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Prospective cease and desist letter for the situation where another medical marijuana collective is using your collective’s name

May 12, 2016

 

 

Medical Marijuana Collective Owner or Administrator

___________ Street

___________, California _____

(xxx) xxx-xxxx

www.____________.com

  

RE: INFRINGEMENT OF TRADE NAME “___________”

 

 

TO _________ COLLECTIVE;

 

I believe you value your work as much as my client, the medical marijuana collective ____________ does. It has come to our attention that you have infringed his trade name “__________.” This infringement consists of the use of ____________’ registered name for a medical marijuana dispensary you intend to open in the City of _________, California as well as the use of a website in the name of my client’s registered business.  That website advertises the aforementioned dispensary.

 

______________, a California registered non-profit unincorporated association, has been operating for many years under that name, has a long-standing presence on social media, and was registered with the Secretary of State on ___________.  Their use has been open and notorious.  Attached please find the certificate recognizing ___________ as being administered by ____________ in ___________, CA.  Prior to determining the name for your dispensary, you should have checked the Secretary of State Business Lookup Website, as that would have shown you that the name “___________” was in use.  It is with regret that we must inform you of that fact at this time and demand you desist in the use of the name “______________.”

 

Unfortunately, your use of the name “_____________” unlawfully misappropriates and misuses my client’s original and creative business name and deprives him of the benefits, privileges, and income from the exclusive use of that name.  Your use of the name creates substantial confusion in the marketplace and makes it appear as though the two businesses are related.  This constitutes an actionable violation of Title 15 Unites States Code section 1125(c).  As you are aware, the businesses are not related.  This constitutes a second cause of action, a violation of Title 15 Unites States Code section 1125(a)(1).

 

_______________ has not authorized your use of its name for your commercial purposes and, therefore, as Counsel for the owner of the business name, we demand that you immediately cease and desist from using and from permitting any third party to use the name “______________.”

 

Please contact the undersigned immediately at the following number so we can resolve this matter. If we do not hear from you within ten days from the date of this letter, we will be forced to pursue further action against you.

 

Sincerely,

 

Jay Leiderman

Attorney At Law

(805) 654-0200

jay@criminal-lawyer.me

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

medical marijuana computer crime homicide fraud money laundering

Ventura County, California Defense Lawyer and Certified Criminal Law Specialist Jay Leiderman on his way to court.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

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How the “Original Pornographers,” the Mitchell Brothers fixed Dennis Roberts’ Corvette, given to him by the fake DB Cooper, only to have it totaled by Hunter S. Thompson.  Oh, yeah, and a murder trial.

Criminal defense attorney Dennis Roberts is famous for representing the Chicago 8, more frequently called the Chicago 7, as a motions attorney with Micheal Tigar, Michael Kennedy and Gerald Lefcourt.  He also represented Angela Davis, Dennis Banks and many other high profile clients.  Click here for Dennis’ full resume.  Look below for his Corvette.  The Mitchell Brothers own the O’Farrell Theater in San Francisco, and they produced and directed many adult films, including Behind the Green Door in 1972. They were also successful as the defendants in many obscenity cases.  Hunter S. Thompson is famous for being Hunter S. Thompson and Bob Rackstraw isn’t DB Cooper.

Dennis Roberts

Said Corvette, with Dennis Robert’s son looking very cool leaning up against it

Here’s a story Dennis shared with me:

The story came in several parts, one better than the next, over a significant amount of time, culminating in the actual tale of the corvette and it’s fate.

 

Great story. I had a white 56 Corvette. My client in a murder trial was driving me nuts with “are we winning” every 3 minutes. To shut him up I told him “you owe me 10k. I am so sure we will win if you just shut up that I’ll bet you your old Vette (which was not in good shape). I won and he gave me the Vette (but not the $10K).

The murder client was Bob Rackstraw who they keep trying to prove is DB Cooper. He is NOT but some jerk reporter spent 5 years, hundreds of thousands and harassed Bob, his family and friends for 5 years.  He offered Bob $250K and 25% of a book deal to say he was D B. We refused. But he made the film and sold it to the History Channel and also published a book. A big lawsuit is coming down the pike. Anyhow It was Bob’s old Vette.

One funny line from that trial. He was charged with murdering his step dad. At first appearance the judge said to me “patricide is the worst crime known to man”. I said “This is step-patricide. Can’t be all that bad”. He laughed and I made a new friend. 

The murder happened in Calavaras County. They claimed he murdered his step-father and buried him, but when the rains came daddy’s foot was sticking out of the ground. I had a lot of explaining to do but I did it. Sure, there were forged checks, and a lease on a trailer that said if Pop didn’t appear in 7 years Bob could buy the trailer.

