Criminal Defense

June 8, 2016

FBI Hid Surveillance Devices Around Alameda County Courthouse

It has been reported that once again the F.B.I. seems to be hiding planted microphones to spy on American citizens. Federal agents have planted hidden microphones and conducted secret video surveillance at Alameda County’s Rene C. Davidson Courthouse in northern California for ten months. They did not have a search warrant as required by the fourth amendment to be able to do so.

The FBI’s surveillance operation was part of an investigation into alleged bid rigging scheme at foreclosed property auctions where thousands of houses and apartment buildings were sold by banks. Defense attorneys for some of those accused of the fraud say these surveillance tactics violate their clients’ constitutional rights, along with anyone else’s whose conversations might have been recorded. They claim that speaking in public does not mean one does not have an expectation of privacy. Private conversations, especially in or near courtrooms, happen routinely amongst citizens and attorneys alike.

The FBI planted microphones in bushes, at a bus stop, on a pole, and inside vehicles near the auction site. A similar thing happened in San Mateo last year. Facing these allegatiosn of constitutional violations, government prosecutors in San Mateo had moved to withdraw the recordings as evidence at trial.

June 3, 2016

Civil Asset Forfeiture: The Newest Legal Threat You Have Never Heard of

by David M. Boertje

A new law that is causing a buzz in the state of California is S.B. 443 (Forfeiture of Controlled Substances). The bipartisan law, authored by Senator Holly Mitchell (D-Los Angeles) and David Hadley (R-Torrance) failed to pass the assembly floor back in September 2015, and was recently amended in the state senate on April 6. The proposed law would require a conviction of a crime regarding controlled substances in order for police to seize one’s money and assets on the grounds it was suspected drug money. It would also prohibit state agencies from transferring these seized funds over to a federal agency and receiving an equitable share of those funds. A Tulchin poll found that nearly 80% of California voters would support such a law.

Despite bipartisan support and nearly unanimous votes at every previous juncture, law enforcement departments had deployed a variety of lobbying efforts and scare tactics back in September to defeat the bill.

What is Civil Asset Forfeiture?

June 1, 2016

Riverside: Unmarked Police Vehicles Will Stay That Way

by David M. Boertje

Last month, officials from the city of Riverside announced that they will not be repainting some of their unmarked police vehicles back to the standard black and white. The idea was discussed at department meetings after City Councilman Mike Soubirous, who happens to be a retired California Highway Patrol officer, questioned why city police have more unmarked cars than marked vehicles. Out of the Riverside PD’s 345-vehicle fleet, 124 cars are marked, 195 are unmarked, and others are specialized vehicles.

Police chief Sergio Diaz has reportedly claimed cost to be a primary determining factor. It would cost $2.6 million to convert unmarked cars to marked ones, and he did not believe having more visible police cars would deter crime. The City Council did not dispute the Riverside PD and will not be taking any action.

It is Legal for Police to Use Unmarked Vehicles to Give Out Traffic Citations

May 27, 2016

20 Arrested as Crowd Turns Violent Outside Trump Rally in California

by David M. Boertje

Police in the Costa Mesa and Orange County area arrested 20 people protesting presidential candidate Donald Trump. Hundreds of protesters blocked traffic in the streets surrounding the area where Trump held a rally. Fights were seen breaking out and some chanted “Racists go home!” Others repeatedly yelled “Whose streets? Our streets!” It is reported that some people waved American and Mexican flags. It is reported that at least one police car had its windows smashed, another police SUV had its tired punctured, and a crowd unsuccessfully tried to flip a police car. Additionally, police claim one cop was struck in the head by a rock. Camera footage shows rocks being thrown at the cars trying to get into the Trump event. It is reported by the LA Times that it was mostly Latino activists present at the rally.

The next day, hundreds of protesters forced Donald Trump to leave his motorcade and cross a freeway while he was trying to get to the Republican debate in Burlingame. They also reportedly tried to storm the hotel where Trump was supposed to give his speech. California is the last state to vote in the Republican primary, and the contest that awards the most delegates. In this notoriously liberal state, it seems as though Americans have lost patience for what they view as the conservative racism and bigotry that Trump represents. Protests are expected to continue as Trump makes his way through California.

Malicious Mischief (Also Known as Vandalism)

May 20, 2016

Man Accused of Setting Man Ablaze Charged With Torture

by David M. Boertje

A man named Jose Ricardo Garibay, 26, is accused of dousing a stranger, 39-year-old Julio Edeza, with a flammable liquid in a busy Oak Park parking lot and setting him on fire. The victim Edeza has been hospitalized and is currently in critical condition. He was taken to UCSD Medical Center with burns covering most of his body.

Garibay was arrested near his home in the 6200 block of Estrella Avenue. He surrendered without incident, and according to police accounts, was “very matter-of-fact about [his] arrest.”

