CA - “Mongols Nation Conclusion Nears”

OFF THE WIRE
agingrebel.com
Expect the Mongols Nation case to be dismissed by Judge David O. Carter next Monday afternoon. A hearing on the dismissal is scheduled for 2 p.m. in Carter’s courtroom in the Ronald Reagan Federal Building and Courthouse in Santa Ana, California.
The case has attracted national attention. At issue is the question of whether the government, or a couple of rogue federal prosecutors named Christopher Brunwin and Stephen R. Welk, can forbid members of the Mongols Motorcycle Club from wearing the club’s distinctive insignia. Brunwin and Welk have made careers of this. They attempted to seize the Mongols trademarks in a criminal case called U.S. versus Cavazos and others and again in a civil case named Ramon Rivera versus Kenneth E. Melson, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives and others. They lost both those cases. American Civil Liberties Union attorney David Loy who represented Rivera called the attempted seizure of the Mongols patch “an outrageous violation of the First Amendment, and an absolute abuse of forfeiture and trademark laws.”
But Brunwin and Welk continued with what Mongols’ attorneys Joseph A. Yanny and Elliot H. Min call “a pointless prosecution.” Monday Judge Carter, will probably, finally put a stop to this, preclude the government from trying to seize the patch of any other motorcycle club and tell Brunwin and Welk, or at least the Department of Justice, to pay Yanny and Min’s legal fees.
Carter will rule on three key issues: The forfeitability of the Mongols patches; a legal principal rarely cited in criminal cases called Nonmutual Defensive Collateral Estoppel; and whether the government and the prosecutors acted “unreasonably, vexatiously and recklessly” in pursuing this case.

Forfeitability

If the government were to win this case the only consequence would be a subsequent attempt to seize the Mongols name and patch. No matter who wins or loses, nobody is going to jail. So the Mongols attorneys have asked Judge Carter to rule on the legality of the inevitable attempted seizure now.
For the last six years, Welk has argued before a succession of federal judges that there must be a trial before there can be a consideration of the forfeitability of the Mongols patch. For awhile he was fond of the slightly lewd phrase, “premature adjudication.” In this case he has argued that he doesn’t know whether the government will pursue forfeiture or not – which, since it is the only thing the government has to gain from a three month long trial, seems like a transparently mendacious thing to say. In their Reply filed yesterday, the Mongols argue that “no evidence can alter the reality that a collective membership mark as a matter of law is not subject to criminal forfeiture, because the owner of such a mark holds the mark in trust for the members. The government’s insistence that this issue be determined only after conviction is an attempt to put form over substance…. This Court possesses the inherent and supervisory power to conduct its proceedings to avoid unnecessary procedures.”
“Lastly,” the Reply argues, “the law never requires a futile act…. Since the Mongol Nation is an entity and the only named defendant, no individual in this criminal case is subject to incarceration. A guilty conviction without forfeiture would be meaningless and equivalent to this Court rendering an advisory opinion in contravention of Article III of the United States Constitution….Therefore, waiting for conviction before adjudicating forfeiture is a futile act that this Court possesses the power to avoid at any stage of the proceeding.”

Estoppel

The Reply also cites a concept called “Nonmutual Defensive Collateral Estoppel.” Briefly stated, the clumsy phrase means that the Mongols, and potentially any other motorcycle club, can prevent government prosecutors from relitigating an issue the government has previously litigated unsuccessfully in another action against a different party. Yesterday’s Reply argues “the issue of whether the collective membership mark is forfeitable is the identical issue that was previously litigated adversely to the government in both Rivera and Cavazos.”
Depending on what Judge Carter makes of the concept, he may rule that Rivera and Cavazos preclude similar attempts by the government to seize the insignia of the Vagos, Bandidos, Outlaws, Pagans, Warlocks, Sons of Silence or any other motorcycle club that has a similar organizational structure. The Hells Angels, because of that club’s unique organizational structure, may already be protected from government attempts to seize its name and insignia.
The Mongols Reply argues defensive estoppel “precludes a plaintiff from relitigating identical issues by merely switching adversaries…. The government’s attempt to obtain the same forfeiture in the instant case violates principles of judicial economy
and thus mandates the government be estopped from relitigating the same issue….”

