United States of America v. Brett Lorenzo Favre Part I

As reported by AJ Perez of Front Office Sports, a former head of Mississippi’s welfare agency agreed to terms on a plea with federal and state prosecutors on Thursday. John Davis agreed to cooperate with investigators as part of the $70 million in misappropriated welfare funds in Mississippi which has the highest level of poverty in the nation. Another co-conspirator Nancy New pled guilty in April to thirteen felonies in her role in the fraud in April. As a note, Brett Favre has not been criminally charged with anything; however, I would strongly suggest to Mr. Favre that he needs to hire an experienced Federal Criminal Defense Attorney. I cannot stress that enough if I were Brett Favre.

As I stated on the Conduct Detrimental podcast last week, federal investigations work differently than state investigations. A potential criminal case begins with federal law enforcement officers investigating a potential lead. They speak with witnesses and comb through mountains of evidence. An FBI agent then meets with an Assistant United States Attorney (or AUSA) and presents his case. The AUSA decides whether or not there is enough evidence to seek a criminal indictment. The AUSA must convene a federal grand jury to seek said indictment and only once a true bill is returned (meaning the grand jury determined there is enough evidence to support the charges) the indictment is unsealed. Federal law enforcement does not make arrests until the indictments have been sealed. They usually make said arrests or serve search warrants at roughly 6 am. Why? That is because that is when people are usually at home and asleep. It allows the FBI to catch the potential suspect off-guard and minimize any safety risks. The FBI and US Attorney’s Office start arresting the individuals who connect the dots.

However, they are usually not the main focus of the investigation and often cut plea deals that include a condition that would “cooperate with the investigation” which is just another way of saying they are going to testify against whomever the US Attorney’s Office asks them to. That is because the US Attorney’s Office needs to have their facts and ducks in a row before they indict the true focus of their investigation. In this matter, that likely is NFL Hall of Famer Brett Lorenzo Favre and former Governor Phil Bryant. The overarching theme of this potential criminal case is Welfare Fraud. The Federal Government can use the Mail Fraud Federal Statute and the Wire Fraud Federal Statute to potentially prosecute the case.

Mail Fraud

18 U.S.C. § 1341 “There are two elements in mail fraud: (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing or attempting to execute the scheme (or specified fraudulent acts),” Schmuck v. United States, 347 U.S. 1, 8 (1954). That can be achieved by simply a scheme to defraud which is relatively clear based on what is being reported in the media and using the mail to execute. One can send a letter advancing the scheme or simply send a check in furtherance of the scheme. That charge is entirely plausible. However, I think Wire Fraud might even be a stronger case.

Wire Fraud

18 U.S.C. 1343 There are four elements. (1) That the Defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) that the defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used. That can be succinctly stated as there was an intentional scheme to defraud another of money using interstate wire communications (i.e. telecommunications like a cell phone or computer).

This exchange right here (if proven to be true and authenticated at trial) is a potentially devasting piece of evidence. It likely shows a scheme to defraud money from someone using a cellphone with intent to defraud. Since Nancy New is allegedly on the other side of this communication, she would have to authenticate these text messages before they could potentially be admitted into evidence at trial. Now Nancy New is a cooperating government witness so I would expect her to testify in any potential criminal case against Favre.

As of right now, Brett Favre hasn’t been charged with anything. He hasn’t been arrested with anything. However, whenever the FBI comes to speak with you and asks you a seemingly random question, you likely are the subject of a federal criminal investigation.

Matthew F. Tympanick is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida, where he focuses his practice on Criminal Defense and Personal Injury Law. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and as a Staff Editor on the UMass Law Review. He was previously a felony prosecutor for over three years and civil attorney for nearly two years in Sarasota, Florida. As a prosecutor, he tried nearly forty jury and non-jury trials and prosecuted thousands more. You can follow him on Twitter @TympanickLaw. Arrested or Injured? Don’t Panic…Call Tympanick (1-888-NOPANIC). www.tympanicklaw.com