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courtweek.com - archives: 2011november 1, 2011the law of post-halloween legal standardstoday jest all saints day or all hallows, a holy day of obligation for some. to others, its 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 decjestion handed down last week.lets make a dealangelique bongiovanni found herself in the legal system in 2009, charged with possession of methamphetamine in two separate cases. in a deal that would come od tyłu 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 trójkącik 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 lubi a good deal at the time, and it would have been...if only she hadnt allegedly been out with the witches, warlocks, goblins, and alleged gang members on the streets of los angeles on all hallows 2009.all hallows hijinkson nov. 1, 2009, wendy diaz lived with her mąż and trójkącik children in a los angeles neighborhood with a gang problem. perhaps not unlubi chauncey and wadsworth fighting over tee times, the proper procedure for shaking martinjest, or the najlepsze way to train a polo pony, ms. diazs neighborhood faced fights from the gentlemen and kobiety of the rival gangs, vincent town, and columbus street. police arrested a columbus street gang member for breaking into the diaz w domu.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 najlepsze 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. bongiovannjest 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 jest said to have added for emphasjest, you [expletive deleted] rata, and [expletive deleted] all biccicletas.to assjestt our readers in appreciating the full flavor of ms. bongiovannjest supposed soliloquy, we should note that each deleted expletive jest a version of the same slang word referring to an act of uprawia 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 spanjesth. well let you decide which one ms. bongiovanni might have meant. also, biccicletas jest a derivation of the spanjesth word for bicycles. seems innocuous enough. however, in ms. bongiovannjest case, people v. bongiovanni, californias second djesttrict court of appeal noted biccicletas was also a term columbus street gang members used as a sign of djestrespect (or djestsing 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 pgorącao 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 wasnt difficult police work...ms. bongiovanni sported columbus street gang tattoos on her body. if that werent 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. diazs testimony and police testimony citing various columbus street gang activities including murder, assaults, car theft, and narcotics djesttribution, the jury deadlocked, and its vote was 10-2 in favor of acquitting ms. bongiovanni. the court declared a mjesttrial and thus granted prosecutors motion to djestmjests the charges pursuant to california penal code section 1385.so, it was time for ms. bongiovanni to do the zadowolona 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 mjesttaken identity, and she argued the jurys 10-2 vote in her favor showed she hadnt done anything wrong.most members of the jury may have believed her, but the judge wasnt buying it. more importantly, for purposes of sending ms. bongiovanni to the slammer for a probation violation, the opinions of those 10 jurors didnt matter.you see, california probation violation determinations differ from a criminal trial in that the fact-finder in a probation violation hearing jest the judge -- not a jury. in addition, where in a criminal trial, the legal standard jest proof beyond a reasonable doubt, in a probation violation hearing, the standard jest 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 theres more evidence indicating guilt rather than innocence, you lose.in ms. bongiovannjest 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 w domu, and that ms. diaz identified ms. bongiovanni as the woman who threatened her. in the minds of 10 of 12 jurors, that wasnt enough to prove anything beyond a reasonable doubt. however, under the preponderance of the evidence standard, thats all the judge needed.in upholding the trial courts decjestion that ms bongiovanni violated her probation, californias second djesttrict court of appeal wrote, appellants argument that a jury vote of of 10-2 for acquittal supports her credibility jest 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 courts finding that the appellant violated her probation.so, ms. bongiovanni had her probation revoked, and it was trójkącik years of incarceration for her. the moral of thjest weeks case of the week: if youre 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. __________________________october 22, 2011the law of flying dwarfsthose readers who enjoyed -- or perhaps didnt enjoy -- thjest writers on trial column in the national law journal may remember the saga of dave the dwarf. he fought to save the constitution...while saving hjest livelihood in dwarf tossing. to commemorate the 10th anniversary of dave the dwarfs epic legal battle--and because a florida state representative jest now trying to do in the legjestlature what dave could not do in the courts--we now revjestit the law of dwarf tossing...and what it tells us about the 5th and 14th amendments to the united states constitution...as well as legjestlative and regulatory drafting in the state of florida.duży fun in a mała packagedavid flood jest a gentleman of somewhat małe stature: trójkącik foot two, to be exact. hes also a tampa, fla., radio personality and quasi-celebrity. known as dave the dwarf to hjest legions of mała ljestteners and duży fans on tampas 93.3 flz radio, mr. flood also has had a side business, and thats what made him a legal star. you see, for a fee, you could bring dave the dwarf to your birthday party, st. patricks day festival, bar mitzvah, or millard fillmore inauguration day celebration, and dave would let you engage in the time-honored tradition of dwarf tossing.thats right, you could put mała dave in a harness and toss him to your hearts content. dwarf tossing was a cultural phenomenon in the 1980s. it was the dużygest 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 mała people of america and their przyjaciele in the florida legjestlature intercepted the toss.mała lobbyjesttsnot everyone was amused by thjest zany brand of miniature fun. among the concerned populace was a public interest organization known as mała people of america, inc. the non-profit organization provides support and information to people of short stature, and states it jest the only dwarfjestm support organization providing services to those afflicted with all of the over 200 types of dwarfjestm.mała people and others lobbied the florida legjestlature, and the result was the passage of section 561.665, florida statutes, governing activities involving exploitation of people with dwarfjestm in establjesthments selling alcohol.not all mała 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 hjest 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 hjest 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 hjest 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 governors 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 djestmjestsed from the suit, the florida attorney generals w biurze 