Eastern District of California Blog

Fed. R. Crim. P. 29 Motions For Acquittal: A Nuts & Bolts Guide For Defense Attorneys

I've updated here the Ninth Circuit version of my Nuts & Bolts Guide To Fed. R. Crim. P. 29 Motions for Acquittal For Defense Attorneys. 

For those outside the Ninth Circuit, here is a national edition of the same with more cites from other circuits:  Nuts & Bolts Guide To Fed. R. Crim. P. 29 Motions--National Edition.  An earlier version was published in "The Champion," the monthly magazine of the National Association of Criminal Defense Attorneys. 

Sacramento Court Rejects Forest Service Off-Road Vehicle Plan In El Dorado National Forest

A federal court has rejected the U.S. Forest Service’s plan to increase off-road vehicle use in the Eldorado National Forest. The court decision, released Thursday, found the Forest Service’s “travel-management plan” violated legal protections for fragile Sierra Nevada meadow habitat and the threatened California red-legged frog.

The Forest Service’s 2008 travel-management plan authorized 1,212 miles of motorized vehicle routes across the Eldorado National Forest, including designation of 23 miles of routes created by off-road vehicle users in sensitive areas. The plan included nearly 40 miles of routes on soils susceptible to erosion, 10 miles of routes within meadows, 290 miles of routes near streamsides with 485 stream crossings, and routes in red-legged frog habitat.

“Off-road vehicle use can cause substantial damage to water, wildlife and soil resources and disturb quiet recreation,” said Karen Schambach, president of Center for Sierra Nevada Conservation. “The court recognized that the Forest Service needs to fully weigh those serious impacts before expanding off-road vehicle use on the forest.”

Center For Biological Diversity, 5/27.

EDCA Sentencings Last Week

Judge England sentenced two defendants to prison in a Vallejo mortgage fraud scheme, Times Herald, 5/27, and two brothers from Stockton to 70 and 63 months in prison for food stamp fraud.  Sacramento Bee, 5/27.

Judge Karlton sentenced a former loan officer to 33 months for bank fraud.  knco, 5/27.

Judge Mendez sentenced a Roseville man to 10 years and 3 months for receipt and possession of child pornography.  Sac Bee Blog, 5/24. 

Judge Mueller sentenced the "goatee" serial bank robber to 100 months imprisonment,  Sac Biz Journal, 5/27, and a Rancho Cordova man to 41 months prison for bank fraud and identity theft offenses, MSNBC, 5/27.

Judge Shubb sentenced four defendants who were convicted after a jury trial to lengthy prison terms for drug trafficking.  Monterey Herald, 5/26.

Judge Wanger sentenced a 75-year-old former fugitive to 15 months in a tax avoidance scheme case.  Fresno Bee, 5/23.

If A Picture Is Worth A 1,000 Words

 

Among the overall commentary on the Supreme Court's Brown v Plata decision, see, e.g., Sent Law & Policy, Scotus Blog, 5/24, Scotus Blog, 5/25, and Scotus Blog, 5/26, there's been lots of chattering about Justice Kennedy's use of these three photos in his opinion.  See, e.g., Sent Law & Policy, 5/23, SDFL Blog, 5/23, Slate, 5/23, and NY Times, 5/23.  I don't see what the fuss is about.  The photos are part of the court record and provide graphic evidence demonstrating the conditions in California state prisons.  The photo above is not from the Plata opinion, but is among many in the record from the website of amicus counsel.  RBG-Law selected trial materials.  A NY Times, 5/25/11 piece includes more recent photos and this graph to show that California prisons are still vastly over-crowded and provide inadequate medical care and mental health treatment.

With the trend toward fully electronic briefs, it's only a matter of time before photos and digital recordings are routinely inserted in briefs and opinions.  My only question:  if a photo is worth a 1,000 words, does a photo count toward the word limit in a brief? 

EDCA Court Denies IRS Use Of John Doe Summons In Gift Tax Probe

A federal judge told the Internal Revenue Service it cannot serve a John Doe summons on California authorities as part of its effort to find people who evade federal tax on gifts of real estate to family members.

The IRS and the Justice Department wanted the court's permission to seek land transfer documents from the California State Board of Equalization. It said the information would help identify people who had given property to relatives and who may not have reported the gifts on federal tax forms.

In his opinion, issued earlier this week, U.S. District Judge Morrison C. England said the government failed to show that it can't get the information it wants from another, readily available source.

The judge's move to block the summons was a rare one, according to tax lawyers, who say the IRS now has to decide whether to revise its request. England also raised an interesting question of tax and constitutional law, according to Scott Michel, an attorney in the Washington, D.C. office of Caplin & Drydale. That is, whether a "state" is a "person" under the tax code provision that lets the IRS issue administrative summonses in connection with tax examinations.

