Monday, February 28, 2011

Sources: Plea agreements by Brown and Kissick are “just the start”

According to two, independent sources with knowledge of federal investigations involving both the Colonial BancGroup / Taylor Bean case and the BingoGate case USA vs. McGregor et al, the plea deals being agreed to by Taylor Bean’s Desiree Brown and Colonial’s Catherine Kissick are “just the start,” and more plea deals and/or indictments are forthcoming.

Media coverage of the Desiree Brown hearing last week in US District Court for the Eastern District of Virginia noted that Lee Farkas, the former CEO of Taylor Brown, has himself entertained pleading guilty in exchange for his testimony.

Federal banking regulators, securities regulators and law enforcement officials are investigating a nearly $2.0 billion fraud scheme, allegedly concocted by senior Taylor Bean and Colonial officials.

Farkas is a big fish in these investigations and faces the potential of never getting out of prison except feet first. In order for the government to even entertain a plea agreement, the testimony he provides would have to be monumental.

imageA bit of background: There have been precious few indictments, much less convictions or guilty pleas, regarding billions over billions in alleged fraudulent applications for relief under the US’ Troubled Asset Relief Program (TARP). There are a myriad of investigations being conducted across the country, with some notable successes and a few disappointments (not worth going into here). But political pressure is growing to get a scalp or three from someone sitting at the top of the financial institutions. The problem, according to both legal and political sources, is that many of the top executives most often mentioned as TARP money miners are Wall Street executives who have poured millions into political campaigns for federal offices over the last several cycles.

Not wanting to bite the hands that have been feeding them for years, the government is looking elsewhere.  A little farther down the food chain, if you will.  Colonial BancGroup, at the height of its power and prestige, was a $26 billion, multi-state bank holding company with tentacles in Alabama, Florida, Georgia and Nevada. When it failed in summer of 2009, it was the largest failure of the year and the sixth largest in US history.

The CEO and other top officials of that and other smaller, less politically powerful (nationally) institutions are prime targets of the Department of Justice which, if you understand “how things work,” is still headed by a political appointee with an propensity for protecting favored constituencies.

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AUBurgeddon: Kevin Scarbinsky is probably a lousy poker player

JailAubie At the website run by the state media cartel (aka,, Kevin Scarbinsky, Senior Sports Columnist and Head Auburn Cheerleader has a new panties-in-a-wad rant today.

As a friend of mine pointed out when he saw the column, “if this were Alabama he was writing about, the headline would read ‘Alabama deserves stiff sanctions for lying to the NCAA during the investigation.’ ”

How true and and a great point about media bias (or simple lack of intellectual curiosity) plaguing the state’s three major daily newspapers. 

What’s more interesting to me is that Scarbinsky doesn’t seem to grasp the game being played here. It’s not about credibility. It’s about protecting one’s interests in a very high stakes game.

If those two former Mississippi State football players have a tape or tapes of Cecil Newton asking for money to send his son Cam to their school, as [radio talkshow host Scott] Moore said Friday during a radio interview with WNSP in Mobile, they should play them for the public.

If John Bond and Bill Bell have a tape or tapes to prove that Cam Newton was in the room when his dad was asking for money to send him to State, as Moore also said when he described having heard some of the tapes, they should play them, too.

And not for pay.

If they're trying to cash in because, as Moore said Friday, the tapes "have a lot of value," they're no better than Cecil Newton himself.

I’m not gonna parse Scott Moore’s comments because I didn’t hear the whole radio interview. But yeah, they do have a lot of value. One of the most valuable aspects of those recordings is that they serve as the only leverage Bond, Bell, Rogers and Mississippi State have against the SEC and the NCAA throwing them under the bus.

If there is evidence that the Newtons lied to the NCAA about the son not knowing what the father was doing, it’s not only front page news, it’s a 2010 record of 0-0 for Auburn, vacated SEC and national titles and probably a forfeited Heisman Trophy. And then, the NCAA will penalize Auburn.

Bond and Bell have now seized the narrative with the publicity surrounding the existence of incriminating recordings. They have forced the “other side” to change their tactics and reconsider their own strategy. It’s as if these are two poker players heads up, with all the chips in the pot.

In poker, you don’t have to be holding the nuts to make the other side fold. All you have to do is make them think you do. Scarbinsky’s rant is akin to a player hollering “show me your cards!  SHOW ME YOUR CARDS!!” after watching his opponent raise it for everything.

It’s not time for Bell and Bond to put up or shut up. It’s time for the SEC and the NCAA to do that.  Bell and Bond have placed their bets, and you don’t get to see their cards until you call.

Scarbinsky doesn’t get that, so I’m inviting him to a weekly poker game held each Friday night.

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SHOCKA! Former MADD President arrested for… drunk driving

From the Gainesville Sun.

A woman who once served as the President of a now defunct chapter of Mothers Against Drunk Driving has been arrested and charged with driving under the influence.  She wasn’t blowing a tipsy, buzzy 0.08, either.

Oh, no.  She blew 0.234 and 0.239 in successive tests. In other words, she was arrested for driving while blind. Gainesville's MADD chapter—who had Oberlin as its President for three years—closed in 1996 due of lack of “financial support.”  Uh huh.

When you’re drinking enough to blow almost three times the legal limit, those damned bar tabs can get expensive.

On a serious note, I applaud MADD’s effort to raise awareness and reduce the number of fatalities caused by seriously inebriated drivers—like this one. However, they were behind a national effort to reduce the legal limit from 0.10 to 0.08, and have vocally lobbied for even lower limits.

I view that as counterproductive. The real problem out there on the streets and highways are the rampant alcoholics who have the liver and tolerance to down enough booze to blow the levels she allegedly did, and still be conscious. It’s not the people who stop at the neighborhood bar for a couple of beers before heading home for dinner, or the petite lass who had two glasses of wine with her sushi.

BingoGate: Judge hearing oral arguments this week on wiretaps

image As reported here on February 17, US Magistrate Judge Wallace Capel will hear oral arguments starting today on whether the prosecution will be allowed to use the wiretap recordings as evidence against the nine remaining defendants in USA vs. McGregor et al.

Citing federal statute, case law and the United States Constitution, the defendants are asking the Court to suppress most or all of the evidence found on the wiretaps.

The key to the defendants’ argument is that the government failed to follow the authorizing order under Title III and that the agents responsible for carrying out the surveillance failed to follow instructions given them. By doing so, defendants argue that the government eavesdropped on conversations that were not pertinent to the case and invaded the privacy of the defendants, their business associates and their their family members. The defendants argue that since some of the conversations were privileged and should not have been recorded, all of the evidence should be thrown out.

Several of the motions mention wiretapped conversations that are completely unrelated to the facts and allegations of this case. As regular readers of this blog know, it is widely believed that some of those conversations implicate individuals in matters far removed from the original scope of the US vs McGregor et al indictments, and it is also widely believed that the NCAA has a great interest in the contents of those recordings.

Naturally, the prosecution has filed lengthy and vigorous motions in opposition to the defendants’ motions.

