Coroner Sheriff Conflict of Interest

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It seems that the news covers more frequent abuses of power, corruption and conflicts of interest within law enforcement and in posts held by elected or appointed officials. One state is trying to address this head on.

In California, 49 of the 58 counties have a coroner who is also an elected sheriff. Why is this a conflict of interest? Well, the coroner ultimately gets to decide the deceased’s cause of death. So, even if a forensic scientist claims that the person’s death resulted from a homicide, the sheriff-coroner can rule it as an accident or a suicide. This is an inherent conflict of interest, according to critics of the current status quo in California. In San Joaquin County, its chief forensic pathologist quit and his colleague, alleging that the Sheriff-Coroner had pressured him to change autopsy findings when his own police officers were involved.

In 2008, Daniel Lee Humphreys was being chased by California Highway patrol after speeding. He ended up crashing his motorcycle, and then he was shot with a Taser 31 times by an officer who caught up with him. Ultimately, he collapsed and then later died. His ex-wife has accused the sheriff’s office of withholding evidence concerning their use of the Taser, and ultimately, Mr. Humphrey’s death was ruled an accident. This is not an isolated incident. Recently, an audit of the coroner’s office in San Joaquin County revealed at least 4 deaths in 2016 which involved law enforcement officers. The sheriff overruled the findings of all the county pathologists. There is no way to guarantee that a sheriff can fairly investigate officer-involved deaths if they serve both as a sheriff and the coroner.

The two doctors who quit allege that the sheriff not only pressured them to change their conclusions but also that he routinely interfered in various investigations of people who had died during their encounters with law enforcement officers. The sheriff is accused of preventing the doctors from visiting crime scenes and failed to notify them of cases they were obliged to investigate. He also is accused of canceling forensic tests without their knowledge or consent. The office has also been the subject of criticism that their deputy coroners are sent to crime scenes without sufficient training or knowledge, which could have resulted in mishandled investigations.

It was not only doctors who were dissatisfied with the sheriff/coroner issue in San Joaquin County. Deputy District Attorneys also brought the issue of meddling to the Sheriff, with one D.A. writing to the Sheriff in 2013 that a failure to bring the forensic pathologist on the crime scene can affect the prosecution of cases – referring to the stabbing murder of a woman in her own home, where her children were in and out of the house all day. The sheriff’s office failed to pass on the message that he was needed at the scene. The next day, due to the decomposition and subsequent refrigeration of the victim’s body, the doctor was unable to determine a good time of death – which significantly impeded the investigation and made it more difficult to ascertain who was present at the time of her murder.

The outcry has prompted the legislature to introduce a bill that would change the current structure, requiring some counties to replace the coroner with a medical examiner. This is the arrangement in San Diego and San Francisco. There, a doctor, certified in forensic pathology, independently examines the deaths – outside the reach of law enforcement. Officials in San Joaquin County took note, and unanimously voted to strip the sheriff of his duties as coroner. A medical examiner will be installed within the year.

Injustice for POC

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The news lately seems full of injustices, particularly against people of color (POC). First, another police shooting out of San Francisco has rocked the news waves. Stephon Clark, aged 22, was shot primarily in his back in the backyard of his grandmother. Accusations of a police cover-up and protests in the street have heightened tensions. On the other coast, the police of Asheville, North Carolina released body camera footage of a police officer assaulting a man after the man had been allegedly jaywalking. The video shows the police officer choking the man and hitting him in the head multiple times.

Police violence has become a pretty regular story – so much so that you can feel immune to it. But out of Texas, one story makes it pretty clear that the justice system has a problem with race and POC, after Crystal Mason, a convicted felon, received a jail sentence for voting in the 2016 election. On November 8, 2016, she went to her local precinct. She was told her name was not on the voter roll, so the staff gave her a provisional ballot. In February 2017, she was arrested while she was meeting with her probation officer. In Texas, it is legal to vote in a general election – even with a provisional ballot – until any jail sentences have been fully served. This includes parole, probation or suspension. She had no idea she was not allowed to vote. Her lawyer argued her vote was cast in good faith, but she was sentenced to five years in jail for voting illegally. As a note, Ms. Mason’s vote was never even actually counted.

