Archive | August 2013

From BLT – Nixon’s Tapes reminds us politics has been involved with Judicial Nominations for a long time

On Tape: Richard Nixon Talks Judicial Nominations

If interested in listening to the tapes, the Nixon Library has them online.

Think the recent nominees to the U.S. Court of Appeals for the D.C. Circuit face some nasty partisan rancor in the Senate confirmation process? Check out the most recently released audio recordings of Richard Nixon’s strategy on judicial selection.

The 1973 recordings from the White House and Camp David, about 340 hours long, contain the kind of salty, profane and anti-Semitic language that has punctuated previously released Nixon tapes, according to NBC News.

Nixon discusses future judicial nominations during a July 12, 1973 conversation with chief of staff Al Haig, according to the five reporters who reviewed the tapes. Nixon insisted on finding “meanest right-wing” nominees and says, “No Jews. Is that clear? We’ve got enough Jews. Now if you find some Jew that I think is great, put him on there.”

That sort of attitude might be relegated to history, but politics are still very much alive in the nomination and confirmation process, specifically now with President Barack Obama’s three simultaneous nominees to the D.C. Circuit.

A confirmation hearing for the first of those nominees to move through the process, Akin Gump Strauss Hauer & Feld partner Patricia Millett, turned into a sort of open discussion of the long-running feud when it comes to judicial appointments.

“You find yourself in the midst of a broader battle. And a battle on issues many of which are unconnected to your professional background qualifications, but issues sadly that have consumed the D.C. Circuit for decades,” Senator Ted Cruz (R-Texas), said during the July hearing.

“There is a lot of political games when it comes to judicial nominations, both sides have decried the political games,” Cruz said during the committee hearing. “But unfortunately the D.C. Circuit has been a battleground on both sides, for the politicization of judicial nominations.”


New trial ordered after juror is overheard at bar using racial slur to describe defendants

Posted Aug 23, 2013 12:15 PM CDT
By Molly McDonough

Owners of three Mexican restaurants in Maine who were convicted on charges of employing undocumented workers will get a new trial after a juror was overheard in a bar using a racial slur to refer to them.

The restaurant owners—Guillermo Fuentes, 37, of Westbrook and Hector Fuentes, 39, of Waterville—were found guilty in federal court in March of conspiracy, harboring undocumented aliens for profit, and aiding and abetting document fraud, the Portland Press Herald reports.

But in an order this week (PDF), U.S. District Judge D. Brock Hornby granted the men a new trial and set a trial date of Oct. 7 after a defendant in another case overheard a juror use a racial slur to describe the Fuentes brothers while the trial was ongoing.

An acquaintance of the juror reported to a probation officer that he heard a juror refer to the defendants as “guilty wetbacks” while at the Eagles Club in Portland during the second day of trial.

Judge Hornby interviewed both the person who overheard the slur and the juror. At first the juror denied using the phrase, but later admitted he’d said it, but asserted he only did so after the trial. Judge Hornby chose to believe the probation supervisee and ordered a new trial.

In his ruling, Judge Hornby said the juror’s comment, which the judge believe was expressed beyond doubt, demonstrated that, “at that early stage of the trial this juror had already made up his mind that the defendants were guilty, and that ethnic stereotyping affected his judgment.”

In their retrial, the brothers face up to 10 years in prison and hundreds of thousands of dollars in fines if found guilty of employing undocumented workers. At their first trial, workers testified they worked 13 hours a day, six or seven days a week, with only one two-hour break, the Press Herald reports. The workers testified they were paid $300 to $500 a week.

