Archive for February, 2014

HuffPo: Obama’s Marijuana Banking Rules Don’t Change Anything, Bankers Say

Matt Ferner

Last week, the Obama administration announced new guidelines that it portrayed as a drastic change to the way marijuana businesses interact with banking services. Supporters touted the news as a “green light” for pot shops to gain access to traditional financial services, but banking officials say that the guidance, essentially, changes nothing.

“After a series of red lights, we expected this guidance to be a yellow one,” Don Childears, president and CEO of the Colorado Bankers Association, said in a statement. “This isn’t close to that. At best, this amounts to ‘serve these customers at your own risk’ and it emphasizes all of the risks. This light is red.”

Steven Brudner, managing director of Merchant Services Consulting Group, told The Wall Street Journal that debit and credit card services will probably not be available to marijuana businesses either, since major credit card-processing banks do not want to expose themselves to the risks that still exist under the new guidance.

Due to the banks’ fears of being implicated as money launderers, marijuana-related businesses are often forced into cash-only transactions, putting the retailers’ safety at risk and creating issues involving taxes and employee payroll.

Colorado’s legal marijuana businesses are already exceeding revenue estimates by the state, and as a result, they’re in desperate need of access to banking services. Gov. John Hickenlooper announced this week that the state’s total pot sales for the next fiscal year were estimated to reach about $610 million – that’s up more than $200 million from the cannabis industry’s earlier estimates of approximately $400 million, annually.

Guidelines announced by the Treasury Department and a memo from a top Justice Department official were intended to ease concerns that the federal government would target banks working with marijuana-related businesses that are legal and regulated on the state level. Expanded banking access would enable them to function like traditional businesses, and implementing a reporting structure would allow the federal government to take a close look at how they operate.

However, the DOJ memo falls short of expressly protecting banks that work with state-legal, state-licensed marijuana businesses from prosecution.

Treasury officials said that they anticipated that the guidelines could encourage smaller and medium-sized banks to deal with marijuana businesses.

But the CBA strongly disagrees, with Childears saying in his statement that “no bank can comply” with these regulations.

“Bankers had expected the guidance to relieve them of the threat of prosecution should the open accounts for marijuana businesses, but the guidance does not do that,” Childears said. “Instead, it reiterates reasons for prosecution and is simply a modified reporting system for banks to use. It imposes a heavy burden on them to know and control their customers’ activities, and those of their customers.”

“An act of Congress is the only way to solve this problem,” Childears added.

Rep. Ed Perlmutter (D-Colo.) has sponsored a bill that would do just that. TheMarijuana Access to Banking Act would create the protections for depository institutions needed so they can effectively provide financial services to marijuana-related businesses.

Perlmutter said that although the new guidance is an “important step,” much more is needed.

“We need Congress to promptly consider and pass my legislation to provide certainty for financial institutions and the licensed marijuana related businesses to operate just like any other business,” Perlmutter said.

Currently, 20 states and the District of Columbia have legalized some form of marijuana, be it medical or recreational. One study suggests that the U.S. marijuana industry could be valued at over $10 billion by 2019.

February 22, 2014 Posted Under: Uncategorized   Read More

LA Times: The feds give a green light to the marijuana business

Will that be cash or charge? A customer assesses the wares in a Denver marijuana emporium; new federal rules make pot a bankable business.


If you’re keeping track of what so far has been the creeping acceptance and legalization of marijuana in the U.S., on Friday things took a huge leap forward.

The U.S. Treasury issued guidelines stating, in effect, that it’s legal for banks to provide financial services to marijuana-related businesses. That removes a huge impediment to the growth of the businesses, for up to now federal banking restrictions have forced them to operate in cash.

The Obama administration plainly recognizes that with the sale or use of marijuana now legal in some form in 20 states and the District of Columbia, the old restrictions are anachronistic. Worse, they foster crime: The essence of anti-money-laundering enforcement is to move business activity out of cash and into auditable, trackable transactions, such as bank and credit card accounts.

What we’re seeing is a fascinating example of how a long-standing social and legal norm starts to change. Think same-sex relationships and gay marriage. The impetus for change originates in a few states; they demonstrate that presumed consequences don’t follow, and the old norm yields to the new norm, first slowly and then at greater speed; and at some interim point the federal government — whether through legislation, executive order or judicial directive — adjusts to the new world and forces the last holdouts to join in.

Allowing marijuana businesses to get straight with the banking system is a key step along that continuum, though it represents less than total surrender. As my colleague Timothy M. Phelps reports, Friday’s guidance from the Treasury’s Financial Crimes Enforcement Network, or FinCEN, takes the liberalization of pot laws and regulations about as far as the administration thinks it can go. It’s not overturning federal drug law, which still defines marijuana as a controlled substance illegal to sell or distribute. It’s not endorsing the state initiatives.

But the Treasury is building on liberalized criminal guidelines issued last August by the Department of Justice. The DOJ similarly bowed to reality by relegating the pursuit of routine pot users and sellers to a very low priority. Instead, the DOJ listed its chief enforcement concerns as (among a few other things) preventing the sale of marijuana to minors, diverting revenue that goes to criminal enterprises or gangs and keeping pot trading from being used as a cover for the trafficking of harder drugs.