This is an extreme sentence in light of the other individuals who have been convicted of voter fraud in their states. In Wisconsin, 52-year old Robert Monroe (a white man) was convicted of 6 counts of illegal voting, and sentenced to one year in jail. Chad Gigowski, another white male, was convicted of voting twice on the same day in two different locations back in 2012. He served six months in jail. In Texas, of 38 prosecutions for illegal voting between 2005 and 2017, only one has ever resulted in a sentence exceeding 3 years. This involved a state official who voluntarily and knowingly registered non-citizens to vote.

In 2015, everything changed with the new attorney general, Ken Paxton. An extreme conservative, Mr. Paxton has made examples out of individuals accused of voter fraud – who also happen to be more frequently minority women. Maria Ortega was a permanent resident and mother of 4 who illegally voted in the 2012 and 2014 elections. She had been brought to the country as an infant, but acquired only a sixth-grade education. She believed that because she owned property, could serve in the military, get a job and pay taxes, that it also entitled her to vote. Unfortunately, a jury convicted her of two charges, and she was sentenced to eight years in prison.

And as if it were not obvious enough that some serious disparities are occurring in our justice system, Ethan Crouch, the ‘affluenza teen,’ was tried in the same Texas county. Crouch was drunk and high when he crashed his truck into another vehicle on the side of the road. He killed 4 people and injured nine others. At trial, it was asserted that he suffered from ‘affluenza’ – or being so wealthy and spoiled that he could no longer tell the difference between right and wrong. He avoided jail time, and on probation was filmed drinking alcohol, a violation of his terms. After that, he and his mother ran off to Mexico, where he was caught and sent back to the U.S. For his trouble, he was given 720 days in jail. For those of you keeping count, after killing 4 people, wounding 9 others, violating his probation, and avoiding arrest, Mr. Crouch serves a whopping 2 years in jail. Ms. Mason, a convicted felon for a non-violent crime (it was tax tampering), is sentenced to 5 years for casting a vote that did not even count… for a candidate who didn’t even win. But sure. Justice is blind, right?

Filming the Police

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Long before body cameras became widely used across the country in police departments, individual citizens often took it open themselves to film police interactions. With the ubiquity of cell phones with cameras built in, these recordings became more and more common, and proved to be crucial evidence in many cases.

Most courts have agreed that citizens are perfectly within their rights to record police on their cell phones, as long as they are not obstructing the police and preventing them from doing their job, or placing the police, themselves or others in harm’s way. Most Circuit Court of Appeals across the country have affirmed that the First Amendment extends to people who have used their cell phones to record police interacting with a third party. The First, Third, Fifth, Seventh, Ninth and Eleventh Circuits have all issued rulings along these lines which means about 60 percent of the population is protected. The Supreme Court has yet to weigh in on this issue, but that is likely to change soon — the Eighth Circuit just came down with an opposite ruling, leading to a split in the circuits.

In the Eighth Circuit case, a man named Matthew Akins has had multiple encounters with law enforcement. He has attempted to film them making traffic stops and arrests. Usually, Akin would be standing on public property like a street or sidewalk. His filming was done on behalf of the activist group he founded in 2010 called Citizens for Justice. While he had filmed, he had been threatened multiple times, his employer was hassled and the police ordered him to stop filming on multiple occasions. He had charges filed against him, most of them later dropped. As a result of all this activity, Akins sued the County Prosecutor, alleging that his 1st, 2nd, 4th, and 14th amendment rights had been violated. The trial court ruled that no citizen or member of the press had the right to record the activities of public officials on public property, which was affirmed by the Eighth Circuit. If you think this ruling is a head-scratcher, you are not alone. After all, citizens of the Eighth Circuit do not have the same rights as their fellow citizens under other jurisdictions. It is notable that the Court did not go through its own argument to support the denial of the right to film; rather, it simply affirmed the district court by saying it had “thorough and well-reasoned opinions.”

