San Francisco & Bay Area Criminal Defense Lawyers

Med-Cal Fraud for billing device other than one used

2011-12-19T10:26:00.000-08:00

The Second Appellate District in California affirmed a judgment of conviction for a physician who committed fraud for knowingly billing Medi-Cal for use of an expensive and approved medical device when he instead used a cheaper device that was not approved for reimbursement.

From 2004-2006, the office of OB-GYN Eduardo Guzman billed Medi-Cal for the insertion of 176 IUDs. The billings used the precedure code designated for teh trade name "ParaGard" when in fact he used a cheaper type of IUD manufactured in Mexico.

The court found the evidence at trial was sufficient to show an intent to defraud Medi-Cal.

The case is: People v. Guzman, ___C.A.2nd; Dec. 12, 2011; B232299.

The Conrad Murray Sentence in the Wake of California’s Prison Realignment Act of 2011

2011-12-01T15:17:00.000-08:00

Conrad Murray – to be known forever as the man associated with the King of Pop’s untimely death. Despite being convicted by a jury of involuntary manslaughter, Dr. Murray may never see the inside of a state prison cell. He has the California Realignment Act of 2011 and the United States Supreme Court to thank for that bit of good news (Brown v. Plata was discussed in our last email blast).

Upon his conviction for a violation of California Penal Code § 192(b), Dr. Murray faced a sentence of 2, 3, or 4 years. Prior to the passage of AB 109 (the Realignment Act of 2011), Dr. Murray would have had to serve these years in state prison pursuant to Penal Code § 193. Post-AB 109 – no longer the case. Dr. Murray, sentenced to 4 years on November 29, 2011 by the Los Angeles County judge presiding over the case, will now serve his time in a local county jail, which comes with its own benefits.

California’s Prison Realignment Act of 2011, passed in order to address prison overcrowding per a mandate from the U.S. Supreme Court, dictates that non-violent felons are not required to go to state prison, and can serve their sentence in county jail. Under this act, sentences for most felonies that are non-serious, non-violent and non-registerable sex offenses, if the defendant also has no prior serious, violent, or registerable convictions, will now be served in the county jail. See Penal Code § 1170(h)(2-3). Approximately 60 other offenses, known as Exclusions, will still trigger state prison sentences. These offenses generally involve a weapon or injury or certain prior convictions.

The Realignment Act comes with many, many more revisions to California’s sentencing system, including parole, calculation of conduct credits, and multiple counts, which are too expansive to simplify and explain here, but have been well summarized by Judge J. Richard Couzens. See: http://www.courts.ca.gov/partners/documents/felony_sentencing.pdf.

In Dr. Murray’s case, he can expect to serve half of his 4-year term; that is, unless the Los Angeles County Sheriff releases him even earlier. It is well-known that LA County jails are bursting at the seams, resulting in many inmates being released after doing only 10% of their sentenced time. Thus, the actual length of time Dr. Murray will sit behind bars could range from a few months to two years. One other caveat – Los Angeles County District Attorney Steve Cooley has stated publicly that he is considering an appeal to require Dr. Murray to serve his sentence in state prison. Unless Mr. Cooley can overcome the U.S. Supreme Court’s mandate to reduce state prison overcrowding, Dr. Murray shouldn’t lose any sleep in his county jail bunk over that announcement.

Stay tuned for many more publications and public discussions with respect to the drastic changes in California’s sentencing laws.

Campbell & Jayne LLP is a premier criminal defense firm which offers representation for individuals and small businesses at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses. Campbell & Jayne LLP practices criminal defense in Federal Courts and in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.

For more information, see our new, updated website: www.campbelljayne.com

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

No Challenge of Factual Basis for Plea

2011-11-29T11:27:00.000-08:00

Defendants who plead guilty or no contest may not challenge on appear the trial court's conclusion that a factual basis existed for a plea, according to the 6th Appellate District in California. The court held that a criminal defendant who pleads guilty or no contest is judicially estopped from seeking substantive appellate review of guilt or innocence by challenging a trial court's conclusion that there existed a factual basis for the plea.

The case is: People v. Voit, C.A. 6th; November 18, 2011; H035882.

United States v. Gilchrist: Federal Embezzlement and Bank Fraud

2011-10-17T09:42:00.000-07:00

In United States v. Gilchrist, Dwight Gilchrist filed a civil law suit against Wells Fargo Bank after they refused to recover the amount of money that was supposedly stolen from his bank account. Failure to cooperate with Wells Fargo’s investigation on his fraud claim reports prompted a FBI investigation on Gilchrist and his bank accounts. This revealed he was involved in federal embezzlement and bank fraud. He pleaded guilty to those charges and was also sentenced for “obstruction of justice” because he committed perjury during his depositions in his civil law shit against Wells Fargo Bank.

On appeal, Gilchrist believed the district court erred in applying the sentence enhancement for willfully obstructing justice. He argued he was unaware that he was under a federal investigation at the time he committed perjury during his civil law suit against Wells Fargo Bank.

The court disagreed with his contention and affirmed judgment. In Gilchrist, the Ninth Circuit agrees that “willful means only that the defendant has engaged in intentional or deliberate acts designed to obstruct any potential investigation, at the time an investigation was in fact pending; it does not mean the defendant had to know for certain that the investigation was pending.”

-This case is: United States v. Gilchrist (9^th Cir. October 3, 2011) WL4537789

State Court Plea Used in Federal Court Proceedings

2011-10-10T00:16:00.000-07:00

Federal Court proceedings indicted Richard Aguirre for racketeering and conspiracy to distribute narcotics after he pleaded guilty in state court to one count of maintaining a residence for purposes of selling cocaine in People v. Aguirre. Unaware that his guilty plea would be used in Federal Court, Aguirre appealed and entered a motion to withdraw his plea.

During his appeal, Aguirre stated that his plea was not “knowing, intelligent, and voluntary” because he was unaware that it might be used against him in a federal prosecution. He felt the trial court was obligated to tell him about the federal jury proceedings and that the federal indictment was a direct consequence from his plea in state court.

The Second Appellate District affirmed judgment on Aguirre’s case. They were not convinced with Aguirre’s contentions and held that the trial court does not have to advise the defendant that his plea might be used in a federal prosecution. In addition, Aguirre’s argument regarding his lack of knowledge about the federal jury was not sufficient enough for the court to grant him his motion to withdraw his plea.

-California Court of Appeals, 2^nd Appellate District, 2^nd Div., September 26, 2011; B227019

Tip from Informant Helps Police Arrest Wanted Ninja

2011-09-07T11:09:00.000-07:00

In People v. Scott, an anonymous informant called the Riverside Police Department to notify them about David Scott, who was strongly suspected to have been involved in the murder of Brenda Kenny. The informant was Scott’s coworker at the movie theatre and told the police that he saw Scott several times dressed in an all black “ninja” outfit with a sword and a knife— the attire described to have been worn by Kenny’s murderer. The informant also stated that Scott told him he had a dream about killing someone, which closely matched the details of Kenny’s murder that the informant read about in the newspaper.

