Georgia Criminal Defense Lawyer Blog

Yesterday, we were able to successfully resolve a federal criminal case for our client in Atlanta. He had initially been threatened with prosecution for false statements and violations of federal law governing the importation of endangered species for his involvement in assisting a Texas hunter and South African safari operator get a leopard skin into the United States.

The Atlanta Journal Constitution reported the case, based on a press release issued by the United States Attorney's Office in Atlanta.

Although our client was facing the possibility of being charged with more serious offenses (felony charges with possible prison time), we were able to resolve the case for a plea to a misdemeanor, 12 months of probation and a fine. Read the misdemeanor sentence here

Although Endangered Species Act cases are not a large part of our practice, federal law enforcement agents from the Fish and Wildlife Service expect the number of these cases to increase in Atlanta.

Because there are very few Atlanta criminal defense lawyers experienced in fish and wildlife prosecutions, we will follow these cases and watch for any developments in the law.

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Posted In: Federal Criminal Law

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William "Bill" McArthur III, a South Georgia doctor, recently pleaded guilty to violating federal drug laws as a result of his involvement in an internet pharmacy. The Macon Telegraph has the story.

Apparently, the doctor agreed to prescribe medication to patients who submitted orders via the internet or by telephone. The doctor, his father and another physician operated a "call center" in Mississippi where the orders were filled. Several discount pharmacies were also involved.

This is not the first time an internet pharmacy operation has been charged with violating federal drug laws. Our firm is currently representing a physician charged with approving certain low-level prescription drugs after reviewing and evaluating medical information submitted by patients through the internet. In our case, the government contends that doctors cannot approve any sort of controlled substance without a face-to-face physical examination of the patient. We disagree, and the case remains pending in federal court in Atlanta.

These cases can be difficult to defend because many doctors would say that the best way to determine if a patient should received a certain medication is to conduct a physical examination of that patient. The government usually calls these doctors to testify as experts in the "legitimate practice of medicine."

The problem with the government's theory is that it ignores reality (many people receive prescription drugs from nurses and p.a.'s without ever seeing a doctor), and it assumes that a doctor cannot get the medical information he or she needs online. That is especially true when the drugs are pills like Viagra and weight loss medications. Just because it's not the best way to practice medicine doesn't mean it's a federal crime.

It looks like internet medicine cases will continue to be charged as computer crimes and/or federal drug crimes, and lawyers will continue to litigate them because there is so much money involved. In the South Georgia case, the government alleges that the business generated approximately $1.8 million.

Maybe if they had not been so successful they could have stayed under the radar. Now, the doctor is facing the loss of his ability to practice medicine, a hefty fine and up to five years in federal prison.

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Posted In: Federal Criminal Law

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Looks like T.I. won't have to stay at home this Easter. This week, a federal magistrate judge in Atlanta agreed to modify T.I.'s bond to allow him to attend Easter Sunday services at the Georgia Dome. The Atlanta Journal Constitution has the story on T.I.'s bond modification.

It's not unusual for a defendant to get court permission to leave his home or travel outside the district while the case is still pending. In the Northern District of Georgia, and most other federal judicial districts, bonds usually have conditions that restrict a defendant's travel to the district where the case is pending. (Some defendants are detained without bond at all. In fact, in most major drug and firearm cases in federal court in Atlanta defendants are held in pretrial custody until the case is resolved.)

No word yet on a trial date for T.I. because the case has not yet been "certified ready for trial" by the magistrate judge. There is still a motion to suppress evidence pending that will have to be heard and ruled on before the case can proceed. T.I.'s Atlanta criminal defense lawyers have challenged the search of T.I.'s vehicle and residence and are trying to keep the guns that were found out of the case. If they are successful, it probably won't end the case because there are still cooperating witnesses who are expected to testify that T.I. was involved in unlawful gun purchases. But the suppression of the guns will make the case a whole lot more difficult for the government to prove.

