Law Commons^™

Black Swans, Ostriches, And Ponzi Schemes, Nancy B. Rapoport

Golden Gate University Law Review

Cite as 42 Golden Gate U. L. Rev. 627 (2012).

The Collapse Of Financial Fraud: Measuring Bankruptcy Avoidance Action, Jessica D. Gabel, Isaac Asher, Mary Beth Byington

Golden Gate University Law Review

Ponzi schemes lay their foundation on fraud. Once the con is exposed, the culprits are usually stripped of their pilfered millions and sent off to jail. Unfortunately for the victims, the process of recovering any portion of the money they lost in the scam is, to put it mildly, complicated. The challenge rests, in part, in differences between federal forfeiture statutes and Bankruptcy Code principles in determining what assets can be recovered and who is entitled to a portion of the Ponzi pie. What is a Ponzi scheme (as defined by the courts rather than the media)? The Second Circuit …

Handling Claims In Ponzi Scheme Bankruptcy And Receivership Cases, Kathy Bazoian Phelps

Golden Gate University Law Review

The end game for defrauded investors and other creditors in a Ponzi scheme case is the recovery of the maximum amount on their claims. Depending on whether the Ponzi perpetrator has landed in a bankruptcy case or a receivership proceeding, the rules governing the allowance and distribution priorities for claims filed in Ponzi scheme cases may vary. This Article discusses the treatment of the defrauded investor’s claim in both bankruptcy and receivership cases. This Article also contrasts relatively rigid provisions in the Bankruptcy Code for the allowance, priority and distribution of claims in Ponzi scheme cases with the more flexible …

Friction In Reconciling Criminal Forfeiture And Bankruptcy: The Criminal Forfeiture Part, Sarah N. Welling, Jane Lyle Hord

Golden Gate University Law Review

The federal government uses two general types of asset forfeiture, criminal and civil. This Article addresses criminal forfeiture, which allows the government to take property from defendants when they are convicted of crimes. It is “an aspect of punishment imposed following conviction of a substantive criminal offense.” The goal of this Article is to give an overview of the forfeiture process, specifically in relation to claims victims and creditors might assert as third-party claimants.

Cite as 42 Golden Gate U. L. Rev. 551 (2012).

Keynote Address: Stories In The Development Of Bankruptcy Law, Gerald F. Munitz

Golden Gate University Law Review

Cite as: 42 Golden Gate U. L. Rev. 539 (2012).

Debt And Crime: Inevitable Bedfellows, Karen Gebbia

Golden Gate University Law Review

Criminal law and bankruptcy law approach fraud with a variety of objectives, only some of which overlap. Each contains elements of both restorative and distributive justice—the notion that the fraudster should be held accountable, the injured should be compensated, and distribution should be fair. Yet, criminal law and bankruptcy law inculcate these goals with profoundly different understandings, histories, contexts and practices. Consequently, the long arm of the law and the strong arm of the trustee have uniquely honed tools, unavailable to the other, for achieving their purposes. Inevitably, then, tension arises when criminal law and bankruptcy law simultaneously attempt to …

Children Aren't Adults, Even When They Kill, Reichi Lee

Publications

No abstract provided.

Lost Souls: Constitutional Implications For The Deficiencies In Treatment For Persons With Mental Illness In Custody, Katherine L. Smith

Golden Gate University Law Review

This Comment explores systemic deficiencies of access to mental health care in prison systems and the Eighth Amendment implications of those deficiencies. Because the Eighth Amendment prohibits, among other things, infliction of cruel and unusual punishments, when denial of adequate mental health care results in undue suffering, the conditions of confinement may violate the Constitution. Therefore, there must be mechanisms in place to ensure necessary treatment is provided while protecting individual rights.

Part I of this Comment addresses the duty a state owes to those it incarcerates (e.g., to provide food, clothing, recreation, education, medical care) and what standards exist …

Requiring The State To Justify Supermax Confinement For Mentally Ill Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura Rovner

Publications

The Eighth Amendment has long served as the traditional legal vehicle for challenging prison conditions, including long-term isolation or "supermax" confinement. As described by Hafemeister and George in their article, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, some prisoners with mental illness have prevailed in Eighth Amendment challenges to prolonged isolation. Yet an equal or greater number of these claims have been unsuccessful. This Essay considers why some of these cases fail, and suggests that one reason is that Eighth Amendment jurisprudence does not contain a …

No Change In Sight For Sentencing Guidelines, Wes R. Porter

Publications

In the post-Booker era, the commission must reinvent itself to provide a useful tool for the courts in determining punishment, explains Wes Reber Porter of Golden Gate University School of Law.

Confrontation Clause Again Before High Court, Robert K. Calhoun

Publications

This past term, the U.S. Supreme Court decided the latest in a series of confrontation clause cases that began in 2004 with Crawford v. Washington, 541 U.S. 36. In Bullcoming v. New Mexico, 11 C.D.O.S. 7706, the court held that the confrontation clause does not permit the government to introduce a forensic lab report in a criminal trial through the in-court testimony of an analyst who did not personally perform or observe the test that formed the basis for the report.