The police felt the informant was a reliable source who did not have any motive to lie. His phone message to the police led to Scott’s arrest and he was charged with murder in addition to rape and other crimes. While he denied being involved in the “ninja” crimes, he told the second interrogating officer the same dream he relayed to the informant. This was said after waiving his Miranda rights.

Scott’s incriminating dream was introduced at trial where he was convicted and sentenced to death. Scott challenged the admission of his confession because he felt the pre-advisement questioning coerced him into confession. The Court rejected his contention, finding no evidence that showed Scott’s confession was inappropriately influenced by interrogating officers. Transcripts show that his confession was given well after his Miranda rights were stated. His statement was admitted at trial as a voluntary confession. The California Supreme Court affirmed judgment on Scott’s conviction and did not find error during any part of his case.

-Cal.Sup.Ct.; August 11, 2011; S068863

People v. Torres: Transporting and Possessing Alcohol in Prison are Two Separate Criminal Acts

2011-08-30T10:55:00.001-07:00

In People v. Torres, the Second Appellate District determined the acts of bringing alcohol into a jail facility and possessing alcohol in a jail facility are two separate punishable crimes that each have its own objective.

Alfonso Torres and Adan Barajas were two inmates at a minimum security prison fire camp who snuck alcohol into the facility with the help from a civilian. A correctional officer saw a car drive onto the facility making a stop at a trash can. The driver got out of the car and placed two trash bags in the trash can. The civilian quickly drove off while honking several times. Moments later, Torres and Barajas ran to the trash can, picked up the trash bags, and ran back to a nearby building.

To prove that Torres and Barajas “knowingly” brought alcohol onto the jail’s facility, the court explained several circumstances that showed they were fully aware of the crime they committed. A civilian cooperated with the defendants to successfully transport the contraband onto the jail’s facility. The trash can was a predetermined location for the civilian to inconspicuously drop off the items using trash bags. Upon driving off the premises, the civilian honked, issuing a signal to the defendants to grab the trash bags before a garbage man or a correctional officer could get a hold of it. Moreover, Barajas was heard saying “Which one is mine”, showing that he already knew what the bag contained.

Although Torres argued that Penal Code §654 “precludes that no act or omission be punished under more than one provision”, the court explained that there were two separate objectives that distinguish two crimes had occurred. The first crime was completed when the alcohol was transported onto the prison camp. The objective shifted to possession when Torres and Barajas took the trash bags.

The Second Appellate District affirmed judgment on Torres and Barajas’s convictions, holding that there were two crimes that were committed and sentencing them for each crime.

-California Court of Appeals, 2^nd Appellate District, 2^nd Div., August 15, 2011; B226903

Collecting DNA is Ruled Unconstitutional in CA Court of Appeals

2011-08-10T16:24:00.000-07:00

With the advancement of technology, there has been a controversy in the legal community surrounding the seizure of DNA samples from felony arrestees. California’s DNA Act was amended in 2004, enabling law enforcement officials to take DNA samples from any adult arrested for or charged with a felony. This act led to the recent case of People v. Buza, where Mark Buza was convicted of arson, but still argued that his mandatory cheek swab violated his Fourth Amendment right.

In Buza, the Court of Appeals argued that obtaining DNA samples were a violation of the felony arrestees Fourth Amendment right to be free of unreasonable searches and seizures. Justices Anthony Kline, James Lambden and James Richman sided with Buza, deeming DNA sampling unconstitutional. When compared to fingerprinting, Kline dismissed that argument and said they were obtained for “identification purposes and not to solve crimes.” Moreover, Kline stated in his opinion for Buza, “even if DNA testing of arrestees was demonstrably valuable to law enforcement, the effectiveness of a crime-fighting technology does not render it constitutional.”

The First District Court of Appeals agreed with Buza and mandated it unconstitutional for DNA samples to be taken from felony arrestees.

-California Court of Appeals, 1^st Appellate District, 2^nd Div., August 4, 2011; A125542

Implied Malice Theory

2011-08-01T14:15:00.000-07:00

In People v. Canizalez, the Second Appellate District affirmed judgment on the convictions for Robert Canizalez and Martin Morones. On a busy city street, the two defendants engaged in a street drag race that ended in a collision with another car. The other car immediately burst into flames, killing the occupants, whom were a mother and her two young children.

Both Canizalez and Morones appealed, believing there was an insufficient amount of evidence supporting the prosecution’s argument for implied malice. The defendants argued that the elements of the incident did not prove they were aware of the danger involved in their actions and it also did not show they were lacking a conscious regard for life. The court of appeals disagreed, and affirmed judgment from the lower court.

Contrary to the defendants’ argument for appeal, the court of appeals provided an overwhelming amount of evidence that supported the implied malice theory. For instance, Canizalez and Morones were well aware of the danger from racing in the streets because they are long time residents of the neighborhood where the incident occurred and are familiar with its traffic conditions. Hours before the collision, witnesses saw Canizalez driving recklessly in the neighborhood, speeding and making sharp U-turns. Both defendants have participated in street drag racing and have adapted their cars to engage in that type of car racing. Moreover, they tried to eliminate evidence that showed they were involved in the crash by pushing one of the cars away and quickly leaving the scene. Canizalez and Morones did not attempt to help the victims or even inquire about their condition. With these given facts, the court of appeals found their actions to be in support of the implied malice theory, rejecting the defendant’s argument.

-California Court of Appeals, 2nd Appellate District, 2nd Div., July 20,2011; B218515

United States v. Evanston: no re-arguing during jury delibrations

2011-07-18T14:43:00.000-07:00

In U.S. v. Evanston, the Ninth Circuit Court vacated a district court’s judgment because it allowed attorneys on both sides to re-address arguments after the jury declared its second deadlock. Calvin Evanston was charged with assault on his live-in girlfriend, leaving her with permanent damages on her face. The jury was unsure about the witness’s credibility and how the victim’s injuries were caused. Despite the defense’s objection to this order and two jury deadlocks, the judge gave both sides the opportunity to reargue the issues that were uncertain to the jury. Shortly after, the jury deliberated and reached a guilty verdict.

The court of appeals found the order for additional arguments as an interference with the jury’s role as the sole fact-finder. First, the jury’s deliberative secrecy was violated when they revealed to the judge that they were inconclusive about two particular issues. Secondly, additional arguments from both sides along with the judge insisting to continue after a second deadlock raised speculation of a coerced verdict.

The district court could have explored other options to overcome the two deadlocks without coming into conflict with the Federal Rules of Criminal Procedure and Ninth Circuit model jury instructions. For instance, rereading the original jury instructions or allowing the jury to review the witness’s testimony would have complied with the procedural rules.

The Ninth Circuit found that the district court allowed the attorneys to address and reargue factual concerns expressed by the jury, causing prejudicial error in Evanston’s case. This gave cause for the court of appeals to vacate Evanston’s conviction and remand the action for a new trial.

The case is: United States v. Evanston (9th Cir. July 5, 2011) 10-10159.

