Acquittals, acquittals everywhere

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By Victoria Calvert

Greetings, everyone! We are a little delayed in our reporting but figure this post will bring you some holiday cheer. Since we last met at our St. Crispin’s Celebration, there have been three (yes, three!) acquittals in the Northern District of Georgia.

The first occurred in Newnan, which does not get a ton of action, but with TCB on the bench, any action happens very quickly. And so it is not surprising that before lunch on a Monday morning, Dennis O’Brien had picked a jury, done openings, and cross-examined the government’s first witness. Dennis’s client, Abu Sakapala, was driving a tractor-trailer that happened to have a trap with 152 kilos of cocaine when it was stopped by a state trooper. At the scene of the stop, Sakapala denied knowledge of the drugs, but according to the DEA agents, later admitted he was aware of the cocaine cargo and had done multiple drug runs before. Even though this purported confession occurred at its headquarters, the DEA failed to record it. And the DEA-6s were inconsistent about the timing of this damning statement. Armed with these evidentiary problems and a “mere presence” argument, Dennis urged the jury to acquit Sakapala. And less than three hours later, and only one day after the trial began, it did just that. According to Dennis and Orson Welles, “Nobody gets justice. People only get good luck or bad luck. Sakapala got good luck.”

Next we head to Atlanta where the victory took a little longer. The two defendants were represented by Brian Mendelsohn and Courtney O’Donnell (on behalf of Kimverlee Aderhold) and Esther Panitch, Crystal Bice, and Victoria Brunner (on behalf of Eric Ramey, Jr.). Both were charged with several counts of theft of pre-retail medical products, such as CPap and portable oxygen concentrators, and misbranding those products by distributing them without a prescription. On the third day of trial, the defense filed a 26-page Rule 29 motion, which resulted in all of the theft counts getting dismissed because the products were not “pre-retail.” And although the Rule 29 was denied on the misbranding counts, it played a role in the jury instructions that were given and what the government could argue in closing. The jury started deliberating on Friday at about 3:30 p.m. and were serious about their task. As the hours passed, they refused pizza and continued deliberating even after the heat was turned off. Finally at about 8:00 p.m., they asked a question about intent. The government gave its proposed response and then Judge Totenberg turned to the defense. In what Esther describes as an Olympic baton handoff in winter coat and Uggs, all four members of the defense teams, argued against the government’s proposal. And then less than an hour later, the jury returned “not guilty” verdicts not only on the felony misbranding counts, but even on lesser-included misdemeanor offenses.

Finally, we end with a case that also turned on the issue of intent. Rebecca Shepard and Brian Mendelsohn (yes, in back-to-back trials) represented Andres Castaneda-Guzman, a 24-year old man illegally present in the U.S. charged with taking a 14-year old against her will from Texas to Georgia to engage in unlawful sexual activity. In a DOJ press release, he was described as having committed “an atrocity of the worst kind.” The defense team’s response was “Come on y’all, this is straight out of a soap opera!” They argued that Mr. Castaneda considered the minor to be his girlfriend and that he had consistently maintained that he was simply rescuing her from a bad home situation. Meanwhile, the minor changed her story, hid or destroyed evidence, and had amnesia during Rebecca’s four-hour cross-examination. Whereas the case agent stated that it was hard to get anyone in immigrant communities to talk, the defense called witnesses who testified that they saw no evidence that the minor had been held against her will. While the government pointed to a still shot of the minor’s face during a traffic stop to show that she was being held against her will, the defense called the officer who initiated the stop and stated that he saw no signs that anything was amiss. During deliberations, the jury asked a worrisome question about whether the client could have multiple intents. But ultimately, it acquitted Mr. Castaneda and some jurors even personally congratulated the defense team as they left the courthouse.

We are looking forward to awarding Dennis, Esther, Crystal, Victoria, Brian, Courtney, and Rebecca with Acquittal Club t-shirts next October and hope we can add more to the club in 2020. Happy Holidays!

 

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