The Sex Offender Registration And Notification Act: The Need To Break The Constitutional Mold, Bailey Bifoss

Golden Gate University Law Review

The Sex Offender Registration and Notification Act (SORNA) is an example of legislation that utilizes the constitutional mold, as it contains a jurisdictional hook that expressly limits its application to activities that affect interstate commerce. SORNA’s jurisdictional hook states that a sex offender is guilty of violating its provisions if, after that offender travels in interstate commerce, he or she fails to register or update a registration as required. This hook provides federal jurisdiction over sex offenders even though SORNA’s purpose is to regulate criminal conduct and thus traditionally within the states’ power to regulate. SORNA, therefore, exemplifies the way …

Why Cops Lie, Peter Keane

Publications

Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.

Ninth Circuit Strikes Out On Hearsay, Peter Keane

Publications

The recent Ninth Circuit U.S. Court of Appeals opinion, United States v. Barry Bonds , is a murky distortion of an important Federal Rule of Evidence. Quite apart from any celebrity status about a decision regarding the upcoming perjury trial of the former Giants' slugger, the ruling significantly affects the admissibility of evidence in the federal courts in an unfortunate and erroneous way.

The Pendulum In Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role For Binding Plea Agreements Post-Booker, Wes R. Porter

Publications

This article argues that in addition to the swing toward increased judicial discretion and overall lower sentences, the pendulum also can swing toward predictability and informed decision making for the defendant. The federal sentencing scheme must allow a defendant to pursue, negotiate, and contract for what the defendant believes is a uniform, proportional, and fair sentence. Increased use of binding plea agreements in federal court could complement the progressive developments following Booker and restore some predictability and informed decision making to federal sentencing. However, without significant rule, policy, and perception changes, like those proposed in Part VI of this article, …

Wrongfully Convicted: The Overrepresentation Of The Poor, Susan Rutberg

Publications

Professor Susan Rutberg introduced a panel of her students who presented papers, each focused on an individual cause of wrongful convictions and a proposed solution to this identified problem. The panel illustrated how law school students can use the lens of their inexperience to articulate straightforward approaches that might reduce the circumstances that produce wrongful convictions and alleviate some of the hardship such convictions cause.

Wrongfully Incarcerated, Randomly Compensated - How To Fund Wrongful-Conviction Compensation Statutes, Deborah M. Mostaghel

Publications

It is sadly true that there are people in this country who are sentenced to prison, and even death, for crimes they did not commit. Some have been exonerated and released, largely as the result of innocence projects that have helped prisoners assemble DNA evidence that shows they were not the perpetrators. Some have been exonerated years after they died in prison. Many others are no doubt never exonerated. For a wrongfully convicted person, exoneration is the end of one road but only the beginning of another. Unbelievably, exonerees starting out on the road back to society find that they …

Selected Problems In The Administration Of Criminal Justice, Alvin H. Goldstein Jr.

Cal Law Trends and Developments

What follows is an effort to focus attention on certain problem areas in the day-to-day administration of justice. They are problems not so much because of their complexity, but rather because uncertainty persists despite considerable discussion of the rules governing each area. I have selected preliminary hearings, bail, appointment of counsel, sua sponte judicial dismissals, and reasonable doubt as appropriate topics for this chapter. There are, of course, numerous others entitled to treatment, but each of those selected relates to a subject over which the trial judge may exercise an extremely broad discretion. The exercise of this discretion may alter …

Judicial Dilemmas In Enforcement Of Drug Abuse Laws, Alvin H. Goldstein Jr.

Cal Law Trends and Developments

No abstract provided.

Criminal Law And Procedure, Rex A. Collings Jr.

Cal Law Trends and Developments

No abstract provided.

Criminal Law And Procedure, Rex A. Collings Jr.

Cal Law Trends and Developments

Probably the single most important development of the year came from the Joint Committee for the Revision of the Penal Code. That committee published its Tentative Draft No.1. The draft deals with general principles of liability, defenses, kidnapping and related crimes, sex crimes and arson. Other drafts are expected in the near future. It is hoped that the ultimate result will be a modernization of the Penal Code of 1872, which is badly in need of clarification and revision. Since 1872, there has never been a continuing and coordinated effort to develop a coherent and comprehensive code.

Another important development …

What's The Deference?: United States V. Hinkson Outlines A New Test For “Abuse Of Discretion”, William B. Jones

Golden Gate University Law Review

Prior to United States v. Hinkson, under the prevailing analysis used to determine whether the trial court had engaged in an “abuse of discretion,” there was arguably “no effective limit” on an appellate court’s power to substitute its own judgment for that of the district court. Rather, it was left to the appellate panel to decide whether it had a “definite and firm conviction that [a] mistake [had] been committed,” or whether a trial court’s factual finding was even “permissible.” But in Hinkson, an en banc panel of the Ninth Circuit took the opportunity to elaborate on the abuse-of-discretion standard. …

“When Can I Tase Him, Bro?”: Bryan V. Mcpherson And The Propriety Of Police Use Of Tasers, Sam W. Wu

Golden Gate University Law Review

This Case Summary begins by detailing the factual and procedural history of Bryan. Next, it outlines the “reasonable use of force” analysis of the Ninth Circuit as applied to Tasers. Finally, it concludes by briefly discussing the broad implications of Bryan, both for law enforcement and for every individual who may someday find himself or herself facing a police officer armed with a Taser.

