May 26, 2008

SAN DIEGO DRUG SMUGGLING DEFENSE: THREE PEOPLE FACE CHARGES OF SMUGGLING 1000 POUNDS OF MARIJUANA

May 26, 2008

EAST COUNTY – Three people are facing drug smuggling charges after Border Patrol agents seized more than 1,000 pounds of marijuana from two vehicles, officials said. Patrol Patrol agents say they stopped this vehicle with large packages of marijuana in the back.

On Thursday morning, agents spotted a Chevrolet Tahoe with two people inside on westbound Interstate 8 near Pine Valley. The SUV was followed to the parking lot of an El Cajon grocery store, where a search of the vehicle netted 96 bundles of marijuana with a total weight of 997 pounds, officials said.

Later that morning, a drug sniffing dog alerted agents to the possibility of drugs inside a Honda Accord at the Border Patrol checkpoint in Pine Valley, officials said. Agents found more than 92 pounds of marijuana hidden in the vehicle's door panels, officials said.

Continue reading "SAN DIEGO DRUG SMUGGLING DEFENSE: THREE PEOPLE FACE CHARGES OF SMUGGLING 1000 POUNDS OF MARIJUANA" »

May 26, 2008

CHULA VISTA DUI DEFENSE: NINE PEOPLE HURT IN SUSPECTED DUI ACCIDENT-DRIVER DROVE THE WRONG WAY

May 26, 2008

CHULA VISTA: Nine people were hurt yesterday morning when a woman suspected of drunken driving drove the wrong way on Olympic Parkway and crashed into a sport utility vehicle carrying eight people, Chula Vista police said.

The crash occurred shortly before 3:30 a.m. when a 19-year-old woman drove her Hyundai Accent west in the eastbound lane, police Lt. Tro Peltekian said. Her car collided with a Honda SUV that was heading east on Olympic Parkway near Oleander Drive, Peltekian said.

The 19-year-old was taken to a hospital with serious injuries, police said. Police arrested her at the hospital on suspicion of felony driving under the influence, Peltekian said.

The driver and seven passengers of the SUV also were taken to hospitals. The range of their injuries was described as minor to moderate, police said.

Continue reading "CHULA VISTA DUI DEFENSE: NINE PEOPLE HURT IN SUSPECTED DUI ACCIDENT-DRIVER DROVE THE WRONG WAY" »

May 21, 2008

CALIFORNIA CRIMINAL DEFENSE: PROSECUTOR FACES DISCIPLINARY HEARING FOR MISCONDUCT

This is for those of you who thinks this just doesn't happen. Well, it happens, but our state bar lets prosecutor continue doing it. maybe not for long......Prosecutor faces rare disciplinary hearing today
CRITICS CHARGE MISCONDUCT; SUPPORTERS CALL BAR MISGUIDED

By Leslie Griffy
Mercury News
Posted: 05/20/2008 01:30:25 AM PDT

Tainted Trials, Stolen Justice

Ben Field is a prosecutor with a great résumé - stellar academic credentials and political ambition that seemed likely to lead to a Santa Clara County judgeship or even the post of district attorney.

But as Field won convictions in one difficult case after another, his aggressive conduct in the courtroom raised questions about whether he was twisting facts and defying judges to gain his victories. And beginning today, that conduct will be at issue in a rare state bar hearing examining allegations of prosecutorial misconduct.

In California, as in many states, prosecutors rarely face sanctions for their courtroom tactics. For that reason, the Field case - which could result in the prosecutor being suspended or even barred from the practice of law - is seen by some as a test of the system's ability to police itself.

The case has sharply divided the local legal community, and both sides see the outcome as critically important: To some, Field is accused of egregious actions of the type that have been too long tolerated. To others, including many in the district attorney's office, the case is a sign of an out-of-control state bar wielding its power to satisfy the misguided media.

Even as Field built a following among prosecutors who see him as aggressive but honorable, he was generating increasing controversy within the defense community.

He shrugged off those criticisms as the claims of disappointed lawyers who represented guilty
clients - until he won the conviction of two young men, Damon Auguste and Kamani Hendricks, for raping and sodomizing a teenage girl after she became drunk in their San Jose house.
After Auguste's conviction, his aunt Donna Auguste, who earned a small fortune as a software engineer with Apple and on her own, opened her wallet to fund her nephew's defense against what she considered an unethical prosecution.