Pressure on the feds to lighten up has come particularly from the state governments of Colorado and Washington, which have gone further than any other states in legalizing marijuana. But the new guidelines still are freighted with the loopiness of America’s drug laws, which consistently have been applied more harshly in minority and poor communities than white and middle- or upper-class precincts.

Since marijuana isn’t being made legal in the eyes of federal law, it’s unclear whether banks, or which banks, will accept deposits or offer loans to marijuana-sellers, or whether you’ll be able to use Visa or MasterCard at your local dealerhip. For example, since pot is still technically illegal, banks will still be required to file “suspicious activity reports,” which identify transactions they think may be related to criminal activities, on any dealings with marijuana businesses.

They will be permitted to file “marijuana limited” suspicious activity reports, which state in effect that, yes, we know this is illegal, but it’s only marijuana. But they’ll also be expected to keep a lookout for red flags — businesses that seem to be making a lot more money from marijuana than would be expected in their state, say, or a lot more than their competitors. In a way, marijuana businesses may end up with a lot more scrutiny from their bankers than they expected.

Yet as acceptance and legalization of marijuana spreads, today may be looked back on as a landmark moment: the birth of Ganja Inc.

February 15, 2014 Posted Under: Uncategorized   Read More

Victory for Gun Rights Today!


More on the reasoning of the Ninth Circuit’s right-to-carry-a-gun opinion


As I noted earlier, today’s Ninth Circuit decision in Peruta v. County of San Diego (9th Cir. Feb. 13, 2014), concludes that California’s broad limits on both open and concealed carry of loaded guns “impermissibly infringe[] on the Second Amendment right to bear arms in lawful self-defense.” I’ve now finished reading the opinions, and had a few general thoughts.

1. California law essentially leaves most law-abiding adults without the ability to carry guns in public for effective self-defense, period. People are barred from carrying guns either openly or concealed. It is this broad policy that the majority holds unconstitutional.

In D.C. v. Heller, the Supreme Court strongly suggested that (1) the right to “bear” arms means the right to carry them, but that (2) bans on concealed carry are constitutional:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Thus, if California law had banned concealed carry but allowed open carry (which some states have historically done), that wouldn’t have violated the Second Amendment. And if California law had banned open carry but allowed concealed carry (perhaps requiring a license that pretty much all law-abiding adults could get), that too might well have been constitutional, on the theory that it still left people free to carry guns, but just regulated the “manner” of carrying.

But, as the Ninth Circuit majority points out, a general prohibition on all carrying of guns in public is more than just a way of regulating the manner of carrying:

A flat-out ban on concealed carry in a jurisdiction permitting open carry may or may not infringe the Second Amendment right — the passage from Heller clearly bears on that issue, which we need not decide. But whether a state restriction on both concealed and open carry overreaches is a different matter. To that question,Heller itself furnishes no explicit answer. But the three authorities it cites for its statement on concealed-carry laws do.

Indeed, the Ninth Circuit majority argues, pretty much all the 19th-century cases that accepted the view that the Second Amendment secures an individual right to keep and bear arms in self-defense also took the view that the right includes a right to carry insome manner. (Those 19th-century cases that rejected any right to carry, the majority argues, took the view that the right is collective, or the view that it doesn’t include self-defense purposes — views that the Supreme Court rejected in Heller.)

I think the Ninth Circuit majority’s analysis is correct on this, and the dissent’s is mistaken. The dissent keeps stressing that the case should be about whether the California ban on concealed carry is constitutional, and that Heller says that the concealed carry ban is indeed constitutional. But the California ban on concealed carry is part of a general scheme that bans the great bulk of all carrying in public for self-defense (unless one has a permit that the police may choose not to grant). It is this general scheme that violates the Second Amendment, even if a ban on concealed carry that left people free to carry openly would not do so.

2. So the Second Amendment secures a right to carry — but may even a broad ban on such carrying still be constitutional on the grounds that it passes “intermediate scrutiny,” in the sense of being substantially related to an important government interest? Some courts have upheld such broad bans on this theory. But the Ninth Circuit says no, and I think correctly so:

[I]f self-defense outside the home is part of the core right to “bear arms” and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego’s policy. See Heller, 554 U.S. at 634 (“The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worthinsisting upon.”)….

A law effecting a “destruction of the right” rather than merely burdening it is, after all, an infringement under any light….

It is the rare law that “destroys” the right, requiring Heller-style per se invalidation, but the Court has made perfectly clear that a ban on handguns in the home is not the only act of its kind. We quote the relevant paragraph in full, telling case citations included:

Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. InNunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

3. The court also dismissed the argument that the California scheme is saved by the fact that people might get concealed carry licenses if they show “good cause” to the satisfaction of the police department, or by the fact that there are some other exceptions:

[T]he California scheme does not prevent every person from bearing arms outside the home in every circumstance. But the fact that a small group of people have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of
his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”

That too strikes me as right. If there is no individual right to carry guns in self-defense, then a ban on such carrying is just fine. But if there is such a right, it is an individual right, and a ban on most people’s exercise of this right can’t be justified on the grounds that some people are allowed to exercise it.

4. Finally, note that nothing in the opinion means that narrower regulations of gun carrying are unconstitutional. “Shall-issue” schemes that require a license to carry, but let pretty much all law-abiding adults get such a license, would likely be upheld. The same is true for restrictions on carrying in particular places, such as schools or government buildings. But a broad ban on all gun carrying in public, the court held, violates the Second Amendment.