California State Prison Overcrowding: The U.S. Supreme Court Decision and Its Aftermath

2011-07-12T14:33:00.000-07:00

On May 23, 2011, the Supreme Court of the United States gave California officials a strict order to cut its prison population by at least 23%, reducing its inmate population from 143,435 to 109,805. In Brown v. Plata, Justice Anthony M. Kennedy made the concluding 5-4 vote, stating that “needless suffering and death have been the well-documented result” of overcrowded prisons. California must fulfill this order by May 2013 with four deadlines within the two years, requiring a 10,000 inmate reduction for each benchmark. If the state does not meet the deadlines, the courts have the authority to order prisoners released.

Issues stemming from California’s overcrowded prisons were first brought to the court’s attention over two decades ago as a violation of the 8th Amendment, which prohibits cruel and unusual punishment for crimes. What has come to light from these cases is that California’s prisons are designed to house no more than 80,000 inmates, but currently it is housing almost double that amount. Overpopulation has created an array of problems for California’s prisons, but one major concern for inmates is their health. The Supreme Court’s decision is based on two class action suits that exhibit how California’s overpopulated prisons have hindered inmates from receiving proper medical attention.

In Coleman v Brown, filed in 1990, the District Court found inmates with serious mental disorders not receiving the minimal adequate care they needed. Remedial efforts were made but after 12 years, an appointed Special Master declared it did not improve the lack of medical attention mentally ill patients needed. It was reported that conditions became worse after the case was filed and it was found that “the state of mental health care in California’s prisons was deteriorating due to increased overcrowding.”

In 2001, Plata v. Brown was filed, once again bringing attention to the increasing population in California’s prisons. This civil case voiced similar health concerns mentioned in Coleman, where seriously ill inmates complained about lacking medical care and it becoming a violation of their 8th amendment right to be free of cruel and unusual punishment. A remedial injunction was ordered but had not been complied with by 2005; therefore a Receiver was appointed to oversee the remedial efforts but it was reported that there were “continuing deficiencies caused by overcrowding.”

Remedial efforts in both cases failed to alleviate the problems inmates were facing when they attempted to receive medical care. Believing that the only solution to relieve medical and mental care for inmates is to reduce overcrowding, the cases were consolidated and moved to a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA). After 6 months of hearing testimony and a review of extensive facts, the Supreme Court ordered California to immediately reduce its prison population. Because it appeared that new construction could not comply with the two-year deadline, California Officials were ordered to come up with an alternative plan to reduce the prison’s population.

Justice Kennedy delivered the opinion of the Court and was critical of the conditions inmates faced in prison. “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” Justice Kennedy explained that prisons have the responsibility to provide food, shelter, and necessary medical care for inmates since their rights to provide for themselves were taken away upon being convicted.

With the population steadily increasing, Justice Kennedy also included in his opinion conclusions from Plata. “[I]t is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days due to constitutional deficiencies in the [California prisons’] medical delivery system.” California’s overcrowded prisons are affecting inmates’ access to much needed medical care and causing their health to deteriorate. To comply with the constitutional mandate, Justice Kennedy mentioned a few options that included transferring inmates to county facilities or other states, extending design capacity, and possibly releasing parole violators into community based programs.

Justice Antonin Scalia filed a dissent, calling the order a “judicial travesty.” His opinion discusses his argument against the District Court’s conclusion that the governing statute was violated, the bedrock rule, and federal court’s judicial limitations.

Justice Samuel Alito also wrote a dissent wherein he argued that no 8th amendment violation occurred at all and that the constitutional standard is currently met. Moreover, his opinion states that the federal judges overstepped their boundaries and made a radical decision for a state penal system, which the Constitution does not authorize.

In response to the Supreme Court’s decision and mandate, on June 7, 2011, Governor Jerry Brown submitted a plan that he believes would reduce California’s prison population while meeting the stipulations of the order. His plan includes restructuring the parole system, providing inmates with more opportunities to earn early release credits, creating a rehabilitative program for parole violators, and changing the law to increase the threshold for felonies that could be misdemeanors. While releasing inmates is not part of the proposed plan, Governor Brown’s goal is to reduce inmate population while still protecting public safety. He expressed that this is something that can be done properly and effectively with the appropriate support and funding from the Legislature.

Additionally, on June 8, 2011 the California Department of Corrections and Rehabilitation (CDCR) submitted a report to the federal Three-Judge Court updating it on prison crowding reduction measures that the state has taken, or plans to take, stating that, “California has already reduced its prison population significantly over the past several years. Today, we have the lowest crowding levels in California’s prisons since 1995 . . . Our goal is to meet the Court’s order by continuing to reduce prison crowding while still holding offenders accountable.” The CDCR also reported that, “Our current reduction plan does not include the early release of inmates. But it is absolutely critical that the Legislature understand the seriousness of the Supreme Court’s decision and support a variety of measures that will allow us to lower our inmate population in the safest possible way.”

In sum, California’s plan to relieve prison overcrowding includes:

• Transferring 10,000 inmates to out-of-state prisons;

• Building new prisons, health care, and mental health facilities and converting juvenile detentions centers to adult facilities;

• Moving low-level, non-violent offenders to county jails as part of the “Realignment” plan outlined in Assembly Bill 109 signed by Gov. Jerry Brown in April. This would purportedly free up space for the state to focus on incarcerating serious, violent, and sexual offenders.

After months of debate and partisan bickering, California found a way to fund Governor Brown’s solution. Passed the day before the beginning of the new fiscal year, without Republican support, the new budget that Governor Brown recently signed on June 30th redirects five billion dollars from state sales and vehicle taxes to the local governments that will house the reassigned inmates. In addition to providing the requested funding, lawmakers delayed the program for three months in order to give the state time to coordinate with the counties.

Accordingly, after October 1, 2011 local officials will be given jurisdiction over offenders convicted of non-violent crimes and will also have the responsibility of parole and rehabilitation. While this appears to be progress and a tangible plan, it is questionable and perhaps overly ambitious to conclude that the state will meet the December 27th deadline set by the Supreme Court to reduce the state prison population by 10,000 inmates by the end of the year.

Campbell & Jayne LLP is a premier criminal defense firm which offers representation for individuals and small businesses at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses. Campbell & Jayne LLP practices criminal defense in Federal Courts and in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.

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

Insider Trading Roundup: Wall Street on Trial

2011-03-08T10:47:00.000-08:00

This week marks the start of the criminal trial against Galleon Group LLC co-founder Raj Rajaratnam in federal court in Manhattan. Rajaratnam is the central figure in the largest crackdown on hedge-fund insider trading in U.S. history. He is accused of making $45 million from confidential information leaked by corporate insiders and hedge fund traders. He faces up 20 years in prison if convicted of securities fraud. Rajaratnam has denied wrongdoing and has argued that investment advisers routinely speak to company insiders as they do research. The anticipated 10-week trial will determine whether his conversations (many, recorded) and subsequent trades were illegal or not.

Since the indictment of the Galleon case in 2009, the Justice Department and the SEC have brought insider trading cases against numerous hedge fund managers, consultants, bankers, lawyers, and individuals at “expert network” firms.

Just last week, the SEC filed a civil action against Rajat Gupta, a former Goldman Sachs Group director, alleging that he leaked inside information about the investment bank’s results to Mr. Rajaratnam. The SEC alleged that Gupta provided inside information to Rajaratnam, including news of Berkshire Hathaway Inc.’s $5 billion investment in Goldman Sachs, Goldman Sachs’s earnings as well as earnings at Procter & Gamble Co. At the criminal trial, it is expected that prosecutors will allege Gupta was a conspirator with Rajaratnam in the insider trading scheme.

