Monthly Archives: August 2011

More from USA Today

Attorney General Eric Holder declined to be interviewed; earlier this year, he told judges that officials "must take seriously each and every lapse, no matter the cause." The head of the department’s criminal division, Lanny Breuer, said, "Obviously, even one example of real misconduct is too many. … If you’ve engaged in misconduct, the response of the department has to be swift and strong."

In practice, however, the response — by the Justice Department and the state officials who oversee lawyers — has frequently been neither. Department records show that its internal investigations often take more than a year to complete, and usually find that prosecutors, at worst, made a mistake, even when judges who presided over the trials ruled that there was serious misconduct.

In one rare exception, the department in 2007 prosecuted one of its former attorneys, Richard Convertino, for obstructing justice in his handling of a Detroit terrorism case. He was acquitted, and he unsuccessfully accused the attorneys who prosecuted him of misconduct. The department called Convertino "unmanageable" in one court filing, but still kept its internal review of the case secret.

In the one case in which USA TODAY found that state officials suspended a federal prosecutor from practicing law, the punishment lasted only a year. In that case, Florida’s Supreme Court found that Karen Schmid Cox had let a witness lie about her name during a trial, making it impossible for defense attorneys to check the witness’s background. If they had, they would have found that the witness had been previously accused of lying to a judge and filing a false police report.

Pressures on prosecutors

In some cases, Justice Department records and court documents suggest that prosecutors broke the rules inadvertently, often because they were inexperienced or unsupervised.

Former prosecutors from offices across the nation insist that the Justice Department never put pressure on them to cut corners — "there wasn’t any pervasive attitude of win-at-any-cost," said Rick Jancha, a former prosecutor in Orlando.

But there are other pressures. For one thing, prosecutors are taking on more cases than ever. In the mid-1990s, the offices had one attorney for every 14 defendants; last year, they had one attorney for every 28. Even though most of those cases end in plea bargains, the increase can be taxing, because prosecutors often are responsible not just for conducting trials but overseeing investigations.

And prosecutors put pressure on themselves. "They’re the A+ students. They’re not used to losing," Levenson said.

"Prosecutors think they’re doing the Lord’s work, and that they wear the white hat. When I was a prosecutor, I thought everything I did was right," said Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer. "So even if you got out of line, you could tell yourself that you didn’t do it on purpose, or that it was for the greater good."

Beyond that, most federal prosecutors do their jobs with little day-to-day supervision, said Michael Seigel, the second-in-command of the U.S. attorney’s office in Tampa from 1995 to 1999.

And, until last year, prosecutors were not required to get regular training in ethics such as their constitutional duty to share evidence with defendants. That training is important: Many of the legal rules prosecutors must follow are complex, and not everyone agrees on the boundary between aggressive lawyering and misconduct.

Last year, Ogden, Holder’s second-in-command, headed a review of problems with prosecutors’ failure to turn over evidence to defendants, the issue that ultimately undermined the Lyons case. It concluded that most violations were "not the product of people who intentionally set about to cheat but … more of a lack of training and a lack of resources," said Ogden, who left the department this year. That review prompted a new requirement that prosecutors get two hours of annual training in their duty to share evidence.

‘Real sloppy and lazy’

Before Bruce Hinshelwood became a federal prosecutor, he tried murder cases and those involving other high-profile crimes as a state attorney. He headed the Justice Department’s Jacksonville office, and was briefly second-in-command of the middle district surrounding Tampa. Later, he tried drug cases in Orlando. In all that time, there is no indication Hinshelwood was faulted for misconduct. The Lyons case changed that.

Hinshelwood’s former boss, Paul Perez, became U.S. attorney in Tampa in 2002, shortly after Lyons’ trial ended. When the case against Lyons fell apart, it was his job to figure out why.

Perez said in an interview that he personally never doubted that Lyons was guilty. He said the problems came down to inattention: Hinshelwood was "an experienced but very lazy prosecutor," but didn’t break the rules on purpose. He was, Perez said, "real sloppy and lazy."

Judge Presnell drew harsher conclusions. In a 2004 order, he said the Justice Department’s failures in the case could be explained, "at best, by its agents’ sloppy investigative work or, at worst, by their knowing failure to meet constitutional duties." He later faulted prosecutors not just for failing to turn over evidence but for "brazenly" defying court orders and presenting witnesses who were "allowed, if not encouraged, to lie under oath."

Records from the Florida Bar, which regulates the state’s lawyers, show that the Justice Department investigated Hinshelwood’s handling of the Lyons case, a fact the department refused to confirm for fear of invading his privacy. The department completed its report in 2007 and referred its findings to the bar in 2009, a step Justice Department policies say it takes when it finds misconduct.

Despite Presnell’s rebuke and its own investigation, there is no evidence that the Justice Department ever punished Hinshelwood. He continued prosecuting cases until he retired in February 2008 to open his own law practice in Orlando.

The Florida Bar investigated Hinshelwood last year — seven years after Presnell accused him of misconduct by name in a court order — but concluded that too much time had passed to take action for what happened at the trial. It let Hinshelwood resolve the complaint by paying $1,111.80 in costs and attending Friday’s ethics workshop.

"That’s the extent of it?" Lyons said.

The bar opened a second investigation of Hinshelwood in July after Presnell declared Lyons innocent, an uncommon step that officials would not explain publicly.

