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Cooner v. State

Alabama Court of Criminal Appeals

June 1, 2018

Douglas Howard Cooner
State of Alabama

          Appeal from Jefferson Circuit Court (CC-15-2621)

          JOINER, JUDGE

         Douglas Howard Cooner was convicted of three counts of second-degree theft of property, see § 13A-8-4, Ala. Code 1975, two counts of first-degree perjury, see § 13A-10-101, Ala. Code 1975, one count of third-degree perjury, see § 13A-10-103, Ala. Code 1975, and three counts of unauthorized practice of law, see § 34-3-1, Ala. Code 1975.[1] For the second-degree-theft-of-property and first-degree-perjury convictions, Cooner was sentenced to five years' imprisonment; those sentences were split and Cooner was ordered to serve 60 days in the Jefferson County jail followed by two years' probation. For the third-degree-perjury and unauthorized-practice-of-law convictions, Cooner was sentenced to serve six months' in the Jefferson County jail; those sentences were suspended. The circuit court imposed all appropriate fines and fees.[2]

         Facts and Procedural History

          The State's evidence at trial tended to show (1) that Cooner committed second-degree theft-of-property when he knowingly obtained by deception control over between $1, 500 and $2, 500 belonging to Mary Mwai with the intent to deprive her of her property; when he knowingly obtained by deception control over $2, 400 belonging to Cesar Perez-Martinez and Angelica Romo-Duarte with the intent to deprive them of their property; and when he knowingly obtained by deception control over $2, 400 belonging to Victor Huerta-Cazares and Esmeralda Penaflor-Nunez with the intent to deprive them of their property and (2) that Cooner committed first-degree perjury when he knowingly swore falsely in applications for asylum for Perez-Martinez and Huerta-Cazares when he asserted that they faced gang-related threats in their home country of Mexico, and those false statements were material to the applications for asylum. Specifically, the evidence showed the following.

         Mary Mwai hired Cooner, an immigration attorney, to assist her in obtaining legal status after she married a United States citizen. Mwai testified that she mainly dealt with a woman named Adela, who was one of Cooner's employees. On August 5, 2014, Mwai paid Cooner $1, 300.[3] Mwai testified that she later paid Cooner $1, 500 for "immigration" and that she was told that Cooner's office did not give receipts for that specific transaction but that she would receive a receipt in the mail. Two weeks after Mwai paid the $1, 500, Adela called Mwai and told her to bring $1, 500 to Cooner's office, once again for "immigration." Mwai went to Cooner's office, where both Cooner and Adela claimed that Mwai had never submitted the initial $1, 500 "immigration" payment. Cooner told Mwai she needed to pay $1, 500 in order for him to proceed with her case. Mwai testified that she eventually retained a different attorney and that her case progressed. Mwai requested a refund from Cooner but never received one.

         Cesar Perez-Martinez and his wife, Angelica Romo-Duarte, hired Cooner to assist them in obtaining legal status in the United States; they each testified that at no time were either of them seeking asylum. On July 28, 2014, they met with Cooner, signed an attorney-client representation agreement, and paid a $1, 500 retainer.[4] Cooner estimated that the entire case would cost between $5, 000 and $6, 000. After signing the agreement, Perez-Martinez and Romo-Duarte dealt mostly with a woman named "Coco, "[5] one of Cooner's employees. Coco told Perez-Martinez and Romo-Duarte that the more money they paid, the more quickly their case would progress.

         Romo-Duarte testified that they received a notice from the United States government directing them to submit their fingerprints to the Department of Homeland Security ("DHS"). After doing so, Romo-Duarte contacted Coco to inquire about the next step in their case. Coco told Romo-Duarte to pay a $400 legal fee, which she and Perez-Martinez paid on September 10, 2014.[6] Romo-Duarte testified that this fee was not specified in the agreement. On January 23, 2015, Perez-Martinez and Romo-Duarte went to Cooner's office to pay him $500.[7] While there, Romo-Duarte spoke with Cooner, who told her that "everything was good because we got the fingerprints and all this stuff and everything will be okay." (R. 376.)

