Thursday, December 24, 2009

Recent Case Holding: People v. Limon - Immigration Consequences

This case held that: If the trial court fails to advise a defendant of immigration consequences, the defendant may seek to withdraw his plea pursuant to Penal Code section 1016.5, subdivision (b). In 1988, appellant, a non-citizen, was convicted of felony drug offenses and granted probation with a condition requiring him to serve a jail sentence. In 1995, he was deported but returned illegally in 1987, and in 2008, he filed a motion pursuant to section 1016.5, subdivision (b) to vacate judgment and withdraw his guilty pleas. The trial court denied the motion. The denial was affirmed. To prevail on a section 1016.5, subdivision (b) motion, a defendant must establish that he was not properly advised of immigration consequences as provided by statute. Because the trial court properly advised appellant of immigration consequences when it accepted his pleas, appellant’s statutory claim was found to be without merit.

People v. Limon , District: 5 DCA , Case #: F056907
Opinion Date: 12/11/2009 , DAR #: 17333

Wednesday, December 16, 2009

Broadcom's former CEO wins dismissal of criminal backdating charges

Broadcom Corp's former chief executive and financial officers won dismissal of criminal charges over stock-option backdating after a federal judge found that prosecutors had intimidated three critical witnesses. U.S. District Judge Cormac Carney, at a hearing in federal court in Santa Ana, ended the trial of former finance chief William Ruehle and threw out the charges against former CEO and co-founder Henry Nicholas, who was scheduled to go trial in February. Judge Carney also dismissed the SEC complaint filed against four Broadcom executives. This came after Judge Carney vacated a guilty plea by former by Broadcom co-founder Henry Samueli in the same case after hearing him testify for two days last week as a defense witness for Ruehle under a grant of immunity. Judge Carney found that prosecutors tried to prevent three key defense witnesses from testifying, improperly contacted attorneys for defense witnesses and leaked information about grand jury proceedings to the media.

Ruehle and Nicholas were indicted last year for retroactively deciding the dates when Broadcom employees received their stock-option grants to increase the employees’ profits. Irvine, California-based Broadcom had to reduce reported earnings by $2.22 billion from 1998 to 2005 for underreported compensation expenses, the largest backdating- related restatement for any company.

“You are charged with serious crimes and, if convicted on them, you will spend the rest of your life prison,” Judge Carney said. “You only have three witnesses to prove your innocence and the government has intimidated and improperly influenced each one of them. Is that fair? Is that justice? I say absolutely not.”

The case is U.S. v. Nicholas, 08-139, U.S. District Court, Central District of California (Santa Ana).

Wednesday, December 9, 2009

Case Update: People v. Rios - Implied Waiver of Rights to Silence & Counsel

In People v. Rios, the California Court of Appeals held that where a defendant impliedly waived his rights to silence and counsel, subsequent admissions were admissible. In that case, Defendant Rios was arrested and placed in the back of a patrol car. He was advised of his Miranda rights by a deputy, who did not ask for a waiver. The deputy then left the patrol car for 5 to 10 minutes. When he returned, he questioned Rios, who then made incriminating statements. The trial court found that Rios had been properly advised of and waived his Miranda rights, and denied the defendant's motion to exclude the statements. On appeal from his subsequent conviction, Rios contended that admission of the statements was reversible error because the prosecution failed to show that he waived his rights to silence and to counsel. He argued that the deputy's interrogation technique of not soliciting a waiver of rights was similar to the tactics disallowed by J. Souter's plurality opinion in Missouri v. Seibert (2004) 542 U.S.
600, because it undermined the Miranda decision. However, the appellate court disagreed and affirmed his conviction. The Court concluded that nothing in Seibert abrogated the rule articulated in North Carolina v. Butler (1979) 441 U.S. 3 69, which allows for a trial court to find an in-custody accused has impliedly waived his Miranda rights. Here, the trial court looked to the totality of the circumstances surrounding the interrogation and properly concluded that Rios had waived his rights. Rios was advised of his rights and said he understood them, he did not ask the deputy any questions, he was not under the influence of drugs or alcohol, and he readily answered the deputy's questions. Thus, the Court resolved there was no indication he invoked his Miranda rights and determined that substantial evidence supported the trial court's finding that the admissions were admissible.