A key co-defendant in the Galleon case, Danielle Chiesi, pled guilty in January 2011 to three counts of conspiracy to commit securities fraud. She was caught making incriminating statements on a wire tap. To date, 19 out of 26 people charged in the Galleon-related insider trade probe have pleaded guilty.

Beyond the Galleon case, the Government has investigated and brought at least a dozen charges in connection with its crackdown on specialists in the financial industry who supposedly pass along inside information about companies to hedge funds and attempt to pass it off as legitimate research. For example, in February 2011, prosecutors announced charges against a group of hedge fund managers and a hedge fund analyst. The case drew particular media attention due to the suspects’ involvement in shredding documents and computer destruction. In that case, Samir Barai, of Barai Capital Management is alleged to have “cheated” in transactions involving Marvell Technology, Fairchild Semiconductor, Nvidia and AMD, among others. Barai is additionally being charged with obstruction of justice after a phone conversation was recorded and it was found that Barai destroyed information and disks. In a conversation with technology analyst Jason Pflaum who worked with Barai, Mr. Barai supposedly instructed Pflaum to, “Just go into the office…shred as much as you can.” Pflaum, who has since pleaded guilty, is now cooperating with prosecutors.

Co-defendant Donald Longueuil, a former manager at SAC, is being charged with conspiracy to commit securities fraud, conspiracy to commit wire fraud, and obstruction of justice for chopping up his flash drive and external drives before putting the pieces in plastic bags and tossing them in four different garbage trucks around New York City. Noah Freeman, who was cooperating with the government while Longueuil did this, is also alleged to have utilized a network of sources to obtain insider information in the tech and semiconductor industries. He has entered a guilty plea.

From Barai’s computer files, the government discovered recorded consensual telephone conversations with Winifred Jiau, a former Primary Global Research consultant, who was criminally charged last year. She is accused of providing inside information about technology companies, including Marvell and Nvidia, to hedge funds while working as a consultant. She, among others, are billed to firms as “expert network” providers. Expert network firms arrange conversations between public company employees freelancing as consultants and hedge and mutual funds seeking an investment edge. Overall, such consultants are allowed to divulge general information, but are prohibited from disclosing confidential, non-public information.

Ms. Jiau is among five investment consultants for Primary Global who have been charged by prosecutors in New York. One consultant and one employee have already pled guilty. The SEC has also filed civil charges against former Primary Global consultants, alleging that they leaked confidential information to Primary Global’s investor clients.

One such client of Primary Global is Level Global Investors, now closed. In the wake of the government’s sweeping investigation, the hedge fund run by David Ganek (a former associate of Steven Cohen of SAC) which managed $4 billion in assets, said the “cloud of uncertainty” created by the probe undermined its ability to operate. SAC has been raided by federal agents, but not charged with any wrong doing. The firm has stated it is cooperating with the investigation.

Bankers have been linked to the investigation as well. For example, a Morgan Stanley banker, Kamal Ahmed, is under investigation for allegedly leaking information about an upcoming merger involving AMD to Rajaratnam. It is still unclear if any charges will be brought against Ahmed. He is purportedly cooperating with the investigation. Morgan Stanley is also cooperating with the Government.

In February, Manhattan U.S. Attorney Preet Bharara testified on behalf of the Justice Department at a hearing of the U.S. Sentencing Commission in support of stiffer penalties for insider trading suspects. Mr. Bharara told the commission that “the nature and scope of insider trading activity has evolved,” while the sentencing guidelines regarding these offenses have not. Currently, the sentencing rules are based on the profits earned by the suspects.

Bharara, whose office has led the charge on these insider trading cases, has publicly stated that, with respect to arrests, “we are far from finished.” While that may be the goal of the Justice Department, the outcome of the Rajaratnam trial, one way or another, will undoubtedly shape the Government’s next steps with respect to insider trading cases.
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Campbell & Jayne LLP is a premier criminal defense firm which offers representation for individuals and small businesses at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses. Campbell & Jayne LLP practices criminal defense in Federal Courts and in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.

For more information, see: www.campbelljayne.com

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

Court Reverses Decision on Cold Stone Creamery Caller

2011-03-07T08:51:00.000-08:00

The State of California Court of Appeals has reversed a decision by the trial court in the case People v. Powers. The original decision in January 2009 charged David Thomas Powers with one felony count of criminal threats against a Cold Stone Creamery employee along with several misdemeanor charges of making annoying calls to an employee. The court, at first, found Powers incompetent for trial at the time and ordered him to be committed to a state hospital. Following treatment, the court dropped the felony charges against Powers and the case was continued in a trial court, whereupon Powers testified on his own behalf. The trial court found Powers guilty of four misdemeanors.

In the fall of 2008, David Thomas Powers left recorded messages after calling Cold Stone Creamery regarding his complaints and discontent with the service and other customers in the store. Powers claimed that he was being “ripped off” and continued to use profanity throughout the several messages he left after he also claimed he “didn’t know what else to do." The messages contained what Cold Stone Creamery deemed as threatening comments such as, “[if] I ever have a problem with them …I’ll take my fist and beat their faces in.” The company never returned any of Powers calls and instead made a complaint to the police.

The trial court found Powers guilty and placed him on probation, ordering him to serve jail time and to pay fines. However, the State of California Court of Appeals has recently reversed the charges. In the opinion handed down by Judge Yegan, he began with stating, “An employee who listens to consumer complaints should have a thick skin." The court found that there was no substantial evidence that the threats were made directly to the recipient of the call or that Powers used any obscene language in a lewd manner. Furthermore, the court found that the calls were not private and therefore did not target anyone specifically. As a result, the court did not find these messages intrusive or in direct violation of privacy. Although the messages may have been annoying, the court affirmed, the vulgarities used by Mr. Powers could not be described as obscene, nor did they cross the line.

The case is: People v. Powers, 2^nd Dis, Division 6, March 2, 2011; B218687

Court Stands Strong Behind Sharp Tactics

2011-02-14T16:00:00.000-08:00

The Ninth Circuit Court of Appeals has once again stood behind prosecutors’ tactics of fueling minimums in drugs cases in which defendants refuse to snitch. The court upheld, for the second time, the conviction of a drug dealer who refused to act as a government informant and was therefore subject to a higher minimum. The panel of three judges unanimously upheld this conviction.

Convicted drug dealer Jay Kent refused to act as a government informant after being caught with crack in July, 2008. The Assistant Federal Public Defender tried entering into a guilty plea for his client before the government filed the 851 information, triggering steeper penalties based on prior drug convictions. However, the guilty plea had to be withdrawn after the Assistant U.S. Attorney revealed the copies of the bolstered charges and the Court accepted the 851 information. This raised the exposure from five to forty to ten to life.

