Soon, we will be electing another American president. After the last presidential election, we all know how close a presidential election can be and how even one vote can truly make a difference. Regardless of whom you support, this office urges you to vote and to support your candidate. This office supports Barack Obama.

Barack Obama has not been afraid to share his drug abuse as young man with the public. Because he actually has broken the law and has been rehabilitated not in a jail cell, it is hoped that he will approach the complex problem of drug abuse from other just a penal perspective. Mr. Obama has not declared himself to be unconditionally against the death penalty; however, he did urge former Illinois Governor Ryan to impose the moratorium on the death penalty in Illinois which resulted in the commutation of the sentences of hundreds of condemned inmates to life sentences. On the campaign trail, he has spoken out about the dangers of executing "the wrong guy."

Finally, Barack Obama impresses this office as the most independent candidate and independent thinker. He is not entrenched in the political machine to the degree that Hillary Clinton is and does not appear to owe as many people favors. It should be remembered that Bill Clinton was not always a champion of constitutional rights. During Bill Clinton’s presidency, AEDPA ("The Anti-Terrorism and Effective Death Penalty Act") was passed, which has greatly curtailed the "great writ" of habeas corpus. It says a great deal that the First Lady of California, Maria Shriver, who is said to be a close friend of Ms. Clinton’s, is supporting Mr. Obama along with the Los Angeles Times newsapaper.

Risking alienating the powerful anti-Cuba lobby in Florida, Mr. Obama has called for an immediate end to the Cuban embargo. This is in sharp contrast to Mr. McCain who has recently stated that Cuba should dealt with "down the barrel of a gun." John McCain’s pro-war statements exclude him as a viable possible for president. At a recent rally, he parodied the Beach Boys song,"Barbara Ann" by singing gleefully," Bomb- Bomb, Iran."

This country is at a low point in morale and also in the eyes of the international community. What we need now is certainly not an escalation of war in the Middle East, nor more stale politics from a professional "name-brand" politician, but a charismatic leader who can work to restore both domestic and international confidence.

Barack Obama may not be a panacea, but he is clearly our best hope. He deserves his shot at greatness as he restores the United States of America to greatness in the next four years.

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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 !  

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By Pat Ford

December 2004

A Joint Publication of the San Diego Criminal Defense Bar Association and the Criminal Defense Lawyers Club www.sdcdba.org

A standing ovation to Russell S. Babcock for his relentless efforts to secure an acquittal for his client (Alexandre Chagovic) in the largest seizure of cocaine in United States maritime history. Russell was appointed by the federal court to represent Mr. Chagovic pursuant to the federal CJA Act.

On April 28, 2001, the United States Coast Guard interdicted a large fishing vessel, the Svesda Maru, five hundred miles off the coast of Acapulco after receiving a tip from an informant that it was laden with drugs. After a five-day search of the ship, the U.S. government found over ten tons of cocaine, the largest seizure in U.S. history, with a street value of over 1.6 billion dollars.

The multi-defendant trial was held in San Diego. The first trial resulted in a hung jury, but on July 14, 2004, a second jury acquitted Mr. Chagovic and four other defendants of all charges.

Russell is deserving of recognition for several reasons. First, of all of the attorneys in the group representing co-defendants, only Russell traveled to Russia, Colombia, Panama, and Ecuador to obtain evidence to exonerate his client.

Before the first trial, Russell and his investigator went to Russia and collected positive character evidence about his client that was admitted at trial. Just days before the second trial, he went with his investigator to South America to obtain the evidence that most probably resulted in the acquittal. The government’s theory was that the drugs were loaded at sea because it would be impossible to load at port due to tight security; thus, all the deck hands would have knowledge of the presence of contraband. Russell took the personal risk to enter dangerous areas of the wharf in Guayaquil and La Libertad, Ecuador, to photograph and observe the very lax security procedures and the loading of cargo at the docks. Russell singularly devised the defense strategy in this case that resulted in the "not guilty" verdicts for each of the defendants in the second trial.

This trial was considered a slam-dunk winner for the prosecution because of the enormous quantity of drugs and the poor condition of the vessel, which under the government’s theory made it impossible to be engaged in commercial fishing. Although Russell was the only defense counsel to travel outside the country to investigate the case, all of the five defense attorneys ably represented their clients and deserve credit as well. The other four attorneys are Robert Carreido, Charles Guthrie, Julie Blair, and David Bartick.

Exemplary work in our profession deserves recognition and Russell devoted more than three years of his life to this case at great personal sacrifice to himself. Submitted by Nancy J. King, with additional "Kudos" information submitted by Gregory L. Rickard.

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The Court of Appeal granted defendant’s petition for a writ of habeas corpus, vacated the judgment, and remanded for a new trial. The court held that reversal of defendant’s convictions and retrial were required due to prosecutorial misconduct, which denied defendant a fair trial. First, the prosecution withheld critical discoverable evidence favorable to the defense, and the suppressed exculpatory evidence was material, given that, had it been properly disclosed to the defense, there was a reasonable probability that defendant could have obtained a different result. Second, the prosecution presented false testimony to the jury that the two key prosecution witnesses had not received any benefits or promises in exchange for their testimony. The prosecutor had decided to assist one of the witnesses by the time he testified and, therefore, had actual knowledge of this benefit and had a duty to correct any false testimony by his witness. Not only did he fail to do this, but he conveyed the impression that these witnesses were testifying out of a sense of civic responsibility. Finally, a court-appointed referee found that by the time of closing argument, the prosecutor had decided not to prosecute these accomplice-witnesses as originally contemplated by the district attorney’s office. Thus, it was misconduct on the prosecutor’s part to *1361 tell the jury that they would be prosecuted after the trial. Since the testimony of the witnesses was crucial to the prosecution’s case, the prosecutor’s misrepresentation to the jury was material. The prosecutor assigned to the case and gang unit was terminated from the District Attorney’s Office shortly after this decision.

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