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The 11th U.S. Circuit Court of Appeals has affirmed the felony convictions of a now-disbarred Florida lawyer convicted of conspiring with a Marietta, Ga., attorney to obstruct a U.S. Securities and Exchange Commission investigation. U.S. v. Mintmire, No. 06-11212. The court upheld the convictions of Donald Frank Mintmire of Palm Beach, Fla., who was sentenced to 21 months in prison. His former law partner, Marietta lawyer A. Keith Logue, was given immunity by the government and testified against Mintmire. The case shows the difficulty lawyers may face in claiming they can’t be criminally punished for actions they take while representing a client. Mintmire’s convictions stemmed from allegations that he had tried to obstruct government inquiries into two companies: cMeRun, an Internet startup formed from another company that Mintmire had represented, Fundae Corp.; and Clements Golden Phoenix Enterprises, a citrus company he had represented. The government contended that the investors in the companies were so-called “nominee” shareholders who had ceded control of their interests in the stock to Mintmire. The U.S. Securities and Exchange Commission believed Fundae to be a “blind pool company,” meaning it didn’t have a business plan and served solely to acquire other companies. At trial, Logue testified that Mintmire contacted him about representing Mary Catherine McGowan, a Fundae shareholder, regarding her testimony before the SEC in Atlanta and that he had sent the bill for representing her to Mintmire. According to McGowan, when she asked Logue about producing certain documents, he told her he would contact the SEC on her behalf. Logue testified that he must have followed up with SEC counsel after McGowan’s deposition because he said that he would, but counsel for the SEC testified that he didn’t talk to Logue after the deposition. Logue also testified that he represented Kevin Bell, who was listed as a shareholder of Lucid Concepts, a predecessor company of Golden Phoenix. But Mintmire paid the bill for the work, and Logue acknowledged receiving a page of handwritten notes by Mintmire outlining Bell’s ostensible participation in Fundae. Following his grand jury testimony, Bell contacted Mintmire and permitted the government to record his conversations. Judge Donald L. Graham of the U.S. District Court for the Southern District of Florida dismissed one count charging Mintmire with obstructing the SEC proceeding, but he allowed the conspiracy count, as well as the count charging Mintmire with obstructing the grand jury investigation, to go to the jury. Mintmire was convicted on both counts. The 11th Circuit affirmed. Writing on behalf of the court, visiting Judge R. David Proctor of the U.S. District Court for the Northern District of Alabama said the key issue in the case was Mintmire’s contention that he couldn’t be convicted because he was acting as a lawyer when he talked to Bell and Logue. The federal statutory chapter under which Mintmire was convicted provides a “safe harbor provision” � it’s not meant to punish “the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding.” Mintmire claimed the trial judge improperly instructed the jury to decide whether he and Logue were acting as lawyers and gave the wrong standard in his jury instructions, putting the burden of proof on Mintmire. The panel disagreed. “To be sure, there is a serious question about whether Mintmire even made a minimal showing that he was performing bona fide legal representation in connection with this matter. As Mintmire’s counsel conceded at oral argument, to the extent Mintmire was retained to represent the corporation, he retained himself to do so,” Proctor said.

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