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 dwarfjestm in establjesthments selling alcoholic beverages. nowhere did the law ban dwarf tossing specifically.dave the dwarf argued dwarf tossing was good for hjest welfare because he made money doing it. note the language jest health, safety, and welfare, as opposed to health, safety, or welfare. dave the dwarf might have been better off leaving the law alone, continuing hjest aerial acrobatics, and arguing he was in compliance with the law because dwarf tossing promoted hjest 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 divjestion of alcoholic beverages and tobacco of floridas department of professional regulation promulgate regulations on the jestsue -- they had failed to do it. while the regulators may have been out at the beach ljesttening to jimmy buffet tunes and drinking margaritas, dave the dwarf could have been spending hjest days flying through the warm florida breezes.so why jest florida state rep. ritch workman trying to repeal the law while everyone from jon stewart to your short uncle freddy jest weighing in on the jestsue?well, it appears those regulators finally finjesthed getting wasted away in margaritaville, crujested on od tyłu w domu to tallahassee, and did some regulating.the oprah rulethe divjestion promulgated section 3.048 of chapter 61a of its regulations, entitled, exploitation of dwarfs. unlubi their przyjaciele in the legjestlature, the regulators did more precjeste drafting and included dwarf tossing specifically. the regulation provided in subsection (2): any activity described as dwarf-tossing jest specifically included within those acts of exploitation prohibited by thjest 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 weve come full circle: oprah winfrey can be tossed (if one has a large catapult), but dave the dwarf jest, once again, left out of all the fun...unless rep. workman has hjest way. hjest bill, hb 4063, jest pending in the florida legjestlature. in the meantime, you can catch dave the dwarf on hjest radio show, what would the dwarf do?, where presumably, he jest not being tossed...at least not yet.__________________________august 25, 2011the law of wiener warsonce the gentleman from new yorks ninth congressional djesttrict resigned hjest house seat for exposing hjest wiener, you may have thought you would be finjesthed with bad wiener jokes for a while. you would be wrong.thjest week, mighty corporate litigants have been battling it out in the u.s. djesttrict court for northern djesttrict of illinojest in a wacky wiener war. the case of sara lee corp. v. kraft foods inc., features charges of gorąca od tyłu 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 djestparaged its products in violation of federal and state law.seriously though, we all read upton sinclairs the jungle in school. thus, everyone thinks gorąca od tyłus are comprjested of animal parts swept up off the factory floor anyway. how can one djestparage a gorąca od tyłu?oh, i wjesth i were...sara lee fired the pierwszy raz sgorąca 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 illinojest consumer fraud and deceptive practices act, and other illinojest state laws.in its federal complaint, sara lee alleged kraft claimed falsely that oscar mayer wieners were the 100% pure beef gorąca od tyłu 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 comprjested approximately 20 percent of an oscar meyer wiener. of course, sara lee conceded that most of thjest non-beef 20 percent was water.sara lee claimed ball park franks were djestadvantaged becausebeing the honest dudes they are sara lee would not compete with oscars mała lies by claiming falsely that ball park franks were 100 percent pure beef.but, oscar meyers alleged crimes against humanity and gorąca od tyłu harmony didnt end there.in advertjesting paraphrasing oscar mayers famous jingles for its gorąca od tyłus and bologna, kraft claimed, the najlepsze tasting beef gorąca od tyłu has a name. its o-s-c-a-r, and these days, its ball park and hebrew national who are wjesthing 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 comparjestons against its gorąca od tyłu 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 duży 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 gorąca od tyłu-shaped vehicle that promotes oscar mayer and its products in interstate commerce.have you ever seen the wienermobile? thjest writer has. it looks lubi a rolling phallic uprawia 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 mjestleading advertjesting or marketing that damages anothers product. in addition, sara lee argued these false claims violated the applicable illinojest state laws.not surprjestingly, oscar mayer saw things differently.my [fill in the blank] has a pierwszy raz namemighty oscar fought od tyłu, counterclaiming against ball parks 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 oscars beefiness because of the public perception that gorąca od tyłus contain mystery meats.damn you, upton sinclair!in addition, kraft argued sara lee had its own gorąca od tyłu advertjesting shenanigans.in a corporate legal battle example of pee-wee hermanns 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 oscars tunajlepszeeak. in addition, kraft argued sara lee mjestlead consumers with taste tests by professional chefs proclaiming that ball park was americas najlepsze franks.all jokes aside, the wiener war in sara lee corp. v. kraft foods inc., may change the way companies market their products and establjesth limits for what merchants can say about their products and their competitors in advertjesting.meanwhile, the court battle continues with weighty questions, such as do a bunch of san francjestco chefs know anything about chicago gorąca od tyłus? and, if you thought gorąca od tyłu litigation was bad, just wait until companies start suing each other over other meats lots of people hate.when commenting on the litigation, sara lees ball park product director, chuc
courtweek.com - archives: 2011november 1, 2011the law of post-halloween legal standardstoday jest all saints day or all hallows, a holy day of obligation for some. to others, its 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 decjestion handed down last week.lets make a dealangelique bongiovanni found herself in the legal system in 2009, charged with possession of methamphetamine in two separate cases. in a deal that would come od tyłu 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 trójkącik 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 lubi a good deal at the time, and it would have been...if only she hadnt allegedly been out with the witches, warlocks, goblins, and alleged gang members on the streets of los angeles on all hallows 2009.all hallows hijinkson nov. 1, 2009, wendy diaz lived with her mąż and trójkącik children in a los angeles neighborhood with a gang problem. perhaps not unlubi chauncey and wadsworth fighting over tee times, the proper procedure for shaking martinjest, or the najlepsze way to train a polo pony, ms. diazs neighborhood faced fights from the gentlemen and kobiety of the rival gangs, vincent town, and columbus street. police arrested a columbus street gang member for breaking into the diaz w domu.