I expect the hearing on the lawyers' motion will take place soon. After the hearing, the attorneys will probably file another legal brief with their arguments to suppress the evidence. The magistrate judge will then review their arguments and make a recommendation to the district court that the motion should be granted or denied. After the district court makes the final determination, the case can be set down for trial.

Although there is a speedy trial act in federal court, it usually doesn't mean much. Cases are supposed to be tried within 70 days after arraignment, but any pending motion will toll the time and keep the clock running. That's why cases often take a year or longer to get to trial in federal court, at least in Atlanta.

I doubt this case will last more than a year, but I don't expect the case to be resolved until late summer at the earliest. With or without the guns, it should be an interesting trial.

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Posted In: Federal Criminal Law , Firearm Offenses

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Georgia State Rep.Ron Sailor, Jr. pleaded guilty this week to federal money laundering charges in Atlanta. All the local news media covered the story. (The picture on the left is Sailor and his Atlanta criminal defense lawyer Bruce Maloy.) Bill Rankin provides a good summary of the investigation and the plea in the Atlanta Journal Constitution.

Now we know why Sailor has missed so many votes in the Georgia General Assembly - the government told him to. Federal prosecutors apparently instructed Sailor not to vote during the time he was cooperating with the government to avoid any appearance that the feds (a Republican controlled Justice Department) were telling Sailor how to vote. I am not sure how his constituents feel about that, or how silencing a reliable Democratic vote may have affected pending legislation. Because Sailor had not entered a guilty plea until this week, he would not have been prevented from holding his seat and voting on legislation. Interesting issue, but unlikely to get any attention. Another interesting issue is why Sailor was approached by this undercover agent. What led them to Sailor? Was it another cooperating witness? Or, did they just chose him at random?

U.S. Attorney David Nahmias told reporters that Sailor has been cooperating with law enforcement in an ongoing investigation into public corruption in Georgia. Apparently, he's been cooperating for several months while his arrest was kept under seal. Nahmias described Sailor's cooperation as "useful." Anyone who follows Georgia politics would not be surprised if there are additional legislators under investigation for violating various federal laws. The dome may be gold, but it's certainly not pure.

As with most plea agreements in federal court, Sailor is not guaranteed any specific sentence. The amount of time he will have to spend in federal custody will be determined by the judge after a Presentence Investigation Report is prepared by the U.S. Probation Office. The judge will consider the federal sentencing guidelines, but ultimately make his decision based on the sentencing factors set forth in the federal criminal code (18 U.S.C. 3553).

I am sure Sailor and his defense attorneys are hoping that the government will reward him for his cooperation by filing a "5K" motion before he is sentenced. "5K" refers to a section in the federal sentencing guidelines that rewards a defendant with a possible reduction in his sentence for providing "substantial assistance" to the government. Whether the defendant has provided "substantial assistance" is always up to the government. If a "5K" motion is filed, the judge can disregard any mandatory minimums and impose a reasonable sentence. That usually means the defendant will get less time. Although the government attorney usually makes a recommendation, the amount of the reduction is ultimately up to the judge.

Now that Sailor's plea is public, we should soon see if his cooperation results in any arrests. I expect the feds will likely wait until after the legislative session if they intend to charge any other state representative. But after March, who knows...

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Posted In: Federal Criminal Law , Public Corruption

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In Atlanta, Georgia, two TSA security screeners and one Delta Airlines employee appeared in federal court yesterday after being indicted on drug charges. The charges are based on their alleged involvement in agreeing to help courier drugs on Delta flights from Atlanta to New York. The arrests, and the recent indictment, are the result of a undercover investigation by federal agents in Atlanta.

The Atlanta Journal Constitution has the story. So does the Atlanta Business Chronicle. The arraignment was also covered by the local Atlanta tv news media.

It appears the charges relate to an undercover operation by the DEA. A DEA agent convinced a TSA employee to help smuggle suitcases containing drugs through the security checkpoints and deliver them to a Delta employee. The Delta employee would then fly the suitcases to the undercover source in New York. The DEA apparently used fake drugs in the sting. According to the criminal complaint, the price for the delivery was $8,000 for two suitcases in the first deal. There were apparently two other transactions with the same DEA agent.

