United States v. Martin Alcantara-Castillo

“The government crossed the fine line separating the vigorous pursuit of justice from the overzealous pursuit of victory.United States v. Martin Alcantara-Castillo, US Court of Appeals for the Ninth Circuit, No.12-50477 page 24, filed June 11, 2015. 


 

On June 26th, 2011, Border Patrol Agent Aaron Hunter responded to a report that a motion sensor had been activated at the US-Mexico border. Hunter responded to the area and found defendant, Alcantara, lying on the ground. Alcantara admitted that he was a “citizen of Mexico and that he did not have any documents allowing him to be in the United States.”

There are two sets of stories that follow. Agent Hunter stated that the defendant told Hunter that he crossed the border with a group that was chased by Border Patrol. Hunter, did not personally search the defendant, but knows that water and food containers were found on the defendant. The agent failed to mentioned any of these facts in any of his reports. Further, he did not mention any of the defendant’s statement and admissions to anyone until he met the prosecutor seven month after the arrest. There was also no contemporaneous record or physical evidence of the bag’s alleged contents”

The defendant told a different story. He acknowledged that he told the agent that he was from Mexico, but did not remember saying anything else to him except to ask for water. Two witnesses testified that Alcantara was a severely methamphetamine dependent. He stated that he was high on meth at the time he was arrested and does not remember crossing the border. 

The prosecutor argued that this case is about “[c]redibility. This is largely going to come down to the issue of credibility.” “One of those two witnesses is not telling the truth.”

A prosecutor must not ask defendants during the cross-examination to comment on the truthfulness of the witness. This rule is “black letter law,” and it ensures the determination of credibility remain within the sole province of the jury. Nor may the prosecution “vouch” for a witness by offering personal opinion of a witness’s testimony, or suggest that information exists outside the record that verifies the witness’s truthfulness. 

In this case, an error occurred when the prosecutor implicitly and then explicitly asked the defendant to comment on the agent’s veracity during cross-examination. The prosecutor asked the defendant if the agent is inventing stories about the defendant. The panel also held that, as the government conceded, the government improperly vouched for the agent’s credibility by referring during its rebuttal argument to facts not before the jury – that Border Patrol agents are “sworn to uphold the law” – in a credibility showdown between the Border Patrol agent and the defendant.

Case reversed and remanded.

*Disclaimer. This is a summary of the case with citations omitted. Please click  United States v. Martin Alcantara-Castillo to read the full text of the opinion.

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Case summary: Attempted Murder charge PC664/PC187(a) plus special allegations PC1192.7(c)(23), PC1192.7(c)(8), PC12022.7(e) | Felony Charge | Prison Sentence Range: Minimum 5 years and Maximum 14 years in California State PRISON

Results: 365 days sentence in local JAIL.

Attorney: Anton Vialtsin, Esq.  

Disclaimer: The client names have been removed for privacy reasons. Prior results do not guarantee a similar outcome with any future legal matter.

DO THE POLICE HAVE A DUTY TO INVESTIGATE A MEDICAL MARIJUANA DEFENSE?

Harvesting MarijuanaThe police obtained a search warrant based on information showing that the defendant possessed and cultivated marijuana. The defense argued that the search warrant was invalid. The warrant did not establish probable cause to search the defendant’s residence because, although it showed that the defendant possessed and was cultivating marijuana, it did not address whether the marijuana was possessed or cultivated for medical purposes.

According to defendant, to justify the search warrant, Deputy Gaisford was required to include facts in his affidavit showing that defendant’s conduct in cultivating marijuana was not in conformance with the Compassionate Use Act and the Medical Marijuana Program Act. (p.7). Essentially the argument is that police failed to investigate and determine whether the defendant had a medical marijuana defense.

The California Court of appeals holds that police have no duty to investigate whether the defendant has the marijuana legally.

People v. Clark; B253036; 10/9/14; C/A 2nd, Div. 5 

http://www.courts.ca.gov/opinions/documents/B253036.PDF

Diversity on the Supreme Court

OB-EE842_sonias_G_20090805175051Justice Sotomayor, the first Hispanic justice, also talked about diversity on the high court bench, saying there was still room for improvement in areas beyond race, ethnicity and gender.

“We don’t have one criminal defense lawyer on our court,” she said, saying the high court also lacked justices with big law experience or who come from solo practices. “There’s something not good about that.”

See full article: http://blogs.wsj.com/law/2014/09/12/justice-sotomayor-americans-should-be-alarmed-by-spread-of-drones/

WHEN IS A PERSON DETAINED?

police curb photoA person is detained when “a reasonable person would have believed he or she was not free to ignore the police presence and go about his business.”  The California Court of Appeals says that there was no detention when the officer approached the minor and asked to speak to him, or when the officer asked the minor for his ID, name, and birthdate.

But the Court of Appeals rules that there was a detention when the officer asked the minor to sit on the curb.  By then the officer had conveyed to the minor that he suspected him of illegal activity, 4 officers in 3 patrol cars had arrived, the officer asked the minor if he had anything illegal on him, conducted a records check, and conducted a consensual search of his person, including his pockets.  Even though the officer characterized it as “asking” the minor to sit on the curb, no reasonable person under all these circumstances would have felt free to leave.


