Monthly archive

June 2014

May 2014 SDR – Voice for the Defense Vol. 43, No. 4

Voice for the Defense Volume 43, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

D had a viable ineffective assistance claim because counsel failed to seek funds to replace an expert who counsel knew was inadequate when that failure was not based on a strategy but on a mistake of law. Hinton v. Alabama, 134 S. Ct. 1081 (2014).

        D was charged with two murders in 1985. The case hinged on ballistics evidence. Mistakenly believing he could pay only $1,000 for an expert ballistics witness, D’s attorney hired someone who was inexperienced and blind in one eye. After the prosecution discredited the expert on the stand, D was convicted and received two death sentences.

        The Supreme Court summarily vacated the Court of Criminal Appeals of Alabama’s judgment and remanded for reconsideration of the prejudice prong of Strickland v. Washington, 466 U. S. 668 (1984). “[D]’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for ‘any expenses reasonably incurred.’ An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland. . . . The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.”

Fifth Circuit

Even though USSG § 5D1.1(c) states that supervised release ordinarily should not be imposed on a deportable alien defendant, the court did not err in imposing a two-year supervised-release term on such a defendant because it supplied a sufficiently particularized explanation. United States v. Becerril-Peña, 714 F.3d 347 (5th Cir. 2013).

        The district court sufficiently explained that it found D’s supervised release sentence appropriate under the factors listed in 18 U.S.C. § 3553(a) and those applicable to sentencing generally; the imposition of supervised release was also supported by D’s extensive criminal history. Furthermore, even though the district court did not specifically address D’s arguments for a downward variance from the Guideline range, that did not constitute significant procedural error where the record shows that the district court considered D’s mitigation arguments, weighed the § 3553(a) factors, and explicitly found that the sentence “adequately and appropriately addresse[d]” those factors and others appropriate to consider in sentencing.

Texas state prisoner was not entitled to federal habeas relief on his claim that the court denied him a fair trial by not sua sponte dismissing an allegedly biased juror; no U.S. Supreme Court decision clearly establishes that state trial courts have a duty to sua sponte dismiss a purportedly biased juror when no party objects. Washington v. Thaler, 714 F.3d 352 (5th Cir. 2013).

        Moreover, to recognize such a new rule of criminal procedure on collateral review would run afoul of Teague v. Lane, 489 U.S. 288 (1989).

The court’s wholesale exclusion of the testimony of D’s expert was error, but that error did not affect the trial outcome. United States v. Liu, 716 F.3d 159 (5th Cir. 2013).

        In prosecution for conspiracy to steal trade secrets and perjury, the district court erred in precluding D’s expert from testifying; as an initial matter, there was no warrant for excluding the portion of the expert’s testimony to which the government did not object. It was also error to exclude the other parts of the expert’s testimony; a lack of personal experience—the district court’s concern here—should not ordinarily disqualify an expert, so long as the expert is qualified based on some other factor provided by Fed. R. Evid. 702. A lack of specialization should generally go to the weight of the evidence rather than its admissibility. However, even though it was error for the district court to exclude D’s expert, the error was harmless; especially in the absence of a proffer as to what the substance of the expert’s testimony would have been, nothing in the record indicates that the expert’s testimony would have been helpful to D. Given the overwhelming evidence of guilt, the Fifth Circuit was persuaded that the excluded testimony would have been or little or no benefit to D.

Even though under Dorsey v. United States, 132 S. Ct. 2321 (2012), defendants sentenced after the effective date of the Fair Sentencing Act of 2010 are entitled to benefit from the more lenient penalties of that act, Dorsey does not apply to persons who simply have their pre-FSA sentence modified under 18 U.S.C. § 3582(c)(2) (based on a retroactively applicable ameliorative Guideline amendment). United States v. Kelly, 716 F.3d 180 (5th Cir. 2013).

        Nothing in Dorsey purports to change Supreme Court and Fifth Circuit precedent that § 3582(c)(2) proceedings are not plenary resentencings; the Fifth Circuit joined its sister circuits in declining to treat a § 3582(c)(2) modification proceeding as the equivalent of an original sentencing hearing under Dorsey.

The district court did not plainly err in finding a factual basis for D’s plea; D’s statutory interpretation (he claimed the statute required a showing that he personally and directly caused serious bodily injury) was not “plain” under the language of the statute or any binding judicial construction of it. United States v. Alvarado-Casas, 715 F.3d 945 (5th Cir. 2013).

        D could challenge the factual basis underlying his guilty plea to conspiracy to transport illegal aliens causing serious bodily injury (8 U.S.C. § 1324(a)(1)(B)(ii)) notwithstanding his unconditional appeal waiver; but because he raised the issue for the first time on appeal, the Fifth Circuit reviewed only for plain error.

        The district court did commit plain error by advising D, at his guilty plea, that he faced a statutory maximum prison term of only 10 years, when the correct statutory maximum was 20 years; however, D did not carry his burden of showing a reasonable probability that, but for the error, he would not have pleaded guilty. Even though the 190-month prison sentence imposed greatly exceeded the 10-year maximum of which D was advised, D received a number of benefits from his plea and would have faced a higher sentence if he had gone to trial. Moreover, even after the presentence report set out the correct statutory maximum, D never moved to withdraw his plea.

Because the ultimate decision of the Louisiana governor to grant or deny commutation remains entirely discretionary, prisoner failed to demonstrate a significant risk that he would endure a longer period of incarceration as a result of the amendments to Louisiana’s commutation process. Howard v. Clark, 719 F.3d 350 (5th Cir. 2013).

        Where Louisiana state prisoner had unsuccessfully sought commutation of his sentence as a preliminary step to seeking release on parole, prisoner failed to establish an ex post facto violation in alterations to Louisiana’s commutation procedures (increasing the amount of time before a subsequent application can be filed and granting the Board of Pardons authority to deny an applicant a full hearing).

Speedy Trial Act’s 70-day period for bringing a case to trial was not exceeded; the time attributable to defense-requested continuances (based on defense counsel’s surgery and recovery) was excludable. United States v. Dignam, 716 F.3d 915 (5th Cir. 2013).

        Even though the reasons for a predecessor judge granting two “ends of justice” continuances were not set forth on the record, it was sufficient that the successor judge later articulated the first judge’s reasoning on the record; that record could be fairly understood as being the reasons that were in the defense’s unopposed motions for continuance. Nor was the second continuance period countable simply because the district court granted an open-ended continuance; because it was unclear how much time defense counsel would need to recover, and because the seven-month delay was not extreme and did not prejudice D, the grant of an open-ended continuance was reasonable.

        Finally, a further period of time, during which D had signed a plea agreement and indicated intent to plead guilty pursuant to the agreement, was also excludable under the STA. The time was not excludable under 18 U.S.C. § 3161(h)(1)(G) because the plea agreement was in fact never submitted to the district court for its consideration; the time was excludable under § 3161(h)(1)(D), dealing with delay attributable to pretrial motions. The notice of intent to plead guilty was effectively a motion to set a rearraignment date, so the time period between the notice of intent to plead guilty until the scheduled rearraignment date (when D stated she did not wish to plead guilty) was excludable under the STA. With all these periods of excludable time, the length of the non-excludable time did not exceed 70 days to violate the STA in this mail-fraud prosecution.

In Hobbs Act robbery conspiracy/firearms case, district court did not err in refusing to give an entrapment instruction because D failed to make a prima facie show­ing that he lacked a predisposition to commit the offenses. United States v. Stephens, 717 F.3d 440 (5th Cir. 2013).

         (2) Under USSG § 2B3.1, the Guideline applicable to robbery, it is error to use intended loss, rather than actual loss. However, the district court’s error in using intended loss under USSG § 2B3.1 did not affect D’s substantial rights because the proper Guideline for a Hobbs Act robbery conspiracy is USSG § 2X1.1, which does use intended loss. Nor did the court err in refusing to exclude, on the grounds of sentencing enhancement, any intended loss figure over $250,000.

        (3) District court did not err in denying D a reduction for acceptance of responsibility under USSG § 3E1.1. Defendants who deny guilt on the basis of an entrapment defense are not entitled to a reduction under USSG § 3E1.1.

Court of Criminal Appeals

The evidence was sufficient to convict D of aggravated assault of a public servant under the conspiracy theory of the law of parties; a jury could have found beyond a reasonable doubt that D should have anticipated his co-conspirator committing aggravated assault of a public servant in their conspiracy to deliver meth. Anderson v. State, 416 S.W.3d 884 (Tex.Crim.App. 2013).

        The conspiracy theory of the law of parties, Tex. Penal Code § 7.02(b), states that “if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty . . . if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.” Because this is similar to the federal rule of co-conspirator liability under Pinkerton v. United States, 328 U.S. 640 (1946), CCA adopted the approach used by federal courts, which focuses on an examination of the totality of the circumstances to determine whether a particular offense committed by a co-conspirator was “reasonably foreseeable” within the scope of the unlawful agreement.

        Considering the circumstances here, CCA affirmed COA and the trial court and concluded that D and his co-conspirator were acting together in a criminal business to sell moderate amounts of methamphetamine and that, given the volume of drugs involved, the co-conspirator’s assault of the officer was one that should have been anticipated as a result of carrying out the conspiracy.

D was not entitled to an instruction on the lesser-included offense of criminal trespass with his burglary charge; the entry element of criminal trespass did not require the same or less proof than entry for burglary, and there were no alleged facts that would allow the entry element of criminal trespass to be deduced. State v. Meru, 414 S.W.3d 159 (Tex.Crim.App. 2013).

        Appellee was convicted of burglary of a habitation. He filed a motion for new trial, complaining that the court erred in refusing to give his requested jury instruction on the lesser-included offense of criminal trespass. The trial court granted his motion. COA affirmed the trial court. CCA reversed.

        COA improperly concluded that criminal trespass was a lesser-included offense of burglary of a habitation in this case. D failed to demonstrate that criminal trespass is “established by proof of the same or less than all the facts required to establish the commission of the offense charged,” as required by Tex. Code Crim. Proc. art. § 37.09(1). The entry element of criminal trespass did not require the same or less proof than entry for burglary, and there were no facts alleged in the indictment that would allow the entry element of criminal trespass to be deduced. In other words, a burglary under Tex. Penal Code § 30.02(b) could be complete upon only a partial intrusion onto the property, whereas the definition of “entry” in the criminal trespass statute, § 30.05(b), made the showing of only a partial entry by the defendant insufficient for a conviction of criminal trespass.

        Alcala concurred: “This case has serious implications for both the State and defendants in all future burglary cases. Although historically considered to be two peas in a pod, after today, trespass is no longer a lesser-included offense of burglary under an indictment that generally pleads the element of entry. This decision turns the two peas into pea soup, a dense fog that will obscure the law for judges who must determine whether the State has manipulated pleadings in an indictment to conform to the anticipated evidence in the case.”

The facts and reasonable inferences were sufficient to lead an officer to conclude D was engaged in criminal activity, giving reasonable suspicion for a traffic stop. Delafuente v. State, 414 S.W.3d 173 (Tex.Crim.App. 2013).

        D was convicted of misdemeanor marijuana possession. On appeal, he challenged the denial of his suppression motion, arguing that the officer lacked reasonable suspicion to stop the vehicle in which he was traveling. COA reversed, ruling that there were no specific facts in the record to support suspicion for the stop. CCA vacated COA’s judgment and remanded for COA to consider State v. Mendoza, 365 S.W.3d 666 (Tex.Crim.App. 2012). COA again reversed, and CCA granted review and found that COA erred on this ground: “Did the Court of Appeals’ determination that the traffic stop was illegal ignore relevant facts and rational inferences, require the state to rebut innocent explanations, and misconstrue Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005)?” CCA reversed COA and reinstated the denial of the motion to suppress.

        The trial court’s explicit language made it clear that the court found the officer’s offense report credible, and that the court supported the reasonable inference that the vehicle’s slow pace in the inside lane caused the traffic congestion that the officer observed; the facts and inferences were sufficient to lead a reasonable officer to conclude that D was engaged in criminal activity in violation of Tex. Transp. Code § 545.363(a).

Counsel was not ineffective in forfeiting a statute of limitations challenge to D’s assault indictment because the legal basis of such a challenge was unsettled. State v. Bennett, 415 S.W.3d 867 (Tex.Crim.App. 2013).

        D alleged he received ineffective assistance for counsel failing to challenge D’s indictment on statute-of-limitation grounds. The judge granted D a new trial, stating that while he would have denied such a statute of limitations challenge because superior courts have held the statute of limitations to be three years, counsel should have preserved the issue for appeal. COA and CCA reversed, finding that counsel was not ineffective because the legal basis of such a statute-of-limitation challenge was unsettled.

        The preliminary issue was to determine which statute applied. Tex. Code Crim. Proc. art. 12.01’s catch-all provision provides that all felonies not listed have a three-year statute of limitations; article 12.03(d) states “[e]xcept as otherwise provided by this chapter, any offense that bears the title ‘aggravated’ shall carry the same limitations period as the primary crime.” In this case, the statute of limitations for aggravated assault under article 12.01 would be three years; under article 12.03(d), it would be two. D supplemented his new trial motion with an affidavit in which counsel claimed he did not challenge on statute-of-limitation grounds because, based on article 12.01(6), he believed the statute of limitations was three years. COA found conflicting CCA holdings on the matter and therefore that “the trial court did not have discretion to grant a new trial based on failure to preserve that claim for appellate purposes.” CCA likewise found this question was unsettled and has “repeatedly declined to find counsel ineffective for failing to take a specific action on an unsettled issue.”

