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Why federal court protected defendant’s identity? Identity Fraud? | United States v. John Doe

September 12, 2018 by LAWSTACHE

John Doe appeals his conviction of aggravated identity theft under 18 U.S.C. Sec. 1028A, for knowingly possessing and using the name, birth date, and social security number of another person when he applied to renew a Nevada driver’s license and when he submitted a Form I-9 to his employer.

Doe appeal on two grounds. First, he says that the government failed to prove an element of the offense, specifically that he knew that the false identity he used belonged to a real person. Second, he challenges the reasonableness of his 78-months (6.5 years) sentence.

But why is this case John Doe? Aren’t criminal cases open to the public? It’s actually quite simple. After 27 years of using stolen identity, the Court could not figure out the defendant’s true identity. And he refused to tell the Court who he really was.

Here is what the Court said about his grounds of appeal. While direct evidence of knowledge is often presented in Sec. 1028A prosecutions, the element can also be proven by circumstantial evidence. Repeated and successful testing of the authenticity of a victim’s identifying information by submitting it to a government agency, bank, or other lender is circumstantial evidence that the jury may consider in deciding whether the defendant knew the identifying information belonged to a real person as opposed to a fictitious one.

Although the Federal Sentencing Guideline range was 18 to 24 months, the Court varied upward and imposed a sentence of 78 months. The court justified the upward adjustment because the defendant did not just live a normal, law-abiding life. He committed crimes under the victim’s identity and caused additional harm to the victim. The Appellate Court says that the 78-months sentence is not illogical, implausible, nor without support in the record.

I wonder if such an upward adjustment was applied because the defendant refused to tell the court his true identity. Let me know what you think in the comments.

https://caselaw.findlaw.com/us-9th-circuit/1755828.html

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!

Can CHP seize a million-dollar car while the parties fight over it? | Lawrence v. Superior Court

September 4, 2018 by LAWSTACHE

Brandon Lawrence purchased a rare 1947 Cisitalia from a Japanese company (Ohtomi Kensetsu Kahushiki Kaisha). A Japanese citizen, Kiyoshi Takihana, reports the car as stolen to the California Highway Patrol (CHP). Takihana owned the Cisitalia before Ohtomi.

CHP seized the car from a repair shop. Mr. Lawrence provided evidence to the CHP that the car was not stolen, but that Ohtomi failed to pay the full amount due to Takihana.

CHP was unable to determine the true owner after a four-month investigation. CHP determined that the dispute was essentially civil in nature but refused to return the car without a court order.

CHP cannot demonstrate that the car was stolen or embezzled and must return it to Brandon Lawrence under the principles of due process.

Lawrence v. Superior Court, (2018) https://cases.justia.com/california/court-of-appeal/2018-a152513.pdf?ts=1521572517

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

$18 million of counterfeit vintage wine. Insurance cover it? | Doyle v. Fireman’s Fund Ins. Co.

August 28, 2018 by LAWSTACHE

This case is about counterfeit wine and apparently Shakespeare. The first line of the opinion reads, “O thou invisible spirit of wine, if thou hast no name to be known by, let us call thee devil!” (Shakespeare, Othello, act II, scene 3.).

David Doyle is a collector of rare and vintage wine. In 2007, he obtained a “Valuable Possessions” insurance policy from Fireman’s Fund Insurance Company, with a blanket policy limit of $19 million. During the eight years that Doyle was insured under the policy, he purchased close to $18 million of purportedly rare, vintage wine from Rudy Kurniawan. Unbeknownst to Doyle, Kurniawan had apparently been filling empty wine bottles with his own wine blend and had been affixing counterfeit labels to the bottles. In 2013, Kurniawan was convicted of fraud and was sent to prison for 10 years.

Doyle filed a claim seeking reimbursement from Fireman’s Fund “for the losses he sustained” due to Kurniawan’s fraud. The insurance company denied the claim.

The insurance policy in this case covered “direct and accidental loss or damage to covered property.” Firearm’s Fund argues that no “loss or damage to covered property” occurred; that is, “the wine is in the exact same condition now that it was in when [Doyle] first insured it.”

Based on the nature of property insurance and the plain language of the policy, the Appellate Court agreed with Fireman’s Fund; Doyle indeed suffered a financial loss, but there was no loss to his covered property. The threshold requirement for recovery under a contract of property insurance is that the insured property has sustained physical loss or damage. When it comes to property insurance, diminution in value is not a covered peril, it is a measure of a loss.

The last sentence of the opinion once again quotes Shakespeare. “Finally, we can merely offereth to Doyle this small piece of wisdom from the Bard of Avon: ‘The robbed that smiles steals something from the thief.’ (Shakespeare, Othello, act I, scene 3.)” A better advice would be to call your attorney to review your insurance policies and its coverage.

