Category : criminal case process

Nuclear Smuggler or Kidnapped Iranian Businessman?

WASHINGTON (AP) — Amir Sairafi was an Iranian trader doing business in Dubai, the free-wheeling Middle East commerce hub. When he flew to Germany to take his oral exams for his master’s degree, he ran into the U.S. crackdown on illicit trade with Iran.

The unusual U.S. criminal case against Sairafi has put a face on the international campaign to stop Iran from trying to build a nuclear bomb.

Sairafi was arrested and deported to the U.S., where he pleaded guilty to one count each of conspiracy, money laundering and violating the 1995 Iran trade embargo. He is now serving more than three years in a prison unit in Indiana where many of the other inmates have been convicted on terror-related charges.

U.S. officials hailed his arrest in January 2010 as a blow to Iran’s nuclear smuggling networks, which the West says has supplied critical equipment to that country’s nuclear programs. Just this week, a U.N. watchdog agency released a report that accused Iran of conducting research specific to the development of nuclear weapons.

The Washington-based Institute for Science and International Security, which tracks Iran’s nuclear programs, describes Sairafi as a core member of the smuggling networks and the kind of big fish rarely caught in the U.S. net.

Sairafi told The Associated Press in emails from prison that he has no connection to the Iran’s government or its military. Despite U.S. claims outside the courtroom, he said he was never accused of trading in nuclear-related technology.

He pleaded guilty in November 2010. In March, he was sentenced to 41 months in federal prison.

Sairafi contended that the U.S. has used his case to intimidate merchants in the Middle East from trading with Iran.

“I believe (the) U.S. wanted to test a new strategy to arrest a non-American citizen outside U.S. borders and bring him in their soil and impose their jurisdiction on him. The U.S. tried to … show that doing business with Iran has high suffering and is costly,” Sairafi wrote the AP.

His case offers a glimpse into how the Obama administration has cracked down on Iran’s nuclear efforts, using the embargo and sanctions in lieu of military action. It also shows the difficulty in piercing the elaborate veil of secrecy that the U.S. says Tehran weaves around its nuclear efforts.

Investigators must trace transactions through unwitting legitimate businesses, complicit middlemen and front companies that Iran’s Revolutionary Guard uses to evade the U.S. embargo and U.N. penalties, said Matthew Levitt, former deputy assistant secretary for intelligence and analysis at the Treasury Department.

It’s even harder to build a criminal case, Levitt said. Despite a sharp rise in the number of prosecutions and a “whole bunch” of cases under investigation, he said, “the number of cases is still relatively small in regards to the size of the problem.”

U.S. officials declined to explain why, in public statements, they accused Sairafi of helping supply Iran’s nuclear programs, but did not do so in court.

It can be difficult to show that exports were intended for weapons without cooperation from Iran.

The AP asked the FBI for evidence of claims on its website that Sairafi’s case involved “the procurement of U.S. export-controlled equipment intended for Iran’s nuclear weapons program.” Days later, the FBI deleted the material from its site and said older case summaries are sometimes removed to make room for new ones.

“These cases don’t come around that often,” said David Albright, president of the Institute for Science and International Security. “They don’t get a lot of them, they don’t rush into them, and when they get a guy they’re going to come down like a ton of bricks.”

German authorities detained Sairafi, 42, in January 2010 at the Frankfurt airport on his way to the University of Wurzburg, where he was enrolled for a master’s degree in business course.

After being held in Germany for just over eight months, Sairafi said, he was told he was returning to Iran. Instead, he was handed over to U.S. marshals, who flew him to Los Angeles to face trial. It was his first visit to the United States.

“I was kidnapped, and I feel I am a victim of political disputes between two countries,” Sairafi said. The indictment accused Sairafi of working for nearly five years with businessmen Jirair Avanessian in Los Angeles and Farhad Masoumian in Tehran, forwarding more than a dozen shipments worth tens of thousands of dollars’ from the U.S. to Iran. All were charged with falsifying shipping documents in order to hide the ultimate destination of the devices. Avanessian was sentenced to 18 months in federal prison in July. Masoumian remains at large.

Sairafi is one of 40 prisoners in the Communications Management Unit at the prison in Terre Haute, Indiana, where inmates are under 24-hour video and audio surveillance and their communications with the outside world are strictly limited so they can be monitored.

Others inmates include John Walker Lindh, who was captured on a battlefield in Afghanistan in 2001 and is serving 20 years, and Shukri Abu Baker, co-founder of the Holy Land Foundation, serving 65 years for providing millions in aid to schools and welfare programs run by the Palestinian militant group Hamas.

Sairafi denied any knowledge that the vacuum pumps and parts he shipped to Tehran were intended for Iran’s nuclear program. “Vacuum parts have a wide range of applications and I do not know what they were intended for.” He added: “It is not in me to do anything that will contribute to the disruption of world peace.”

Sairafi’s lawyer, Matthew David Kohn, said his client has been questioned in prison by the FBI about “nuclear matters,” which he said Sairafi knows nothing about. Kohn noted that a prosecutor admitted at sentencing she had no evidence he had knowingly shipped nuclear components.

