The California Supreme Court yesterday decided two cases in which petitioners attempted to void convictions for which they were no longer in custody or on probation in order to prevent deportation. In People v. Villa Avelino Ceja Villa, a Mexican citizen, filed a petition for a writ of error coram nobis while in immigration custody in Alabama based on a 1989 California drug conviction. The Court of Appeal considered the writ to be a writ of habeas corpus since he was in custody based upon the 1989 conviction even though his probation had long since been terminated. But it denied the writ on the grounds that he was not in custody solely on the California conviction. The California Supreme Court denied the writ but on different grounds. It found that he was neither in constructive or actual state custody and therefore it could not issue a writ.

The Supreme Court also denied a writ of coram noblis in People v. Kim Kim was born in South Korea in 1977 and came to this country as a young child with his parents.His criminal record started as a juvenile. He was convicted of first degree burglary for breaking into a tool shed in 1996. Later that year he was convicted of petty theft and second degree burglary. The following year he and two friends stole under $100 of merchandise from a Costco. But with his record he ended up pleading to felony petty theft with a prior and he admitted a strike violation. While the judge struck the strike at sentencing he was sent to prison for three years on the theft and the probation violation.

In 1998 the INS began deportation proceedings. Since his theft sentence was for at least a year it was considered an aggravated felony with mandatory deportation. He completed his sentence and his parole. But the INS amended its petition to include a discretionary deportation based upon two convictions for crimes of moral turpitude.

Kim filed a nonstatutory motion to reduce the sentence on the petty theft with a prior to 364 days. It was granted and now any deportation would be discretionary. A Federal immigration judge granted his motion to remain in the country. But the INS appealed and the BIA ordered Kim deported. He then filed the writ of coram nobis. But the California Supreme Court denied the writ. First it pointed to three procedural errors. In pleading the writ he failed to show due diligence. He did not explain why it took so long after 1996 for him to file the writ. The second procedural error is that Kim did not avail himself of other remedies. If he had filed earlier he would still have been in actual or constructive custody and he could have filed a writ of habeas corpus. Coram nobis is only to be used when there is no other remedy. The final procedural error, according to the Supreme Court was the piecemeal method of fighting the deportation in state court. The Court all motions should have been filed simultaneously.

While the Court found the procedural errors it denied the writ on its merits. To obtain a writ of coram nobis a defendant must show

(1) Petitioner must ‘show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.’
(2) Petitioner must also show that the ‘newly discovered evidence does not go to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.’ This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. (3) Petitioner ‘must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.

Kim failed to show that there were facts that were not known to him that if he had presented to the trial judge would have result in his exoneration. The facts he argues, that he would be deported, that if deported he would be imprisoned for his refusal to serve in the Korean military on religious grounds, that his trial attorney was ineffective in not investigating the immigration consequences of the plea, and that his trial attorney was ineffective in not negotiating an alternate plea are not issues of fact. They are issues of law which cannot be the basis of a writ of coram nobis.

The end result is that neither habeas corpus or coram nobis is likely to correct errors in pleadings after the period of probation or parole has ended.

After seeing Ax Men on the History Channel agents from the Washington State Department of Natural Resources obtained a search warrant and seized more than two dozen logs from S & S Aqua Logging in Aberdeen.

The company and its owner, Jimmy Smith were featured on the program. At one point, during the program, Smith is shown floating down a river scanning for logs. Smith told the nationwide TV audience that the logs were worth $10,000. But what he didn’t tell the History Channel was that he did not have a permit to take the logs.

Peter Goldmark, Washington Public Land Commissioner, says that taking the logs without a permit is illegal. The logs serve a valuable purpose, according to Greg Hueckel, fish and wildlife habitat programs director, they “provide a key function for rivers in trapping sediment, harboring insects and other food for fish, and creating pools and riffles where fish can rest.”

During the program Smith said, “We’re normal guys that do extraordinary things.” Well he may be doing extraordinary thing, may he may be doing them in the local pokey.

