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Showing posts from August, 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 softw…

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 …

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 w…

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; (…

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…

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 …