Eastern District of California Blog

Ninth Circuit Affirms EDCA Court's Miranda Suppression Order

In this 2-1 unpublished decision, United States v. Blanford, 10-10337, the Ninth Circuit Thursday affirmed Judge Shubb's order suppressing defendant Joel Blanford's statements to federal agents (FBI agent John Sommercamp and IRS agent Christopher Fitzpatrick) because they failed to follow the requirements of Miranda during a "police-dominated" interrogation at Blanford's residence.  Congratulations to defense attorney Michael Cardoza.    

EDCA Court Sanctions Nevada County For Destroying Evidence In Intellectual Property Suit

AtPac Inc. filed suit against the county, Clerk-Recorder Greg Diaz and Florida software firm Aptitude Solutions in Sacramento federal court in February 2010, claiming the loss of its intellectual property when Nevada County's Clerk-Recorder's office was switching software providers from AtPac to Aptitude in 2009.

The lawsuit is ongoing, and to date, the county has spent more than $1.2 million on outside legal counsel to defend the case, which is scheduled to go to trial this fall. Oral arguments for AtPac's motion to find summary judgment in its favor — without going to trial — are scheduled for Tuesday in Sacramento.

In April, federal Judge William Shubb sanctioned Nevada County for scrubbing — erasing all information — a computer server in October of last year. The server contained information on the transfer of county data from AtPac to Aptitude — information material to the case, according to AtPac's legal team.

“The spoliation (destruction), combined with other deceptive discovery practices by defendants, indicates that without some sort of sanction, a fair and just resolution of the action will be impossible,” Shubb wrote in an April order issued in the case.

the Union.com, 6/30/11

EDCA Court Awards Damages Against District Attorneys' Debt Collection Service

Having concluded bankruptcy proceedings, a company that collected debts owed to district attorneys' offices must open its purse strings to pay a judgment for unfair debt collection practices, a federal judge ruled.

District Attorney Technical Services contracted with prosecutors that established "bad check restitution and prosecution programs" to collect debts on behalf of merchants that received bad checks.

In 2005, lead plaintiff Kristy Schwarm filed a class action against the company and its founder, Henry Craighead, for violations of the Fair Debt Collection Practices Act. The defendants' demand letters to debtors claimed that the district attorney was investigating a criminal complaint, and the consumer might be arrested if he did not pay various fees, according to Schwarm's complaint.

* * *

Shubb ruled on Thursday that Craighead's conduct is indistinguishable from that of District Attorney Technical Services. District Attorney Technical Services did not dispute its liability for $741,000, which was based on "diversion" fees that the company collected from numerous debtors.

Shubb declined to award Schwarm summary judgment for statutory damages or attorneys' fees, and he denied Craighead's bid for reconsideration. 

Courthousenews.com, 4/6/11

Baseball, Music, and Social Justice

As Spring Training starts up, a little love here for a well-written blog about three of my favorite topics, baseball, music, and social justice, FairandUnbalancedBlog, though, sadly, it's written by a die-hard Mets fan.  For a true blue, baseball blog, there is none better than BleedCubbieBlue.com.

Closer to home, check out Judge Shubb's website on the now defunct Sacramento Solons, who played in the Pacific Coast League from 1903 to 1960.  See SacramentoSolons.com; see also Solons Wikipedia page.

Transient Sentenced to 20 Years For Anthrax Hoax and Other Crimes

A 63-year-old man, whom officials describe as a transient, has been sentenced to 20 years in prison for sending anthrax-hoax letters threatening President Barack Obama and for failing to register as a sex offender.

Timothy Cloud pleaded guilty in May and was sentenced Monday by U.S. District Judge William B. Shubb.

According to Cloud's plea agreement, he admitted sending hoax mailings addressed to Social Security Administration offices in Baltimore, Kansas City and New York City. Each contained a white powdery substance to simulate anthrax and an index card with the words "you stole my money" and "die." As a result of the mailing to the New York office, all employees were evacuated and four were quarantined.

Cloud also admitted to sending a letter to President Obama that contained a white powder and an index card with the words, "You are just another lying politision (sic)," with cross hairs between "not this time" and "maybe next time," as well as a newspaper photo of President Obama with cross hairs drawn over his face.

Sacramento Bee, 8/23/10

Lengthy Prison Terms For Three In Violent Crime Spree

A Folsom man and two other men have been sentenced in federal court to lengthy prison terms for their roles in a series of violent crimes, including torture and murder, and robberies.

U.S. District Judge William B. Shubb in Sacramento sentenced John That Luong, 38, of Folsom to life in prison, plus 80 years. Kevin Lattanaphom, 32, of Oakland, was sentenced to life in prison, plus 45 years, and Hoang Al Le, 39, of Daly City to 28 years and four months, according to an FBI news release issued Friday.

Sacramento Bee, 3/7/10

Court Denies Government's Post-Sentencing Motion To Amend Adverse Credibility Findings Against Two National Forest Service Officers

In a case I've already blogged about twice, see Who Does the U.S. Attorney Represent? (part 1) and part 2, Judge Shubb denied today the government's unusual post-sentencing motion to amend the court's adverse credibility findings against two National Forest Service officers concerning their testimony during a suppression hearing in a marijuana cultivation case, see Javier Garcia Order Denying Government's Motion To Amend.

