Wednesday, December 15, 2010

Grand Jury Subpoenas for Documents of a Public Investigation Enforceable

The Ninth Circuit Court reversed an order in the district court. The Ninth Circuit held that grand jury subpoenas for documents were enforceable where they came within subpoena power through litigation initiated after the grand jury investigation became public.

The government conducted an anti-trust investigation into alleged criminal conduct that became public. Private lawsuits were filed against the companies under investigation. These lawsuits were consolidated in district court into one case. During that litigation discovery produced defendants' documents that originated from outside of the United States. Several domestic law firms representing the defendant companies possessed the documents and were subpoenaed by the grand jury in the government investigation. The law firms moved to quash the subpoenas. The district court agreed, finding novel issues with the implications for grand-jury power and for the relationship between grand-jury proceedings and civil discovery of foreign defendants that were not indicted.

The court of appeals reversed, holding that grand jury subpoenas could be enforced. The court noted that the law firms did not establish or suggest any collusion between their clients and the government. The law firms also did not claim that the documents were privileged. The court applied its per se rule that a grand jury subpoena takes precedence over a civil protective order pursuant to (I) In re Grand Jury Subpoenas Served on Meserve, Mumper & Hughes (I), 62 F.3d 1222 (9th Cir. 1995).

This case is: In re Grand Jury Subpoenas; 9th Cir. December 7, 2010; 10-15758.

Monday, December 6, 2010

Ninth Circuit rules that "Honest Services" Mail Fraud Does Not Require Proof of Fiduciary Relationship

The Ninth Circuit Court reversed a district court order on Friday, December 3rd, that dismissed an indictment, remanding the action for further proceedings. The Court held that "honest services" mail fraud did not require proof of a fiduciary relationship nor did it require damages to the money or property of the victim. 

Brano Milovanovic and three others, (collectively Milovanovic), were indicted for "honest services" mail fraud for, according to the indictment, participating in a corrupt scheme to obtain commercial drivers' licenses in the State of Washington by cheating on the associated tests and falsifying residency in exchange for bribes. Milovanovic, a certified Bosnian translator, bribed a co-defendant who worked for a firm the state department employed to administer driving tests. Milovanovic and his co-defendant were not employees of the state and the state was not deprived of any fees associated with the commercial drivers' license testing process or any other funds. Therefore, the district court dismissed the indictment because the federal mail fraud statute required a fiduciary relationship.

The court of appeals reversed, holding that it remained an open question in the circuit whether "honest services" fraud under the mail fraud statute could be committed only by a "fiduciary." The Court determined that court authority on this question was inconclusive and that the inconclusiveness itself made it clear that there was no sense in determining fiduciary status as a step in evaluating a mail fraud indictment. The Court referred to 18 U.S.C. § 1341 and § 1346. The latter states that a "scheme or artifice to defraud" includes those which intend to deprive another of the intangible right of honest services. By combining the statutes, "whoever having devised or intending to devise a scheme or artifice to defraud" by "depriv[ing] another of the intangible right of honest services," using the mails, commits mail fraud. The court determined that the category "whoever" literally meant anyone, whether fiduciary or not. 

Judge Fernandez dissented, writing that he could not say that the indictment sufficiently pled the crime of "honest services" mail fraud because it failed to allege the kind of heightened duty to the government that would suffice to raise Milovanovic from the status of miscreant to the status of federal defendant. 

This case is: United States v. Milovanovic; 9th Cir.; December 3, 2010; 08-30381.

Tuesday, November 16, 2010

Defendants Who Knew Federal Law Made Cannabis Illegal Were Not Misled by Sheriff Who Assured Them That Their Marijuana Grow Was Legal.

The Ninth Circuit Court of Appeals affirmed a judgment holding that defendants who knew that under federal law that cannabis remained illegal, and could not be prescribed by physicians, were not misled by county sheriff’s deputies who purportedly assured them that their marijuana grow operation was legal under federal law. Dale Shafer, an attorney, and Marion Fry, a physician were a married couple who operated a medical marijuana dispensary in California. The operation began after Fry was diagnosed with a condition for which marijuana was recommended to alleviate side effects of treatment. Shafer began cultivating marijuana for Fry’s use and informed the county sheriff of his operations. Sheriff’s deputies visited the operation many times and inspected the plants, even after the cultivation extended beyond personal use amounts and developed into a business.


Shafer and Fry were eventually indicted federally for conspiracy to manufacture and distribute marijuana plants. They moved to dismiss the indictment on the grounds that an entrapment-by-estoppel defense precluded their prosecution. The government opposed contending that Shafer and Fry had not relied on representations by a federal official or an authorized agent of the government. The government further contended that Shafer and Fry had given written recommendations to their patients which included a disclaimer that marijuana remained illegal under federal law; thus, they knew that federal law made their operation illegal. The district precluded an entrapment-by-estoppel defense and the jury convicted them both. On appeal, they contended that their theory of entrapment-by- estoppel was improperly dismissed. The court of appeals affirmed based on Shafer and Fry’s knowledge of federal law.

This case is United States v. Shafer, 9th Cir.; November 8. 2010; 08-10167

Tuesday, November 9, 2010

Traffic Violation Citations Counted as Arrests to Calculate Criminal History Points

The Ninth Circuit affirmed a district court judgment which included traffic violation citations as “arrests” when calculating the defendant’s criminal history under U.S.S.G. § 4A1.2(a)(2). The Court agreed with the Seventh Circuit in its application of United States v. Morgan, which treated Leal-Felix’s traffic violations as arrests with regard to the Sentencing Guidelines. United States v. Morgan, 354, F .3d 621 (7th Cir. 2003).

In February 2005 Israel Leal-Felix plead guilty to aggravated felony of possessing a firearm by a convicted felon and was deported from the United States to Mexico. In March of 2009, Leal-Felix reentered the United States without applying for readmission after his deportation. Under a plea agreement, Leal-Felix pled guilty to a single-count of violating 8 U.S.C. § 1326(a) (illegal re-entry), for which the potential prison term is 20 years. The plea agreement provided that Leal-Felix would be sentenced to at the low end of the Sentencing Guidelines range, determined by a total offence level and his calculated criminal history.

Leal-Felix’s criminal history was calculated by the Probation Office to be 14 points, including the calculation of pleading guilty to charges for burglary, importing controlled substances, methamphetamine, as well as sale and distribution. Also included were 2 points each for his arrests or citations for driving with a suspended license on November 17th and 19th, 1998. On the condition that Leal-Felix serve 180 days in the county jail for both traffic violations, he was sentenced to concurrent sentences of 36 months of probation for the traffic violations. The district court calculated, in accordance with the plea agreement, the imprisonment sentence at 21 months, the low end of the 21 to 27-month Sentencing Guidelines range. Leal-Felix’s offense level was determined to be level 9 and Criminal History Category VI.

Leal-Felix appealed on the issue of whether a citation for a traffic violation is an arrest countable for criminal history under the Sentencing Guidelines. Leal-Felix argued that because he was cited but not arrested for the November 17th, 1998 traffic violation, the two violations were not separated by an intervening arrest under U.S.S.G. § 4A1.2(a)(2), and the 2 points added for the November 19th, 1998, traffic violation should not have been counted. If these points were not counted Leal-Felix would be in Criminal History Category V, where the Sentencing Guidelines range low is 18 months rather than 21 months in Category VI.