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 najlepsze 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. bongiovannjest 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 jest said to have added for emphasjest, you [expletive deleted] rata, and [expletive deleted] all biccicletas.to assjestt our readers in appreciating the full flavor of ms. bongiovannjest supposed soliloquy, we should note that each deleted expletive jest a version of the same slang word referring to an act of uprawia 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 spanjesth. well let you decide which one ms. bongiovanni might have meant. also, biccicletas jest a derivation of the spanjesth word for bicycles. seems innocuous enough. however, in ms. bongiovannjest case, people v. bongiovanni, californias second djesttrict court of appeal noted biccicletas was also a term columbus street gang members used as a sign of djestrespect (or djestsing 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 pgorącao 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 wasnt difficult police work...ms. bongiovanni sported columbus street gang tattoos on her body. if that werent 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. diazs testimony and police testimony citing various columbus street gang activities including murder, assaults, car theft, and narcotics djesttribution, the jury deadlocked, and its vote was 10-2 in favor of acquitting ms. bongiovanni. the court declared a mjesttrial and thus granted prosecutors motion to djestmjests the charges pursuant to california penal code section 1385.so, it was time for ms. bongiovanni to do the zadowolona 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 mjesttaken identity, and she argued the jurys 10-2 vote in her favor showed she hadnt done anything wrong.most members of the jury may have believed her, but the judge wasnt buying it. more importantly, for purposes of sending ms. bongiovanni to the slammer for a probation violation, the opinions of those 10 jurors didnt matter.you see, california probation violation determinations differ from a criminal trial in that the fact-finder in a probation violation hearing jest the judge -- not a jury. in addition, where in a criminal trial, the legal standard jest proof beyond a reasonable doubt, in a probation violation hearing, the standard jest 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 theres more evidence indicating guilt rather than innocence, you lose.in ms. bongiovannjest 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 w domu, and that ms. diaz identified ms. bongiovanni as the woman who threatened her. in the minds of 10 of 12 jurors, that wasnt enough to prove anything beyond a reasonable doubt. however, under the preponderance of the evidence standard, thats all the judge needed.in upholding the trial courts decjestion that ms bongiovanni violated her probation, californias second djesttrict court of appeal wrote, appellants argument that a jury vote of of 10-2 for acquittal supports her credibility jest 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 courts finding that the appellant violated her probation.so, ms. bongiovanni had her probation revoked, and it was trójkącik years of incarceration for her. the moral of thjest weeks case of the week: if youre 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. __________________________october 22, 2011the law of flying dwarfsthose readers who enjoyed -- or perhaps didnt enjoy -- thjest writers on trial column in the national law journal may remember the saga of dave the dwarf. he fought to save the constitution...while saving hjest livelihood in dwarf tossing. to commemorate the 10th anniversary of dave the dwarfs epic legal battle--and because a florida state representative jest now trying to do in the legjestlature what dave could not do in the courts--we now revjestit the law of dwarf tossing...and what it tells us about the 5th and 14th amendments to the united states constitution...as well as legjestlative and regulatory drafting in the state of florida.duży fun in a mała packagedavid flood jest a gentleman of somewhat małe stature: trójkącik foot two, to be exact. hes also a tampa, fla., radio personality and quasi-celebrity. known as dave the dwarf to hjest legions of mała ljestteners and duży fans on tampas 93.3 flz radio, mr. flood also has had a side business, and thats what made him a legal star. you see, for a fee, you could bring dave the dwarf to your birthday party, st. patricks day festival, bar mitzvah, or millard fillmore inauguration day celebration, and dave would let you engage in the time-honored tradition of dwarf tossing.thats right, you could put mała dave in a harness and toss him to your hearts content. dwarf tossing was a cultural phenomenon in the 1980s. it was the dużygest 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 mała people of america and their przyjaciele in the florida legjestlature intercepted the toss.mała lobbyjesttsnot everyone was amused by thjest zany brand of miniature fun. among the concerned populace was a public interest organization known as mała people of america, inc. the non-profit organization provides support and information to people of short stature, and states it jest the only dwarfjestm support organization providing services to those afflicted with all of the over 200 types of dwarfjestm.mała people and others lobbied the florida legjestlature, and the result was the passage of section 561.665, florida statutes, governing activities involving exploitation of people with dwarfjestm in establjesthments selling alcohol.not all mała 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 hjest 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 hjest 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 hjest 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 governors 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 djestmjestsed from the suit, the florida attorney generals w biurze 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 dwarfjestm in establjesthments selling alcoholic beverages. nowhere did the law ban dwarf tossing specifically.dave the dwarf argued dwarf tossing was good for hjest welfare because he made money doing it. note the language jest health, safety, and welfare, as opposed to health, safety, or welfare. dave the dwarf might have been better off leaving the law alone, continuing hjest aerial acrobatics, and arguing he was in compliance with the law because dwarf tossing promoted hjest 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 divjestion of alcoholic beverages and tobacco of floridas department of professional regulation promulgate regulations on the jestsue -- they had failed to do it. while the regulators may have been out at the beach ljesttening to jimmy buffet tunes and drinking margaritas, dave the dwarf could have been spending hjest days flying through the warm florida breezes.so why jest florida state rep. ritch workman trying to repeal the law while everyone from jon stewart to your short uncle freddy jest weighing in on the jestsue?well, it appears those regulators finally finjesthed getting wasted away in margaritaville, crujested on od tyłu w domu to tallahassee, and did some regulating.the oprah rulethe divjestion promulgated section 3.048 of chapter 61a of its regulations, entitled, exploitation of dwarfs. unlubi their przyjaciele in the legjestlature, the regulators did more precjeste drafting and included dwarf tossing specifically. the regulation provided in subsection (2): any activity described as dwarf-tossing jest specifically included within those acts of exploitation prohibited by thjest 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 weve come full circle: oprah winfrey can be tossed (if one has a large catapult), but dave the dwarf jest, once again, left out of all the fun...unless rep. workman has hjest way. hjest bill, hb 4063, jest pending in the florida legjestlature. in the meantime, you can catch dave the dwarf on hjest radio show, what would the dwarf do?, where presumably, he jest not being tossed...at least not yet.