Eastern District of California Blog

Environmental Groups Appeal Court's Decision Over Water Contracts

California environmentalists are appealing a judge's decision to keep active more than 100 long-term water delivery contracts in the agriculturally rich Central Valley.

In an appeal filed Monday in the 9th U.S. Circuit Court of Appeals in San Francisco, the Natural Resources Defense Council and the San Francisco Baykeeper say the decades-long water contracts would harm aquatic life in the Sacramento-San Joaquin Delta.

The groups are appealing a ruling by U.S. District Senior Judge Oliver Wanger in Fresno, Calif., that U.S. Fish and Wildlife Service to rewrite its rules governing the management of the imperiled delta smelt.

Legalnewsline.com

Elsewhere In Federal Courts

With no new EDCA jury trials starting up this week, here's what's happening in other federal courts:

The Supreme Court granted cert in three cases today, two involving criminal justice issues, as summarized in the SCOTUS Blog.  The Barber v. Thomas case should resolve a circuit court split on how to calculate federal good time custody credits and might result in defendants receiving up to seven more days of good time credits a year. 

Prosecutors are worrying how an upcoming Supreme Court decision might jeopardize their prosecution of former Illinois governor Rod Blogojevic:  Chicago Tribune, 11/30/09. 

A Blogger charged with inciting violence on federal judges says he was a paid FBI informant in a case that is set to go to trial in federal court in New York on Tuesday:  New York Times, 11/30/09.

Debate among federal jurists over child porn sentences is the topic of this 11/29/09 Denver Post piece entitled "Federal Judges Argue for Reduced Sentences for Child Porn Convicts." 

And the Ninth affirmed the defendant's convictions and sentence last week in U.S. v. Amr Mohsen.  Ninth Circuit Blog, Case of the Week.  Although a NDCA case, this case was tried by EDCA Judge William B. Shubb after all the NDCA district judges recused themselves when the U.S. Attorney's Office there charged the defendant with solicitation to kill a NDCA judge (which the defendant was ultimately acquitted of by the jury).

Right And Left Join Forces On Criminal Justice

That's the title of this New York Times piece about how the "right" and "left" have come to agree on many criminal justice issues:

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”    * * *

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”

There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.

“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”

* * *

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.

“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.

Preview: 12/7 Ninth Circuit Oral Argument In DNA Collection Case

The panel selected for the Ninth Circuit oral argument in U.S. v. Pool on December 7 is judges Mary M. Schroeder, Consuelo M. Callahan, and 10th Circuit judge Carlos F. Lucero.  That's the case that is to review the constitutionality of the federal statute requiring that everyone arrested for a federal felony must provide a DNA sample as a condition of pretrial release.  At least one district court judge has found that the statute's mandatory DNA collection before conviction violates the Fourth Amendment.  See post on W.D. PA decision.  Upon request of defense counsel, EDCA magistrate judges have generally stayed collection of DNA from an arrestee pending the Pool decision.

Briefing in the Ninth Circuit is available here:  Pool Opening Brief, Gov't Pool Brief, and  Pool Reply Brief

My earlier posts on this subject are available here: DNA Testing Posts

EDCA Eco-Arson Suspect Sentenced To Prison In China

A man charged with an eco-arson in a pending 2006 EDCA indictment was sentenced to three-years in prison for a marijuana offense in China.  Here's the AP Story and the Sacramento Bee Crime Blog's version.  The man, Jason Solondz, and three others are charged with conspiracy to commit arson, arson of a federal building, and the use of a destructive device involving the burning of the BLM's Litchfield Wild Horse and Burro Corrals in Susanville in 2001.   

Debt Disqualifies Applicant for NY Bar

A panel of five New York judges has denied one applicant's admission to the NY bar because he accumulated, with interest, $480,000 in student loans:

Mind how you handle your student loans aspiring lawyers, or you could find your debt hurting more than your bank accounts. Loans could derail your career before it can start.

That is the message in a decision by a panel of five New York judges denying one would-be lawyer, Robert Bowman, admission to the bar because his debt approached half a million dollars.

“His application demonstrates a course of action amounting to neglect of financial responsibilities with respect to the student loans he has accumulated since 1983,” the judges wrote in a decision issued late last week.

NY Times, 11/26/09. The NY Times article notes that the panel's decision overrules the NY courts' Committee on Character and Fitness that "strongly recommended" that the applicant be admitted to the bar.  The 2-page decision (available via link in the NY Times article) states the applicant amassed Sallie Mae and private loans totaling approximately $480,000, with interest.

Granted, even with interest, $480,000 is a lot of student loans.  But with tuition over $40,000 a year at many top law schools, it doesn't seem right that debt alone should disqualify someone from a state bar.  The NY courts' decision wrongly equates debt with moral character, in my opinion.  What are the chances he pays back his debts without a law license?  

Prison Receiver Removes Lawsuit Over Stockton Medical Center to Federal Court

The Stockton Record reports that "Prison health-care receiver J. Clark Kelso has filed a notice to move a lawsuit filed against him over a proposed inmate medical center near Stockton to federal court in Sacramento."  

DEA Clean-Up Company PARC Environmental Pleads Guilty, Agrees to Pay Over $400,000 In Fines & Costs

According to TurnTo23.Com in Bakersfield,   

Professional Asbestos Removal Corporation, also known as PARC Environmental, pleaded guilty this morning before Chief United States District Judge Anthony W. Ishii to making a false statement in a uniform hazardous waste manifest in violation of the Federal Resource Conservation and Recovery Act, which governs the safe handling and storage of hazardous materials, including hazardous waste found at clandestine drug labs.

* * *

According to Assistant United States Attorney Marlon Cobar, who prosecuted the case, during sentencing, which immediately followed PARC Environmental’s guilty plea this morning, Chief Judge Ishii imposed a criminal fine of $250,000 on the company and ordered it to pay DTSC $177,235.82 for investigative costs. PARC Environmental paid all of the ordered restitution this morning and will pay the fine, in full, within the next four months.

Chief Judge Ishii also sentenced PARC Environmental to three years of probation with special conditions contained in a strict corporate regulatory compliance program to be monitored by DTSC. The company is a leading provider of clandestine drug lab cleanup services to California law enforcement, and has already begun taking corrective measures in its operations.

* * *

On June 18, 2008, under a standing contract with DEA, PARC Environmental responded to a clandestine drug lab cleanup site in San Francisco. With the explicit authorization of at least one of its managers, PARC Environmental falsely and fraudulently listed the name of an employee on a Uniform Hazardous Waste Manifest representing that the employee had been working at the San Francisco clandestine drug lab on June 18, 2008. Thereafter, PARC Environmental filed, maintained and used the false Uniform Hazardous Waste Manifest for purposes of compliance with Federal Resource Conservation and Recovery Act regulations. However, another employee, Jeffrey Alexander Lassotovitch , had been working at the cleanup site under the name of another employee. In fact, Lassotovitch was not authorized to work on DEA clandestine drug lab cleanups.

On August 27, 2008, DEA agents executed a federal search warrant at Lassotovitch’s home in Fresno and discovered that he was in possession of approximately 12 gallons of GHB which he had unlawfully taken from the DEA drug lab clean-up site in San Francisco on June 18, 2008, in order to distribute it. That was the same site in which Lassotovitch was not authorized to work, but where PARC Environmental falsely stated in a Uniform Hazardous Waste Manifest that he was another employee authorized to do so. In a separate case arising out of this investigation, on November 9, 2009, Chief Judge Ishii sentenced Lassotovitch to 37 months in prison for his conviction on an indictment charging him with Possession with the Intent to Distribute Gamma-Hydroxybutyric Acid (“GHB”)and Aiding and Abetting. GHB is commonly termed the “date rape drug.”

EDCA Week of Nov 23-27, 2009

In this shortened Thanksgiving week, the only jury trial I saw on the EDCA calendar is week two of U.S. v. Marcus Major, et. al., No. 07-CR-156-LJO, before Judge O'Neill in Fresno.  This 3-defendant trial involves Hobbs Act robberies and gun charges arising out of 30 alleged robberies in Fresno and Madera in 2005-06.  The trial is expected to last 8-9 weeks.

On Friday, the Ninth Circuit affirmed Judge Wanger's grant of summary judgment in favor of the California Table Grapes Association in a published opinion in Delano Farms Comp. v. Cal. Table Grapes Ass'n.  The Court held that the Association's compelled assessments on California table grape growers for advertising is government-protected speech that is immune to challenge under the First Amendment.

New U.S. Attorney To Hire Two New White-Collar Prosecutors In Fresno, Announces Priorities

The Fresno Bee reports that new U.S. Attorney Ben Wanger has announced he intends to hire two new white-collar prosecutors for the Fresno office, moving one position from Sacramento.  

Besides cracking down on mortgage fraud and placing an increasing emphasis on white-collar crimes, Wagner said other areas will look familiar.

For instance, child pornography. Wagner said "a steady flow of those cases" will continue.

Asked about marijuana, Wagner responded that possession remains a federal crime. He said Attorney General Eric Holder's comment that federal agents would stop raiding medical marijuana distributors that comply with their state laws "does not change underlying law."

Wagner said he plans to aggressively pursue marijuana growing operations on mountain lands, which he called a "menace" that are backed by organized crime and have armed individuals on site.

But federal authorities will move more cautiously on local dispensaries, which have made news recently as local cities look to stem their spread. Wagner said he plans to be "careful on how we spend limited prosecution resources" on medical marijuana cases.

He also wants to focus immigration prosecutions on those who commit violent crimes. Conversely, he said he wants to protect workers in the country who may be the victims of exploitation.