U.S. v. Garcia: Who Does The U.S. Attorney Represent? (Part 2)

Here's Javier Garcia's Opposition to the government's post-judgment motion to amend Judge's Shubb's findings regarding the testimony of two officers at the suppression hearing in U.S. v. Garcia.  The Opposition addresses the issues I blogged about in Part 1 last Friday.  I am also re-posting here a comment posted to that blog entry:

It's clear from the order that WBS's findings are sound. The root of the problem? The law lets cops lie. A cop may lie to a suspect to trick him into confessing, or for hundreds of other reasons. Those having a license to lie may not realize that the license doesn't reach into the courtroom. Nor does it help when the prosecutor validates your lie by (1) accepting it blindly; (2) presenting it as truth; and (3) defending it after it's discovered. Let's hope that Mr. Wagner steps up, directs his assistant to withdraw the motion, and sees that the officers lies are reported to their agencies.

Added 1/20/10:  Government's 1-19-10 Reply To Garcia's Opp to Mtn To Amend

Who Does The U.S. Attorney Represent In A Criminal Case?

The United States?  The victim?  You and me? 

That's more than just an abstract question.  Consider U.S. v. Garcia, No. CR-S 07-473-WBS.  On one hand, it's an ordinary National Forest marijuana cultivation case.  After a two-day evidentiary hearing in June 2009, U.S. District Judge William B. Shubb issued written "Findings of Fact, Conclusions of Law, and Order Re: Motion To Suppress."  In its order, the court granted the defendant's motion to suppress statements made by the defendant to U.S. Forest Service Law Enforcement Officer Greg L. Knox while in the vehicle on the way to Red Bluff, but denied the motion to suppress evidence of the statements made to U.S. Forest Service Special Agent Anthony Magarrell after the defendant was advised of his Miranda rights.  Thereafter, the defendant pled guilty and last month was sentenced to 30 months for conspiracy to cultivate marijuana plants.  Nothing unusual there.

But here's the hitch.  After the court imposes its sentence--almost 6 months after the court's ruling on the suppression motion, the prosecutor asks the court to amend the ruling to take out its findings and language indicating that the officers were not, uh, entirely credible in their testimony.  The prosecutor does not ask the court to change  any of its legal rulings, but simply to modify its language to delete any suggestions that the officers were not completely truthful while testifying.  Here's the court's findings that concern the prosecutor: 

3. Defendant was in custody while in the car.

Special Agent Magarrell communicated with Knox by radio, through another officer, and advised him to transport defendant to Red Bluff. The court finds that after defendant was placed in Officer Knox’s vehicle, he was in custody. The court frankly does not believe that under the circumstances these officers would have intended simply to take these men and give them a free ride an hour and a half away to Red Bluff when they knew exactly what Magarrell and Knox and apparently the other officers knew about this marijuana garden. They had been there, they had seen it.

They knew that five Hispanic males had fled, some of them were even part of that chase, and here they encountered Hispanic males wandering around in that area with no other explanation for why they should be there. They talked to them, and two or three of them admitted they were illegal aliens. The court cannot believe that law enforcement officers under those circumstances would say, “Do you want a ride? We’ll take you back to Red Bluff, and then we’ll drop you off so that you illegal aliens can go about your business and these other individuals, when we have probable cause to arrest, can go free.”

Instead, the court finds it most probable that Agent Magarrell intended to have the suspects transported to Red Bluff in order to interrogate them, turn at least the illegal aliens over to immigration authorities, and/or place them under arrest.

Further, defendant was placed in shackles in Officer Knox’s vehicle. It is hard to believe that after he was fleeing from the scene of a crime he had committed he would volunteer to go with a law enforcement officer to Red Bluff, which was some 90 miles way in the opposite direction from Chico where he wanted to go when he was stopped by Officer Knox. It is hard to believe particularly that he would want to go there in shackles.

Findings and Order, at 3-4.  Certainly, the prosecutor's motion to amend raises a number of legal questions.  Does the court have jurisdiction to amend its findings after the judgment and sentence?  Isn't the prosecutor's request a motion for reconsideration without legal grounds (i.e., no new facts or law)?  But how about as a matter of policy?  Why should the U.S. Attorney's Office be trying to hide adverse credibility findings of its agents, especially when the court's ultimate ruling is largely in its favor and the case is over?  The government doesn't represent the officers in this case, right?  Isn't there a strong public interest in having the facts come out? 

Here's the court's Order (Download U.S. v. Garcia Order & findings of fact 6-26-09) and the prosecutor's 12/12/09 post-judgment motion to amend (Download Garcia Mtn to amend court's ruling). Garcia's attorney's (Kathy Druliner) response is due Monday and the prosecutor's reply due 1/19/10.  See 1/14/2010 Who Does The U.S. Attorney Represent? Part 2  Comments?

[Postscript:  See 2/4/10 Post On Order Denying Motion To Amend]

Four Month Sentence for Man Trafficking in Counterfeit Merchandise

Judge Shubb sentenced a man to four months prison and 3 years supervised release for attempting to sell knock off designer bags, purses, etc, according to the Sacramento Bee.