         Victor Huerta-Cazares and his wife, Esmeralda Penaflor-Nunez, hired Cooner to assist them in obtaining green cards; Huerta-Cazares testified that at no time were he or Penaflor-Nunez seeking asylum. On February 4, 2014, they signed an attorney-client representation agreement and paid a $1, 500 retainer fee.[8] After signing the agreement, Huerta-Cazares and Penaflor-Nunez dealt mostly with Coco. Huerta-Cazares testified that someone from Cooner's office "would give us a call to go there and go see them and make a payment for something."[9] (C. 320.) With respect to documents Cooner filed on his behalf, Huerta-Cazares testified that the office staff asked him only to confirm his name and address and to sign the documents. Huerta-Cazares stated, "I never went through them with nobody. I said I went and signed where they told me to sign." (R. 323.)

         The State introduced the asylum applications Cooner had prepared for Perez-Martinez, Romo-Duarte, Penaflor-Nunez, and Huerta-Cazares as portions of its Exhibits 1, 2, 6, and 7, respectively. Each application indicated that the applicant was seeking asylum or the withholding of removal based on political opinion, membership in a particular social group, and torture convention. A box marked "Yes" appeared in each application under the following questions: "Have you, your family, or close friends or colleagues ever experienced harm or mistreatment or threats in the past by anyone?";[10] "Do you fear harm or mistreatment if you return to your home country?"; and "Are you afraid of being subjected to torture in your home country or any other country to which you may be returned?" (C. 301-02; 521-22; 585-86; 615-16.) The following language appeared in each application:

"I was threatened by gang members in my neighborhood to sell drugs and commit crimes or my family and I would pay a horrible price.
"When I left for the United States they told family members that I could not hide and sooner or later I would be back and they would get me. I believe they would seek revenge, even though I left years ago. In Mexican small villages everyone knows everyone and the police are corrupt and don't help the people.
"I fear the gang members in my hometown."

(C. 301-02; 521-22; 585-56; 615-16.) Perez-Martinez, Romo-Duarte, and Huerta-Cazares all testified that they did not express to Cooner or his employees any fear of gang members in their hometowns. Perez-Martinez, Romo-Duarte, and Huerta-Cazares each identified Cooner in court.

         During Cooner's trial, Charles Kuck, an immigration attorney and professor of law at Emory University, testified as an expert in the field of immigration law. Kuck testified that all applicants seeking the protection of the United States must show that they fear persecution in their home country based upon their race, nationality, religion, political opinion, and/or being part of a socially visible group subject to persecution from either their government or a group their government cannot control. Kuck testified that an individual seeking asylum signs the application under penalty of perjury and stated, "You don't have to raise your right hand and swear. By signing it, you are saying that this information is true and correct." (R. 284-85.) Kuck explained "why it's a bad idea to file a petition for asylum where you know you have no grounds for a petition for asylum, " stating:

"Well, if you file an application for asylum and you're not qualified for it, either because it's not one of the five grounds or you waited too long, it's longer than a year, you are going to be put into deportation proceedings. That is going to happen. It might take three years, but you will absolutely be put in deportation proceedings. And if you've been in the country illegally for 10 or 15 years or 5 or 8 years and you're in deportation proceedings, your chance of being deported is excellent, very, very high. You're looking at grant rates of asylum in immigration court in Atlanta[11] between one and two percent. That means 1 to 2 percent of the people that apply for asylum is granted; 98 or 99 [percent] are going to be deported. So basically if you file for asylum and you really don't have a case, you're going to be deported. It's just a matter of time."

(R. 306-07.)

         The State's evidence at trial also showed: (1) that Cooner committed third-degree perjury when he swore falsely during immigration proceedings associated with Perez-Martinez that he was an attorney in good standing and not subject to any order of any court suspending or disbarring him from practicing law and (2) that Cooner engaged in the unauthorized practice of law when he represented Perez-Martinez, Huerta-Cazares, and Mwai in immigration proceedings after the Supreme Court of Alabama affirmed the Alabama State Bar's order disbarring Cooner from the practice of law. Specifically, the evidence showed the following.