Akins has indicated that he will file a motion for rehearing, and if this unsatisfactory, he will proceed to the Supreme Court. When there is a split in the Circuits, the Supreme Court has a good reason to weigh in. Additionally, the environment of police departments and the communities they are required to protect has been fraught in recent years, with cameras revealing systemic abuse and certain attitudes. It would be an appropriate time for the Supreme Court to clarify the issue, although it seems to the average person that anyone would have the right to record the actions of a state agent under the First Amendment if they are on public property. Perhaps it is even more interesting that it is the Eighth Circuit – where Ferguson, Missouri is located. This is certainly an issue to keep an eye on in the upcoming months.

Man’s Best Friend and Crime

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Man’s best friend has begun to play a huge role in law enforcement and criminal investigations. On any given day, you could see a drug dog, a bomb dog, a cadaver dog, and a dog that will protect its handler at the expense of your arm, leg, or otherwise. But what kind of role do dogs play in the justice system, particularly when it comes to evidence?

Dogs can be crucial when it comes to finding a victim or a body. Cadaver dogs sniffed out four missing young men in Pennsylvania this month – buried over 12 feet in the ground. While it was a good find, the dogs had help as the investigators had narrowed the perimeter of search to the property owned by the folks who eventually confessed to the four murders.

The use of dogs for sniffing out drugs can be somewhat more problematic. Studies have shown that only 44 percent of a dogs’ positive signals actually led to the discovery of drugs or drug paraphernalia. Likely, that is because a dog is trained to signal when they pick up the scent of a drug. Very often, that is all that remains of the contraband – the scent. Regardless, the use of drug dogs to allow a more invasive search of someone’s vehicle or person came before the U.S. Supreme Court in 2013 in the case of Florida v. Harris. The issue in the case was whether law enforcement’s assertions that the dog is well-trained to signal the existence of a drug is enough to establish probable cause to search a vehicle under the 4th Amendment of the Constitution.

In the case, a Sheriff and his drug detection dog, Aldo, were on patrol, when the officer stopped someone for expired tags on his vehicle. The defendant refused a search, and thus, Aldo was deployed. He signaled at the driver’s side door handle. The officer then searched the vehicle, finding 200 pseudoephedrine pills, 800 matches, and various other items that are consistent with the production of methamphetamine. About two months later, the same defendant was stopped by the same officer, using the same dog who alerted to the same place – but this time, no drugs were found. Harris moved to suppress the evidence, which was denied.

At oral arguments before the Supreme Court, the defendants relied on studies showing that drug detection dogs were largely ineffective, while the prosecution said that ‘false positives’ mean nothing, arguing that the drugs could have been there previously, or just extraordinarily well-hidden. In fact, the Attorney General of Florida wrote, in his reply brief, that it was similar to walking into a room after someone made popcorn – but there was no bag or other evidence that popcorn had been cooked. This did not change the fact that you still smelled popcorn.

In a unanimous opinion, the court held that the dog’s certification and continued training are an adequate indication of his reliability, sufficient to presume the alert is enough to provide probable cause to search further, particularly under the ‘totality of the circumstances’ test. However, the court did reserve future issues, such as where the dog’s reliability could be questioned when there are specific grounds present to the case at hand.

Overall, the court appears to be sympathetic to a well-trained, certified drug-sniffing dog when it comes to 4th Amendment rights. However, it has trimmed up the ability of officer’s to use the dog in the Rodriguez matter, wherein Justice Ginsburg wrote that without reasonable suspicion to begin with, extending a traffic stop to conduct a dog sniff is against the Constitution’s prohibition on unreasonable seizures. There will likely be several more ‘dog’ cases in the future. Just remember – if you are pulled over and asked to search your vehicle, it is within your rights to say no.

Hate Speech

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In light of Kathy Griffin’s latest ill-advised photo shoot of her posing with a fake decapitated head with signature Trump hair-style, several debates and questions have arisen concerning ‘hate speech’ in this country, and whether or not it can be criminalized.