Apparently, this is not the first time Delta employees have been charged with smuggling drugs. Here is a story from the New York Times in 1997.

These are serious charges in federal court. Depending on the quantity of drugs involved, there may be mandatory minimum penalties of 10 years and up. Heavy fines are also a possibility. Losing their jobs is almost a certainty.

Defense lawyers for the defendants were able to secure bond for the three, and they are likely out of jail now and awaiting another court date. In federal court, at least in Atlanta, there is usually a pretrial conference shortly after the arraignment to determine if there are any substantive motions that need to be heard prior to trial. It is also a good opportunity for the defense attorneys to make sure they have all the evidence and other discovery materials that the government must provide pursuant to the federal criminal rules.

The fact that the government did not ask for detention for these defendants suggests that case may be resolved for something less than the mandatory minimum sentences. That usually happens only when the defendants cooperate with the government, or when they have no prior convictions and qualify for "safety valve" treatment under the federal sentencing guidelines.

Of course, that all assumes that the government can prove its case. As we have learned in several other federal cases, the facts are not always as they appear from reading a criminal complaint. But those facts do make interesting headlines. And blog topics.

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Posted In: Drug Crimes , Federal Criminal Law

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Our law firm was retained last week to represent one of the U.S. Army Rangers in a federal criminal case currently pending in Atlanta, Georgia. The arrest of these soldiers was widely covered by the Atlanta and national media. Here is the story from CNN.

We have not been in the case for very long, so it wouldn't make sense to comment on the facts. But from what we've read in the press and public court records, it appears that the ATF (Bureau of Alcohol Tobacco and Firearms) set these soldiers up to commit a crime that the soldiers would never have even imagined had the ATF not been involved. The ATF came up with the idea, and then actively recruited people to join in. Apparently, the ATF did not initially succeed in convincing anyone to do this, so they kept on trying.

There is no dispute that these soldiers all have honorable service records. Our client has absolutely no criminal record, and has served several combat tours. He is well-liked, respected and valued by his fellow soldiers and superior officers. Everyone who knows him has a very hard time believing he would be involved in something like this. So do we.

The charges are very serious - drug conspiracy and firearm offenses that carry mandatory minimum sentences of 15 years and up. But it appears to be a very defensible case from what we know, especially in regards to our client's alleged involvement.

The other soldiers are also represented by capable federal criminal lawyers and well-regarded Atlanta defense attorneys. We are pleased that everyone involved in this case will be defended by an experienced federal lawyer. It is incredibly important to know both the federal rules and the federal sentencing guidelines when defending federal drug and firearms charges. All the defense lawyers in this case have certainly been around the block, and we feel sure they will represent their clients well.

This should be an interesting case, but our ability to cover it in this blog will be limited since we are directly involved. But I expect the Atlanta media will be following any major developments. So stayed tuned.

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Posted In: Federal Criminal Law , Firearm Offenses

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The Federal Bureau of Investigation announced this week that it is investigating 14 companies for their involvement in the subprime mortgage business. CNN has the story.

The companies were not named, but the companies that have been targeted certainly know it by now. As in most fraud investigations, the FBI is looking into over-valued assets and false documentation. Executives with these companies may have also been involved with insider trading (selling company stock on non-public information before the problems in their asset portfolios became obvious).

The FBI claims that they are on track to receive 60,000 reports of suspicious activity in connection with mortgage transactions, a huge jump from a few years ago.

It's no secret that Atlanta, and other parts of Georgia, have been hit hard with mortgage fraud. The real question is where to place the blame. We have represented all types of people in mortgage fraud investigations and prosecutions - from the "straw-buyers" to the closing attorneys, and everyone else in between. (See my earlier post on our appraiser client, and my earlier post on the dynamics of mortgage fraud prosecutions.)

