Today is All Saints Day or All Hallows, a holy day of obligation for some. To others, it's just the day after Halloween -- a day they forget was once merely All Hallows Eve. Some spend All Hallows recovering from the revelry of the night before, and some are still on the streets in the wee hours of the holy day. Our Case of the Week examines once such alleged citizen on the streets and the unfortunate lesson she learned about differing standards of legal review in a California appellate decision handed down last week. Let's Make a Deal Angelique Bongiovanni found herself in the legal system in 2009, charged with possession of methamphetamine in two separate cases. In a deal that would come back to haunt her on the day after Halloween, she made a plea bargain in one of the cases. Under the plea agreement, Ms. Bongiovanni pleaded no contest, and was placed on probation for three years. As an added bonus, her 365-day jail sentence was suspended to run concurrently with the sentence from her other drug bust. It seemed like a good deal at the time, and it would have been...if only she hadn't allegedly been out with the witches, warlocks, goblins, and alleged gang members on the streets of Los Angeles on All Hallows 2009. All Hallows Hijinks On Nov. 1, 2009, Wendy Diaz lived with her husband and three children in a Los Angeles neighborhood with a gang problem. Perhaps not unlike Chauncey and Wadsworth fighting over tee times, the proper procedure for shaking martinis, or the best way to train a polo pony, Ms. Diaz's neighborhood faced fights from the gentlemen and ladies of the rival gangs, "Vincent Town," and "Columbus Street." Police arrested a Columbus Street gang member for breaking into the Diaz home. After taking her children trick-or-treating on Halloween evening, Ms. Diaz ventured outside at approximately 1:00 in the morning of All Hallows to look for a friend parking on the street. Instead, Ms. Diaz said she saw Ms. Bongiovanni accompanied by a companion in a pumpkin costume. According to Ms. Diaz, Ms. Bongiovanni proceeded to engage in an expletive-laden tirade of threats. To accommodate the gentle readers of Courtweek.com who would rather witness a debate between Chauncey and Wadworth on the best ways to make covert contributions to the Republican National Committee instead of enduring the vile threats of alleged gang members, we will attempt to sanitize the vulgarity of Ms. Bongiovanni's alleged utterances. Ms. Diaz said Ms. Bongiovanni approached her and called her an [expletive deleted] snitcher, adding, "You been [expletive deleted] snitching." "You and your family are coming down," Ms. Bongiovanni stated allegedly, as she is said to have added for emphasis, "You [expletive deleted] rata," and "[expletive deleted] all biccicletas." To assist our readers in appreciating the full flavor of Ms. Bongiovanni's supposed soliloquy, we should note that each deleted expletive is a version of the same slang word referring to an act of sexual intimacy. In addition, "rata" can refer to a Soviet fighter plane from the 1930s, plants from the Metrosideros genus in New Zealand, or rat in Spanish. We'll let you decide which one Ms. Bongiovanni might have meant. Also, biccicletas is a derivation of the Spanish word for bicycles. Seems innocuous enough. However, in Ms. Bongiovanni's case, People v. Bongiovanni, California's Second District Court of Appeal noted biccicletas was also a term Columbus Street gang members used as a sign of disrespect (or "dissing" in gangspeak) when addressing the upstanding citizens of the Vincent Town gang. Ms. Diaz reported the incident to police the same day and gave law enforcement a description of the woman who threatened her. She then identified Ms. Bongiovanni from a photo line up. Police knew Ms. Bongiovanni to be a member of the Columbus Street gang for almost a decade and that she went by the gang name, "Diabla." It wasn't difficult police work...Ms. Bongiovanni sported Columbus Street gang tattoos on her body. If that weren't enough, police said she also admitted she was a member. Winning 10-2? However, nifty tattoos notwithstanding, Ms. Bongiovanni denied she was a member of the gang at trial. In addition, Ms. Bongiovanni noted she was approximately 50 pounds heavier than Ms. Diaz had described her. Then again, it was Halloween, and with her friend in that pumpkin costume, she probably got a lot of candy. Despite Ms. Diaz's testimony and police testimony citing various Columbus Street gang activities including murder, assaults, car theft, and narcotics distribution, the jury deadlocked, and it's vote was 10-2 in favor of acquitting Ms. Bongiovanni. The court declared a mistrial and thus granted prosecutors' motion to dismiss the charges pursuant to California