STATE OF INDIANA ))SS
IN THE DEARBORN CIRCUIT
COURT
COUNTY OF DEARBORN )
GENERAL TERM, 2012
STATE OF INDIANA
vs
ADOLFO LOPEZ Cause No. ISCOI-1209-FC-089
and
MARlA LOPEZ Cause No. 15CO1-1209-FC-168
ORDER DENYING MOTION FOR REMOVAL
This matter comes before the Court on Motion of Defendants, Adolfo Lopez and Maria Lopez, by counsel,
Douglas Garner, for removal ofthe presiding Judge in this cause of action. And the Court having reviewed
Defendants' Motion and being duly and sufficiently advised in the premises now finds as follows:
I.
That in the matter of State oflndiana v. Adolfo Lopez, Cause No. 15CO 1-1209-FC- 089 this Court was called
upon to consider
the issue of bail at a hearing
held on November 15,2011. The Court heard evidence from numerous witnesses
on behalf of the defense and the State.
2.
After hearing
evidence the Court issued an eight (8) page Order outlining considerations for bond and
a determination that Defendant's Motion
for Bond Reduction
should be denied.
Evidence presented and considered on the issue of bond
A.
Defendant Lopez advised employees in the course of a labor investigation to "lie to the Department
of Labor investigators";
B.
Defendant collected
large sums of cash and was
afraid he would be caught in
possession of these sums;
C.
Defendant Lopez frequently visited Mexico and maintained ties to Mexico;
D.
That investigators in this cause of action recovered in excess of Three Million Dollars ($3,000,000.00) in
cash, including, sums contained in separate safety deposit boxes in the amounts of:
(I)
Seven Hundred and Fifty Thousand Dollars
($750,000.00);
(2)
Seven Hundred
and Fifty Thousand
Dollars ($750,000.00);
(3)
Four Hundred
and Fifty Thousand
Dollars ($450,000.00);
(4)
Three Hundred
and Sixty Thousand
Dollars ($360,000.00);
(5)
Four Hundred
and Eighty-nine Thousand
Dollars ($489,000.00); and
(6)
Six Hundred
and Twenty-nine Thousand
Dollars ($629,000.00);
E.
That Defendants' Indiana restaurants had unreported sales of over Four Million Dollars
($4,000,000.00) and sales tax due of over Three Hundred Thousand Dollars ($300,000.00).
3.
Based upon these and other factors
cited by the Court, the Comi found that these circumstances indicated
a substantial likelihood of non-appearance by Defendant Adolfo Lopez at future
hearings and that he constituted a substantial flight risk. The Court denied Defendant's Motion
to Reduce Bond.
(See
attached Order Denying
4.
Defendant, Adolfo Lopez, filed a Motion to Appeal the Bond set by the Court in this cause of action. The Indiana Court of Appeals
will, therefore, review the record
and make a determination as to whether or
not the bond set by the Court in this matter is appropriate.
5.
Defendant's attorney subsequently filed a Motion
to Remove the Current Judge
fi·om hearing this cause of action involving
Mr. & Mrs. Lopez. This
Motion appears to allege, in part,
a conspiracy between
the Conti and the State
oflndiana arising from the Prosecutor's former
prosecution of Defendant, Daniel Brewington, in Cause No. 15D02-1103-FD-084.
6.
The Court notes that there is no cmmection between the cause of action in State of Indiana v Lopez and the matter of State of Indiana v Brewington and Brewington v Brewington.
The
trial in the matter of State v. Brewington was concluded over one (I) year ago.
7.
That on or about the 17'h day of December, 2008, Judge James D. Humphrey
was appointed as Special
Judge in the matter of a dissolution of marriage in Brewington v Brewington in the Ripley Circuit Court, Cause No. 69COI-0701-DR-007. That on or about 5/27, 6/2 and 6/3/2009, a final hearing was held. A Decree of Dissolution was entered on the IS'h day of August,
2009. This Comt'
s decision, in the Dissolution
of Marriage, was affirmed by the entire Indiana
Court of Appeals
(69A05-0909-CV-542) (Panel Per Curiam)
on July 20, 2010. (Copy
of Decree of Dissolution and Decision oflndiana Court of Appeals attached.)