The appeals court later held that there was no evidence to support the claim that the government acted vindictively and also held that the court was right to accept the new charge information under federal and local rules governing proper filing procedure. Furthermore, the court held that it is reasonable for prosecutors to carry out threats of increased charges from failed plea negotiations. Kent's defense attorney criticized the opinion by stressing that he believed the judges did not see the clear evidence of vindictiveness and for its definition of plea bargaining. A rehearing is still uncertain.

The case is: United States v. Kent, 9th Cir, February 8, 2011; 10-10011

US v. Morris: Judge Patel Reversed

2011-02-03T13:14:00.000-08:00

The 9th Circuit Court of Appeals reversed a district court judgment - that of Judge Patel. The court held that the government's decision to carry out an earlier threat to increase a defendant's potential sentence following his refusal to cooperate as a witness in a trial of a confederate did not violate the defendant's due process rights. In other words, the court upheld the government's ability to threaten a defendant with the filing of his 21 U.S.C. §851(a)(1) priors if defendant would not cooperate against co-defendants and/or plead guilty.

The case is: United States v. Morris, 10-10009.

Defendant Granted Deferred Entry of Judgment Couldn't Be Terminated Based Solely on Inability to Pay Program Fees

2011-01-10T10:42:00.000-08:00

In this case, Judge Cantil-Sakauye of the California Third Appellate District, held that a defendant granted deferred entry of judgment could not be terminated based solely on the inability to pay program fees of the drug diversion program she had been referred to. She presented evidence of her inability to pay. She should not have been terminated from durg diversion on this basis.

The case is: People v. Trask, C.A. 3d, Dec 29, 2010; C0684804

Grand Jury Subpoenas for Documents of a Public Investigation Enforceable

2010-12-15T11:57:00.000-08:00

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.

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

2010-12-06T11:14:00.000-08:00

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.

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

2010-11-16T14:05:00.000-08:00

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

Traffic Violation Citations Counted as Arrests to Calculate Criminal History Points

2010-11-09T10:39:00.000-08:00

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.

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

2010-11-01T10:35:00.000-07:00

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

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

2010-10-27T09:03:00.000-07:00

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.

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

2010-10-20T13:30:00.000-07:00

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

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

2010-10-18T10:29:00.000-07:00

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

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

2010-10-11T10:45:00.000-07:00

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.

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

2010-09-20T15:15:00.000-07:00

The 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

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

2010-09-15T12:12:00.000-07:00

On August 12^th, 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 12^th 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 (9^th 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 (9^th Cir. 2010) and 2010 WL 3169572 (C.A.9 (Or)).

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

2010-09-03T12:09:00.001-07:00

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.

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

2010-08-27T09:52:00.000-07:00

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.

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

2010-08-23T15:40:00.000-07:00

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.

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

2010-08-16T14:09:00.000-07:00

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.

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

2010-08-09T12:46:00.000-07:00

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.

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

2010-08-04T11:18:00.000-07:00

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.

The 9th Circuit Court finds Enhancements of Sentences Warranted

2010-08-02T14:17:00.000-07:00

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.

United States v. Thomas: Obstruction of Justice and Perjury

2010-07-26T11:05:00.000-07:00

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.

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

2010-07-19T14:44:00.000-07:00

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

Extent of Miranda Rights Tested by People v. Tate

2010-07-19T14:29:00.000-07:00

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.

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

2010-07-14T11:08:00.000-07:00

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.

Julia Jayne :: Lawyer - San Francisco, California (CA) :: Attorney Profile :: Super Lawyers

2010-07-13T15:25:00.000-07:00

Julia Jayne :: Lawyer - San Francisco, California (CA) :: Attorney Profile :: Super Lawyers

Gail Campbell :: Lawyer - San Francisco, California (CA) :: Attorney Profile :: Super Lawyers

2010-07-13T15:24:00.000-07:00

Gail Campbell :: Lawyer - San Francisco, California (CA) :: Attorney Profile :: Super Lawyers

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

2010-06-30T10:56:00.000-07:00

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

Criminal Liability of Stock Brokers: Full Disclosure of Material Information

2010-06-23T11:08:00.000-07:00

The 9^th 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

United States v. Bonds: Hearsay Evidence Affirmed as Inadmissible

2010-06-16T13:51:00.000-07:00

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

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.

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

2010-06-10T10:25:00.000-07:00

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.

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

2010-06-02T11:33:00.000-07:00

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.

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

2010-05-21T13:01:00.000-07:00

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.

Antitrust Update: The Proposed Revisions to the Horizontal Merger Guidelines

2010-05-05T08:14:00.000-07:00

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.

Campbell & Jayne LLP is a premier criminal defense firm which offers representation for individuals at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses, in addition to representation of small business in compliance matters and internal investigations. Campbell & Jayne LLP practices criminal defense in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.

For more information, see: www.campbelljayne.com

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

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

2010-04-27T14:11:00.000-07:00

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

Vehicle Impound and Search after DUI Upheld

2010-04-21T10:18:00.000-07:00

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

Temporary Exclusion of Defendant's Family Members from Courtroom Does not Violate Right to Public Trial

2010-04-13T15:33:00.000-07:00

The California First Appellate District held that the brief exclusion of a defendant's family members from the courtroom during jury voire dire did not violate his constitutional right to a public trial. Mr. Bui was charged with multiple felonies, and had a jury trial. His family members came to courtroom during jury selection and seated themselves among the spectators, in close proximity to the prospective jurors. The court ordered them removed.

The Court affirmed the judgment, finding that the family members were only excluded for 40 minutes, and thus, this brief exclusion was "de minimus."

The case is People v. Bui, April 6, 2010, A119404

Admission of lab report: People v. Bowman

2010-03-30T09:02:00.000-07:00

In this case, the California Court of Appeal held that the case Melendez-Diaz did not alter the California rule that an in-court witness may rely on laboratory notes and reports, even if prepared by a different individual, to support the witness's expert opinion.
Melendez-Diaz held that the admission of a written document to establish laboratory results violates the Sixth Amendment. (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2532].
However, the California Court of Appeal concluded that the scenario in Bowman - where a criminalist other than the one who did the testing - gave expert testimony on the chemical testing of the suspected methamphetamine -- does not violate a defendant's confrontation rights.

The case is: People v. Bowman, 10 CDOS 3656 (CA 5th).

Ninth Circuit: Unreasonable Delay in Execution of Search Warrant

2010-03-16T11:09:00.000-07:00

In United States v. Song Ja Cha, the Ninth Circuit held that a 26-hour seizure of a home before a search warrant was executed was unreasonable. As a result, the suppression of evidence was warranted.

The case is: United States v. Song Ja Cha, __ F.3d __, 2010 WL 775238 (9th Cir. Mar. 9, 2010)

U.S. Supreme Court Eases Rules for Miranda Warning

2010-03-08T09:00:00.000-08:00

Last week, the Supreme Court issued its opinion in Maryland v. Shatzer. Justice Scalia wrote the opinion, which six other Justices joined in full. Justice Thomas concurred in part and concurred in the judgment; Justice Stevens concurred in the judgment. The Court held that a fourteen-day break in custodial interrogation ends the Edwards v. Arizona rule which states that once a suspect invokes his Miranda rights, any subsequent waiver of the right triggered by a police request is deemed involuntary and is the result of coercion. In reversing the decision of the Maryland Court of Appeals, the Court concluded that Shatzer’s return to his normal pre-interrogation life in the general prison population for a period of two-and-one-half years before re-interrogation constituted a sufficient break in custody enable him to voluntarily waive his Miranda rights. Therefore, the Edwards case did not require that Shatzer’s re-interrogation statements be suppressed, and the Court remanded the case for further proceedings.

