Articles

As seen in the Detroit Free Press:

After 2 ½ years, feds return money in marriage probe

By Ed White, Associated Press

WALLED LAKE, Mich. — Federal agents arrived around dawn at a home in suburban Detroit. Foggy at that hour and shirtless, the owner answered the door and was told he was the target of a sham marriage investigation.

“I said, ‘Excuse me? I’ve been married to my wife for 32 years,'” John Gutowski of Northville recalled. “I didn’t know what they were talking about. It was shocking.”

Gutowski was charged in 2013 with conspiring to commit marriage fraud among Eastern Europeans who were living at his apartment buildings. The government also confiscated about $250,000, claiming it could be the illegal fruit of harboring people who were desperate to marry U.S. residents to stay in the country.

More than two years later, however, the U.S. Attorney’s Office in Detroit has closed the case. Charges have been dropped, and the government is returning all but $15,000. Gutowski grudgingly agreed to give up part to finally settle the matter and move on, but he resents how his life was put in knots.

“They considered me guilty, and I felt I had to prove I was innocent,” said Gutowski, 55, who moved to Michigan from Poland when he was a teenager. “I always felt if you work hard and pay your taxes, nobody’s going to bother you. I don’t feel that way anymore.”

His attorney, Ray Cassar, believes a disgruntled informant got the government’s attention.

“They have the power to arrest and create an amazing amount of anxiety,” Cassar said of investigators.

In a 2013 court filing, the government said it found an unusually large number of suspicious marriages among residents of Gutowski’s suburban apartments, including 23 requests for changes in immigration status at one complex between 2003 and 2012. In one incident, he was accused of changing the date on a lease to help a man who was planning to marry an American woman.

“Just because people lived in my apartments and got married — what does it have to do with me?” Gutowski said in an interview at his apartment building in Walled Lake.

He said friends in the restaurant business occasionally reached out to him for affordable housing for immigrant employees. Gutowski, an immigrant himself, was sympathetic.

U.S. Attorney Barbara McQuade declined to discuss why the criminal case was dropped. She said her office considers evidence, the availability of witnesses and whether there might be alternatives.

“Based on the facts of this case, we determined that a small percentage of the funds seized should be forfeited” to the government, McQuade said, referring to the $15,000.

Jorin Rubin, a former assistant U.S. attorney, said it appears prosecutors “had a bad criminal case against” Gutowski. But she noted that the legal standard is different when it comes to fighting over money seized by the government.

“The government just wears you out and you just want to get it over with,” said Rubin, who had no role in the case. “It’s not fair but it’s an understandable compromise.”

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As seen in the Detroit Free Press:

Bobby Ferguson’s family looks to regain seized money, equipment

By Tresa Baldas / The Detroit Free Press

With her husband behind bars for 21 years, Bobby Ferguson’s wife now is going after the money, house and construction equipment that was seized from the well-connected contractor during the government’s public corruption probe.

Ferguson, the longtime friend of former Detroit Mayor Kwame Kilpatrick, agreed to forfeit the goods after being convicted and sentenced last year.

But Marilyn Ferguson and her children argue they’re entitled to nearly all of it: the half-million dollars from various bank accounts, the construction equipment that was part of her husband’s onetime thriving business, and the family home on Bretton Drive.

“I have lived in this home with my five children and continue to live there. … I feel the home should belong to me and my children,” Marilyn Ferguson has written in documents in U.S. District Court, arguing the seized cash and equipment should go to her and the children as well. “Any currency … belonging to Bobby Ferguson should be applied to the support of his minor child.”

A pretrial conference on the sought-after forfeited items will be held at 2 p.m. Wednesday before U.S. District Judge Nancy Edmunds, who oversaw the months-long trial that ended with Ferguson and Kilpatrick getting convicted of racketeering conspiracy, bribery and extortion.

After the trial, Ferguson agreed to forfeit his house, $500,000 from various accounts and 16 pieces of construction equipment, including excavators, loaders and trucks, records show.

Meanwhile, Ferguson’s children also are claiming ownership rights to the seized goods.

In one court document, his daughter, Brandy Ferguson, states: “I have resided at the (Bretton Drive home) for over 15 years. I contribute to the maintenance and upkeep of the property. The bills are kept up with money that I pay as rent.”

Brandy Ferguson also claims that some of the seized money was hers, stating: “There was money that was seized for custodian of Brandy Ferguson in the form of accounts. … This money was put (away) for me and/or written to me.”

Bianca Ferguson, another daughter, is interested in the equipment and money, stating in court records: “Being that Ferguson Enterprises was a family-owned business and I being a child of Bobby Ferguson, I would naturally have an interest in any property or equipment owned by my father’s company.”

According to court records , federal agents seized large chunks of money from various bank accounts that were in Ferguson’s name over the years, including:

• $110,000-plus from four Merrill Lynch accounts
• $25,000 from the liquidation of a First Independence Bank cashier’s check, payable to Ferguson, dated March 30, 2007
• $50,000 from the liquidation of First Independence Bank cashier’s check, payable to Ferguson, dated May 19, 2006
• $100,000 from the liquidation of a PNC Bank cashier’s check, payable to Ferguson, dated Nov. 16, 2010
• $100,000 from the liquidation of another PNC Bank cashier’s check, payable to Ferguson, dated Nov. 16, 2010
• $60,000 from the liquidation of a PNC Bank cashier’s check dated Jan. 19, 2011, payable to LaCresha Borgus, a friend of Ferguson’s
• $24,403.45 from Fifth Third Bank account in the game of G.B. Utilities
• $1,515.86 from a Charter One Bank account in the name of Four Children Enterprises

Ferguson’s family filed their claims asserting legal interest in the forfeited items in December, shortly after the government published a formal notice of the forfeiture on the government’s website. Parties claiming interest in forfeited goods have 60 days to file a request.