To Lyons, nothing the bar can do would be strong enough. Hinshelwood "should suffer or go to jail," Lyons said. "The justice system not only didn’t work initially in my case, it’s still not working. Bruce Hinshelwood has his pension. He still works every single day. His life is not miserable. I’m not saying mine is, but it’s nothing like it was before."

McCoy reported from New York. Contributing: Rhyne Piggott.

Henry E. Juszkiewicz

Chief Executive Officer

Gibson Guitar Corp.

309 Plus Park

Nashville, TN 37217  USA

Executive Assistant: Leeanne Nichols

615-871-4500  Extension 2405

615-884-9405  (FAX)

                 My forum:                      http://4henry.gibson.com

My blog (comments and news):   http://4henry.com

                  Twitter:                         http://twitter.com/henryej

 

http://www.gibson.com

By |August 25th, 2011|Uncategorized|0 Comments

From USA Today: Prosecutors’ conduct can tip justice scales

http://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm?csp=DailyBriefing

Prosecutors’ conduct can tip justice scales

By Brad Heath and Kevin McCoy, USA TODAY ORLANDO — The jurors who helped put Nino Lyons in jail for three years had every reason to think that he was a drug trafficker, and, until July, no reason to doubt that justice had been done.

For more than a week in 2001, the jurors listened to one witness after another, almost all of them prison inmates, describe how Lyons had sold them packages of cocaine. One said that Lyons, who ran clothing shops and nightclubs around Orlando, even tried to hire him to kill two drug suppliers.

But the federal prosecutors handling the case did not let the jury hear all the facts.

Instead, the prosecutors covered up evidence that could have discredited many of Lyons’ accusers. They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.

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By Rhyne Piggott, USA TODAY

Antonino "Nino" Lyons spent almost three years in jail before

his case was thrown out because of prosecutorial misconduct.

"The scary part is it probably does happen every day, and nobody ever figures it out"

-Robert Berry,
Nino Lyons’ attorney

Prosecutors are "the A+ students. They’re not used to losing."

-Laurie Levenson,
Loyola Law School professor

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VIDEO: Wrongfully jailed man: ‘It can happen to you’

EXPLORE CASES: Investigate the misconduct cases we identified

JUSTICE DEPARTMENT: Prosecutors must brush up on duties

FULL COVERAGE: Federal prosecutors series

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation’s most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains.

Such abuses, intentional or not, doubtless infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation’s federal courts each year. But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct. And each has the potential to tarnish the reputation of the prosecutors who do their jobs honorably.

In July, U.S. District Judge Gregory Presnell did more than overturn Lyons’ conviction: He declared that Lyons was innocent.

Neither the Justice Department nor the lead prosecutor in the Lyons case, Bruce Hinshelwood, would explain the events that cost Lyons his home, his businesses and nearly three years of freedom. The department investigated Hinshelwood but refused to say whether he was punished; records obtained by USA TODAY show that the agency regulating Florida lawyers ordered him to attend a one-day ethics workshop, scheduled for Friday.

Asked about Presnell’s ruling exonerating Lyons, Hinshelwood said only, "It is of no concern to me."

The circumstances of Lyons’ conviction did trouble Presnell, who oversaw his trial nine years ago. Presnell savaged the Justice Department in a written order for "a concerted campaign of prosecutorial abuse" by attorneys who, he wrote, covered up evidence and let felons lie to the jury.

Records from the Justice Department’s internal ethics watchdogs show the agency has investigated a growing number of complaints by judges about misconduct they observed. In 2001, the department investigated 42 such complaints; last year, 61.

The department will not reveal how many of those prosecutors were punished because, it said, doing so would violate their privacy rights. USA TODAY, drawing on state bar records, identified only one federal prosecutor who was barred even temporarily from practicing law for misconduct during the past 12 years.

Even high-profile cases have been affected. Last year, a judge in Washington, D.C. — saying the department could not be trusted to investigate its own prosecutors — launched his own probe of the attorneys who handled the corruption trial of former Alaska senator Ted Stevens. After a jury found Stevens guilty, the department admitted that prosecutors had hidden evidence, then dropped the charges. (Stevens died in an August plane crash.)

Stevens’ lawyers question how misconduct could have tainted such a closely watched case — and what that might mean for routine prosecutions. "It’s a frightening thought and calls into question the generally accepted belief that our system of justice performs at a high level and yields just results," said Brendan Sullivan, Stevens’ attorney.

Pattern of ‘glaring misconduct’

Unlike local prosecutors, who often toil daily in crowded courts to untangle routine burglaries and homicides, Justice Department attorneys handle many of the nation’s most complex and consequential crimes.

With help from legal experts and former prosecutors, USA TODAY spent six months examining federal prosecutors’ work, reviewing legal databases, department records and tens of thousands of pages of court filings. Although the true extent of misconduct by prosecutors will likely never be known, the assessment is the most complete yet of the scope and impact of those violations.

USA TODAY found a pattern of "serious, glaring misconduct," said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors. "It’s systemic now, and … the system is not able to control this type of behavior. There is no accountability."

He and Alexander Bunin, the chief federal public defender in Albany, N.Y., called the newspaper’s findings "the tip of the iceberg" because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges.