Earlier this week, Garibay pleaded not guilty to charges of attempted murder, aggravated mayhem, and torture. He is being held without bail and faces life in prison if convicted. Additionally, special circumstance allegations could be added if the victim does not survive. Investigators have not determined a motive for the apparently random attack and law enforcement do not believe the assailant and victim knew each other. A status conference was set for April 29 and a preliminary hearing for May 3.

The Crime of “Torture” in California

While it sounds like a crime associated with a federal terrorism statute, the state of California has its own law addressing “torture,” which was passed into law in 1990 by way of a California ballot initiative. See CA Penal Code § 206. CA Penal Code § 206 defines torture as:

Inflicting great bodily injury on another person,;
With the intent to cause extreme pain and suffering or permanent disability;
“For the purpose of revenge, extortion, persuasion or any sadistic purpose.”

It is not necessary for the perpetrator to intend to kill a victim to be able to be charged and convicted of torture. However, in California, if a murder is committed willfully using torture, it is then considered a “special circumstances murder,” which means an automatic life sentence with no possibility of parole. This means that if someone dies as a result of being tortured. even if you only intended to maliciously assault him, you will be looking a life sentence.

By itself, torture is a felony punishable by a life sentence and a fine up to $10,000. If you are convicted with torture, you will not be eligible to seek a parole hearing until at least seven years into your sentence. Continue reading

May 18, 2016

California Judge Orders Jetblue Attendant Held Without Bail on Cocaine Charges

by David M. Boertje

A federal judge in California, U.S. District Judge Andre Birotte, recently overruled a Brooklyn magistrate judge and ordered a flight attendant held without bail after she allegedly dumped a bag of cocaine and fled authorities at Los Angeles International Airport. This decision came after the judge in Brooklyn had set defendant Marsha Reynolds’ bail at $500,000. This means Reynolds must now remain in custody in New York until she is transported to California to face her drug trafficking charges.

Reynolds, a JetBlue Airways Corp employee, is accused of dropping a 70lb bag of cocaine when she was randomly selected for screening at LAX – taking off her heels and running away. Eyewitnesses said she had gotten nervous when she was selected and then made a phone call in a foreign language. LAX police soon found 11 packages of cocaine wrapped in cellophane inside one of the bags Reynolds left behind. The drugs are worth about $3 million.

Reynolds later turned herself in to authorities in New York. She was able to board a flight the next day to New York just by wearing her airline tag with her real name on it. This is because flight crews are subject to special security permissions, although they are still subject to random bag checks. In an embarrassing illustration of security breakdown, communication lapses, bureaucratic protocols, and special security privileges afforded to airline employees have contributed to Reynolds’ escaping law enforcement until she surrendered herself four days later at Kennedy Airport in New York.

When Can You Be Held Without Bail?

“Bail” is known as the amount of money you must post in order to be released from jail. Typically, when arrested, those who are being detained have the right to see a bail commissioner within 24 hours to either be given the chance to post bail, or be released out of one’s own recognizance, or his promise to appear in court. In determining bail, a judge or police officer will consider the seriousness of the charges against you, whether you have prior convictions or a record, or whether you pose a flight risk or public threat.

The Bail Reform Act of 1984 allows federal courts to deny bail to a defendant who presents a danger to any person or the community or poses a flight risk (also known as pretrial detention). Under the act, crimes of violence, murder, and drug offenses where the penalty is 10 years imprisonment or more, presume a defendant is dangerous, and able to be held without bail. Continue reading

May 6, 2016

Americans Show Up in Panama Papers

by David M. Boertje

In another scandal that has disgusted the entire nation, it is reported that the passports of at least 200 Americans show up in this week’s 11 million data leak. The “Panama Papers” is the world’s largest document leak and went public on April 3rd. The documents detail the offshore bank accounts of the world’s richest people who have hidden their money in Panama to avoid taxes and other reasons. Vladimir Putin for example, is linked moving over $2 billion through shell companies.

The Panama-based law firm Mossack Fonseca is accused of aiding the registration of offshore companies for Americans and many other Europeans who are now either accused or convicted by federal prosecutors of serious financial crimes, including securities fraud and running a Ponzi scheme. In some cases, the shell companies, which are inactive companies that only serve to move assets around, were part of the fraudulent activities.

Currently, the documents are being analyzed by the Internal Revenue Service and approximately 350 investigative journalists under the umbrella of the International Consortium of Investigative Journalists. Amongst the Americans involved were Robert Miracle of Bellevue, Washington. He had already been indicted for running a Seattle-area Ponzi scheme under his shell company, Mcube Petroleum.

What are Ponzi Schemes?

According to the U.S. Securities and Exchange Commission (SEC), a “Ponzi scheme is an investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors.” Fraudsters attract new money to make promised payments to earlier stage investors to give the appearance that they are investing in a legitimate business. They require a constant flow of new money because they have little to no legitimate business earnings.

