it all started at Bob’s Big Boy, a diner on Harbor Blvd. in Fullerton, located near the North Orange County Courthouse. Three local boys in their twenties allegedly met with a young drug importer from Ecuador, and they arranged for the Ecuadorian to import a large quantity of cocaine to be purchased by the locals and distributed in the area. The location of the importation was the port in Miami, Florida, where the goods would be shipped in and then handed over to the Fullerton locals at that location. The deal went sour as the Narcs (DEA Agents) got wind of the action, and when the dope was unloaded and ready to be exchanged, the Feds swept in and arrested the lot of them. The prosecution for conspiracy and possession for sale was to be tried in Florida, but things went a little screwy, as the Ecuadorian, a martial arts expert, managed to escape from custody, and I was told he was able to overcome the Narcs, and get the hell out of town. Thus, a manhunt was precipitated to recapture the importer.
So, one day, a very pretty young lady came to my office with her mother and asked to see me about a Federal matter in Los Angeles. Both were very petite with lovely features, but just by looking at them, I knew they couldn’t possibly afford me or any other practitioner, and would require the services of the Federal Defenders Office, who represented indigent defendants unable to afford the services of a private attorney. So, I was prepared to listen to their problem regarding the Federal Indictment, quote an appropriate fee, and when they demurred, recommend the government defense lawyer. I couldn’t have been more wrong.
The young lady, rather attractive, appearing of Mexican or Latina descent, was about five feet tall, with outstanding features, and her mother was a little older version of her daughter. Well, she was charged with what is known as an accessory after the fact, a criminal offense under Title 18 of the US Code, carrying substantial prison time, if convicted. The government’s case was based upon a claim that she was the girlfriend of the Ecuadorian, and, after he escaped from the Feds, he came to California, and she hid him out from the authorities to help him avoid capture, trial and prison. There, I determined perfect defenses to the charge. She was not Latina, but a member of the Agua Caliente Native American Tribe that owned about one half of the land which we know as Palm Springs, and that land was squared off with other land, so if one wanted to develop a resort, golf course or what have you in Palm Springs, a large part of the parcel belonged to the tribe, and the tribe had barrels of money to support any member who needed funds.The tribe’s lands were “checker-boarded” throughout this area, so even if one managed to buy a plot, the land around it was usually the tribe’s. ( I might mention, I think they also owned casinos.) So payment for attorneys’ fees and expenses was not going to be a problem; I was hired and the young lady was aboard the Schulman defense team. This was just the beginning.
The case was assigned to the Honorable Andrew Hauk, and set in Downtown LA. Orange County did not have the fancy courthouse that is located there today, but was known as a designated place of sitting under the auspices of the US Attorney for the Central District of California, whose jurisdiction ran from Santa Barbara at its North through Los Angeles, Orange County, and then gave way to the Southern District, which was San Diego and Imperial Counties. Orange County had a small temporary facility located in Santa Ana with a small courtroom and some facilities, but no cases after first court appearances before a Federal magistrate were tried there, but were sent to LA or further proceedings though it was conceivable a case could be tried in Santa Ana.
So, at my first appearance before Judge Hauk, I made a request that the case be transferred to Santa Ana, as the first case to be tried in the new place of sitting as Santa Ana was then known. I mentioned in an earlier blog, there was a book written about five judges designated as the most eccentric judges in the US, and I have been in front of two of the five, Willis Ritter in Utah and Judge Hauk in LA. They were very smart, but unpredictable. Well, Judge Hauk was intrigued with the idea of being the first judge to ever preside in a federal trial in Santa Ana, and maybe he also liked the idea of staying in Newport Beach during the hot inland summer, one will never know, but he granted the motion and sent the case to Santa Ana, to be tried, and he would preside. I should mention the motion to move the trial was vigorously opposed by the US attorneys Office in LA, as it seemed they did not want to staff another location.
So, because the US Attorney wanted no part of a trial in Santa Ana, they dismissed the indictment and filed a superseding Indictment adding my client to the Florida conspiracy indictment of the Ecuadorian boyfriend, and the three Fullerton young men who had been previously charged in Miami. That case was assigned to the Fort Lauderdale Federal Court.
In order for an out of State attorney to represent an accused in a local court, the retained attorney must file a motion to request to be admitted to the local court, setting out his background, lack of prior disciplinary issues and proof of good moral character. Permission to appear out of state is not automatic, and there are generally other rules, such as engaging a local attorney so that if for some reason the out of state lawyer is unavailable for a hearing, a motion or any required appearance, there would be someone available. It is not automatic, but a defendant’s right to employ his attorney of choice is a Constitutional Right, but not absolute, but weighed against the Court’s right to maintain its order, which is also considered. I have never been denied an admission to appear in an out of state court, but just last week I read an opinion of the 9th Circuit affirming a denial of a chosen attorney which was upheld, based on factors about the attorney’s past conduct in various courts.