However frequently it happens, the consequences go to the heart of the justice system’s promise of fairness:

• Innocent people are punished. In Arizona, a woman spent eight years in prison for her conviction in a 2000 bank robbery because the prosecution never told her that another woman who matched her description almost exactly — had been charged with robbing banks in the area. In Washington, D.C., a court in 2005 threw out murder charges against two men who had spent two decades in prison for a murder they didn’t commit, in part because prosecutors hid evidence that two others could have committed the crime.

They were among 47 cases USA TODAY documented in which defendants were either exonerated or set free after the violations surfaced.

Among the consequences of misconduct, wrongful convictions are the most serious, said former U.S. attorney general Dick Thornburgh. He said, "No civilized society should countenance such conduct or systems that failed to prevent it."

Even people who never spent a day in jail faced ruinous consequences: lost careers, lost savings and lost reputations. Last year, a federal appeals court wiped out Illinois businessman Charles Farinella’s 2007 conviction for changing "best when purchased by" dates on bottles of salad dressing he sold to discount stores. The judges ruled that what he had done wasn’t illegal and blasted lead prosecutor Juliet Sorensen for violations that robbed Farinella of a fair trial. Exoneration came too late to salvage his business or to help the 20 or so employees he had laid off.

"It’s the United States government against one person," Farinella said in his first public comment on the case. "They beat you down because they are so powerful. They have trillions of dollars behind them. Even someone who’s innocent doesn’t have much of a chance."

• Guilty people go free or face less punishment. In Puerto Rico, a federal court blocked prosecutors from seeking the death penalty for a fatal robbery because they failed to turn over evidence; the defendant was sentenced to life in prison instead. In California, a double agent accused of sharing defense secrets with China was sentenced to probation instead of prison because prosecutors refused to let her lawyer talk to her FBI handler, a key witness. Dozens of other defendants — including drug dealers and bank robbers — left prison early because their trials were tainted.

• Taxpayers foot the bill. The Justice Department has paid nearly $5.3 million to reimburse the legal bills of defendants who were wrongly accused. It has spent far more to repeat trials for people whose convictions were thrown out because of misconduct, a process that can take years, although the full price tag is impossible to tally.

In one California case, for example, it took prosecutors four years and three trials to convict a man of tax fraud. Then an appeals court set aside his conviction because it said a prosecutor "sat silently as his witness lied."

The violations happened in almost every part of the nation, though USA TODAY found the most cases in federal courts in San Diego; Massachusetts; Washington, D.C.; and Puerto Rico. That pattern means misconduct is "not an isolated problem," said Laurie Levenson, a Loyola Law School professor and former federal prosecutor in Los Angeles.

Trial, jail and vindication

The American legal system puts enormous faith in juries: Give 12 men and women the facts, and they will separate the guilty from the innocent.

The Constitution, Congress and courts have set elaborate rules to ensure jurors get the facts and aren’t swayed by emotion or fear. Rules are particularly exacting for prosecutors, as they act with government authority and their mistakes can put people in prison.

One of those rules, established by the Supreme Court nearly 50 years ago in a case called Brady v. Maryland, is that prosecutors must tell defendants about evidence that could help prove their innocence. Withholding that evidence is "reprehensible," the court later said.

Nonetheless, USA TODAY identified 86 cases in which judges found that prosecutors had failed to turn over evidence to defendants. That’s what happened to Nino Lyons.

Lyons, now 50, grew up in the public housing projects of Cocoa, Fla., outside Orlando; his father spent time in prison, and for several years, his mother raised him alone. Even so, Lyons thrived: He graduated from college and worked briefly at the nearby Kennedy Space Center. In the 1990s, he opened clothing stores and nightclubs in Cocoa and Orlando. He was vice president of the local NAACP chapter.

How Lyons also became a drug suspect is unclear. But five days before Christmas in 2000, police stormed his Rockledge house, searching for an illegal machine gun. They did not find a machine gun or any drugs. What they did find was suspicious: an assortment of legal guns and $185,000 in cash, some of it counterfeit. Lyons said he was saving for a down payment on an Orlando nightclub.

Within a year, prosecutors put together a procession of more than two dozen inmates willing to testify that Lyons was a major drug trafficker. Jurors convicted Lyons of almost every charge, including carjacking, selling counterfeit clothing and a drug conspiracy that could have put him in prison for life.

"With all the evidence they had brought forth in this trial, I didn’t have any choice but to vote guilty on him," said one juror, Harold Newsome.

The evidence prosecutors hid from Newsome and the other jurors did not fully come to light until 2004, during Lyons’ third year in jail. It surfaced only because of one line in a government sentencing report that hinted at undisclosed evidence. When it emerged, the Justice Department agreed to drop the drug charge against Lyons, and Presnell, the judge who oversaw the trial, threw out the rest.

It was a drastic step and meant Lyons could never be retried. Presnell wrote that he had no other option: "The Government’s protracted course of misconduct," he wrote, "caused extraordinary prejudice to Lyons, exhibited disregard of the Government’s duties, and demonstrated contempt for this court."

By then, Lyons had spent 1,003 days in a county jail north of Orlando. He was never sentenced, but remained locked up while courts sorted through the problems in his case. He saw his son and daughter, then in middle school, only through the thick glass windows of the visiting room, and spoke to them only via telephone.

His businesses folded while he was in jail. His wife, Debbie, was demoted from her job as principal of an elementary school, a move the school said was unrelated to the case. She sold the couple’s house and took a night job tutoring the children of migrant farm workers to pay the bills.

"It was bad for me, but I didn’t realize until I came home how bad it had been for my wife and my kids, people that really loved me," Lyons said.