Full opinion: https://cases.justia.com/california/court-of-appeal/2018-g054197.pdf?ts=1520445714

https://www.goodfood.com.au/drinks/rockpools-david-doyle-stung-by-wine-fraudster-20140905-3ezn2

https://www.therealreview.com/tag/david-doyle/

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

Can 20 seconds of questioning unlawfully extend a traffic stop? | United States v. Lujan

August 23, 2018 by LAWSTACHE

On October 25, 2017, a police officer was traveling in the left lane on Interstate 24 in Winchester, Tennessee. He noticed a large passenger van in the right lane with a paper temporary license tag. The officer could not make out the state of origin and the temporary tag number because the paper was inside a ziplock bag.

The officer pulled over the vehicle. What was clear is that the officer could read the temporary tag and he determined it had the required information on it when he walked up to the van and prior to speaking with the driver.

The officer then asked the defendant a series of questions over a couple of minutes. He asked where the defendant was headed, where he was coming from, asked for defendant’s identification, asked why the defendant took the exit, and asked why the defendant was nervous.

The officer then asked if the people in the van were legal and the defendant said, “Yes.” The officer asked the same question again, and the defendant again said, “Yes.” Officer said, “Why are you nervous, then?” The defendant then admitted he knew the occupants were “illegal.”

In Rodriguez the Supreme Court held “that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” However, Rodriguez is not focused on vaguely assessing time, measuring it against arbitrary notions of what constitutes promptness. Rather, Rodriguez requires that courts look at the officer’s actions and determine whether he inevitably prolonged the stop beyond its original mission.

The Court recognized that the line questioning was brief, lasting twenty seconds at most. And although the interrogation unfolded quickly, it “measurably extend[ed]” the defendant’s stop. In engaging in this line of inquiry, the officer detoured from his traffic mission and “embarked on another sustained course of the investigation.” The unrelated questioning made up the “bulk” of what should have otherwise been only a brief detention.

The Court found that the officer measurably extended his stop by engaging in unrelated questioning (even if for only 20 seconds).

Read the full opinion here:

https://z1qd30.p3cdn1.secureserver.net/wp-content/uploads/2018/08/UNITED-STATES-OF-AMERICA-v-JESUS-ANDRES-LUJAN-JR.pdf

http://www.chattanoogan.com/2017/10/28/357486/16-Smuggled-Hispanics-Found-In-Van.aspx

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

Are K9 searches ever allowed during a traffic stop? | ILLINOIS v. CABALLES.

August 21, 2018 by LAWSTACHE

After an Illinois state trooper stopped respondent for speeding and radioed in, a second trooper, overhearing the transmission, drove to the scene with his narcotics-detection dog and walked the dog around respondent’s car while the first trooper wrote respondent a warning ticket. When the dog alerted at respondent’s trunk, the officers searched the trunk, found marijuana, and arrested respondent. At respondent’s drug trial, the court denied his motion to suppress the seized evidence, holding, inter alia, that the dog’s alerting provided sufficient probable cause to conduct the search. Respondent was convicted, but the Illinois Supreme Court reversed, finding that because there were no specific and articulable facts to suggest drug activity, use of the dog unjustifiably enlarged a routine traffic stop into a drug investigation.

Supreme Court Held: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

ILLINOIS v. CABALLES. (2005) Read the full opinion at https://www.supremecourt.gov/opinions/04pdf/03-923.pdf

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

How long can police hold you after issuing a ticket? | Prolonged Police Stop

August 16, 2018 by LAWSTACHE

In 2012, Dennys Rodriguez was stopped by a police officer on a highway near Waterloo, Nebraska, after the officer observed him swerve out of his lane of traffic. He veered slowly onto the shoulder for two-three seconds and then jerked the car back into the lane. After being pulled over, he explained that he was trying to avoid a pothole.

After several minutes, the officer issued a written warning to Mr. Rodriguez. The officer testified, at that point, Rodriguez and his passenger “had all their documents back and a copy of the written warning. I got all the reason[s] for the stop out of the way[,] . . . took care of all the business.” The officer then asked to walk the dog around the car. Rodriguez did not permit. The officer called for backup.

After seven minutes, the backup arrived. The officer then walked the dog around the car. Rodriguez says that the prolonged stop was unconstitutional. The Supreme Court agrees. Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission”—to address the traffic violation that warranted the stop, and attend to related safety concerns. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.

Full opinion at: Rodriguez v. United States, 575 U.S. ___ (2015), https://www.supremecourt.gov/opinions/14pdf/13-9972_p8k0.pdf

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

NEW trick getting your traffic ticket dismissed! Move the Courthouse!

August 15, 2018 by LAWSTACHE

Everyone knows the oldest trick in the book when it comes to traffic court. Get your case continued a number of times in hopes that the police officer does not show up. Amir v. Superior Court teaches us a NEW trick and we get it as a RIGHT.