Other than Bob, the suspects were gay motorcycle gang from SF (his body wasn’t wearing pants); and a mafia gang from Stockton to whom he owed big gambling debts.  In addition to the forged checks and the lease for motive, no one could find pop in Hawaii and Bob told everyone he said he was getting letters from dad postmarked from Hawaii but the post office said he got no letters from pop in Hawaii saying he was having a great time.  

The Gay Motorcycle Gang from S.F. was a wonderful interpretation of pop complaining to the neighbors that some kids were riding dirt bikes on his property and if they came back he’d shoot them.   The gambling debt was to an organization known to me (and perhaps only to me) as the Stockton Mob.  Very frightening folks.  Aside from the letters from Hawaii which somehow arrived without going through the local post office there were multiple phone messages saying he was “having a great time”.  Then it got wonderful.  Every so often in a trial magic happens.  Since it was San Andreas (home of the jumping frog contest from the Mark Twain story) it was too far to commute daily from Oakland so I stayed in a local motel and spent some time in the clerk’s office looking in the civil index for “Rackstraw litigation,” but more about that later.

The gambling debt was to an organization known to me (and perhaps only to me) as the Stockton Mob

Bob was also charged with forging checks and mailing dynamite but fortunately it was in another county and that trial would follow ours.  No point in it if Bob got sentenced on a step-patricide murder. Ed note: While the History Channel special on Rackstraw spent significant time detailing his conviction from the late 70’s for the checks and dynamite, they neglect to mention that those were the remnants of charges left over after Dennis gained Rackstraw an acquittal on the murder.

The pops disappeared he was supposed to pick up his girlfriend on the adjacent plot of land and take her to San Diego to marry her.  Never showed up.  Also his dog was tied up, which he never did.  Before he was to pick up the girlfriend he was driving to Sacramento as someone up there owed him for using a backhoe to help build a dam and the check for $25000 never arrived (though it did show up with Bob having forged pop’s name) and pops was driving to Sac to “get to the bottom of this.”  The seven years was not so Bob could get the trailer; it was to sell it to the kids who leased it.  Bob drew up a lease which said, interestingly enough “if pop doesn’t show up in 7 years he is presumed dead and you can have it”.  Interesting idea to put into a lease.  Also we had an in camera voir dire.  I complained that the DA knew all the folks (this was THE D.A. of Calaveras County) and when one said he was on a jury the DA knew which trial and what the vote was and how this guy voted.  I told the judge it was unfair.  So he (the judge) would give me a run down on each juror like “You’d want Pete;  He was convicted in Las Vegas for jimmying a slot machine and hates cops, or avoid Mrs Jones, she is a friend of the prospective bride of pop”.  Very helpful.  Better than those jury investigations.

But this was my favorite: Early on I called Bill (brother of step-dad) to see what I could find out.  When he heard I was representing Bob he told me to fuck myself and hung up.  Not very smart.  So I laid a subpoena on him and told the judge I didn’t want him to have to sit through a long trial until I got to him so I said it was agreeable if he simply awaited a phone call from me a day or two before I would need him.  Fine. 

So one Sunday just before midnight I called him and was kind of unpleasant. Said I woke him up.  Tough shit I told him.  Then told him to get his ass to court at 8:30 Monday morning (he lived in San Jose).  And as expected he started giving me a lot of shit so I told him “Fuck you” and hung up.  I figured that line would for sure bring him to court so he could snitch me out to the judge.  Sure enough at 9 the next morning he wasn’t there.  I told the judge I had given him notice the day before not mentioning it was midnight;  Judge got annoyed and told the Sheriff’s deputy to go to San Jose and put him under arrest.  Then I explained that I wouldn’t have another witness until 10, told Judge not to send the sheriff as he might just show up (I was pretty sure he would as I scared the crap out of him).  So there was a recess and I stayed in the courtroom reading just preparing my case.  Sure enough about 9:30 an old guy comes in looking really worried and sits down in the back row.  Figuring this was Uncle Bill and figuring that the courthouse gang told him he was in a shitload of trouble and the Deputy sheriff was gonna get him and arrest him for contempt he looked really worried.  So I saw he took a little piece of paper which he pulled out of his shirt pocket and was studying it carefully.  I marched right up, he saw me was coming and stuffed it back into his pocket.  So I reached over and snatched it out of his shirt pocket, took a quick look and when he started yelling about that it was his, etc I gave it back and told him to calm down.  Court returns, I make him  wait through my next witness and then put him on the stand. 