Officer using a loud authoritative voice to speak with D, asking “what’s going on,” and demanding identification, manifested a detention that implicated Fourth Amendment protections. Johnson v. State, 414 S.W.3d 184 (Tex.Crim.App. 2013).

        In reviewing the denial of D’s motion to suppress evidence that led to his marijuana conviction, COA erred in holding that the officer did not detain D. Under the totality of the circumstances, as properly reviewed de novo, a reasonable person would not have felt free to leave. Officer shining a “pretty darn bright” high-beam spotlight on a person sitting in a parked vehicle, parking the police car in such a way as to at least partially block the vehicle such that the person would have had to “maneuver” around the police car to drive away, using a “loud authoritative voice” in speaking with the person, asking “what’s going on,” and demanding identification manifests a detention. CCA remanded for COA to consider the trial court’s determination that officer had reasonable suspicion to detain D and to decide whether that detention was valid.

D suffered egregious harm when the court failed to in­struct the jury that it must find certain predicate facts true beyond a reasonable doubt before relying on a statutory presumption to convict him. Hollander v. State, 414 S.W.3d 746 (Tex.Crim.App. 2013).

        CCA reversed COA and remanded for a new trial. The jury was not told that to convict D of criminal mischief, it had to believe beyond a reasonable doubt, as required by Tex. Penal Code § 2.05, the evidence substantiating the presumption that D engaged in the prohibited conduct because he benefited from the rigged meter on his house. Neither the balance of the jury charge nor the conduct of the parties corrected this deficiency. Moreover, the facts giving rise to the presumption were hotly contested; CCA therefore rejected both COA’s finding that the great weight of the evidence established the predicate facts and its implicit conclusion that the jury probably would have found those predicate facts to be true to the requisite level of confidence—beyond a reasonable doubt—had it been required to do so. CCA considered all these Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985), factors and held that the jury charge error both affected the very basis of the case and deprived D of the right to a fair trial.

The affidavit detailing a controlled purchase and the reasonable inferences therefrom supported prob­a­ble cause that cocaine would be found in D’s house. Moreno v. State, 415 S.W.3d 284 (Tex.Crim.App. 2013).

        A magistrate issued a warrant to search D’s house for crack cocaine based on an affidavit detailing a controlled purchase in which police used a reliable confidential informant to purchase narcotics through an unknown third party. The third party was not aware of the police operation. Because there was no information on the credibility or reliability of the unknowing third party, appellant argued that the magistrate could not have concluded that there was probable cause to believe the cocaine came from his house. COA and CCA concluded that the affidavit provided a substantial basis for probable cause.

        The affidavit stated that a reliable source told officers that D was distributing narcotics from his residence, the officers used a confidential informant to conduct a controlled purchase of cocaine from D, the informant made contact with an unknowing participant (who told him he would go to D’s house to pick up the cocaine), and the officers saw the participant enter D’s house and then deliver the cocaine to the informant.

The evidence was sufficient for D’s criminal mischief conviction; the judge properly resolved conflicting evidence to conclude that D intentionally damaged property by throwing screws and nails in the road, causing flat tires. Carrizales v. State, 414 S.W.3d 737 (Tex.Crim.App. 2013).

        D appealed that the evidence was insufficient to establish the corpus delicti of the offense of criminal mischief—i.e., that the damage to the tires was the result of criminal activity. COA disagreed, stating that proof of D’s motive and the physical evidence combined allowed a fact finder to conclude that the State had established the corpus delicti of criminal mischief. CCA affirmed.

        “The corpus delicti rule is a common law, judicially created, doctrine—the purpose of which was to ensure that a person would not be convicted based solely on his own false confession to a crime that never occurred. . . . The old corpus-delicti ‘usability’ rule has . . . been superceded by the due-process ‘sufficiency of the evidence’ model set out in Jackson v. Virginia[, 443 U.S. 307 (1979)]. Jackson is the only constitutional standard of review for assessing the legal sufficiency of evidence in a criminal case. Under that standard, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. . . . If the State proves each element beyond a reasonable doubt, there is no doubt that the crime has been committed by someone, namely the defendant. Because this case does not involve a defendant’s extrajudicial confession, there is neither need nor purpose to refer to the corpus-delicti doctrine. Mention of the corpus-delicti doctrine in a Jackson sufficiency review when the case does not involve a confession is, at best, just short hand for ‘evidence that the crime has been committed,’ and, at worst, confusing.” CCA agreed with the State that the victims, the investigators, and the trial judge could all reasonably apply the “doctrine of chances” to these facts to conclude beyond a reasonable doubt that the tire damage was caused by D’s intentional act rather than by an inadvertent accident.

The trial court did not clearly err in accepting the prosecutor’s race-neutral reasons for striking a juror. Blackman v. State, 414 S.W.3d 757 (Tex.Crim.App. 2013).

        A jury convicted D of felony possession with intent to deliver cocaine. D appealed that the trial court erred in overruling his objection that the State used a peremptory challenge to strike an African-American prospective juror from his petit jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). COA agreed, finding that at least one of the prosecutor’s explanations for the challenge was a pretext for racial discrimination, and reversed D’s conviction on authority of Snyder v. Louisiana, 552 U.S. 472 (2008). CCA reversed COA:

“the court of appeals erred to conclude that Snyder governs the facts of this case. In our view, the court of appeals’ analysis went wrong in three respects. First, it misinterpreted the prosecutor’s proffer of racially neutral explanations for striking Fortune to include two non-demeanor-based reasons, namely: that the jury on which she had previously served had neither 1) reached a verdict, nor 2) assessed punishment. Because the prosecutor never offered either of these as explanations for his peremptory strike in the first place, they can hardly be deemed a cover-up for a discriminatory intent. Second—and as a consequence of its first mistake—the court of appeals erred to conclude that the trial court made no ruling with respect to the prosecutor’s demeanor-based explanations for his peremptory challenge. Finally, in the absence of an inference of discriminatory intent arising from a pretextual explanation, the court of appeals erred in shifting the burden of proof to the State, à la Snyder, to rebut an inference that these purported explanations conclusively established discrimination.”

The independent source doctrine does not circumvent the Texas statutory requirement to suppress unlawfully obtained evidence and was a proper basis to deny D’s suppression motion. Wehrenberg v. State, 416 S.W.3d 458 (Tex.Crim.App. 2013).

        The trial court applied the independent source doctrine and denied D’s motion to suppress, and D was convicted of two felony drug offenses. COA reversed, holding that the independent source doctrine is inconsistent with Texas’s exclusionary rule and thus inapplicable in this state. The State petitioned CCA with this question: Is the federal independent source doctrine, which excepts from the exclusionary rule evidence initially observed during an unlawful search but later obtained lawfully through independent means, applicable in Texas?

        CCA agreed with the State that the independent source doctrine is wholly consistent with Tex. Code Crim. Proc. art. 38.23, the statutory exclusionary rule in Texas that requires suppression of unlawfully obtained evidence. CCA further observed that its prior rejection of the inevitable discovery doctrine does not imply or necessitate its rejection of the independent source doctrine here. CCA reversed and remanded to COA for further consideration of D’s argument that the court erroneously denied his motion to suppress.

Habeas relief granted based on ineffective assistance of counsel, but D did not show actual innocence. Ex parte Villegas, 415 S.W.3d 885 (Tex.Crim.App. 2013).

        D was convicted of capital murder and sentenced to life imprisonment. COA affirmed. In this habeas writ, D alleged he received ineffective assistance of counsel and is actually innocent. The trial court held hearings, made findings of fact and conclusions of law, and determined that counsel was ineffective and D is innocent under Schlup v. Delo, 513 U.S. 298 (1995). CCA granted relief, set aside the conviction, and remanded D to custody to answer the charges in the indictment.

        CCA agreed that D was entitled to relief because he showed that counsel was ineffective for not presenting evidence of pos­sible alternative perpetrators and for not discovering and presenting evidence that would have allowed the jury to give effect to the voluntary confession jury instruction. However, CCA disagreed that D showed he is innocent. “In a Schlup actual-innocence claim, evidence demonstrating innocence is a prerequisite the applicant must satisfy to have an otherwise barred constitutional claim considered on the merits. In this case, the trial court found that Sixth Amendment ineffective assistance of counsel violations, combined with the cumulative evidence of innocence, showed that D was actually innocent. Because D’s ineffective assistance claims were not procedurally barred as subsequent, a Schlup innocence claim dependent on them is improper.” Furthermore, D did not show that new facts “unquestionably establish” his innocence.

Court of Appeals

Felony murder conviction was not void because felony deadly conduct under Tex. Penal Code § 22.05(b)(2), (e) was not a lesser included offense of manslaughter under § 19.04(a) and could serve as the underlying felony in a felony murder prosecution under § 19.02(b)(3). Wash­ington v. State, 417 S.W.3d 713 (Tex.App.—Houston [14th Dist] 2013).

        “Appellant challenges his conviction and sentence in six issues concerning the underlying felony for felony murder, the sufficiency of the evidence, the effectiveness of counsel’s representation, and alleged jury charge error. We affirm.”

Evidence was legally insufficient to support the conviction of tampering with a governmental record because the State failed to prove that D presented his claim to the city with knowledge of its falsity or with intent that it be relied on as a government document. Fox v. State, 418 S.W.3d 365 (Tex.App.—Texarkana 2013).

        “The foregoing evidence is insufficient to prove Fox knew the allegations of discrimination, religious persecution, retaliation, and torture were false. Fox’s allegations are merely that—allegations—to be accepted or rejected in a civil proceeding. . . . Further, the State alleged in its indictment that Fox presented the notice of claim ‘with intent that it be taken as a genuine governmental record, by presenting or using a document filed with the Smith County Clerk. . . .’ In its case, the State produced no evidence that Fox had the intention that the claim be taken as a genuine governmental record due to its previous filing in Smith County. In contravention of that charge, Fox himself presented a somewhat paranoid explanation for causing it to be filed—he wanted it to be copied by some credible agency so he could prove its original content if someone subsequently altered it.”

D failed to rebut the presumption that requiring him to submit to polygraph and plethysmograph exams is a reasonable condition of his community supervision. Mitchell v. State, 420 S.W.3d 448 (Tex.App.—Houston [14th Dist] 2014).

        Appellant pleaded guilty to promotion of child pornography. The trial court deferred adjudication and placed appellant on community supervision for ten years. Appellant was ordered to submit to a program of psychological and physiological assessment on the direction of his community supervision officer. “The legislature has prescribed a nonexclusive list of valid conditions of community supervision. See Tex. Code Crim. Proc. art. 42.12, § 11(a). Currently, the list consists of twenty-four separate conditions, but polygraph and plethysmograph examinations are not enumerated among them. Despite this omission, the examinations are addressed elsewhere in the code of criminal procedure in a manner that evidences their legislative endorsement. . . . If the legislature had wholly intended to reject polygraph examinations from the scope of permissible conditions, it could have said so directly. . . . Many courts have determined that the results of polygraph and plethysmograph examinations are unreliable as items of evidence, but these decisions do not control the outcome in this case. . . . With respect to the treatment of sex offenders, the legislature has already determined that both polygraph and plethysmograph examinations offer some value at the diagnostic level.”

Federal Supervised Release

Supervised Release (“SR”) is supervision of a federal defendant after a prison term and is part of the total sentence.1 SR has three primary legal sources: 18 U.S.C. § 3583;2 Fed. R. Crim. P. 32.1;3 and U.S. Sentencing Guidelines Manual [hereinafter USSG] §§ 5D1.1–5D1.3; 7B1.17B1.4.4 The court is required to impose a term of supervised release to follow imprisonment if a sentence of imprisonment of more than one year is imposed

or if a term of SR is required by a specific statute.5 Supervised release is also required if the defendant has been convicted for the first time of a domestic relations crime, as defined in 18 U.S.C. § 3561(b).6 Defense attorneys should counsel their federal felony client on SR, its duration, its potential conditions, and the implications of revocation. Counsel also should be prepared to make timely objections to protect the client.

Since November 1, 2011, amended USSG § 5D1.1(c) states that a court should not ordinarily impose SR in a case not required by statute when the defendant is a deportable alien who likely will be deported after imprisonment.7 Failure to object does not lead to plain error reversal.8

Duration of SR

The duration of SR depends on the nature of the crime for which the defendant is convicted. SR for terrorism crimes under 18 U.S.C. § 2332b(g)(5)(B)9 has any term to life.10 SR will carry a term of a minimum three years to life for child kidnapping, sex trafficking, sex crimes, Sex Offender Registration and Notification Act (SORNA), child sex exploitation, buying or selling children, child pornography, sexual depictions of minors, internet traveling with minors, and use of interstate facilities to transmit information on minors.11

The duration of SR in drug offenses generally is variable based upon the type of drug, its quantity, and the existence of prior convictions,12 as follows:

  • At least one kilogram of heroin, five kilograms of cocaine, 50 grams of crack, 100 kilograms of marijuana, or 50 grams of methamphetamine: 5 years SR without prior convictions and 10 years SR with prior convictions;
  • 100 grams or more of heroin, 500 grams or more of cocaine, 5 grams of crack of more, 100 kilograms of marijuana, or 5 grams or more of methamphetamine: 4 years SR without prior convictions and 8 years SR with prior convictions.