Records show the Justice Department eventually paid $150,000 of Lyons’ legal bills in a settlement that was never made public. It admitted in a court filing that prosecutors made "serious errors" in their handling of the case. The attorney who replaced Hinshelwood as the case dragged on, Lee Bentley, personally apologized to Lyons.

For Debbie Lyons, 51, it wasn’t enough. "When they targeted him, they targeted me. They targeted my kids," she said. Prosecutors "don’t have the courtesy to say, ‘We’re wrong, our agents were wrong, we pursued this case wrong. We know we lied, we know we withheld evidence.’ "

Lyons said he’s "thankful to God" that Presnell finally declared him innocent. But almost nine years after he was first found guilty, exoneration hasn’t repaired the damage to his reputation.

In the six years since he was released from jail, he hasn’t been able to find a regular job or even land an interview. Now he works part time for a church program in Orlando that finds mentors for kids whose parents are in jail. The grant that pays for the program will run out at the end of the month.

"Even if the president comes out tomorrow and says this man is 1,000% innocent, you’re going to have somebody somewhere say, ‘I’m not sure about that. I don’t think the government would have did that if he was innocent,’ " Lyons said.

‘The scary part’

Sniffing out misconduct can be a matter of serendipity — or luck, as Lyons’ attorneys discovered.

The evidence that eventually set Lyons free came to light only because of one sentence buried in a 40-page draft of a probation officer’s sentencing report. Those drafts are dense and at times ignored, but this one offered a tantalizing clue: an account by one of Lyons’ accusers, a federal inmate, that differed from his testimony during the trial.

That stuck out to Robert Berry, one of Lyons’ attorneys, who wondered what else he hadn’t been told. His digging led to hundreds of pages of other evidence prosecutors had never disclosed.

"If it wasn’t for that one sentence, he would be in prison right now, probably for the rest of his life," Berry said. "The scary part is it probably does happen every day and nobody ever figures it out."

One reason violations may go undetected is that only a small fraction of criminal cases ever get the scrutiny of a trial, the process most likely to identify misconduct. Trials play a "very important" role, said former deputy attorney general David Ogden, because they force judges and attorneys to review a case in far more exacting detail.

The number of people charged with crimes in federal district courts has almost doubled over the past 15 years. Yet the number whose cases actually go to trial has fallen almost 30%, to about 3,500 last year, USA TODAY found. Last year, just four defendants out of 100 went to trial; the rest struck plea bargains that resolved their cases quickly, with far less scrutiny from judges.

"We really should be more concerned about the cases we don’t know about," said Levenson, the Loyola professor. "Many of the types of misconduct you identified could happen every day, and we’d never know about it if defendants plead out."

Deliberate violations

In a justice system that prosecutes more than 60,000 people a year, mistakes are inevitable. But the violations USA TODAY documented go beyond everyday missteps. In the worst cases, say judges, former prosecutors and others, they happen because prosecutors deliberately cut corners to win.

"There are rogue prosecutors, often motivated by personal ambition or partisan reasons," said Thornburgh, who was attorney general under Presidents Reagan and George H.W. Bush. Such people are uncommon, though, he added: "Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office."

Judges have seen those abuses, too. "Sometimes, you get inexperienced and unscrupulous assistant U.S. attorneys who don’t care about the rules," said U.W. Clemon, the former chief judge in northern Alabama’s federal courts.

How often prosecutors deliberately violate the rules is impossible to know. The Justice Department’s internal ethics watchdog, the Office of Professional Responsibility, insists it happens rarely. It reported that it completed more than 750 investigations over the past decade, and found intentional violations in just 68. The department would not identify the cases it concluded were marred by intentional violations, and removes from its public reports any details that could be used to identify the prosecutors involved.

State records, however, offer a glimpse into what can go wrong. Three years ago, two federal prosecutors in Illinois, each with more than a decade of experience, were ordered to answer to the state Attorney Registration and Disciplinary Commission for problems that almost torpedoed a drug case. The lawyers failed to turn over information to defense attorneys that could have discredited a key witness. That tactic, the U.S. Court of Appeals for the 7th Circuit concluded, was "designed to deliberately mislead the court and defense counsel."

Both prosecutors told authorities that they knew the rules, and both admitted that they didn’t turn over the evidence, according to a transcript of the hearing. One, Bradley Murphy, said he was counting on the witness to reveal the damaging information himself during his testimony. The other, John Campbell, apologized. "It’s embarrassing, to say the least," he told the commission.

State records show that the Justice Department suspended both prosecutors for a day. Both also were censured by the Illinois Supreme Court.

They remain federal prosecutors.

Attorney General Eric Holder declined to be interviewed; earlier this year, he told judges that officials "must take seriously each and every lapse, no matter the c

By |August 25th, 2011|Uncategorized|0 Comments

More on Gibson Raid and my Opinion (Part 2)

·        In a case initiated in 2006, the government prosecuted a member of the Northern Arapaho Tribe of Wyoming for shooting a bald eagle for use in a traditional religious ceremony without a permit; on appeal, the 10th Circuit reversed the district court’s finding that the Religious Freedom Restoration Act precludes the government from prosecuting the defendant, and remanded the case for trial.  