February 13, 2014 Posted Under: Uncategorized   Read More


As always, Sacramento federal and state criminal defense attorneys Steve Plesser and Mark Reichel are very impressed when something like this happens.  Service of the search warrant exceeded the authority the judge granted.  I have the briefings if anyone wants them.

Former U.S. Border Patrol union chief cleared of fraud charges

Marty GrahamReuters12:01 a.m. CST, February 12, 2014
 SAN DIEGO (Reuters) – A federal judge on Tuesday dismissed all criminal charges brought by U.S. prosecutors against a former head of the border patrol union accused of misusing union and government funds for his own enrichment.
Terence “T.J.” Bonner, who for 22 years served as head of the National Border Patrol Council, was charged in two indictments, in 2012 and 2013, with multiple counts of wire fraud, mail fraud and conspiracy to commit both.

He was accused of writing himself checks from union coffers as reimbursement for business travel, overtime, weekend wages and other union expenses but which officials said were actually used to buy pornography and pay for trips to Chicago to see a mistress.

Federal prosecutors said he siphoned hundreds of thousands of dollars in all in union funds for his personal use.

Bonner pleaded not guilty and has maintained that the charges were brought in retaliation against him for speaking out against the government.

He had sharply criticized the U.S. Justice Department over the failed “Fast and Furious” gun-running investigation, an operation intended to track weapons sold in Arizona that were suspected of being transported to Mexican drug cartels.

At the request of prosecutors, all charges against Bonner were dropped late Tuesday on the eve of a court hearing that was intended to sort through what evidence against him would remain after U.S. District Judge William Hayes threw out most electronic evidence that had been gathered in the case.

Hayes had found then that investigators improperly conducted a broad search of Bonner’s computers under a warrant that the judge said was more limited in scope.

“They ransacked my home and personal computers looking for something to charge me with because I was speaking unpleasant truths,” Bonner said in a telephone interview on Tuesday night. “They humiliated me, and they violated my Constitutional rights. They picked me up by the ankles and shook me until my pockets were empty.”

Federal prosecutors were not immediately available for comment.

(Reporting by Marty Graham; Editing by Steve Gorman and Ken Wills)


February 13, 2014 Posted Under: Federal Criminal Cases   Read More

Terrible Breach of Attorney Client Privilege By NSA : YES, BIG, AND I MEAN REALLY BIG, BROTHER IS LISTENING

Bottom line: THESE GUYS HAVE TO BE SHUT DOWN.  They do more harm than good, and they could care less about anyone on the planet’s rights.  Anyone.  Except themselves.

Has the NSA Wiretapping Violated Attorney-Client Privilege?

A document leaked by Edward Snowden, along with interviews with lawyers representing terrorism suspects, reveal a disturbing loophole in this once-sacred legal principle.

Nicolas Niarchos
February 4, 2014
  • NSA headquarters

The NSA campus in Fort Meade, Maryland. (AP Photo/Patrick Semansky) 

The first time Adis Medunjanin tried to call Robert C. Gottlieb in mid-2009, Gottlieb was out of the office. Medunjanin was agitated. He had to speak to an attorney. Gottlieb’s assistant told him Gottlieb would be back soon. When Medunjanin spoke to the lawyer a little later, he was told he might need legal representation. He thought he might be under investigation.

Over the next six months and in forty-two phone calls, Medunjanin sought legal advice from Gottlieb. When he was arrested in January 2010 on charges that he tried to bomb the New York subway, it was Gottlieb who defended him, receiving security clearance to review government documents pertinent to the case in the process.

Gottlieb was preparing Medunjanin’s defense when a federal officer in charge of information distribution e-mailed him that there was new classified information he needed to review at the US Eastern District Court in Brooklyn. “I went over to the Brooklyn Federal courthouse, went up to the secured room, gained entry with the secret security codes, opened the file cabinet that is also secure and in the second drawer was a CD,” Gottlieb told me. On that CD were recordings of every single one of his forty-two phone calls with Medunjanin before he was taken into custody and indicted on January 7, 2010.

Such calls are normally sacrosanct under the principle of attorney-client privilege, the ability to speak confidentially with your lawyer. But a leak to The Guardian last summer of National Security Agency (NSA) procedures that are supposed to protect privileged calls showed that some attorney-client privileged calls are not subject to internal rules that detail the instances when a wiretap should be turned off. A later version of the procedures declassified by the NSA last August contains the same language.

These “minimization” procedures, as they are known, are the rules and regulations for wiretaps under the Foreign Intelligence Surveillance Act (FISA). They tell NSA agents when they can listen, and when they have to turn the tap off, when they can record and when they should not be recording. There are rules for which kinds of communications can be monitored—for example, domestic communications are off limits, although communications from agents of foreign powers and suspected terrorists don’t count as domestic—and there is a section that provides for the protection of attorney-client calls.

Section four of the declassified 2011 guidelines is the part of that document that governs wiretapping attorney-client calls. At first glance, it seems quite clear: when the agent realizes that he or she is monitoring an attorney-client communication, “monitoring of that communication will cease and the communication will be identified as an attorney-client communication in a log maintained for that purpose.”