From White Collar Professor Blog on Daubert Claim

11th Circuit Reverses Health Care Fraud Conviction

In an unpublished opinion by the 11th Circuit, the court  in United States v. Reddy reversed and remanded a conviction coming out of a 7 day trial that started with a 37 count Indictment and had convictions for all but five wire fraud counts.  This health care case included counts of mail fraud, wire fraud, health care fraud, and falsifying records in a federal investigation.  At the heart of the reversal is a Daubert claim. Looking at the proposed expert’s qualifications, reliability of the methodology, and relevance, the cout found that the error was not harmless in that what the expert “had to say about his peer review and accuracy of the work performed by” the accused “was highly probative and would have likely been helpful to the jury.”

The court did note that the Indictment should not have been dismissed premised upon another argument made by the defendant. The court said that Section 1347 is a federal offense and “the underlying conduct must have an interstate nexus or other ‘jurisdictional hook.'”  But the court noted that the “Indictment’s language generally tracks the statutory language” and therefore “is sufficient to withstand a motion to dismiss.”

The defense in this case was handled by the Altanta, Georgia law firm of Kish and Lietz.


BLT – D.C. Court Reverses Gun Conviction Over Urination Stop

In late November 2010, a District of Columbia police officer approached a man he suspected of peeing in an alley. It turned out the man hadn’t urinated, but the encounter ended with the man being searched and charged with possessing a handgun the officer found in his jacket. Today, the District of Columbia Court of Appeals reversed his conviction, finding the officer violated his Fourth Amendment rights.

A divided three-judge panel found the officer should have stopped his encounter with the defendant, Ernest Ramsey, once he no longer suspected Ramsey of committing a crime – in this case, public urination. The officer’s actions after that point-running Ramey’s name and birth date through a police database and then searching him-were unlawful, the court found.

Absent “reasonable articulable suspicion or probable cause,” the police can’t detain individuals to check their information in the police database, said Judge Phyllis Thompson, writing for the majority. Senior Judge Vanessa Ruiz wrote a concurring opinion saying the officer shouldn’t have stopped Ramsey at all, while Judge John Fisher dissented, saying he would have upheld the conviction.

After Ramsey was arrested, he moved to suppress evidence of the gun. At the suppression hearing, according to today’s opinion, the officer testified he was on an evening patrol when he saw Ramsey go into an alley. The alley led to a park that was closed after dark and wasn’t near homes or businesses. The officer said the alley was used for urination, drug sales and other crimes.

The officer said he saw Ramsey standing in front of a wall with his pants zipper down and hands near his groin area. The officer didn’t see Ramsey peeing or observe any evidence he had already urinated. When the officer asked Ramsey what he was doing, Ramsey allegedly replied, “Man, I was about to use the bathroom.”

Ramsey walked out of the alley with the officer, who asked for Ramsey’s identification. After giving Ramsey’s information to a police dispatcher to check, he was mistakenly told Ramsey had an outstanding bench warrant. Ramsey agreed to be searched and the officer found a handgun in his jacket pocket. Thompson said it was appropriate for the office to ask for Ramsey’s identification, but that he crossed the line by running the warrant check.

“At that point, we conclude, because appellant would not have felt free to leave, the encounter became a seizure — for which Officer [Kevin] Lally no longer had reasonable, articulable suspicion,” Thompson said. Lally was the arresting officer.

Ruiz, in her concurring opinion, agreed with the reversal, but disagreed that the officer had reason to stop Ramsey at all. In 2010, public urination wasn’t explicitly a crime under the city’s disorderly conduct law; that changed in 2011. To legally stop Ramsey for disorderly conduct in 2010, the judge wrote, “he had to be posing some actual or potential threat to public order.” Given that Ramsey was in a secluded alley, there was no immediate threat of offending anyone, and he wasn’t exposing himself, the officer lacked “reasonable articulable suspicion,” she said.

Fisher, on the other hand, wrote that even before the disorderly conduct laws changed in 2011, the officer “was not required to shrug his shoulders and walk away” when he believed Ramsey had urinated or was about to do so. The judge cited case law holding that once the officer had reason to stop Ramsey, checking his identification and running a warrant check were “basic police practices.” Fisher said police couldn’t “unduly prolong” a stop, but the entire encounter in Ramsey’s case only lasted a few minutes.