I have often said that there would have been no fraud had the lenders not been so greedy. They were out to close as many loans as possible and it became a free-for-all. Of course people took advantage of the "no doc" loans, and the "wink, wink" advice from their brokers to fudge the paperwork. But lenders approved some pretty sorry loans, and they knew it. It should come as no surprise that many of these loans are going into default.

Writing off a bad loan is one thing, but appearing in front of a federal judge in a criminal case is a whole other ballgame. I don't know if the feds will start naming some corporate defendants in these cases, but it would be nice if they didn't always just go after the little guys.

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Posted In: Federal Criminal Law

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I don't have a blog category for "I can't believe he said that," but if I did, this would top the list. For reasons that are known only to him, Judge Fuller agreed to be interviewed by The New Yorker Magazine about the Brian Nichols death penalty case currently (indefinitely?) pending in Atlanta, Georgia. Just so I don't get it wrong, here's the quote:

If the case ever gets to trial, the defense will offer an even more contentious argument: that Nichols, who has pled not guilty, acted out of a “delusional compulsion” (a version of the insanity defense allowed under Georgia law). “That’s their only defense, because everyone in the world knows he did it,” Judge Fuller told me.

I'm not saying he's wrong. No sane person doubts Nichols' guilt. But the real question is why in the world would he publicly say this when the case is still pending in his court? Why did he agree to an interview at all? Didn't he put a gag order on everyone involved in the case? Doesn't that also apply to him? I really don't get it. Maybe it's an intentional move to get off the case. But why not simply recuse himself without all the fuss and delay? As much as I would like to explain his comment, or offer some insight, I just don't get it.

The Atlanta Journal Constitution helped spread the news in Atlanta, and included some additional commentary from local criminal defense lawyers in Atlanta. The consensus is that Judge Fuller's comment may violate the judicial cannon of ethics. It will certainly provide fodder to members of the Georgia General Assembly who want to get him off this case. The Assembly is currently in session in Atlanta.

I was also interviewed about Judge Fuller's comment on Atlanta's local National Public Radio affiliate, WABE FM 90.1.

I expect we will soon see another motion to recuse, but I'm not sure who will file it. His comment obviously prejudices the defense, but the D.A. has not been shy about expressing his desire to remove Fuller from this case. Perhaps we'll see a joint motion to recuse, which the judge may reluctantly grant. This may be the only time the prosecutors and defense lawyers actually agree about something in this screwed up case.

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Posted In: Federal Criminal Law

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It's not breaking news that there have been a lot of federal mortgage fraud prosecutions in Atlanta. One of the biggest cases is finally finishing up. Several of the last remaining defendants in the Phillip Hill case will be sentenced soon. We represented one of the appraisers in this case who agreed to cooperate with the government. His story was recently covered by Bloomberg News.

I discussed these cases in an earlier post on mortgage fraud in federal court. It's always been my opinion that the lenders share some responsibility for the fraud. Most "white collar" crimes (actually, most all crimes) are crimes of opportunity. When you have lenders throwing money around, it's not difficult to find people who will willingly take it. Especially people who are not worried about ever paying it back. It's only when the loans stopped performing that the lenders screamed "fraud!"

We have represented appraisers, mortgage brokers, real estate agents, investors and even closing attorneys in mortgage fraud cases in Georgia and several other states. There were also some "strawbuyers" who we defended. Fortunately, we kept most of them from being prosecuted because the "strawbuyers" are often just as much the victims as the lenders. The "strawbuyers" usually end up holding the bag and stuck with ridiculous mortgages they could not afford. Their savings were lost, and their credit ratings ruined.

For a while, we were handling so many of these cases and related investigations that I thought mortgage fraud was going to consume our practice. But I think we've seen the high-water mark for these cases. I don't expect to see this much mortgage fraud in the future, now that money is tighter and the lenders are finally becoming a little more diligent.