People v. Rios, District: 2 DCA , Division: 5 , Case # B208573
Opinion Dated 11/19/2009

Monday, November 23, 2009

United States v. Ruckes: Evidence Admissible Despite Illegal Vehicle Search

In United States v. Ruckes, the Ninth Circuit court of Appeals upheld the admissibility of drug and firearm evidence in a case where law enforcement conducted an illegal search of a vehicle under the doctrine of inevitable discovery. The Court followed the recent Supreme Court decision of Arizona v. Gant, which limits searches of automobiles, pursuant to the driver’s arrest, to situations where the driver is “unsecured and within reaching distance” of the interior of the car at the time of the search or where it is reasonable to expect evidence related to the crime underlying the arrest might be found in the vehicle. In Ruckes, the driver was arrested for driving without a license and secured in the back of a patrol vehicle. The Court found that since no evidence related to unlawful driving might be found in the car, and since Mr. Ruckes posed no danger of getting a weapon from the car at the time of the search, the search would otherwise be illegal under the Gant decision. However, the Court allowed evidence of cocaine base and possession of a gun to be used against Ruckes under the doctrine of inevitable discovery, a recognized exception to the Fourth Amendment’s warrant requirement. The Court held, "because the district court did not err in alternatively holding that the drugs and firearm would have been uncovered during a routine inventory search of the vehicle upon impound, we affirm its denial of the motion to suppress under the doctrine of inevitable discovery.” Id. at *1. United States v. Ruckes can be found at __F.3d __, No. 08-30088 , 2009 WL 3719209 (9th Cir. Nov. 9, 2009)

Tuesday, November 10, 2009

Recent Case Holding: People v. Stevens (deputy can stand next to testifying defendant)

Last Thursday, the California Supreme Court ruled that positioning a uniformed deputy next to a testifying criminal defendant isn't inherently prejudicial. Justice Carol Corrigan wrote that "jurors may view the sight of an officer accompanying the defendant to the witness stand as nothing more than a routine measure." On the dissent, Justice Carlos Moreno, joined by Justice Joyce Kennard, said that such an act posed a "serious risk" to an individual's right to a fair trial.

This case occurred in Alameda County, when the trial judge directed a deputy to stand at a defendant's side as he testified on his own behalf in a rape trial. The defense argued that this was akin to a "human shackle" unjustified by good cause. Nonetheless, the majority of the Court held that the presence of a deputy "does not directly impair the accused's mobility, nor does it create the affront to human dignity that we have lamented in the context of visible shackles."

The ruling is at: People v. Stevens, 09 C.D.O.S. 13508.

Tuesday, November 3, 2009

November 1, 2009 Amendments to United States Sentencing Guidelines with respect to Sex Crimes

Taking effect on November 1, 2009, the U.S. Sentencing Commission has made several changes to the federal Sentencing Guidelines in a number of ways relating to sex crimes. The amendments address an enhancement for undue influence of a minor as well as changes to the child pornography and human trafficking guidelines.

Undue Influence Amendments
§2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) and §2G1.3 (Promoting a Commercial Sex Act of Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) each contain an enhancement for undue influence where “a participant otherwise unduly influences the minor to engage in prohibited sexual conduct.”

Two issues have arisen involving the undue influence enhancement. The first is whether it can apply in attempt cases. The second is whether it can apply where the only “minor” involved is a law enforcement officer. The Sentencing Commission resolved a split in various circuits on this issue in favor of applying the enhancement in applicable attempt cases, but not where the only “minor” involved in the offense is an undercover law enforcement office. The Commission reasoned that unlike other enhancements, the undue influence enhancement properly focuses on the effect on the minor. It is undetermined at this point whether this amendment should be made retroactive to previous defendants’ sentences.

Child Pornography Amendments
§2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production) and §2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor) are amended to reflect changes in the child pornography statutes at 18 U.S.C. §§ 2251 et seq.

The technology of "streaming video" was added to the child pornography statutes. Specifically, everywhere that “producing a visual depiction” is mentioned, the Commission added “transmitting a live visual depiction” and everywhere “possessing material” is mentioned, the Commission added “accessing with intent to view the material.” These amendments ensure that viewing streaming video, whether or not the video is stored in any permanent format, will result in the same penalties as saving the material.

The Commission also amended §2G2.2 to provide for a new offense at 18 U.S.C. sec 2252A(a)(7), which makes it unlawful to knowingly produce with intent to distribute or knowingly distribute “child pornography that is an adapted or modified depiction of an identifiable minor.” This offense has no mandatory minimum and carries a maximum sentence of fifteen years. The guideline now provides for a base offense level of 18 for such an offense, which is four levels lower than other child pornography distribution offenses. The lower level accounts for the fact that creating the image does not involve actual exploitation of the child (however, the enhancements for distribution and use of a computer are likely to still apply).

