Law Professor Volokh Writing Friend of the Court Brief for Brewington's Supreme Court Transfer

http://www.volokh.com/2013/01/31/indiana-advocacy-political-or-journalist-groups/


In conclusion Volokh writes:
This, I think, clearly violates the First Amendment, and has a potentially very broad sweep. The law doesn’t just apply to disgruntled litigants, but also to newspaper columnists, advocacy groups, politicians, and so on. Under the court’s view, someone who goes to a legislator and says, “If you vote for this law [or because you voted for this law], we’re going to condemn you so much that your constituents will have contempt for you and vote you out of office,” would be guilty of a crime. Indeed, someone who simply keeps writing harshly critical columns about a legislator’s actions, without an overt threat of future such columns, would be guilty of a crime, too.

Brewington is asking the Indiana Supreme Court to review the case, and I think it would be helpful to have a friend-of-the-court brief supporting that request, and alerting the Indiana Supreme Court to the broader danger posed by the Indiana Court of Appeals opinion. (The Indiana Supreme Court is entitled to pick and choose which Court of Appeals cases it reviews, so the brief needs to persuade the Indiana Supreme Court to focus its time on attention on this case.) I plan to write that brief, pro bono.

I already have local counsel lined up, and a likely amicus organization, but I’d like to have more, including those generally seen as on the left, those generally seen as on the right, and those generally seen as elsewhere. If you’re involved with an Indiana advocacy, political, or journalist group — or for that matter an Indiana newspaper, whether professional or student-run — and you think the organization might be interested in joining, please let me know.

Agenda Feb 5th Commissioner's Meeting

AGENDA

DEARBORN COUNTY BOARD OF COMMISSIONERS MEETING

February 5, 2013

6:00 p.m., Commissioners Room

County Administration Building

215 B West High Street, Lawrenceburg, Indiana 

EXECUTIVE SESSION 5:30 pm – Pending Litigation 

I.              CALL TO ORDER

II.             PLEDGE OF ALLEGIANCE

III.            OLD BUSINESS

1.  Appointments

            a.)  EMA Board Appointments

            b.)  Community Corrections Advisory Board 

IV.           NEW BUSINESS

1.  Ruth Ann Batta

            Permission to approach Council for Summer Art Program 

2.  Greg Overmyer

            Approval for Comcast to be brought into Courthouse to run updated State Child Support software   

 

3.  Ratify signature for YES Home Annual Rental Housing Owner Certification        Checklist

 

4.  Doctor and Nurse Agreements for Juvenile Center

 

5.  National Day of Prayer 2013 

6.  Commissioner Appointment to Region 9 Workforce Investment Board

               

V.            ADMINISTRATOR – Terri Randall

1.  Ratify Signature – Barnes Thornburg Agreement

2.  Official approval / Design Development Phase – Jail Expansion

            3   Appropriation request for additional Workers Compensation Premium

            4.  Jail Project Update

            a) Approval of Design Development Phase

            b) Rosser Contract Addendum

            c) Maxwell Contact Addendum

 

VI.           AUDITOR – Gayle Pennington

1.  Claims/Minutes                       

VII.          ATTORNEY  

VIII.         COMMISSIONER COMMENTS 

IX.           LATE ARRIVAL INFORMATION            

X.            PUBLIC COMMENT 

XI.            ADJOURN

Brewington Appeal discussed on Law Professors' Blog

Brewington Case discussed on law professors' blog:

http://www.volokh.com/2013/01/22/harshly-criticizing-a-judge-or-others-for-their-past-conduct-crime/

22 January 2013 Dearborn County Council Meeting Notes

22 January 2013 Dearborn County Council Meeting Notes

Present: Dennis Kraus. Sr., President, Dan Lansing, Liz Morris, Randy Lyness, Charlie Keyes, Maynard Barrett, and Bill Ullrich.

Also present: Gayle Pennington, Auditor and Teresa Randall, County Administrator

Commissioner Lynch was in the audience.

Reorganization Meeting

Dennis Kraus, Sr. was re-elected as president.

Maynard Barrett was elected as vice-president.

Dennis Kraus, Sr. welcomed the 2 new members ( Keyes and Lyness, and also Barrett who replace Jim Hughes.