The Ninth Circuit considered United States v. Morgan, which addressed this issue in the Seventh Circuit. In Morgan, the Seventh Circuit recognized “calling the traffic stop an ‘arrest’ implements the Sentencing Commission’s goal” and that “[a] traffic stop is an ‘arrest’ in federal parlance” as opposed to state law for purposes of § 4A1.2(a)(2). Additionally, Leal-Felix was imprisoned for 90 days per traffic violation, demonstrating that, for guidelines purposes, these violations represented more severe instances than should be disregarded when calculating criminal history. The Court of appeals ruled that the district court properly counted 2 criminal history points for each of the convictions in these traffic violations.

Notably, while Judge Goodwin wrote an eight-paragraph opinion on this sentencing guidelines case, Judge Bennett (sitting by designation from the District of Iowa) responded by authoring a twenty-page, single-spaced dissent (bolstered by a table of contents), and argued that a “citation” does not mean an “arrest.”

The case is: United States v. Leal-Felix, 9th Cir.; November 1, 2010. 09-50426.

Monday, November 1, 2010

United States v. Redlightning: Confessions Before and After Voluntary Polygraph Not Illegal as the Result of Unlawful Detention or Failure to Promptly

The Ninth Circuit Court affirmed a district court judgment of conviction on Monday, October 25th. The Court held that confessions obtained during and after a voluntary polygraph examination were not illegal as a result of unlawful detention or failure to promptly present the defendant to a magistrate.

Rita Disanjh's body was found on the Lummi Indian Reservation in August of 1987. The pathologist was not able to rule out sexual assault but did determine that the victim had been killed by manual strangulation. In 2006, Athena Swope, daughter of Henry Redlightning's deceased partner, Patricia Dubbs, told police that Redlightning had been involved in the murder of a woman and that she had learned of this from her mother in 2003, to whom Redlightning had confessed.

In October 2007 Redlightning was interviewed by FBI agents and agreed to answer questions in a polygraph examination. During the polygraph examination Redlightning was asked "Did you sexually assault and kill Rita?" to which he responded, "Yes." The following day while en route to the arraignment, the FBI agent obtained an additional confession from Redlightning. Before the trial Redlightning unsuccessfully sought to have his confessions to murdering Disanjh suppressed. A jury convicted Redlightning of killing Disanjh with premeditation and in perpetration of, or the attempt to perpetrate, aggravated sexual abuse and sentenced him to life in prison. Redlightning appealed and the court of appeals affirmed, holding that neither the first nor the second confession was illegally obtained. Redlightning had not been in custody until his confession and because the first confession had not been the result of an illegal seizure, the second confession was not the result of an unconstitutional act.

This case is: United States v. Redlightning; 9th Cir.; October 25th, 2010;09-30122

Wednesday, October 27, 2010

Flight from Hit and Run Does Not Qualify as Grounds for Great Bodily Injury Enhancement

The California Court of Appeal determined on Tuesday, October 12th that a great bodily injury enhancement does not apply to a hit and run violation unless the injury was caused or aggravated by the failure to stop and give aid.

The appellant, Mr. Valdez, hit a pedestrian with his car and drove away, injuring the victim. Months later, the appellant turned himself in to the police. Valdez was convicted of hit and run. The jury also found true a great bodily injury enhancement.

The Court of Appeal considered whether a great bodily injury enhancement can be found true in conjunction with a hit and run when the injuries suffered by the victim were not aggravated by the defendant's failure to stop and give aid. The Court held that it could not. Section 12022.7 of the Penal Code requires great bodily injury "in the commission of a felony or attempted felony" and the Vehicle Code section 20001 makes fleeing after an accident criminal. The injuries sustained by the victim were not inflicted by the flight of the defendant, nor were they aggravated by it. The appellant's flight did not alter the non-criminal nature of the accident and therefore the Court reversed the great bodily enhancement.

This case is: People v. Valdez; 4 DCA; October 12, 2010; G042837.

Wednesday, October 20, 2010

Prolonged Detention of Evidence to Accommodate Drug-Detecting Canines Does Not Violate Fourth Amendment Rights

A District Court judgment was upheld by the Ninth Circuit Court on Monday, October 18th. The Court held that the admission of marijuana evidence, found in a mailed package delayed twenty-two hours as a result of the remoteness of the site from canine investigation, did not violate the defendant's Fourth Amendment rights.

Robert Lozano of Barrow, Alaska, asked a post office manager whether mail was screened for drugs. Suspicious, the manager notified the postal inspector of this inquiry, who authorized a "mail watch" on Lozano's post office box. After the arrival of a large and heavily taped package addressed to "Bill Corner" at Lozano's box, the manager notified the inspector, who requested it be sent to him in Anchorage. The package was mailed on one of two daily flights from Barrow to Anchorage and was alerted by a drug dog. After obtaining a warrant officers found eleven pounds of marijuana inside the package. Lozano picked up the package under a controlled delivery arranged by law enforcement and was arrested and indicted on a single count of attempted possession and intent to distribute. Lozano was found guilty of both attempted possession and intent to distribute.

Lozano appealed that the evidence associated with the mailed package should have been suppressed because the inspector lacked reasonable suspicion to detain the package past it's delivery time. He also held that detention of the package was unreasonable. The Court of appeals affirmed that the inspector did have grounds for reasonable suspicion. A delay had been upheld in the past due to the difficult of travel for drug-detecting canines. The Court also ruled that the retention stemmed from the same concerns and therefore upheld the judgment. Finally, the Court found that diversion of packages during an investigation, when based on reasonable suspicion, is also reasonable.

Judge O'Scannlain added that Lozano did not have a legitimate expectation of privacy in the mailed package and therefore no Fourth Amendment standing to challenge the admission of the marijuana evidence.


This case is: United States v. Lozano; 9th Cir.; October 18th, 2010; 09-30151

Monday, October 18, 2010

Housing Detainees in High-Temperature Areas Constitutes Cruel and Unusal Punishment

The Ninth Circuit affirmed a district court judgment that housing pretrial detainees in a jail where temperatures exceeded 85° F amounted to cruel and unusual punishment under the Eighth Amendment as to detainees who were taking psychotropic medications that made high temperatures a significant health risk.

In 1977, Fred Graves, Isaac Popoca, and others, (collectively, Graves), indigent prisoners in Maricopa County jails in Arizona, sued the county sheriff and the county supervisors (collectively, the sheriff) on behalf of all of the detainees in the county jails. Graves alleged that the conditions of his confinement violated his constitutional rights and that, among other things, the temperature was dangerously high and there was inadequate food.

From 1977 through 1995, the district court adopted the terms of an agreement that addressed each of the detainee's claims and later amended it to reflect changes in the prison population, jail construction, advances in medical treatment, and the evolution of the law. In 1996, the Prison Litigation Reform Act (PLRA) was enacted. The PLRA offers amendments and supplements to the U.S. Code to restrict and discourage litigation by prisoners. In 1998, the sheriff moved to terminate the amended judgment but was denied. In 2001, the appellate court vacated the order and remanded, upon which the sheriff renewed his motion. In 2008 the district court heard evidence pursuant to the PLRA and issued a second amendment that ordered the sheriff house pretrial detainees who were taking psychotropic medications in cells where the temperature did not exceed 85
° F and to provide detainees with food that satisfied the government's dietary guidelines. The sheriff appealed, arguing that the district court improperly order prospective relief without giving him an opportunity to propose different solutions. He also asserted that the ordered relief was not the least intrusive means of correcting the violations. The court of appeals affirmed the district court's judgment.