8.
That subsequently Grand Jury indictments were entered against
Daniel Brewington alleging
Intimidation of persons
involved in the Brewington dissolution case. Alleged victims involved
the custody evaluator,
Judge James D. Humphrey, and the
Judge's wife. Charges of Attempt to Commit Obstmction of Justice, Perjury,
and Unlawful Disclosure of Grand
Jury Proceedings were also filed.
These criminal charges proceeded to trial on the 3'd day of October,
2011, a guilty verdict was returned on October 6'h, 20
II, for Intimidation under Count I; Intimidation of a Judge under Count II; Intimidation under Count III; Attempt to Commit Obstruction of Justice, a Class D Felony, under Count IV; and Petjmy,
a Class D Felony, under Count V. The defendant
received the following
sentence on October
24, 2011, as stated in the Court's Sentencing Order:
Count I ------ The Defendant is sentenced to six (6) months, executed,
in the Dearborn Co. Jail (Defendant shall receive credit for 231 days of pre sentence
confinement plus 231 days of good time credit for a total of 462 days)
Count II ----- The Defendant is sentenced to two (2) years, executed,
in the Indiana Dept. Of Correction (consecutive to Counts I, IV, and V).
Count III-----
The Defendant is sentenced to six (6) months, executed,
in the Dearborn co. Jail (concurrent to Count II).
Count IV ----- The Defendant is sentenced to two (2) years, executed
in the Indiana Dept. Of correction (concurrent to Count I, Defendant shall also receive
credit for 231 Days of pre-sentence confinement plus 231 days of good time credit).
Count V ----- The Defendant is sentenced to one (1) year, executed,
in the Indiana Dept. Of correction (consecutive to Counts I, II, III, and IV).
Lead Counsel
on this case was Prosecuting Attorney, F. Aaron Negangard. This
9.
The Prosecuting Attorney does not act
as Attorney for alleged victims
in a cause of action but rather
represents the State oflndiana.
10.
The Judge,
and his spouse, did in fact
attend oral arguments before the Indiana Court of Appeals
in the matter of State v. Brewington on November 21", 2012. This Judge felt it critically important
to show that neither he, nor others involved in the legal system, will be intimidated from carrying out their duties
in the administration of justice and enforcement of our Laws.
11.
This Court has reviewed
Defendants' allegations of conspiracy between
the Court and the State and finds that these allegations are umeasonable, unwarranted and without justification. In fact, the Court notes that the Prosecution and Attorney Garner, on behalf of Maria Lopez, presented
an Agreed EntJy to the Court to reduce her bond, which the Court approved.
(See attached
copy)
12.
This Court further notes that copies
of defense Counsel's
Motion for Removal
and attached Affidavit
were immediately provided
by the Court to Counsel
for the Indiana Commission on Judicial Qualifications.
13.
The Court has reviewed
the current circumstances in light of applicable Canons
of Judicial Ethics and advisory
opinions. This Comt finds that there is no bias or prejudice
for or against either party which arises in this case as a result
of the State's prosecution in the Brewington
case or for any other reason.
14. This Court, therefore, finds
that Defendants' Motion filed herein
for Removal of Circuit Court Judge is completely without merit and not wmthy of hearing
or further consideration. The Court finds that this matter is confirmed for trial on February 4, 2013, 3'd choice. The Court further
confirms that James D. Humphrey
will be the presiding Judge at
the trial in this matter.
WHEREFORE, THE COURT FINDS that Defendants' Motion is
hereby denied.
SO ORDERED THIS DAY OF DECEMBER, 2012.
James D Humphrey
Distribution: Prosecutor
Douglas Garner,
Esq.