Given that there are so many of the same faces showing up in so many of the same, unusual places, suppressing that evidence could have a tsunami-like ripple effect on other rather high profile investigations.

Legal analysts tell me that the prosecution has a better than even chance of prevailing and that Judge Capel will likely let the jury hear the evidence

No order was given closing the hearing, so interested members of the public may attend.

The Court’s decision could come at any time following the hearing.

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Another guilty plea in Colonial, Taylor Bean & Whitaker fraud case

image Another domino falls towards Alabama in the ongoing investigation into bank fraud, wire fraud, money laundering and conspiracy involving officials at the very top of Colonial BancGroup and former mortgage giant Taylor Bean & Whitaker.
In June 2010, the government obtained an indictment against former Taylor Bean CEO Lee Farkas.

Last week, Taylor Bean’s former Treasurer Desiree Brown entered a guilty plea in US District Court in Alexandria, Virginia.

This week, another guilty plea is expected: Catherine Kissick, Senior Vice President and Director of both the Institutional Services Division and Mortgage Warehouse Lending Division of the once mighty $26 billion Colonial BancGroup.

Suevon Lee, reporter from has the story from last Friday.

In the original Farkas indictment and the accompanying SEC filings, the government contends that Farkas and an unnamed “Colonial Bank Officer” conspired and engaged in a complicated check kiting scheme to conceal Taylor Bean’s financial dealings.  The filings associated with the Kissick deal indicate that she is the “Colonial Bank Officer” mentioned in the Farkas case.

In Spring 2009, as Colonial’s peril became clear, court documents show that Farkas then allegedly conspired with a “Senior BancGroup Officer” to conceal a fraudulent scheme to obtain TARP funding from the government.  That “Senior BancGroup Officer” is believed to be Bobby Lowder.

In her testimony before U.S. District Judge Leonie M. Brinkema last week, Desiree Brown acknowledged the existence of an even larger conspiracy to defraud taxpayers out of nearly $2.0 billion.

Always worth pointing out—Bobby Lowder’s reputation as a micromanager means that he is certain to have not only known about the scheme to defraud the government, he would be neck deep in the details. His banking empire is now in ruins. His old friends Robert Geddie and Milton McGregor are facing conspiracy charges of their own and the NCAA Enforcement staff is breathing down the neck of Auburn University.

Exit question: Since he represents damned near everyone listed in the paragraph above, what’s the over-under on the hours billed by Super Lawyer Sam Franklin?

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Friday, February 25, 2011

More details of Colonial investigation emerge in plea agreement

As reported here yesterday, former Taylor Bean & Whitaker executive Desiree Brown agreed to plead guilty to federal fraud and securities charges in an Alexandria, Virginia court hearing. As a result of that plea deal and from news reports covering the hearing, some interesting new details are emerging.

From the Bloomberg story that hit yesterday afternoon, it is apparent that the scheme to defraud the US Troubled Asset Relief Program involved more people than just Lee Farkas and Brown, and Farkas himself has entertained offers for a deal.

Until today, Farkas, 58, was the only person charged in what the government said was a massive scheme to deceive financial firms and TARP by covering up shortfalls at Taylor, Bean, once the largest non-depository mortgage lender in the U.S., according to the SEC’s statement on the case. Farkas was indicted on 16 counts in June and faces the possibility of spending the rest of his life in prison, according to a Justice Department statement.

“Were there other people besides Mr. Farkas who were involved in this scheme,” U.S. District Judge Leonie M. Brinkema asked Brown at the plea hearing?

“Yes ma’am,” Brown answered.

In the criminal case, Brown admitted that from late 2003 through August 2009, she, Farkas and other unidentified individuals conspired to defraud Colonial Bank, Colonial BancGroup Inc., shareholders of Colonial BancGroup, TARP, and investors in Ocala Funding LLC, which included Deutsche Bank AG and BNP Paribas SA, according to Brown’s statements in court and a Justice Department statement.

One of the goals of the scheme was to obtain funding for Taylor, Bean to help cover expenses for operations and “servicing payments owed to third-party purchasers of loans and/or mortgage-backed securities,” the department said in the statement.

On June 15, 2010, after nearly a year of investigations, depositions and grand jury hearings, the Department of Justice indicted Lee Farkas, Chairman and CEO of Taylor, Bean & Whitaker Mortgage Corp, which at the time was one of, if not the largest originator of home mortgages in the country.  Farkas and Taylor Bean were one of Colonial's largest customers, using Colonial’s “warehouse” lending unit to finance the origination of mortgages which Taylor Bean then packaged and sold to Fannie Mae and Freddie Mac. 

imageIn the indictment and the accompanying SEC filings, the government contends that Farkas and an unnamed “Colonial Bank Officer” conspired and engaged in a complicated check kiting scheme to conceal Taylor Bean’s nefarious financial dealings.  Later, as things began to unravel during Spring 2009, court documents show that Farkas conspired with a “Senior BancGroup Officer” to conceal a fraudulent scheme to obtain TARP funding from the government.  It is not known who the “Colonial Bank Officer” was that helped Farkas conceal transactions from regulators.  The “Senior BancGroup Officer” is believed to be Bobby Lowder.

More from the Bloomberg story:

William Cummings, a lawyer for Farkas, attended today’s hearing. In an interview, he said he expected more guilty pleas before his client goes to trial. He said his client, who has pleaded not guilty, has had some settlement discussions with the government though “nothing has come out of it yet.”

Brown said in court that she has been talking with the government for the past six months. Brown was vice president of special projects at Taylor, Bean starting in October 2002. In 2004, she was named controller and then treasurer.

While it is still much too early to be certain, the details emerging from yesterday’s hearing indicate that the noose is tightening around the neck of the former CEO of Colonial BancGroup.  Brown acknowledges a broader conspiracy to defraud TARP and Farkas himself is considering copping to a plea deal.

It bears noting that as a non-depository mortgage company, Taylor Bean was not eligible to receive TARP funding. That money would necessarily have gone to Colonial, and Mr. Micromanager—who is known to make calls to political figures when their $50,000 loans are 15 days late—would absolutely been in near complete control of any plans to secure the hundreds of millions sought by Colonial.

Extra Point: What a Shakespearean tragedy is unfolding here.  Lowder, the micromanager, would surely be a key player in any NCAA and legal wrongdoing at Auburn University. After all, he is the Tiger of Trustees at the school, controlling the school’s finances and pumping millions into the Tigers Unlimited slush fund foundation. The micromanager was also key to Colonial’s rise and meteoric crash two years ago.  The man’s friends say he has had two great loves in his life: His banking empire and Auburn.

But his micromanaging—and some say his arrogance—may lead to the destruction of them both.

The bard himself would weep.

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Thursday, February 24, 2011

BREAKING: Taylor Bean exec tied to Colonial Bank failure pleads guilty

As expected and as covered here earlier this week, Desiree Brown, former Taylor Bean & Whitaker Treasurer, has agreed to plead guilty. In exchange for her testimony, some charges will likely be dropped.

Ms. Brown knows where the bones are buried, in south Florida and in central Alabama.