__________________________august 25, 2011the law of wiener warsonce the gentleman from new yorks ninth congressional djesttrict resigned hjest house seat for exposing hjest wiener, you may have thought you would be finjesthed with bad wiener jokes for a while. you would be wrong.thjest week, mighty corporate litigants have been battling it out in the u.s. djesttrict court for northern djesttrict of illinojest in a wacky wiener war. the case of sara lee corp. v. kraft foods inc., features charges of gorąca od tyłu 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 djestparaged its products in violation of federal and state law.seriously though, we all read upton sinclairs the jungle in school. thus, everyone thinks gorąca od tyłus are comprjested of animal parts swept up off the factory floor anyway. how can one djestparage a gorąca od tyłu?oh, i wjesth i were...sara lee fired the pierwszy raz sgorąca 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 illinojest consumer fraud and deceptive practices act, and other illinojest state laws.in its federal complaint, sara lee alleged kraft claimed falsely that oscar mayer wieners were the 100% pure beef gorąca od tyłu 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 comprjested approximately 20 percent of an oscar meyer wiener. of course, sara lee conceded that most of thjest non-beef 20 percent was water.sara lee claimed ball park franks were djestadvantaged becausebeing the honest dudes they are sara lee would not compete with oscars mała lies by claiming falsely that ball park franks were 100 percent pure beef.but, oscar meyers alleged crimes against humanity and gorąca od tyłu harmony didnt end there.in advertjesting paraphrasing oscar mayers famous jingles for its gorąca od tyłus and bologna, kraft claimed, the najlepsze tasting beef gorąca od tyłu has a name. its o-s-c-a-r, and these days, its ball park and hebrew national who are wjesthing 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 comparjestons against its gorąca od tyłu 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 duży 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 gorąca od tyłu-shaped vehicle that promotes oscar mayer and its products in interstate commerce.have you ever seen the wienermobile? thjest writer has. it looks lubi a rolling phallic uprawia 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 mjestleading advertjesting or marketing that damages anothers product. in addition, sara lee argued these false claims violated the applicable illinojest state laws.not surprjestingly, oscar mayer saw things differently.my [fill in the blank] has a pierwszy raz namemighty oscar fought od tyłu, counterclaiming against ball parks 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 oscars beefiness because of the public perception that gorąca od tyłus contain mystery meats.damn you, upton sinclair!in addition, kraft argued sara lee had its own gorąca od tyłu advertjesting shenanigans.in a corporate legal battle example of pee-wee hermanns 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 oscars tunajlepszeeak. in addition, kraft argued sara lee mjestlead consumers with taste tests by professional chefs proclaiming that ball park was americas najlepsze franks.all jokes aside, the wiener war in sara lee corp. v. kraft foods inc., may change the way companies market their products and establjesth limits for what merchants can say about their products and their competitors in advertjesting.meanwhile, the court battle continues with weighty questions, such as do a bunch of san francjestco chefs know anything about chicago gorąca od tyłus? and, if you thought gorąca od tyłu litigation was bad, just wait until companies start suing each other over other meats lots of people hate.when commenting on the litigation, sara lees ball park product director, chuc
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courtweek.com - archives: 2011november 1, 2011the law of post-halloween legal standardstoday jest all saints day or all hallows, a holy day of obligation for some. to others, its 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 decjestion handed down last week.lets make a dealangelique bongiovanni found herself in the legal system in 2009, charged with possession of methamphetamine in two separate cases. in a deal that would come od tyłu 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 trójkącik 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 lubi a good deal at the time, and it would have been...if only she hadnt allegedly been out with the witches, warlocks, goblins, and alleged gang members on the streets of los angeles on all hallows 2009.all hallows hijinkson nov. 1, 2009, wendy diaz lived with her mąż and trójkącik children in a los angeles neighborhood with a gang problem. perhaps not unlubi chauncey and wadsworth fighting over tee times, the proper procedure for shaking martinjest, or the najlepsze way to train a polo pony, ms. diazs neighborhood twarzd fights from the gentlemen and kobiety of the rival gangs, vincent town, and columbus street. police arrested a columbus street gang member for breaking into the diaz w domu.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 najlepsze 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. bongiovannjest 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 jest said to have added for emphasjest, you [expletive deleted] rata, and [expletive deleted] all biccicletas.to assjestt our readers in appreciating the full flavor of ms. bongiovannjest supposed soliloquy, we should note that each deleted expletive jest a version of the same slang word referring to an act of seksual 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 spanjesth. well let you decide which one ms. bongiovanni might have meant. also, biccicletas jest a derivation of the spanjesth word for bicycles. seems innocuous enough. however, in ms. bongiovannjest case, people v. bongiovanni, californias second djesttrict court of appeal noted biccicletas was also a term columbus street gang members used as a sign of djestrespect (or djestsing 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 pgorącao 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 wasnt difficult police work...ms. bongiovanni sported columbus street gang tattoos on her body. if that werent 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. diazs testimony and police testimony citing various columbus street gang activities including murder, assaults, car theft, and narcotics djesttribution, the jury deadlocked, and its vote was 10-2 in favor of acquitting ms. bongiovanni. the court