Attachments:
Order Denying
Motion to Reduce Bond - Adolfo Lopez/copy
Judgment and Final Order on
Decree of Dissolution of Marriage- Brewington copy Court of Appeals Decision
filed July 20,2010-
Brewington copy
Copies of Grand Jury Indictments and Sentencing Order attached Agreed Entry to Reduce Bond - Maria Lopez
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STATE OF INDIANA Ntl\ 2 : 2012
VS •cause NO. !SC0!-1209-FC-089
ADOLFO LOPEZ ORDER DENYING MOTION
TO REDUCE BOND
This matter comes before the Court on the IS'h day of November, 2011, on Defendant's
Motion to Reduce Bond; and the State of Indiana appeared
by F. Aaron Negangard, Prosecuting
Attomey
for the Seventh
Judicial Circuit oflndiana, and M. Joseph
Kisor, ChiefDeputy Prosecuting Attorney for the Seventh Judicial Circuit
oflndiana; And the Defendant, Adolfo Lopez, appeared in person and with Counsel, Douglas
A. Garner;
The Court hears evidence and receives Memorandums from Counsel for the State
and for the defense, and the Court being duly and sufficiently advised
in the premises, now finds as follows:
BOND STATUTE
1.
The Court
considers the issue
of bond in the context
ofindiana Code Section
35-33-8- 4(b) which provides
as follows:
"Bail may not be set higher
than that amount
reasonably required to assure the defendant's appearance in Court or to assure the physical
safety of another
person or the community
if the Court finds by clear
and convincing evidence
that the defendant poses a risk to the physical
safety of another
person or the community. In setting and accepting an amount of bail, the judicial officer
shall take into account all facts relevant to the risk of non-appearance, including:
(I) the length and character
ofthe defendant's residence in the community;
(2)
the defendant's employment status
and history and his ability
to give bail;
(4)
the defendant's character, reputation, habits and mental condition;
(5)
the defendant's criminal or juvenile
record, insofar as it demonstrates instability and a disdain for the Court's authority
to bring him to trial;
(6)
the defendant's previous record in not responding to Court appearance when required or with respect to flight to avoid criminal
prosecution;
(7)
the nature and gravity of the offense and the potential
penalty faced, insofar
as these factors are relevant to the risk of non-appearance;
(8)
the source of funds or property
to be used to post bail or to pay a premium, insofar as it affects the risk of non-appearance;
(9)
that the defendant is a foreign
national who is unlawfully present
in the United States under federal
immigration law; and
(I0) any other factors, including
any evidence of instability and a disdain
for authority, which might indicate that the defendant might not recognize and adhere to the authority of the Court to bring him to trial."
2.
The Court also considers Appellate authorities interpreting and applying Indiana law.
GENERAL CONSIDERATIONS
3.
The Court
considers that Defendant, Adolfo Lopez, has been an American citizen
for approximately fifteen (15) years and that he has lived in Lawrenceburg with his wife and children for approximately seven (7) to eight (8) years.
The Court also notes that the State presented evidence through State's witness, Lazono,
that the Defendant
had previously bragged
to him about having a "faked birth certificate" to change his birth date to quality for previous
amnesty in approximately 1985. The Court does not find that
this evidence alone is sufficient to show that Defendant obtained citizenship improperly. The Court also finds that Defendant has been married
approximately fifteen ( 15) years and that his children
attend local schools.
4.
That the
Defendant is the owner of eleven (II) restaurants in the Indiana,
Kentucky and Ohio area,
and that two
(2) restaurants are maintained in Kentucky, four
(4) in Ohio and five (5)
in the State of lndiana.
5. That the Defendant has entered no objections to the admission
ofState's Exhibit "2." The Court notes that State's Exhibits "3" and "4" were admitted without objection,
and also constitute a portion of State's Exhibit "2." The Court notes that
the Defendant has entered objections to testimony provided by the State regarding the manner in which the restaurants' business was conducted. The Defendant argues that this evidence goes to facts supporting allegations more appropriately presented at trial. The Court has overruled these objections
and also admits State's
Exhibit "2." The Court
finds this evidence is relevant for consideration.
