John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. He currently serves as an adjunct professor in clinical trial advocacy at the University of the Pacific McGeorge School of Law. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.
This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.
In Tavares v. Whitehead, the Ninth Circuit affirmed Judge Nunley's dismissal of a habeas petition for lack of jurisdiction brought by former members of the United Auburn tribal members under the Indian Civil Rights Act. In her partial dissent, Judge Berzon found that Jessica Tavares's 10-year banishment order constitutes "detention" warranting habeas jurisdiction under the Act. Here is the Sac Bee's summary:
A federal appeals court Tuesday rejected a challenge by former United Auburn tribal chairwoman Jessica Tavares and other dissident members who charged they were illegally banished and denied their shares of profits from the lucrative Thunder Valley Casino near Lincoln.
The ruling by the United States 9th Circuit Court of Appeals, responding to a bitter 2013 clash in one of California’s wealthiest casino tribes and ensuing litigation, effectively rejected claims that the tribe “imposed unlawful restraints” on the “liberty” of Tavares and three other members by cutting off their income and banning them from United Auburn properties.
In October, 2013, Tavares and the other members brought legal action, filed in U.S. District Court in Sacramento as a writ of habeas corpus under the 1968 Indian Civil Rights Act. She charged that the tribal council for the United Auburn Indian Community wrongly denied her $40,000 a month in benefits and bonuses, based on casino profits, and illegally banished her for 10 years.
Amidst reports that Trump asked U.S. Attorneys to resign last week, some have wondered about the status of our EDCA U.S. Attorney, Phil Talbert. Phil took over when the Obama-appointed U.S. Attorney, Ben Wagner, resigned before the election. Here's the highly-technical scoop:
Phil became the Acting U.S. Attorney without any appointment on May 1, 2016. But there's a limit to how long one can be an "Acting" U.S. Attorney. So when that time ran out in November, then-Attorney General Loretta Lynch appointed Phil to be the EDCA U.S. Attorney.
Federal law also restricts how long a person can hold the position on an AG appointment. Later this month, the district court, at the request of the Department of Justice, is expected to appoint Phil as the U.S. Attorney. There's no time limit on a court-appointed U.S. Attorney, so he'll probably serve as EDCA U.S. Attorney until the President appoints a new one. At that time, if Phil is still in the office, he will revert to once again being an Assistant U.S. Attorney because he'll be a court, not a Presidential, appointee. A Presidentially-appointed U.S. Attorney, whether they were an AUSA beforehand or not, does not become an AUSA when a new Presidential appointee arrives and instead must leave the office.
According to news reports, the U.S. Attorneys who had been appointed by President Obama and still remained in the position were asked to resign (other than the U.S. Attorney from Maryland, who is nominated to be Deputy AG, and the U.S. Attorney from EDVA, who is currently Acting Deputy AG). Presidentially-appointed U.S. Attorneys serve at the pleasure of the President without civil service protection. The rest of the court and AG appointed U.S. Attorneys and the Acting U.S. Attorneys enjoy civil service protection and were left in place.
At least that's how it works under current law, though the law can change.
After a 4-day jury trial, a Fresno jury returned a guilty verdict Friday on all counts in a foreclosure rescue fraud case before Judge O'Neill in United States v. Calzada, No. 1:15-CR-0355-LJO. The defendant was remanded into custody after the verdict.
A federal judge in Sacramento on Tuesday rejected an effort by scam artist Lee Loomis to withdraw a guilty plea he entered a year ago – one that could send him to prison for 18 years.
After a 45-minute hearing, U.S. District Judge John A. Mendez told the former financial adviser that he saw no evidence to support Loomis’ claims that he was under duress at the time he accepted a plea agreement and pleaded guilty in January 2016 to a single count of wire fraud.
Gun owners' rights advocates are free to publish the home addresses and telephone numbers of California state lawmakers who voted for firearms restrictions, a federal judge decided Monday.
It is the second time in a week that judges decided that California lawmakers went too far in protecting the private information of public figures.
U.S. Chief District Judge Lawrence O'Neill of Fresno issued a preliminary injunction Monday blocking a state law that lets public officials demand that their private information be removed from the internet if they fear for their safety or the safety of their families.
O'Neill ruled that the state law is too broad and violates the advocates' free speech rights. Publishing the lawmakers' personal information "is a form of political protest," he said in a 38-page opinion.