The Court reasoned that a suspect who has been released for at least two weeks following the custodial interrogation in which he initially asserted a right to counsel will have had sufficient time to re-acclimate to his normal life, consult with counsel, family, and/or friends, and rebound from any lingering coercive effects of the prior custody. In adopting a bright-line fourteen-day rule, the Court noted the need for a clear and certain rule for law enforcement officers. In his concurring opinion, Justice Thomas disagreed with the Court’s creation of a fourteen-day rule, which he characterizes as arbitrary.

The Court next turned to the question of whether Shatzer’s return to the general prison population – where he was serving an unrelated sentence – constitutes a “break in custody” for Miranda purposes. The Court – in a part of the opinion joined by seven Justices, including Justice Thomas – held that it did. The Court reasoned that the release of a suspect who has been previously incarcerated back into the general prison population is a release to the suspect’s “accustomed surroundings and daily routine,” in which the suspect regains the same control over his life as he possessed prior to the interrogation.

The case is: Maryland v. Shatzer, No. 08-680.

Employee Affidavit Violates Confrontation Clause

2010-02-22T13:42:00.000-08:00

In United States v. Norwood, Mr. Norwood was tried in 2009 for possession of crack cocaine for distribution. At trial, the government introduced an affidavit by a state employee claiming there were no wage records for Norwood (as a large amount of cash was found in his home and car). “[T]he court admitted her affidavit as circumstantial evidence that Norwood had no legal source for the large amounts of cash that were found on his person and in his car.” Id. at *2.

The Ninth upheld the conviction. See 555 F.3d 1061 (9th Cir. 2009). The Supreme Court granted, vacated, and remanded the Ninth’s opinion in light of its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct 2527 (2009). This Norwood decision is the Ninth’s decision on remand.

Norwood alleged that his Sixth Amendment right to confront his accusers was violated when the district court admitted into evidence a written affidavit without requiring the affiant to testify on the stand. The Court noted that the Government conceded that under Melendez-Diaz, the affidavit, prepared for use at Norwood’s trial to prove the absence of any record of Norwood having legitimate employment, should not have been admitted without the employee presenting herself at trial for examination.

However, the court found that "disregarding the affidavit entirely, the evidence against Norwood on the elements of the offense of possession of cocaine base with intent to distribute was sufficient to establish his guilt beyond any reasonable doubt.” Id. at *4. (Therefore, this was harmless error).

The case is: United States v. Norwood, 2919 WL 537497 (9th Cir. Feb. 17, 2010).

22-Year Sentence for "Millenium Bomber" Deemed Too Light

2010-02-15T10:24:00.000-08:00

A federal appeals court last week threw out the 22-year prison sentence imposed in 2005 on Ahmed Ressam, known as the Millennium Bomber, who plotted to set off explosives at Los Angeles International Airport on New Year’s Eve in 1999. The court said the sentence was too light.

A three-judge panel of the Court of Appeals for the Ninth Circuit, in San Francisco, said Mr. Ressam did not deserve the “substantial reduction” in his sentence from the minimum of 65 years in federal sentencing guidelines because he backed out of his agreement to cooperate with investigators.

The court also called for a new trial judge to consider the next sentence, because the federal judge who issued the original decision had already once declined to increase Mr. Ressam’s prison term.

Ressam was detained in Washington state in December 1999 when he tried to smuggle explosives into the U.S. on a ferry from Canada that he intended to use at the Los Angeles airport. After his arrest, Ressam agreed to cooperate with terrorism investigators, but he later reneged on that promise, the appeals panel said.

U.S. prosecutors said Ressam, 42, cooperated for two years but that his change of heart compromised at least two terrorist cases in the U.S., resulting in charges having to be dropped.

In its findings, the appeals panel said that U.S. District Judge John Coughenour (in Seattle), who imposed the sentence, had failed to consider the potential security consequences, because if Ressam had been released after 22 years, he would still have been only 53 years old.

The case can be found at: 2010 WL 347962 (9th Cir. Feb. 2, 2010)

Sex Offenders Fight “Jessica’s Law” Claiming the Residency Restriction is Unconstitutional

2010-02-04T15:43:00.000-08:00

On February 1, 2010, the California Supreme Court allowed four registered sex offenders to challenge a state law prohibiting them from residing within 2000 feet of schools, parks, and other places children gather such as churches and playgrounds. The state law, known as “Jessica’s law” was passed by California voters when it appeared on the ballot in 2006 as Proposition 83. By a 5-2 vote, the Court agreed that most other of the provisions of Jessica’s Law were constitutional, including a section allowing the residency requirement to be applied retroactively to offenders convicted before the law was approved by the voters in 2006. This ruling means that all sex offender parolees will have to abide by Jessica’s Law until the residency issue is resolved.

Among the strongest arguments on behalf of the parolees is that implementation of the law is impossible in urban areas, such as San Francisco, where most residential areas are within 2000 feet of a park, school, playground, church or other area children congregate. The Supreme Court said it wasn’t presented with enough evidence to support or refute the claims of the offenders and sent each case back to the trial court for separate consideration and further hearings. The Court noted that there are 3,884 parolees subject to Jessica’s Law, and 718 of them have declared themselves homeless because of their inability to comply with the residence restrictions.

Supporters of the law say it protects children against sex predators. The state Department of Corrections and Rehabilitation, through its parole units, has been responsible for enforcement of the residency restrictions. State parole agents have been tracking nearly 7,000 registered sex offenders with GPS devices, trying to make sure they aren't living within 2,000 feet of child care centers, schools and other areas where children assemble.

Gov. Arnold Schwarzenegger, a backer of the provision, praised the Supreme Court for allowing the "state to continue implementing this important public safety measure." Justice Carlos R. Moreno, joined by Justice Joyce L. Kennard, dissented, arguing that the majority had failed to follow long-standing legal principles of retroactivity. They said Proposition 83 did not state it would be retroactive and therefore could not apply to anyone convicted of a qualifying sex offense before the law's enactment. Moreno also said that the goal of the restriction was to protect children and that two of the parolees challenging it had never sexually assaulted a child. Applying the law to them "would divert scarce law enforcement resources toward enforcing a restriction that has no demonstrable effect on increasing child safety," Moreno wrote.

Other critics of the residency requirement, including many law enforcement agents, also argue that the law compromises public safety by spurring an increase in homelessness among offenders and forcing them to live away from family and access to counseling and making them harder to track. Some even argue that the law has no beneficial effect, as sex offenders can work, recreate and loiter close to schools and parks, so the residential restriction has no practical benefit.

ACLU staff attorney for the ACLU of Northern California Michael Risher called the ruling "unsettling" and suggested that it would lead to more homelessness among sex offenders. He said the number of homeless sex offenders "skyrocketed" after the state began enforcing the residency rules.