Via Reuters:

Feb 24 (Reuters) - The former treasurer of bankrupt Taylor, Bean & Whitaker Mortgage Corp, Desiree Brown, pleaded guilty on Thursday to conspiracy, the first plea in one of the biggest fraud cases stemming from the U.S. mortgage meltdown.

Brown, who eventually rose to become the treasurer from being a receptionist at the large mortgage firm, is expected to cooperate with prosecutors as they pursue criminal charges against the former chairman of TBW, Lee Farkas.

Taylor, Bean & Whitaker filed for bankruptcy in August 2009 and prosecutors have estimated the fraud involves some $1.9 billion and potentially billions of dollars more in losses to federal housing programs.

Farkas has pleaded not guilty to 16 counts of fraud and conspiracy charges. His trial is slated to begin on April 4.

Brown’s plea deal is huge from several different angles.  It’s the only guilty plea to date in the case that brought down two titans of the mortgage business: Taylor Bean and Colonial Bank.

Colonial Bank has admitted that it is also a target of a federal criminal investigation, and many analysts and observers believe Colonial Bank executives will be indicted.

The FBI, the SEC and the US Attorneys Office does not comment on the existence or status of ongoing investigations.

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Wednesday, February 23, 2011

Heartache: Nick Saban lookalike guitarist found

Remember that viral John Tesh video going ‘round teh innerwebs, showing a dude who looked just like Alabama Head Football Coach Nick Saban shredding some masterful licks during a live performance of Tesh’s Roundball Rock?

 The video was first discovered (in the Nick Saban context) by RollBamaRoll.

 Here’s the video again, in case you missed it. Skip to the 2:39-ish mark, where the dude makes it wail:

Crimson vest.  Crimson guitar.  It’s gotta be him.

Sadly though, it’s not Nick Saban. The six-stringed virtuoso in the video is a guitarist named Wayne Johnson.  Here is a photo of Johnson in studio, playing a new Taylor Solid Body Classic electric guitar:


And further destroying the mythical notion that Nick Saban made the violinist’s azz quit, here’s a snippet from Johnson’s website:

Wayne Johnson is an exception. Until recently, the jazz virtuoso's most visible activity was playing guitar for the pop/jazz vocal group the Manhattan Transfer, of "Boy from New York City" fame. With the Transfer, he has concertized around the world and recorded in some of the most prestigious studios in the U.S. As a soloist and the leader of the Wayne Johnson Trio, Johnson has recorded for Mojazz (Motown), MCA, and GTSP (Polygram). GTSP released his most recent solo acoustic effort, the scintilating Kindred Spirits, in 1996. But for the last two years, Johnson has had his most visible gig by far: touring as the opening solo acoustic guitarist for keyboardist/TV personality John Tesh.
Tesh fills the house at each concert, but Johnson is the one who blows the audience away. His repertoire spans a considerable range, from a stunning Beatles medley to a fiery jazz improv to his own showstopping compositions. He plays finger-style mostly, but on occasion a flatpick appears in his right hand as he rips through a jazz improvisation over a delay-looped chord progression he lays down live. He also plays screaming electric guitar in Tesh's band during the main show and is a featured soloist throughout the program.

Let the meltowns commence.

Exit question: WTF are we doing watching John Tesh videos, anyway?  I know it’s the offseason but isn’t that a little too ghey?  NTTAWWT, of course.

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BingoGate: Court GRANTS motion to allow witness access to wiretaps

McGregor can play the tape.  Snerdly, Cut One.

Since the government was also planning to share wiretap contents with witnesses for the prosecution, it’s not unusual for today’s ruling. Indeed, counsel for defendant McGregor had already discussed the matter with Pete Ainsworth of the prosecution team and the prosecution did not object. 

Accordingly, US Magistrate Judge Wallace Capel has GRANTED defendant McGregor’s motion for permission to share the recordings themselves, provide transcripts of the conversations or discuss the contents of the conversations with potential witnesses who were parties to the calls.

With one important caveat:


“However, Defendant is instructed that he is have any prospective witness execute a confidential agreement, wherein they agree to keep the contents of the wire-tap recorded conversations confidential until the time of trial.”

That caveat is consistent with Capel’s February 8, 2011 order granting motions to file under seal and, while court documents don’t explicitly say so, the caveat strongly suggests that Capel also granted the government’s motion for a gag order.

Exit question (same as before): It’s easy for a lawyer to comply with a gag order. It’s pretty easy to keep the clients quiet, too. It get’s a little more difficult to still the tongues of client families, client friends & associates, client families’ friends & associates, so forth and so on. What are the chances something leaks between now and the anticipated trial date of June 6, 2011?

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University of Tennessee releases NCAA Notice of Allegations

image Affects men’s Basketball and Football programs, Basketball Coach Bruce Pearl and former Head Football Coach, Lane Kiffin.

To wit:

The University of Tennessee yesterday received a Notice of Allegations from the NCAA regarding the school's men's basketball and football programs.

This Notice results from a 22-month investigation by the NCAA and the University of Tennessee in response to reports of alleged violations reported by the University and from external sources. The University and its Athletics Department have cooperated fully with the NCAA in this matter, and the receipt of the Notice of Allegations signifies the end of the initial review and fact-finding period.

While an examination into potential rules violations by the University of Tennessee baseball program was referenced in the initial Letter of Inquiry from the NCAA, there are no alleged violations by the baseball program listed in this Notice.

The Notice contains the following allegations of violation of NCAA rules against the men's basketball program:

  • Impermissible contact with prospective student-athletes resulting from a cumulative total of 96 impermissible phone calls over a 24-month period (Aug. 1, 2007 through July 29, 2009).
  • By the head men's basketball coach: impermissible contact with prospective student-athletes during an unofficial visit, acting contrary to the principles of ethical conduct, failure to promote an atmosphere of compliance, and failure to monitor the activities regarding compliance of all assistant coaches within the men's basketball program.
  • By the head men's basketball coach and associate head coach: impermissible contact with a prospective student-athlete at his high school.
  • By the three members of the men's basketball assistant coaching staff: failure to furnish full and complete information relevant to the investigation.
The notice contains the following allegations of violation of NCAA rules against the football program:
  • By former members of the football coaching staff: impermissible telephone contact (16 total calls) with prospective student-athletes from Jan. 3-9, 2010.
  • By a former assistant football coach: allegations relating to impermissible contacts with prospective student-athletes.
  • By a former head football coach: failure to promote an atmosphere of compliance within the football program and failure to monitor the activities regarding compliance of several assistant coaches have also been made against a former head football coach, and permitting a football recruiting intern to make impermissible contact with high school staff during a recruiting visit.
Additionally, the University is alleged to have failed to monitor the men's basketball coaching staff's telephone contacts with prospective student-athletes and their relatives in order to ensure compliance with NCAA telephone contact legislation (from Aug. 1, 2007 - July 29, 2009).

The University has a deadline of May 21, 2011 to formulate and submit a response to this Notice of Allegations to the NCAA. It is anticipated that the University's appearance before the Committee on Infractions will be during the committee's meeting on June 10-11, 2011.