This case is:
Graves v. Arpaio; 9th Cir.; October 13th, 2010; 08-17601

Monday, October 11, 2010

People v. Camino: Firearm Enhancement Cannot be Imposed when the Deceased is the Principal

The Fourth Appellate District Court affirmed in part and reversed in part a judgment and remanded. The court held that a firearm sentence enhancement was improperly imposed on a defendant who could not have been vicariously liable for the shooting death of a fellow gang member. This is because the gang member who was shot and killed could not have been a principal or an accomplice to his own death.

Jose Camino and a fellow gang member, Rolando Palacios, were involved in a gun fight with a rival gang. Palacios, the lone shooter in Camino's group and the only one who was armed, was shot and killed by a bullet of unknown origin. Police interviewed Camino twice at the police station. Prior to the first interview Camino was not read his rights under Miranda v. Arizona (1996) 384 U.S. 436. In this interview, Camino revealed that he, Palacios, and a third individual had driven into the alley in pursuit of rival gang members. Camino stated that Palacios had stepped out of the car and shot at members of the rival gang. For the second interview Camino was moved to a different room, advised of his rights and interviewed him a second time. Camino described the same events that he had in the previous interview.

At a jury trial, the People conceded that Camino's statements from the first interview were inadmissible but introduced statements from his second interview. The jury convicted Camino of the second degree murder of Palacios (count 1) as well as of attempted murder of one of the rival gang members (count 2) and of street terrorism (count 3). With regard to counts 1 and 2, the jury found that Camino committed those crimes for the benefit of a criminal street gang within the meaning of
§ 186.22 (b)(1) and that Camino vicariously discharged a firearm within the meaning of § 12022.52(c) and (e)(1), an enhancement that mandated a consecutive twenty-year term. Camino appealed.

The court of appeals affirmed in part, reversed in part and remanded, holding that the firearm sentence enhancement was improperly imposed on Camino.
The Court agreed with Camino's argument that the jury instruction regarding gang-related firearm enhancement (CALCRIM No. 1402) as read here was misleading because Palacios could not have been the principal or an accomplice to his own murder. Penal Code §12022.53(e)(1) states that the enhancement applies to any person who is a principal in an offense if it is pleaded and proved both that the person violated Penal Code §186.22(b), a felony for the benefit of a criminal street gang and that any principal in the offense discharged a firearm as specified under §12022.53. Under §12022.53(e)(1), Camino, as a principal in Palacios' murder by virtue of the provocative acts doctrine, satisfied by the first prerequisite because he committed the offense for the gang of which he and Palacios were members. This doctrine holds that if an individual acts in a way that shows disregard for human life and the probable consequence of which is death, that individual may be held responsible for the death(s) that may result.
Yet, under the second prerequisite, Camino was vicariously liable only for the personal discharge of a gun by another principal in the murder of Palacios.
Palacios, the only shooter in Camino's group, could not be found guilty of murder in connection with his own death. Therefore, Palacios was not a principal in the offense or murder that was charged against Camino and the jury's finding that Camino vicariously shot a gun during commission of Palacios' murder was unsupported by substantial evidence. Therefore, it was clear that the jury was misled by CALCRIM No. 1402 and that the error was prejudicial because it could be reasonably assumed that the jury would have reached a result more favorable to Camino if the misleading information had been absent. The 20-year firearm enhancement was removed from Camino's sentence.


This case is: People v. Camino; C.A. 4th, October 4th, 2010; G041887.

Monday, September 20, 2010

U.S. v. Comprehensive Drug Testing, Inc.: Ninth Circuit Holds that the Government only has a Right to Specific Names in Search Warrant

ItalicThe Ninth Circuit Court affirmed in part and dismissed in part a ruling by the district court on Monday, September 13th. The Ninth Circuit held that the government had no right to retain seized drug-test results of professional athletes other than those specified in a search warrant.

The Major League Baseball Players Association ("players") and Major League Baseball came to an agreement on anonymous and suspicion-less urine sample drug testing of all players. Comprehensive Drug Testing, Inc. (CDT) an independent company, administered the sample tests for the members of the players. The results of the tests were maintained by CDT with the lists of players and their respective results and the company that actually performed the testing, Quest Diagnostics, Inc., kept the testing samples.

The government investigated the Bay Area Lab Cooperative (Balco), which it suspected of providing steroids to players and learned that ten players had tested positive in the CDT program. The government secured a grand jury subpoena in the Norther District of California that sought the drug-testing records as well as the specimens pertaining to Major League Baseball in CDT's possession. CDT and the players moved to quash the subpoena. The government next obtained a warrant in the Central District of California that authorized a search of CDT's facilities in Long Beach, California. This warrant was limited to records of the ten players for whom there was probable cause but the government seized and reviewed the records for hundreds of players in the Major League Baseball as well as those of many other individuals. The government also obtained a warrant from the District of Nevada for the urine samples from Quest's facilities. Finally, the government served CDT and Quest with a new subpoena in the Northern District for production of the same records it had just seized.

In response to the government's actions CDT and the players moved in the Central District under Fed. R. Crim. Proc., Rule 41(g), for return of property that had been seized there. Judge Cooper of the Central District ordered the property be returned, finding that the government did not follow the procedures specified in the warrant ("Cooper Order"). CDT and the players also moved in Nevada under Rule 41(g) for a return of property seized under warrants there. Judge Mahan of Nevada district court ordered the government to return the property it had seized except for those materials that pertained to the ten identified players ("Mahan Order"). Finally, CDT and the players moved under Rule 17(c) in the Northern District to quash the most recent subpoenas. Judge Illston of the Northern district granted the motion ("Illston Quashal").

The government appealed the orders. The appellate panel reversed the Mahan Order and Judge Illston's order, but found that the appeal from the Cooper order was untimely. The appelate court took the case en banc.

The court of appeals affirmed in part and dismissed in part, holding that the government had no independent basis to keep the seized drug-test results.The Court agreed with the appellate panel, dismissing the government's appeal of the Cooper Order. The Court noted, however, that the government was bound by the factual determinations and issues resolved against it by the final Cooper Order. Those included failure to comply with the conditions of the warrant that were designed to segregate information as to which the government had probable cause from that which it did not.


This case is: United States v. Comprehensive Drug Testing, Inc.; 9th Cir.; September 13, 2010; 05-10067

Wednesday, September 15, 2010

Ninth Circuit Decision Stands that GPS Devices can be Installed Without a Warrant

On August 12th, a panel of the Ninth Circuit Court voted to deny a petition for rehearing en banc a case which many consider a controversial ruling on the Fourth Amendment’s guarantee of privacy. The original ruling of United States v. Pineda-Moreno was decided in January of this year. In Pineda-Moreno, the Ninth Circuit Court affirmed a district court ruling that effectively allows law enforcement officers to secretly place a global positioning system (GPS) device on an individual’s car without securing a warrant from a judge. In the August 12th Order, Judge Kozinski issued a dramatic and scathing dissent of the denial of the rehearing on banc.

The facts of the case were as follows: in 2007 Drug Enforcement Administration (DEA) agents attached a GPS device to the underside of Juan Pineda-Moreno’s vehicle on several occasions over a four-month period based on suspicions that he was involved in a conspiracy to grow and distribute marijuana. On four of these occasions, the vehicle was parked on a public street in front of his home. On the other two occasions, the Jeep was parked in his driveway, a few feet from the side of his trailer. Once in place, the tracking devices recorded and logged the precise movements of the vehicle. On September 12, 2007, information from a mobile tracking device alerted agents that Pineda-Moreno’s vehicle was leaving a suspected marijuana grow site. Agents followed the Jeep, pulled it over, and smelled the odor of marijuana emanating from the car. His arrest and the discovery of additional evidence followed.

