Attorney Calls For Dismissal of Gun Charges Against Garcia Zarate

SAN FRANCISCO, CA — A lawyer argued in federal court in San Francisco Tuesday that his client, an undocumented Mexican immigrant acquitted last year of state murder charges, is being made a "poster illegal immigrant" by President Donald Trump and U.S. Attorney General Jeff Sessions in their crusade against unlawful immigration and sanctuary cities.

Jose Inez Garcia Zarate was acquitted in San Francisco Superior Court last year of state charges of the murder of Kate Steinle, who was fatally shot on Pier 14 in San Francisco on July 1, 2015, with a ricocheting bullet from a gun held by Garcia Zarate.

He claimed the shooting was an accident.

Garcia Zarate, represented by veteran defense attorney Tony Serra, now separately faces two federal charges of being an ex-felon and an undocumented person in possession of a gun.

U.S. District Judge Vince Chhabria heard arguments Tuesday on a key pretrial defense motion: a bid by Serra for the right to gather evidence to support his claim that the federal case is unfair vindictive prosecution
following the murder case acquittal.

Chhabria told Serra at the start of the hearing that the defense has an "uphill" battle to win the motion. But he deferred ruling on the request and will issue a written decision later.

In the meantime, Chhabria scheduled Garcia Zarate's federal jury trial to begin Oct. 1. The trial may take up to two weeks.

Garcia Zarate, who is being held without bail, appeared at the hearing in red jail clothing. He listened to the arguments through a translator but did not speak.

In his arguments to Chhabria, Serra cited Trump's tweet the day of the Nov. 30 murder acquittal calling the verdict "disgraceful" and "a travesty of justice." He noted a Dec. 1 statement in which Sessions said the U.S. Department of Justice was "working right now to bring any charges that are appropriate" against Garcia Zarate.

"The poster illegal immigrant that they campaigned about has been acquitted by a sanctuary city," Serra argued.

The defense contends Garcia Zarate is being punished for exercising his constitutional right to have a jury trial in the Superior Court case.

Chhabria appeared doubtful, however, that Serra laid sufficient foundation for a claim of vindictive prosecution.

The judge commented that even if there was communication between the Justice Department and local federal prosecutors, "I don't see how that's the basis of vindictive prosecution."

Assistant U.S. Attorney Shiao Lee argued there are ample court precedents allowing U.S. prosecutors to pursue federal charges separately from related state charges.

"The federal government is entitled to take into consideration the outcome of the other case," she contended.

At the end of the hearing, Serra urged Chhabria at least to look at potential evidence, such as any relevant government memos or emails that may exist, privately in his chambers and then decide whether the defense is entitled to such materials as a basis for a future bid for dismissal of the case on grounds of vindictive prosecution.

Outside of court after the hearing, Serra said, "He told us it was an uphill argument, but at least he's entertaining" the idea of looking at potential materials privately.

"We're saying over and over that Trump made the case for us," Serra said.

In the Superior Court case, Garcia Zarate was acquitted of murder and assault with a deadly weapon but was convicted of a state charge of being an ex-felon in possession of a weapon.

He contended he found the gun, which was stolen several days earlier from the SUV of an off-duty U.S. Bureau of Land Management ranger, under a bench and that it discharged accidentally when he picked it up.
Steinle, 32, a Pleasanton native who was living and working in San Francisco, was struck in the back by a bullet that ricocheted off part of the pier and hit her 90 feet away.

Garcia Zarate was sentenced in San Francisco Superior Court on Jan. 5 to three years in prison, which he had already served while awaiting trial, and was then transferred to federal custody.

He had previous convictions for illegal reentry to the United States following deportation and drug crimes.

He was released from San Francisco jail in April 2015 without notification to federal authorities because of San Francisco's sanctuary city policy limiting communication between local law enforcement and federal
immigration officials.

— Bay City News; Image via SFPD