The Fergusons got their requests in on time. They filed the claims on their own, but have since obtained an attorney, Jorin Rubin, who could not be reached for comment.
Contact Tresa Baldas: tbaldas@freepress.com

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As seen in the Detroit News:

Couple leaves marital troubles at the office

Franklin psychiatrist and divorce lawyer find job experiences have strengthened their bond.

By Valerie Olander / The Detroit News
SOUTHFIELD— What do you get when you cross a divorce lawyer and a marriage counselor?

For Jorin and Eugene Rubin of Franklin, the answer is a happy marriage.

Their at times seemingly at-odds occupations have inspired good-natured ribbing from family, friends and even people they’ve just met, but they have been married 21 years and have two children, ages 7 and 11.

The Rubins didn’t start out as professionals with contradictory careers.

Jorin Rubin, 42, is a former assistant U.S. attorney who started her own practice in a Southfield office so she could spend more time with her kids.

Husband Eugene Rubin, 44, is a psychiatrist in Bingham Farms who works with numerous people with all types of mental health issues. Divorce and marriage problems are common underlying problems for many of his patients.

For ethical reasons neither refers clients to each other. For Eugene, an understanding of divorce legalities can help in guiding his patients through the painful process and, for Jorin, knowing about the emotional issues surrounding divorce can be of equal value in a conference room.

“Going through a divorce is a change to the status quo. It is a stressful thing, especially when it’s time to explain what is happening to children, a mother or grandmother or whatever the case may be. I always recommend counseling for my clients,”Jorin Rubin said.

Their occupations have helped their own marriage, too, they say. “What we do (in our careers) gives us a window on what other people are going through. It makes us see more realistically as to what to expect from a relationship,” he said.

The Rubins recognize the same trends in divorce from their clientele: More women in their 30s are initiating divorces. Typically, she has seven to 10 years invested in the marriage and she has children.

“Some of the common reasons I hear is that they question, ‘Is this what I’m in for?’ or they want to get back into a career. It’s really not one event, but rather an issue of age and personal growth,” Jorin said.

The economy and the resulting strains of job losses or layoffs has contributed to numerous breakups, but the largest cause is a spouse spending too much time on a computer, they said.

While pornography on the Internet is one complaint, the bigger issue is that computers consume too much time from a relationship.

“The computer is just something people use to disconnect from their family. It’s symptomatic of a bigger relationship issue,” Eugene Rubin said.

About seven of every 1,000 people had marriages that ended in divorce in 2003, according to the Michigan Department of Community Health. That rate is lower than the 1980 high of 9.7 per 1,000 people.
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As seen in the Michigan Bar Journal:

Listening In: Is accessing others’ e-mail or recording their telephone conversations legal during a divorce or custody proceeding?

by Henry S. Gornbein and Jorin G. Rubin

E-mail can be a hot issue during a divorce. In one case, our client believed that his wife was having an affair and that there might be some incriminating e-mail. We issued a subpoena to the e-mail server and were able to get the e-mail, despite the fact that the other side was claiming privilege. Other cases have involved situations where people were using e-mail to communicate back and forth during an affair, to track financial information, to gamble on the Internet, or even to watch pornography. Is there a privacy right to such e-mail communications and if so, is it privileged?

Another situation involved a divorce where the husband and wife worked for the same corporation. The wife believed that her husband was involved in an affair and accessed his corporate e-mail. She obtained his e-mail because she knew the password. She obtained proof of an affair along with proof of some possible corporate misdeeds on his part. Did she have the right to go into his corporate e-mail? In a child custody case, a mother tape-recorded her daughter’s conversations with her father from an extension phone. She wanted to know why her daughter did not want to visit with her father any more. Was the law violated in these situations? If so, what is the potential civil or criminal liability that can stem from such conduct?

 

Statutes Governing the Interception of Electronic and Oral Communications
Generally, there are three claims related to these issues: federal and state wiretapping statutes, the Electronic Communications Privacy Act (ECPA), and tort claims in privacy. The Federal Wiretapping Act in Title III¹ and the Michigan eavesdropping statute² prohibit the unauthorized interception, disclosure, or use of communications, as well as eavesdropping on third-party conversations. Violations of either statute brings criminal sanctions, and the federal statute also can expose an individual to a wide range of civil remedies.³

The Electronic Communications Privacy Act⁴ amended the Federal Wiretap Act in 1986 to encompass the technology of computer communication. The ECPA prohibits the disclosure of the contents of electronic communications to any person. In Jessup-Morgan v America Online,⁵ the court clarified the term ‘‘contents’’ as set forth in the statute. The sixth circuit held that AOL did not violate the ECPA when it revealed the name of one of its subscribers, pursuant to a civil subpoena. The court held that this disclosure did not reveal the ‘‘contents’’ of the e-mail. Similarly, in Hill v MCI World Communications,⁶ an Iowa court held that revealing the phone number and duration of phone calls to one of its subscribers was not a violation of the ECPA. Therefore, although the ECPA prevents the communications companies from revealing the contents of e-mails under subpoena, these companies will be able to reveal information related to the subscriber without revealing the actual e-mail contents.

There are several torts that stem from one’s expectation of privacy, such as intrusion upon seclusion, false light, and public disclosure of private facts. Civil damages related to such claims can flow from these. Courts look at an individual’s objective and subjective expectation of privacy in their analysis of liability for these torts.⁷ Further, without a violation of the wiretapping or ECPA statutes, one’s objective claim to privacy is diminished.

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