Archive for the ‘Fifth Amendment’ Category

Public Record of Cases Heard in Edgartown District Court – The Vineyard Gazette – Martha’s Vineyard News

The following cases were heard in Edgartown district court.

March 2

Belmiro Baptista, 65, of Pawtucket, R.I., will have Oct. 7 charge in Gosnold of misc. statutory violation (possessing undersized tautaug) dismissed if $1,000 in costs paid in six months. Charge of misc. statutory violation (possessing sea bass in closed season) dismissed upon request of commonwealth. According to state environmental police report, patrol boat allegedly found four black sea bass during closed season and 19 undersized tautaug aboard vessel during patrol of Buzzards Bay and Vineyard Sound.

Eudes R. Deoliveira, 55, of Edgartown, had Feb. 21 charges in Edgartown of assault and battery with dangerous weapon and assault with dangerous weapon dismissed upon request of commonwealth, alleged victim having fifth amendment issue. In separate case, arraigned on Feb. 4 charges in Vineyard Haven of negligent operation of motor vehicle, operating motor vehicle with license suspended, and marked lanes violation.

Maria Dirino, 50, of Vineyard Haven, had June 2015 charge in Oak Bluffs of leaving the scene of property damage dismissed upon success of motion to dismiss.

Jonathan A. Larkin, 31, of Aquinnah, had Feb. 21 charge in Edgartown of assault with dangerous weapon dismissed upon request of commonwealth, alleged victim having fifth amendment issue.

Vinicio J. Medeiros, 29, of Vineyard Haven, will have November 2007 charge in Edgartown of negligent operation of a motor vehicle dismissed if $300 in court costs paid forthwith. Charge of unlicensed operation of motor vehicle dismissed upon request of commonwealth and found not responsible on failure to wear seat belt.

Zilmara Moraes, 38, of Vineyard Haven, arraigned on March 1 charge in Edgartown of assault and battery on family/household member. Pretrial hearing scheduled for May 4.

Breno E. Silva, 31, of Oak Bluffs, found not guilty in bench trial on charge of drunken driving, second offense. Found guilty on charge of negligent operation of motor vehicle, sentenced to 90 days in house of correction, suspended 18 months and placed on probation for 18 months. Ordered to pay $300 in fees and $50 monthly probation services fee and remain alcohol free with screens, if successful for first six months may be without screens. Found responsible on charges of marked lanes violation and failure to stop/yield, ordered to pay $200 in fines/assessments.

March 3

Mia Church, 48, of Ingram, Tex., admitted to sufficient facts on July 3 charge in Edgartown of drunken driving, continued without finding for one year and ordered to pay $600 in fees and $65 monthly probation services fee, complete 24-day driver alcohol education fee, and lose license for 45 days. Charge of negligent operation of motor vehicle dismissed upon request of commonwealth and found not responsible on marked lanes violation, possessing open container of alcohol in motor vehicle, and motor vehicle lights violation.

Nicholas Graham, 27, of Vineyard Haven, had Oct. 8 charge in Vineyard Haven of criminal harassment dismissed upon successful motion to dismiss.

Carrie Natusch, 42, of Vineyard Haven, arraigned on Jan. 21 charges in Edgartown of negligent operation of motor vehicle, leaving scene of property damage, failure to stop/yield, no inspection/sticker, and trespassing with motor vehicle. According to police report filed in court charges stem from alleged accident at intersection of Barnes Road and Edgartown-West Tisbury Road in which defendant allegedly went through stop sign and drove about 100 feet into the woods; vehicle allegedly found later at a private property. Pretrial hearing scheduled for April 7.

Denis E. Toomey, 32, of Walpole, pleaded guilty on Nov. 26 charges in Edgartown of larceny from a building and breaking and entering a building in nighttime for a felony, sentenced to two years in house of correction, suspended two years and placed on probation for two years. Ordered to submit DNA, pay $90 victim/witness assessment fee, and pay $1,700 in restitution out of court. According to police report allegedly broke into Suka in Edgartown and stole about $1,300 worth of items.

