RICO Blog

From the RICO Blog

RICO or the Racketeer Influenced and Corrupt Organizations Act, the federal law that allows the prosecution of criminal acts performed by individuals as part of a mob or criminal organization, is used to fight against organized crime and its adverse effects on legitimate business activities. The law states that “It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering", a statement that is easily misinterpreted by those not familiar with the intricacies of the law.

The reason for this confusion arises because, according to the rules of RICO, any individual who has been proven to belong to a criminal organization is liable for prosecution just by association. This means that if any member of said organization has been found guilty of a serious offense like murder, kidnapping, gambling, arson, robbery or bribery, other persons who are known to belong to the same organization can be prosecuted for a pattern of crimes (two or more of 8 state crimes and 16 federal crimes) that have been found to be the organization’s handiwork, even if they are not directly or indirectly responsible for the crime that the defendant has been found guilty of.

Must Haves

Think of the possibilities in investigations (and everywhere else). The I-Pad.

East Side Represents with Video 2

San Francisco PD gives History of Public Defender

While We are on the Topic of Wiretapping...

The Department of Justice released a report this week about the FBI’s Communications Analysis Unit (CAU)which found "shocking" violations, including embedded telecom employees providing customer phone records in response to post-it notes.

Post it notes?

Judge Tosses NSA Spy Case-

The Electronic Frontier Foundation intends on appealing a ruling issued earlier this week in San Francisco by U.S. District Judge Vaughn Walker. The Judge dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency's mass surveillance of millions of ordinary Americans' phone calls and emails. The lawsuits accuse the government of teaming with the nation’s telcom companies to funnel Americans’ electronic communications to the National Security Agency without warrants.

U.S. District Judge Vaughn Walker’s decision was a major blow to the two suits testing warrantless eavesdropping and executive branch powers implemented following the 2001 terror attacks. The San Francisco judge said the courts are not available to the public to mount that challenge.

“A citizen may not gain standing by claiming a right to have the government follow the law,” (.pdf) Walker ruled late Thursday.

Read More here

FOIA Request Added

A permalink has been added under our subpoena sidebar to the Department of Justice Freedom of Information Act (FOIA) request page. The DOJ FOIA site has a list of principal FOIA contacts for federal agencies. For example, there are FOIA contacts for the Department of Veteran's Affairs, the Department of Homeland Security, and the Department of Justice's Handbook.

How to Get a Coworker to Respect Your Personal Space

(1) Keep in mind that some people find touching to be a valid form of expression, a means of connection. It is probably how they talk to their friends and family. If it's not inappropriate (a tap on the shoulder, a pat on the back) and if it's not bothering you, you may choose to do nothing.

(2) Back away. Scoot over, back up, or stand aside. Body language may or may not work, but if the coworker takes the hint it's a quick, easy way to communicate your displeasure.

(3) Ask the person who is touching you to stop. Explain that you are uncomfortable with being touched. You shouldn't make a scene at your workplace, but do be clear and firm. It may take a while for them to break the habit. Continue to remind them if they continue to do it. To say "No" is absolutely acceptable and appropriate.

(4) Document the 'no touching' conversation and any following touching. After several incidents, bring it up to your manager or speak to the Area Program Manager. Bring your documentation, and let them deal with the person.

Yahoo! Subpoena Compliance

Yahoo! Legal Department
701 First Avenue
Sunnyvale, CA 94089
Compliance Phone: 408-349-3687
Compliance Fax: 408-349-7941

DOUG MACGOWAN - Legal Assistant II
(408) 349-5163

Foreign Bribery Investigation Leads to Indictments

From The Blog of Legal Times: (full article here)

Nearly two dozen corporate executives and employees were arrested Monday in Las Vegas and in Miami in the first large-scale foreign bribery investigation using undercover federal agents, the Justice Department announced today.

