CDBA-CDLC - Crowley Law Group

APRIL 2014
CDBA-CDLC
www.sddefense.org
Criminal Defense Newsletter
A JOINT PUBLICATION OF THE SAN DIEGO CRIMINAL DEFENSE
BAR ASSOCIATION AND THE CRIMINAL DEFENSE LAWYER’S CLUB
PRESIDENT’S COLUMN BY JEREMY WARREN
INSIDE THIS ISSUE:
THE FEDERAL TATLER ©
BY JOHN LANAHAN
3-5
MEMBER PROFILE STEFANO MOLEA
BY STACEY A. KARTCHNER
6-7
COMMUNITY DEFENDERS
GRANT—SCHOLARSHIP
INFORMATION
8-9
COMMUNITY DEFENDERS
GRANT—SCHOLARSHIP
APPLICATION
10
KUDOS
11
CDBA MEMBERSHIP
APPLICATION
12
CDBA/MCLE
M O N T H LY
MEETING
Meeting:
Tues., April 30th
Athens Market
First and F Downtown
5:00—5:30 p.m.
Social Hour
5:30—6:30 p.m.
Program
Domenic
Lombardo
on
Digital Security
It is an honor to take the reins as
CDBA President, and I have big shoes to
fill after the outstanding job Stacey Kartchner did last year. Before her was Gary
Burcham, and in his first “Message from
the President” in May, 2012, he wrote
about the ATF’s fake stash-house robbery
stings. It’s high time for an update and I
have some good news to report.
Have you heard of stash-house robbery stings? The ATF sends cooperating
individuals out to troll for people who
might be willing to rob a fictional stashhouse loaded with dozens of kilograms of
cocaine and guarded by just one or two
people. When someone expresses an
interest, they are encouraged to bring
accomplices and are introduced to an
undercover agent pretending to be a disgruntled courier. Channeling his best Cal
Worthington, the agent does a song-anddance enticing them to participate. When
they give their final assent, a SWAT team
swoops in with flash-bang grenades and
sweeps them into custody.
Charged federally, the stakes are
enormous. Charged with conspiracy to
possess with intent to distribute cocaine,
they face a 10 year mandatory minimum
sentence. If a defendant has a prior felony drug conviction – even a very old,
simple possession conviction, since there
are no time limits – the prosecutor enhances the minimum to 20 years. Don’t
forget the pistol the defendants bring to
the meeting; that tacks on another five
years.
We have had quite a few of these
prosecutions in San Diego, echoing a national trend. So far, no judge here has
granted a motion to dismiss based on
outrageous government conduct, though
they have expressed unease and displeasure at being forced to hand out 15
and 25 year sentences to defendants
who were not planning any crimes before
the government approached them.
Recently, possibly after having read
his article in this publication, the Ninth
Circuit issued an outstanding opinion in
Gary’s stash-house case, United States v.
Cortes, 832 F.3d 1078 (9th Cir. 2014).
Reversing on all counts, the court held,
for the first time, that the defendant has
a right to present a sentencing entrapment defense to the jury rather than to
the judge alone. This means in future
cases, the defense can try to show the
jury how the government created this particular type of crime – involving fictional
cocaine rather than, say, money, to create massive mandatory minimum penalties. The jury (for better or worse) will get
to hear about a defendant’s background,
his financial condition, and his willingness and ability to complete multiplekilogram drug transactions. Since most
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of our clients have never seen more than an ounce of a
controlled substance before they were enticed into the
government’s robbery, the hope is juries will see through
the shenanigan and find a lower quantity of drugs attributable to the defendant. Great job Gary!
And that’s not all. There is even more good news on
the stash-house front. Recently, Judge Otis Wright, a former Marine, Deputy Sheriff, Deputy Attorney General, and
a President George W. Bush appointee to the district
court in Los Angeles, granted a motion to dismiss in
United States v. Dunlap, 13-CR-0126-ODW (Order Filed
3/10/2014). In his order, he blasted the government’s
use of these stings:

“Zero. That's the amount of drugs that the Government has taken off the streets as the result of
this case and the hundreds of other fake stashhouse cases around the country. That's the problem with creating crime: the Government is not
making the country any safer or reducing the actual flow of drugs.”

“Society does not win when the Government
stoops to the same level as the defendants it
seeks to prosecute — especially when the Government has acted solely to achieve a conviction for
a made-up crime.”

“The time has come to remind the Executive
Branch that the Constitution charges it with law
enforcement — not crime creation. A reverse-sting
operation like this one transcends the bounds of
due process and makes the Government the oppressor of its people.”
Who knows what the Ninth Circuit will do on appeal,
but it is refreshing to see a judge take the government to
task for its use of stash-house robbery schemes to create
crime rather than solve it.
