Americano/A Mary Cano

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CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 24A. RESPONDING TO SUBPOENAS AND CERTAIN OTHER COURT ORDERS; PRESERVING CERTAIN INFORMATION

SUBCHAPTER A. RESPONDING TO SUBPOENAS AND CERTAIN OTHER COURT ORDERS

Art. 24A.001. APPLICABILITY OF SUBCHAPTER. This subchapter applies only to a subpoena, search warrant, or other court order that:

(1) relates to the investigation or prosecution of a criminal offense under Section 33.021, Penal Code; and

(2) is served on or issued with respect to an Internet service provider that provides service in this state.

Added by Acts 2007, 80th Leg., R.S., Ch. 1291, Sec. 2, eff. September 1, 2007.


Art. 24A.002. RESPONSE REQUIRED; DEADLINE FOR RESPONSE. (a) Except as provided by Subsection (b), not later than the 10th day after the date on which an Internet service provider is served with or otherwise receives a subpoena, search warrant, or other court order described by Article 24A.001, the Internet service provider shall:

(1) fully comply with the subpoena, warrant, or order; or

(2) petition a court to excuse the Internet service provider from complying with the subpoena, warrant, or order.

(b) As soon as is practicable, and in no event later than the second business day after the date the Internet service provider is served with or otherwise receives a subpoena, search warrant, or other court order described by Article 24A.001, the Internet service provider shall fully comply with the subpoena, search warrant, or order if the subpoena, search warrant, or order indicates that full compliance is necessary to address a situation that threatens a person with death or other serious bodily injury.

(c) For the purposes of Subsection (a)(1), full compliance with the subpoena, warrant, or order includes:

(1) producing or providing, to the extent permitted under federal law, all documents or information requested under the subpoena, warrant, or order; or

(2) providing, to the extent permitted under federal law, electronic access to all documents or information requested under the subpoena, warrant, or order.

Added by Acts 2007, 80th Leg., R.S., Ch. 1291, Sec. 2, eff. September 1, 2007.


Art. 24A.003. DISOBEYING SUBPOENA, WARRANT, OR ORDER. An Internet service provider that disobeys a subpoena, search warrant, or other court order described by Article 24A.001 and that was not excused from complying with the subpoena, warrant, or order under Article 24A.002(a)(2) may be punished in any manner provided by law.

Added by Acts 2007, 80th Leg., R.S., Ch. 1291, Sec. 2, eff. September 1, 2007.


SUBCHAPTER B. PRESERVING CERTAIN INFORMATION

Art. 24A.051. PRESERVING INFORMATION. (a) On written request of a law enforcement agency in this state or a federal law enforcement agency and pending the issuance of a subpoena or other court order described by Article 24A.001, an Internet service provider that provides service in this state shall take all steps necessary to preserve all records or other potential evidence in a criminal trial that is in the possession of the Internet service provider.

(b) Subject to Subsection (c), an Internet service provider shall preserve information under Subsection (a) for a period of 90 days after the date the Internet service provider receives the written request described by Subsection (a).

(c) An Internet service provider shall preserve information under Subsection (a) for the 90-day period immediately following the 90-day period described by Subsection (b) if the requesting law enforcement agency in writing requests an extension of the preservation period.

Added by Acts 2007, 80th Leg., R.S., Ch. 1291, Sec. 2, eff. September 1, 2007.















When Lee’s witnesses were then reported missing, the judge had ample reason to believe they had second thoughts about testifying. All three of Lee’s family members had traveled from California to testify, but all three left without speaking to Lee or his lawyer. Two sets of witnesses, four persons in all, had just placed Lee in Kansas City; and the prosecution had said it had in reserve other witnesses prepared to rebut the alibi testimony. Lee had been sentenced to 80 years in Missouri prison for an unrelated armed assault and robbery, and any witness who was considering perjury would have had little inducement to take that risk–a risk that would have became more pronounced after the prosecution’s witnesses had testified–if Lee would serve a long prison term in any event. The judge’s skepticism seems even more justified when it is noted that six weeks later, during a hearing on Lee’s motion for a new trial, counsel still did not explain where Lee’s family members had gone or why they had left. It was not until 17 months later, in an amended motion for postconviction relief, that Lee first gave the Missouri courts an explanation for his family’s disappearance.

Labels: Bobbie Williams, Mary Cano, Project RIO, Taxpayer waste, TWC, WIA

When Lee’s witnesses were then reported missing, the judge had ample reason to believe they had second thoughts about testifying. All three of Lee’s family members had traveled from California to testify, but all three left without speaking to Lee or his lawyer. Two sets of witnesses, four persons in all, had just placed Lee in Kansas City; and the prosecution had said it had in reserve other witnesses prepared to rebut the alibi testimony. Lee had been sentenced to 80 years in Missouri prison for an unrelated armed assault and robbery, and any witness who was considering perjury would have had little inducement to take that risk–a risk that would have became more pronounced after the prosecution’s witnesses had testified–if Lee would serve a long prison term in any event. The judge’s skepticism seems even more justified when it is noted that six weeks later, during a hearing on Lee’s motion for a new trial, counsel still did not explain where Lee’s family members had gone or why they had left. It was not until 17 months later, in an amended motion for postconviction relief, that Lee first gave the Missouri courts an explanation for his family’s disappearance.

Labels: Americano, DHS, La Ley, Law, Mary Cano, Project RIO, TANF, Taxpayer waste, TWC, WIA

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No. 04-00-00340-CR

James GUEVARA,

Appellant

v.

The STATE of Texas,

Appellee

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 99-CR-1818B

Honorable Sid L. Harle, Judge Presiding

En Banc Opinion on Remand



Opinion by: Karen Angelini, Justice



Sitting: Alma L. López, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice



Delivered and Filed: December 7, 2005

REVERSED AND REMANDED

A jury found James Guevara guilty as a party to the murder of his wife, Velia Guevara, and sentenced him to life in prison and a $10,000 fine. On original submission, Guevara complained of the sufficiency of the evidence, error in the jury charge, prosecutorial misconduct, and ineffective assistance of counsel. In an opinion and judgment dated December 26, 2001, we affirmed the trial court’s judgment. Guevara filed motions for rehearing and for reconsideration by the en banc court. On January 31, 2003, this court, in an en banc opinion, granted Guevara’s motions, withdrew our December 26th opinion and judgment, and issued an opinion and judgment in which we reversed the trial court’s judgment and remanded for a new trial. In our January 2003 opinion, a majority of the en banc court held that the evidence was legally and factually sufficient to support the verdict. However, relying on this court’s opinion in Bagheri v. State, 87 S.W.3d 657 (Tex. App.—San Antonio 2002), aff’d, 119 S.W.3d 755 (Tex. Crim. App. 2003) and on Texas Rule of Appellate Procedure 44.2(b), we reversed and remanded for a new trial after concluding that the error contained in the jury charge affected Guevara’s substantial rights.

Both Guevara and the State petitioned the Court of Criminal Appeals for discretionary review. Guevara challenged our holding that the evidence was legally sufficient to support the verdict, and the State challenged our holding with respect to charge error. The Court of Criminal Appeals determined the evidence was legally sufficient to support the verdict. See Guevara v. State, 152 S.W.3d 45, 52 (Tex. Crim. App. 2004). Although the Court of Criminal Appeals refused to “address whether the inclusion of the legal-duty theory in the charge was error,” id. at 52, n.28, the Court nevertheless determined this court applied an incorrect standard of review for charge error, and remanded the cause to this court to conduct a harm analysis under Texas Code of Criminal Procedure article 36.19.





STANDARD OF REVIEWArticle 36.19 provides that “[w]henever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” Tex. Code Crim. Proc. Ann. § 36.19 (Vernon 1981). When, as here, no objection is made at trial to charge error, a defendant on appeal must show that the error was “so egregious and created such harm that he ‘has not had a fair and impartial trial.’” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Under the Almanza standard, the record must show that a defendant has suffered actual, rather than merely theoretical, harm from jury charge error. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). Errors that result in egregious harm are those that affect “the very basis of the case,” “deprive the defendant of a valuable right,” or “vitally affect a defensive theory.’” Ngo v. State, No. PD-0504-04, 2005 WL 600353, at *6 (Tex. Crim. App. Mar. 16, 2005); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). On appeal, we assess the actual degree of harm “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.

CHARGE ERROR

A trial court must fully instruct the jury on the law applicable to the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004); Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2004-05). “This is because “[t]he jury must be instructed ‘under what circumstances they should convict, or under what circumstances they should acquit’.” Gray, 152 S.W.3d at 127-28 (quoting Ex parte Chandler, 719 S.W.2d 602, 606 (Tex. Crim. App. 1986)). “Jury charges which fail to apply the law to the facts adduced at trial are erroneous.” Id. at 128.

The jury charge here contained two theories under which the jury could find Guevara criminally responsible for his wife’s murder: (1) that Guevara solicited, encouraged, directed, aided, or attempted to aid another person in committing the offense (“the aiding theory”), or (2) that Guevara did not make a reasonable effort to prevent the commission of the offense when he had a legal duty to do so (“the legal duty theory”). The abstract portion of the charge informed the jury that:

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. Each party to an offense may be charged with commission of the offense.



Mere presence alone will not make a person a party to an offense. A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. [Emphasis added.]



The charge did not define “legal duty” for the jury. The charge did not set forth the elements of any legal duty Guevara may have owed to Velia, nor did it instruct the jury on when such a duty attaches. See Kavali v. State, No. 05-01-00835-CR, 2002 WL 31445280, *4 (Tex. App.—Dallas Nov. 4, 2002, pet. ref’d) (not designated for publication) (instruction included when a party is criminally responsible and quoted Family Code provision stating parent’s duty of “care, control and protection” of a child), cert. denied, 540 U.S. 967 (2003).

