ODOJ Policy of Sending Subject of Complaints All Info is an Oxymoron

9/18/2019 4:23:56 PM

STDCarriers Police Misconduct Reporting

The Oregon Department of Justice Consumer Protection Section claims to protect consumers and encourages anyone to send a complaint while at the same time giving the person or business they complain about all their contact information. That is an oxymoron because the ODOJ presents people with a form that they claim is there to solicit protection while at the same time operating like an open relay for anyone that they complain to get their information. The ODOJ has no idea who the complaint is about but forwards all the information anyway.

Now this policy may be based on the Constitutional right to confront one's accusers, but at this stage there is no court case in which there is an entitlement to confrontation. Sure, if a complaint resulted in a court case, the subject of the complaint would have a right to know who was pursuing them, but is it appropriate to give out this information at such an early stage?

Hashtags: #odoj #consumerprotection

Source: ODOJ Policy of Sending Subject of Complaints All Info is an Oxymoron

Alicia Garza Suarez Would Not Help Confirm Age of Alleged Minor

9/17/2019 8:56:02 PM

STDCarriers Police Misconduct Reporting

In 2012 ODOJ Enforcement Officer Alicia Garza Suarez would not help me confirm the age of an alleged minor that someone posted on my website and I still have no clue if that person was under 18 at the time. Instead Suarez seemed to be working with Geoff Darling to hang me up on anything he could come up with. When I was arrested on an unrelated matter the complaint Suarez used against me was among the discovery but was not the basis for any conviction. The funny thing is that I suggested to the alleged parents of the person on the site that they involve law enforcement. If I recall correctly I suggested that they have their daughter go the local police station with her ID and ask an officer to email me saying how old she was. It seemed like an easy way to confirm her age and if she wanted to pursue legal remedies against the person responsible for the posting she would probably need to go there anyway. At the time all the parents offered was a Facebook link to a profile that said she was under 18. Anyone that has seen Catfish the TV Show knows that you can't rely on Facebook for accurate information.

When Suarez contacted me I asked her to confirm the age of the person and she never contacted me back. Now to her credit I was arrested two weeks later for an unrelated threatening email, but she had no way of knowing that would happen because the email was not sent until a couple weeks later, so if she intended to get back to me with that confirmation at all, she was fine with letting the person wait.

My email correspondence with Suarez was as follows:

I would like your help with this one and I'm glad you contacted me about it. I went to the post office a couple days ago and I was thinking of calling Geoff Darling to see if he could help me interperate the form correctly. The form has "victim has documentation" marked as true. Does that mean that the age of the alleged victim has been verified? It the subject is under 18 then the report is in violation of the STDCarriers.com Terms of Use (TOU).

There are no active reports for anyone named ******, but if memory serves me there was one case in Edmonton in which similar accusations were made at *****and I posted a comment almost a month ago recommending that if the subject is in fact 16 that she go down to the local police station and ask an officer to send me an email. If these cases are the same then I don't know why they didn't just ask a cop to email me because surely that would have been much faster.

________________________________________

From: Suarez Alicia [mailto:Alicia.Suarezdoj.state.or.us]

Sent: Thursday, May 24, 2012 2:31 PM

To: 'webmaster***********com'

Subject: Legal Department - FF4115-12

Importance: High

We recently wrote you concerning a consumer complaint we had received about your business. We have not yet received your reply.

In the event that our letter has been misplaced, we attached another copy of the complaint. We review all complaints to determine if there has been a violation of Oregon law. If you wish for us to consider your position or to attempt to settle this matter informally, we need a written response to the complaint within (15) days of receipt of this email, along with any documents which help explain or support your position. If you do not respond, we can only assume that the complaint is valid as submitted.

Your response is essential to a fair evaluation of the complaint. Without it, we have only heard one side. If you are not able to respond, please contact our office to inform us of the delay.

Thank you for your cooperation.

Alicia Suarez / Enforcement Officer

Oregon Department of Justice / Civil Enforcement Division

1162 Court Street NE, Salem, OR 97301

Phone: 503.934.4400 / Fax: 503.378.8910

alicia.suarezdoj.state.or.us

Hashtags: #aliciasuarez #odoj #geoffreydarling #consumerprotection

Source: Alicia Garza Suarez Would Not Help Confirm Age of Alleged Minor

Judge Marco Hernandez Forgot to Sentence Inmate to Supervision Term

9/12/2019 11:22:39 PM

STDCarriers Police Misconduct Reporting

In 2017 U.S. District Judge Marco Hernandez forgot to sentence a defendant to a term of supervised release following his 6 month jail term imposed for violating conditions of supervised release, but that made no difference in the long run. Under Federal Rule of Criminal Procedure 35 Hernandez had 14 days to correct the error and he did just that. I know this because I was the defendant. I didn't even realize that he forgot to give me supervision until my lawyer told me that I had to go back to court because Hernandez forgot to give me supervision. I fired back "too late, he screwed up, good" but under rule 35 (a) "within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Since it was obvious at the hearing that Hernandez intended to add a term of supervision but just forgot to say so, it fell within the scope of Rule 35 and he gave me a 24 month term of supervision.