Finally, at least three different courts are considering
allegations such stings unfairly target racial and ethnic
minorities. Judge Ruben Castillo in Chicago’s federal
court ordered pretrial discovery to support a possible dismissal after finding “a strong showing of potential bias in
the history of the prosecution of so called ‘phony drug
stash-house rip off cases’” with the “overwhelming targets of these investigations were African Americans.”
United States v. Brown, et al., 12-CR-632 (Order Filed
7/31/2013). The judge later rejected the government’s
motion for reconsideration and found, based on additional documents, “the defendants have made an even
stronger showing of potential bias.” The judge pointed
out that of the 25 cases filed in Chicago, 18 solely targeted black defendants. The 25 cases resulted in indictments of 77 black defendants, 13 Latino defendants,
and only six non-minority defendants. Significantly, the
court also rejected the government’s argument that
United States v. Armstrong, 517 U.S. 454 (1996) provided an absolute shield from discovery. (Order Filed
11/8/2013.)
Stay tuned on this issue, things are looking up.
***
At our recent CDBA awards night, Judge Danielson
said it was an exciting time to practice criminal law. He
was right. For the first time in many of our careers, the
tide is turning. After years of ever-tougher sentencing
laws, increases in federal sentencing guidelines, and
calls for harsher punishments, the pendulum is swinging
back the other way.
In state court, Realignment is drastically reducing the
number of people sent to prison. And those receiving local prison sentences are eligible to serve much of their
sentences in the community. On the federal side, the
Department of Justice supports the Sentencing Commission’s decision to lower sentences across the board in
drug cases. There is growing support for reducing or
eliminating mandatory minimum sentences. The death
penalty is under attack and support for capital punishment is eroding.
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THE FEDERAL TATLER © BY JOHN LANAHAN
No. 185: The Reach of Restitution: Paroline v. US
It’s now late in the 2013
term and the Supreme Court is
issuing decisions that have a broader reach.
Some are good, such as Rosemond v. United States, 12-895
(3/5/14), limiting the reach of criminal liability under an
aiding and abetting theory; others more ominous, like White
v. Woodall, 12-794 (4/23/14), where the Court appears to
follow the concurrence of Justices Thomas and Scalia last
term in Salinas v. Texas, 133 S.Ct. 2174, 2184 (2013), that
the Fifth Amendment does prohibit a prosecutor from commenting upon a defendant’s decision not to testify during
trial (contrary to Griffin v. California, 380 U.S. 609) by denying relief in a capital habeas where the prosecutor commented on a defendant’s decision not to testify at the penalty phase. These may be discussed in later Tatlers, but the
head liner this month is the recent decision in Paroline v.
United States (12-8561, 4/23/14), dealing with restitution
under 18 U.S.C. § 2259 arising from the possession of child
pornography.
The focus of the majority opinion is on “Amy”, the pseudonym for a now young adult whose sexual assaults by her
uncle when she was eight and nine were recorded. She
appeared to improve emotionally after therapy and her uncle made $6,000 in restitution and was sent to prison. She
deteriorated, however, at 17 when her uncle’s videos went
viral on the internet. The petitioner in this case, Doyle Paroline, possessed two of those images among 150 to 300 images of child pornography. He pleaded guilty to possessing
child pornography and the Government asked for restitution
of $3.4 million. The district court denied any restitution,
finding the prosecution could not prove any actual damage
to Amy by Paroline. The Fifth Circuit reversed and held he
could be liable for the full amount of the damages requested by the Government.
The Supreme Court in a 5/4 decision authored by Justice Kennedy vacates the Fifth Circuit and remands the case
for further proceedings. Although the case involves restitution, the decision focuses on causation, as does another
recent decision, Burrage v. United States, 134 S.Ct. 881
(2014), the subject of Tatler No. 183. The restitution was
ordered under 18 U.S.C. § 2259, which requires the district
court to order anyone convicted of child pornography “to pay
the victim . . . the full amount of the victim’s losses as determined by the court,” under 18 U.S.C. § 2259(b)(1), and expressly states that “[t]he issuance of a restitution order under this section is mandatory,” under 18 U.S.C. § 2259(b)(4)
(A). The statute defines a victim as “the individual harmed
as a result of a commission of a crime under this chapter,”
under 18 U.S.C. § 2259(c). The statute makes a defendant
responsible for “the full amount of the victim’s losses” under 18 U.S.C. § 2259(b)(1), which include “any costs incurred by the victim” for six enumerated categories of expenses under 18 U.S.C. § 2259(b)(3). These are: (1) certain
medical services; (2) physical and occupational therapy; (3)
transportation, temporary housing, and child care; (4) lost
income; (5) attorney’s fees and costs; and (6) a final catchall
category for “any other losses suffered by the victim as a
proximate result of the offense.” 18 U.S.C. § 2259(b)(3)(A)(F).