Human Trafficking Amendments
The Commission amended §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) to include an alternative enhancement prong at §2L1.1(b)(8)(B). This enhancement will apply where the alien harboring was for the purpose of prostitution and the defendant receives a §3B1.1 adjustment for aggravating role. In such instance, a two-level increase applies, but if the alien who engaged in the prostitution was a minor, a six-level increase applies. Application Note 6 was also amended to note that §3A1.3 (Restraint of Victim) may apply.

Tuesday, October 20, 2009

Change of Venue Motion Granted in Mehserle Case

In the highly-publicized trial of former BART police officer accused of murdering Oakland resident Oscar Grant, the defense's motion to have the trial moved out of Alameda County has been granted. Superior Court Judge Morris Jacobson ruled that the defense had shown that Johannes Mehserle could not get a fair trial in Alameda County for the fatal shooting of Oscar Grant on the platform of BART's Fruitvale Station in Oakland early New Year's Day. A hearing is to be held to determine where the trial should be held.

In support of his ruling, Judge Jacobson wrote that: "The incident is viewed by many as being a case about race relations between the police and minority communities . . . In essence, this case is an allegation of murder under color of law, inseparably entwined with a broad-scale political controversy."

The centerpiece of the defense's argument to move the trial was a telephone survey it commissioned of 397 Alameda County residents. It found that 98 percent of those polled had heard of the case. The defense also used an "expert" in support of its motion for change of venue. However, Judge Jacobson criticized some of the expert's opinions and "findings" and wrote that he was left "with the uncomfortable concern" that the expert "might be trying too hard to please defense counsel." The judge also reminded the parties that "Systematic exclusion of any cognizable group of jurors, because of a party's pre-judgment that there exists a group bias, is wrong."

Tuesday, October 13, 2009

Recent Case Holding: People v. Bleich (denial of factual innocence motion)

The dismissal of terrorist threat and stalking charges against a Southern California pharmacist did not warrant a finding of factual innocence, the Fourth District Court of Appeal ruled Friday.

The Court rejected Ida Bleich’s request for the finding, concluding that other evidence did not completely exonerate her, but instead provided a strong basis from which a reasonable person would believe she committed the offenses.

An employee at the CVS Pharmacy accused his supervisor (defendant Bleich) of leaving a profanity-laden message on his voicemail in the middle of the night. The recorded call apparently threatened to slit the employee’s hroat and put him in a body bag, among other things. An officer with the El Cajon Police Department made a copy of the message on a cassette-recording device, and police confronted Bleich at the pharmacy where she worked when another CVS employee—listening to the message on the cell phone—identified her as the caller and corroborated the allegations of harassment.

According to police, Bleich specifically denied the allegations. Officers arrested Bleich, who told them that she did not have a cell phone with her, but police discovered later that her son came to the pharmacy after the arrest and retrieved a cell phone. When contacted, the son denied having the phone and avoided further calls.

Bleich was charged with making a terrorist threat and stalking. When the recording was played during a preliminary hearing, the CVS employee who had previously identified Bleich described the voice as different from what she had heard, and a police officer said the recording was “not the way the voice sounded” on the cell phone. Accordingly, San Diego Superior Court Judge William J. McGrath concluded that the recording did not sound like Bleich and—finding insufficient evidence to bind her over for trial—dismissed the charges.

Bleich then petitioned for a finding of factual innocence and for her records to be sealed and destroyed under Penal Code Sec. 851.8. The statute allows petitioners who show that the state should never have subjected them to the compulsion of the criminal law, because no objective factors justified official action, to purge the official records of any reference to such action.
Noting that he was not convinced it was Bleich on the recording, the judge said that the circumstances—particularly Bleich’s statements to police and her initial denial related to the cell phone retrieved by her son—led him “to think that there might be reasonable suspicion that she had some involvement in the making of this telephone call as an accessory or otherwise.”

On Bleich’s appeal, Justice Patricia D. Benke agreed, rejecting Bleich’s argument that the facts showed that no reasonable cause existed to believe that she committed the offenses charged.
Benke wrote that McGrath’s factual determination that the voice on the cassette-recording was not Bleich was not alone sufficient to sustain Bleich’s burden of proof to show factual innocence, and that the prosecution’s failure to present an adequate recording was an evidentiary failure that contributed significantly to the dismissal.
See People v. Bleich, D053808.

Tuesday, October 6, 2009

New DA in Alameda County

Alameda County's new DA is now Nancy O'Malley, who has replaced Tom Orloff. She was his chosen successor to serve out the rest of his term, which expires in 9 months. Then, it will be up to the voters to elect a new DA.