Class A felonies13 (those carrying a penalty or life or death) and Class B felonies (those carrying a penalty or 25 years or more) can have no more than 5 years of SR.14

Class C felonies (those carrying a penalty of 10 or more years but less than 25 years) and Class D felonies (those carrying a penalty of 5 or more years but less than 10 years) can have no more than 3 years of SR.15

A Class E Felony (those carrying a penalty of more than 1 year but less than 5 years) or a misdemeanor other than a petty offense can have SR of not more than 1 year.

When a district judge automatically imposes a lifetime SR without engaging in an analysis of the circumstances surrounding the crime, plain error occurs.16

Conditions of Supervised Release

The area that produces most attorney errors in SR proceedings is the lack of awareness of the conditions of supervised release. It is not uncommon for an attorney to be unaware of the conditions that can be imposed. If the attorney fails to timely object, then review on appeal on the imposed conditions is for plain error only.17 The standardized conditions of SR are detailed in USSG § 5D1.3. The court can impose the recommended conditions, statutory conditions, and special conditions. Defense counsel should bring these conditions to the attention of the defendant before sentencing and anticipate problems.

Federal law, 18 U.S.C. § 3583(d), and USSG § 3D1.3(a) require the following mandatory conditions:

  • The defendant shall commit no new crimes or use drugs;
  • A rehabilitation program is mandatory when a domestic violence crime has been committed for the first time;
  • Sex offenders must register under SORNA;18
  • Defendants must provide a DNA sample;19
  • Defendants may be subjected to urinalysis testing unless ameliorated under domestic violence rehabilitation under 18 U.S.C. § 3563(a)(4).

Special Terms. Most problems arise on special terms and conditions ordered by a district judge. SR special conditions may be imposed under 18 U.S.C. § 3583(d)(1)–(3) if the court considers three factors.

The first factor is that the special SR condition must be reasonably related to the sentencing factors in § 3553, which cover these areas:

  • The nature and circumstances of the offense and the history and characteristics of the defendant;20
  • The need for the sentence imposed to afford adequate deterrence to the criminal conduct;21
  • The ability to protect the public from further crimes of the defendant;22 and
  • To provide the defendant with needed educational and vocational training, medical care, or other correctional treatment.23

The second and, from a view point of objections, most important factor is that the SR condition involves no greater deprivation of liberty than is reasonably necessary for these purposes.

The third factor is that the SR special term and condition be consistent with the USSG policy statements.

Inquiry of the conditions before sentencing with the U.S. Probation Officer and in court with the district judge can bring problems to light before sentencing. A sample canned objection is noted in a box on the following page.

Problem Special Conditions. Especially problematic are special terms and conditions related to assessing sex offender registration and counseling, computers, phones, family members, and required counseling.

Conviction for sex offenses draws the special conditions in USSG § 5D1.3(d)(7). This section mandates participation in a treatment and monitoring program, limiting use of a computer or interactive computer service “in cases in which the defendant used such items,” and nonconsensual search of one’s home, computer, computer, and electronic devices.24

Sex offender counseling has been upheld as a condition under plain error review when counsel failed to object when the defendant was never convicted of a sexual offense.25 Such conditions have been imposed in a non-sex-offense case when there is evidence of a sexual misconduct.26

Sexual offender registration as a condition has been attempted when no sex crime was involved. Sexual offender registration cannot be based on a bare arrest record.27 Sex offender registration has been upheld when there was some evidence of sexual misconduct when defense counsel failed to object.28 But sexual offender registration as a condition has been held in error where defense counsel objected that there was no sexual offense.29 Sex offender registration as a condition of SR has been voided in a drug offender case when the condition was not ver­bally pronounced at sentencing.30

Barring access to computers has also been upheld as an SR condition.31 United States v. Tang32 marked a change to this requirement when computers were not part of the original offense. Tang was convicted for failing to register as a sex offender. A computer was not involved in his offense. The sentencing judge imposed an SR condition that Tang not use a computer. The Fifth Circuit held that USSG § 5D1.3(d)(7)(B)(2012) recommends, as a special condition of release for an individual convicted of a “sex offense,” a limitation on the “use of a computer or an interactive computer service in cases in which the defendant used such items.” Instant offense for which Tang was sentenced is his failure to register. Tang’s prior offense—assault with intent to commit sexual abuse, not causing bodily injury—did not involve a computer or the internet. The Fifth Circuit held there was no evidence that Tang has ever used the internet to commit an offense of any sort. The Fifth Circuit agreed with Tang that this condition could not be based on § 5D1.3(d)(7). The court reasoned that the internet ban was not “reasonably relate[d] to the factors set forth in” § 3553(a) and involved a greater deprivation of liberty than reasonably necessary under 18 U.S.C. § 3583(d)(1)–(2). The ban on computers did not relate to the “nature and circumstances” of Tang’s offense, the failure to register as a sex offender.

On March 31, 2014, part of the Tang case was limited by United States v. Segura.33 Segura pleaded guilty to failure to register as a sex offender (“failure to register”) under the Sex Offender Registration and Notification Act (“SORNA”). In a footnote, the Court said that under USSG § 5D1.2 cmt. n.1, “failure to register [as a sex offender] qualifies as a sex offense.”34 Tang, 718 F.3d at 483 n.3. As a result, Segura was placed on lifetime SR. Segura held that the footnote was mere dictum, and that failure to register did not qualify as a sex offense for the purposes of USSG § 5D1.2(b)(2). Because defense counsel did not object at sentencing, Sergura’s lifetime SR was held not to be plain error that required reversal.

SR conditions barring internet access have been upheld.35 The SR condition barring access to computers has also been extended to apply to cell phones with internet connection capability.36

District courts have also upheld testing by penile plethysmograph as an SR condition even though the procedure is a mentally and physically intrusive procedure of disputed scientific validity.37 Until the device is actually used, objections to such testing are often dismissed as being unripe.38

District courts have imposed SR conditions to prohibit a de­fen­dant from having access to his/her own children39 or his/her own spouse in an abusive relationship.40 However, the Fifth Circuit has struck down an SR condition that required the defendant in a drug case to live only with his/her spouse or a blood relative, as the condition imposed a greater deprivation of liberty than was necessary.41

Court-ordered mental health treatment has been upheld as a permissible condition of SR. A condition barring use of alcohol has been held as an abuse of discretion in a non-alcohol offense42 but not plain error.43 However, religious-based treatment in Alcoholics Anonymous as a condition has been struck down as violative of a Buddhist’s religious beliefs.44

The Fifth Circuit has held that conditions may deprive a defendant of constitutional rights and still survive.45

In United States v. Tapia, 564 U.S. __, 131 S. Ct. 2382, 2393 (2011), the U.S. Supreme Court held that a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation. Tapia has been extended to sentences on revocation of supervised release.46

Problems also have focused on whether or not the conditions were announced at sentencing. Oral pronouncement of the terms of SR controls overwritten terms of SR.47 Other problems arise when the conditions of supervision were not stated at sentencing and achieve the opposite result when the unpronounced conditions are mandatory, standard, and recommended by the U.S. Sentencing Manual.48 But, “if the district court fails to mention a special condition at sentencing, its subsequent inclusion in the written judgment creates a conflict that requires amendment of the written judgment to conform with the oral pronouncement.”49

Time Issues

Time can be an issue on supervised release. Supervised release starts on the day released from the Bureau of Prisons and runs concurrently with any other state or federal probation, parole, or SR. Supervised release does not run when person is imprisoned for other state or federal confinement unless that period is less than 30 days.50

After the time of SR has run, the defendant cannot be revoked for subsequent misconduct.51 Escape tolls the clock for SR.52

A U.S. District Judge has the authority to terminate SR early;53 however, defense counsel better have the support of the U.S. Probation Officer and the Assistant U.S. Attorney before filing the motion.54 Once SR has been vacated, the U.S. District Court lacks jurisdiction to revoke SR.55 A U.S. District Judge also has authority to increase the duration of SR.56

Revocation of SR

Supervised release can be revoked. The legal authority for revocation is set forth in 18 U.S.C. § 3583(e), USSG §§ 7B1.1 to 7B1.4,57 and Fed. R. Crim. P. 32.1.

Revocation is mandatory under 18 U.S.C. § 3583(g) for defendants with the following circumstances:

  • Possessing drugs or firearm;
  • Failing to comply with drug testing;
  • Testing positive for illegal drugs more than three times over course of one year. Urinalysis results must be confirmed by mass spectrometer testing.58

Revocation can be based on a non-criminal act.59

Revocation normally starts when a U.S. Probation Officer sends written reasons for revocation based on violations of the conditions of SR to the U.S. District Clerk on a Petition for Warrant for Offender under Supervision.60 This petition does not have to be sworn.61 An indictment is not required.62 The warrant must issue before the SR terms expires, but the hearing can be heard after the SR term expires.63

The defendant is arraigned on the revocation petition.64 The Defendant can waive the arraignment.

A defendant may seek bond pending revocation.65 A defendant has no right to a jury trial for revocation.66 An attorney may be appointed for a defendant in a revocation action.67 Defendant can waive counsel in a revocation action.68 A defendant does not have a constitutional right to represent himself at a revocation hearing, but the U.S. District Judge has discretion to allow a defendant to proceed pro se.69 Accordingly, a waiver of the right to counsel in the revocation context need not meet the formal requirements of the Sixth Amendment.70

If the defendant demands a hearing, the hearing has limitations. The Federal Rules of Evidence do not apply.71 In the absence of police harassment, the exclusionary rule does not apply to SR revocation hearings.72 An SR hearing cannot collaterally attack the original conviction.73

A defendant has an allocution right to speak at the revocation hearing.74

A defendant in an SR revocation hearing has limited confrontation rights.75 While due process provides the defendant in a revocation proceeding the right to confront and cross-examine adverse witnesses, the district judge may deny such right if there is good cause to do so.76 The limited confrontation right does not extend beyond revocation to the sentencing context upon the fact of revocation.77 Police reports can be considered as reliable evidence in the sentencing context.78

The evidentiary standard for finding a violation of SR is preponderance of the evidence.79

Defendant can also plead true and sign a plea agreement. If this is done, client and counsel usually do not have further court proceedings. Counsel should carefully scrutinize such a plea agreement as miscalculation on revocation is not plain error.80

A U.S. District Court is not required, by Fed. R. Crim. P. 32.1 or the Due Process Clause,81 to provide the defendant with pre-sentencing notice of all points raised in the revocation sentencing colloquy.82 Where there is an adequate basis for the district court’s discretionary action or revocation action, a reviewing court need not decide a claim of error as to other grounds that had been advanced as a cause for revocation.83

Consequences Upon Revocation

Revocation carries two main consequences: a revocation sentence to prison and assessment of additional SR.

Revocation sentencing is evolving. Initially, counsel determines the grade of supervised release violations in USSG § 7B1.1. Violations are Grade A,84 B,85 or C.86

When multiple violations occur, the violation with the highest grade controls.87

Upon a finding of a Grade A or B violation, the district court shall revoke SR.88 A Grade C violation may draw an extension of the SR or modification of the SR terms.89

The range of punishment applicable upon revocation is found in the table at USSG § 7B1.4. The top line of the table details the defendant’s criminal history category. Use the criminal history category from the defendant’s original sentence to the term of supervision.90 Defense counsel should verify the defendant’s criminal history category by reading the judgment on PACER or by phoning the U.S. Probation Officer assigned to the case.

The left column of the table gives the grade of violation. Where the defendant’s criminal history intersects with the grade of violation, a range of imprisonment is months is displayed.

Consulting the table does not end the quest for a revocation sentence. The Fifth Circuit holds that 18 U.S.C. § 358291 applies to the revocation sentence.92 This reference permits the district judge to apply a reasonable sentence rather than be stuck to the revocation table. However, the Fifth Circuit has gone further and held that 18 U.S.C. § 3553(a)(2)(A)93 does not apply to revocation sentences.94

If the district court imposes a revocation sentence outside the range recommended by the USSG policy statements, the Court must give an explanation.95

Also, the district courts have had statutory authority to impose a new term of SR after revocation since the 1994 Crimes Act added 18 U.S.C. § 3585(h). Adding an additional term of SR after revocation has passed constitutional challenge.96

Computing the duration of the new term of SR can be com­plex. The statute that authorizes a new term of SR, 18 U.S.C. § 3583(h), calculates the maximum term of SR upon revocation by the following formula:

The length of such a term of [SR] shall not exceed the term of supervised release authorized for the offense that resulted in the original term of [SR], less any term of imprisonment that was imposed upon revocation of [SR] [emphasis added].

This formula has a two-step process. First, the district court must identify the term of SR authorized for the defendant’s original offense.