Because the University and Athletic Department are now in the response phase of this process, there will be no further public comments regarding this matter by any University official until this process is complete.

At first blush, the underlined allegations appear to be the most serious.  Men’s Basketball Coach Bruce Pearl is alleged to have had impermissible contact with prospective student athletes and then lying to investigators about it.

The failure to monitor allegation is against former Head Football Coach Lane Kiffin. This allegation—to the relief of the UT faithful—stops short of the dreaded “lack of institutional control” violation that typically triggers near catastrophic penalties.

Via Twitter and online press reports, Lane Kiffin is declining comment on advice of counsel.

To my Vol friends, good luck and Godspeed. I am a fan and admirer of Coach Derek Dooley and I think he comes through this fine.

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ICYMI: Mortgage executive with ties to Colonial Bank failure will plead guilty

In Case You Missed It® yesterday, news hit the afternoon wires that former Taylor Bean & Whitaker executive Desiree Brown will plead guilty in a special hearing set for 9:30 am Thursday, February 23. Brown was once the Treasurer of the failed Florida mortgage banking giant that went under in August 2009 and took the mighty Colonial BancGroup with it.

(ed. note) In response to numerous emails PM’s and Tweets: Yes, this is a huge development. While it wasn’t unexpected, the timing is interesting as Farkas is scheduled to stand trial in six weeks on charges of bank and wire fraud. But most importantly As Taylor Bean’s Treasurer, Ms. Brown had to account for every nickel of the company’s transactions with Colonial, and as discussed below, those transactions led to billions of losses and ultimately led to a colossal bank failure.

From the Reuters story that first broke the news:

* Filings say ex-treasurer received over $1.5 million

* Brown due in court Thursday for plea agreement hearing

By Jeremy Pelofsky

WASHINGTON, Feb 22 (Reuters) - The former treasurer of the now-defunct Taylor, Bean & Whitaker Mortgage Corp, Desiree Brown, is set to enter a plea agreement to federal criminal charges on Thursday, according to court records released on Tuesday.

No details of the criminal charges were available but U.S. Judge Leonie Brinkema has scheduled a hearing for 9:15 a.m. (1415 GMT) on Thursday in the U.S. District Court for the Eastern District of Virginia. Such hearings are typically held when a defendant is expected to plead guilty.

Taylor, Bean & Whitaker filed for bankruptcy in August 2009 and federal prosecutors have accused the former chairman of the mortgage firm, Lee Farkas, of orchestrating a scheme that led to billions of dollars in losses that are still being tallied.

It’s worth noting that Court authorization for the Title III wiretaps—the recordings that are now the central body of evidence in the BingoGate case—also came from the U.S. District Court for the Eastern District of Virginia. But I digress…

Taylor Bean was the largest non-depository mortgage lender in the country when it went belly up nearly two years ago. The company was also Colonial BancGroup’s largest “mortgage warehouse” customer. Mortgage warehousing was a common practice in the period just before the credit market meltdown, wherein depository banks such as Colonial made short term loans to mortgage originators.

The originators then lent to homebuyers and refinancing homeowners, including huge numbers of subprime borrowers. The loans were then packaged and sold to Fannie Mae, Freddie Mac and Ginnie Mae. The warehouse borrower then repaid the loans (with interest and certain transactions fees) and the cycle began again.

In its indictment of Taylor Bean’s CEO Lee Farkas, and in accompanying court documents filed by the Securities and Exchange Commission, federal authorities allege that Taylor Bean executives conspired with as yet unnamed “senior Colonial BancGroup executives” to run a check kiting scheme that was so large it would make EF Hutton blush. But the feds also allege that Taylor Bean executives conspired with—or at least acted with the knowledge of—those same executives to defraud the US’ Troubled Asset Relief Program to the tune of hundreds of millions of taxpayer dollars.

Regulators discovered the sham TARP operation and Colonial never received a bailout. In August 2009, federal authorities raided Taylor Bean’s offices and collected scores of boxes of documents.  The company filed for bankruptcy shortly thereafter, and Colonial BancGroup followed suit days later, setting up the worst bank failure in 2009 and the sixth largest in US history.

Colonial BancGroup officials have publicly acknowledged that they are the target of a federal criminal probe into possible bank and wire fraud. Indictments are widely expected, but there is no timetable for when those might come down.

Exit question: Micromanagers who make personal phone calls on $50,000 loans that are 15 days past due usually know when hundreds of millions are being moved around in elaborate shell games, don’t they?

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Coincidence: Dr. Treevorkian’s new lawyer has connections to Bobby Lowder

Amid news reports that Dr. Treevorkian, aka Harvey Almorn Updike, has gone hermit and is now living in a van down by the river or something, the man accused of attempted herbicide and criminal mischief in the poisoning of the Toomer’s Corner has finally found a lawyer.

The first three attorneys appointed by the court to represent him have, one by one, asked to be excused from the case due to alleged conflicts of interest and irreconcilable differences.  The first two claimed conflicts of interest based on ties to Auburn University. The third cited “irreconcilable differences” which, to me, suggests that despite never apparently attending class at Auburn, he’s all in with teh fambly (If you think that’s something, wait until we get to jury selection in the Lee County courthouse).

Along comes Glennon Threatt, Jr.

image Mr. Threatt, as you may recall, represented former Birmingham Mayor Larry Langford in his trial on federal bribery and corruption charges in 2009. Langford was convicted of those charges and later sentenced to 15 years in the federal pen, where he remains to this day, professing his innocence.

Langford also made news when a lawsuit was filed, alleging that he walked into an Alabama casino and was escorted to certain bingo machines, that delivered eye-popping jackpots in the tens of thousands.

Take a wild-assed guess at who owned the casino at the center of that controversy.  If you guessed Milton McGregor, you win the Daily Jackpot and will receive one free year of IBCR blog content! Stay on the line and we’ll get your details…

But back to Dr. Treevorkian’s new defender, Glennon Threatt, Jr.  He is not a first, second or even third year criminal defense attorney who works for peanuts taking court appointed lawyer assignments. The dude is a white collar criminal defense lawyer and is reportedly well compensated for his services in criminal defense. Maybe he can afford to take Dr. Treevorkian’s case pro bono, but it’s curious that such a high powered white collar criminal defense attorney is defending a man accused of the most notorious incident of criminal mischief in modern state history.

Or, is it?

According to this website, Mr. Threatt either once worked for or is still affiliated with the law firm of Miller Hamilton Snider & Odom, one of Alabama’s largest and most prominent law firms. One of the founders of the Miller Hamilton legal juggermaut was Jack Miller.

Who was Jack Miller?

Lowder is now coming home to his beloved Auburn. He is building a mansion in the scholarly neighborhood of Pinedale, home to many present and former Auburn professors and administrators.

There goes the neighborhood.

Drive by and look at the place. During the past week, from 30 to 40 cars and trucks have crowded the block in a mad scramble to finish work on the house.

