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We look forward to hearing from you and try to answer all of your questions within two business days.

Russell S. Babcock
Attorney at Law - Certified Specialist, Criminal Law

1901 First Avenue, Suite 138 San Diego CA 92101

Defense of Owen Hanson

January 30th, 2016

I have the honor of representing Owen Hanson in charges related to alleged narcotics (methamphetamine and cocaine) and gambling activity. HIs case, which is filed in the federal criminal court in San Diego, has gotten a great deal of publicity lately, even on the national level probably because he used to play football for U.S.C.

Despite his notoriety and the serious nature of his charges, Mr. Hanson is entitled to a fair defense. Time will show that many of the assertions made by the government against him are false and are based on government witnesses who are criminals and perjurers.
A fundamental tenet of our criminal justice system is that a person remains cloaked with the presumption of innocence unless charges a proven beyond a reasonable doubt. Mr. Hanson, who is only thirty-three years old and lacks a criminal record, is definitely deserving of that presumption.

To learn more about this case go to:

www.newsweek.com
www.latimes.com
larrybrownsports.com
dailycaller.com
www.dailymail.co.uk

Of Bridges, Police, And Criminal Defense Attorneys

July 25th, 2015

 

I just got back from a vacation.  Yes, a vacation for me is taking three days off, driving 500 miles to go fishing, worrying about my clients, putting out a fishing line, catching no fish, worrying more about my clients, and coming home wondering why I didn’t stay away longer.  As I drove home, I drove onto several stretches of freeway that were named after fallen police officers. 

I respect police officers who have died in the line of duty.  And unlike Donald Trump who believes people who are captured are not heroes, most of these fallen police officers probably qualify for hero status.  But what struck me most, don’t laugh please, is that no stretches of highway were named after criminal defense attorneys. 

As Clarence Darrow once put it  “To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.”  Maybe why that is why there are no bridges, freeways. or highways named after criminal defense attorneys.

Is what we do any less than police officers?  Sacrificing family, finances, and any semblance of a normal life to defend those who society cannot stand?  Yes, maybe we have not driven off of highway overpasses or been shot in the line of duty, but we have suffered heart attacks, stress, and estrangement from our loved ones  because of our commitment to justice.

I propose that we start naming our highways after criminal defense attorneys as well.  We could start with the Clarence Darrow Freeway after the person who essentially put criminal defense on the map.

Even though she is  very much alive, I propose we name a bridge after Judy Clark.  She has, at much personal sacrifice, defended the uni-bomber and that lady named Susan Smith. who most of us have already forgotten, who drove her children into a lake causing them to drown.  Even though she “lost” in the defense of the surviving Boston Bomber, she had the courage to continue with a vigorous defense despite bomb threats of her own and much personal scorn.  The bridge should be an attractive one: if not for the fact that it already has a name, I would recommend that the Golden Gate Bridge be named after her.

Finally, another crusader against the death penalty was my colleague, Michael Millman.  He personally observed me argue a death penalty case to the California Supreme Court and he took the San Francisco Trolley to do it.  One day I was wondering why he hadn’t replied to one of my emails (not like him) and less than a month later he tragically died from cancer.  I think he deserves an important freeway named after him. I recommend the one in Marin County that passes San Quentin to remind the people of California that not only here lies a house of execution but also the memory of a man who fought for the lives of the condemned.

Is it too much to ask to have a few roads and bridges named after defense attorneys?  I am not really quite sure how to go about it:  would I call the Department of Public Works or ask that the matter be placed on a ballet?

Finally, I made one mistake in this blog.  I said that NO bridges or highways have been named after criminal defense attorneys.  Somewhere there must be one named after Abraham Lincoln though I don’t know of one in my city.  Sadly, while almost everyone remembers him as a President, few remember that he was also a criminal defense attorney.

 

Be careful!: More methamphetamine and drug blind mule cases at San Diego -San Ysidro Border

June 28th, 2015

Last week this law firm retained two new cases of “blind mules,” people who without their knowledge carry drugs from Mexico into the United States.

 

Case No. 1

The gentleman was worked as a truck driver for nine years.  He switched jobs.  During one of his first crossings someone put one half a million dollars of methamphetamine in his big rig. 

Case No. 2 

My client applied for a job through a listing at “La Frontera” newspaper in Tijuana.  He was going to be a driver in San Diego for $60.00.   The “Licensiado”  made him feel very fortuante to have been chosen for the job.  He was given money to register a car in his name and was arrested the second time he crossed with almost one millon dollars of methamphetamine. 