As a general rule, a person has no legal duty to protect another from the criminal acts of third parties or to control the conduct of another. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). And, although spouses and family members may have a moral duty to exercise care toward one another, it does not follow that a legal duty to prevent harm necessarily arises from the familial relationship. See Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993) (obligation that law imposes on spouses to support one another is a legal duty arising out of the status of the parties); Rampel v. Wascher, 845 S.W.2d 918, 925 (Tex. App.—San Antonio 1992, writ denied) (neither spouse has a legal duty to intervene forcibly in the other’s decision of when and how much to drink, or whether or how to use a hot tub); Brady v. State, 771 S.W.2d 734, 738 (Tex. App.—Fort Worth 1989, no pet.) (appellant did not have a legal duty to prevent her husband’s possession of drugs); see also In re Marriage of Beach, 97 S.W.3d 706, 708 (Tex. App.—Dallas 2003, no pet.) (characterizing husband’s assertion that a spouse has a legal duty to reconcile as “utterly without merit”).

On the other hand, although a spouse generally does not have a legal duty to prevent harm to the other spouse, “there may be circumstances under which one spouse could have a legal duty to the other.” Guevara, 152 S.W.3d at 52, n.26. A spouse may owe a legal duty to the other if one spouse was a law enforcement official or the legal guardian of the other. Id. However, as the Court of Criminal Appeals noted, “there was no evidence presented in this case that [Guevara] and his wife fell into any of these categories.” Id. Thus, instructing the jury on the legal duty theory was error because Guevara did not have a legal duty to prevent the commission of the offense. See Medrano v. State, 612 S.W.2d 576, 578 (Tex. Crim. App. 1981) (without a legal duty arising to prevent the commission of an offense, there is no criminal conduct); see also Tex. Pen. Code Ann. § 6.01(c) (Vernon 2003) (an omission or failure to perform an act is not an offense unless there is a legal duty to act).

The State argues that errors contained in the abstract portion of a charge do not generally require reversal. We do not disagree with this proposition when the application paragraph correctly instructs a jury. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). However, here, the application paragraph told the jury it could convict if it found that Guevara, “either acting alone or together with another party,” intentionally and knowingly caused Velia’s death “by shooting [her] with a firearm” or by “commit[ting] an act clearly dangerous to human life, to-wit: by shooting at or in the direction of Velia ..., thereby causing [her death.]” Faced with the phrase “either acting alone or together with another party,” and nothing more, it is entirely plausible that the jury would refer back to the charge’s definition of when a person is criminally responsible for an offense committed by another person, a definition that included the legal duty theory.

The State asserts this error is not egregious because the evidence is sufficient to support a guilty verdict under the aiding theory. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). Guevara counters that the evidence in support of the aiding theory was not overwhelming. See Alamanza, 686 S.W2d at 173 (whether evidence of guilt is cogent and overwhelming is a factor in considering egregious harm). At trial, no evidence was presented that Guevara had a legal duty to his wife, and we have already held the evidence was factually sufficient to support the aiding theory. However, the State’s argument ignores the nature of the insufficiency at issue here.

When disjunctive theories are submitted to the jury and the jury renders a general verdict of guilty, appeals based on evidentiary deficiencies must be treated differently than those based on legal deficiencies. If the challenge is evidentiary, as long as there was sufficient evidence to support one of the theories presented, then the verdict should be affirmed. However, if the challenge is legal and any of the theories was legally insufficient, then the verdict must be reversed.



United States v. Tomblin, 46 F.3d 1369, 1385 (5th Cir. 1995) (quoting United States v. Garcia, 992 F.2d 409, 416 (2nd Cir. 1993)). The reason for the varying treatment is that “[j]urors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law – whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.” Griffin v. United States, 502 U.S. 46, 59 (1991); see also Tomblin, 46 F.3d at 1385.

A legally inadequate theory is a “mistake about the law, as opposed to a mistake concerning the weight or factual import of the evidence.” See Griffin, 502 U.S. at 59. Such legal error occurs when, “even if the government proved everything it possibly could prove, the defendant’s conduct would not constitute the crime charged.” Tomblin, 46 F.3d at 1386. Under these circumstances, “the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Yates v. United States, 354 U.S. 298, 313 (1957); see also Griffin, 502 U.S. at 59 (legal error is controlled by Yates). Here, because Guevara had no duty to prevent Velia’s death, his conviction for her murder could have been based on a legally insufficient ground. Thus, even if the evidence and instructions properly allowed the jury to convict under the aiding theory, we cannot presume the jury based its verdict on the legally sufficient ground. See Tomblin, 46 F.3d at 1386.

The error was compounded by the State’s repeated urging of the jury to find Guevara guilty as a party because he failed to protect Velia. During voir dire, the prosecutor explained the aiding theory to the jury and provided various examples, such as a get-away driver in a bank robbery. A venire-person then asked, “Are you also to consider a party to the crime if you didn’t do anything to prevent it? If you were in a position where you didn’t know - - you weren’t part of the plan, but you were - - you were with the group and could have prevented it at the time, like in a gang situation?” The prosecutor answered,

That would depend on the circumstance. Usually in the law you have to have some type of affirmative duty to assist somebody before you can be charged with a crime of omission. But there are also some circumstances where what you are saying might be useful as far as determining whether someone aided or assisted.



Let’s suppose your job is you are a bodyguard, all right, and if you are a bodyguard, what is your job? Your job is to keep people from coming after the person that you are protecting. But if you as a bodyguard, with the intent to aid or assist in the commission of the offense, step away and let those people go forward and harm that person, then a jury could convict you as being a party to the offense because you did something and you aided or attempted to aid in doing that.



It’s a different story than if you just happened to know about a crime and don’t do anything about it, all right. But sometimes in a situation not doing - - it would be a rare situation, but making yourself where you no longer were able to protect that person, if it aids, if it assists and you are doing it with the intent to promote. All right? I think that is the important thing to think about. . . . Does that make sense?



. . .



Yeah. We are not talking about the situations where you don’t know what is going on and we are not talking about the situation where you do know what’s going on but you don’t want it to happen. Not the person who is just along for the ride and doesn’t want it to happen.



We are talking about a situation where somebody is assisting or encouraging the act even if it is by something they don’t do. Like I said, you can be a bodyguard who steps aside. It can be a very minor act. You can procure the bullets for the gun. You could basically do just about anything as long as that one act, or more than one act, aids, assists, attempts to aid, encourages, solicits the act and you do so with the intent to promote or assist. . . . .

The discussion during voir dire and the instruction on legal duty set the stage for the State’s closing argument, during which the prosecutor again focused on Guevara’s absence from his home on the day Velia was shot:

This man sat there as Minnie Salinas was identified as his wife’s killer. The law is if with the intent to promote or assist in the commission of the offense, you solicit, encourage, direct, aid, or attempt to aid in any way, shape or form, no matter how small it is, you are a party to the offense of murder. And this man did.



We talked about the fact it can be very small. It can even sometimes be the situation of a bodyguard stepping out of the way and that is aiding or attempting to aid in the commission of the offense. And we know that this Defendant did many things. He took Minnie Salinas to the shooting range, watched and helped her fire a .9 millimeter weapon. . . . .



. . .



We know the Defendant, perhaps the most horrible thing he did was arrange to be away at the time of the murder, taking one little bit of protection away, because we know Minnie Salinas would never go into an apartment and kill Velia Guevara with him actually there.

. . .



He got rid of the only handgun, the only handgun that was in the apartment, that no matter what your feelings on handguns you might believe that was some protection to her and he got rid of it. What does he say he did with it? He says, “I gave it to Minnie Salinas because she had lent - - she needed the revolver because she had loaned her .25 caliber gun to her friend Tina,” Tina Zimmerman, the same woman who testified in front of you and said, “I never had Minnie Salinas’ handgun.” There was no reason for him to give the gun to Minnie Salinas, his current wife.



. . .



And then the most serious thing, he diverts all the police attention away from Minnie Salinas. He lies to the police. He says they are happy together, he and his wife.



Any of those things are sufficient to find this Defendant guilty of murder, aiding and assisting in the murder. You can look at things before, during and after the murder to determine guilt. . . . .

The State argues that, in each instance, the prosecutor merely used hypotheticals to illustrate the concept of an accomplice affirmatively aiding and assisting the primary actor. We disagree. The State began its case by placing before the jury the image of a man who steps aside and allows harm to come to another individual. The State closed with the same image, emphasizing Guevara arranged to be away from home at the time of his wife’s murder, “taking one little bit of protection away,” and getting rid of a gun that might have provided Velia with “some protection.”

Guevara’s absence from his home the day Velia was shot was a theme central to the State’s presentation of its case. His absence, coupled with a jury charge that authorized the jury to convict him of the offense of not making a reasonable effort to prevent Velia’s death, although he had no legal duty to do so, created such harm that Guevara did not receive a fair and impartial trial.

CONCLUSION

After examining the instructions and the proceedings as a whole, we conclude egregious harm resulted from the erroneous jury instruction. We reverse the trial court’s judgment and remand the cause to the trial court for a new trial.



Karen Angelini, Justice

PUBLISH

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-0351-05

THE STATE OF TEXAS


v.


JAMES VASILAS, Appellee


ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

COLLIN COUNTY

Meyers, J., delivered the opinion of the unanimous Court.

O P I N I O N

We granted the State's petition for discretionary review to decide whether a petition for expunction qualifies as a "governmental record" under section 37.01 of the Texas Penal Code. One definition of a governmental record is "anything belonging to, received by, or kept by government for information, including a court record." Tex. Penal Code Ann. º 37.01(2)(A) (Vernon Supp. 2004-2005). The definition of a court record is "a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court." Tex. Penal Code Ann. º 37.01(1) (Vernon Supp. 2004-2005). We will resolve whether pleadings filed with but not issued by a court fall within the definition of a governmental record pursuant to º 37.01(2)(A).

