FBI Agent Hal Neilson may face new trial by “selective punctuation” in “The Case of the Misplaced Modifiers”

Having updated Breaking News to reflect the comments of Neilson’s attorney Christi McCoy, we return to the previously announced bitching about review of the three counts reportedly subject to retrial and the doctrine of collateral estoppel applied to the double jeopardy clause:

Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. (Georgetown Law Journal)

One would think FBI Agent Hal Neilson’s “trial by grammar” would have ended “The Case of the Misplaced Modifers” – but, apparently, that remains to be seen despite this 2008 USSC decision that held:

An apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals’ preclusive force under the Double Jeopardy Clause.

In this same USSC decision, the Court wrote, “To identify what a jury necessarily determined at trial, courts should scrutinize the jury’s decisions, not its failures to decide”. Consequently, I’ve set this post up so you can take a look at the counts the jury decided, the quick summary of key points in the NEMS360 report, and the listed on the court’s notice of new trial. (In other words, I’m done for the day – and when I’m too done in to bitch about injustice, watch out!)

Neilson was found NOT guilty on Count Two and Count Five of the Indictment and cannot be retried on these counts or any counts that would re-litigate a decided issue:

Count Two: Beginning in or about March 2005 and continuing through in or about August 2005, in the Northern District of Mississippi, the defendant, Philip Halbert Neilson, while employed by the FBI, did willfully participate personally and substantially as such FBI employee, through recommendation, the rendering of advice, and otherwise, in a particular matter in which, to his knowledge, he had a financial interest, in that Neilson recommended advised, and otherwise participated in evaluating, preparing, and resolving a construction punch list regarding the Oxford FBI Building.

Count Five: On or about October 9, 2008, in the Northern District of Mississippi,defendant herein,Philip Halbert Neilson, in a matter within the jurisdiction of the executive branch of the government of the United States (the Department of Justice), knowingly and willfully, for the purpose of misleading the Department of Justice, made, and caused to be made, materially false and fraudulent statements and representations to an agent of the Department of Justice-Office of Inspector General, in that, when asked about the site selection process used to evaluate various locations for the FBI Building, Neilson stated that he did not participate in any meetings to discuss potential locations for the FBI Building, when, in truth and fact, as Neilson then well knew, he actively participated in meetings with personnel from the GSA and the FBI, on or about December 4, 2001 and June 4, 2002 regarding the suitability of various locations.

The summary from the NEMS360 story follows:

On the stand, Neilson insisted that while he made numerous mistakes on reporting forms and in seven-year-old recollections, he did not intentionally try to conceal his one-third ownership in the building and a $50,000 check he received from the owning group, C&G Partnership LLC.

At the time the check was issued, Neilson had not signed the C&G membership agreement. He received the check through another company to which he was a member, ACM LLC, with C&G’s partners.

While earlier he termed the check an “internal loan,” at trial his tax attorney said it was a “draw” of Neilson’s own money.

The jury could not reach a decision on Count One, Count Three and Count Four; a mistrial was declared; and a new trial can only litigate an issue previously not decided.

Count One: From in or about February 2005 through in or about August 2005, in the Northern District of Mississippi, the defendant, Philip Halbert Neilson, while employed by the FBI, did willfully participate personally and substantially as such FBI employee, through recommendation, the rendering of advice, and otherwise, in a particular matter in which, to his knowledge, he had a financial interest, in that Neilson recommended and advised that the FBI lease additional space in the Oxford FBI Building.

Count Three: On or about October 17, 2005, in the Northern District of Mississippi, defendant herein, Philip Halbert Neilson, in a matter within the jurisdiction of the executive branch of the government of the United States (Department of Justice), knowingly and willfully, for the purpose of misleading the Department of Justice, made and used, and caused to be made and used, a false writing and document (that is, his 2005 Confidential Financial Disclosure Report), knowing the same to contain a material false and fraudulent statement and entry, in that Neilson executed and submitted his 2005 Disclosure Report knowing that it contained a representation that it was true, complete, and correct, when, in truth and fact, as Neilson then well knew, he omitted and concealed that, he-

a. had a financial interest in the Oxford FBI Building, an asset with a fair market value greater than $1,000 as of September 30,2005; and
b. had a loan of $50,000 from C&G Partnership, a liability greater than $10,000 during the 2005 reporting period.

Count Four: On or about February 5,2007, in the Northern District of Mississippi, defendant herein, Philip Halbert Neilson, in a matter within the jurisdiction of the executive
branch of the government of the United States (Department of Justice), knowingly and willfully, for the purpose of misleading the Department of Justice, made and used, and caused to be made and used, a false writing and document (that is, his 2006 Confidential Financial Disclosure Report), knowing the same to contain a material false and fraudulent statement and entry, in that Neilson executed and submitted his 2006 Disclosure Report knowing that it contained a representation that it was true, complete, and correct, when, in truth and fact, as Neilson then well knew, he omitted and concealed that, he

a. had a loan of$50,000 from C&G Partnership, a liability greater than $10,000 during the reporting period; and
b. had an outside position as a representative of the business entity C&G Properties, LLC, in that he was a member and manager of C&G Properties with management
responsibilities, that is, among other things, managing the property, including advertising for, finding, and negotiating with prospective tenants for the benefit of C&G Properties, LLC; and performing all services that were necessary and proper for the operation and management of the property.

If Whitmergate hasn’t cornered the market on Rebel Yell, it may be the beverage of choice for pondering the meaning of “false writing”.

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