Ramsey’s lawyers, Washington-area solo practitioners Kenneth McPherson and Gregory Gardner were not immediately available for comment. A spokesman for the U.S. attorney’s office also couldn’t be reached.

Man Granted New Trial in Child Sexual Abuse Case

By Published: August 13, 2013

A federal judge this week threw out the conviction of a 66-year-old Long Island man found guilty in 2008 of molesting his granddaughter and two of her friends after defense lawyers investigated a serial number on the back of a photograph that refuted a key portion of the prosecution’s case.

Judge Arthur D. Spatt of Federal District Court in Central Islip, N.Y., ruled on Monday, after five years of litigation in three different courts, that the convicted man, Thomas F. Green of Selden, had been deprived of a fair trial because of ineffective assistance by his lawyer at the time. In a 44-page order, Judge Spatt wrote that the evidence introduced by prosecutors at Mr. Green’s trial in Suffolk County had been poorly investigated by Mr. Green’s defense lawyer and sent the case back to the state court for a new trial.

Mr. Green, a construction contractor, was initially accused of molesting his granddaughter when she was 7 years old, along with four of her friends, each of whom was younger than 10 when the abuse was said to have begun. According to the prosecution, the abuse began in 1998 and continued intermittently for the next few years at Mr. Green’s home during sleepovers and outside the home at local eateries like a Carvel ice cream shop.

The main witness for the prosecution, one of the four friends, identified as B.M., said that she had waited until 2006 to accuse Mr. Green, in part, because she had learned from watching the television show “Law & Order: SVU” that appearing in court was “a big responsibility,” especially for a young girl, according to court records. She said not only that had Mr. Green abused her, but also that she was present when he tried to molest his granddaughter.

Although Mr. Green’s granddaughter testified that she herself had not been abused — and, in fact, had not known the other girls until at least 2000 — the prosecution introduced evidence corroborating B.M.’s account, including two photographs. One was of the granddaughter and B.M. sitting on Mr. Green’s front porch in Halloween costumes and was said to have been taken in October 1998. The other was of the two at Coney Island, and was still housed in a souvenir frame bearing the date June 1998.

The friend, in her testimony, said Mr. Green had given her an educational toy she called a Turbo Twister Speller as a gift in 1999.

In his own turn on the stand, Mr. Green denied having abused any of the girls, adding that he did not understand why they had accused him and “was sorry that they felt this way.” He testified that B.M. was a “hypersexual” girl whom he had once caught masturbating at an early age. He denied having known any of the girls before 2000, but was convicted of sexually abusing the main witness and another friend, and of the attempted sodomy of his granddaughter.

After his conviction, Mr. Green hired Ronald L. Kuby, the well-known Manhattan defense lawyer who for years has been trying to exonerate another defendant, Jesse Friedman, in another child sexual abuse case on Long Island. Mr. Kuby in turn hired a private detective, Jay Salpeter, who within a few months’ time — and “with very little effort,” as Judge Spatt noted — made a few discoveries that upended the case.

First, Mr. Salpeter found a serial number on the back of the Coney Island photo and learned from Polaroid, which manufactured the film, that it had been taken in 2000, despite B.M.’s testimony and the date on the souvenir frame. In the Halloween photo, one of the girls was wearing a sweatshirt with a logo reading “Princess University.” Mr. Salpeter determined that the brand had not been trademarked until 2000.

Moreover, Mr. Salpeter figured out that the educational toy, Turbo Twister Spelling, was not produced until at least a year after B.M. had claimed to have received one from Mr. Green. He finally determined, with a simple phone call to the show’s producers, that “Law & Order: SVU” was not on the air when B.M. claimed to have seen it.