Since I had plenty of time to kill I spent some of it in the clerk’s office to see if there were other family lawsuits.  Sure enough Uncle Bill sued his brother for 6 thousand.  The money was what he loaned victim Phil to pay for his wife’s cancer surgery.  Nice guy.  Well now that Phil was deceased he planned on seizing the trailer, a kind of crappy trailer, not even a double-wide.  So I started questioning him and got right to the “estate of Philip Rackstraw” – “you sued your brother and now his estate hoping to recover the money you loaned him for his wife’s cancer surgery and you wanted to get it out of his estate”

Now the estate consisted of this crap trailer but I made the ‘Estate of Philip Racstraw’ sound like bank vaults full of gold and diamonds. When ever I said “estate” which I said plenty I would sweep my hand so it seemed as if the Estate encompassed half of Calaveras County.  He acknowledged that he had filed suit.  But, I said, you know that unless you got Bob convicted you would not be in line to inherit the Estate of Philip Rackstraw.  He agreed.  Then I got into attorney client stuff which the judge just let in with a smile as he was having a lot of fun.  “In fact your lawyer told you that even if you got Bob convicted you still had Linda to contend with, pop’s daughter.  Isn’t it true your lawyer told you that unless Linda was “part of it” you wouldn’t get a dime.”  Now the jury had already seen Linda, a rather overweight telephone operator from Stockton and sweet as sugar.  Why the DA put her on is another great mystery as she added nothing to his case.  But the jury saw her and if you saw her there is no way in the world you would believe that she would be in a conspiracy to murder her step-dad.  Oh that one outraged him so I kept pushing him on the isn’t it true unless Linda was part of it you would get nothing line of questioning.  A couple of asked and answered but that didn’t stop me.  Finally I said, “so I see a little piece of paper sticking out of your shirt pocket.  Is that some sort of a list to make sure some slick lawyer didn’t twist you up on dates and the like (there were a few dates – none of which made sense to me). “Yup” he acknowledged.  Isn’t it fair to say that the list contains all of the ideas you have about this case, at least all the important ideas, correct?  “Yup.”  So Mr. Rackstraw, take that piece of paper out of your pocket and read the last sentence to the jury.  “Linda’s part of it”.  Oooooh thank you, thank you, thank you.

Linda was “part of it”

More great stuff about Uncle Bill.  He had a business making windows and a friend who was a private investigator wanted some windows.  So with Bill paying the expenses (but not for his time) the investigator journeyed to Hawaii.  Bill had bought into the phone calls about pop in Hawaii.  Now I figured the investigator was happy to spend Bill’s money hunting for pop (who lay mouldering in the grave like John Brown’s body).  Another miracle.  He went to the Maui police department and looked up or asked about Phil Rackstraw.  Yeah turns out there was a Rackstraw picked up for DUI.  Well, it was a year earlier, the same time Bob was on Maui and busted for a DUI, but I guess the Maui PD had pretty sloppy record keeping (or perhaps the investigator knew the truth but wanted Bill to feel he was getting his money’s worth.)  So I kind of corroborated Bob’s story of the Hawaii phone calls and letters (though we all knew pop was dead and buried.)

A couple of other lucky breaks:  The kid renting the trailer became my friend.  I had a new BMW.  He was about 17 and had a cute little wife who couldn’t be more than 16 but already had a baby and was pregnant again.  So he loved the BMW (very mountainous roads up there). I generally do my own investigating as unless the client can not only afford to pay the investigator but also have him sitting through the trial so that something said in court might trigger something he learned earlier.  But no one can do it better than you because you might hear something from the stand or learn something (like Linda’s part of it) which could be twisted a teeny bit to be very important.  Anyhow the kid loved the Beemer so I would get in the passenger seat and let him drive and drive.  Of course to keep driving he would keep talking and the more he talked the more I learned.  I actually went to see him (and other folks) about 5 times and I always leaned something new, although mostly irrelevant.  But after his very forgetful testimony which was incredibly helpful there was a recess.  So I’m leaning against my car smoking a cigarette and the couple comes out of court.  And they’re arguing.  She:  “you better ask him”; Him:  “Naw he’s really busy” but since I liked them and figuring it was a silly civil question I could spend a couple of minutes chatting.  I approached and asked what they were arguing about. Well says sonny, “I found pop’s pants in a barrel in the shed under a sack of cement – we knew they belonged to pop as he had a waist size bigger than his leg length and had a brand of pipe tobacco, his brand, in the pocket.”  “Huh?  what did you do with them.”  Now the importance of pop’s pants being hidden fit right in with the homosexual motor cycle gang theory.  He said he called the deputy sheriff and told him about them.  This deputy had done all the investigation.  Well, what did the deputy do?  Never came out there, (the trailer was fairly far outside of town) so I called him at least two more times and he said he’d be out but never came.  Finally my mom called him and he told her they were of no use (even though there were blood stains on them).  That made for an interesting set of questions to ask the Deputy about why he didn’t retrieve, bloodstained, which might well have the blood of the murderous dog on it, which could be typed, etc.  Needless to say, it was a crucial piece of evidence. 

