Case Number(s): 08-C-13180 & 09-N-10046 (Consol.) - LMA
In the Matter of: Thomas H. Merdzinski, Bar # 152148, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Margaret P. Warren, 1149 S. Hill Street
Los Angeles, CA 90015-2299
(213) 765-1342
Bar # 108774,
Counsel for Respondent: In Pro Per, Thomas H. Merdzinski, # 45795-112
FCI La Tuna
Federal Correctional Institution
P.O. Box 3000
Anthony, NM 88021
Bar # 152148
Submitted to: Assigned Judge – State Bar Court Clerk’s Office San Francisco.
Filed: February 2, 2011.
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted May 5, 1991.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 9 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
checked.
Costs are awarded to the State Bar.
<<not>> checked. Costs are waived in part as set forth in a
separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
9.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will
issue an order of inactive enrollment under Business and Professions Code
section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
IN THE MATTER OF: Thomas H. Merdzinski, State Bar No. 152148
STATE BAR COURT CASE NUMBER: 08-C-13180 & 09-N-10046 (Consol.)
Case No. 08-C-13180
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING.
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
2. On July 22, 2008, an Information was filed in the United States District Court for the Central District of California, Eastern Division, in the matter entitled United States of America v. Thomas Henry Merdzinski, case no. ED CRO8-00139, charging Respondent with one felony count of knowingly possessing one or more computers and computer hard drives, which contained at least one image of child pornography, as defined in Title 18, U.S.C., Section 2256(8)(A), that had been shipped and transported in interstate and foreign commerce by any means, including by computer, knowing that the image was of child pornography, in violation of Title 18, U.S.C., Section 2252(A)(a)(5)(B). On that same date, Respondent pled guilty to violating Title 18, U.S.C., Section 2252(A)(a)(5)(B). On that same date, Respondent’s conviction of said offense was entered.
3. On March 16, 2009, Respondent was sentenced to be imprisoned in federal prison for a term of fifty-one (51) months; and was further ordered to be on supervised release for life, under the terms and conditions of the U.S. Probation Office and General Order 318.
4. Effective October 20, 2008, Respondent was placed on interim suspension following his conviction of one felony count of knowingly possessing one or more computers and computer hard drives, which contained at least one image of child pornography, as defined in Title 18, U.S.C., Section 2256(8)(A), that had been shipped and transported in interstate and foreign commerce by any means, including by computer, knowing that the image was of child pornography, in violation of Title 18, U.S.C., Section 2252(A)(a)(5)(B).
5. On September 17, 2010, the State Bar transmitted a Supplemental Transmittal of Records of Conviction in this matter to the Review Department of the State Bar Court, and concurrently filed a Motion for Summary Disbarment.
6. On October 8, 2010, the Review Department of the State Bar Court issued an order denying the State Bar’s September 17, 2010 Motion for Summary Disbarment, determining that violation of Title 18, U.S.C., section 2252(A)(a)(5)(B) (possession of child pornography) "is not a crime which inherently involves moral turpitude" and referring the matter to the Hearing Department of the State Bar Court "for a hearing and decision recommending the discipline to be imposed in the event that the hearing department finds that the facts and circumstances surrounding the felony violation involved moral turpitude or other misconduct warranting discipline."
FACTS AND CIRCUMSTANCES SURROUNDING RESPONDENT’S CONVICTION.
7. Respondent admits that the following facts are true:
8. Pursuant to Respondent’s written plea agreement, filed on July 22, 2008 in Case No. ED CROS-00139, Respondent and the United States Attorney’s Office agreed and stipulated to the following statement of facts in support of Respondent’s guilty plea1 [Footnote 1: As set forth in the plea agreement, the facts contained therein are “not meant to be a complete recitation of all facts relevant to the underlying criminal conduct or all facts known to defendant that relate to that conduct”, but suffice to support a plea of guilty to the charge.
On or about April 2, 2008, in Riverside County, California, defendant [Respondent] knowingly possessed over 600 [six hundred] child pornography images and videos, contained on seven [7] computer hard drives (collectively "the child pornography images"). As defendant knew, the child pornography images contained visual depictions of prepubescent children and infants engaged in sexually explicit conduct including several images and videos of prepubescent children engaged in sadistic and masochistic acts, such as adult males engaged in vaginal and anal intercourse with prepubescent girls, some as young as infants, and prepubescent children and infants being subject to acts of abuse, humiliation, and degradation, and which were likely to have been painful to the child and infant victims depicted in the child pornography images, including the anal penetration of such children with foreign objects.
Defendant knew that the production of the child pornography images involved the use of prepubescent children and infants engaged in sexually explicit conduct, including victims whose identities are known to law enforcement ("the known victims"). Several of the child pornography images depicting the known victims were shipped and transported in either interstate or foreign commerce given that those images are known to law enforcement to have been produced outside the State of California. Defendant also knew that the child pornography images and videos he possessed had been shipped and transported in interstate or foreign commerce by means including a computer.