Plan Commission - Lansing

SE IPC- Kraus

JuvenileAdvisory -  Morris

EMA- Ullrich as the president’s designee

CVTB and  Economic Redevelopment-  Barrett

Solid Waste Management- Lyness

Community Corrections- Humphrey requested Morris

Personnel Advisory-  Barrett and Kraus

OKI- Mark McCormack

Jail Committee- Kraus and Morris

Alcoholic Beverage- Ralph Schaffer

Regional Sewer District- Jeff Stenger

Park Board – Jim RedElk- Kraus said he’s a good one to keep and there may be some changes there- Ullrich said good.

PTABOA- Mary Booker

Library Board- Pat Ritzmann- if she wants to go back on it.

Community Mental Health- Keyes (Keyes said is that a hint? Laughter –regarding the mental health part) 

Gayle Pennington- minutes were tabled from the December meeting. There were some questions about the transcript from Morris.

Council members had to sign off on the employee benefit program that they had received it or waived it. Required by federal law.

Keyes asked if Grieve had purchased the mower approved in November. Pennington said that she would check to see if it was 2012 or 2013.

Interlocal agreement for Jewel DuBonis from Lewis and Kappes for lobbyist consultant services. Kraus signed the contract.   County’s share is $24,000. They share expenses with the other cities and towns: Lawrenceburg – $24,000 Greendale $9360  Aurora $8640 Dillsboro $3120 Moores Hill $1440 St. Leon $960 West Harrison $480. All the same as last year’s prices.

Council meeting schedule- May 21, Budget Hearings – Pennington will be advertising all the budgets. Sept 9 thru 13 is budget hearings, November 19. All are at 6:30 except budget hearings. Extra meetings are scheduled as needed. Jail funding won’t be needed until May 2013 per Randall. Pennington has some requests to her. Lyness will be in Florida in Feb- March, Lansing will be out last 2 weeks of March. Lyness willing to fly back for it. So Council decided April 9^th is an extra meeting scheduled for requests that are coming in.

Meeting adjourned.

After the meeting Kraus added Job Classification Compensation Committee members- Kraus, Barrett, and Lyness that they forgot during the meeting.

Christine Brauer Mueller

Lawrenceburg Township

 

 

 

 

 

 

 

Judge's Wife and Custody Evaluator Charges Eliminated by Appeals Court

http://www.eaglecountryonline.com/news.php?nID=4937

County Council Reorganization Meeting January 22nd

 

AGENDA

DEARBORN COUNTY COUNCIL MEETING

Tuesday, January 22, 2013

6:30 p.m., Commissioners Room

County Administration Building

215 B West High Street, Lawrenceburg, Indiana 

           

I.              PLEDGE OF ALLEGIANCE 

II.            CALL TO ORDER 

III.           REORGANIZATION

IV.          AUDITOR – Gayle Pennington 

V.            ADJOURN

 

 

 

15 January 2013 Dearborn County Commissioners Meeting Notes

15 January 2013 Dearborn County Commissioners Meeting Notes

Present: Shane McHenry, President, Art Little, and Kevin Lynch

Also present: Gayle Pennington, Auditor, Teresa Randall, County Administrator, and Andy Baudendistel, Attorney.

OLD BUSINESS:

Appointments:

EMA Director –Baudendistel researched state statute and said that the advisory council chooses and then the commissioners approve if they see fit. He did a new Ch 36 section for our code derived from Jefferson county’s ordinance.  President of commissioner and president of council, each mayor, and one from each town board and sheriff or his designee and director of 911 communications are on the advisory council. This also updates the additions since 1987. Lynch thanked Baudendistel for getting this done in a timely manner. Commissioners passed the civil defense and emergency management ordinance today. Then the board meets and sends a recommendation to the commissioners for EMA Director. Tabled EMA Director appointment until board meets.

Community Corrections Advisory Board- Judges have not reviewed the new ordinance on this board yet, Tabled at Baudendistel’s request.

Convention Visitors Board- Debbie Walter had replaced Ian Abdon. Amy Smith (new appointment), Dave Lorey and Charlotte Hastings were re-appointed to the board.

PTABOA- Property Tax Assessment Board- Hensley commended the 5 members serving. Mark Neff and Art Hardebeck certified appraiser were the 2 he recommended he appoint. The 3^rd member is appointed by Council. Commissioners appointed Neff and Hardebeck. Commissioners also asked for a letter to be drafted thanking the previous members for their service.