Pineda-Moreno was indicted in November 2007 on one count of conspiracy to manufacture marijuana in violation of 21 U.S.C. § 846(a)(1) and (b)(1)(A)(vii) and one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). Pineda-Moreno moved in the district court to suppress the evidence from the GPS devices, arguing that his Fourth Amendment rights were violated by attaching the GPS to his vehicle; his motion was denied. He entered a conditional guilty plea but reserved the right to appeal the denial of his motion to suppress.

On appeal, Pineda-Moreno presented several arguments with respect to the violation of his Fourth Amendment rights, each of which was considered separately by the court. First, Pineda-Moreno argued that agents violated his Fourth Amendment rights by entering his driveway and attaching the devices to the underside of his vehicle. In its decision, the Court relied on a ruling it had made in United States v. McIver, where the defendant argued that the placement of a device on the underside of his vehicle constituted an unreasonable “search,” violating his Fourth Amendment rights. United States v. McIver, 186 F. 3d 1119 (9th Cir. 1999). The Court rejected this argument, holding that the agents did not enter the curtilage of McIver’s home to attach the device and that the underside of his vehicle could not be “afforded a reasonable expectation of privacy” and therefore did not constitute a search.

According to the Court, the only difference in the instant case was that Pineda-Moreno’s car was parked within the “curtilage” of his home when the device was attached. Although the vehicle was parked in Pineda-Moreno’s driveway, the Court concluded that the driveway was on a “semi-private area.” The court ruled that “to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing special features of the driveway itself…or the nature of activities performed upon it.” The Court decided that Pineda-Moreno’s driveway did not have any features to establish this privacy and this argument was therefore rejected.

Pineda-Moreno next argued that because of the time at which the agents entered his driveway (4:00 AM and 5:00 AM) he possessed a reasonable expectation of privacy. The court once again cited McIver, where the timing of the agents’ actions were immaterial to analysis of the case.

Pineda-Moreno also argued that even if the agents’ presence in his driveway did not violate his Fourth Amendment rights, attaching the tracking device to the underside of the vehicle did. Because the Court in McIver had previously addressed this argument and held that the undercarriage of a vehicle, as the exterior of a vehicle, is not entitled to a reasonable expectation of privacy, Pineda-Moreno’s rights were not violated.

Pineda-Moreno also took the position that his Fourth Amendment Rights were violated when a GPS device was attached to his vehicle while it was parked on the street in front of his home and in a public parking lot. McIver also provided precedent for this argument and the Court held that no violation occurs when a suspect’s vehicle is parked outside the curtilage of his home because there is a lack of reasonable expectation of privacy.

Pineda-Moreno’s final claim was that the agents’ use of mobile tracking devices to continuously monitor his location violated his Fourth Amendment rights because the devices are not generally used by the public. The Court rejected this argument as well, finding that the use of the device on Pineda-Moreno’s car was, for the purpose of obtaining information on the locations where Pineda-Moreno’s car traveled, information which could have been obtained by officers actually following Pineda-Moreno. Therefore, the agents use of the GPS device did not, according to the Court, constitute a search or violate his Fourth Amendment rights.

The Court ultimately concluded that because the Agents did not “search” Pineda-Moreno’s car, they would not comment on the district court’s conclusion that the agents had reasonable suspicion that he was engaged in criminal activity, and therefore affirmed the judgment of the district court.

Notably, in his dissent, Judge Kozinski accused the Court of “dismantle[ing] the zone of privacy we enjoy in the home’s cartilage and in public” and of “quickly making personal privacy a distant memory.” He also opined that that there is “something creepy and un-American about such clandestine and underhanded behavior.”

Other courts such as the U.S. Court of Appeals in Washington, D.C., ruled in a similar factual scenario in early August that monitoring an individual with a tracking device for an extended period of time requires a warrant. There has been a great deal of controversy in response to the Ninth Circuit’s decision from conservatives and liberals alike and this case is likely to reach the Supreme Court.

United States v. Pineda-Moreno can be found at: 591 F.3d 1212 (9th Cir. 2010) and 2010 WL 3169572 (C.A.9 (Or)).



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Friday, September 3, 2010

People v. Bradford: Court Determines that Security Guards Can be Victims of Robbery Due to 'Special Relationship' with Stores

The California Court of Appeals determined on Wednesday, September 1st, that security guards at a shopping mall can be victims of a robbery although they are not the owners of the stolen property and are not directly employed by the store that owned the property. The court determined this based on the evidence that the guards had a 'special relationship' with the store and had the duty and authority to retrieve its stolen property. Additionally, the court rejected the defendant's claims that the jury instructions on this point were incorrect and his mid-trial motion for self-representation under Faretta v. California (1975) 422 U.S. 806, (Faretta).

Richard Gary Bradford stole six bottles of perfume from Victoria's Secret and was noticed by the shift manager, Nina Paiz, walking out of the store with the perfume. Paiz spoke with two security guards, Steven Conyers and Arthur Sandoval, and reported Bradford's actions. Conyers and Sandoval followed Bradford and contacted him just inside another store. After speaking with him briefly in an attempt to retrieve the property, Conyers told Bradford he was placing him under citizen's arrest. Bradford brandished a knife from his pocket, waved it at the guards, and ran away. The guards chased him outside and Conyers tackled him. Bradford once again took a knife from his pocket. Sandoval grabbed his hand to prevent Bradford from stabbing Conyers and forced Bradford to drop the weapon. Bradford was turned over to the Fairfield police and convicted on two counts of second degree robbery with knife use enhancements, one count of assault by means likely to cause great bodily injury. The guards were both named victims of the robbery and Conyers was named the victim of the assault count.

The Defendant's appeal sought to argue three main points: the question of Conyers and Sandoval constituting robbery victims; the instruction given to the jury as defective because it did not advise the jury that it needed to find a 'special relationship' that imbued the guards with the authority or responsibility to protect the property before it was stolen; and that the trial court improperly denied the defendant's motion for self-representation.

In regard to the first point, the court concluded that, as shown in People v. Scott, individuals other than employees can be victims of robbery if they have a 'special relationship' with the owner of the property such that they had the authority or responsibility to protect the stolen property on the owner's behalf. [People v. Scott, (2009) 45 Cal. 4th]. In this case, Conyers and Sandoval did have a 'special relationship' with the property owner through their contractual obligation to provide security to all of the businesses at the mall. Furthermore, Paiz specifically asked Conyers and Sandoval for assistance in recovering the stolen property, which, was determined in People v. Bekele, when the owner of stolen property gave "implied authority to a co-worker to prevent a theft of his personal property." [People v. Bekele (1995) 33 Cal. App. 4th 1457 (Bekele)]. The defendant also argued that the guards are akin to police officers, who are not recognized as victims of robbery. The court disagreed with this argument because unlike police officers relations with the general public, the guards did have a 'special relationship' with the theft victim by virtue of their employment.

In response to the second point the court concluded that while the instructions given to the jury did not advise the jury to find 'a special relationship' it did require a determination that they find the guards to be "representatives" of the store with express or implied authority over the property. The court contended that this instruction was in fact more stringent than finding a 'special relationship.' Therefore, it was reasonable to conclude that the jury found a 'special relationship' between the store and the guards having determined that the guards were "representatives."