Scanning the internet looking for something to discuss today I ran across the story of Lola, the chihuahua who was stolen from Brianna when a couple of auto burglars broke into Briana’s boyfriend’s truck..

But the story I want to tell is not the story of Lola who was found when the thieves were arrested using credit cards stolen from a car parked near Briana’s boyfriend truck. The story I want to tell is the story of Beanie Baby. Beanie Baby belong to one of my clients. A man named Gordon. One night in 1997 or 1998 at approximately 3:00 am, I get a call from the Sacramento Police Department asking me to identify Beanie Baby, Well identifying Beanie Baby is not difficult. Beanie Baby is a Shar-Pei. Shar-Peis are not exactly beautiful animals. Beanie Baby was deformed and therefore the ugliest of Shar-Peis.

As I got the story that night and in the following days here’s what happened. Gordon was driving his truck on the interstate through Sacramento. The truck broke down and Gordon did what you would expect him to do. He took his dog and found the nearest bar. I don’t know how many drinks he had. But eventually the waitress call the police and accused Gordon of stealing Beanie Baby from her. Well the officers came to the bar and took Beanie Baby away from Gordon and gave it to the waitress.

Well I described Beanie Baby to the Sacramento police They realized they made a mistake–a big mistake. They had mud on their face. They spent the next several days looking for Beanie Baby. Of course the waitress had given the dog to a friend. But eventually the police, with help from Gordon’s friends found Beanie Baby and gave her back to Gordon.

I don’t believe the waitress was ever charged. It would have been embarrassing for the police.

The headlines all say “Madoff Faces 150 Years.” He’s pleading to eleven counts. If the judge adds the maximum sentence for each count, yes, he could get 150 years. But don’t bet on it.

Since Bernard Madoff plead “open”, ie. there is no plea agreement, the final sentence will be up to the judge. But there are many issues which must be decided first. At the time of the plea, presumably today, the court will order a pre-sentencing report. The report will be extremely complicated and it will take several months to prepare. Lawyers for both sides will attempt to influence the probation department it its report. This is where his attorney, Ira Lee Sorkin will earn his keep. The Pre-sentencing Report will be based upon the Federal sentencing guidelines. The guidelines take into account, primarily, two types of information: the crime and the defendant’s criminal record. The crime is great, Madoff stole a lot of money and he lied all over the place. To my knowledge he does not have a criminal record so that will work for him, though the Pre-sentencing report may give him some points anyway since they may think he should have had a criminal record considering the length of time he ran his Ponzi scheme and the amount he stole.

He plead to the sheet, meaning every charge alleged in the criminal complain. The charges are, according to Assistant U. S. Attorney Marc Litt, “securities fraud, investment advisory fraud, mail fraud, wire fraud, three counts of money laundering, false statements, perjury, false filings to the SEC and theft from an employee benefit plan.”

For the more significant charges the maximum sentence is 20 years. The judge could add them all up and sentence him to 150 years. But the more likely prospect, according to Peter J. Henning, a professor at Wayne State Law School in The Deal Professor is that Madoff will get 20 years on one count and the sentence on the other charges will run concurrent.He may get more or he may get less but he is unlikely to get 150 years, unless the judge is really mad or wants him to be the example of the century.

United States District Judges are pretty immune from public pressure. They have their jobs for life and they feel they don’t have to listen to anyone, that is unless they want a Supreme Court appointment. But U. S. District Judge Denny Chin has his hands full in this case. Come sentencing its going to take ever US Marshall in New York City and beyond to maintain decorum in the court room. There are going many, many victims of Madoff’s schemes in that court room and everyone of them is going to want to tell the judge how Madoff ruined his or her life. Even a U. S. District Judge has trouble ignoring that pressure.

Another way Madoff can reduce his sentence is by providing substantial assistance to the government. In other words he can snitch on others who participated in his scheme and help the Federal government prosecute them. He has shown no signs of helping the government and in fact he has said that he alone it to blame. But when you are facing 150 years . . . .the government has power.

