José A. García-Ortiz was convicted on three counts: Hobbs Act robbery; aiding and abetting the unlawful carrying and use of a firearm during and in relation to the robbery, and aiding and abetting the death of an accomplice in the commission of an armed robbery. He raised a number of issues on appeal, the most important of which was that convicting him of both using a gun in the commission of an armed robbery and aiding and abetting the death of an accomplice in an armed robbery violated the Fifth Amendment prohibition on double jeopardy.

The unlawful use of a firearm during a robbery is a lesser included offense of using a gun during the commission of an armed robbery resulting in the death of an accomplice. A lesser included offense is one that has all of the elements of the greater offense. All of the elements of using a gun during an armed robbery are also elements of aiding and abetting the death of an accomplice during an armed robbery. Of course the greater offense, aiding and abetting the death of an accomplice during an armed robbery has the additional element of the death of an accomplice. In other words anyone who commits the offense of aiding and abetting the death of an accomplice during an armed robbery necessarily also commits the offense of aiding and abetting the use of a firearm during an armed robbery.

Thus Garcia-Ortiz argued that he was convicted twice for the same offense. The First Circuit Court of Appeals did not rule directly on the double jeopardy issue. But it found that Congress did not intend to punish individuals twice for the same crime. Under Rutledge v. United States there is a presumption that Congress did not intend to punish for convictions on both offenses. Since the Court could find nothing to the contrary in the charged offenses, it remanded the case to the trial court to dismiss the lesser offense.

Din Celaj ran his own mob in New York City. They specialized in stealing late model automobiles and selling them for parts as well as robbing marijuana from dealers and selling it. The mob met its demise when Celaj sold the automobiles to a garage run by the New York City Police Department. ¹

Celaj was charged under the Hobbs Act. The Hobbs Act makes it a Federal crime to commit robbery or extortion in such a way as to obstruct, delay, or affect interstate commerce. The issue on appeal was whether the evidence at trial was sufficient to show that the theft of the marijuana affected interstate commerce. At trial the parties stipulated that “marijuana is grown outside of the state of New York and travels in interstate and foreign commerce to arrive in the New York City area.” ²

The Second Circuit Court of Appeals ruled that the stipulation which is the same as evidence permitted the jury reasonably to conclude that Celaj’s criminal actions had a nexus with interstate commerce” and therefore upheld the conviction. ³

Thanks to Barry Scheck and the Innocence Project Cornelius Dupree Jr. is free from prison after spending 30 years behind bars for a rape he never committed.

As with most exonerations Dupree’s conviction was based upon an eyewitness misidentification. Police showed Dupree’s picture and the picture of his codefendant to the victim and her male friend in a photo array. The victim picked out the pictures of Dupree and his friend while her male friend picked out neither of the pictures. Dupree was sentenced to 75 years for rape and robbery. But now thirty years later Dupree has been exonerated by DNA evidence.

Out of 265 people exonerated by the Innocence Project, 158 of the individuals, like Dupree were African Americans, 80 were Caucasian. 21 were Latinos, two were Asian American and four were of unknown racial background. One study showed that between 1989 and 2004 there were 120 exonerations for those wrongly convicted of rape. Nearly 90 per cent of these were based upon eyewitness misidentification and although only ten per cent of rape convictions involve White victims and Black rapists fifty per cent of the exonerations involved cross racial misidentification.

In that thirty year period Dupree had at least two opportunities to be paroled but that would required him to except responsibility for a rape he knew he never committed. It is not unusual for a parole board to refuse to parole an individual unless they admit responsibility for the crime. Ironically this means that guilty individuals often spend more time in prison than innocent individuals. Another condition of his parole would have been that he attend a sex offender treatment program. As part of the program the innocent man would have had to show recognition, remorse, restitution and resolution. He refused to do this and he was denied parole.

Under Texas law Dupree may get $80,000 for each year he was in prison and a lifetime annuity. He should get a 2.4 million dollar lump sum payment.

Another problem with false identifications is that as a result of Dupree’s conviction the actual rapist has been free for thirty years and we do not know how many rapes he has committed during that period.

Bobby Joe Maxwell was arrested in 1979 and charged with killing ten men in Los Angeles. He was known in the press as the Skid Row Stabber. He was tried and found guilty of killing two of the men and was sentenced to life without parole. On the other counts he was either found not guilty or the jury hung.