It’s rather a sad spectacle. Without his big money, his big bank, his big jet, his powerful control of the AU board, I doubt he will find many real friends. Money does buy friends, but those so bought are as plastic as Colonial credit cards.

Coming to Auburn, he has said he can remain more focused on family and Auburn University. Maybe the family side will work out; being more focused, involved in Auburn will not.

That focus may have played a role in the loss of his bank. His input at AU is not wanted and he will quickly get that message. His power on the “new” board is all but gone.

He lost the left side of his brain with the recent death of Jack Miller, Lowder’s $4 million-per-year Mobile lawyer. Gone is his chief ally in the Alabama Senate, Lowell Barron, and an Auburn trustee about as slimy as Lowder. Death claimed two good guys on the board, Jack Venable and Charlie Glover.

image There are other publications documenting the relationship between Lowder and his “left brain”. As with many of Lowder’s associates, Mr. Miller served on the AU board of trustees and had a multimillion dollar business relationship with the Money Man.

Mr. Miller also once employed the man now charged with defending Dr. Treevorkian against charges that he poisoned Auburn’s beloved 130-year old Live Oaks at Toomer’s Corner. If I was Updyke, I think I’d go live in a van down by the river, too.

There are just too damned many coincidences, with too many of the same faces showing up the most unusual places.

Exit question:  Does Mr. Threatt use the postings as a means of creating reasonable doubt at trial, or does this case even go to trial?

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Tuesday, February 22, 2011

Mortgage exec tied to Colonial Bank failure will plead guilty

image This not at all a surprising development, but it does come at a very curious time.  According to Reuters, former Taylor Bean & Whittaker executive Desiree Brown will enter a guilty plea to federal financial wrongdoing charges and cooperate with prosecutors.

There are no details regarding the charges Brown will cop to, but Judge Leonie Brinkema has a hearing set for 9:15 am EST Thursday in the District Court for the Eastern District of Virginia.

A similar hearing scheduled in the USA vs. McGregor et al case (BingoGate) tipped us off that Jarrod Massey was pleading guilty.

Taylor, Bean & Whitaker was the largest non-depository mortgage lender in the country when it failed in August 2009. DOJ obtained indictments against its former CEO Lee Farkas of orchestrating a complicated fraud scheme that led to billions of dollars in losses that still haven’t been counted yet.  TBW’s failure led to the failure of $26 billion Colonial, which was the largest bank failure in 2009 and the sixth largest in US history.

Included in the Farkas indictment are statements implicating “senior executives” of Colonial Bank and Colonial BancGroup, the bank’s holding company.  Colonial’s former CEO is none other than Bobby Lowder, the megabooster accused of micromanaging his bank and Auburn University.

Ms. Brown will likely plead guilty to pilfering TBW accounts for about $1.5 million, but she is also expected to have wide ranging knowledge of the various schemes alleged to have been devised by Farkas and Colonial execs.

Also on Colonial’s Board of Directors:  Former Auburn Head Football Coach Pat Dye, and casino  owner, political powerbroker, and Auburn booster, Milton McGregor. As luck would have it, these gentlemen also have demonstrated business relationships with Robert Geddie, another Auburn booster and graduate. Geddie and McGregor stand trial this summer in the BingoGate case.

Regular readers of this blog already know how to connect the dots.

Exit question: If Farkas sees that his goose is cooked, does he roll on the Money Man?

h/t Crimson Corner Blog.

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BingoGate: McGregor wants to play the tapes for witnesses

In a motion filed in US District Court for Middle Alabama, Milton McGregor—the indicted casino and racetrack owner, political powerbroker, one time Colonial BancGroup board member and Auburn University booster—requests the Court’s permission to share or disclose the contents of wiretap recordings to prospective witnesses.

The wiretaps represent the central body of evidence against McGregor and nine other defendants currently under indictment on charges of conspiracy, money laundering and bribery, in connection with an alleged scheme to bribe legislators in the 2010 Alabama legislative session.

Trial is currently scheduled for June 6, 2010, in Montgomery.

In the motion, McGregor’s counsel states that such disclosure could include playing the recordings themselves, providing transcripts of the recorded conversations and discussing the contents with witnesses who were a party to the conversation(s).


This motion comes despite a prior motion by McGregor and the other defendants to suppress the wiretaps. The government does not oppose today’s motion by McGregor, but vigorously opposes the motion to suppress and a hearing on the matter is scheduled to begin February 28.

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AUBurgeddon: Kenny Irons Tweets about HBO and Real Sports with Bryant Gumbel UPDATE: SbB fingers McClover

Scroll down for updates.

JailAubieJust saw this on the board.  It appears that a former Auburn player has learned that another former Auburn player has been interviewed by Bryant Gumbel for HBO’s Real Sports.

It’s not pretty for teh fambly.

Judging from the content of the Tweets and reports seen elsewhere in the blogosphere and message boards, someone is spilling about allegations of pay for play under former Head Coach Tommy Tuberville, and former Defensive Coordinator, Gene Chizik.

"@IamKennyIrons23: Man I hope the Auburn news I just heard about, a past Auburn player releasing some damaging information on an ntervew with Bryant Gumbel HBO [is not true]"

A bit later:

"@IamKennyIrons23: Dayum the things some ppl would do for money! a Univ. that payed ur way thru college & u turn u back and blackball"

UPDATE: SPORTSbyBROOKS has a pretty good case that the former player referenced in Irons’ tweets is Stanley McClover, who, as I mentioned above, played for current Head Coach Gene Chizik when Chizik was the Defensive Coordinator at the school. McClover, according to Brooks, is prepared to name (or already has named) the assistant coach who provided the alleged improper benefits. McClover left the school following the 2005 season and entered the 2006 NFL Draft.

SbB also cites the NCAA bylaw addressing the league’s statute of limitations:

NCAA rule 32.6.3 Statute of Limitations: Allegations included in a notice of allegations shall be limited to possible violations occurring not earlier than four years before the date the notice of inquiry is forwarded to the institution or the date the institution notifies (or, if earlier, should have notified) the enforcement staff of its inquiries into the matter. However, the following shall not be subject to the four-year limitation:

(a) Allegations involving violations affecting the eligibility of a current student-athlete;

(b) Allegations in a case in which information is developed to indicate a pattern of willful violations on the part of the institution or individual involved, which began before but continued into the four-year period; and

(c) Allegations that indicate a blatant disregard for the Association’s fundamental recruiting, extra-benefit, academic or ethical-conduct regulations or that involve an effort to conceal the occurrence of the violation. In such cases, the enforcement staff shall have a one-year period after the date information concerning the matter becomes available to the NCAA to investigate and submit to the institution a notice of allegations concerning the matter.

Brooks identifies Part C of the rule that would allow the NCAA to pursue a case against AU for investigating improper benefits. However, Part B applies as well, especially if Enforcement Staff investigators can demonstrate a pattern that began before the window closed, but continued into the applicable four years.

Getcha some popcorn. The HBO segment is scheduled to air March 30.