Facts

Appellee, James Vasilas, is an attorney whose client was charged with the state jail felony of delivery of marijuana. Appellee's client was convicted of the lesser-included offense of possession of marijuana. Thereafter, Appellee signed and filed a petition of expunction of the records relating to his client's arrest on the delivery charge. The State then charged Appellee in a four-count indictment of tampering with a governmental record pursuant to Tex. Penal Code º 37.10, alleging that he made three false entries in the petition for expunction. Appellee filed a nonsuit of the expunction lawsuit.

Subsequently, Appellee filed a motion to quash the indictment on two grounds. First, he asserted that º 37.10 of the Texas Penal Code and Texas Rule of Civil Procedure 13 (1) were in pari materia, with Rule 13 controlling over º 37.10. Second, he claimed that pleadings in civil suits were not governmental records under the definition of º 37.01(2)(A). After hearing oral argument, the trial court granted the motion to quash without filing findings of fact or conclusions of law. The State timely filed its notice of appeal.

Because the State did not appeal the trial court's granting of the motion to quash the first three counts of the indictment, the sole issue before the court of appeals was whether the trial court erred in granting the motion to quash Count IV, which alleged that Appellee did "with intent to defraud and harm another, namely, the State of Texas, make, present, and use a governmental record, to wit: a Petition for Expunction of Records, with knowledge of its falsity." (2) The court of appeals affirmed the trial court, holding that "the petition for expunction filed by appellee was not a governmental record within the meaning of chapter 37 of the penal code." State v. Vasilas, 153 S.W.3d 725, at *5 (Tex. App.-Dallas 2005, pet. granted). The court of appeals reasoned that by including a court record in the definition of a governmental record, the legislature meant to exclude every type of court document that was not a court record. Since the definition of a court record under the Texas Penal Code is a document issued by a court, the court of appeals concluded that a pleading, such as a petition for expunction, which is created by a party or attorney and merely filed with a court, cannot be a governmental record. Having resolved this issue against the State, the court of appeals did not address whether Tex. Penal Code º 37.10 and Rule 13 were in pari materia.

Issue Presented

The State argues that "under the plain language of the statutory definition of 'governmental record,' which encompasses anything received by a court for information, a petition for expunction can be a governmental record even though it is filed with, not issued by, a court." The State asserts that the court of appeals' interpretation of the definition of a governmental record violates section 311.005(13) of the Texas Government Code, commonly referred to as the Code Construction Act, which defines "including" as a term of enlargement and not of limitation. Furthermore, the State submits that the court of appeals should not have looked beyond the plain language of the statute to its legislative history in discerning the meaning of a governmental record, and that it erred by misinterpreting the legislature's intent in amending the definition of governmental record in 1997 to include a court record. (3) While Appellee concedes that the word "including" is not itself a term of limitation, he argues that a petition for expunction does not qualify as a governmental record because: 1) the words "for information" in º 37.01(2)(A) exclude documents that seek to destroy information; 2) the legislature did not explicitly include pleadings within the definition of a governmental record; and 3) the petition for expunction was not a governmental record when the false entries were made. Although Appellee also advances the argument that º 37.10 and Rule 13 of the Texas Rules of Civil Procedure are in pari materia, the court of appeals did not reach this issue, and it is not the issue for which we granted review. We will reverse the court of appeals' decision.

Analysis

The resolution of this case depends on the meaning of the word "including" in the definition of "governmental record" in º 37.01(2)(A). The construction to be given a statute is a question of law. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). In our leading statutory interpretation case, Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991), we explained that courts must begin with the plain language of a statute in order to discern its meaning. This is because the court's interpretation of statutes must "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." Id. at 785 (citing Camacho v. State, 765 S.W.2d 431 (Tex. Crim. App. 1989)). In Boykin, we established that if the literal text of the statute was clear and unambiguous, we would ordinarily give effect to that plain meaning. 818 S.W.2d at 785 (citing Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). However, we also held:

If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.

Id. at 785-86. The seminal rule of statutory construction is to presume that the legislature meant what it said. Seals v. State, 187 S.W.3d 417, 421 (Tex. Crim. App. 2005). In adhering to this rule, we show our respect for the legislature and recognize that if it enacted into law something different from what it intended, it would amend the statute to conform to its intent. Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (citing Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S.Ct. 1023, 1034, 157 L.Ed.2d 1024 (2004) ("It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think . . . is the preferred result.")).

The legislature has provided the Code Construction Act to assist in statutory interpretation. It instructs that "words or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Tex. Gov't. Code Ann. º 311.011(b) (Vernon 2005). In º 311.005(13) of the Code Construction Act, the legislature expressly stated its intent regarding its use of the word "including" in statutory provisions, providing: "'Includes' and 'including' are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded." Tex. Gov't. Code Ann. º 311.005(13) (Vernon 2005). This Court relied on º 311.005(13) in interpreting the statutory meaning of "including" in Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992) (plurality opinion), superseded by statute, Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994). Pursuant to º 311.005(13), we established that the list following "including" in Article 37.07(3)(a) of the Texas Code of Criminal Procedure (4) was not exclusive as to the evidence admissible at the sentencing phase of trial, as long as it was relevant to sentencing. Grunsfeld, 843 S.W.2d at 525 (explaining that the legislature's use of the term "including" in amending Article 37.07(3)(a) rendered the list following it nonexclusive); see also Beasley v. State, 902 S.W.2d at 456-57 (holding that evidence concerning the activities of a gang, to which the appellant belonged, was admissible under Article 37.07(3)(a) because matters relevant to sentencing were not limited to "the prior criminal record of the defendant, his general reputation and his character"). (5)

The lower courts have also interpreted the legislature's use of the word "including" as a means of illustration and not exclusion. For instance, in Leach v. State, the court of appeals applied º 311.005(13) to the defendant's community supervision condition, which tracked statutory language in the Texas Code of Criminal Procedure, and held that the word "including" did not "creat[e] a presumption against further inclusion of terms not expressly stated." 170 S.W.3d 669, 673 (Tex. App.-Fort Worth 2005, pet. ref'd) (holding that because "including" was a term of enlargement, the defendant had violated his community supervision by going within 1000 feet of a grassy area where children played, even though this location was not specified in the list of prohibited premises). Similarly, in Wilburn v. State, the court of appeals relied on º 311.005(13) to reject the appellant's argument that, by specifically including franchise taxes in the Franchise Tax Act, the legislature had intended to exclude directors' and officers' liability for all other taxes. 824 S.W.2d 755 (Tex. App.-Austin 1992, no pet.). In H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., this same court of appeals reasoned that the Railroad Commission of Texas's use of the word "including" in a notice provision did not create an exclusive list of interests entitled to notice. 36 S.W.3d 597 (Tex. App.-Austin 2000, pet. denied). In fact, citing º 311.005(13), the court of appeals stated that "the Commission's use of the word 'include' in the provision signified that the list is not exclusive." Id. at 603 (emphasis added).

Both this Court and the lower courts of appeals have construed "including" as a term of enlargement in accordance with the legislature's intention. By employing the word "including" to illustrate an example of a governmental record, the legislature did not by its plain language intend to exclude documents that were filed with the court from the definition of º 37.01(2)(A). In spite of the fact that the word "including" is unambiguous and the legislature has assigned it a particular meaning of enlargement, Appellee argues that the definition of a governmental record still excludes the petition for expunction at issue.

First, Appellee claims that the legislature would have included pleadings in the express language of º 37.01(2)(A), if it had intended them to be governmental records. We have already explained that the legislature's decision to name a court record as an example of a governmental record does not narrow what qualifies as a governmental record. Furthermore, we agree with the State that "it is difficult to see how the legislature would have to make any additions to the definition of governmental record for the current word 'anything' to include a pleading." (6) Second, Appellee contends that the phrase "for information" in the definition of governmental record operates to exclude the petition for expunction because it seeks to destroy other governmental records. Just because the filing of a petition for expunction may result in the destruction of certain records does not take away from the fact that the petition gives the government information about which records the petitioner wants to expunge. Third, Appellee contends that the petition for expunction is not a governmental record because it had not been received by the government when the false entries were made. See Pokladnik v. State, 876 S.W.2d 525 (Tex. App.-Dallas 1994, no pet.); Constructors Unlimited v. State, 717 S.W.2d 169 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd). Appellee's argument is misplaced because he relies on cases in which defendants were charged under º 37.10(a)(1), which requires knowingly making a false entry in, or false alteration of, a governmental record, and not under º 37.10(a)(5), which requires making, presenting, or using a governmental record with knowledge of its falsity. Although the petition for expunction was not a governmental record when Appellee prepared it, it became a governmental record once the court received it and he used it in seeking to obtain the expunction of records. See Morales v. State, 11 S.W.3d 460 (Tex. App.-El Paso 2000, pet. ref'd) (holding that even if a petition containing signatures for placement on the ballot was not a governmental record when it was falsified, it became a governmental record after it was accepted by the party chairperson and the candidate relied on it to maintain his position on the ballot). We conclude that the legislature's definition of a governmental record is clear and unambiguous and may include a court record, such as the petition for expunction at issue.