The majority decision determines Paroline was not directly responsible for Amy’s losses and instead limits his
liability to those damages he proximately caused. It interprets the first five specific types of losses to be guidelines
from the damages he proximately caused and rejects the
Government’s argument that “proximate result” language
was intended as a catchall for other possible damages. It
also addresses “the somewhat atypical causal process underlying the losses the victim claims here.” Justice Kennedy
finds it relatively simple to determine what are the actual
losses and general damages (such as psychiatric treatment
and lost earnings resulting from the continued trauma of
having the images on the Internet), but more difficult to determine what is the “full amount” under the statute. He
finds the general damages are foreseeable results of possession of child pornography, but that Paroline would not be
liable for them under a “but for” standard of causation and
rejects the more nebulous theories of causation from tort
law that would make him fully responsible for all of Amy’s
damages, given that he possessed only two of her images
that circulated throughout the internet. “The striking outcome of [the Government’s] reasoning – that each possesCONTINUED ON PAGE 4
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sor of the victim’s images would bear the consequences of
the acts of the many thousands who possessed those images – illustrates why the Court has been reluctant to adopt
aggregate causation logic in an incautious manner, especially in interpreting criminal statutes where there is no language expressly suggesting Congress intended that approach.” The majority also differentiates the standard of
causation applied in torts and that applied at criminal sentencings where restitution is intended as “an effective rehabilitative penalty . . . Legal fictions [concerning causation]
developed in the law of torts cannot be imported into criminal restitution and applied to their utmost limits without due
consideration of these differences.” It rejects the Government’s analogy that the damages arising from Paroline’s
possession of two images were tantamount to those caused
by one of many “ruffians” to the victim of a gang rape.
The majority also rejects the claim that Paroline could
somehow offset the enormous restitution sought by the Government by seeking contributions from others convicted of
the same offense arising from the possession of her images,
given that there is no federal right to compel contributions.
“The reality is that the victim’s suggested approach would
amount to holding each possessor of her images liable for
the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue
for seeking contribution. That approach is so severe it might
raise questions under the Excessive Fines Clause of the
Eighth Amendment.”
The majority does finds that Paroline falls within the
group intended by Congress to make restitution as a result
of possessing Amy’s images.
In this special context, . . . a court applying
§2259 should order restitution in an amount
that comports with the defendants relative
role in the causal process that underlies the
victim's general losses. The amount would
not be severe in a case like this, given the
nature of the causal connection between the
conduct of a possessor like Paroline and the
entirety of the victim’s general losses from
the trade in her images, which are the prod-
uct of the acts of thousands of offenders. It
would not, however, be a token or nominal
amount. The required restitution would be a
reasonable and circumscribed award imposed in recognition of the indisputable role
of the offender in the causal process underlying the victim’s losses and suited to the
relative size of that causal role.
The district court has considerable discretion as to how
to arrive at an amount of damages, but could begin by determining “the amount of the victim’s losses caused by the
continuing traffic in the victim’s images, . . . then set an
award of restitution in consideration of factors that bear on
the relative causal significance of the defendant’s conduct
in producing those losses. These could include the number
of past criminal defendants found to have contributed to the
victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for
crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course,
never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the
images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative
causal role.”
The Chief Justice, joined by Justices Scalia and Thomas,
finds that Amy should be entitled to restitution, but the standard used by the statute makes it impossible “to do anything more than pick an arbitrary number” for the amount of
her losses, and “arbitrary is not good enough for the criminal
law.” He finds the efforts of the majority to fashion a workable interpretation of the statute to be sensible, but that the
district court properly interpreted and applied it, and correctly found that the Government could not prove by a preponderance of the evidence, the standard for all restitution
in criminal cases under 18 U.S.C. § 3664(e), that Paroline
had contributed to Amy’s damages. He finds the majority
correctly finds that Paroline actually caused damage to Amy,
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under a theory of proximate causation, but that the Government could not prove what damages he actually caused as a
result of the offense of conviction and no one could reasonable argue the possession of two images of Amy caused her
$3.4 million in damages. He finds nothing in the record to
suggest that she would have suffered any fewer damages
had Paroline not possessed those two images, and so it is
impossible to determine the amount of damages under the
statute. He finds the approach taken by the majority to be
too nebulous and imprecise to calculate actual damages
which, looking at the restitution orders of various district
courts, could range from $1,000 to $530,000 imposed on
other defendants in other cases for possessing Amy’s images.
Granted, many politicians support reducing sentences based on the financial costs involved rather than
because lengthy sentences are inhumane. Still, we cannot underestimate the importance of the work our community has done to change the sentencing landscape.