First – in the United States of America, there is absolutely no ‘hate speech’ exception to the First Amendment. This country is unique in that the right to free speech is one of the most important and fiercely protected Constitutional rights. Other countries, like the United Kingdom, do allow crimes to be prosecuted on the basis of words. (Or images). That’s why you get so many crazies on your Facebook news feed spouting off horribly racist things and why we have such a variety of ‘news’ shows on YouTube. The exceptions to the First Amendment are few: ‘fighting words’ are not protected. Fighting words are words designed to incite a fight, and are typically face-to-face personal insults directed at a specific person. But these words are not always racial or religious abuse – and sometimes it doesn’t even cover these kinds of statements. Take the R.A.V. v. City of St. Paul case before the Supreme Court, for example. The city tried to punish fighting words that were bigoted in nature, and SCOTUS held that this would be constitutional, even though a broad ban on all fighting words is permissible.

Another exception is actual, true threats, or words that are likely to incite imminent illegal conduct. Such as threatening to kill someone because he’s gay or Muslim, or intentionally inciting others to harm someone because they are Jewish or white. However, under no circumstances is it ‘hate speech;’ – it’s just because it’s illegal to make these kinds of threats of violence. Other kinds of speech are unprotected, such as libel or defamatory speech, or anything that is obscene (a discussion warranted for another time).

With that said, some actions that have an element of hate in them are crimes and carry heightened penalties – hate crimes. Lately there has been an increase in reported hate crimes – up 67% against Muslim Americans in 2015. Hate crimes are traditional offenses with an added element of bias (usually motivated by race, religion, disability, sexual orientation, ethnicity, gender or gender identity). As with the examples above, hate crimes are already a crime. The element of hate is simply an aggravating factor that often affects the sentencing of the crime.

The structure as it is now punishes bad behavior better than bad beliefs. The physical intimidation or assault is punished, and the hate element is simply an aggravating factor. After all, we do not live in an Orwellian world (yet), so not only are thought crimes nonexistent, they are pretty hard to regulate.

Kathy Griffin waving a disembodied prop of a Trump-esque head might be hateful, but it’s completely protected. As with anything, the devil is in the details. Introducing a hate speech exception into the First Amendment would be no different. It would involve an examination into the kinds of speech deemed ‘hateful.’ What perspectives and opinions does the government have an interest in suppressing and limiting? What points of views should be protected? How on earth are judges supposed to distinguish the two? America was founded upon the notions of free speech, free debate, and using parody (even if it’s shocking and offensive) to make a point. Trying to whittle that down into ‘acceptable’ points of view in the melting pot of society would be not only impossible, but would probably result in some pretty heated debates on its own.

Immigration & Crime in L.A.

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One of the most hot-button issues in Los Angeles and the U.S. lately has been the topic of immigration. Economic concerns are always viable, but the focus on developing stricter immigration laws has been on the risk of crime and preventing criminals from crossing our borders. But how big of a threat are undocumented immigrants when it comes to increasing criminal activity in the country?

According to the American Immigration Council, and FBI data, while the number of undocumented immigrations increased from 3.5 million to 11.2 million between 1990 and 2013, the rate of violent crime actually fell by 48% during the same time period. To put this into further context, another study by Bianca Bersani, a professor of sociology at the University of Massachusetts in Boston, finds that 17% of all first-generation immigrants who are 16 have committed a crime in the past year, while about 25% of native-born 16 year olds have. An second-generation immigrants commit crimes at about the same rights as native-born citizens – but the issue is really crimes committed by undocumented, first-generation immigrants – at least, according to the White House. After all, the White House plans to publish a list of crimes committed by undocumented immigrants in the sanctuary cities across the country. He also has ordered the Department of Homeland Security to create an office called VOICE – helping ‘victims of immigrant crime.’

But other studies reach similar conclusions about the reduced rate of criminal behavior amongst undocumented immigrants: Among people aged 18-54, 1.53% of the native population is incarcerated versus .85 percent of undocumented immigrants. Anecdotally, some opponents of Mr. Trump’s immigration policy argue that areas with high numbers of immigrants actually tend to have lower rates of crime, although it is difficult to prove this assertion. In fact, the only place where Mr. Trump might be correct is in looking at crimes related to poverty and theft when looking at potential increases in crime committed by undocumented immigrants. But the violent crimes are largely committed by the native population.