But given a second reading, section four doesn’t apply to all attorney-client calls. It provides only for the minimization (and protection) of the calls of “a person who is known to be under criminal indictment in the United States”—someone who has already been charged under US law. This is because indicted persons have a Sixth Amendment right to counsel. People who aren’t indicted don’t have this right, and so their calls are not minimized. When I asked an NSA press officer, Vanee’ M. Vines, how attorney-client privilege was protected, she referred me to the Department of Justice. I left several messages, but the DOJ never contacted me back.

“The invocation of National Security trumps other rules,” Joshua Dratel, a veteran New York lawyer who has litigated over thirty terrorism cases told me over the telephone. Dratel says that calls subject to attorney-client privilege are not covered by the NSA’s minimization.

“These are calls that are covered by the privilege that are not covered by that kind of minimization,” he added. “FISA is 24/7, there’s no real minimization; in a practical sense it doesn’t exist. In all the FISA cases I’ve legislated, I’ve had no minimization.”

* * *

Attorney-client privilege is often called one of the most “ancient” principles of US law, and lawyers view it as one of the most sacred. “It’s one of the oldest principles underlying our system of justice,” says Ellen Yaroshefsky, the director of the Jacob Burns Center for Ethics in the Practice of Law at Cardozo School of Law in New York City. “Without it you can’t allow a lawyer to do their job in providing their client with adequate and serious representation.”

Alexander Abdo, a lawyer with the American Civil Liberties Union (ACLU), insisted in a telephone interview that the bond between lawyer and client had to be protected. “It really comes down to trust—clients need to trust their lawyers. If they can’t trust their lawyers, they can’t do their job,” he said.

There are exceptions to the rule. Attorney-client communications may be monitored in the case that authorities believe the attorney and client are engaging in crime or fraud. Lawyers doing dirty work for mob bosses were famously wiretapped in the 1990s. More recently, a FISA warrant was used to reveal that Lynne Stewart, a human rights lawyer, was passing messages on behalf of a client convicted of terrorism. In 2005, a court found she was doing so in violation of special administrative measures (SAMs) imposed by court order upon her client and sentenced her to twenty-eight months in prison. In 2010, an appeals court ruled that her previous sentence was too light and resentenced Stewart to another ten years.

Under a standard Title III wiretap, used in domestic cases, minimization must be used on all privileged calls—pre- and post-indictment—unless there is the suspicion of criminal activity. Non-pertinent information should also be minimized—and destroyed. But as Marjorie Cohn, a former president of the National Lawyers Guild and a professor at the Thomas Jefferson School of Law in San Diego, told me, even this stipulation is stretched by federal agencies. “As long as it’s reasonable not to minimize, they don’t have to minimize.”

That said, defenders of the policies argue that wiretaps can be an essential tool to catch terrorists. Najibullah Zazi, the man who fronted the subway-bombing plot that involved Medunjanin, was caught because his emails to handlers in Pakistan were intercepted by federal agents. Norm Abrams, an emeritus professor of law at the University of California, Los Angeles told me that it was a complicated balancing act. “I think that it’s important to give Government special tools,” he said. “But we don’t want to lose our civil liberties.”

* * *

I met Robert Gottlieb early on a September morning in his office in the Trinity Building in Downtown Manhattan. He has grey combed-over hair and explains things slowly and in detail, like a patient schoolmaster. Among the legal certificates and degrees on his walls hangs a picture of Abraham Lincoln and a poster from his unsuccessful 1985 campaign for District Attorney of Suffolk County that reads: “Bob Gottlieb convicted international terrorists. No one in Suffolk County is going to push him around.”

He still doesn’t know why he was given access to the wiretaps of his supposedly privileged calls. The prosecution certainly didn’t deem them pertinent to the case, and although they were declassified, they were never presented at Medunjanin’s trial. Gottlieb listened to every single one of the recordings at the Brooklyn court. He was shocked.

“I listened to call after call holding my breath to see and to hear what I said in these conversations. It turned out that I was very careful and very circumspect,” he said, but he was angry that his privilege had been violated and that the law, as he saw it, had been ignored. The judge denied Gottlieb’s request that the government disclose its application to the FISA court for a wire-tapping warrant. “Everybody is harmed when government ignores law because that weakens the foundation of law that ultimately must and should be applied fairly and strictly in every situation to every individual. So if you are willing to chip away and to weaken the law when it suits your governmental purpose, then everyone in the future is victimized by government violations of law.”

Gottlieb isn’t the only attorney defending suspects involved in the 2009 subway plots who was wiretapped. Lawyer Ron Kuby defended Ahmad Wais Afzali, an imam who was tried for providing material support to the subway plotters. He told me over the telephone how he learned he was wiretapped for the entire first day of communications with his client. And though he was never told under what authority he had been listened to and recorded, he explained, “the only act that would authorize it is the act that must not be named”—FISA.

Kuby was asked to come to the Joint Terrorism Task Force’s headquarters in Chelsea (“this really cool office in this really hip neighborhood,” as he described it, with only a hint of sarcasm in his voice). After a wait, he was called upstairs to a conference room, and the tapes of three conversations with his client were played back to him with law enforcement agents sitting in the room. He still doesn’t know why this happened, because the tapes were—as in Gottlieb’s case—never introduced as evidence.

Afzali had called Kuby for legal advice. All the time, he was being listened to by government agents.

“The DOJ’s guidelines are so fucking narrow that they apply only to those who have been indicted,” said Kuby. “Since he was not indicted, they did more than just listen. Saturday morning we agreed that we would have a press conference on Sunday. The FBI chose to preëmpt that conference by arresting him on Saturday evening.”

