Eastern District of California Blog

Delta Water Litigants To Work On Compromise

The federal government and its environmental allies agreed Friday to try to reach a compromise with water users over the contentious issue of just how much water should be pumped from the Sacramento-San Joaquin Delta through the end of June.

Tom Birmingham, general manager of the Westlands Water District, made the offer on behalf of urban and agricultural water users during a short hearing before U.S. District Judge Oliver W. Wanger. The proposal to talk involves pumping restrictions that protect the threatened delta smelt.

But if talks fail, Birmingham said in an interview that he is prepared to convince Wanger that delta pumping restrictions designed to help endangered smelt should be temporarily lifted.

Fresno Bee, 5/28/10; ABC30tv

Sacramento Court Sentences CPA To 235 Months For Embezzling $13.5 Million From Clients

Judge Garcia sentenced William Murray Friday to a top-of-the guidelines 235 months for embezzling $13.5 million from 52 clients.  Here's the 5/29/10 Sacramento Bee's recount of the sentencing: 

William Murray, the Sacramento accountant who stole at least $13.3 million from dozens of his clients, was sentenced Friday in federal court to nearly 20 years in prison – but not before some of the victims gave wrenching accounts of how they were callously bled of their life savings.

Every asset of Murray's that the Internal Revenue Service can locate was ordered seized. However, U.S. District Judge Edward J. Garcia noted that the action "will not begin to make the victims whole."

Murray, who was a certified public accountant, must disclose all of his financial affairs, including bank records, to the victims.

During the dramatic 1 1/2-hour hearing in a packed courtroom, former clients called Murray "rotten," "a menace," a "sociopath" and a "snake." Most choked up as they spoke, and two had to ask Assistant U.S. Attorney Matthew Segal to read part of their statements.

Judge Wanger Issues 126-Page Ruling In Consolidated Delta Smelt Cases; Further Hearing Friday 10 a.m.

For the second time in nine days, a federal judge in Fresno has handed a victory to urban and agricultural water users who are seeking to increase pumping levels in the Sacramento-San Joaquin Delta.

U.S. District Judge Oliver W. Wanger’s 126-page decision involving the threatened delta smelt has many similarities to one issued last week on endangered salmon species.

As with the salmon ruling, Wanger found Thursday that water officials must consider humans along with the delta smelt in limiting use of the delta for irrigation. He also found that water users made convincing arguments that the federal government’s science didn’t prove that increased pumping from the delta imperiled the smelt.

But at same time, Wanger’s ruling recognizes that the smelt are a species on the brink of extinction, and as the water users seek to increase pumping levels that have been reduced to protect the tiny fish, they likely will face a tougher challenge than with the salmon.

How the ruling affects pumping restrictions will be argued at a hearing Wanger has scheduled for 10 a.m. Friday, and the outcome is critical in the continuing battle between water users and the federal government and its environmental allies.

Fresno Bee, 5/27/10

Eleven Indicted In Alleged Medicare Fraud

United States Attorney Benjamin B. Wagner announced that a federal grand jury last week returned a 20-count superseding indictment charging five doctors and six other people with conspiracy to commit health care fraud.

From February 2006 through August 2008, the defendants are alleged to have operated three health-care clinics - in Sacramento, Carmichael and Richmond - that submitted more than $5 million in allegedly fraudulent claims to Medicare.

Sacramento Bee, 3/25/10; KCRA.com

Federal Challenge To "Minister Housing" Income Tax Exemption Withstands Motion To Dismiss

The Freedom From Religion Foundation’s challenge of “parish exemptions” has made it through a significant hurdle, with a federal judge in Sacramento, Calif., firmly turning back the Obama administration’s attempt to dismiss FFRF’s historic challenge of Section 107 of the Internal Revenue Code.

Section 107 says that “In the case of a minister of the gospel,” gross taxable income does not include the rental value of a home furnished as part of compensation or, notably, the housing allowance paid as part of compensation. Exempt under IRS readings of the 1952 law are furnishings, cost of utilities, garage and such “appurtenances” as swimming pools and home improvements.

U.S. District Judge William Shubb ruled that “plaintiffs have alleged sufficient facts which, if accepted as true, ‘leave open the possibility’ that an objective observer would determine that Section 107 goes too far in aiding and subsidizing religion by providing ministers and churches with tangible financial benefits not allowed secular employers and employees.”

5/26/10, Palibandaily.com

New Holder Memo On DOJ Charging And Sentencing Policy

Last week, Attorney General Eric Holder issued this Memo on the Department of Justice's Policy on Charging and Sentencing, 5/19/2010 Holder Memo re Charging and Sentencing, which supersedes prior DOJ memos.  The Memo acknowledges that although the "guidelines remain important in furthering the goal of national uniformity throughout the federal system," that charging decisions and plea agreements must also consider the facts and circumstances of a particular case and that prosecutors must consider whether sentences they advocate are consistent with the purposes of sentencing in 18 U.S.C. §3553(a).  Significantly, prosecutors are free to request variances from a guideline range when such request is based upon specific and articulable factors and approved by a supervisor.  Worth keeping in mind the next time a prosecutor says he or she cannot agree to a below-guideline sentence in a plea agreement. 

