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Showing posts from 2013

Latest Insider Trading Conviction

Last week, a federal jury in Manhattan found former SAC portfolio manager, Michael Steinberg, guilty on 5 insider trading charges related to trades he made in the shares of Dell and Nvidia.  Steinberg was the highest-ranking employee at SAC Capital Advisors to stand trial for insider trading. Other SAC employees pled guilty to securities fraud and cooperated with the government. His verdict was also reached without the use of wiretap evidence; the evidence was purely circumstantial. A former SAC analyst who was cooperating did testify on behalf of the government, but otherwise, there was no hard evidence against Mr. Steinberg. 

The government's record is now 77 guilty pleas or convictions for insider trading cases over the past four years, out of 87 people charged, including firms and individuals.

Expert Testimony on Reliability of Breath Test in DUI Excluded

The California Supreme Court affirmed a trial court decision that excluded the defendant's expert witness testimony regarding the reliability of breath test machines at trial.

The court ruled as follows:

"The trial court did not err in limiting Dr. Hlastala‟s prehearing jury testimony and excluding his subsequently proposed elaborating testimony with respect to the statutory per se charge. As the trial court observed, defendant remained free to argue, and present evidence, that the particular machines used in this case malfunctioned, or that they were improperly calibrated or employed. But as explained earlier, the 0.08 percent breath-alcohol concentration formulated by the Legislature in enacting the underlying per se offense, section 23152(b), was adopted on the basis of correlation studies employing just such breath-testing
machines — and the various physiological factors that affect the results of breath machines generally, have already been taken into account by those st…

Real Estate Investment Fraud Case Results in UPward Variance for Non-Criminal Conduct!

In this case, the defendant pled guilty to wire fraud in connection with a real estate investment scheme. The parties reached an agreement on defendant's sentencing guidelines and the loss amount, taking into account that some of the losses were not due to defendant's conduct at all, but rather, due to the investments themselves. 

The district court did not accept the parties' loss conclusions and applied a much higher loss amount and varied upward nearly double from the joint guideline recommendation of sixty months in custody.  The court used the rational for the upward variance as the impact on the victims' lives (even though much of the losses were simply investments that didn't work out).  The issue for the Ninth Circuit was whether the "life-destroying" facts of the victims proper for the court to consider in varying upward.  The Ninth said yes - the Court could consider these other factors.

Judge Tashima wrote a very strong dissent on this issue, cit…

United States v. Underwood: deficient search warrant

United States appealed the granting of defendant’s motion to suppress which was granted due to bare bones, cut and paste facts in a search warrant affidavit. Underwood was charged with conspiracy to possess and distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. •The Ninth Circuit held that: –Conclusions of affiant unsupported by underlying facts can’t be used to establish probable cause –The affidavit contained only two facts, foundationless expert opinion, and conclusory allegations •Seen baggie of personal use marijuana lacked a nexus to ecstasy trafficking •Observation of Defendant delivering two wooden crates to suspected dealers three months before warrant wasn’t detailed enough; was a bare conclusion that it contained ecstasy •Affidavit failed to define “drug trafficker” and provided no facts to support conclusion that Underwood is in business of buying & selling ecstasy •LAPD Officer’s statement that a federal warrant had previously issued in the case for a…

United States v. Lira: Mandatory Minimum sentence enhancement requires proof beyond a reasonable doubt

Lira appealed his 120-month mandatory minimum sentence imposed following his jury trial conviction for use or carrying and possession of firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He was convicted in Counts I-III of possession and distribution of meth, and the District Court found by a preponderance of the evidence in Count IV that Lira discharged a firearm “during and in relation to or in furtherance” of a drug trafficking offense, which triggered the 10 year mandatory minimum consecutive sentence. Lira appealed his 120-month mandatory minimum sentence imposed following his jury trial conviction for use or carrying and possession of firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He was convicted in Counts I-III of possession and distribution of meth, and the District Court found by a preponderance of the evidence in Count IV that Lira discharged a firearm “during and in relation to or in furthe…