Ms. Colbourn was a hired gun that used legal violence to protect big government when big government does damaging and hurtful things:

·        In the early-to-late 1990s, Ms. Colbourn assisted in the defense of various environmental claims brought against governmental agencies.  As an example, Ms. Colbourn was involved in defending a case filed in 1996 challenging regulations promulgated by the Secretary of Commerce that allegedly had a disastrous impact on small fishing boat operations; the district court granted summary judgment for the government. 

·        Ms. Colbourn was also involved in defending a pro se case filed in 1994 against various governmental agencies alleging that they have addressed inadequately the impact of Coast Guard activities on various endangered marine mammals; the district court granted summary judgment to the defendants. 

WHY IS BIG GOVERNMENT SPENDING OUR MONEY TO HARM ORDINARY CITIZENS AND SMALL BUSINESS?

Is this big powerful Washington law enforcement weapon protecting us, or is it following its own self-centered agenda?  If big oil lays waste to an entire section of the country, is responsible for loss of life, loss of wildlife and habitat and causes billions in economic damage the Washington law enforcement club is put away – silent.  If the government causes harm to endangered animals, out comes the club to protect who?

Two strong American values are reason and common sense.  These American values are being trampled. Ordinary citizens are being trampled by Washington interests with Washington agendas.

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American values of caring for our fellow citizens and having honest and open dialogue are replaced by legal terrorism and shoot first tactics. 

What is the end result for our citizens and our country from the above enforcement actions?  Are these the first steps in erasing American values and the American dream?

We must hold our government leaders accountable.

Gibson has still not been given any proof of wrong doing. Yet an ordinary citizen, a production worker was threatened with 5 years in jail and a felony conviction.  That employee was not a buyer of wood, but was Gibson’s representative on a mission to support conservation partners. 

The law that is being enforced is not US law, but the laws of another country that have suffered a coup and is under a dictatorship.  What makes the wood unlawful are the regulations of this impoverished country whose laws and documents are in French.  The Lacey act is not about conservation, but about enforcing the laws in countries from which goods are sourced, no matter the reason the laws exist.

Yet the cost is real, thousands of dollars spent by Gibson, and much more spent by big government to persecute us.  The fear on the part of our workers is real.  The damage to our reputation is real.

Ultimately, the President, and Congress make the decisions that direct big government.  The people we elect to do what we believe is right are responsible and should be held accountable. 

·        The only way to insure these powerful people do what we want them to is to tell them.  Write to them.  Write to your friends.  Vote for those people who believe in fair play, dialogue and American values. 

·        Our case is but one in many.  We will continue to cooperate because we did nothing wrong, and I believe we will prevail.  But if we win this case we will have lost time, money and reputation. The tax payer has paid to the bill to persecute Gibson.

Is this where America is going?  Is this where we should go?  I pray not.


We must work to stop this useless harassment and abuse.  We must protect our citizens and small businesses.  Our weapons need to be focused on bad guys and not ordinary citizens trying to honor their religious traditions.  Only if we grow into a large and loud group committed to this change do we have a chance at a better future.  As individuals, the powerful interests in Washington will continue to abuse us.  Those who support these un-American terrorist tactics should be voted out of office.

Write your members of congress.  Write to the President.  Write to you friends and have them spread the word.  Let change the world and restore American values of fair play, cooperation and protect our citizens from mean and hostile abuse. 

Let us together move to a better world.

Henry E. Juszkiewicz

CEO

Gibson Guitar Corp.  

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The man holding the guitar could be guilty of violating the Lacey Act and is subject to prosecution and a jail term even if he does not know of any wrong doing if this happened after May of 2008.

…anyone who … received, acquired, or purchased the wood products made from … illegal timber, who knew or should have known that the wood was illegal, may be prosecuted for violation of the Lacey Act

The following text is from a hand written letter that was delivered to the White House on June 25, 2010 and accepted by Johnny Casey.  It was sent to the President’s correspondence department on June 30th.  No reply of any kind as of September 20th, 2010.

The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Dear President Obama:

I would like to present a situation I find myself and my company in and ask your opinion on what I can do to address this issue.  Secondly, I would ask you if there is a better way to accomplish public policy objectives, or do you believe this is the way things should work.

WHAT HAPPENED

On November of 2009, without warning or prior communication, approximately 30 armed agents of Bureau of Wildlife invaded our main Gibson Guitar Factory in Nashville TN.  They had full swat attire, interrupted production and evacuated our entire work force of about 300 people.  They confiscated approximately $300,000 worth of fingerboard blanks that were on pallets.

The agents, allowed the work force to return, but immediately started to interrogate individuals setting them up in rooms with several armed agents present.  They remained in our factory for most of the day before moving to our corporate offices where they proceeded to copy all our data (with our full cooperation).  Our people were intimidated and fearful.

This episode immediately made the local television news where news of the raid was broadcast with my name and picture.  This event quickly went national and was picked up by the New York Times.   Social media took this news and implicated myself and our company in wrong doing.

We have fully cooperated with the ensuing investigation.

More than 7 months after the raid, we have not been charged with any wrong doing, and we were told that whatever triggered this aggressive and hostile action was sealed and we would not be told who our accuser was or what served as the basis of any accusations.   There has been no timeline that has been given by which some determination will be made, and we have been subject to increased level investigation.

We, of course, had to get counsel involved which to date has cost us approximately $200,000 and the meter is running.

BACKGROUND

We are the leading manufacture of electric guitars.  We have been increasing our US work force and successfully competing against larger foreign competitor like Yamaha Corp.  We have increased exports, brought jobs to several US communities, and I believe have generally been good citizens.  We have not asked for government handouts or supports.