The rhetoric of fear concerning immigration deals with the threat of terrorism, too – two bans on residents traveling from certain countries emphasize this belief. Perhaps Mr. Trump’s information is more accurate in this realm? Not exactly. Thankfully, deaths due to foreign-born terrorism are incredibly rare, and aside from the attacks on 9/11, foreign-born terrorists have killed about one American per year. Americans are actually more likely to die from an animal attack than a foreign born terrorist.

Of course, these statistics do not mean that immigrants do not commit any violent crimes, and one common example used by anti-immigration advocates is the story of Kathryn Steinle’s murder, committed by a man who had been deported from the U.S. to Mexico five times. And the Federation for American Immigration Reform compiles a list of serious crimes committed by undocumented aliens. In 2016, the examples of crimes occurred at the rate of about once a month, with a significant number of immigrants belonging to gangs. Additionally, the Department of Public Safety in Texas has tracked an increase in drug smuggling, although these cases are likely committed by individuals with no intention of remaining and immigrating into the country. So, statistically speaking, these stories of crime, while tragic, are exceptions to the rule, and should not be heavily depended upon in developing and crafting policy for immigration.

Former Baggage Handlers Indicted on Federal Drug Charges for Using Credentials to Bring Cocaine Past Security

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3 individuals were arrested on federal charges of conspiracy for intent to distribute cocaine under 21 US 846, 841 a (1). Jet Blue flight attendant Marsha Gay Reynolds was caught with approximately 70 lb of cocaine during a secondary TSA random check at LAX airport. She tried to run up the escalator with her shoes off after they attempted to escort her to a secure area for further screening. She attempted to call someone on her cellphone while speaking in a foreign language as soon as she was informed that she was randomly chosen for a secondary TSA screening.

Also involved in this scheme are Adrian Ponce and Alberto Preciado Gutierrez. Ponce admitted to driving Gutierrez to the airport, whereby as part of a scheme involving illegal drug transport, they would pay a third party courier (a ticketed flight passenger) approximately $ 1500.00, and split the remaining money for transport of samples of approximately 1 kilo of cocaine. In December 2015, Gutierrez was caught with this amount in the terminal bathroom attempting to make an exchange with a third party courier. After being read their Miranda rights, they both provided statements revealing the scheme of transporting coke using commercial airlines. It is not uncommon for Transnational Criminal Organizations (TCO’s) to use air travel to smuggle drugs by paying off airport or airline personnel with access to sensitive areas of the airport and aircraft. Surveillance revealed the extent of these operations, with Preciado caught on video carrying a backpack containing goods in secure areas of the airport at times after his shift was done. The scheme was intended to provide a sample to customers, and if they were satisfied, the plan was to provide more drugs via hidden compartments of a bobtail truck.

Interesting to note, Ms. Marsha Reynolds is brought under separate complaint charges than Mr. Preciado. This may be a government strategy whereby there are cooperating witnesses and informants that may have impacted the decision to try the cases separately. In a multiple defendant case, it is possible that the co-defendants may be charged in the same formal charging documents thereby they would have a joint trial. In other cases, it may even be better for a defendant if other defendants are charged separately and proceed to trial in separate matters. This is called a motion to sever the trial, sometimes filed by defense attorneys.

Although Ms. Marsha Reynolds was arrested in April of 2015, it appears that the federal government had been investigating this type of scheme using the airport and airport employees since at least December 2015. Agents in charge of investigation are usually highly trained and have experience and certification through International and National narcotics interdiction, as well as professional experience in the commercial aviation industry. Transnational Criminal Organizations are constantly evolving to use different methods to transport and distribute drugs across the country.

Some defenses may include factual basis such as various degrees of participation in a conspiracy and various degrees of intent to distribute. This may be typically called a mistake of fact defense or factual impossibility. The difference is that it may be argued that a defendant made a mistake and therefore did not have the appropriate intent to commit the crime charged, whereas mistake of law defenses may include situations where the crime itself was impossible to carry out, even if the accused had the requisite intent.

US government seized more than $20 million in largest commercial fraud scheme ever in West Coast

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A massive shipment of apparel from Hong Kong was seized for being illegally imported into the US.  Commercial smuggling has greatly impacted US importation revenues and enforcement efforts have increased to try to stop undermining the US economy. The scheme involved false documents to customs that were fabricated to avoid import duties and quotas. Estimated losses in revenue are in excess of $600 million.