Ethics

The Reply also chastens Brunwin and Welk for their conduct in pursuing the Mongols for the last seven years. “Government prosecutors have a duty, under Berger v. U.S., to not casually treat the truth like a nose of wax to be twisted, turned, and shaped depending upon what they believe will most please the audience; they have an ethical obligation to the accused; it is not about winning or losing, it is about doing justice. More importantly, the duty of a government prosecutor is to avoid doing an injustice.”
Berger v. U.S., is a 1935 decision in a case about prosecutorial misconduct. In that case Justice George Sutherland defined prosecutorial misconduct as, overstepping “the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”
“The United States Attorney,” Sutherland wrote, “is the representative not of an ordinary party to a controversy, but of a sovereign whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilty shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Sanctions

Yesterday Yanny and Min wrote, “since the inception of this case when the government attempted in bad faith to judge shop, and in spite of the ethical standards set forth in Berger v. U.S. to which federal prosecutors are held, the government has consistently attempted to gain improper and impermissible advantage over the accused in this case that warrants sanctions and dismissal of the indictment.”
“The sleight of hand pleading described in prior sections of this brief coupled with the clear attempt to improperly navigate the instant case into a forum of its choosing is more than enough evidence that the government has acted improperly and breached its ethical duties set forth in Berger v. U.S. to proceed with a pointless prosecution where no one is going to jail even if they win thus wasting everybody’s time and money. This clearly warrants the maximum sanctions permitted by law against the government and its prosecuting attorneys in this case, and the dismissal of the indictment in its entirety.”
The dollar amount of the sanctions that may leveled against the Department of Justice or Brunwin and Welk remains unknowable but it possible to guess. In the Rivera case Carter sanctioned the government $253,206.78. The money paid Rivera’s lawyers and their costs.  “But that was a summary judgment,” Yanny said in a brief phone interview this morning. “We were ready to go to trial.”

The dollar difference could be substantial.

Espinoza's Leather Customer Appreciation Day!

OFF THE WIRE

Espinoza's Leather Customer Appreciation Day!

Sunday, October 4 at 11:00am

Original Mike's in Santa Ana, CaliforniaGilberto Espinoza invited you to Espinoza's Leather's event

8730 Garvey Ave

Rosemead, California

(626) 307-5049

http://www.espinozasleather.com/

Court Rules ‘Marijuana Odor Is Not Sufficient’ For Cops To Have ‘Probable Cause’

OFF THE WIRE
This is a MAJOR game changer. Looks like the cops are going to have to go back to the drawing board with bullshit ideas for establishing probable cause!
http://goo.gl/whaJEr


Police have been pulling people over and stopping them on the street for years, claiming at the stops that they “smell marijuana.” In the past, this has been about all they need to say to cover their asses and claim they had “probable cause.”
But now, law enforcement agencies are going to have to come up with an alternative, since several judges, including those presiding over an Arizona court, just ruled that this isn’t going to cut it anymore.
That’s right: if police wish to establish probable cause, they are going to have to find another way besides just saying they smelled something that might have been marijuana.
The Arizona Court of Appeals handed down that verdict, saying that since the state now has legal medical marijuana, the odor of raw or burnt cannabis itself does not constitute probable cause. This ruling could logically be extrapolated to and applied as a reasonable defense in other states where medical marijuana is legal, and even those states bordering them.
High Times reported that in the decision, Judge Peter Eckerstrom explained that medical marijuana “is lawful under Arizona law,” and therefore “its scent alone does not disclose whether a crime has occurred.”
Eckestrom added that if this is not followed, the police would be violating the peoples’ constitutional rights.

“Were we to adopt the state’s suggestion that scent alone furnishes probable cause of a crime, medical marijuana patients would become second-class citizens, losing their rights to privacy and security, including privacy within their own homes.”
As we reported previously, and as the journal Law and Human Behavior found, the presence of marijuana cannot be determined on the basis of on odor alone. Animals, flowers, and garbage, all could give “false positives.”
Judge Eckerstrom said that this smell test is plain and simply “outdated” and cannot be used to “form a well-founded belief that a criminal offense was committed.”