911 Communications Board- Charlie Ashley said that Ed Op and Glenn Brandt were his recommendations. Approved.

Hospital Board- Robert Hoffmeier is retiring from the board. Chip Perfect was put up to replace Hoffmeier on March 31^st. Ronald Denning was re-appointed to the Hospital Board.

Bright Annual EMS Squad Funding- this was for 2012 funds and so they approved the funding. It does not affect 2013 funding. They also gave their financial statement to commissioners per Lynch $40,000 approved.

NEW BUSINESS:

Plan Commission- Mark McCormack- Correct Legal Description of Rookwood Estates Zone Map- in 2003 the legal description included about 3 acres that shouldn’t have been in the description. Baudendistel prepared an ordinance with the correct legal description. This was discovered reviewing acreage for an enforcement issue. 2313-003 amends 2003-13 ordinance. Commissioners approved the new ordinance correcting the errors in survey description. This had a unanimous favorable recommendation from Plan Commission.

Region 15 Child Advocacy Center- Sarah Brichto- sub-recipient semi-annual report-from a 2009 grant. She gave more statistics and they have added more counties that they cover. 295 kids last year and biggest group is 4-5 year olds. McHenry said the numbers show the need and commended the staff. 1038 since 2009. Their territory served is pretty huge per Brichto. Commissioners approved signing the report by McHenry.

CASA-Citizens Against Substance Abuse- Donna Thacker- Grant Recommendations – $100,000 operating costs from Lawrenceburg and they got $60,000 from L-bg for local grants also last year. Thacker outlined grants uses such as substance abuse education and kids planting red tulips to bloom during alcohol awareness month. They partner with other counties to get more from the state. Recovery event done for 65 people who came at the Community Center. One of the recovery people is now serving on their board. Drug free coalition in Cinti helping them with an evaluation system.  They have over 3 million ads and media last year on CASA and their activities. Alcohol is dropping in grade school but marijuana is going up unfortunately. Heroin use dropped in 12^th graders etc. Seeing more hard core drugs. Prevention takes a variety of forms like working with the character council. McHenry said heroin is becoming more county-wide. It is plateauing and dropping off a bit. He thanked her for all their work and how much CASA does for the community. Commissioners approved their 2013 report and grants.

HIGHWAY DEPARTMENT: Todd Listerman, Highway Engineer- Stateline Road project supplement amendments for INDOT and consultant- federal aid funding for Stateline slip and new DES numbers. Original agreement and separation into 2 projects. Approved. Original contract with United Consulting engineers had to supplement their contract to reflect the 2 new DES numbers on the project. This is just between the county and United Consulting and was approved.

Tm Grieve, Highway Superintendent- not present.

Laptop of former commissioner Jeff Hughes- Terri Randall was issued to Hughes many years ago and is pretty much outdated. They asked for public comment and I said it would take care of the toxic materials – they wouldn’t have to recycle it. They approved selling it to him for $1.00. It is 6-8 years old.

ADMINISTRATOR: Teresa Randall- will do a letter to Hoffmeier thanking him and a letter to Perfect welcoming him to the hospital board.

Fire/EMS Study updates/Input- At the end of last year a committee was to be formed and would report to the commissioners. Randall did not form that committee until the new commissioners came in. They have  a grant from County Foundation for $58,500 which is 1.5 years old. They have analyzed the existing conditions for $12,000. Then they did a report on the options for organization. They are to do an opinion survey on issues from a sampling of local residents. They should have work sessions with local officials and a fiscal analysis. There would still be another $36,500 and she recommended that they hire a consultant in the area not the one we have from outside the area. She wants to send the money back to DC Foundation. In the future they can go back to foundation for funding when they have a clearer idea of what they want. Duncan and Associates agreement was ended and $36,500 is to be returned to the DCFoundation. Approved.

Randall said Lynch had suggested getting together with Rep Randy Frye who is big with Fire and EMS. They had a good meeting with locals and white-boarded an number of ideas and solutions. She thinks this was a big break thru on this. They had ideas on cross training etc with fire and ems. Lynch will be point person on this with her. They will have to go out into the rural areas also to get ideas. There was a lot of discussion about giving money to Harrison instead of getting it to Bright at their meetings.