The documents claimed that the goods were being sold to companies in Mexico. In fact, they were to be distributed to customers in the United States. An owner of a Los Angeles based trucking company was federally charged in connection with this case and pled guilty in 2008. There are four other defendants that remain at large for making false customs declarations and smuggling.

US Title 18 Section 545 prohibits smuggling of goods that should have been declared at customs. It also penalizes conduct for fabricating documents in connection with bringing in the smuggled goods.  The specific intent element of the crime is “knowingly” or fraudulently. It must be proven that the defendant knew the object was intended for export contrary to the laws of the United States.

Although the maximum term of imprisonment on this count may be 10 years, there may be additional sentencing enhancements based on the type, value and amount of the goods and fines typically range in the millions. Furthermore, the products can be permanently seized and confiscated by the government.

Collaboration among enforcement agencies such as ICE (Immigration and Customs Enforcement), Customs and Border Patrol, Homeland Security Investigations, and the US Coast Guard have led to zealous enforcement. In this particular case, these agencies seized over $20.5 million in assets. Some of the seizures included 100,000 square foot warehouses in Commerce and other businesses in Los Angeles and Texas.

There is an entire asset forfeiture branch of ICE that is dedicated to finding assets that are the proceeds of the smuggling or were used to facilitate breaking the federal smuggling laws. Their primary goal is to deter criminals from profiting from the property used in connection with the crime.  Once seized, the property is equitably shared with other local branches of government and internationally to facilitate law enforcement cooperation.

There has been noted asset forfeiture abuse and defense attorneys at the Blanch Law Firm are committed to fighting inequitable or illegal asset forfeiture actions. The government can seize a person’s property without notice or hearing by moving ex parte by merely showing probable cause that the property was involved in a crime. The property itself does not have to be illegal, it could be the proceeds of a crime or somehow facilitates the crime. The property may even end up in the hands of someone not even alleged to be connected to the criminal activity.  How broad is this reading of what constitutes the instruments or proceeds of a crime?

The government’s ability to extract fines is limited by the Excessive Fine Clause. In certain instances, an excessive fine or forfeiture violates the 8th Amendment. Indeed the forfeiture must be proportionate to the gravity of the offense. See United States v. Bajakajian, 524 U.S. 321 (1998) (failure to declare currency in excess of $10,000 did not justify forfeiture of $357,000 in cash that an international passenger was caught by Customs with when departing the US).

In fact, since that case there have been subcommittees established for oversight of federal asset forfeiture which can be administrative, civil or criminal. Limitations set by the federal government and arguments made by attorneys can help regulate and ensure that property seizures remain equitable and not excessive or illegal under the laws.

Seven California Residents Charged with Operating Boiler Room Mortgage Loan Modification Scheme

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Seven defendants arrested in California for allegedly falsely promising to provide home mortgage loan modification services in exchange for upfront fees ranging from $2,500 to $4,300. The indictment alleges that these individuals operated under a number of false aliases and under the names of at least 30 different California- based companies targeting individuals who had a rough time repaying their home mortgage loans. The boiler room scheme involved cold calling and impacted Connecticut residents and across the US. The alleged victims of this scheme were instructed to mail their checks to addresses set up in states other than California. One of the defendants already pled guilty to conspiracy to commit wire fraud. Each of the named defendants is facing a maximum term of 20 years per count with certain sentencing enhancements if convicted.

The mortgage loan modification scheme involved false misrepresentations of the following: home owners were already preapproved for loan modifications on amazing terms and that these terms had already been negotiated with the homeowners’ lenders. The alleged victims were also told they qualified to receive assistance from government mortgage relief programs (when in fact many of them did not) and that they would receive a full refund in they were not able to obtain a favorable mortgage loan modification.

The individuals indicted are also facing sentencing enhancements for participating in “telemarketing” fraud and what is known as “vulnerable victim enhancement.” Under USSG Section 3A1.1 (b),  a sentencing enhancement increase of 2 levels is mandated if the defendant knew or should have known that a victim of the offense was a “vulnerable victim”.