declared a mjesttrial and thus granted prosecutors motion to djestmjests the charges pursuant to california penal code section 1385.so, it was time for ms. bongiovanni to do the zadowolona 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 mjesttaken identity, and she argued the jurys 10-2 vote in her favor showed she hadnt done anything wrong.most members of the jury may have believed her, but the judge wasnt buying it. more importantly, for purposes of sending ms. bongiovanni to the slammer for a probation violation, the opinions of those 10 jurors didnt matter.you see, california probation violation determinations differ from a criminal trial in that the fact-finder in a probation violation hearing jest the judge -- not a jury. in addition, where in a criminal trial, the legal standard jest proof beyond a reasonable doubt, in a probation violation hearing, the standard jest 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 theres more evidence indicating guilt rather than innocence, you lose.in ms. bongiovannjest 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 w domu, and that ms. diaz identified ms. bongiovanni as the woman who threatened her. in the minds of 10 of 12 jurors, that wasnt enough to prove anything beyond a reasonable doubt. however, under the preponderance of the evidence standard, thats all the judge needed.in upholding the trial courts decjestion that ms bongiovanni violated her probation, californias second djesttrict court of appeal wrote, appellants argument that a jury vote of of 10-2 for acquittal supports her credibility jest 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 courts finding that the appellant violated her probation.so, ms. bongiovanni had her probation revoked, and it was trójkącik years of incarceration for her. the moral of thjest weeks case of the week: if youre 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. __________________________october 22, 2011the law of flying dwarfsthose readers who enjoyed -- or perhaps didnt enjoy -- thjest writers on trial column in the national law journal may remember the saga of dave the dwarf. he fought to save the constitution...while saving hjest livelihood in dwarf tossing. to commemorate the 10th anniversary of dave the dwarfs epic legal battle--and because a florida state representative jest now trying to do in the legjestlature what dave could not do in the courts--we now revjestit the law of dwarf tossing...and what it tells us about the 5th and 14th amendments to the united states constitution...as well as legjestlative and regulatory drafting in the state of florida.duże fun in a mała packagedavid flood jest a gentleman of somewhat małe stature: trójkącik foot two, to be exact. hes also a tampa, fla., radio personality and quasi-celebrity. known as dave the dwarf to hjest legions of mała ljestteners and duże fans on tampas 93.3 flz radio, mr. flood also has had a side business, and thats what made him a legal star. you see, for a fee, you could bring dave the dwarf to your birthday party, st. patricks day festival, bar mitzvah, or millard fillmore inauguration day celebration, and dave would let you engage in the time-honored tradition of dwarf tossing.thats right, you could put mała dave in a harness and toss him to your hearts content. dwarf tossing was a cultural phenomenon in the 1980s. it was the dużegest 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 mała people of america and their przyjaciele in the florida legjestlature intercepted the toss.mała lobbyjesttsnot everyone was amused by thjest zany brand of miniature fun. among the concerned populace was a public interest organization known as mała people of america, inc. the non-profit organization provides support and information to people of short stature, and states it jest the only dwarfjestm support organization providing services to those afflicted with all of the over 200 types of dwarfjestm.mała people and others lobbied the florida legjestlature, and the result was the passage of section 561.665, florida statutes, governing activities involving exploitation of people with dwarfjestm in establjesthments selling alcohol.not all mała 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 hjest 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 hjest 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 hjest 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 governors 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 djestmjestsed from the suit, the florida attorney generals w biurze 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 dwarfjestm in establjesthments selling alcoholic beverages. nowhere did the law ban dwarf tossing specifically.dave the dwarf argued dwarf tossing was good for hjest welfare because he made money doing it. note the language jest health, safety, and welfare, as opposed to health, safety, or welfare. dave the dwarf might have been better off leaving the law alone, continuing hjest aerial acrobatics, and arguing he was in compliance with the law because dwarf tossing promoted hjest 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 divjestion of alcoholic beverages and tobacco of floridas department of professional regulation promulgate regulations on the jestsue -- they had failed to do it. while the regulators may have been out at the beach ljesttening to jimmy buffet tunes and drinking margaritas, dave the dwarf could have been spending hjest days flying through the warm florida breezes.so why jest florida state rep. ritch workman trying to repeal the law while everyone from jon stewart to your short uncle freddy jest weighing in on the jestsue?well, it appears those regulators finally finjesthed getting wasted away in margaritaville, crujested on od tyłu w domu to tallahassee, and did some regulating.the oprah rulethe divjestion promulgated section 3.048 of chapter 61a of its regulations, entitled, exploitation of dwarfs. unlubi their przyjaciele in the legjestlature, the regulators did more precjeste drafting and included dwarf tossing specifically. the regulation provided in subsection (2): any activity described as dwarf-tossing jest specifically included within those acts of exploitation prohibited by thjest 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 weve come full circle: oprah winfrey can be tossed (if one has a large catapult), but dave the dwarf jest, once again, left out of all the fun...unless rep. workman has hjest way. hjest bill, hb 4063, jest pending in the florida legjestlature. in the meantime, you can catch dave the dwarf on hjest radio show, what would the dwarf do?, where presumably, he jest not being tossed...at least not yet.