         In his attestation to the immigration court in Perez-Martinez's case filed on September 18, 2014, Cooner stated that he was a member of the Puerto Rico Supreme Court Bar, that he was eligible to practice law, that he was a member in good standing, and that he was not subject to any order disbarring, suspending, or otherwise restricting him in the practice of law. The same was true in his representation of Huerta-Cazares and Mwai. Contrary to Cooner's attestation, however, the record indicates that the Alabama Supreme Court notified the Alabama State Bar ("the ASB") that, effective September 10, 2013, Cooner was "disbarred and excluded from the practice of law in the courts of Alabama." (C. 724.) The record further indicates that Cooner was not, and never had been, licensed by the Puerto Rico Supreme Court to practice law. Finally, at the time he filed his attestation in Perez-Martinez's case, Cooner had been disbarred from practicing before the Department of Homeland Security, the Board of Immigration Appeals, and the immigration courts.

         According to Charles Kuck, only attorneys and "accredited representatives"[12] were permitted to charge fees for their representation of individuals in immigration courts and that a "reputable person" who is not an attorney may represent an individual with permission from an immigration judge. In order to practice as an attorney in immigration courts, Kuck explained, the attorney must be licensed and admitted to practice law in at least one state in the United States and must file a notice to appear for every case in which the attorney is involved. With respect to the notice-of- appearance form, Kuck testified on direct examination by the State:

"This form is used to give to the court typically at the initial start of a hearing that 'I'm a lawyer that's representing this individual or I'm otherwise authorized to represent somebody in immigration court.' It's executed under penalty of perjury. And you sign your name and date it and give it to the court. And the second page of the back of the document, you would then have to give a copy of it to the government lawyer and you certify that you have given a copy to the court.
"[PROSECUTOR:] Can you read the certification, not what's typed in but what's preprinted on the form?
"[KUCK:] There are actually two parts here. The first is a check box where it says 'I am an attorney eligible to practice law and a member in good standing of the bar of the highest court of the following states, possessions, territories, commonwealths, or the District of Columbia, and I am not subject to any order disbarring, suspending or otherwise restricting me in the practice of law.' And then you put in the court that you're a member of. And at the bottom of the first page is a signature line. But above the signature line, it says, 'I hereby enter my appearance as attorney or representative for and at the request of the party named above. I have read and understand the statements provided on the reverse of this form'--and those are preprinted information about appearances and things like that. 'Conditions governing appearances represent before the immigration courts and I declare under penalty of perjury under the laws and methods of America that the foregoing is true and correct.' And then you sign your name and put your ID number for the court and date it."

(C. 287-88.)

         Kuck further testified that the Board of Immigration Appeals ("BIA"), as part of DHS, is responsible for attorney discipline and has the authority to suspend attorneys and inform them of their ineligibility to practice in immigration court. According to Kuck, "if somebody is disbarred by a state, then the [BIA] will say that person cannot practice in immigration court." (R. 272.) Moreover, Kuck explained, a suspended attorney cannot represent individuals in immigration court as an accredited representative or a reputable person.

