Justice for All

Ninth Circuit makes statutory rape deportable.

2007-08-18T05:45:00.000-07:00

On August 16, 2007, the Ninth Circuit Court of Appeals for the Ninth Circuit ruled that statutory rape pursuant to California Penal Code 261.5(c) was a deportable offense. In Juan Elias Estrada-Espinoza vs. Gonzales, the Ninth Circuit upheld a BIA decision ordering Mr. Estrada-Espinoza deported.

The facts are striking: Mr. Estrada-Espinoza met the alleged victim when she was 16 and he was 20. They began dating and with the consent of both sets of parents moved into one of the parents' homes. Eventually, they got their own apartment and raised a child together.

The district attorney succeeded in convicting Mr. Estrada-Espinoza of, among other offenses, statutory rape in violation of California Penal Code 261.5

The Ninth Circuit upheld the BIA's defining the 261.5 offense as "sexual abuse of a child" and therefore and aggravated felony and therefore deportable.

This case has major ramifications in places where there is a large number of Mexican American immigrants, of any other group of immigrants whose culture and society sanctions sexual relationships between older males and younger females. It does not matter if her family says its OK, it does not matter if she consents, if you have sex with a girl under 18 and you are more than three years older than her, you can be convicted of violation of California Penal Code 261.5, and after this decision will be deported and denied naturalization or citizenship.

see full decision here:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/282E5BB838EF83458825733800727415/$file/0575850.pdf?openelement

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

State of New Mexico will not distribute marijuana, New Mexican medical marijuana patients can grow their own "three month supply"

2007-08-15T16:21:00.001-07:00

Today, the State of New Mexico announced that it will not distribute marijuana to those patients who need it. Medical marijuana patients will be allowed to grow and possess there own marijuana.

"The Department of Health will not subject its employees to potential federal prosecution, and therefore will not distribute or produce medical marijuana,'' said Dr. Alfredo Vigil, who heads the agency. The department will continue to certify patients as eligible to possess marijuana, protecting them from state prosecution, Vigil said. Thirty patients have been approved to participate in the program since the law took effect July 1, according to a department spokeswoman. The law was passed by the 2007 Legislature and signed into law by Gov. Bill Richardson, who is running for the Democratic presidential nomination. Medical marijuana advocates urged the agency to reconsider its stance on producing marijuana so that patients would be able to get the drug from a source that was legal under state law. "I remember certain legislators talking about how they didn't want their grandmother to have to go into some alley and deal with some criminal element,'' said Reena Szczepanski, a lobbyist for Drug Policy Alliance New Mexico who helped push the legislation through this year. Szczepanski also said the department is "leaving itself vulnerable to a lawsuit'' for not complying with the law. "I hope that the department is not closing the door to production and distribution entirely,'' Szczepanski said. New Mexico — alone among the dozen states with medical marijuana laws — requires that the state license marijuana producers and develop a distribution system. The rules were to be issued by Oct. 1. Attorney General Gary King cautioned last week that the agency and its employees could face federal prosecution for implementing the new law, and that the attorney general can't defend state workers in criminal cases. Marijuana is illegal under federal law, but medical marijuana advocates say no state employee ever has been federally prosecuted for implementing a state medical marijuana law. King should provide "more meaningful legal direction to the department,'' Szczepanski said. Under the current program, certified patients may possess a three-month supply of marijuana, including plants. The department will go ahead with the process of making permanent rules governing that part of the program, said spokeswoman Deborah Busemeyer. "What we're doing now is what every other state is doing that has a medical marijuana law. ... Those states have set a precedent in being able to successfully do that,'' she said. Going beyond that by overseeing a production and distribution system could put state employees at greater risk of federal prosecution, she said.

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

Vick Attorneys Enter Negotiations for Plea Deal

2007-08-15T16:08:00.000-07:00

Apparently, attorneys for Michael Vick have entered into some sort of negotiations with prosecutors in his dog fighting case. Prosecutors may have set Friday as an unofficial deadline to accept a deal; if not indications are that Vick may be indicted again with more, and potentially more serious counts added against him.

On co-defendant, Tony Taylor has already pleaded guilty and is presumably cooperating with investigators so that he may receive the maximum consideration under USSG 5K1.1 Vick's remaining co-defendants, Purnell Peace and Quanis Phillips, are scheduled to plead guilty on Friday.

See full story here:

http://www.washingtonpost.com/wp-dyn/content/article/2007/08/14/AR2007081401596.html?hpid=moreheadlines

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

Fourth Circuit Finds Professional Negligence Malpractice and Ineffective Assistance of Counsel

2007-08-07T07:54:00.000-07:00

Yesterday, August 6, 2007, the United States Court of Appeal for the Fourth Circuit held that a criminal defense attorney committed ineffective assistance of counsel when he advised his client to plead guilty to federal felon in possession of a firearm charges when the record and evidence revealed that the client may have had a justification defense.

During an argument with his girlfriend, the defendant's girlfriend aimed a firearm at the defendant. In response he took the firearm from her, and walked to a nearby bar where police were waiting. He immediately turned over the gun to police upon there arrival.

Counsel for the defendant advised the defendant that there was no defense to his crime and he ultimately pleaded guilty and was sentenced to 15 years in prison

The problem was that the justification defense was available for felon in possession of a firearm charges (18 USCA 922) and EVERY circuit which addressed the issue had held the defense available. Counsel was just plain wrong in his advice, he simply did not know that the defense was available to these charges.

This case underscores the importance of hiring or otherwsie obtaining knowledgeable counsel for your case. If this defendant had a knowledgable attorney, it may not have cost him 4 years of his life (he had been arrested on August 2, 2002).

See full case here:

http://caselaw.lp.findlaw.com/data2/circs/4th/067565p.pdf

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

President Bush approves at least six more months of warrantless wiretapping!

2007-08-06T12:31:00.000-07:00

Today, with little fanfare, President Bush signed into law a bill that allows for expanded warrantless wiretapping of American's cell phone calls and emails, so long as those calls or emails have some nexus to another country.

Read more:

http://www.washingtonpost.com/wp-dyn/content/article/2007/08/05/AR2007080501404.html?hpid=sec-nation

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

Senate approves expanded wiretapping of calls/emails from or to overseas.

2007-08-04T12:38:00.001-07:00

Yesterday, August 3, 2007, the Senate voted 60-28 to authorize expanded wiretapping of US citizens.

Joseph Lieberman former vice presidential candidate, stated in support of the bill "We're at war. The enemy wants to attack us . . .This is not the time to strive for legislative perfection." Apparently.

The new bill, if it becomes law, expands the government's power to wiretap telephone calls and emails if they are coming from or going to, an overseas location. Privacy advocates accused the Democrats of selling out and charged that this bill gives the government more authority than it had under a controversial warrantless wiretapping program begun in secret after the 2001 terrorist attacks. Under that program, the government could conduct surveillance without judicial oversight only if it had a reason to believe that one party to the call was a member of or affiliated with al-Qaeda or a related terrorist organization. This bill drops that condition, they noted.

Americans had better get used to the fact that if they call or email someone overseas the NSA is listening in.

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

Fourth Circuit gets Booker/Apprendi correct and upholds life sentence for perjury.

2007-08-04T04:56:00.000-07:00

Yesterday, I wrote about the United States v. Dazey, a case in which the Tenth Circuit held that enhancing a defendant's sentence by using facts found by a judge by preponderance (rather than a jury) does not violate the Sixth Amendment.

In response to the Dazey court, I wrote "This cannot be what the Sixth Amendment and Booker (which of course is based on Apprendi and Blakely) meant. If the Dazey court's interpretation of Booker were sound, a federal judge could still enhance a defendant's sentence outside of the presumptive USSG range and outside of the statutory maximum for the offense and so long as the district judge stated on the record that he or she was enhancing the defendant's sentence because he or she wanted to, not because he or she was commanded by the law to impose a certain sentence."

In United States v. Ruhbayan, the Fourth Circuit demonstrates why the Dazey court's holding was not fully complete and may be wrong. In Ruhbayan, the defendant was convicted of perjury and obstruction of justice in connection with a criminal trial. Even though Ruhbayan's indictment specified that he was charged under 18 USC 1512(b), which had a maximum sentence of only ten years, the district judge sentenced him to life in prison pursuant to 18 USC 1512(j). Ruhbayan, unlike Scooter Libby, received a life sentence pursuant to 18 USC 1512(j) for suborning perjury in his first criminal trial.

The Fourth Circuit upheld the sentence. The reasoning was based upon the fact that Ruhbayan's indictment did incorporate language from 1512(j), namely that the pejury or obstruction of justice occurred in a criminal trial. Because of this language, the jury implicitly made the finding beyond a reasonable doubt that Ruhbayan's conduct occurred during a prior criminal trial when it convicted him of the offense in the second indictment.

Therefore, the judge was free to impose life, a life sentence, afterall is stautorily authorized upon conviction of 1512(j).

The Fourth Circuit explained:

First, because Count Two of the 2002 indictment alleged the elements of the § 1512 offense and fairly informed Ruhbayan of the charge, it was sufficient to enable him to plead double jeopardy in any subsequent prosecution. See United States v. Williams, 152 F.3d 294, 299 (4th Cir. 1998) ("To pass constitutional muster, an indictment must (1) indicate the elements of the offense and fairly inform the defendant of the exact charges and (2) enable the defendant to plead
double jeopardy in subsequent prosecutions for the same offense."). Second, Count Two specified that Ruhbayan’s conduct occurred in connection with the First Trial. Indeed, the jury in the Second Trial was instructed on Count Two as follows:

Count 2 of the indictment charges that in or about May through August of 2000, . . . Ruhbayan[ ] did knowingly and corruptly persuade . . . Goodman[ ] to testify falsely in an official proceeding, namely his pending criminal trial in the United States District Court for the Eastern District of Virginia at Norfolk, entitled United States v. Ruhbayan, Criminal Number 2:00cr86, with intent to influence the testimony of that person in an official proceeding, namely his criminal trial, in violation of Title 18 of United Sates Code, Section 1512(b)(1).

Clearly, the issue of whether the conduct charged in Count Two occurred in connection with a criminal trial was a fact that would increase the penalty for that offense beyond the maximum Ruhbayan otherwise faced under § 1512(b). For that reason, that factual issue was appropriately submitted to the jury. The indictment and the instructions each identified the Count Two offense as related to the First Trial, and the jury could not have returned a guilty verdict thereon without so finding. Ruhbayan was thus subject to a maximum of life imprisonment under § 1512(j), because an offense charged in the First Trial involved use of a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). (citations omitted)

Because the trial court properly submitted to the jury the factual issue of whether the Count Two offense occurred in connection with the First Trial, no Apprendi error occurred. The sentencing court thus properly determined that the statutory maximum penalty on Count Two was life in prison.