Having established that the clear and unambiguous language of º 37.01(2)(A) does not exclude pleadings, such as a petition for expunction, from the definition of a governmental record, it is necessary to determine whether bringing the petition for expunction within the language of the statute would lead to an "absurd result that the legislature could not possibly have intended." Getts, 155 S.W.3d at 155 (citing Boykin, 818 S.W.2d at 785-86). Relying on º 311.021(5) of the Code Construction Act for the proposition that in enacting a statute, there is a presumption that public interest is favored over any private interest, Appellee describes the allegedly falsified petition for expunction as a mistaken pleading, the prosecution of which "would have a chilling effect upon our system of jurisprudence." He characterizes the result of including pleadings in the definition of a governmental record as: "the State's orwellian [sic] persecution of lawyers by attempting to deprive counselors licensed by the Supreme Court of Texas of their ability to earn a living practicing before our courts." Clearly, Appellee misses the point of º 37.10, which does not effectively disbar attorneys, but makes them criminally liable if they tamper with a governmental record. While º 37.10(a)(5) makes it an offense to make, present, or use a governmental record with knowledge of its falsity, º 37.10(a)(3) makes it an offense to intentionally destroy, conceal, remove, or impair a governmental record, which is effectively what the falsified petition for expunction was attempting to do. There is nothing absurd about the legislature seeking to prohibit these acts with respect to a petition for expunction or other pleadings, and these prohibitions do not preclude effective lawyering, as Appellee suggests, by forbidding attorneys from entering alternative pleadings. Tampering with a governmental record pursuant to the definitions of ºº 37.10(a)(3) and 37.10(a)(5) is very different from advocating a client's interests by advancing different legal theories which have bases in the facts and the law.

Furthermore, we have not often considered the issue of what constitutes a governmental record, but our caselaw indicates that there is nothing unique about a petition for expunction such that the legislature would seek to treat it differently from all the other records that would fall within its scope. For instance, applications for government benefits, such as the one in State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999), clearly qualify as governmental records. It is not at all absurd for the legislature to include pleadings within the meaning of a governmental record pursuant to º 37.10(a)(5). The legislature obviously meant to protect the people of the State by making it a crime to tamper with governmental records. By enacting º 37.10, the legislature intended to prevent a multitude of harms, including the destruction of governmental records, the perpetration of a fraud upon the court, and the miscarriage of justice that could result from the use of falsified records. There is nothing absurd about the legislature criminalizing such conduct.

Conclusion

Because the legislature's definition of a governmental record is clear and unambiguous, and including pleadings in this definition does not lead to an absurd result, it is unnecessary to examine the legislature's intent in amending the definition of a governmental record in 1997. The court of appeals erred in undertaking such an analysis. We reverse the decision of the court of appeals and remand the case for consideration of the second ground for review.

Meyers, J.

Delivered: March 22, 2006

Publish


1. Rule 13 of the Texas Rules of Civil Procedure is entitled "Effect of Signing of Pleadings, Motions and Other Papers; Sanctions."

2. Section 37.10(a)(5) provides that a person commits the offense of tampering with a governmental record if he "makes, presents, or uses a governmental record with knowledge of its falsity." Tex. Penal Code Ann. º 37.10(a)(5) (Vernon Supp. 2004-2005). Pursuant to º 37.10(c)(1), this offense is "a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony." Tex. Penal Code Ann. º 37.10(c)(1) (Vernon Supp. 2004-2005).

3. In 1997, the legislature amended º 37.01 by adding the phrase "including a court record" to the definition of "governmental record" in what had previously been º 37.01(1)(A). The legislature moved the definition of governmental record from subsection (1) to subsection (2) and added a definition of a "court record" in º 37.01(1). See Tex. Penal Code Ann. º 37.01 (Vernon Supp. 1998).

4. At the time we decided
Grunsfield, Article 37.07(3)(a) provided that "regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character." Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1991) (emphasis added). Subsequent to our decision in Grunsfeld, the legislature amended the language of º 37.07(3)(a) to clarify that evidence of unadjudicated extraneous offenses and prior bad acts were admissible at punishment. See Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994); Beasley v. State, 902 S.W.2d 452, 457 (Tex. Crim. App. 1995) (plurality opinion) (McCormick, P.J., concurring).

5. Although we decided
Beasley in 1995, we relied on the earlier version of Article 37.07(3)(a), which we interpreted in Grunsfeld and which was in effect when the appellant had committed his offense.

6. The State first advanced this argument in its brief to the Fifth Court of Appeals.

Labels: Americano, Bobbie Williams, DHS, La Ley, Mary Cano, Project RIO, Taxpayer waste, TWC, WIA

When Lee’s witnesses were then reported missing, the judge had ample reason to believe they had second thoughts about testifying. All three of Lee’s family members had traveled from California to testify, but all three left without speaking to Lee or his lawyer. Two sets of witnesses, four persons in all, had just placed Lee in Kansas City; and the prosecution had said it had in reserve other witnesses prepared to rebut the alibi testimony. Lee had been sentenced to 80 years in Missouri prison for an unrelated armed assault and robbery, and any witness who was considering perjury would have had little inducement to take that risk–a risk that would have became more pronounced after the prosecution’s witnesses had testified–if Lee would serve a long prison term in any event. The judge’s skepticism seems even more justified when it is noted that six weeks later, during a hearing on Lee’s motion for a new trial, counsel still did not explain where Lee’s family members had gone or why they had left. It was not until 17 months later, in an amended motion for postconviction relief, that Lee first gave the Missouri courts an explanation for his family’s disappearance.


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JUN 23 2000 [date stamped]

UNITED STATES OF AMERICA,
Plaintiff,

v. Criminal No. 99-1417 JP

WEN HO LEE,
Defendant.


MOTION FOR DISCOVERY OF MATERIALS
RELATED TO SELECTIVE PROSECUTION

Dr. Wen Ho Lee, through undersigned counsel, respectfully moves the Court, pursuant to the Due Process Clause of the Fifth Amendment to the Constitution of the United States of America, for discovery of materials relevant to establishing that the government has engaged in unconstitutional selective prosecution.

The grounds for this motion are set forth in the accompanying memorandum.

Respectfully submitted,

O'MELVENY & MYERS LLP

By
Mark Holscher
Richard E. Myers II

400 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 430-6000
Fax: (213) 430-6407

FREEDMAN BOYD DANIELS HOLLANDER
GOLDBERG & CLINE P.A.

By:
Nancy Hollander
John D. Cline

20 First Plaza, Suite 700
Albuquerque, NM 87102
Telephone: (505) 842-9960
Fax: (505) 842-0761

Attorneys for Defendant Dr. Wen Ho Lee

I HEREBY CERTIFY that a true copy of the foregoing was mailed to opposing counsel this 25th day of June, 2000.

Nancy Hollander

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JUN 23 2000 [date stamped]

UNITED STATES OF AMERICA,
Plaintiff,

v. Criminal No. 99-1417 JP

WEN HO LEE,
Defendant.


MEMORANDUM IN SUPPORT OF MOTION FOR DISCOVERY
OF MATERIALS RELATED TO SELECTIVE PROSECUTION

INTRODUCTION

Defendant Wen Ho Lee is the only person the U.S. Department of Justice (DOJ) has selected for indictment under the draconian Atomic Energy Act since it was passed in 1948. During this fifty-year period, the DOJ has repeatedly declined to fully investigate, much less charge, individuals who may have compromised classified nuclear weapons related information.

The DOJ also indicted Dr. Lee under 18 U.S.C. § 793(c) and (e) for the alleged mishandling of computer codes and data files, even though these files had not been classified at the time of Dr. Lee's alleged activities. Instead, the computer codes and data files had been designated as "protect as restricted data" (PARD), which ranks between unclassified and confidential on the Los Alamos National Laboratory (LANL) security hierarchy. Moreover, the government obtained the indictment under § 793 even though it concededly has no evidence that the codes and data files were ever transferred to any unauthorized person. Not one person other than Dr. Lee has ever been charged under § 793 for mishandling materials that had not been formally classified and that were not transferred.

Dr. Lee has obtained concrete proof that the government improperly targeted him for criminal prosecution because he is "ethnic Chinese." This direct evidence includes the following:

* A sworn declaration from a LANL counterintelligence official who participated in the investigation of Dr. Lee that Dr. Lee was improperly targeted for prosecution because he was "ethnic Chinese."

* Videotaped statements of the FBI Deputy Director who supervised counterintelligence investigations until last year admitting that the FBI engaged in racial profiling of Dr. Lee and other ethnic Chinese for criminal counterintelligence investigations.

* The sworn affidavit the U.S. Attorney's Office used to obtain the warrant to search Dr. Lee's home, in which the FBI affiant incorrectly claimed that Dr. Lee was more likely to have committed espionage for the People's Republic of China (PRC) because he was "overseas ethnic Chinese."

* A posting to the Los Alamos Employees Forum by a LANL employee who assisted counterintelligence investigations and personally observed that the DOE engaged in racial profiling of Asian-Americans at Los Alamos during these investigations.

Dr. Lee has requested that the government provide specific reports and files to him that squarely relate to the issue of whether he has been selectively prosecuted as a result of improper racial profiling. The government has refused to provide any of these documents to Dr. Lee.

Because Dr. Lee is the only person who has ever been selected for prosecution under the Atomic Energy Act,1 and the only person ever prosecuted in remotely similar circumstances under § 793, and because he has uncovered specific direct admissions from the government that he was targeted for criminal investigation because he is "ethnic Chinese," he has made the necessary showing to obtain this discovery. Even if Dr. Lee did not have this direct evidence, he has also satisfied the stringent requirements of United States v. Armstrong, 517 U.S. 456 (1996), which held that in the absence of direct evidence of impermissible racial targeting, a defendant is nevertheless entitled to discovery if he provides some evidence that similarly situated people have not been prosecuted and that his investigation and prosecution were caused by improper racial motivations.

1 At Dr. Lee's detention hearing on December 13, 1999, FBI Special Agent Robert Messemer conceded that Dr. Lee is the only person who has ever been charged under the Atomic Energy Act. See Transcript of Proceedings, December 13, 1999, at 139.

