San Diego Criminal Lawyers Blog

May 11, 2016

Ex-CEO for Massey Energy Sentenced to One Year for Blast that Killed 29 Men

A federal judge, Irene Berger, sentenced former Massey Energy CEO, Don Blankenship, to one year in prison and a fine of $250,000 for his role in one of the deadliest mine explosions our nation has ever witnessed. The judge said Blankenship was part of a “dangerous conspiracy,” and it is the maximum penalty she could have doled out for a misdemeanor conspiracy to violate mine safety standards charge. The judge had already ruled that Mr. Blankenship would not have to pay $28 million in restitution to Alpha Natural Resources for cleanup costs.

The explosion at Upper Big Branch Mine (owned by Massey Energy) occurred six years ago on April 5, 2011. It killed 29 men, and Massey Coal was found responsible for the explosion by a state-funded independent investigation. The Mine Safety and Health Administration (MSHA) in its final report concluded that immense safety violations contributed to the disaster, and handed out 369 citations, assessing $10.8 million in penalties. The disaster was the worst we have seen in four decades.

Mr. Blankenship was convicted last December by a federal jury on one misdemeanor count of conspiring to violate federal mine safety laws, while being acquitted of more serious counts of lying to investors and regulators. Blankenship had maintained no culpability throughout the trial and investigation process, while his attorneys contended he should receive probation and a fine, at most. While it was the maximum sentence available, victims of those who were killed contend that the punishment still does not fit the crime.

Mr. Blankenship is the first chief executive of a major U.S. corporation to be convicted of workplace safety related charges following an industrial accident.

Criminal Penalties for Workplace Safety Violations

The example above is just one illustration of how one disaster can touch upon the criminal law, wrongful death, and employment law fields. Under both federal and state law, employers are required to provide a safe working environment for employees. There are strict penalties for violations.

California specifically allows for criminal prosecutions arising out of workplace deaths. Specifically, Section 6425 of the California Labor Code authorizes penalties for supervisors who have responsibility for the “direction, management, control or custody of others” to be fined up to $100,000 and imprisoned for a year when there is willful violation of any occupational safety or health which results in the death of any employee. See CA Labor Code § 6425. The California Occupational Safety and Health Administration maintains a list of significant violations that have been cited on their website. Additionally, the California Occupational Safety and Health Act is stronger than the federal OSHA law and also provides for steep penalties. 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

April 22, 2016

Unpaid Traffic Tickets in California: Can I Go to Jail?

by David M. Boertje

Last year, U.S. Attorney General Loretta Lynch went on record as in a speech at the White House, actively opposing judges imposing traffic fines, calling such “the criminalization of poverty.” She cited the case study of Ferguson, in which citizens who have attempted to pay the ever-increasing fines of their traffic tickets and were subsequently arrested for not being able to come up with the money associated with late fees.

Fines Increase With Time

If you have received a parking or traffic ticket, you can bet that the fine will increase if it is not paid within the time specified on the ticket (usually 30 days). State and local governments fundraise through driving and parking tickets and they have no incentive to keep the prices down in the interests of fairness.

April 20, 2016

Law Enforcement Investigators Seek out Private DNA Databases

by David M. Boertje

While the allure of exploring one’s family tree and lineage has meant big business for some companies, two major that research family lineage (for a fee) claim that over the last two years, they have received law enforcement demands for genetic information stored in their DNA databases. Ancestry.com and their competitor 23andme, hold the genetic information of hundreds of thousands of people. They have received five requests from law enforcement agencies for the DNA of six people.

Ancestry.com did turn over one person’s data for an investigation into the murder and rape of an 18-year-old woman in Idaho Falls, Idaho. 23andme has received four other court orders but have been successful in persuading investigators to withdraw the requests.

Privacy advocates and experts are concerned that genetic information turned over for medical, family history research or other highly personal reasons will be misused by investigators, and that this new trend could start a slippery slope.