What is a vulnerable victim? It’s a person who is “unusually vulnerable” due to age, physical or mental condition, or is otherwise particularly susceptible to criminal conduct.”

Defenses in these types of enhancement may explore whether there was in fact a connection between the victim’s vulnerability and the crime’s ultimate success. The burden of proof on the government is that they must prove that the defendant knew or should have known that a victim of the offense was vulnerable, but not necessarily in every case must the defendant know of the vulnerabilities.

It is important to note that the government cannot just presume vulnerabilities among broad classes of victims. This is incorrect and disfavored as a basis for the enhancement. Typically it must be shown that the victims’ vulnerability was known from the outset, or learned of in the course of the conduct deemed to be fraud.  An offender must have prior knowledge of his victims’ vulnerabilities.

Other enhancements faced by defendants could be for responsibility as a manager/ supervisor, or for mass marketing, or where the loss exceeded $1,500,000.

The government seeks to protect “vulnerable victims” such as senior citizens or as in this case those alleged over the age of 55, because they are most likely to own their own home, they consist of a generation that tends to be more polite or trusting and they are less likely to report fraud. Moreover, it may take this segment of the population more time to discover the fraud and when they do, they make poor witnesses because of deficiencies in memory.

Multiple Defendant Indictment in Tunnel and Drug Seizure, San Diego , CA

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Multiple Defendant Indictment in Tunnel and Drug Seizure, San Diego , CA

It may not be common knowledge that using a tunnel for illegal drug trafficking is a separate federal crime in and of itself. The crime carries with it a maximum sentence of 20 years under 18 US Code Section 555.

–          6 Defendants indicted in connection with building, financing and maintaining a 415 yard tunnel across the border to facilitate drug trafficking.

–           Defendants were using a tunnel that led from El Sarape Restaurant in Mexicali to a  2 bedroom house in Calexico, CA.Agents discovered a hole in the floor covered with tile to conceal the shaft underground.

– The tunnel is located about 300 yards north of the international border

In addition to charges for conspiracy to distribute over 1000 kilograms of marijuana (mandatory minimum of 10 years in federal prison), the crime involving the use of an international tunnel carries a maximum sentence of 20 years in prison

–          Defendants are also charged with maintaining and using the restaurant and 2 bedroom house as drug related premises. These charges also carry a maximum penalty of 20 years in prison.

–          Conspiracy is a specific intent crime. All the Defendants must be found to have been in agreement with respect to criminal conduct.

–          In practice, an indictment may name individuals that may not have actually physically handled or possessed drugs.

–          To succeed in a jury trial conviction, the prosecutor must prove the extent of the agreement among the named defendants and the understanding among them. This relates to the specific element of intent in the crime of conspiracy.

–          Only 5 of the defendants are charged with using a narcotics tunnel

–          The charges allow for punishment for “recklessly disregarding the use of a tunnel.” That means there had to be some level of knowledge or awareness that a tunnel was being used for this illicit purpose and that these individuals recklessly disregarded that information (or turned a blind eye).

–   Affirmative defenses can also include that they had insufficient involvement and knowledge about the tunnel and how it was used to be deemed “recklessly disregarding” any fact.

–   The question may turn on whether a reasonable person in that position would have known or should have known that a tunnel was used in illegal activity such as moving drugs across the border between this “restaurant” and the 2 bedroom house and whether these individuals knew that these premises were being used as a “front”.

–          Evidence of more than 1 ton of marijuana was recovered. A defense strategy may be employed to attack the conspiracy allegations which may undermine the determination that all Defendants should be charged with the entire amount of drugs recovered.

–          Affirmative defenses in conspiracy drug charges can be that the Defendants did not have the same agreement, understanding, or knowledge about the illegal conduct or drug trafficking.

–          Tunnels have been used to traffic humans and drugs. With strong implications for border security, the government has tightened its enforcement and prosecution of these crimes.

–          Only one defendant is alleged to be responsible for the conspiracy to construct and finance this international tunnel. It will be interesting to see how the complaint may be amended and what parties may be added as defendants as the investigation progresses and other defendants may choose to cooperate with the government in hopes of a favorable plea bargain.