She hired lawyers, investigators and experts who began to develop evidence raising questions about the defendants' guilt. Their claims led to a series of hearings before Judge James Emerson that focused on not only the evidence in the case but on Field's conduct before, during and even after the trial of the two.

Verdict overturned

The hearings concluded with Emerson overturning the verdict, based both on new evidence casting doubt on the girl's credibility, as well as on Emerson's finding that Field had wrongly withheld laboratory notes from the physical examination of the girl that might have cast doubt on whether she was raped. The judge separately criticized Field's tactics during the post-trial proceedings, calling a series of searches of homes of Auguste's family and friends "grossly unfair, excessive and unbalanced."

As part of the 2006 series "Tainted Trials, Stolen Justice," the Mercury News reviewed Field's conduct, and found a pattern of questionable conduct in earlier cases as well.

The state bar hearings are based on Field's conduct in the Auguste case and two earlier cases, dating back to 1995.

Such hearings are uncommon. The 2006 Mercury News review of nearly 1,500 cases found that only one prosecutor had been brought before the court in the previous five years. But there appears to be new vigor by the bar - records show three prosecutors in the state are facing disciplinary hearings.

Field has strongly defended his conduct in past interviews. Contacted for this article, he referred questions to his attorney, Allen Ruby, who said Field is innocent and the charges are not well-founded.

Field's supporters contend that the case against him represents nothing more than the state taking action in a high-profile case driven by media pressure. Months ago, District Attorney Dolores Carr and her top assistant went to San Francisco to urge the state bar not to bring charges.

And she urged the county to pay for Field's defense against the charges. The county agreed to pay up to $50,000 of the costs.

Bar criticized

Deputy Santa Clara District Attorney Kevin Smith, head of the local prosecutors union, said the case shows the danger of the "unchecked power" of the state bar.

COMMENTARY: Hey, Kevin, we have loads of this stuff down in San Diego and the rest of the State. Click Here, and HERE, and HERE and HERE. Oh, By The Way, Kevin, it's because of YOU that this dirtball got to keep going and going and going like the EverReady Battery Bunny. YOU should go next.

In a letter to his colleagues entreating them to attend the hearings to support their colleague, Smith called the newspaper's articles a "hatchet job."

The state bar case includes charges of misconduct in connection with a 2002 murder case, when Field failed to tell defense attorneys that a key prosecution witness may have taken part in the crime. The judge called it a "blatant" violation of requirements that prosecutors hand over any evidence that could help prove innocence.

The bar also has accused Field of misconduct in connection with a 1995 rape charge, which involved questions about whether the defendant was old enough to be tried as an adult. Four times, different judges told Field to file a motion and receive court approval before ordering the physical examination, according to the complaint.

Field went ahead and requested the exam anyway. The evidence was not allowed in court and the case was dismissed. In that case, the complaint alleges, Field "willfully disobeyed a court order."

In the Auguste case, Emerson told Field that he wanted the prosecutor to turn to him for approval before conducting any further searches for evidence. Four days later, armed with the approval of a Colorado judge, a Santa Clara County district attorney's investigator joined authorities in searching the Colorado home of Donna Auguste. She was not there at the time.

Donna Auguste has a pending federal lawsuit against Field in Colorado about the search of her home.

May 21, 2008

ORANGE COUNTY COP CHARGED WITH FILING FALSE REPORTS

May 21, 2008

ORANGE COUNTY SHERIFF'S DEPUTY CHARGED WITH FILING 18 FALSE POLICE REPORTS IN DNA PROPERTY CRIMES PROJECT

SANTA ANA - An Orange County Sheriff's deputy was charged this morning with filing false police reports with the Orange County Sheriff's Department (OCSD). Jason Christopher Brant, 33, Chino, is charged with 18 misdemeanor counts of filing a false report as a peace officer. He faces a maximum sentence of 18 years in jail if convicted. Brant is scheduled to be arraigned Thursday, May 29, 2008, at 9:00 a.m. at the Central Justice Center in Santa Ana.