I found pop’s pants in a barrel in the shed under a sack of cement

I also had learned previously that the deputy came to the trailer, saw a spot on the “wall to wall carpet”.  He cut the carpet and went back to the office.  So I asked him what he did with the carpet.  Now in real life he simply cut a wedge, rolled back the crap wall to wall carpet, scraped some rubber off the back, and folded the carpet back down.  Anyhow he testified how he sent the carpet to the crime lab in Sacramento but they told him there was no useful evidence.  So where is the carpet now? sez I.  “In the evidence locker.” So we spent a little time on the sanctity of the evidence locker, only he and the sheriff had keys, it was guarded closely, etc.  Anyhow my questions suggested he cut a chunk out of the man’s wall to wall and took it away.  He had no real memory of what he had done so my explanation was as good as any.  Anyhow it was now in the evidence locker, the impossible to get anything out of it evidence locker.  I asked for a recess so he could get the carpet so I could have it independently tested.  OK.  30 minutes later a very embarrassed deputy returns and says he can’t find it.  Well of course I carried on about the evidence locker, harder to enter than Fort Knox.  Did he think the Sheriff might have taken it.  Oh no, never.  Well didn’t he plan to return it after the trial.  I mean he cut a chunk out of the man’s wall to wall carpet (by now it was sounding like an antique Persian carpet) and of course he’d bring it back.  But now it was missing.  And it should have been clear that the defense would want to do some independent testing.  Blah blah blah.

More fun.  A private forensic guy I knew came up from Berkeley to testify for the prosecution (again calling him made no sense).  I saw him at the recess so we went outside and talked a bit about his testimony.  Then he took the stand.  He said the Deputy sent him the undershirt and woolen shirt pop was wearing.  So what did he want you to do?  Check for bullets or bullet holes.  Well sir to check for slugs you could just have lifted the shirt and shook it over the table.  If you heard a thump you’d look down to see if there was a bullet and if you didn’t hear a thump you’d figure there were none, correct?  Yes.  Now did you carefully examining the wool shirt found on his body.  He did.  And did you learn anything.  Not really.  But sir isn’t it true that a shirt like that is to be dry cleaned.  Yes.  And there would be dry cleaning marks which might reveal that the shirt really belonged to the perpetrator (though why one of the gay motorcyclists would dress him in a shirt belonging to one of them was not pursued on cross.).  So I asked the forensic guy to please go back to Berkeley this evening and on tomorrow morning bring me the undershirt and wool shirt so I can send it out for an independent examination.

I can’t.

What, you can’t, where is it, did you send it back to the sheriff.

No.

So what did you do with these incredibly valuable pieces of evidence.

I destroyed them (remember these are pretty disgusting pieces of evidence with brain spatter which sat underground for a year).

OMG you have done forensic work for x years.  Have you ever destroyed a piece of evidence before.

No sir.

Evidence forensic

Evidence was missing and discarded.

Well then, why in god’s name would you now destroy a piece of evidence which had blood we could type (before the days of DNA) and possible laundry marks.

Well, the deputy told me to.

Nothing further.

Ah but the motel in Calaveras. Before I had to get a bit adversarial with the deputy I was soliciting the names of good restaurant(s) from him.  San Andreas, at least then, was not the center of the gourmet scene in Northern Cali. Might be different today. I think I told you the cop math story where Dennis Downum of the Alameda County Narcotics Strike Force got so panicky when I alluded to the fact that he was supplying his snitches with heroin without actually saying it but letting him feel that this was about to be revealed in the next question (not terribly relevant) that he developed a brain freeze and had no idea how many grams compromised an ounce, and how many ounces in half a pound. This was so even after a juror yelled out “eight”. Well years after I blew the Deputy and the DA out of the water that good ole boy, Dennis Downum, became Calaveras County’s chief narc.  I’d like nothing better than a drug case up there.

An aside, sorry.

I also asked the deputy to recommend a motel. He waxed enthusiastic about one place as it had an outdoor hot tub and the owner, an older woman, might just let me use it. So I checked in, evening fast approaching and mentioned the deputy referring me and said he told me I might be able to use your hot tub. Why interestingly enough she was about to use it herself and invited me to join her. I had hair then and was stylishly slim, it was many years ago. But I was married so, no go.

Anyhow we became such good friends that she became my process server and told me lots about the local witnesses. I really felt kind of bad tearing that deputy a new asshole after this kindness, though I guess not that bad.

The jury afterwards were pretty equally divided between the Stockton mob and the Gay Biker contingent from SF but two jurors thought that if the Deputy was not involved in the murder directly he could have been “part of it”

Anyhow the case went on and on with the DA growing more and more pale and the judge having trouble suppressing a laugh.  After the not guilty he pulled me aside and told me I was fortunate that I got a not guilty instead of a hung, because “if it hung and they retried, I would have told the DA what he missed”.  Oy.