This is the correct application of Apprendi, the 10th Circuit's holding in Dazey is imprecisely written or just plain incorrect.

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

Tenth Circuit interprets Booker and Blakely and sentences fraud defendant by facts found by preponderance

2007-08-03T16:54:00.001-07:00

In United States v. Dazey, the Tenth Circuit upheld a district court's sentence that was based upon facts found by preponderance b y a district judge. The Dazey court re-affirmed pre Booker case law and determined:

"For the reasons stated in Dalton and Magallanez, the district court applied the correct standard in evaluating the factual evidence related to Dazey's sentencing enhancements. As this court has explained, "Constitutional Booker error occurs when the district court re[lies] on judge-found facts . . . to enhance a defendant's sentence mandatorily." Dalton, 409 F.3d at 1252 (quotation omitted). It is only the mandatory application of enhancements that create constitutional problems, not the manner in which the facts underlying the enhancements are found."

This cannot be what the Sixth Amendment and Booker (which of course is based on Apprendi and Blakely) meant. If the Dazey court's interpretation of Booker were sound, a federal judge could still enhance a defendant's sentence outside of the presumptive USSG range and outside of the statutory maximum for the offense and so long as the district judge stated on the record that he or she was enhancing the defendant's sentence because he or she wanted to, not because he or she was commanded by the law to impose a certain sentence.

Click here for entire opinion:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=docket&no=056258

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

The Supreme Court lowers the review bar on federal habeas for denial of defense claims.

2007-07-29T05:52:00.000-07:00

In Fry v. Pliler, (a link to the complete decision is set forth below), the United States Supreme Court redefined the rules that are going to be applied on federal habeas (2254) when the defendant claims that the state trial court denied him the right to present certain evidence.

In Fry, the defendant claimed that the trial court denied him the right to present the testimony of a witness who would have testified to certain statements made by a third party that suggested that he, the third party, was the actual perpetrator of the crime.

The defendant got convicted and appealed to the California Court of Appeal. The California Court of appeal affirmed the conviction, but did not specify whether the court analyzed the error under the Chapman "harmless beyond a reasonable doubt" standard or the Brecht "substantial and injurious effect standard."

The United States Supreme Court held that a federal court must examine the prejudicial impact of constitutional error in a state court criminal trial under Brecht's standard, whether or not the state reviewing courts analyzed the error for harmlessness beyond a reasonable doubt under Chapman v. California.

What does all this mean? It means that if a defense attorney is denied the right to present certain evidence in a state court trial, that defense attorney can and should cite this case as the proper standard that federal habeas courts will use to examine the trial court's rulings.

Federal constitutional errors in state court trials are always going to be reviewed on federal habeas to determine if that error resulted in a substantial and injurious effect or influence on the verdict, rather than if the error was harmlessness beyond a reasonable doubt. This standard is "less onerous" for defendants than the Chapman standard.

The Chapman standard still applies on Supreme Court DIRECT review of state criminal convictions.

Link to decision:
http://www.supremecourtus.gov/opinions/06pdf/06-5247.pdf

See how Mr. Venie can help you at his website:

ANOTHERNOTGUILTY.COM

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Bowles v. Russell the triumph of form over substance!

2007-06-20T21:09:00.000-07:00

The Supreme Court ruled on June 14, 2007, that a federal habeas petitioner (murder defendant) who relied on the district court's wrong statement regarding the deadline for filing a notice of appeal had no right to relief and no avenue of appeal.

The Court stated that the rules relating to the taking of appeal in a civil case are mandatory and jurisdictional. The appellant petitioner's failure to timely file a NOA, even when the district court erroneously told him he did have time to file, divested that appellate court of jurisdiction to hear the habeas petition, and the district court of jurisdiction to deem the NOA timely filed as an equitable matter.

The practical effect of this is that habeas or appellate counsel must timely file the NOA in denial of 2254 petitions and CANNOT rely upon a district court's statements regarding the deadline.

Bowles v. Russell:

http://supreme.justia.com/us/new-cases/06-5306.pdf

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Outrage of the week! Schwarzenegger bars NCAA athletes from competition based on minor crimes.

2006-09-05T18:35:00.000-07:00

Outrage of the week! Schwarzenegger bars NCAA athletes from competition based on minor crimes.

(September 4, 2006) Today, California Governor Schwarzenegger signed into law a statute forbidding NCAA student athletes in California Universities and community colleges from competing if they are convicted of certain crimes. These student athletes will presumably lose their scholarships for being convicted of some relatively minor offenses.

see: http://www.usatoday.com/sports/college/2006-04-27-california-bill-athletes_x.htm?POE=click-refer

New California Education Code, section (§) 67362, (AB 2165) prohibits and bars any student athlete from competing in any event in California, or for any collegiate team (except intramurals), if that student/athlete is convicted of certain crimes, including:

(a) breaking into a car or shop-lifting (California Penal Code § 459);
(b) getting into a fight at a bar or fraternity party (California Penal Code § 245); or
(c) “beer runs” or grabbing and taking some alcohol from a convenience store (California Penal Code § 211).

In addition, NCAA student/athletes can be barred for more serious offenses like murder, rape, and sexual assault. The law also imposes a new “reporting” requirement upon NCAA student athletes in California: from now on they will have to declare under penalty of perjury that they are essentially “crime-free.” If the student athlete does not report accurately, he or she risks further discipline including loss of scholarship.

This new law has tremendous implications for the more than 25,000 NCAA student athletes in California. To being with, to just take away the eligibility and scholarships of NCAA athletes upon conviction of seemingly small crimes may violate the due process clause under the federal and state constitutions. In addition, it may also violate the right an education under the California Constitution.

Chip Venie, Esq, and the Freedom Law Center are attorneys who concentrate a large portion of their practice on NCAA law and the criminal defense application of NCAA laws and policies. Mr. Venie is admitted to practice law in California, Washington D.C., and Michigan. Please call him at the San Diego office at (619) 235-8300, or email him at chipesq@hotmail.com if you have any questions, or are facing the impact of this new law AB 2165. See the website at blogspot.crimelaw.com

Ninth Circuit actually applying Lopez to overturn conviction for lack of federal jurisdiction.

2006-06-23T05:10:00.000-07:00

The Ninth Circuit has ruled that crimes committed upon boats seized off of the coast of South America cannot provide a sufficient jurisdictional nexus for federal prosecution in San Diego, California.

In US v. Perlaza, the Ninth Circuit held that certain defendants cannot be prosecuted in federal court in the United States without a sufficient jurisdictional nexus. There is also a discussion of prosecutorial misconduct in this opinion. See below:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/998F96BF16F626B18825713000771550/$file/0250084.pdf?openelement

US Soldier prosecuted by DA for going to Iraq, serving in combat!

2006-04-09T16:53:00.000-07:00

Sgt. Jose Estrada, a recently returned (Jan. 2006) Iraq veteran is facing charges that he "wilfully failed to appear" because he went to Iraq to serve in Operation Iraqi Freedom.

Estrada was initially charged with domestic violence offenses. The alleged victim in the case came to court and testified three times under oath that the incident did not happen as alleged. There were three witnesses to the crime, two said Estrada did not do it, the third was a six year old girl who would not see where the crime allegedly happened (in the closet of a bedroom). Instead of dismissing the case, the DA persisted.

Sgt. Estrada waited for his day in Court. The DA continued the case on the final date set for trial. Sgt. Estrada was ordered to report to Ft. Lewis Washington for deployment to Iraq. He went and served in Fallujah among other places.

Sgt. Estrada returned and within days contacted the Court and put his case on calender so that he could resolve the matter. The DA was forced to dismiss the domestic violence case because the witnesses left town, but immediately the DA issued charges in a second case for "failing to appear" on the first case.

Sgt. Estrada wants to continue in the military and continue to serve on active duty, but he now has this cloud hanging over his head. Veterans should not be treated like this. If you feel this is wrong, please let you feelings be known. Send an email to Bonnie Dumanis, the district attorney of San Diego:

publicaffairs@sdcda.org

or call her office at:

619-531-4040

Ms. Dumanis is by and large a reasonable prosecutor. Make your voice heard.

http://www.crimelaw.blogspot.com/

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Global warming is the greatest threat to US says Pentagon!

2006-04-09T16:51:00.000-07:00

In a remarkable report that received little fanfare, the Department of Defense issued a report over two years ago that defined Global Warming as the single greatest threat to United States national security. Read below:

http://www.grist.org/pdf/AbruptClimateChange2003.pdf

California felony sentencing being reviewed in Supreme Court.

2006-03-23T10:25:00.000-08:00

The US Supreme Court agreed to accept review of People v. Black the California Supreme Court case that upheld California's determinate sentencing scheme against a Blakely challenge.

Very soon we will know what all those California courts that are requiring Blakely waivers, already know: that California's scheme which allows a judge to aggravate a sentence is unconstitutional.

see summary of recent developments in People v. Black click below:

http://www.fdap.org/blakely4.html

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Should the 'new' standards for IAC in Rompilla and Wiggins also apply in the non-captial context?

2005-07-08T19:41:00.000-07:00

Yes. There is no logical reason to distinguish between the standards for counsel enunicated in Rompilla v. Beard and Wiggins v. Smith.

Rompilla, you will remember is the very recent case which held an attorney in a capital case per se ineffective for failing to discover and review aggravating evidence that was in Court files which the prosecution had indicated that it intended to use against the defendant.

The court rebuked the Rompilla defense attorney in the strongest terms possible. The Court stated it was "more than common sense" that defense counsel must review and obtain information that the state has and will use against the defendant. The Court explained that "It flouts prudence to deny that a defense lawyer should try to look at a file he knows the prosecution will cull for aggravating evidence, let alone when the file is sitting in the Court house open for the asking."

See full text of Rompilla decision below:

http://a257.g.akamaitech.net/7/257/2422/20jun20051200/www.supremecourtus.gov/opinions/04pdf/04-5462.pdf

There is no logical or legal reason to distinguish between capital and non-capital cases for purposes of the Rompilla rule. Counsel should be held per se ineffective for failing to discover and review evidence in Court files that either exculpates or that the prosecution intends to use to aggravate the defendants' sentence. Counsel has to be held responsible for at least looking at court files.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Blakely NOT RETROACTIVE in Ninth Circuit!