This memorandum summarizes compelling evidence that the DOJ had an informal policy of refusing to bring criminal charges in situations similar to and (even more egregious than) Dr. Lee's case. In addition, we provide several specific examples of similarly situated individuals whom the government has chosen not to indict under either the Atomic Energy Act or § 793. Unlike the meritless selective prosecution discovery motions discussed in Armstrong, where several thousand men and women of all races had been charged under the same statutes as the defendants, Dr. Lee can conclusively establish that he is the only person whom the government has ever chosen to indict under the Atomic Energy Act and the only person indicted in similar circumstances under § 793.

FACTUAL BACKGROUND

A. The Indictment

On December 10, 1999, the government brought a fifty-nine-count indictment against Dr. Lee. Thirty-nine counts allege that Dr. Lee violated the Atomic Energy Act because he purportedly mishandled material containing restricted data, with the intent to injure the United States, and with the intent to secure an advantage to a foreign nation. Dr. Lee was also charged with ten counts of unlawfully obtaining national defense information in violation of 18 U.S.C. § 793(c), and with ten counts of willfully retaining national defense information in violation of 18 U.S.C. § 793(e).

B. Dr. Lee's Discovery Requests

Dr. Lee's counsel have made a written request to the prosecution for specific materials his counsel believe contain direct evidence that Dr. Lee was improperly selected for prosecution because he is "ethnic Chinese." 2 Among the several categories of materials requested were: (1) the reports and memoranda supporting the findings of the DOE's Task Force on Racial Profiling's January 2000 report, (2) the Defensive Information to Counter Espionage videotapes, that were created by DOE counterintelligence and shown to DOE employees until last year, and are now prohibited at LANL because they allegedly contain racial stereotypes; (3) DOE or DOJ memoranda and reports confirming that the FBI targets Americans of Chinese ethnicity for potential criminal espionage involving the PRC; (4) the DOJ's and DOE's responses to the numerous Congressional inquiries related to the justification for and details of the investigation of Dr. Lee; (5) the classified September 1999 State Department report by Jacqueline Williams-Bridger, detailing hundreds of cases of mishandling classified information, including cases of actual passing of classified information; and (6) information concerning specific cases in which the government declined to prosecute under circumstances similar to, or more egregious than, this case. The government has refused to produce any of the materials requested by Dr. Lee's counsel.

2 See May 1, 2000, letter from Mark Holscher to AUSA Robert Gorence, attached as Exhibit A.

I. THE LEGAL STANDARD FOR DISCOVERY REGARDING SELECTIVE PROSECUTION

The Supreme Court established the threshold for discovery on selective prosecution claims in United States v. Armstrong, 517 U.S. 456 (1996). The Court held that to obtain discovery in a case in which the court is asked to infer discriminatory purpose, a defendant must produce (1) some evidence that similarly situated individuals have not been prosecuted, and (2) some evidence of improper motivation in deciding to prosecute. The Court did not decide whether a defendant should be required to produce some evidence that similarly situated persons have not been prosecuted if the prosecution has admitted having a "discriminatory purpose." Id. at 469 n.3.

II. DR. LEE MORE THAN MEETS THE LEGAL STANDARD FOR DISCOVERY REGARDING SELECTIVE PROSECUTION

As we demonstrate below, Dr. Lee clearly meets the legal standard that Armstrong establishes for discovery related to a selective prosecution claim. In Part A, he presents direct evidence that government officials have admitted a racial basis for investigating Dr. Lee, and in Part B, he establishes that the government has declined to prosecute similarly situated persons.

A. Dr. Lee has Direct Evidence that He was Targeted for Criminal Investigation Because He is "Ethnic Chinese."

The troubling chain of events that led to Dr. Lee's indictment began when the DOE's Chief Intelligence Officer, Notra Trulock, incorrectly concluded in 1995 that the PRC had obtained the design information for the W-88 warhead from someone at the Los Alamos National Laboratory.3 Mr. Trulock began an Administrative Inquiry to identify the suspect or suspects who should be the focus of this counterintelligence investigation. On May 29, 1996, Mr. Trulock issued the Administrative Inquiry which listed Dr. Lee as the main suspect. This Administrative Inquiry led to meetings between DOE counterintelligence officials and FBI Special Agents in New Mexico regarding Dr. Lee. The FBI then opened a criminal investigation of Dr. Lee.

3 Just last year the DOJ conceded in a press conference that this conclusion was incorrect, and it opened a criminal investigation into the over 450 individuals outside LANL who had received this design information. See, e.g., Vernon Loeb and Walter Pincus, New Leads Found in Spy Probe, Washington Post, Nov. 19, 1999 at Al, attached as Exhibit B.

1. Vrooman's Declaration Establishes that the Government Engaged in Improper Racial Profiling

Robert Vrooman, who was the Chief Counterintelligence Officer at LANL from 1987 until 1998, participated in the Administrative Inquiry and assisted in the resulting criminal investigation of Dr. Lee. Mr. Vrooman is adamant that Mr. Trulock's targeting of Dr. Lee for investigation was the result of improper racial profiling. In a declaration, attached as Exhibit C, Mr. Vrooman states:

Mr. Trulock's office chose to focus specifically on Dr. Lee because he is "ethnic Chinese." Caucasians with the same background and foreign contacts as Dr. Lee were ignored.

Vrooman Decl., Ex. C at 3, ¶ 9. Vrooman is also unequivocal in stating that this impermissible racial profiling was the main reason Dr. Lee was targeted for criminal prosecution. "I state without reservation that racial profiling was a crucial component in the FBI's identifying Dr. Lee as a suspect." Id. at 3,¶ 12.4

4 Vrooman consistently raised this concern with federal officials, long before he provided his declaration here. As he indicated in a May 1999 letter to U.S. Senator Domenici: "[e]thnicity was a crucial component in identifying Lee as a suspect. Caucasians with the same background as Lee were ignored." See Ex. I to Ex. C. Vrooman also wrote to Senator Conrad Burns in June 1999 that "Mr. Lee was selected as the prime suspect mainly because he is ethnic Chinese." See June 25, 1999, letter from Robert Vrooman to U.S. Senator Conrad Bums, attached as Exhibit D.

Vrooman has also made clear that Trulock, who was the highest ranking DOE employee overseeing all counterintelligence investigations, intentionally targeted "ethnic Chinese" because Trulock held the belief that these American citizens could not be trusted like other American citizens. As Vrooman states in his declaration, Trulock told him that "ethnic Chinese should not be allowed to work on classified projects, including nuclear weapons." Id. at 3, ¶ 13.5 Trulock made these statements while he was chief of the DOE's counterintelligence office, and when he was personally assisting the criminal investigation of Dr. Lee. Trulock's statements that American citizens who are "ethnic Chinese" should be barred from sensitive jobs at LANL are a violation of federal civil rights statutes that prohibit racial discrimination for employment.6 Trulock's statements are further corroboration that Trulock intentionally targeted Dr. Lee because he was "ethnic Chinese."

5 Vrooman confirmed this troubling fact in the letter he wrote to Senator Domenici on May 11, 1999, See Ex. I to Ex. C.

6 See 42 USCA § 2000e-2 ("It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.").

2. Former FBI Deputy Director Paul Moore has Confirmed that Dr. Lee was Targeted by the FBI Due to Racial Profiling

The FBI used the same impermissible racial profiling in its criminal investigation of Dr. Lee. The Deputy Director of the FBI responsible for all criminal counterintelligence prosecutions until 1999 confirmed that the FBI's criminal investigation of Dr. Lee was premised on the same impermissible racial bias, namely, that "Chinese-Americans" were more likely to commit espionage. The Deputy Director, Paul Moore, oversaw portions of the criminal investigation of Dr. Lee. In a televised interview with Jim Lehrer, on December 14, 1999, regarding the arrest and indictment of Dr. Lee, Deputy Director Moore admitted that racial profiling was used, but attempted to justify this racial classification as reasonable:

There is racial profiling based on ethnic background. It's done by the People's Republic of China. ... Now the FBI comes along and it applies a profile, so do other agencies who do counter intelligence investigations -- they apply a profile, and the profile is based on People's Republic of China, PRC intelligence activities. So, the FBI is committed to following the PRC's intelligence program wherever it leads. If the PRC is greatly interested in the activities of Chinese-Americans, the FBI is greatly interested in the activities of the PRC as [regards] Chinese-Americans.

The News Hour With Jim Lehrer, December 14, 1999, Tuesday, Transcript #6619, attached as Exhibit E at 12.

Moore's statements ignored the fact that senior FBI officials, in memoranda the government is withholding from Dr. Lee, had concluded long before December 1999 that it did not have credible evidence that the Taiwanese-born Dr. Lee had engaged in any improper activities with the PRC. In his videotaped interview, Moore then attempted to explain why the DOJ had indicted Dr. Lee:

So, now, the U.S. in my opinion, this signals that the U.S. is fighting back. This is the situation quite similar to the Al Capone case where they couldn't [lock] him up for his racketeering activities, so they cast about and they found something else that they could get him for.

Id. at 14.

Moore, however, later conceded that the FBI's targeting of American citizens who are "ethnic Chinese" for increased scrutiny for espionage did not make sense. In response to a statement by Nancy Choy of the National Asian Pacific-American Bar Association that targeting people for criminal investigation based on their race was improper, Moore backtracked from his earlier statement that the racial targeting of "ethnic Chinese" by the FBI was reasonable. After Ms. Choy challenged the profiling, Moore admitted that:

Ethnic profiling doesn't work for the PRC, it doesn't work for the FBI. You cannot predict someone's intelligence, somebody's espionage behavior based on his ethnic background. (Emphasis added.)

Id. at 13.

