Ninth Circuit makes statutory rape deportable.

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"

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

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

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