We have supported evidence-based practices, resulting
in much shorter sentences on probation violations. The
Innocence Project has taught the public that too many
innocent people have been sent away for life or given
death. We have pushed judges, prosecutors, and politicians to recognize the toll long sentences take not only
on our clients but their children, their families, their communities. And it is working.
Justice Sotomayor also dissents, finding the statute is
clear and makes Paroline liable for the “full amount” of
Amy’s estimated damages of $3.4 million under a proximate
cause theory.
Martin Luther King said, “the arc of the moral universe is long, but it bends towards justice.” We still have
a long way to go before we have a justice system that is
fair and just, but we’re heading in the right direction. The
massive, sudden, sea-change in gay marriage is cause for
optimism. Seemingly turning on a dime, gay marriage
enjoys massive support and marriage inequality laws are
going the way of Jim Crowe.
This opinion is significant in many ways. For those of us
in the trenches of Club Fed, restitution is a hot and complex
topic, and this decision, in the majority and the concurrences, gives some guidance on how to contest often astronomical and unpayable restitution orders. It also makes a
bridge, in citing the Eighth Amendment, that excessive restitution, like excessive fines, is unconstitutional. It also shows
that the Supreme Court is focusing on causation, that often
most imprecise of concepts (at least to this JFP1), and attempting to give clear guidelines in this case, as it did in
Burrage. Unlike many issues of criminal law, this issue does
not split the Court along political lines and is an example of
the Court’s efforts to provide a global approach by which to
interpret a complex concept in criminal law in a number of
contexts.
John Lanahan has been a lawyer for the accused for almost 30
years, first in Illinois and now in California. His practice includes
cases in both state and federal court, ranging from capital trials while
a Public Defender in Chicago, to handling appeals in both state and
federal court as well as state and federal post-conviction petitions. He
is a past-President of the San Diego Criminal Defense Lawyer’s Club
and lectures and teaches in areas of criminal practice, most recently as
a faculty member for the Darrow Death Penalty Defense College at
DePaul School of Law in Chicago.
1Jaded
Federal Practitioner.
I believe the same thing may be happening in sentencing, particularly in drug cases. I write this the same
day a federal judge gave my first offender a sentence
nearly double the applicable guideline range, so I’m not
naïve, nor a Pollyanna. But something’s happening here
and it is our job to keep up the pressure. We need to
keep reminding judges of the incredible cost of incarceration, that there are alternatives to custody, and that there
is no need to hammer someone into oblivion to send a
message.
Over time, there may be a snowball effect; lower sentences will foster lower sentences. Prosecutors who become judges will be used to lower sentences. Probation
officers will recommend shorter terms. And crime will
continue to fall. Our communities will not be any less
safe. And we can renounce our role as the world’s greatest incarcerator of human beings.
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MEMBER PROFILE - STEFANO MOLEA
BY STACEY A. KARTCHNER
Over the next four months, I will
be profiling the four new members of
the Criminal Defense Bar Association’s (“CDBA”) Board of Directors. I
will begin with Stefano Molea. Stefano was born and raised in Palermiti,
Italy. He moved to the States in
1997. Stefano obtained his undergraduate degree from the University
of Redlands. He majored in Philosophy and minored in Government. Stefano obtained his law degree from
Thomas Jefferson School of Law.
tion. I admire the respect she has earned
within the legal community and she inspires me to do the same. Plus, she keeps
my argumentative skills sharp.”
NON-LAWYER STEFANO MOST ADMIRES:
“My grandfather. He was drafted to fight
for Mussolini in World War II. After quickly
realizing he was on the wrong side of the
fight, he deserted. He traveled by foot and
train from Germany to Southern Italy to be
with his family. His integrity and morals
almost cost him his life, but he never wavered. He was extremely hard working and
When asked why he became a
lawyer, Stefano stated:
Growing up in an Italian family, arguing was a way of life.
I figured I should get paid for
it someday.
always made family his priority. While in
the hospital during his last days, even after
50 years of marriage, he serenaded my
Stefano Molea
Immediately after passing the bar, Stefano opened up
his own practice. He also worked as “Of Counsel” to the
Law Office of David P. Shapiro and the Damiani Law Group.
After approximately one year, Stefano began working for
Kerry Armstrong.
As far as volunteer work, as mentioned previously, Stefano is a CDBA Board of Director. In addition, he volunteers
at Stand Down every year. Of that experience, he stated:
Following my internship with TJSL’s Veterans
Legal Assistance Clinic, I realized the dire
need of support for homeless veterans in
our community.
Stefano’s hobbies include spending time with family
and friends, playing golf, racquetball, and being a handyman
around his new home.
The following are additional anecdotes from Stefano:
LAWYER STEFANO MOST ADMIRES: “My wife. Elizabeth
Molea practices as a family law attorney in North County.
