Eastern District of California Blog

EDCA Court Denies Adgate's Motion to Stay Prison Sentence

Today, Judge England denied defendant Steven Adgate's motion to stay his 26-month prison sentence on the ground that the court lacked jurisdiction to consider the motion since the time to file a notice of appeal had expired.   Adgate order denying motion to stay.  Adgate had argued that his prison sentence should be stayed based on the Ninth Circuit's recent McIntosh decision, which generally barred the Department of Justice from expending funds to prosecute medical marijuana actions that were in compliance with state law.  

$750,000 Settlement in Death of Inmate Pepper Sprayed in Face

Today's Sacramento Bee has this front-page story:

State and Amador County officials have agreed to pay out $750,000 to the parents of an inmate who died after being blasted in the face with pepper spray by prison guards despite the fact that he breathed through a tube in his throat and was securely locked in his cell.

The settlement over the September 2013 death of inmate Joseph Damien Duran is one of the largest in the last decade in the Sacramento region resulting from conduct by prison officials.

In a federal civil rights and wrongful death lawsuit, Duran’s parents accused corrections officials of trying to cover up their son’s gruesome death by failing to notify them that he was dead, then having the body cremated and the ashes dumped in the sea.

Duran’s death initially was classified as a “suicide” by the Amador County coroner’s office, which investigated because Duran died in the county at Mule Creek State Prison, about 35 miles southeast of Sacramento.

Stewart Katz, the Sacramento attorney representing Duran’s adoptive parents, originally sought a $6.75 million payout, court records state. But California Department of Corrections and Rehabilitation officials “reported shock and dismay at this figure and did not present a counter figure,” Katz wrote in court papers.

Instead, the two sides engaged in a settlement conference before U.S. Magistrate Judge Kendall Newman this month and agreed to the $750,000 settlement.

“I don’t think they’ve ever paid out that much at that stage of the proceedings,” Katz said Monday. “But, obviously, money doesn’t replace loss of life.”

Feds oppose McIntosh-based motion to stay prison sentence

Today, the EDCA U.S. Attorney's Office filed this opposition to defendant Steven Adgate's motion to stay his prison sentence based on the Ninth Circuit's recent McIntosh opinion, which held that an Appropriations Act of Congress (§ 542) barred the Department of Justice from expending funds to prosecute individuals who were in compliance with state medical marijuana laws.  No word on the hearing date yet.

Motion to stay prison sentence based on Ninth Circuit's Medical Marijuana McIntosh decision filed

Tuesday, I blogged about the Ninth Circuit's McIntosh opinion, which held that the Appropriations Act barred the federal government from prosecuting medical marijuana cases where the defendants were in compliance with state law.  Today, I learned that Sacramento attorney Bill Portanova filed this motion to stay his client's prison sentence in United States v. Adgate, No. 2:12-CR-00198-MCE, based on the McIntosh decision.   I'd expect many more McIntosh-based motions to follow.

Ami Bera's father sentenced to one-year imprisonment

"Babulal Bera, father of Rep. Ami Bera, D-Elk Grove, was sentenced to 1 year and 1 day in prison Thursday for election fraud involving the finances of his son’s campaign committee.  U. S. District Judge Troy L. Nunley ignored the advice of a probation officer who recommended to spare the 83-year-old prison because of his age and health."  Sacramento Bee.   Here is an earlier Sacramento Bee piece describing the parties' sentencing positions.

 

10-month sentence in tax fraud case

According to the Sacramento Bee,

A Loomis man has been sentenced to 10 months in prison for his role in a tax fraud scheme.

Slavic Khudoy, 37, was sentenced Wednesday in Sacramento by U.S. District Court Judge Kimberley J. Mueller, according to a U.S. Attorney’s Office news release. Khudoy pleaded guilty in April.

 

Court documents indicate that between 2010 and 2012, Khudoy and Clint D. Bonderer, 38, of Stockton, submitted income tax returns to the Internal Revenue Service for others that contained false information about the taxpayers’ income, filing status and address, and fraudulently claimed credits that the taxpayers were not entitled to receive.

Khudoy and Bonderer submitted 842 fraudulent tax returns, requesting more than $600,000 in refunds in the names of other people. In most cases, authorities said, the two men kept the refunds themselves.

Bonderer was sentenced March 10 to three years in prison for conspiring to submit false claims.