One last great moment.  There was a back hoe on the land about 20 yards from the grave.  Bob as well as pop were expert back hoe operators.  So I had brought out on direct that it was there, about 20 yards away and that Bob could have easily taken the back hoe, moved it and dug a deep grave (he was found about 18 inches down).  Aha, now the DA had me.

Vern, that back hoe had a broken caterpillar tread, didn’t it.

Yup – Vern and I were buddies having gone out to his house for dinner a couple of times.  People in the rural tend to be very friendly.

So the DA says “well, then with that broken tread he couldn’t have moved it at all”

Says Vern, sure he could.  He’d hop it on the shovel, then hop it on the (whatever the other end is called) and hop it back and forth and he could move it anywhere.  And once he got it to where he wanted it he could dig down 10 feet in 10 minutes.

Juror Number 6:  Well, Vern, was that a D-6 (or some other technical designation).]

Yup sez Vern

Juror Number 6:  Well then of course he coulda done it.  Several knowing nods from the other jurors.

Well, I’m sure I’m leaving out a lot of funny stuff but here is Bob on the stand.

First we spent half a day going over all the medals he won fighting in Viet Nam, etc. Then:

Bob, they say you forged pop’s name to some checks taken out of his checkbook and forged his name to the Sacramento check, right?

Yes I did.

Well, why would you do that.

Pop told me to.

Well, they say……etc etc etc.  You see pop had called Bobby and told him he was in big trouble because of his large debt to the Stockton mob.  He wanted Bob to bring him $30,000 so he could get to Hawaii.  Fortunately Bob’s girlfriend happened to have that kind of cash lying around the house so no problem.  Then he give Bob his checkbook and told him when the Sacramento Government check came in to sign pop’s name and sign his name to the other checks (interestingly totaling just under $30,000 as Bob was not a greedy guy).

Because pop told me to.

Bob, they say you murdered pop.

Bob, they say you murdered pop

Mr. Roberts, with god as my witness I did not murder pop, I loved the man, and I will spend the rest of my life hunting down the man who did.

And this was long before OJ stole that great line.

Interestingly enough although it has been my practice to dirty the victim to the point where the jury would have willingly helped the defendant and if the Vic had in any way injured an animal even though the “injury” was inferred, a definite not guilty. But here there were no animals injured in the making of this trial and I was nothing but respectful about dear old Phil. As long as there is someone of importance that the jury will learn to hate it doesn’t necessarily need to be the victim. Uncle Bill played that role admirably. Especially when he tried to make chubby ol Linda a co-conspirator.

One other wonderful thing about Bob. I knew he had mailed a case of dynamite to a pal in Texas while he was about to go to Iran to teach the Shah’s pilots (so you see how old this case is) how to fly helicopters. I don’t think I mentioned that Bob was a special secret type in the military, tougher than the Seals. He told me that if he and a pal would walk into a green beret bar it would empty immediately. He also once told me he could kill me with one finger. I told him my wife would never give back a dime of the fee so he better wait until the case was over. Anyhow his big thing was flying a helicopter. His first date with the young woman who allegedly came up with all that money for pop consisted of them driving to a local airport (he hadn’t told her the plan) getting into a helicopter and flying them to a high Mesa where he then produced a picnic basket of sandwiches and wine. Of course she fell in love immediately.  One of the reasons the authorities thought Bob was D B Cooper was that according to Bob there were less than 200 guys who could parachute from the lowered rear stairs of a fast moving 727 jet and live. Youngsters, if you never heard of D B Cooper ask dad or even grand dad or google the name.

I don’t think I mentioned that Bob was a special secret type in the military, tougher than the Seals

So here is a story that few know. When I asked Bob why he’d mail a case of dynamite to a friend he told me he was leaving the US so sent it to his pal. But I persisted questioning why anyone might really enjoy having the UPS man come and deliver a case of dynamite. Bob looked at me as you  would look at an imbecile (this was before the trial started) and said “you’ve never messed with powder have you”?  No Bob I’m from New Jersey. We don’t mess with powder. Perhaps a few firecrackers on the 4th but nothing more. He then went into a rhapsodic near trance telling me about felling trees, levitating old cars and the like. Well simultaneously I was doing the Dennis Banks case.

