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Friday, September 17, 2021

Receiving a grand jury subpoena can be a stressful and worrisome time. It basically means that the government believes that you are involved in a federal offense or believes that you have material information about a federal offense.

In addition to understanding what the grand jury subpoena is requesting of you, you should also be aware of the applicable privileges and constitutional protections under the law and U.S. Constitution.

This article, drafted by the federal defense attorneys at Oberheiden, P.C., explains grand jury subpoenas; the difference between witness, subject, and target; what it is like to testify before the grand jury; bill versus true bill meanings; and, most importantly, how a defense attorney can guide you through this federal process.

The grand jury subpoena is a powerful investigative tool of the federal government used to identify and gather evidence about a certain federal crime. There are two types of grand jury subpoenas: (1) subpoena duces tecum and (2) subpoena ad testificandum. The former requires the recipient to produce certain documents, and the latter requires the recipient to appear before the grand jury at a certain time and a certain date to provide testimony.

Grand juries have 23 jurors, 16 of which must be present in order for the jury to have a quorum. The grand jury may return an indictment only if there is a vote by at least 12 jurors. The 23 jurors who sit on the grand jury are sworn to secrecy and to the objective duty of assisting the prosecutor in determining whether there is probable cause to initiate formal charges against the individual being targeted. The failure to respond to a grand jury subpoena can lead to stringent penalties.

There are critical differences between a witness, subject, and target including how the government proceeds against you or the severity of the possible fines, penalties, and potential jail time.

A witness is an individual who may have important information that the government believes would be relevant to its investigation for the crime at issue. Witnesses are not typically charged with crimes. A subject is an individual who the government believes may be connected to or may have engaged in the crime at issue; in other words, subjects are putative defendants. The government often has evidence connecting subjects to the crime.

Lastly, a target is an individual intricately connected to the commission of the crime. The government and the grand jury generally have substantial evidence to return an indictment against the individual.

Prior to testifying before the grand jury, your defense attorney will decide if it is feasible and proper to file any applicable challenges to the scope and extent of the subpoena. Your attorney will prepare you on what to say and how to say it as well as what to do during the proceeding if you need to speak with your attorney.

Once all challenges have been filed and you and your attorney have fully prepared, you would then be ready to testify before the grand jury. After you have completed your testimony, you and your attorney should review the testimony you delivered. Sometimes, the prosecution may want you to testify again.

Your second testimony would proceed similarly to the first. The same or similar questions may be asked of you. Therefore, you and your attorney need to make sure that your first testimony is accurate and that you do not make any contradictory statements during your second testimony.

What is the difference between a true bill and a no bill? If the grand jury issues what is called a true bill, you will be indicted. If the grand jury issues a no bill, it means that it did not find probable cause that the defendant was involved in the commission of the crime.

In these latter cases, the governments investigation with respect to that individual will be over. In cases where the grand jury issues a true bill, you and your attorney may need to file a motion to dismiss.

Some examples of reasons for challenging an indictment include the following: bias or prejudice; perjured testimony; too much hearsay; failing to disclose exculpatory evidence; or any violation of a constitutional guarantee. If your case goes to trial, you must remember that the governments burdenbeyond a reasonable doubtis much higher than the probable cause standard used at the grand jury proceeding.

Below is a list of how a defense attorney can help you if you receive a grand jury subpoena:

Your attorney will immediately open the communication channels with the government to see if any productive information can be gained.

One of the first tasks your attorney will undertake is to narrow down the scope of your subpoena through communication with the governmentthis can occur via reduced subpoena scope, deadline extensions, rewording of the subpoena requests, etc.

Through careful communications with the government, an attorney can help you determine your degree of liability and culpability.

Your attorney may be able to determinebased on the subpoena or from communications with the governmentthe nature of the investigation; the offenses being considered; the recipients role in the investigation; etc.

Your attorney can advise you on the attorney-client privilege and other applicable constitutional privileges such as the Fifth Amendment privilege against self-incrimination.

An attorney can assess whether it is proper and feasible to move to quash your subpoena if compliance would be unreasonable or oppressive as per Rule 17(c)(2) of the Federal Rules of Criminal Procedure.