I have personally been involved with leading conservation organizations, and have been on the Board of the Rainforest Alliance.  We have supported these organizations financially and promotionally, and have implemented an aggressive program to use wood certified by the Forest Stewardship Counsel (FSC).  We are audited annually and have worked to increase the percentage of wood which is certified.

I was a lead organizer working with Green Peace to try to have Sealaska certify the natural spruce forests by organizing guitar builders to insist on certification and offer a lucrative market for the certified wood.

As a result of the raid and subsequent publicity, I removed myself from involvement with conservation groups to protect them from any adverse implications of the government action.

WHAT I BELIEVE

We have done an exhaustive internal investigation and have not found any activity that is illegal or inappropriate.  We did not buy the wood which was confiscated directly but used a broker of long standing which services virtually every company in our industry and has a good reputation.  This type of wood is used commonly by every guitar maker, and sourcing relationships are decades long.

I asked my conservation contacts and company personnel why this wood was not already certified, as we had a firm commitment to certify all wood being used.  I was told that this type of wood is almost impossible to certify because of the nature of the supply chain.  Certification works well when wood is grown on plantations, or controlled forests.  The nature of the trees used is that they do not grow together, but instead are spread out through a forest (one tree here, one tree there).  Therefore, the procurement is done via auction where indigent individuals will bring a single log to market.  There are laws and paperwork required to allow the log into the auction, but these are very poor people in the areas where this wood grows and there is a huge incentive to forge documents, and consequently a very limited ability to establish whether the wood is harvested lawfully.

I believe that all the wood we procured had the appropriate paperwork showing it was lawful.  There is clearly an issue in the supply chain for anyone buying this type of wood.  This does not allow what I consider the best approach, which is a full third party certification.  Again, we have not found any wrongdoing on anyone’s part, but the supply chain in general has problems.

WHAT WE ARE DOING

We have been fully cooperating with the investigation.  In addition, we have commissioned an aggressive effort to try to improve the supply chain issue by expanding our partnership with the Rainforest Alliance and another independent group to certify a “chain of custody” trying to insure lawful sourcing back to the individual tree.  This requires cooperation and transparency in every transaction by every party in the supply chain with a 3rd party audit.

We have already started to implement this system and will expect to have this in place in approximately one year (we have a detailed project schedule).  This system is being implemented in all our manufacturing facilities whether inside the US or not.

WHY ARE WE ATTACKED, WHY WERE WE SINGLED OUT

I am confused and can only believe that someone is intentionally trying to hurt our company.  When I have an issue that needs to be addressed, I do not believe it is appropriate to club a person over the head without some dialogue and attempt to communicate I have an issue.

I and Gibson have had our reputations irreparably damage, our employees frightened, and a significant financial and emotion burden put upon us without the benefit of any meaningful dialogue or indication of wrong doing.  It has injured us competitively.

I will ask you for your thoughts:

1.      What I can do to address this issue.

2.      Secondly, is there is a better way to accomplish public policy objectives, or do you believe this is the way things should work.

Sincerely

Henry

Henry E. Juszkiewicz

Chief Executive Officer

Gibson Guitar Corp.

309 Plus Park

Nashville, TN 37217  USA

Executive Assistant: Leeanne Nichols

615-871-4500  Extension 2405

615-884-9405  (FAX)

                 My forum:                      http://4henry.gibson.com

My blog (comments and news):   http://4henry.com

                  Twitter:                         http://twitter.com/henryej

 

http://www.gibson.com

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By |August 25th, 2011|Uncategorized|0 Comments

Gov’t says wood is illegal if US workers produce it

PRESS RELEASE FROM GIBSON GUITAR CORP.   —–     August 25, 2011

Gov’t says wood is illegal if US workers produce it

The Justice department bullies Gibson without filing charges.

The Federal department of Justice in Washington DC has suggested that the use of wood from India that is not finished by Indian workers is illegal, not because of US law, but because it is the Justice Departments interpretation of a law in India.  (If the same wood from the same tree was finished by Indian workers, the material would be legal).  This action was taken without the support and consent of the government in India.

On August 24, 2011, around 8:45 am, agents for the federal government executed four search warrants on Gibson’s facilities in Nashville and Memphis and seized several palettes of wood, electronic files and guitars. Gibson had to cease its manufacturing operations and send workers home for the day while armed agents executed the search warrants. Gibson has fully cooperated with the execution of the search warrants.

This is the second time that federal agents have raided Gibson facilities and disrupted production this time causing lost productivity and sales.

·       Wood seized was Forest Stewardship Council Controlled

The wood the Government seized on August 24 is from a FSC certified supplier and is FSC Controlled, meaning that the wood complies with the standards of the Forest Stewardship Council, which is an industry-recognized and independent not-for-profit organization, established to promote responsible management of the world’s forests.  FSC Controlled Wood standards require, among other things, that the wood not be illegally harvested and not be harvested in violation of traditional and civil rights. See www.fsc.org for more information.  Gibson has a long history of supporting sustainable and responsible sources of wood and has worked diligently with entities such as the Rainforest Alliance and Green Peace to secure FSC-certified supplies.  The wood seized on August 24 satisfied FSC standards.

