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Illegal immigrant acquitted of murdering Kate Steinle sues federal govt’ for filing ‘vindictive & unfair’ charges

Illegal immigrant acquitted of murdering Kate Steinle sues federal govt’ for filing ‘vindictive & unfair’ charges

Jose Inez Garcia-Zarate’s attorneys are also claiming lack of “due process” and “double jeopardy”.

Legal Insurrection readers may recall that Jose Inez Garcia-Zarate, an illegal immigrant who had been deported numerous times and was a convicted felon, was acquitted of murder by a San Francisco jury in the July, 2015 fatal shooting of Kate Steinle while she was walking along the city’s famous pier with her father.

The small solace that many of us had after this travesty of justice was that the federal government immediately unsealed an arrest warrant that included violations related to the charges of a felon in possession of a firearm, involuntary manslaughter and assault with a deadly weapon. He was remanded into the custody of the U.S. Marshals to be transported to the Western District of Texas pursuant to the arrest warrant, and remains incarcerated.

Garcia-Zarate is now suing the federal government. His lawyers say additional charges against him are “vindictive.”

Zarate claims the federal government’s prosecution of him is ‘vindictive’ and violates his constitutional rights.

He argues that it violates the Double Jeopardy clause of the Fifth Amendment which protects a person from being prosecuted twice for the same crime if no new evidence has emerged.

It does not protect defendants who have been acquitted at a state level from facing federal charges, however under the Dual Sovereignty Doctrine, so long as the second prosecution is not vindictive.

‘Although the charges in this case are brought forth by a different sovereign than the original trial, that, in and of itself, does not negate the vindictive nature of this prosecution,’ Zarate’s lawyer says in the suit.

According to the motion filed in U.S. District Court in the Northern District of California, Garcia-Zarate’s attorneys (J. Tony Serra and Maria Belyi) claim that federal agencies colluded with the San Francisco police, district attorney’s office, and sheriff’s office.

Serra wrote that the national attention of the case turned his client into a focus of anti-immigration politicians. According to the motion, the federal charges are not valid . . . because Trump!

“This case was highly publicized, both locally and nationally,” Serra wrote in the motion. “Almost immediately after the death of Ms. Steinle, then presidential candidate Donald Trump began to use Mr. Garcia-Zarate as the symbol of the dangers of illegal immigrants and the need for a wall between the United States and Mexico.”

Yes, President Trump’s tweets did help publicize the case. The elite media was not eager to share this tragic story during the turbulent 2016 election cycle, and the spotlight helped shed light on the senseless slaughter of an American at the hands of an illegal immigrant who had already been deported numerous times. However, the information was not “vindictive” but “factual”.

I was curious as to what kind of lawyers would file such a motion. A quick internet search reveals Serra and Belyi work from the Pier 5 Law Offices that houses independent attorneys focused on criminal defense and civil rights litigation.

Serra is a graduate of Stanford and has been practicing law since the 1960’s.

Perceiving himself in the role of a warrior, Mr. Serra has continued to battle for more freedom for more people through law. His role in the Chol Soo Lee case was depicted in the film True Believer. Tony Serra has always known how to express the poetry of the law, while fighting in the ditches and dark alleys of legal practice. He has gained national prominence for his closing argument techniques.

Here is a clip of “True Believer“, a tale of the defense of a young Korean man who had been in jail for eight years for a murder he did not commit. The film stars James Woods.

Belyi graduated from UC Hastings College of the Law.

She has experience with various types of criminal cases, including multiple defendant drug cases and federal drug conspiracy cases. She also has experience with DUIs, Vehicle Code violations, Drug Possession and Under the Influence of a Narcotic cases, and Medical Marijuana cases.

So much experience. So little compassion for the victims. If they ever do make a movie of this case, it will be a horror classic.


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First – I have zero sympathy for this guy – Very guilty. Should have the death penalty.

Second – The US double jeapordy jurisprudence has lacks most of the robust protections afforded to us in the constitution; from the dual soveriegn concept where both the feds and states can retry for the same offense (different soveriegns) and the ability to retry the same offense under different statutes – as if different laws covering the same offense creates two offenses out of the same offense.

That being said, this case has the potential to set back any improvements in the double jeapordy jurisprudence.

    Mac45 in reply to Joe-dallas. | March 17, 2018 at 8:32 pm

    This is ludicrous.

    First of all, in the case of separate prosecutions for the same act by different hierarchies the argument that double jeopardy exists would only be valid if the laws, under which the defendant is charged, have a similar basis. If the state law is specifically a prohibition against killing another human being and the federal law is a general prohibition against violating a person’s rights unlawfully, the basis of the violation is different, even though it arises from the same act. However, even if the prohibited act is based upon the same premise, this nation was founded on the premise of the separation of the states and federal government. There was a very good reason for this. And, though it has been chipped away at by liberals since Washington was President, it is till a very good idea.