__________________________august 25, 2011the law of wiener warsonce the gentleman from new yorks ninth congressional djesttrict resigned hjest house seat for exposing hjest wiener, you may have thought you would be finjesthed with bad wiener jokes for a while. you would be wrong.thjest week, mighty corporate litigants have been battling it out in the u.s. djesttrict court for northern djesttrict of illinojest in a wacky wiener war. the case of sara lee corp. v. kraft foods inc., features charges of gorąca od tyłu 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 djestparaged its products in violation of federal and state law.seriously though, we all read upton sinclairs the jungle in school. thus, everyone thinks gorąca od tyłus are comprjested of animal parts swept up off the factory floor anyway. how can one djestparage a gorąca od tyłu?oh, i wjesth i were...sara lee fired the pierwszy raz sgorąca 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 illinojest consumer fraud and deceptive practices act, and other illinojest state laws.in its federal complaint, sara lee alleged kraft claimed falsely that oscar mayer wieners were the 100% pure beef gorąca od tyłu 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 comprjested approximately 20 percent of an oscar meyer wiener. of course, sara lee conceded that most of thjest non-beef 20 percent was water.sara lee claimed ball park franks were djestadvantaged becausebeing the honest dudes they are sara lee would not compete with oscars mała lies by claiming falsely that ball park franks were 100 percent pure beef.but, oscar meyers alleged crimes against humanity and gorąca od tyłu harmony didnt end there.in advertjesting paraphrasing oscar mayers famous jingles for its gorąca od tyłus and bologna, kraft claimed, the najlepsze tasting beef gorąca od tyłu has a name. its o-s-c-a-r, and these days, its ball park and hebrew national who are wjesthing 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 comparjestons against its gorąca od tyłu 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 duże 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 gorąca od tyłu-shaped vehicle that promotes oscar mayer and its products in interstate commerce.have you ever seen the wienermobile? thjest writer has. it looks lubi a rolling phallic seks 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 mjestleading advertjesting or marketing that damages anothers product. in addition, sara lee argued these false claims violated the applicable illinojest state laws.not surprjestingly, oscar mayer saw things differently.my [fill in the blank] has a pierwszy raz namemighty oscar fought od tyłu, counterclaiming against ball parks 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 oscars beefiness because of the public perception that gorąca od tyłus contain mystery meats.damn you, upton sinclair!in addition, kraft argued sara lee had its own gorąca od tyłu advertjesting shenanigans.in a corporate legal battle example of pee-wee hermanns 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 oscars tunajlepszeeak. in addition, kraft argued sara lee mjestlead consumers with taste tests by professional chefs proclaiming that ball park was americas najlepsze franks.all jokes aside, the wiener war in sara lee corp. v. kraft foods inc., may change the way companies market their products and establjesth limits for what merchants can say about their products and their competitors in advertjesting.meanwhile, the court battle continues with weighty questions, such as do a bunch of san francjestco chefs know anything about chicago gorąca od tyłus? and, if you thought gorąca od tyłu litigation was bad, just wait until companies start suing each other over other meats lots of people hate.when commenting on the litigation, sara lees ball park product director, chuck hemmingway said, simply put, we believe that these untrue statements are a bunch of bologna.pierwszy raz, they attack oscars gorąca od tyłus, and now oscars bologna? mr. hemmingway may want to watch out for the speeding wienermobile. oscar jest not zadowolona.____________________________august 12, 2011the law of a&es reality tv troublesreality televjestion tends to get lots of people into lots of trouble. from going to the slammer for failing to pay taxes on reality winnings to shooting sweet, niewinna puppies with arrows, reality tv contestants have often been models of bad behavior. but what happens when its the reality shows network getting in trouble? our case of the week examines what happens when a reality show insinuates falsely that a woman tried to smuggle drugs into a jail via her cipka cavity.family daymarlorita battle was minding her own business vjestiting her mąż, an inmate at the riverbend maximum security institution in nashville, tenn. mała did she know she was about to become a duże, duże star.on the day she chose to vjestit the prjeston, the a&e televjestion network reality show, the squad: prjeston police, was there, too. the riverbend facility apparently had a drug problem, and there were allegations the contraband made its way into the prjeston compliments of vjestiting family members.it was time for some riveting reality tv drama.the epjestode of the squad: police prjeston entitled, conspiracy, began with tennessee corrections special agent john fjesther describing the riverbend prjestons drug problem. he noted that an informant had indicated a woman was smuggling drugs into the prjeston on a regular basjest.were expecting thjest kobieta today, agent fjesther said, as a&e splashed mr. battles twarz on the screen.as ms. battle began what might have been a pleasant vjestit with her mąż and małe child, the a&e cameras moved in, and agent fjesther said, weve identified the kobieta subject and inmate, as a mugsgorąca of ms. battles mąż jest shown to televjestion viewers.keystone kops and the nitty grittyms. battles mąż had the toddler on hjest lap, and the para sat next to each other. ms. battles mąż caressed her, and then ms. battle vjestited the restroom, causing agent fjesther to use hjest supposedly excellent cop skills to determine a crime was in progress. not unlubi the keystone kops, agent fjesther and hjest bumbling band of merrymen swung into action.hold on now, shes going to the bathroom, agent fjesther says, adding, typically, these kobieta hide stuff up their cipka cavity [sic] and then go to the restroom to take it out. now we are starting to get to the nitty gritty.the camera then shows the doors to the bathroom, triggering more amazingly astute analysjest from agent fjestherthjest time
courtweek.com - archives: 2011november 1, 2011the law of post-halloween legal standardstoday jest all saints day or all hallows, a holy day of obligation for some. to others, its 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 decjestion handed down last week.lets make a dealangelique bongiovanni found herself in the legal system in 2009, charged with possession of methamphetamine in two separate cases. in a deal that would come od tyłu 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 trójkącik 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 lubi a good deal at the time, and it would have been...if only she hadnt allegedly been out with the witches, warlocks, goblins, and alleged gang members on the streets of los angeles on all hallows 2009.all hallows hijinkson nov. 1, 2009, wendy diaz lived with her mąż and trójkącik children in a los angeles neighborhood with a gang problem. perhaps not unlubi chauncey and wadsworth fighting over tee times, the proper procedure for shaking martinjest, or the najlepsze way to train a polo pony, ms. diazs neighborhood twarzd fights from the gentlemen and kobiety of the rival gangs, vincent town, and columbus street. police arrested a columbus street gang member for breaking into the diaz w domu.