“Is there evidence or even an argument that these vacuum pumps were related to nuclear, biological and chemical weapons or materials?” the judge asked, according to the hearing transcript. The prosecutor shook her head.

A retired International Atomic Energy Agency inspector, Olli Heinonen, said some of the equipment listed in the indictment would have been useful in research on advanced centrifuge design as well as laser uranium enrichment technology — a much faster and cheaper way to produce reactor or bomb-grade fuel than gas centrifuges.

Myrtle Beach Felony Crimes -Bomb Threats and Making False Statements

Myrtle Beach South Carolina takes bomb threats and making false statements about explosive devices seriously. Under South Carolina Code Statute 16-23-750, you could be charged with a Class D or E felony when such threat constitutes threatening to kill, injure or intimidate individuals or damage and destroy property by using or threatening to use an explosive device or incendiary device. In South Carolina, there is no statute of limitations for any felony offenses. You can be arrested and tried and convicted at any time during or after the incident has occurred. Terrorist threat charges and convictions can result in fines; jail time of not less than 1 year or more than 15 years as well as courts may order anger management and violence prevention classes for individuals convicted of such crimes.

Case Example:

Saturday night, November 12, 2011, police shut down and evacuated Wal-Mart’s in Horry County, including the Wal-Mart in Myrtle Beach when Horry County Police said a caller using a phone booth along 544, told a 911 operator that they had left a bomb in a Wal-Mart store that might go off at 9 p.m., but did not disclose the exact location. Since the threat involved all of the super centers located on the Grand Strand and neighboring Myrtle Beach area police evacuated both the Wal-Mart in Carolina Forest off highway 501 and the Wal-Mart on Seaboard St. in Myrtle Beach. Police reported that they did not find a bomb in either location.  It is not the first time that Wal-Mart has had bomb threats made against it. Police are continuing their investigation to find out who made such a prank call. Police consider this type of threat a high felony offense with serious consequences.

Attorney Assistance

If you are charged with making a bomb threat or giving false information about an explosive device, you are facing serious felony charges in South Carolina and require the assistance of an experienced criminal defense attorney. A South Carolina criminal defense attorney can help in presenting all the facts of your case. The attorney will also investigate whether your rights were violated during police interrogation, whether you were given your Miranda Rights, and whether the police conducted any illegal search and seizure during your arrest. The attorney may also be able to help get your charges reduced, dismissed, or obtain probation, community service or attending of anger management or violence prevention classes.

Sources:

http://www.associatedcontent.com/article/9145703/bomb_scare_temporarily_closes_area.html?cat=8

http://www.thetandd.com/news/opinion/article_aaee4316-f8ff-11e0-8baa-001cc4c03286.html#ixzz1dmevlsAp

http://www.judicial.state.sc.us/summaryCourtBenchBook/HTML/OffensesF.htm

http://www.carolinalive.com/news/story.aspx?id=685986

http://statutes.laws.com/south-carolina/title-1

Before The Occupy Wall Street Protests There Was Ocularpation.

Under Article 245.01 of the New York Penal Code, a person can be found guilty of the crime of indecent exposure if they appear in a public place and expose private or intimate body parts, including genitals, pubic area, buttocks or a women’s breast below the top of the areola, even if there is no violence or touching. Indecent exposure in New York is considered a misdemeanor sex crime. However, if there is any contact between the offender and another person, it could be considered sexual assault, which is a felony crime. If a minor is involved as a victim of indecent exposure, the punishment is harsher. Penal Code Section 130 defines sexual contact as “any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.”

Breastfeeding and performing nude in a play, theatre or entertainment venue are excluded under the law. Nudity in strip clubs in New York is not allowed where alcohol is served. Many strip clubs have “juice bars”, which permits their nude employees to be anywhere in the club. Each municipality is allowed to pass their own nudity laws regarding entertainment and the restriction of strip clubs. It is also illegal to display offensive sexual material in a public place under Penal Code Sections 245.10 and 245.11.

Penalties

For a Class A misdemeanor sex crime, you may be subject to a fine not to exceed $1,000 and/or jail time. If you are a repeat or habitual offender, your sentence will be increased. Punishments for repeat offenders and felony sexual assault convictions include jail time; fines, mandatory rehab, and you may be required to register as a sex offender on the National Sex Offenders Registry.

Case:

Three people were arrested on Monday August 1, 2011, after taking off their clothes in front of the New York Stock Exchange during an art performance project involving dozens of people. The three were taken to the 1st Precinct stationhouse in Tribeca and released with a summons. The performance was organized by artist Zefrey Throwell, who gathered 50 people as part of an art event entitled “Ocularpation”, where participants pretended to be traders, janitors and secretaries. Zefrey’s inspiration for the performance was his 65 year old mother who lost most of her retirement savings during the Wall Street crash and has now been forced to return to work. Zefrey defended his project as an educational project about transparency that he believes Wall Street needs.