Tuesday, September 29, 2009

Recent case holding: Smith v. Lockyer

Smith v. Lockyer, 9th Circuit, Case #: 07-16876, Opinion dated 9/9/09:

Case Holding: A supplemental instruction to the deadlocked jury, addressing concerns of a hold-out juror (concerns which are known to the judge) is considered a denial of defendant's Sixth Amendment right.

Facts: Smith and co-defendant were charged with burglary, robbery, and forced oral copulation. At trial, the prosecution introduced DNA evidence linking Smith to the oral copulation charge. After deliberating, the jury told the judge two times that it was deadlocked on this charge and the judge gave an “ Allen ” instruction, directing the jury to return to its deliberations. On the fifth day, one of the jurors wrote the judge a specific note in which the juror expressed his concerns with the DNA evidence and explained that in light of his concern, he could not vote for conviction. Over the strenuous objection of the defense, the judge then instructed the jury to consider other specific evidence that it believed supported a guilty verdict and summarized this evidence in a non-neutral manner. The jury returned a guilty verdict approximately an hour later. The federal court ruled that the judge's comments were coercive, to the extent that defendant was denied his Sixth Amendment jury trial right and that the ruling of the state court on this issue violated clearly established federal law.

Monday, September 21, 2009

Computer Searches, Major League Baseball, and Drug Testing -- The Ninth Circuit Takes the 4th Amendment into the Information Age

An En Banc Decision by Chief Judge Kozinski on August 31, 2009 will prove to be an influential decision on Fourth Amendment searches of computers. United States v. Comprehensive Drug Testing, 2009 WL 2605378 (9th Cir. Aug. 26, 2009). “This case is about . . . the procedures and safeguards the federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.” Id. at *1.

CDT sets forth new search and seizure rules for the Information Age. Because the seizure of electronic records is becoming more common than paper records, in the opinion, the Ninth Circuit advises that this calls for “greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures.” Id. at *15.

Background

While more detailed facts can be found at United States v. Comprehensive Drug Testing, 513 F.3d 1085, 1089 (9th Cir. 2008), to summarize briefly: in 2002 the federal government began an investigation into the now-infamous Bay Area Lab Cooperative (Balco), which it suspected of providing steroids to professional baseball players. That year, the Major League Baseball Players Association also entered into a collective bargaining agreement with Major League Baseball providing for suspicionless drug testing of all players. A separate company, “Comprehensive Drug Testing” (“CDT”) had been hired by Major League Baseball to test the urine of all professional baseball players for drugs and the players had agreed to undergo these tests with the assurance that the results would remain anonymous and confidential. CDT maintained the list of players and their respective test results; Quest Diagnostics is the company which kept the actual specimens on which the tests were conducted.

During the Balco investigation, federal authorities learned of ten players who had tested positive in the CDT program. Subsequently, the government obtained a grand jury subpoena for all CDT drug testing records and specimens pertaining to Major League Baseball in CDT’s possession.

The same day, the government served a search warrant for records of the ten suspected players at CDT’s facilities in Long Beach. Unlike the subpoena, the warrant was limited to the records of the ten players as to whom the government had probable cause. However, when the warrant was executed, the government seized and reviewed computer records of hundreds of other players in Major League Baseball (and a great many other people). Also, contrary to the search warrant requirements, the government made little or no effort to segregate responsive data in the computer search from records of other drugs tests. As one district judge later put it, the government demonstrated a “callous disregard for the rights of those persons whose records were seized and searched outside the warrant.” Id. at *5.Then, what the government did was use the information obtained from this broad search in support of further subpoenas, demanding production of the same records it had just seized. Ultimately, Judge Illston, of the Northern District of California, quashed this latest round of subpoenas. Id. at *2.

After much litigation and rounds of subpoena-quashing, each of the three district court judges who heard the matters in three different districts expressed “grave dissatisfaction with the government’s handling of the investigation, some going so far as to accuse the government of manipulation and misrepresentation.” Id. at *2. The government appealed all three orders and a majority of a three-judge panel reversed two of the three rulings and endorsed the search and subpoena. This then caused the Ninth Circuit to take the case en banc.