Dennis Roberts

Dennis Roberts, with the giant 70’s fro, stands behind his client Dennis Banks during a press conference

Dennis Banks was charged with two sets of felonies, possession of auto weapons with obliterated serial numbers and possessing 6 cases of dynamite. I knew we were dead in the water with the weapons but maybe I had a prayer in claiming the dynamite seized was not really exploding type dynamite. Yes, I admit, I was grasping at straws. Back in the day there were no video cameras. The Oregon trooper who stopped them near Bend Oregon simply took three sticks of what they insisted was dynamite, tied them together, lit and detonated them. This was memorialized with a few polaroids. Then although there was a magazine near by which would have safely held all or at least some of the cases they burned the rest. This of course took away my ability to have this ersatz bogus dynamite shown to be just that, not volatile dynamite at all. Thank god. All we had was the dopey polaroids. I showed them to our Portland dynamite expert and asked him if he could come up with a theory that this was not dynamite after I showed him the Polaroids. He came close to laughing in my face. – I mean the photos showed the trooper holding the three tied together sticks, a few more photos and then one showing what a lay person would believe to be an explosion and lots of smoke. Shit. But then I would be seeing Rackstraw in a few days so I brought the photos and asked him whether he had an explanation of why this was clearly not volatile – maybe even not dynamite sticks at all. Now Bob was in his element. He looked at the pix and in 30 seconds told me of course this is bunk,not at all volatile.

You see the substance wrapped around and holding the three sticks together was not ordinary cord. It was primer core, the substance you can use to ignite dynamite. And so the cord was lit but there was no explosion. See here, in this photo you see the field of what might be dried grass. Well the cord was lit, the sticks and cord fell to the ground with the cord setting the dry grass on fire and this huge cloud  that laymen would think was an explosion was really the grass rapidly burning. Since it was better than anything I had come up with I ran it by the Portland expert not bothering to tell him the theory came from a man facing a murder charge. Why yes, that makes perfect sense. Your California expert was right. Explaining that it would be cost prohibitive to bring my California expert to Portland and not mentioning we would be talking about a habeas corpus ad testefecundum to achieve it the Portland expert testified quite believably. Judge bought it and suppressed the dynamite counts.

Then the crybabies in the U S Attorney office said they planed to take an interim appeal as they wanted to try both sets of counts together – not enough to just try a car full of automatic weapons with the serial numbers removed. They were into serious overkill. Well the motion was argued just before the trial was to start the next AM. I told the judge that this is outrageous. Didn’t they think they could extract enough time from these defendants without piling on. Judge, I came up here from Oakland putting over all sorts of other cases and now I’d have to wait months to exonerate these clients. We’re ready for trial. If you order trial to commence and they refuse you should dismiss with prejudice. They continued to refuse to go to trial, never for a moment the judge would dismiss but the judge adopted my suggestion. Then for the next 13 years the case U S v Loud Hawk went to the 9th Circuit Court of Appeals three times and SCOTUS twice. Finally we had nothing left. So I came up to try the case. There were also 4 co-defendants. 13 years earlier we were offered double digit sentences. Now the head U S Attorney faced with the death of the trooper and confused and faded memories approached wanting to know if we couldn’t work this ancient case out. I told him it was doubtful based on the offer of 13 years ago. Oh he said, we can be more reasonable. Banks pleads to a no time no fine no probation misdemeanor and we will cut the other four defendants loose. Well he twisted my arm and so ended the  saga of Dennis Banks. But his freedom is entirely due to Airborne Bob Rackstraw.  Lots more great stories around that case but it’s 3:00 AM and I’m getting sleepy so g’nite children.  Oh, but yes, the end of the Corvette story …

Finally, the corvette story

The Vette was a mess but the Mitchell Brothers heard I owned it so they offered to restore it. I expected a restoration on the body but after restoring the body they dumped a huge Chevy engine under the hood. Fearing it wouldn’t be fast enough they added a nitrous unit so it developed 505 HP. You could only start it in second gear as in first you’d just burn the rubber to the rim. Then Hunter Thompson borrowed it and having ingested a cornucopia of drugs and booze he totaled it. The Mitchell Brothers of The O’Farrell Theater fame (SF first porn theater and producers of Behind The Green Door) rebuilt it – exactly as before. One day driving it on the main drag in Petaluma with my ex-wife on a hot summer day.  Guys on the streets were yelling things like “wow, what a beauty,” “wish I had one” and the like. The best part is she really believed they were talking about her, not the car. The drive home was ugly when I told her the truth.

 

 

Four defense lawyers in the conspiracy trial of eight political activists, hold press conference at Federal Building in Chicago, Sept. 29, 1969, after Judge Julius Hoffman dismissed contempt charges against them. From left are Dennis Roberts, Oakland, California; Michael Tigar, Los Angeles; Gerald Lefcourt, New York, and Michael Kennedy, San Francisco. Judge Hoffman also allowed the four to withdraw from the case involving right defendants charged with violating the Federal Antiriot law. (AP Photo/Charles Knoblock)

Four defense lawyers in the conspiracy trial of eight political activists, hold press conference at Federal Building in Chicago, Sept. 29, 1969, after Judge Julius Hoffman dismissed contempt charges against them. From left are Dennis Roberts, Oakland, California; Michael Tigar, Los Angeles; Gerald Lefcourt, New York, and Michael Kennedy, San Francisco. Judge Hoffman also allowed the four to withdraw from the case involving right defendants charged with violating the Federal Antiriot law. (AP Photo/Charles Knoblock)