A whole new situation, and a whole new charge with increased sentencing consequences now faced my client based on the dismissal of the original indictment of accessory to a principal in the main conspiracy. I felt really bad about the change of circumstances and did not anticipate the Government’s move, particularly where I never saw the connection to the original conspiracy, and I was right as far as I could see.
Unfortunately, things frantically changed, and I would now need to fly to Florida by the then-known-as Pan American Airlines, which had a fleet of clippers with an extended first class section, also a place to stay while in Florida; I selected a Marriott Resort Hotel located adjacent to what is known as the Inland Waterway, sort of a canal or stream flowing from Florida all the way up the East Coast, through New York, up to the Canadian border (people could drive their yachts and cigar speedboats right up to a dock adjacent to the hotel’s outdoor cocktail area.) So, arrangements were made, a fee renegotiation was approved and now I was in Florida ready to fight for my client.
The Federal Courthouse in Fort Lauderdale was, I am told, a new structure and the locals were really proud of it. Now, I am used to Federal Courthouses in California, elegant and impressive structures. Actually, the circuit Court Building in San Francisco is one, if not the most, beautiful and elegant structure I have ever had the pleasure of seeing. A guided tour through that building, with its courtroom shell and beautiful lighting is worth a tour. Well, I wasn’t that impressed, but it was OK. Fort Lauderdale at the time was a winter break spot for young college kids and the seashore area was very elegant, but a few blocks off the resort area and you are in the Deep South; I don’t know how to write Southern accents, but that is what I perceived the communication to be in. I was treated OK and with respect. One of the other defendants was represented by a colleague, Ron Kreiber, also from Orange County. Ron originally was a Los Angeles Police Officer. I am not sure if he was a sergeant or lieutenant in charge of a patrol unit, but he put himself through law school, joined the Orange County DA’s Office, eventually went into private practice, represented a lot of drug dealers and other defendants and eventually became a Superior Court Judge and did a darn good job. So, with Ron, I was not alone whenever I had to fly to Miami, get a car and drive North to Fort Lauderdale. We actually had a little spare time and managed one weekend to play a round of golf in Boca Raton, which is just North of Fort Lauderdale on one of Florida’s magnificent golf courses.
So, there were appearances and motions and a trial date was set. The first thing I did was to make a written motion to transfer the case back to California for the convenience of witnesses; after all, the bulk of the defendants and witnesses resided there, and I thought it should be granted, and all the defendants later joined in my motion. I can hear the judge today as if it as yesterday in his broad Southern accent.”Hay, Mr Schulman, that is ah most interesting motion, howevah, Ah have nevah granted such a motion, albeit interesting, it is denied.” So let’s go to trial. Time passed and like ten-pins, all the defendants, separately and on different dates, worked out some disposition and then pled guilty. All except my client and me. So the case is ready for trial. I appeared and was ready to go, when the Assistant US attorney, who was about to go into private practice and had never, I was told, lost a case, suggested to me, “Why don’t you remake the motion for transfer to California?” “I don’t have an office or facilities to make that motion at this time,” I say. “That’s all right; just do it orally,” he says. So I do. The judge says, “Mr. Schulman, I have nevah granted such a motion, but Ah will in this case. Please make out the paperwork for the tranfah,” and I went back to my office in Orange County, drew up the paper work and we were now back where we started in front of Judge Hauk, and set for trial.
Trial, a jury is selected, the Government chooses a jury, and I do the same. The Government makes an opening statement, and I counter with mine. In my opening statement, I tell the jury my client is a Native American and does not speak a word of Spanish, implying that the original deal was not in English. The government calls its first witness, a Fullerton police officer, who testifies about various conversations they were recording and listening to. I cross-examine: where are the recordings? and the witness replies he does not know. The Judge, who had been eyeing this waif of a defendant, and knowing the mandatory sentences if she is convicted, takes over. The witness gets a little snotty with the judge, who then starts screaming at the witness, and declares right then and there: “The defendant is found not guilty!” and dismisses the case. I quickly congratulate the client and the mother, and we race hell-bent out of the courtroom so the judge doesn’t change his mind; the poor mother lost the heel of her shoe and was quite a sight, limping at full speed out of there! Later, I went back to the government attorney, just to do a little PR work; after all, he wasn’t to blame and was informed his office was looking for the right case to take to the Supreme Court to do away with the rule: Even if the court is wrong, jeopardy attaches if the case is dismissed or the jury is dismissed for the wrong reason., meaning that the government can’t continue to try you over and over again, even if they get it wrong. I went into my begging mode, which is sometimes standard operating procedure for a defense lawyer in some circumstances, the government let it pass, and the petite young lady from the Agua Caliente Tribe was free as a bird.
A fun experience for me, seeing and being part of another piece of America. I would never had the encounters I forgot to mention: sometimes during the evenings, I could go to a dance hall just two blocks inland from the Hotel and have a belt or two and watch Southern clog dancing to country music. Boy, could those folks really dance. Hard to explain, but they were like professionals, even just dancing their local dancing. The place was appropriately named “Whiskey Creek.”
Bye, Marshall
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