Although an arrest for indecent exposure or public indecency is considered a lesser sex crime in New York, it still should be taken seriously. It is important to hire an experienced New York criminal defense attorney to represent you. The attorney can argue that you were falsely accused or possibly that your first amendment rights to freedom of speech were violated to get the case dismissed. If you have been convicted of previous sex crimes, the attorney may be able to arrange a plea bargain, get you reduced fines and possible avoidance of having to register as a sex offender.

Examples of Illinois Drug Crimes

Unlawful possession of a controlled substance with the intent to deliver (also referred to as “UPCS”) is a very serious felony offense in Illinois. Intent to deliver in Illinois means manufacturing, delivery, or possession with intent to deliver. Drugs that are commonly involved under UPCS are cocaine, crack, heroin, ecstasy, methamphetamine, mushrooms, or LSD. Penalties and fines are substantial.

720 ILCS 570 Illinois Controlled Substances Act

UPCS offenses carry the following sentences and penalties under 720 ILCS 570 Illinois Controlled Substance Act if you are charged with possession of cocaine, crack, heroin, ecstasy, methamphetamine, mushrooms or LSD:

·    Possession of less than 1 gram is a Class 2 felony offense with a 3-7 year prison sentence. Fine can be $200,000. Probation is possible.
·    Possession of 1-15 grams is a Class 1 felony offense with a 4-15 year prison sentence. Maximum fine allowed is $250,000. Probation is possible.
·    Possession of 15-100 grams is a Class X felony offense. No probation is available. Mandatory minimum sentence is 6 years in prison with a maximum 30 years. The fine can be $500,000.
·    Possession of 100-400 grams is considered an enhanced Class X felony offense or Super X offense which carries a prison sentence between 9-30 years. No probation is available. The fine can be $500,000.
·    400-900 grams is an enhanced Class X offense (Super X) with a 12-50 year prison sentence.  No probation is available. The fine can be $500,000.
·    900 or more grams is a Class X enhanced offense (Super X) with a 15-60 year prison sentence.  No probation is available. The maximum fine is $500,000.

Case Examples:

Agents with the State Line Area Narcotics Team (SLANT), in conjunction with the Freeport Police Department Street Crimes Unit, arrested Terrance D. Young, a 37 year old Freeport, Illinois man, on June 10, 2010, with unlawful possession of a controlled substance with the intent to deliver, which is a Class X felony, and unlawful possession of cannabis, which is a Class C misdemeanor, after allegedly finding 77 grams of crack cocaine, 2 grams of cannabis, $430 cash and packaging materials at his residence. According to John Vogt of the Stephenson County State’s Attorney’s office, possession of 77 grams of cocaine was a significant amount. A Slant commander, who wishes to remain unnamed, said the arrest was the result of an ongoing investigation against Young regarding the sale of narcotics. SLANT is comprised of a joint effort of police officers from the Freeport, Loves Park, Rockford, and Monroe, Wisconsin police departments, as well as from the Stephenson County and Green County, Wisconsin sheriff’s departments and the Illinois State Police. If convicted of the possession of 77 grams of cocaine, a Class X felony in Illinois, which is the most serious of his charges, Young faces a 6-30 year prison sentence. Young was also charged with other felony charges for unlawful delivery of a controlled substance within 1,000 feet of school from a crime that occurred in March 2010. Bond for all charges was set at $200,000.

Another case involving the Freeport Police was the arrest of 21 year old Darren T. Miller on June 26, 2010, on felony charges of unlawful possession with intent to deliver a controlled substance within 1,000 feet of Embury United Methodist Church, located at 515 S. Galena Ave. in Freeport. The police allege that Miller possessed, with the intent to deliver to another person, more than 1 gram but less than 15 grams of cocaine. Miller was taken to Stephenson County
Jail, and bond was set for $75,000. If convicted of this Class 1 felony offense of possession of 1-15 grams of cocaine, Miller could face a 4-15 year prison sentence in Illinois and a maximum fine of $250,000. Probation is also possible.

If you get arrested in Illinois for unlawful possession with intent to deliver a controlled substance, you should hire an Illinois criminal defense attorney. The attorney can argue a defense such as illegal seizure to get your case dismissed, or you may be eligible for a diversion program for drug treatment if you have a drug problem. Your attorney may be able to negotiate a lesser offense with a plea bargain to get your charges reduced to a Class 2 felony so you can avoid jail time and receive probation instead.

Criminal Procedure: Jury Trial vs. Bench Trial

By: Vince Imhoff, Attorney at Law and Ariella Rosenberg

It is common knowledge that defendants in the United States have the right to a trial by jury, as is clearly stated in the Sixth Amendment of the United States Constitution: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. However, what many defendants dont realize is that there is the possibility of waiving the right to a jury and having a trial that is only before a judge. Although perhaps not intuitive, this type of trial, known as a bench trial, can in some situations be preferable to a trial by jury.

In July of 2005, Richard Hawkins, a former executive facing fraud charges in San Francisco, saw the benefits of waiving his right to a jury when U.S. District Judge Martin Jenkins acquitted him of all charges. Amid the growing public resentment of white-collar criminals, Mr. Hawkins may not have fared so well had he been tried by a jury of his peers.

