Thursday, December 13, 2012
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C.A. Throws Out Conspiracy Conviction of Onetime Deputy D.A.
Justices Rule Statute of Limitations Ran Out Before Leonard Milstein Was Prosecuted
By KENNETH OFGANG, Staff Writer
A former deputy district attorney who once sued Steve Cooley for defamation and civil rights violation had his conspiracy conviction thrown out by this district’s Court of Appeal yesterday.
Div. Seven ruled that prosecutors waited too long to bring charges against Leonard R. Milstein, who resigned from the State Bar in 2004 with disciplinary charges pending.
Those charges, and the conspiracy prosecution, stemmed from Milstein’s involvement with American Justice Publication, a magazine distributed to inmates in California jails and prisons. The full-color magazine, which was operated by disbarred Agoura Hills attorney A. Brent Carruth, contained ads for multiple attorneys offering to provide services to inmates.
All calls to the numbers provided were answered by employees of American Justice Publication. Prosecutors said non-lawyer employees of American Justice then signed up clients, sent runners to the residences of client’s relatives, and collected money.
Milstein was accused of advertising services that he didn’t, and couldn’t, provide, including the seeking of “early release” for inmates, some of whom complained to the State Bar. Bar counsel charged him with 13 separate counts of misconduct involving false advertising, aiding and abetting the unlawful practice of law, incompetence in the handling of client matters, failing to perform and/or communicate with clients, failing to account for fees received and failing to return unearned fees.
Involuntary Inactive Status
A State Bar Court judge ordered him placed on involuntary inactive status, and the matter was referred to the District Attorney’s Office, which charged him with one count of conspiracy to defraud by false pretenses or false promises and five counts of grand theft of personal property.
The complaint was filed in July 2006.
Los Angeles Superior Court Judge William J. Ryan ruled that all six counts were fraud-related and thus subject to the four-year limitations period set forth in Penal Code Secs. 801.5 and 803. He further found that the four years had run as to all of the charges except conspiracy and one count of grand theft.
Ryan acknowledged that conspiracy charges are normally subject to a three-year statute of limitations, Sec. 801. But the four-year statute, he said, appeared intended to apply to all fraud-related crimes, including conspiracy, and the last alleged overt act occurred a little less than four years prior to the filing of the complaint.
Milstein then entered a negotiated plea of no contest to the conspiracy count, reserving the right to appeal, in exchange for probation.
Three-Year Statute
Justice Laurie Zelon, writing for the Court of Appeal, said the defense was correct in arguing that the three-year statute applied.
A conspiracy to defraud charge under Sec. 182 is subject to the same three-year statute as other conspiracies, the jurist wrote.
Sec. 803, Zelon noted, requires that—for the four-year statute to apply—the crime be specifically enumerated in that section, or that fraud be an element of the offense. Conspiracy to defraud is not among the enumerated offenses, the justice pointed out, and a conspiracy to commit an offense is normally viewed as distinct from the offense itself.
“Because conspiracy has long been recognized as a separate and distinct offense from the crime that is the object of the conspiracy, the statute of limitations for conspiracy likewise has been regarded as separate and distinct from the statute of limitations for the underlying offense,” the justice wrote.
She also noted that the Legislature has amended the relevant statutes on multiple occasions in recent years, and that none of the amendments have abrogated longstanding case law applying the three-year statute to all manner of conspiracies.
Second Appellate Victory
The ruling marks the second time that Milstein has had a felony conviction thrown out by the Court of Appeal.
He was convicted in 1995 by a Los Angeles Superior Court jury of constructing a false defense at a 1989 trial of a client charged with two drug-related murders. Milstein was found guilty of conspiracy, perjury, offering and preparing false evidence, and bribery of a witness, and sentenced to three years in prison by Judge William McLaughlin.
The Court of Appeal, however, reversed in 1997, saying he had been convicted on uncorroborated co-conspirator testimony. He then sued the prosecutors, then-Deputy District Attorneys Cooley and Robert Foltz, saying they had attempted to frame him.
He also sued Cooley for defamation, based on a published statement in which Cooley reaffirmed his belief in Milstein’s guilt after the Court of Appeal ruling. Both suits were unsuccessful.
Attorneys in the latest appeal, People v. Milstein, 12 S.O.S. 6369, were Dennis A. Fischer and John M. Bishop for the defendant and Deputy Attorneys General Steven D. Matthews and David F. Glassman for the prosecution.
Copyright 2012, Metropolitan News Company