In re J.G.; 2014 DJ DAR 9791; DJ, 7/28/14; A139869; C/A 1st, Div. 4 (summarized by  by Al Menaster, LA County Public Defender’s Office)

What to do when pulled over? Remain silent and do not consent.

PoliceStickerWe often tell our clients that you do NOT have to answer Police Officer’s questions, perform breath test, or perform the field sobriety tests! People often say, “but if I do not comply, won’t I get arrested?”

Police officer needs to have probable cause to believe that you violated the law in order to arrest you. Remember, silence is NOT an admission of guilt!

Do you know why I pulled you over? If you say YES and give your reasoning, then police just made you admit guilt to something that he/she might not have even considered when pulling you over. It’s much safer to say: “NO, please tell me.” OR “I wish not to answer any questions at this time.” 

Have you been drinking tonight? If you answer “NO” (when if fact you did), then you are lying. The prosecutor will later use that statement to show that you are not a truthful person. If you say “YES, but only 2 beers.” Well, you admitted to drinking and driving regardless of the amount. Under California law, you can be convicted of DUI regardless of the alcohol amount. DUI under VC23152(B) requires BAC above .08, but DUI under VC23152 does NOT. So, if asked have you been drinking. Answer: “I do not wish to answer any questions.” 

If you do not perform the roadside test, you are not breaking any law. You also do not have to consent to the search of you car. DO NOT consent to the search of you car! Why would you want to have someone go though your personal belongings?  The officer may let you go or arrest you relying on limited and weak evidence. The less you say or do, the less evidence there is that you broke a law. BUT if you choose to perform the tests, then you are just building the criminal case against yourself by providing more evidence. 

Please stay safe on the road. If you need a criminal defense attorney, call 619-357-6677.

logoDelicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP.   Google+

New charges are double jeopardy, claims man acquitted of killing deputy

6“Little did Mr. Roman or any of the jurors know that the proceedings during which the rest of Roman’s life was at stake would be more properly characterized as a trial run than a jury trial,” Jeremy Delicino wrote in a motion to dismiss the case.

Read more at http://www.ksl.com/?nid=148&sid=29707139#E04j7CjslUpiSLLg.99

 

 

Delicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP.  Google+ 

Federal Clemency - More Drug Offenders Will Be Eligible For Relief

If you have a loved one serving time in federal prison for a non-violent crime, he/she will be able to apply for clemency under new rules that will be announced later this week by the Justice Department. The new criteria will focus on people serving significantly inflated terms considering the current sentencing laws and policies. We urge you to contact our law office to discuss possible relief for you or your family member, who is currently incarcerated. The current administration has a goal of ensuring that there are enough resources to review an increased amount of federal clemency applications from qualified inmates. 

Eric-Holder5Several days ago (April 21, 2014), Attorney General Holder announced 

“Later this week, the deputy attorney general will announce new criteria that the department will consider when recommending applications for the President’s review. This new and improved approach will make the criteria for clemency recommendation more expansive. This will allow the Department of Justice and the president to consider requests from a larger field of eligible individuals. Once these reforms go into effect, we expect to receive thousands of additional applications for clemency. And we at the Department of Justice will meet this need by assigning potentially dozens of lawyers – with backgrounds in both prosecution and defense – to review applications and provide the rigorous scrutiny that all clemency applications require.”

Attorneys at Delicino & Vialtsin, LLP have significant experience handling federal cases. We will provide high quality representation to those who qualify for federal clemency relief by preparing the most effective petition in light of new criteria anticipated to be set by the Justice Department. It is a rare opportunity in US history that we will be able to remedy the harsh and unfair sentencing practices.

Please call our office at 619-357-6677 to discuss possible relief under the new federal clemency law.   

Prado Navarette v. California

The Fourth Amendment protects persons from unreasonable searches and seizures. It has been interpreted by the Supreme Court that police needs to have a reasonable suspicion that a law has been violated in order to pull over a vehicle. The reasonable suspicion is based on totality of circumstances, and depends “upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 US 325, 330.

The usual cases that we see involve police observing a vehicle in violation of some traffic law, but this case is a little different. Here, police received a 911 call reporting a vehicle “as having run her of the road”. The question becomes whether the 911 call alone is enough to pull over a vehicle. Although, “the anonymous tip alone seldom demonstrates sufficient reliability”, White at 329,  apparently in this case the Supreme Court says it is sufficient to pull a person over. 

MJinthecarA California Highway Patrol stopped a pick up truck after receiving a 911 call that the driver ran the caller off the road. Interestingly enough, police followed the vehicle for five minutes (enough to evaluate the driver’s driving pattern) and did not see any traffic violations. The Supreme Court says that officer’s failure to observe additional suspicious conduct after following the vehicle does not dispel the reasonable suspicion of drunk driving. As the officers approached the pulled over vehicle, they smelled marijuana. (Can police search my vehicle based on smell of marijuana?). The subsequent search of the vehicle revealed 30 pounds of marijuana. If the initial stop of the vehicle would have been deemed illegal, then the drugs seized should have been suppressed from the evidence. (Read more on when can police stop and search your vehicle here).