Monday, the Ninth Circuit Court of Appeals granted his writ of habeas corpus ordering that he either be released or given a new trial. The primary witness against him at his trial was Sidney Storch one of the most infamous jailhouse informants of the Los Angeles informant scandal of the 1980′s. Storch, a convicted forger, had a signature modus operandi. He arranged to be placed in the same cell with a defendant accuse of an infamous crime. Then he would read articles about his cellmate in the media. He would then call the DA’s office and offer to testify about his cellmate based upon what he read in the newspaper, claiming that the cellmate admitted the truth of what was in the newspaper. Shortly after Maxwell’s trial Storch was charged with perjury for giving false testimony in another case in which he acted as an informant but he died before he was tried on the perjury charges.

Due Process rights are violated when one is convicted based upon false testimony. Of course there is no way to prove what Maxwell told or did not tell Storch. But there is plenty of evidence that Storch lied at trial. He lied about the number of times he had informed on other people. He lied about his criminal history. He lied about the decreased sentence he received in exchange for testifying against Maxwell. Three police officers testified that they refused to use him as an informant in other cases because he was untrustworthy. The Ninth Circuit found that Storch lied about material evidence at Maxwell’s trial based upon his lies under oath and his pattern of lying in other trials.

But it is not enough in a Federal writ of habeas corpus to prove that an informant lied. A writ of habeas corpus can only be granted under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) if (1) the conviction “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) if the court made “an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” The standard is tough. Not impossible, but rarely met. As the Ninth Circuit stated:

Where a petitioner challenges the state court’s findings based entirely on the state record, ‘we must be particularly deferential to our state-court colleagues,” and defer to their factual findings unless we are “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.’

Here the Ninth Circuit found that the trial court, which held an evidentiary hearing on the matter, in a state writ of habeas corpus, some years ago made an unreasonable determination of the facts when it found that Storch’s testimony was credible. As a result the writ of habeas corpus was granted. The Superior Court was told to either grant Maxwell a new trial within a reasonable period of time or release him after 31 years in custody.

Mahmoud “Mike” Shamah and Richard Doroniuk were two dirty Chicago cops. With the help of a snitch they found drug dealers, or people they thought were selling drugs, arranged for their arrest and stole their money and drugs. The drugs would be used to plant on the next person.

Eventually they were caught and Shamah was convicted while Doroniuk plead guilty to Rico (Racketeer Influenced and Corrupt Organizations Act) offenses. Specifically Shamah was charged with:

violating the substantive RICO statute. The RICO conspiracy provision makes it unlawful ‘to conspire to violate any of the provisions . . . of the RICO statute. Shamah was charged with conspiring to violate subsection (c), which makes it “unlawful for any person employed by or associated with [an] enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity of collection of unlawful debt.’

Two issues were raised on appeal about the sufficiency of the evidence. “To prove a violation of § 1962(c), the government must prove the following elements: (1) conduct (2) of an enterprise (3) through a pattern of racketeering activity.” Shamah claimed that a street cop he did not exercise any control over the enterprise i.e. Chicago Police Department. But the court found that he had sufficient discretionary power over the core duties of the department: arresting people that he met the enterprise element. As the Seventh Circuit stated: “[T]he ‘prototypical’ RICO case is one where a person seizes control of an enterprise and uses it to commit criminal acts he could not do himself. . . .Only ‘a step away’ from the prototypical case is one where a criminal uses an enterprise to engage in criminal activities but is generally ‘content to allow it to conduct its normal, lawful business.” This is the latter case where the officers used the Police Department to commit robberies.

Second, Shamah claimed that as a police officer he had the right to use force to arrest people. Therefore, the use of force could not be used to prove a robbery, one of the predicate crimes of a RICO offense. But the court said their was sufficient evidence before the jury that they could find that the arrests and the use of force was merely a pretext for the taking of money and drugs. As a result the officers committed robberies. Five incidents were charged before the jury and three more were raised at sentencing. Only two predicate crimes need to be shown to convict for a RICO offense and there was more than sufficient evidence according to the Court.

A thirteen year old boy punched a schoolmate and stole forty-six cents from him. Proper punishment–some time in youth hall maybe. Counseling–perhaps. But in this case the fourteen year old, his mother and his brother, but not his stepfather who is a US citizen were almost deported when it was discovered that their visa had expired.

San Francisco Mayor Gavin Newsom instituted a new policy under which every juvenile alleged to have committed felonious conduct and who was in the country illegally is reported to Homeland Security for deportation. No conviction is necessary. So when the boy was arrested and charged with robbing forty-six cents the Juvenile Probation Department reported it to Homeland Security and the kid, his mother and his five year old brother were ordered to leave the country by March 5. Luckily some strings were pulled in Washington and the deportation order was delayed. Yesterday it was announced that the family had been given green cards and would not be deported.

The ironic part of this is that the boy’s mother, Tracey Washington is married to Charles Washington, a Municipal Bus driver and a United States citizen. Therefore she and her children are eligible for citizenship.