(Article by Jackson Marciana; h/t to High Times)

BABE OF THE DAY

‘Sneak & peek’ warrants allow police to secretly enter homes without notice

OFF THE WIRE
by Site Staff
Covert tactics have become legally accepted and increasingly popular.

Burglar or police officer?

A little-known police tactic allows cops to covertly enter private residences, perform searches, seize property, and then leave quietly without notifying the homeowner. These searches, affectionately known as “sneak and peek” warrants, have been performed at a rapidly rising rate since 9/11.

Covert Tactics

Sneak and Peek warrants in actuality a more extreme version of the over-used “no-knock” raids that we cover so often. After seeking out a judge’s authorization, police are allowed to secretly break into private property without first announcing themselves or presenting the subject of the search with a signed warrant. Using this variety of warrant, officers intentionally wait until the subject is not present. The operations are performed covertly, and with the intention of masking the fact that any police activity took place.
The entire premise encourages government agents to adopt the tactics of criminals in order to gain access to property: breaking and entering, sneaking around, stealing, and risking a surprise confrontation with an unsuspecting civilian.

Legally acceptable in the USA.

Often, the investigators leave the property undisturbed to avoid detection. After taking what they want and/or leaving wiretaps, cameras, or other planted devices, they exit quietly so as not to raise suspicions.
Sometimes, however, the agents literally stage the scenes to resemble robberies — sneak and steal operations. In one 2010 case, federal investigators broke into an Cleveland apartment, collected evidence, and then “trashed the place to make it look like a burglary.”
The feds have used similar tactics when searching vehicles. According to a Department of Justice document, DEA agents used a delayed-notice warrant to literally steal a suspect’s car in March 2004. After following the suspect to a restaurant in Buffalo, NY, one agent “used a duplicate key to enter the vehicle and drive away while other agents spread broken glass in the parking space to create the impression that the vehicle had been stolen.” [1]
The government is supposed to eventually tell the subject that a warrant had been served on them, but that may not happen for months or sometimes more than a year. A report by the Director Director of the Administrative Office (AO) of U.S. Courts found that the period of delay in telling the suspect they had been served a warrant ranged from 1 to 455 days. The most common length of delay was 90 days [2].

Terminology and History

Officially, the government has termed these warrants innocuously as “Delayed-Notice Search Warrants.” Calling the tactics what they are — covert home invasions or “Sneak and Peek” searches — would not be helpful for public relations.
The man that President Obama chose to head the FBI, James Comey, once explained the etymological spin used by the government to present the tactics in a positive light:   “We in law enforcement do not call them [sneak and peek warrants]… because it conveys this image that we are looking through your sock drawer while you are taking a nap.” [3]
In private, the government once used a more honest description of the tactic — back when it was not legally recognized. They were quite literally referred to as “black bag jobs” within the FBI, as Bureau domestic intelligence head William Sullivan revealed in a declassified memo dated July 19, 1966:

“We do not obtain authorization for ‘black bag’ jobs from outside the Bureau. Such a technique involves trespass and is clearly illegal; therefore, it would be impossible to obtain any legal sanction for it. Despite this, ‘black bag’ jobs have been used because they represent an invaluable technique in combating subversive activities of a clandestine nature aimed directly at undermining and destroying our nation.” [4]