Nicole Wiggins, 46, of Hyde Park, admitted to sufficient facts on July 9 charge in Oak Bluffs of negligent operation of a motor vehicle, continued without finding for six months and ordered to pay $300 in fees and $50 monthly probation services fee. Charge of drunken driving, second offense dismissed upon request of commonwealth and found not responsible on marked lanes violation.

March 6

James W. Hart, 21, of Vineyard Haven, admitted sufficient facts on Dec. 26 charge in Vineyard Haven of assault and battery on a police officer, continued without finding for one year, ordered to pay $50 victim/witness assessment fee and $65 monthly probation services fee, remain drug and alcohol free with screens, and attend and complete New Paths and engage in counseling as recommended until professionally discharged.

David C. Hawkins, 55, of Vineyard Haven, arraigned on March 4 charges in Vineyard Haven of disorderly conduct, resisting arrest, and two counts of threat to commit a crime. Pretrial hearing scheduled for April 21.

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Public Record of Cases Heard in Edgartown District Court - The Vineyard Gazette - Martha's Vineyard News

A Parallel Universe: Navigating Discovery in Concurrent Civil and Criminal Proceedings – JD Supra (press release)

As criminal law has expanded into almost every sector of the American economy, one byproduct is the rise of "parallel proceedings"lawsuits that proceed concurrently in criminal and civil court based on largely the same facts. Often times, the government is a party to both proceedings. This is most common in False Claims Act cases or in securities enforcement proceedings. But that is not always the case. Civil litigation, especially cases involving claims of fraud and deceit, may also attract the government's attention (sometimes in response to a request by one of the parties). In those cases, at least one of the parties will be confronted with the difficult task of navigating the two proceedings without doing violence to the client's interest in either.

The discovery process typically presents the most treacherous waters for the lawyers tasked with handling parallel proceedings. Criminal and civil practitioners who rarely venture over to the "other side" may forget or be unaware of the dramatic differences in a defendant's ability to request and obtain evidence when the defendant is the subject of an indictment instead of a civil complaint. This article explores some of those differences in the discovery contextthough litigants who find themselves involved in parallel proceedings will quickly find that differences in discovery are only one of the many factors that must be carefully considered as part of an overall litigation strategy.

United States v. Rand and Federal Discovery

A helpful case study of the different tools available to litigants in the civil and criminal context is the Fourth Circuit's recent decision in United States v. Rand. The government began investigating Michael T. Rand in 2007 in relation to alleged mortgage fraud that occurred while he was acting as chief accounting officer at Beazer Homes USA, Inc. ("Beazer"). In 2009, the SEC brought charges against Rand in a civil, regulatory proceeding on allegations that he had conducted a multi-year fraudulent accounting scheme. Then, in 2010, the government charged Rand criminally with accounting fraud and with obstructing the investigation into Beazer's mortgage practices. Before his trials, Rand sought leave of court to issue subpoenas pursuant to Federal Rule of Criminal Procedure 17(c) to obtain information regarding, among other things, Beazer's accounting systems. Rand's subpoena for documents to Beazer asked for "accounting entries, budgets, budget entries, and financial reports for seven categories of reserve accounts over an eight-year period (the timeframe of the alleged conspiracy)." Rand sought this information to bolster his defense of his accounting practices. The district court denied Rand's requests.

On appeal, the Fourth Circuit examined Rule 17(c) and held that the rule is "not intended to provide a means of pretrial discovery." Instead, the purpose of the rule is to expedite the trial by providing time and place before trial for the inspection of subpoenaed materials. Although requests like those contained in Rand's proposed subpoena would be considered commonplace in civil litigation, the Fourth Circuit found this request to be too broad under the Federal Rules of Criminal Procedure, comparing it to a "fishing expedition."

Criminal vs. Civil Discovery

The court's assessment highlights the differences in discovery in criminal and civil proceedings. Rand's options for discovery were more limited than they would have been in a civil case, as illustrated by the following chart listing the discovery tools available to criminal and civil litigants:

The Civil Side Methods for Obtaining Discovery under the Federal Rules of Civil Procedure

The Criminal Side Methods for Obtaining Discovery under the Federal Rules of Criminal Procedure

Rule 26(b)(1) permits discovery of "any non-privileged matter relevant to any party's claim or defense."