2005-07-08T18:51:00.000-07:00

Today the Ninth Circuit, the top appeals Court for most western states, slammed the door shut on thousands of federal prisoners who were holding out hope that Blakely would be applied retoactively in the West as Crawford had been held to be a few months prior.

In Schardt v. Payne, the Court held the Blakely rule did not fall within the Teague v. Lane exception permitting retroactive application of certain rules. The Court marches through a pretty thorough analysis and collects cases.

See full text here:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/42AEDE6841B771188825703700817B64/$file/0236164.pdf?openelement

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

California Supreme Court defines and spells out when witness may invoke 5th amendment privilege.

2005-07-07T19:06:00.000-07:00

In a remarkable case this week, the California Supreme Court reversed the California Court of Appeal when it held that a defendant's failure to object to a witness asserting the Fifth Amendment waives the issue on appeal. The specific evidentiary issue was whether a trial court errs when it admits the prior preliminary hearing testimony of a witness who invokes the privilege against self incrimination at trial. (NO) That seems like a straight forward ruling however, what is important is that the CASC fleshes out further when and under what circumstances a person may assert the Fifth Amendment privilege against self-incrimination.

In People v. Seijas (full text below), the CASC applied Hoffman and Ohio v. Reiner in California. The Seijas court stated:

In an oft-cited case, the high court stated that this privilege “must be accorded liberal construction in favor of the right it was intended to secure.” (Hoffman v. United States (1951) 341 U.S. 479, 486.) A witness may assert the privilege who has “reasonable cause to apprehend danger from a direct answer.” (Ibid.; accord, Ohio v. Reiner (2001) 532 U.S. 17, 21) However, “The witness is not exonerated from answering merely because he declares that in doing so he would incriminate himself—his say-so does not of itself establish the hazard of incrimination.” (Hoffman v. United States, supra, at p. 486.) The court may require the witness “to answer if ‘it clearly appears to the court that he is mistaken.’ ” (Ibid.) “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” (Id. at pp. 486-487.) To deny an assertion of the privilege, “the judge must be ‘ “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency” to incriminate.’ ” (Malloy v. Hogan (1964) 378 U.S. 1, 12, quoting Hoffman v. United States, supra, at p. 488.)
California’s Evidence Code states the test broadly in favor of the privilege: “Whenever the proffered evidence is claimed to be privileged under Section 940 [the privilege against self-incrimination], the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.” (Evid. Code, § 404, italics added.) We have said that this section incorporates the standard of Hoffman v. United States, supra, 341 U.S. 479. (People v. Ford (1988) 45 Cal.3d 431, 441-442; see also People v. Cudjo, supra, 6 Cal.4th at p. 617.)

Applying the facts to the case before it, The seijas court held that one of the witnesses to the crime, a 13 year old who may (or may not) have had gang ties and who was in the car with the alleged murderers just before the crime, rightly fully asserted the privilege.

Full Text, People v. Seijas:

http://caselaw.lp.findlaw.com/data2/californiastatecases/s123790.doc

In PDF: http://caselaw.lp.findlaw.com/data2/californiastatecases/s123790.pdf

This means that if you have a case going to trial where any of the witnesses have even the slightest Fifth Amendment problem you should demand those witnesses be given immunity before testifying. Every effort should be made to object to the witness testifying (if that is a tactical advantage). If you can object that the crimes that the prosecution purports to immunize are not federal crimes. In other words, object that the state prosecutor cannot possibly immunize from federal crimes and for that reason the state immunity is not good enough. (State drug crimes can apparently always be made federal drug crimes in the wake of the ruiling in Gonzales v. Raich).

If the witness is granted state Kastigar immunity, you must demand federal immunity as well. The state prosecutor will cite Murphy v. Waterfront Commission, 378 U.S. 52 (1964). The state prosecutor will argue that Murphy stands for the proposition that state court immunity is good enough, in other words, if the state promises Kastigar immunity to a witness that witness can essentially estop the federal government from prosecuting in the wake of a state immunity agreement. Moreover, Murphy can be easily distinguished and/or blunted.

Murphy creates a federal constitutional exclusionary rule in this context: when a state witness is compelled to give testimony in a state proceeding under a grant of immunity the "Federal Government must be prohibited from making any such use of compelled testimony and its fruits." This means that a witness should be able to keep out the compelled testimony from "other" criminal and quasi-criminal proceedings. However, the Murphy rule has never been applied by the Supreme Court to at least two contexts: the courts martial and the immigration deportation or removal because of criminal conviction. If the potential witness has exposure on either of these two grounds, that witness should be able to assert the Fifth even with a grant of Kastigar immunity and a federal immunity letter (or in the alternative, a state court ruling that the Murphy exclusionary rule applies).

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Another White Collar Booker reversal for plain error in the Ninth Circuit.

2005-07-03T18:05:00.000-07:00

This past week, in United States v. Barken, the Ninth Circuit again reversed a sentence imposed for environmental crimes. The Court held that because the district court had held that the application of the guideline was in fact mandatory that court committed plain error. The defendant did not object to imposition of certain enhancements at trial based upon Blakely/Sixth Amendment grounds. However, that was not held against Barken based upon plain error.

Full text, United States v. Barken:

http://caselaw.lp.findlaw.com/data2/circs/9th/0350441p.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Would Luttig have voted differently than Scalia in Gonzales v. Raich?

2005-07-02T20:23:00.000-07:00

Judges M. Luttig and J. Harvie Wilkinson of the Fourth Circuit are often mentioned as possible replacements for Justice O'Connor. Federalism, and what it means in the wake of the Raich decision is an important distinction between Wilkinson and Luttig.

It seems like Luttig's reasoning in the dissent below (Gibbs v. Babbitt) would suggest that he would have voted to invalidate the marijuana regulation in question in Gonzales v. Raich.
In Gibbs, Judge Luttig dissented from a decision holding that a Fish and Wildlife Service regulation limiting the killing of endangered wolves on private land was within the commerce power. Judge Luttig argued that the killing of a small number of wolves did not have a "substantial effect" on interstate commerce required by Lopez and Morrison. The case has received media attention because of the criticism of Judge Luttig's views in the majority opinion written by Judge Wilkinson. Judge Wilkinson argued that Judge Luttig "would rework the relationship between the judiciary and its coordinate branches" by allowing courts to invalidate laws based on "a judge's view of the wisdom of enacted policies."

Judge Luttig's view of the substantial effects test cannot be reconciled with his mentor, Scalia's opinion in Gonzales v. Raich. For starters, the grey wolf taking regulation in question in Gibbs IS part of a larger regulation, the Endangered Species Act. This is the specific reason why the marijuana regulation was upheld by Scalia, because the Congress is allowed to make regulations that reach purley intrastate activities if regulation of those intrastate activities is part of a larger scheme of interstate commerce regulations. Under Scalia's reasoning in Raich, the grey wolf taking regulation would have been valid.

So is Luttig in favor of medical marijuana? The Fourth Circuit has not ruled directly on the medical marijuana issue (none of the states in the Fourth Circuit have passed medical marijuana laws), see Raich at fn1. See e.g. United States v. Dash (10th Circuit 1997)(maufacturing controlled substance can be reached by the commerce clause based legislation). Proyect v. United States (2nd Cir. 1996) (manufacturing marijuana can be reached by commerce clause based legislation).

However, in United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995), Judges Russell, Hall, and Widener upheld the CSA's application to the growing of thirty three marijuana plants. Judge Luttig did not participate in the decision. The Leshuk decision itself simply says that because Congress made explicit findings that the manufacture of marijuana substantially affects commerce (and Congress failed to make the findings in the Gun Free Schools Zones Act), the CSA is valid. However, there were findings made by Congress in the VAWA, and they are explicitly discussed in Luttig's dissent in Brzonkala.

Luttig specifically criticizes finding an act of Congress contitutional against a commerce clause challenge just by making conclusory "findings." Luttig states: "Ignoring entirely the overarching change in Commerce Clause analysis wrought by Lopez, the majority merely recites several statements from House and Senate committees on the general problem of violence against women and the effect of that violence on the national economy, together with a sentence from a House Report stating that violence against women substantially affects interstate commerce (incidentally, never mentioning that the Senate, as opposed to the House, did not conclude that such violence substantially affects interstate commerce) and then simply states, without more, that the Act is constitutional."

Luttig suggests that he could have found differently on the issue in Leshuk:

"The majority's wholesale deference to a committee finding would at least be understandable if that committee had made extensive findings deserving of deference. However, the majority ultimately sustains the constitutionality of the Act literally on the basis of a single sentence appearing in that committee report, which sentence is, itself, entirely conclusory."

United States v. Leshuk:
http://www.law.emory.edu/4circuit/sept95/945839.p.html

See Gibbs v. Babbitt, full case available here:
http://pacer.ca4.uscourts.gov/opinion.pdf/991218.P.pdf

Brzonkala v. Virginia Tech, full text here:
http://pacer.ca4.uscourts.gov/opinion.pdf/961814A.P.pdf

Luttig is a true federalist and seems willing to examine the sum and subtance of Congressional findings vis-a-vis the substantial affect any given activity may have on interstate commerce. He probably would have bucked his mentor Scalia and voted with Thomas in Gonzales v. Raich.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Justice O'Connor retires . . . speculation starts on who will replace her?

2005-07-01T09:53:00.000-07:00

Justice Sandra Day O'Connor announced her retirement from the United States Supreme Court today.

see: http://www.washingtonpost.com/wp-dyn/content/article/2005/07/01/AR2005070100653.html

The speculation is that Alberto Gonzales, the current Attorney General with be nominated to the high Court.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

9th Circuit Overflowing with pro se appeals.

2005-07-01T09:51:00.000-07:00

This is an interesting article on now the Ninth and Fourth Circuits are dealing the onslaught of pro se federal appeals from prisoners:

http://www.judicialaccountability.org/articles/proseappeals9circuit.htm

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

VAWA re-introduced by Biden, Hatch, others.

2005-06-29T22:05:00.000-07:00

Can this NEW version of the VAWA pass constitutional muster under GONZALES VS. RAICH? It seems that under Scalia's reasoning in his concurrence in Raich that all Biden need do is put a insert a legislative record that the new VAWA is part of a larger scheme of regulation of intrastate violence.