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Tommy Tuberville gets a raise, faculty gets the shaft? Not exactly.

image In January, Texas Tech University and Football Coach Tommy Tuberville agreed on a new contract that would run through 2015 and increase Tub’s salary from the bargain basement $1.5 million to $2.0 million, an increase of $500,000.

That hasn’t set well with the TTU faculty, as the university is facing a grim funding situation from the Texas legislature, according to an item published yesterday in the Lubbock Avalanche-Journal.

When Tuberville agreed to take the job last January following former coach Mike Leach’s dismissal, Tech Athletic Director Guy Bailey promised that Tuberville’s compensation would be evaluated following ticket sales and other revenue generating activities associated with the 2010 football season.  Football revenues set school records last fall, and Bailey made good on his promise.

That still sticks in the craw of the academic community at TTU.

A recent pay boost for Texas Tech football coach Tommy Tuberville has miffed some professors whose own pay has stagnated against a spartan state funding backdrop.

Several professors at a faculty senate meeting Wednesday questioned the university’s January announcement it will increase Tuberville’s annual pay by $500,000 through 2015, one of the university’s few raises as it braces for lawmakers to cut tens of millionsof dollars from the university’s revenue.

The five-year $11 million contract guarantees Tuberville at least $2 million per year, up from $1.5 million in the original contract he signed with Tech in 2010.

Others later said the raise shows a priority on athletics over academics.

Meek, like Bailey, said some frustration may stem from confusion about how Tech pays Tuberville’s salary. Many fail to understand that a funding wall separates academics and athletic budgets, Bailey said, so the raise does not directly siphon from academic coffers. Each year, however, academics does subsidize $2.5 million of the athletic department’s budget. Bailey said Tech has reduced that to $2.25 million this year to reflect state cuts and he hopes to slowly wean athletics off that subsidy entirely over the next few years.

But, he added, his office first needs time to untangle federal and NCAA red tape tied to the subsidy.

Wednesday’s faculty discussion touched on an older, broader debate about where and how sports fit at public universities. The question has surfaced repeatedly over the past few years alongside a surge in athletic spending.

“Regardless of the specifics of the money flow, there’s still a question of the symbolism of what this says about the university’s priorities,” said John Curtis, director of research and public policy at the American Association of University Professors, a faculty advocacy group in Washington. “If you’re at a time of cutting academic programs or freezing or cutting salaries for faculty and other employees and you have a raise for the football coach — even if the money is there — it sends a completely wrong signal about where the priorities of the university are.”

In the excerpt above, the underlined statement is the one that has generated the most chatter on sports blogs and message boards, and it’s also the most misunderstood concept in this story. It suggests that the general fund of a public, state-funded university is funding the entire athletic department, including the football program.

People associated with the program and one source close to Tuberville hotly and flatly deny that. While it is true that the athletic department is receiving a subsidy from the academic side of the books, that money is not going into Tuberville’s pockets or the pockets of his assistant coaches. Instead, that money goes to supporting less lucrative athletic programs, such as softball, track & field, golf, swimming, etc. These programs are not revenue generators and, if left to fend for themselves, would likely not survive another season.

At many major universities with large, successful football programs, football funds not only the entire athletic department but in some cases generates a net positive contribution to academics and the general fund.  Additionally, a large, successful football (or basketball) program has the added—but more esoteric—benefit of drawing more students to apply for enrollment.  Students want to go to schools with an exciting, competitive athletics program. It’s part of campus life and it is a major factor in many students’ decision-making process.

Tuberville is a decent football coach. He’s won in the cutthroat competitive environment of the Southeastern Conference. He’s not a great coach, as many Auburn fans would probably agree. He is however, capable of recruiting well and coaching the Red Raiders to perennial 8-4 seasons, a decent bowl appearance and an occasional run at a Big XII division or conference title. He’ll win games, he’ll put a decent product on the field, and he’ll put butts in the seats.

The objective, of course, is to get so many butts in the seats that the football program can drive the rest of the athletic department’s budget and wean it off of the general fund/academic subsidy.

While I’m sympathetic to the plight of the academic budgets, complaints such as those aired by the professors quoted in the Lubbock Avalanche-Journal are short-sighted. The priorities of the university have always been about providing a quality education and campus experience for the students making the transition from teenager to young adult. Football is part of that experience at TTU, and if Tuberville keeps winning, it’ll be part of helping to pay for it, too.

But you can’t win if you can’t attract decent coaching, and the only way to attract decent coaching is to pay a competitive salary. It’s not about sending messages about priorities. It’s about economics.

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Monday, February 21, 2011

Does the Auburn Police Department have the wrong guy?

image On Wednesday February 16, shortly after SPORTSbyBROOKS and reported that the NCAA had expanded its ongoing recruiting investigation of Auburn University, the school published a press release reporting that the 130 year old Live Oaks had been poisoned with a powerful herbicide.

On Thursday, February 17, Auburn Police arrested Harvey Almorn Updyke—a self described Alabama fan—and charged him with criminal mischief. Updyke is alleged to be “Al from Dadeville,” the caller on the Paul Finebaum syndicated radio show who claimed responsibility.

Over the weekend  however, news reports emerged that at least one other individual might be involved in the attempted herbicide, such as this one from

Online postings on a popular message board for University of Alabama fans could shed new light on the poisoning of the Toomer’s oak trees.

Postings from January by a user named “FLORIBAMA” on the Tider Insider website claim responsibility for poisoning the trees.

Auburn Police Division Chief Tommy Dawson wouldn’t reveal if investigators had an additional suspect Saturday night.

“We’re still working on this case,” he said. “It would be premature for me to comment on that.”

The APD announced on Thursday that Harvey A. Updyke Jr. had been arrested and charged with first-degree criminal mischief in the case. Updyke had his initial court appearance later Thursday. He was released on $50,000 bond Friday evening.

When the Opelika-Auburn News attempted to contact Updyke on Saturday, a recording said that his phone line was no longer in service.

Most of the posts by “FLORIBAMA” precede Jan. 27, when a radio show caller named “Al from Dadeville,” who police suspect to be Updyke, claimed responsibility on “The Paul Finebaum Show” for poisoning the trees.

Posts by “FLORIBAMA” on a forum at Tider Insider include:

  • “boogers will not have that tree much longer?” on Jan. 4 at 11:45 a.m.
  • “I did something that will really upset the auburn nation thats all I can say now” on Jan. 18 at 4:56 p.m.
  • “No but what I did will make headline news” on Jan. 18 at 5:07 p.m.
  • “both trees” on Jan. 18 at 5:11 p.m.
  • “ARE THE TOOMER TREES GETTING SICK YET?” on Jan. 22 at 1:59 p.m.
  • “let them have fun I killed their toomer tree...... SPIKE80DF” on Jan. 26 at 4:06 p.m.
  • “nothing will save the trees....its too late” on Feb. 3 at 5:22 p.m.

However, “FLORIBAMA” later claims that he or she did not make the previous posts. In a post on Feb. 17 at 7:01 a.m., the user says, “Yes, to the first name of Harvey!! I do follow TI (Tider Insider) but there are times when I am online once a week or longer due to my work of 7 10 or 12 hour days most of the time. Again, I HAVE NEVER POSTED ANYTHING RELATED TO ANY OF THIS!! You can probably figure this out.”