Tips to Avoid Being a Blind Mule 

1  Go with your instincts.  If the job seems too good to be true, it probably is. 

2  Beware of companies where you don’t meet individuals in a building but are asked to meet the owners in restaurants or gas stations. 

3.  Beware of companies that ask you to register a car in your name when you are just starting to work with them. 

4.   Ask to be the company location and papers that show it is a legitimate company. 

5.   Remember your best line of criminal defense is being aware and realize that there are many drug smugglers constantly trying to recruit blind mules to carry their contraband.

 Remember:  If you are stopped with a large quantity of drugs in your vehicle, in the eyes of U.S authorizes, you are guilty until proven innocent.  They will assume that you are lying and knew or had reason to know about the drugs in your vehicle.  If you are stopped and drugs are found in your vehicle, regardless of if you are guilty or innocent, don’t make a statement to law enforcement. 

If you are a family member has been arrested for crossing the border with drugs, call us immediately.  We have been helping families for more than twenty five years

Federal Criminal Sentencing: The Disparity Still Exists

June 22nd, 2015

An unfortunate reality of practicing federal criminal law in San Diego is that one of the factors that still influences a defendant’s sentence the most is which District Court Judge is assigned to the case. Unlike state court which permits a defendant to disqualify one judge, the federal judge assigned to the case will remain assigned to the case for better or for worse.

The cases where unequal judicial philosophy creates the most disparities of sentencing is in drug cases. I have seen, for example, defendants with the same quantity of methamphetamine and who have no criminal records receive a sixteen year sentence in one courtroom and four years in another. The reason for this is despite federal decisions that allow the court to find “minor role” for mere couriers or drug mules, a couple of District Court judges generally don’t give a minor role reduction in these circumstances.

This should not happening. Waiting for the assignment of the District Court Judge has become a kind of macabre lotto where more important than the facts of the case is the judicial philosophy of the judge assigned to the case.

And in the Southern District (San Diego and El Centro) defendants have it comparatively good. The United States Attorney in San Diego has several fast track and “combination of circumstances” programs, which makes most drug sentences in this District much lower than lets say in Montana or South Dakota.

We have one set of federal drug laws for all states. And there is one Attorney General, and ultimately one President running the show. The factors that should matter in calculating a sentence should be: background of offender, presence or absence of criminal record, nature of the offense, attitude of the defendant and prospects for rehabilitation and not who is the judge assigned to the case, and the area that offense occurred.
The United States Sentencing Guidelines and the Sentencing Reform Acto of 1984 may have been a good idea, but they are an abject failure. It is time to go back to the drawing board. And it is also time to realize that judges should uniformly apply the law so that it no longer matters so much the name of the judge who is assigned to the matter. After all isn’t one of our core legal principles, “equal justice under the law.?”

What if I receive a federal criminal charge of unlawful re-entry because I came back to see my family member ?

April 19th, 2015

      Unfortunately, the only way you remain free from deportation and exclusion from the United States is if you are a United States citizen. I urge all individuals living in the United States who are eligible for citizenship to apply immediately. If you find yourself in a car with any drugs case as methamphetamine, cocaine, or heroin, you might lose your green card and any chance of coming back in the United States.

Many people who are deported for drug crimes do come back to the United States because they need to work or to see a family member. The penalties for unlawful entry after deportation depend primarily on the criminal record of the individual who is being excluded from the United States.
The United States Sentencing Commission though has said that the judge may take into consideration a defendant’s ties to the United States in fashioning a fair sentence. The idea is that if a person has spent a great deal of time in the United States and has family here that the court should consider these circumstances.

This consideration or “departure” is called “cultural assimilation . More specifically federal law provides in Application Note 8 to U.S.S.G. § 2L1.2 :

There may be cases in which a downward departure may be
appropriate on the basis of cultural assimilation. Such a departure
should be considered only in cases where (A) the defendant
formed cultural ties primarily with the United States from having
resided continuously in the United States from childhood, (B)
those cultural ties provided the primary motivation for the defendant’s
illegal reentry or continued presence in the United States,
and (C) such a departure is not likely to increase the risk to the
public from further crimes of the defendant.
In determining whether such a departure is appropriate, the court
should consider, among other things, (1) the age in childhood at
which the defendant began residing continuously in the United
States, (2) whether and for how long the defendant attended
school in the United States, (3) the duration of the defendant’s
continued residence in the United States, (4) the duration of the
defendant’s presence outside the United States, (5) the nature and
extent of the defendant’s familial and cultural ties inside the
United States, and the nature and extent of such ties outside the
United States, (6) the seriousness of the defendant’s criminal history,
and (7) whether the defendant engaged in additional criminal
activity after illegally reentering the United States.