What is a Bench Trial?

A bench trial is a trial before a judge instead of an entire jury. The general provisions for a trial by bench are laid out in the Federal Rules of Criminal Procedure: In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion. (Fed. R. Crim. P. 23(c)). In a bench trial, a judge must determine all questions of law and be the trier of fact, whereas in a jury trial the judge is responsible for questions of law and the jury is the trier of fact.

In general, bench trials are governed by the same rules as jury trialsthe rules of evidence and procedural methods are the same in both. Specific procedure is determined by the applicable state code. New York State Consolidated Law specifies, for example: The provisions governing motion practice and general procedure with respect to a jury trial are, wherever appropriate, applicable to a non-jury trial. (N.Y.C.L. 320.10).

Despite similar procedural guidelines, however, bench trials are often less formal that jury trials. For example, the court may allow the admission of provisional evidence in a bench trial, as this evidence could always be struck in the future without fear of misleading a jury. Additionally, bench trials can often be faster than jury trials, as time is not spent selecting, sequestering, and instructing a jury.

Who Is Eligible for Bench Trials?

Under the rules of Federal Criminal Procedure: If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves. (Fed. R. Crim. P. 23(b)). Although this is the general rule, specific criminal procedure varies by state. In New York, for instance, Except where the indictment charges the crime of murder in the first degree, the defendant may at any time before trial waive a jury trial. (N.Y.C.L. 320.10).

Even if a defendant is eligible for a bench trial, it is important to recognize that both the defendant and the prosecution have the right to present the case to a jury . Therefore, the prosecutor assigned to the case must approve the waiver of the jury trial. Thus, a defendant going before a judge who is known to be more likely to acquit may not receive the prosecutions approval of a bench trial, if the prosecution thinks that the judge would be inclined to rule in a defendants favor.

Finally, it should be noted that in certain situations, such where the charge is for a petty offense (such as an infraction in California, or any crime where the maximum sentence is less than six months in a federal prosecution), or the defendant is a juvenile, the right to a trial by jury may not apply, and the defendant will be subject to a mandatory bench trial. Persons accused of violating probation in most jurisdictions are entitled only to a court trial. In the event that the probation violation is also charged as a new criminal offense, the court may, on the prosecutors motion, simultaneously hear a bench trial on the probation violation while the jury hears the evidence and delivers a verdict on the new charge. Thus, even if the jury acquits the defendant of the charge, the judge may be convinced that the defendant violated her probation, and impose punishment for that violation. In general, however, defendants charged with offenses for which they face significant jail or prison time may have the opportunity to choose whether or not to waive the right to be tried before a jury, making it important to seek the advice of a trained, legal professional when considering ones options.

What Are the Advantages/Disadvantages of Bench Trials?

An experienced attorney will weigh the pros and cons of a trial by bench with a client to determine if this type of trial would be to a clients advantage. Generally, defense attorneys view juries as the safer option. This is in part due to the fact in the event the jury cannot reach a verdict, the defendant may be let free, or offered a highly advantageous plea bargain if the prosecutor does not wish to retry the case, and at the very least, will have a chance to fight the case again. Out of a jury of 12, it is more likely to find at least one sympathetic ear than when going before a single judge. Furthermore, unlike judges, jurors do not see hundreds of identical cases in any given year and are may be more sensitive to the particular circumstances of a defendants case than a judge might be. In some jurisdictions and in some cases, however, a jury may be composed of less than 12 people, and not all jurisdictions require a unanimous verdict from a jury. For example, Colorados Constitution, Article 2, Section 23, provides that The right of trial by jury shall remain inviolate in criminal cases; but in criminal cases in courts not of record, may consist of less than twelve persons, as may be prescribed by law. Floridas Rules of Criminal Procedure only guarantee a 12-member jury in capital casesother cases may have as few as six jurors

In certain instances, however, a bench trial could prove to be to a defendants advantage. This type of situation might arise if the legal question in the case is based on technical arguments requiring the type of legal distinctions that only a judge is likely to understand. Also, a defendant who faces a weak case, but has an extensive prior record, may fear that if he testifies, a jury would tune out the facts of the case and focus on the prior record.

In some jurisdictions, bench trials are common, and judges appear more willing to truly weigh the evidence and acquit a defendant in the event the prosecutor cannot prove the case beyond a reasonable doubt. In other jurisdictions, bench trials are quite rare, and it is possible that judges are not entirely used to the ramifications of acquitting a defendant. In the local slang of some courthouses, a bench trial is known as a slow plea, meaning that the local culture understands that the purpose of a bench trial is to find the defendant guilty, and present details of the case to the judge for purposes of sentencing. In such a jurisdiction, a defendant who believes in her innocence would be ill-advised to waive a jury.

Even if you ultimately choose the more common option of invoking your right to trial by jury, it is important to know your right to request that the prosecution consent to a trial by bench, and to work with an attorney who can advise you on the nuances of your particular situation to ensure the best possible outcome.

