ACHIEVEMENTS
In Russaw v. Martin, 221 Ga. App. 683 (1996), Mark argued the cutting-edge issue as to his client’s fear of contracting HIV when negligently struck by a hypodermic needle, as noted above.
In the Interest of LA, (A08A0692, 2008), Mark successfully argued for reversal of a theft by receiving conviction of his client in the Georgia Court of Appeals.
In the Interest of PT et al, (07DL02766, 2008), involving a reported drive by shooting by alleged Asian gang members in Fairburn, GA, Mark successfully obtained a dismissal of his case when all three other defendants entered pleas, based on Mark’s client’s insistence on taking the case to trial absent a dismissal.
In the Interest of BLO, (2011) Mark successfully defeated a termination of parental rights claim against a mother who had been falsely accused of child abuse.
In State v. Smarr., 317 Ga. App. 584 (2012), as appellate attorney for the defendant, Mark prevailed on an ineffective assistance of counsel claim establishing that the defendant’s trial counsel had not argued against an invalid conviction that resulted in a ten year sentence without parole. Mark successfully argued that the sentence should be paroleable, and his client was released only after serving four out of the ten years. The Smarr case is also noteworthy as the first Georgia case in which a defendant challenged the obtaining of cell-cite location evidence without probable cause (as argued by Mark), an issue that was ultimately resolved in defense favor by United States v. Carpenter, (585 U.S. ______ (2018)).
In the Interest of RST, Mark obtained reversals of dependency and termination of parental rights rulings for his parent client, on two separate cases first decided in 2013 (A13A1587) and 2018 (A17A1595), respectively.
In the Interest of AF, et al, A17A1171 (2017), Mark successfully argued that the juvenile court has an obligation to hold a hearing where requested on a motion for new trial before making a ruling. While this right had been previously established in non-juvenile proceedings, the Court of Appeals first explicitly ruled that such right applied in juvenile cases through accepting Mark’s argument.
In the interest of S.J(2018), Mark represented a child client in juvenile court whose parents had abandoned him; Mark, along with other parties, therefore sought for the client to be adopted by an outside party. Mark filed a motion for a new trial seeking to challenge a finding terminating the father’s parental rights when the father not been properly served. The court granted Mark’s motion for a new trial in October 2018, and the father thereafter was properly served, provided proof of DNA, and executed a surrender ensuring that there would be no challenge down the road to Mark’s client being adopted by his foster parent.
In United States vs. E.M.G. (April 2018), Mark’s client was sentenced to a 70-month sentence in a drug case in April 2018, although the Court agreed that the client was merely a courier. The Government sought an 80-month sentence, while the defense sought the mandatory minimum of 60 months. Mark appealed the sentence to the 11th Circuit Court of Appeals, which agreed with Mark in February 2019 that flaws in the sentencing process required sending the case back to the District Court for
re-determination. Upon remand to the United States District Court in June 2019, the government, while initially asking again for the 80-month sentence, after hearing initial arguments and reviewing case law provided by Mark, acceded to the
60-month mandatory minimum sentence.
In July 2018, Mark, representing the Defendant in United States vs. M. O, successfully obtained a sentence of thirty-two (32) months following the client’s guilty plea, where the government’s probation officer had calculated for the client
to serve one hundred thirty (130) months. In arguing for the lower sentence, Mark successfully challenged improper calculation of the client’s criminal history and defeated two proposed enhancements for increasing the sentence, while noting that the client’s sentence should conform to that of those who had previously been sentenced for similar offenses. The Assistant United States attorney adopted Mark’s reasoning as to these factors in large part, thus overriding the probation
officer’s recommendations and helping Mark to obtain the lower sentence.
In United States vs. C.P(2019), Mark represented an 18-year-old defendant from Texas in a case involving alleged immigration and marriage fraud. Of the over 15 defendants, Mark was able to obtain a diversionary disposition for his client in late
2018 where her case would be dismissed upon completing a nine month program, and she would thus avoid having a conviction on her record. Mark’s client was the only client among the 15 defendants who obtained this disposition. The others had to enter guilty pleas and serve either jail time or probation.
In United States vs. R.A.G(2019), Mark secured a reversal by the District Court judge in June 2019 on the magistrate court’s order denying Mark’s motion to dismiss an immigration count from a drug indictment. The District Court reasoned that Mark
had successfully argued governing case law within the 11th Circuit upending the government’positions, and that the Count had to be dismissed.
In the juvenile court custody case of In Re. T.M., (Forsyth County, fall 2019) Mark successfully petitioned for dissolution of a permanent guardianship granted years prior to his client’s mother. The client had agreed to the permanent guardianship at that earlier date of the infant child, given that she was facing major substance abuse challenges at that time. However, keeping in touch with Mark over the succeeding months and years, she successfully completed programs and
rehabilitated herself, and a petition to dissolve the guardianship was filed. After a two-day evidentiary hearing involving eight (8) witnesses, Mark was able to overcome the very strong statutory presumption against terminating a permanent guardianship, by establishing that returning the child to the mother would be in the child’s best interest. The client’s mother in the meantime, realizing she would not prevail in keeping custody, asked that
the Court guarantee her set regular visitation in any event. The client opposed this, based on validated concerns that such could undermine the child’s health and overall well-being.