Did You Get the Memo? Eric Holder’s New Policies and Initiatives on Federal Drug Sentencing & Federal Charges

Federal drug sentencing has been given a long-awaited makeover by the issuance of Eric Holder’s Memorandum and Guidelines to Federal Prosecutors in August of this year.  The new policy should help certain drug offenders avoid mandatory minimum sentences in federal drug cases.  Attorney General Holder also set forth “Federal Prosecution Priorities” pertaining to the charging of certain offenses in federal, versus state, court.
Citing to Alleyne v. United States, 133 S.Ct. 2151 (2013), the Holder Memo on Charging Mandatory Minimum Sentences (Aug. 12, 2013), reminded United States Attorneys that “any fact that increases the statutory mandatory minimum sentence is an element of the crime that must be submitted to the jury and found beyond a reasonable doubt.”  Mr. Holder noted that because of this standard, the prosecutor’s discretion in charging mandatory minimum cases must be used with particularity and discretion.  Specifically, Mr. Holder stated:
When making these individualized assessm…

Petitions for Factual Innocence (Penal Code section 851.8)

An arrest, even where there is no conviction, can have devastating effects on a person's life.  For non-citizens, it can result in random detentions at immigration outposts and obstacles to obtaining citizenship.  For those seeking employment, an arrest can be detected through background checks and can result in disqualification from certain jobs.  A Petition for Factual Innocence pursuant to California Penal Code section 851.8 can get one's arrest record sealed and destroyed.  The standard is very high, however, as the Petitioner must prove that he/she was factually innocent; in other words, that the arrest was improper and that the person is innocent.

At Jayne Law Group, we handle these petitions on a regular basis. In fact, just today, Julia Jayne won a Petition for Factual Innocence involving a Domestic Violence arrest.  The client's life changed today - no more stops at immigration, employment opportunities, and a chance to put that awful part of his life behind him.

Fourth Amendment update:Consent to search phone doesn't include allowing agents to answer phone

In United States v. Lopez-Cruz, the 9th Circuit held last week that a police officer may not answer a person's cell phone and impersonate that individual based on consent to look at a phone.  In the case, Lopez-Cruz was stopped by agents near the Mexico border and he had two cellphones in his center console.  Agents asked to look at the phones.  He consented to a search of the phones.  One of the cellphones rang, and the agent answered it and detected alien smuggling activity.  Lopez-Cruz moved to suppress the details of the conversation.  The 9th Circuit upheld the suppression decision by the district court, holding that the agents went too far in assuming the identity of Lopez-Cruz and having a conversation on his behalf.  Contrary to the government's argument, the Court held that his consent to search the phone did not include consent for the agents to answer his personal calls.

The case is: United States v. Lopez-Cruz, 2013 WL 4838908 (9th Cir. Sept. 12, 2013).

Warrantless DUI Arrest: No Violation of Fourth Amendment

In People v. Burton, the Appellate Division of the Ventura County Superior Court, held that a defendant's misdemeanor arrest for DUI which was not committed in the officer's presence did not violate the Fourth Amendment.

In the case, a witness observed Mr. Burton driving, and Mr. Burton admitted to driving, but the officer never saw him drive.  This issue arises in many DUI cases.  Mr. Burton challenged the stop in a motion to suppress.

The court held that Vehicle Code section 40300.5 does allow officers to make warrantless arrests in suspected drunk drivers.   Thus, his motion to suppress was denied, which was upheld by the Appellate Division.  The court explained that the officer had probable cause to arrest Mr. Burton.

The case is: People v Burton, (2013) __ Cal.App.4th Supp. __

Circumstantial Evidence May Be Used to Bolster Blood Alcohol Test Results

The California Court of Appeals recently decided Coffey v. Shimoto, a case regarding rising blood alcohol after an arrest for DUI and the admissible evidence at a DMV administrative hearing regarding a license suspension.

