Category Archives: Federal Crimes

Boston Bombing – A Fortuitous Event?

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On the anniversary of the Boston Bombing, April 15, 2013 in which three innocent victims were killed and nearly 300 others were injured, many are asking whether this was a fortuitous event, or calculated killings by terrorists using weapons of mass destruction. Even more compelling is the surfacing of information that one of the bombers has been linked to a triple murder in 2011 in which three individuals had their throats sliced. These insights raise a question as to whether the bombings last year could have been prevented had even only one of the radical extremists been arrested and convicted for the slayings in 2011.

Some commentators contend the government lacks the tools to prevent such horrific crimes to maintain the safety of our citizens. Others believe it may be politics and a lack of communication between agencies; they remind us of the 9/11 deaths they claim may have been prevented had the CIA and the FBI shared data bases and the substance of their respective investigations. The sad reality is that religious fanatics are rapidly increasing all over the world, and many in society are afraid to criticize under the veil of freedom of religion. Regardless how small in number they may be the fact remains the murders that have been committed have changed the way far too many people all over the world now have to live. Few will take issue with the fact we need to do more for the family members of those killed, other survivors and first responders, and to pay tribute to each and every one of them.No one disputes that we need to put a stop to senseless carnage.

Senate Committee Approves Eliminating and Reducing Certain Criminal Sentences

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On January 30, 2014, the Senate Judiciary Committee approved a bill that would abolish mandatory minimum sentences for drug offenders who do not have a prior criminal history, as well as reducing by 50% mandatory minimum sentences for specified nonviolent drug offenses. The proposed law among other things eliminates mandatory minimum sentences if there is a finding by the Judge that the defendant does not have any previous conviction for crimes involving a firearm, violence, terrorism, a sex offense, racketeering or conspiracy involving illegal drugs. It would also reduce mandatory minimum sentences from 20 to 10 years, from 10 to five years, and from five to two years. There would be no change lowering the maximum sentence.

Opponents believe this law could result in prosecutors being unable to curtail gangs and drug organizations (drug cartels, etc.). Moreover, it is argued that there are very few criminals in federal prison for only simple drug possession, and the rest are mainly drug dealers that are the subject of the bill.

Proponents site the overcrowding and excessive costs of our Federal prisons, the latter estimate being as much as $3 billion over 10 years. They also claim the current laws do not sufficiently distinguish career criminals from low level offenders, and further that nonviolent drug offenses only would be the subject of the new law if it is passed by the full Senate, and goes through the rest of the process in which new laws are made.

Former BP Engineer Convicted of Obstructing Justice

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In New Orleans today, there was a jury verdict after the U.S. Department of Justice charged Kurt Mix, a former BP engineer, of deleting hundreds of text messages from his iPhone, thereby thwarting the investigation of the 2010 BP oil spill in the Gulf of Mexico.

Although none of the top executives of BP have been charged with crimes, this corporate entity acknowledged its responsibility earlier this year by pleading guilty to manslaughter charges for the deaths of 11 workers; and thereafter, BP agreed to pay $4 billion in penalties.

Mix was part of the team of experts involved in the efforts by BP to stop oil from gushing out of their blown-out well using a technique called “top kill.” He had access to internal data about how much oil was actually flowing from the blown-out well. It was reported that Mix received 10 individual BP notices that he was obligated to preserve all of his spill-related records. One of the texts messages was an exchange with his supervisor in which Mix estimated there were about 630,000 gallons of oil spilling per day; this amount was actually about three times greater than the estimate BP disclosed to the public at the time. By deleting text messages, the BP engineer was destroying inculpatory evidence, which would be critical proof that would tend to establish guilt of BP and its agents and employees.

 The sentencing hearing is set for March 26, 2014, and Mix faces up to 20 years in prison for this conviction.