         Catherine O'Connell, disciplinary counsel for DHS, echoed Kuck's testimony. Specifically, she testified that she is responsible for matters involving representation and appearances of attorneys and other representatives before the United States Citizenship and Immigration Services, which is the sub-agency of DHS that deals with benefit requests such as obtaining visas and work permits. O'Connell testified that, in order to represent an individual in immigration court, an attorney "has to be eligible to practice law and in good standing in the state where they're licensed. They can't be under any order restricting their ability to practice law. So they can't be suspended or disbarred or inactive." (R. 402.) O'Connell stated that the BIA has the authority to disbar attorneys from practicing in immigration courts and that, "[i]f an attorney has been disbarred by their state, we [as disciplinary counsel] ask that they be disbarred and prohibited from appearing in immigration matters." (R. 404.) O'Connell testified that she first became aware of Cooner in March 2013 after receiving a complaint from a DHS employee. O'Connell did not begin proceedings against Cooner at that time because she learned that the ASB had disbarred Cooner and that he was appealing the order of disbarment. On January 10, 2014, after learning that the Alabama Supreme Court had issued the final order of disbarment, O'Connell filed a notice of intent to discipline Cooner and recommended that he be disbarred from practicing in immigration court.[13] O'Connell testified that her actions were based entirely upon the disbarment proceedings against Cooner in Alabama. On February 4, 2014, the BIA issued an order immediately suspending Cooner pending the final disposition of the DHS's disciplinary proceeding.[14] On February 7, 2014, Cooner answered the notice of intent to discipline and moved to set aside the order of suspension on the ground that he was "not subject to a final order of disbarment in the State of Alabama" because, he said, the order was "the subject of an appeal currently pending before the Supreme Court of Alabama."[15] (C. 766.) O'Connell testified that she then filed a motion for summary adjudication because the Alabama Supreme Court indicated that its order was final and that Cooner had been disbarred in Alabama. On March 12, 2014, the BIA issued a final order of discipline disbarring Cooner from practicing before the DHS, the BIA, and immigration courts.[16] O'Connell explained that, as a result, Cooner is "basically prohibited from representing people with respect to any immigration matter." (R. 418.) O'Connell testified that, as of February 4, 2014--the date the BIA suspended Cooner--Cooner was no longer permitted to practice in immigration courts but that, because the BIA mails its orders, Cooner was likely unaware that his suspension became effective on that date until he received the suspension order via the mail.

         Mark Moody, assistant general counsel for the ASB, testified that the ASB is responsible for, among other things, the licensing and discipline of attorneys in Alabama. Moody explained that the Alabama Rules of Professional Conduct, which are authorized by the Alabama Supreme Court, set forth guidelines for how attorneys must conduct themselves. Moody testified that money given to an attorney by a client as a retainer is supposed to be placed into a client trust fund that is billed against as the attorney performs work--in other words, Moody said, the money is held in trust and is taken out as the attorney earns it. Moody stated that nonrefundable fees charged for work an attorney does not perform are impermissible under the Rules of Professional Conduct.

         Moody testified that "[d]isbarment means a lawyer has had his license revoked to practice for a period of five years." (R. 483.) Moody explained the process of disbarment as follows: A complaint is filed against an attorney, and the attorney has 14 days to respond, although extensions are routinely granted. The response is reviewed by at least two attorneys in the ASB's office of general counsel, and those attorneys must agree on the initial disposition of the complaint, which is either to summarily dismiss the complaint or to open an official investigation. If an investigation is opened, it is conducted by the ASB and/or a local grievance committee. After the investigation is complete, a report is submitted to ASB's disciplinary commission, which consists of four attorneys. The disciplinary commission determines the appropriate discipline, which ranges from dismissing the complaint to filing formal charges. If formal charges are filed, the disciplinary commission determines, based on the investigation report, the facts that support the attorney's possible violation of the Rules of Professional Conduct. At that point, the attorney files an answer, and the discovery phase begins. Both parties then file whichever pleadings they deem necessary for their case and, if the case is not settled, a hearing is held before a disciplinary panel. A disciplinary panel consists of a disciplinary hearing officer ("DHO")--whom Moody compared to a trial judge--and three bar commissioners and one layperson--whom Moody compared to a jury. At the conclusion of the hearing, the DHO enters a report and order setting out the findings of fact and resulting punishment. The attorney may then appeal the decision to the Alabama Supreme Court. Once that Court makes a decision and issues a certificate of judgment, the decision is final.

         Moody testified that he was assigned to Cooner's case to continue the appeals process after the assistant general counsel handling Cooner's case retired.[17] Moody stated that Cooner had been licensed to practice law in Alabama in 1999. A complaint was filed against Cooner in 2005, and a hearing on that complaint was set for some time in 2008 but did not occur because Cooner requested and was granted multiple continuances. Cooner's hearing was eventually held in 2010, and he was disbarred as a result. Moody testified that the ASB entered three separate orders of disbarment--one in 2010, one in 2012, and one in 2013.[18] The 2010 and 2012 orders of disbarment were remanded by the Alabama Supreme Court; the 2013 order, however, was affirmed, and the certificate of judgment was issued on September 10, 2013. On October 16, 2013, Julia Jordan Weller, the Clerk of the Alabama Supreme Court, notified the ASB of Cooner's disbarment in a letter stating:

"Pursuant to the September 10, 2013, Certificate of Judgment issued by this Court in the matter of Douglas H. Cooner v. Alabama State Bar (Appeal from ASB No. 2002-150(A)), a notation has been entered on the Supreme Court Roll of Attorneys that Douglas Howard Cooner is disbarred and excluded from the practice of law in the courts of Alabama effective September 10, 2013."