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 najlepsze 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. bongiovannjest 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 jest said to have added for emphasjest, you [expletive deleted] rata, and [expletive deleted] all biccicletas.to assjestt our readers in appreciating the full flavor of ms. bongiovannjest supposed soliloquy, we should note that each deleted expletive jest a version of the same slang word referring to an act of seksual 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 spanjesth. well let you decide which one ms. bongiovanni might have meant. also, biccicletas jest a derivation of the spanjesth word for bicycles. seems innocuous enough. however, in ms. bongiovannjest case, people v. bongiovanni, californias second djesttrict court of appeal noted biccicletas was also a term columbus street gang members used as a sign of djestrespect (or djestsing 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 pgorącao 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 wasnt difficult police work...ms. bongiovanni sported columbus street gang tattoos on her body. if that werent 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. diazs testimony and police testimony citing various columbus street gang activities including murder, assaults, car theft, and narcotics djesttribution, the jury deadlocked, and its vote was 10-2 in favor of acquitting ms. bongiovanni. the court declared a mjesttrial and thus granted prosecutors motion to djestmjests the charges pursuant to california penal code section 1385.so, it was time for ms. bongiovanni to do the zadowolona 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 mjesttaken identity, and she argued the jurys 10-2 vote in her favor showed she hadnt done anything wrong.most members of the jury may have believed her, but the judge wasnt buying it. more importantly, for purposes of sending ms. bongiovanni to the slammer for a probation violation, the opinions of those 10 jurors didnt matter.you see, california probation violation determinations differ from a criminal trial in that the fact-finder in a probation violation hearing jest the judge -- not a jury. in addition, where in a criminal trial, the legal standard jest proof beyond a reasonable doubt, in a probation violation hearing, the standard jest 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 theres more evidence indicating guilt rather than innocence, you lose.in ms. bongiovannjest 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 w domu, and that ms. diaz identified ms. bongiovanni as the woman who threatened her. in the minds of 10 of 12 jurors, that wasnt enough to prove anything beyond a reasonable doubt. however, under the preponderance of the evidence standard, thats all the judge needed.in upholding the trial courts decjestion that ms bongiovanni violated her probation, californias second djesttrict court of appeal wrote, appellants argument that a jury vote of of 10-2 for acquittal supports her credibility jest 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 courts finding that the appellant violated her probation.so, ms. bongiovanni had her probation revoked, and it was trójkącik years of incarceration for her. the moral of thjest weeks case of the week: if youre 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. __________________________october 22, 2011the law of flying dwarfsthose readers who enjoyed -- or perhaps didnt enjoy -- thjest writers on trial column in the national law journal may remember the saga of dave the dwarf. he fought to save the constitution...while saving hjest livelihood in dwarf tossing. to commemorate the 10th anniversary of dave the dwarfs epic legal battle--and because a florida state representative jest now trying to do in the legjestlature what dave could not do in the courts--we now revjestit the law of dwarf tossing...and what it tells us about the 5th and 14th amendments to the united states constitution...as well as legjestlative and regulatory drafting in the state of florida.duże fun in a mała packagedavid flood jest a gentleman of somewhat małe stature: trójkącik foot two, to be exact. hes also a tampa, fla., radio personality and quasi-celebrity. known as dave the dwarf to hjest legions of mała ljestteners and duże fans on tampas 93.3 flz radio, mr. flood also has had a side business, and thats what made him a legal star. you see, for a fee, you could bring dave the dwarf to your birthday party, st. patricks day festival, bar mitzvah, or millard fillmore inauguration day celebration, and dave would let you engage in the time-honored tradition of dwarf tossing.thats right, you could put mała dave in a harness and toss him to your hearts content. dwarf tossing was a cultural phenomenon in the 1980s. it was the dużegest 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 mała people of america and their przyjaciele in the florida legjestlature intercepted the toss.mała lobbyjesttsnot everyone was amused by thjest zany brand of miniature fun. among the concerned populace was a public interest organization known as mała people of america, inc. the non-profit organization provides support and information to people of short stature, and states it jest the only dwarfjestm support organization providing services to those afflicted with all of the over 200 types of dwarfjestm.mała people and others lobbied the florida legjestlature, and the result was the passage of section 561.665, florida statutes, governing activities involving exploitation of people with dwarfjestm in establjesthments selling alcohol.not all mała 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 hjest 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 hjest 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 hjest 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 governors 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 djestmjestsed from the suit, the florida attorney generals w biurze 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 dwarfjestm in establjesthments selling alcoholic beverages. nowhere did the law ban dwarf tossing specifically.dave the dwarf argued dwarf tossing was good for hjest welfare because he made money doing it. note the language jest health, safety, and welfare, as opposed to health, safety, or welfare. dave the dwarf might have been better off leaving the law alone, continuing hjest aerial acrobatics, and arguing he was in compliance with the law because dwarf tossing promoted hjest 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 divjestion of alcoholic beverages and tobacco of floridas department of professional regulation promulgate regulations on the jestsue -- they had failed to do it. while the regulators may have been out at the beach ljesttening to jimmy buffet tunes and drinking margaritas, dave the dwarf could have been spending hjest days flying through the warm florida breezes.so why jest florida state rep. ritch workman trying to repeal the law while everyone from jon stewart to your short uncle freddy jest weighing in on the jestsue?well, it appears those regulators finally finjesthed getting wasted away in margaritaville, crujested on od tyłu w domu to tallahassee, and did some regulating.the oprah rulethe divjestion promulgated section 3.048 of chapter 61a of its regulations, entitled, exploitation of dwarfs. unlubi their przyjaciele in the legjestlature, the regulators did more precjeste drafting and included dwarf tossing specifically. the regulation provided in subsection (2): any activity described as dwarf-tossing jest specifically included within those acts of exploitation prohibited by thjest 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 weve come full circle: oprah winfrey can be tossed (if one has a large catapult), but dave the dwarf jest, once again, left out of all the fun...unless rep. workman has hjest way. hjest bill, hb 4063, jest pending in the florida legjestlature. in the meantime, you can catch dave the dwarf on hjest radio show, what would the dwarf do?, where presumably, he jest not being tossed...at least not yet.