See full text here:
http://biden.senate.gov/newsroom/details.cfm?id=239039

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Joint trial for snitching co-defendants virtually dead in California

2005-06-27T10:59:00.000-07:00

If you have a trial coming up in California where there are multiple co-defendants who made statements to police implicating one another YOU MUST move for a severance. After People v. Pena, full text below, the People can almost never use the statements of one co-defendant implicating another in evidence against the other under any circumstances.

This means that severance is almost guaranteed if the prosecution wants to use the statements of one co-defendant that implicate he, himself in the trial against that speaking co-defendant. If they want to use it, they cannot "sanitize" it under Aranda. Do not allow prosecutors to argue this situation is governed by Aranda, Bruton, or any other case.

The statement of the co-defendant to police implicating your client is testimonial hearsay, pure and simple, and is not admissible against your client in his trial. Further if they want to try your client and the co-defendant together, they cannot use the statement of either against the other in any trial. Get your severance on the grounds that they cannot use the others' statement in evidence against him with your client present in a joint trial, then argue that they cannot use the others' statement at all in evidence against your client under Crawford.

Full case:

http://www.courtinfo.ca.gov/opinions/documents/H023394.DOC

or PDF

http://www.courtinfo.ca.gov/opinions/documents/H023394.PDF

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

911 Calls are Testimonial Under Crawford!

2005-06-27T10:47:00.000-07:00

The Sixth Circuit held in United States v. Arnold that the 911 calls in question are testimonial and shoudl have been excluded under Crawford. This is a decision in the right direction, applying the straight forward definition of testimonial, the Sixth Circuit stated that because the statements on the 911 calls were made stated that the decisive inquiry as to whether a statement is testimonial is "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Id. [389 F.3d] at 675. The court further stated that a "statement made knowingly to the authorities that describes criminal activity is almost always testimonial." BINGO!

The Arnold panel specifically rejected the "excited utterance" admittance rationale advanced by the US. The question and answer nature of the 911 calls take it outside of the realm of an excited utterance as a logical matter, and the Sixth Circuit held that there was no proof in the record of when the incident that prompted the 911 call had occurred. Because of this, there was no way to tell on the record before it if the incident was close enough in time to the so-called excited utterances.

Full case here: United States v. Arnold (6th Cir. 2005)

http://www.ca6.uscourts.gov/opinions.pdf/05a0269p-06.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

California's Wheeler challenge procedure is unconstitutional.

2005-06-27T10:36:00.000-07:00

In Johnson v. California the United States Supreme Court threw out the Wheeler procedure in California for challenging a prosecutor's race-based use of peremptory challenges. The USSC ruled that California's procedure of imposing a preponderance standard with respect to establishing a prima facie case of race based use of peremptory challenge violated Batson v. Kentucky its progeny.

California had required that a defendant show that it is more likely than not that a prosecutor had used race to peremptorily challenge jurors in the voir dire. The USSC said that the defense must only show facts that give rise to an inference of race-based use of challenges, the defense is not required to show initially, by preponderance, that the prosecution is violating Batson. (Although that may be the defense's ultimate burden).

The defense need only raise an inference of purposeful discrimination to shift the burden to the prosecutor to justify his use of challenges.

Full case here: Johnson v. California

http://a257.g.akamaitech.net/7/257/2422/13jun20051230/www.supremecourtus.gov/opinions/04pdf/04-6964.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

City of San Diego political corruption trial in depth.

2005-06-25T18:43:00.000-07:00

An excellent compendium of the history and course of the current political corruption trial occurring in San Diego.

http://www.signonsandiego.com/news/metro/probe/index.html

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Federalism and federalist analysis of Raich decision, medical marijuana is dead?

2005-06-25T11:12:00.000-07:00

This is an excellent, thoughtful, and thorough federalist analysis of the recent travesty in the Raich case.

http://federalism.typepad.com/ashcroft_v_raich/

Scalia talked in circles and abandoned federalism.

Scalia abadoned his federalist ideological "purity." (His protegee Thomas, did not). Scalia sold out his legacy as a federalist icon, he is now a judicial activist in the War on Drugs. The Supreme Court's prior cases dictated clearly a result contrary to the one that Scalia signed off on, yet he still agreed with the Market analysis in Wickhard.

Scalia's concurring analysis is full of idelogical holes for a true federalist. Scalia expanded upon the doctrine of "substantial affects" on interstate commerce set forth in Wickhard. Scalia called the definition of substantial affects "incomplete" and then explained "where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." Huh?

He further explained that sometimes regulating intrastate activitites is "necessary and proper" for the regulation of interstate commerce and that may happen in two circumstances:
1. Congress may devise rules for the governance of commerce between states, but may also
2. facilitate interstate commerce by eliminating potential obstructions and to restrict it by eliminating potential stimulants.

Under this reasoning, Scalia believed the federal regulation of pot was valid because simple possession can be regulated by the federal government as part of its larger comprehensive scheme to elimiate controlled substance trafficking and markets. If Congress "could reasonably conclude" that its objective of eliminating marijuana from the interstate market "could be undercut" if possession of purely homegrown marijuana were exempted from federal drug law, then Congress can prohibit adults who have grown their own marijuana from smoking that marijuana in their own homes.

Scalia reasoned that its just to hard to distinguish between home grown marijuana and that which moves in interstate commerce (I thought a new class of so-called plant botanist 'experts' would be the next move of prosecutors across the land).

Are there any limits on Congress's power now? Is Necessary and Proper the next battleground?

Scalia distinguished Morrison on the ground that domestic violence was non-economic activity, yet smoking pot was not. Scalia then really danced on the head of a pin, when he claimed that although the regualtion at issue in Lopez was also noneconomic, the regulation (guns near schools) was not part of a larger scheme of interstate commerce related regulations and therefore was invalid.

Scalia states that Morrison and Lopez do not catergorically declare noneconomic intrastate activity to be beyond the reach of the Federal government. Rather, under the necessary and proper clause, intrastate activity that impacts interstate commerce or that supports a greater scheme of laws that properly and constitutionally regulate interstate commerce, may be reached by a law of Congress.

Scalia is wrong with respect to his analysis of Morrison. Morrison did not even discuss whether the VAWA was part of a larger comprehensive scheme of regulation, a fact that Scalia concedes. (The VAWA seems about as comprehensive in its approach to fighting domestic violence on all fronts as is the CSA with respect to drugs).

Scalia is also wrong as to his analysis with Lopez. While Scalia correctly notes that the Lopez decision itself disclaims that the Gun Free School Zone Act is part of a larger scheme of regulation, is that the logical end of the matter? Will Scalia be satisfied with legislative disclaimers, or should the court have looked at substance over form? May the Supreme Court may now find an implied "Lopez" disclaimer, every time it wants to strike down a federal law that purports not to reach interstate commerce. Conversely, may Congress now insert "anti-Lopez" language in every bill that states that "this bill is part of a larger regulatory scheme" and therefore bullet-proof that law from commerce lause challenges?

This decision is a logical and legalistic sham:

Full opinion here:

http://a257.g.akamaitech.net/7/257/2422/06june20051130/www.supremecourtus.gov/opinions/04pdf/03-1454.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Supreme Court Watch: Will Rehnquist Retire on Monday?

2005-06-25T10:55:00.000-07:00

An excellent article by Tony Mauro regarding the chief justice and his potential retirement:

http://www.law.com/jsp/article.jsp?id=1118999115802

And if Alberto Gonzales is not nominated, will it be my former colleague, Judge Luttig:

http://www.law.com/jsp/article.jsp?id=1118999119492

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Proving prior convictions, judges not allowed to look at police reports and other hearsay.

2005-06-25T10:31:00.000-07:00

This is a continuing post on the impact of Shepherd v. United States, a case recently decided by the United States Supreme Court. The Shepherd decision states that a judge must now look only at the fact of conviction, the plea form, the transcript of the plea hearing and other assented to or admitted facts to determine whether a prior conviction is an aggravated felony within the Armed Career Criminal Act.
This case has tremendous impact in a variety of contexts.
When challenging a prior, Shepherd and its reasoning should be used to sharply limit the record that the fact finder can consider to establish the prior or its 'aggravated' nature or quality.

http://a257.g.akamaitech.net/7/257/2422/07mar20051115/www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

For example, suppose a client's prior indicates that he had pleaded guilty in Calfornia to Transportation of Methamphetamine, in violation of California H & S 11379. The plea form states the charge as "H & S 11379." The plea colloquy is silent as to whether the client plead guilty to Transporting Meth, or simply Offering to Transport Meth (which is also a prong of H & S 11379). The client, a green card holder, is picked up by INS who wants to deport him for being convicted of a drug trafficking offense.

A diligent immigration lawyer could move to exclude all police reports or prelim transcripts (or transcripts of other contested hearings) relating to the prior from evidence before the immigration judge. The immigration lawyer would then point out the ambiguity, i.e. the client could have been convicted of just offering to transport instead of transporting (mere offering not being deportable), and that the doubt should be resolved in favor of the client, and non-removal.

Looking forward, diligent defense counsel should totally eliminate the use of "slow pleas" or pleas that incorporate other documents in the pleas' allocution or factual basis. Counsel should no longer stipulate to any factual basis, stipulate to the incorporation of police reports, or stipulate to the incorporation of ANY other document into the plea colloquy or allocution. The language in plea agreements should mimic the statute verbatim. However, extra language should not be included without careful thought as to immigration, drug conviction, and other consequences.

See Shepherd:
http://a257.g.akamaitech.net/7/257/2422/07mar20051115/www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Defendants who plead guilty are entitled to appointed paid for counsel for first appeal.

2005-06-25T10:03:00.000-07:00

On June 23, 2005, in Halbert v. Michigan the United States Supreme Court held a Michigan law unconstitutional which denied appointed counsel for a first appeal for those defendants that had pleaded guilty.
The Court has already held in Douglas v. California that a defendant is entitled to appointed counsel on his "first tier" appeal. The Court held that a state may not make pass a law to define the first appeal as "discretionary" and then deny appointed counsel merely by changing the name of the first appeal.

Full case here:

http://a257.g.akamaitech.net/7/257/2422/23jun20051201/www.supremecourtus.gov/opinions/04pdf/03-10198.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

California Supreme Court speaks on Blakely and its impact in California

2005-06-25T09:09:00.000-07:00

Last week the California Supreme Court held in People v. Black that allowing a judge to impose an aggravated sentence based upon facts he or she found to be true (rather than a jury) does not implicate nor violate Blakely or Booker.