In 2005 the Orange County District Attorney's Office and OCSD received a grant from the National Institute of Justice. The grant funded a South Orange County project to determine the effectiveness in using DNA to solve property crimes.

Brant, a sworn deputy, is a 10-year veteran with the OCSD and was selected by the Department to work on this project. He was assigned to follow up on 39 of the 500 property crimes cases that were selected for DNA testing. Brant's job included contacting the victims of 39 cases that occurred between 2005 and 2007, conducting 39 follow-up investigations, collecting contact information from the victims in the event that a DNA match led to an identification of a defendant in their case, and determining the victim's willingness to cooperate in the case.

On January 14, 2008, Brant submitted 39 reports to OCSD. Of those 39 cases, Brant is accused of filing 18 false police reports stating that he had contacted each victim by telephone and they had declined to cooperate in the investigation.

Continue reading "ORANGE COUNTY COP CHARGED WITH FILING FALSE REPORTS " »

May 18, 2008

EL CAJON POLICE OFFICER ACCUSED OF HAVING SEX WITH MINOR GIRL

SAN DIEGO -- A family has filed a complaint against an El Cajon police officer, accusing him of giving alcohol to and having sex with a minor, according to a newspaper report.

The El Cajon Police Department confirmed to NBC 7/39 that a family filed a complaint against police officer Mark Bevin in April.

A woman contacted police, saying Bevin supplied alcohol to and had sex with a minor, according to the San Diego Union-Tribune.

Bevin is an eight-year veteran of the department and had recently been transferred to investigations from patrol.

Police said they are investigating the case aggressively, and if criminal activity is discovered, the case will be handed over to the district attorney's office.

Continue reading "EL CAJON POLICE OFFICER ACCUSED OF HAVING SEX WITH MINOR GIRL" »

May 16, 2008

PROBATIONER HAS RIGHT TO TEST EVIDENCE THAT WOULD REVOKE PROBATION

The defendant was on federal supervised release and was drug tested. It was the second test in as many days. This test was "positive" for cocaine. The defendant protested vigorously. Even though she was watched while she gave the sample, the sample registered "diluted" when it was tested.

Despite some questions about accuracy of the test, procedures, and dilution, the court refused to let counsel cross examine the lab technician. The court found defendant guilty of drug use. The 9th Circuit Court of Appeal (Bea joined by Berzon and Gibson) reversed.

The 9th held that the test results here were shown to be unreliable given the observing of the defendant while providing the sample, and questions as to the accuracy, and so cross examination of the lab tech was needed. Denial of that right was error. The defendant needed the chance to contest the results.

The government tried to argue that the reputation of the national lab for probationer drug testing and the expense (it was in Virginia and the defendant in Hawaii) did not require the lab tech to be in person. After all, their super duper labs can never, never, never make mistakes, right?

Yet, as the 9th Circuit pointed out, the lab itself had raised questions about the sample given the unexplained "dilution." The 9th Circuit wondered why the government did not provide a video feed, or arrange for a depo in Virginia, or even a phone cross-exam.

Moreover, the district court erred in disbelieving the defendant solely because of past offenses or drug use. What? Guilt by assumption again?

The 9th Circuit says the focus has to be on the present violation, and not what had happened in the past. The Court keeps stressing that this is an unusual case because the test result on its face was unreliable. Still, it establishes again that proof is required for a violation and defendant has a right to contest it.

U.S. v. Perez, No. 07-10289 (5-16-08).

May 15, 2008

FEDERAL COURTS CAN ORDER EARLY DISCOVERY

In an en banc decision, the 9th Circuit Court of Appeal (Fisher) upheld a district court's discretion, pursuant to Fed. R. Crim. P. 2 and 16, and its inherent authority, to order disclosure of the government's witness list and to hold the government to it.

The court can do so to allow for orderly trial.

The 9th Circuit therefore joins other circuits that have so held. The 9th Circuit also spent a lot of time discussing whether the governement could appeal the district court's order interlocutorily by only citing the barest of justifications ("not for delay" and "substantial proof" is material) under 3731. The 9th Circuit decides that following the sparse language, so long as it is certified by the U.S. Attorney is good enough. Concurring in judgment, Hawkins, Pregerson and Wardlaw would require more than the government's "say so."