Penal Code section 1385. So, it was time for Ms. Bongiovanni to do the happy dance. Sure, she was on probation, but the charges were dropped. No probation violation there...or so she thought. At an ensuing probation violation hearing, Ms. Bongiovanni argued she had not violated her probation in the All Hallows morning incident. She claimed the whole thing was a case of mistaken identity, and she argued the jury's 10-2 vote in her favor showed she hadn't done anything wrong. Most members of the jury may have believed her, but the judge wasn't buying it. More importantly, for purposes of sending Ms. Bongiovanni to the slammer for a probation violation, the opinions of those 10 jurors didn't matter. You see, California probation violation determinations differ from a criminal trial in that the fact-finder in a probation violation hearing is the judge -- not a jury. In addition, where in a criminal trial, the legal standard is proof beyond a reasonable doubt, in a probation violation hearing, the standard is only a preponderance of the evidence. In other words, there can be a fair amount of doubt as to whether you did it, but if the judge weighs the evidence, and there's more evidence indicating guilt rather than innocence, you lose. In Ms. Bongiovanni's case, the judge noted the cops testified at trial that she was a member of the Columbus Street gang, a Columbus Street member was arrested in connection with the break-in at the Diaz home, and that Ms. Diaz identified Ms. Bongiovanni as the woman who threatened her. In the minds of 10 of 12 jurors, that wasn't enough to prove anything beyond a reasonable doubt. However, under the preponderance of the evidence standard, that's all the judge needed. In upholding the trial court's decision that Ms Bongiovanni violated her probation, California's Second District Court of Appeal wrote, "Appellant's argument that a jury vote of of 10-2 for acquittal supports her credibility is not persuasive because the fact finder in the probation violation hearing was the trial judge, not the jury. Because probation revocation differs substantially from criminal prosecution and the facts supporting the revocation need only be proved by a preponderance of the evidence, we find substantial evidence to support the trial court's finding that the appellant violated her probation." So, Ms. Bongiovanni had her probation revoked, and it was three years of incarceration for her. The moral of this week's Case of the Week: if you're on probation and walking around with a giant pumpkin on All Hallows, study legal standards of review before you go calling someone an [expletive deleted] Soviet fighter plane. Those readers who enjoyed -- or perhaps didn't enjoy -- this writer's On Trial column in The National Law Journal may remember the saga of Dave the Dwarf. He fought to save the Constitution...while saving his livelihood in dwarf tossing. To commemorate the 10th anniversary of Dave the Dwarf's epic legal battle--and because a Florida state representative is now trying to do in the legislature what Dave could not do in the courts--we now revisit the Law of Dwarf Tossing...and what it tells us about the 5th and 14th Amendments to the United States Constitution...as well as legislative and regulatory drafting in the state of Florida. Big Fun in a Little Package David Flood is a gentleman of somewhat small stature: three foot two, to be exact. He's also a Tampa, Fla., radio personality and quasi-celebrity. Known as Dave the Dwarf to his legions of little listeners and big fans on Tampa's 93.3 FLZ radio, Mr. Flood also has had a side business, and that's what made him a legal star. You see, for a fee, you could bring Dave the Dwarf to your birthday party, St. Patrick's Day festival, bar mitzvah, or Millard Fillmore Inauguration Day celebration, and Dave would let you engage in the time-honored tradition of dwarf tossing. That's right, you could put little Dave in a harness and toss him to your heart's content. Dwarf tossing was a cultural phenomenon in the 1980s. It was the biggest thing since Members Only jackets. It seemed a good time was being had by all, as tiny torpedoes of humanity went airborne at parties. That was, until the Little People of America and their friends in the Florida Legislature intercepted the toss. Little Lobbyists Not everyone was amused by this zany brand of miniature fun. Among the concerned populace was a public interest organization known as Little People of America, Inc. The non-profit organization provides support and information to people of short stature, and states it is the only dwarfism support organization providing services to those afflicted with all of the over 200 types of dwarfism. Little People and others lobbied the Florida Legislature, and