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 The law can change rapidly and information in this blog can become outdated.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.
2) From a recent post on the Sentencing Law and Policy blog, here is U.S. District Judge George Z. Singal's (D. Maine) 17-page opinion and order denying restitution to two individuals depicted in child pornography possessed by the defendant on the ground that the government had not shown a particular loss proximately caused by the offense of conviction. Download Berk-ruling-on-cp-restitution
You can also check out the testimony of N.D. Illinois U.S. Attorney Patrick Fitzgerald before the Sentencing Commission last month with his observations about child porn sentencings in his district. Patrick Fitzgerald, N.D. Ill. Fitzgerald refers to child pornography sentencings as the area of greatest "dissonance" between the perspective of prosecutors and district judges.
The Pleasanton Weeklyreports that Anthony Vassallo's business partner, Kenneth Kenitzer, has agreed to plead guilty to mail fraud and money laundering for his role in their Equity Investment Management & Trading, Inc.'s investment fraud.
Two significant appellate decisions limiting the reach of federal money laundering statutes were issued in the last few days. First, on Thursday, in United Statesv. Alstyne, the Ninth Circuit rejected the position taken by the Department of Justice (and some other courts) that narrowly read the Supreme Court's holding in United States v. Santos, 128 S.Ct. 2020 (2008), as applying only to gambling type predicate offenses. Download Van Alstyne Opinion, 10-22-09. This opinion is significant for a number of reasons and is worth a careful reading for any defense attorney defending a federal ponzi scheme fraud case or a money laundering charge. Most importantly, it applies Santos's interpretation of "proceeds" in the federal money laundering statutes as meaning only "profits" not "gross receipts"to cases involving wire and mail fraud and other predicate offenses, at least where the "merger problem" discussed in Santos exists. The Ninth also made clear that amounts returned to investors in ponzi scheme cases up to the amount they invested do not count as "losses" under the § 2B1.1 fraud guideline. See Slip op. at 14219.
Second, the Eleventh Circuit today rejected the Miami U.S. Attorney's Office's baffling interpretation of 18 U.S.C. § 1957(f)(1) as permitting prosecution of attorneys for money laundering for accepting fees that may have been derived from criminal proceeds even though the statute expressly prohibited such attorney fees from the statute. In doing so, the Court affirmed the district court's dismissal of a count charging a violation of §§ 1956(h) and 1957 against law professor Ben Kuehne and two others in a highly-publicized (and often-viewed as unjust) case out of the Southern District of Florida. See 12/1/08 NACDL article and 2/5/08 SDFL Blog. [And 10/27/09 Talk Left Blog Post]. Based on the plain language of the statute, the Court held that section 1957(f)(1) clearly exempts criminally derived proceeds used to secure legal representation in criminal cases from the reach of the § 1957(a) money laundering statute. Download Kuehne Opinion, 11th Cir. 10-26-09.
[11/25/09 Postscript: The Miami U.S. Attorney's Office dropped all charges against Kuehne and the other defendants, announcing that, in light of the Eleventh Circuit's decision, continued prosecution was no longer warranted. Miami Herald, 11/25/09].
After a couple of slow weeks, there are four criminal and three civil jury trials to choose from in the upcoming week. In Sacramento, there are criminal trials set before Judges Shubb (drug trafficking) and Karlton (mail fraud) and civil trials before Judges Burrell (Ramos Oil v AWIM, not sure what this is about) and England (prison medical indifference suit). In Fresno, Judges O'Neill and Wanger both have drug trafficking trials while Judge Wanger also has a second civil sex discrimination/harassment trial involving the Fresno Fire Department.All scheduled to start Tuesday, except for Judge O'Neill's trial which starts Monday, 8:30 a.m. Judge Wanger has set his civil trial for the mornings and the criminal trial for the afternoons until one trial finishes.
The Sacramento Bee's piece on the U.S. Attorney's latest batch of indictments and arrests in its marijuana "grow houses" series:
Federal prosecutors announced 18 indictments Thursday in a pot cultivation and mortgage fraud scheme that purchased homes in Elk Grove and Sacramento and converted them into bustling "grow houses" for tens of thousands of marijuana plants. [My note: Actually, not 18 indictments. Rather, 3 marijuana growing indictments and 1 mortgage fraud indictment, with a total of 18 defendants].
Nine people are in custody. Authorities are searching for other indicted suspects who may have fled from the Bay Area to China.
The individuals were charged with orchestrating bogus real estate transactions to buy 51 houses in the Central Valley, then establish indoor pot-growing operations using sophisticated lighting and irrigation and stealing thousands of dollars' worth of electricity.
Today's Sacramento Bee reports that, "A former Union Pacific trainman has been awarded $1,284,527 by a jury in Sacramento federal court for respiratory injuries he claims were caused by toxic fumes from a locomotive fire."
The 3-judge panel today rejected Governor Schwarzenegger's proposal to solve California's prison overcrowding problems, see 10/21/09 San Jose Mercury News story, in this 10-21-09 Order. The Court gave California 21 days to come up with an alternative plan that meets the requirements of its August order and warns that its failure to do so would force the Court "to develop a plan independently and order it implemented forthwith."
According to the Sacramento Bee today, former Sacramento County Sheriff's officer Mark W. Kessell was sentenced to 52 months in prison yesterday after his guilty plea to possessing child porn. Although below the 78-month low end of the guideline range, Judge Mendez rejected the recommendation of the prosecutor and probation officer for a 36-month sentence based on Kessell's immediate willingness to accept counseling and other factors, because the judge did not want his sentence to be seen as giving favorable treatment to former law enforcement officers.