Here in the San Diego border zone, there are many families divided by the United States-Mexico International boundary. At the Law Offices of Russell S. Babcock, we will make sure the judge understands the background of our client and the law which indicates that a person’s cultural assimilation can be taken into consideration.

If you are lawfully deported from the United States, you are subject to prosecution if you return unlawfully. But you may also be able to have your sentence greatly reduced if the above factors of cultural assimilation are favorable to you. At the Law Offices of Russell Babcock, we are the preeminent federal criminal lawyers in border crimes and we will educate you about all the possible factors that may help you or a loved one receive a reduced sentence.

What if I am forced to bring illegal drugs into the United States?

April 11th, 2015

Suppose for instance that you are sipping a margarita in Rosarito Beach , Mexico. You are approached by armed men and told that you must carry a package of methamphetamine, cocaine, or heroin in your car into the United States or your relatives who live in Mexico will be killed. Or perhaps you are visiting an ex-boyfriend in Tijuana. He tells you that he knows where your family lives and unless you do him “this little favor” of smuggling narcotics across the international border, he will hurt you.

If you bring drugs into the United States and are caught do you have a defense under federal criminal law? The short answer is unless you tell authorities at the border that you have drugs in your car and why you have them, you probably don’t have a defense.

The defenses to federal drug crimes, as determined by the appellate court that controls the border area in Southern California, the Ninth Circuit Court of Appeals, has greatly restricted a duress related defense. A defendant must show three things in order to even allow a jury to consider whether there was duress or coercion that justified the commission of the crime:

1) An immediate threat of death or serious bodily injury,
2) a well- grounded fear that the threat will be carried out, and
3) lack of a reasonable opportunity to escape the threatened harm.

The defendant must prove to the jury that all of the foregoing are true to be entitled to a finding of not guilty.

Duress defenses most often fail in federal court for several reasons. First, the threat may not still be present once you have left Mexico and are entering the United States in your car. Most important the court found in a case called Ibarra-Pino that in most instances you must report the threat to the border agents when you first enter the United States. The idea is that they will give you a “reasonable opportunity to escape the threatened harm.

Every case is different, but under federal criminal law, a defense based on duress or threats is very difficult to establish. So, if you ever find yourself in a situation where you are forced to bring drugs into the United States, the moral is report it immediately to the agents if you can. Better yet don’t put yourself in a position where you are vulnerable to being asked to carry narcotics into the United States.

Finding the Best Defense Attorney

April 5th, 2015

Suppose for a minute that you live in San Diego, California. Someone in your family has just been arrested for a serious federal drug crime, importation of methamphetamine, “crystal,” into the United States at the San Ysidro Port of Entry.

So what do you do? Not everyone has a friend who is a criminal defense attorney. And your instincts are that Uncle Joe, who obtained his law degree in correspondence classes, just won’t fit the bill. After all–this is not “My Cousin Vinny,” but reality.

If you are like so many people in the cyber age, you will run to Google. You are “not feeling lucky” so you probably will type a search like this into your browser,
“Best San Diego Federal Criminal Defense Attorney”

Voila, google works its magic and you have a list of local criminal defense attorneys. As you go down the list some of the websites look like you would be better off with “Saul”, from better Call Saul. Some are stuffy and pompous. And some of the attorneys tout themselves as “aggressive.” But wait a minute, this is not a boxing match, do I want an “aggressive attorney.”? How do I find the “best federal San Diego criminal defense attorney?”

My first tip is “Go with your gut.” Did the attorney ask you for a credit card number before he even asked for the name of your family member? Bad sign. Go meet the attorney. Better yet, have him meet the client. It is not unreasonable for the best attorneys to charge a fee to see a client especially if a drive is involved. Like an in demand surgeon, the best attorneys are busy.

Tip number two is Check the Attorney out on the California Bar Website. This will tell you how long the attorney has been practicing, if the attorney is a criminal law specialist, and very important, if the attorney has ever been disciplined.

Tip Number Three: Don’t let price be your only consideration. Most of us are on a budget even at the supermarket. But if you search and find the “cheapest attorney,” you are probably going to get a “cheap attorney.” Competent attorneys have a great deal invested in their careers and will charge a fair price for their services that might seem expensive to someone who has never had a family member accused of a serious crime.