In addition, the Defendant has opened
the door to such evidence
based upon the content of the Defendant's Memorandum in Support ofReasonable Bond filed November
15,2012, which alleges Defendant's
character and the manner in which his restaurant business
is conducted as a basis to reduce
the bond. The Court further finds that Defendant inquired of defense witnesses
during the bond hearing regarding their knowledge of any improper
business activities at Defendant's restaurants. The Court finds that State's evidence,
on this issue, is therefore admissible and subject to consideration by the Court. The Court finds such evidence
is appropriate for consideration under Indiana Code 35-33-8- 4(b)§(l 0) regarding factors
"including any evidence of instability and disdain for authority which might indicate that the Defendant might not recognize
and adhere to the
authority of the Court to bring him to trial." The Court also considers evidence
regarding business practice
in the context of Defendant's "character, reputation, habits and mental condition" I.C. 35-33-8-4b(4).
DEFENSE WITNESSES
6.
The Court has heard and considers
testimony of witnesses
called by the defense, including Daniel Breyer, Attorney; Marcos Montino, Defendant's insurance agent; William Ebben, friend and computer consultant; and Defendant Adolfo
Lopez. The Court summru·izes these witnesses' testimony as follows:
A, Attorney Breyer indicated familiarity with the managers
and staff at the Milford, Ohio, Acapulco Restaurant. Mr. Breyer indicated
some knowledge of Mr. Lopez, however,
indicated greater knowledge
ofindividuals involved with the Milford Restaurant.
B.
Mr. Montino indicated
that he has known Mr. Lopez for approximately five
(5) years and handles all of his personal
and business insurance
needs. Mr. Montino further
indicated personal knowledge
of Mr. Lopez and his family. Mr. Montino indicated some knowledge of a prior drug dealing
offense at an Acapulco Restaurant and Mr. Montino further indicated he was asked about his knowledge
of bookkeeping and responded that he was not aware of the manner of bookkeeping at the restaurants.
C.
Witness William
Ebben indicated that Mr. Lopez maintained a modest lifestyle. Mr. Ebben stated that he does computer
work for the business at
home
and at the office. Mr. Ebben was further asked by defense counsel if
he was aware of any illegal activity at the restaurants or aware of how bookkeeping and tax accounting was conducted for the businesses. Mr. Ebben indicated that he was not aware of any such improper
activity.
D.
Gary Puckett
indicated that he personally knew Mr. Lopez and his wife and he and his wife worked with Mr. Lopez and his wife to help in mutually learning Spanish
and English. Mr. Puckett indicated that upon questioned by defense counsel, that he was not aware of any organized criminal
activity through the business.
Mr. Puckett further
indicated that he was "disappointed" when he heard about the current allegations and that he had not gotten that indication
from his contact with Mr. Lopez.
E.
Adolph Lopez briefly testified regarding
his
marital
status,
status
as an American
citizen and that he had lived in Lawrenceburg approximately seven (7) to eight (8) years.
EXHIBIT2
7.
In considering State's
Exhibit "2," the Court finds
for purposes of these bond proceedings that total unreported
cash sales from the restaurants is indicated to be Four Million Three Hundred
Ninety-six Thousand One Hundred Ninety-nine Dollars and Four ($4,396, 199.04) Cents,
and that additional sales tax due would be Three Hundred
Five Thousand Six Hundred Sixty Dollars
and Fifty-one ($305,660.51) Cents. It is the Couti's understanding that these amounts represent calculations based on the years 2008 through
2012.
STATE'S WITNESSES
8.
The Court further
considers evidence received
from State's bond hearing witness, Rodriguez, a former manager at the Aurora restaurant, that a specific scheme and form was devised to report sales of the clay and sales that would be reported
with the support of the Defendant.
(See State's Exhibit" 1-A").
9.
The Court considers the additional testimony
of State's bond hearing witnesses,
Rodriguez, Losano and Moreno, all employees of Defendant's Acapulco Restaurants regarding the manner in which the business
was conducted:
A.
That employees were not paid a salary
by Defendant, but merely received
tips, that they were required to work six (6) days a week, ten (I0) hours per day;
B.
That Defendant
made arrangements for faked social security numbers;
C.
That employees were called together and threatened
by Defendant after a
Department of Labor investigation was initiated;
D.
That following the Department of Labor investigation a sham work schedule/time sheet was placed at business
locations at direction
of Defendant;
E.