“It’s beyond concern,” he added, “This is ongoing legal advice in an incredibly volatile situation in which the DOJ has a big stake, but they just didn’t give a fuck.”

* * *

A case that is often cited when people talk about attorneys who’ve been wiretapped is the Al Haramain case. In August 2004, attorneys Wendell Belew and Asim Ghafoor—lawyers for the Saudi charity Al Haramain—were presented with evidence by the Treasury Department, which was leading the investigation, that calls with their client were being wiretapped under the Bush government’s warrantless Terrorist Surveillance Program (a program now officially discontinued, and discreet from FISA). “It was not the usual kind of information we were used to getting from the Treasury,” Belew told me over the telephone. And while he continues to be bound by court order not to disclose the documents’ details, it was widely reported in the media at the time that the agency involved was the NSA.

“We were not allowed to use the documents themselves,” Belew said of the civil case Al Haramain later brought against the US government. “The government took back copies of those documents from everybody who had them,” and the court eventually dismissed the case.

The Bush program ended in 2007, after a public and press outcry. A year later, the FISA Amendments Act of 2008 expanded the executive ability to wiretap and granted retroactive immunity to the telephone companies that participated in the warrantless wiretapping program. Critics like Daniel Ellsberg, the Pentagon Papers whistleblower, rallied against the act, saying that without the ability to bring civil suits against the private telephone companies, citizens would not be able to find out what the government was doing. But lawyers continued to believe their communications with clients were once again immune to government snooping. FISA court oversight, it was assumed, would protect privileged conversation.

But so little has been disclosed that it’s difficult to have public oversight, and so little information has made its way before a judge. “It’s not an area where there’s much recent law,” said Norm Abrams, the UCLA law professor. “We don’t have any court decisions.” He explained, for instance, that FISA doesn’t mention the attorney-client privilege.

But complications arise because most attorneys—notwithstanding being presented with evidence that they had been tapped like Kuby and Gottlieb—would never know, and may never even suspect they had been recorded. For example, Reuters revealed that the Drug Enforcement Administration was using information gleaned from NSA wiretaps to prosecute drug dealers. They then used a technique known as “parallel construction” (a frequently employed technique in law enforcement) to use other evidence in the investigation to scrub any mention that the wiretap took place. As one former DEA agent told the journalists, “It’s just like laundering money—you work it backwards to make it clean.”

* * *

The day the FISA Amendments Act was ratified, a case was brought by Amnesty International (in which The Nation and its contributing journalists Naomi Klein and Chris Hedges were plaintiffs) that asserted, among other things, that wiretapping was being used in all kinds of situations where conversations should have been privileged. The suit was dismissed earlier this year.

Alexander Abdo, one of the ACLU lawyers on the case said it is hard to litigate on cases where lawyers have been wiretapped because the government refuses to acknowledge the taps. “It’s very difficult to prove that it’s happened and it’s very difficult to get them to admit in court that it’s happened,” he added. He said wiretapping was a legitimate fear, and attorneys have changed their practices to meet the needs of an era where the government might be listening to their every call.

And it isn’t just people involved in the ACLU case who are concerned. Dratel, the terrorism lawyer, confirmed that he and his colleagues had changed their communication strategies. They now use encryptions and turn their cellphones off at meetings. “We’re taking all these precautions which ten, fifteen years ago would have seemed suspicious. Now they’re part of a legitimate fear and way of doing business,” Dratel told me. “It’s like some Ocean’s 12 film.”

That may all be changing now in the wake of Snowden’s revelations. At the end of October, the Justice Department notified a defendant for the first time that information being used against them at trial came from warrantless wiretaps, and legislation was introduced that would make judicial oversight and debate on State wiretapping more feasible. Senator Ron Wyden—who did not want to comment directly on the attorney-client issue—told me that new bipartisan legislation he had worked on would allow people to challenge wiretaps in court. “The Supreme Court’sAmnesty v. Clapper ruling made it nearly impossible for law-abiding Americans to prove that they have standing in federal court to challenge secret government surveillance,” he explained in an e-mailed statement.

* * *

Another case, ACLU v. Clapper, was filed last summer after a document leak that showed Verizon metadata were being logged by the NSA and focuses on metadata, which can contain information covered by attorney-client privilege. Metadata do not contain the content of calls or other electronic interactions; they are merely the information that a communication existed, where it originated and at what time it took place. But Patrick Toomey, one of the ACLU staff lawyers on the case, said that the records that the calls even existed were covered by the attorney-client privilege.

“One of the many revealing things metadata can convey is the context of calls based simply on who calls the ACLU and where they’re calling from,” Toomey told me over the telephone. “This is the equivalent of privileged data.”

Where the law stands on this and other issues of attorney-client privileged speech is complicated, partly because it’s not a subject that has been legislated upon. What is privileged and what is not? Where does the privilege apply, and where can it be protected? Are intelligence officials law enforcement officers or something else entirely?

Norm Abrams, the UCLA professor, told me “the law isn’t simple” on whether the information conveyed by targeted metadata collection is privileged. On the other hand, he did not believe that the mass collection of metadata—simply the storing of such information in a database with millions of other e-mail traces—violated privilege. And while he would welcome more legislation by Congress, he didn’t think that a House as divided as the current one would be able to pass any such legislation.

