Criminal appeals are very difficult to win. The Court of Appeal affirms in about 96% of criminal cases. Mr. Adelstein has handled several appeals involving criminal law.
The defendant was charged with two counts of possessing methamphetamine for sale under Health and Safety Code, section 11378, along with related charges. He was the middleman and facilitated a transactions from a seller to an ultimate buyer. The buyer was an undercover law enforcement officer, and the defendant claimed that the seller was as well. If so, this would be a "supply-and-buy" sting operation, where one undercover offices is supplying drugs and a second undercover officer is buyer them. The defendant argued entrapment and wanted to produce evidence regarding this defense. However, the trial court excluded this evidence and refused to let the defendant argue entrapment.
The defendant appealed and argued that he should have been permitted to argue entrapment. However, the Court of Appeal affirmed.
Court of Appeal Opinion.
Court: California Court of Appeal, Fourth Appellate District, Division Two (Riverside)
Case No. E029685
Author: Justice Barton Gaut
Opinion Date: September 12, 2002
Trial Counsel: Thomas Eckhardt
This federal habeas corpus case raised a complicated double jeopardy issue.
The defendant was convicted of first-degree murder. He and an accomplice were driving in his car and they decided to rob someone. They attempted to do so, and the passenger shot and killed the victim. The defendant was arrested and his friend disappeared. The evidence was conflicting as to whether the defendant was the driver or passenger in the car.
In California, first-degree murder consists of premeditated murder, felony murder (a killing committed in the course of a felony) or several other types of murder. If the defendant was the passenger in the case, he would probably be liable for both premeditated murder and felony murder. If he was the driver and the passenger unexpectedly shot the victim, he probably would not be liable for premeditated murder but would still be liable for felony murder.
The prosecution initially charged the defendant with first-degree murder, consisting of both felony murder and premeditated murder. The case was tried on both theories. Just before the jury was instructed, the prosecution decided for tactical reasons to drop the premeditated murder charge and proceed just on felony murder. The jury convicted him of felony murder but surprisingly acquitted him of robbery, the underlying felony. The defendant then appealed, and his conviction was reversed on other grounds and sent back for a new trial.
The prosecution could not retry him on felony murder since he had been acquitted of the underlying felony. The prosecution decided to retry him on premeditated murder, even though the prosecution had dismissed that theory after the trial but before the jury was instructed. The defendant objected and claimed that this was a violation of the Double Jeopardy Clause. The trial court disagreed, the defendant was convicted, and the conviction was upheld on appeal.
Mr. Adelstein and Edward J. Horowitz represented the defendant in his federal habeas petition in both the District Court and Ninth Circuit. They argued that since the elements of felony murder and pre-mediated murder were different, they should be treated as separate crimes for Double Jeopardy purposes. Since the prosecution had already dismissed the premeditated murder count for tactical reasons, the Double Jeopardy clause precluded the prosecution from retrying the defendant on this charge.
The District Court denied the petition, and the Ninth Circuit affirmed. The Ninth Circuit noted that the defendants made many "interesting and complex arguments" but affirmed based on the standard of review. Under 28 U.S.C. § 2254, a federal court cannot granted a state court prisoner's habeas corpus petition unless the petitioner can point to a violation of "clearly established Federal law, as determined by the Supreme Court of the United States." The petitioner here had several favorable Circuit Court opinions supporting his position, but the U.S. Supreme Court has not clearly decided this question.
Court of Appeal Opinion.
Court: United States Court of Appeal for the Ninth Circuit
Case No. 99-55587
Author: Per curiam
Opinion Date: May 11, 2000
Co-Appellate Counsel: Edward J. Horowitz