U.S. v. W.R. Grace et al., No. 06-30192 (5-15-08) (en banc).

May 13, 2008

GOOD DALLAS PROSECUTOR WON'T PUT UP WITH MISCONDCUT-A BREATH OF FRESH AIR

DALLAS PROSECUTOR SEEKS TO CLEAN UP HIS OWN OFFICE-WON'T PUT UP WITH MISCONDCUT FROM HIS STAFF
Craig Watkins has had a few misses amid many hits in his first term as Dallas County district attorney, but it's hard to argue with his there-oughta-be-a-law sentiment on prosecutorial misconduct.

Ah, that this should ever be the standard in San Diego. Sigh. But, alas, San Diego criminal defense lawers haven't put the heat on prosecutors here who have year after year allowed misconduct to fester. And the press doesn't seem to care.

Mr. Watkins has pushed as hard to free the innocent as he has to convict the guilty. In that spirit, he now wants Texas to increase punishments – up to and including prison time – for prosecutors who intentionally withhold evidence from defendants.

Today, Texas law allows cash compensation to those wrongfully convicted but has no criminal sanctions for prosecutors who intentionally commit "Brady violations."
The term stems from a 1963 U.S. Supreme Court ruling in Brady vs. Maryland that held that defendants' constitutional rights are violated if prosecutors intentionally or accidentally withhold evidence favorable to the defense.

A sanction from the State Bar of Texas is the worst penalty a prosecutor currently can expect, and such instances are so rare as to be noteworthy when they occur.

Even the most egregious recent example of U.S. prosecutorial misconduct – Durham County, N.C., District Attorney Mike Nifong and the so-called Duke lacrosse case – resulted in only a day in jail, a fine and disbarment. If that sounds stiff, consider the potential life ruination from his attempts to prosecute three college students on rape charges he knew to be false.

Few cases are as heinous or as obvious. Ferreting out this type of injustice is far from as clear-cut as a DNA exoneration. It can be years or even decades before legal teams can dig up the evidence needed to bring such a charge.

If time – in effect, a statute of limitations – is a potential obstacle, Mr. Watkins also knows that degree is another. Every bit of evidence, from a witness to a document to a fiber found at a crime scene, carries a different weight. This must be considered in any new law.

Since he's not a state legislator, Mr. Watkins needs someone to carry a bill for him in Austin. We would think he would have the support of the vast majority of his DA colleagues. They know as well as he does that any prosecutor who cheats the system and cuts corners makes all of them look bad.


Continue reading "GOOD DALLAS PROSECUTOR WON'T PUT UP WITH MISCONDCUT-A BREATH OF FRESH AIR " »

May 13, 2008

NO RECUSAL OF PROSECUTORS FOR REPRESENTING A VICTIM-OUTRAGEOUS

after affirming trial court denials of recusals of prosecutors in the two cases discussed below, stressing that appellate courts should defer to trial courts, the Supreme has abandoned any
pretense of integrity and reverses the juvenile court's recusal order here.

The DA not only objected to disclosure of the victim's medical and psychiatric records, the DA moved to quash the SDT and filed a writ petition after that motion was denied.

The Supreme Court does not overrule the case (Bullen, 204 CA3d 22) saying that the DA can't actually represent victims or witnesses; they just say that the DA didn't do that here. Right, moving to quash and running a writ wasn't representing the victim? What did the DA need to do, file a formal written notice of appearance?

Anyway, the Supreme Court says that although the DA can't represent the victim, and the DA isn't entitled to participate in a hearing on disclosure of the victim's records, the DA also isn't barred from participating. And sure, the DA may have overdone things with that writ and all, but they were just wrong, and being zealous and even wrong isn't a conflict.

People v. Superior Court (Humberto S.); 2008 DJ DAR 6791; DJ,
5/13/08; Cal. Supremes

Continue reading "NO RECUSAL OF PROSECUTORS FOR REPRESENTING A VICTIM-OUTRAGEOUS" »

May 12, 2008

PROSECUTOR'S MAY NOT COMMENT ON DEFENDANT'S SILENCE

The United States Supreme Court in Doyle found a due process violation if the prosecutor commented on the defendant's silence. The question here is whether the prosecutor could argue omissions in defendant's post-arrest statement before invoking her Miranda rights. The 9th Circuit Court of Appea; (Wilken, D.J., joined by Graber and Berzon) held that the prosecutor could not.