And then again, for a man of 70 whether he gets 20 years or fifty years does not make much difference.

In a recent post, Al Saleh Kalah Al-Marri Indicted On Al Qaeda Related Charges we pointed out that now that the Federal government has decided to charge Al-Marri in a civilian court it was moving to dismiss the case before the Supreme Court challenging his detention without charges. The Supreme Court granted the government’s motion, Friday. As we pointed out this will prevent a precedent from being set and allow the government to again, in the future, hold an alleged enemy combatant in this country under military auspices without trial.

Recently California Courts have taken some steps towards correcting a situation in which parolees with indeterminate sentences were rarely if ever released from prison. Prior to the California Supreme Court’s August 2008 decision in In re Lawrence the Board of Parole Hearings and the governors had a free hand in dealing with parolees. Rarely did the courts set standards governing the release of parolees. As a result the chances of a prisoner with an indeterminate sentences getting parole was practically nil.

In 1977 California adopted a sentencing scheme in which most prisoners were sentenced to determinate terms. Most prisoners upon sentencing knew when they would be released. But some prisoners, usually those with more severe sentences would receive an in determinate sentence where they might be sentenced, for example, to fifteen or twenty-five years to life.

The Board of Parole Hearings could deny parole by merely saying that the original crime, often occurring 20 years before the parole hearing, was heinous. The governor would then agree that it was heinous and the courts would not touch the decision. This would be repeated at annual parole hearing and the defendant would die in prison. In 2006, for example, according to an article in the Yale law and Policy Review the Board of Prison Hearings rejected 99.5 per cent of the applicants for parole. During the four years that former Governor Gray Davis was governor only five inmates sentenced to indeterminate sentences were paroled. It has improved somewhat under the current governor, Arnold Schwarzenegger. Forty paroles were granted in his first five years. But the number is still minuscule, with approximately 34,000 inmates sentenced to indeterminate terms in California.

In In re Lawrence the California Supreme Court held that the primary factor in deciding whether to release an eligible lifer on parole is the danger that the inmate presents to society. It is no longer possible to say that an inmate committed a heinous crime twenty years ago and throw away the key. The courts are beginning to recognize that the norm must be that the Board of Parole Hearings should set dates for the release of parolees unless their is a reason to believe that they will be a danger to society upon release. The sole reason for denying parole cannot be the egregious nature of the committing offense. Each factor used in denying parole must be considered in light of its effect upon the dangerousness to the public of the inmate if he/she is released.

Within the past week writs of habeas corpus citing Lawence have been decided in the Court of Appeal. In In re Palermo the Third Appellate District granted the inmate’s writ of habeas corpus and ordered a new hearing for him. Palermo had been convicted of the 1987 murder of his ex girlfriend. He shot her with what he thought was an unloaded gun through an open bathroom door. He was sentenced to fifteen years to life. At his third parole hearing in 2006 the Board of Prison hearings denied his parole. The hearing officers gave three reasons: 1) the nature of the committing offense, 2) his disciplinary history, and 3) a lack of insight. The San Joaquin superior Court denied his writ of habeas corpus but the Court of Appeal granted the writ. It found that the Board wrongly considered the committing offense to be the major reason to deny parole. As to his disciplinary history, he had only three disciplinary actions in nearly 20 years of incarceration and they were for non-violent acts. As to the degree of insight it is true that he feels that he committed manslaughter and not second degree murder but the facts are arguable and he has consistently showed signs of remorse.

