Michigan Criminal Lawyers Blog

This time - it's the Lansing based Michigan Attorney General's turn to take a whack at the family of former Detroit Mayor Kwame Kilpatrick.

Nneka Cheeks, the former Mayor's cousin, faces criminal charges of embezzlement, a felony punishable by up to 5 years in prison and / or a fine of $10,000.00 or 3 times the value of the money embezzled, whichever is greater, MCL 750.174(4)(a) and/or (c).

The crime occurred while Cheeks was working in the Mayor's office. The victim is the Manoogian Mansion Restoration Society, a charitable organization.

The Attorney General claims that Ms. Cheeks stole approximately $19,000.00 from the non-profit organization. She allegedly spent the funds on luxury goods and services.

Additionally, the criminal defendant is charged with the crime of criminal enterprise, commonly known as "Racketeering", MCL 750.159i and 750.159j, a felony punishable by 20 years in prison. That charge suggests that Cheeks did not act alone.

The crime of embezzlement is comprised of several necessary elements. Those are that (1) The criminal defendant either occupied or acted in a fiduciary relationship; (2) That the defendant obtained possession or control of the property through that special relationship, and; (3) That the defendant wrongfully converted or appropriated the property with (4) Intent to defraud, and; (5) Without the consent of the principal.

The elements of racketeering are: (1) Knowingly acquiring or maintaining an interest in, or control of; (a) A criminal plot, or; (b) Property used or intended to be used in such a plan, directly or tangentially; (2) Through a method or racketeering operation that had; (a) The same or a substantially similar object, result, participants, dupe, or method of commission, or was otherwise interrelated by distinguishing characteristics, which were not merely isolated acts; (b) Amounting to or posing a threat of continued criminality, and; (c) Which was committed for profit.

If any one of the necessary elements lacks a factual basis, the deficient charge must be dismissed in its entirety.

The sheer complexity and incomprehensibility of the Michigan racketeering statute will undoubtedly give Cheeks' Southfield criminal defense lawyer a leg up in the litigation, at least with respect to that charge, primarily because the prosecution carries the burden of proof throughout the entire trial.

And it is that reality which may land the criminal defendant an opportunity to turn the other cheek--and accept an offer to plead to a vastly reduced charge.

Kilpatrick's Cousin Charged With Embezzlement, WXYZ / ABC Action News, April 28, 2011

If you find yourself repeating, from time to time, the following phrase: "Now, where did I put that $100,000.00 again"? You may be in serious need of a good to-do list. And don't forget to remember to remind yourself that there's an App for that!

One thing that the victim in this embezzlement case didn't forget to do, however, was to seek a criminal complaint for the crimes of Embezzlement (MCL 750.174) and Using a Computer to Commit a Crime (MCL 752.796 and MCL 752.797) through the Kent County Prosecutor's Office in Grand Rapids, Michigan. Under the circumstances, both felonies are punishable by up to 20 years in prison.

According to attorney Gary McInerney, his former secretary, Wendy Bernard, stole the money while working as a secretary for McInerney's law firm. The incident allegedly occurred in 2004.

Which raises the question of legal defenses. One that should be leaping off of the page for Ms. Bernard's Grand Rapids criminal defense lawyer is the Michigan statute of limitations. That is because the residual statute of limitations for crimes (not specifically subject to other such statutory deadlines) is 6 years, MCL 767.24(5).

As always, every case is fact-driven. Thus, if Ms. Bernard was residing out of state, the statute of limitations might not apply in this case, due to tolling.

Another principle which might defeat the criminal defendant's defense in this matter is the doctrine of fraudulent concealment, MCL 600.5855. Under the civil law, if the person whom caused the harm actively and affirmatively concealed the matter from the victim, the dupe may have an additional two years to act, from the time of ultimate discovery. Since there are no appellate level criminal cases citing that statute, however, It is not clear whether that principle applies to criminal prosecutions.

What is clear is that silence alone is not sufficient to support a claim of fraudulent concealment, Bradley v Gleason Works. On the other hand, a fiduciary relationship is an exception to that deficiency, Brownell v Garber.