Pending the Court’s ultimate decision on these issues, Mark prepared a 15 page proposed order that incorporated voluminous caselaw, with the order conferring unconditional custody to his client and leaving visitation entirely in her discretion. The Child’s Guardian ad Litem, who had
initially recommended some guaranteed visitation to the grandmother, shifted her position after viewing Mark’s proposed order, thus in effect adopting his recommendation. The Court signed Mark’s proposed order without any substantive alteration, revoking the permanent guardianship
and entirely leaving visitation to the mother as requested.
In the federal criminal case of United States vs. M.C. (sentenced October 2019, U.S. District Court for the Northern District of Georgia), Mark’s client, having been accused and pleading
guilty to the alleged purchase of firearms through a straw purchaser, was assessed a guideline sentencing range of 70-87 months by the probation officer, who recommended that sentence to the Court, based on her calculations of the client’s criminal history and his offense conduct. Mark objected to that recommendation, first successfully defeating her finding that client’s sentence should be enhanced for possession of high-capacity firearms, when Mark’s research showed that the subject firearms did not have the required magazine capacity of over 15 rounds. Mark then successfully argued to the Court that sentences given to several defendants previously sentenced warranted a lesser sentence for the client. The Judge agreed, giving a sentence of 37 months, far less than the 70-87 months recommended by the probation officer. A key strategy contributing to this result was declining to sign the Government’s plea agreement that called by approximately six years of time, and would have required the client to waive any later appeal of the sentence. Having the ability to file an appeal if necessary, gave the defense leverage to obtain the desired sentence from the Court.
State v. VC.(2021) The client was charged with Family Violence Battery based on a domestic incident, charged based on a fight that had developed between her husband and another roommate in the house, and alleged to have hit him with a baton and caused injury and bleeding. The client denied hitting this individual, and we prepared to try the case. Through Mark’s actions in discovering an extensive criminal history of the alleged victim, reviewing several videotapes, and noting inconsistencies between that witness and the other state witnesses’ testimony, Mark showed that there was a good defense and the charges could be beaten. A request for the state to dismiss the charges or provide a pretrial conversion was affirmed by the prosecutor over a period of a year and a half. However, the prosecutor faced the certainty of a trial, and the client’s unwillingness to accept a reduced offer for straight probation, allowed her to do a pretrial diversion, which upon completion, will enable her to not only have the charges dismissed, but to have the arrest expunged from her record, considering that she had no prior criminal history.
United States v. ESM.(2021) The client, known as “The Commander”, reportedly was a major participant in a large-scale drug operation, arising out of Mexico. The government alleged that the client engaged in multiple sales of methamphetamine, and possessed firearms, in connection with the drug activity. The government also produced evidence from cell phone extractions, suggesting that the client was involved and culpable of the charges. The government also produced a client’s interview, in which detrimental statements were made, as well as sealed telephone recordings and text messages derived from wiretap orders. As the indictment was framed, the client was looking at a sentence of at least ten years mandatory minimum. Mark, however, put the government to the proof and filed five motions challenging the admissibility of the wiretap fruits, cell phone extractions, and demanding that the government disclose its multiple confidential informants, and reveal all deals that had been made with its sources. The United States Attorney realized that Mark’s intent to vigorously pursue these defenses, reduced the charges, dismissed the indictment, and permitted the client to plead out on an information, where the client ultimately - despite the breadth of evidence alleged against him - received a negotiated sentence of two and one-half years. The client had been in custody since September 2020, and with time served, was released within a few weeks.
In the interest of S.H., et al. (November 2021), The Court of Appeals of Georgia reversed a Termination of Parental Rights judgment on an appeal that Mark had been working on since February of 2020. Mark successfully argued that the client, father of three children, had been deprived of his right to counsel as provided under Georgia law. The case was a 2-to-1 decision in Mark's client's favor, and a widely cited opinion, given a recent trend to safeguard the rights of parents in termination and custody cases, where the state is attempting to take their children. The case was included in the presentation of the annual Summit program, summarizing major case law within the State of Georgia child welfare law, over the succeeding twelve months.
United States v. DL.(2022) Mark’s client was charged with multiple charges of false purchase of firearms, where the client allegedly purchased the firearms and gave them to someone else who was otherwise ineligible to buy the firearms. There are over ten high-power firearms involved, including firearms that made their way to other countries and reportedly caused harm. Mark, early on, negotiated with the prosecutor, assessed the situation and got with his client, and was able to get a sentence of straight probation, predicated on the client’s willingness to help the government’s case, if need be, and in considering Mark’s assessment to get the best deal possible.