Rule 16 permits discovery, upon the defendant's request, of the defendant's statements, criminal record, and certain documents and tangible evidence the government intends to use in its case-in-chief at trial. Once the government has complied, Rule 16 triggers reciprocal obligations on the defendant's part.

Rule 27 Depositions to perpetuate testimony before an action is filed

Rule 15 Depositions are not allowed by right. Upon a party's motion, the court may allow oral depositions "to preserve testimony for trial" if there are "exceptional circumstances" and it is "in the interest of justice."

Rule 30 Depositions by oral examination

Rule 31 Depositions by written questions

The Criminal Rules do not provide a mechanism to require the opposing party to prepare written responses to questions. Accordingly, this method is not available to force the opposing party to take positions or forecast strategy.

Rule 33 Interrogatories to parties

Rule 36 Requests for admission

Rule 34 Requests for production of documents

Rule 16 The defendant has to make a request to trigger this Rule, which then creates reciprocal obligations to produce pre-existing documents that fit into broad categories articulated in the rule.

Brady v. Maryland, 373 U.S. 83 (1963), established that the government must turn over evidence that is exculpatory, or might exonerate the defendant. This includes evidence that might prove the defendant's innocence or reduce his or her sentence, as well as evidence that impeaches or discredits the government's case.

Giglio v. United States, 405 U.S. 150 (1972), provides that the government must disclose information relating to any deals that witnesses have received in exchange for their cooperation.

The Jencks Act, 18 U.S.C. 3500, requires the government to produce written statements and reports of its witnesses. This law only requires the production of Jencks material after the witness has testified, although the government frequently delivers the materials pre-trial in the interest of efficiency.

Rule 45 Subpoenas to third parties, which may command attendance at a deposition or command a party to produce or permit inspection of documents, electronically stored information, or tangible things.

Rule 17 Does not provide the defendant with a broad-reaching subpoena power. The court authorizes the issuance of a subpoena only if the terms meet the high standard articulated in United States v. Nixon: (1) that the documents are evidentiary and relevant; (2) that [the documents] are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that [the subpoenaing] party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general fishing expedition.

By contrast, the government's ability to subpoena third parties through the power of the grand jury is almost unlimited.

As the chart makes clear, a civil litigant has far more ability to obtain information from the opposing side and third parties through a wide variety of tools. While the 2015 amendments to the Federal Rules of Civil Procedure impose a "proportionality" requirement, the civil rules remain designed to help the parties fully flesh out their theories and collect the evidence necessary to support them. It is also critical to remember that civil litigation can, and routinely is, resolved short of trial by jury based on the evidence collected through the discovery process and presented to the court in support of summary judgment. There is no analogous vehicle for challenging a criminal indictment.

The exchange of information in criminal cases, by contrast, is designed to expedite the decision to seek a trial of the case, or negotiate a plea. The government's obligation to produce information obtained during the course of the investigation is fairly broad, though the timing of the disclosures can often be a source of dispute since there are few firm deadlines established by the criminal rules. However, nothing obligates the government to investigate potential defenses to a charge. As such, the decision to accept a plea offer is made based not on a thorough review of all the available evidence, but on an evaluation of the evidence the government intends to present at trial. To the extent an affirmative defense rests on facts not collected during the government's investigation, the burden falls to the defendant to use the limited criminal discovery tools in his arsenal to collect potentially exonerating evidence.

This is precisely where Mr. Rand found himself. Rand's subpoena requests to Beazer would have been routine in a civil case. But because Rand was a defendant in a criminal matter, his ability to obtain such information from Beazer was significantly, if not entirely, diminished. Rand may have utilized civil discovery tools in the SEC's case against him, but that civil suit settled prior to the resolution of the criminal matter. While Rand would have had the opportunity to serve discovery and subpoena third parties in the civil matter, whether or not he would have elected to do so raises a number of critical strategic and legal questions that all litigants in parallel proceedings must consider.

