On November 17, 2009 the Court of Appeal, Fourth Appellate District, Division One in San Diego released its decision in the case of   People v.  Nathan Archer (D052978) invalidating his conviction for the personal possession of marijuana.  Attorney Russell S. Babcock represents Mr. Archer and argued before the Court of Appeal.  The opinion was authored by Justice Patricia Benke

In the decision, the Court of Appeal agreed with Mr. Babcock’s arguments and the concession by the Attorney General that the part of the Medical Marijuana Law that imposes a limit on the number of plants  or quantity of marijuana that can be possessed by a medical marijuana patient is unconstitutional.  The California legislature attempted to set a limit of six manture plants and twelve plants in total that can be possessed by a medical marijuana patient.  The language that was approved by the California voters did not contain such limitations.  And at trial, Mr. Archer submitted evidence that often individuals who have various medical conditions require the use of larger quantities of marijuana.

This decision is important because what it means is that the jury should not be instructed that a person is guility of possession of marijuana merely becuase they possessed a certain quantity of the medicine or a certain number of plants.  The question of whether the marijauana is possessed for medical purposes is a question that should be left entirely for the jury.

The irony in this case is that the San Diego probation department has attempted to have Mr. Archer register as a narcotics offender even though it is universally agreed that marijuana is not a narcotic and that Nathan Archer is a valid medical marijuana patient.  Unforutnately, the court upheld his conviction for cultivation of marijuana for distribution finding that the error in instructing the jury on the mandatory limit of plants as to this charge was "harmless".  Mr. Archer and I strongly disagree and have petitioned the California Supreme Court for relief.  The California Supreme court already has a case before it , People v. Kelly, which is very similiar to Mr. Archer’s case, and a decision on Kelly is expected soon.

The District Attorney and the police expect that citizens will follow the law.  Now, they are the law breakers by continuing to harass the owners of legitimate medicial marijuana clinics and even arresting them and charging them.  They have failed to follow the policy of Barack Obama and the White House that legitimate medical marijuana patients and their providers should not be prosecuted even though federal law still remains in conflict with state law.

Shame on San Diego District Attorney Bonnie Dumanis for not following the law she is supposed to follow as District Attorney !  I  urge all of you to contact your state legislators and the office of San Diego District Attorney Dumanis and tell her that you want her to follow the law that was passed by the voters and to stop wasting precious California taxpayer money by prosecuting marijuana related cases.  Also, if you feel strongly enough about this issue, you can support an organization fighting for the rights of medical marijuana patients such as California NORML. (National Organization for the Reform of Marijuana Laws.) 

At the Law Office of Russell Babcock , we will continue to fight for individuals, like Mr. Archer, who are not criminals, but patients,  and who are following the law, unlike the District Attorney.  If you are charged with a marijuana related crime, contact an attorney immediately.  It is quite possible that the charges can be dismissed or reduced depending on the circumstances. 

*** He traducido este articulo a espanol por la importancia que tiene para muchos latinos. Un disculpe por mis errores del espanol !**** 

I urge everyone who is a permanent resident of this country and eligible for citizenship to apply as soon as possible. Residents who marry American citizens may become eligible as early as three years after establishing residency.

Many of my clients are permanent residents, many for more than twenty years. What they often don’t realize is that permanent residency is anything but permanent. Almost any minor criminal offense can serve as the basis for deportation.

I remember Jackie, who was twenty one years old, and had a husband who was a U.S. citizen and three U.S. citizen children. After a minor drug charge, she was deported to Mexico and she didn’t have any family there and she didn’t even speak Spanish !!!

And then there was Aracely. Her boyfriend had marijuana in the vehicle and she didn’t know it was there. When the two were arrested, the police offered to drop all charges against her in exchange for her forfeiting her green card !

It is more expensive than before to become a United States citizen, but it is still the best $600 or so that a permanent resident can spend.Don’t take the chance; apply for U.S. citizenship as soon as possible from the form on the USCIS website or hire a competent immigration attorney.

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Recomendo que todos los residentes permanentes del EEUU que califiquan para ciudania apliquense lo mas rapido posible. Un residente que se case con un norteamericano se puede calificar en tres anos despues de residencia. Y no tenga que renunciar tu ciudadania de origen.