Cooperation, good faith, and negotiation are critical strategies of a successful outcome that your attorney can guide you towards.

The attorney can negotiate with the government to help achieve leniency and mitigation in your case.

If your subpoena calls for the production of documentsduces tecumyour attorney will guide you in starting to accumulate and compile responsive documents immediately.

If your subpoena calls for the delivery of your testimony--ad testifacandumyour attorney will help you develop questions and appropriate answers.

Your attorney will assist and require that you implement a document preservation policy within your business as soon as possible.

Despite Rule 6(e)(2) of the Federal Rules of Criminal Procedure that strictly prohibits grand jurors, interpreters, court reporters, federal prosecutors, and other court personnel from disclosing any matter that occurs before the grand jury, some information nevertheless comes to the medias attention; your attorney can help you reduce your media exposure.

First and most importantly, you need to remember that the burden is on the prosecution to demonstrate probable cause during grand jury proceedings. You also need to remember when and how to assert your Fifth Amendment privilege against self-incrimination, as this is a critical constitutional guarantee. Lastly, because of the severity in punishment, liberty, and reputation that are possible after receiving a grand jury subpoena, retaining a competent and experienced federal attorney will be key to your defense. Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Grand jury subpoenas are powerful tools used by the government to initiate a criminal investigation. A grand jury subpoena can ask you to provide testimony, produce documents, or sometimes both.

Regardless of what the subpoena is asking, it is important to exercise extreme caution and act promptly. Retaining a competent and experienced federal defense attorney should be the first step in your defense. Your attorney can help you by communicating with the prosecutor handling your case, ascertaining the nature of the charges, advising you on protecting your constitutional rights, and guiding you towards dismissal, mitigation, leniency, or, if applicable, a strong personalized defense strategy at trial.

Oberheiden P.C. 2021 National Law Review, Volume XI, Number 260

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What to Do When You Receive a Grand Jury Subpoena - The National Law Review

National Fuel Gas is claiming city charges excessive fees for cutting into streets during repair, construction jobs. Utility wants judge to issue injunction to end practice, invalidate city law.

How gas pipelines connect to homes

Natural gas is distributed to homes across the USA through a network of aging pipes.

Cincinnati Enquirer

The city of Erie is facing a legal challenge over afee system that has bolstereditsbudgetsince the mid-1990s.

National Fuel Gas Distribution Corp. is suing the city in federal court, claiming the city is violating the utility'sconstitutional rights by charging what NFG says are excessive and unlawful fees related to NFGwork that requires excavation ofstreets, sidewalksand other public rights of way.

NFG wants the city to return what it claims are $1.3 million that it paid the city in fees between 2014 and 2020.

It alsowants a federal judge to enjoin the city from collecting "unreasonable" fees in the future and it wants the judge to invalidate the 1994 city ordinance that authorizes the city to impose what are known as degradation fees. The city says itcollects those fees to recover expenses related to cutting or digging up streets and sidewalks.

A lawyer for NFG, John Mizner,filed the 49-page suit in U.S. District Court in Erie on Monday.Though the suit focuses on the Buffalo-based NFG, the outcome could have ramifications for contractors or other utilities that the city also charges degradation fees.

The city over the past several years has generatedaround $700,000 ayear in degradation fees and other fees related to street excavations, according to city budget records. The city's 2021 budget lists $662,750 in revenue from degradation fees and related fees.

City Council in December 1994 passed the ordinance for street excavations, including the authorization of degradation fees.

Rising expenses: Erie City Council approves hike in fees for street cuts

In February 2020, council increasedthe degradation fees from $48 per square yard to $50 per affected square yard for degradation, or street cuts that happen within a roadway. Council increased from$23 per affected square yard to $28 per square yard the fees for degradation outside of the roadway, such as a sidewalk or curb.

Though NFG for decades paid the degradation fees and related fees without objection, it claimsthat changing city policies prompted the lawsuit. The suit does not specify whyNFG is seeking recovery of fees noearlier than 2014, though the indication is that NFG has records dating to 2014.