In determining the SR authorized for the defendant’s original offense, remember that the SR statute, 18 U.S.C. § 3583(b), states its provisions apply “except as otherwise provided.” These last four words are a worm hole into a different dimension. Recall that certain statutes, especially statutes involving sex or drugs, set their own SR term. When a statute, such as amended 21 U.S.C. § 841(b)(1)(C),97 sets a lower limit on the SR term but no maximum limit, then the outer limit is life.98

The second step is to subtract from the originally authorized SR term “any term of imprisonment that was imposed upon revocation of [SR].” The courts of appeal have concluded that the term “any term of imprisonment” includes all prior SR terms when there have been multiple revocations.99

Revoking a sentence and adding a new SR term can create a variety of issues.

  • Revocation of SR and prosecution for a new crime is not double jeopardy or collateral estoppel;100
  • Issues arise with respect to concurrent and consecutive sentences. USSG § 7B1.3(f) urges consecutive time. But concurrent sentencing is permissible with 18 U.S.C. § 3553(a) reasonableness.101 Concurrent sentencing is available to a new federal offense, a new state offense, and even an anticipated new state offense.102 Still, federal courts can articulate reasons and make SR terms run consecutively.103

Appeals

Within 14 days of sentencing, counsel can file a motion under Fed. R. Crim. P. 35(a) to correct an SR sentence from arithmetical, technical, or other clear error.104 Failing that, the next step is an appeal.

Federal appeal courts have jurisdiction to hear an appeal in a criminal case under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

A criminal appellant must file a notice of appeal with the U.S. District Clerk within 14 days of judgment.105 Federal appellate rules have certain requirements for the notice of appeal.106 In non-indigent cases in the Fifth Circuit in 2013, a filing fee of $455 must be paid upon filing the notice of appeal.107

Within 10 days of the filing of the notice of appeal, appellate counsel should file a variety of forms to enter one’s appearance with the applicable court of appeals and order the transcript. Such forms are usually available off the court’s webpage. Court-appointed counsel also needs to file an attorney tax identification form with the applicable court of appeals. This form is available off the court of appeals’ webpage.

Waiver of the right to an appeal in a plea bargain is enforceable on SR issues.108 However, the standard appeal waiver in the original appeal agreement may not waive the right to appeal a subsequent revocation of SR.109 Fifth Circuit case law requires defense counsel to ascertain and certify in the appellate brief whether the Government will rely on the defendant’s appeal waiver.110 If the Government does not invoke the appeal waiver provision of a plea agreement, the waiver provision does not bar an appeal.111 Validity of an appeal waiver is reviewed de novo.112

As in all federal cases, jurisdiction is a requirement in appeals involving supervised release. The standard of review for jurisdictional issues is de novo.113 Jurisdiction is lacking when appellant appeals a supervised release issue after the supervised release has been served, as there is no case or controversy as required by Article III, § 2 of the Constitution of the United States.114

A federal prisoner can use 28 U.S.C. § 2255 to be released from custody on a claim the sentence was imposed in violation of the Constitutional and laws of the United States or the Court lacked jurisdiction to impose the sentence or was in excess of the maximum allowed by law. In this regards, a defendant on supervised release is in custody for purposes of 28 U.S.C. § 2255.115

Appellate briefs are required to give the appropriate standard of review. Supervised release issues have the following standards of review.

  • Regular conditions of SR are viewed for abuse of discretion;116
  • Special conditions of SR are reviewed for abuse of discretion;117
  • Decisions to revoke SR are reviewed for abuse of discretion;118
  • A sentence that exceeds the statutory maximum is plain error;119
  • Revocation sentences are reviewed under 18 U.S.C. § 3472(a)’s plainly unreasonable standard.120 If counsel fails to object, then the standard is plain error review.121

Occasionally, a defendant will have a count set aside on appeal or have his sentence reduced under crack cocaine re-sentencing and will have served more time in confinement upon remand than was due after re-sentencing. In such a case, the defendant is not entitled, as a matter of law, to a reduction of his term of supervised release.122

This article cites a number of unpublished cases. Such cases after 2007 may be cited in appeals briefs with certain limitations or requirements.123 Unpublished Fifth Circuit cases issued before January 1, 1996, are precedent in the Fifth Circuit.124

Endnotes

1. United States v. Gonzalez, 250 F.3d 923, 928 (5th Cir. 2001).

2. Section 3583 is the statutory authority for SR and its operation.

3. This rule covers revocation and modification of SR.

4. A defendant must be sentenced under the version of the Guidelines in effect at sentencing, unless doing so would violate the Ex Post Facto Clause of the Constitution. 18 U.S.C. § 3553(a)(4)(A)(ii); USSG § 1B1.11; United States v. Martin, 596 F.3d 284, 286 (5th Cir. 2010). Typically, the guidelines are updated each November.The latest annual edition of the Guidelines Manual can be found on the internet: < http://www.ussc.gov >, click <Guidelines Manual>, click <Current Version> or <Archives>.

5. USSG § 5D1.1. Examples of statutes mandating a term of SR include certain sexual crimes, 18 U.S.C. § 3583(k), and drug offenses, 21 U.S.C. § 841(b)(1)(A)(viii), (B)(viii), (C), and (D).

6. 18 U.S.C. § 3583(a). This statute identifies the victims as spouse, former spouse, intimate partner, former intimate partner, child or former child of the defendant, or any other relative of the defendant.

7. United States v. Cancino-Trinidad, 710 F.3d 601, 607 (5th Cir. 2013).

8. The amendments still give a district judge authority to impose terms of SR for deportable aliens when no statutory minimum SR terms exists if SR is needed as “an additional measure of deterrence and protection.” United States v. Dominguez-Alvarado, 695 F.3d 324, 329-10 (5th Cir. 2012). See also United States v. Bercerril-Pena, 714 F.3d 347, 351 (5th Cir. 2013)(SR for deportable alien upheld on case facts).

9. The list of terrorism crimes is massive. The list covers crimes that may be considered definitional crimes of terrorism (destruction of aircraft, use of chemical or biological weapons) plus acts that might be not be so considered (murder of foreign officials, homicide of U.S. nationals outside the United States, financing terrorism).

10. 18 U.S.C. § 3583(j).

11. 18 U.S.C. § 3583(k). This provision was added in 2003 by the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act [PROTECT Act, Pub. L. 108–21, § 101, 117 Stat. 650, 651]. The PROTECT Act is not retroactive. United States v. Thomas, 600 F.3d 387, 389 (5th Cir. 2010)(ap­plication violated Ex Post Facto Clause).

12. 21 U.S.C. § 841.

13. Felonies are classified by 18 U.S.C. § 3559(a).

14. 18 U.S.C. § 3583(a).

15. 18 U.S.C. § 3583(a).

16. United States v. Alvarado, 690 F.3d 592, 598 (5th Cir. 2012)(“I’ve never given, never not given, since it was authorized, a lifetime, a lifetime supervision in child pornography.”).

17. United States v. Talbert, 501 F.3d 449, 452 (5th Cir. 2007).

18. 42 U.S.C. §§ 16901–962.

19. See standards in DNA—Sample Collection and Biological Evidence Pres­ervation in the Federal Jurisdiction, 73 Fed. Reg. 74932 (Dec. 10, 2008), and 28 C.F.R. § 28.12. DNA collection statutes have withstood constitutional challenge. Groceman v. United States Dep’t of Justice, 354 F.3d 411 (5th Cir. 2004). The U.S. Supreme Court has recently approved collection of DNA samples when a defendant is booked. Maryland v. King, 569 U.S. __, 133 S. Ct. 1958 (2013).

20. 18 U.S.C. § 3553(a)(1).

21. 18 U.S.C. § 3553(a)(2)(B).

22. 18 U.S.C. § 3552(a)(2)(C).

23. 18 U.S.C. § 3552(a)(2)(D).

24. For an excellent review of these conditions, see United States v. Ellis, 720 F.3d 220, 224–28 (5th Cir. 2013).

25. United States v. Ybarra, 289 F. App’x. 726, 733–34 (5th Cir. 2008)(originally a drug case; conditions imposed upon revocation of SR); United States v. Deleon, 280 F. App’x 348, 351 (5th Cir. 2008)(felon with firearm).

26. United States v. Weatherton, 567 F.3d 149 (5th Cir. 2009)(fraud case).

27. District court may not rely on bare arrest record for sentencing. United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012); United States v. Windless, 719 F.3d 415, 417 (5th Cir. 2013). An arrest record is “bare” when it refers “to the mere fact of an arrest—i.e.[,] the date, charge, jurisdiction & disposition—without corresponding information about the underlying facts or circumstances regarding the defendant’s conduct that led to the arrest.” Id. Due process requires “that sentencing facts . . . be established by a preponderance of the evidence. United State. v. Johnson, 648 F.3d 273, 277–78 (5th Cir. 2011).

28. Ybarra, 289 F. App’x at 733 (suggesting result would have differed if counsel had properly objected and developed a record).

29. United States v. Jimenez, 275 F. App’x 433, 439–41 (5th Cir. 2008).

30. United States v. Diaz, 413 F. App’x 704, 710 (5th Cir. 2011).

31. United States v. Brigham, 569 F.3d 220, 234 (5th Cir. 2009)(also covers prohibitions on pornographic materials, sexually phone services, sexually stimulating materials); United States v. Paul, 274 F.3d 155, 167–70 (5th Cir. 2001); United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013) (upholding lifetime ban). See also United States v. Miller, 665 F.3d 114, 126, 133–34 (5th Cir. 2011)(upholding 25-year ban on computer use, subject to approval by the probation officer). Paul and Miller were indorsed in United States v. Esler, 531 F. App’x 502 (5th Cir. 2013).

32. 718 F.3d 476, 483–84 (5th Cir. 2013).

33. (No. 12-11262), 2014 WL 1282759*4 (5th Cir. Mar. 31, 2014).

34. Under a proposed amendment to USSG § 2D1.2, application note 1, set to go into effect on November 1, 2014, failure to register as a sex offender under 18 U.S.C. § 2250 will not be a sex offense. Amendments to Sentencing Guidelines (Preliminary), April 10, 2014.

35. United States v. Paul, 274 F.3d 155, 169 (5th Cir. 2001)(3 years); United States v. Thielemann, 575 F.3d 265, 270, 278 (3d Cir. 2009)(10 years); United States v. Fortenberry, 350 F. App’x 906, 911 (5th Cir. 2009)(for life in child pornography case; deemed harsh but upheld under plain error since defense counsel did not object).

36. United States v. Craig, 383 Fed. App’x 445, 447 (5th Cir. 2010). Such a restriction may seem quite impracticable as various phone services, such as AT&T, abandon hard-line phones and go only to cell phones.

37. United States v. Christian, 344 F. App’x 53, 56 (5th Cir. 2009).

38. See United States v. Carmichael, 343 F.3d 756, 761–62 (5th Cir. 2003). This challenge to a condition of supervised release is, unlike restriction, not contingent on future events or decisions. See, e.g., United States v. Paul, 274 F.3d 155, 164–55 (5th Cir. 2001) (addressing the appeal of several restrictions including no contact with minors). The Fifth Circuit agrees with circuits that dismissed similar challenges to penile plethsymograph testing for lack of ripeness. See United States v. Rhodes, 552 F.3d 624, 628 (7th Cir. 2009); United States v. Lee, 502 F.3d 447, 449–451 (6th Cir. 2007). But see United States v. Weber, 451 F.3d 552, 556–57 (9th Cir. 2006)(need not await violation of SR for appellant review of plethsymograph testing requirement).

39. Christian, 344 F. App’x at 56. The court prohibited “any form of unsupervised contact with minors under the age of 18 at any location . . . without prior permission of the probation officer.” Counsel objected, but the court ruled that the record justified these conditions. When counsel objects to special conditions, review of the district court’s decision is for an abuse of discretion. United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009). A district court has wide discretion to impose any condition of supervised release it deems appropriate, but the conditions must be reasonably related to three criteria. Id. at 412–13. The Court in Christian noted that similar restrictions have been upheld in cases involving child pornography or sexual contact with minors. United States v. Rodriguez, 558 F.3d 408 (5th Cir. 2009) (pending state charge for sexual assault of a minor); United States v. Buchanan, 485 F.3d 274, 288 (5th Cir. 2007) (convicted of receipt of child pornography); United States v. Paul, 274 F.3d 155, 165–66 (5th Cir. 2001) (prohibition where children congregate for photographer who plead guilty to possession of child pornography). The Court said the defendant was not, however, ineluctably barred from contact with his children. The term of supervised release allowed such contact with the probation officer’s permission. If such permission is unfairly denied, the district court could modify the term under 18 U.S.C. § 3583(e)(2) and Fed. R. Crim. P. 32.1(c). See United States v. Phipps, 319 F.3d 177, 193–94 (5th Cir. 2003)(upholding condition of supervised release and suggesting modification as a possible remedy). But see United States v. Windless, 719 F.3d 415 (5th Cir. 2013)(prohibiting all contact with children was unreasonable).

40. United States v. Balderas, 358 F. App’x 575, 578–81 (5th Cir. 2009)(no objection by counsel).

41. United States v. Wood, 547 F.3d 515, 518–19 (5th Cir. 2008)(creates greater deprivation of liberty than is necessary to meet goals of SR).

