San Diego Criminal Lawyers Blog

May 4, 2016

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

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

April 6, 2016

Justice Sought for Robert Branch: Protests Against DA’s Bias Against Minorities

by David M. Boertje

In the latest incident of controversies involving the San Diego Police Department and accusations of bias against minorities, several community leaders protested at the preliminary hearing of Robert Branch at the Hall of Justice Thursday, March 10. Back in May of 2015, 25 year old Robert Branch, a security guard at the time, was accused of assaulting a sheriff’s deputy Paul Ward after an apparent road-rage incident. Ward is described as a “loose cannon,” by his colleagues.

During the incident in question, Ward allegedly swerved to block Branch’s car from passing on an El Cajon onramp, sending Branch’s car into the shoulder lane. Ward then followed Branch for nearly ten miles. When Branch exited near San Diego State University, Ward pulled over Branch’s car in an unmarked and unidentified police vehicle. He was not in uniform, so Ward began recording with his cell phone. That led to Ward trying to restrain Branch, and Branch was charged with resisting arrest. Branch subsequently filed a civil suit for illegal detention.

Protestors with the National Action Network has accused District Attorney Bonnie Dumanis of selective prosecution of minorities intended to further her political ambitions.

Resisting Arrest in California

Under California Penal Code § 148(a)(1), one may not willfully resist, relay, or obstruct an enforcement officer or emergency personnel from doing their job/ performing his or her duties. This is a vague definition which often leads to false allegations. Oftentimes, a cop will charge you simply for being dismissive, uncooperative in their eyes, or rude.

A conviction of resisting arrest is a misdemeanor punishable by up to one year imprisonment and a $1,000 fine.

Legal Defenses

Similar to battery on a peace officer, physically resisting an unlawful search, arrest or detainment or defending yourself against excessive force is does not constitute resisting arrest. Likewise, reasonable self-defense against excessive force does not constitute assault or battery on a police officer. Another legal defense is that it was a false allegation. You will need to prove that you did not intend on obstruct a cop’s duties.

Because these type of cases often turn to ‘he said/she said’ against police, it is always recommended you record your encounters with police (you do not even have to tell them you are recording if you fear retribution) and gather witnesses. Continue reading

April 1, 2016

Oregon Man Who Shot a Radio-Collared Wolf Pleads Guilty

by David M. Boertje

In our neighboring state, a 26 year old Oregon hunter named Brennon D. Witty has plead guilty to illegally shooting a radio-collared gray wolf in Grant county. He was out hunting for coyotes on private property when he shot and killed the radio collared wolf named OR-22. While gray wolves are currently delisted under the state of Oregon’s Endangered Species Act (ESA), gray wolves still remain protected under the federal Endangered Species Act. Additionally, the shooting happened one month before the wolves were delisted under the state ESA. As a result, Mr. Witty has pled guilty to the “taking” of a threatened or endangered species. Because of a plea deal, a companion charge of hunting with a centerfire rifle with no big game tag was dismissed.

Witty was fined $1,000 and ordered to pay $1,000 of restitution to the Oregon Department of Fish and Wildlife. The rifle he used to illegally kill the endangered wolf was confiscated by the state. He faces zero jail time.

It is a Federal and State Criminal Offense to Kill Endangered Species