She is a constant reminder of professionalism and dedica-
grandmother every time she walked into
the room. He didn't care for the nuns, how-
ever, as he told the story of a nun denying him shelter as he
made the trek to Southern Italy during his escape.”
RECENTLY NOTEWORTHY CASE: “My client (with
co-counsel Lisa Damiani) was charged with violating Penal
Code section 192(c)(2) (misdemeanor vehicular manslaughter without gross negligence following a failure to yield the
right of way to oncoming traffic). From a side road, he took
a left turn on a two‑way highway when a Vespa‑type scooter
approached. The scooter driver lost control, hit the pavement, and skid into my client's truck. He sustained fatal
injuries. At trial, we presented evidence that the client acted
reasonably, and that the scooter driver was speeding in a
construction zone. We also introduced evidence that the
scooter had a broken brake lever, which likely caused the
driver to over‑react when the lever failed to engage. Shockingly, the jury rendered a guilty verdict. We authored a motion for new trial, arguing, among other things, jury misconduct. I obtained a declaration from a juror that during deliberations, some jurors commented on my client's failure to
testify. The motion for new trial was granted, and the case
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ultimately was dismissed following a deferred entry of judg-
ing our meeting, he heard a knock on the door. Who was it?
ment plea.”
Officer “Bob”... in plain clothes. You see, officer Bob
PROUDEST CAREER MOMENT: “In addition to the motion for new trial win, when a highly respected attorney in
our community correctly said my name. For years I have
been referred to as ‘Stefanzo’, ‘Stefan’, or my favorite, ‘Mr.
Molina’.”
MOST OUTRAGEOUS CHARGE STEFANO HAS HAD TO
DEFEND SOMEONE FOR: “Sparked by a recent encounter
with law enforcement, a client hired the office to research
his potential criminal liability. The client explained that he
‘couldn't stop thinking about’ what the client had been wearing, and was hoping the client would ‘wear the outfit’ for him
again. The client politely said he was not interested, and
closed the door. We explored his options, but the client
elected to keep quiet about what had occurred. This is a
case I won't, or rather, can't, forget.”
FUNNIEST THING A JUROR HAS SAID TO STEFANO: “‘You
looked intimidating.’ That just doesn't make any sense.”
FAVORITE LAW/OPINION: “Arizona v. Gant: finally some
had been taking a walk when an officer pulled over, got out
recent Fourth Amendment jurisprudence that is pragmati-
of his patrol vehicle, and told the client that his outfit was
cally sensible.”
lewd. The officer offered to drive the client to his vehicle so
that he would not be seen. In an extremely awkward conversation in which I had to ask probing questions, the client
explained that he enjoys walking in very thin and tight
spandex‑type shorts. These shorts, with the help of an elas-
LEAST FAVORITE LAW/OPINION: “Any strict liability
criminal statute or statute that criminalizes ‘negligent’ behavior. They just do not make any sense and I just cannot
see how they serve any policy or moral based need.”
tic band, seemed to accentuate certain features. In my un-
FAVORITE QUOTE: “Men born to freedom are naturally
fortunate duty to be thorough, I asked the client to submit a
alert to repel invasion of their liberty by evil‑minded rulers.
picture of what he was wearing on the day he was contacted
The greatest danger to liberty lurk in insidious encroach-
by law enforcement. I instantly understood the officer's con-
ment by men of zeal, well‑meaning but without understand-
cerns, but conducted the research to determine the likeli-
ing.” (Justice Brandeis)
hood of a charge sticking. (Incidentally, the research
seemed to favor the client's ability to continue his ‘walks’.)
ADVICE TO COLLEAGUES: “I am far too young to give
any advice, i.e., ‘know when to be quiet.’”
Per the norm, I advised the client to call me if he was contacted by law enforcement and not to make any statements.
A few days after the consultation, the client scheduled a
meeting because he had received an unusual call. He
Our newer members have expressed
played the voice mail for me: ‘Hey “John”, this is “Bob”' we
interest in watching our more
met the other day on Main Street. I was hoping to talk to
experienced members in trial.
you, please give me a call.’ The client explained that the
only person he had met on Main Street was the police officer. I told him I would research the phone number and get
Therefore, we are requesting that you
e-mail Ben Kington at
back to him. The next day, the client came into the office
[email protected] if you have a
again, asking if I was available. He stated that there was no
trial coming up.
longer a need to research the number. Perplexed, I asked
why. The client explained that after he arrived home follow-
He will then post the
trial information on the listserve.
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COMMUNITY DEFENDERS, INC. GRANT
CONTINUING EDUCATION SCHOLARSHIP
**** PLEASE APPLY****
The CDI Continuing Education Scholarship is for legal professionals committed to the representation of indigent defendants in
criminal cases. The USD Community Defenders Committee urges ALL defense attorneys to apply. These scholarships are NOT
NEED BASED. Our goal is to encourage and promote excellent lawyering in our defense community. Every San Diego criminal
defense attorney qualifies.