The defendant was arrested coming cross the border with cocaine in the gas tank. She at first waived her Miranda rights and made a statement that she had lent her car, and had just gotten it back, and was going to drive it to L.A. After seven minutes or so, she then invoked her Miranda rights. At trial, the agent who took the post-arrest statement acknowledged changes in his notes and cross-outs. The defendant testified and was crossed on inconsistencies. There were also corroborating witnesses to her version.

In closing, the prosecutor hammered on omissions in her post-arrest statement, and the inconsistencies with her trial testimony, implicitly commenting on her invocation of silence. This was a due process violation. It was not harmless given the focus on her credibility.

U.S. v. Caruto, No. 07-50041 (5-12-08).

May 11, 2008

SAN DIEGO DUI DEFENSE ATTORNEY NEW: HOW TO AVOID A DUI THIS SUMMER

SAN DIEGO DUI DEFENSE ATTORNEY NEWS:

San Diego law enforcement will step up San Diego DUI enforcement over the summer. Law enforcement will really step it up over the holidays, starting with Memorial Day weekend, and simmering down after Labor Day.

It's starting now. Memorize these tips. They may come in handy over the holidays.

1. If you drive during the summer holidays, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. Police historically write in their San Diego DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the San Diego DUI officer to pull over by the officer for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a San Diego DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the San Diego DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your New Year's day party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. Officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The San Diego DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, SDPD and Sheriff's don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitations protocol in place. Why risk infection?

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

(San Diego DUI Defense, Chula Vista DUI Defense, Vista DUI Defense, El Cajon DUI Defense, Imperial County DUI Defense, El Centro DUI Defense, Orange County DUI Defense, Riverside DUI Defense, San Bernardino DUI Defense, Los Angeles DUI Defense, San Diego DUI Defense Attorney, San DIego DUI Defense Lawyer, California DUI Defense, Murrieta DUI Defense, Temecula DUI Defense, Riverside DUI Defense, Chula Vista DUI Defense, El Cajon DUI Defense, Vista DUI Defense, Temecula DUI Defense, Brawley DUI Defense, El Centro DUI Defense, San Diego drunk driving defense, San Diego DWi defense])


May 7, 2008

PROSECUTOR'S RECKLESS DISREGARD FOR DISCOVERY OBLIGATIONS WARRANTS DISMISSAL OF INDICTMENT

THE QUESTION POSED IN THIS AMAZING CASE IS: Can an AUSA's reckless disregard for constitutional discovery obligations serve as a basis for a dismissal of an indictment with prejudice? Yes! United States v. Chapman __ F.3d __, 2008 WL 1946744 (9th Cir. May 6, 2008). Decision by Judge Kim Wardlaw; joined by Judges Hawkins and O’Scannlain.

Facts: Chapman was prosecuted for running a “box job;” a stock-fraud scheme involving shell corporations and dummy directors. Although in ‘04 the government promised to disclose Brady, Giglio, and Jencks information prior to trial, in ‘06 – the day before trial – it suddenly revealed for the first time it would call its case agent for whom no discovery had been disclosed. As the trial progressed, priors of two prosecution witnesses were disclosed for the first time on direct.

When this happened a third time during trial, the government disclosed (for the first time) over 650 pages of rap sheets, plea agreements, and cooperation agreements. A frustrated district judge declared a mistrial, and after briefing on the discovery violations dismissed the indictment.

Issue(s):
“The district court dismissed an indictment . . . after the prosecution admitted that it failed to meet its obligations to disclose over 650 pages of documents to the defense. We must decide whether the government’s appeal of the dismissal is precluded by the Double Jeopardy Clause . . . [and] whether the dismissal was proper.”

Held: 1. Double Jeopardy: “[W]e hold that the ‘manifest necessity’ exception [to the Double Jeopardy Clause] applies to this case . . . . We conclude that the Double Jeopardy Clause does not bar the government’s appeal under the circumstances presented here . . . .”

