketball Association games which he officiated as a referee. Donaghy’s $260,000 annual salary had no effect on his reported compulsive gambling habit. This has been a huge embarrassment for the NBA and its head man, David Stearn. Stearn and the players’ union have been handling the embarrassment to the league by saying that this referee is an aberration, just one guy who was acting on his own.

Now that he has pled guilty, the news has leaked that the federal prosecutors have done their usual deal. Part and parcel of pleading guilty, especially in federal court, is implicating all others who might be involved. Now the news has leaked that Donaghy has information about the gambling habits of 20 other referees. If this number is anywhere close to accurate, and if the other referees were truly involved in gambling, this is a disaster for the National Basketball Association.

Even if there is no hard evidence that many of the other referees did not try to “fix” the games they called, it would call into question too many things. Twenty referees is about one third of the entire officiating staff for the NBA. If a significant number of these were gambling even on things other than the basketball games in which they were involved or things other than basketball, the problem is nevertheless huge. There is a reason those referees are restricted from any gambling in casinos.

But Tim Donaghy will do whatever it takes to please the prosecutors, because “cooperation” appears to be the only way to lessen his sentence from a possible 25-year maximum. And one may assume he expected to do just that -lessen his sentence – by pleading guilty. Now that Maricopa County, Arizona, prosecutor, Andrew Thomas, has indicated he is considering prosecuting Donaghy in state court, however, Donaghy has probably had a long talk with his lawyer. After his lawyer explained that “double jeopardy” does not save you from being prosecuted for the same acts in both federal and state court. So, Donaghy has a new threat and the possibility of an increased, not lessened, sentence. Just how serious that threat is not clear at this time. Donaghy may not end up with a greater sentence, but you can bet that he considers it a real threat at this time.

Double jeopardy is prohibited by the Fifth Amendment to the Constitution. This provision makes it impossible for a person to be put on trial (to be in “jeopardy”) more than once for the same offense by the sovereign. But the federal government and the fifty states of the union are each separate sovereigns. Therefore, being tried by one sovereign does not prevent the other sovereign government (federal or state) from prosecuting for the same act or series of acts that violate both state and federal laws. Plural state governments could get into the act, depending on where the offending acts take place.

DUI Law Changes – The new 10 Year Revocation Period

August 13, 2007

A new law will into effect in Oklahoma in a couple of months. A first-offense violation of “drunk driving” results in a 6-month revocation of a person’s driver’s license. However, this revocation can be “modified” to allow a first-time offender to drive during that 6 month’s period of revocation so long as the driver is operating a vehicle with a Safety Interlock device, commonly referred to as a “breathalyzer”, installed on the vehicle. This device requires the driver to breathe into a tube to provide the machine an alcohol-free breath sample before the car will start.

An alcohol offense or “drunk driving” offense that would trigger such a 6-month’s revocation is either (a) a conviction for Driving or Being in Actual Control of a Motor Vehicle While Under the Influence of Alcohol (or Drugs) or (b) a breath or blood test result from the driver with is at or above the 0.08% level of Blood Alcohol Concentration .

So much for the first time offender. Second offense revocation does not allow any modification of the revocation, and it is for one year, not 6 months. But, until recently, the second offense had to occur within five years of the first offense to qualify as a second offense. Now, the new law will extend that period of time within which a second offense will trigger the No Modification rule to Ten Years. Any second offense within 10 years of the first offense will take the driver’s license for one year, and will allow no modification to permit driving with the Safety Interlock System in the vehicle.

Does this new law with 5 additional years really discourage illegal drinking and driving? How many drivers know about it when they take the wheel of a car?

And, if such revocation without any modification for one year means a driver will be without a job, will the law really keep the driver from driving anyway? The law can dictate a driver “get another job” that does not require driving, but is that a reality in Oklahoma, which has absolutely no public transportation available?

Wouldn’t it be better to offer such drivers the option of driving lawfully for the year so long as their alcohol intake is regulated by the Safety Interlock System in their car rather than to make them take the choice of not driving at all or instead simply ignore the whole system and take their chances of getting caught driving illegally?

Again, this new law is a reminder of how important it is for anyone who is charged with a DUI to find out how to protect their future. That’s why you should seek out education about how the process works and how to make the best informed decisions….. which is why I urge anyone in that situation to go to my website at http://www.edmondgeary.com and order my “Ultimate Protect Your Freedom” Kit.

DUI and Drug Possession Arrest for Lindsay Lohan Brings Up Questions About Monitoring Device

August 7, 2007

Too much time is spent by television cameras and their audiences concerning themselves with the lives of movie stars. But a recent incident with Lindsay Lohan raised an issue that can affect my clients. She had a bracelet attached to her leg that is supposed to signal any alcohol in her body. Yet she was reported to be leaving alcohol rehab and returning directly to her party routine and got arrested again for Driving Under the Influence of Alcohol in Santa Monica, California. No mention, no repercussions are apparent from this on her alcohol bracelet. And that could be a problem.

The SCRAM (Secure Continuous Remote Alcohol Monitor) alcohol-monitoring device is scientifically designed to signal alcohol in a person’s body. It will signal at approximately the level of 0.02% BAC. This wonderful instrument is sometimes, rarely, accepted by the prosecution instead of jail time. Therefore, we want this instrument to work. We want this science to succeed, because the alternative is time behind bars. We do not want incidents of the bracelet not working or apparently not working.

Why did the SCRAM not signal Lindsay Lohan’s recent [reported] use of alcohol? It may have worked after all. It depends on who received the signal, if any, that Lindsay Lohan was drinking alcohol. Ordinarily, the SCRAM bracelet is set up to signal law enforcement or probationary authorities that the subject is signally positive for alcohol. But in this case, Lindsay Lohan put on the bracelet voluntarily, so she could have set the signal for any alcohol detection to be transmitted to her lawyer, her boyfriend, or to a vacant lot.

The SCRAM makers claim that 40,000 Americans have used it since it was released on the market in 2003. The ankle bracelet is designed to take an air sample at least every hour, to collect the data, and then to transmit the data over a hard wire telephone line for analysis. The manufacturer claims it is the same technology as the Breathalyzer.

Since the bracelet is designed to read the person’s sweat for alcohol, some people claim to have out-smarted the bracelet by putting it under water or putting a piece of baloney between the bracelet and the person’s ankle. The manufacturers of the SCRAM respond that they will eventually catch anyone who tries to cheat the device.

Considering the present overflowing jail population as well as the dubious long-term value of incarceration in many kinds of cases, an option like this ankle bracelet is a valuable contribution to the arsenal of alternatives available to a criminal defense lawyer and his clients. More choices are better, more choices that the courts and prosecution will accept are better.