This was a painful experience for me because my arm was broken at the time. It was not just any break either. My humerus was snapped into two pieces and I was on in extreme pain constantly even though I was on Norco. Just moving even a little bit hurt and whenever I went to court I was usually gone all day and missed the afternoon med line at the jail. If Judge Hernandez would have done his job right the first time he would have literally saved me a lot of pain.

At least he forgot to give me a 30 month term of supervision or at least I think he did. The government had asked for 12 months followed by a 24 month term of supervision. The sentencing guidelines (USSG) recommended a term of 6-12 months for offenders with my history if a Grade C violation was committed. A grade C violation includes technical violations that by themselves would not constitute a crime but just violate a release condition. Since it was my first violation and we obviously made it clear that there were extenuating circumstance, I received just a 6 month sentence plus the 24 months of supervision. But I am not sure if Hernandez forgot that by giving me 6 months he could then give me 30 months of supervision, if I got 24 months because after getting the 6 month revoke AUSA Greg Nyhus never asked for more than 24 months of supervision, or if Hernandez realized he could do it but cut me a break. Based on my experiences with Hernandez I think he probably forgot.

I never said anything about this before because technically the court or the government could have moved to add 6 months to my supervision at any time before it expired because technically my term was 6 months below the statutory maximum. I did not want to rat on myself so I kept my mouth shut and now I am no longer on supervision for that case.

Hashtags: #marcohernandez #supervisedrelease #criminalprocedure

Source: Judge Marco Hernandez Forgot to Sentence Inmate to Supervision Term

How Judge Marco Hernandez Deprived His Court of Jurisdiction Over SRV

9/12/2019 10:42:03 PM

STDCarriers Police Misconduct Reporting

Judge Marco Hernandez deprived himself of jurisdiction over a supervised release violation charge in my case and this is how. You can't revoke a term of supervised release that has already been revoked after the sentence for that violation has been served. In my case I was in custody pending sentencing on a violation and the day before Judge Hernandez revoked my release my probation officer (Matthew Pruitt) filed a complaint charging me with a second violation for new criminal conduct. That charge formed the basis for a new criminal charge that eventually led to a guilty plea, so I was guilty of the new criminal conduct violation. Then after the new charge was filed Assistant United States Attorney Greg Nyhus wanted the violation bundled with the new case so that it could be resolved after trial.

The problem rose when my sentence for the first violation had been served and my official status changed from that of a prisoner serving a sentence to being a pre-trial detainee. Under the law the second term of supervision had to begin when I was no longer serving a sentence because even though I was in custody I was a pre-trial detainee and a pre-trial detainee is not considered a prisoner even if that detainee is eventually convicted and given credit for time served. As a pre-trial detainee I was shocked to learn that I was not a prisoner because I certainly felt like one. As a result the court lost jurisdiction over the new SRV because according to the Ninth Circuit once a new term of supervision begins one cannot be charged or sentenced for a violation of a previous term of supervision. Had Judge Hernandez not tabled the new SRV matter he could have sentenced me to the full 12 months that would have been recommended under the guidelines or the statutory maximum of two years but in the interest of convenience he denied himself the opportunity. However if he had not tabled it there would have been a good chance of seeing it dismissed by Nyhus to avoid the possibility of prejudicing his case at the new trial.

I was the first to raise this type of objection when I forced my lawyer to raise an objection at a hearing before U.S. Magistrate Judge Paul Papak after the violation was filed and before I was indicted. The argument was that you cannot revoke a term of release that has already been revoked. At the time I was still a prisoner serving my original SRV sentence, so Papak was able to hold me. At the time my own lawyer seemed to think that the argument was a loser. Mainly because the new violation was charged before the revocation and it would have given me the ability to violate supervision again without punishment.

Judge Hernandez never recognized his error and if he had he probably would not have corrected it himself. The last thing a judge wants to admit to is being wrong and Hernandez specifically cares far more about getting the outcome he wants than the technicalities of the law. Fortunately, Judge Hernandez recused himself and a judge from another state was appointed to oversee the case. That judge noticed while reviewing the record that the court lost jurisdiction over the matter when my original sentence expired. The new judge ordered Nyhus to prove why that violation should not have been dismissed and he could not do it.

To learn more see the Ninth Circuit case that led to this decision. That case is United States v. Wing, case number 1130017 (9th Cir. 2012).

I looked through my paperwork for a copy of the order and could not find it. If I find it I will post it. The important thing to remember here is that if someone is facing a second violation and they are in custody, did their status ever change from that of a sentenced inmate serving a sentence to that of a detainee awaiting trial or a charge of violating supervision? If they are a detainee then their new term of supervised release has already started and the second violation must be dismissed.