I asked him what he thought the reaction of the government would be if such a case did make it to the courts or in Congress. “I think the government would probably make an argument that they could do things under FISA which they couldn’t do otherwise,” he said. “Given the fact that FISA modifies the otherwise applicable Fourth Amendment rules—the argument that FISA may also overcome the Fourth Amendment and attorney-client privilege, it’s not implausible.”

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Cohn, the Thomas Jefferson Law professor, insisted that any type of government surveillance on such privileged communications is a violation of the law. “The attorney-client privilege,” she added, applies “any time a client is consulting an attorney as an attorney.”

Robert Gottlieb also takes a strong line on the issue. Less than a year after his client had been convicted, the memory of the case, and the illegal wiretap still animated him. Outside his office, the bells of Trinity Church pealed through the bright, blue September morning. For Gottlieb there is no confusion and no debate. The government, he said, must not violate the attorney-client privilege.

“The time that we really test ourselves to see whether we really believe in this country’s principles arises in the most serious cases and if you can’t protect the constitutional rights and the sacred principles that underlie our entire system of law in serious case then it is in danger, even in minor cases, depending on the whim of the officials who are in power. That’s not the way this country was formed to operate,” he said, tapping the table. “The only thing that should be done is that government should be told in no uncertain terms by the courts, by Congress that you may not violate the attorney-client privilege. End of story.”

Read Next: Zoe Carpenter questions whether Congress can oversee the NSA.

February 7, 2014 Posted Under: Uncategorized   Read More

Interesting Verdict In Civil Case Against Nosey Neighbors!

Sacramento criminal defense attorneys Mark Reichel and Steve Plesser find this case interesting.  A neighbor feels a man is not  being a good dad.  They take his kids, and then swear out criminal charges against him.  Based on their statements, the kids are taken away and criminal charges are filed.  The nosey neighbors are liars, and the charges are dismissed.

Dad sues, gets a big verdict.  Good for him.


Couple take plaintiff father’s children and then swear out a citizen’s arrest against him.  Criminal charges are filed, but later dropped and plaintiff claims malicious prosecution.

The Case

  • Case Name: John William Steves v. Kenneth Jacobs, Kimberly Lemire
  • Court and Case Number: : Orange County Superior Court / 30-2012-00581735
  • Date of Jury Verdict: Wednesday, December 11, 2013
  • Date Action was Filed: Saturday, 07 July 2012
  • Type of Action: Malicious ProsecutionHighlighted Verdicts
  • Judge or Arbitrator(s): Hon. Gregory H. Lewis
  • Plaintiffs:
    John William Steves, 56, AT&T cable splicing technician
  • Defendants:
    Kenneth Jacobs, 44, owner of two shops and grocery store worker
    Kimberly Lemire, 44, worker in shops owned by Kenneth Jacobs
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict: $1,229,175
  • Net Verdict: $1,229,175
  • Award as to each Defendant:Joint and Several
  • Contributory/Comparative Negligence: None
  • Economic Damages:$29,175
  • Non-Economic Damages:$1,200,000
  • Punitive Damages:None
  • Trial Time: 5 days

The Attorneys

  • Attorney for the Plaintiff:
    Flyer & Flyer, A Professional Law Corporation by Raquel Flyer, Newport Beach.
    Stan A. Smith, APLC by Stan Smith, Laguna Niguel.
  • Attorney for the Defendant:
    Law Office of Andrew W. Macrae by Jeffrey N. Redd, Santa Ana. (for defendant Jacobs)
    Wenzel & Associates by Roger Ho, Santa Ana. (for defendant Lemire)

The Experts

  • Plaintiff’s Medical Experts:
    Sheryl Woodhouse, Marriage Family Therapist, Mission Viejo. (treating therapist for Mr. Steves since shortly after his wife’s death.)
  • Defendant’s Medical Experts:
  • Plaintiff’s Technical Experts:
    Gil May, criminal defense attorney, Laguna Niguel.
  • Defendant’s Technical Experts:

Facts and Background

  • Facts and Background:Plaintiff was arrested, prosecuted and had his two minor children removed from his sole custodial care by a separate juvenile court action.Plaintiff’s wife Mara, had been killed by a three-time DUI drunk driver on February 13, 2011. Her death took a huge toll on Mr. Steves and his children. Defendant Lemire had been a friend of decedent, Mrs. Steves.On the night before the incident in question, the children ages 14 and 15, had left their home without their father’s permission and had  gone to a neighbor’s house; the police were called and the police returned the children to their father.On December 6, 2011, against plaintiff’s verbal protests, defendants removed plaintiff’s children from his home, drove them away, locked them in a motor vehicle and refused to release them to their father.  When the police later arrived, defendants swore out a citizen’s arrest. Plaintiff was charged with assault, battery, aggravated assault and child abuse and endangerment. The juvenile court hearing resulted in a restraining order that prevented plaintiff from being near his children and the defendants. The restraining order lasted for 8 months, and ended after the criminal charges against plaintiff were all dismissed.


  • Plaintiff’s Contentions:That plaintiff was prosecuted and had his two minor children removed from his sole custodial care based on the jointly malicious, officious intermeddling of defendants.  That defendants had a very close personal relationship and conspired with each other to take plaintiff’s children.That when the children were in defendants’ car, defendants taunted plaintiff until police arrived.That defendants, who were dating at the time, took it upon themselves to intervene in plaintiff’s family issues and to take his children over his strong objections.Plaintiff pled a single cause of action for malicious prosecution.


