CALIFORNIA STATE SENATORS RONALD S. CALDERON AND LELAND YEE V. CALIFORNIA STATE JUDGES STEVEN HINTZ, BARRY KLOPFER, DAVID LONG, AND KEN RILEY***, MICHAEL PASTOR, AND ROBERT PERRY : WHY WERE INDICTMENTS SOUGHT AND OBTAINED BY THE U.S. ATTORNEY'S OFFICES ( LOS ANGELES AND SAN FRANCISCO) FOR SENATORS RONALD CALDERON AND LELAND YEE, BUT NOT FOR STATE JUDGES HINTZ, KLOPFER, LONG, RILEY, PASTOR, AND PERRY , WHEN BOTH GROUPS OF STATE OFFICIALS (SENATORS AND JUDGES) WERE ACCUSED OF VIOLATING FEDERAL CRIMINAL LAW? AND, WHY WERE SENATORS CALDERON AND YEE INDICTED, WHILE JUDGES HINTZ AND KLOPFER WERE ALLOWED TO RETIRE RATHER THAN FACE INDICTMENT? ANOTHER CASE OF SELECTIVE PROSECUTION BY U.S. ATTORNEY ANDRE BIROTTE (AND HIS SAN FRANCISCO COUNTERPART) AND THE U.S. JUSTICE DEPARTMENT. WILL SENATORS CALDERON AND YEE (UNLIKE SEN. RODERICK WRIGHT, CONVICTED ON 8 COUNTS) ASSERT AND RAISE THEIR PRE-TRIAL DEFENSE?

Los Angeles, California


May 5, 2014
(Today's Date)


April 16, 2014
(Original Date)

*Denotes change made in original blog after initial publishing

**UPDATE (Denotes NEW information added to blog after original publishing)

***It is my understanding and belief that all four of these judges have retired; but, that fact does not prohibit or prevent their indictment and prosecution. They could have and should have been indicted before the Calderon-Yee indictments. And, they can be indicted now.

****This blog is being submitted as part of the War on Racial Dsicrimination(WRD) in California and the United States of America.




On one hand, in the past few months, two minority state senators, Ronald S. Calderon and Leland Yee, have been indicted by grand juries for violating federal criminal law. Those indictments were secured by the U.S. Attorney's Offices in Los Angeles and San Francisco, respectively, and, more specifically, for Senator Calderon, by U.S. Attorney Andre Birotte in Los Angeles. On the other hand, six white state judges (in the Central District of California) have been accused of violating federal criminal law, and the U.S. Attorney's Office and Birotte have not sought grand jury indictments against them (or charge them in any other way). So, the question is : why the difference in treatment?

NOTE: Although Senator Yee was indicted out of San Francisco,CA, through the San Francisco U.S. Attorney's Office(Northern District), he can nonetheless allege a difference in treatment as to the Central District judges (because it's the U.S. Justice Department that purportedly is treating him differently, regardless of which U.S. Attorney's Office actually sought the indictment), although I could identify several Northern District federal judges and other officials that Yee could point to in terms of different treatment. But, here, I will rely on the Central District judges, because they are state judges and they provide a more exacting and clearer picture of the difference in treatment between comparative groups, i.e., State Senators and State Judges.





Briefly, in 2007, I filed a federal criminal Complaint in and with the U.S. Attorney's Office in Los Angeles, whereby I charged four of the above-named state judges, among others, with conspiracy to deny constitutional rights under color of law, based on race or color (or racial discrimination), denial of constitutional rights under color of law based on race or color (racial discrimination), and, except Hintz, making and filing false statements during a judicial proceeding(based on Long, Klopfer, and Riley acting as appellate judges). Clearly, the Complaint had merit, because based on my information, understanding, and belief, the FBI took some action on the Complaint, e.g., causing the retirement of Hintz and Klopfer; but, the U.S. Attorney's office refused to seek indictments or otherwise prosecute the judges. However, that 2007 Complaint is still pending, and it was pending at the time that Calderon and Yee were indicted by the respective grand juries. So, U.S. Atorney Birotte, in Los Angeles, chose to seek an indictment of Calderon, but not of Hintz, Klopfer,Long, or Riley.

When the 2007 Complaint was filed, all of the said state judges were members of the Superior Court of California, Ventura County. The charges in the Complaint evolved from the judges' treatment of an unlawful detainer case, whereby I was unlawfully evicted from my home-law office in Ventura, California, *through the acts of the trial judge, Steven Hintz. At the time, I was the only Black lawyer practicing in the predominantly white city of Ventura, CA. And, it is clear that my services were needed, particularly by minorities. See, e.g., In the matter of Robin Juraine Crammond, 23 I & N Dec.9 (BIA 2001)(en banc), and Jackson v. Guirbino, 364 F.3d 1002 (9th Cir. 2004).