TESTIMONIALS
"As a recipient of the USD Community Defender Scholarship, I was able to attend both the Capital Case
Defense Seminar in Monterey, CA and the Forensic Science Seminar in Las Vegas, NV. The Capital Defense
seminar was nearly a week-long event and the Community Defender Scholarship covered my expenses for
registration, travel, and lodging! The scholarship I received for the Forensic Seminar in Las Vegas covered
the same expenses. Not only were both seminars extremely useful, but it was a great way to network and
meet a plethora of other defense attorneys across the nation. Applying for this scholarship made it possible
for me to attend some of the most highly anticipated (and expensive) seminars that our defense community
has to offer. The application process is simple and self-explanatory, and the members of the selection committee are very responsive and efficient." Gerissa Santos

"I attended the annual seminar for California Appellate Defense Counsel (CADC), an organization with
more than 400 members who primarily handle appointed felony, juvenile and dependency appeals in the
Court of Appeal and the California Supreme Court. The seminar took place in Sacramento on February 28
and March 1. Attendees earned 10 hours of MCLE, and included one unit of ethics and one of stressreduction. There appeared to be more than 150 attendees in all.
There were some fantastic speakers at the seminar. Professor Imwinkelreid spoke about various foundational requirements for expert testimony based primarily on the recent Sargon case. Little known fact,
Sargon was the name of a king of ancient Akkad in Mesopotamia and lived more than 4000 years ago.
Coincidence? I leave it to you to decide. Kyle Gee, who has been doing appellate work for almost 40 years,
spoke about issues involving homicide and theories of derivative liability. Candace Hale, a graduate of Harvard Law School who left a job at a large SF firm in order to do criminal appeals, and has been deep into
therapy ever since, spoke about ways to manage case loads and remain sane in the insane world of appellate work. Candace went last because only she can hold the attention of an audience at 4 p.m. She is
a shiksa Woody Allen and a delight to listen to.
I am very grateful for receiving the CDI scholarship to attend the conference. Although the tuition is a
steal at $170, travel and hotel costs can put a dent in anyone's pocket. I often do not attend when the
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seminar ends up being in Sacramento, as it is every four years. But this year, the CDI scholarship made it
easy to attend and still make mortgage payments." George Schraer

Thanks to a scholarship awarded to me by Community Defender’s Inc., I was able to travel to Berkeley,
CA the first weekend in April to attend the annual “Defending Gang Cases Seminar” presented by the California Public Defenders Association. Among the six speakers was San Diego’s own Ricardo Garcia, of the
Multiple Conflicts Office.
Summarized here are some of the points I took away from the seminar:
1. When challenging the Deputy District Attorney’s assertion the “gang” to which your client belongs is
a “criminal street gang” under the STEP Act (Penal Code section 186.20 et seq.), point out the “gang”
would not meet the definition of an “enterprise” under the federal RICO statute (18 U.S.C. § 1961 et seq.).
Argue that unless your Deputy District Attorney has proven “a pattern of racketeering activity or collection
of unlawful debt” (per the RICO statute), the Deputy District Attorney has failed to establish the existence of
a criminal street gang for purposes of the STEP Act. Authority that a RICO type “enterprise” must be proven
under the STEP Act is found in an older California case, People v. Green (1991) 227 Cal. App. 3d 692, at p.
702. Note that in most cases, the Deputy District Attorney never seeks to prove “a pattern of racketeering
activity or collection of unlawful debt.” Instead, the Deputy District Attorney seeks only to prove the criminal
street gang’s goal is to instill fear in the community or respect, without proving an economic or incomeproducing component.
2. A member of a criminal street gang who commits a felony but who acts alone does not violate subsection (a) of section 186.22. (People v. Rodriguez (2012) 55 Cal.4th 1125.) Subsection (a) is the standalone substantive gang offense (“Any person who actively participates in any criminal street gang . . .”), as
opposed to subsection (b), which enhances the punishment for a separate target crime. Given the recency
of Rodriguez, if your client has a subsection (a) prior conviction where the facts fit Rodriguez (defendant
acted alone), run a collateral attack to strike the prior. Note: The holding in Rodriguez applies to subsection
(a), but not to subsection (b). (People v. Rios (2013) 222 Cal. App. 4th 542, at pp. 560-564.)