As Charles Washington pointed out after it was announced that his family would be allowed to remain in the country, in a letter to Newsom

“Your policy hurts families and tears children away from their parents for minor, first-time offenses,” Charles Washington, a Muni bus driver, said in a letter to the mayor.

“Our family’s luck in this case was unique, but Mr. Newsom, the pain we felt when our family was facing deportation as a result of your policy is not unique.”

Other consequences are that children who have spent most of their life in this country are deported to countries where they cannot speak the language. Children may be deported, without their parents to countries where they do not have family or know anyone. The Board of Supervisors pass legislation rejecting the mayor”s policy. But Newsom vetoed it. The Board overrode the veto but Newsom has refused to enforce the legislation.

Jason Montes and Margarito Armijo were charged with participating in eight bank robberies in the Dallas area. They were convicted. Armijo was senenced to 4,692 months in prison and Montes to 4,705 months. (Yes, that’s nearly 400 years each!)

While there were several issues on appeal the only one worth discussing is Armijo’s claim that he was denied his Miranda rights.

In reviewing a district court’s denial of a defendant’s motion to suppress a statement given to the police, this court reviews factual findings, including credibility determinations, for clear error, and reviews legal conclusions de novo. Since the trial court held an evidentiary hearing on the matter where it could observe the demeanor of various witnesses it was in a better position to determine which witnesses to trust and which ones not to trust. That was particularly important in this case where their was contrasting testimony.

The police officers testified that Armijo did not clearly ask for an attorney during the interrogation and Armijo testified that he asked for an attorney. Under Supreme Court precedent an ambiguous or equivocal reference to an attorney does not result in the right to have a statement excluded at trial. The request must be clear and specific. The officers testified that Armijo signed a waiver acknowledging that at any time during the interrogation he could ask for an attorney. After answering questions the officers asked him to put it in writing. At that point he said something to the effect that “Maybe I should get an attorney” or “Do I need an attorney?” The trial court found the officers to be more credible than Armijo and the appellate court looking at the evidence in the light most favorable to the prevailing party in the trial court found the statement to be ambiguous and therefore the statement to be admissible.

In a case like this where it is a factual question the case is going to be won or lost in the trial court. Unless the trial court made a mistake as to the law an appellate court is unlikely to reverse a conviction. While appeals are filed as a matter of course after losing at trial expecting a better result on appeal is probably fruitless.

Joshua Johnson lived in a two bedroom apartment in Sacramento County with his girlfriend, their infant daughter and two roommates, Jessie Rider and Devon McDermott. He supported his family by being the neighborhood dope dealer.

On August 28, 2005 he received a phone call from Del Jay Ugalino, wanting to buy some dope. Johnson said, fine, come on over. Ugalino who had bought marijuana from Johnson ten to fifteen times before was no stranger, Johnson brought two friends with him. After Johnson got the marijuana (3 oz) out of the safe Ugalino pulled a gun out and attempted to rob him. But Johnson was swift on his feet. He put the marijuana in his underwear and ran out the front door. Luckily Ugalino and his friends did not take Johnson’s girl friend, roommates and baby hostage. Instead they ran out the front door and got into their pick up truck and left. But as the truck pulled away they hit a post leaving the bumper and the license tag behind which made the work of the police much easier.

Ugalino was convicted of one count of residential burglary, two counts of attempted robbery (Johnson and Rider), possession of a controlled substance (ecstacy) and being a felon in possession of ammunition. The jury also found that he used a gun during the felonies.

The significant legal issue is whether Ugalino can be convicted of attempted robbery of Rider. The California Court of Appeal said no. Under California law robbery is

” the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

The court ruled that a victim of a robbery must be either the owner of the property, the person in possession of the property or a person with a special relationship to the owner such as to be in control of the property. Since Rider was only a roommate and the marijuana was kept in a safe for which Rider did not have a key he did not have the special relationship necessary to be the victim. Ugalino was guilty on the other charges including the attempted robbery of Johnson and I am sure he is doing enough time in prison thinking about the statement that he gave to the police when he was arrested: He told them they “couldn’t arrest him for ripping off a drug dealer.”

This brings up the second question. Since when do dope dealers go to the police for protection. Not many years ago if a dope dealer came to me and told me Johnson’s story, I would have said, hey you got away with your life, be happy–if you call the police they might arrest you. And in fact right now I am representing a woman in Alameda County who called the police to report a burglary at her house. The police entered the house to look for the burglar who had gone out the back door. The police found a significant amount of marijuana and she is charged with possession for sale of marijuana. Thus, I guess, outside of Sacramento County things have not changed much.