Federal Defense Attorney John Teakell

On August 26th, 2008, the Federal Tenth Circuit Court of Appeals in Denver ruled against the state of Wyoming in a lawsuit over a state law that allowed people convicted of misdemeanor domestic violence offenses to regain their gun rights despite federal law to the contrary. In the case Wyoming v. Bureau of Alcohol Tobacco and Firearms, 2008 U.S. App. LEXIS 18224, the Court of Appeals held that the procedure allowed by the Wyoming statute does not expunge the criminal record of people convicted of domestic violence. This procedure was long considered by federal authorities as a “get around” of the law that prohibits individuals convicted of domestic violence offenses to possess firearms.

The 2004 Wyoming law at the center of the lawsuit allowed people convicted of misdemeanor domestic violence to petition in state court to expunge their conviction and restore their gun rights. The law requires that petitioners must have completed probation, and it limits people to just one such request. The ATF had informed Wyoming that if it persisted in using the state law, the federal government would no longer accept Wyoming concealed weapons permits as a substitute for instant background checks for gun purchases.

What exactly is Expungement?
The term “expungement” is defined as erasing or wiping clean the criminal record. This process recognizes that those who have committed certain crimes and have been punished have basically learned their lesson and deserve another chance with a clean slate. To apply for expungement after a conviction the person must wait a certain period of time before his or her record can be wiped clean. Generally the waiting periods will not begin until any sentence of imprisonment has been completed, all fines completely paid and parole and probation successfully served. It is also important to note that each state’s expungement laws may differ and that not all crimes are allowed to be expunged.
Are the Federal Courts now Ignoring Expungement Rulings from State Courts?

Although technically the federal sentencing guidelines commentary instruct judges to not consider expunged state convictions, the guidelines also impose a bit of trickery when dealing with state expungements. Many states have sentences known as “diversionary dispositions” that do not count as convictions under state law. If the individual does not commit another crime during the period of the diversionary disposition, then they are given the opportunity to “expunge,” the diversionary disposition from their record. The point is whether they expunge their record or not, the diversionary disposition never counts as a conviction under state law. The Federal Sentencing Guidelines, however, ignores this concept and counts these state law non-convictions as convictions, as long as they have not yet been officially expunged.

So what Effect will the Wyoming Ruling have throughout the Federal Courts?
In what is considered a victory for the ATF, the ruling could nullify a number of other state expungement laws in respect to federal prosecutions. The ruling basically means that individuals that have not had complete expungements of prior convictions could be viewed by federal authorities as being in violation of federal firearms law, especially in regard to potential domestic violence prosecutions.

Recently, a federal judge in Texas found out for himself what it feels like to be on the other side of the bench. On August 28, 2008, United States District Judge Samuel Kent was indicted on charges of abusive sexual contact and attempted aggravated sexual abuse of a female employee, making him the first federal judge to ever be charged with federal sex crimes.

The federal criminal investigation was launched in November 2007 after Kent’s former case manager complained that the judge physically touched her in an inappropriate manner and often made obscene suggestions during the six years she worked for him.

Already Reprimanded
Kent had previously received a written reprimand in September 2007 for sexual harassment from the Federal 5th Circuit Court of Appeals because of a related judicial misconduct complaint filed by the victim. Although the judicial misconduct complaint was sealed, published news stories of Kent’s conduct eventually attracted the attention of federal prosecutors. Shortly after, several key leaders from the U.S. House Committee on the Judiciary suggested that the victim should request a criminal investigation. This resulted in the FBI being called in to conduct an investigation into the allegations within the complaint. The findings of the investigation were then referred to prosecutors from the Department of Justice’s

Public Integrity Section based in Washington, D.C.
Accusations have also surfaced from a Justice Department investigation suggesting that Kent accepted, but failed to report, gifts and also sold his home in a deal arranged by a lawyer with dozens of cases in his court. This investigation has been confirmed to have taken place by Kent’s own attorney as well as other lawyers familiar with the case.

Kent will stay on the Bench for Now
Despite the criminal charges, attorneys for Judge Kent say their client has no intention of stepping down from the bench. U.S. Rep. Sheila Jackson Lee, who is a member of the judiciary committee, said the panel would monitor but “not interfere with the judicial proceedings at this time.” “We want to proceed on the principle that you are innocent until proven guilty,” she said. In the meantime, Kent has been reassigned and has been barred from handling criminal cases and sexual harassment lawsuits. So far, no trial date has been set in this case.

Kent’s colleagues also expressed their opinion that he should be allowed to stay on the bench until the trial. “The choice is his,” said U.S. District Judge Lynn Hughes, one of Kent’s judicial brethren in the Southern District of Texas. “After all, he’s presumed innocent. That’s how we work around here.”

On August 25, 2008, Steven Warshak, founder of Berkeley Premium Nutraceuticals which produced Enzyte  — “the once-daily tablet for natural male enhancement,” was sentenced to 25 years in federal prison. Warshak was also ordered to forfeit $500 million in restitution as part of the sentence.  The judge also sentenced Warshak’s  75-year-old mother to two years in prison, but he agreed to let her remain free pending her appeal because of serious medical problems.

The sentences are the result of a federal investigation into Warshak’s activities that lasted at least four years and resulted in criminal charges against a dozen employees and associates. He was eventually convicted earlier this year on 93 counts of conspiracy, fraud and money laundering.

Nothing More than a Sham

Warshak acquired the majority of his wealth from the product Enzyte by gimmicky marketing on TV ads which featured a grinning character known as ‘Smiling Bob.’ Federal Prosecutors insist the catchy ads actually helped mask Warshak’s criminal enterprise which involved false advertising, fraudulent bank documents, hidden profits and unauthorized charges on customer credit cards.

At trial, prosecutors introduced evidence suggesting that Warshak produced fraudulent studies showing the effectiveness of Enzyte and e-mails he sent to employees urging them to keep charging customer credit cards through the “continuity program.” In fact, prosecutors insist, the key to the scheme was Berkeley’s continuity program, which automatically charged additional orders of Enzyte to credit cards each month. Furthermore, the continuity program was not fully disclosed in the TV ads, and customers who complained were given the run-around or referred to a quality control officer who did not exist. Prosecutors also asserted at trial that Warshak created a criminal environment that involved workers from the mail room to top executives within the company. “This scheme permeated the entire operation of this company,” said Assistant U.S. Attorney Anne Porter.

Not much for Smiling Bob to Smile about Anymore

United States District Judge Arthur Spiegel did not give much credence to the argument put forth by Warshak that he was unaware of any wrongdoing within the company. “This is a case about greed,” Judge Spiegel said. “Steven Warshak preyed on perceived sexual inadequacies of customers.” “He was the mastermind of the debacle,” Spiegel said. “But for his arrogance, he could have helped them all by taking responsibility. But he was blinded by his arrogance and greed.”

Judge Spiegel did, however, avoid ordering a complete shutdown of Berkeley Premium Nutraceuticals in hopes that the company could actually operate in a legal manner.