42. United States v. Bass, 121 F.3d 1218, 1223–25 (8th Cir. 1997)(drug case without evidence of excessive use of alcohol).

43. United States v. Carrillo, 660 F.3d 914, 930 (5th Cir. 2011).

44. Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007)(parole condition, not SR).

45. United States v. Woods, 547 F.3d 515, 519 (5th Cir. 2008); see also 18 U.S.C. § 3583(d)(listing standard conditions that inherently infringe a defendant’s liberty and requiring that other conditions involve “no greater deprivation of liberty than is reasonably necessary”). See also Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S. Ct. 3164)(1987) (citing Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593 (1972)); United States v. Stafford, 983 F.2d 25, 28 (5th Cir. 1993)(holding that a condition is “not necessarily invalidated merely because it impairs” enjoyment of constitutional rights). United States v. Brown, 235 F.3d 2, 7 (1st Cir. 2000).

46. United States v. Garza, 706 F.3d 655, 656–58 (5th Cir. 2013). Footnote 5 of Garza states that Tapia casts doubt on the continuing validity; United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994), in which a panel heard an appeal from a sentence of imprisonment that was imposed following mandatory revocation of supervised release pursuant to a prior version of § 3583(g). As a result, the Fifth Circuit joins the majority of Circuits, cited in Garza, applying Tapia to revocation actions. Extended SR for rehabilitation purposes is now plain error. United States v. Meza, No. 11-10565, 2013 WL 3227272, at *2 (5th Cir. Feb. 7, 2013). However, rehabilitation can be considered as a secondary factor rather than as the dominant factor. United States v. Walker, 742 F.3d 614 (5th Cir. 2014).

47. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006); United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). The remedy is to reform the judgment to the oral pronouncement. United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).

48. United States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir. 2003).

49. Id. at 936 (emphasis in original).

50. 18 U.S.C. § 3624(e). Sometimes this works to a defendant’s benefit. In United States v. Garcia-Rodriguez, 640 F.3d 129, 133–34 (5th Cir. May 2, 2011), defendant was transferred from the Bureau of Prisons (BOP) to Immigration and Customs Enforcement (ICE). The Fifth Circuit held that administrative detention by ICE did not qualify as imprisonment, and that for purposes of § 3624(e), defendant was “released from imprisonment” the moment he was transferred from BOP to ICE custody to await deportation. Under immigration law, administrative detention of an alien is not the same as imprisonment for a crime. See e.g., 8 U.S.C. § 1226(c)(1); Accord: United States v. Perez, 251 F. App’x 523, 524 (10th Cir. 2007)(defendant’s period of supervised release began once he was transferred to ICE custody).

51. United States v. Lynch, 114 F.3d 61, 63–64 (5th Cir. 1997).

52. United States v. Alvarado, 201 F.3d 379, 381 (5th Cir. 2000).

53. 18 U.S.C. § 3582(e)(1).

54. The defense motion should include the position of the U.S. Probation Officer and the U.S. Attorney.

55. United States v. Naranjo, 259 F.3d 379, 382–83 (5th Cir. 2001).

56. 18 U.S.C. § 3582(e)(2). Defense counsel can propose such an extension as an alternative to revocation.

57. Remember that policy statements under USSG Chapter 7 are advisory only and not mandatory. United States v. Escamilla, 70 F.3d 835, 835 (5th Cir. 1995), adopting reasoning in United States v. West, 59 F.3d 32 (6th Cir. 1995).

58. 18 U.S.C. § 3583(d)(buried at end of text). There is no right to confront lab personnel when the government via affidavit showed good cause for the denial of confrontation. United States v. McCormick, 54 F.3d 214, 220–21 (5th Cir. 1995).

59. Johnson v. United States, 529 U.S. 695, 697, 700 120 S. Ct. 1795 (2000)(case also discusses Ex Post Facto implications of a second term of SR after revocation of the first term of SR).

60. 18 U.S.C. § 3583(f).

61. United States v. Garcia-Avalino, 444 F.3d 444, 446 (5th Cir. 2006).

62. United States v. Williams, 919 F.2d 266, 271 (5th Cir. 1990)(citing United States v. Celestine, 905 F.2d 59, 60–61 (5th Cir. 1990)).

63. United States v. Jimenez-Martinez, 179 F.3d 980, 981 (5th Cir. 1999).

64. A U.S. Magistrate Judge can and usually does hold the preliminary hearing, but only a U.S. District Judge can hold the revocation hearing. Fed. R. Crim. P. 32.1(b). Williams, 919 F.2d at 269. A U.S. District Judge has jurisdiction to reverse a U.S. Magistrate Judge who holds there was no probable cause for SR revocation. United States v. Brigham, 569 F.3d 220, 229 (5th Cir. 2009).

65. Fed. R. Crim. P. 32.1(a)(5). Use 18 U.S.C. § 3143.

66. United States v. Hinson, 429 F.3d 114, 118–19 (5th Cir. 2005)(Booker restrictions do not apply).

67. Fed. R. Crim. P. 32.1(a)(3)(B). Appointment is under 18 U.S.C. § 3006A.

68. United States v. Moore, 116 F.App’x 544, 545 (5th Cir. 2004).

69. United States v. Hodges, 460 F.3d 646, 650 (5th Cir. 2006); see Fed. R. Crim. P. 32.1(b).

70. Hodges, 460 F.3d at 648.

71. Fed. R. Evid.1101(d)(3).

72. United States v. Montez, 952 F.2d 854, 857 (5th Cir. 1992).

73. United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001). A defendant cannot use the appeal of a revocation of SR to challenge an underlying conviction or original sentence either. United States v. Hinson, 429 F.3d 114, 116 (5th Cir. 2005) (may not challenge original sentence); United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001) (may not challenge indictment or drug quantity used at sentencing); United States v. Francischine, 512 F.2d 827, 828 (5th Cir. 1975) (may not challenge underlying conviction).

74. Fed. R. Crim. P. 32.1 (b)(2)(E).

75. Apply parole case of Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593 (1972)(limited right to confront on decision to revoke unless hearing officer finds good cause for not allowing); United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995). In a revocation hearing, the Sixth Amendment right to confrontation does not apply. In such a hearing , the defendant has the right to confront witnesses under Fed. R. Crim. P. 32.1 and the Fifth Amendment (procedural due process). See United States v. Grandlund, 71 F.3d 507, 510 (5th Cir. 1996).

76. Morrissey, Id., n.72, at 489; United States v. Grandlund, 71 F.3d 507, 510 (5th Cir. 1995); United States v. Minnitt, 617 F.3d 327, 334 (5th Cir. 2010)(Court asserts defendant did not exercise his options: request urinalysis retest, subpoena lab technicians, or present evidence rather than speculation that his medications created false positive).

77. United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).

78. United State v. Posado-Rios, 158 F.3d 832, 881 (5th Cir. 1998).

79. Johnson v. United States, 529 U.S. at 700; 18 U.S.C. § 3583(e)(3).

80. United States v. Jimenez, 364 F. App’x 907, 908 (5th Cir. 2010).

81. U.S. CONST. amend. V.

82. United States v. Warren, 720 F.3d 321, 328 (5th Cir. 2013)(noting invalid urine samples). Morrissey v. Brewer, 408 U.S. 471, 480 (1972), a parole revocation case, held that a defendant facing revocation is not owed “the full panoply of rights due a defendant in” a criminal prosecution.

83. United States v. Turner, 741 F.2d 696, 698 (5th Cir. 1984).

84. Grade A violations are conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device, or (b) any other federal, state, or local offense punishable by a term of imprisonment exceeding 20 years. USSG § 7B1.1 (a)(1).

85. Grade B violations are conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year. USSG 7B1.1(a)(2).

86. Grade C violations are conduct constituting (a) a federal, state, or local offense punishable by any term of imprisonment of one year or less; or (b) a violation of any other condition of supervision. USSG § 7B1.1(a)(3). The latter provision covers non-criminal violations of supervision.

87. USSG § 7B1.1(b).

88. USSG § 7B1.3(a)(1).

89. USSG § 7B1.3(a)(2).

90. USSG § 7B1.4 Application Note 1.

91. 18 U.S.C. § 3583 states that in determining whether to impose imprisonment or the length of imprisonment, the Court shall consider the factors in 18 U.S.C. § 3553(a).

92. United States v. Garza, 706 F.3d 655, 656–58 (2013).

93. This subsection that is now excluded from consideration states that in determining the particular sentence to be imposed, the Court shall consider the need for the sentence to be imposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide for just punishment of the offense.”

94. United States v. Miller, 634 F.3d 841, 844 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011).

95. United States v. Whitelaw, 580 F.3d 256, 261–62 (5th Cir. 2009)(citing Rita v. United States, 551 U.S. 338, 356–57, 127 S. Ct. 2456 (2007).

96. Johnson v. United States, 529 U.S. 694 passim, 120 S. Ct. 1795 (2000).

97. This particular subsection involves controlled substances like gamma hydroxybuytric acid and flunitrazepam.

98. United States v. Jackson, 559 F.3d 368 370–71 (5th Cir. 2009). The Jackson court noted that defense counsel had failed to object that the new term of SR was unreasonable. Thus, only plain error review was conducted.

99. United States v. Vera, 542 F.3d 457, 460–61 (5th Cir. 2008); United States v. Marzarky, 499 F.3d 1246, 1250 (11th Cir. 2007); United States v. Maxwell, 285 F.3d 336, 341 (4th Cir. 2002); United States v. Brings Plenty, 188 F.3d 1051, 1054 (8th Cir. 1999). The Vera court cautioned against consideration of other case law in this area prior to 2003, when § 3583(h) was amended. 542 F.3d at 461.

100. United States v. Fleming, 364 F. App’x 915, 915 (5th Cir. 2010). A revocation sentence is not punishment for the charged offenses, but for the offense for which supervised release had been imposed. Thus, a revocation sentence does not involve being punished twice for the same offense. See United States v. Carlton, 534 F.3d 97, 101 (2d Cir.), cert. denied, 129 S. Ct. 613 (2008); United States v. Wyatt, 102 F.3d 241, 245 (7th Cir. 1996). Revocation proceedings are not “essentially criminal.” See Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998); United States v. Whitney, 649 F.2d 296, 298 (5th Cir. 1981). Accordingly, the doctrine of collateral estoppel is inapplicable. See Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189 (1970); Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir. 1987).

101. United States v. Reyna, No. 12-10415, 2013 WL 5274470 (5th Cir. Sept. 19, 2013)(failure to object results in plain error review, though). All federal circuits agree that the sentencing court has discretion to order concurrent sentences. United States v. Schaefer, 107 F.3d 1280, 1285 (7th Cir. 1997).

102. United States v. Setser, 566 U.S. __, 132 S. Ct. 1463 (2012).

103. United States v. Gonzalez, 250 F.3d 923 (5th Cir. 2001); United States v. Dees, 467 F.3d 847 (3d Cir. 2006)(Court sentenced defendant consecutively upon SR revocation even though initial sentences ran concurrently).

104. Vera, 542 F.3d at 459.

105. FED. R. APP. P. 4(b). Counsels who fail to met the deadline may be able to get an extension for an excusable neglect or good cause. Fed. R. Crim. P. 4(b)(4).

106. FED. R. APP. P. 3(c).

107. 5th Cir. R. 3.

108. United States v. Joyce, 357 F.3d 921, 923 (9th Cir. 2004)(plea agreement barring appeal of “any aspect of sentencing” barred appeal of SR); United States v. Walters, 732 F.3d 489, 491 (5th Cir. 2013)(waivers in pure sentencing agreements are enforceable).

109. United States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008)(per curiam).

110. United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006).

111. United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).

112. See United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002); United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).

113. United States v. Lynch, 114 F.3d 61, 63 (5th Cir. 1997); United States v. Garcia-Avalino, 444 F.3d 444, 445 (5th Cir. 2006).

114. Spencer v. Kemna, 523 U.S. 1, 7, 14, 118 S. Ct. 978 (1998)(parole case).

115. United States v. Scruggs, 691 F.3d 660, 662 n.1 (5th Cir. 2012); Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006). See also Maleng v. Cook, 490 U.S. 488, 491, 109 S. Ct. 1923 (1989)(per curiam)(“Our interpretation of the ‘in custody’ language has not required that a prisoner be physically confined in order to challenge his sentence on habeas corpus.”).

116. United States v. Talbert, 501 F.3d 449 (5th Cir. 2007).

117. United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009).

118. United States v. McCormick, 54 F.3d 214 (5th Cir. 1996); United States v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995).

119. United States v. Williams, 602 F.3d 313, 319–20 (8th Cir. 2010); United States v. Rojas-Luna, 522 F.3d 502, 506–07 (5th Cir. 2008); United States v. Moreci, 283 F.3d 293, 300 (5th Cir. 2002).

120. United States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011). Miller creates a two-step test. First, did the district court commit significant procedural error. Second, if there is no procedural error, the court considers the substantive reasonableness of the sentence.

121. United States v. Whitelaw, 580 F.3d 256, 259–60 (5th Cir. 2009). Plain error review has three steps. The appellant must show (1) an error, (2) that was plain (e.g., clear or obvious), and (3) that affected his substantial rights. United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). If appellant makes this showing, the appeals court has discretion to correct the error, but only if the error seriously affects the fairness, integrity, and public reputation of judicial pro­ceedings. Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423 (2009).