In the case, Ms. Coffey was arrested for DUI. An hour later, she took a breathalizer test with a test result of .08 percent BAC.A few minutes later, her BAC test result was .09 %.Twenty-five minutes later, she took a blood test, which resulted in a BAC of .095 percent. DMV suspended her license after a hearing at which the arresting officer testified that Ms. Coffey had driven “erratically,” appeared intoxicated, and had the usual script of bloodshot watery eyes, strong odor of alcohol, and poor performance on Field Sobriety Tests (FSTs).

She challenged DMV’s decision with a writ of mandate and argued that uncontroverted expert testimony showed that her BAC had been rising (as evidenced by the three test results).While the Court agreed with Coffey that the uncontradicte…

Alleyne v. United States : Facts that Increase Mandatory Minimum Sentences Must Be Submitted to Jury

Opinion by: Justice Thomas
The United States Supreme Court decided in Alleyne v. United States (June 2013) that any facts that would increase the mandatory minimum sentence of a crime must be submitted to the jury, overruling Harris v. United States (2002).
In Alleyne, Petitioner was charged, among other offenses, with using or carrying a firearm in relation to a crime of violence, which carries a minimum sentence of 5 years imprisonment. On the verdict, the jury did not indicate a finding that the firearm was “brandished,” which carries a minimum sentence of 7 years. However, the presentence report recommended a 7-year sentence based on the court’s assertion that it had found evidence supporting a finding of brandishing. The District Court relied on Harris, which held that judicial fact finding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment because facts can be a “sentencing factor” rather than an “element of the crime.”
In Appre…


The California Court of Appeal of the Fifth Circuit held in In re Cabrera recently that possession of photocopies of drawings signed by prison gang members or associates is not sufficient to establish association with those artists.
Under the Due Process Clause, administrative findings underlying a gang validation resulting in placement in a security housing unit (SHU) must be supported by “some evidence.” This “some evidence” test requires the court to determine whether there is any evidence in the record that could support the conclusion reached by the prison officials. The California Supreme Court asserts that there must be a “rational nexus between the evidence presented and the finding of fact made,” meaning that a decision to place an inmate in a SHU cannot be based on merely a hunch or intuition.
Furthermore, validation of an inmate as an associate of a prison gang requires at least one source item to be a direct link to a current or former member or associate. Although there…

United States Supreme Court Rules on Warrantless DUI Blood Draws

The United States Supreme Court recently ruled that the natural dissipation of alcohol in blood alone does not constitute exigent circumstances per se to justify a warrantless blood draw in DUI cases where the suspect does not consent. Without a warrant or consent from the suspected drunk driver, a blood draw is a violation of the driver’s Fourth Amendment right to be secure from unreasonable searches and seizures. Prior to this decision, Missouri v. McNeely, police officers in California were generally not required to obtain a warrant in order to draw blood for measuring blood-alcohol content in drunk-driving cases.
In this landmark case, Missouri v. McNeely, Tyler McNeely was pulled over on the grounds of suspicion of driving under the influence. After refusing twice to take a breathalyzer, he was taken to a hospital where the police ordered his blood drawn without his consent or a warrant. The officer had not made an attempt to obtain a warrant because he thought that Missouri law …

United States Supreme Court Roundup of Criminal Cases

The United States Supreme Court recently decided a number of criminal cases of interest to citizens, criminal law practitioners, and constitutional law aficionados.  This roundup summarizes the following cases: Bailey v. United States (search & seizure); Evans v. Michigan (double jeopardy); Florida v. Harris (4th Amendment); and Chaidez v. United States (Sixth Amendment).
Bailey v. United States, 652 F.3rd 197 (2013): this case had to do with the execution of a search warrant. The Court held that police executing a search warrant may only “seize” or detain individuals within the “immediate vicinity” of the premises subject to the search. The facts of the case were as follows: while police were preparing to execute a warrant to search an apartment for a handgun, detectives conducting surveillance outside saw two men – later identified as Bailey and his friend – leave the apartment area in a car. The detectives followed the car for about a mile before stopping it. Upon contacting the…