Under the common law, the action accrued when the offense was committed and the victim knew or should have known that he had been duped (or harmed, as the case may be). Recently, however, the Michigan Supreme Court in Lansing effectively abolished the second prong of common law accrual (actual or constructive knowledge). Thus, in accordance with the provisions of MCL 600.5827, the action accrues when the offense was committed, plain an simple. Trentadue v Gorton.

Let the games begin!

Woman Charged With Embezzlement From Law Firm, WZZM13 ABC News, April 23, 2011

The Wayne County Prosecutor's Office in Detroit has charged a Lincoln Park, Michigan man--Ricky Netherton Jr., 28--with "Possession of Child Sexually Abusive Material", MCL 750.145c(4), a felony carrying up to 4 years in prison and fines of up to $10,000.00. Upon conviction, the defendant's name and address must be listed on the Sex Offender Registry, pursuant to MCL 28.723, et seq. The site is open to public viewing.

The criminal defendant is additionally charged with "Using a Computer to Commit a Crime", MCL 752.796; 752.797(3)(d), a felony carrying up to 7 years in prison.

The arraignment was held at the Wyandotte District Court. The Preliminary examination is scheduled for April 28, 2011. A preliminary examination is a gate keeping function. It is an adversarial court hearing where the prosecutor must establish that each of the necessary elements of the charged crime is supported by at least some evidence.

The elements of a crime are like the wheels on a car--if one is missing, the car cannot go forward.

The ultimate goal of Netherton's detroit criminal attorney at the preliminary examination is to successfully oppose the prosecutor's evidence and obtain a dismissal based on lack of evidence.

To that end, the criminal defense lawyer may have a lot to work with. That is because, what lit the fuse and brought Mr. Netherton to the attention of the Police, was a domestic disturbance.

The incident occurred at Netherton's apartment. The police were called and responded to the scene shortly thereafter. We deduce from various reports that Netherton was absent when the officers arrived. Nonetheless, it appears that the police were invited into the apartment and informed that Netherton was storing child pornography on his computer.

A password blocked access to the data, so the police sought and obtained a search warrant. Ultimately, forensic computer experts were able to extract the illegal child sexually abusive material.

No doubt the criminal defense attorney will mount a two-pronged attack: First, the spouse or other occupant involved in the residential malay clearly had an axe to grind. That is born out by the fact that she finally alerted the police to what she knew about the computer images--on the heels of a fight with Netherton.

That angle is important because, under Michigan law, evidence of an interest in the outcome of the litigation, and evidence of hostility toward the defendant, may be considered by the jury as evidence that the witness telling the tale is not credible, People v Glover and People v Borowski .

That is argument is critical, because all evidence comes from the mouths of the witnesses. Moreover, the presiding judge will instruct the jury that, if they find that the witness testified falsely on a material matter, they may reject the witness' testimony in its entirety.

Another tack which might turn the criminal trial Netherton's way is the argument that Mr. Netherton was not the only occupant of the residence.

After all, the prosecution bears the burden of proof. Moreover, that burden never shifts to the criminal defendant. In fact, the criminal defendant is never required to prove anything in a criminal trial (unless he raises certain affirmative defenses, in which case he may be required to produce at least some evidence in support of each element of those defenses, at which point the burden of proof shifts back the to prosecutor).

The burden of proof in a criminal trial is "proof beyond a reasonable doubt". In other words, if a jury is left with a reasonable doubt as to the criminal defendant's guilt, it must return a verdict of not guilty.

An interesting footnote to the judge's jury instruction on burden of proof is that the instruction is completely silent as to the size of the doubt. Thus, it can be truthfully and accurately stated by the criminal defense attorney in closing argument that even a small doubt can amount to a reasonable doubt, if it arises out of the facts or lack of facts brought out at trial.

Another compelling and effective defense argument is that there are only two possible verdicts in a criminal trial (except where the issue of legal insanity is in play): Guilty or Not Guilty. Contrary to popular myth, there is no such verdict as innocent. Hence, a jury may be obligated to find a criminal defendant not guilty, even if they remain skeptical of his innocence.

No doubt the future looks grim from the window of Netherton's cell in the Wayne County Jail. But there is also plenty of room for optimism, considering the weaknesses of the prosecution case.

Riverview Man Accused Of Possessing Child Pornography, Suggestive Adult Photos, The News-Herald, April 20, 2011