In 2011, two additional federal criminal Complaints were separately filed against judges Pastor and Perry of the Superior Court of California, Los Angeles County, on behalf of Dr. Conrad Murray (convicted of the manslaughter of Michael Jackson)(Pastor) and Oscar Grant(deceased black man murdered by a BART police officer in San Francisco)(Perry). Pastor was charged with conspiracy to deny constitutional rights under color of law and Perry was charged with deprivation of rights under color of law and conspiracy against rights. The Complaints are still pending, notwithstanding the U.S. Attorney's Office's refusal to investigate the Complaints; and the Complaints were pending at the time that Calderon and Yee were indicted. So, Birotte chose to seek an indictment of Calderon, but not Pastor and Perry.



With the above in mind, the essential question is :

WHY DID THE U.S. ATTORNEY'S OFFICES IN LOS ANGELES AND SAN FRANCISCO, AND U.S. ATTORNEY ANDRE BIROTTE SPECIFICALLY (FOR CALDERON), SEEK AND OBTAIN INDICTMENTS OF STATE SENATORS CALDERON AND YEE, BUT DID NOT SEEK INDICTMENTS OF STATE JUDGES HINTZ, LONG, RILEY, KLOPFER, PASTOR, AND PERRY, WHEN BOTH GROUPS OF STATE OFFICIALS (SENATORS AND JUDGES) WERE ACCUSED OF VIOLATING PROVISIONS OF FEDERAL CRIMINAL LAW?


Could it be because of the time difference in the actions being brought to the attention of the Justice Department? No, it couldn't be that. The Complaints against the state judges have been pending since 2007, so if the Justice Department intended to seek indictments of the judges it could have and should have been done prior to the Calderon-Yee indictments. Therefore, the time period is current for both the senators and the judges. When the respective U.S. Attorneys presented Calderon's and Yee's cases to the respective grand juries, they could have presented the judges' cases as well.


Could it be because of the nature of the charges? Perhaps. But, it would be an illegitimate basis for not prosecuting the judges. That is, the Calderon and Yee charges are generally personal gain charges, e.g., bribery, money laundering, fraud, filing false tax returns, etc., while the judges' charges are generally directed at causing personal harm to citizens. So that if the nature of the charges was the determinant factor in deciding whether to prosecute or not prosecute the senators or the judges, it would appear that the judges should have been indicted instead of the senators. Certainly, most citizens would be more concerned with protecting themselves from, and would want protection from, state officials causing them personal harm than those officials acting for personal gain, but not causing personal harm to citizens.


Could it be because of the seriousness of the charges? Or, because the personal gain charges were more serious than racial discrimination charges? No, I think not. While the personal gain conduct reflects on the Defendant's character and provides the Defendant with monetary gain, it does not cause direct harm to individual citizens and deprive those citizens of their constitutional rights (but, I'm sure it will be argued that citizens were harmed in some indirect way--like murder is considered a crime against the state or the people, even though, the only direct harm is done to the murder victim ). On the other hand, racial discrimination causes direct and individual harm to the person being discriminated against; if no other type of harm, it causes emotional harm to the person it is directed against. I would love to see the government argue before a court that it thought Calderon or Yee's conduct, e.g., bribery and money laundering, was more serious than racial discrimination, and that's why it decided to prosecute Calderon and Yee and not prosecute the judges.


Could it be because Calderon and Yee are senators and the Hintz and Pastor Defendants are judges? Perhaps, but it would, nonetheless, be an illegitimate and unconstitutional basis for treating the two groups differently, where both groups are state officers, and where both branches of government, legislative and judicial, are equal. Both Calderon and Yee, as well as the judges are high level state officials, and neither group has immunity from prosecution.


Could it be because of gender? No, both the legislators and the judges are males.


Could it be because of race or color? Yes, nearly to a certainty. Both Calderon and Yee are minorities, Hispanic-Latino and Asian; while all the judge Defendants are white (and white males). Considering the factors that I have described and discussed above, the only reasonable and logical reason for the difference in treatment between the State legislators and the State judges is race or color. Calderon and Yee were targeted for indictment and prosecution because they are minority senators. That is, the undertaking of the investigation in the first instance was done because they were minorities, even if there would not have been sufficient evidence at the end to seek an indictment. To the contrary, regarding the white judges, even when there was sufficient evidence at the outset (supplied by the victim)(without further and official investigation) to submit to a grand jury for indictment, the U.S. Attorney, Birotte, refused to seek an indictment. For instance, the FBI acted on the victim's evidence (of racial discrimination) alone in forcing Hintz and Klopfer to step down from the bench or retire. Yet, the U.S. Attorney's Office refuses to seek an indictment of Hintz and Klopfer, because they are white.

Consequently, I conclude that even if there were other factors contributing to the government's decision to indict Calderon and Yee, such as probable cause evidence, the greatest factor was Calderon's and Yee's race or color. The U.S. Attorney's Offices in Los Angeles(and U.S. Attorney Birotte) and San Francisco sought indictments of Calderon and Yee because they were minority senators, which is a denial of equal protection of the law.