One impetus for NFG's action, according to the suit, was the administration of Mayor Joe Schember's requirement, starting in 2020, that the city use"best practices" for tree management in approving permits for NFG excavation work.The city's best practices are meant to protect trees.

The city's reliance on those standards, according to the suit, led the city to demand that NFG "redesign its engineering and construction plans to relocate work away from trees" and into the street, forcing NFG to pay higher degradation fees.

Utility costs: Your National Fuel bill has fallen 49% since 2008. The company wants to lower it again

NFG also claims that the city retaliated against the utilityfor its objections by ending the city's longstanding practice of allowing NFG to get permits for repair work in rights of way after the work was completed. Starting in May 2020, according to the suit, the city told NFG that "no work will be performed within the rights of way without a permit."

In addition to seeking a preliminary injunction related to the fees, NFG's suitasks for an injunction to stop the city "from imposing restrictions on the location" of NFG's facilities or utilities in the future. The suit claims that only the Pennsylvania Public Utility Commission can regulate utilities in the manner that NFG claimsthe city of Erie is trying to do through the use of the guidelines for tree protection.

NFG isclaiming that the city's fees structure adds to the utility's expenses, forcing it to pass on the costs to customers, including those who live outside the city of Erie. The revenue that the city gets from the degradation fees and otherrelated fees, according to the suit, improperly goes into the city's general fund instead of getting allocated for repairs or costs directly related to the streets and other rights of way.

"Simply put," the suit claims, "the Fee Structure raises revenue which the City of Erie can use on any expense paid for from the City's General Fund, and it is not fair to National Fuel's ratepayers outside of the City of Erie to contribute to the City's General Fund."

The suit states that the city has imposed degradation fees and permitting fees on NFG this year, but that NFG has withheld paying those fees "on the grounds that fees are illegal."

In a statement, NFG called filing the suit "a last resort" to resolving its concerns over the fee structure and other issues related to the utility's work in the city.

"Despite National Fuels best efforts over the last two years, repeated attempts to amicably and collaboratively resolve these matters with the city of Erie have proven unsuccessful," the statement said.

"National Fuel prides itself on exercising stewardship with respect to customer funds. Accordingly, National Fuel has filed a lawsuit to challenge excessive, arbitraryand unlawful fees and practices imposed by the city of Erie which undermine National Fuels ability to provide safe, efficient and reliable natural gas at fair and reasonable rates to customers."

The city will get a chance to respondin court. City Solicitor Ed Betza on Wednesday said he is reviewing the suit.The caseis assigned to U.S. District Judge Cathy Bissoon, who is based in Pittsburgh but hears Erie cases.

NFG is claiming that the city has violated its rights under state and federal law, with its claims under the U.S. Constitution landing the case in federal court.

The city's fee structure, the suit claims, violates NFG's Fifth Amendment rightagainst the taking of private property for public usewithout just compensation. The suit also claims the city has violated NFG's right to due process under the Fourteenth Amendment.

Another fee on way?: Uncharted waters: Erie property owners, officials debate proposed new stormwater fee

Regarding the Fifth Amendment, the suit states that federal courts have ruled that municipal fees mustreflect a "fair approximation of the cost " of the benefitsthat the fees are meant to provide. Otherwise, the suit claims, the fees are excessive and violate what is known as the Fifth Amendment's clause regarding unlawful taking of property.

Pressing needs: Erie's stormwater infrastructure needs at breaking point? Line bursts cost $575K, put issue in focus

The suit claims that the degradation fees are excessive and unlawful because they do not comport with the actual cost of maintaining and repairing the streets or other public rights of way following NFG's work. Under the city's ordinances, according to the suit, NFG is already required to repairthe street or other rights of way after finishing its projects.

The claim over the relation of fees to actual costs touches on a core element ofthe city's financial structure the element based on fees.

The city in 2021 expects to raise about 2.29% of its $98 million in general fund revenue or about $2.2 million from licenses and permits, according to the budget.That revenueincludesthe $662,750 in projected income from degradation fees and related fees.