On the other hand the First District Court of Appeal denied a writ of habeas corpus in In re Gregory Dwayne Reed. The Court denied the writ of habeas corpus finding the inmate to be a danger to society. Reed was sentenced to twenty=-six years to life for the 1984 felony-murder of a john during a robbery. Reed and his brother observed a prostitute flag down a john. While the couple were having sex in the john’s car, Reed’s brother opened up the door, pointed a gun at the victim and ordered him to give him money. When the victim claimed he did not have any money the prostitute offered Reed the twenty dollars she had received from the victim. He was unable to grab it and his brother shot the victim in the heart, killing him. While in prison he received 11 form CDC 115 disciplinary reports, the most recent in 1995. Form 115 reports are for events that are believed to be violation of law or in any case are not minor. He also received 19 form CDC 128-A reports for minor misconduct. At his first parole hearing in 2001 the Board found him unsuitable for parole and gave him a three year denial. At the second hearing in 2005 the Board gave him a one year denial and he was told by one of the hearing officers to “remain disciplinary free, not even a 128.” But in April 2005 he received a 128-A for leaving work early. At his June 2006 hearing he admitted he should have gotten approval from his supervisor before leaving work early.He was again found unsuitable and the current writ followed. The Court noted that he was no longer that he had a favorable psychological review and that he had completed a number of classes while incarcerated. But the appellate court found that Reed’s inability to remain discipline free, after he had been warned, reflected poorly on his ability to comply with the terms of parole and the law if he was released and therefore it denied his writ.

While there has been a change in the way the courts look at parole hearings in the past six months, it is unclear what the future holds. What is clear is that important decisions affecting the future of parole are being made in the Court of Appeals and that these decisions will affect the release of many people in the future as well as the crowded conditions in the prisons.

Armando Marmolejo-Campos, was convicted of the crime of aggravated driving under the influence under the laws of Arizona. Under the Arizona statute one is guilty of aggravated driving under the influence if one

“driv[es]” or takes “actual physical control” of a vehicle
“while under the influence of intoxicating liquor or drugs”
and “while the person’s driver license or privilege to drive is
suspended, canceled, revoked or refused or while a restriction
is placed on the person’s driver license or privilege to drive
as a result of [a prior DUI-related conviction].

Marmolejo-Campos has a prior conviction for theft, a crime of moral turpitude and a prior conviction for an aggravated DUI. He appealed the determination that the aggravated DUI’s were crimes of moral turpitude.

The Board of Immigration Appeals (BIA) turned down his appeal, finding the crime to be one of moral turpitude. While the decision of the BIA is not published it is based on its decision in In re Lopez-Meza in which the BIA ruled that an aggravated DUI requires a sufficient scienter element, specifically that it requires that the defendant knew his license was suspended. He appealed to the Ninth Circuit. Under the immigration law two crimes of moral turpitude can result in deportation. The Ninth Circuit Court of Appeals denied his appeal in Marmolejo-Campos v. Holder

The first question before the Ninth Circuit, applying Chevron U.S. A. v. Natural Res. Def. Council, Inc., was what degree of deference to give to the BIA ruling. Finding that Congress authorized the BIA to make determinations as to which crimes are crimes of moral turpitude and that the BIA interpretation of the act is reasonable, the Ninth Circuit deferred to the BIA’s decision and found that the aggravated DUI is a crime of moral turpitude.

As the dissent points out, there are a number of problems with this finding. The Ninth Circuit does not have to defer to the BIA if the BIA’s decision is not reasonable. Neither a standard DUI nor driving on a suspended license is a crime of moral turpitude. So why is an aggravated DUI which involves the same behavior as driving without a license and driving under the influence a crime of moral turpitude. Prior BIA decisions have held that two crimes which are not crimes of moral turpitude cannot be combined to result in a crime of moral turpitude and no clear reason is given by the BIA to change the rule.

A crime of moral turpitude under BIA decisions is a crime that
involves “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” In another case the attorney general under whose auspices the BIA operates defined a crime of moral turpitude as one that “ requires that a perpetrator have committed [a] reprehensible act with some form of scienter.” The Ninth Circuit has divided crimes of moral turpitude into two groups–those involving fraud and those involving “grave acts of baseness or depravity.”
An aggravated DUI is apparently in the second class. This puts it in the same group with murder, rape, robbery, kidnapping, voluntary manslaughter, some cases of involuntary manslaughter, certain aggravated assaults, mayhem, theft, spousal abuse, child abuse and, incest. In any case crimes of moral turpitude are malum per se. Both driving under the influence and driving on a suspended license are regulatory crimes which, under BIA precedent, are malum prohibitum and therefore cannot meet the definition of a crime of moral turpitude.