  • Defendant’s Contentions:That they were justified in their actions; that there was no malice.

Demands and Offers

  • Plaintiff Final Demand before Trial: Various confidential offers until June 2013.
  • Defendant Final Offer before Trial: Various confidential offers until June 2013.

Additional Notes

Defendant Jacobs had personal injury coverage through his Farmers Insurance homeowner’s policy.

February 7, 2014 Posted Under: Uncategorized   Read More

Gov. Christie gets federal grand jury subpoena

Criminal defense attorneys Mark Reichel and Steve Plesser are interested in this developng story. It is not always the suspicious cat thta gets youy in trouble, it’s usually the cover up.  Let’s see if a cover up is now underway.

Christie cooperating with prosecutor’s subpoena

Associated PressBy ANGELA DELLI SANTI and GEOFF MULVIHILL | Associated Press – 18 hrs ago

  • Play Video
  • Christie Booed at Super Bowl Ceremony0:38
  • New Jersey Gov. Chris Christie speaks during a ceremony to pass official hosting duties of next year's Super Bowl to representatives from Arizona, Saturday Feb. 1, 2014 in New York. Fellow Republicans are assessing the damage of new allegations that Gov. Christie knew about a traffic-blocking operation orchestrated by top aides. (AP Photo/Bebeto Matthews)View PhotoNew Jersey Gov. Chris Christie …

TRENTON, N.J. (AP) — Gov. Chris Christie on Monday said that his office is cooperating with a subpoena from federal authorities investigating whether any laws were broken when lanes near a New Jersey bridge were apparently closed for political retribution.

The Republican governor also said in a radio interview as he took questions for the first time in more than three weeks that he may have heard about the traffic tie-ups in Fort Lee when they were going on last September, but that it didn’t register with him as a major issue if he did.

He said that a news report several days after the lanes were reopened got his attention and that he asked staffers to look into it. The report indicated that the head of the Port Authority of New York and New Jersey did not authorize the closings.

“Nobody has said I knew about this before it happened, and I think that’s the most important question,” Christie said in the appearance on his “Ask the Governor” radio show on Townsquare Media Monday night.

It was the first time Christie took questions since a nearly two-hour news conference Jan. 9, the day after emails were made public showing that at least one of his top aides had a role in a traffic-blocking scheme near the George Washington Bridge. Since then, he has made public appearances but not opened himself to questions, except to schoolchildren in Camden.

Meanwhile Monday, Christie’s campaign sought to exceed New Jersey’s election spending cap to pay for lawyers dealing with subpoenas stemming from a political payback scandal.

A special legislative investigative committee said Monday it had begun receiving documents it requested in response to 20 subpoenas it issued last month. It’s trying to unravel how high up Christie’s chain of command a lane closing order went in September and whether the operation was meant to punish a Democratic adversary.

In a request to the state Election Law Enforcement Commission, Christie’s campaign organization asked for permission to raise more money and to spend it on lawyers handling subpoenas issued by both legislative investigators and the U.S. attorney’s office.

The campaign has already spent all but $13,000 of the more than the $12.2 million limit for Christie’s re-election. Without more money, the campaign said it would not be able to answer the subpoenas.

Neither subpoena suggests the campaign “has engaged in wrongdoing,” the campaign’s lawyers said in their request.

A hearing before the election commission was set for Feb. 11.

Subpoenaed information was due to lawmakers Monday and federal prosecutors on Wednesday, but the campaign said it has requested extensions.

Assemblyman John Wisniewski, the co-chairman of the joint legislative panel leading the investigation, told The Associated Press that some deadline extensions were granted. The requests of others who were asked to produce documents on a rolling basis were also being considered.

He and the other leader of the inquiry, state Sen. Loretta Weinberg, both Democrats, said that none of the responsive documents would be made public Monday.

Ahead of Christie’s “Ask the Governor” appearance, his administration released its plan for using a coming installment of federal relief money for Superstorm Sandy — at least giving him something else to talk about.

Christie will get the opportunity to address conservative activists next month at the 2014 Conservative Political Action Conference near Washington, D.C. Officials with the American Conservative Union, which organizes the annual event, confirmed that the governor had accepted an invitation to speak at CPAC in March.

The conference will include speeches from several Republicans weighing presidential campaigns in 2016, including Wisconsin Rep. Paul Ryan, Florida Sen. Marco Rubio and Kentucky Sen. Rand Paul. Christie was not invited to speak last year.



February 4, 2014 Posted Under: Uncategorized   Read More

Ninth Circuit holds that a “nolo” or “Alford” plea in state court is not enough to equal per se federal supervision violation

Good news for Sacramento state and federal criminal defense attorneys Mark Reichel and Steve Plesser:  The Ninth Circuit held that nolo or Alford pleas in state court are not sufficient evidence by themselves to result in a federal supervision violation.


