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.