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Posted In: Federal Criminal Law

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Not that this is surprising news, but a "reliable" confidential drug informant pleaded guilty today in federal court in Atlanta, Georgia to lying to federal drug agents about drug deals. The Atlanta Journal Constitution has the story.

Any defense lawyer who has tried a drug case in federal court can tell you about snitches. In virtually every federal drug case (especially those involving drug conspiracy charges), the government will call informants to testify. Sometimes the informants are paid by the government, sometimes they are trying to avoid being charged by cooperating. The most common type of informant, however, is the co-defendant who has already pleaded guilty and is hoping for a reduction in his sentence pursuant to Section 5K1.1 of the federal sentencing guidelines.

Defendants who are facing time for federal drug charges have a strong motivation to do whatever the government asks them to do. It is one of only two ways to avoid a draconian mandatory minimum sentence; and it is the only way to avoid a mandatory minimum if the person already has a record.

The problem is that informants in drug cases are generally not the most credible people to begin with (most have long criminal records). When these informants are offered the chance to cut their sentence by several years for "cooperating," you often end up with some highly dubious testimony, and more often than not, some questionable convictions.

There is no way to tell how many people have been convicted based on informants who have lied. Our firm is often asked to handle federal criminal appeals where the person was convicted of federal drug charges based solely on informant and co-defendant testimony. Unfortunately, the defense lawyer who tried the case could only try to impeach the informant with his criminal record and his plea deal with the government. It is very difficult to prove that an informant is actually lying unless the defense lawyer has access to the same information the government has. But that doesn't happen in federal court.

There is some good news. I tried a federal drug case recently where the government's evidence against my client was based almost entirely on the testimony of five informants who were given deals to testify. Despite the testimony of these five witnesses, the jury did not convict my client. Several of the jurors told me afterwards that they did not believe the informants. They said they placed very little weight on their testimony because they thought the informants had a strong motivation to lie. I was pleased to hear that, and I've been told by other federal criminal lawyers that they have heard the same thing from their jurors.

But the best way to stop informants from lying is to stop rewarding them for it and start prosecuting them. Maybe the prosecution of this informant in Atlanta will be the first of many. I know there is no shortage of lying informants out there if the government wants to pursue them.

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Posted In: Drug Crimes , Federal Criminal Law

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Looks like we can finally close the book on this case. At least in federal court.

Yesterday, Michael Vick was sentenced to serve 23 months for his role in the dogfighting operation known as Bad Newz Kennels. ESPN and virtually every other news outlet in the U.S. covered the sentencing.

Vick and his lawyers were probably a little surprised by the length of the sentence because the judge did not go along with the original plea agreement Vick had with the government. That agreement called for a sentencing guideline range of 12 to 18 months. The judge found that Vick had not "accepted responsibility" for his conduct so he did not give Vick the 2-level reduction that would have applied. That put Vick's guideline range at 18 to 24 months, and the judge went with the higher end of that range. The minute sheet explaining the sentence was filed with the court later that day.

There is no parole in the federal system, but 23 months doesn't usually mean 23 months in custody. If Vick does his time without any problems, he should receive "good time credit" and get a 15% reduction in his sentence. That would get Vick home sometime in May 2009.

The judge said that he denied Vick credit for acceptance of responsibility because Vick made false statements about his drug use while on bond, and he minimized his role in executing some of his dogs. A judge has a lot of discretion under the sentencing guidelines in awarding credit for acceptance of responsibility. Most federal judges would have taken away acceptance of responsibility credit when Vick failed his drug test. All of the other things Vick did - apologies, early surrender, etc. did not seem to make a difference with this judge.

Of course, there's still the state indictment. I expect Vick's lawyers are now trying to resolve that case with a plea to concurrent time so that Vick will not be facing time in state custody once he is finished with his federal sentence. That may be the best his lawyers can do for him given the circumstances of this case.