Discovery Issues in Parallel Proceedings

Access to Discovery

For a defendant in a criminal case, the expansive discovery power in a civil action might seem to be an attractive way to get additional information. However, there are downsides to attempting to use a parallel civil case to obtain discovery that would also be useful for a criminal defense. First, courts are wary of criminal defendants skirting the criminal rules by using civil discovery tools. Despite the broad latitude civil litigants generally enjoy in conducting discovery, the court may be more willing to quash or limit requests geared towards the criminal defense, particularly if the government objects.

Additionally, the litigant must also consider that the same discovery tools used to obtain information may be used against him or her. While the discovery rules (especially the civil rules) often allow for broad investigation of the opposing side's case, they simultaneously create broad exposure to respond to civil discovery requests, which can multiply costs and create self-incrimination issues. These considerations become particularly complicated when the opposing civil litigant is a government entity. Federal agencies involved in civil enforcement actions work closely with the Department of Justice, and information obtained in these civil actions can be used in a later criminal proceeding.

Along the same lines, civil litigants also must exercise caution regarding the discoverability of materials provided to the government if the parties are in a cooperative posture. Regulatory agencies provide strong incentives for companies and individuals to cooperate in civil and administrative regulations. However, statements and documents provided in these civil proceedings are likely to be shared among agencies and may form the basis for a subsequent criminal prosecution.

Fifth Amendment Implications

The Fifth Amendments protection against self-incrimination applies to individuals in both civil and criminal proceedings. However, the application of this right differs in each arena. A criminal defendants decision to invoke his or her Fifth Amendment rights may not be used against him or her. Because the government cannot force a defendant to make pre-trial statements or testify at trial, a fact-finder is unlikely to even hear a defendant invoke his or her right against self-incrimination.

By contrast, in a civil setting, a party has no ability to assert a blanket invocation of his or her Fifth Amendment rights. Instead, these rights must be asserted on a question-by-question basis in response to written discovery requests, deposition questions, or even examination at trial. Further, unlike in the criminal setting, the invocation can be used against the individual who makes it. If an individual invokes his or her Fifth Amendment privilege against self-incrimination in a civil proceeding, the opposing party is entitled to an instruction to the fact-finder that it may draw an adverse inference from the invocation of Fifth Amendment rightsin other words, the fact-finder may infer that the invoking party is guilty of some wrongdoing.

Moreover, business entities have no testimonial protection under the Fifth Amendment, and cannot assert the privilege on behalf of individual employees. The Fifth Amendment does protect a witness from having to produce documents if doing so would be testimonial in nature by revealing the witness's mental processes. However, the privilege does not apply to corporate records or documents kept pursuant to law.

Stays of Litigation

Due to these complications, parties frequently seek stays of civil litigation pending the resolution of the related criminal matter. Criminal defendants might seek a stay to avoid making damaging admissions in the civil proceeding, or to avoid the application of the adverse inference. The government might wish to stay the civil litigation to prevent the defendant from using civil discovery to prepare his or her defenses, particularly since the defendants Fifth Amendment rights prevent the government from using civil discovery similarly. While requests for stays technically are not granted as a matter of course, courts generally will stay the civil litigation if one or more parties can demonstrate true risk of injury arising from the concurrent proceedings.

Conclusion

Successfully litigating through parallel proceedings is an endeavor fraught with peril. Litigants involved in concurring civil and criminal matters, like the defendant in Rand, should seek the advice of counsel skilled in navigating parallel proceedings to avoid potential discovery pitfalls.

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A Parallel Universe: Navigating Discovery in Concurrent Civil and Criminal Proceedings - JD Supra (press release)

Attorney general: Hawaii first to challenge revised travel ban – KLFY


KLFY
Attorney general: Hawaii first to challenge revised travel ban
KLFY
Defendants have violated the equal protection, substantive due process, and procedural due process guarantees of the Fifth Amendment. Sections 2 and 6 of the March 6, 2017 Executive Order violate the Immigration and Nationality Act by discriminating on ...

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Attorney general: Hawaii first to challenge revised travel ban - KLFY

Daniela Vargas embodies the casual cruelty of Trump’s war on … – Slate Magazine

Daniela Vargas speaks at news conference on March 1 about her deportation fears.