(C. 724.)[19] Moody testified that the ASB reached out to either Cooner or his attorney to inform Cooner that the Alabama Supreme Court had ordered him not to practice law but that the ASB received no response. Moody then contacted DHS to inform it that Cooner's disbarment was final. In addition, the ASB appointed as trustee Freddy Rubio to inventory Cooner's files and return them to Cooner's clients pursuant to Rule 29 of the Alabama Rules of Disciplinary Procedure.[20]

         Moody further testified that attorneys licensed to practice in Alabama are required to inform the ASB if they are licensed to practice in any other jurisdictions. According to Moody, he had received information that Cooner had been holding himself out as licensed in Puerto Rico and Tennessee. The ASB contacted the United States District Court in Puerto Rico and the Tennessee Board of Professional Responsibility, which are the licensing agencies for those jurisdictions, and received information showing that Cooner was not licensed to practice law in either Puerto Rico or Tennessee.[21]

         Freddy Rubio testified that he is a Birmingham attorney who primarily represents Hispanic immigrants and that he practices mainly in personal-injury law and criminal defense but does not practice immigration law. Rubio stated that he also represents the Birmingham City Council and does some business litigation. Pursuant to Rule 29 of the Alabama Rules of Disciplinary Procedure, the ASB appointed Rubio to serve as trustee over Cooner's client files. Specifically, the February 23, 2015, order appointing Rubio as trustee instructed him

"to secure and inventory the files of Douglas Howard Cooner, to take such action as is reasonable and necessary to protect the interests of Douglas Howard Cooner, and his clients, to secure and audit the trust account(s) of Douglas Howard Cooner, and to send notification of his disbarment to his clients."

(C. 731.) The addendum to that order explained:

"The purpose of [Rule 29, Ala. R. Disc. P.] is to protect clients' interest when a lawyer has become incapacitated, has disappeared, died, been suspended or disbarred, and has failed to notify his clients of the proper action that they should take. When a trustee is appointed in this situation, it is his/her responsibility to inventory the files and to take other action reasonably necessary to protect the clients' immediate interests. What this usually entails is to notify the clients that they should pick up their file and seek the services of another lawyer. The trustee in this regard can even recommend another lawyer to the clients. Nevertheless, as always, the decision as to which lawyer represents the client is ultimately that of the client."

(C. 733.) Rubio clarified that, when a lawyer is disbarred, a trustee is appointed pursuant to Rule 29 to protect the clients', not the lawyer's, interests.

         In March 2015, Rubio was present during the execution of a search warrant at Cooner's law office.[22] According to Rubio, Cooner's law office appeared to be in operation because the lights were on, the telephones were working, and clients came to see Cooner while the search warrant was being executed. On March 24, 2015, Rubio received approximately 2, 500 of Cooner's files from the Birmingham Police Department that had been seized as a result of the search; because there were so many files, Rubio had to purchase filing cabinets and rent a storage unit to accommodate them. Rubio testified that the files remained locked and secured in the storage unit and that only his office had direct control of the files.

         In an effort to return the files to Cooner's former clients, Rubio separated the active files from the closed files and attempted to contact those clients whose files were open. Rubio testified that, in April 2015, he obtained for his office a telephone number dedicated solely to receiving calls relating to Cooner's cases; that he posted a notice on the door of Cooner's office that listed Rubio's name, his firm's address, and the dedicated telephone number and that stated that Cooner's files were in Rubio's possession; that he used social media and news-media outlets that were oriented to the local Hispanic community to inform Cooner's clients to get in contact with Rubio to obtain their files.