 

 

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THE DEFENSE MOVES FOR AN ORDER IN LIMINE TO EXCLUDE ALL STATEMENTS MADE BY THE DEFENDANT IN VIOLATION OF HIS/HER MIRANDA RIGHTS

Any and all statements made by THE DEFENDANT are incompetent, hearsay and prejudicial (pursuant to Evidence Code § 352) and made in the absence of a Miranda admonition when THE DEFENDANT was arrested and in police custody. (Miranda v. Arizona, (1966) 384 U.S. 436; Oregon v. Mathiason, (1977) 429 U.S. 492 (admonishment required only when there has been such a restriction to render the person in custody); California v. Beheler, (1983) 463 U.S. 1121, 1125 ([T]he ultimate inquiry is simply whether there is a formal arrest or restraint of freedom of movement of the degree associated with a formal arrest); Berkemer v. McCarty, (1984) 468 U.S. 420, 437, 442 (The safeguards in Miranda were designed to ensure that the police do not coerce or trick a suspect into confessing); People v. Bellomo, (1992) 10 Cal.App.4th 195, 198-200 (As established by Berkemer, the focus of an official investigation is irrelevant to custody unless it is somehow communicated to the defendant. Accusatory questioning is one obvious way of making manifest the investigation’s focus); People v. Arnold, (1967) 66 Cal.2d 438, 448 (suspect’s state of mind, and what the suspect believed is critical in this inquiry); and  People v. Blouin, (1978) 80 Cal.App.3d 269, 283 (Test is whether the suspect was deprived of freedom of movement in any significant way.)

The prosecution, as the proponent of the evidence, must establish a basis for the admission of a defendant’s statements.  The prosecution must show how each statement that it proposes to play or recount for the jury is both relevant and meets a particular hearsay exception.  (See Cal. Evid. Code §§ 110, 210, 350, 403(a), 405(a), 550, 1200(b), and 1201.)

The proponent of proffered evidence must show both its relevance and the applicability of a hearsay exception.  If the proponent fails to make both those showings, the trial court must exclude that evidence. (People v. Morrison (2004) 34 Cal.4th 698, 724; People v. Ramos (1997) 15 Cal.4th 1133, 1177-1178; People v. Livaditis (1992) 2 Cal.4th 759, 778; People v. Adams (1983) 149 Cal.App.3d 1190, 1194; and People v. Rodriguez (1969) 274 Cal.App.2d 770, 777.)

In Adams, the court said, “The proponent of the evidence generally has the burden of showing relevance, and relevance is essential to admissibility. (Cal. Evid. Code §§ 350, 403).”  (Id. at 1194.)  The California Supreme Court has applied the same rule to hearsay: “The proponent of hearsay has to alert the court to the exception relied upon and has the burden of laying the proper foundation.”  (People v. Livaditis (1992) 2 Cal.4th 759, 778.)

In People v. Rodriguez (1969) 274 Cal.App.2d 770, cited by the California Supreme Court on this point with approval in People v. Morrison (2004) 34 Cal.4th 698, 724, the Court said, “Under Evidence Code sections 403 and 405, if a hearsay objection is properly made, the burden shifts to the party offering the hearsay to lay a proper foundation for its admissibility under an exception to the hearsay rule.”  (Id. at 777.)

 

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

MEDICAL MARIJUANA COMPUTER HACKING MURDER HOMICIDE

A creative and multi-faceted vigorous defense comes from a creative, multifaceted guy.” – Jay Leiderman. Here’s Jay’s recent career as told through pictures.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

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THE DEFENSE MOVES FOR AN ORDER TO EXCLUDE ANY EVIDENCE THAT HAS NOT YET BEEN PROVIDED, IF ANY EXISTS

This request includes any documentary evidence such as certified documents, digital or any such photographs, audio recordings or other such materials or logs, charts, results of tests, physical or chemical evidence, and other such materials that were not turned over to the defense in this matter (in violation of California Penal Code section 1054 et seq.).  This request includes but is not limited to any witnesses not in the police report and not disclosed to the defense.  It also includes any expert testimony for which the defense has not received both the name of the testifying expert witness and his or her Curriculum Vitae.