That Defendant
advised employees in the course
of the labor investigation
that they were to "lie to the Department of Labor investigators."
F.
That Defendant stated
that at the end of the month he collected
large sums of cash and was afraid he would be caught in possession of these sums;
G.
That Defendant had arranged
for "coyotes" (persons
bringing illegal aliens to the United States) for several individuals working for the restaurants.
H.
That the Defendant frequently
visited Mexico and maintained ties to Mexico.
I. That two (2) of these fonner employees indicated that they were illegal residents of the United States.
OFFICER SUTTON
I 0. The Court also considers testimony
of Timothy Sutton presented by deposition.
It shows that in the course of investigating this cause of action that search warrants
were executed at certain
local banking institutions for safety deposit
boxes owned by Adolfo Lopez.
Funds from these separate
safety deposit boxes were as recovered
in the following amounts
of cash:
A. Seven Hundred
Fifty Thousand ($750,000.00) Dollars; B.. Seven Hundred
Fifty Thousand ($750,000.00 Dollars;
C.
Four Hundred
Fifty Thousand ($450,000.00) Dollars;
D.
Three Hundred Sixty
Thousand ($360,000.00) Dollars;
E.
Four Hundred
Eighty-nine Thousand ($489,000.00) Dollars;
F.
Six Hundred Twenty-nine Thousand ($629,000.00) Dollars.
That the total amount of cash seized in the investigation was in excess
of Three Million ($3,000,000.00) Dollars.
REBUTTAL
The Court notes that the defense called no rebuttal witnesses as to State's
evidence presented
at the bond hearing.
SEVERITY
OF CHARGES
II.
The Court also considers
the fact that Defendant is charged with ten ( 10) felony Counts including
Count I, Corrupt
Business Influence, Class C Felony;
Count II, Conspiracy to Commit Corrupt Business Influence, Class C Felony;
Forgery (Alleging Falsified
Tax Fonns), Class C Felony under Counts III, IV, V and VI, and Perjury in Count VII through X, Class D Felonies, (alleging false infonnation in tax forms
reported to the Indiana Department of Revenue). The Court considers the fact
that a Class C Felony is punishable by a jail
sentence of from two (2) to eight (8) years, advisory sentence of four (4) years, and possible fine of up to Ten Thousand ($10,000.00) Dollars. The Court also considers as to the Class D Felonies that they are punishable by a jail sentence of from six (6) months to three (3) years, advisory sentence of one and one-half(! Y,) years and a possible fine of up to Ten Thousand Dollars ($1 0,000.00). The Court also considers the nature of these allegations and the evidence
received in this proceeding as it relates
to "evidence of instability and disdain for authority."
CONCLUSION
12.. Considerable thought, attention and review has been provided
to the issue of bond in this matter. The Court considers
the factors cited above. The Court also recognizes and considers all of the evidence
presented at the Bond Hearing.
The Court notes that the strict Rules
of Evidence do not apply to these proceedings as a bond hearing. The Court has, however, excluded
or not considered evidence
which did not bear sufficient indicia ofthe liability for consideration in the bond hearing.
13.
The Court finds that this case presents an unusual set of circumstances indicating a
substantial likelihood of non-appearance for future proceedings. The Court finds
that these circumstances show that the Defendant is a substantial flight risk. Some of the evidence the Court considers most significant is the
amounts of cash recovered, the testimony of former employees outlined herein and the nature and severity of charges. The Court, therefore, finds that the bond set in
this matter is reasonable and appropriate under the circumstances ofthis case and that Defendant's Motion for Reduction of Bond should be and hereby is DENIED.
14.
The Court recognizes that a substantial bond has been set in this matter. The Court,however, believes
that under the facts of this case such a bond is necessary to insure Defendant's future appearance.
15. Any findings
stated herein are made for the sole purpose of the consideration of bond.
SO ORDERED THIS DAY OF Nov,2012. James D Humphrey
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Seventh Judicial Circuit
Copies to: Prosecutor
Probation
Sheriff
Garner
1 comment:
How does the judge himself decide if he has a bias or not?
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