David M. Boertje

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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.

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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?

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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

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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)

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In a ruling that even other lawyers, prosecutors, the nation, and judges are calling completely “absurd,” a conservative Oklahoma court has ruled that rape cannot happen if the victim is unconscious. A court rejected the prosecution of a teenage boy in Tulsa because his 16-year-old accuser had been intoxicated to the point of unconsciousness. In its ruling, the Court of Criminal Appeals stated Forcible Sodomy cannot occur when a victim is so intoxicated as to be completely unconscious at the time of the sexual act. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language,” Judge Hudson said.

Specifically, Oklahoma’s rape law does not mention unconsciousness or intoxication as an element of the crime. Back in 2014, a group of high school students gathered in a Tulsa park to drink and smoke marijuana. Witnesses said the girl had been drifting in and out of unconsciousness and had been unable to walk. The defendant took the girl to his car, and he was then accused of forcing her to perform oral sex. The boy said the ensuing oral sex was consensual, but the victim told the police she did not remember anything else after being at the park. The defendant was initially charged with first-degree rape and forcible oral sodomy, but both charges were dismissed at trial.

Forced Oral Sex is Rape in California

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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

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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

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Last year California became the third state in the country to pass legislation (Assembly Bill 96) making the ivory market there illegal, which is one of the three largest ivory markets in the United States. However, in December of last year, a “nonprofit” called the Ivory Education Institute, swiftly filed suit in California Superior Court claiming that the bill is preempted by federal law, violates the dormant commerce clause, and also constitutes a taking by effectively destroying the market for ivory in California. The case is currently making its way through the court system.

Compliance with Wildlife Laws: It is a Crime to Own, Sell, or Transport Ivory Products in California

While A.B. 96 is a new take on banning a wildlife trafficked product, most people do not realize that ivory is already illegal to purchase or own in California. This means that it is a crime to own ivory-based products.

Current California law allows the purchase and sale of ivory imported prior to 1977, but it has been nearly impossible to enforce any bans because most people cannot tell when and where a piece of ivory was procured. In fact, last year, the Natural Resources Defense Council commissioned a study concluding that 90% of the ivory for sale in California was probably illegal under existing law. Many ivory dealers have been falsely aging their ivory to make it appear to look old.  

AB. 96 closes the ‘1977’ loophole by banning the “sale, offer for sale, possession with intent to sell, and importation with intent to sell “[any’] ivory of elephant, mammoth, narwhal, whale, walrus, and hippo.” It also includes rhinoceros horn products. Fish and Game Code §2022. This has the effect of banning nearly all ivory going in and out of California. The law also increases penalties to up to $50,000 or twice the value of the goods, “whichever is greater,” and up to one year imprisonment. The law contains limited exceptions for antique musical instruments that have proper documentation showing they’re old and antique objects comprised of less than 5% ivory.

While A.B. 96 is one of the most monumental laws to protect endangered species, California also has some pretty strong anti-poaching laws. Poaching is defined as “the illegal take of fish and wildlife” which can occur during or out of hunting season, or fishing. For example, the penalty for poaching deer in California is a maximum of six months in county jail and a $1,000 fine. Continue reading

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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

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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

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