Moore did not even attempt to address the issue of how such racial targeting could even be considered for a citizen of the United States who was born in Taiwan. The Attorney General of the United States, in testimony before a Senate subcommittee, also stated that it was illogical to claim that a Taiwanese-born scientist like Dr. Lee would be predisposed to assist the PRC. "Now, if you are using that information to suggest that you are an agent of a foreign power, to whit, [sic] the PRC, the immediate question is raised, how are you that if you are clearly working with the Taiwanese Government on matters that apparently involve non-classified information?" Top Secret Hearing Before the Senate Committee on the Judiciary, 106th Cong. (1999), (visited June 22, 2000) (http://www.fas.org/irp/congress/1999_hr/renofisa.html) (statement of Attorney General Janet Reno).

3. Acting Counterintelligence Director Washington Also Confirmed Trulock's Profiling of Chinese Americans

Eugene Washington, who was DOE's acting Director of Counterintelligence in 1996, also believes that Trulock engaged in improper racial profiling. Washington confirmed in an interview with the Washington Post in August 1999, that "he told Trulock that he was unfairly singling out Lee and another Chinese American scientist." Vernon Loeb and Walter Pincus, Espionage Whistleblower Resigns: Energy's Trulock Cites Lack of Support as Debate About His Tactics Grows, Washington Post, August 24, 1999, attached as Exhibit F. Washington apparently sent Trulock a memorandum recommending that the investigation be closed and apparently questioning the DOE's focusing on Chinese Americans. This government has not produced this memorandum to Dr. Lee.

4. The Search Warrant Affidavit the DOJ Submitted to Search Dr. Lee's House Contains Additional Proof that Dr. Lee was Targeted Because He is "Ethnic Chinese."

The once-sealed affidavit in support of a search warrant to search Dr. Lee's home confirms that the government considered Dr. Lee's race to be evidence of possible espionage.7

7 This affidavit was written after internal FBI memoranda apparently concluded that Dr. Lee did not pass W-88 information to the PRC. The government has refused to turn over to the defense the FBI 302's dated November 29, 1998, January 22, 1999, February 26, 1999, and September 3, 1999, memoranda which, according to multiple press reports, directly contradicted the sworn declaration provided to the United States Magistrate Judge in New Mexico.

To support the now fully discredited allegations that Dr. Lee may have committed espionage, the affidavit asserts that FBI counterintelligence experts were relying in part on the fact that Dr. Lee was "ethnic Chinese." As the affidavit states, the "supervisory Special Agent of the FBI who specializes in counterintelligence investigations regarding the People's Republic of China" who"has supervised from FBI headquarters PRC counterintelligence investigations for the past five years" explained to the investigative agent "that PRC intelligence operations virtually always target overseas ethnic Chinese." The affidavit leaves no doubt that improper racial profiling, which started with Mr. Trulock, continued to be a substantial basis for the targeting of Dr. Lee in 1999.

5. Another LANL Employee Has Also Confirmed that the DOE Engaged in Racial Profiling.

Dr. Lee has uncovered additional corroboration that DOE's counterintelligence staff used racial profiling. In an e-mail to his fellow employees, Michael Soukup wrote that the DOE pressured him to investigate Asian-Americans because of their ethnicity when he assisted the DOE in counterintelligence investigations. See Letter of Michael Soukup, dated April 12, 2000, and published in the Los Alamos National Laboratory Online Forum, http://www.lanl.gov/orgs/pa/News/forum/letter2000-080.html.

Specifically, Soukup states:

While I was assigned to NIS-9 (until mid-1998), I supported, on a part-time basis, the counterintelligence investigation into alleged Chinese espionage at Los Alamos. Based upon my experience and observations, I conclude that racial profiling of Asian-Americans as a result of the investigation indeed took place, but principally at the DOE. Further, DOE personnel directed some Los Alamos National Laboratory staff to undertake research that profiled Asians and Asian-Americans at the Laboratory. I do not believe any of us were happy with this.

Soukup's statement buttresses Vrooman's declaration and provides an additional basis to believe that discovery regarding selective prosecution could lead to additional proof of improper racial profiling.

B. Evidence that Similarly Situated Individuals Have Never Been Prosecuted Under the Atomic Energv Act or § 793(c) and (e)

It is clear that race played an impermissible role for selecting Dr. Lee for prosecution under the Atomic Energy Act and the Espionage Act, 18 U. S.C. § 793. During the past fifty-two years, no American has ever been prosecuted under the Atomic Energy Act. FBI Special Agent Messemer conceded this fact at the December 13 bail hearing. See fn.1, supra. Evidence that similarly situated individuals have not been prosecuted can be found in both statements of DOJ officials concerning the practices of the DOJ in declining to prosecute similar or more egregious cases as well as specific examples of similarly situated individuals that the DOJ declined to charge.

Not only have there been no other prosecutions under the Atomic Energy Act, the DOJ had a policy of not bringing cases such as this under § 793 as well. As a former DOJ official told the Washington Post a few months ago, for twenty years the Department had followed a practice of not prosecuting civilians where no evidence existed that the classified materials in question had been transferred to a third party. According to this official, "[n]o matter how gross the violation, there would be no prosecution if the agency took strong administrative action." See Walter Pincus and Vernon Loeb, U.S. Inconsistent When Secrets Are Loose, Washington Post, March 18, 2000, at Al, attached as Exhibit G. Here, not only had Dr. Lee's files not been classified at the time he allegedly mishandled them, but also the indictment does not allege that the files in question were provided to any third party and the government conceded at the detention hearing that it has no such evidence. Dr. Lee was terminated -- obviously "strong administrative action" -- and under DOJ practice there should have been "no prosecution."

Further evidence that DOJ has never prosecuted similarly situated individuals can be found in the Department's apparent blanket refusal to bring criminal charges where State Department officials have mishandled classified materials. In 1999 alone, the State Department investigated thirty-eight incidents of mishandling classified information. See id. A classified analysis by the State Department likewise detailed numerous similar breaches, in a September 1999 report written by Jacqueline Williams-Bridger. According to press reports, this classified document, which the government has not provided to the defense, details hundreds of breaches of appropriate procedures for handling classified information, including the intentional transferring of secret information, which did not result in criminal prosecution. See, e.g., S. Rep. No. 106-279, at 10-15 (2000); Vernon Loeb & Steven Mufson, State Dept. Security Has Been Lax, Audit Finds: Many Offices Not Swept For Listening Devices, Washington Post, Jan. 17, 2000, at Al, attached as Exhibit H. It is critical to note that these individuals who were not prosecuted included State Department employees who intentionally transferred secret or top secret information to unauthorized persons. By contrast, Dr. Lee did not provide information to any unauthorized person, and the material at issue had not been classified at the time of his alleged actions.

Employees of the DOE and the national weapons laboratories have a long history of unprosecuted mishandling of classified information. According to the 1999 Report by the President's Foreign Intelligence Advisory Board entitled Science at Its Best, Security at Its Worst, attached as Exhibit I, designs of classified weapons had been left unsecured on library shelves at Los Alamos, and personnel were "found to be sending classified information to outsiders via an unclassified email system," yet no prosecutions resulted. This report also outlined dozens of examples of systemic mishandling of classified information by laboratory employees. See id. at 3-6, 15, 22. During the entire time of LANL's woeful security record, nota single employee faced charges under the Atomic Energy Act or § 793. Based on discovery Dr. Lee has received to date, the DOE investigated dozens of cases of mishandling of classified information at LANL, without a single prosecution. See Pincus, U.S. Inconsistent When Secrets are Loose, Ex. G at 4.

In addition to the evidence of the government's practice of not prosecuting violations of the Atomic Energy Act and § 793(c) and (e), Dr. Lee has uncovered several individuals who have not been investigated criminally, much less indicted.

* John Deutch: During his tenure as director of the CIA, former Director John Deutch used his unsecured personal computer at home to create and access top secret files even though he had a secure computer in his home. See S. Rep. No. 106-279, at 9 (2000); Bob Drogin, CIA Reprimands 6 for Actions in Deutch Investigation, L.A. Times, May 26, 2000, at A14, attached as Exhibit J.

* Kathleen Strang: According to published reports Arms Control and Disarmament Agency employee, Kathleen Strang "improperly removed. . . [classified] documents from a storage vault at the State Department, repeatedly left them overnight in an open safe accessible to dozens of people without security clearances" and then ignored several warnings to protect these documents. These classified documents reportedly included highly sensitive details of how the U.S. intelligence community monitors nuclear tests and weapons development. These reports state that Ms. Strang gave other sensitive information to the Japanese. Apparently, one could draw a complete picture of how U.S. intelligence monitors nuclear tests and weapons development from these documents. See Bob Woodward, ACDA Aide Faulted on Security, Washington Post, Nov. 4, 1986, at Al, attached as Exhibit K.

* Anonymous sources of Bill Gertz: A government employee or government employees unknown to Dr. Lee provided Bill Gertz with classified material from the National Security Agency published in the May 1999 book Betrayal, which includes fifty-nine pages of secret documents (including those covered by the Atomic Energy Act) relating to Chinese missile technology. See Bill Gertz, Betrayal: How the Clinton Administration Undermined American Security (1999).

* Fritz Ermarth: CIA employee Fritz Ermarth reportedly transferred secret and top secret files between his home computer and his work computer, resulting in a virus entering the CIA's classified network. See Pincus, U.S. Inconsistent When Secrets Are Loose, at Al, Ex. G.

* LANL Scientist: A LANL nuclear scientist allegedly downloaded the "Green Book" containing secret restricted data regarding U.S. nuclear strategy and the vulnerabilities of U.S. nuclear weapon systems onto an unclassified LANL computer with Internet access. See id.8

8 Dr. Stephen Younger, whose testimony that the nuclear balance of power would be adversely affected if Dr. Lee were released is partly responsible for Dr. Lee being held without bond, was involved in evaluating the seriousness of this security violation and deferring the appropriate punishment of the LANL scientist referred to above.