Los Angeles County Deputy Sheriffs Charged with Corruption and Civil Rights Violations

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Charges were filed yesterday that involve approximately 17 current and 2 former deputies who have been accused of beating inmates and visitors, falsifying reports, as well as obstructing justice, conspiracy and corruption. The criminal complaint and grand jury indictments contain, among other charges against the deputies, allegations that records were falsified, visitors to and inmates at the L.A. County Jail were unlawfully detained and excessive force was imposed. One of those charged was a Lieutenant who oversaw the safe jails program and another Lieutenant was responsible for investigating allegations of crimes committed by sheriff’s personnel. Three deputies were also accused of mortgage fraud.

The U.S. Attorney said “These incidents…. demonstrated behavior that had become institutionalized [and] shows how some members of the Sheriff’s Department considered themselves to be above the law.”

County Sheriff Lee Baca said he has made improvements to the Men’s Central Jail, such as a newly hired head of custody, reorganizing the command staff, and to create a database to track inmate complaints.

The fact remains that while there have been enhancements and changes to the L.A. County jails, and they have been under scrutiny for brutality and corruption, the ongoing investigations seem to have taken far too long to rise to the level for charges to be ultimately filed.

Did San Diego Sheriffs Use Excessive Force When They Killed a Suicidal Suspect?

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On December 2, 2013, the 9th Circuit Court of Appeals in the case of CHELSEY HAYES V. COUNTY OF SAN DIEGO, Case #09-55644 , heard this civil rights Complaint brought under the Federal statute 42 U.S.C. § 1983 and California law wherein a minor daughter alleged violations of her 14th and 4th Amendment rights and her deceased father’s 4th Amendment rights when San Diego County Sheriff’s deputies acted negligently in shooting and killing her father who allegedly was suicidal and wielding a knife during a response to a domestic violence call.

 In the underlying case, the Court said there was no evidence the sheriff’s fired their guns for any other purpose than self-defense and, therefore affirmed the District Court’s Decision by declaring there was no violation of plaintiff’s rights under the 14th Amendment. On the other hand, the Court reversed the lower Court after it determined a jury could conclude the use of deadly force by the sheriffs was not objectively reasonable and that under California law supported a basis for a wrongful death claim.

A compelling argument was made on behalf of Hayes that the sheriffs could have avoided the incident by obtaining more information about the suspect or requesting a psychiatric emergency response team (“PERT”) when the first deputy responded to a domestic violence call at a neighbor’s house and learned there had been no physical altercation, and before the second deputy arrived and they both entered the home. At that point it became a matter of whether the officers used excessive force.

The above reported Decision can be found at the following link: https://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/02/09-55644.pdf

 

What Evidence is Required to Establish Aiding and Abetting a Crime?

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On November 12, 2013, the U.S. Supreme Court in the case of Rosemond v. United States, #12-895, on Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit, heard oral arguments.

The underlying case involved the issue of whether the jury instructions were adequate and the offense of aiding and abetting the use of a firearm during a drug trafficking offense can be established by the mere fact an individual knew (he had foreknowledge) the principal offender had a firearm or there must be proof that the individual acted with actual intent to encourage &/or enable the use of the weapon by the accomplice and, therefore, there was actual intent to further the crime in question. The various U.S. Circuit Courts of Appeal have been divided on interpreting the law, although in California the Ninth Circuit requires purposeful intent.

This is a fundamental issue that has been raised in countless situations; for example, the driver of a vehicle (wheelman) &/or a passenger in a car is aware an accomplice is carrying a weapon during a bank robbery. Criminal defense lawyers have maintained that knowledge is not intent, and this individual needs to intend the gun be used by the accomplice. The government has argued in these cases that if one participates in a crime knowing his accomplice has a gun then that constitutes intent to facilitate; they maintain it is irrelevant if the person wants his accomplice to use it or not.  

Besides the disparity in standards of proof in the various circuit courts, the significance in the case at hand goes to the huge sentence enhancement imposed upon the defendant, namely 14 years instead of 5 years as a result of the disparity in the particular and minority tenth circuit.

The official transcript of the oral argument in the Rosemond case can be viewed at

https://www.supremecourt.gov/oral_arguments/argument_transcripts/12-895_8m59.pdf

Undercover Law Enforcement Operations

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On October 23, 2013, the 9th Circuit Court of Appeals in the case of UNITED STATES vs. BLACK, #11-10036, held a reverse sting operation by the government was not so outrageous and shocking to be barred by elementary principles of due process and fairness and, therefore, affirmed the U.S. District Court conviction of multiple defendants.