"None of the urban areas of the state have viable places where sex offenders can live under this ruling, which of course is not good for public safety," said Risher. "Experts say that the most important thing for preventing recidivism is life stability."

Gov. Arnold Schwarzenegger said he was pleased by the majority's ruling and called the residency requirement "an important public safety measure." The future of the residency requirement still remains uncertain and will ultimately be decided at the trial court level where the constitutional challenge will again be litigated.

Campbell & Jayne LLP is a premier criminal defense firm which offers representation for individuals at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses. Campbell & Jayne LLP practices criminal defense in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.

For more information, see: www.campbelljayne.com

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

California Supreme Court Approves of Warrants based only on DNA

2010-02-01T12:56:00.000-08:00

The California Supreme Court has authorized arrest warrants that contain only a DNA profile of the suspect (known as "John Doe" arrest warrants). The Court last week upheld the rape conviction of Paul Robinson, who was arrested a month after the six-year statute of limitations expired on the case. In a 5-2 decision, the justices said an arrest warrant without Robinson's name but with his DNA profile issued before the expiration is valid. The Court ruled that a DNA profile is specific enough to justify an arrest warrant.

The case is: People v. Robinson
Ct.App. 3 C044703, Sacramento County, Super. Ct. No. 00F06871

Presley v. Georgia: A Ruling on Public Trials

2010-01-26T14:59:00.000-08:00

The U.S. Supreme Court ruled last week that jury voire dire proceedings should be open to defendants and the public. The high court also said that a trial judge has a duty to seek alternatives that will preserve openness even when, for example, it appears that there are so many prospective jurors in a courtroom, that there is no room for observers to sit. "Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials," the court majority wrote. "The public has the right to be present whether or not any party has asserted the right." Justice Clarence Thomas, joined by Justice Antonin Scalia, diessented, asserting that the case should have been decided only after full briefing and oral argument.

The case is: Presley v. Georgia, U.S. S. Ct, 1/19/10, 09-5720

Case Update: United States v. Yip (calculation of loss for tax fraud)

2010-01-20T13:41:00.000-08:00

Following a conviction for federal tax fraud, the Ninth Circuit held that the district court properly included defendant's unpaid state taxes in the tax loss computation on which his term of imprisonment and his restitution order were based. Moreover, the defendant was not entitled to an imputed deduction for his unpaid state taxes. The 9th Circuit concluded that the district court properly applied the sentencing enhancement because defendant's actions obstructed an IRS audit.

The case is: United States v. Yip, 08-10235.

People v. Moret: Condition of Probation Prohibiting Use of Medical Marijuana Affirmed

2010-01-11T11:53:00.000-08:00

In this case, a trial court's condition of probation prohibiting the use of marijuana (pursuant to a medical marijuana card) was held to be valid if it is reasonably related to future criminality and defendant has been found to consent to it. Appellant pled no contest to carrying a concealed firearm (Pen. Code, sec. 12025, subd. (a)(2)), and was granted three years probation with a condition prohibiting him from the use of marijuana and requiring him to give up his medical marijuana card. When interviewed by the probation officer preparing the presentence report, the 19-year-old defendant explained that he found the gun in some bushes and had recently obtained the medical card to enable him to use marijuana for treatment of migraine headaches. At sentencing, when appellant objected to the marijuana restrictions, the court indicated that he did not find appellant credible and offered him the choice of accepting the condition or going to jail. The appellate court upheld the condition, noting that the trial court’s rationale in ordering the condition was reasonable.
Case #: A123591
Opinion Date: 12/28/2009 , DAR #: 17963

Roman Polanski Case - Appeals Court Rejects Bid for Dismissal

2010-01-04T18:01:00.000-08:00

Case Name: Polanski v. Superior Court, Opinion Date: 12/21/2009 , DAR #: 17703

A California Appeals court held that the trial court did not abuse its discretion in applying the fugitive disentitlement doctrine and dismissing without prejudice Mr. Polanski's motion to dismiss his case. Director Roman Polanski entered a plea to statutory rape, went to prison for a 90-day diagnostic study, but then fled the country before sentencing because he believed the judge was going to send him to prison as a result of public criticism. Around the same time, defense counsel filed a motion to disqualify the judge. The judge denied bias, but agreed to transfer the case.

In 1997, the parties met with a different judge who agreed to sentence Polanski to no further jail time; but because the judge insisted the proceedings be televised, Polanski did not return for sentencing. In 2008, Polanski filed a motion to dismiss in the interests of justice, due to judicial misconduct. One year later, his attorney filed a motion to disqualify the entire Los Angeles County Superior Court. The trial court ruled Polanski must be present at any proceedings regarding his case (pursuant to Penal Code § 977), and he could not request affirmative relief from the court since he was a fugitive. Without deciding the merits, the court dismissed the motion without prejudice. Meanwhile, Polanski was arrested in Switzerland and let it be known he would fight extradition. There, he was ultimately released on house arrest.

However, by denying the motion without prejudice, the trial court gave Polanski the possibility of further review, and yet it still protected the court's dignity and recognized problems with enforceability. The court also noted it was disturbed by the allegations of misconduct discussed in detail in the opinion, many of which appeared to be substantiated and potentially very serious, and so it urged the parties to investigate those claims of misconduct.

Recent Case Holding: People v. Limon - Immigration Consequences

2009-12-24T12:16:00.000-08:00

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

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

Broadcom's former CEO wins dismissal of criminal backdating charges

2009-12-16T13:27:00.000-08:00

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

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

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

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

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

2009-12-09T15:22:00.000-08:00

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

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

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

2009-11-23T13:55:00.000-08:00

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

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

2009-11-10T08:28:00.000-08:00

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

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

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

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

2009-11-03T12:53:00.000-08:00

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

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

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

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

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

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

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

Change of Venue Motion Granted in Mehserle Case

2009-10-20T08:31:00.000-07:00

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

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

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

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

2009-10-13T09:44:00.000-07:00

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

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

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

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

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

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

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

New DA in Alameda County

2009-10-06T10:45:00.001-07:00

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

Recent case holding: Smith v. Lockyer

2009-09-29T14:48:00.000-07:00

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

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

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

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

2009-09-21T12:25:00.000-07:00

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

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

Background

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

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

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

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

Ninth Circuit Holding

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

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

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

Summary

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

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

Campbell & Jayne LLP is a premier criminal defense firm which offers representation for individuals at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses. Campbell & Jayne LLP practices criminal defense in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.

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

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

Judge Sotomayor: Criminal Justice Highlights

2009-07-18T06:07:00.000-07:00

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

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

Short Background

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

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

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

Sentencing Record

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

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

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

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

Fourth Amendment

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

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

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

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

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

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

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

Conclusion

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

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

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

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

Recession and Crime: An Overview

2009-04-01T08:30:00.000-07:00

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

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

2009-01-15T08:33:00.000-08:00

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

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

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

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

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

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

Campbell & Jayne LLP is a premier criminal defense firm which offers representation for individuals at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses. Campbell & Jayne LLP practices criminal defense in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.