Yesterday, we considered a case decided by the California Supreme Court, Sheehan v. San Francisco 49ers, Ltd which involved the pat search of attendees at San Francisco 49ers games. The pat search was performed at the direction of the 49ers in conformance with directions from the NFL.

Today we look at another search. This time performed by bounty hunters in Oklahoma. In this case, the Tenth Circuit upheld the use of evidence found by bounty hunters while making an arrest. Both cases of course involve searches. But the other significant fact is that both cases involve searches by people who are not state actors, ie. not employed by the government or working at the direction of the government. This is important because the Fourth Amendment only applies to searches performed by state actors.

In United States v. Poe, the Tenth Circuit Court of Appeals found that a search by a bounty hunter was not performed by a state actor and therefore it was not subject to exclusion at trial under the Fourth Amendment regardless of whether or not it was supported by probable cause.

Five bounty hunters, hired by a bail bonds company, surveilled the Oklahoma City home of Kim Wilson, the former girl friend of Aaron Dale Poe who skipped bond in an Oklahoma state case. Wilson left home about 10:30 pm. Two of the bounty hunters followed her to AutoZone where she worked. They questioned her and found out that Poe was at her residence. She did not give permission for them to search her house but she said that Poe planned to sell drugs from the house and that there was a gun in the house.

They returned to Wilson’s house. Three of the bounty hunters watched the front door while the other two watched the back of the house. They saw Chris McGill drive up to the house and approach the back door. He attempted to leave shortly thereafter but he was apprehended by the bounty hunters.

The bounty hunters then arrested Poe. He resisted and one of the bounty hunters was attached by a pit bull. The dog was tased and both the dogs and Poe surrendered.

The bounty hunters found methamphetamine and a nine-millimeter pistol in the residence. They called the police.

Poe was charged with possession of methamphetamine for sale (McGill’s attempt buy methamphetamine was interupted by the bounty hunters)and possession of a weapon by a convicted felon. He moved to suppress the evidence found by the bounty hunters claiming that the search was without a search warrant and therefore in violation of the Fourth Amendment. The District Court rejected his claim on the basis that he did not have standing to object to the search of Wilson’s house.

On appeal the Tenth Circuit found that he had standing since he had a reasonable expectation of privacy. He was a social guest with sufficient ties to the residence. He had a “degree of acceptance into the household” and “an ongoing and meaningful connection to the home.”

But it rejected his claim on the basis that the bounty hunters were not state actors. The bounty hunters were neither state agents nor were they working at the direction of state agents. The court considered two factors in determining whether the bounty agents were working at the direction of state agents.

First, we determine whether the government knew of
and acquiesced in the [individual’s] intrusive conduct. . .Second, we consider whether the party performing the search intended to assist law enforcement efforts or to further his own ends.

The court found that there was no evidence that the bounty hunters were working with the knowledge or acquiescence of government agents. Furthermore it found that their goal was not to help the government, but rather to obtain payment for their own use from the bail bonds agency. Since the bounty hunters were not state actors the evidence that they seized was not subject to suppression for violation of the Fourth Amendment.

Sheehan was decided based upon the California Constitutions right to privacy. The Federal right to privacy is not coextensive to the California right and therefore Poe was based on the Fourth Amendment. The California constitutional right to privacy extends to the acts of private citizen and organizations which are nor necessarily state actors. The Fourth Amendment right is limited to state actors. Thus, while. the search of people attending 49ers games may be illegal under state law, the search of Poe by bounty hunters is legal under the Fourth Amendment.