the result was the passage of Section 561.665, Florida Statutes, governing activities involving exploitation of people with Dwarfism in establishments selling alcohol. Not all little people supported the law, and one of them was Dave the Dwarf. Dave the Dwarf sued then-Florida Governor Job Bush in an attempt to overturn the law, arguing the law was an unconstitutional violation of his rights under the Due Process Clause of the 5th Amendment and the Equal Protection Clause of the 14th Amendment. Specifically, Dave the Dwarf argued in Flood v. Bush, No. 8:01cv02261 (M.D. Fla. filed Nov. 28, 2001), that his due process rights were violated because the law failed to properly define those covered by the law, making the law unconstitutionally vague. He argued also that the law violated his equal protection rights because the law treated him differently than others. For instance, you could be tossed, I could be tossed, and Oprah Winfrey could be tossed (with a great degree of difficulty), but Dave the Dwarf could not be tossed...or so he thought. Banned or Not? The governor's lawyers swung into action in an attempt to toss Dave the Dwarf right out of court. They argued dwarfs needed protection. Dave counted that was hogwash. Also, in addition to maintaining Gov. Bush should be dismissed from the suit, the Florida Attorney General's Office argued that there was no constitutional violation because the law didnt really ban dwarf tossing. Turns out they were right. The law itself banned only "undertaking or permitting any contest or promotion or other form of recreational activity involving exploitation endangering the health, safety, and welfare of any person with dwarfism" in establishments selling alcoholic beverages. Nowhere did the law ban dwarf tossing specifically. Dave the Dwarf argued dwarf tossing was good for his welfare because he made money doing it. Note the language is "health, safety, and welfare," as opposed to "health, safety, or welfare." Dave the Dwarf might have been better off leaving the law alone, continuing his aerial acrobatics, and arguing he was in compliance with the law because dwarf tossing promoted his welfare. As it was, the trial court tossed Dave out of the courthouse, holding the law did not ban dwarf tossing and that -- although the law mandated that the Division of Alcoholic Beverages and Tobacco of Floridas Department of Professional Regulation promulgate regulations on the issue -- they had failed to do it. While the regulators may have been out at the beach listening to Jimmy Buffet tunes and drinking margaritas, Dave the Dwarf could have been spending his days flying through the warm Florida breezes. So why is Florida State Rep. Ritch Workman trying to repeal the law while everyone from Jon Stewart to your short Uncle Freddy is weighing in on the issue? Well, it appears those regulators finally finished getting wasted away in Margaritaville, cruised on back home to Tallahassee, and did some regulating. The Oprah Rule The Division promulgated Section 3.048 of Chapter 61A of its regulations, entitled, "Exploitation of Dwarfs." Unlike their friends in the Legislature, the regulators did more precise drafting and included dwarf tossing specifically. The regulation provided in subsection (2): "Any activity described as dwarf-tossing is specifically included within those acts of exploitation prohibited by this rule." Of course, there was also subsection (3), which could be called the Oprah Rule. It provided: "Nothing contained herein shall be construed to prohibit dwarfs from engaging in non-exploitative sporting or recreational events of the type engaged in by persons who are not dwarfs." So now we've come full circle: Oprah Winfrey can be tossed (if one has a large catapult), but Dave the Dwarf is, once again, left out of all the fun...unless Rep. Workman has his way. His bill, HB 4063, is pending in the Florida Legislature. In the meantime, you can catch Dave the Dwarf on his radio show, What Would The Dwarf Do?, where presumably, he is not being tossed...at least not yet. August 25, 2011 The Law of Wiener Wars Once the gentleman from New York's Ninth Congressional District resigned his House seat for exposing his wiener, you may have thought you would be finished with bad wiener jokes for a while. You would be wrong. This week, mighty corporate litigants have been battling it out in the U.S. District Court for Northern District of Illinois in a wacky wiener war. The case of Sara Lee Corp. v. Kraft Foods Inc., features charges of hot dog blasphemy. Sara Lee, the makers of Ball Park Franks, and Kraft, the friendly folks bringing you the venerable Oscar Mayer wiener, both claim the other has disparaged its products in violation of federal and state law. Seriously