The Supreme Court, in a 5-4 decision, ruled that the officer did not violate the driver’s Fourth Amendment rights by pulling his vehicle over because it matched the 911 caller’s description of a vehicle that recently ran her off the road. Under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated, even without any further evidence. The caller’s description is reliable enough simply because she was able to identify the make of the car and it’s location. 


 

THE DISSENT (written by Justice Scalia):

“Not only, it turns out, did the police have no good reason at first to believe that Lorenzo was driving drunk, they had very good reason at last to know that he was not. The Court concludes that the tip, plus confirmation of the truck’s location, produced reasonable suspicion that the truck not only had been but still was barreling dangerously and drunkenly down Highway 1. In fact, alas, it was not, and the officers knew it. They followed the truck for five minutes, presumably to see if it was being operated recklessly. And that was good police work. While the anonymous tip was not enough to sup­port a stop for drunken driving under Terry v. Ohio, 392 U. S. 1 (1968), it was surely enough to counsel observation of the truck to see if it was driven by a drunken driver. But the pesky little detail left out of the Court’s reason- able-suspicion equation is that, for the five minutes that the truck was being followed (five minutes is a long time), Lorenzo’s driving was irreproachable.”

“The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) thatanonymous 911 reports of traffic violations are reliable so long asthey correctly identify a car and its location, and (2) that a single instance of careless or reckless drivingnecessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of hav­ing our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.” 

Cite as: 572 U. S. ____ (2014) 11
Prado Navarette v. California. You can read a full opinion here. 

Related Pages:

After today’s opinion all of us on the road, and not just drug dealers, are at risk of hav­ing our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. ~ SCALIA dissent

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(619) 357-6677

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logoDelicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP.  Google+ 

United States v. Harrington

LAWSTACHE.com

It was fundamentally unfair, and a violation of due process, to convict defendant of refusal to submit to a blood alcohol test-—which under federal law is a crime even when defendant is not convicted of a drunk driving offense. Park rangers three times told him that his refusal to submit to a blood alcohol test was not in itself a crime, even though it was.
United States v. Harrington – filed April 18, 2014

Read more here

Legal Rights Info-Graphic

 Great info-graphic about your legal rights.

know-your-rights

logoDelicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP.  

LAWSTACHE.COM - Mobile Website Re-Launch

Preview2Over the last several months, we have experienced an increase in traffic on LAWSTACHE.COM mobile website. We are happy to announce the launch of our new and improved mobile website. You can access it on any mobile device with internet capabilities. Sorry, brick phone users. 

If you don’t have your phone handy, you may preview our mobile site HERE. You will be able to select the type of device you want to preview it on: iPhone, Android, Windows Phone, and even Blackberry.

Happy Halloween! 

Happy Labor Day!

LaborDayHappy Labor Day weekend everyone! Stay safe. Don’t drink and drive.

Many of you know that attorney Anton Vialtsin assists his Russian-speaking clients in their mother tongue, and Jeremy Delicino is fluent in Spanish and Italian. We have been developing our website to be user friendly for our Russian clients. The site now includes 4 new webpages in Russian language explaining the process of obtaining visitor and family visas and asylum in United States. And even more Russian pages about immigration law are coming soon.

We have not forgotten about our English and Spanish speaking clients either. All of these pages will soon be available in Spanish. We will also resume answering criminal and immigration questions on our blog this week.

Delicino & Vialtsin, LLP

Overcriminalization: Criminalizing the Everyday

The following video has been produced by the National Association of Criminal Defense Lawyers. A professional bar association founded in 1958, NACDL’s approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys — include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America’s criminal justice system.

The video provides an overview of what overcriminalization means. I have mentioned in the last post that only 3-5% of criminal cases go to trial. The system simply cannot handle more cases because there are limited amount of resources and a finite number of jail cells.

VIDEO LINK: CLICK HERE

logoDelicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP.  

NORML - National Organization for the Reform of Marijuana Laws

NORMLMarijuana is the third most popular recreational drug in America (behind only alcohol and tobacco), and has been used by nearly 100 million Americans. According to government surveys, some 25 million Americans have smoked marijuana in the past year, and more than 14 million do so regularly despite harsh laws against its use. [NORML.org]. Over 20 million Americans have been arrested for marijuana offenses since 1965.

NORML believes that the time has come to amend criminal prohibition and replace it with a system of legalization, taxation, regulation, and education. NORML is a great organization which partnered with hundreds of attorneys, doctors, and lobbyists to represent the interest of American marijuana smokers. Attorneys at Delicino & Vialtsin, LLP are a proud members of NORML. We have helped many accused in state and federal courts on marijuana related charges. If you would like to visit our profiles please click on the links below.  We also encourage you to visit NORML for useful information about marijuana laws.