Hrezo Agreement – needed to be redone to cover construction observation for the Votaw/Shumway demolition project. It’s already in the budget. It’s an hourly fee and not to exceed $1,650.00 Commissioners approved McHenry’s signature on this agreement that Baudendistel had reviewed. 

AUDITOR: Gayle Pennington- claims signed except for the one McHenry asked them not to pay Health dept $234.52 claim from Comcast Cable TV, High speed internet for Dr Scudder’s office and home until they can get scudder in to explain what this was for. This is from a grant supposedly.  Scudder had not had an office until just now in the county per Randall. They will hold payment on this for now.

Minutes approved for Jan 3^rd as amended.

ATTORNEY: Andy Baudendistel- none

COMMISSIONER COMMENTS- Lynch said it had been a whirlwind and thanked staff for efforts and stumbling over issues with updating ordinances for appointments. McHenry agreed.

Commissioners agreed to revise the SIRPC Board to be Art Little instead of Kevin Lynch.

Randall attended OKI meeting and complimented Lynch on being elected 2^nd VP of OKI Executive Committee. There were major powerful people from the tristate there Randall said. Todd Portune is the President. Lynch views this as a great networking opportunity for us. We had 6 reps from Dearborn County there. McHenry said as long as we don’t get pulled in to pay for the stadium- he’s all for it.

LATE ARRIVAL INFORMATION-none

PUBLIC COMMENT- none

Meeting adjourned at 10:25 AM

Christine Brauer Mueller

Lawrenceburg Township

 

Agenda Jan 15th 9 AM Commissioners Meeting

AGENDA

DEARBORN COUNTY BOARD OF COMMISSIONERS MEETING

January 15, 2013

9:00 a.m., Commissioners Room

County Administration Building

215 B West High Street, Lawrenceburg, Indiana 

I.              CALL TO ORDER

II.            PLEDGE OF ALLEGIANCE

III.           OLD BUSINESS

1.  Appointments

            a.)  EMA Director

            b.)  Community Corrections Advisory Board

            c.)  Convention/Visitor’s Bureau

            d.)  Property Tax Assessment Board (PTABOA)

            e.)  911 Communications Board

             f.)  Hospital Board 

2.  Bright Annual EMS Squad Funding 

IV.          NEW BUSINESS

1.  Dearborn County Plan Commission – Mark McCormack

            Correct legal description of Rookwood Estates Zone Map Amendment 

2.  Region 15 CAC – Sarah Brichto

            Sub-recipient Semi Annual Report

 

3.  CASA – Donna Thacker

            Grant Recommendations 

4.  Highway Department – Todd Listerman

            Stateline Road Project Supplement Amendments for INDOT and Consultant
           

5.  Laptop of past Commissioner Hughes

 

V.            ADMINISTRATOR – Terri Randall

1.  Fire/EMS Study Updates/Input

            2.  Hrezo Agreement 

VI.          AUDITOR – Gayle Pennington

1.  Claims/Minutes                               

VII.         ATTORNEY

VIII.        COMMISSIONER COMMENTS 

IX.          LATE ARRIVAL INFORMATION            

X.            PUBLIC COMMENT 

XI.           ADJOURN

Charges Dropped Against Employees in Mexican Restaurant Raid

Charges Dropped Against Employees in Mexican Restaurant Raid

HUMPHREY CLAIMS NO BIAS IN LOPEZ CASE

 Humphrey Claims No Bias in Lopez Case

 

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

at this bond hearing included testimony that:

 

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

Motion to Reduce Bond) 

 

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

matter is currently on appeal with the Indiana Court of Appeals in Cause No. 15A01- 1110-CR-550. On appeal the State oflndiana is represented by the Indiana Attorney General's Office. (Copies of Grand Jury Indictments and Sentencing Order attached.)

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 

 

 

 ***********************************************************************

 

 

 

 

STATE OF INDIANA ) IN THE DEARBORN CIRCUIT COURT   )SS   COUNTY OF DEARBORN ) GENERAL TERM, 2012

 

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;

 

 (3)    the defendant's family ties and relationships;

 

(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

Seventh Judicial  Circuit

Copies to:          Prosecutor

Probation

Sheriff

Garner

 

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