Eastern District of California Blog

Fake Viagra Case: Will It Stand Up In Court?

Today's Sac Bee Blog reports that the EDCA U.S. Attorney has charged a man with selling fake viagra to an undercover agent (and for growing 400 marijuana plants the feds found in searching his residence).   I wonder if that's fraud or a violation of the controlled substance laws.   And how stiff is the penalty?

PLF Seeks Supreme Court Review of Denial of Commerce Clause Challenge In Delta Smelt Case

The Pacific Legal Foundation has filed a petition for writ of certiorari asking the Supreme Court to review the Ninth Circuit's decision denying its Commerce Clause challenge in the EDCA Delta Smelt case.  See  Ninth Circuit opinion, 3/25/11 post.

Fresno Trial Over Attorney's Suit Alleging Racial Discrimination Against Fresno County Public Defender

Is Franz Criego a passionate defender of the oppressed? Or a renegade lawyer who speaks half-truths?

These opposing descriptions were offered Wednesday in opening statements of a civil trial in U.S. District Court that pits Criego against his boss – Fresno County Public Defender Kenneth Taniguchi.

Criego, 61, has sued Taniguchi and Fresno County for race discrimination, claiming Taniguchi promoted lesser-skilled trial lawyers over him because he is black. He also accused Taniguchi, 59, of retaliating against him for filing a federal discrimination complaint in February 2008.

Fresno Bee, 6/22/11

District Judge Damrell To Resign In October

U.S. District Judge Frank C. Damrell Jr. of Sacramento informed the court's staff Tuesday that he has decided to step down in October. He will have served nearly 14 years.

"I wish you to know that your dedication to the court and to our country has been an inspiration to me," Damrell said in an email to the staff late Tuesday afternoon. "Upon leaving the court, it is my hope to continue promoting civic education and the importance of an independent judiciary."

His departure will be a severe blow to the already overburdened judges of the district, who labor under the heaviest caseloads in the nation. Because he is a senior judge, his resignation will not create a vacancy for President Barack Obama to fill.

Damrell, who will turn 73 next month, received his judicial commission in 1997 and is President Bill Clinton's only appointee to the federal bench in the Sacramento-based Eastern District of California.

* * *

When an issue strikes a chord with him, Damrell can become quite emotional, as he did not long ago when he detected unfairness in the prosecution of a group of Hmong American leaders.

They were accused of plotting an insurrection against the communist government of Laos and, as the case dragged on, the judge became more and more restive. Finally, he gave a Department of Justice attorney a tongue-lashing in open court over the flaws he saw in the charges. Shortly thereafter, the government dropped the case.

Sacramento Bee, 6/22/11

Civil Rights Complaint Charges City of Anderson Police Officer Raped Woman After Traffic Stop

In a federal civil rights complaint, a woman claims a City of Anderson police officer stopped her for a traffic violation, put her in restraints, and turned her over to another officer, who raped her.  Courthouse news, 6/21/11.

Suit Challenging Minister Tax Exemption To Be Refiled To Satisfy New Standing Case

Plaintiffs in a case represented by Sacramento attorney Michael Newdow have dropped their constitutional challenge to tax exemptions for parsonages and other housing for ministers.

However, plaintiffs' attorney Richard Bolton said Tuesday, "We anticipate refiling shortly with a slightly reconfigured cast of plaintiffs."

Bolton said plaintiffs were reacting to Arizona Christian School Tuition Organization v. Winn, in which a split U.S. Supreme Court dramatically narrowed rank-and-file taxpayers' standing to sue. Specifically, the court held in April that they have no standing to challenge tax credits for donations to scholarship programs offered by schools affiliated with a given religion.

Sacramento Bee, 6/22/11

Fresno Jury Convicts Ex-Casino Manager on Fraud Charges

A federal jury on Tuesday convicted a former general manager of the Chukchansi Gold Resort & Casino in Madera County on nine felony charges stemming from his use of a corporate credit card for personal purchases.

Fresno Bee, 6/21/11.

New Lawsuit Challenges California Levee Clearing Order

A federal order to clear-cut trees and shrubs from thousands of miles of levees in California will destroy precious wildlife habitat and cost the cash-strapped state more than $7 billion, conservation groups argued in a lawsuit filed Monday.

The U.S. Army Corps of Engineers vegetation removal policy, crafted after the catastrophic levee failures following Hurricane Katrina, would also weaken, rather than bolster, the barriers that channel storm water and hold back rising seas, the groups contend in a suit against the agency.