Full case here:

http://caselaw.lp.findlaw.com/data2/californiastatecases/s126182.doc

The CASC held that because Apprendi allows a judge to sentence within the maximum sentence allowed by statute, the California procedure of allowing a judge to determine whether aggravating factors outwiegh mitigating factors, and thereafter impose an aggravated sentence that does not go beyond the statutory maximum, does not implicate Apprendi/Blakely/Booker. To put it another way, because a California state judge cannot find and enhance a defendant's sentence beyond the statutory maximum without additional jury findings on enhancements, the CASC said that the California procedure comports with the Sixth Amendment right to a a jury trial.
This one is going to the United States Supreme Court, we, as diligent and aggressive California criminal defense attorneys, must continue to object to imposition of aggravated terms and consecutive terms on "judge found" facts. This must also mean that the "Blakely" friendly Information(s) that I have been seeing must be demurrer to as failing to state a claim.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Medical Marijuana, Wickhard, and Raich

2005-06-25T08:57:00.000-07:00

Medical marijuana is in trouble in California. Instead of completing the federalist revolution that began in 1995 in United States v. Lopez, the United States Supreme Court (with Scalia and Kennedy casting the deciding votes), denied Amber Raich the right to use medical marijuana in California without the fear of federal intervention and prosecution.
The United States Supreme Court wrongfully readopted the reasoning of Wickhard v. Fillburn and ruled that because consumption of the pot in question could impact the interstate market on marijuana, that a sufficient federal nexus has been met.

How interesting is it that when the conservatives on the Supreme Court (Scalia) review the scope of federal power for things they enjoy (hunting, guns), they often find the laws unconstitutional. However, in the area of drug policy they cannot stay logically and legally consistent.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Were you convicted of crime because of hearsay? Crawford and retroactivity. . .

2005-04-03T20:40:00.000-07:00

In March 2005, the Ninth Circuit held that the Crawford rule (which redefines hearsay rules in all courts nationwide) is retroactive to cases not still pending on direct appeal. In the Bockting case the Court held that the defendant (a convicted child molester), was entitled to retroactive relief on a 2254.

See full case: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1886E09C54A4E27388256FB0005803BA/$file/0215866.pdf?openelement

The Court reasoned that it did not matter whether Crawford announced a new rule within the meaning of Teague because Bockting was entitled to relief either way. The court reasoned that Crawford announced a new PROCEDURAL rule, and therefore "Crawford merits retroactive application only if it implicates the fundamental fairness of the accuracy of the proceeding' [citations] and reworks our understanding of bedrock criminal procedure."

The Ninth Circuit then goes through a very eloquent discussion of both of these elements and finds that Crawford meets them both. Quoting from Scalia in Crawford, the Ninth Circuit notes that Crawford specifically dissaproves of the old Ohio v. Roberts 'trustworthiness' regime for hearsay rule exceptions. The Ninth also reasons that the because cross examination is a engine designed for improving accuracy of factfinding, and because Crawford re-works the rules of cross-examination, then the first part of the Teague test with respect to new procedural rules is met.

Moving on, the Ninth then distinguishes its rule of retroactivity from that announced by the Tenth Circuit.

How about Mr. Crawford? What happened to him?

2005-04-03T09:24:00.000-07:00

Crawford ended up shaving four years off his sentence by pleading guilty and stipulating to a ten year sentence:

http://www.theolympian.com/home/news/20050331/topstories/116331.shtml

Ever wonder what happened to Mr. Blakely?

2005-04-03T09:21:00.000-07:00

They certainly taught Mr. Blakely a lesson for daring to appeal his sentence:

http://www.columbiabasinherald.com/articles/2005/03/23/news/news02.txt

Once Blakely won in the USSC, the same DA came up with a snitch and instead of releasing him put him on trial for solicitiation to murder his wife.

Crawford Retroactivity summary:

2005-04-03T08:59:00.000-07:00

This is a great summary of retroactivity of Crawford from Professor Friedman's Confrontation Blog. In all the buzz about Booker we may have forgotten about this very important one year old rule changing the very nature of hearsay analysis.

Retroactivity of Crawford:

I don't know much about retroactivity but at least for now there seems to be a split in the federal circuits as to whether Crawford is retroactive for purposes of collateral review. Last week, the Ninth Circuit decided Bockting v. Bayer, 2005 WL 406284 (9th Cir. Feb. 22, 2005), in which a split panel held in favor of retroactivity. I've been on vacation for most of the time since the decision came down, and have not had a chance to read the decision carefully, much less comment on it -- but Brooks Holland has, and you can read his comments, attached to my posting on the Brooklyn conference, by clicking here. (As Brooks points out, there are other interesting aspects of the Bockting decision, and I hope to comment soon on one of them -- unavailability -- in another post.)The day after Bockting was issued, the Sixth Circuit issued Dorchy v. Jones, 2005 WL 415147 (6th Cir. Feb. 23, 2005), which held rather conclusorily that Crawford does not paply retroactively. This is the position that the Second and Tenth Circuits have already taken. Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir.2004); Brown v. Uphoff, 381 F.3d 1219 (10th Cir.2004).Assuming the Ninth Circuit panel is not reversed en banc, therefore, it appears there is a conflict among the circuits, which presumably the Supreme Court will soon feel it necessary to resolve.

High Court again expands Apprendi, Jones, and Blakely doctrines.

2005-03-20T20:36:00.000-08:00

In Shepard v. United States the United States Supreme Court again expanded the scope of defendant's rights with respect to what types of evidence are sufficient to support findings of certain prior convictions and the conduct that allegedly happened in those prior cases.

Click here for full case:

http://a257.g.akamaitech.net/7/257/2422/07mar20051115/www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

The trial Court in Shepard found that the defendant had three or more burglary convictions and hence enhanced his sentence at the request of the Government. The Armed Career Criminal Act makes burglary a 'violent' felony if it is committed in a building, or enclosed space (i.e. a "generic burglary"), as opposed to a vehicle (the common distinction between first and second degree burglary in California). The trial court had attempted to enhance Shepard's sentence from 37 months to over fifteen years based upon materials found in police reports.

The Supreme Court disapproved this practice. Following Apprendi v. New Jersey, and Jones v. United States, the Supreme Court stated that in 'guilty plea' cases there are only certain types of records that can lawfully support a later specific factual findings of that offense. When attempting to prove a prior for purposes of enhancing a sentence, a transcript of the Rule 11/plea hearing, a written plea agreement, or some sort of on-record plea colloquy or factual basis must be the factual predicate or basis for proof of the facts of the prior.

Defense counsel must now attempt to factually limit and to be as circumspect as possible in their plea allocutions, whether in plea agreements or allocutions. In San Diego Superior Court (and California courts in general), defense counsel should no longer stipulate to the inclusion or incorporation by reference of police reports or transcripts of preliminary examinations as the factual basis to support pleas. This maxim is especially true in drug cases and violent offenses (or other strikes).

Chip Venie

Chip Venie is a criminal defense attorney in San Diego California. Mr. Venie has represented more than 600 defendants in state and federal criminal proceedings throughout California and the United States. Please call (619) 235-8300 for more information.

Another Booker Blakely win in Fourth Circuit

2005-03-13T08:25:00.000-08:00

The Fourth Circuit gave reversed a 65 year sentence last week in United States v. Johnson. The Fourth Circuit found "plain error" because a jury failed to find facts in aggravation that amounted to impostion of an extra 32.25 years to Mr. Johnson's sentence. The Court also made some interesting rulings on Miranda issues.

See full case below:

http://caselaw.lp.findlaw.com/data2/circs/4th/034677p.pdf

Chip Venie, Esq.
Chip Venie was a staff attorney for the Fourth Circuit from 1999-2000. He is now in private practice in San Diego, California.

Blakely and Booker In California

2005-03-09T11:19:00.000-08:00

Below is an excellent article on Blakely and Booker's impact in California state court.

http://www.fdap.org/downloads/blakely/BlakelyBookerFDAPJan2005seminar.pdf

Judge says woman "too pregnant" to keep kids!

2005-03-03T19:07:00.000-08:00

March 3, 2005

JUDGE RULES, MOM “TOO PREGNANT” TO KEEP KIDS

SAN DIEGO, CALIFORNIA: When a divorced mother, with a live-in nanny and fiancé, becomes too pregnant to drive, she will lose her right to any visitation with her children. That is what Family Court Judge Patricia Garcia ruled yesterday, in a hotly contested child custody matter in Chula Vista.

Judge Garcia ruled that a young mother, Cynthia Venie, who is again pregnant with her fourth child, is the only person allowed to pick up her two daughters from their father’s home every other week. When it was explained to Judge Garcia that Ms. Venie had difficulty in the past with her pregnancies and that she might not be able to drive herself, the Judge ordered that she would lose her right to spend time with her two daughters from her first marriage.

“I was shocked by this order from the Court,” said Ms. Venie’s attorney, Jon M. Pettis, “It seems to suggest that because she is pregnant, she should have fewer rights as a parent. That is outrageous and discriminatory. The Court knows Ms. Venie has responsible adults in her home to assist her in caring for the children. The Court also has been informed that the father chooses to leave the children at homes where a convicted drug dealer and documented gang member lives and another, where a mother has been accused of failing to protect her own children from many years of sexual abuse.”

This was in the wake of earlier hearings where evidence was presented to the same Judge accusing Ms. Venie’s ex-husband, Noel Alfsen of sending nearly 20 threatening e-mail messages to Ms. Venie’s fiancé. In one of the emails, Mr. Alfsen allegedly threatened to “Laci Petersen” his former wife and her unborn child.” However, despite extensive testimony and evidence from Mr. Alfsen’s on-line provider showing he was using his e-mail at or near the time of all the messages, Judge Garcia refused to accept the e-mails into evidence and denied a request for a restraining order protecting Ms. Venie or her children.

“I’ll keep going to pick up my daughters as long as I can,” cried Ms. Venie. “It’s because I want to see them and raise them, but also, because I am also terrified about what can be happening to them when they are not with me. I just hope this doesn’t hurt the baby inside me.”

Judge Patricia Garcia: San Diego Superior Court, So. Bay, Dept. 8: (619) 691-4545
Mr. James Albert: (619) 440-7070, Attorney for Mr. Alfsen
Mr. Noel Alfsen: (619) 656-9549, Petitioner
Mr. Chip Venie: (619) 235-8300, Attorney / Respondent’s Fiancé

Capitol Sniper avoids execution as HIgh Court voids juvenile death sentence.