In its own appellate filing, the Suffolk County district attorney’s office acknowledged that some of the evidence it had introduced at trial was misdated or erroneous, but said that did not mean Mr. Green had had ineffective counsel at his trial, and that it did not prove his innocence. A state appeals court agreed, but that decision was effectively overturned by the federal court ruling on Monday.

Bob Clifford, a spokesman for the district attorney’s office, said the decision was being reviewed by the office’s appellate bureau and that a decision as to how to proceed would be made in the next few weeks.

Mr. Green, meanwhile, remains in prison, in the fourth year of a 35-year sentence, “but he is packed,” Mr. Kuby said.

“Sometimes the process is long, excruciating and filled with defeat until someone in a black robe finally pays attention,” Mr. Kuby said on Tuesday. “It shouldn’t have taken this long and a lot of people who should have known better didn’t do anything about it.”

A Case To Watch

Local defense attorney indicted

Prosecutor says lawyer refused to turn over evidence

By Shane Benjamin Herald staff writer

A criminal defense lawyer in Durango has been indicted by a local grand jury on suspicion of tampering with physical evidence in a murder investigation.

Brian Schowalter appeared Tuesday in 6th Judicial District Court in Durango to be formally advised of the felony charge.

Ten criminal defense lawyers sat behind him in an apparent show of support.

The court released a partial indictment Tuesday that contains little information about the facts of the case.

Schowalter is accused of being in possession of an original letter that was considered to be evidence in a homicide investigation involving his client, Shanice Smith, who pleaded guilty to robbery and accessory to murder and was sentenced in February to eight years in prison.

He is suspected of refusing to turn over the evidence, making it unavailable for use in a criminal proceeding, a violation of the law, according to the indictment.

Schowalter declined to comment for this story.

His Denver defense lawyer called the tampering charge “outrageous.”

“This appears to be an effort to interfere with a lawyer’s duty to his client and to prevent ethical but aggressive representation in criminal cases,” said Mike Root, who represents Schowalter.

District Attorney Todd Risberg obtained the indictment through a La Plata County grand jury.

Risberg declined to comment about the facts of the case other than to say Schowalter had evidence and refused to turn it over. The grand jury did an investigation to locate the evidence.

“He refused to tell us whether he had it, so we had to use a process to find the letter,” Risberg said.

Durango defense lawyer Tom Williamson, who attended Tuesday’s hearing, said in 28 years of criminal litigation, he has never seen a district attorney prosecute an attorney for alleged conduct that occurred during a case they both litigated.

If Risberg thought Schowalter did something wrong, he could have filed a grievance with the Colorado Attorney Regulation Committee, Williamson said. He suggested that Risberg’s inexperience played a roll.

“This is a heavy-handed approach, and it appears to be an attempt to intimidate attorneys who represent their clients against Mr. Risberg’s clients,” Williamson said. “Perhaps Mr. Risberg’s lack of litigation experience explains his decision to proceed in this manner.”

Risberg said he used every means available to get the evidence from Schowalter, and he refused to turn it over and denied he had it.

He called it an “uncomfortable” situation.

“I like Brian. But I have to do the job, and that’s part of the job,” Risberg said.

He said he doesn’t worry about what Williamson thinks.

“Defense attorneys may not like it, but they’re not allowed to hide incriminating evidence,” Risberg said.

A subpoena was filed to obtain the letter, but Schowalter refused to produce it and asserted his Fifth Amendment rights, Risberg said.

Risberg’s office has recused itself from the case. Instead, it will be prosecuted by the 12th Judicial District, which includes Alamosa.

Local judges also recused themselves from the case, which means it will be assigned to a retired judge or transferred to another judicial district.

Grand juries are independent investigative bodies that have broad investigative powers, including the ability to call and subpoena witnesses. They operate in secrecy. The proceedings are closed to the public, witnesses take an oath to keep their testimony secret and the identity of members serving on the jury are kept secret.

Risberg convened the grand jury in 2011, the first time anyone can remember a grand jury being formed in La Plata County.