Muchos de mis clientes son residentes permanentes, muchos para mas de veinte anos. Lo que no se daban cuenta a veces is residencia permanente de verdad no es permanente. Casi cualquier delito puede ser suficiente para una deportacion por la vida.

Recuerdo de Jacki que tenia veinte anos y que tenia una esposa que fue una ciudano del EEUU and tres ninos ciudanos. Despues de sufrir un cargo criminal pequeno para drogas, se deportaron a ella por vida a Mexico, un lugar donde no tenia familia, ni siquiera podria hablar el espanol ella.

Y tambien habia Araceli. Su novio tenia marijuana en el carro y ella no sabia de eso. Cuando se agarro la pareja, la policia ofrecio renunciar los cargos contra ella pero por renuncar su residencia permanente aqui.

Es mas caro que antes de aplicar para la ciudania, pero todavia es el mejor inverso de mas o menos $600 para un residente permanente. No toma chance con tu vida ! Aplicase para la ciudania lo mas rapido posible desde los documentos en el red del USCIS or consigue abogado de migracion.

When a person is arrested, usually the first thought is how to get out of jail. Bail, even in a routine felony cases, may be $150,000 or more. That is because the bail of an accused is determined at first not by the seriousness of the charges, but by a bail schedule adopted by the courts. I had a client recently who was accused of discharging a fire extinguisher in a hotel and who had his bail set at $175,000 even though no one was injured and he had no prior criminal record.  No criminal charges have been filed to date.

While none us want to stay in jail, you should often resist the temptation to immediately post bail for several reasons. First, often criminal charges will not be filed, and if you have posted bail, your money is gone. The standard premium on a bail bond is 8-10% so in the case of my client in the hotel, if he had posted bail, he would have immediately lost at least $15,000.

Second, often when clients reach me , they have often exhausted all of their funds on bail. The bondsman essentially makes his money by sitting in an easy chair and writing nothing more than a financial contract. In contrast, your attorney will work for you by making court appearances and fighting to get you the best result possible. Is it better to post a bond to be free for a few weeks and have no money to hire a good attorney or to win your case and not have to return to jail at all?

Finally, what the bondsman won’t tell you is that many times the court will raise your bail after you have already posted it. I once had a taxi driver client who was accused of rape. By the time he hired me, he had already posted $25,000. The prosecutor added three more alleged victims to the complaint at the next court hearing and they raised his bail to $50,000. Again, against my advice, he posted the additional bail. Finally, after the preliminary hearing, his bail was raised to $100,000. He had no more money so he remained in jail.

Remember that a good attorney can often reduce your bail, especially when you have a minimal criminal record. I had a client that posted $500,000 bail for shooting his nephew on Christmas day. Because of his lack of criminal record and the circumstances of his case, I probably could have had his bail reduced to 100,000 or less.  Any attorney Samuel Spital, who is of counsel of my firm, once achieved a reduction in bail from $1,000,000 to $1,000.  While every case is different, in many cases we are able to achieve a very substantial bail reduction for a client.

There are times that a bail bond is helpful for instance when a person is arrested on low bail, such as a drunk driving charge and doesn’t want to spend a weekend in the county jail.

But throw your bail money away when it us unecessary. The bail bondsman has an important role to play at times, but remember it is the long term freedom of the client that is most important.

Remember, at the Law Office of Russell S. Babcock  we will work hard to reduce your bail and advise you if posting bail is right for your or your loved one.

In March 2009, my client Elaine C. made the biggest mistake of her life.  She trusted her good friend and went on a car ride with her.  Elaine was not feeling well that day, and when she awoke, she found herself in Tijuana, Mexico. 

Her friend told her that she was only going to be a few minutes and to wait in the McDonalds.  When she returned, the two went back to the border with the friend driving her vehicle. 

Inside the vehicle, the ICE agents found several kilos of pure methamphetamine.  The friend, who was facing more time because of her criminal record, implicated my client.  From the time of her arrest to her last court hearing, Elaine steadfastly denied knowledge of drugs in the vehicle.

Knowing that a ten year sentence or more was mandatory if she were found guilty, Elaine turned down a plea bargain of three years.  As trial approached and it was clear that her friend would testify against her , Elaine even considered pleading guilty to avoid the chance that the jury might believe her very motivated friend.  I counseled Elaine that I could never encourage an individual to plead guilty who is in fact innocent.