According to the suit: The feesrelated to street excavation "are not reasonably related to the cost incurred by the City," and the fee structure thus "wrongly generates revenue for the City of Erie to use in any manner it deems fit."

Contact Ed Palattella at epalattella@timesnews.com. Follow him on Twitter @ETNpalattella.

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NFG sues city of Erie over $1.3M in fees, seeks to dismantle ordinance that authorizes them - GoErie.com

A biker from Wisconsin who worked as a confidential informant for the FBI in its investigation of an alleged extremist plot to kidnap Michigan Gov. Gretchen Whitmer has reached a plea deal on a gun charge that will give him two years of probation instead of a maximum term of up to 10 years in prison, according to a new filing in federal court.

Stephen Robeson, 57, of Oxford, Wisconsin, helped the government infiltrate militant extremists and went with them to surveil Whitmers lakeside vacation home. He was not charged during the October 2020 takedown of the alleged plotters but was instead indicted this spring for possessing a .50-caliber sniper rifle, which he was forbidden from touching because he has multiple felony convictions.

In response to his indictment, Robeson admitted to having the gun, but his lawyer said he had also had something else: permission, as a confidential informant, to engage in illegal conduct. Robesons lawyer, Joseph A. Bugni, did not respond to a request for comment Thursday.

Court filings show that at least a dozen informants known in FBI lingo as "confidential human sources" played some role in the Michigan case, which resulted in criminal charges against 14 people in state and federal courts, including multiple members of a militant group called the Wolverine Watchmen.

But documents and interviews suggest that few informants played a more critical role than Stephen Robeson, a burly member of the Three Percenter militant group known to associates as Robey.

Robeson helped organize a series of meetings in several states where prosecutors claim the defendants first developed plans to kidnap Whitmer from her vacation home and either abandon her on a boat floating on Lake Michigan or take her to Michigan to be tried for treason. He was in frequent contact with a number of the defendants in the case and attended a nighttime surveillance of Whitmers vacation home in September of 2020, during which several men, including an undercover FBI agent, discussed blowing up a bridge to slow the police response to the kidnapping.

The federal trial in the kidnapping case, which is one of the most prominent domestic terrorism prosecutions in a generation, is set to start next month, although defendants in that case last week requested a 90-day delay. Several have indicated that they intend to mount an entrapment defense, arguing that there was no true conspiracy and that informants including Robeson induced them to say and do incriminating things.

Some defendants have indicated theyd seek testimony from Robeson at trial, saying that his criminal history and the nature of his cooperation might strengthen the argument that they were set up. But Robesons ability and willingness to testify in court without invoking his Fifth Amendment right to avoid incriminating himself have been in doubt because of the gun charge hanging over his head.

A second confidential informant, identified in court papers as Dan, also played a significant role in building the case, recording hours of audio and video of the day-to-day activities of the Wolverine Watchmen and other defendants. He testified for a full day in a state hearing in March.

One defendant, Ty Garbin, pleaded guilty and last month was sentenced to 75 months in prison for his role in the alleged plot. A federal prosecutor said at Garbin's sentencing that he expected him to be a star witness for the government at trial.

In a letter to the court on Wednesday, Robesons lawyer informed the judge that both sides have come to an agreement. A signed copy has not yet been filed, because his client had contracted COVID-19, so the agreement was sent via mail.

Robeson had been set to go to trial in Wisconsin on Oct. 12, the same day the Michigan case is currently scheduled to begin.

Excerpt from:
A Key Informant In The Michigan Kidnapping Case Has Struck A Plea Deal - BuzzFeed News

SALISBURY The prosecution on Thursday continued to build its case against Dedric Michelle Mason in an abbreviated trial day.

Mason, 45, is facing charges for second-degree murder following the deadly shooting at Fishzilla Arcade in April of 2018. The incident resulted in the death of James Christopher Davis, known by his friends and family as Milkbone, or Milk. Davis was fatally shot by Mason during a scuffle at the adult gaming establishment.

The trial got underway Tuesday afternoon once a 12-person jury and four alternates were selected. The prosecution is led by Assistant District Attorneys Barrett Poppler and Jennifer Greene while the defense is led by Ryan Stowe and Todd Paris.