Tip number four: Find an attorney who has handled the kind of cases before that you want the attorney to handle. You don’t want to select an experienced DUI attorney for a homicide case, however good the attorney is in drunk driving defense. Also, avoid attorneys who do not have several years practicing law because your case may be part of their learning curve.

Tip number five: Check the attorney’s online reputation. When you have the name of an attorney you are interested in, do a google search of that name. You will quickly have an idea of how long the attorney has been around and the attorney’s reputation in the community. Do not eliminate an attorney just because they have a couple of bad internet reviews. Unfortunately, those reviews could be from competitors or from a disgruntled client who has no reason to be unhappy with the services rendered.

A google search is a very good starting point to find the best criminal lawyer but should not be your ending point. Remember there are many very good attorneys who show up high in a google search and unfortunately some that are not so good. And there are many good attorneys who may not show up at all in a google search. Just vary your search words by a couple of words and you will see what a crap shoot it actually is to locate the best attorney just by a google search.

The Morning Before A Federal Criminal Sentencing

March 23rd, 2015

This blog is probably not what you think it will be.

6:00 AM  , San Diego California……

As I go over my notes, my black cat is never far from my side.  He knows the ritual by now…….I get up and stare out the window.  And then I go out to the Jacuzzi for a half an hour.  And I think and mentally prepare.

In three hours, I will be standing in my suit at the podium in front of the District Court Judge.  I would like to think that my words will make a difference.  I am often told by the judges that they do.  More than just the law, I want to feel who the client really is and to be able to share that with the court– the good mother, wife, and  good person she is who simply made one bad mistake because of severe  financial stress.

The federal sentencing law says that the court must take into consideration not only the Guideline Table, but “the nature and characteristics of the offender.”  When I watch other criminal attorneys in the courtroom as I wait for my turn to do a sentencing,  I see that many of them forget that.  They talk only about numbers and sentencing ranges and forget that ultimately the court will be passing judgment on a human being, a person no more perfect or imperfect than themselves.

I admire those of my colleagues who take their work as seriously as I do.  It seems that the common denominator in those criminal attorneys who have been around as long as I have is maintaining good health, having a strong family base, and to celebrate  a spiritual force  in one form or another, a form to me that I call God.

Yes, those of us who are committed defense attorneys try to stay professional and objective, but we do feel and we do care for our clients.  In fact, we live our cases with our clients and dream about them at night.

This blog is not material for a law journal or treatise, but is the way it  in the final hours before arguing at sentencing in the courtroom.  Judges judging other human beings and me there to do my best to make sure the most fair and compassionate decision gets made.

6:20 a.m.

Time to shower and get in my suit .  But first, I will review  my notes again and” get in the zone.”   How her two daughters and son miss her!– she is a young Hispanic woman who must be both mom and dad. She has already paid so much for her misstep.

I will have succeeded today if this judge realizes that my client has already been punished more than any punishment that he could ever give her.  And also if he realizes before sentencing her that even the best of us are capable of making a really bad mistake.  It is the nature of being human.

 

11:00 a.m.

It is over.   There are rarely happy days in the court room, but today went truly well.  The government wanted 70 months and they only got 21.  With time served she will be out in less than nine months.

The judge was right when he said that an education would help her.  But how will she be able to get in Mexicali being a single mother of three?  At least, she will be with her children and she ow gets a chance to get back on the right path again.  Many of the U.S. Attorneys (prosecutors) are cynical.  But very few of my clients, thankfully, come back a second time.

The wisdom of the older judge in knowing that a human life couldn’t be measured by numbers.  To this judge, it made a difference that my client had never been in trouble before and has raised three children on her own under very difficult circumstances.

The shocked look of my client and the misty eyes of her boyfriend were a great reward for me.   But now, it is time to move on to the next sentencing at 1:30 p.m.

Another Monday in the life of a criminal defense attorney of thirty years.

 

 

 

 

 

Federal Drug Border Arrests: Guilty Until Proven Innocent

February 15th, 2015

Every week at the San Ysidro-Tijuana border, the busiest border in the world, agents seize many kilos of methamphetamine, cocaine, and heroin that is hidden in cars. The majority of the drivers know of the presence of the contraband. They are usually paid by other individuals a few hundred to a few thousand dollars to attempt to cross hundreds of thousands of dollars of drugs into the United States.