"Historically, the (Corps) encouraged vegetation on levees because it helped stabilize them and prevent erosion," said Kelly Catlett of Defenders of Wildlife, one of the plaintiffs in the case. "After Katrina, it was a knee-jerk reaction - all the trees, shrubs, bushes had to go."

Catlett's group, the Center for Biological Diversity and Friends of the River on Monday asked the U.S. District Court in Sacramento to invalidate the policy until the Corps of Engineers weighs the program's impacts on the numerous endangered species that forage and breed in the levee greenery.

In addition to providing critical habitat to protected hawks, songbirds, rabbits, snakes and beetles, the trees and bushes on California's 3,000 miles of levees offer shade and woody debris for chinook salmon, sturgeon and other fish. Experts say the levees represent the last vestige of a vast, lush landscape all but erased by residential and commercial development.

SF Gate, 6/21/11.

Study Reports Death Penalty Costs California $184 Million A Year

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty's costs.

The examination of state, federal and local expenditures for capital cases, conducted over three years by a senior federal judge and a law professor, estimated that the additional costs of capital trials, enhanced security on death row and legal representation for the condemned adds $184 million to the budget each year.

The study's authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin's death row will have swollen to well over 1,000.

In their research for "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," Alarcon and Mitchell obtained California Department of Corrections and Rehabilitation records that were unavailable to others who have sought to calculate a cost-benefit analysis of capital punishment.

* * *

Alarcon four years ago issued an urgent appeal for overhaul of capital punishment in the state, noting that the average lag between conviction and execution was more than 17 years, twice the national figure. Now it is more than 25 years, with no executions since 2006 and none likely in the near future because of legal challenges to the state's lethal injection procedures.

The long wait for execution "reflects a wholesale failure to fund the efficient, effective capital punishment system that California voters were told they were choosing" in the battery of voter initiatives over the last three decades that have expanded the penalty to 39 special circumstances in murder, the report says.

Unless profound reforms are made by lawmakers who have failed to adopt previous recommendations for rescuing the system, Alarcon and Mitchell say, capital punishment will continue to exist mostly in theory while exacting an untenable cost.

* * *

In their report, Alarcon and Mitchell raise the prospect of costly new legal challenges to the state's handling of capital inmates because of the dozens who have died while waiting for lawyers to be assigned for their appeals. Of the 92 death row inmates who have died since 1978, only 13 were executed in California and one was executed in Missouri, while 54 died of natural causes, 18 by suicide and six by inmate violence or undetermined causes.

Federal judges find fault with about 70% of the California death row prisoners' convictions and send them back to the trial courts for further proceedings, the report noted. That could make the state vulnerable to charges of denying inmates due process, the authors warned.

The report also says the corrections department and the Legislative Analyst's Office failed to honestly assess and disclose to the public what 30 years of tough-on-crime legislation and ballot measures actually cost.

LA Times, 6/20/11; [Added this Sacramento Bee, 6/22/11 Viewpoint, "Can California Afford The Millions It Spends On The Death Penalty?"]

Pilot School Owners Plead Guilty To Filing False Tax Return

The owners of a Southern California civilian test pilot school pleaded guilty Monday to defrauding the federal government of nearly $710,000 by filing a false tax return related to a secret Swiss bank account, and are expected to pay more than $2 million in civil penalties.

Prosecutors said Sean and Nadia Roberts of Tehachapi face up to three years in prison at their sentencing Sept. 6 after entering the guilty plea in U.S. District Court in Fresno.

They own and operate the National Test Pilot School, a nonprofit founded in 1982 at Mojave Airport that trains test pilots. They also own Flight Research Inc., which owns most of the aircraft used by the school. . . .

Their attorney, Edward Robbins Jr. of Beverly Hills, said the couple was caught up in the U.S. government's investigation of secret accounts at Switzerland's UBS bank. Under a deferred prosecution agreement in 2009, UBS admitted helping U.S. taxpayers hide accounts from the IRS and agreed to provide names of some customers.

"They had the unfortunate luck to be among the first 260 UBS customers who were turned over to the U.S. government," Robbins said. "Sean and Nadia Roberts, but for the fact that they were in the first 260, would have dodged any criminal liability and gone in under the civil settlement."

That settlement was offered to 4,500 other bank clients whose identities were disclosed later, he said.

He expects the couple may qualify for probation and no prison time because they promptly admitted their guilt and are cooperating with the investigation. They remain free on bail.

The couple pleaded guilty to the single count of filing a false 2008 tax return under a plea agreement. The lost taxes amounted to nearly $710,000, according to the agreement filed in federal court.

Beaumont Enterprise, 6/20/11.