After much work by my legal assistants including the very talented private investigator Esther Sardina and my super star law student, Ryan Mardock, the government finally agreed to dismiss all charges against her.  Elaine spent nearly nine months in jail before her final vindication.

I understand Elaine is home right now eating Thanksgiving turkey with her husband.  What a nice feeling it is to know that someone will not needlessly be spending ten years in the federal penitentiary.  That is why I like this job, certainly not for the long hours or the stress of seeing so many individuals go to jail needlessly–those who do not have good criminal representation.

The bottom line is the quality of the attorney you hire does make a very big difference just as it would if you were hiring a surgeon to conduct open heart surgery on you or a loved one.  For many of you, the most important decision you make in your life, will be who you hire for your criminal case.  You can always sell your house if you make a bad deal or annul a bad marriage. But when you have been found guilty and sentenced to a very long sentence, it is frequent too late to do anything but wonder why you did not hire a better attorney.

A good attorney is not a magician–can’t make your case go away–but a good attorney can be your best ally in a system that is otherwise stacked against you and your loved ones.

A very sad post-script  12/13/2009

I just learned that Elaine died on December 11th.  She suffered a massive heart attack and could not be revived by the paramedics.

In the time that she was incarcerated, she gained almost 70 pounds.  She also was very distraught about being locked up for the first time in her life. 

Elaine is the second client that I have had die this year while in custody or shortly after release from the  Western Regional Detention Facility (GEO) in downtown San Diego.  The facility is very hot, and in my opinion, the food is not very nutritious, consisting primarily of starch. I have seen the conditions in federal jail deteriorate greatly in the last few years with clients in some cases being shuttled between the Imperial County Jail, the detention facility in San Luis, Arizona, the Metropolitan Correctional Center (MCC) and GEO. Hopefully, an attorney who specializes in prison litigation will file a lawsuit against the jails for the increasingly inhumane manner in which federal prisoners in San Diego are being incarcerated.

Elaine’s tragic death at age 48 brings home the importance of my client’s liberty.  At least Elaine was able to celebrate Thanksgiving with her husband and not die in jail.    At the Law Offices of Russell S. Babcock, we are acutely aware of the health and emotional strain that incarceration causes and we will always fight for the earliest release from jail possible.

Post-script 12/22

Today my investigator and I attended the services for  "Lainey" as many of her friends called her.  I was touched by the warmth of Elaine’s family and how so many people turned out for the services on such short notice. 

Despite being incarcerated for so long only to have the charges finally dropped, Elaine never showed bitterness toward those who had betrayed her. To the contrary, she always remained optimistic that the truth would come out.

The pastor at the service commented that just down the road , there was a memorial service being held for a judge.  That judge was The Honorable Napoleon Jones, also an African-American like Elaine.  I guess it is hard not to be struck by the irony of the situation both a very  fine judge, who always tried to be fair, and a fine woman, who was wronfully charged with a crime, being eulogized on the same day and in the same neighborhood.

I feel honored to have met Elaine.  Some people ask me if I  become personally involved in my work.  Well, I  guess now you know the answer. 

I wish had spent more time with Elaine.  I can still remember the last time I saw her when I gave her  a hug in Judge Irma Gonzalez’s courtroom–the day when all of the charges were finally dismissed against her.

Yes, Elaine C. is free –now she is completely free. 

 On October 26, 2009 the United States District Court sentenced Adelaida L. to only thirty months in jail for smuggling a multi-kilo shipment  of cocaine by car into the United States.  The government had initially sought a sentence under the mandatory minimum sentence law of ten years.  With her reduction for good time credits and the five hundred hour drug program, Adelaida could be free in approximately one year.  

The key to achieving the best results in drug cases is personalizing the client.  Competent private counsel have more time to spend with a client than a court appointed attorney.  Every case has a silver lining.  I often tell my clients that the worst has already passed upon arrest and charging and now  I am doing damage control.  At the Law Firm of Russell S. Babcock the client is not treated as a defendant or a criminal but as an individual human being who may have made one terrible mistake in their life.  I also tell my clients and the judges at sentencing, "None of us should be judged by the worst mistake we have made in our life."

Congratulations, Adelaida, and may you be with your family again soon !