In 2009, defendant pleaded guilty to receiving a stolen motorcycle in violation of 18 U.S.C. 2313. While on supervised release, defendant pleaded guilty to an assault charge in violation of Washington state law. Because of his plea, defendant was charged with violating the mandatory condition of federal supervised release. Defendant argued that his Alford plea was not probative evidence of the commission of a crime and instead proved only his conviction, which was not itself a violation of any condition of his supervised release. The court concluded that an Alford plea was insufficient evidence to prove commission of a state crime for purposes of a federal supervised release violation when the state itself did not treat it as sufficiently probative of the fact that the defendant actually committed the acts constituting the crime or crimes of conviction. Accordingly, the court reversed and vacated the district court’s order revoking supervised release and remanded for further proceedings. View Case
View Case On: Justia  Google Scholar
February 4, 2014 Posted Under: Federal Criminal Cases   Read More

Kelly Babineau in the news today for hard fighting and great result for a criminal defense client.

Sacramento criminal defense attorneys Mark Reichel and Steve Plesser are always happy when one of their contemporaries does great work.  Makes the system better for all of us. Here’s today’s big story in the Bee about this great lawyer.  For the story, click  KELLY BABINEAU

Here is the text:

Woman who killed boyfriend changes story, claims battered woman’s defense

Published: Friday, Jan. 31, 2014 – 10:58 pm
Last Modified: Saturday, Feb. 1, 2014 – 8:05 am

The day she was sentenced for her plea deal on second-degree murder, Kathryn Spiak first wanted to tell Jeremy Jones’ family how sorry she was “from the bottom of my heart” for fatally stabbing him twice in the chest.

“I can’t begin to find the words to say I’m sorry,” Spiak said, for the fatal knifing of her 32-year-old boyfriend after a fight in their Rancho Cordova apartment.

“I feel miserable and sick about taking Jeremy’s life from him … I’m going to live with that for the rest of my life, and every day I tell Jeremy how sorry and sad I feel for doing this to him. I hope one day you’ll forgive me,” Spiak said.

Serving a prison term of 16 years-to-life, Spiak says she now more clearly recalls what happened on the night of Dec. 8, 2010, on La Loma Drive when she killed Jones, an Army veteran she met in phlebotomy school.

Spiak, 43, now claims she was a victim of battered-woman syndrome and has filed a writ ofhabeas corpus to get herself out of the Central California Women’s Facility in Chowchilla.

She had been scheduled to testify Friday in Sacramento Superior Court, in an ongoing hearing in front of Judge Raoul M. Thorbourne, but an unexpected delay put her testimony off until Thursday.

When Spiak takes the stand, she probably won’t stray too far from the sworn declaration she gave in her writ.

“Jeremy and I decided to buy some beer, get drunk and have a nice evening,” Spiak said in the declaration filed July 23. “I started making dinner for us when Jeremy suddenly became very angry and started cussing me out, slapping me, punching me and pushing me around.”

She said she locked herself in the bathroom but that Jones broke in and “dragged me out by my hair, ripping off my clothes.” She said he tried to throw her out of their apartment.

Things calmed down a bit, and Spiak said she grabbed a beer. Then Jones knocked it out of her hand, she said, the fight resumed and Spiak said she grabbed a knife “and warned him to leave me alone.”

“He kept coming at me, and I stabbed him,” she said.

Spiak’s sworn recitation said she first retrieved the knife because: “I thought I could scare him into leaving me alone, so I grabbed a knife.”

She said before she stabbed Jones, she first stabbed the bed. She detailed the bed-stabbing more fully in an interview she gave to sheriff’s detectives right after the killing.

After the initial fracas, Spiak told investigators Jones went into the bathroom. When he did, she said she retrieved two knives “and went over to the hide-a-bed where we sleep and stabbed the bed a few times just to get some aggression out and see what it felt like.”

Jones came out of the bathroom to lie down naked on the bed, Spiak said. She told detectives Jones then “started challenging me. He told me to leave immediately and basically he was going to (beat me).”

“I told him I wasn’t leaving and he needed to leave, and he said, ‘Well, just go ahead and kill me,’ ” Spiak said in the interview.

“He kept daring me to kill him. I grabbed the knife and I looked at him and I said to him, ‘I don’t know if this is going to do the trick.’ I didn’t know the knife would actually go in. When it did, I was in total shock,” Spiak said.

She told detectives Jones became physical once before, about five months prior to the killing. But in her declaration, she said he began slapping her around starting almost from the time they met in April 2008 at National Career Education, where they took phlebotomy classes together.

The habeas writ, filed by Sacramento attorney Kelly Babineau, lists two previous convictions in Jones’ criminal record, including one for misdemeanor assault in a domestic case.

The writ lists ineffective assistance of counsel as the primary basis for the petition. It argues that Richard Corbin, the lawyer who represented Spiak when she entered her no-contest plea in April 2011, did not fully explore a battered-woman’s defense.

Corbin could not be reached for comment Friday.

Deputy District Attorney Carlton Davis, in his court papers, defended Corbin’s call. The prosecutor said Corbin thoroughly investigated the case, had a psychologist speak with Spiak about her mental state and that he “considered all defenses” before she agreed to the plea. The deal cut 10 years from her exposure on a first-degree murder case.

Linda Bernard, a marriage and family therapist and expert on domestic violence, testified Jan. 10 that Spiak’s case met the criteria for battered-woman syndrome. In his court papers, the prosecutor said Bernard’s finding “relies on the petitioner’s self-serving statement” to the therapist “that completely contradicts the statement she gave to law enforcement when the incident occurred.”

Read more here:


February 4, 2014 Posted Under: Federal Criminal Cases   Read More