Sixteen indictments were unsealed today in the U.S. District Court for the District of Columbia charging executives and employees in the military and law enforcement equipment industry with violations of the Foreign Corrupt Practices Act. Twenty-one people were arrested Monday at a convention in Las Vegas. The indictments were returned in federal court in Washington in December.

FBI Catch the Call? Subpoena the Records

FBI broke law for years in phone record searches...(The Washington Post reports full article here.)

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.
The FBI's general counsel says Director Robert S. Mueller III did not learn about the unlawful collection of phone records until 2006, when they ended.

Additional documents here.

Boston Police Fight Cellphone Recording

Witnesses who thought that a police arrest was getting out of hand started to audio tape the incident on their cellphones and are now charged with illegal surveillance.

Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager’s mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.
Within minutes, Glik said, he was in handcuffs.
“One of the officers asked me whether my phone had audio recording capabilities,’’ Glik, 33, said recently of the incident, which took place in October 2007. Glik acknowledged that it did, and then, he said, “my phone was seized, and I was arrested.’’
The charge? Illegal electronic surveillance.

full article here

Unsolved Homicide: Nancy Bergeson

Our sympathies are extended to the friends and family of Ms. Bergeson.

Justice Department Orders New Crackdown on Tribal Crime

From ABC News:

(AP) - The Justice Department is ordering prosecutors in 33 states to step up efforts to combat crime on Indian reservations, particularly offenses against women and children.

Attorney General Eric Holder was announcing the effort after his deputy, David Ogden, sent a memo instructing those federal prosecutors to do more to fight tribal crime.

The memo says 47 new prosecutors and FBI personnel will be assigned to this work.

On tribal lands, federal officials are usually responsible for prosecuting serious crimes. While the nationwide crime rate is falling, statistics show American Indians are victims of violent crime at more than twice the national rate — and some tribes have murder rates against women ten times greater than the national average.

Full article here.

Prosecutor Turns On Crusading Journalism School

From NPR:

Northwestern University professor David Protess has made life hard for Illinois prosecutors for decades, as he's routinely and often successfully challenged the evidence for their convictions of murder defendants.

Protess' Medill Innocence Project has been credited with helping to exonerate and free 11 men unjustly convicted of murder.

Now, the chief prosecutor for the Chicago region is turning the tables. She is demanding unusual evidence of her own from the professor and his students: their grades, e-mails, notes and course evaluations from a project in which they're championing the cause of yet another murder convict.

Cook County State's Attorney Anita Alvarez says her office has evidence his students' research is skewed. On Monday, a hearing is scheduled in which lawyers for Protess and Northwestern will submit arguments for why they shouldn't have to comply.

Protess' Take

"Legally, what I take from it is that the prosecutors are on a fishing expedition," Protess says while eating in one of his favorite restaurants in the Chicago suburb of Oak Park. "Practically, I think they have an interest in paying back for years of embarrassment — and paying forward to deter us."

Protess, now 63, got his start in the legendary world of Chicago journalism with undercover exposés of corruption. One of them was the legendary and controversial Mirage Bar story, in which he helped the Chicago Sun-Times buy and run a bar in North Chicago and recorded city building inspectors demanding bribes.

Since the early 1980s, however, Protess has also been training students at Northwestern's Medill School of Journalism by having them re-report murder convictions where claims of innocence seem plausible.

"They bring a fresh perspective to an old case — they bring an energy and zeal — and they're disarming interviewers," Protess says. "When they knock on someone's door — [people] don't see someone like me standing there, they see some young idealistic college kids who want to find the truth. And often, that's the first step toward getting it."

Freeing The Wrongly Convicted

Take the Ford Heights Four. Four black youths from the housing projects were arrested and convicted of abduction, rape and murder in the killing of a young white couple on Chicago's South Side in 1978.

Over several months in the mid-1990s, students turned up evidence that police had intimidated a key witness and prosecutors had buried another eyewitness account that implicated four other men.

A disclosure: one of those Northwestern students is now my colleague, NPR correspondent Laura Sullivan.