Dow Jones Advisor, 5/26

Sacramento Jury Finds Chicken Farm A Nuisance

In a trial ending Tuesday, a jury found that the stench and fumes from a very large chicken egg farm near Tracy constituted a nuisance and Judge Mendez awarded $500,000 in damages.  Press Enterprise, 5/25/11.

Still ongoing is a Title IX action jury trial before Judge Damrell in Mansourian v. UC Davis, No. CV 03-2591-FCD, AAAU-CA, 5/18/11, and the long-delayed, wacky "Money Growth Solutions" alleged ponzi scheme trial before Judge Mueller in United States v. Groves & Mann, No. 07-229-KJM.  See 8/17/09 post.

 

Bankruptcy Filing Halts "Litigious Louie" ADA Lawsuits

The man called "Litigious Louie" for his frequent disability access lawsuits has a new legal filing: bankruptcy.

George Louie's pending bankruptcy actions, U.S. District Court Judge Edmund Brennan wrote, mean it appears Louie lacks standing to proceed in federal court in Sacramento on Americans with Disabilities Act cases.

Marysville attorney Timothy Evans, who is representing several local businesses Louie has sued, said Louie's bankruptcy puts on hold the many cases the West Sacramento man has filed.

Appeal Democrat, 5/25/11

Homeless Gain Mixed Jury Verdict In Suit Over Discarded Property

Yesterday, the jury returned a mixed verdict, finding some constitutional violations, but rejecting other claims. The district court will determine damages and what other relief may be appropriate.  Sacramento Bee, 5/25/11.

Bee Editorials On Prison Overcrowding Decision And Need For More EDCA Judges

An editorial in today's Sacramento Bee contends that the Supreme Court's Brown v. Plata decision yesterday doesn't need to undercut safety as the California prisoner population can be reduced through a series of measures other than mass inmate releases.

[Added 5/25/11]:  A similar editorial appeared in the 5/25 Sacramento Bee entitled "Don't Fall For Scare Tactics On Prison Ruling."  [Added 5/29/11]:  And, here's Dan Morain's Viewpoint from Sunday's Sacramento Bee, 5/29, "Justice Anthony Kennedy Knows Prisons; so does former clerk Kelso.]

A Modesto Bee editorial today suggests that a recent bill to add four more EDCA judgeships may have a real chance of success this time as it hopes to gain bipartisan support by tying in two new judgeships in Arizona, which has given the measure the support of Republican Senators John McCain and Jon Kyl.

Supreme Court Affirms, 5-4, California Prison Overcrowding Release Order In Brown v Plata

"The Degree of Civilization in a Society Can Be Judged By Entering Its Prisons," Fyodor Dostoevsky, 1821-1881

Here's the first few paragraphs of the summary of the Supreme Court's, 5-4, Brown v. Plata (formerly Schwarzenegger v. Plata) opinion affirming the 3-district judge prison overcrowding release order from the Scotus Blog, 5/23/11:

With starkly different visions of what the decision would bring about, a deeply divided Supreme Court ruled on Monday that California may have to start turning loose many state prison inmates to relieve serious overcrowding that leads to health woes, deaths from neglect, suicides, and violent uprisings.  As the five-Justice majority saw it, the release order is flexible, and may not actually mean a flood of releases.  But as the four dissenters complained, it would lead to a “staggering number” of releases of hardened criminals in a “gamble” with the safety of all Californians.

Which vision proves to be true over the next two years, and beyond, depends upon what state officials do from here on: how they select the inmates to let go, what arrangements they can make to send prisoners to other states or to county jails, how they can reduce the influx of new prisoners into California’s 33 prisons, whether they can get money from the legislature for hiring more doctors and staff, and whether new construction can be carried out.  The majority stressed how much flexibility it was leaving with the state’s officials, but the dissenters saw only chaos in trying to implement a “deliberately ambiguous set of suggestions” on how the release order could be pared down.

What is directly at issue in the decision, and is to be implemented beginning with this decision’s announcement, is a three-judge District Court’s January 2010 order requiring the state to reduce prison population statewide to 167 percent of capacity within six months, to 155 percent within 12 months, to 147 percent within 18 months, and to 137.5 percent within two years.   The prison population state wide is now about 143, 400 inmates.   The order has been on hold until the Supreme Court ruled.

At the time the District Court issued its order, this release requirement meant that, at the greatest level, somewhere around 46,000 inmates would have to go free to meet the two-year goal.  That figure has dropped somewhat, and current estimates are that perhaps 37,000 will have to be released, unless state officials come up with alternatives to outright release.

More summaries and articles on today's decision:

ABA Journal

Josh Blackman's Blog

LA Times

Mercury News

New York Times

Prison Law Office

Sacramento Bee

Slate

Talk Left

WSJ Law Blog