Discovery Sanction: “[W]e affirm as to . . . the dismissal of the indictment . . . .” I

Of Note: Chapman stands out for the Ninth’s endorsement of a severe discovery sanction, but the case is also of interest for its discussion of the “manifest necessity” concept for mistrials and Double Jeopardy. In essence, if there is a mistrial after the jury is empaneled but before a verdict, a defendant can be tried again for the same crime if 1) “he consents to the dismissal,” or 2) “if the district court determines that the dismissal was required by ‘manifest necessity.’” The classic example of “manifest necessity” is a deadlocked jury – but as shown here, the doctrine can defeat a Double Jeopardy claim when there is a mistrial because of government misconduct. It is a complicated concept: for example, evidence that the government sought a mistrial to gain tactical advantage earns the “strictest scrutiny” on appeal, instead of a review for “abuse of discretion.” Chapman is worth a spot in a trial binder to remind of Double Jeopardy ramifications of a mistrial, and how to make the appellate record when a mistrial arises.

How to Use: The Very Important Rule of Chapman is this:

A district court can exercise its supervisory powers and dismiss an indictment with prejudice even when the AUSA has committed no intentional discovery violation, if there is “reckless disregard for the prosecution’s constitutional obligations.”

One of the AUSA’s major sins here was his failure to keep a discovery log. It is rare to catch a prosecutor in a deliberate discovery violation, but sloppy, “inadvertent” failures to disclose are as commonplace as government discovery logs are rare. Particularly in complex, large-discovery cases – like wiretaps, big fraud conspiracies, and SEC-related prosecutions – Chapman finally puts some teeth in criminal discovery rules. In these big cases, the Chapman opinion should figure prominently in initial discovery letters and defense discovery motions.

For Further Reading: The federal bench has been buzzing about the recent Qualcomm civil discovery sanctions: over $9 million in fines and a half-dozen attorneys referred to the California State Bar for disciplinary action. See Qualcomm v. Broadcom, 05 CV 1958-RMB (BLM), Ord. (S.D. Ca. Jan. 7. 2008).

By contrast, what happened to the AUSA(s) after their "flagrant" discovery violations in Chapman? Actually, who were the AUSAs in Chapman? A liberal latté on me, for anyone who finds their names in the opinion. (Wasn’t it just a week ago that the Ninth lectured us on the “public’s right to know” the names of wrong-doers in published opinions? See United States v. Stoterau, 2008 WL 1868997 (9th Cir. Apr. 29, 2008)).

May 6, 2008

75 STUDENTS ARRESTED IN SDSU DRUG BUST-GUNS INVOLVED

75 students arrested in San Diego State University drug bust
By ALLISON HOFFMAN – 50 minutes ago

SAN DIEGO (AP) — Dozens of San Diego State University students were arrested after a sweeping drug investigation found that some fraternity members openly dealt drugs and one even sent a mass text message advertising cocaine, authorities said Tuesday.

Two kilograms of cocaine were seized, along with 350 Ecstasy pills, marijuana, psychedelic mushrooms, hash oil, methamphetamine, illicit prescription drugs, several guns and at least $60,000 in cash, authorities said.

Of the 96 people arrested, 75 were students. Eighteen of the students were arrested Tuesday when nine search warrants were executed at various locations including fraternities, said Jesse Rodriguez, San Diego County assistant district attorney.

The undercover probe, dubbed Operation Sudden Fall, was sparked by the cocaine overdose death of a student in May 2007, authorities said. As the investigation continued, another student, from Mesa College, died Feb. 26 of a cocaine overdose at an SDSU fraternity house, the DEA said.

Those arrested included a student who was about to receive a criminal justice degree and another who was to receive a master's degree in homeland security.

"A sad commentary is that when one of these individuals was arrested, they inquired as (to) whether or not his arrest and incarceration would have an effect on him becoming a federal law enforcement officer," said Ralph Partridge, special agent in charge of the U.S. Drug Enforcement Administration in San Diego.

Some defendants were scheduled to appear in state court to face charges Tuesday.

During the probe investigators discovered that in some fraternities most members were aware of "organized drug dealing occurring from the fraternity houses by its members," the DEA said in a news release.

"Undercover agents purchased cocaine from fraternity members and confirmed that a hierarchy existed for the purpose of selling drugs for money," the DEA said.