Possession Of Reading Material And Intent To Commit A Crime In United States V. Curtin, Anna L. Benvenue

Golden Gate University Law Review

The majority opinion in United States v. Curtin held that simple possession of reading material can be evidence of a defendant's criminal intent, even without proof that the accused ever read the materials. Circuit Judge Stephen S. Trott, who wrote the majority decision, overruled prior Ninth Circuit precedent that would have made such evidence inadmissible as irrelevant under Federal Rule of Evidence 401. However, the majority also found the district court judge's failure to properly analyze the evidence under Rule 403 warranted reversal and remand. As a result, the remaining seven judges on the panel filed or joined concurrences, rather …

Out Of Step: When The California Street Terrorism Enforcement And Prevention Act Stumbles Into Penal Code Limits, J. Franklin Sigal

Golden Gate University Law Review

This Comment focuses on how the multiple-punishment prohibition of section 654 applies to the enhancements of one particular California statute: the Street Terrorism Enforcement and Prevention ("STEP") Act, a piece of anti-gang legislation passed in 1988 in the wake of rampant gang-related violence in the Los Angeles area. Specifically, this discussion centers on the imposition of multiple gang-enhancement provisions on a single defendant who engages in a single crime spree. If section 654 does apply to gang enhancements, then the prosecutorial practice of attaching them to every criminal charge in an indictment violates the intent of this Penal Code section, …

A Crime Victim's Right To Be "Reasonably Heard": Kenna V. United States District Court, Michael P. Vidmar

Golden Gate University Law Review

In Kenna v. United States District Court, the Ninth Circuit held that under the Crime Victim's Rights Act ("CYRA"), a crime victim's right to be "reasonably heard" during sentencing was not limited to written impact statements, but included the right to allocute at any public proceeding. This was an issue of first impression in the Ninth Circuit. "No court of appeals had addressed the scope of this particular CVRA right." Two district courts had considered this issue and had reached contrary decisions. The Ninth Circuit agreed with the United States District Court for the District of Utah that a plausible …

Defining "Ordinary Prudential Doctrines" After Booker: Why The Limited Remand Is The Least Of Many Evils, Michael Guasco

Golden Gate University Law Review

This Note examines the limited-remand approach in comparison with the approaches taken by the different circuits. Part I discusses the history of the Sentencing Guidelines and the cases, up to and including Booker, that completely changed the way the Sentencing Guidelines were used. Part II sets forth the history of the traditional plain error standard of review and the contemporary "Plain Error Problem." Part III examines the limited-remand approach and compares it with the approach taken in other circuits. Part IV argues that the limited-remand approach is the best of a list of bad possible choices but that the Ninth …

Violence In The Courts: The Ninth Circuit's Attempt To Grapple With And Pin Down What Is A "Crime Of Violence" In United States V. Serna, Daniel S. Cho

Golden Gate University Law Review

This Note examines the limitations of the strict categorical approach; the method by which sentencing courts and courts of review determine whether an offense is a crime of violence for sentence enhancement purposes. Part I of this Note examines the "crime of violence" sentence enhancement under the Federal Sentencing Guidelines ("Guidelines"). Part II examines the Ninth Circuit's analysis of what constitutes a crime of violence in United States v. Serna. Part III proposes that the types of sources available to sentencing courts when analyzing whether an offense is a violent crime should be expanded based on Justice O'Connor's dissenting opinion …

United States V. Howard: Refocusing Probable Cause For Probationers And Parolees, Sean A. Kersten

Golden Gate University Law Review

This Note argues that the Ninth Circuit rigidly followed circuit precedent to create and apply an incorrect standard to determine whether probable cause existed to believe that Howard resided at an unreported address. The court should have determined the reasonableness of the search by balancing Howard's reduced expectation of privacy as a probationer with legitimate governmental interests. Furthermore, the court's analysis served to protect the property at the unreported address rather than Howard's Fourth Amendment privacy rights. This decision is contrary to the principle articulated in Katz v. United States, which states the Fourth Amendment is intended to protect people, …

Career Criminals Targeted: The Verdict Is In, California's Three Strikes Law Proves Effective, Naomi Harlin Goodno

Golden Gate University Law Review

This Article reviews the impact of the Three Strikes law over the last decade and concludes that, based on data that have been collected and the manner in which the law has been applied, it has proved effective. The first section of this Article explores the history behind the legislation and the law itself. The second part of this Article sets forth three reasons why the Three Strikes law has proved effective: (1) The Three Strikes law is carrying out its goals by incapacitating career criminals and deterring crime. Since its enactment California's crime rate has dropped, and, for the …