though, we all read Upton Sinclair's The Jungle in school. Thus, everyone thinks hot dogs are comprised of animal parts swept up off the factory floor anyway. How can one disparage a hot dog? Oh, I Wish I Were... Sara Lee fired the first shot in the Weiner War, suing Kraft in May 2009, claiming Kraft violated both the federal Trademark Act of 1946, 15 U.S.C. 1051 et seq., known commonly as the "Lanham Act," the Illinois Consumer Fraud and Deceptive Practices Act, and other Illinois state laws. In its federal complaint, Sara Lee alleged Kraft claimed falsely that Oscar Mayer wieners were the "100% pure beef hot dog" when it knew Oscar Meyer wieners contained other mouth-watering ingredients, such as sodium lactate, sodium diacetate, sodium phosphates, salt, corn syrup, and dextrose. Sara Lee claimed non-beef ingredients comprised approximately 20 percent of an Oscar Meyer wiener. Of course, Sara Lee conceded that most of this non-beef 20 percent was water. Sara Lee claimed Ball Park Franks were disadvantaged becausebeing the honest dudes they are Sara Lee would not compete with Oscars little lies by claiming falsely that Ball Park Franks were 100 percent pure beef. But, Oscar Meyers alleged crimes against humanity and hot dog harmony didn't end there. In advertising paraphrasing Oscar Mayers famous jingles for its hot dogs and bologna, Kraft claimed, The best tasting beef hot dog has a name. Its O-S-C-A-R, and These days, its Ball Park and Hebrew National who are wishing they were an Oscar Mayer wiener. In addition, Kraft invited customers to Try the taste that knocked the others out of the park. Just as it claimed the 100 percent beef claim was false, Sara Lee claimed these comparisons against its hot dog were false as well. Sara Lees attorney, Richard Leighton of Washington, D.C.'s Keller and Heckman LLP, claimed the evil Oscar Mayer even cheated on taste tests, claiming testers were served boiled Ball Park franks on a paper plate with no bun, no ketchup, no mustard, nothing. It must have been a big taste test error because the bouquet of the sodium lactate and dextrose really pairs well with mustard. Not only were these claims placed in print and electronic media, Sara Lee claimed Kraft even put them on its Wienermobile, a vehicle described by Sara Lee as a hot dog-shaped vehicle that promotes Oscar Mayer and its products in interstate commerce. Have you ever seen the Wienermobile? This writer has. It looks like a rolling phallic sex toy designed to appeal to the prurient interest in violation of the U.S. Supreme Courts holding in Miller v. California. Sara Lee argued that, by making these allegedly false claims in interstate commerce, Kraft violated section 43(a)(1)(B) of the Lanham Act. Section 43(a)(1)(B) prohibits false or misleading advertising or marketing that damages another's product. In addition, Sara Lee argued these false claims violated the applicable Illinois state laws. Not surprisingly, Oscar Mayer saw things differently. My [Fill in the Blank] Has a First Name Mighty Oscar fought back, counterclaiming against Ball Park's protective corporate mother, Sara Lee. Kraft argued the 100 percent beef was accurate because, although Oscar Mayer contained additives, beef was the only meat in Oscar Mayer. In addition, Kraft believed it needed to illustrate Oscar's beefiness because of the public perception that hot dogs contain mystery meats. Damn you, Upton Sinclair! In addition, Kraft argued Sara Lee had its own hot dog advertising shenanigans. In a corporate legal battle example of Pee-wee Hermann's famous retort, "I know you are, but what am I?," Kraft argued Sara Lee made its own false claims about how much beef there was in Oscar's tubesteak. In addition, Kraft argued Sara Lee mislead consumers with taste tests by professional chefs proclaiming that Ball Park was America's best franks. All jokes aside, the Wiener War in Sara Lee Corp. v. Kraft Foods Inc., may change the way companies market their products and establish limits for what merchants can say about their products and their competitors in advertising. Meanwhile, the court battle continues with weighty questions, such as "Do a bunch of San Francisco chefs know anything about Chicago hot dogs?" and, if you thought hot dog litigation was bad, just wait until companies start suing each other over other meats lots of people hate. When commenting on the litigation, Sara Lee's Ball Park product director, Chuck Hemmingway said, "Simply put, we believe that these untrue statements are a bunch of bologna." First, they attack Oscar's hot dogs, and now Oscar's bologna? Mr. Hemmingway may want to watch out for the speeding Wienermobile. Oscar is not happy.

david beckham ♂ masculine

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