“The grand jury heard the facts, and they determined he committed a crime,” Risberg said. “I think that’s important to remember.”

He added: “I would have much rather had this resolved voluntarily, but if someone won’t turn over evidence, we’re obligated to use whatever means necessary to get the evidence. If we know a defense attorney has the evidence and he denies having it and refuses to turn it over, we have to do something about that.”

Williamson said it is common knowledge in the legal community that grand juries will indict almost anybody. Only prosecutors present evidence; there is no defense. Jurors must find “probable cause” to indict, a much lower burden than “beyond a reasonable doubt.”

A New York state chief judge once famously said that prosecutors have so much control over grand juries that they could convince them to “indict a ham sandwich.”

“It sends a chill through attorneys when they see the district attorney will not only be willing to grieve you, but he will use whatever criminal power he’s got to get his way in a case,” Williamson said. “I think it’s an abuse of his authority.”

4thAmendement Blog – E.D.Cal.: No discovery granted for 2009 GPS placement

Permalink 09:01:15 am, by fourth,
E.D.Cal.: No discovery granted for 2009 GPS placement; any suppression issue’s a loser

Defendants get no discovery on the issue of 2009 placement of the GPS device on their car because they can’t win on the GPS issue anyway because of Davis. Despite their best efforts to conjure up an argument, it won’t go anywhere. United States v. Arceo-Rangel, 2013 U.S. Dist. LEXIS 112785 (E.D. Cal. August 8, 2013):


Defendants do not contend that the officers who installed the tracker on Gutierrez-Valencia’s vehicle in 2009 acted inconsistently with Ninth Circuit law as expressed at the time in McIver and Pineda I. Instead, defendants argue that the magistrate judge should have granted their discovery request because the materials they sought would have shown that the government had sometimes requested warrants for tracking devices before the Supreme Court’s decision in Jones. (ECF 305 at 14.) According to defendants, the fact that the agents had ever acquired warrants to use GPS trackers during this time period, while neglecting to obtain a warrant for Gutierrez-Valencia’s vehicle, demonstrates that the agents did not objectively rely on McIver and Pineda I. (Id.)

Despite the reference in their brief to “objective” reliance, defendants’ argument actually asks the court to evaluate whether the government agents subjectively believed that they were reasonably relying on judicial precedent during the investigation. However, the officers’ subjective intent is irrelevant. See Davis, 131 S. Ct. at 2428; see also Herring v. United States, 555 U.S. 135, 145 (2009); Whren v. United States, 517 U.S. 806, 813-14 (1996). As defendants concede, the Ninth Circuit law at the time of the investigation allowed the agents to install the tracker on Gutierrez-Valencia’s vehicle without a warrant. Accordingly, the agents who installed the tracker had reason to believe that their actions did not violate the Fourth Amendment, meaning their behavior was objectively reasonable. The fact that agents may not have obtained warrants before installing trackers in cases with similar but distinguishable facts does not change the reasonableness of the agents’ actions in this particular case; it could only show that the agents’ subjective intentions varied between investigations. This is irrelevant to the analysis of whether the Fourth Amendment was violated. See Whren, 517 U.S. at 813-14 (declining to evaluate constitutional reasonableness of traffic stop by comparing officer’s actions to “usual police practices” because it asks the Court to determine if “it is plausible to believe that the officer had the proper state of mind”). Moreover, defendants have not disputed the government’s contention that agents consistently sought warrants only when seeking to install trackers on cars located in private places. (See ECF 306 at 21.)

Because under Davis, evidence obtained here through the GPS tracker device is not subject to the exclusionary rule, defendants’ discovery request would not support a motion to exclude and was properly denied by the magistrate judge. As this is a sufficient reason to uphold the magistrate judge’s ruling, the court therefore need not address his additional holding that Armstrong limits a Rule 16 motion to discovery of materials that are relevant to the prosecution’s case in chief, not a pretrial motion.