         Rubio testified that his office would take names on Mondays through Thursdays of clients wanting to retrieve their files, that an employee dedicated to Cooner's case would retrieve the files, and that on Fridays from noon to 5 P.M., Cooner's clients would retrieve their files. In order to retrieve their files, clients had to show their identification and sign a receipt. Within a one-year period, Rubio had returned approximately 1, 000 files to Cooner's former clients. About 95% of people who requested their files received them, while Rubio was unable to locate the remainder of the requested files.

         At some point, Rubio became concerned with the cost of storing the files. With the permission of the ASB, he moved the files to a secure, locked location in a building owned by the Hispanic Interest Coalition of Alabama ("HICA"). If Rubio needed to retrieve any files, he collaborated with the immigration attorney who worked at HICA at that time. Rubio testified that he did not release the files to law enforcement because they contained some privileged information.

         After the State rested, Cooner moved for a judgment of acquittal on the basis that the State had not presented a prima facie case of each of the charges against him. The trial court denied Cooner's motion. After the defense rested, Cooner renewed his motion for a judgment of acquittal, and the trial court again denied it. As noted above, Cooner was convicted of three counts of second-degree theft of property, two counts of first-degree perjury, one count of third-degree perjury, and three counts of unauthorized practice of law.

         On June 29, 2017, Cooner filed a motion for a new trial, arguing, among other things, that "the prosecution failed to prove a prima facie case against the defendant of each and every element of the alleged offenses charged" and that "the court erred in denying the defendant's various pretrial motions concerning spoliation of evidence as a violation of the defendant's due process rights." (C. 219.) Although the case-action-summary sheet shows a June 30, 2017, entry stating "NEW TRIAL/DOCKETED" and a July 5, 2017, entry states "ORDER GENERATED FOR NEW TRIAL--RENDERED AND ENTERED, " the record does not contain a transcript for a hearing on Cooner's motion or an order ruling on that motion. Accordingly, we presume that the trial court correctly disposed of Cooner's motion for a new trial.[23]



         Cooner contends that the trial court erred when it denied his motion to dismiss the indictment against him. (Cooner's brief, p. 31.) According to Cooner, he "was denied due process after the State's agents seized material evidence then destroyed it before trial in bad faith" and, "[w]ithout the information in these files, [he] and his lawyers could not present an effective defense." (Cooner's brief, p. 31.) Specifically, Cooner argues that he

"was unable to show notes and legal memoranda created during client meetings where they discussed the client's basis for asylum. (R. 24.) Cooner could not show the dates when he or his staff completed legal work for the clients to prove he was licensed at the time. (R. 24.) Cooner could not prove he appealed his disbarment from the U.S. Immigration Court because his documents were destroyed. (R. 771.)."

(Cooner's brief, p. 36.)

         On July 25, 2016, Cooner filed a motion to require the State "to produce any and all legal files, memoranda or other matters seized from [his] office or person ... and to make it available immediately for use in the preparation of a defense." (C. 80.) Cooner argued that, without such production, he would be denied due process, compulsory process, and an opportunity for a fair trial because, he said, the requested items were relevant to his defense and "likely contain[ed] important matters for the impeachment of prosecution witnesses." (C. 79.) Cooner stated that, in the event the State could not or would not produce the items, "dismissal of the indictment [was] the only remedy available for such loss or spoliation of necessary evidence."[24] (C. 80.)

          On December 6, 2016, Cooner filed a renewed motion to dismiss the indictment against him.[25] Cooner alleged that the State's case was "predicated on evidence of legal work seized by the State" from his law office and that, "[i]n order to adequately defend himself, [Cooner was] entitled to review the exact files of individuals whose complaints formed the basis of the indictments" against him. (C. 124.) Cooner stated that, although several paper files, boxes, and computers were eventually returned to him, those "items were either destroyed or in complete disarray." (C. 125.) Furthermore, Cooner stated that he was "unable to locate any single file which relates to the parties named in the indictments" and that those files contained information that was material to his defense. (C. 125.)