* M.K: A CIA agent identified only as M.K. sold twenty-five CIA computers to the public without erasing top-secret information on their hard drives. The CIA learned of the breach when an individual who purchased a computer called to say that the hard drive of his computer contained files that he didn't think should be there. See Vernon Loeb, CIA Employees Sue Agency for Unfettered Right to Legal Help, Washington Post, May 14, 1999, at A31, attached as Exhibit L.

* James R. Conrad: In 1987 the government declined to prosecute defense contractor James R. Conrad, who Department of Defense investigators accused of removing classified documents from the Pentagon. Conrad earlier had transmitted classified information including missile launch commands and wartime bomber routes over unsecured computer lines from his computer in San Diego to Fairfax County, Virginia. See Secrets Breach Reported, The Dallas Morning News, June 12, 1987, at A8, attached as Exhibit M.

* Unnamed defense contractor: The DOJ investigated an employee of a defense contractor in Southern California for transferring hundreds of secret documents and storing them in his garage. DOJ lawyers apparently overruled the investigative agencies and declined to prosecute this employee.

The defense has been unable to locate a single reported decision dating back to the 1950s in which a civilian was prosecuted under § 793(c) or (e) without any allegation that he provided classified material to an unauthorized person. Unlike the defendants in the cases that have been brought, 9 the government has not even alleged that Dr. Lee transferred national-defense information to any unauthorized recipient.

9See e.g., Coplon v. United States, 191 F. 2d 749, 750-53 (D.C. Cir. 1951) (defendant was arrested while attempting to deliver data slips of F.B.I. reports to a Russian agent); Scarbeck v. United States, 317 F.2d 546, 548 (D.C. Cir. 1962) (defendant communicated classified information to representatives of the Polish Government); United States v. Dedeyan, 584 F.2d 36, 38 (4th Cir. 1978) (defendant showed a cousin who was working with a Soviet agent a classified study); United States v. Kampiles, 609 F.2d 1233, 1235 (7th Cir. 1979) (defendant was charged with willfully delivering a national-defense document to unauthorized persons); United States v. Truong Dinh Hun, 629 F.2d 908, 911 (4th Cir. 1980) (defendant arranged to have someone deliver classified papers to Vietnamese agents); United States v. Harper, 729 F.2d 1216, 1217 (9th Cir. 1984) (defendant was charged with obtaining and selling national-defense information to Polish agents; United States v. Smith, 780 F.2d 1102, 1103 (4th Cir. 1985) (defendant sold classified information to a Soviet agent); United States v. Walker, 796 F.2d 43, 45 (4th Cir. 1986) (defendant was arrested while attempting to deliver classified defense information to a Soviet agent); United States v. Zettl, 835 F.2d 1059, 1060 (4th Cir. 1987) (defendant delivered Navy program element descriptions to an unauthorized person); United States v. Morison, 844 F.2d 1057, 1060 (4th Cir.1988) (defendant sent secret Naval satellite photographs to a British publisher for publication); United States v. Whitworth, 856 F.2d 1268 (9th Cir. 1988) (defendant was charged with obtaining and delivering national-defense information to a foreign government); United States v. Miller, 874 F.2d 1255, 1258 (9th Cir. 1989) (defendant copied and delivered national-defense information to the Soviet government).

Even the defendants in reported military court cases, tried under the more stringent provisions of the Uniform Code of Military Justice, were tried when the evidence showed that they actually transferred materials or allowed an unauthorized third-party to physically obtain classified information.10

10 See, e.g., United States v. Roller, 42 M.J. 264, 265 (C.M.A. 1995) (defendant left classified documents in his garage, which allowed a moving company employee to obtain access to the documents); United States v. Baba, 21 M.J. 76, 77 (C.M.A. 1985) (defendant was charged with willfully delivering or cause to deliver three documents to unauthorized persons); United States v. Gonzalez, 16 M.J. 428, (C.M.A. 1983) (defendant left two classified messages in an unauthorized recipient's desk drawer); United States v. Grunden, 25 C.M.A. 327, 2 M.J. 116,119 (C.M.A. 1977) (defendant attempted to communicate national-defense information); United States v. Anzalone, 40 M.J. 658, 813 (N-M.C.M.R. 1994) (defendant disclosed and mailed information about military forces to unauthorized persons); United States v. Schoof, 34 M.J. 811, 813 (N-M.C.M.R. 1992) (defendant attempted to deliver microfiches to a foreign power); United States v. Lonetree, 31 M.J. 849, 852 (N-M.C.M.R. 1990) (defendant identified the names of United States intelligence agents to Soviet agents and provided the floor plans and office assignments of personnel in United States Embassies in Moscow and Vienna). But see United States v. Chattin, 33M.J. 802, 803 (N-M.C.M.R. 1991) (Defendant pleaded guilty to removing classified documents and willfully retaining it. Chattin was sentenced to confinement for four years, reduction to pay grade E-1,forfeiture of all pay and allowances, and a bad conduct discharge. The convening authority suspended all confinement in excess of three years for twelve months).

Similarly situated individuals who have not transferred any national-defense information have not been prosecuted under the Espionage Act. 11 The government has never alleged that Dr. Lee transferred the materials to anyone, nor that he left them unprotected where they could be stumbled upon by anyone. In fact, the evidence presented by the government itself at the bail hearings in this case confirms that Dr. Lee password-protected any materials on which he worked.

11 Dr. Lee anticipates that the government will attempt to rely on United States v. Poulsen, 41 F.3d 1330,1333-35, (9th Cir. 1994) (defendant was charged with violating 18 U.S.C. § 793(e), in a second superseding indictment, for storing computer tapes of United States Air Force tasking orders in a rental storage unit). But Poulsen was not similarly situated to Dr. Lee because Poulsen allowed a third party to gain actual access to the tapes. Unauthorized third-party access constitutes transfer of the information. Poulsen stole the computer tapes from a previous employer and stored the tapes under a false name and address. Defendant then defaulted on the rental payments. The tapes were discovered by a third party, the rental-unit owner, while the rental-unit owner was evicting all contents from the unit due to defendant's seventy-one-day default.

C. Dr. Lee Meets Both Prongs of the Test Stated In Armstrong.

Dr. Lee indisputably meets both prongs of the Armstrong test, and must be granted discovery because he has submitted credible evidence that similarly-situated individuals have not been prosecuted as well as statements from government and law enforcement officials demonstrating improper motivations to prosecute Dr. Lee. Dr. Lee was selected from among more than a dozen identically situated individuals at LANL for criminal investigation in 1996 because he was "ethnic Chinese." This improper classification was employed for the next three years, and was explicitly reaffirmed in the April 9, 1999, search warrant application. The evidence of selective prosecution Dr. Lee has already uncovered far exceeds the Armstrong threshold.

Armstrong denied discovery to defendants who were charged with distributing crack cocaine in violation of 21 U.S.C. §§ 841 and 846. In Armstrong, the defense offered only one hearsay affidavit that in the year Armstrong was prosecuted, the twenty-three other § 841 cases handled by the Federal Public Defender in Los Angeles involved black defendants. See id. at 459. The defendants in Armstrong presented no evidence that the prosecution undertook any targeting based on race, see id., nor did the defendants make any showing that non-blacks had not been charged in other years or by one of the ninety-two other U.S. Attorney's Offices in 1991. In Armstrong, the government submitted proof that 3,500 defendants had been charged with violating § 841 in the previous three years and eleven non-blacks had been charged for distributing crack cocaine. Id. at 482 n.6.

Dr. Lee's compelling showing here stands in stark contrast to the anemic showing in Armstrong. First, this Court has direct evidence in the form of a sworn declaration and a videotaped statement from government agents who assisted in the criminal investigation of Dr.Lee, which establish that a racial profiling was used to target Dr. Lee. Second, in contrast to Armstrong, where the government proved that 3,500 men and women of all races had been charged under §§ 841 and 846 during a three-year period, Dr. Lee is the only person who has been charged under the Atomic Energy Act in the past fifty-two years. Third, Dr. Lee has provided this Court with examples of similarly situated non-Asians who have not been prosecuted under either the Atomic Energy Act or § 793. The defendants in Armstrong made no showing whatsoever that similarly situated non-blacks had not been prosecuted. Equally as compelling, Dr. Lee has provided this Court with evidence that the DOJ had a policy of not prosecuting individuals similarly situated to Dr. Lee. Additionally, no case has been brought under § 793 involving prosecution for information that had not been formally classified at the time of the defendant's conduct.

The evidence Dr. Lee has presented by far exceeds the threshold found sufficient to permit discovery in other cases decided under the Armstrong standard. For example, In United States v. Jones, 159 F.3d 969 (6th Cir. 1998), the Sixth Circuit overturned a District Court's decision and granted discovery under circumstances directly analogous to this case. In Jones police officers sent taunting letters to two black defendants, but not to a white defendant involved in the same conspiracy, and made a T-shirt with the black defendants' pictures, but not the white defendants. In Jones, the court found that the taunting letters and T-shirt had established a prima facie case of racial motivation on the part of the investigating officers, and had set forth "some evidence" of discriminatory effect, warranting discovery. The court found that although the defendant was unable to produce "prima facie evidence" of discriminatory effect, "some evidence" was enough when coupled with the evidence of discriminatory motivation. Id. at 977. The Jones analysis holds even greater force here, where key investigators have unequivocally stated that the DOE practiced racial profiling which led to Dr. Lee's indictment, and the lead counterintelligence official at DOE made racially-charged statements regarding the fitness of American citizens who are "ethnic Chinese" to work on nuclear weapons programs. Dr. Lee has presented more than "some evidence" of discriminatory effect. Unlike the defendant in Jones who could not show that others were not prosecuted, Dr. Lee has shown that no one else has ever been prosecuted under the Atomic Energy Act provisions at issue in this case, nor has anyone else been prosecuted under § 793 for mishandling information that had not been formally classified and that had not been furnished to any unauthorized person.