Protess' students even got a confession from one of the people involved in the killing. Among those freed was Kenneth Adams — who had served 18 years in prison. He shared in a $36 million settlement for wrongful imprisonment.

Adams now lives in an affluent development south of Chicago. Even now, 14 years later, Adams says he often gets up at night to stare at the stars or wander around to make sure he is not constrained by a prison cell the size of a small bathroom.

Five times Adams was offered the chance to walk free as long as he testified against his equally innocent co-defendants, and five times he refused. It is not an ordeal Adams enjoys reliving — but he does it, he says, in order to defend the professor.

"Without them stepping in and doing what they did, what chance would we have had?" Adams said as he sat in his spacious living room. His wife, Norma, stood nearby. "How much evidence would not have been uncovered? How many witnesses would not have been questioned and you get the truth about it?"

Protess' students' actions, Adams said, also put pressure on the state of Illinois to allow for DNA testing.

Full article here.

Immigration Defense Guide

Armed with the immigration basics, defense counsel can formulate the right questions and obtain needed information from his or her client. By developing an understanding of the methodology used to assess specific criminal charges in relation to individual immigration violations, a defender may be able to devise alternate pleas and sentences that can resolve certain criminal charges without immigration consequences. An informed defender also will know when to contact and seek assistance from an immigration

Material can be found here.

Watching The Border

Washington State moves closer to Decriminalization of Marijuana to Save $

With Washington State facing the budget crisis, one proposal is an interesting money saving device: decriminalizing 40 grams or less of marijuana. Here is the news of the week in Olympia:



Washington State Update. : [UPDATE!!! Members of the House Committee on Public Safety and Emergency Preparedness will hear testimony in favor of both marijuana legalization and decriminalization bills on Wednesday, January 13, at 1:30pm. Please see NORML's 'Current Action Alerts page here for more info.] Legislators have pre-filed House Bill 2401, which seeks to “remove all existing civil and criminal penalties for adults 21 years of age or older who cultivate, possess, transport, sell, or use marijuana.” You can read the full text of the proposal here.

The Washington State Bar Association, the body of 33,000 attorneys licensed in the state, endorsed a bill in the upcoming legislative session that would reduce the penalty for marijuana possession—currently up to a $1,000 fine and 90 days in jail—to a $100 infraction. The WSBA's board of governors passed the resolution Saturday morning with nine in favor, two abstaining, and none opposed. Full article here

The ACLU of Washington has more information here.

Big Case on Voting Disenfranchisement with Criminal Convictions

From Ninth Circuit Blog:

Tuesday, January 05, 2010
Farrakhan v. Gregoire, No. 06-35669 (1-5-10). This is a big civil rights/disenfranchisement case. Originally filed in 1996, plaintiffs contended that due to racial discrimination in the State of Washington's criminal justice system, the automatic disenfranchisement of felons resulted in the denial of the right to vote on account of race. This violated Sec. 2 of the Voting Rights Act. The 9th (Tashima joined by Reinhardt) reversed the district court’s denial of summary judgment for plaintiffs in a 1983 action brought by minority citizens of Washington state who had lost their right to vote pursuant to the state’s felon disenfranchisement provision. In a prior appeal, Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), cert denied, 543 U.S. 984 (2004) ("Farrakhan I"), this court reversed the district court’s summary judgment and held that vote denial claims challenging felon disenfranchisement laws were cognizable under § 2 of the VRA.