The court also rejected the defendant's third point. According to Faretta, the right to self-representation is absolute. Absolution holds if a request to do so is knowingly and voluntarily made and is asserted a reasonable time before the trial begins. [People v. Doolin (2009) 45 Cal.4th 390]. If not, requests for self-representation are subject to the trial court's discretion. [People v. Windham (1977) 19 Cal. 3d 121, 127-129 (Windham)]. The factors the trial court should consider: the defendant's reasons for the motion, the quality of defense counsel's representation, the defendant's proclivity to substitute counsel, the length and stage of the proceedings, and the disruption or delay that might reasonably be expected to follow if the motion were granted. The defendant in this case filed his motion after the close of evidence, but before the closing arguments began. The court found that in this case the defendant's motion was not timely. The defendant's reason for seeking self-representation was dissatisfaction with his counsel's representation, which the court found to be of good quality. Additionally, the defendant had shown himself to be disruptive to the court by, for example, speaking out inappropriately.
See our results in this type of case: http://sfcrim.poweradvocates.com/?page_id=10

This case is: People v. Bradford; Sept. 1, 2010; No. A125040.

Friday, August 27, 2010

United States v. Ali: Unauthorized Sales of Software deemed Deprivation of “Money or Property” and Grounds for Wire and Mail Fraud Convictions

A district court judgment was affirmed in part and reversed in part by the 9th Circuit court. The 9th Circuit held that mail and wire fraud defendants took "money or property" from a software manufacturer by obtaining discounted software packages under false pretenses and then selling the packages indiscriminately for full price. http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/43mcrm.htm

Microsoft sold software package, Academic Edition (AE), through its Authorized Education Reseller (AER) program. According to the program, AERs could receive software at discounted prices and sell it to qualified educational users. The Microsoft AER agreement also held that if an AER violated the terms, the AER would be liable to Microsoft for the difference between Microsoft's estimated retail price and commercial versions of the software.

Mirza Ali, Sameena Ali and Keith Griffen attained AER status under false pretenses for various companies and subsequently sold AE software to unauthorized users. The companies acquired approximately $30 million of AE software and resold it using mail and wires in support of these sales. The Alis used money from these unauthorized sales to buy entities to aid the scheme, transferred money out of the country and bought real property in California.

All three defendants were found guilty of conspiracy, mail fraud and wire fraud. The Alis were additionally found guilty of promotion money laundering, concealment money laundering, exportation money laundering, and criminal forfeiture. The court of appeals held that sufficient evidence supported all of the defendants' convictions with the exception of promotion money laundering.

The 9th Circuit found that under
§§ 1341 and 1343 a right to payment is "money or property," which the Supreme Court has interpreted as including entitlement to collect money from a party for purposes of the mail and wire fraud statutes. Therefore, the defendants' argument that Microsoft's loss was only the expectation of "potential profits" was wrong because this right to payment is "property." The court also found that Microsoft was entitled to full payment for any software sold outside AE restrictions and it should still be treated as lost property "in its hand."

This case is: United States v. Ali; 9th Cir.; August 25th, 2010; 07-10529.

Monday, August 23, 2010

U.S. v. Rivera-Corona: Defendant Has Right Under Sixth Amendment to Court-Appointed Counsel After Discharging Private Criminal Defense Attorney

The Ninth Circuit reversed a district court judgment and sent it back for re-sentencing on Wednesday, August 18th. The court held that the district court did not undertake the proper inquiry on the defendant's motion to relieve his counsel and proceed with a different, court-appointed lawyer. The defendant's motion was rejected based on public expense and the late stage of the proceedings.

Trinidad Rivera-Corona pleaded guilty to carrying a firearm in relation to a drug trafficking crime. Prior to sentencing, according to Rivera-Corona, he did not get along with his retained counsel and that said he did not feel as though he could continue fighting his case before a jury without the attorney wanting more money and possibly suing his family. This statement was misinterpreted as a request to withdraw his guilty plea and a request for new counsel, both of which were denied.

The appellate court observed that under the Sixth Amendment, indigent defendants have a constitutional right to counsel, but not the right to a specific attorney. A defendant capable of hiring his own attorney has a different right to be represented by the attorney of his own choosing. Additionally, the Criminal Justice Act establishes that counsel can be appointed at any stage of the proceedings if the court found the defendant to be financially unable to pay counsel whom he retained. This applied to Rivera-Corona and the Ninth Circuit directed the district court to appoint counsel if he was financially eligible.



This case is: United States v. Rivera-Corona, 9th Cir; August 18, 2010; 08-30286.

Monday, August 16, 2010

Martinez-Medina v. Holder: Seizure of an Alien After Illegal Status is Admitted is Not a 4th Amendment Violation

The 9th Circuit court held that seizure of an alien by a state law enforcement officer after the alien admitted to being illegally present in the United States was not a flagrant violation of the Fourth Amendment warranting suppression of the alien's statements at an immigration hearing.

Ladislao Martinez-Medina was stopped at a gas station in Oregon with several others because of his over-heated car. The gas station owner called the Sheriff's Department and the deputy sheriff arrived shortly thereafter. He spoke with them briefly and asked if they had "green cards," to which Martinez-Medina's son, Oscar, replied that they did not. All of those present had understood this question to mean, 'were they legally present in the United States?' The deputy placed them in custody and said he was going to call the Immigration and Naturalization Service. Agent Warner of the Immigration and Naturalization Service arrived, spoke with some of the people in custody as well as with Martinez-Medina and Oscar. He asked them if they had green cards and subsequently took them into custody for a violation of immigration laws.

During the removal proceedings the Petitioners argued that their Fourth Amendment rights had been violated. They moved to suppress Agent Warner's testimony and other evidence from the hearing. The Immigration Judge concluded that the encounter became a search and seizure after the deputy sheriff asked the Petitioners about their immigration status and that this did not violate the Fourth Amendment because the deputy had probable cause to believe the petitioners were illegally present in the United States.

The Petitioners also argued that the deputy sheriff's seizure was a violation of his statutory authority under Oregon law. The court concluded that it was not a violation of the Fourth Amendment, even if it was assumed it was a state law violation. Also, the Court rejected the Petitioners' claims that they were seized based solely on the fact that they were Hispanic. The Court ruled against this claim and held that the initial encounter was consensual and the seizure took place only after their illegal status was acknowledged.

This case is: Martinez-Medina v. Holder; 9th Cir. 06-75778.

Monday, August 9, 2010

In Re Coley: "Three Strikes Law" Applies to Defendant for Failing to Register as a Sex Offender

On Wednesday, August 4th, the Second Appellate Court denied a petition for a writ of habeas corpus, effectively allowing the Three Strikes Rule to apply to the case of the defendant, Willie Coley. The Court held that there had been no violation of the federal Constitution's Eighth Amendment, which prohibits cruel and unusual punishment, where the defendant had a lengthy and serious criminal history.

Coley was convicted of failing to update his sex offender registration within five working days of his birthday and had been previously convicted of manslaughter, rape in concert, and robberies between 1978 and 2001. In light of these earlier convictions and in accordance with the Three Strikes Rule, the trial court sentenced Coley to 25 years to life.

Coley appealed on the grounds that this constituted cruel and unusual punishment and filed a petition for a writ of habeas corpus with the California Supreme Court, citing People v. Carmony [People v. Carmony (2005) 127 Cal.App.4th 1066; (Carmony)]. In Carmony, the Third Appellate District held that invoking the Three Strikes law to trigger a sentence of 25 years to life violated the Eighth Amendment if the conviction that did so was for failing to update sex offender registration within five working days.

Coley's petition was denied. Coley further challenged that his sentence was a violation of the Eighth Amendment. The United States Supreme Court assessed the case and found pursuant to Ewing v. California, the Court's sentencing was justified by the state's public safety interest [Ewing v. California (2003) 538 U.S. 11]. Coley's long and serious criminal record qualified him as a recurrent offender and therefore incapacitating him, according to the court, was in the interest of the state's public safety.