Read more here: http://www.sacbee.com/news/local/crime/article96528522.html#storylink=cpy

 

Ninth Circuit Bars Feds From Prosecuting Medical Marijuana Actions That Complied With State Law

In U.S. v. McIntosh, No.15-10117, the Ninth Circuit held today that the Appropriations Act passed by Congress bars the federal government from prosecuting medical marijuana cases that comply with state law.  And from a conservative "states' rights" panel.  Here is the opinion's summary:

In ten consolidated interlocutory appeals and petitions for writs of mandamus arising from three district courts in two states, the panel vacated the district court’s orders denying relief to the appellants, who have been indicted for violating the Controlled Substances Act, and who sought dismissal of their indictments or to enjoin their prosecutions on the basis of a congressional appropriations rider, Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015), that prohibits the Department of Justice from spending funds to prevent states’ implementation of their medical marijuana laws.

The panel held that it has jurisdiction under 28 U.S.C. § 1292(a)(1) to consider the interlocutory appeals from these direct denials of requests for injunctions, and that the appellants have standing to invoke separation-of-powers provisions of the Constitution to challenge their criminal prosecutions.

The panel held that § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws. The panel wrote that individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and that prosecuting such individuals does not violate § 542.

Remanding to the district courts, the panel instructed that if DOJ wishes to continue these prosecutions, the appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law. The panel wrote that in determining the appropriate remedy for any violation of § 542, the district courts should consider the temporal nature of the lack of funds along with the appellants’ rights to a speedy trial.

 

Matthew Keys case update

On July 21, the Ninth Circuit Court of Appeals denied Matthew Keys's motion for bail pending appeal.  He's to surrender to start serving his sentence today while his appeal proceeds.  Here's his letter seeking executive clemency.  My prior case posts are here.

President Obama Commutes Three EDCA Sentences

Among the 214 sentences President Obama commuted yesterday were the following three EDCA defendants who had been convicted of drug trafficking offenses:

1) Jose Luis Buenrostro, Stockton, CA--1997 life sentence commuted to 360 months imprisonment;

2) Francisco Olivera, Modesto, CA--372 months, 1998 sentence commuted to 288 months imprisonment; and

3) Thomas R. Ross, Fairfield, CA--240 month sentence imposed in 2001 commuted to a sentence to expire on September 2, 2016.

EDCA Court grants suppression motion where officer delayed traffic stop for dog sniff

Fourthamendment.com reports on Judge Mueller's decision granting a motion to suppress evidence in United States v. Cornejo, 2:14-CR-0342-KJM, where an officer intentionally delayed a traffic stop to give a drug dog more time to get there and sniff for drugs:

It was apparent from the video that the officer slow walked the citation to give more time to the drug dog to get there and do its job. Selective muting of the audio at the time by the officer also adds to the court’s suspicion of the entire process. United States v. Cornejo, 2016 U.S. Dist. LEXIS 96229 (E.D.Cal. July 21, 2016):

… Considering the totality of the record, it appears Gunsauls consciously drew out filling out the entries in the citation in order to fish for information. He then further delayed the task by handing the citation off to Hughes when there were only two entries remaining, one of which was Gunsauls’ own name and identification number. The video establishes that the dog sniff added time to the stop, because it shows that after Hughes completed the citation, he retained the citation and Cornejo’s documents for another minute-and-a-half while he waited for Gunsauls to finish walking his dog around the car. Vid. 9:29:16-9:30:40. Rodriguez does not authorize questioning a person or performing a K-9 sniff while purporting to fill out a ticket or citation; it held a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation.” 135 S. Ct. at 1612 (citation and quotation marks omitted). Here, the mission of issuing a warning citation reasonably required substantially less than eight minutes under the circumstances. The fact that the deputies waited more than twenty-five minutes after the stop was initiated to check the validity of Cornejo’s license in no way justifies the unrelated tasks taken in between. See Ex. 15 at 1-2; Tr. 68, 127, 163-64, 167, 180, 197, 231-35.

. . .

Gunsauls’ selective muting of the audio recording raises additional questions. Gunsauls testified that he turned off his microphone for “officer safety reasons,” Tr. 28, and to withhold law enforcement’s tactics from criminals, Tr. 164-66, 179-80. This explanation does not comport with muting the audio during the K-9 sniff or search of the sedan. Vid. 9:28:35-9:30:41. The selective muting here could have omitted Hughes’ questioning unrelated to the traffic mission, sounds undermining the reliability of the K-9 alert, or information being volunteered by the defendant that dispels suspicions.

Even accepting Gunsauls’ account in full, the evidence does not establish a reasonable suspicion of drug-related activity prior to Gunsauls’ unrelated questioning or the K-9 sniff.

Congrats to defense attorney Kelly Babineau!