Ninth Circuit Holding

The majority, led by Judge Kozinski, was not pleased with the government’s conduct and went so far as to state, “This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause.” Id. at *8. The Court then set forth particular protocols for preventing agents involved in the investigation from examining or retaining any data other than that for which probable cause is shown. Id. at *9. Judge Kozinski also rejected the government’s “plain view” theory which would have allowed agents to go through computer files at will, under the notion that the data is in “plain view.” In future warrant applications, the Chief Judge warns, the government should “forswear reliance on the plain view doctrine.” Id. at *7. If law enforcement balks at such a waiver, the warrant should require initial review by an independent third party under supervision of the court. Id. Next, the majority discussed the duty of candor, stating: “A lack of candor in this or any other aspect of the warrant application shall bear heavily against the government in the calculus of any subsequent motion to return or suppressed the seized data.” Id. at *7

Also, the Court advised that the government must limit computer searches to data identified in the warrant. For example, it can’t run a search for the “hash files” of known illegal files while looking for urine testing records. Id. at *7.Finally, the person segregating the seized data has to be either a specially trained computer personnel who is not the investigating agent, and who promises not convey information about the non-responsive files, or an independent party (like a special master). Id. at *9. Where the search is of a third party’s computer not suspected of any crime (as in this case), “the presumption should be that the segregation will be conducted by . . . an independent third party selected by the court.” Id.

Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation may examine only the information covered by the terms of the warrant. Id. at *9. The opinion also outlines additional particulars to be followed.

Summary

CDT sets the stage for the Fourth Amendment’s application in the Information Age. On the last page of its opinion, the majority lists five specific guidelines for searching electronic data: (1) magistrates should insist that the government waive reliance on the plain view doctrine in digital evidence cases; (2) segregation and redaction must either be done by specialized personnel or an independent third party; (3) warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial for a; (4) government’s search protocol must be designed to uncover only the information for which it has probably cause and only that information may be examined by case agents; and (5) the government must destroy or, if the recipient may lawfully possess it, return non-responsive data.

Thus, going forward, this case is the starting point for any electronic search.





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The Criminal Law Update is a periodic newsletter published by Campbell & Jayne LLP to provide general information and updates on the legal field. It is not intended to provide legal advice or opinion on any set of specific circumstances. Please consult counsel regarding any legal questions you may have concerning your individual situation. For additional information, please contact Campbell & Jayne LLP.

Saturday, July 18, 2009

Judge Sotomayor: Criminal Justice Highlights

With Judge Sotomayor’s confirmation hearings set to begin on July 13, there have been many speculations as to which way the Supreme Court nominee will lean on criminal justice issues. A brief look at her experience as a former prosecutor and at some of her decisions on the bench may help to gain some insight into what type of justice may soon be taking the bench on the highest judicial body in the United States.

With respect to criminal cases, statistically, more often than not, Judge Sotomayor has sided with the government. As of 2002, of the 90 criminal law-related cases considered by the appellate panel on which Sotomayor served, she sided with the government 65 times and with the defendants or prisoners 25 times. Whatever side she has ruled for, Sotomayor has nearly always been in the majority and has dissented on a defendant’s behalf only once. Looking more closely at her record, Judge Sotomayor has some notable criminal justice rulings on the subjects of federal sentencing and the Fourth Amendment (described below). As a result of her experience as a deputy district attorney, New York criminal defense lawyers have said that she is surprisingly tough on crime for a Democratic-backed appointee.

Short Background

Upon graduating from Yale Law School, Judge Sotomayor joined the Manhattan District Attorney’s Office. She remained a prosecutor there for five years, trying dozens of criminal cases and handling numerous high-profile murder and child-pornography cases.

She thereafter worked for seven years in private practice until she was nominated to the federal bench in the Southern District of New York. Finally, in 1997 she was appointed to the U.S. Court of Appeals for the Second Circuit.

In her time on the federal appellate bench, Judge Sotomayor heard over 3,000 cases and wrote about 380 opinions in which she was in the majority. Of these cases, the Supreme Court has reviewed six, reversing four and affirming two. Of the cases reversed, one was the recent, high-profile New Haven “reverse discrimination” firefighter case in which Sotomayor took part.

Sentencing Record

In sentencing William Duker in 1997, a prominent New York lawyer who pleaded guilty to over-billing the government by $1.4 million in inflated bills, Judge Sotomayor sentenced him to 33 months in federal prison, in line with the federal sentencing guidelines (as opposed to the military-style boot camp requested by the defense). 97-cr-00822-SS-1

In United States v. Bauers, Judge Sotomayor presided over a case against Paul Bauers, who committed mail fraud and identify theft when he applied for a loan in another man’s name and had a check for the loan amount, tens of thousands of dollars, mailed to him in another state. See 93 CR. 459 (S.D.N.Y. 1995). Bauers had an extensive criminal history, including two convictions for similar crimes. Judge Sotomayor decided that Bauers’ criminal history and the high likelihood of recidivism warranted an upward departure from the prison term proposed by the Sentencing Guidelines because it did not reflect the seriousness of defendant’s actual criminal history. The Second Circuit affirmed Judge Sotomayor’s ruling. United States v. Bauers, 57 F.3d 535 (2nd Cir. 1995).