3. Although routine jail booking questions (i.e. date of birth, address, and other biographical information) do not require a Miranda warning, an affirmative response to a jail booking question to ascertain
whether the arrestee has any gang affiliation whereby the arrestee admits a gang affiliation and identifies
the gang may not be used against the defendant at trial unless the question is preceded by a Miranda
warning. (People v. Elizalde (2013) 222 Cal.App.4th 351, at pp. 373-381.) This holding is recent and a significant departure from precedent. Defense counsel should be prepared to object to and move to suppress
such statements made by the client to a jail intake booking deputy in response to an unMirandized jail intake booking question.
4. Do not refer to the prosecution’s gang detective as a “gang expert,” but rather as a gang cop with an
agenda.
5. Make the language in the Calcrim gang instructions work for you. There is plenty of good language
there to use.
Gary Roberts
C D B A - C D L C N E W S L E T T E R — APRIL 2014
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COMMUNITY DEFENDERS, INC. GRANT - CONTINUING EDUCATION
SCHOLARSHIP APPLICATION
The Community Defenders, Inc. Grant Continuing Education Scholarship is for legal professionals committed to the representation of indigent defendants in criminal cases. Please provide a resume with references including address and
phone numbers, a statement regarding your commitment to indigent criminal defense and a statement regarding the reasons you believe the CLE program you seek to attend will enhance your skills as a criminal defense attorney.
Please submit this application, your resume, and the statements requested above by mail at the University of San Diego
School of Law, 5998 Alcala Park, San Diego, CA 92110-2492. Also please e-mail Prof. Laura Berend at
[email protected] and let her know you submitted an application. All applications must be submitted at least four
weeks prior to the date of the CLE program you seek to attend for pre approval. If applying less than 4 weeks in advance,
the applicant will be considered for possible reimbursement.
Name:
Business address, telephone number and length of time at this office:
Email address:
Bar admissions, including dates of admission, specialization types and dates:
Name of program you seek to attend and sponsoring organization [include link or website of organization if applicable]:
Date, location and MCLE credits and hours:
Itemized amount you are seeking [cost of attendance, travel costs, accommodations, etc.]:
Describe your practice, including length of time in each practice area and percentage of time devoted to each practice area.
You have tried
felony and
You have tried
felony and
first chair on each case.
You have completed
misdemeanor jury trials where you been lead counsel.
misdemeanor jury trials where you have been second chair. Please list names of
criminal appeals.
Describe your most significant case to date:
C D B A - C D L C N E W S L E T T E R — APRIL 2014
Page 11
KUDOS KUDOS KUDOS
Congratulations to Kurt Hermansen and Mike Messina
for obtaining a dismissal. On April 1, 2014, they were able to
convince a federal prosecutor to dismiss a complaint that alleged possession with intent to distribute nine kilos of methamphetamine. The methamphetamine was found following a dog
alert at the checkpoint on Highway 86. Mike represented the
driver and Kurt represented his brother, the passenger. Because the brothers had answered an advertisement, it appears
they were unknowing couriers of the nine kilos of meth, which
were hidden in the bed of an empty trailer that was towed behind their vehicle. An early and vigorous defense investigation
resulted in a very quick dismissal of the case. The advertisement, which ran in Mexicali papers, sought people willing to
enter the U.S. to transport air conditioning units from the Imperial Valley to Los Angeles. Be on the lookout for ad cases!
Kudos to Kurt Hermansen (on a roll) who, less than two
weeks later, obtained a hung jury (9 guilty, 3 not guilty) in a
methamphetamine border bust case. The defense was that
Kurt’s client thought she was working for alien smugglers, not
drug smugglers. The vehicle Kurt’s client drove to the Calexico
West Port of Entry also contained about nine kilos of methamphetamine (about 20 pounds). Rather than retry the case, the
prosecutor (after talking to the jurors and his supervisor) decided to save governmental resources and let Kurt’s client
plead to false statement to a federal officer and conspiracy to
harbor aliens. Instead of many years in prison, the client will be
held accountable for what she actually did; she should get time
served when sentenced.
Congratulations to Bob Boyce for obtaining a great result
in a difficult child molest case. The defendant’s grandniece
and her family visited the defendant’s house approximately six
times when she was between four and eight years-old. Two
years later, she alleged the defendant took her to a trailer on
the property and molested her during each visit. Police took no
action until eight months after the accusations when they interviewed the accuser in the presence of her mother and without
forensic protocols. The first words from the accuser’s mouth
were, “When do I put him in jail?” Bob first tried the case in
2011 and hung all but two of the eight counts, which Chuck
Sevilla had reversed on appeal. (Discussed in the March 2013
Newsletter.) Only those two counts were retried, but the court
admitted the other incidents as 1108 evidence and instructed
the jury (over Bob’s strenuous objection) if they found those
incidents occurred by a preponderance of the evidence, they
could use them as proof of the charged offenses. Although the
circumstances of the initial disclosure were fishy, a difficulty in
the case was the lack of a known motive for the accuser to lie.