If you get a ticket far away from your home, ask to have the case heard in the county seat. The Appellate Court holds that the traffic court does NOT have discretion but rather HAS to permit the move. In this case, Mr. Amir receives a speeding ticket in Lancaster, California. He asks the court to move his case to downtown Los Angeles. His request gets denied. But YOURS won’t be denied as the Appellate Court now decided the ambiguity in the language of the statute (if there was any, to begin with).

Veh. Code Section 40502 states that the case can be heard in the court (a) “nearest or most accessible with reference to the place where the arrest is made [OR] (b) Upon demand of the person arrested, … at the county seat of the county in which the offense is alleged to have been committed [if that location is closer to his/her work or resdience].”

The traffic court and police argued that it would be too expensive and inconvenient to the citing agency to travel to the county seat. But the statute is silent as to such considerations, requiring simply that, once criteria regarding proximity to work or residence are satisfied, a request MUST be granted “upon demand”

Read the full opinion here: http://www.courts.ca.gov/opinions/documents/JAD18-06.PDF

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

Can’t sue a college for volleyball injury? | Excursion Immunity Does Not Apply

August 13, 2018 by LAWSTACHE

Plaintiff Mary Anselmo attended Los Angeles Pierce College(Pierce College). On March 4, 2016, Anselmo traveled to Grossmont College as a member of the Pierce College Women’s Volleyball team to participate in an intercollegiate beach volleyball
tournament. Anselmo alleged she was injured during one of the tournament games when she dove into the sand and her knee struck a rock in the sand.

Anselmo alleged only one cause of action for a dangerous condition of public property. Grossmont demurred, asserting the field trips and excursions immunity provided in section 55220 of title 5 of the California Code of Regulations. “All persons making the field trip or excursion shall be deemed to have waived all claims against the district or the State of California for injury, accident, illness, or death occurring during or by reason of the field trip or excursion.”

The narrow question the Ninth Circuit faced was whether this immunity extends to an injury sustained during an interscholastic athletic competition by a member of the visiting team caused by the negligence of the home team’s district.

Holding: Grossmont, as the receiving or hosting team, had the
responsibility to provide a safe beach volleyball court, in accordance with any applicable regulations. Field trip immunity under section 55220 does not extend to Grossmont as the host of an interscholastic athletic competition for injuries suffered by a player on a visiting team merely because her team traveled to the site of the competition.

Full Opinion: http://www.courts.ca.gov/opinions/documents/D072549.PDF

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

Assumption Risk in Snowboarding and Skiing | Mammoth Mountain

August 9, 2018 by LAWSTACHE

Kathleen Willhide-Michiulis was involved in a tragic snowboarding accident at Mammoth Mountain Ski Area. On her last run of the day, she collided with a snowcat pulling a snow-grooming tiller and got caught in the tiller. The accident resulted in the amputation of her left leg, several skull fractures, and facial lacerations, among other serious injuries.

A snowcat is a large snow-grooming vehicle — 30 feet long and 18 feet wide. It has five wheels on each side of the vehicle that are enclosed in a track. In front of the snowcat is a plow extending the width of the snowcat. In back is a 20-foot wide trailer containing a tiller. A tiller “spins at a high [speed] br[e]aking up the snow and slightly warming it and allowing it to refreeze in a firm skiable surface.” Mammoth strives not to have snowcats operating when the resort is open to the public; however, it may be necessary at times.

It is for the court to decide whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.

Although snowcats and snow-grooming tillers are capable of causing catastrophic injury, as evidenced by Willhide-Michiulis’s experience, we conclude this equipment is an inherent part of the sport of snowboarding and the way in which the snowcat was operated in this case did not rise to the level of gross negligence.

Full Opinion: http://www.courts.ca.gov/opinions/documents/C082306.PDF

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

The Confession Tapes | Miranda Warning | San Diego Case

August 7, 2018August 6, 2018 by LAWSTACHE

It is often difficult to draw the line between good police work and excessive pressure in getting a confession. This case is made for an episode of The Confession Tapes.

A 73-year-old man with no formal education gets convinced that he molested a four-year-old girl. Police officers lie to him that his DNA was found on the girl’s body and that the girl passed a lie detector. Both never actually happened. Officers told him that he was not being arrested and they were only there to get a statement for the judge. They minimize his alleged conduct. They tell him what to say to get out of the situation, and he eventually adopts those statements.

The defendant, Mr. Torres, goes to trial and loses. There is no evidence against him except for the recorded confession. The girl says that she does not understand the difference between “truth and lie” at trial. There is also some suggestion that the story came from her mother.

The Appellate Court analyzed if Miranda warning was supposed to be given by the police before the interrogation. Miranda applied during custodial interrogations. They analyze if Mr. Torrest was in fact in custody. He was. His defense attorney is deemed ineffective for failing to file a Miranda motion or object at trial to the confession tape. It’s unlikely that he would have been convicted without that taped confession.

Considering that so many people talk to the police even after being Mirandized, what do we think of police officer’s pressure techniques in getting a confession?

Full Opinion at http://www.courts.ca.gov/opinions/documents/D072610.PDF

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts