Judge skeptical of defense arguments in gun charges against Steinle shooter

SAN FRANCISCO -- A federal judge told attorneys representing the man who shot Kate Steinle they are facing an uphill battle in their bid to ward off federal gun possession charges at a hearing Tuesday.

Jose Ines Garcia-Zarate, a felon facing deportation for multiple violations of entering the country illegally, was acquitted in December by a San Francisco County Superior Court jury of murder charges stemming from Steinle's 2015 killing. The jury found Zarate guilty of being a felon in possession of a firearm.

The U.S. Department of Justice then brought its own federal gun possession charges against Zarate. His defense attorney in the federal case, J. Tony Serra, moved to dismiss one of the charges, arguing it was duplicative.

He also requested discovery from prosecutors about any communications between them and Washington, D.C. leaders such as Attorney General Jeff Sessions and President Donald J. Trump.

Serra contended the federal government engaged in vindictive prosecution when it brought the charges, claiming officials were spurred on by angry tweets from Trump, who used the Zarate case as part of his election campaign.

"Right after the verdict, the president went on the national media and said this is a miscarriage of justice," Serra said.

But U.S. District Judge Vince Chhabria voiced skepticism. He dismissed the motion regarding duplicative charges, saying any redundancy would be covered in the jury instructions, and laid out his reservations regarding Serra's arguments on the vindictive prosecution theory. U.S. v. Garcia-Zarate, 17-CR609 (N.D. Cal., filed Dec. 5, 2017).

Chhabria said there is a difference between a vindictive tweet and vindictive prosecution. He contended that the bar for vindictive prosecution is very high because the defendant would have to prove the only reason federal prosecutors brought the case was out of vindictiveness.

The San Francisco judge said that is a difficult case to make because federal prosecutors often follow up state prosecutions by bringing their own federal gun charges, even in cases with no political significance. He argued this was particularly true in cases where a victim was killed.

"In criminal law, there is a very specific meaning to the word 'vindictive,' and it's a very narrow definition," he said. "Even if your theory is correct, that wouldn't be enough to pursue a vindictive prosecution claim."

He added that Trump displaying vindictiveness against San Francisco and its status as a sanctuary city also fails to equate to a successful claim of vindictive prosecution.

Northern District Assistant U.S. Attorney Shiao Lee said she couldn't find a similar case where a vindictive prosecution argument was successful.

"There is no case the government has found, and the defendant cites to none, where the court finds vindictive prosecution when the charges are brought by different sovereigns," she said.

Serra said Chhabria should request discovery from prosecutors and look at it in camera to determine if there was anything to support his vindictive prosecution claim.

Chhabria said he would take the matter under submission and set an Oct. 1 trial date.