In 2005 the San Francisco 49ers, in compliance with a NFL policy initiated a policy of pat searching patrons as they entered the stadium for football games. Daniel and Kathleen Sheehan challenged the policy in court as a violation of the California Constitutional privacy right.

The 49ers demurred to the complaint and the San Francisco Superior Court dismissed the case. The Court of Appeals confirmed the dismissal but the Supreme Court ruled Monday that the Superior Court had insufficient information to dismiss the case and it reinstated the suit for further proceedings.

In order to succeed in a suit charging a violation of the constitutional privacy right the Sheehans must show that

(1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest.”

But because the Superior Court decided the matter on a demur it did not have enough information to determine that it is impossible for the Sheehans to prove a privacy invasion. In particular the Supreme Court held that the trial court did not have enough information to decide whether the Sheehans had a reasonable expectation of privacy Among the issues that will have to be decided at trial are whether the Sheehans waived their right by going to the game, whether the 49ers had a reasonable purpose for imposing the pat search requirement, and whether the 49ers could have used a less intrusive method to obtain their goal.

The Eleventh Circuit Court of appeals recently upheld a similar but different search at Tampa Bay Buccaneers games. The Tampa policy, unlike San Francisco’s limited the search to above the waist and more importantly Florida does not have a constitutional right to privacy.

The Pew Center on the States issued a new report, One in 31: The Long Reach of American Corrections. According to the report one out of every 31 people in this country are under supervision of the criminal justice system. This includes 1,512,576 in prison, 780,581 in jail, 4,293,163 on probation and 824,365 on parole. The total number who are either incarcerated or on supervision is 7,328,200. That is 3.2 per cent of the adult population. The figures, however vary widely by state and location from 1 in 13 in Georgia to 1 in 88 in New Hampshire.

The report points out that the more people we imprison the less we benefit from the incarceration. There are certainly individuals who’s incarceration protects lives and property. But the more people we incarcerate the less the value to society of the additional incarcerations. Thus many prisoners can be released with relatively little harm to society.

To make matters worse the system is quite racist. Over nine percent of African Americans and 3.7 per cent of Hispanic Americans are either incarcerated or under supervision. This can be compared to only 2.2 per cent of White, non-Hispanic, Americans.

The Pew report concentrates on the cost of maintaining a huge number of people in prison and jails. The 50 states spend approximately 52 billion dollars on corrections, a 300 per cent increase over the last 20 years. When we consider all levels of government the cost has increased by 330 per cent since 1986. This can be compared to a 205 per cent increase in education, an 82 per cent increase in transportation, a 125 per cent increase in higher education and a 9 per cent increase in public assistance. Only Medicaid costs have grown faster than the cost of corrections. While they could only find statistics for 34 states the cost of keeping a person in prison or jail was $79 per day. The cost of supervising a parolee is $7.47 and a probationer is $3.42.

The report recommends a six step program that will reduce crime and at the same time reduce the cost of corrections. First, it suggests that we sort offenders by the risk they pose to public safety. According to report there are a number of risk assessment tools that take into consideration factors such as age at the time of their first arrest and current drugs use that while not being perfect help to predict danger to society.

Second, community treatment modalities must be based on current scientific models. Individualized evidence based plans can reduce crime by 10 to 20 percent and in some cases recidivism can be reduced by 30 per cent.

Third, the use to technological innovations such as electronic monitoring, GPS, and substance testing can be used to inform probation officers of the whereabouts of individuals and their alcohol or drug use.

Fourth, research has found that the use of swift, certain, and proportionate sanctions for criminal activity and supervision violations are more important than the lengthy incarceration.

Fifth, incentives for success are necessary. It is not only necessary to provide benefits for successful defendants but it is also necessary to reward successful agencies and to have means to measure results.

Finally, It is necessary to measure progress It is necessary to determine tje results by measuring recidivism and by increasing the amount money available to use on budget items other than corrections.

A relatively reasonable reduction in prison populations can result in major savings to the state, a decrease in crime, increased money for other budgetary needs and a significant increase in community treatment for offenders.