And, in United States v. Heatley, Judge Sotomayor issued a ruling that allowed the first death penalty case in Manhattan in 40 years to go forward. Heatley was the leader of the Preacher Crew, a gang the authorities have said terrorized parts of the Bronx and Manhattan in a multimillion-dollar drug trafficking ring. Judge Sotomayor also decided multiple other issues in the case before Heatley pled guilty to involvement in 13 murders in exchange for a sentence of life in prison. 39 F. Supp. 2d 287 (S.D.N.Y. 1998)

On the other end of the spectrum, Judge Sotomayor has, at times, shown leniency toward criminal defendants. In 2001, in the drug conspiracy trial of Sandra Carter (wherein Judge Sotomayor returned to the federal bench to preside over the trial), she sentenced the defendant to six months in prison, far below the prison term set forth in the sentencing guidelines. Judge Sotomayor purportedly took into account that the defendant was a first time offender who made far less money than the other alleged conspirators. 1:00-cr-00317-SS-9

Fourth Amendment

In U.S. v. Castellano, 820 F.Supp. 80 (S.D.N.Y. 1993), Judge Sotomayor granted a motion to suppress in a case where police inserted false information into an application for a warrant, thus misleading the magistrate judge.

In 1999, Judge Sotomayor upheld the crack cocaine conviction of Anthony Santa despite what she admitted was a “mistaken arrest.” United States v. Santa, 180 F.3d 20 (2nd Cir. 1999). Police officers were executing a warrant that had been vacated 17 months earlier, but was never deleted from the police database. The Court upheld the conviction based on an exception to the exclusionary rule where law enforcement officers rely on police records that contain erroneous information resulting from clerical errors of court employees.

In United States v. Gori, 230 F.3d 44 (2d Cir. 2000), Judge Sotomayor dissented from the majority on the subject of a warrantless search of an apartment. There, the Second Circuit reversed a district court decision that held that police officers had made constructive entry into a private residence in violation of the Fourth Amendment. The Court found that there was no expectation of privacy to what could be seen from the hall, once the door of the apartment had been opened. The court determined that because the apartment door was open, the defendants enjoyed the same expectations of privacy in the apartment as one could expect in any public place. The court found that the police conduct in Gori was reasonable.

In her dissent, Judge Sotomayor found that the majority erred in its decision to authorize intrusions into the home "without a warrant or warrant exception and based only on reasonable suspicion." Judge Sotomayor concluded that the officers either should have had a warrant or an exception to the warrant requirement in order to enter the apartment to make a felony arrest. She concluded that the defendants' Fourth Amendment rights had been violated, and that the evidence seized from the apartment should have been suppressed. Judge Sotomayor thought that the fatal flaw in the case was that the police had no probable cause to believe a crime was being committed in the apartment.

In N.G. & S.G. ex rel. S.C. v. Connecticut, 382 F.2d 3rd 225 (2004), Judge Sotomayor dissented from her colleagues’ decision to uphold a series of strip searches of “troubled adolescent girls” in juvenile detention centers. While Sotomayor agreed that some of the strip searches at issue in the case were lawful, she would have held that due to the “the severely intrusive nature of strip searches,”they should not be allowed “in the absence of individualized suspicion, of adolescents who have never been charged with a crime.” She argued that an "individualized suspicion" rule was more consistent with Second Circuit precedent than the majority's rule.

In United States. v. Howard, 489 F.3d 484 (2nd Cir. 2007), Judge Sotomayor reversed the district court’s suppression of evidence from a vehicle search. The district court had relied on the fact that there was time to get a warrant and that the owners of the vehicle, who were lured away by a police ruse, were not on notice of the search. In reversing, Judge Sotomayor’s panel opinion concluded that the vehicle exception to the rule prohibiting warrantless searches applied.

In United States v. Falso, 544 F.3d 110 (2008), a case involving crimes related to child pornography and intent to engage in illicit sexual conduct with minors, Judge Sotomayor upheld the use of evidence found in a search of the defendant’s home, even though the search warrant was not supported by probable cause. Judge Sotomayor wrote that the judge who had issued the warrant had acted in good faith, and so the evidence was admissible. She did not reach out to overturn the defendant’s conviction; she adhered to the well-established legal principle that recognizes a good faith exception to the exclusionary rule, and respected the diligence and perspective of both the judge who issued the warrant and the trial judge who allowed the evidence to be introduced.