·       Nearly two years later no charges have been filed

  In 2009, more than a dozen agents with automatic weapons invaded the Gibson factory in Nashville.  The Government seized guitars and a substantial amount of ebony fingerboard blanks from Madagascar.  To date, 1 year and 9 months later, criminal charges have NOT been filed, yet the Government still holds Gibson’s property.  Gibson has obtained sworn statements and documents from the Madagascar government and these materials, which have been filed in federal court, show that the wood seized in 2009 was legally exported under Madagascar and that no law has been violated. Gibson is attempting to have its property returned in a civil proceeding that is pending in federal court. 

The Justice Department has asked the judge to stop the court case indefinitely.

       Information sought in raid was already made available

Since 2009, Gibson has fully cooperated with the Government’s investigation of wood and has provided substantial documentation regarding Gibson’s wood buying activities over the years. Yet the federal Government raided Gibson’s facilities on August 24, 2011, without warning or communication of any kind.  Had the Government simply communicated with Gibson, Gibson would have cooperated without having to stop its production and to send workers home.

       Not about illegal logging, not about conservation, not about the environment

The US Lacey Act does not directly address conservation issues but is about obeying all laws of the countries from which wood products are procured.  This law reads that you are guilty if you did not observe a law even though you had no knowledge of that law in a foreign country.  The U.S. Lacey Act is only applicable when a foreign law has been violated.

       Gibson is innocent and will fight to protect its rights

Gibson has complied with foreign laws believes it is innocent of ANY wrong doing.  We will fight aggressively to prove our innocence.

Several months ago, the Federal Prosecutor threatened a production employee with 5 years in jail.  I was outraged and wrote the below opinion piece.

Government bullies Gibson without filing charges

Prosecutor threatens production employee

With 5 years in a Federal Penitentiary.

When big government uses its power to bully and intimidate one of our production employees, I must stand up and share my sense of outrage.  I have always stood up to bullies.  This is just one of many cases of Federal Government arrogance and the abuse of power.  I need your help, but first let me tell you our story.

Imagine that you are working at your desk or work bench doing your job.  You, not the CEO of the company, not a corporate officer, but YOU are forced to appear in front of a Federal prosecutor who threatens to indict YOU personally.  The company scrambles to get you a lawyer and you spend hours preparing for what is supposed to be a fact finding interview.  Instead, the prosecutor looks you coldly in the eyes and says you will be indicted and if convicted you will spend five years of your life in a Federal jail.  If you plead guilty (despite the fact there is no proof of wrong doing) you will only get 1 to 2 years in jail. 

WHY IS BIG GOVERNMENT SPENDING OUR MONEY TO HARM ORDINARY CITIZENS AND SMALL BUSINESS?

Ask yourself why is the Washington establishment going after this worker? 

When big oil polluted the Gulf of Mexico, caused millions in damages, there was no indictment of anyone.  There were no jail terms threatened even though there was a loss of many lives, big damage to wildlife and nature, and a huge impact on Gulf jobs.

When Ray Joseph stole $2.7 million dollars in a Ponzi scheme to enrich himself the government did react.  This was malicious, intentional, and injured other people financially. But big government, led by Ms. Colbourn, is spending as much money to persecute a hard working production employee trying to support his family with nearly the same sentence.  What are the powerful people in Washington trying to achieve?  Where is their sense of fairness and right?

Department of Justice Press Release


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For Immediate Release
March 22, 2010

United States Attorney’s Office
Eastern District of Michigan 
Contact: (313) 226-9100

Bloomfield Hills Resident Goes to Jail for Multi-Million-Dollar Lender-“Ponzi” Scheme

DETROIT, MI—Raymond Frank Joseph, 55, of Bloomfield Hills, was sentenced today to 66 months in prison, followed by three years of supervised release, after having have been convicted in December 2009, of three counts of wire fraud, nine counts of interstate transportation of stolen money or property, and 24 counts of conducting monetary transactions in criminally derived property, announced Barbara L. McQuade, United States Attorney for the Eastern District of Michigan. Joseph was also ordered by pay restitution in the amount of $2.2 million to victims of his Ponzi scheme.

Ms. McQuade was joined in the announcement by Special Agent in Charge Maurice Aouate, Internal Revenue Service Criminal Investigation Division and Special Agent in Charge Andrew Arena, Federal Bureau of Investigation.

A federal jury found Raymond Frank Joseph guilty of all 36 counts following a two-week jury trial in Detroit before United States District Court Chief Judge Gerald E. Rosen. After the verdict, the Court revoked bond and remanded the defendant to custody pending today’s sentencing.

According to court records, from 2002 through 2007, Joseph solicited loans of money from several individuals to invest in a number of business ventures. To induce the lenders to give him their money, Joseph fraudulently promised the victims a specific date of repayment with interest resulting from his claimed business investment of the money. When Joseph received the lenders’ money, he did not invest it as he had earlier represented but instead used the loaned money: (1) to repay, in a manner characteristic of a “Ponzi” scheme, other individuals who had earlier loaned Joseph money; and (2) to fund Joseph’s own personal expenses, including his credit card bills, household expenditures, and vehicle costs. As a result of his fraudulent acts, Joseph obtained approximately $2.7 million dollars which he failed to repay his lenders.