The prosecution has argued the shooting was murder, but the defense has framed the shooting as an act of self defense and asserts that Mason was trying to stop Davis from injuring her friend, Andrea Dillard, who was also involved in the fight.

The trial continued on Wednesday, when the prosecution showed jurors video footage of the shooting and introduced several witnesses who were in Fishzilla when it occurred. On Thursday, the prosecution introduced three more witnesses and showed the jury the handgun used to kill Davis.

The first witness brought to the stand was Burlee Tobias Kersey. Currently incarcerated for drug trafficking, Kersey was transported to the Rowan County Courthouse from prison and took the stand in handcuffs. Kersey was at Fishzilla on the night of the shooting and was playing at the same table as Davis and his longtime girlfriend, Cheviss Bennett, minutes before Davis was shot.

Kersey was questioned by Greene, who had difficulty eliciting any answers. Kersey cited the Fifth Amendment, which protects people from self incrimination, several times. When he responded to Greenes inquiries, Kersey admitted knowing little about the incident, saying he had his back turned and it was none of his business. When asked by Greene whether he felt anyones life was in danger during the incident, Kersey said he did not know.

The defense did not ask Kersey any questions.

The trial continued with the prosecution calling on Joshua Clawson, who was also in Fishzilla during the shooting. Clawson testified he was there to talk with Curtis Quick, an employee of Fishzilla who testified Wednesday.

Clawson echoed Quicks account of the incident, saying the altercation started after Mason and Dillard walked into Fishzilla and sat down at the gaming table where Davis, Bennett and Kersey were playing.

When the argument continued to the front of the arcade, Clawson said he saw Mason throw Davis phone further back in the room. With video footage of the incident playing for the jury, Clawson pointed out the moment he ducked to avoid what he said was Davis phone flying through the air.

Clawson painted Davis as the victim of an attack from Mason and Dillard, who Clawson said cornered Davis and pushed him. Clawson said Davis pushed back, but added that it was in self defense. When asked by the prosecution if he believed anyones life was in danger before the shooting, Clawson said he did not.

In his cross examination of Clawson, Paris pressed Clawson on whether he was absolutely sure he saw Mason throw Davis phone. Clawson responded that he was. Paris also asked Clawson whether he saw Davis strike or choke Mason or Dillard near the counter. Clawson said he did not.

Clawson, who said he has 20/20 vision, testified Davis was flat on his back on the floor when Mason fired her handgun. That contradicts the story put forth by defense attorneys, who say Davis was on top of Dillard choking her when Mason shot him. In a video shown several times in court, it appears Davis was on top of Dillard at least momentarily.

When Clawson left the stand, the prosecution called Salisbury Police Detective Meredith Walker to testify. Walker responded to the Fishzilla shooting and was responsible for documenting the crime scene. Walker also transported Mason to the police department immediately after the shooting.

Walker testified that Mason smelled faintly of alcohol as they rode to the police department and that Mason admitted to having consumed one to one and a half Mikes Hard Lemonades that night. Walker said she did not observe any slurred speech or slowed movements.

Once they arrived at the department, Walker photographed Masons face from two separate angles. The photographs were shown to the jury and showed no evidence of injuries. Walker said she told Mason to come back to the police department if bruising appeared in the days following the incident.

During Walkers testimony, the prosecution introduced a handgun Mason used to shoot Davis into evidence. The courts bailiff carried the box containing the gun around the courtroom gallery and showed it to each individual juror.

When Paris cross-examined Walker, he asked her if her injury photography training taught her that bruising can take longer to show up on people who are Black. Walker confirmed that was indeed the case.

The trial was abruptly recessed before 3 p.m. on Thursday after Paris told Judge Hamilton he was feeling nauseated and requested the rest of the day off. Stowe offered to finish the day as Masons only acting attorney, but Mason told Hamilton she would rather have both Stowe and Paris present at all times.

Paris said he expected to feel better Friday morning. If the trial does resume as planned, the prosecution is poised to call a medical examiner from Raleigh as its next witness. The prosecution will likely rest its case on Friday. Then, the defense will call its first witness.

