F. R. Buck Files, Jr.

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Buck Files, a member of TCDLA’s Hall of Fame and the President of the State Bar of Texas, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

Stories from F. R. Buck Files, Jr.

Tuesday, June 4th, 2019

On April 3, 2019, a panel of the United States Court of Appeals for the Fifth Circuit gave us a two-fer. The per curiam opinion begins with a discussion of the Puckett test for plain error review and then analyzes whether the defendant’s description of the mitigating facts that he would have offered at allocution was sufficient to establish a need for remand. United States v. Figueroa-Coello, 920 F.3d 260 (5th Cir. 2019) [Panel: Circuit Judges King, Smith and Willett. Per curiam].

Tuesday, April 30th, 2019

In the olde days, I believed that taking a common sense and fair play approach to any criminal law issue would give you the correct answer. Then, I realized that this did not always work.

Wednesday, March 27th, 2019

As we used to say in the Marine Corps: “Listen up. This is the word.” Ignore it at your own peril!

In every case, state or federal, a lawyer representing a defendant in a criminal case is required to give notice of appeal if the client requests it—even if the court has followed a plea recommendation and the defendant has signed a waiver of appeal.

[Background]

Wednesday, February 27th, 2019

Domineque Hakim Marcelle Ray was convicted of a capital offense in the State of Alabama and was scheduled to be executed on February 7, 2019. Ten days before his death date, Mr. Ray filed a motion in the United States District Court for the Middle District of Alabama, seeking a stay of his execution. Judge W. Keith Watkins denied the stay. Domineque Hakim Marcelle Ray v. Jefferson Dunn, No. 2:19-CV-88-WKW, 2019 WL 418105 (M.D. Ala. Feb. 1, 2019). His Memorandum Opinion and Order reads, in part, as follows:

Wednesday, January 30th, 2019

Jason Wayne Irving was a Kansas registered sex offender who had child pornography on his Facebook account. Kansas law enforcement officers, acting under the authority of search warrants issued by a Kansas state judge, discovered this pornography. Because of the exceptional work of Assistant Federal Defender Timothy J. Henry of the Federal Public Defenders Office for the District of Kansas, United States District Judge Eric F.

Reflections on a Memorial Service for Robert Kelly Pace
Saturday, December 15th, 2018

n November 11, 2018, I went to a memorial service for Robert Kelly Pace, an outstanding lawyer who loved and supported the Te

Saturday, December 15th, 2018

I thought that I had some understanding of restitution issues in federal criminal cases until I was appointed to represent Doyle Randall Paroline on the restitution issue in a possession of child pornography case. For more than five years, I lived with the issue until the Supreme Court resolved it in Paroline’s favor. Paroline v. United States, 134 S.Ct. 1710 (2014). Stanley Schneider was with me for almost all of those five years, and Casie Gotro joined us later on.

Tuesday, November 6th, 2018

On June 28, 2018, the Supreme Court granted Terance Martez Gamble’s Petition for Writ of Certiorari. The question presented: whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause. Gamble was involved with two sovereigns—the State of Alabama and the United States. He had been convicted of a robbery in an Alabama state prosecution in 2008. Some seven years later, he was prosecuted again in an Alabama state court as a prohibited person in possession of a firearm in violation of Ala.

Wednesday, October 10th, 2018

For all those clients and their lawyers who have Carpenter issues on appeal, August was BAD NEWS MONTH for them. We all remember that on June 22, 2018, the Supreme Court held that the Government must generally obtain a search warrant supported by probable cause before acquiring CSLI from a wireless carrier. Carpenter v. United States, 138 S.Ct. 2206 (2018).

Friday, August 24th, 2018

Over the last several months, I have realized that it has been some time since I wrote a column about a case having an ineffective assistance of counsel issue. Then along came United States v. Aguiar, 894 F.3d 351 (D.C. Cir. 2018) [Panel: Circuit Judges Rogers, Griffith, and Srinivasan (opinion by Rogers, Griffith dissenting)]. In Aguiar, a divided panel of the Circuit held that the defendant’s attorney performed deficiently in failing to advise his client of the clear and easily determinable consequences of rejecting a plea offer.

Thursday, July 26th, 2018

On June 22, May 29, and May 14, 2018, the Supreme Court released opinions in three cases that reversed the judgments of the United States Court of Appeals for the Sixth Circuit, the Supreme Court of Virginia, and the United States Court of Appeals for the Third Circuit. Each of these cases was concerned with a significant search issue. In each case, a motion to suppress evidence was filed by the defendant’s lawyer and denied by the trial judge.

Tuesday, June 5th, 2018

Since I have a dislike for the conducting of judicial proceedings by videoconference, I was pleased to read the opinion of the United States Court of Appeals for the Seventh Circuit in United States v. Bethea, ___F.3d___, 2018 WL 1959638 (April 26, 2018). A panel of the Circuit held that a defendant (Bethea) could not affirmatively consent to a felony plea by videoconference—and, that the error was per se prejudicial error, warranting automatic reversal. [Panel: Circuit Judges Bauer, Flaum, and Manion. Opinion by Judge Flaum.]

Saturday, April 28th, 2018

I have vivid memories of the trial of a conspiracy case that took place 40 years ago. There were seven of us sitting at the defense table representing our clients. Early on, it became obvious that we had almost as much to worry about from one of our brethren as we did from the Government.

Saturday, March 31st, 2018

Almost four years ago, the Supreme Court held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Riley v. California, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) [Opinion by Chief Justice Roberts, in which Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Alito filed an opinion concurring in part and concurring in the judgment].

Friday, March 9th, 2018

It must be such an irritation for a judge to have folks wander into the courtroom when the lawyers are conducting their voir dire examinations of the jury panel. In response to this irritation, some judges began to close their courtrooms during the voir dire—even in the trials of criminal cases. Then the Supreme Court held that a defendant’s Sixth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire examination of prospective jurors—and courtrooms began to remain open. Presley v. Georgia, 130 S.Ct.

Tuesday, February 6th, 2018

The Department of Homeland Security and the Department of Justice are competing against each other in a turf battle and playing tug of war with our clients. DHS is tugging on one arm, seeking deportation. The Department of Justice is on the other arm, seeking prosecution. This is a fact situation we have seen recently in two cases: United States v. Boutin, ___F.Supp.3d___, 2017 WL 6611569 (E.D.N.Y. December 20, 2017) [Memorandum and Order, Chief United States District Judge Dora L. Irizarry], and United States v.

Thursday, December 14th, 2017

When I go to the doctor, I expect to get answers to my questions. What’s wrong with me? What do you need to do to make me feel better? How long will that take?

Tuesday, October 31st, 2017

For those of us who live and practice law in cities near interstate highways, it is common for us to represent clients who have been stopped by law enforcement officers while they were driving rental cars and transporting drugs. In each of these cases, we consider filing a motion to suppress the evidence discovered and seized by the officers. Often, there is an issue as to whether our clients have standing to challenge the search of their vehicles and the seizure of the drugs.

Saturday, September 30th, 2017

On September 6, 2017, I received an email from my immigration guru, Richard Fischer of Nacogdoches. Attached to that email was a copy of Matter of Ali Mohamed Mohamed, 27 I&N Dec. 92 (BIA 2017), Interim Decision #3900. This was a September 5th decision of a panel of the U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals.

Thursday, August 31st, 2017

No client is more self-righteously indignant than the one who learns that he has been tricked into giving a confession by officers using a variation of the very old “we-found-your-fingerprints-at-the-scene” ploy. Unfortunately for the client, the courts have approved the use of such trickery—e.g.,