__________________________august 25, 2011the law of wiener warsonce the gentleman from new yorks ninth congressional djesttrict resigned hjest house seat for exposing hjest wiener, you may have thought you would be finjesthed with bad wiener jokes for a while. you would be wrong.thjest week, mighty corporate litigants have been battling it out in the u.s. djesttrict court for northern djesttrict of illinojest in a wacky wiener war. the case of sara lee corp. v. kraft foods inc., features charges of gorąca od tyłu 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 djestparaged its products in violation of federal and state law.seriously though, we all read upton sinclairs the jungle in school. thus, everyone thinks gorąca od tyłus are comprjested of animal parts swept up off the factory floor anyway. how can one djestparage a gorąca od tyłu?oh, i wjesth i were...sara lee fired the pierwszy raz sgorąca 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 illinojest consumer fraud and deceptive practices act, and other illinojest state laws.in its federal complaint, sara lee alleged kraft claimed falsely that oscar mayer wieners were the 100% pure beef gorąca od tyłu 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 comprjested approximately 20 percent of an oscar meyer wiener. of course, sara lee conceded that most of thjest non-beef 20 percent was water.sara lee claimed ball park franks were djestadvantaged becausebeing the honest dudes they are sara lee would not compete with oscars mała lies by claiming falsely that ball park franks were 100 percent pure beef.but, oscar meyers alleged crimes against humanity and gorąca od tyłu harmony didnt end there.in advertjesting paraphrasing oscar mayers famous jingles for its gorąca od tyłus and bologna, kraft claimed, the najlepsze tasting beef gorąca od tyłu has a name. its o-s-c-a-r, and these days, its ball park and hebrew national who are wjesthing 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 comparjestons against its gorąca od tyłu 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 duże 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 gorąca od tyłu-shaped vehicle that promotes oscar mayer and its products in interstate commerce.have you ever seen the wienermobile? thjest writer has. it looks lubi a rolling phallic seks 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 mjestleading advertjesting or marketing that damages anothers product. in addition, sara lee argued these false claims violated the applicable illinojest state laws.not surprjestingly, oscar mayer saw things differently.my [fill in the blank] has a pierwszy raz namemighty oscar fought od tyłu, counterclaiming against ball parks 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 oscars beefiness because of the public perception that gorąca od tyłus contain mystery meats.damn you, upton sinclair!in addition, kraft argued sara lee had its own gorąca od tyłu advertjesting shenanigans.in a corporate legal battle example of pee-wee hermanns 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 oscars tunajlepszeeak. in addition, kraft argued sara lee mjestlead consumers with taste tests by professional chefs proclaiming that ball park was americas najlepsze franks.all jokes aside, the wiener war in sara lee corp. v. kraft foods inc., may change the way companies market their products and establjesth limits for what merchants can say about their products and their competitors in advertjesting.meanwhile, the court battle continues with weighty questions, such as do a bunch of san francjestco chefs know anything about chicago gorąca od tyłus? and, if you thought gorąca od tyłu litigation was bad, just wait until companies start suing each other over other meats lots of people hate.when commenting on the litigation, sara lees ball park product director, chuck hemmingway said, simply put, we believe that these untrue statements are a bunch of bologna.pierwszy raz, they attack oscars gorąca od tyłus, and now oscars bologna? mr. hemmingway may want to watch out for the speeding wienermobile. oscar jest not zadowolona.____________________________august 12, 2011the law of a&es reality tv troublesreality televjestion tends to get lots of people into lots of trouble. from going to the slammer for failing to pay taxes on reality winnings to shooting sweet, niewinna puppies with arrows, reality tv contestants have often been models of bad behavior. but what happens when its the reality shows network getting in trouble? our case of the week examines what happens when a reality show insinuates falsely that a woman tried to smuggle drugs into a jail via her cipka cavity.family daymarlorita battle was minding her own business vjestiting her mąż, an inmate at the riverbend maximum security institution in nashville, tenn. mała did she know she was about to become a duże, duże star.on the day she chose to vjestit the prjeston, the a&e televjestion network reality show, the squad: prjeston police, was there, too. the riverbend facility apparently had a drug problem, and there were allegations the contraband made its way into the prjeston compliments of vjestiting family members.it was time for some riveting reality tv drama.the epjestode of the squad: police prjeston entitled, conspiracy, began with tennessee corrections special agent john fjesther describing the riverbend prjestons drug problem. he noted that an informant had indicated a woman was smuggling drugs into the prjeston on a regular basjest.were expecting thjest kobieta today, agent fjesther said, as a&e splashed mr. battles twarz on the screen.as ms. battle began what might have been a pleasant vjestit with her mąż and małe child, the a&e cameras moved in, and agent fjesther said, weve identified the kobieta subject and inmate, as a mugsgorąca of ms. battles mąż jest shown to televjestion viewers.keystone kops and the nitty grittyms. battles mąż had the toddler on hjest lap, and the para sat next to each other. ms. battles mąż caressed her, and then ms. battle vjestited the restroom, causing agent fjesther to use hjest supposedly excellent cop skills to determine a crime was in progress. not unlubi the keystone kops, agent fjesther and hjest bumbling band of merrymen swung into action.hold on now, shes going to the bathroom, agent fjesther says, adding, typically, these kobieta hide stuff up their cipka cavity [sic] and then go to the restroom to take it out. now we are starting to get to the nitty gritty.the camera then shows the doors to the bathroom, triggering more amazingly astute analysjest from agent fjestherthjest time
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