Conclusion

In conclusion, the consensus appears to be that Judge Sotomayor sentenced at the high end of the sentencing guidelines (in both white collar and violent crimes) in her early career as a judge (and also, at a time when the Federal Sentencing Guidelines were mandatory, rather than merely advisory), frequently sided with the government, but at the same time also showed consideration for a defendant’s rights. Her views on the death penalty are unknown as of yet, since she did not have an opportunity to rule on the bench regarding the death penalty. One thing that does stand out is that Judge Sotomayor appears to have more experience in criminal law than any of the justices with whom she will sit if confirmed.

For more information, see: http://www.campbelljayne.com/

The Criminal Law Update is a periodic newsletter published by Campbell & Jayne LLP to provide general information and updates on the legal field. It is not intended to provide legal advice or opinion on any set of specific circumstances. Please consult counsel regarding any legal questions you may have concerning your individual situation. For additional information, please contact Campbell & Jayne LLP.

Campbell & Jayne LLP practices criminal defense in all Bay Area counties, including
San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties. They are your San Francisco criminal lawyers.

Wednesday, April 1, 2009

Recession and Crime: An Overview


The current recession appears to be having an effect on different aspects of crime rates, crime data, and the criminal justice system. Research suggests that rising unemployment and widespread law-enforcement budget cuts in equipment and staffing has resulted in an increase in crime. Additionally, the recession may arguably have an even more radical effect and result in the abolishment of capital punishment in certain cash-strapped states, with debates heating up over whether states should continue to seek the pricey sentence.
The alleged link between the recession and an increase in crime is seemingly crime-specific. White-collar crime, including embezzlement and fraud, has reportedly been the area that has seen the biggest increase. Specifically, as reported by the National Internet Crime Complaint Center (NICCC), cyber fraud is at a record high. Online scams originating worldwide have seen a fifty percent increase in reported complaints in the month of March 2009 alone. The most common of the reported complaints was non-delivery of promised merchandise, with over thirty percent of the fraud being contributed to by Internet auction sites such as eBay and Craigslist. Credit and debit card fraud, confidence fraud, computer fraud, and identify theft fraud through e-mail messages and websites were also amongst list of commonly reported complaints. Also, more than 800 complaints of checking-account customers reporting of unauthorized transactions have been logged so far this year.
Not only have these cyber attacks increased in number, but they have also grown in sophistication. The number of fake websites masked as banks and government agencies, such as the FBI and FDIC, has grown. The NICCC report also highlighted an increasingly prevalent type of identity-theft fraud, coined the Nigerian Letter Scam, which consists of e-mail messages that seemingly originate from the FBI and seek bank account information to help in investigations of money being transferred to Nigeria. Recipients of such e-mails are falsely told they could be richly rewarded for their cooperation. Experts say that the widespread use of the Internet and the relatively inexpensive ways in which cyber fraud can be accomplished help to exacerbate this growing problem.
Reports show that property crime is escalating as well. A survey of 233 police departments throughout the country conducted by the Police Executive Research Forum found that 43 percent reported an increase in what they believed to be recession-related property crimes, including theft, robberies, and burglaries. Forty percent claimed that thefts had increased in recent months, 39 percent said that robberies were up and 32 percent reported that burglaries had risen 20 percent.
The deteriorating economy has been particularly hard on retailers across the country who are being increasingly hit by shoplifters. According to a recent study by the Institute of Corporate Productivity, workplace theft, especially in large organizations, is on the rise. Respondents to surveys have reported increases in theft of non-monetary, company-owned items such as office supplies, products their organization produces or sells, electronic equipment, and food items. There has also been a rise in reports of employee-related, monetary theft, such as the padding of expense accounts, the disappearance of petty cash, suspicious accounting irregularities, fictitious sales transactions, and other fiscal crimes. Also, respondents from large organizations have reported an escalation in the victimization of employees while at work, such as car break-ins and personal items being stolen from their workstations. Finally, experts predict that the economic downturn could trigger an increase in reports of domestic violence. Since the recession hit, more than four fifths of the workers laid off have been men. Studies show that unemployed males are more at risk to engage in domestic violence than other demographic groups. As frustration and depression over unemployment and money woes increase, emotions are heightened and it is not uncommon for individuals to turn to drugs and alcohol, which could arguably further trigger such violence.
Critics have argued that there is no link between the recession and rising crime rates and, even if such links exists, that it is small in magnitude. The stimulus package that was recently passed by Congress could help deter crime with its expectations of funding local and state crime fighting programs and initiatives, providing millions of jobs, extending other unemployment benefits, as well as other forms of relief. Also, organizations are taking increased measures of communicating with employees on theft issues, conducting audits more frequently, conducting more careful background checks, and adding extra security measures. Further, it has been argued that, although a recession may increase the number of people who are motivated to engage in crime-related activities, people’s exposure to property crime decreases because more of them tend to stay home, particularly at night, thus deterring potential crimes from occurring in unoccupied dwellings.
Another realm of the criminal justice system that may possibly be affected by the recession is the death penalty. There is a possibility that states with fiscal concerns may abolish capital punishment in an attempt to save costs. Those seeking to repeal the death penalty are producing hard numbers on its actual costs, with some of these numbers showing that it may cost up to three times as much as instances in which the death penalty is not sought. These opponents of capital punishment argue the money saved could be used to fund state and community programs and services, including prevention and corrections programs. However, critics see the death penalty as an unlikely target for states’ budget cuts, arguing that those seeking to abolish capital punishment as a means of cutting costs are not taking into account the many costs saved in seeking the death penalty.
Although history supports that crime rates peak during a recessionary period, as has happened during the last five recessions, predicting crime trends and the effects of economic climates can be speculative, since factors such as opportunity, need, and risk change on a daily basis. History, anecdotal evidence, and statistics all suggest that the criminal justice system and crime rates could very well be affected by our current recession, but only time will tell the nature and extent of the correlation.
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The Criminal Law Update is a periodic newsletter published by Campbell & Jayne LLP to provide general information and updates on the legal field. It is not intended to provide legal advice or opinion on any set of specific circumstances. Please consult counsel regarding any legal questions you may have concerning your individual situation. For additional information, please contact Campbell & Jayne LLP.