SELECTIVE PROSECUTION

State Senators Calderon and Yee were obviously selectively prosecuted by the U.S. Attorney's Offices in Los Angeles (and U.S. Attorney Birotte) and San Francisco. This is especially so when viewed from the perspective or context of the comparative individuals of State Judges Hintz, Klopfer, Long, Riley, Pastor, and Perry. These individuals are sufficient for Calderon and Yee to establish a prima facie case of selective prosecution, and to prove their case.

To prove their prima facie case, Calderon and Yee must only show that: (1) others similarly situated have not been prosecuted, and (2) the prosecution is based on an impermissible motive. Based on the State Judge individuals identified herein, Calderon and Yee have demonstrated both elements.


Here are some of the reasons why State Senators Calderon and Yee are similarly-situated to the State Judge Defendants:

1. Both the Legislative (Calderon and Yee) and Judicial (Hintz,Long, Klopfer, Riley, Pastor, and Perry) Defendants are California State officials and employees.

2. Both the Legislative and Judicial Defendants are high level state officials.

3. Both the Legislative and Judicial Defendants are accused of violating federal criminal law.

4. Both the Legislative and Judicial Defendants are accused of committing federal felonies.

5. Both the Legislative and Judicial Defendants are members of a major Branch of State government, and both Branches are equal to each other.

6. Both the Legislative and Judicial Defendants committed crimes that did not involve direct physical harm to a victim, e.g., murder or mayhem.

7. Both the Legislative and Judicial Defendants are accused of being involved in conpiracies.


The impermissible motives are discriminatory purpose and intent based on race or color, or racial discrimination. If Calderon and Yee were white males, they would not have been indicted. If they were white male Senators, they likely would not have even been investigated by the U.S. Attorney's Office or the U.S. Justice Department. *On what basis did the Justice Department decide to investigate Calderon and Yee? I take no position regarding other high level State positions at this time.



CALDERON'S POSSIBLE VINDICTIVE PROSECUTION CLAIM

In addition to the selective prosecution defense, it appears that Calderon may also have a vindictive prosecution claim based on his refusal to wear a wire for the government, if that is true. I will be the first to admit that I have insufficient verified factual information to make any credible determination of the claim. I am here simply suggesting that the scenario, if true, might provide Calderon with a vindictive prosecution claim in support of his selective prosecution claim. Would the government have sought the indictment against Calderon if he had agreed to wear the wire?



State Senator Roderick Wright, who is Black, also had a selective prosecution defense in his state criminal trial (regarding a different matter--i.e., voting fraud--than the matter herein) but he chose not to raise it. He was convicted on 8 Counts and awaits his sentence, after never having raised the defense. And, he was aware of it.

Will Senators Calderon and Yee also refuse to raise the pretrial defense, and give the government a free ride (by not having to prove that they treated Calderon and Yee differently or did not discriminate against Calderon and Yee, based on their race)? Or, will they step up to the plate and take their at bat? We'll see.




MINORITY MEMBERS OF THE CALIFORNIA STATE SENATE

It appears to me that most, if not all, remaining minority members of the California State Senate would strongly urge Senators Calderon and Yee to assert and raise their pre-trial selective prosecution defense, in order to try and prevent any future discriminatory and/or unconstitutional indictments and prosecutions of other minority members of the Senate. I know there may be some, at first blush, that will acclaim, "that's not going to happen to me, because I'm not going to engage in that type of conduct or do those type of things." However, that 's not the point. The point is: minority State Senators should not have to go through or be susceptible to closer scrutiny, e.g., preliminary or "hunch" investigations and search warrants, than their white counterparts. For example, take the case of Sen. Wright again. It is clear from the commentary surrounding Sen. Wright's case, and from Senator Wright himself, that other, white, State senators probably have lived at or used illegal addresses regarding the submission of their proper addresses for voting and representation of their respective districts. It is equally clear that the government did not pursue those white senators for criminal violations regarding residency.

Senator Wright was pursued or targeted because he is Black. More importantly, he was likely scrutinized in the first instance because he is a minority. So, the question for the remaining minority senators is not whether they will likely engage in the conduct similar to Calderon and Yee, but rather, are they likely to continue to be scrutinized for criminal conduct by the government (state and federal) closer than their white State counterparts (be they senators, judges, or Executive Branch officials)? I believe the answer is "yes". Therefore, if that's the case, that should be the motivation for the minority State Senators to urge Calderon and Yee to assert and raise their pretrial defense of selective prosecution. Not to protect them from future indictments (because they shouldn't worry about indictments if they will not engage in any illegal conduct), but to protect them from discriminatory and/or unconstitutional government scrutiny of them because they are minorities (while refusing to implement the same type of scrutiny over or regarding white senators and judges), *and to protect them from future discriminatory and unconstitutional indictments.




A FINAL NOTE: If Calderon and Yee decide to exercise their right and assert their pre-trial selective prosecution defense, were it to be denied, they would have a right to an immediate direct appeal because a determination of the matter would affect their right not to have to undergo a trial altogether and it is separate from the merits of the indictment charges themselves.