         The State responded that Cooner's argument did not meet the requirements of Scott v. State, 163 So.3d 389 (Ala.Crim.App.2012), because, it said: (1) the State did not act in bad faith because the property was seized pursuant to a valid search warrant and was "placed in the care and custody of the Alabama State Bar pursuant to an order authorized by the laws of Alabama" (C. 135); (2) the seized property was not material to Cooner's defense because the State would not be relying on the seized property as evidence in its case-in-chief; and (3) Cooner had suffered no prejudice to his defense.

         On January 11, 2017, the circuit court held a hearing on Cooner's motion. The State asserted that it was "not going to use the evidence seized as part of the State's evidence" but instead would use "official records of the court clerk" to prove its case. (R. 7-8). The circuit court responded that the seized evidence was potentially exculpatory and that Cooner was unable to determine its exculpatory value because it could not be retrieved. The following discussion occurred:

"[THE STATE]: ... [W]hat [Cooner] did file [with the immigration court] is coming into evidence. We've met with the defense counsel. We've shown them the discovery. We've shown them what we intend to introduce. You know, we've shown them what we believe are the perjurious statements that this defendant said when he said he had no pending disciplinaries and was a lawyer in good standing and when he said something that his clients say 'We never represented that we qualified for asylum by being in fear of our lives if we go back to our homeland.' You know, what could be in the file to disagree with that? And there's been no representation. The motions have merely said there's exculpatory evidence. Well, we feel respectfully, Your Honor, that he can't say there may be exculpatory evidence in that. He's the one that's in possession of those files. If there was something in there, we think he should have to plead what's in the file that would prove 'I'm not guilty of this crime or would tend to prove I'm not guilty of this crime' is fill in the blank, whatever it is that he thinks would be in the file. We can't dispute a vague reference to where he says-"....
"THE COURT: Well, let me ask you this, did you have the names of the people he allegedly took money from when he was disbarred? Why wouldn't you just write a search warrant to go in there and retrieve just the files involved in the alleged criminal activity instead of all the files in his possession?
"[THE STATE]: Judge, we also as we were proceeding we were having to deal with his clients filing U-visa applications. And U-visa is where someone gets a visa based on the fact that they are a material witness. And even though we're not indicting a particular case, they can apply for U-visa. We need to know that they are his clients. They need to be able to talk to Mr. Rubio and for us to be able to verify that, indeed, they are a material witness to a crime in which he perpetrated. There's a variety of reasons why we felt we needed those items. And in particular while the Birmingham Police Department didn't have space to store all these things, the state bar did. And if that was in error, then--

"THE COURT: Well, I don't know. But I'm just reading the language of the statute. The warrant itself says 'to seize financial records showing payment to the defendant by any client of said law service.' I don't know how long Mr. Cooner has been practicing law but that covers a lot of ground. I mean, you just go in there and seize everybody's records whether they're--any allegation that there was any criminal activity in all these other files or not? Is that what this search warrant provides for?

"[THE STATE]: Well, Judge, if we were here about a suppression motion, I guess I could talk to you about that. But we've already said we're not intending to prove--

"THE COURT: Well, let's just assume there were files that were seized that really don't show any evidence of any crimes.

"[THE STATE]: Yes, sir.
"THE COURT: Shouldn't the defendant have the right to get those files back?
"[THE STATE]: We gave him back every file we were still in possession of. The only files that--

"THE COURT: You're talking about what you're in possession of. But see, y'all have turned them over to the state bar. So you don't know what they did with them, do you?

"[THE STATE]: Judge, that's accurate. The representation we have is that the files that weren't returned to him were returned to the actual clients.
"[DEFENSE COUNSEL]: The indictments on the theft charges with the specific victims that the State has alleged, the indictments came down on March 6th, 2015. The search warrant was executed. And all these files and computers and other items were seized by the police and eventually turned over to the state bar and the trustee on March 23rd, 2016. Judge, at the time--
"... At the time of the procedure, the State knew who the victims of these theft charges were. And the State could have, as the Court stated, that the State of Alabama could have simply seized those files for those individuals. But they took everything. They took seven computers with the serial numbers that are listed on the search warrant return. And on the search warrant return, it lists assorted files and boxes. And it's a very vague statement as far as what was taken. There was never any inventory of items that were seized that was ...

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