The 9th first found that Farrakhan I remained binding precedent despite contrary decisions from the 1st, 2nd, and 11th circuits. The 9th recognized the circuit split with its decision in Farrakhan I, but did not recognized Farrakhan I as clearly erroneous or that it needed to be reconsidered. The 9th found that the plaintiffs had standing, and that the plaintiffs had demonstrated that the discriminatory impact of Washington’s felon disenfranchisement was attributable to racial discrimination in Washington’s criminal justice system. The panel thus held that Washington’s felon disenfranchisement law violated § 2 of the VRA. The 9th remanded with instructions to grant summary judgment to plaintiffs given the evidence already before the court. Dissenting, Judge McKeown argued that the majority erred in granting summary judgment for the plaintiffs and that the proper approach would have been to remand the case to the district court for consideration of the plaintiffs’ motion for summary judgment. On remand, the court would weigh the evidence as to racial discrimination, and to assess other factors to determine if the VRA had been violated.

Given the state constitutional issues, the statutory VRA issues, and a circuit split, plus the shadow of McCleskey, this could well be headed to the Supremes, if there is not an en banc first.

Fourth Amendment Car Primer

This is so good, it's crim procedure 101. From Flexyourrights.org.

Fourth Amendment Videos

Favorite line: "Whoops, how did the officer find that?"

Norm Pattis: Another Year In The Trenches

Norm Pattis: Another Year In The Trenches "Whatever you do will be insignificant but it is most important that you do it." --Gandhi

An excerpt from Norman Pattis, "Another Year in the Trenches" that captures the sorrow and strength this job takes sometimes. It is a powerful meditation on why we work in this calling of criminal defense and it a good read over new year's weekend when we all seem to feel that need to sum things up, reflect, and recharge for another year.

It all seemed simple a couple decades ago. The adversary system tested the truth. The state brought charges. Trial ensued. A jury decided not so much guilt or innocence as whether the proof was sufficient to convict. On the civil side, parties claiming injury could seek recompense. More strangers deciding destiny. And at the center of it all, a contemporary Odysseus, a wily lawyer of many strategies. Over the years, I thought, I will become stronger, wiser, better able to master the fates contesting in the well of the court.

I did not count on becoming a friend of sorrow. Or fatigue. Or seeing clients put guns to their heads to avoid the consequences of a judge's scorn. Or mothers kneeling at my feet holding my hands weeping in a crowded hallway and begging me to do something for their son. Or responding to emails telling me how hard it was to keep from swallowing a jar of pills to make the night go away. I never thought I'd see so much suffering. I thought I would be able to prevent it from happening or make it stop. I thought I would be a hero.

But no one is a hero to a client spending his life behind bars.

For many years, Satan in Milton's Paradise Lost was hero enough for me. "Better to reign in hell then serve in Heaven," he told his dispirited ranks as they descended to Hell. The proud defiance energized me. Yes, I thought, far better to be in Hell -- with all my friends. But I didn't realize that Hell was a real place, a place filled with broken people who pay their fees for counsel in lumps of sulphur.

Law students are taught about clients who bargain in the law's shadow. Reasonable people populate the textbooks on torts. The penal code strives to hold people accountable for the consequences of intentional acts that cause harm. But as the years go by these perspectives on the conflicts filling the courts ring hollow. These lucid fictions collapse against the ever present weight of the irrational. Law is not the rule of reason in human affairs; law is fear's fiction slapped against the gaping wounds of those incurably injured.

As the year ends, I find myself combing through the Diagnostic and Statistical Manual of Mental Disorders looking for context. All these broken people. How do they fit together? What do they expect of me? A stray line from Harold Lasswell's Psychopathology and Politics yields perspective: "The pathological mind, if one may indulge in a lame analogy, is like an automobile with its control lever stuck in one gear: the normal mind can shift."

And I realize at once that all these rumbling gears are active in me as well. Mine still shift, or so it seems. But as I read through the DSM-IV-TR, I know that nothing human is really foreign to me, or to any lawyer. And hence the sorrow.

The Revolution Starts Now

Check out the new Public Defender Revolution. The blog will cover public defender reform and all the ways we can empower ourselves to fight the man in 2010. Yep we can!

Mug Shots of the Decade

Mug shots are often something we take for granted in the criminal defense system. Here, courtesy of The Smoking Gun are the best mug shots of 2009.