FACTS AND CIRCUMSTANCES INVOLVING MORAL TURPITUDE.
9. Respondent admits and acknowledges that the facts and circumstances of his conviction involve moral turpitude.
Case No. 09-N-10046
FACTS:
10. On October 1, 2008, the Review Department of the State Bar Court filed an Order in Case No. 08-Co 13180, ordering Respondent interimly suspended, pursuant to Business and Professions Code section 6102, following his felony conviction for violating Title 18, U.S.C., section 2252(A)(a)(5)(B), pending final disposition of Case No. 08-C-13180 (hereinafter, "Order"). The Order included a requirement that Respondent comply with Rule 9.20, California Rules of Court, by performing the acts specified in subdivisions (a) and (c) within thirty (30) and forty (40) days, respectively, after the effective date of the Order. On October 1, 2008, the State Bar Court properly served upon Respondent a copy of the Order. Respondent received the Order.
11. The Order became effective on October 20, 2008. Thus Respondent was ordered to comply with subdivision (a) of rule 9.20 of the California Rules of Court no later than November 19, 2008, and was ordered to comply with subdivision (c) of rule 9.20 no later than November 29, 2008.
12. On February 18, 2009, Respondent filed his declaration of compliance with rule 9.20 (a), as required by subdivision (c) of rule 9.20.
13. Respondent failed to timely file with the clerk of the State Bar Court a declaration of compliance with rule 9.20 (a), California Rules of Court, as required by rule 9.20 (c).
CONCLUSIONS OF LAW:
14. By not timely filing a declaration of compliance with rule 9.20 in conformity with the requirements of rule 9.20 (c), Respondent failed to comply with the provisions of the Order requiring compliance with rule 9.20, California Rules of Court, in willful violation of rule 9.20, California Rules of Court.
AGGRAVATING CIRCUMSTANCES.
15. Harm: Respondent’s misconduct significantly harmed the public, in that the purchase and possession of child pornography contributes directly to the ongoing sexual exploitation for profit of children; the images permanently record the acts of abuse; and the continued existence of the images causes continuing harm to the children appearing in those images.
MITIGATING CIRCUMSTANCES.
16. Respondent cooperated with the State Bar by entering into this stipulation, thus obviating the need for a trial.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was January 18,2011.
AUTHORITIES SUPPORTING DISCIPLINE
Standard 1.3 provides:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.
Standard 3.2 provides, in pertinent part:
Final conviction of a member of a crime which involves moral turpitude, either inherently or in the facts and circumstances surrounding the crime’s commission shall result in disbarment. Only if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed.
"Disbarments, and not suspensions, have been the rule rather than the exception in cases of serious crimes involving moral turpitude." In re Crooks (1990) 51 Cal.3d 1090, 1101. See also In re Lesansky (2001) 25 Cal.4tn 11.
Violations of rule 9.20 (formerly, rule 955) of the California Rules of Court:
Untimely filing of a rule 955 affidavit is "itself a cause of discipline." In the Matter of Snyder (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 593,600.
"The sanction recognized and generally imposed by the Supreme Court in rule 955 [now rule 9.20] wilful violations is disbarment. [Citation omitted.] When [disbarment] has not been imposed, the attorneys had complied with the notification requirement, orally or in writing, to all their clients, participated in the disciplinary process, and presented substantial mitigating evidence regarding the noncompliance and their present good character." In the Matter of Babero (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 322, 334.
SIGNATURE OF THE PARTIES
Case Number(s): 08-C-13180 & 09-N-10046 (Consol.)
In the Matter of: Thomas H. Merdzinski; State Bar No.: 152148
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Thomas H. Merdzinski
Date: January 26, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Margaret P. Warren
Date: February 1, 2011
Case Number(s): 08-C-13180 & 09-N-10046 (Consol.)
In the Matter of: Thomas H. Merdzinski, State Bar No.: 152148
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
checked. All Hearing dates are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Respondent Thomas H. Merdzinki is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herin, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court: LUCY ARMENDARIZ
Date: February 2, 2011
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and
County of San Francisco, on February 2, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS. CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at San Francisco, California, addressed as follows:
THOMAS H. MERDZINSKI
79321 BOWDEN DR
BERMUDA DUNES, CA 92203
THOMAS H. MERDZINSKI
FCI LA TUNA/ FEDERAL
CORRECTIONAL INSTITUTION
P.O. BOX 3000
ANTHONY, NM 00088-8021
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MARGARET WARREN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on February 2, 2011.
Signed by:
Laine Silber
Case Administrator
State Bar Court