This case is: In re Coley; C.A. 2nd; August 4, 2010; B224400.

Wednesday, August 4, 2010

Bellante v. Superior Court: Burden of Delay Shifts to the Prosecution

The Appellate Division of the Superior Court of Kern County held that Matthew Bellante, who was cited for drunk driving in July of 2008 but never received notice to appear, had the better argument in a rare instance against the People.

Bellante was cited for drunk driving July 11, 2008, after which a complaint was filed on the 28th and a warrant issued August 6th. Bellante's address was verified on his driver's license at the time of the citation and in DMV records. Bellante was not served but learned of the warrant through the DMV and turned himself in.

Over a year later, December 17, 2009, Bellante moved to dismiss his case for lack of a speedy trial, arguing that he had resided at his given address openly and continuously since 2003, in the time since his citation no effort was made to serve him with the warrant and that he had not failed to appear. Bellante cited Serna v. Superior Court (1985) 40 Cal.3d 239 (Serna), which established that the delay of over one year from the filing of the complaint in this misdemeanor case results in presumptive prejudice. Additionally, the California Supreme Court recently cited Serna and stated that Barker is the final step in a three-tiered approach that first requires the defense to demonstrate prejudice from a delay of trial followed by the prosecution, and finally "the trial court must balance the prejudice to the defendant resulting from the delay against the prosecution's justification for the delay" [(Barker v. Wingo (1972) 407 U.S. 514 (Barker); (People v. Lowe (2007) 40 Cal.4th 937, 942)].

The Court decided that this complaint triggered application of the weighing process outlined in Barker, which made it the duty of the People to show justification for the delay of trial and that they exercised reasonable diligence in bringing Bellante to trial. A writ of mandate was issued in favor of Bellante directing the trial court to vacate its order denying dismissal of the case and enter a new order of dismissal.

This case is: Bellante v. Superior Court S-1500-AP-721.

Monday, August 2, 2010

The 9th Circuit Court finds Enhancements of Sentences Warranted

The 9th Circuit affirmed a judgment that enhanced Miguel Rosas's sentences after he voluntarily fled to allegedly deny responsibility for the sentencing of charges, effectively obstructing justice.

Rosas was found guilty by the district court of conspiracy to possess marijuana with intent to distribute and possession with intent to distribute. He signed a presentence report for his release on bond pending his sentencing. After doing so he fled and was later arrested and charged for failure to appear. The presentence report was therefore updated and recommended 70 to 87 months for his drug convictions, the statutory maximum for each of which was 40 years. The district court sentenced Rosas to 53 months for his drug convictions and 10 months for his failure to appear.

Rosas appealed on the grounds that this sentence violated his constitutional rights to due process and protection from double jeopardy. Rosas also argued that the sentence constituted impermissible double counting under the sentencing guidelines.

The 9th Circuit Court upheld the sentences of the district court finding that the Double Jeopardy Clause was not violated when accounting for Rosas's failure to appear and enhanced sentences were appropriate. The Court also found that double counting had not occurred in the case of his enhanced sentences as it allows two enhancements on the basis of failure to appear: one for obstruction of justice and the second for commission of an offense while on release. Finally, the Court found that the rule-of-lenity did not apply in this case because Rosas's flight was voluntary, thus indicating that he did not accept responsibility for his criminal actions.

This case is: United States v. Rosas: 9th Cir.; July 27, 2010; 09-10011.

Monday, July 26, 2010

United States v. Thomas: Obstruction of Justice and Perjury

The court of appeals affirmed a judgment that Tammy Thomas, a former professional cyclist, could be prosecuted for obstruction of justice where she allegedly gave intentionally evasive and false testimony before a federal grand jury though she was under a grant of immunity.

Thomas testified before the grand jury in regards to distribution of anabolic steroids to professional athletes and money laundering connected to BALCO Laboratories and her knowledge of information regarding Patrick Arnold, an alleged distributor of the steroids. During her testimony Thomas denied receiving any "products" from Arnold, "taking anything Arnold gave her," and "taking anabolic steroids." As a result of these statements under oath, Thomas was charged with alleged material false declarations and obstruction of justice and was convicted at trial on four of the six counts she was charged with.

The court of appeals heard Thomas's case and her "literal truth" defense. The court affirmed that there was ample evidence that Thomas understood the questions presented by the government. Thomas also argued that her statements were not material because they lacked a jurisdictional connection to the Northern District of California, where her grand jury testimony took place. The court rejected that assertion and held that there was sufficient evidence for a rational jury to find the element of materiality. With regards to her obstruction of justice conviction, Thomas argued that her immunity grant effectively excluded her testimony from use against her by the government in any prosecution beyond perjury, making false declarations, or refusing to testify. The language of 18 U.S.C. §6002 indicated that her testimony could not be used against her in any criminal case, except for a prosecution for perjury, false declaration, or otherwise failing to comply with the order. Thomas failed to comply with the order and was therefore convicted for obstruction of justice under U.S.C. §1503.

This case is United States v. Thomas, 9th Cir.; July 22, 2010; 08-10450.

Monday, July 19, 2010

Plea-Bargaining Tips, Tricks & Techniques for Criminal Lawyers (ExecSense Webinars)

Plea-Bargaining Tips, Tricks & Techniques for Criminal Lawyers (ExecSense Webinars)

Extent of Miranda Rights Tested by People v. Tate

The California Supreme Court affirmed a ruling on July 8th that statements made by Oakland Police Department Officers during the interrogation of a suspect did not invalidate his Miranda rights.

Gregory Tate was placed in custody by the Oakland Police Department (OPD) after he was observed driving the vehicle of a woman who was murdered and robbed the day before. Tate was taken to the homicide division of the OPD, where officers initially told him that they were investigating the car he had in his possession because the vehicle had been stolen and the woman who owned it was "hurt."

The Court found that this statement was not enough to invalidate Tate's two separate occasions upon which he waived his Miranda rights. The Court also acknowledged that by telling Tate that the victim was "hurt," he was aware that he was being investigated for more than car theft. He also understood that he was in the homicide division of the Police Department after asking an officer at the beginning of his second interview.

This decision established that individuals do not have to be informed of all the information they may find "useful" when making a decision to waive Miranda rights.

This case is: People v. Tate, Cal.Sup.Ct.; July 8, 2010; SO31641.

Wednesday, July 14, 2010

United States v. Graf: Standard established for attorney-client privilege between corporate employee and counsel


On Wednesday, July 7th, the Ninth Circuit Court of Appeals affirmed a ruling that James Graf, a consultant who worked as a functional employee, held no joint attorney-client privilege with the company's attorneys. The Court also held that Graf held no personal attorney-client privilege over his communications with the corporate attorneys where he failed to show that he sought personal legal advice and meet the other requirements necessary to establish that privilege.

James Graf was the founder of Employers Mutual LLC, a corporation that purported to sell health care benefits coverage to over 20,000 buyers but in reality defrauded individuals and small businesses who purchased the company's health plans. As a result of previous violations of California State insurance laws and his subsequent ban from insurance work, Graf was not listed as an employee of Employers Mutual.

The Nevada District Court selected an independent fiduciary, Thomas Dillon, to run Employers Mutual after Graf was removed by the U.S. Department of Labor. Dillon also waived the Employers Mutual's attorney-client privilege as to all communications between the company and its legal counsel to which Graf responded with a motion to exclude the testimony based on attorney-client privilege.