In another post, “FLORIBAMA” says that while he or she did not make the posts, “my friend apparently did and is now in jail in Lee County (Opelika) charged with criminal mischief related to the attempted murder of those $50,000.”

This suggests that, at the very least, Mr. Updyke now has a positive defense against the charges leveled at him by Auburn law enforcement. This hardly constitutes evidence “beyond reasonable doubt” that a criminal conspiracy existed between Barnes and Updyke. It suggests there might have been one, but there is a high standard for proving a conspiracy charge and as damning as these posts seem to be, a first year law student would have the case thrown out quicker than the defendant could post bond on the charge.

It also suggests that AU may have arrested the wrong guy.  To put it gently, the state doesn’t have a lot of evidence against Updyke—no one saw him do it, there’s no published report from a dealer who remembers selling the pesticide to Updyke, and there’s no published report that Auburn or Lee County law enforcement have recovered any of the stuff he allegedly used.

But most the most convincing evidence that Barnes, not Updyke, may be the person of interest are the dates of the posts on TiderInsider. These are as much as three weeks before Updyke allegedly made the fateful call to Paul Finebaum’s show.

Could Updyke be taking the fall for his landlord? Did the Auburn police “close” this case to hastily?

I will say this—unless the prosecution can somehow prove that Updyke is responsible for both the call to the radio show and the TiderInsider posts, Updyke will walk on the criminal mischief charge.

Exit questions: What if, in their zeal to immediately  blunt the negative press related to the NCAA story, AU officials pushed the local Barney Fyffes into making too hasty an arrest? The expected loss of the trees will be tragic enough. But what if the case is so badly botched now that no one is punished?

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Nick Saban has got the chops

This comes via

How he found this I have no idea.  But the dude… SHREDS IT!

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Friday, February 18, 2011

Toomer’s Corner Trees and the PR move that would make Gibbsy blush

While I still think that Harvey Almorn Updyke is a first class dick for his attempted herbicide, I still must tip my hat to the awesomeness of the orchestration of the media conducted by the AU media relations staff. What they have pulled off is a public relations masterpiece that probably has former White House Press Secretary Robert Gibbs going, “oh, snap!”

Here’s some of the background, courtesy of SPORTSbyBROOKS:

Two days and thousands of media reports later, I still haven’t found a timeline provided by Auburn or law enforcement that definitively rules out that Auburn may have leaked the story to deflect same-day coverage of the NCAA’s Louisiana-based investigation of the Auburn football program.

Wednesday at 1:30pm ET I was first to confirm that NCAA investigators had interviewed four individuals about Auburn football recruiting tactics. Later that afternoon, Auburn University posted this message that, in part, read:

Auburn University today confirmed that an herbicide commonly used to kill trees was deliberately applied in lethal amounts to the soil around the Toomer’s Corner live oaks on campus, and there is little chance to save the trees.

The City of Auburn Police Division is investigating the situation, and the application of this herbicide, known as Spike 80DF, or tebuthiuron, is also governed by state agricultural laws and the Environmental Protection Agency..

So why did Auburn choose to release the news at that time? Especially since we now know that a full-blown investigation by Auburn Police to find Harvey Updyke located the suspect “more than a week” before the Auburn press release.

Yesterday, after expressing appropriate disgust over Updyke’s alleged criminal act, I had a “wait what” moment when I discovered that a respected AU professor of Agronomy and Soils had found no evidence of the herbicide’s dirty work as late as two months after it was allegedly applied to the trees at Toomer’s Corner. You’d think that, as effective as Dow Chemical claims their product to be, there’d be some way of detecting damage to the trees, especially when a credentialed professor examines the specimens using his handy dandy handheld chlorophyll fluorometer. On January 28, the all clear signal was given—the trees were just Fine(baum), as professor McElroy phrased it in the now-deleted blog post referenced in my entry yesterday.

As SPORTSbyBROOKS points out, the day that AU released the press release about their shocking discovery of attempted herbicide, news surfaced that investigators from the NCAA Enforcement staff had been in Thibodaux, Louisiana, interviewing people in connection with allegations of possible recruiting violations.

The timing of AU’s lamentful press release—just hours after the SPORTSbyBROOKS and FOXSports stories hit teh innerwebs, Twitter and RSS feeds—makes for interesting conspiracy theorizing.

But the real story is the mastery of the media displayed by Jay Gouge and his media mouthpieces.  They have placed Auburn in an absolute, lead pipe lock no lose situation.  In poker parlance, they got the nuts.

image As early as 2007, the trees were reported to be in very bad health, with some AU publications indicating that the two Live Oaks were already on their way to an early demise.  They’ve been victims of AU fans’ own stupidity.  After every game, fans mob the intersection, toss hundreds of rolls of toilet paper into the trees and as shown in the image to the right, sometimes light the paper on fire.

Wednesday changed everything.

Now, if the trees die, it’s “bammer’s” fault.  But if the trees somehow manage to survive a few more years, credit will be given to the same crack Agronomy and Soils staff who, just three weeks ago, said the trees were just Fine(baum) and merely suffered from a toilet paper overdose.

Meanwhile, the news of the NCAA investigation into AU’s highly questionable recruiting tactics gets shoved onto page B-18, whilst the fambly basks in the front page glow of sympathy coverage, expressing righteous indignation over the state of college football fandom.

It’s almost as if you’d asked President Obama for his birth certificate, only to have Press Secretary Robert Gibbs accuse you of racism or Islamophobia.

Brilliant, ladies and gentlemen.  Absolutely brilliant.

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BingoGate: Moment of Peril, Part Deux

imageLast night, I posted the news that US Magistrate Judge has scheduled a three day hearing on the defendants’ motions to suppress evidence in the US vs MgGregor et al case. The hearing is set to begin on February 28 at the Federal Courthouse on Church Street in Montgomery, and Capel will hear oral arguments on whether to suppress the evidence consisting of the wiretap recordings. I noted that this is probably the government’s greatest moment of peril in the case, because without that evidence, the entire case is almost certainly vaporized.

There’s another reason to be troubled, however.

Part of the government’s legal team is a DOJ career prosecutor named Brenda Morris. In October 2008, Morris was part of the prosecution team that won a conviction against former Alaska Senator Ted Stevens for failure to report gifts—including renovations to his home and other gifts allegedly worth more than $250,000.  However, in February 2009, Morris was cited by District Judge Emmet Sullivan for contempt of court. The citation was for failing to turn over  documents in connection with a FBI agent’s complaint accusing prosecutorial misconduct. In his citation order, Judge Sullivan termed the conduct of the prosecution “outrageous.”

imageDays later, DOJ removed Morris and five other lawyers from the case, and in April 2009, DOJ filed a motion to set aside the verdict and dismiss the charges against Stevens. Judge Sullivan granted that motion and vacated the conviction, freeing Stevens.

