Free Motion for Release from Custody - District Court of California - California

Case 3:08-cr-00565-WHA

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Filed 08/18/2008

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Martha A. Boersch (State Bar No. 126569) [email protected] JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 Attorneys for Defendant WALTER PALMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff, v. WALTER PALMA, Defendant.

Case No. CR 3:08-70507 BZ (SPERO) DEFENDANT WALTER PALMA'S MOTION FOR RELEASE FROM CUSTODY AND DISMISSAL OF COMPLAINT Courtroom: A, 15th Floor Hearing Date: August 20, 2008 Time: 9:30 AM

The Defendant Walter Palma, through his counsel Martha Boersch, respectfully moves the Court to release him from custody on the grounds that the government has failed to demonstrate probable cause that Mr. Palma has committed the offense with which he is charged. The grounds for this motion are set forth below. BACKGROUND On August 5, 2008, Magistrate Bernard Zimmerman signed a criminal complaint charging Walter Palma with being an unlawful alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5), based upon alleged conduct that occurred on November 2, 2005. The complaint affidavit alleges that Palma was a passenger in a car stopped by police who believed they saw the muzzle of a gun sticking through the moon roof of the car. See Compl. Aff. ¶ 5.c. When the car stopped, the passenger, who had a pony-tail, fled; the car was search and a 9mm Smith & Wesson was found lodged in the moon roof of the vehicle. Id. Other officers who were called to the
DEFENDANT'S MOTION FOR RELEASE CR 3:08-70507 BZ

Case 3:08-cr-00565-WHA

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scene discovered Palma, who had a pony-tail, in a blue receptacle bin at a nearby playground. Id. 5.f. The officers who stopped the car identified Palma as the person in the car and Palma was arrested on November 2, 2005. Id. Two days later, after the case was allegedly dismissed, Palma allegedly made incriminating statements to a police inspector wearing a hidden recording device. Id. 6.c. The complaint further alleges that Palma is a native and citizen of El Salvador who entered the country illegally on or about July 4, 1997. Id. ¶ 7. However, as the complaint states, Palma was granted "Temporary Protective Status" on September 8, 2005 ­ two months before the alleged offense ­ which he maintained until April 27, 2007. Id. DISCUSSION The government has not established probable cause to believe that Mr. Palma committed the offense with which he is charged. The complaint demonstrates on its face that Mr. Palma was a lawful resident of the United States at the time he allegedly possessed the firearm. An alien who has been granted Temporary Protective Status (TPS) is not an unlawful alien under Section 922(g)(5). See United States v. Orellano, 405 F.3d 360 (5th Cir. 2005) (alien granted TPS is not an unlawful alien under 18 U.S.C. § 922(g)(5)(A)). Since the complaint alleges that Mr. Palma was granted TPS on September 8, 2005, Mr. Palma was not an illegal alien on November 2, 2005 and was instead lawfully in the United States. There is therefore no probable cause to believe that Mr. Palma committed the offense charged in the complaint. The Court may issue an arrest warrant only if the government has shown probable cause that the person has committed the offense with which he is charged. Fed. R. Crim. P. 4(a) (if the complaint establishes probable cause that an offense has been committed, the judge must issue an arrest warrant). If the complaint fails to establish probable cause that the offense charged has been committed by the defendant, the magistrate must dismiss the complaint and discharge the defendant. Fed. R. Crim. P. 5.1(f) ("If the magistrate finds no probable cause to believe an offense has been committed . . . the magistrate judge must dismiss the complaint and discharge the defendant"); see also 18 U.S.C. § 3142(a) (the Court may order a person detained only if that person is "charged with an offense" and certain other conditions are met). Because the
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DEFENDANT'S MOTION FOR RELEASE CR 3:08-70507 BZ

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government has failed to demonstrate probable cause the Mr. Palma committed the offense charged in the complaint, the complaint should be dismissed and Mr. Palma immediately released from the custody of the United States Marshals. CONCLUSION For the foregoing reasons, the Criminal Complaint should be dismissed and Mr. Palma released from custody. Dated: August 18, 2008 Respectfully submitted, Jones Day

By:

/S/ Martha A. Boersch Martha A. Boersch

Counsel for Defendant WALTER PALMA

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 XX I, Tatiana Korn, declare:

CERTIFICATE OF SERVICE

I am a citizen of the United States and employed in San Francisco County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 555 California Street, 26th Floor, San Francisco, California 94104. On August 18, 2008, I served a true copy of DEFENDANT WALTER PALMA'S MOTION FOR RELEASE FROM CUSTODY AND DISMISSAL OF COMPLAINT on the following party: Wilson Leung, Esq. Attorney at Law 450 Golden Gave Ave., 11th Fl San Francisco, CA 94102 BY MAIL: I caused the foregoing document(s) to be placed in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. BY FACSIMILE: I caused the foregoing document(s) to be transmitted to the party(ies) set forth below at the fax number(s) specified. The sending facsimile machine (or the machine used to forward the facsimile) issued a transmission report confirming that the transmission was complete and without error. BY HAND DELIVERY: I caused the foregoing document(s) to be delivered on the same day by an authorized courier in an envelope or package designated by the messaging service carrier addressed as set forth above.

I declare under penalty of perjury under the laws of the State of California that the above 18 is true and correct. 19 Executed on August 18, 2008 at San Francisco, California. 20 ____________/S/__________ 21 Tatiana Korn 22 23 24 25 26 27 28
CERTIFICATE OF SERVICE