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Prosecution in Fishzilla murder case introduces more witness accounts, handgun used in shooting - Salisbury Post - Salisbury Post

Josh Duggars defense team is embroiled in yet another back-and-forth with prosecutors over the evidence in his ongoing child pornography case.

In a motion filed on Sept. 10, Duggar, 33, asks the court to suppress photographs that were taken of his hands in jail after he was arrested on charges of receiving and possessing child sex abuse material in April. (He later pleaded not guilty and was released pending his Nov. 30 trial.)

The motion claims that the taking of the photos, which show a scar on one of Duggars hands, were a violation of his Fourth, Fifth and Sixth Amendment rights and says that law enforcement officials should have obtained a warrant before taking them.

What is particularly egregious about [Homeland Securitys] conduct in this capacity is that Duggars body parts were manipulated and he was required to pose for the photographs, the motion states. By any measure, this constitutes a search and an intrusion on [his] personal rightsall without his counsel presentin violation of his Fourth, Fifth, and Sixth Amendment rights.

Lawyers for Duggar did not immediately respond to PEOPLEs request for comment.

josh duggar

Danny Johnston/AP/Shutterstock Josh Duggar

RELATED: Duggars Splinter amid Joshs Legal Drama: Family Isnt as Close as They Once Were, Says Source

In their response, filed the same day, the prosecution writes that the defendant is incorrect on all counts regarding the alleged rights violations and asks the court to deny the motion.

The document claims that the scar on Duggars hand links him to images recovered from [his] electronic devices that were seized while law enforcement was previously carrying out a search warrant in the case.

It goes on to dispute each of the points in the defenses motion, noting that the photographs do not constitute an unreasonable or warrantless search of the defendant because his hands were in plain view and clearly visible.

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Prosecutors add that Duggar also voluntarily consented to having the photos taken.

The response also says that the display of a defendants physical characteristics, such as a photograph, do not fall under the Fifth Amendment right against self-incrimination. As for the alleged Sixth Amendment violation Duggars right to counsel prosecutors say that that right only applies to critical stages of criminal proceedings, under which taking photographs does not fall.

josh duggar

Kris Connor/Getty Josh Duggar

RELATED: Josh Duggar Child Porn Case Is Straight-Forward, Prosecution Says amid Dispute Over Evidence

A court hearing is set for Oct. 4 to settle the matter brought up in the defenses motion, which is the latest of many filed by Duggars team regarding evidence in the case.

In August, his attorneys argued that his case should be dismissed because of technicalities over who was running the Department of Homeland Security at the time of their investigation. They also say investigators failed to preserve potentially exculpatory evidence.

And earlier that month, the prosecution accused the defense of embarking on a fishing expedition for evidence that does not exist or is irrelevant to the case. That was in response to a motion filed by the defense claiming the prosecution was refusing to turn over evidence.

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Duggar, who prosecutors believe had more than 200 images of children on his computer, is no stranger to controversy. In 2015, a 2006 police report that surfaced indicated he was investigated for molesting five underage girls, including sisters Jill (Duggar) Dillard and Jessa (Duggar) Seewald. He said at the time that he was extremely sorry for the wrongdoing.

Amid his current legal woes, TLC canceled the Duggar familys reality series, Counting On. In their statement, the network said it feels it is important to give the Duggar family the opportunity to address their situation privately.

The show premiered on TLC in 2015 and served as a spinoff series to 19 Kids and Counting, which ran from 2008 to 2015. The spinoff was created amid the previous molestation controversy surrounding Duggar.

If you suspect child abuse, call the Childhelp National Child Abuse Hotline at 1-800-4-A-Child or 1-800-422-4453, or go to http://www.childhelp.org. All calls are toll-free and confidential. The hotline is available 24/7 in more than 170 languages.

If you or someone you know has been a victim of sexual abuse, text STRENGTH to the Crisis Text Line at 741-741 connected to a certified crisis counselor.

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Prosecution and Defense Fight Over Photos of His Hands Learn Why - SGE - Sports Grind Entertainment