April 15, 2016

Criminal and Constitutional Rights of Corporations: Apple’s Example

by David M. Boertje

In an unprecedented case, Apple, the ever-popular electronics company, has argued that the FBI is violating its constitutional First amendment rights. In a 36-page legal brief submitted in the District Court: Central District of California, Apple made its first formal rebuttal to a court order ordering Apple to code a software that would make it easier for the government to crack open the phone of the San Bernardino gunman, Syed Farook.

Apple’s legal team, led by George W. Bush’s former solicitor general, Theodore Olson, claims that computer code is speech, which cannot be compelled. Compelling Apple to write a code it does not want to violates the first amendment. Moreover, Apple has accused the federal government of being indifferent to privacy concerns and being dishonest in how legally valid the request was.

Lastly, Apple has claimed that the order violates its fifth amendment due process protections by leaning too heavily on the archaic 1789 All Writs Act. Essentially, the Act allows courts to issue whatever legal orders they need to issue in order to do their jobs. See 28 USC §1651. Essentially, the company claims that forcing them to write a special code for the FBI is burdensome, illegal, and unfair.

April 13, 2016

Police are Now Pepper Spraying Trump Protesters

by David M. Boertje

As if this year’s race to the White House could not get any more dramatic or contentious, Kansas City police in Missouri pepper sprayed a group of protestors outside Donald Trump’s rally. According to the Kansas City police, they did it to break up two large groups of people who were ready to fight. They also claimed that they arrested two people for failing to follow the law. Meanwhile, inside the event, Trump was continually interrupted by protesters, who were quickly escorted out by police. The move by police marks yet another moment of conflict at a Trump rally. Chaos ensued earlier in the same week when he canceled his campaign stop at the University of Illinois in Chicago after protesters flooded the pavilion.

Pepper spraying protestors is a rare occurrence when it come to presidential campaign events, but it is becoming more and more common in this election cycle. This week, the NYPD pepper sprayed a crowd of protestors that were marching towards the Trump International Tower. There were thousands of protesters walking from Central Park to the Trump tower.

Trump has said during his Kansas rally that he wants charges filed against all the people protesting him. In addition to police force, his rallies bore witness to violence in Arizona and Ohio, and his campaign is notorious for violent and racially charged rhetoric.

April 8, 2016

Lincoln High School Fight Leads to Dispute Over Discipline

by David M. Boertje

As the result of a fight at Lincoln High School in San Diego, the 16-year-old son of local rap artist Brandon “Tiny Doo” Duncan faces four felony juvenile charges: assault on a police officer, assault with force likely to cause great bodily injury, violent resisting of a police officer and assault on a school officer. Another student faces a felony assault charge against a police officer. A third one faces an additional misdemeanor theft charge for allegedly taking the officer’s police radio and keys during the scuffle. The fight was started when the boys started play fighting during lunch period. That led to a real fight.

Bashir Abdi of El Cerrito, the cop on campus was reported to be ‘seriously injured.‘ He tased and pepper sprayed the students, and is now suing the students for over $25,000 in damages in medical expenses, property damage, and other losses.

None of the students will be expelled, and the judge allowed all the students to go home instead of staying in ‘juvie.’ They will have electronic monitoring for the time being. While some have called the punishment against the students fair because it was not as strict as it could have been, some in the community, including the NAACP, have called for the District Attorney’s Office to drop all charges and stop over-policing Lincoln High.

Juvenile Felonies

Juvenile delinquency court is a court dedicated to adjudicating felony and misdemeanor crimes allegedly committed by minors, and it ranges from small charges like truancy to more serious ones like felony charges. The goal is to rehabilitate children and not to imprison them.

Under certain circumstances however, minors alleged to have committed one of 30 crimes listed in California Code § 707(b) also can be tried in adult court. These include: murder, arson causing great bodily injury, assault with great bodily injury, rape, robbery, kidnapping for ransom, etc.

Prosecutors have the sole discretion as to how to prosecute 707(b) offenses. They can either file directly in adult court, file in juvenile court, or they can initiate a “fitness hearing” and have a judge decide the issue.

In these situations, prosecutors tend to file charges as adults if the minor has both allegedly committed a 707(b) crime and previously committed another felony or used a firearm during the crime. Continue reading