2005-03-02T07:46:00.000-08:00

On March 1, 2005, the Supreme Court reversed 15 years of precedent and ruled, 5-4, that executing people for crimes they committed under the age of 18 is unconstitutional as against the "cruel and ununusal punishment" clause of the Eight Amendment.

This case appears to have far ranging impacts, but currently impacts between 78 and 84 prisoners on death rows nationwide. Probably the most prominent example of a juvenile who will not be exeucted as a result of this ruling is the case of John Lee Malvo, one of the infamous Capitol snipers. Because Malvo was 17 at the time of the killings, Virginia prosecutors have announced that they will not seek the death penalty as a result of yesterdays rulings.

United States Supreme Court bars racial discrimination in prisons!

2005-02-23T12:07:00.000-08:00

In a controversial decision, the US Supreme Court held Wednesday that prisons may not temporarily discriminate on the basis of race with respect to its housing of inmates. In Johnson v. California, the high Court held that racial classifications for prisoners who had recently been transferred to a new prison must be subjected to strict scrutiny, as all governmental racial classifications must be after Adarand.

The Court threw out California's current system, see full text of opinion below:

http://a257.g.akamaitech.net/7/257/2422/23feb20051045/www.supremecourtus.gov/opinions/04pdf/03-636.pdf

Chip Venie, Esq.
(619) 235-8300
chipesq@hotmail.com

Defense lawyers: always move for judgment of acquittal.

2005-02-23T12:02:00.000-08:00

In a somewhat narrow factual ruling, the United States Supreme Court ruled on Wednesday, Feb. 23, 2005, that the Double Jeopardy Clause of the Fifth Amendment bars a judge from re-considering guilt on a charge for the which the Court has already acquitted the defendant.

In Smith v. Massachussetts, the Court barred a judge who had already acquitted the defendant on one of three counts at his jury trial from reconsidering that judgment of acquittal.

See, full text of opinion:

http://a257.g.akamaitech.net/7/257/2422/22feb20051100/www.supremecourtus.gov/opinions/04pdf/03-8661.pdf

This ruling appears quite narrow on its face. For defense lawyers, this means that Motions for Directed Verdicts or Judgments of Acquittal should be filed and fought in almost every case that is tried.

Blakely Booker caselaw update central!

2005-02-20T19:44:00.000-08:00

This website has it all regarding Booker Fanfan Blakely and their progeny:
http://www.fd.org/blakely_main.htm

Ninth Circuit throws out another sentence in light of Booker!

2005-02-20T19:02:00.000-08:00

The Ninth has done it again, in this case from Feb. 18th, United States v. Moreno-Hernandez, the Ninth stated that a district court must reconsider its decision to depart 16 levels upward and impose a sentence enhancement upon an offender for a prior crime under Oregon law.

For full opinion, see below:

http://caselaw.lp.findlaw.com/data2/circs/9th/0330387p.pdf

This opinion is important because it suggests nearly all federal prisoners in the West will be entitled to a re-sentencing or at least to ask the judge not to impose very severe enhancements. In this case, the Court held that the defendant's enhancement CAN be imposed (that is what the Court says), but it does not HAVE to be imposed (after Booker) and therefore the defendant is entitled to a re-sentencing and to argue that it SHOULD NOT BE IMPOSED. You can see, good defense counsel make all the difference in these matters. If you can get you re-sentencing (which seems easier and easier), you still need good counsel to craft an argument to reduce your sentence. At our firm, we have compiled a Motions bank of nearly 200 factors or reasons to mitigate or lower a federal prisoner's sentence. Please call us or email us today for more information.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

Is Booker Fanfan Retroactive?

2005-02-19T20:44:00.000-08:00

In an thorough opinion denying 2255 habeas relief, this judge sets forth the reasons why BOOKER and or Fanfan should not be found retroactively. It reads like an outline of arguments for good defense counsel to anticipate and respond to (in advance) or the Governments pleadings:

http://sentencing.typepad.com/sentencing_law_and_policy/files/siegelbaum_opinion_denying_2255_motion.pdf

Chip Venie, Esq.

Our firm concentrates on federal and state criminal defense. Mr. Venie has handled over 130 federal criminal appeals and over 600 other felony matters.

Nationwide Booker Fanfan Blakely roundup!

2005-02-19T20:36:00.000-08:00

Here is a quick weekly summary of rulings from the Second, Third, Ninth and Tenth Circuits:

From the Second Circuit, we get (unpublished) Booker-related dispositions in US v. Alexander, 2005 U.S. App. LEXIS 2905 (2d Cir. Feb. 18, 2005) (affirming sentence apparently based on mandatory minimum and defendant's admission), US v. Mitchell, 2005 U.S. App. LEXIS 2907 (2d Cir. Feb. 18, 2005) (rejecting Booker claim in collateral habeas attack on sentence), and US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005) (ordering remand on the basis of Booker and Crosby).

From the Third Circuit, US v. Tyree, 2005 WL 375700 (3d Cir. Feb. 17, 2005), continues the court's pattern (previously noted here and here) of simply remanding Booker claims because, in the Third Circuit's view, they are "best determined by the District Court in the first instance."

From the Ninth Circuit, in both US v. Moreno-Hernandez, 2005 WL 387608 (9th Cir. Feb. 18, 2005), and US v. Alarid, 2005 WL 375728 (9th Cir. Feb. 17, 2005), the court remands for resentencing on the basis of Booker, although Moreno-Hernandez begins with an intricate and complicated discussion over "whether a federal defendant's previous state-law conviction is for a 'felony that is ... a crime of violence' under USSG 2L1.2(b)(1)(A)(ii)."

From the Tenth Circuit, in US v Briceno-Rosado, 2005 WL 388727 (10th Cir. Feb. 18, 2005), the court applies its important ruling in Labastida-Segura (discussed here) to order a remand for resentencing even through the defendant's case involved no Sixth Amendment violation because the court could not conclude that the application of mandatory guidelines to Briceno-Rosado was harmless.

The Courts are already starting to chip away at the scope of the Booker/Fanfanruilings. If you are a federald defedant facing chargs you need to be aware of these cases.
Some of the things that are suggested are:
(1) Judges may be able to enhance your sentence based upon your admissions (saying nothing before you speak to a lawyer is critical); however, almost all of these rulings from last week suggest that
(2) Most federal criminal defendants whose appeals are still pending, or within one year thereafter are entitled to re-sentencings.

Chip Venie
chipesq@hotmail.com
(619) 235-8300

Weekly Blakely Booker Update: List of Departure Factors!

2005-02-19T20:17:00.000-08:00

We have compiled a comprehensive list and discussion of mitigating factors that can now be argued on behalf of federal defendants and prisoners who file appeals and receive re-sentencings.

Remember, under Booker and Fanfan, federal judges should sentences defendants (and prisoners who file appeals) under 18 USC 3553(a) which is a list of broad factors that mitigate sentences.
Here is a list of 108 mitigants that can be argued on behalf of defendants who are entitled to Blakely Booker or Fanfan relief.

http://sentencing.typepad.com/sentencing_law_and_policy/files/levine_108_easy_mitigating_factors_feb_1.doc

Professor Douglas Berman also has provided us with an excellent summary of how judges should now sentence prisoners:

http://sentencing.typepad.com/sentencing_law_and_policy/2005/02/departures_vari.html

Chip Venie, Esq.
(619) 235-8300
chipesq@hotmail.com

Chip Venie is an attorney in San Diego California who concentrates his practice in criminal defense. Mr. Venie is admitted to practice in Courts throughout the United States (Michigan, California, Washington, D.C., federal courts in California, Michigan, Tennessee, Virginia, Ohio, Maryland, South Carolina, North Carolina).

California federal prisoners will get new sentences!

2005-02-10T19:23:00.000-08:00

In United States v. Ameline (issued on February 9, 2005) the highest federal court of appeal in the West held in that unless a federal prisoner's case is truly exceptional, he or she will be entitled to a jury trial on all of the aggravating factors used to make his or sentence worse.

This means that all federal prisoners in the West, and specifically drug offenders for Federal drug crimes in California, who were sentenced after June 26, 2000, are probably entitled to a re-sentencing. Prosecutors cannot claim that you possessed anymore drugs (and therefore cannot punish the federal inmate), than they can prove to a jury beyond a reasonable doubt. The old way of punishing a federal drug offender or defendant does not apply anymore. They cannot punish on hearsay about the amount of drugs.

But you must act quickly, the rules of procedure say that you must ask for a resentencing no more than one year after your final direct appeal is denied. (Or you must raise the issue in your direct appeal).

Chip Venie, Esq
chipesq@hotmail.com
(619) 235-8300
Offices in Washington D.C.
San Diego, California
and Davisburg, Michigan.

'Plain error' extended to the West on Booker Blakely claims!

2005-02-10T18:33:00.000-08:00

The Ninth Circuit (the federal court of appeal for most of the Western states) ruled yesterday that "plain error" analysis is to be applied to Booker Fanfan Blakely Apprendi claims of sentencing error.

What this means is that almost ALL federal prisoners in the west who were sentenced after June 26, 2000, and whose sentences were enhanced by the judge, have a right to a new sentence, AND TO HAVE THEIR OLD SENTENCE THROWN OUT! The Court said as much in its opinion.

In United States v. Ameline, the Court echoed the Fourth Circuit, in Hughes, and held that it does not matter if you lawyer failed to object to your sentence, your former lawyer cannot be held responsible for failing to understand that you had a right to sentencing outside of the guidelines.

Mr. Ameline's case is like so many we have seen in the last ten years. Ameline had his sentenced enhanced because the judge found that he had possessed more than a kg of meth in connection with the conspiracy. Ameline disagreed about the amount of meth.

Mr. Ameline's sentence was also enhanced because his offense level was raised two levels because the judge found that he had possessed a weapon in connection with the drug possession. The judge based this finding on the hearsay testimony of a snitch that stated that Ameline had traded some meth with him for a rifle and that he had once seen Ameline threaten his son with a rifle.

The district court enhanced his sentence based upon those two factors and that sentenced him to 150, the middle of his range of 135-168 months, based upon an total offense level of 33. This is even though the maximum that Ameline could have faced based upon what he admitted oin his plea bargain, was 16 months in prison, given a base offense level of 12.