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state, and in federal courts throughout the nation. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the Ventura, Santa Barbara and San Luis Obispo area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

ventura county ca attorney jay leiderman

Certified criminal law specialist Jay Leiderman is always studying the law for new and creative ways to giver his clients the best possible defense they could have.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

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THE DEFENSE MOVES FOR AN ORDER TO EXCLUDE ANY REFERENCE TO THE DEFENDANT’S CRIMINAL HISTORY INCLUDING, BUT NOT LIMITED TO, CONVICTIONS, CHARGES OR ACCUSATIONS, UNLESS THE DEFENDANT OPENS THE DOOR THERETO

  1. Misdemeanor conduct 

Any act of misdemeanor misconduct that does not involve moral turpitude must be excluded as irrelevant.  The California Supreme Court has found that California Constitution Article I, Section 28(d) permits the introduction of relevant misdemeanor misconduct involving moral turpitude for the sole purpose of impeachment in criminal proceedings (People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 9, 14 Cal.Rptr.2d 418, 841 P.2d 938.)  Even so, the introduction of even those convictions is subject to limitation.

“Not all past conduct has a tendency in reason to prove or disprove a witness’s honesty and veracity.” (Id. at 295.)  First, the conduct must constitute “moral turpitude” within the meaning of People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111. As the court in Wheeler stated: “Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.” (Id. at 296.)

Even if the past misconduct involves moral turpitude, the trial court must still exercise its discretion pursuant to Evidence Code section 352.

On proper motion by the defense, the trial court must exercise discretion and exclude impeachment evidence involving moral turpitude when its probative value is outweighed by its prejudicial effect. (People v. Castro supra. at 316.)

Beyond this, the latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nit-picking wars of attrition over collateral credibility issues. By expressly preserving this authority, section 28(d) of Proposition 115 makes clear the voters’ determination to prevent such consequences. “When exercising its discretion under California Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area.” (Citations omitted.) But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor – or any other conduct not amounting to a felony – is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (People v. Wheeler supra. at 296, 297.)

The California Supreme Court concluded, “section 28(d) [of Prop. 115] expressly leaves California trial courts free to exclude evidence which is irrelevant, or whose marginal relevance is outweighed by the unfair prejudice or other difficulties its introduction might cause.” (Id. at 295.)

 

The fact of a misdemeanor conviction constitutes inadmissible hearsay.  The California Supreme Court has concluded that the fact that a witness has suffered a misdemeanor conviction is hearsay and is not admissible over objection.

Indeed, misdemeanor convictions are subject to a hearsay objection when offered to prove the witness committed the underlying crimes. Thus, impeaching misconduct now may, and sometimes must, be proven by direct evidence of the acts committed (People v. Wheeler supra. at 297, fn.7.)

2. Even relevant evidence may be excluded under Evidence Code section 352.

The court in its discretion may exclude potentially relevant evidence if the probative value of the evidence is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice.  Evidence Code section 352 provides:

 

“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

 

As the appellate court observed in Kessler v Gray (1978, 2nd Dist.) 77 Cal. App.3d 284, 291, 143 Cal Rptr 496:

“Evidence Code section 352 vests discretion in the trial judge to exclude evidence where its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of prejudice, of confusion of issues, or of misleading a jury.

 

Reasonable exercise of trial court discretion pursuant to Evidence Code section 352 requires that the trial judge balance the probative value of the offered evidence against its potential of prejudice, undue consumption of time, and confusion. [Citation omitted.] That balancing process requires consideration of the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relevant to the main or only a collateral issue, and the necessity of the evidence to the proponent’s case as well as the reasons recited in section 352 for exclusion. [Citation omitted.] The more substantial the probative value of the evidence, the greater the danger of the presence of one of the excluding factors that must be present to support an exercise of trial court discretion excluding the evidence.”

 

Undue prejudice under Evidence Code section 352 means that the evidence will have an effect on the jury unrelated to the issue for which it was admitted.  The prejudice that section 352 is designed to avoid “is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. Rather, the statute uses the word in [the] sense of ‘prejudging’ a person or cause on the basis of extraneous factors.” (People v. Zapien (1993) 4 Cal .4th 929, 958, 17 Cal Rptr 2d 122, 846 P2d 704.)

Accordingly, the danger of undue prejudice means that the evidence is likely to arouse the emotions of the jurors or be used in some manner unrelated to the issue on which it was admissible (People v. Cudjo (1993) 6 Cal.4th 585, 610, 25 Cal Rptr 2d 390, 863 P2d 635.)

“Substantial danger of undue prejudice” within the meaning of Evidence Code section 352 thus refers to a situation where the evidence may be misused by the jury for a purpose other than that for which it was admitted (People v. Filson (1994) 22 Cal.App. 4th 1841, 28 Cal Rptr 2d 335.)

Here, the defense moves for an order to exclude any reference to the prior misdemeanor conviction from the trial.

 

 

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

computer crime fraud identity theft hacker hackers

Hacktivist’s Advocate Jay Leiderman speaks about the Hacker Wars on a Panel at South By Southwest (SXSW) in Austin TX. Jay lectures around Ventura County, around California and around the nation.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

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