122. United States v. Johnson, 529 U.S. 53, 59, 120 S. Ct. 1114 (2000). The remedy is to seek to modify release conditions under 18 U.S.C. § 3583(e)(2) or to terminate supervised release at any time after the expiration of one year under 18 U.S.C. § 3583(e)(1).

123. Fed. R. App. P. 32.1 and 5th Cir. R. 28.7.

124. 5th Cir. R. 47.5.3.

Eleven Essential DWI Trial Tactics

“We, the Jury, find the defendant not guilty.” Makes your hair stand on end, drops the weight from your shoulders, and weakens your knees. No sweeter words are ever heard by criminal defense attorneys standing shoulder to shoulder with their clients. Not guilty verdicts are difficult to attain in Driving While Intoxicated (DWI) cases due to anti-DWI propaganda, tragic DWI consequences, and a cultural bias against alcoholism and DWI. This article shares eleven effective trial tactics for a variety of DWI cases.

1. Be Real, Be You

As Gerry Spence says, “If you’re trying a case on the facts, you’ll lose every time.” Remember, the State chooses which cases they want to try because they think they can and should win. If the facts were on the client’s side and the client should win the case, the State will dismiss or reduce the case. Every case that goes to trial, the State believes the facts are so overwhelmingly in their favor that they can prove the case beyond a reasonable doubt. So, what do we as defense lawyers have? We have passion, we represent a human being, we have a heart, and people like us.

Imagine the jury, you, and the State are lost in the desert.1 The State stands up and says: “I was a Boy Scout, the sun rises in the East and sets in the West, home is this way, follow me.” And then you stand up and say: “I was Boy Scout too, and I also know that as well. My son’s name is Baron and my wife is Kendra. I love them both dearly and I will see them again. And when I do, I am going to wrap them both up and hug and kiss them.” Who are you going to follow out of that desert?

“Voir dire” is derived from Latin and means “to tell the truth.”2 Voir dire is an opportunity to really and truly know who your jurors are and how they feel about certain issues. By the time the defense attorney gets to speak, the judge and the State have already told them about the laws they must follow and that this case is a DWI. The defense attorney needs to know some very personal information in order to effectively make strikes for cause—i.e., each juror’s own drinking pattern, who has been affected by alcoholism, whether anyone lost a loved one or friend to DWI, any good or bad experiences with police officers, any biases, etc. Before jurors will open up and share their true feelings, they need to trust you.

How can that happen instantly? Show them yours, and they will show you theirs.3 Be vulnerable. Be genuine with the jury. Tell the juror something true about yourself. Tell them about you before you start asking about them. What should you share? You can start by sharing: (1) the worst thing going on in your life at the moment; and (2) the best thing. Also, promise the jury that you won’t ask them any questions that you won’t also answer. Tell the jury your personal drinking pattern, whether you have been affected by alcoholism or DWI, and any fears or biases you may have in the case. This allows the juror to feel comfortable sharing with you since you are sharing with them, being exposed and vulnerable. If you tell me, I’ll tell you; show me yours, I’ll show you mine. In the end, it’s only fair.

2. Presumption of Innocence

“Innocent until proven guilty” is a phrase every American knows by heart, but do humans truly understand the presumption of innocence? Jurors are often asked: “How many of y’all wonder what [s]he did to get here? Where there’s smoke there’s fire…” Every juror wonders. It’s unnatural not to. So, the skilled trial attorney needs to educate the jury on the strength of the presumption of innocence.

There is only one presumption in a criminal case: innocence.4 If there is only one presumption and that’s innocence, can the jury presume the police performed the tests correctly? Can the jury presume the breath or blood test is credible or reliable? Can the jury presume that the client can perform any of the standard field sobriety tests better than he did? NO. The jury may not presume anything other than that the client is innocent. The presumption of innocence is so powerful the State must prove their case beyond a reasonable doubt. And if just a doubt remains, the presumption of innocence prevails.

Think of the presumption of innocence as a compass. Give each juror an imaginary compass to keep with them throughout the entirety of trial. If the juror is ever lost, doesn’t know what to believe, doesn’t know who is telling the truth—the compass will point them home: not guilty. America errs on the side of freedom. The jury must never convict a human being when a doubt/question/hesitation exists. When in doubt, when confused, the compass points you home: not guilty.

3. Beyond a Reasonable Doubt

The legislature refuses to define beyond a reasonable doubt.5 However, the legislature allows counsel to compare that burden against other burdens of proof.6 Trial lawyers effectively demonstrate that beyond a reasonable doubt is the highest burden in the land and the top of any stair chart.7 The skilled trial lawyer will not only educate a jury on how high the burden is, but also simplify this cold legal phrase.

While the legislature may not provide a definition of beyond a reasonable doubt, the skilled trial attorney may provide an “example” of a similar phrase.8 Break the phrase down to the words and what those words actually mean. What’s a synonym of each word? Write the synonym next to each word of “beyond a reasonable doubt” on your display board. Start with your first juror and go down the row. If needed, help the jury discover the synonym. For example: If you went beyond your exit, where did you go? If you have a pineapple, how many pineapples do you have? Stress the “A”; it’s the shortest but most powerful word in the phrase. How much is less than A? If my wife is acting reasonable, how is she behaving? If you doubt there is water in a pool, what are you going to do at the edge before you run and jump in?

Finally, ask the jury: If you have just A reasonable doubt at the end of this case, what must your verdict be? Prepare for objections from the State by clearly stating this is not a definition and just an example. Plan on revisiting this example in closing when stressing the enormity of the State’s burden. Couple beyond a reasonable doubt with the presumption of innocence for an overwhelming case the State must prove. In the end, the jury should follow the law and return a verdict of “not guilty” because the State could not prove the case beyond a reasonable doubt.

4. The Rest of the Story

Eighty to ninety percent of jurors make up their mind after opening statement.9 After a compelling and real voir dire, the jurors are anxiously waiting to hear the client’s version. Opening statement is when the lawyer gets to tell the jury what they anticipate the evidence will show. It is not evidence. Most routine trial lawyers start their opening off : “May it please the court, your Honor, opposing counsel. The evidence will show…” You’ve just lost the jury. Unless the Court is formal and requires this, don’t do it. It is an unnecessary safety blanket better left for law school mock trial competitions. Rather, stand up and tell them your theory of the case, followed by every good quality about your client, and tell them the rest of the client’s story that the State conveniently left out.10 However, do not tell the jury anything that is untrue or that you cannot prove. Credibility with the jury must never falter.

How the defense attorney delivers an opening is just as important as what is said. A crafty trial attorney may attempt to deliver opening by “crawling in the skin”11 of his client and giving the jury a first-hand account of the rest of the story. Be prepared for objections, and let the judge and jury know that you anticipate “the evidence will show” all of this to be true. Lastly, since whether the client testifies is a last-minute decision after analyzing the need at the close of the State’s case, all of the client’s relevant background (military history, family, injuries, religion, awards, etc.) can and should be disclosed in opening statement. The jury must absolutely recognize how wonderful your client is and why they need to fight for his freedom. Hopefully, 80 to 90 percent just made up their mind for “not guilty.” Now the jury is ready to listen, see, and determine what weight to give all the evidence.

5. The First Cross-Examination Question

The jury just listened to hours of monotonous, form-read direct examination. Finally, the witness is yours. Don’t start out: “Good afternoon, Officer. How are you?” or “This is the first time we’ve ever had the chance to speak about this case.” Hit him with a power question, grab everyone’s attention.12 “Officer, if my client would have blown a 0.000 would you have let him go home?” Now the officer has two possible answers, each terrible.

“No.” Look at the jury and recognize this answer. Even if everyday citizens are wrongfully arrested and blow a 0.000, they do not get to go home. Hope is lost. There is no way out of the web. Let the State attempt to explain the charging process. If the State or officer attempts to go into drugs, the quick attorney must capitalize by objecting or spinning this in the defense’s favor. “So you mean, if we as citizens prove no alcohol in our system, you automatically think drugs?” Align yourself with the jury and help them realize there is no way out.

“Yes.” Make sure you repeat the answer, so the jury remembers it. Revisit this answer at the end of your cross. In the end, after the officer has stated he chose to arrest based on a “totality of the circumstances,” remind him of that first question and answer. Ask the officer how, if he truly saw a loss of mental or physical faculties, could he let them go? Stop there. Don’t ask that final question. Save it for closing argument and empower the jury to deliver the conclusion: The mental and physical were normal enough to let the client go had they blown a 0.000.

After your power question, proceed with cross examination as usual.

6. Standardized Field Sobriety Tests Are Easy… to Fail

No doubt the State will argue and the trained officer will testify about the simplicity of the Standardized Field Sobriety Tests (SFSTs). The trained officer almost always testifies that these tests are developed by “scientists” for every person and are very easy to pass. That same well-trained officer will also testify that people routinely pass the SFSTs and are allowed to go home. Sure.

It’s important to note how the officer was trained and how “easy” the tests actually are. Make the officer commit to the facts: He took a 40-hour course to be certified by the National Highway Traffic Safety Administration (NHTSA) to administer SFSTs. Additionally, the NHTSA student manual is authoritative on the administration of these tests. The officer was only graded at the end of this course. The officer was not graded on the first day after hearing how to administer the test only one time. And, if the officer missed three questions on the certification test, he didn’t fail. He got credit for every correct answer. In fact, the officer has never taken a test where he didn’t get credit for correct answers. If you have a 100-question test and miss 3, what’s your score? Would you ever take a test where you didn’t get credit for the answers you got right? Most seasoned officers will volunteer that NHTSA requires this type of grading and “scientists” developed the grading system. The jury should still realize the unfairness of the unique NHTSA grading method.

The jury should also truly understand these tests in case they wanted to try them, after the trial is over. Start with either test and walk through the exact instructions and break down how many actual instructions each test requires (15 for walk and turn, 13 for one leg stand).13 How many times did the officer give the client the instructions? How many times does the officer demonstrate the test for the client? Does the officer allow the client to practice before being graded? Was the officer allowed to practice for 40 hours and then some before he was graded on his administration of these tests? Is the client told the clues the officer is looking for? Did the officer tell the client it only takes two clues to indicate intoxication? Did the officer tell the client that injuries, age, or weight may affect the results? Make sure to write these answers on your display board for each test. Next, walk through each clue and show the jury the meticulousness and subjectivity of each clue. Most jurors will appreciate the defense attorney showing them just how easy these tests are… to fail.

7. Breath Test—Fifteen-Minute Violation

The third prong of Kelly states that the technique applying the theory must have been properly applied on the occasion in question.14 In order for a breath test to be valid, the officer must ob­serve the client for at least 15 minutes prior to the breath test.15 The Department of Public Safety produced what is known as the “21 Minute Video.”16 The video shows examples of invalid 15-minute waiting periods.17 The first example is when the officer parks his car at the station and opens his door to get out and retrieve the suspect in the back seat.18 The Department of Public Safety clearly recognizes that the officer cannot see through the roof of his car and temporarily loses line of site with the suspect as the officer gets out to remove the suspect. Always request the dispatch records and mobile data terminal (MDT) records to ascertain the precise time the officer arrived at the station and possibly started the 15-minute observation period after getting the client out of the back of the car. Many times officers just rush the client right in to the station to provide a sample. The well-prepared defense attorney may have indisputable evidence that a proper 15-minute waiting period was not observed. Couple this violation with Kelly and Texas Code of Criminal Procedure § 38.23 to suppress the breath test.

8. Breath Test—Walking Down the Number

No machine is infallible. The Intoxilyzer 5000EN and Texas Breath Testing have certain acceptable ranges of error. Depending on the particular facts, the skilled DWI defense attorney may walk down the client’s breath test result using the machine’s own acceptable ranges of error. First, the client’s first breath sample must read within 0.02 of his second breath sample.19 Hypothetically, if a client blows a 0.09 on the first sample, his next breath sample must measure between 0.07 and 0.11 in order to be valid. Additionally, Texas Department of Public Safety uses the lower number of the two breath samples in order to give the benefit of the doubt to the client. Second, the reference sample must measure within 0.0120 of the reference predicted, which is usually 0.08. Third, the third digit of the breath result is completely random and should be truncated.21 This means that the machine could read 0.00 as anything up to a 0.009 acceptable range of error.22 Fourth, the client’s temperature can affect the results of the breath test.23 For every one degree Celsius the client’s body is above 98.6 degrees Fahrenheit or 37 degrees Celsius, the breath test is 8.62% high.24 And the temperature of the simulator solution is already allowed to be plus or minus 0.2 degrees from 34 degrees Celsius.25 Breath test scores of 0.13 and below should be vigorously scrutinized due to the inherent unreliabilities in the Intoxilyzer 5000EN and the Texas Breath Alcohol Testing Program.