Hashtags: #marcohernandez #supervisedrelease #paulpapak #ninthcircuit

Source: How Judge Marco Hernandez Deprived His Court of Jurisdiction Over SRV

Federal Judge Imposed Release Condition so People Wouldn't Get Mad

9/12/2019 8:01:50 PM

STDCarriers Police Misconduct Reporting

In 2016 United States District Judge Marco Hernandez banned a man from operating a legal website just because it makes people mad. The website in question was STDCarriers.com where people would sign up and post complaints about people with STDs. One of the people on the list began stalking and harassing the owner until he responded with a threatening email. At a modification hearing Judge Hernandez said, "I told him that it was not illegal at sentencing. I said as much...My question is: Does it make people mad?"

Hernandez's logic was that the defendant needed to be prevented from making people mad because when someone got mad and harassed him, he committed the offense of conviction. The decision was appealed to the Ninth Circuit and upheld citing personality traits in relation to public protection. So basically if someone commits a crime they can be banned from working and exercising free speech if that crime was against someone they had already pissed off.

This was a lesser restriction to a previous ban on computer use.

Hashtags: #marcohernandez #supervisedrelease #censorship #threats

Source: Federal Judge Imposed Release Condition so People Wouldn't Get Mad

Ninth Circuit's Censorship Efforts Only Paid Off Temporarily

9/12/2019 2:54:56 PM

STDCarriers Police Misconduct Reporting

The Ninth Circuit's ability to censor websites just because the owner sent someone a threatening email years ago is no more. Unfortunately that is because the owner of the sites is off supervision and not because he won his challenges to the constitutionality of the ban and then whether or not a sufficient nexus existed between the lawful businesses and the offense of conviction. The owner argued that just because the person that he had sent the email to would not have provoked him with her own unlawful conduct had he not lawfully refused her requests to remove information. That followed an earlier appeal in which he argued that a ban on computer use for the obvious purpose of keeping him from speaking online was unconstitutional.

In the first case, the Ninth Circuit ruled that a computer ban is not a ban if it permits access with the approval of a probation officer. That came with it the assumption that the probation officer would approve lawful monitored access to computers. In the case in question that was not the case. The probation officer refused to approve any computer use at all. On top of that the Ninth Circuit overruled its own opinions in 2016 with United States v. LaCoste (9th Cir. 2016 case no. No. 15-30001) in which the court held that they have only supported computer bans in cases involving sex crimes against minors and that a proviso allowing access pursuant to approval by probation was no longer sufficient to make such a condition anything but a total ban. Based on that the district court had to allow the website owner access to computers but then banned him from his website or similar websites specifically.

The underlying offense took place when someone wanted a page removed from a website and the owner would not remove it. That person started harassing the owner and members of his family hoping to get to the owner that way. The harassment included threats and a fake 911 call claiming that a hostage situation was taking place (a practice known as "swatting"). When he finally found proof of who was responsible he fought back by letting the person know that he could prove that she was the one responsible and threatened to kill her if she screwed with him further. What got him into trouble was that after she screwed with him again, he told her that he would go to her house "armed to put an end to [her] once and for all." He was held on $1,000,000 bail in state court until the feds picked up the case, held him without bail, and the state charges were dropped.

When pleading guilty the government made it look as if the deranged stalker that targeted the website owner were in fact the real victim. The government claimed that even though the owner of site did not break the law until sending the email that he still inflicted emotional distress and was therefore to blame for the situation. The judge obviously cared more about doing what was popular than the constitution. A good judge would have scolded the prosecutor for not charging her and categorized her claims of distress due to the web posting as irrelevant. Instead the judge did all he could to prevent anyone else from provoking the owner by keeping him from being able to speak online. When imposing the website ban he implied that it would be necessary to protect any member of the public that might harass the owner in person and not just online. As a result the government and the court basically green lighted the owner by saying that they will not pursue charges against people that threaten or harass him, but they will throw the book at him if he fights back. This went beyond keeping him from sending threatening emails. It said that if someone were to harass him in person they would need protection. When that is the case the appropriate thing to say is "do not harass that guy in person" because he has the same right to defend himself as anyone else.

The Ninth Circuit supported that logic by holding that not only was the email enough of a nexus but that "The public is entitled to be protected against crimes flowing from the same character trait demonstrated by the crime." So, if someone is convicted of a crime and any employment they seek is deemed related in any way to the same character trait demonstrated by the crime an employment restriction is justified. That means that in the Ninth Circuit all a prosecutor has to do to get an employment restriction against a convict is play a quick game of Six Degrees of a Character Trait.

Hashtags: #ninthcircuit #richardpaez #carlosbea #michaelanello #censorship

Source: Ninth Circuit's Censorship Efforts Only Paid Off Temporarily