ABC News

Last week, officers from Immigration and Customs Enforcement arrested 22-year-old Dreamer Daniela Vargas, a Mississippi resident who has been living in the United States since she was 7. But for a temporary lapse in her status under the Deferred Action for Childhood Arrivals immigration policy, Vargas has been everything America says it wants in an immigrant: well-educated, ambitious, law-abiding, and patriotic. It should surprise nobody that she is about to be deported.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Vargas was taken into ICE custody just moments after she publicly criticized the Trump administrations immigration raids, a move that makes it appear as if she was swept up by the immigration agency on account of what she said to the press. ICE agents have confirmed that Vargas was taken into custody during a targeted immigration enforcement action. One may well wonder what was being targeted in that action, if not her speech. In part because her arrest seemed so deliberately linked to her decision to speak out, her lawyers, the Southern Poverty Law Center, and other civil rights groups filed a petition in the U.S. District Court for the Western District of Louisiana on Monday to stop her deportation. Her attorneys are claiming that Vargas arrest amounts to retaliation against someone exercising her First Amendment rights.

The petition explains that Vargas graduated high school in 2013 with honors and that she has attended East Central Community College and the University of Southern Mississippi, where she has studied to be a math teacher. In addition to her pending DACA renewal, she also has a petition pending for a U nonimmigrant visa, which is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

Vargas was at home in February when her brother and father were taken into ICE custody. Having lost her DACA status last Novemberher attorneys say she could not afford the $495 renewal fee at the timeVargas had reapplied last month. When ICE agents raided Vargas home on Feb. 15, they led her father and brother away in handcuffs. According to her petition, Vargas told the agents she had been granted DACA status. She then went into her house, locked the door, and hid in a closet. The ICE agents returned with a search warrant. The petition alleges they broke down the front door and that an agent pointed a gun at Vargas when she emerged from the closet. Before they left the house, Vargas was allegedly told that they knew her DACA had lapsed, but that they were giving her a hall pass. Vargas then left the house and spoke to local media , which had gathered outside during the raid.

Vargas hall pass apparently expired a few weeks later. On March 1, she spoke at a press conference, describing the raid on her home and the need for a pathway to citizenship. Moments later, she was pulled out of her friends car by ICE agents and arrested. According to her petition, one of the ICE agents who had been at the raid at her home said, Remember me? You know who we are; you know why were here, and youre under arrest for being an illegal immigrant. Vargas has been in an ICE detention facility ever since. Her petition concludes that she is now at imminent risk of deportation to Argentinaa country she left in 2001 at age seven, that she scarcely knows, and to which she fears returning.

Nobody knows whether DACA is at risk under the Trump regime.

ICE originally stated that Vargas case would be heard before an immigration judge. The Department of Homeland Security has apparently gone back on its word; it is now taking the position that Vargas is not entitled to contest her deportation as she entered this country in 2001 through the Visa Waiver Program. The statute establishing the VWP requires any noncitizen entering the U.S. to waive his or her right to contest, other than on the basis of an application for asylum, any action for removal of the alien. Her lawyers argue that detaining and deporting Vargas without a hearing violates her Fifth Amendment due process rights, because at age 7 she could not have knowingly and voluntarily waived her right to seek a hearing to contest deportation.

Vargas speech claims have broad implications not just for DACA recipients but for whistleblowers and immigration activists around the country. Her petition cites cases from the Fourth and Ninth Circuits, holding that everyone in the United States, including noncitizens, enjoys the right to peaceful expression of views through public demonstration. Vargas lawyers argue that the First Amendment prevents law enforcement officials from retaliating against speakers by targeting, detaining, arresting, and/or seeking to deport an individual engaging in protected speech where the officials actions caused [the speaker] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity and when those officials were substantially motivated against the plaintiffs exercise of constitutionally protected conduct.

