Law Office of Tim Warriner

NPR Segment on Mortgage Fraud: Complicity of Lenders

The Great Pool of Money is a terrific and entertaining commentary on the mortgage crisis. The piece suggests the complicity of the lending institutions in causing the crisis. As an attorney representing mortgage fraud defendants, the piece suggests a line of cross examination: the lending institutions encouraged the practices that caused the bad loans in an effort to sell more mortgage backed securities. The hour long segment was aired on the NPR program, This American Life. A shorter version of the segment is also available. Click here to listen to this wonderful NPR segment.

Sacramento Area Mortgage Fraud Investigations

With the financial crisis underway, Sacramento has become a hotbed for mortgage fraud investigations. Our local United States Attorney's Office is actively investigating mortage fraud. The U.S. Justice Department has formed more than 40 mortgage-fraud task forces nationwide as prosecutors and investigators struggle with a flood of mortgage-related cases. The FBI reports that its mortgage-fraud caseload has more than doubled in three years to about 1,600 investigations. About 200 FBI agents are assigned to the cases, up from 120 a year ago. The cases are also investigated by Treasury Department agents and California Department of Real Estate investigators. Click here to view the United States Department of Justice press release concerning these investigations.

The cases are charged as conspiracies under 18 U.S.C. 371, alleging bank fraud, wire fraud, mail fraud, and money laundering. The cases are complex and document intensive. It is essential to retain a qualified federal defense attorney if contacted by law enforcement, or if there is any concern that an investigation is under way. Please contact me if you have any concerns about a possible investigation, or if you have been contacted by law enforcement. Keep in mind that many persons considered "witnesses" potentially face exposure to criminal prosecution, so retaining counsel is of utmost importance.

Proposition 9: Some Challenges Ahead

Proposition 9, the Victims' Bill of Rights Act of 2008, was just passed by a majority of the electorate. The goals of the proposition are important, and crime victims deserve all of our support and respect. However, the proposition creates dramatic change in the criminal justice system that may undermine the object of the initiative.

The Proposition does three things: it overhauls the parole hearing system by undoing the right of inmates to have parole considered on a yearly basis; it requires that institutions not release inmates early due to overcrowding by directing the Legislature to ensure sufficient funding; and it creates a series of enforceable victims' rights. This article discusses the latter of the Proposition's objectives.

The Proposition lists 17 rights it designates as "personally held and enforceable" by "victims." The term "victim" is defined to include persons harmed by financial as well as violent crimes, and includes family members of direct victims. The Proposition contemplates that victims can be represented by legal counsel during all proceedings.

Among the victims' rights created are the rights: to be protected from the defendant; to have the safety of the victim considered in fixing bail; to refuse to be interviewed by a defendant's attorney; to be notified concerning court appearances, and to discuss the case with the prosecutor; to a "speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings"; and to receive a copy of the probation report.

The three most significant rights created by the Proposition are the rights to refuse to be interviewed, to participate in the legal proceedings, and to prevent disclosure of information and records to defense counsel. I will discuss these rights individually as the represent the most significant change to the justice system.

Right to Refuse Interview. The Proposition states that victims have the right "to refuse an interview, deposition, or discovery request by the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents."

Existing law provides that victims and witnesses have the right to refuse an interview by a defense investigator, or to set conditions for the interview. The Proposition requires that all "victims" be notified of this and other rights. Presumably a "victim advocate" associated with the prosecutor's office will also inform the victim of the right not to talk to the defense attorney or defense investigator. Simply providing this information will effectively allow the prosecutor to shut down all contact between the "victim" and defense counsel, and crime victims will take it as a suggestion that they should refuse to be interviewed. Persons claiming to be crime victims will be dissuaded from speaking with defense counsel. The victim will be able to get a court order that defense counsel not attempt to contact the victim or the victim's family. The result will be the court sanctioned dissuading of victims and witnesses from speaking with defense counsel.

There is simply no need for this right. Presently, a defense investigator must identify him or herself as a representative of the defendant when speaking with victims or other witnesses. Victims or other witnesses may not be harassed by an investigator and can refuse to speak, should they choose to do so. It would seem that the purpose of making the right enforceable by court order is to block defense counsel from contacting victims and witnesses. Interviewing all witnesses, including victims should they be willing to meet with an investigator, is essential to effective legal representation. Important information is obtained by having an investigator interview a so called "victim" as often the police interviews fail to address relevant facts and biases. This right will protect the lying or exaggerating crime "victim" from legitimate questioning.

]]> Right to Participate in Legal Proceedings. The Proposition provides for a victim's right "to be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue."

This provision allows victims individually, or with the assistance of a representative such as a "victim advocate" or lawyer to actually participate in the legal proceedings. Victims would be able to state their opposition to a plea bargain, and could potentially influence a case to proceed to trial in lieu of plea. This could have a devastating effect on the victim as the case may not be won at trial.

The right of victims to speak at sentencing or provide a victim impact statement pre-existed the Proposition, and the courts handled the victims' input well. The Proposition effects significant change in that victims have been given a right to participate even before an individual is convicted. Potentially, victims would have a right to be heard during trial, and could object to trial rulings by the judge, as trial is arguably a proceeding wherein the right of a victim is at issue. Legal proceedings will potentially have three parties entitled to direct participation: the prosecution, defense counsel, and the victim or victim's counsel. There is a potential for the victim's counsel and the prosecution to disagree about trial strategy, and for victims to disrupt proceedings. As much as we should care about crime victims, a court's rulings and other decisions must not be influenced out of sympathy to a victim. To do so undermines the constitutionally governed trial process, and threatens to undermine the result of the trial. Guilty verdicts could be challenged as unconstitutional as a result of the improper influence of a victim on the proceedings to determine a defendant's guilt. Victims should not risk potentially undermining the legitimacy of proceedings.

The Proposition's "findings and declarations" claim that "an inefficient, overcrowded, and arcane criminal justice system has failed to build adequate jails and prisons, has failed to efficiently conduct court proceedings, and has failed to expeditiously finalize the sentences and punishments of criminal wrongdoers." However, the right of victims to participate in proceedings renders the justice system even more "arcane," threatens to make the proceedings even more complex, and threatens the finality of the result should a defendant be found guilty.

Right to Prevent Disclosure of Information. The Proposition provides that victims have the right "to prevent the disclosure of confidential information or records to the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim's family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law."

Existing law prohibits defense counsel from giving records to the defendant that reveal a victim's or witnesses' address, telephone number, or other confidential information. Presently, if a defendant requests a copy of the police reports, defense counsel must redact confidential information from the reports. One effect of this right would be that the prosecutor must now redact confidential information from all investigative or other reports. This will create a delay in getting the information needed to prepare for trial and will place a huge strain on underfunded prosecutors offices. This right seems to prohibit the giving of a victim's contact information from defense counsel even if the victim has not requested that defense counsel not attempt to interview him or her. Thus, both the legitimate as well as the lying victim is shielded by this provision.

The second part of this provision prohibits disclosure of "confidential communications made in the course of medical or counseling treatment." Reviewing medical records is an essential part of defending any violent crime. Often the statements in the records, as well as the medical information itself, are exonerating. This provision shields all persons considered "victims," both credible and lying individuals. It is uncertain how this provision will be handled by the courts. If a person's medical condition is at issue, a defendant's attorney must be able to review all relevant records. Also, the medical and other "confidential" information could be deemed Brady material in that it is exonerating. Prosecutor's offices will then have to disclose the information or face having the conviction overturned.

Conclusion
The courts will be challenged in implementing the many victims' rights created by Proposition 9. The Proposition further complicates the criminal justice system. Many of the rights, when applied in individual cases, will conflict with a defendant's constitutional rights. Thus, a victim's enforcement of his or her rights may actually threaten the finality of the result in the event of a conviction. This result totally undermines the purpose of the Proposition. Victims' rights groups only have good intentions. However, poorly drafted laws such as Proposition 9 do nothing to improve the criminal justice system. Victims' rights groups would be better served by challenging and confronting specific elected District Attorneys or judges who fail to give crime victims the fair treatment they deserve.

Upcomming Supreme Court Arguments

The Supreme Court will hear argument on Tuesday (10/14/08) in Oregon v. Ice (07-901). The issue in Ice is whether the Sixth Amendment requires that facts necessary to impose consecutive sentences (other than prior convictions) must be found by a jury or admitted by the defendant.

On Wednesday (10/15/08) the court will hear argument in Waddington v. Sarausac (07-772), and Hedgpeth v. Pulido (07-544). Both cases address federal habeas review of state jury instructional issues. Waddington involves whether federal courts on habeas review must accept state court determinations that jury instructions correctly explain state law regarding accomplice liability. The issue in Hedgpeth is whether federal courts on habeas review may determine erroneous jury instructions on which the jury may have relied to constitute structural error requiring reversal.

Baggy Pants--a Fashion Statement not Probable Cause

In In re Enrique S., California's Fifth District Court of appeal found an insufficient basis to conduct a patdown for weapons. A .pdf copy of the Court of Appeal's opinion can be downloaded by clicking here. The arresting officer asserted that the juvenile subject's baggy clothing made it possible for him to hide a weapon, but could not articulate any reason why they believed the minor actually possessed a weapon. A search of the minor yielded an illegal knife. While the juvenile court correctly noted that "90 percent of teenagers wear baggy clothing," the denial of the suppression motion was found to be error by the Court of Appeal. I was pleased that the Court of Appeal agreed with my reasoning. This is another example of why suppression motions should be brought at the trial level.

My Office Has Moved

My office will now be located at 813 6th Street, Suite 450, Sacramento, California, 95814. The telephone number is the same. The fax number is (916) 441-0970. The office is in the same suite as Clyde Blackmon's firm, Blackon & Associates. It is located in the Hall of Justice Building, which is across the street from the Federal Courthouse, and adjacent to the Superior Court and jail. This is a convenient location for my clients, and I look forward to working alongside my colleagues in the defense field.

Book Review: The Innocent Man

John Grisham's The Innocent Man is not only a great read but will help educate the public about the death penalty and the causes of wrongful convictions. This is Grisham's first non-fiction book. It is an engaging account of the wrongful conviction and death sentence of Ron Williamson--the innocent man. Grisham forces you to confront the suffering and injustice experienced by Mr. Williamson. His account of the terrible conditions on Oklahoma's death row is remarkable. The story is told through the point of view of Ron Williamson, which forces the reader to live through the awful experience. Grisham's books are, of course, widely read. I'm sure many of who will have read the book will become jurors, or at least informed citizens who will demand safeguards for the accused, and who will question the propriety of capital punishment.

Victory in Brendlin

In a 9-0 decision, the Supreme Court in Brendlin v. California upheld the right of an automobile passenger to assert the violation of his/her fourth amendment rights. I represented Mr. Brendlin at the trial level where I litigated the search and seizure motion. Attorney Beth Campbell represented Mr. Brendlin before the Supreme Court. She did an excellent job fielding the mind bending questions of the justices at oral argument.

Hoping for a Good Result in Brendlin

In People v. Brendlin, now pending before the United States Supreme Court, at issue is whether automobile passengers have standing to contest an illegal automobile stop. I represented Mr. Brendlin at the trial level before the Sutter County Superior Court. Attorney Beth Campbell from the Central California Appellate Project argued the case before the Supreme Court. The oral argument transcript can be viewed online at the Supreme Court website, www.supremecourtus.gov. The questioning was very interesting. Most people I have talked to agree that no passenger would ever feel free to walk away from a car after a law enforcement stop.

Leon Has its Limits: United States v. Thai Luong (9th Cir.2006)

At issue in Luong was the search of Luong’s residence pursuant to a search warrant. The search warrant stated that the Hong Kong office of the DEA had informed the Los Angeles office that “a suspected suspect (Chun-Ying Jao) known as a chemist” was arriving at LAX to “set up and manufacture methamphetamine.” The affidavit set forth the surveillance of Jao. Luong was seen going to Jao’s hotel room. The two left the hotel and went to a restaurant where they ate lunch. After lunch, they went to a residence, then drove to a Home Depot store. They entered Home Depot carrying a red high pressure hose and questioned a store employee about “how to insert a new adapter fitting into (the) hose.” Luong purchased an adapter fitting, and he and Jao drove back to the residence. The affiant stated that she recognized the hose as a common tool used with a vacuum pump during the production of methamphetamine. Upon execution of the search warrant, agents found evidence of methamphetamine manufacturing in Luong’s home.

Luong’s case was originally brought in the state court. After the state court suppressed the evidence, Luong was indicted in federal court. Luong’s motion to suppress was granted by the District Court, the court finding that the affidavit was so lacking in indicia of probable cause that it was not objectively reasonable for an officer to rely on the warrant.

On appeal, the government conceded that the warrant was not supported by probable cause. However, the government maintained that suppression was unnecessary under United States v. Leon, 468 U.S. 897 (1984), due to the officers’ good faith reliance upon the warrant. The court stressed that the Leon good faith test was an objective one, the inquiry being “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” The court discussed the situations in which reliance on a warrant cannot be considered objectively reasonable. One of those situations is when the affidavit is so lacking in indicia of probable cause that official belief in its existence is objectively unreasonable. The court concluded that the Luong affidavit was so deficient that the officer’s reliance thereon was unreasonable. Totally missing from the affidavit was any factual basis to believe the anonymous tip was true. “The tip must include a ‘range of details,’ and it must predict future actions by the suspect that are subsequently corroborated by the police.” United States v. Morales, 252 F.3d 1070, 1075 (9th Cir.2001).

The court rejected the government’s claim that exigent circumstances made it objectively reasonable for the officers to rely on the warrant. Also rejected was an attempt to justify reliance on the affidavit by facts orally conveyed to the magistrate but not contained in the affidavit. The court stressed that “all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath.” United States v. Gourde, 440 F.3d 1065, 1067 (9th Cir.2006).

Latest Victory! Appeals Court Finds Improper Exclusion from Drug Treatment

It's nice when the Court of Appeal agrees with you and publishes their decision. This is especially true when your client will get out of prison and be permitted to participate in a drug treatment program. In People v. Muldrow (5th DCA, No. 048923) Mr. Muldrow was convicted of possession of methamphetamine, and admitted four prior prison terms. He was sentenced to state prison for seven years. On appeal, we contended that the trial court erred in finding that a parole hold and the expectation that he would return to prison for a parole violation made him ineligible for Prop 36 drug treatment (Penal Code section 1210.1). The appellate court agreed and vacated the sentence. A defendant is unamenable for drug treatment if he is unavailable to participate due to incarceration. Here, it was not certain that Mr. Muldrow would be unavailable because the parole violation was not even proved at the time of sentencing, and parole could have been reinstated.

United States v. Zavala—Booker revived!

On April 11, 2006, the Ninth Circuit filed its opinion in United States v. Zavala. The case is significant in that it shuts-down the practice of treating the Guideline calculated sentence as the presumptive sentence. The “presumptive sentence” rule has been followed by many district courts and effectively undermined the Booker decision.

In Zavala, application of the sentencing guidelines yielded a life sentence “range.” During the sentencing hearing, the district court characterized the guideline sentence as the “presumptive sentence.” Defense counsel argued that the starting point of analysis was the statutory minimum sentence. The court explained its view of post-Booker sentencing, stating, “I think it is clear . . . that we start with the Guideline range and then work from that to determine whether there are facts in this case unique to this case which justify the Court in disregarding the Guideline range, or at least deviating from the Guideline range in some fashion.” The court considered the relevant sentencing factors set forth in 18 U.S.C. 3553(a), ultimately concluding that the appropriate sentence was 30-years’ imprisonment rather than imprisonment for life.

The court in Zavala concluded that “[i]f a district court presumed that the sentence should be a Guideline range sentence, it would thereby make it much more than something to be consulted and would give it much heavier weight than section 3553(a) now does. That leaves it as a factor in the sentencing alchemy.” The court stated that “a presumption at the district court would give undue weight to the Guidelines. The dangers averted by declaring them to be merely advisory would become recrudescent.”