9. Blood Test—McNeely and Bullcoming

In April 2013, the Supreme Court effectively established “no-refusal” weekends every day of the year.26 McNeely recognized the ease in obtaining a blood search warrant in most metropolitan areas—henceforth, barring warrantless blood draws without an exigent circumstance.27 The State has fought back by declaring year-round “no refusal.”28 However, in the case where no warrant exists, the totality of circumstances of the particular case is necessary to determine whether exigent circumstances existed making the obtaining of a blood warrant impractical. The State must show the impracticability of obtaining the search warrant justifying the exigency exception to the warrant requirement.29 Here, any argument made by a prosecutor regarding the inconvenience or impracticability of obtaining a search warrant prior to an involuntary blood draw should be attacked with Clay.30 In Clay, the arresting officer swore to a blood warrant probable cause affidavit over the telephone and then faxed the signed affidavit to the judge.31 Arguably, it doesn’t get much easier to obtain a blood search warrant.

Additionally, any phlebotomist must be properly qualified as a “qualified technician” for warrantless blood draws.32 In all blood cases, remember that Bullcoming is still good law, requiring the actual analyst to testify before the blood results may be admissible, regardless of warrant issues.33

10. Disconnect Defense

Whether dealing with a blood or breath test, all high tests (0.16 and higher) are ripe for the Disconnect Defense (“DD”). The disconnect lies in the science not adding up to the machine results. The foundation of the DD is sobriety evidence or common­sense reasons for mistaken intoxicated behavior. In most cases where the DD is applicable, the client’s video is exculpatory for the client. Additionally, obtain the client’s medical records or other evidence needed to demonstrate normality for the client and not intoxication.

In breath test cases, you can highlight Intoxilyzer deficiencies by analogizing it to hypothetical or other measuring de­vices—i.e., thermometer, Taxalyzer 5000EN, Doppler 5000. Whatever machine you invent for jury use, use it to demonstrate the obvious error the machine made when contrasted with what you see, i.e., common sense. For example, the importance of embracing common sense by relating it to a dire consequence of being wrong—i.e., brain surgery if a thermometer reads 110°F, jail time for failing to pay taxes, or a natural disaster. Analogize your hypothetical machine with deficiencies in the Intoxilyzer: (1) 20% acceptable range of error; (2) self-checking for accuracy; (3) no warranty for merchantability or accuracy; (4) recalled in multiple states; (5) newer model available; (6) citizen cannot purchase from manufacturer; (7) manufacturer refuses to pro­vide source code; (8) not available for independent scientific test­ing; (9) destroys the only direct evidence of sobriety/intoxication when the State had the ability to save that evidence; (10) operator has no idea how the machine works; (11) “scientist” who checks it rarely does it in person; (12) any inconsistencies or strange occurrences found in test records; etc.

In blood test cases, make sure to walk the jury from cleaning the client’s blood draw site through the chromatogram. Depending on the laboratory and people involved you may find: (1) contamination in the blood draw room; (2) expired materials; (3) improper site cleansing; (4) improper blood draw technique; (5) mishandling of the evidence; (6) break in the chain of custody; (7) human error in the laboratory; (8) pipette problems; (9) sample expiration, contamination, or other problems; (10) contamination in the injector port, y-splitter, columns, flame ionization detector; (11) source code issue; (12) sloppy chromatography; etc. Each step of the way, educate the jury on possibilities of contamination, carry over, or switching vials. Inspect all the chromatograms in the run to further validate your theory.

Regardless whether dealing with a blood or breath test, each is susceptible to the DD. The skilled attorney must sew the DD through the entire case, from voir dire to closing. The verdict should be an obvious decision that the machine or those running the machine made a crucial mistake, rather than your client’s body defying the laws of science. Use the totality of the circumstances against the State by arguing the totality of sober circumstances. Intelligent human beings believe what they know with their own senses to be true instead of blindly relying on a machine result that defies common sense.

11. Storytelling Closing Argument

Closing argument gives the skilled trial attorney the opportunity to seal the case and the client’s acquittal or one last chance to steal the case from the grasps of a dry prosecutor. By closing, the jury has been sitting quietly for days, listening to the State continue ad nauseam about the facts. The last thing the jury wants to hear is a recap of all the facts. After all, the jury is human. They want Atticus Finch, Vincent “Vinny” Gambini, Erin Brockovich, Lt. Daniel Kaffee, Franklin and Bash, Denny Crain, or the Lincoln Lawyer. Tell them a story. Put on a show in closing. Sit and think about the theory of the case and how you can relate that theory into an experience that elicits the desired human reaction from the jury. Whatever story you relate to the case, make sure it’s genuine. The jury can tell when you are lying, or if you don’t believe your own argument. Again, like in voir dire, be vulnerable, show them yours.34 Whatever you choose, the closing should be so raw and powerful that you give the jury the righteous indignation to find your client “not guilty.”

DWI consequences include prison, loss of driver’s license, fines, and foreign travel restrictions. Accordingly, DWI trials are prevalent in every courthouse. All criminal lawyers will represent DWI clients at one point in their careers. DWI cases are numerous throughout the State. Mothers Against Drunk Driving (MADD) lobbies vigorously against DWI cases. We as defense lawyers must break through the bias and hatred for DWI and hu­man­ize our clients and their stories. The jury should return a “not guilty” verdict because they are following the law and making the State prove their case beyond A reasonable doubt.

Endnotes

1. Thanks to the one and only Gerry Spence for this example.

2. https://en.wikipedia.org/wiki/Voir_dire.

3. Thank you, Gerry Spence.

4. Thanks to J. Gary Trichter and his wonderful tutelage on the presumption of innocence.

5. Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991).

6. Contreras v. State, 2012 WL 5285917 (Tex. App.—Waco, Oct. 25, 2012); Fuller v. State, 363 S.W.3d 583 (Tex.Crim.App. 2012).

7. Stair chart from the National College of DUI Defense: http://ncdd.com/ncddstore.php?type=Trial-Graphics.

8. Thanks to trial warrior Steve Gonzalez for this example.

9. Johnson, James, “Jury Arguments, Winning Techniques,” Michigan Bar Journal, page 36 (March 2011); http://vinsoncompany.com/pdf/How_to_Persuade_Jurors.pdf.

10. Thanks to my officemate and trial warrior Jed Silverman.

11. See Gerry Spence and the Trial Lawyer’s College.

12. Thanks to the amazing Kent Schaffer for his cross-examination techniques.

13. See NHTSA Standardized Field Sobriety Testing Student Manual, August 2006, pg. X-3–5.

14. Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992).

15. See Texas Breath Alcohol Testing Program Operator Manual, pg. 49, and Texas Administrative Code Section 19.3(a) and (c)(1).

16. See Department of Public Safety 21 Minute Video. Call me for a copy.

17. Id.

18. Id.

19. See Texas Breath Alcohol Testing Program Operator Manual, pg. 13.

20. See Texas Breath Alcohol Testing Program Operator Manual, pg. 13

21. See Gullberg, R. G., Statistical Evaluation of Truncated Breath-Alcohol Test Measurements, Journal of Forensic Sciences, JFSCA, Vol. 33, No. 22, March 1988, pp 507–510; Gullberg, R. G., Distribution of Third Digit in Breath Alcohol Analysis, Journal of Forensic Sciences, Letters to Editor, Date and Volume Unknown, pp. 976–978.

22. Id.

23. See Fox, G. R. and Hayward, J. S., Effect of Hyperthermia on Breath-Alcohol Analysis, Journal of Forensic Sciences, JFSCA, Vol. 34, No. 4, July 1989, pp. 836–841.

24. Id.

25. See Texas Breath Alcohol Testing Program Operator Manual, pg. 9.

26. Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 1555 (2013).

27. Id.

28. http://abclocal.go.com/ktrk/story?section=news/local&id=9176628.

29. McNeely, 133 S.Ct. at 1557–60.

30. Clay v. State, 382 S.W.3d 465 (Tex.App.—Waco 2012), review granted, (June 27, 2012).

31. Id. at 465–466.

32. Cavazos v. State, 969 S.W.2d 454, 456–57 (Tex.App.—Corpus Christi 1998, pet. ref’d); Tex. Transp. Code § 724.017(a); see also Cordero v. State, 2009 WL 3231504 (Tex.App.—El Paso Oct. 7, 2009).

33. Bullcoming v. New Mexico, __ U.S. __, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).

34. Gerry Spence.

So You Want to Be a Criminal Defense Attorney

For the past 43-plus years, each morning I have gone to work as an attorney licensed by the State Bar of Texas. For the first 5 or so years, I worked for law firms, trying cases of many different types both criminal and civil. I was fortunate to have practiced during a time when the Constitutions of the both Texas and the United States protected our fellow citizens, both under criminal and civil jurisdictions. This was back in the time when courts were governed by the law and not by political influence or the judge’s concerns about being re-elected. It was a time when judges were judges because they either just wanted to be a judge or they felt an obligation to serve. But not only has the attitude of judges changed; so have the attitudes of a large portion of attorneys. With the proliferation of attorneys having come into the practice of law, the costs of operating a law office or law firm, the costs of advertising, and the lack of compassion have all crept into the practice of law—it appears that being a lawyer has degenerated from a profession to a business. Many attorneys today are more concerned with these matters than with providing the services that we all have sworn to do when we received our licenses.

I have been just as guilty as any of them in these areas, and even today often struggle within myself to “take up the sword” to defend or attack the injustices that many people face from the government or their fellow man. Having tried more cases than I can count in my career, I have noticed that today it is not about justice but about winning or losing. Seeing two prosecutors do a “high five” when the jury answered the three questions in the affirmative in a death penalty case, prosecutors who conceal exculpatory or mitigating evidence in a criminal case, and the attitude of “winning at all costs” have become the norm in today’s courts. This goes even beyond the attorneys representing the government. Law enforcement officers who are untruthful or who lie to a suspect in order to gain a confession under the guise of “acceptable police procedures” are also very commonplace today.

This is not what our system of jurisprudence was founded upon or what it should be. The American system of justice is unique in the world both in the past and present. Our court system was founded as the “great leveler” of all claims. Each person is to be treated equally under our law, regardless of race, creed, gender, or economic status. This is the only human institution that is supposed to treat a voter the same as the President, the banker the same as a welfare recipient, or an illiterate the same as a PhD. However, we all know that is not the case today in the sense that people would have us believe. Some people are more intelligent than others, some have better opportunities because of birthright or economic status, some people make better products than others, some lawyers are better lawyers than others, and some are born gifted beyond others in many respects as a musician, writer, or athlete.

I have found that within the ranks of criminal defense lawyers, you discover more attorneys who are concerned about their clients than among civil attorneys. You find attorneys who defend their client and his or her rights without regard to profit, “bottom line,” or public disfavor. They believe in zealously defending their and our system of jurisprudence. They are not infected by bias, prejudice, or social status and oftentimes financial gain. These lawyers are even willing to risk career in pursuit of justice—not being concerned about retribution from the court or society. Each of these individuals has the courage to proceed in a case, oftentimes knowing they are beaten, but begin anyway and see it through to the end. Some would call them idealists; I call them “heroes.”

They believe in the system and do not fear the court’s attitudes or rulings or public disfavor. If you have never tried a controversial case in a small jurisdiction where the public in that jurisdiction dislike, hate, and oftentimes chastise your client and you as well, it would be difficult for you to understand. If you have never represented a client where you and/or your family have received death threats, it would be difficult for you to understand. If you have never been involved in the defense of a client, where even your own family questions your representation and the effect it may have upon your family and friends, it would be difficult for you to understand. Your dedication to your client can, in some instances, place major stress on you, your family, your relationship with your family, your financial status, and your acceptance within your community. Often there is a feeling of isolation in your efforts to represent your client. It may be you and your client against the entire government, the general public, the media, and even sometimes your own family and friends. On the prosecution side, the prosecutors generally today have the general populace, media, and even sometimes your own family members questioning what you are doing and why.

Laymen in our society have difficulty understanding that just because you defend a person charged with a specific crime, that you don’t necessarily condone the commission or omission alleged against him or her. After almost 48 years of marriage, I have personally been subjected to all of these, and it is a miracle that I am still married. I attribute the longevity to my wife’s understanding of the commitment an attorney must make to represent the “citizen accused.” If you are going to call yourself a “criminal defense attorney,” you have to be willing to put these concerns aside and go forward without regard to same. You need to speak with your family, friends, and acquaintances, when confronted by them, from the standpoint of your duty and oath, and try to get them to understand but not to accept the responsibility which you have chosen to take up in the case. Don’t try to convince them, only try to get them to “walk in your shoes” and understand where you are coming from. Most times you will be unsuccessful in doing so. You are not trying to change the world. Your responsibility is to zealously defend your client to the best of your ability. And, in doing so, you must keep a high regard for all things moral and ethical regardless of the actions of the government attorney or the government’s agents and the pressures you may feel from family and friends.

You must also understand the stress that can be put not only upon you, but also upon your family and friends as a result of your actions in defending your client. I have had moderate success in telling them: “Look, my responsibility as an attorney representing my client is to present every legal defense available to my client, as well as require the government to meet their burden of proof beyond a reasonable doubt. I will present any viable defense regardless of my personal feelings about its true merit. I will never knowingly present testimony that is false, but will use true testimony to any benefit I can for my client. I was not put on this earth to assess judgment on the moral guilt or innocence of my client. I only deal with legal guilt under the law.”

There should never be any moral dilemma once you assume the duty to defend your client. I have defended people during my career that have committed crimes that go beyond description, without any remorse on my part, as I do not consider the issue of moral guilt. This is what each of us must do in every criminal case. If you possess such a dilemma, you should withdraw from the case or from the practice of handling the defense in criminal cases.