Thursday, January 15, 2009

Major Cities Moving Toward “Banning the Box” (Employment Questions Regarding Criminal History)

Some major cities across the U.S. are eliminating questions regarding criminal history from their job applications in order to prevent convicts from being shut out of the workforce. This policy has been termed “banning the box,” in reference to the box that applicants are forced to check when they initially apply for a position. Such changes in hiring procedures are aimed at helping ex-convicts to make a successful transition into society. Cities are coming to realize that one of the most significant barriers to successful reintegration is the inability of these individuals to gain employment. Disclosure of a past offense, regardless of its age or relevance to the position being sought, often functions to automatically shut out an individual from a job they are otherwise qualified for.

These “ban the box” policies came about as a result of the national grassroots campaigning of an organization of formerly incarcerated people and their families called All of Us or None. These individuals, through their first-hand experience of the stigma that comes along with a criminal record, aimed at creating a fair and efficient approach to the consideration of a criminal history that balances public safety concerns with the need to provide opportunities to qualified applicants with prior records. In San Francisco, the proposal was adopted and took effect June 2006, with at least 7 major cities following suit. Oakland is among one of the cities which have adopted the policy and Los Angeles is still considering the proposal.

The primary goal of the “ban the box” policy is to reduce the likelihood that ex-convicts will commit new crimes. Statistics show that the amount of recidivism in the population is dramatic and various experts have recognized the toll it takes on communities, families, and the economy. Proponents of the “ban the box” policy point to a study by the Urban Institute finding that former prisoners that have jobs and earn higher wages are less likely to return to prison.

The new hiring policy only applies to public employment. However, “ban the box” advocates hope that the new policy can still serve as a model to encourage private employers, who are not bound by the new requirements, to hire otherwise qualified and motivated individuals. Also, where federal or state laws expressly bar people with convictions from employment in the public arena, pre-screening for a criminal record is still acceptable.

Even in cities where the “ban the box” policy has been adopted, criminal background checks in the later hiring stages still exist when deemed relevant or necessary to a position. Later checks ensure that those with criminal records are not weeded out of the talent pool before being able to proffer their skills. Cities have standards for determining whether criminal record is relevant to the job. For example, background checks are relevant to sensitive positions such as jobs with law enforcement, schools, and positions involving large amounts of money or unsupervised contact with children, the disabled, or the elderly. When relevant, cities also consider such mitigating circumstances as time elapsed since the conviction and evidence of rehabilitation. Timing of the criminal screening varies from city to city. San Francisco screens when the pool of applicants has been narrowed to the list of finalists and Oakland screens at the interview stage.

The expansion of the “ban the box” policy to other jurisdictions is unknown at this point. Though such proposals are being presented in more cities, many jurisdictions are likely to take the wait-and-see approach to determine how these policies work before taking steps to implement them.





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For more information, see: www.campbelljayne.com

The Criminal Law Update is a periodic newsletter published by Campbell & Jayne LLP to provide general information and updates on the legal field. It is not intended to provide legal advice or opinion on any set of specific circumstances. Please consult counsel regarding any legal questions you may have concerning your individual situation. For additional information, please contact Campbell & Jayne LLP.