The Court denied this motion, reasoning that Graf did not have a personal attorney-client relationship with the attorneys because he had not sought legal advice from them. Additionally, the Court concluded that Graf's belief that Employers Mutual's attorneys represented him personally was insufficient to create a personal privilege because the belief was either unreasonable or was not expressed to those attorneys.

The court cited Upjohn Co. v. United States, 449 U.S. 383 (1981), In re Bieter Co., 16 F.3d 929 (8th Cir. 1994), and In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1986).

The case is: United States v. Graf, 9th Cir.; July 7th, 2010; 07-50100.

Wednesday, June 30, 2010

United States v. Batson: Restitution Orders in Tax Fraud Cases Permitted by 9th Circuit

Alma Batson plead guilty to one count of IRS Code §7206 for willfully aiding and assisting in the preparation of fraudulent tax returns. She conceded that at least $965, 673 in refunds were given to taxpayers that they were not entitled to. Batson was sentenced to prison followed by supervised release and ordered to pay $176,854 in restitution.

In an appeal Batson argued that only the Victim and Witness Protection Act (VWPA) and the Mandatory Victims Restitution Act (MVRA) authorized restitution as a condition of supervised release.


The Ninth Circuit held that 18 U.S.C. § 3563(b)(2), which grants federal courts broad discretion to order restitution as a condition of probation, and 18 U.S.C. § 3583(d), which extends that grant to supervised release, authorizes federal courts to order restitution as a condition of supervised release for any criminal offense, including those set forth in Title 26 (the IRS code), for which supervised release is properly imposed.

However, the Court concluded that Batson’s restitution had to be limited to the loss sustained by the government caused by the crimes she was convicted for. Because her crime did not involve a scheme, conspiracy, or pattern of criminal activity, as she plead to one count of preparing fraudulent returns, the restitution imposed as a condition of probation was limited to the loss pertaining to that count.

The case is: United States v. Batson, 9th Cir; June 21, 2010; 09-50238

Wednesday, June 23, 2010

Criminal Liability of Stock Brokers: Full Disclosure of Material Information

The 9th circuit court of appeals ruled on June 16th that securities brokers must disclose material information regarding a stock purchase if the broker has a fiduciary relationship with a client.

Hampton Porter Investment Bankers, LLC, became involved in a “pump and dump” scheme that resulted in “bonus commissions” for sales of “house stocks.” “House stocks” are those that were granted to Hampton Porter for either extremely discounted prices or for free and then driven up in price when clients were pressured into purchasing them, strongly discouraged from selling them, or simply ignored when clients made sales orders.

According to Section 10(b) of the Securities Exchange Act of 1934, it is illegal to use any manipulative or deceptive device in connection with a purchase. Rule 10b-5 states that it is illegal to “defraud, to make any untrue statement of, or omit to state, a material fact, or to engage in any course of business which operates as a fraud or deceit upon another in connection with the purchase or sale of a security.”

The court found that the overall “pump and dump” scheme was a separate violation of Rule 10b-5 from failure to disclose bonus commissions. Additionally, the Brokers’ failure to disclose was circumstantial evidence of their agreement to be part of this conspiracy.


The case is United States v. Laurienti, 07-50240

Wednesday, June 16, 2010

United States v. Bonds: Hearsay Evidence Affirmed as Inadmissible

Evidence provided by Greg Anderson, a trainer to Barry Bonds, was affirmed as inadmissible hearsay by the 9th Circuit on Friday, June 11th.

In order to successfully convict Bonds on multiple counts of perjury and one count of obstruction of justice, the government needed to prove that blood and urine samples were Bonds’s. Anderson refused to testify and subsequently the testimony of BALCO Director of Operations James Valente was also excluded by the district court. The government filed an interlocutory appeal in response to these rulings.

The district court first considered the admissibility of Anderson’s statement under the hearsay rule’s exception: F.R.Ev.807, which is restricted to exceptional circumstances. This case was identified as unexceptional by the court because it involved statements made by an unavailable witness. In addition, both the district court and court of appeals found that Anderson’s statements were not trustworthy, another requirement of F.R.Ev. 807

The court next considered whether Anderson’s statements were admissible under F.R.Ev.801 (d)(2)(C) and F.R.Ev.801(d)(2)(D). Rule 801 (d)(2)(C) states that a statement is a non-hearsay party admission if it is offered against a party and is a statement concerning the subject and Rule 801 (d)(2)(D) states that a statement is not hearsay if it is offered against a party and is a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. Under both rules the court of appeals upheld the rulings of the district court that Anderson’s evidence is inadmissible hearsay.

Judge Bea disagreed with the court’s rulings that Anderson’s statements were not hearsay. Judge Bea argued that for purposes of F.R.Ev.801(d)(2)(D), Anderson was an agent of Bonds and the statements he made to Valente were within his agency; and, those statements were made during the term of his agency. Additionally Judge Bea argued that Anderson was authorized to identify the samples as those of Bonds under Rule 801(d)(2)(C).

The case is United States v. Bonds, 09-10079.

Thursday, June 10, 2010

California Supreme Court Grants Review on Penal Code Section 4019 (custody credits) and the Issue of Retroactivity

Yesterday, the California Supreme Court granted review on two cases involving the retroactivity of revised Penal Code section 4019.

The lead case on the issue is People v. Brown (2010) 182 Cal.App.4th 1354 (S181963), in which the Third District had held that the amendment must be applied retroactively to qualifying appellants whose cases were not final on appeal on the date of the statute's enactment.

People v. Rodriguez (2010) 182 Cal.App.4th 535, the first case to hold the amendment applies prospectively only, was also granted review. (See S181808.) But briefing in that case is being deferred pending consideration and disposition of Brown.

Although neither of these two cases can be cited as authority any longer because of the grant of review, there remain eight more published cases discussing the issue. Stay tuned.

Wednesday, June 2, 2010

U.S. Supreme Court Miranda Ruling: Suspects Must Speak Up

On Tuesday, the Supreme Court ruled that a suspect's silence can be used against them in court—unless they speak up and explicitly say otherwise. In a 5-4 decision, the court determined that in order for people to invoke their Miranda rights—the right to a lawyer, to remain silent, etc.—they have to tell the arresting police officer that they're doing so. The case in question involved a Michigan man, Van Thompkins, who was arrested for murder in 2000. Thompkins kept quiet during a nearly three-hour police interrogation, then answered "yes" to the question "do you pray to God to forgive you for shooting that boy down?" Thompkins argued that he had invoked his Miranda rights to remain silent by actually remaining silent, but he was eventually convicted of murder in 2001.The conviction was overturned after the 6th Circuit appeals court agreed with him, but today's ruling reinstates his conviction and forces suspect to inform police if they want to invoke their Miranda rights. Writing for the opposition, Justice Sonia Sotomayor argued that the ruling "turns Miranda upside down." "Criminal suspects must now unambiguously invoke their right to remain silent— which counterintuitively, requires them to speak," Sotomayor wrote. ''At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so."

The case is Berghuis v. Thompkins, 08-1470.

Friday, May 21, 2010

Sentencing juvenile offender to life in prison without parole for nonhomicide crime violated the Cruel & Unusual Punishments Clause

Petitioner Graham was sixteen when he committed armed burglary and another crime. As a result of a plea agreement, the trial court placed Graham on probation. Subsequently, the court found that Graham had violated the terms of his probation and revoked his probation, sentencing him to life in prison. The state of Florida does not offer the possibility of release in life cases except executive clemency. Graham challenged his sentence under the Eight Amendment’s Cruel and Unusual Punishment Clause. The State First District Court of appeal affirmed his sentence.