The district attorney's office said search warrants were served in San Diego and suburban La Mesa, including the Theta Chi fraternity house and several apartments.

A member of Theta Chi sent out a mass text message to his "faithful customers" stating that he and his "associates" would be unable to sell cocaine while they were in Las Vegas over one weekend, according to the DEA. The text promoted a cocaine "sale" and listed the reduced prices.

Theta Chi's San Diego chapter declined to comment.

"We're talking to our advisers," said John Phillips, a past president of the chapter.

Dale Taylor, the fraternity's national executive director, said he was "obviously shocked and saddened" by the allegations.

Theta Chi has prohibited the San Diego chapter from group activities like parties or sports and will investigate additional disciplinary measures, up to expulsion of members or the entire chapter.

Theta Chi, based in Indianapolis, has 131 chapters in the U.S. and Canada and more than 161,000 initiates. It was founded in 1856.

The San Diego chapter was founded 61 years ago and has 65 members.

"They were on the upswing," Taylor said. "They had improved their recruitment. They were trying to raise money for a new house."

University police and federal drug agents worked together in the investigation, making more than 130 undercover drug buys at locations including fraternity houses, student parking areas and dormitories, authorities said.

Shawn Collinsworth, executive director of the national office of Phi Kappa Psi, said he was told by two of the SDSU fraternity chapter's leaders that four of its members were arrested. He said the fraternity is cooperating with the investigation.

"It isn't behavior becoming of Phi Kappa Psi," Collinsworth said.

San Diego State is one of the largest schools in California's state university system with about 34,000 students. The campus has an active network of fraternities and sororities.

Continue reading "75 STUDENTS ARRESTED IN SDSU DRUG BUST-GUNS INVOLVED" »

May 5, 2008

COP "ACCIDENTIALLY" SHOOTS INSTEAD OF TASERS HANDCUFFED SUSPECT

Okay, this goes into the OMG category. A handcuffed arrestee was about to be tasered by a cop, and the cop pulled out the wrong weapon, and shot him dead instead! I mean, why is a cop tasering a handcuffed suspect? If you have to quiet a handcuffed suspect - and that's really, really debatable folks - why not pepper spray him? But tasering him? And shooting him dead instead. I say "Hang 'em High."

DUMB COP ACCIDENTALLY SHOOTS CUFFED SUSPECT

The accidental shooting of a handcuffed suspect is subject to a reasonableness inquiry. A case "remarkably similar on its facts to that faced by the Fourth Circuit in Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007)," involved a handcuffed arrestee who the defendant officer was attempting to Taser and shot with a Glock instead.

Here, however, the arrestee died. The inquiry is reasonableness, but that question was not decided by the district court, so the case is remanded. Torres v. City of Madera, 2008 U.S. App. LEXIS 9648 (9th Cir. May 5, 2008):

Henry concluded, and we agree, that five factors were relevant to the reasonableness determination: (1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant's conduct heightened the officer's sense of danger; and (5) whether the defendant's conduct caused the officer to act with undue haste and inconsistently with that training. Henry, 501 F.3d at 383.

While these factors are relevant to the determination of whether Officer Noriega acted reasonably, we also stress that "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments." Graham, 490 U.S. at 396-97. Since the parties did not brief the issue of whether Officer Noriega's mistake was a reasonable one, the factual record is insufficiently developed for this court to make this determination, and we remand to the district court to determine in the first instance whether Noriega's conduct was unreasonable under Graham, 490 U.S. at 396-97, and to otherwise proceed with the matter.

May 3, 2008

CALIFORNIA LEGISLATOR WITHDRAWS BILL THAT WOULD HIDE POLICE MISCONDUCT

CALIFORNIA LEGISLATOR WITHDRAW BILLS THAT WOULD HIDE POLICE MISCONDUCT

Hayashi warrants support for 2nd Assembly term

ADMITTING one has made a mistake is a virtue in politics. Doing so reflects a willingness to learn and a degree of openness that one doesn't always find in the arena of big egos.
It's one reason we recommend that Democrats in Assembly District 18 give Mary Hayashi a chance to represent them for a second term. It's a many-splendored district, representing Hayward, San Leandro, Dublin, most of Castro Valley and Pleasanton, a part of Oakland and the unincorporated communities of Ashland, Cherryland, Sunol and San Lorenzo.