The defendants’ motion to suppress evidence is fairly standard pretrial activity in cases like this one. Any good lawyer owes it to the client to get as many of the charges thrown out as possible, and limit the amount of evidence the prosecution can bring to bear against the defendant, so the hearing that starts on the 28th is not terribly unusual.

It’s also worth noting that at least so far, there have been no allegations of prosecutorial misconduct in this case. The defendants’ argument is that the FBI agents did not follow proper procedure in conducting the electronic surveillance and in so doing, improperly eavesdropped on conversations they shouldn’t have been listening to or recording.

Given that there are so many of the same faces showing up in so many of the same, unusual places, suppressing that evidence could have a tsunami-like ripple effect on other rather high profile investigations.

Legal analysts tell me that the prosecution has a better than even chance of prevailing and that Judge Capel will likely let the jury hear the evidence, and that Morris’ role in this case is advisory. While she has prepared and signed several of the prosecution’s court documents, she is not “in the lead” on the prosecution’s team.

Nevertheless, it’s showdown time on February 28th. Either the defendants convince Capel that the government exceeded its authority in conducting the electronic surveillance, meaning the case literally evaporates, or the government prevails and we go to trial in June. Getcha some more popcorn.

Exit question: Should the motions to suppress be dismissed, who starts squirming, sweating and considers a deal, even this late in the game?

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Thursday, February 17, 2011

BingoGate: Hearing scheduled – Government’s moment of greatest peril

Today, US Magistrate Judge Wallace Capel scheduled two key events which together represent the moment of greatest peril for the prosecution. To date, the Court has received nine motions to suppress evidence. The key targets of those motions are the wiretaps themselves.

Citing federal statute, case law and the United States Constitution, the defendants are asking the Court to suppress most or all of the evidence found on the wiretaps.
The key to the defendants’ argument is that the government failed to follow the authorizing order under Title III and that the agents responsible for carrying out the surveillance failed to follow instructions given them. By doing so, defendants argue that the government eavesdropped on conversations that were not pertinent to the case and invaded the privacy of the defendants, their business associates and their their family members. The defendants argue that since some of the conversations were privileged and should not have been recorded, all of the evidence should be thrown out.

Several of the motions mention wiretapped conversations that are completely unrelated to the facts and allegations of this case. As regular readers of this blog know, it is widely believed that some of those conversations implicate individuals in matters far removed from the original scope of the US vs McGregor et al indictments, and it is also widely believed that the NCAA has a great interest in the contents of those recordings.

Naturally, the prosecution has filed lengthy and vigorous motions in opposition to the defendants’ motions.

Showdown time.

Judge Capel scheduled a telephone conference to discuss issues pertaining to the
suppression hearing at 1:00 p.m. on February 23, 2011. The suppression hearing itself will be held from February 28, 2011 through March 2, 2011 at the Federal Courthouse on Church Street in Montgomery.

No order was given closing the hearing, so interested members of the public may attend.

The Court’s decision could come at any time following the hearing. My bet is that the judge allows the evidence to be heard by the jury at trial, but allows the defense an avenue of appeal.

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Wait What? The Toomer’s Corner Trees were fine a few weeks ago?

I’m letting my previous post stand, but are we being duped, or was an Auburn professor of Agronomy and Soils merely mistaken when he concluded on January 28 that the trees at Toomer’s Corner were just fine?
Below is a screen capture of a blogspot blog post written by Scott McElroy, PhD., of Auburn’s Department of Agronomy and Soils. The post has been taken off the blog (presumably in light of yesterday’s news), but the Google Webcache version is still available.

Users can find that here, until the webcache is updated and the page removed forever and ever, Amen.

And here is the text of Dr. McElroy’s blog post, from that webcached version:

Toomer's Oaks are Fine(baum)- Just a Toilet Paper Overdose.
I have been watching all the traffic related to possible poisoning of Toomer's oaks.  I heard over the water cooler that someone called into the Paul Finebaum Show claiming they had poisoned the Toomer's oaks with the herbicide Spike.  I was very skeptical, but I knew I could quickly determine if this was true. First, never passing up a teachable moment let me do some explaining.

The herbicide in question is sold by the name "Spike", but the active ingredient, the chemical compound that actually kills the plants, is called tebuthiuron.  Tebuthiuron is very specific in its action--it essentially blocks photosynthesis from occurring.  It is very specific to plants and is safe to humans. 

With many herbicides, if one wants to tell if a plant has been purposely treated, one would take soil and leaf samples, extract the herbicide, and run it through some chemical analytical test to determine if the herbicide is present.  This process can take weeks. But with tebuthiuron, since it specifically stops photosynthesis, a negative herbicide effect can be determined in a few minutes.

So I took my handy, dandy handheld chlorophyll fluorometer up to Toomer's Corner, clamped it on a few leaves and checked photosynthesis.  Everything is fine.  It has been two months since the alleged poisoning, and there should be a reduction in photosynthetic activity-- and there is not.  Just in case it occurred more recently, Auburn Horticulture has taken some soil and leaf samples for future analysis, if any damage ever appears.  For now that is a moot point, the trees are fine, just a little beat up from all the toilet paper clean up.  I will keep checking over the next few weeks just to make sure. 

To anyone who has had the idea of poisoning Toomer's oaks or killing your neighbor's tree that is blocking your satellite reception--you can easily be caught.  Not only can one quickly measure photosynthesis of the plant, but the herbicide will last up to a year in the soil surface and a little longer in the killed plant.  It will be very easy to catch you.

- Scott McElroy, PhD
Department of Agronomy and Soils
Twitter:  @auburnturf

There are a couple of explanations for what’s going on here. The first and most favorable to Dr. McElroy’s professional credibility is that his “handy dandy handheld chlorophyll fluorometer” lacks the technical capability of the full blown laboratory equipment used by Mississippi State University when it conducted the tests announced yesterday. Dr. McElroy got some spurious data and like most published professors, he’ll update his research and explain the inconsistency.

A second, and more odorous explanation would be that Auburn needed a little “sympathy press,” released yesterday’s news to blunt the negative impact of a more damaging report, and had Dr. McElroy remove his post to cover their tracks.

We can only hope that it’s the former, rather than the latter. Nonetheless, the discovery of Dr. McElroy’s conclusions of only two weeks ago raises some interesting questions.

Exit question: Can we get a second opinion?  Texas A&M has a fine, fine school of agronomy and would likely be more than willing to examine the site and the plants themselves. 

UPDATE: Crap.  I forgot to give a proper hat Tip to Bad Pony of

UPDATE II: Arrest made.

UPDATE III: Dr. McElroy has an update, explaining his earlier post.  While it’s still bad blogging form to remove an entry that you have discovered to be inaccurate, it’s important to recognize that Dr. McElroy is setting the record straight.

I still think it would be a great idea to invite other scientists to contribute their knowledge. There are great minds at Texas A&M, LSU, Mississippi State, Georgia, Florida and Clemson who could likely help. Most encouraging is that weeks, possibly months after the incident, Dr. McElroy’s photosynthesis tests showed good results. Could it be that the assassin’s bullet has missed its target?

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