The Eighth Amendment forbids punishments that are excessive when compared to the crime. In addition, the Courts must evaluate circumstances and offender’s characteristics such as age and intellectual functioning. Courts also evaluate if juvenile offenders have a sufficient maturity and depravity. Moreover, “punishment for crime should be graduated and proportioned to [the] offense” Weens v. United States, 217 U.S. 349, 367.

There are twelve jurisdictions nationwide that have imposed life without parole sentences on juvenile nonhomicide offenders. The United States is the only nation that imposes this type of sentence. In this landmark decision, the United States Supreme Court has now held that Eighth Amendment’s Cruel and Unusual Punishment Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.

The case is Graham v. Florida, U.S. Sup. Ct.; May 17, 2010; 08-7412.

Wednesday, May 5, 2010

Antitrust Update: The Proposed Revisions to the Horizontal Merger Guidelines

In April 2010, the U.S. Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice (DOJ) (collectively, “the Agencies”) released for public comment substantial proposed revisions to the Horizontal Merger Guidelines. These Guidelines set forth how the federal antitrust agencies evaluate the likely competitive impact of mergers and whether those mergers comply with U.S. antitrust law.

The Horizontal Merger Guidelines were created in 1992 by the Agencies and were then revised in 1997 The proposed revisions are stated as intending to more accurately reflect how the FTC and DOJ currently conduct merger reviews. “Eighteen years have passed since the Horizontal Merger Guidelines were revised. During that time the agencies’ approach has evolved significantly, and the Guidelines should reflect that,” said FTC Chairman Jon Leibowitz. “The proposed Guidelines put out for comment today reflect the current state of merger analysis at the FTC and DOJ, and will help make the process more transparent to American businesses and courts. By inviting comments from all stakeholders, we’ll make sure that the final Guidelines are clear and accurate in conveying the Agencies’ merger enforcement intentions.”

In general, the FTC and DOJ review mergers for violations of section 7 of the Clayton Act, which prohibits acquisitions of assets or voting securities that are likely to substantially lessen competition or tend to create a monopoly in any area of commerce in the United States. On their face, the proposed Guidelines merely spell out current practice at the FTC and DOJ, which share responsibility for antitrust enforcement. But in practice, the revisions could give regulators a stronger hand when challenging merger deals in court by making it harder for companies to argue that the Agencies failed to follow their own procedures to the letter. Some believe that the proposed revisions may please those in favor of more rigorous antitrust enforcement while others believe that companies will proceed more cautiously as potentially more deals will be flagged for scrutiny.

The Guidelines allow for more flexibility in analyzing the potential anticompetitive effects of a merger than the 18-year-old predecessors they replace, which laid out a sequence of steps that regulators were supposed to follow. They also give regulators new tools to test whether a merger will result in higher prices or market dominance that could hurt consumers.
Among the clarifications and differences between the current and proposed Guidelines are the following:

• The proposed Guidelines clarify that merger analysis does not use a single methodology, but is a fact-specific process through which the Agencies use a variety of tools to analyze the evidence to determine whether a merger may substantially lessen competition.

•The proposed Guidelines introduce a new section on “Evidence of Adverse Competitive Effects.” This section discusses several categories and sources of evidence that the Agencies, in their experience, have found informative in predicting the likely competitive effects of mergers. With the revisions, the Agencies will regard “any reasonably available and reliable evidence” in order to analyze if a merger could cause anticompetitive effects.

•The proposed Guidelines explain that market definition is not an end itself or a necessary starting point of merger analysis, but instead a tool that is useful to the extent it illuminates the merger’s likely competitive effects. This is a significant change because this new definition is more focused on the competitive effects created by the transaction. With this “new” definition, the Agencies intend to explain that defining a market is not necessary to prove an antitrust violation, especially in cases involving unilateral effects.

• The proposed Guidelines provide an updated explanation of the hypothetical monopolist test used to define relevant antitrust markets and how the agencies implement that test in practice.

• The concentration levels that are likely to warrant either further scrutiny or challenge form the agencies are updated in the proposed Guidelines.

•The proposed Guidelines provide an expanded discussion of how the agencies evaluate unilateral competitive effects, including effects on innovation.

• The proposed Guidelines provide an updated section on coordinated effects and clarify that these, like unilateral effects, include conduct not otherwise condemned by the antitrust laws.

• The proposed Guidelines provide a simplified discussion of how the agencies evaluate whether entry into the relevant market is so easy that a merger is not likely to enhance market power.

• The proposed Guidelines add new sections on powerful buyers, mergers between competing buyers, and partial acquisitions. In this approach, Agencies will consider whether large purchasers can serve as a shield against anticompetitive behavior. The revised Guidelines clarify that the analysis of the competitive effects of a transaction between buyers is almost the same as the analysis of a transaction between sellers.

Because mergers in the U.S. can only be blocked by going to court, the real question will be what effect the revisions will have in court. One clear goal of the revisions is to try to persuade the courts to consider complex economic analyses as persuasive evidence. The revisions are written to explain why particular economic analyses are used and should be credited by courts. It will remain to be seen whether courts actually accept such arguments, even in the face of Guideline revisions.

Additionally, because the revised Guidelines are intended to more accurately reflect how the Agencies actually review present-day mergers, the revisions themselves in theory should not make it more difficult to get deals approved by the Agencies. Some commentators view the revisions as a shift towards more aggressive enforcement. While the Guidelines do contain some provisions that are more pro-enforcement, it is fair to say that the revisions primarily (on their face) stay within the mainstream of antitrust enforcement. Politics, of course, will also play a role in the effect on mergers.

The Agencies are soliciting comments from (electronically or in paper form) on the new Guidelines, and they must be received on or before May 20, 2010.





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Tuesday, April 27, 2010

Ecstasy qualifies as a controlled substance under Health & Safety Code section 11377

The California 4th District Court of Appeal held that because Ecstasy contains methamphetamine, it qualifies as a controlled substance or an analog to a controlled substance for purposes of Health and Safety Code section 11377. In this case, Appellant was convicted of possession of Ecstasy. He argued insufficient evidence supported the conviction because the drug is neither a controlled substance, nor an analog of any controlled substance for purposes of the statute. Section 11377 prohibits possession of controlled substances which are specified in several other statutes. Ecstasy, also known as MDMA or methyldioxy methamphetamine, is not listed in any of these statutes. But, one of the statutes enumerated in section 11377, namely section 11055, subdivision (d), includes, inter alia, "stimulants" containing any quantity of methamphetamine. In this case, the officer testified Ecstasy includes methamphetamine and has a stimulating effect similar to it. Based on this testimony, the jury reasonably concluded that Ecstasy is either a controlled substance or an analog of methamphetamine for purposes of the crime.

The case is: People v. Becker, District: 4 DCA, Division: 2, Case #: E047898

Wednesday, April 21, 2010

Vehicle Impound and Search after DUI Upheld

The California First Appellate District held that a CHP Officer who impounded a vehicle for safekeeping that belonged to a defendant who was arrested for DUI acted reasonable when searching the vehicle pursuant to an "inventory search." A large amount of cash and several bags of marijuana were seized from the vehicle. The defendant argued that such an impound and search was improper becasue the vehicle could have been left parked on the street, and cited CHP manual policies. The Court disagreed and found that the determination to impound or remove a vehicle pursaunt to the community caretaking function was reasonable under the circumstances of the case.

The case is: People v. Shafrir, C.A. 1st, March 29, 2010; A125880; 10 C.D.O.S. 4701