Similarly, in United States v. Tuitt, 1999 WL 791927 (D.Mass. 1999), the trial court ordered that the defendant be provided discovery under far less compelling circumstances. In Tuitt, the defendant's attorney compared four counties within the judicial district over a four-month period and found a statistically significant difference between the crack cocaine prosecutions brought in federal court and the crack cocaine prosecutions brought in state court. See id. at *4. Tuitt held that this showing was enough to meet the Armstrong standard where "Defendant is simply attempting to gain discovery so that he can more adequately determine whether a selective prosecution claim might indeed be viable." Id. at * 11. Again Dr. Lee far surpasses the threshold met by the Tuitt defendant. Rather than four months, Dr. Lee's attorneys examined reported cases covering fifty years, and rather than four counties, the search covered fifty states, without finding a single other reported case of prosecution under the Atomic Energy Act.

Similarly, in United States v. Glover, 43 F. Supp. 2d 1217 (D. Kan. 1999), the court granted discovery on a selective prosecution claim regarding imposition of the death penalty where the defense provided far less evidence on either prong of the Armstrong test. In Glover, the defendant presented some statistical evidence that over a three-and-one-half-year period, "the Attorney General authorized a greater number of black defendants for death-penalty prosecution than white defendants." Id. at 1234. The court found that this evidence, coupled with evidence that two other similarly-situated defendants were not prosecuted in federal court, was enough to permit discovery. See id. Rather than the mere statistical inference found sufficient in Glover, Dr. Lee has presented credible evidence in the form of specific statements made by investigators in this case that race was a factor in selecting Dr. Lee for prosecution. Moreover, he has presented some evidence of not two, but several individuals mishandling classified information without facing criminal charges of any kind, much less a potential life sentence.

CONCLUSION

Dr. Lee has presented compelling evidence the government singled him out for prosecution because of his race and refused to prosecute similarly situated individuals. Dr. Lee is entitled to the information the government is withholding from him -- information that will prove this is an egregious example of selective prosecution in violation of Dr. Lee's rights under the United States Constitution.

This Court should grant this motion and order the government to provide Dr. Lee the requested discovery materials, as set forth in Exhibit A.

Respectfully submitted,

O'MELVENY & MYERS LLP

By
Mark Holscher
Richard E. Myers II

400 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 430-6000
Fax: (213) 430-6407

FREEDMAN BOYD DANIELS HOLLANDER
GOLDBERG & CLINE P.A.

By:
Nancy Hollander
John D. Cline

20 First Plaza, Suite 700
Albuquerque, NM 87102
Telephone: (505) 842-9960
Fax: (505) 842-0761

Attorneys for Defendant Dr. Wen Ho Lee

Labels: Americano, Bobbie Williams, Domestic Violence, End Child Abuse, La Ley, Mary Cano, Project RIO, TANF, Taxpayer waste, TWC, WIA

When Lee’s witnesses were then reported missing, the judge had ample reason to believe they had second thoughts about testifying. All three of Lee’s family members had traveled from California to testify, but all three left without speaking to Lee or his lawyer. Two sets of witnesses, four persons in all, had just placed Lee in Kansas City; and the prosecution had said it had in reserve other witnesses prepared to rebut the alibi testimony. Lee had been sentenced to 80 years in Missouri prison for an unrelated armed assault and robbery, and any witness who was considering perjury would have had little inducement to take that risk–a risk that would have became more pronounced after the prosecution’s witnesses had testified–if Lee would serve a long prison term in any event. The judge’s skepticism seems even more justified when it is noted that six weeks later, during a hearing on Lee’s motion for a new trial, counsel still did not explain where Lee’s family members had gone or why they had left. It was not until 17 months later, in an amended motion for postconviction relief, that Lee first gave the Missouri courts an explanation for his family’s disappearance.



Re(2): Mary Cano......DOB....
Posted on June 26, 2007 at 00:20:17 AM by L.

VERTICAL HORIZON LYRICS

"Everything You Want"

Somewhere there's speaking
It's already coming in
Oh and it's rising at the back of your mind
You never could get it
Unless you were fed it
Now you're here and you don't know why

But under skinned knees and the skid marks
Past the places where you used to learn
You howl and listen
Listen and wait for the
Echoes of angels who won't return

[Chorus]
He's everything you want
He's everything you need
He's everything inside of you
That you wish you could be
He says all the right things
At exactly the right time
But he means nothing to you
And you don't know why

You're waiting for someone
To put you together
You're waiting for someone to push you away
There's always another wound to discover
There's always something more you wish he'd say

[Chorus]

But you'll just sit tight
And watch it unwind
It's only what you're asking for
And you'll be just fine
With all of your time
It's only what you're waiting for

Out of the island
Into the highway
Past the places where you might have turned
You never did notice
But you still hide away
The anger of angels who won't return

[Chorus]
I am everything you want
I am everything you need
I am everything inside of you
That you wish you could be
I say all the right things
At exactly the right time
But I mean nothing to you and I don't know why
And I don't know why
Why
I don't know


[ www.azlyrics.com ]

Labels: Americano, Bobbie Williams, DHS, La Ley, Law, Mary Cano, Project RIO, Taxpayer waste, TWC, WIA

Violence Against Women Act of 2000 (VAWA II)
The first reauthorization of VAWA built upon the immigration provisions included in the 1994 bill by improving access to cancellation of removal, suspension of deportation and other immigration protections for victims of domestic violence. VAWA II also allowed funding in VAWA grant programs to be used for immigration assistance. VAWA II removed the U.S. residency requirement and "extreme hardship" requirements for immigrant women to receive VAWA protections; allows battered immigrant women to obtain lawful permanent residence without leaving the country; restores access to VAWA protections for immigrants regardless of how they entered the country and creates a new type of visa, the U-visa, for victims of serious crimes that will allow some to attain lawful permanent residence.

Immigrants who are victims of certain serious crimes, including domestic violence, sexual assault, stalking, and trafficking are eligible for the U-Visa created in VAWA II providing that the victim has suffered substantial physical or mental abuse as a result of the crime, the victim has information about the crime, and a law enforcement official or a judge certifies that the victim is or is likely to be helpful in investigating or prosecuting the crime.

Setbacks:
In the late 1990s, a combination of legislative reforms targeting poor people and immigrants produced dangerous results that threaten crucial legal and financial remedies previously available to battered immigrant women. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA") were passed within months of each other in 1996.

These laws cut off access to the public benefits safety net for many immigrants and imposed significant new legal and procedural barriers upon immigrants seeking lawful immigration status. Although these laws were not specifically written to address cases of battered immigrants, and although IIRIRA explicitly contains provisions that offer battered immigrants some protections, other provisions of these laws erode the progress gained in protecting the rights of battered immigrant women just two years earlier with the passage of the Violence Against Women Act (VAWA) of 1994.

Personal Responsibility and Work Opportunity Reconciliation Act of 1996
The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), also known as welfare reform, was a sweeping overhaul of the nation’s welfare law enacted in 1996. PRWORA created the Temporary Assistance for Needy Families (TANF) program, which ended the federal entitlement to assistance for poor families with children and replaced it with a "work first" approach. TANF requires recipients to work in exchange for assistance and seeks to, among many things, reduce caseloads and limit the time during which a person can receive aid.

In general, TANF narrowed immigrant eligibility for federal and state benefits, such as Food Stamps, Supplemental Security Income (SSI), Medicaid, public housing, and Temporary Assistance to Needy Families (formerly called Aid to Families with Dependent Children, AFDC). It also made it much more complicated to understand what assistance is available, which immigrants qualify, and how these immigrants can access the benefits for which they are eligible.

While the widespread, erroneous impression among providers, community members and even governmental agencies is that "immigrants aren't entitled to any benefits anymore," this is not the case, thanks to significant gains and improvements won by advocates nationwide. The regulations and procedures for implementing public benefits policy are extremely complicated - particularly when they intersect with immigration policy. Applicants require the assistance of advocates who have been trained in the dynamics of domestic violence in immigrant families, who understand VAWA's immigration provisions, and who are knowledgeable about immigrants' rights to access benefits under welfare reform.

Illegal Immigration Reform and Immigration Responsibility Act of 1996
Another piece of legislation, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), severely restricted the legal rights of most immigrants, with particularly harsh provisions affecting undocumented immigrants. IIRIRA contains several provisions aimed at protecting battered immigrants. IIRIRA partially preserved access to VAWA immigration relief for battered immigrants; expanded public benefits access to certain undocumented battered immigrants; and created "deeming" exceptions for battered immigrants. IIRIRA recognized that many VAWA eligible battered immigrant women are undocumented as a direct result of domestic abuse. IIRIRA exempts some battered immigrant women from many of the harsh penalties that it directs at other undocumented immigrants.

The overlapping nature of these two welfare and immigration reform policies has exacerbated the complex intersection of domestic violence and immigration status. The reforms ushered in by these legislative changes are vast and represent a radical departure from the past, affecting nearly every arena of public and private social service delivery, in which some immigrants are aofforded greater access to benefits and services, and others are cut off altogether. Clearly, new collaboration and alliance building have to be forged to respond to the very intricate problems of abused immigrants seeking ways to create violence-free homes.

Labels: Americano, Domestic Violence, End Child Abuse, La Ley, Law, Mary Cano, TANF, TWC, WIA