The US Department of Justice, in Washington DC, has assigned Federal Prosecutor Elinor L. Colbourn to targeted Gibson Guitar Corp.  Ms. Colburn has been investigating Gibson for possible violations of the Lacey Act.  The government without any prior warning broke into Gibson’s main plant in Nashville, TN with over a dozen heavily armed Federal Agents in swat attire on November 17th, 2009.  They refused to discuss why they were there. They scared and forced approximately 300 people out of the plant at gun at their side. They confiscated $300,000 of finished parts and guitars, and spent the better part of the day at Gibson disrupting work and intimidating the workers.

While there, they pulled aside production employees and in some cases put them in a room while they interrogated them individually without a lawyer with several full armed agents in a hostile and intimidating fashion.

Gibson has been under investigation and continues to cooperate with the government since the raid conducted on November 17th, 2009.  There were many promises of prompt action on the part of the lead prosecutor Ms. Colbourn to Gibson’s General Counsel.  This big government agency still has not filed charges, nor done more than hint the issue may have to do with wood procured from Madagascar.  (Wood can be legally procured from Madagascar.)

        Gibson Guitar Corp. is a good corporate citizen that has given away millions of dollars through its Gibson Foundation.

·        Gibson is a privately held entrepreneurial company that competes against Yamaha Corporation based in Japan which is many times its size, among other well run competitors.

        Gibson branded product are exclusively manufactured in the United States.  Gibson has consistently been increasing its US employment including this year.  Gibson has factories in Nashville, TN; Memphis, TN, Truman, AK and Bozeman, MT.

·        Gibson exports approximately 60% of its goods, successfully selling in countries like China, Japan and very soon in India.

WHY IS BIG GOVERNMENT SPENDING OUR MONEY TO HARM ORDINARY CITIZENS AND SMALL BUSINESS?

The Federal Government is spending millions of tax payer dollars to persecute Gibson Guitar Corp. and indict a production employee.  This has already cost Gibson almost $1 million dollars.  Gibson’s costs must be passed on to customers.

Their campaign of legal terrorism used intimidation, and deceit.  This terrorism is aimed at ordinary citizens and a smaller entrepreneurial company with a history of doing good.  The government could have warned Gibson and other businesses that a law (which passed about a year before the raid) would require additional caution or procedures.  There was no such warning, nor is there yet a written procedure to insure you comply with that new law (which is required by the law itself).

Is the Federal Government trampling on the American values of fair play?  Is the big government agency acting of and for the people, or is it acting like a giant ogre swinging an expensive and hurtful club against ordinary citizens and small business.  They chose guns, swat teams and Ivy League lawyers over dialogue.

But there is more insanity.  The reason Gibson is being persecuted is because our production employee went on a trip to Madagascar sponsored by Green Peace to encourage certification of its forestry resources!  Several competitors which were part of the Music Wood Coalition also went on this trip.  Neither our competitors, nor the broker that we actually bought the wood from have been investigated.

From: Scott Paul [mailto:scott.paul@wdc.greenpeace.org]
Sent: Thursday, February 21, 2008 12:51 PM
To: gpaul@martinguitar.com; Nick Colesanti; Rob Stangelini; Mjanopaul@fender.com; Bob Taylor; Dave Berryman; Henry Juszkiewicz; Jake Jackson; Brian Jemelian; kazumi_ishikawa@gmx.yamaha.com
Cc: Rob Garner; Larry Edwards; Rolf Skar
Subject: Save these dates – Sealaska & Madagascar

Here are a few dates to pencil in.  Rob and I will be following up with more information shortly.

3. Madagascar (Two current possible windows – May 12-24 or 14-26 / twelve day window)

Rob will continue to communicate with all of you about this trip as it shapes up.  Currently it’s looking good.  I believe that if we can reach a critical mass of Coalition participation than this trip will happen.  While full details are still emerging the trip does sound like an incredible opportunity to see this exotic land from an unprecedented vantage point.  It is clear that we will have the opportunity to visit key production areas and meet with key players in the government, business and NGO community.  The possibility of this trip is generating considerable attention in Madagascar and across the FSC community.

Scott Paul
Director, Forest Campaign
Greenpeace USA
702 H Street, NW
Suite 300
Washington, DC 20001

Tel: 202 319 2469
Fax: 202 462 4507


        In a 2006 case pending in the Middle District of Tennessee, Ms. Colbourn represented the United States against a defendant, Ed Winddancer, indicted for possessing and bartering eagle and other feathers for use in his Native American dancing and performances.  Judge Trauger denied the defendant’s motion to dismiss, among other reasons, because the defendant was not a member of a federally recognized Native American tribe.

·        Ms. Colbourn was also involved in prosecuting a criminal case filed in 2009 against a company alleged to have falsely labeled and sold frozen catfish as grouper; following a trial, the president of the company was sentenced to 63 months in prison. 

        In a case initiated in 2006, the government prosecuted a member of the Northern Arapaho Tribe of Wyoming for shooting a bald eagle for use in a traditional religious ceremony without a permit; on appeal, the 10th Circuit reversed the district court’s finding that the Religious Freedom Restoration Act precludes the government from prosecuting the defendant, and remanded the case for trial.  

Ms. Colbourn was a hired gun that used legal violence to protect big government when big government does damaging and hurtful things:

·spanspanspan        In the early-to-late 1990s, Ms. Colbourn assisted in the defense of various environmental claims brought against governmental agencies.  As an example, Ms. Colbourn was involved in defending a case filed in 1996 challenging regulations promulgated by the Secretary of Commerce that allegedly had a disastrous impact on small fishing boat op

By |August 25th, 2011|Uncategorized|0 Comments