Mr. Sullivan was clearly aware that the actions were illegal, yet his memo went on to proudly admit that the tactics have been used to destroy political groups operating within the United States.
Governments have certainly been covertly sneaking and spying on their own citizens for all of history. The legal acceptance is the newer, more concerning development.
As law professor Jonathan Witmer-Rich points out, “There is no evidence of judicially-authorized covert searching, through a delayed notice warrant or any similar mechanism, in the history of search and seizure through 1791 [the drafting of the Fourth Amendment].” [6]
The professor also revealed that the first reference to a “Delayed-Notice Search Warrant” did not occur in U.S. case law until 1985 in United States v. Frietas [6].
The constitutionality of covert searches has been challenged in court several times in the modern era, and the searches were always upheld. In Dalia v. United States (1979), the U.S. Supreme Court called the 4th Amendment challenge “frivolous.” Modern courts have followed suit, holding that the tactics pose no Fourth Amendment concerns. And thus signaled the beginning to an era when “black bag” tactics became legitimate.
Although the courts had condoned the formerly dubious warrants, their issuance remained relatively low (at least searches performed on the record). The rarity of the searches changed after the attacks of September 11, 2001. The USA PATRIOT Act laid out a national standard for using Sneak & Peek tactics, and the floodgates began to open for their widespread usage.
Before the USA PATRIOT Act, only two federal circuits had ever acknowledged the practice of Delayed-Notice Search Warrants [6].
Title 18, Section 3103a provides that for any federal search warrant, “any notice required… may be delayed if… the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result.”
According to research done by Professor Witmer-Rich, there were only 25 DSW’s issued in 2002, and in a decade, that number had grown to 5,601 DSW’s issued in 2012 [6]. In fact, sneak and peek search warrants now constitute about 10% of all warrants served by the federal government [5].
Evidence shows that judges are rarely rejecting these warrants. Data in a U.S. Courts Administrative Office report shows that there was a 0.7% chance of a judge denying a request for a sneak and peek warrant in 2010. Out of 2,395 total DSW requests, only 16 were rejected [2].

Institutionalized Injustice

The use of these tactics opens the doors for numerous problems, corruption, and unintended consequences.
Secret searches not only reduce/eliminate the privacy and freedom of those targeted in the investigation — who are legally innocent until proven guilty — but also spurs an insecurity within the entire community. As Supreme Court Justice Sonya Sotomayor noted in a 2012 case regarding secret GPS tracking, “awareness that the Government may be watching chills associational and expressive freedoms.”
Another glaring problem is the risk of having police officers barging in on unsuspecting people. Despite investigators’ best efforts to avoid contact, a sneak and peek search could easily be performed while a subject or family member is still present in the house. When the police enter without notice, they will appear indistinguishable from criminal home invaders. Violent confrontations may arise, as they often do with the use of standard “no-knock” warrants.
It is also worth noting that clandestine “black bag jobs” are a perfect working environment for corrupt government agents. If their objective is to stage a robbery, they can quite literally steal property for their own benefit and never report it to the courts. Pocketing cash and valuables would be quite easy for state-sanctioned burglars operating without any witnesses. Officers also have a practically unchecked ability to plant evidence and incriminate the subject.
Indeed, the secrecy and lack of witnesses in these situations makes it incredibly difficult to hold the police accountable for any wrongdoing that might occur.
The problem of Sneak and Peek warrants has been institutionalized by the legislature, and it must be reversed there as well. The courts are unlikely to go against the precedents that have already been established. If clandestine police tactics are of concern to the public, the people must spur a legal change and push back on these advanced state powers.

{ Support Police State USA }

---

SOURCES:
1. “Delayed Notice Search Warrants: A Vital and Time-Honored Tool For Fighting Crime,” U.S. Department of Justice. Web. 22 Sep. 2004. [http://www.justice.gov/dag/patriotact213report.pdf]
2. “Report of the Director of the Administrative Office of the United States Courts on Applications for Delayed-Notice Search Warrants and Extensions,” ACLU.org. Web. Accessed 26 Jun. 2014. [https://www.aclu.org/files/assets/aousc_patriot_act_section_213_sneak_and_peek_report.pdf]
3. Comey, James. “Fighting Terrorism and Preserving Civil Liberties”, 40 U. Rich. L. Rev. 403, 410 (2006).
4. Holden, Henry M. FBI 100 Years: An Unofficial History. Zenith Press. 2008.
5. Witmer-Rich, Jonathan. “Covert, Delayed Notice Searching: A Constitutional and Policy Failure — and a Solution,” AmericanBar.org. Web. 05 Oct. 2012. [http://www.americanbar.org/content/dam/aba/events/criminal_justice/Fall2012/Roundtable_WitmerRich_Covert_Searches.authcheckdam.pdf]
6. Witmer-Rich, Jonathan. “The Rapid Rise of Delayed Notice Searches, and the Fourth Amendment Rule Requiring Notice,” SSRN.com. Web. 24 Sep. 2013. [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2226977]