Hayashi's error came via her authorship of Assembly Bill 2377, which she says the "sheriff's association" asked her to sponsor. The bill unfortunately would make it more difficult for the public, criminal defendants and plaintiffs to obtain records of police misconduct.

It triggered a puff of protest, including a scathing analysis by San Francisco Public Defender Jeff Adachi. Hayashi consulted with Adachi, has since dropped the bill, which ran contrary to making information about public employees public, and will not resurrect it.

"I'm new (this is her first two-year term), sometimes I make mistakes," she said, noting that she and her staff do their own research on bills and that she now understands the public policy implications of AB2377.

In less than two years, Hayashi has sponsored a number of bills, has become asssistant majority whip of the Democratic Caucus and chairs the Assembly Select Committee on Community Colleges.

Although Hayashi has sponsored laws dealing with health, child abuse, family violence, solar energy, unsafe ingredients in cosmetics, and others, she is particularly active in the neglected area of mental health. She calls improving mental health care "a personal issue" stemming from the loss of a sister to suicide.

She sponsored AB509 to create a state Office of Suicide Prevention that Gov. Arnold Schwarzenegger later established by executive order. She's also authored legislation that would establish suicide-prevention hot lines; require minimum training and continuing education in suicide prevention for therapists, psychiatrists, psychologists and social workers; and require insurers to cover mental health care.

Hayashi also introduced a bill in response to an issue in Hayward that would require the California Energy Commission to obtain the approval of local governments before allowing the construction of second or third thermal power plants in a city.

Constituents and campaign donors should also know that she has used campaign funds to retire more than $25,000 of the campaign debts of her husband, Dennis Hayashi. He's sought several public offices in recent years and is currently seeking an Alameda County Superior Court seat.

Her opponent in the June 3 primary is Jason Teramoto, a Castro Valley native, who has attended Chabot and Las Positas community colleges and the University of California, Berkeley.

An earnest young man of 33, Teramoto is a former president of the California Student Association of Community Colleges and was a congressional aide to Rep. Pete Stark from 2002 to 2005.

He advocates "universal, affordable, accessible" health care, opposes privatizing state parks and prisons, supports strong public education and strict environmental standards as well as the development of "green collar" industries and jobs.

The June 3 winner faces Republican Lou Filipovich in the November election.

May 1, 2008

ALCOHOL OFFENSE REPORTING FOR PILOTS

ALCOHOL OFFENSE REPORTING

Student pilots learn operating rules like the "eight hours from bottle to throttle" mnemonic to help remember minimum required intervals. Other details of this subject on which you may be tested include how and when pilots must report alcohol-related motor vehicle violations to the FAA. There are two reporting requirements. Complying with one does not satisfy the need to make the other report—nor are they made to the same FAA officials. Do you know the requirements?

One report is made on an application for an airman medical certificate. See the instructions page for "convictions or administrative action history."

A less-understood reporting obligation appears in the Federal Aviation Regulations (FARs). It requires reporting a "motor vehicle action" not later than 60 days after the motor vehicle action is taken. "One of the distinctions is that this notification must be made to the FAA within a short time after the event occurs and may not wait until your next medical examination. In addition, the notification must be made to the FAA's security office, not the medical office; thus, disclosing this information on the medical application form, which you may have to do also, does not discharge your responsibility to report the information under FAR 61.15," Kathy Yodice explained in the July 2001 AOPA Flight Training's "Legal Briefing" column. See the column for a definition of a "motor vehicle action."

What happens after a report? "The effects of a report, or a failure to report, are serious. If a pilot does report a motor vehicle action, it will automatically trigger a review of the pilot's file to determine if the pilot continues to be eligible for his or her airman certificate (two or more in a three-year period and you are out) or medical certificate (a history of alcoholism). If a pilot fails to report even one conviction or administrative action, that is grounds for suspension or revocation of any pilot certificate or rating he holds. It is also grounds for denial of an application for a certificate or rating for up to one year after the date of the motor vehicle action," John Yodice said in the May 2002 AOPA Pilot column "Pilot Counsel: Flying and Driving."

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