There can be no dispute that Vargas remarks about the ICE raid on her family home represent the kind of core political speech the First Amendment is designed to protect. Its also beyond dispute that Vargas had been permitted to stay in the country only days before and that the speech seems to have triggered a change in ICE policy. The Trump immigration effort, we were told, was supposed to consist of stepped-up deportations of criminalsnot lawful political speakers. Vargas did nothing to warrant deportation without due process.

The other problem, as her lawyers contend, is that nobody knows whether DACA is at risk under the new regime. DACA has afforded protections to 750,000 immigrants since the Obama administration launched it in 2012. In the weeks since his inauguration, Trump has given wildly conflicting messages about whether it will continue to be in effect. If Vargas is now at risk because of a brief technicality around her Dreamer status, its hardly clear that DACA still has real force. And if Dreamers can be removed for little more than giving a political speech, they are now as much at risk as other noncriminals in Trumps America.

The casual cruelty of Trumps war on lawful immigrants depends on the complicity of citizens, and the chilling of both protest and media watchdogging. In addition to our collective vigilance, the solution for the cruelty around the action against Daniela Vargas will be the same as the solution to Trumps original, vicious travel ban: lawyers. Lots of them. The Southern Poverty Law Center announced Tuesday that its launching a new project to ensure that detained immigrants will have access to free lawyers. We are going to need them.

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Daniela Vargas embodies the casual cruelty of Trump's war on ... - Slate Magazine

Burns files bill to protect property owners – Cleburne Times-Review

The Fifth Amendment grants the federal government the right to exercise its power of eminent domain the power to take private property for public use by a state, municipality, private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.

State Rep. DeWayne Burns, R-Cleburne, filed House Bill 2684 on Thursday, which aims to level the playing field for property owners when they face off with government entities and corporations with infinitely greater resources.

Burns said it was his personal experience with eminent domain that prompted him to file the bill.

I know first hand the burden that the eminent domain process places on landowners, he said. You climb off a tractor and there is a person there telling you they are there to negotiate a fair price for land you didnt want to sell and at the end of the day if you dont want to sell it, it will be taken from you.

Burns said his family owns property in the southwest part of Johnson County and several years ago when the Barnett shale was really active, he and many other landowners in the area found themselves in negotiations for eminent domain.

We had multiple pipeline companies that were wanting to come across our property, he said. Some of the companies were easy to deal with and some were not. Sometimes we felt threatened by them. I felt like landowners at the time had no information and nowhere to turn and were dealing from a position of not knowing what is going on.

That is why I am fighting to ensure property owners are in the best possible position when faced with the taking of their property. In Texas, private property rights are a sacred principle, and I believe this legislation will help preserve that right without adversely affecting the businesses that are helping to grow our economy.

Malachi Solomon Tomlinson posted on the Times-Review Facebook page that he is in favor of the proposed bill.

In theory, Burns plan would give people more power over their own property against corporations, he said. Sad that we had to get to this point to make a bill when the constitution and the clause already give those rights. But what about when the state turns around and finds loopholes to seize land or work on it like they often do highways or roads? Still powerless.

Jennifer Hamblin said she thinks HB 2684 might not be effective.

We never truly own [our property] anyway even after the loan is paid off you still pay taxes, she said. You dont pay taxes they take your property either way. The government will take it like they do everything else. Plus they only give you barely what it is worth which if you try to find the same amount of property it costs double what you already had. Not very fair.

Burns said Texas is a growing state with a strong appetite for new development which has put a target on Texas property, leaving landowners searching for a fair offer and process in eminent domain cases.

The new legislation will provide for the reimbursement of landowner expenses if they are sued by a condemner and are ultimately awarded significantly more than the final offer, he said, It will also spell out the use and restriction details required within a condemners bona fide offer to ensure the entity will properly use and maintain the property.

Burns legislation was met with approval from individuals and organization who advocate on behalf of property owners across Texas.

This new legislation is a tremendous step toward fixing a faulty process that places landowners at a huge disadvantage when navigating the condemnation process, said Richard Thorpe, president of the Texas and Southwestern Cattle Raisers Association. We are grateful to have strong allies like Burns who are committed to defending the rights of private landowners and preserving our future.

HB 2684 will level the playing field

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Burns files bill to protect property owners - Cleburne Times-Review