Post Conviction Relief

Once a conviction occurs, a person may appeal the decision of the court unless he or she specifically forfeited that right during a plea bargain.  However, even if someone gives up the right to appeal that person may still appeal issues such as lack of jurisdiction or legality of the sentence.  Appeals are a request to a court to resolve disputed issues of law or fact.  An example of a disputed issue of law may be reading or wording of certain jury instructions or a trial court’s ruling on certain motions.  A disputed issue of fact could be something like a person is convicted of murder, but the person they are accused of killing is actually alive.

Another avenue of post conviction relief is filing a writ of habeas corpus.  Depending on local rules and the issues involved, a person may be able to file this at the same time they file the appeal.  The basic difference between writs of habeas corpus and appeals are the basis of the claim.  Most habeas corpus writs challenge the legality of a person’s detention.  For example, a person’s Constitutional rights were violated in the court process and therefore are being held illegally.  A requirement for most writs of habeas corpus is the exhaustion of all appellate remedies (i.e. appealing and losing at both the appellate and the state’s highest court) prior to filing.  The purpose of this is to give the appellate courts a chance to remedy the mistake.  Also, a person must be “in custody” to file such a writ.  In custody can mean not only in physical custody of the state, but also on parole.   

Appeals follow a different procedure than writs of habeas corpus.  There are different requirements and time lines attached to writs.  Each state has their own deadlines for filing appeals and writs.  It is important to check the deadlines because appellate courts are very unforgiving if a deadline is missed.

To begin the appellate process, a person must file a notice of appeal with the trial court.  This is a way of telling the court the defendant intends to appeal a conviction.  Most states, such as California, do not require a defendant to identify the issues upon which they will appeal.  They must simple file a notice with the clerk. 

Once the notice is filed, the court reporter will prepare “the record”.  This is the written verbatim transcript of all proceedings related to the case.  Once the record is received, the appellate attorney can file a brief, which is a detailed explanation of everything they claim went wrong and the remedy sought.  The state then gets to file a reply, which often claims no mistakes were made.  After the state files, the defendant may file their own response. 

An appellate court has several choices in deciding your appeal. It can affirm the judgment of the trial court, in which case your conviction and sentence remain unchanged. This is what happens in the great majority of cases. It also can modify the judgment. This usually means that the verdict remains the same, but some aspect of the decision, such as the sentence, or conditions of probation, is changed. Occasionally, the court will reduce a conviction to a lesser-included offense (i.e. manslaughter as a lesser-included offense to murder), instead of reversing the judgment. The reviewing court can also send the case back to the trial court with directions that require the trial court to do something further to determine whether the judgment should stand or be reversed or modified.

Finally, the reviewing court can also reverse the judgment of the trial court, in part or entirely, but this does not occur in the majority of the cases that it decides. Even if you gain a reversal, the case will probably not be over. It is rare for the appellate court to dismiss a case outright, even when it reverses the trial court’s decision. Usually the case is sent back to the trial court for a new trial. Depending on the circumstances of the reversal, the district attorney’s office may decide to retry the case on the original counts of conviction. In other cases, it may offer a plea agreement. On occasion, it will dismiss the charge.

The court will write an opinion stating whether the judgment is affirmed, reversed, or modified, and giving the reasons for its decision.

If the appellate court does affirm the trial court’s judgment, the appellate attorney should review its opinion carefully to decide if there are any further steps to be taken in the case. Although there are further steps that can be taken, in most cases each step after the first appeal is discretionary with the court.

A party dissatisfied with the decision of the reviewing court may petition their state’s highest court (if there is one beyond the initial appellate court) for review within a certain number of days after the decision becomes final.   The number of days varies by state.  The higher courts have discretion on whether to review decisions meaning they do not have to take a case unless they want to take it.  If you or your appellate attorney believe your case contains a substantial federal question, such as the violation of a federal constitutional right, you may wish to consider filing a petition for review with the highest court to preserve your right to seek relief in federal court by means of a petition for a writ of habeas corpus in the federal district court, or a petition for a writ of certiorari in the United States Supreme Court.  You may also file a petition for review if your case presents an important issue of state law or an issue on which the appellate courts have issued conflicting decisions.

Due Process in America?

LOS ANGELES DAILY JOURNAL

By Claudia Rosenbaum

Recently, the Due Process Clause guarantees afforded by the constitution have been treated as mere discretionary guidelines. Earlier this month in New York City hundreds of protestors were held for close to three days denied their due process rights. Three days would seem like a short time to one citizen who was held in North Carolina without his due process rights for close to two years. While the situations and circumstances of arrest were much different, the refusal of law enforcement in both cases to grant fundamental constitutional rights was the same. The denial of due process meant no access to an attorney, no opportunity to post bail and no arraignment to face charges before an impartial judge.

Protestors Denied Due Process Rights

Later this month, the New York Supreme Court will decide whether to make a permanent contempt holding and fine the New York City administration for denying protestors their fundamental due process rights during the Republican National Convention. Instead of abiding by New York law, which requires individuals to be charged within 24 hours of arrest, more than 600 protestors languished in holding pens for days. They were denied access to an attorney. They were denied an opportunity to post bail. And they were denied their legal right to an arraignment. The protestors were released only after acting New York Supreme Court Justice John Cataldo held the city in contempt and threatened the city with $1,000 fine per individual held past his ruling. By the time they were freed, the convention they had come to protest was over.