After Zavala it is clearly error for the district court to apply greater significance to the guidelines. The court stated, “[i]f a district court does show a kind of resistence and, instead, makes the Guideline calculation the presumptive sentence, it will commit legal error by misapplying section 3553(a), which now makes the Guideline a, but only a, factor to be considered.” The foregoing passage is important language in the Zavala opinion. Appellate counsel should consider whether a district court, by virtue of the language it uses or its sentencing practice, has shown “resistence” to the principle announced in Zavala.

The Zavala opinion is notable not only for its holding, but for its entertaining use of language. In one passage, the court writes that “Booker has resuscitated the much-lamented discretion that the sentencing statute seemed to take away from district courts, and has at least partially restored that halcyon condition that district judges have longed for these many years. District courts neither should, nor can, ignore that by placing undue weight on the Guideline portion of the sentencing chemistry.”

Zavala is a good read. Its rich passages should be quoted in every sentencing memorandum filed in the district court.

My Thoughts on Georgia v. Randolph

In Georgia v. Randolph, a case decided this week, the Supreme Court held that when one co-occupant of a residence consents to police entry into the home, and the other co-occupant, who is present on scene, objects, the police may not enter the home.

My first thought is that it will be unusual for circumstances analogous to those in Georgia v. Randolph to occurr. How often is the co-occupant present when the police arrive? The dissent is concerned about the impact upon victims of domestic violence. Putting asside the issue of whether Roberts and Scalia are not being true to their conservative judicial philosophy by permitting their fourth amendment analysis to be bent by concerns over a popular, albiet important, social issue, the dissent just has no idea how domestic violence cases are investigated. When a purported domestic abuse victim calls 911 reporting that the alleged abuser is in the house, responding officers know what to do to ensure their entry into the home is justified by the "exigent circumstance" of preventing further domestic abuse or by preserving evidence of domestic abuse. In practice, it is fairly easy for officers responding to a domestic violence call to either obtain the needed consent, or to adequatly justify their entry into the home. Right or wrong, the courts seem very willing to listen to an officer's justification for the entry.

Case of the Month: People v. Hofsheier

Does Penal Code section 290 violate the equal protection clause of the state or federal Constitution by requiring a defendant convicted of oral copulation with a minor to register as a sex offender but not requiring such regsitration by a defendant convicted of unlawful sexual intercourse with a minor?

Held: To subject defendant to the mandatory registration requirement of section 290, subdivision (a)(1)(A) would deny defendant the equal protection of the laws because there is no similar registration requirement for statutory rape. The Court of Appeal was directed to remand the case to the trial court, however, to exercise its discretion to determine whether the defendant should be required to register as a sex offender under section 290, subdivision (a)(2)(E). (People v. Hofsheier (2006) __ Cal.4th __ (S124636/H026217).) This case was decided on 3/6/06.

I would anticipate legislation to require sex offender reigstration for unlawful sex with a minor. (Pen. Code, section 261.5.) Such change would render Hofsheier void.

New "Three Strikes" Initiative: a Step in the Right Direction

Los Angeles County District Attorney Steve Cooley is proposing a ballot initiative that would modify the existing "three strikes" law to better implement the intent of the voters. The new initiative would eliminate life terms unless the third conviction was a "serious" or "violent" offense. The proposed initiative is now under review by the California Attorney General's Office. The co-author of the initiative is attorney Brian T. Dunn, a member of the firm formerly headed by the late Johnnie Cochran. The issue of whether to include burglary convictions as triggering "third strike" felonies is still under consideration. Assemblyman Mark Leno, D-San Francisco, is involved in this effort. At present, the California District Attorney's Office has not taken a position on the proposed initiative.

Needless to say, those seeking change to the "three strikes" law should contact their representatives.

Readers should also visit the Families to Amend California's Three Strikes ("FACTS") website (here). Donations to this effort will be important is it will surely be opposed by the California Correctional Peace Officer's Association ("CCPOA"). If only the Governor could break away from the grip of the CCPOA on this . . . .