In the underlying case, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) used a confidential informant (CI) to obtain potential suspects to engage in a pre-planned robbery at a staged and fictitious residence as part of an ongoing sting operation. Thereafter, under the pretense of a robbery several individuals were arrested after being enticed to go to the fake stash house (a phrase used to refer to a house where weapons and drugs are hidden). One of the individuals, Cordae Black, was charged with, a jury found him guilty and he was convicted of using a loaded firearm as part of a drug trafficking offense along with conspiracy to possess cocaine with the intent to distribute. The 9th Circuit Court found the conduct of the government to be reasonable and affirmed the lower court ruling.

What is seriously problematic is the effort by the government to employ undercover operations to seduce and entice through deceit and persuasion potential suspects when there is enough criminal activity to stop through the use of clearly orthodox and universally accepted methodologies. Criminal defense attorneys often argue that law enforcement should not be permitted to induce others to engage in illegal conduct that is based upon a mere suspicion of prior criminal activity. Against this argument are court cases that have allowed law enforcement to use undercover investigations without suspicion to believe a person has already engaged in criminal activity at the time the police afford a suspect an opportunity to commit a related offense. Before it is prohibited, they maintain there must be an undue amount of coercion, threats and/or inducements made to another to break the law. It is still up to the defendant to prove he was not predisposed to commit the crime in question.

The role of defense counsel in this and other cases is to articulate and distinguish the precise facts in order to establish a truly compelling legal argument. As such, each case will rest on the exact facts and individual circumstances, and why the art of persuasion is a primary tool of a winning lawyer.

The above reported Decision can be found at the following link: https://cdn.ca9.uscourts.gov/datastore/opinions/2013/10/23/11-10036.pdf

Fort Hood shooter receives death sentence

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Maj. Nidal Hasan was sentenced to death for his 2009 shooting spree at Fort Hood after mounting barely any defense while representing himself.

Some posit that Hasan seeks to be a martyr, which is why he represented himself and did not call witness, give a testimony, or make any statements other than taking responsibility for the shooting. He admitted to his guilt, saying that he was a soldier who switched sides, and that he wanted to protect Islamic insurgents abroad. He had tried to plead guilty before the trial started but was unable to do so.

Hasan has been accused of seeking the death sentence, but his former attorney said that he doesn’t have a death wish. It is hard to believe that he does not, however, after choosing to represent himself and not mounting any sort of defense.

The military justice system has a lengthy appeals process, so it may be years or decades before Hasan is put to death, if the sentence stands.

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$1-million arrest warrant issued for suspected killer

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Authorities are searching for Dantjier Domenick Powell, who is wanted in connection with the murder of YouTube reality show star Domonique Newburn.

Newburn was found dead in her apartment on August 20. The transgender woman appeared in the premiere episode of “Hollywood Houseboys,” a program following the lives of young, gay black men trying to make it in LA.

According to the police, Powell may have been in a relationship with Newburn. This is a tragic story, and our hearts go out to Newburn’s family and friends.

 

Fort Hood trial resumes

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The soldier on trial for the 2009 shooting at Fort Hood is continuing to represent himself after his standby attorneys claimed that he was trying to get the death sentence for himself.

The judge refused the attorneys’ request to be either removed from the case or be allowed to take over, saying that the lawyers simply did not agree with Maj. Nidal Hasan’s defense strategy. But they insisted, and said that they would file an appeal with a higher court.

The lawyers face an untenable conundrum in having a client refuse to follow their advice. The importance of trust and confidence as well as cooperation cannot be overstated as they are critical to the attorney-client relationship. The judge also has to struggle with guaranteeing the defendant is afforded the constitutional safeguards including the right to due process, even when the defendant refuses assistance and clearly inhibits the opportunity for a fair trial.

COMENTARY BY SAM SPITAL, SAN DIEGO CRIMINAL DEFENSE LAWYER

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