Securities Fraud

In California, our state’s Supreme Court has said that the definition of a security needs to be decided on a case by case basis. Securities fraud is occurs when one induces investors to make purchase or sale decisions on the basis of false information. It is either a misdemeanor or felony, punishable by up to three years imprisonment/$1 million fine or five years imprisonment/$10 million fine. However, the California Corporate Securities Law of 1968 does not allow criminal penalties to be assessed unless the defendant broke the law ‘willfully.’ If you merely made a mistake and gave the wrong advice to an investor, you cannot be convicted. Continue reading

May 4, 2016

The U.S. Government Creates Fake University to Lure Fake Students

by David M. Boertje

According to a DOJ press release, brokers, recruiters, and employers from across the United States who allegedly conspired with more than 1,000 foreign nationals to fraudulently maintain student visas and obtain foreign worker visas through a “pay to stay” fake New Jersey college. The University of Northern New Jersey is a fake school made up by the Department of Justice with no teachers, no counselors, no curriculum, and no classes. It was just an office “staffed with federal agents posing as school administrators.”

The defendants were arrested in New Jersey and Washington by special agents with U.S. Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI) and charged with 14 complaints including conspiracy to commit visa fraud, conspiracy to harbor aliens for profit, and other offenses. The defendants operated recruiting companies for international students. Acting as recruiters, they solicited undercover agents to participate in a scheme to get F-1 student and H-1B skilled worker visas. They admitted to the undercover agents their clients would not take classes, and were getting a commission for obtaining visas.

Most of the clients were from China and India, and used the visas to get coveted jobs at Apple and Facebook. The feds are now working to terminate the nonimmigrant status for the foreigners involved in the scheme and deporting the participants. The government claims creating the fake university was not entrapment because those who tried to defraud the immigration system were already predisposed to criminal activity. The 1000 foreigners looking for visas were also willing participants.

What is Entrapment?

Entrapment can be generally defined as when law enforcement induces someone to commit a crime they otherwise would not have been likely to commit. The key, then, is that if you were already predisposed to criminal activity, it is not entrapment. See CA Penal Code § 647. This is based on the premise that reasonable law abiding citizens will say “no” when given an opportunity to commit a crime.

Entrapment is an affirmative legal defense, but you will have the burden to show that law enforcement was acting illegally. More importantly, the defense only applies to entrapment caused by law enforcement. The defense does not apply if private citizens not acting as a police agents convince you to commit a crime. Continue reading

April 29, 2016

Cliven Bundy’s Chosen Attorney Has Ethical Conflicts; Precluded From Case

by David M. Boertje

In the continuing saga of Cliven Bundy and his band of anti-government followers, Nevada’s chief federal judge Gloria Navarro has formally refused to allow nationally known conservative lawyer Larry Klayman join Cliven Bundy’s defense team. In a three page legal order, Navarro revealed that Mr. Klayman has some potential discipline issues with the D.C. Bar Association. She has that his disclosure in court papers claimed that no disciplinary action has been taken and the proceedings were likely to be resolved in his favor. This was “misleading and incomplete.”

According to court documents, his troubles with the Washington bar stemmed from three separate alleged conflicts of interest in litigation involving Judicial Watch after he left the organization as its legal counsel.

Klayman, the founder of the Washington-based public interest groups Judicial Watch and Freedom Watch, is known for his litigious strategy in pursuit of conservative issues. Bundy is now currently represented by Las Vegas attorney Joel Hansen, who is active in the ultraconservative Independent American Party of Nevada. He filed papers pleading for the court to allow Klayman to be part of Bundy’s defense team. Klayman is allowed to reapply to represent Bundy pending he submits documents related to those proceedings.

April 27, 2016

Lawsuit Alleges 30 Guns in Professor’s Workspace

by David M. Boertje

A Miramar College adjunct professor has filed a lawsuit against the school claiming he did not get a promised full-time faculty spot after he raised concerns about firearms that were missing or unregistered at the school. The school happens to have a firing range for the San Diego police academy. Jim Soeten is a part-time professor filed a claim with the school on February 5. It was rejected by the college on March 19, to which Soeten and his lawyer gave notice of a formal lawsuit.

Back in October 2014, another faculty member, Jordan Omens, was disciplined for bringing a firearm to a meeting (Omens was placed on leave after the incident). Soeten had also complained to the school that other faculty members were illegally selling ammunition to students. In his lawsuit, Soeten says that more than 30 firearms have been found by college officials in the office area and workspace that were not owned by the school. He also claims that one gun was found to be registered to former San Diego Police Chief and Mayor Jerry Sanders. The lawsuit further claims that Soeten was told to keep quiet about the unaccounted-for firearms.

Guns in Schools in California: Exemptions