New Hearing Dates For Harrison Jack Motions

The hearing on defendants' numerous motions to dismiss and suppress evidence has been moved from September 20 to October 15, 2010 at 10:00 a.m. in Courtroom 1 on the 16th Floor before Judge Damrell. 

The hearing on defendants' motion for release of transcripts and tapes in a different format has also been changed to July 6, 2010 at 10:00 a.m. before Magistrate Judge Drozd on the 8th Floor. 

Fresno Judge Lifts Delta Pumping Restrictions, But Now It Gets Complicated

A federal judge in Fresno on Tuesday temporarily lifted Sacramento-San Joaquin Delta pumping restrictions designed to help endangered salmon, siding with urban and agricultural water users who said the move would not harm the fish.

The order by U.S. District Judge Oliver W. Wanger will be in place until June 15. For west-side agriculture -- including farmers and ranchers in the Westlands Water District -- that could mean an extra 200,000 acre-feet of water, said Tom Birmingham, Westlands' general manager.

* * *

Pumping restrictions designed to protect another threatened fish, the tiny delta smelt, have been on the back burner because they are less restrictive than those covering the salmon. But now that the salmon restrictions have been lifted, "in theory, the smelt restrictions should limit" pumping, said Doug Obegi, an attorney with the Natural Resources Defense Council, which opposed the water users' request.

Even Birmingham admitted as much, saying the possibility exists that the smelt pumping restrictions could wipe out every drop of water gained by Tuesday's ruling.

Fresno Bee, 5/26/10.  [Added Republican Governor Candidate Meg Whitman's Statement on Decision and ABC30.com, 5/26/10]. 

Ninth Circuit Twice Reverses Sacramento Court's Denial Of Habeas Relief This Week

It's only Tuesday and the Ninth Circuit has already issued published decisions reversing two Sacramento federal court judgments denying writs of habeas corpus, Taylor v. Sisto, 5/24/10 and Lunbery v. Hornbeak, 5/25/10.  Both decisions are authored by Judge John T. Noonan.  In Taylor, the Court, in a 2-1 decision, held that the Court's pre-instruction asking jury's to disregard their life experiences and imagine themselves in a box was an unreasonable application of clearly-established Sixth Amendment law.  Judge Sandra S. Ikuta dissents.  SFGate.com, 5/26/10.  In Lunbery, the Court reversed the denial of the writ because of the California court's improper exclusion of evidence that another person, who had died before trial, had admitted that his partners had murdered the victim.

Also the Ninth Circuit reversed the Sacramento federal court's summary judgment against the plaintiff on his retaliation First Amendment claim in a wrongful termination suit, while affirming summary judgment on his other claims.  Anthoine v. North Central Counties Consortium, 5/24/10

Judge Wanger Runs 5 Year Sentence On 924(c) Gun Count Concurrent To 10 Year Mandatory Drug Sentence

[DISCLAIMER ADDED 3/13/11:  PLEASE BE AWARE THAT THE SUPREME COURT HAS SINCE DECIDED THIS ISSUE TO REQUIRE THAT THE SENTENCE ON 924(c) COUNTS TO RUN CONSECUTIVE TO THE SENTENCE ON A DRUG CONVICTION, See ABBOTT V. UNITED STATES, No. 09-479 (U.S. Nov. 15, 2010)] 

Although you won't find any mention of it in the U.S. Attorney's Press Release trumpeting a 10-year sentence on a man who tended a marijuana garden in the Sierra National Forest, see 5/18/10 USA Press Release and 5/21/10 Turlock Journal, the real story for criminal defense attorneys here is that Judge Wanger agreed that the 5-year sentence on the defendant's gun conviction under 18 U.S.C. §924(c) should run concurrent--rather than consecutive--to his mandatory minimum 10-year sentence on his marijuana cultivation conviction.  With no controlling Ninth Circuit precedent, the Court followed the holding of the Second Circuit's decision in United States v. Williams, 558 F.3d 166 (2d Cir. 2009).  See 3/13/09 Blog Post On Williams Decision.  The Supreme Court has recently granted certiorari in two cases to resolve the circuit split on this issue.  The full argument is set forth in the Sicairos-Quintero Sentecing Memorandum.  The 10-year statutory minimum sentence in this case seems more than sufficient to satisfy the §3553(a) purposes of sentencing.  Congratulations to AFD Charles Lee.  Defense attorneys should continue to seek concurrent sentences on these 924(c) counts.