There have been some big wins in big cases this week for the Eastern District of Tennessee. First, the Sixth Circuit vacated the sentence in a major case against the former Sheriff Long. In that case, the government attempted to manufacture increases to the defendant’s offense level based on conspiracies that never happened (it was just a CW telling the defendant that the conspiracy existed). Apparently the government cannot always just make up a number and then use that number to sentence the defendant without some actual conduct on the defendant’s part.
Then today, the Sixth Circuit handed down United States v. Parkes, a multimillion dollar bank fraud case where the defendant’s conviction was overturned due to insufficient evidence. But the bigger news in this case (not for the defendant, but for practitioners) was that the Court then went on after reversing the conviction to smack down the prosecutor for lying to the jury in closing arguments.
In this case the bank made a loan to a company, but then the company started losing money and the loan was therefore considered to be a bad loan. The alleged fraud involved repackaging the loan which had gone bad and turning it into other loans so that the FDIC would not investigate the bank and discover the bank president’s embezzlement. The interesting thing about this case is that the defendants, whose company was the beneficiary of the original loan, ended up paying off about $3.2 million of the $4 million loan before trial and was continuing to make payments. At first, the prosecutor fought hard to keep the jury from finding out the defendants had paid back most of the money. But then during closing arguments, the prosecutor stood up and told the jury,
“Your Government just wants you to do what is right. And if it’s right to acquit [Parkes and Mourier], you do it, you let them keep the $4 million, you tell the government, ‘Shame on you for persecuting these poor people.’”
The government basically told the jury that if they acquitted, the defendants would get away with $4 million, something the government knew was not true. This prompted the Sixth Circuit to take some extra time to tell the prosecutor that his transgression was serious and his arguments to the contrary were lame.