The Ninth Circuit overturned the sentence, and remanded for a JURY TRIAL on the two sentencing factors, the gun and the AMOUNT OF DRUGS. The Court held that "Ameline was deprived of his right [under Blakely and Booker] to have a jury find beyond a reasonable doubt the quantity of drugs attributable to him. "

But the Court went even farther, they stated that unless your case was "truly" exceptional, you as a defendant would almost always be entitled to a resentencing under the new Blakely Booker holdings. And the Court said on resentencing, that the district court must apply all of the new factors set forth for resentencing and is not constrained on its ability to depart and fashion a sentence that the Court truly thinks is fair and "reasonable."

Link to the case:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/68A618A338BB0B4188256FA3000764E6/$file/0230326.pdf?openelement

The impact of this is staggering. Defense counsel are no longer restrained in their pleas to federal courts on behalf of their clients. Truly innovative defense counsel can now obtain low(er) sentences on almost any grounds.

Our firm concentrates solely on criminal defense matters. I have personally handled over 130 federal criminal appeals, and over 600 other felony matters.

Call or email today.

Chip Venie, Esq.
(619) 235-8300
chipesq@hotmail.com

federal drug crimes Booker Fanfan Blakely Booker drug crimes white collar crimes federal appeals appeal

Rape Lite: a Proposal to Make Consensual Sex a Crime!

2005-02-05T07:08:00.000-08:00

This paper suggests that sex bewteen two consenting adults be made a crime if one later objects (think the Kobe Brant case, and our firm's own Romero case discussed below).

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=581663

This proposal has proposed grave impacts on the state of sexual freedom in this country. Further still, the proposed law is at least paternalistic, and at most sexist. The contiuned prosecution of people in the Kobe Bryant or Carlos Romero situation is offensive to women because it once again seeks to portray women as weak, and incapable of consenting to sexual acts. It allows police and prosecutors to determine who is a "bad guy" or a dog (or Lothario) and essentially prosecute them for being "a dog" to women.

This proposed law is a disaster.

For more on the Carlos Romero case, which is a prime example of prosectuorial "white knightsmanship", click below:

http://www.signonsandiego.com/news/metro/20040918-9999-2m18pastor.html

Chip Venie, Esq.
(619) 235-8300
chipesq@hotmail.com

'Rape Lite': New Law for Reckless Sexual Conduct?

2005-02-05T06:58:00.000-08:00

Two law professors have proposed a new law for "reckless sexual conduct." The propsoed new law would cover situations like the Kobe Bryant case. To convict, prosecutors would have to show beyond a reasonable doubt that a first-time sexual encounter occurred between the accused and the alleged victim, that the couple were not married to one another and that no condom was used. The accused would then have the opportunity to prove, by a preponderance of evidence, that the alleged victim consented to having unprotected sex.

See http://www.abanet.org/journal/ereport/f4conduct.html

This is an interesting proposal. The new law could cover cases like the one below, where a minsiter is accused of using fear of the devil to get women to have sex with him. The new law is wrong insofar as it is another encroachment of government into the bedroom.

http://www.signonsandiego.com/news/metro/20040918-9999-2m18pastor.html

http://www.sanluisobispo.com/mld/sanluisobispo/news/politics/9700407.htm

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

2005-02-04T06:58:00.000-08:00

Our favorite client

Federal Court in Utah declares sentencing guidelines unconstitutional. . .

2005-02-04T06:45:00.000-08:00

This Court in Utah went further than any Court before it. In US v. Croxford, the District Court threw out the guidelines in their entirety. (Interestingly enough the judge in the case clerked for Scalia).

The Utah Court considered three remedies: (1) convene a jury; (2) use the guidelines apart from the defective upward departure provisions; (3) treat guidelines as entirely unconstitutional and pick a sentence between the min and the max. (see pp. 20-29.) He chose the 3d option. Interestingly, and perhaps ironically, in picking the sentence within the statutorily permissible range, the judge made factual findings (grave harm and absconding) by applying the preponderance standard. (see p. 29.) Once he got rid of the guidelines, the maximum sentence that could be imposed without any fact-finding beyond the facts admitted by the plea was the statutory maximum of 20 years. He was, thus, using the facts regarding grave harm and absconding to determine the sentence within the range permitted by the plea, not to raise the statutory maximum. So no jury trial, no proof beyond a reasonable doubt, and, in fact, no "top" or "lid" to protect the defendant. The court did sentence the defendant to 148 months, slightly below the applicable guideline range of 151-188 months.

This ruling shows creative approaches for re-sentencing of defendants after they obtain relief from appeals Courts. If you or a loved one, was sentenced after June 26, 2000 and the judge found enhancements in that case, you may be entitled to relief.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

Loved one in prison on a mandatory minimum?

2005-02-04T06:39:00.000-08:00

The new Supreme Court ruling in Booker may help get him or her out of jail. Booker and Fanfan themselves were drug defendants, and the United States Supreme Court threw out the guidelines in their cases.

In United States v. Hughes, published just a week ago, the Fourth Circuit (the top Court for federal appeals in Virginia, West Virginia, South Carolina, North Carolina, and Maryland), went even further. That Court applied the "plain error" test to this issue, and bascially stated that defendants cannot be held responsible for their lawyers' failure to object at the time of sentencing.

This is an excellent resource on how the new ruilings may impact your loved on serving a mandatory minimum for a federal drug crime or offense:

http://www.famm.org/nr_sentencing_news_blakely_resources.htm

If you loved one is serving time in federal prison for a federal drug crime, please call today, we may be able to help.

Chip Venie, Esq.
chipoesq@hotmail.com
(619) 235-8300

"COPS" like car chases causing accidents cannot be murders under California Law.

2005-02-03T11:26:00.000-08:00

Last week, in People v. Howard, the California Supreme Court threw out a second degree murder conviction for Mr. Howard and his life sentence as well, and ruled that he COULD NOT be convicted of murder after a 'COPS'-like chase through rural parts of Fresno County.

Mr. Howard, who had marijuana, cocaine, heroin and methamphetamine in his system when tested after the crash, took off from police in a high speed pursuit after they attempted to stop the stolen SUV which he was driving. Howard ran a red light after police broke off pursuit and hit a car in an intersection killing one of the car's occupants.

The court held that not all evading cases are inherently dangerous to human life. The Court stated that the prosecution could not rely upon the second degree felony murder doctrine, which allows for conviction of murder if someone is killed in the course of commission of a felony. The prosecution will now have to prove that someone acted with "malice", not just in reckless disregard for life and limb.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

evading evade car car chase car law murder accident car accident evading offense crime criminal

Marijuana and gun offender given 55 year reduction in sentence!

2005-02-03T06:25:00.000-08:00

This is a very interesting case out of Utah. The judge is actually the same man who argued for the reveral of Miranda in Dickerson. The judge calls out President Bush to do what is right for the defendant.

www.utd.uscourts.gov/reports/angelos.pdf

Chip Venie, Esq.
(619) 235-8300

Booker Fanfan Booker Fanfan drug crimes

Will it apply to drug offenders in Virginia?

2005-02-03T06:12:00.000-08:00

In United States v. Hughes, the Fourth Circuit Court of Appeals in Richmond, Virginia stated that the new sentencing rules announced in Booker will be applied for plain error.

What that means is that Mr. Hughes, who is a white collar offender, could have been sentenced to 0-6 months instead of the 46 that he got under his applicable range (41-51 moths).

Federal drug offenders are entitled to the same relief. There is no reason to distinguish between Mr. Hughes, who got an erroneous sentenced based upon 'amount of dollar loss' findings, and a drug offender who got a greater than authorzied sentence because of 'drug amount' findings.

It is my firm's belief that drug offenders who were sentenced after June 26, 2000 in Virginia, West Virginia, Maryland, North Carolina, and South Carolina, may be entitled to drastic reductions in their prison time.

Mr. Venie has handled over 130 appeals before the Fourth Circuit, the Court you must ask for help if you are a federal drug offender in Virginia, West Virginia, Maryland, North Carolina or South Carolina.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

White Collar Criminals in New York getting lesser sentences!

2005-02-03T05:49:00.001-08:00

In this twin set of cases, we see federal Courts more open to giving relief and re-sentencing to white collar offenders

US v. Ranum

Facts: Ranum was a bank officer who made a series of loans to a promising shipping company, but lied to the bank committee about the company’s reserves. Opinion at 7. He was charged with misapplication of funds and false statements. Id. at 8. After conviction at trial, he faced a guideline range of 37-45 months in custody. Id. at 9. Before sentencing, Booker was decided.Issue(s): How does a federal court sentence a defendant after Booker?Held: "In Booker, the Supreme Court held that Blakely v. Washington applied to the federal sentencing guidelines, and that the Sixth Amendment’s jury trial guarantee prevented judges from finding facts that exposed a defendant to increased prison time. As a remedy, a different majority of the Court excised the provision of the Sentencing Reform Act that made the guidelines mandatory, 18 U.S.C. § 3553(b). The remedial majority held that district courts must still consider the guideline range, 18 U.S.C. § 3553(a)(4) & (5), but must also consider the other directives set forth in § 3553(a). Thus, under Booker, courts must treat the guidelines as just one of a number of sentencing factors." Id. at 1-2. "I determined that the factors set forth in § 3553(a) fell into three general categories: the nature of the offense, the history and character of the defendant, and the needs of the public and the victims of the offense. I analyzed each category and in so doing considered the specific statutory factors under § 3553(a), including the advisory guidelines." Id. at 10."In the present case, after carefully considering all of the evidence and applying all of the § 3553(a) factors, I declined to follow the guidelines and instead imposed a sentence which was sufficient, but not greater than necessary, to satisfy the purposes of sentencing." Id. at 5. "I impose[] a sentence of twelve months and one day, followed by five years of supervised release." Id. at 13.

The Ranum Court gave the white collar offender 12 months instead of the required 37-45. White collar offenders are beggining to benefit from the Booker/Fanfan ruling. It gives judges the discretion to depart from the very strict "amount of loss" guidelines, and "level of sophistication" enhancements that are routinely imposed in white collar crimes.

See also: * United States v. West, 2005 WL 180930, 2005 U.S. Dist. LEXIS 1123 (S.D.N.Y. Jan. 27,2005) (Sweet, J.) (in wire fraud case, where stipulated Guideline range was 57-71 months, sentencing defendant to 60 months, the statutory maximum; following Ranum (supra), in that Guidelines are only one factor to consider; notably, stating that “[n]othing in Booker appears to suggest that such fact-finding, as limited by the principles of Apprendi and its progeny, is inappropriate. Accordingly, this Court will sentence West based upon the facts admitted in connection with his plea and upon those facts found by the Court in the context of analysis under subsection 3553(a), as limited by Apprendi and Booker”)

Many white collar offenders from New York City, Connecticut and surrounding areas can benefit from these cases.