OleDirtyBarrister | March 17, 2018 at 3:40 pm

The defense counsels’ actions are a waste of taxpayers’ time and money. It is as foolish as the declaratory judgment action the Manafort filed against Mueller. Any such defense can be presented by the criminal defendant in the criminal proceeding through a motion to dismiss or a pre-trial petition for writ of habeas corpus.

All prosecutions are “vindictive” in nature, the government pursues the prosecution to vindicate the rights of the individuals affected by the crime and society’s secondary interest so that such matters are not resolved by private reprisal. They are also “deterrent” in nature. When they get their terminology right and argue that it is a “selective” prosecution, they are still going to lose [ultimately]. Prosecutors have an immense amount of prosecutorial discretion. Selective prosecution arguments only work is prosecution is based on an unjustifiable standard (i.e. something protected as fundamental, such as race or religion.) See United States v. Goodwin, 457 U.S. 368, 380 (1982). Being an illegal alien is not a protected status or suspect grounds or unjustifiable standard for prosecution, nor is being acquitted in a state court action.

The due process argument is a very weak one because the feds pursued the criminal action very quickly. The elements required to present a case or defense, the physical evidence, witnesses, places where events occurred, etc., are all still present and accessible. Thus, there has been no undue or inexplicable passage of time before indictment and trial and no loss of ability to mount a defense that would so prejudice the defendant to support a due process claim.

The double jeopardy argument is tired and shopworn. It is well-established law by SCOTUS that a second prosecution filed by a second sovereign is not double jeopardy. That rule of law likely will never change by a judicial ruling, and would only change by a legislative ruling, e.g. California passing a statute saying that the state cannot pursue the same criminal charges against a defendant previously acquitted in the federal system or another state on the facts and offenses.

The facts and the law both favor the feds. But who knows what a liberal district court judge and the Ninth Circuit will do in the meantime.

Oleguy – The double jeopardy argument is tired and shopworn. It is well-established law by SCOTUS that a second prosecution filed by a second sovereign is not double jeopardy.

Probably the wrong thread to debate the double jeopardy jurisprudence. I Think this guy deserves the death penalty. He got off due to jury stupidity/nullification.

That being said, the Scotus dual sovereign prosecution was wrongly decided. Further it conflicts with incorporation under 14A.

The double jeopardy issue in this case in non-existent since the fed prosecution is for a different offense. Not the prosecution of the same offense under a different statute or the prosecution of the same offense under separate sovereigns.

legalizehazing | March 17, 2018 at 4:06 pm

In California… I see him hitting pay dirt. But as an illegal … I’d tell him to F – off. Hope ice is waiting at the court house

This guy was emboldened by the idiots in California using him as a prop to stick it to Trump.

2nd degree murder should have been a 100% lock. He was carrying a stolen gun and changed his story between mutually exclusive excuses – first he claimed he was shooting at seals (INTENTIONALLY shooting the weapon), then later claimed it went off ‘accidentally’ (NOT intentionally shooting).

This scum deserves prison for the rest of his life and thanks to California he’s filing nuisance lawsuits.

Guilty as sin, yet has the temerity to pull this. I don’t believe in vigilante justice, however, I would have a hard time feeling bad if he were the victim of such. This was not justice served, this was a travesty of justice.

A young, beautiful lady had her life ended at his hands. It is a shame that he still walks the face of this earth.

ICE should grab him and send him out of the country. That is the very least that should happen to this scum.

Subotai Bahadur | March 17, 2018 at 5:16 pm

Believing in the rule of law now is akin to an Englishman believing in the line of Harold Godwinson in 1939.

This loser is a pawn being used to stick it not only to Trump but to good Americans. Like Comey, McCabe, Strzok, Page, et al, those using him believe themselves to be heroes. They should enjoy their momentary feelings of superiority. History will not treat them well.

This is to further immunize illegal immigrants from being charged with any wrongdoing. Even negligent homicide would stick in this case. The family has nothing to get from a suit but the converse is not true.

“History will not treat them well.” Only if they don’t get away with it and it costs them personally… which… will not happen.

As boxing promoter Don King memorably stated, regarding his own improbable rise to success, “Only in America!”

I could also cite Yakov Smirnov’s refrain, “What a country!”

An illegal alien is acquitted of murdering an innocent bystander under facts and circumstances not reasonably in dispute, and, then has the temerity to sue the federal government.

Next we will learn that this fellow has killed his own parents just so he could demand mercy from the court for being an orphan.