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Posted In: Federal Criminal Law

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The U.S. Attorney's office in Atlanta indicted 88 individuals who are alleged to be connected to two major drug cartels in Mexico. According to the Atlanta Journal-Constitution, the federal government's investigation in this case, which involved law enforcement officers from 300 agencies, led to the seizure of $10 million in cash, 111 kilograms of cocaine, 17 pounds of crystal methamphetamine, and 32 weapons.

The Drug Enforcement Administration (DEA) alleges that the currency was headed back to Mexico and the packaging of the drugs revealed unique markings indicating that they originated with the Mexican drug cartels.

The DEA has spent much of its resources over the past several years targeting Mexican drug trafficking organizations and considers the recent indictments a major blow to their alleged movement of drugs through Atlanta. Atlanta has become a major hub for drug trafficking in recent years.

Our firm has handled several recent federal cases involving alleged Mexican drug trafficking organizations in Atlanta, several of those cases involved literally truckloads of drugs and millions of dollars in seized cash. In these cases, the government sought to tender their DEA agents as "experts" in the field of Mexican drug trafficking organizations. The agents would then testify that the seemingly innocent conduct that our clients had engaged in was consistent with what their investigations had revealed were the practices employed by Mexican drug trafficking organizations. We have vigorously fought for the exclusion of this sort of testimony on the grounds that the agents were not "experts" in this field and that they could never prove that they ever reliably determined just how Mexican drug trafficking organizations did, in fact, operate. Moreover, the government has never been able to prove that "Mexican" drug trafficking organizations actually behave any different than those of other nationalities.

Many Georgia criminal defense attorneys have been critical of this "expert testimony" believing that it is nothing more than a ploy to allow the agents to tell the jury "trust us, we know these guys are drug dealers." This type of testimony has been offered in several cases where there was no other evidence at trial that the defendants had possessed or distributed drugs.

With the wealth of information that these recent indictments should reveal about Mexican drug trafficking organizations, we'll see whether these agents really knew what they were talking about.

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Posted In: Drug Crimes , Federal Criminal Law

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Earlier today, Magistrate Judge Baverman agreed to allow T.I. (Clifford Harris, Jr.) to post bond while facing federal criminal charges in Atlanta. Last week, T.I.'s defense lawyers asked the judge for a multi-million dollar bond with home detention and close supervision (read the post from last week). Today, the judge granted the request and set T.I.'s bond at $3 million with some extraordinary restrictions and conditions, including no visitors after 8 p.m. and no alcohol at all. Visitors are limited to 3 at a time and only during "visiting hours." They must also pass a criminal background check. The Atlanta Journal Constitution has the details.

Now that he's out, the next step for T.I. and his lawyers will be a review of all evidence relating to the case. By now, the government should have already provided the lawyers with discovery materials pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Rule 16 materials usually include any statements of the defendant, copies of relevant documents and access to any physical evidence for inspection and examination. I am sure that the defense lawyers will also conduct their own investigation of the government's potential witnesses and informants. If there are audio or video recorded conversations between the informants and T.I., copies will be provided to the defense team.

If the case goes to trial, the defense lawyers will be provided with any prior statements made by the witnesses against T.I. and any related impeachment material (usually plea deals and special consideration provided by the government to their informants and witnesses). The local practice is for the government to dump all this information on the defense the Friday before a Monday trial.

When would the case go to trial? If there is no deal, the trial is supposed to start within 70 days. But there are almost always delays. Usually, the delays are the result of motions hearings and other pretrial procedures.

This case is expected to be a "short case", but the government has already indicated a possibility of additional charges. If so, it looks like a long and difficult ride for T.I. At least he will be at home while the case is pending. It certainly beats a Union City jail cell.

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Posted In: Federal Criminal Law , Firearm Offenses

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Rapper T.I. was arrested this weekend in Atlanta, Georgia on federal firearm charges. He was in Atlanta to collect a handful of awards at the BET Hip-Hop award show. Instead, he spent the weekend at the federal detention center awaiting his initial appearance this afternoon.