Sac Bee, 2/27/17. Here is Judge O'Neill's ruling from the Washington Post. For more background, see Dan Morain's opinion on the ruling and the blogger who published the addresses of 40 state legislators who voted in favor of legislation requiring people who buy bullets to go through brief background checks first.
For the first time, President Donald Trump’s administration publicly took a side in the marijuana debate, saying Thursday it would direct the U.S. Department of Justice to crack down on violators of federal pot laws in states where recreational pot is legal. California, which approved recreational pot use in November and already has clashed with Trump over immigration, would appear to be a prime target for this new enforcement.
On Thursday, White House Press Secretary Sean Spicer said medical marijuana would not be targeted. But many medical marijuana companies are currently looking to expand into providing pot for recreational use, so making a firm differentiation could be difficult.
In the Valley, it’s unclear whether any enforcement action is underway. Lauren Horwood, spokeswoman for the U.S. Attorney’s Office’s Eastern District of California, said her office had no comment on any changes to Department of Justice policy regarding marijuana.
For a year and a half, Jose Garcia-Alcazar has been sitting in jails in Richmond and Elk Grove while his lawyers fight the government’s efforts to deport him to his native Mexico. For more than six months now, Garcia-Alcazar, who has three children who are U.S. citizens, has not had a hearing to determine whether he is eligible for bail while the immigration courts figure out what to do with him.
Lawyers for the former car-wash employee in Rohnert Park call his extended stay in jail a case of indefinite detention. They also call it unconstitutional, and they say it stands in direct defiance of a 2011 appellate court ruling that guarantees incarcerated aliens a bail hearing – even if they have criminal records and made their way back to the United States after having already been deported. Garcia-Alcazar, 30, has drug convictions and once associated in Mexico with “coyotes” who smuggled people into the United States, one of his lawyers said.
Earlier this month, Garcia-Alcazar’s attorneys filed a lawsuit in federal court in Sacramento seeking class-action status to try to reinstate bail hearings for him and an untold number of other undocumented immigrants. In the lawsuit, the lawyers are challenging a memorandum issued by an immigration judge in San Francisco that says people like Garcia-Alcazar who return to the U.S. after being deported are not entitled to “redetermination” hearings that would give them a chance to make their case for bail.
While an immigration judge’s decisions are usually confined to his or her own courtroom, lawyers for Garcia-Alcazar say the one made by Anthony S. Murry on Dec. 12 has been reduced to an eight-page memo that is now being widely distributed. The plaintiff’s attorneys noted that the memo came out and that bail hearings began to be curtailed just a month after President Donald Trump was elected on a campaign that promised to build a wall across the southern border of the United States and cut off illegal immigration from Mexico.
“It is kind of weird that it started happening toward the end of the year,” said Joseph LaCome, the attorney who wrote the briefs in the case filed in Sacramento and who has filed similar lawsuits in Phoenix and San Francisco.
According to LaCome, it had been common practice in immigration courts before the election for judges to hold the bail hearings. He said such proceedings have since tailed off to “nothing.”
Plaintiff’s attorney LaCome, however, said he has been told by an attorney for the Office of the Chief Counsel – the arm of the Department of Homeland Security that prosecutes cases in immigration court – that Murry’s memorandum is now being distributed around the country, making the case to deny bail hearings to immigrants from coast to coast.
“The OCC attorney told me they took it and ran with it all over the 9th Circuit,” LaCome said. “The attorney told me it also was going all over the country.”
A spokesman for U.S. Immigration and Customs Enforcement, which oversees the government’s lawyers in immigration courts, declined to comment on any pending case.
LaCome maintains in the suit, filed Feb. 9, that the Murry memorandum violates the 2011 Diouf decision by the 9th U.S. Circuit Court of Appeals that entitles aliens to bail hearings every six months, even if they have been rearrested after deportation.
The Garcia-Alcazar petition seeks “an immediate custody hearing before a federal district judge or magistrate, or an IJ (immigration judge) other than IJ Murry,” to determine whether the memorandum is lawful. It also wants to stop the U.S. Department of Justice, the Department of Homeland Security, the Executive Office of Immigration Review and U.S. Immigration and Customs Enforcement “from continuing their policy of influencing Immigration judges within this Circuit to deny Diouf bond hearings.”