Officials Deny Detaining Protestors Unnecessarily

New York City officials denied purposefully detaining the protestors unnecessarily. Officials said the city was overwhelmed with the influx of civil disobedient protestors. In total, 1,821 people were arrested during the convention, the largest number of arrested from any political convention. But New York Police Commissioner Raymond W. Kelly had planned ahead for such numbers. His department, he said, spent 18 months planning and studying the opposition and deployed 10,000 NYPD officers for the convention. Kelly even helped oversee the creation of a multi-agency command center, which served as the nerve center where 66 separate city, state and federal agencies coordinated their work. Due to security considerations protestors had already agreed before the start of the convention to have their rights to free speech curtailed and limited to free speech zones.

Yet, for all the advance preparations there were no efforts being taken to process the protestors after their arrest. Instead of charging and arraigning individuals within 24 hours as required by New York law, many of the protestors languished in holding areas for days denied their fundamental right to due process. This occurred even though the courts calendar had been cleared for the week and additional personnel were standing by to handle the influx.

Previous Case of Denied Right to Due Process

Inexplicably, this flagrant violation of the Fifth and Fourteenth Amendments only a month after the US Supreme Court emphasized the importance of ensuring that citizen is allotted their right to due process. In that case, Hamdi v. Rumsfeld, the Supreme Court held that every US citizen has the right to due process even an alleged enemy combatant. In the Hamdi case, the singular undisputed fact was that Yaser Esam Hamdi was apprehended on the battlefield of Afghanistan. A declaration from a Defense Department official alleged various details regarding Hamdi’s trip to Afghanistan, including his suspected affiliation with a Taliban unit during the time when the Taliban was battling U.S. forces. His father, however, contends he was working as an aid worker in Afghanistan. Neither party proffered any evidence to back up their assertions as any requests for an in-camera review, a closed showing of evidence before the judge, were denied.

Justice Sandra Day OConnor, who wrote the decision for the majority, said that [d]ue process demands that a citizen held in the United States should be given an opportunity to legally contest the factual basis for that detention. History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat, she added. The Hamdi decision reaffirmed the fundamental nature of a citizens right to be free from involuntary confinement by his own government without due process of law.

Civil Infringements and Denial of Due Process

As a criminal defense attorney, it is frustrating to practice in a climate which permits civil infringements and a denial of due process. In todays age of terror warnings and threats that there has already been an unprecedented encroachment on not only our constitutional rights but also on our civil liberties. Under the fog of war, these infringements have gone unchallenged. And while for a majority of Americans, the concerns of an enemy combatant or even of the protestors seem far removed, the encroaching losses of liberties that the Supreme Court addressed are closer to home than most realize.

Allowing the police to sidestep the constitution at their discretion is an affront to our democratic principles. The framers of the Constitution, specifically through the Fifth Amendment, sought to ensure our nations citizens are not deprived of life, liberty or property without due process of law. Yet, somehow, civil liberties are being brushed aside. The government, playing on the nations fears has used this period to justify forgoing civil liberties which they reasoned was a small price to pay for national security. We, as a nation, must keep alert, not only from terrorists, but from those who would threaten and deny us our constitutional rights.

Claudia Rosenbaum is an associate with Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense.

Three Strikes Law Costs Too Much, Ruins Too Many Lives

LOS ANGELES DAILY JOURNAL

By Vince Imhoff and Claudia Rosenbaum

Leondro Andrade took nine videotapes from Kmart, intended as Christmas presents for his niece, and quietly slipped them into his waistband. His crime, however did not go unnoticed, and he was apprehended shortly afterward by security guards.

When Misdemeanors Turns Into Felony Offenses

While the theft of the videotapes is defined as a misdemeanor petty theft, it is also labeled a wobbler, which gives the prosecutor the discretion to charge the offense as a felony. Unfortunately for Andrade, the prosecution used that discretion. He was fond guilty, and with two prior strikes on his record, unlucky Andrade was sentenced to 50 years to life.

As a practicing criminal defense attorney for seven years, Ive had to explain to distraught clients this disproportionate sentencing scheme: how a minor misdemeanor charge could, in fact, transform into a felony and result in a permanent strike, and if there are any prior felony convictions bring an even more severe penalty.

Harsh Penalty of Three-Strikes Law

While the decision as how to prosecute a wobbler is at the discretion of the prosecutor, the trial court, at the times of sentencing, has the authority to reduce a felony charge to a misdemeanor. Under the states three-strikes law, any felony can constitute a third strike and thus may subject a defendant to a term of 25 years to life in prison. After a second felony conviction, and offenders sentence is double what a single felony conviction would demand. Three-strikes is applied after the third conviction, with an uncommonly severe penalty of 25 years to life.

Three-Strikes Law Also Burdens the State

While the cost to an individual defendant is great, this practice of getting tough on crime also places a great burden on the state.

One year of jail for each criminal costs the state $33,152. If you jail an individual for life, the costs reach upward of $1 million dollars per inmate.

As the state Legislature and Gov. Arnold Schwarzenegger work to hammer out a budget agreement that would enable the state to climb out of its current fiscal crisis, now is the correct time to look seriously at cutting wasteful government spending in corrections.

The state allots $5.3 billion a year to the Department of Corrections, or 6 percent of the states budget. But even this is not enough. The Corrections Department consistently runs a deficit and this year alone ran $330 million over budget. Eliminating unduly prohibitive sentencing not only would be a way to stop the questionable practice of saddling petty criminals with life sentences but also would help the state save money.

Benefits of Not Treating Petty Offenses as Strike Offenses

For the second time in two years, state Sen. Byron Sher, D-Standord, proposed eliminating the prosecutions discretion to treat petty offenses as felonies and strike offenses.

This proposal would save the state $30 million a year. While a $30 million savings is perhaps but a small dent in working toward a balanced budget, it is a move in the right direction.

Besides the added expenditure this overzealous form of prosecution and incarceration is causing the inevitable overpopulation pressure on our overburdened Corrections Department. The states prison population has been increasing steadily over the past five years.

Currently, 162,307 people are incarcerated, compared to 120,000 in 1999.

Evidence Shows Many Incarcerated for Petty Crimes

A Recent study by the Sentencing Project, a prison advocacy group, found the increase was not caused by a growth in crime, which fell 35 percent from 1992 to 2002. It was, instead, a direct result of the more punitive laws adopted by Congress and state legislatures as a part of the movement to get tough on crime.

A November 2003 report on the three-strikes law found that, while 35 percent of second-and third-strikers were serving time for crimes against people, 65 percent were imprisoned for nonviolent property and drug crimes.

Overall, 57.5 percent of the states three-strikes cases involved a nonviolent offense as the third strike, according to a report from the Sentencing Project. The report also found that 20 percent of inmates in the state are serving life sentences.

Aging Inmate Population Would Require Elderly Care

Jailing petty offenders for life also means that the state institutions will be saddled with an ageing prison population. By 2026, 30,000 three-strikes prisoners will be serving sentences of 25 years to life, according to a projections by the Sentencing Project. And with the average third-striker 36.1 years old, state prisons are going to have to learn how to cope with issues involving the care of elderly inmates.

The states beleaguered prisons are not equipped to handle this type of volume. Most correctional institutions in the state are forced to triple-bunk inmates in small cells. In addition, the correctional guards are demanding an 11.3 percent pay raise, $200 million, for the additional work involved in monitoring and securing overcapacity institutions. With prison costs skyrocketing, locking up petty thieves for life only serves to exacerbate these institutional problems.

Time for New Approach to Three-Strikes Law

Shers proposal to eliminate state prison as a sentencing option for those people convicted of PC Section 666, petty theft with a prior, was originally tacked onto the budget after the budgets revision in May, it did not make it out of committee. This was not Shers first attempt to pass such a proposal; he introduced it in the previous legislative session. Ultimately, the proposal died on the Senate floor.

It is time for the Legislature to revamp the three-strikes law to ensure that injustices like Andrades dont continue. At a time when the states finances are stretched thin and the Department of Corrections spending is out of control, this would be badly chosen policy. While those convicted may be petty thieves, can we really afford to fill up our overburdened prisons with petty offenders?

Sentences such as 25 years to life should be reserved for habitual violent criminals, not videotape thieves.

Claudia Rosenbaum is an associate with Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense.  Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense.

Sentencing Laws

In January 2007, the United States Supreme Court struck down a California sentencing law that allow judgesrather than juriesto impose longer prison terms based on aggravating circumstances. The ruling, which said that the law violates the Sixth Amendment right to a jury trial, marked the most recent in a series of similar rulings since 2000 and has far reaching implications for state and federal governments as well as for those who have been convicted and/or accused of a crime.

The attorneys of Imhoff & Associates know the law and are committed to safeguarding the constitutional rights of those who have been charged with a crime. If youre facing criminal charges or have been convicted of a crime and feel your rights were violated, please contact us today for a FREE case evaluation with a respected and proven criminal defense attorney.

Cunningham v. California

The Supreme Court ruling was based on a case involving a police officer convicted in 2003 of molesting his young son. California sentencing laws dictate that individuals convicted of sexually abusing a child under the age of 14 automatically receive a prison term of six, 12, or 16 yearsdepending on aggravating facts or circumstances. The judge who ruled in the original criminal case found five aggravating circumstances and consequently sentenced the man to the maximum 16 years.

Right to a Jury Trial

The Sixth Amendment guarantees U.S. citizens the right to a trial by jury, and it is the jury, not the judge, who must determine whether or not to increase penalties based on aggravating facts. Further, juries must carefully weigh those facts to determine whether or not they meet the reasonable doubt standard.

According to the Supreme Court decision, it is not within a judges power to impose stricter sentences based on aggravating circumstances that have not been found by a jury and have not been proven beyond a reasonable doubt.

Legal Help

If you’ve been charged with a crime, the attorneys and legal staff at Imhoff & Associates can help. We can evaluate your case, develop a defense strategy, and work vigorously to ensure that you dont face excessively harsh or undue punishment.

Please contact us today for a no-cost consultation with an aggressive criminal defense attorney who can ensure that your legal rights are protected and help you plan a course of action.

What is a Citizens Arrest?

By: Collin McKibben, Attorney at Law & Ariella Rosenberg

Everyone is familiar with the term citizens arrest: we have seen it on TV, read about it in books, and even heard about it in social circles.  Surprisingly, however, almost nobody really understands what a citizens arrest is, or legally, what it represents.

A citizen’s arrest is an arrest performed by a civilian who lacks official government authority to make an arrest (as opposed to an officer of the law).  An arrest, as defined by Black’s Law Dictionary, is “The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime.” Ex parte Sherwood, (29 Tex. App. 334, 15 S.W. 812).

Although generally the person making a citizens arrest must be a citizen, in certain states, a citizens arrest can be carried out by a civilian who is not a citizen (for example, an alien or illegal immigrant).  A citizens arrest does not necessarily mean an arrest made by a single individual who happens to witness a crime.  For example, a department store may also carry out a citizens arrest in the course of apprehending a shoplifter.

Legal Requirements for Making a Citizens Arrest

The right to making a citizens arrest goes back to our roots in English common law.  Historically, before the modern infrastructure of police departments, citizen’s arrests were an important part of community law enforcement.  Today, citizens arrests are still legal in every state, although state laws pertaining to citizens arrests are not uniform.  In general, all states permit citizens arrests if a criminal felony (defined by the government as a serious crime, usually punishable by at least one year in prison) is witnessed by the citizen carrying out the arrest, or if a citizen is asked to help apprehend a suspect by the police.  Variations of state law arise in cases of misdemeanors, breaches of the peace, and felonies not witnessed by the arresting party.

For example, California Penal Code mandates:
A private person may arrest another: 1. For a public offense committed or attempted in his presence.  2. When the person arrested has committed a felony, although not in his presence.  3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. (C.P.C. 837).

In contrast, New York State Consolidated Laws hold that:
Any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence. (N.Y.C.L. 140.30).

Unlike the California statute, which only permits citizens arrests in cases of felony, New York law extends the possibility for making a citizens arrest to any offense committed in [ones] presence.  Additionally, in cases where the citizen has not necessarily witnessed the crime being committed, California law allows citizens arrests when a citizen has reasonable cause for believing the person arrested to have committed [a felony], whereas New York law applies only to situations in which person has in fact committed a felony. Distinctions such as these are importantunwarranted citizens arrests can result in repercussions (such as law suits) for well-meaning citizens who attempt to make arrests without understanding local laws.  It is important to be familiar with the laws in your particular state should you want to carry out a citizens arrest, or should a citizen try to unlawfully detain you.

Anatomy of a Citizens Arrest

Once a person has committed an offense meriting a citizens arrest (under the applicable state law), the arresting party must follow certain guidelines to detain and deliver to authorities the suspect in question.  Acceptable guidelines for carrying out a citizens arrest also vary by state.  In general, the arresting party must notify the suspect as to why he or she is being arrested, and may enter the building or private residence where the suspect is residing, using a reasonable amount of force to apprehend the suspect.   In California, for example, To make an arrest, a private person, if the offense is a felonymay break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired.  (C.P.C., 844).   In New York, A person may arrest another person for an offenseat any hour of any day or night.  2.  Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.  3.  In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law.  (N.Y.C.L. 140.35).

Once the suspect has been taken into custody (by the citizen), it is the citizens responsibility to deliver the suspect to the proper authorities in a timely fashion.  In California, A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer.  (C.P.C. 847).  In New York, a citizen must also act without unnecessary delay to deliver a suspect to an officer of the law. (N.Y.C.L. 140).

Dangers of Making an Erroneous Citizens Arrest

Making a citizen’s arrest maliciously or with insufficient evidence of wrongdoing by the arrested individual can lead to civil or criminal penalties. Additionally, it is in violation of a suspects rights for a citizen making an arrest to use unnecessary force, to intentionally harm the suspect, to hold the suspect in unsafe conditions, or to delay in turning the suspect over to authorities.  A citizen making an arrest is acting in the place of an officer of the law, and as such, is required to uphold the same rights and civil liberties as an officer of the law must uphold. 

A citizen who violates a suspects rights, or who violates the applicable state law in detaining the suspect, (for example, arresting a suspect for a misdemeanor when the state statute requires a felony for a citizens arrest), risks being sued or even charged with a crime.  Additionally, if it is found that the arresting party did not meet the pertinent state requirements for a citizens arrest, any contraband found on the suspect will have been found illegally, and charges may be dropped entirely.

If you feel that you have been unfairly arrested by a citizen, or if you have been charged with illegally detaining a suspect during an illegitimate citizens arrest, it is important to seek the counsel of an experienced attorney.  A good attorney will demonstrate familiarity with state laws, and as such will help you to ensure the best possible outcome of your case.