There is no way to measure how many drivers are guilty and those, the “blind mules” who are duped into making the crossing. A safe assumption is the vast majority of drivers are guilty. But what about those who aren’t?

Federal law and federal agents are harsh on all those who cross drugs into the United States regardless of if the driver has knowledge. First, a driver is relentlessly interrogated usually by a team of two agents who espouse the party line that the only way a person can have drugs in their car is if they made an agreement with someone to transport the drugs.

Next, the individual is charged with offenses that usually carry a mandatory minimum of ten years imprisonment. Many of these individuals can’t even qualify for bail because with such offenses there is a “presumption” of no-bail because of the seriousness of the charge.

And for the innocent individual, they are faced with a dilemma. Should they accept a plea bargain of three or four years or face a sentence of ten years or more if the get convicted. Juries hate drugs and these kinds of offenses are very hard to defend. How can someone prove their innocence when they often don’t know how drugs were planted in their car?

The prosecutors arguments are often clever and very self-serving. The person was nervous when confronted at the border. Who wouldn’t be nervous when six agents force someone out of the car and accuse them of being a drug smuggler? The person was cold, overly friendly, too cooperative, not cooperative–any way you look at it “ guilty unless proven innocent.”

Even the federal government now recognizes that blind mules exist. There are the documented cases of the El Paso teachers who unknowingly carried packages in their trunks, the bus drivers and couriers in Tijuana, those who had magnetic packages adhered to the bottom of their vehicles. The prosecutors in San Diego even make a blanket disclosure now of the dozens of cases involving blind mules, many of which are still under investigation.

Congress is correct in finding the we have a drug problem in the United States. But all of the emphasis has been placed on seizure of drugs and prosecution of almost every driver who has drugs in a vehicle. But what about the truly innocent individual who is the true victim in this game of greed and deception? There used to be a saying that the presumption of innocence makes it more important than nine guilty individuals go free than one innocent person convicted. Sadly, this presumption is not applied in border drug smuggling cases.

Unfortunately, there is no way to know how many innocent people are sitting in federal jails because they took their car to the wrong mechanic or loaned it to the wrong friend. Based on my work, I believe there must be hundreds of innocent people incarcerated for drug crimes they did not commit. And no one but the defendants, their loved ones, and defense attorneys seem to care. Certainly not the federal government.

The government has a legitimate interest in prosecuting drug smugglers and attempting to shut off the flow of drugs into this country. But at the border, it should still be innocent unless proven guilty and not the reverse.

Federal Criminal Law and A Culture of Informants

February 12th, 2015

When I used to be a prosecutor, I was trained to distrust informants and co-defendants. Who has a stronger motive to lie than a person who is charged with a crime and who has no defense? The jails are full of informants who are constantly listening to other inmates so that they can “snitch” on them and receive a reduced sentence.

To those who are not part of the criminal law culture, there is something offensive about individuals informing on others. Indeed, the country of Cuba has an organization called the Committee for a Democratic Revolution or “CDR.” The organization is made up of captains who control each neighborhood and who report any suspicious activities so someone higher up the chain. North Korea also employs a system where children are raised to even denounce their own parents when they commit crimes or when they disagree with the regime.

The federal system in the criminal courts is not all that different. The federal system provides for a reduction of sentence in the following circumstances:

5K1.1. Substantial Assistance to Authorities (Policy Statement)
1. Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance

There are several problems with this model of “justice.” First, the most guilty parties generally have the most information to give and often receive the most lenient sentences. Second, the government controls making the motion for assistance although court cases have said that the government must use good faith. Finally, defendants who are facing a substantial amount of time are in a position to often lie to attempt to gain the greatest benefit.

Unfortuntately, many federal prosecutors feel that they cannot prosecute a case unless they have informants or co-defendants ready to testify for them. To the contrary, good police work makes the use of an informant unnecessary in most cases.

At my law office, I recognize that the decision whether to become an informant is a personal one. I will counsel all of my clients to the potential benefits of of providing “substantial assistance” but also to explain the many risks and pitfalls. And I also strive to learn the background of all individuals who provide evidence against my client realizing that many times they have a very strong motive to lie because they may be receiving money from the government to be an informant, they may be working to have charges dismissed against them, and they may have nothing to lose for providing false testimony.

The federal system of criminal justice should strive more toward a model of reliability where the risk of false convictions is less because the testimony of informants and snitches is used sparingly and only when demonstrated to be accurate.


© 2010 Russell S. Babcock - Bilingual San Diego Criminal Defense Attorney & Lawyer