Chattanooga: Prebul criminal case not yet to indictment stage

Chattanooga: Prebul criminal case not yet to indictment stage

February 19th, 2009 by Lauren Gregory in Local Regional News

Auto dealer Joseph Prebul landed in federal court last week, but not by taking the usual path through a grand jury.

Instead, prosecutors used a less-common method of charging him - the criminal complaint.

"The criminal complaint typically involves a situation where they want to arrest someone, but they didn't really have everything together at the time to make the grand jury process," explained Barry Abbott, a veteran Chattanooga defense attorney not been involved in the case. "If they need to start a criminal case promptly, it's the quickest way to get it to a judge."

A criminal complaint is a sworn affidavit investigators can present to a judge as a document for charging someone, Mr. Abbott said. The judge can approve an arrest warrant based on that document without a formal grand jury indictment in the case.

In the case of Mr. Prebul - who's been charged with 11 counts of wire fraud - a magistrate in the Southern District of New York on Feb. 9 signed off on an affidavit from a criminal investigator for the U.S. Attorney's Office. The document alleged Mr. Prebul bilked a relative - later identified as his brother-in-law, New York-based jazz club mogul Danny Bensusan - of $7 million by promising to invest the money but actually using it to cover personal and business expenses.

Often, prosecutors pursue the criminal complaint path when they worry that a suspect or important evidence in the case - such as money - will vanish, Mr. Abbott said.

He said he doesn't know the specific reason prosecutors chose the criminal complaint avenue in the Prebul case.

"It can have nothing to do with the merits of the case or any urgency as far as that goes," he said. "It may just be more convenient. It could be as simple as that."

Rebekah Carmichael, spokeswoman for the U.S. Attorney for New York's Southern District, declined to say why prosecutors chose to pursue a criminal complaint rather than a grand jury indictment, and she declined to elaborate on what the next steps in the case may be.

Authorities used a criminal complaint in another, well-publicized Chattanooga case - Hamilton County Sheriff Billy Long, who ultimately pleaded guilty to 27 different offenses involving extortion, money laundering, gun and drug charges. Mr. Long was sentenced to 14 years in prison.

Mr. Prebul was arrested and granted bond here in Chattanooga last week, but his criminal case will proceed in New York, Ms. Carmichael said.

Attorneys in the case have until Tuesday to agree upon a date for Mr. Prebul's first New York hearing, according to court documents.

Mr. Prebul, who owns several car dealerships in Chattanooga and Dalton, Ga., has filed for bankruptcy. A federal judge has ruled the dealerships can remain open until a trustee is able to negotiate their sale.

Meanwhile, Mr. Prebul also is fighting a $32 million civil lawsuit Mr. Bensusan filed against him in Hamilton County Circuit Court.

Wayne Peters and Charles Gearhiser, the Chattanooga attorneys who represented Mr. Prebul during his magistrate appearance last week, have not returned repeated calls seeking comment. It is unclear whether they will travel to New York with Mr. Prebul or whether other counsel will be retained.

Russ Dedrick, U.S. Attorney for the Eastern District of Tennessee, said prosecutors typically would follow up at this point in a case with an indictment. The indictment usually triggers pretrial proceedings, though a defendant could choose to plead guilty or reach an agreement with prosecutors at any point, he said.

"There may be some nuances and differences" between the manner of proceedings in New York and those here, he said. For example, indictments are used more often than criminal complaints here; and when the complaints are used, they typically are filed by law enforcement agents - not criminal investigators as in Mr. Prebul's case.

But those differences are negligible in the grand scheme of things, Mr. Dedrick said.

"The federal rules of criminal procedure are the same in New York as they are here," he said.