This afternoon, Magistrate Judge Alan Baverman informed T.I. about the charges he is facing, and ordered him held in custody pending a detention hearing on Friday. The story was reported in the Atlanta Journal Constitution about an hour ago. The affidavit supporting the criminal complaint can be found online. There is also a good description of the type of machine guns involved.

Many people are asking what will happen next. In federal court, the procedures are fairly straight-forward. At the initial appearance this afternoon, the government filed a motion for detention arguing that T.I. should be held without bond pending trial. That's not unusual in this district and probably has less to do with T.I.'s celebrity than with his prior felony drug record. I doubt there will be any strong evidence that T.I. is a flight risk, but the government may try to argue that he is a "danger to the community" given his criminal record and the nature of the new charges.

At the detention hearing (scheduled for this Friday) Judge Baverman will decide whether T.I. will be held in custody or released on bond. If he is released, the judge may impose certain conditions like electronic monitoring, curfews and travel restrictions. The judge may also set a high bond considering T.I.'s financial resources. If the judge denies bond, T.I. and his defense lawyers will be able to appeal that ruling to a district court judge.

Regardless of the outcome of the detention hearing, there will also be a preliminary hearing on Friday. Because T.I. was arrested on a criminal complaint he is entitled to a hearing to determine if there was probable cause to arrest him. It is rare for a complaint to be dismissed at such a hearing, but it is legally possible.

The government will then have 30 days to indict the case. If T.I. is indicted, he will be brought back to court for an arraignment. At that time, the case will be assigned to a new judge and motions will be filed. A trial date will be set sometime later, unless there is a plea.

I have defended many people charged with firearm offenses in this district, and we won a machine gun trial last year. Gun cases, however, are difficult to win at the federal level because the government need only prove that the person has a current felony conviction and had "possession" of a firearm that has "affected interstate commerce" at some time.

Fortunately for T.I., he has hired two very experienced and effective federal defense attorneys. And, of course, he's innocent until proven guilty beyond a reasonable doubt.

But no matter what happens on Friday, I am sure T.I.'s weekend in Atlanta was not at all what he had planned.

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Posted In: Federal Criminal Law , Firearm Offenses

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The U.S. Attorney's Office in Atlanta, Georgia confirmed today that Dr. Phil Astin will likely face additional criminal charges in federal court for over-prescribing testosterone to Chris Benoit, the pro wrestler who killed himself, his wife and young son earlier this year in Fayetteville, Georgia.

The Atlanta Journal Constitution has the details.

Dr. Astin was already under a federal indictment due to an alleged "excessive" number of prescriptions he wrote while practicing medicine in Carrollton, Georgia. The criminal case is currently pending in federal court. Dr. Astin's former defense lawyer had challenged the basis for the search warrant that led to the seizure of his file and patient records. No word on when the court will rule on that challenge. (Usually, it takes several months. First, the magistrate judge issues a "report and recommendation" that goes to the district judge. That judge then evaluates the report and makes the final decision.)

This is not the first time federal prosecutors in Atlanta have challenged a physician's decision about prescribing medications. I am currently representing a well-respected physician who is being charged with authorizing certain medications to be prescribed over the internet for patients with obesity problems or erectile dysfunction. That case is scheduled to go to trial in December. The government's theory is that the doctors (there are several being charged) should not have authorized medications to people based on medical histories and other information they provided over the internet. At the time, however, there were no federal laws preventing such prescriptions, and the American Medical Association had not yet developed a position on that practice. Our position is that a doctor should not be held criminally liable for what is basically a medical decision. We'll see what happens in December.

As for Dr. Astin, I am not representing him, so I do not know all the facts of his case. To me, it appears that the government is trying to do the same thing to him - turn some questionable medical decisions into federal crimes. Not sure how his case will turn out, but it may set a precedent for prosecuting doctors for being negligent in their practice. Being negligent used to mean a trip to the state medical board, now it may mean a trip to the pokey.

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Posted In: Drug Crimes , Federal Criminal Law

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