For more information, see: www.campbelljayne.com

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

California Supreme Court Expands Measures to Eliminate Jury Bias

2008-08-15T08:36:00.000-07:00

On July 24, 2008, the California Supreme Court committed to a position it has resisted for nearly twenty years by holding that evidence supporting the need for a comparative jury analysis must be considered on appeal if relied upon by the defendant, even if the issue was not raised at the trial level. A comparative jury analysis examines the prosecutor’s questions to potential jurors to determine whether the prosecutor eliminated certain jurors based on racial motivations or because of a membership to a particular group.
People v. Lenix, S148029, 2008 WL 2834291 (Cal. July 24, 2008) involved the prosecution of Arthur Lenix, an African-American man. During jury selection, the prosecution made five peremptory challenges, with the fifth challenge eliminating the last remaining black potential juror. Defense counsel challenged the decision, claiming that the strike was based on race. On appeal, the defense sought to compare the answers of potential white jurors who were selected with those of potential black jurors who were dismissed. A comparative jury analysis is the most common way to evaluate a claim made under Batson v. Kentucky, 476 U.S. 79, 89 (1986), where the United States Supreme Court held that eliminating jurors based solely on racial affiliation violated the Equal Protection Clause of the United States Constitution.
California has a long history of reluctance to engage in a comparative jury analysis for the first time on appeal. See People v. Johnson, 47 Cal. 3d 1194, 1221 (1989). The United States Supreme Court, however, has embraced this approach to evaluating a Batson claim, and has employed it in three separate cases from Texas and Louisiana in the past five years. See Miller-El v. Cockrell, 537 U.S. 322 (2003); Miller-El v. Dretke, 545 U.S. 231 (2005); Snyder v. Louisiana, 128 S. Ct. 1203 (2008).
After Miller-El v. Cockrell, the California Supreme Court conceded that when a comparative jury analysis had been conducted at the trial level, it could be part of an appellate review. See People v. Johnson, 30 Cal. 4th 1302, 1321 (2003). After several subsequent California cases revived the issue, the Court finally permitted a comparative jury analysis for the first time on appeal, although it made clear that it was “assuming without deciding” that engaging in this type of analysis for the first time on appeal was required in order for the Court to be able to review the case based on the entire record, as is constitutionally required. See e.g. People v. Huggins, 38 Cal. 4th 175, 232 (2006).
Following the United States Supreme Court’s decision in Snyder, the California Supreme Court finally addressed the issue directly in Lenix. The Court requested a supplemental brief to determine officially whether the court is constitutionally required to perform a comparative jury analysis to evaluate the prosecutor’s reasons for peremptory challenges when defense raises a Batson claim for the first time at the appellate level. The answer was yes, on the rationale that failing to conduct such an inquiry restricts the requirement that the review must be based on the entire record. The Court did maintain, however, that such an analysis is only proper if the record is adequate to permit such a comparison of jury responses. Lenix, S148029, 2008 WL 2834291, at *12 (Cal. July 24, 2008).
Justice Corrigan cautioned, however, that the changes brought on by this decision would be limited. She emphasized that the trial court is best equipped to judge the prosecutor’s explanations for dismissing certain jurors, since prosecutors do not have a chance to explain their actions on appeal. Consequently, “these realities, and the complexity of human nature, make a formalistic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” Id. at *13.
Although the Court issued a groundbreaking decision, the matter is not entirely settled. In a concurring opinion, Justice Baxter and Justice Chin maintained that a comparative jury analysis should be raised and preserved at the trial level if it is to be investigated on appeal. The Court, however, did not include the requirement in its majority opinion that a comparative jury analysis must be conducted at trial level in order to be raised on appeal because there is no guidance from the United States Supreme Court as to whether such a requirement would be constitutional.
In the end, the decision did not afford relief to Mr. Lenix. After conducting a comparative jury analysis, the Court held that there was nothing improper about the prosecutor’s decision to dismiss the last potential black juror. The decision is victorious for defense attorneys, however, who now may have one more jury selection-related issue to raise at the appellate level.

United States Supreme Court Curtails Federal Money-Laundering Statute

2008-06-15T08:39:00.000-07:00

On June 2, 2008 the United States Supreme Court severely limited the reach of the Money-Laundering Control Act (18 U.S.C. § 1956) in two separate decisions. In Cuellar v. United States (2008) 128 S.Ct. 1994, the Court unanimously held that in order to obtain a money-laundering conviction, the prosecution must prove that the defendant specifically intended his actions to conceal or disguise the attributes of the illegally obtained funds.

This interpretation is a sharp deviation from the flexibility that has been attached to the statute since its creation in 1986. A person commits money laundering when he transports illegal funds, “knowing that the transaction is designed…to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.” 18 U.S.C. § 1956. Courts have, however, traditionally interpreted the word “designed” liberally, allowing for convictions when merely the effect, not the intent, of the transportation was to conceal the nature of the funds. The Cuellar decision prevents this use of the statute. In another case, United States v. Santos (2008) 128 S.Ct. 2020, the Court limited the definition of the word “proceeds” in the statute to signify the net profits of the unlawful activity, not the total receipts.

The decisions come as a heavy blow to prosecutors, who have championed the money- laundering statute as a powerful weapon in the war on drugs and organized crime. A money laundering conviction can result in as high as a 20-year sentence. Many defense attorneys have protested, however, that the government improperly used the statute to pressure defendants to plead guilty to other crimes, such as drug dealing. In 2006, the government obtained nearly 1,000 money laundering convictions.

The Money-Laundering Control Act criminalizes certain transfers of money derived from illegal activities. In Cuellar, Mr. Cuellar was stopped by law enforcement attempting to transport large amounts of cash from Texas to Mexico. Although he made substantial efforts to hide the money by bundling it in plastic bags and covering it with animal fur, the Court held that he could not be convicted under the money-laundering statute. Justice Thomas delivered the opinion of the Court, and the ruling turns on the Legislature’s use of the word “design.” The prosecution must prove, the Court held, that Mr. Cuellar knew that transporting the funds to Mexico was designed to conceal or disguise the nature, location, source, ownership, or control of the money. Merely hiding the funds during transportation was not enough to violate the statute; the purpose of the transportation must be to conceal the money’s illegal aspects. The Court distinguished how one moves money from why one moves money, and stated that evidence of the former did not necessarily prove the latter.

The government did win a small victory when the Court rejected Mr. Cuellar’s position that a money-laundering conviction required a defendant to intend to create the appearance of legitimate wealth. However, this small conquest is overshadowed by the reaching implications of the overall ruling.

The second case, a 5-to-4 decision, involved the proceeds of an illegal lottery in Indiana bars and restaurants. In Santos, Mr. Santos was charged with money laundering for the payments he made to his runners and winners, and the case turned on the definition of “proceeds.” The government argued that “proceeds” should include the total receipts of the activity, while the defense argued that it only included the net profits. Justice Scalia delivered the opinion of the Court holding that, by dictionary definition, “proceeds” can mean either receipts or profits. Accordingly, the statute was determined to be ambiguous. The Court thereby held that because ambiguity is read in favor of the defendant, the definition of proceeds must be limited to mean net profit, not total receipts.

The two decisions raise the bar for prosecutors, who can no longer rely on a money-laundering conviction based solely on concealment of illegal funds.

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