     During the week of October 15, 2008, Russell tried an alien smuggling case in the United States District Court for the Southern District.  The Director of Federal Defenders, Ruben Kahn, represented the co-defendant.  ( 08 CR-2713.)  The jury "hung" or could not reach a decision on any of the six counts regarding Russell’s client.  His client remains free on bail.  It is unclear whether the government will re-try the case.

     On July 11, 2008, my  client Petra T. obtained a sentence of only twenty four months in a multi kilo methamphetamine smuggling case in the United States District Court, Southern District of California (07mj1710.)  The government had initially sought a sentence of ten years.  I am unaware of any case in this court when the court has given so little time for a first methamphetamine smuggling case in light of the mandatory minimum sentence.  At sentencing, the client fell to her knees, and declared, "praise God and God bless you judge."

During the week of October 15, 2008 the director of Federal Defenders Inc, Ruben Kahn, and Russell Babcock tried an alien smuggling case, 08 CR 2713, before the Honorable Larry Burns in the United States District Court, Southern District of California.  The jury deadlocked 7-5 on the guilt of Russell’s client on both counts and deadlocked on one count involving Mr. Kahn’s client, convicting her of the other count.  Both clients remain free on bond and it is unknown if the government will seek retrial in this case.

Some of my clients who arrested at the United States port of entry after drugs are found in their vehicle claim that they did not know the drugs were present.  Those who are tricked by others to take drugs without their knowledge are referred to as "blind mules".  Generally, the prosecution takes the position that a driver is responsible for the contents of their vehicle.  Many prosecutors and governement officilals do not acknowledge that blind mules even exist.

I have always wondered if blind mules don’t exist why their are signs at the border advising individuals to report to the inspectors any packages they have been asked to carry if they don’t know their contents or to tell them if they have lent their car to anyone in Mexico.

I know that blind mules do exist.  When I was in high school, my friend Robert and I went to eat the delicious lobster twenty miles South of Tijuana.  Robert and I left his Ford Comet in a body shop so it could be re-upholstered.  After we returned to San Diego, the next morning Robert called me and told me to come take a look at his car.  Someone had ripped up all the new upholstery with a knife !  It is obvious that someone followed us and took drugs out of the new seat cushion of his car.

Who would have believed two long haired high school students who said they had no knowledge of the drugs? 

Some of my clients "look the other way" when they are proposed with a "too good to be true offer" in Tijuana.  They are simply told by someone they meet in a bar to drive a car from Tijuana to San Ysidro and park it in a parking lot and they will receive payment, for some reason, almost always $500.

The blind mule is not guilty of a narcotics offense becuase he or she has no reason to believe there are drugs in the vehicle.  However, if you ever find yourself in this position, the best thing to do is not talk to the police because generally with no witness statements, the passengers will be cut free by the customs officials and there will be little evidence to convict the driver.  Remember, any statement to the police can harm you.  A simple denial of "I have drugs in my car, could be construed as an affirmative statement, "I have drugs in my car.!" 

The individual who "looks the other way" may be guilty of a narcotics offense because if he or she has reason to believe there are drugs in the car, that may be suffcient to establish the knowledge element required by the statute (law.)  Also, it is no excuse to tell the inspectors that you believe you were only bringing in a small quantity of marijuana when they find heroin, cocaine, or methamphetamine in the car.  Bringing in any narcotic with knowledge in essence makes you strictly liable for possession of all other contraband found in the car regardless of your knowledge.

Border drugs offenses are serious and generally carry "mandatory minimum" sentences of five, ten, or more years without parole.   Border crimes result in severe penalties, including deportation of long time resident aliens.  The United States government is unforgiving and presumes that you are guility if drugs are found in a vehicle that you are driving or in which you are a passenger.

Don’t be a blind mule!  If you go to Mexico, it is best for you to take your own car and keep it parked in a secure area.  Do not carry packages for anyone.  Probably an even better bet is to take a taxi !  

Starting this week, all  adult U.S. citizens must show proof of their citizenship when returning from Mexico.  This means that the inspectors will no longer rely on an oral declaration of citizenship.  What this means is that U.S. citizens should carry passports or a birth certificate.  It remains unclear what will happen when U.S. citizens do not have the required  proof.  Longer lines and border chaos are expected.