Bob’s defense emphasized the defendant¹s character. One
character witness believed in the defendant so strongly that
she traveled from Europe to testify. Another was a relative who,
as a young girl, spent time with the defendant and testified he
never acted inappropriately. The defendant also took the
stand. The jury hung 6‑6, and the prosecution eventually dismissed the case. The court indicated it would have dismissed
the case if the prosecution had not.
Kudos to Andre Verdun of the Crowley Law Group who
obtained a dismissal at prelim. Andre’s client was charged with
marijuana importation when she was attempting to cross the
Border, accompanied by others who were in possession of the
controlled substance and plead guilty. The government called
8‑9 Border Patrol agents to try and make their case, before the
judge dismissed the case telling Mr. Verdun, I am sure you have
a great argument, but there is no need since I am going to dismiss.
Congratulations to Laura Sheppard who obtained a hung
jury. Client was charged with shoplifting on two separate dates
at two separate Walmart stores, eight days apart, each with
separate co-defendants. All three co-defendants pled guilty
and gave statements incriminating the client as the
"mastermind", but he was the only one that never walked out of
the store with any stolen merchandise on him. Instead he
picked out the merchandise and then let others stuff it into a
box or a bag and try to steal it. All of it was on video surveillance. Client also had multiple priors, including a previous commercial burglary two years ago that was admitted for impeachment. Laura had the client testify. He basically claimed that he
knew about the first theft and was trying to talk his codefendant out of it, and that the second one was pure coincidence. None of the co-defendants could be subpoenaed so
they did not testify against Client. Laura used a handwriting
expert to show that the "shoplift list" found on one of the codefendants was written by her, not Laura's client. Laura's only
other witness, a co-defendant's father who was present but not
charged during the first theft, was threatened by the DA into
taking the 5th. The jury came back hung 8/4 (8 guilty; 4 not
guilty) on 3 of the counts, and 7/5 on the final count. Laura
just received an offer of 16 months (the pre-trial offer was 3
years!) on a case with a maximum exposure of over 20 years
(due to priors). Laura would like to thank Mike Hernandez,
Jerry Blank, Charlotte Deane, and law student Shakti Vadgama
who all helped her with this case.
C D B A - C D L C N E W S L E T T E R — APRIL 2014
Page 12
C D B A - C D L C N E W S L E T T E R — APRIL 2014
CRIMINAL DEFENSE BAR ASSOCIATION
Officers
President
Jeremy Warren
Vice-President
Kurt Hermansen
Secretary
Scott Practor
Treasurer
Julie Blair
Executive Director Ben Kington
CDBA SUSTAINING MEMBERS
Mark F. Adams
Edward A. Applbaum
Kerry Armstrong
Richard Barnett
Michael Berg
Gerald Blank
Allen Bloom
Jerrold Bodow
Heather Boxeth
Gary Burcham
John Cotsirilos
Michael Crowley
William Daley
Steve Feldman
Brian Funk
Robert Garcia
Marc Gellar
Tamara Green
Kurt Hermansen
Peter J. Hughes
George W. Hunt
Stan Jones
Stacey A. Kartchner
Alex Landon
CRIMINAL DEFENSE LAWYER’S CLUB
Officers
President
Elizabeth Missakian
Vice-President
Mark Adams
Treasurer
Mary Ellen Attridge
Secretary
Laura Schaefer
Executive Director Stacey A. Kartchner
Deadline for submissions for the
May 2014 newsletter is
noon, Monday, May 19, 2014
to [email protected].
CRIMINAL DEFENSE NEWSLETTER
Stacey A. Kartchner
105 West “F” Street, Suite 215
San Diego, California 92101
(619) 282-8200; fax: (619) 239-0056
[email protected]
www.sddefense.org
Board of Directors
Mary Ellen Attridge
Julie Blair
Heather Boxeth
William Daley
Steven Feldman
Mayra Garcia
Page 13
Kurt Hermansen
Peter Hughes
Stan Jones
Stacey A. Kartchner
Scott Pactor
Michael Pancer
Rick Layon
Elizabeth Missakian
Paul Neuharth
Okorie Okorocha
Michael Pancer
Brad Patton
Jack Phillips
Sandra Resnick
Robert Rexrode
Richard Rodriguez
Nancy Rosenfeld
Ivan Schwartz
John Phillips
Sandra Resnick
Charles Sevilla
Jeremy Warren
Thomas J. Warwick
Zaki Zehawi
Elisabeth Semel
Chuck Sevilla
David Silldorf
Victor Torres
Frank T. Vecchione
Jim Warner
CRIMINAL DEFENSE NEWSLETTER
Editor:
Layout/Design:
Contributors:
Stacey A. Kartchner
Natacha Hosy
Jeremy Warren, John Lanahan, and Stacey Kartchner