Chip Venie
chipesq@hotmail.com
(619) 235-8300

Mr. Venie maintains a criminal defense practice in San Diego, California, and Washington, D.C. A graduate of the University of Virginia School of Law, Mr. Venie was a Staff Attorney for the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has defended over 600 state criminal matters and over 130 federal criminal appeals.

White Collar Criminals getting relief from Booker

2005-02-03T05:49:00.000-08:00

Federal Judge reverses first sentenced based on Booker!

2005-02-03T05:21:00.000-08:00

It has happened! A federal appeals Court in Richmond, Virginia has held that the applying the federal sentencing guidelines after Booker is PLAIN ERROR, in other words an error so fundamental that the sentencing must be re-done in almost all cases which were sentenced after June 26, 2000.

See, * United States v. Hughes, ___ F.3d ____, 2005 WL 147059, 2005 U.S. App. LEXIS 1189(4th Cir. Jan. 24, 2005) (finding plain error in sentencing of defendant under mandatory guideline scheme and remanding for resentencing under advisory scheme)

Link: http://pacer.ca4.uscourts.gov/lastweek.htm

Mr. Hughes, a white collar criminal, was convicted of bankruptcy fraud and perjury, (traditionally considered white collar crimes). The District Court had applied five different enhancements, raising Mr. Hughes offense level from a 6 to a 22, and taking him from a range of 0-6 months imprisonment to 41 to 51 months. Ultimately the judge sentenced this white collar offender/criminal with no prior convictions to 46 months in prison.

The Fourth Circuit, a court not exactly known for its leniency to convicted criminals reversed. In a remarkable decision, the Court held that "PLAIN ERROR" had occurred. In other words, that the denial of Mr. Hughes's Sixth Amendment rights was so substantial that he could not be faulted for failing to object at the time of sentencing.

What does this all mean? The Plain Error ruling of the Fourth Circuit is huge in terms of impact of federal prisoners and specifically, white collar offenders. Many white collar offenders and other federal prisoners' lawyers failed to object at the time of sentencing to judges enhancing their sentences. (This is not meant to criticize those lawyers, it is reasonable to assert that no one could have seen the Apprendi/Booker revolution comming).

However, IF YOU ARE A FEDERAL DEFENDANT WHO WAS SENTENCED AFTER JUNE 26, 2000 IN A FEDERAL COURT IN MARYLAND, VIRGINIA, WEST VIRGINIA, NORTH CAROLINA, OR SOUTH CAROLINA, YOU ARE PROBABLY ENTITLED TO A RESENTENCING.

If you are a federal prisoner, the Hughes ruling can help in a very dramatic fashion. It can persuade a judge to give you another chance at sentencing, and it can help the judge reduce your sentence.

Mr. Chip Venie was a former Fourth Circuit Staff Attorney and is intimately familiar with the procedures for obtaining resentencing relief in that Court. In addition, Mr. Venie is a member of the Ninth Cicruit bar and can help you pursue your federal appeal in almost all western states. Mr. Venie has handled over 130 Federal Criminal Appeals and Habeas Petitions.

Chip Venie
chipesq@hotmail.com
(619) 235-8300

Booker Fanfan White Collar White Collar White collar prisoner Booker Fanfan

Almost every prisoner should file a Motion to Re-sentence

2005-01-15T07:13:00.000-08:00

With the death of the federal sentencing guidelines, almost all of criminal defendants sitting in Federal prisons should all writs (2255) or new appeals to address the Booker and Fanfan decisions. The article below gives a full summary of the effect of Booker and Fanfan.

http://www.abanet.org/journal/ereport/j14sentence.html

Needless to say, almost EVERY criminal defendant has important rights under the new decisions. Time is running however, the Congress will do something soon to address this huge criminal law "loophole" or "escape hatch."

Chip Venie, Esq
(619) 235-8300
chipesq@hotmail.com

Booker Fanfan Booker Fanfan

Prayer's OK at Inauguration

2005-01-14T17:08:00.000-08:00

A federal court here in California rejected noted atheist Michael Newdow's request to keep prayers out of "W's" second inauguration. Newdow, who is the same guy who challenged the Pledge of Allegiance, made the following comments after the judge's ruling:

"To uphold the Constitution in this case, someone would be castigated beyond belief by a public that wants religion in their government," Newdow said. "That's what people want. There is an inherent bias in a case like this to see if you can find a way out."
Newdow had argued that the inauguration is perhaps the most public of all government-sponsored national ceremonies. It should not provide the president with an opportunity to make nonreligious citizens and non-Protestants feel like outsiders, he said.
"This is like the Super Bowl, the Olympics. It's a civic ceremony like no other," Newdow told Bates in a hearing yesterday. "The president will swear to uphold the Constitution and then violate the Constitution so heinously by endorsing these religious beliefs . . . and telling everyone this is a Christian nation."

To see the entire story, click on this link

http://www.washingtonpost.com/wp-dyn/articles/A9936-2005Jan14.html

White Collar Offenders will get a major break with new rules

2005-01-14T17:01:00.000-08:00

With this week's major decision in Booker and Fanfan, white collar offenders (i.e. those accused of and sentenced for fraud offenses), will be able to escape the harsh consequences of the guidelines table.
Before Booker and Fanfan, the sentence for fraud offenses was based upon the amount of loss. White collar criminals or offenders had little room to argue for leniency, the table drove the sentences. Now, a white collar offender will not have to be locked into the table, and good defense counsel can make all of the difference.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

Sentencing changed forever!

2005-01-13T09:23:00.000-08:00

Major change in federal sentences for crimes!

Booker and Fanfan,

The United States Supreme Court changed federal criminal sentencing and sentences yesterday when it threw out the sentencing guidelines that judges had been required to use prior to yesterday.

An excellent summary of the case is found at

http://supct.law.cornell.edu/supct/cert/04-104.html

This is the final judicial slapdown to the Ashcroft administration. The Supremes have clearly signaled a greater deference to federal TRIAL court judges, and most of all to juries, the ones who hear the facts and should be the decision makers.

The decision reaffirms that a defendant is entitled to a JURY determination of any fact used to convict or punish him, thereby reaffirming our faith in the jury system.

The decision also rejects and rebukes the Ashcroft amendments to the guidelines that allowed appellate judges to review trial judges decisions to depart. Instead of getting to completely reconsider all of the facts that the tiral judge considered in deciding to depart, appellate judges will now only get to determine if the trial judge's decision was not "unreasonable." This is significant because it puts the decision making power on sentencing departures back where it should be in the trial judges hands.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan USSG USSG Supreme Court criminal law sentencing sentences

Booker and Fanfan: A new era in sentencing

2005-01-13T08:45:00.000-08:00

Today, the United States Supreme Court invalidated the sentences of many federal inmates. For more information see the last post, or read the following cases

www.supremecourtus.gov/opinions/04pdf/04-104.pdf

Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan

Ding Dong the "Witch" is Dead. . . The Supreme Court

2005-01-13T08:30:00.000-08:00

today threw out the United States Sentencing Guidelines, USSG, making them "advisory." This is a HUGE development for Federal criminal law lawyers. The consolidated cases, United States v. Booker and United States v. Fanfan, are the final death blow to a system of mandatory guidelines that severely restricted federal judges discretion, all in the name of uniformity of sentencing. The Supreme Court today reaffirmed that anyone who is facing criminal charges must have the facts which determine his guilt, or innocence or punishment, must be decided by a jury fo his or her peers. Further the Court stated that those facts must be decided beyond a reasonable doubt and not just by a judge after a jury trial by some lesser standard of proof.
Mr. Booker's and Mr. Fanfan's cases are instructive. In Booker's case he pleaded guilty to possession of 92.5 grams of crack with intent to sell. Under those facts, his sentencing range was set at 210-262 months. Instead, after a judge led hearing, the judge found certain facts to be true by preponderance of the evidence (the standard for civil lawuits), and then imposed a 360 month (30 year) sentence. In Mr. Fanfan's case, under the terms of his conviction, he was supposed to be sentenced to no more than 78 months imprisonment. Instead, after a judge led hearing, the judge found certain facts and enhanced his sentence to 188-235 months.
The Supreme Court rejected both these enhancements, and stated that all facts that lead to conviction or enhancement of a sentence must be pleaded to a jury, and proved before a jury, and that a jury must find them beyond a reasonable doubt.

The Supreme Court also invalidated a provision that allowed appellate judges to review all of the factors that the trial judge took into account in deciding to depart. The Supreme Court stated that from, now on, a judge's decision to depart from the sentencing table (which is advisory now anyway), that the decision to depart wil be reviewed only to see if it is 'unreasonable'.

What does this mean to you? If you were sentenced on a federal crime after June 26, 2000, you have the right to a resentencing and maybe a right to a departure. The clock is ticking however, Fanfan and Booker were made applicable to caes currently in trial courts and on appeal, but you need to get the appeal filed sooner rather than later.

Chip Venie
Criminal Defense Attorney
chipesq@hotmail.com
(619) 235-8300

AOL indictments on PuchasePro, more to follow?

2005-01-11T06:20:00.000-08:00

Today, some AOL executives were indicted for, among other things, accounting fraud. Apparently, they had forged a signature on some financing documents, as well as a variety of accounting fraud issues.
This apparently is just the beginning, Time Warner has already settled for a massive fine, and the Justice Department promises more prosecutions.
The difficulty with proving this kind of fraud is that most of the so-called "evidence" of fraud exists only in the minds of the executives, and the average jury may have a hard time with complicated financial issues.

Peterson is not guilty of first degree murder

2005-01-10T17:52:00.000-08:00

Peterson should not get the death penalty, the reason is simple: he is not guilty of FIRST degree murder. I think he probably got mad because she confronted him about the affair with Amber and then he probably pushed her or she fell down after a struggle. At that moment, he had two choices: (a) call the police and take the charge (maybe assault with a deadly weapon, a serious felony, and strike under California Law under most circumstances), or (b) he could do something stupid and cover it up/finish her off. It makes no sense that he deliberately premeditated to kill his child, even though he may have wanted to get rid of her. If this is true, then he is guilty of at second degree murder, which is 25-to-life (25 to life) under California law.