I learned a long time ago that being an idealist is perfectly acceptable, as long as you are a confirmed realist about your case. I have tried many cases that I had little or no chance of winning. But as long as my client knew the risks involved and accepted those risks, I gave it everything that I had in his or her defense. Not one of us likes losing, but it is not about winning and losing. It is about justice. What is just is not always right, and conversely what is right is not always just. We as criminal defense lawyers must strive for justice in every case. We must communicate the good and the bad facts to our clients. We should advise the client of the risks involved and satisfy ourselves that the client understands and accepts those risks when he or she makes the decision concerning trial or plea bargain. It is the client’s decision. Just make sure your client understands the risks involved and the consequences of his or her decision. It is his or her liberty that is in jeopardy—not yours. If your client has knowledge of and understands these risks and consequences, his decision should not affect you or his defense.

You must be willing to accept and deal with the foregoing discussion in order to be a criminal defense attorney. It is not easy, and at times the stress may seem unbearable. But I have discovered, by doing so, I am able to look in the mirror at myself without reservation and devote my personal beliefs and desires to my family and friends. I would not trade it for any amount of social status, money, or public admiration. I am a criminal defense attorney, the last bastion of protection for the citizen accused against the onslaught of government persecution, injustice, bias, prejudice, and ignorance faced by my client.

A number of years ago, I wrote the following, which may or may not mean anything to anyone but me. However, I pass it on hoping that it may assist you in your pursuit of being a criminal defense attorney.

THE ADVOCATE

With head held high
Armed with wit and knowledge
He attempts to defend
His fellow man without regard
To the consequences of his actions.
He receives little appreciation
From those around him,
But continues his fight
Against intolerance and the unscrupulous.
Often he sacrifices his personal goals and desires
To protect his client
From those trying to deprive his liberty.
His beleaguered figure
Oft marred from previous battles,
But nevertheless ever striving
To protect the rights of the citizen accused
From the injustices of mankind,
The government and its impersonal edicts.
His weapons,
His word, his ingenuity, wit and intelligence
Always armed,
Ever ready
For the defense of his clients.

May 2014 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
20 | If You’re Going to Rusty DuncanWhat to remember and what’s new or different this year at Rusty
22 | Federal Supervised Release – By John M. Economidy
31 | Eleven Essential DWI Trial Tactics – By Mark Ryan Thiessen
37 | So You Want to Be a Criminal Defense Attorney – By Randy Wilson

Columns
7 | President’s Message
9 | Ethics and the Law
12 | Federal Corner
19 | Said & Done

Departments
4 | TCDLA Member Benefits
5 | CLE Seminars and Events
41 | Significant Decisions Report

President’s Message: Reflections of 43 Years and Challenges Ahead – By Bobby Mims

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More than 43 years ago a group of lawyers decided that a separate organization devoted to the training, education and support of criminal defense attorneys was needed. These lawyers literally drove all over Texas collecting money to start the Texas Criminal Defense Lawyers Association. For years this small band of brothers and sisters worked and fought to prevent the erosion of the rule of law. From that small group the TCDLA has emerged as the largest and most effective state association of criminal defense lawyers in the United States.

Among the members of this association are some of the finest lawyers in the nation. Some are nationally known superstars, but all are courageous fighters for justice. Every day in every court in Texas TCDLA lawyers confront power and advocate for the defendant. Every TCDLA member stands shoulder to shoulder with criminal defense lawyers as they walk into the courtrooms of Texas. There are few more cohesive groups than the members of this association.

I am reminded of past victories and challenges of TCDLA lawyers. The great lawyers of the past are benchmarks for the lawyers of today. Today criminal defense lawyers are challenged like never before. The erosion of the 4th Amendment, invasion of privacy, attack on the judiciary and the jury system by forces inside and outside of the legal profession are faced daily by TCDLA lawyers. The Patriot Act, NSA surveillance, parallel investigations and out right perjury by government agents in the name of national security are the known challenges facing criminal defense attorneys. We are fortunate to live in a time when the country needs criminal defense lawyers as never before.

TCDLA is on the cutting edge of legal training and provides the best criminal defense training in the nation. As forensic science evolves, TCDLA will continue to be at the forefront in training the criminal defense bar. TCDLA and its members will continue to set the standard of practice for criminal defense representation during the 21st century. There has been progress in educating the public and the judiciary about the perils of junk science. Texas has made significant progress in protection of the accused by reform of eyewitness testimony, arson science, DNA exonerations, lineups,and compensation for the wrongfully convicted. The Indigent Defense Commission and the Innocence Project of Texas are led by TCDLA lawyers. The Forensic Science Commission has been depoliticized, and its chairperson is a scientist. There have been improvements in the investigation and correction of crime labs, and incompetent analysts have been exposed and dismissed. There is a need for an independent Forensic Science Lab under the Forensic Science Commission. This should be a priority for the next legislature. This independent lab should be created immediately by the Legislature and forensic evidence testing removed from the Department of Public Safety. The avoided cost of exoneree compensation alone might justify the investment.

The Morton Act appears to be having a positive effect on prosecutors, as evidenced by the recent spate of voluntary disclosures of crime lab errors. Many prosecutors are requiring that the police provide statements that they have fully complied with delivering Brady and other materials favorable to the defense to the prosecutor along with the case file. Many in the law enforcement and prosecution communities appear to be mindful of the events of Williamson County. There will likely be calls to modify the Morton Act in the next legislature by some of these interests. TCDLA will resist all efforts to roll back Morton but rather will seek to improve the Act to give even more protection.

As we go forward with an excellent group of Officers and Directors, supported by the best professional staff in the business, TCDLA members can be confident that they have the support of the organization. TCDLA will have increased challenges and obligations, and members may be asked to provide more resources since the association has taken on more obligations in service to the membership, to the public, and to the legislature. TCDLA is dedicated to assisting legislators as they consider new legislation to resist any further erosion of individual rights. TCDLA will be very active at the legislature, ready to provide assistance to leaders as they formulate laws affecting our members and clients.

Recently, the nation observed Memorial Day by honoring those who made the ultimate sacrifice for America and the Constitution. As this organization was being formed more than 43 years ago this nation was embroiled in the Vietnam War. America was more divided than at anytime since the Civil War. Those founders saw the need to bring warriors for justice together to defend the Constitution and formed the TCDLA. We honor our veterans, as we should, but you, the TCDLA criminal defense lawyer who goes to court every day armed with nothing more than the law and your skill, do as much to defend freedom and the Constitution as I ever did when I wore the uniform in that war more than 43 years ago.

It has been an honor to have served as the 43rd President of the Texas Criminal Defense Lawyers Association. Of the things in this life that I am most proud, besides my family, it’s that I am a member of the TCDLA and a criminal defense attorney.

Bobby Mims

Ethics and the Law: With Liberty and Justice for All

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These as we all know are the last words to the Pledge of Allegiance to the Flag of the United States of America. Those who deny freedom to others do not deserve it for themselves. Lawyers continue to get into trouble. One former lawyer in Houston was sentenced to 40 years for stealing $9 million from his employer, and a lawyer in San Antonio was sentenced to 10 years for padding her pay vouchers. The DA investigator in the Houston case was caught selling the contraband involved and was prosecuted. The fox was guarding the henhouse. Prosecutors continue to hide evidence, as evidenced by a Harris County case involving a prosecutor who failed to disclose evidence. If police and prosecutors do their jobs honestly, they can get a majority of convictions, but they continue to lie.

A recent former member of the Harris County Criminal Lawyers Association and Texas Criminal Defense Lawyers Association stayed on the listserves after he went to work as an Assistant DA in Liberty County. On the listserves, he read emails about a pending case. Robb Fickman gathered a volunteer group and went to Liberty, Texas, to seek liberty for the unfortunate soul in that criminal case. Lawyer Fickman took about 15 lawyers, and their presence in the courtroom was noticed by the judge and prosecutor in question.

Paul Looney, the Houston/Hempstead lawyer, won a Franks hearing where a search warrant affidavit was filled with lies. Do not trust the prosecutors. Do your own investigation. Remember that your client is the most important person. Do not play grab-ass with the judge and prosecutor. Do not disclose your case to the prosecutors. It is amazing how fast they can correct the problem if you tell them what is wrong with their case. Running your mouth can cause many problems and end up hurting your client. Unfortunately, many lawyers—to get favor with their pals in the DA’s office—run and tell the prosecutors what is on the listserve. Bragging about what you can do will have disastrous results if your client goes away for a long time. DO NOT LET YOUR ALLIGATOR MOUTH OVERRIDE YOUR HUMMINGBIRD ASS. Be realistic with the client. Show all documents to your clients so that they know you are working on the case. You can be brilliant and do brilliant work, but you must send copies to your client so that he will know. This will avoid many grievances.

After meeting and talking to Michael Morton and Anthony Graves several times, I have to wonder about what goes wrong in our JUSTICE system. A crooked prosecutor who became a judge and crooked law enforcement is what goes wrong. Experienced honest police officers will tell you that if they and prosecutors do their job right, then the system will work like it should; when a judge looks at a prosecutor before he makes a ruling or decision, the system is not working right. This happens every day in courtrooms in Texas and other states.

Be prepared, know your client, and be professional when in court. If you see bad behavior, be like Charles Goodnight, the man on whom the book and movie “Lonesome Dove” was based. He said that he did not like rude behavior in a man and would not tolerate it. He didn’t and we shouldn’t. File a complaint as described below. If you need help call Robb Fickman in Houston. He knows how to get it done. If you see a lawyer doing wrong, report it as prescribed below.

Lawyer Anne Ritchie, who is on my legal team, followed her oath while in the Navy and is following it now as a lawyer. She is one of the smart lawyers in our group, and she has set out below the rules to follow. Lawyers across the state continue to complain about bad treatment by judiciary. If the complaints are legitimate, then this article may help you get some relief. Make sure you are doing your job properly. Be on time, file your motions on time, have your client to court on time. Prepare a memo that tells your client’s life history so that when the judge asks you about your client you will be able to do something besides just stand there and scratch. Many judges do try to do the right thing, and the info about your client can be helpful. When the prosecutor says that defendants all have excuses, they are all the same, be prepared to show that, no, they are not the same—MY CLIENT IS DIFFERENT. Get photos, school records, any awards, and other things. Get releases signed by the client to get all records. You will be amazed at the results when you show the prosecutor a well-written memo about your client.

Then, if after all your proper behavior, you get bad behavior, file a complaint.

Texas Disciplinary Rules of Professional Conduct Rule 8.03 (Reporting Professional Misconduct) provides the following:

(a)   Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

(b)   Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

(c)   A lawyer having knowledge or suspecting that another law­yer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental ill­ness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer’s report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b).

(d)   This rule does not require disclosure of knowledge or information otherwise protected as confidential information:

(1) by Rule 1.05 or

(2) by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.

Tex. Disciplinary R. Prof’l Conduct 8.03 (1994), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (West 2013) (State Bar Rules art. X, § 9).

The appropriate authority mentioned in Rule 8.03(b) is the State Commission on Judicial Conduct. The Commission has jurisdiction over almost 4,000 judges across the state of Texas. State Comm’n on Judicial Conduct, Fiscal Year 2013 Annual Report, at 15 (2014) (available at http://www.scjc.state.tx.us/pdf/rpts/AR-FY13.pdf) (hereinafter FY13 Report). The Commission is not governed by the Texas Public Information Act, the Texas Open Meetings Act, or the Texas Administrative Procedures Act. Id. at 2.

One peer review program, as referred to in Rule 8.03(c), is the Amicus Curiae Program, which is available to all judges, whether or not they are attorneys. The program “helps locate resources and identify and treat impairments that may be affecting . . . judges’ personal lives and their performance on the bench.” Id. at 13. The Amicus Curiae Program was originally funded by the Texas Legislature, then the Court of Criminal Ap­peals, but since 2005 has had no funding. Id. at 13. It would be in the best interests of the members of the State Bar of Texas for that organization to provide some funding for the Amicus program since having mentally healthy judges on the bench is of benefit to all attorneys.

Should a lawyer know that a judge has violated a rule of ju­di­cial conduct “that raises a substantial question as to the judge’s fitness for office,” the lawyer has a duty to report that judge to the Commission. Tex. Disciplinary R. Prof’l Conduct 8.03(b). A complaint must be in writing; fax and email complaints are not accepted, but it may be made anonymously. A form for the complaint is available at www.scjc.texas.gov. The Commission may also initiate its own complaint based on media, court documents, the internet, or other sources. FY13 Report at 7. After its investigation, the Commission may make a decision of one of the following types:

  • Administrative Dismissal Report: This happens when the complaint fails to state an appropriate allegation.
  • Dismissal: This includes cases of insufficient or no evidence of misconduct, cases where the judge took appropriate remedial actions, and cases where there may be a problem, but it is not sanctionable.
  • Order of Additional Education: This may be ordered alone or as part of a sanction.
  • Private or Public Sanction: This happens when sufficient evidence supports a finding of judicial misconduct.
  • Suspension: A judge may be suspended after being indicted by a grand jury for a felony, or if charged with a misdemeanor involving official misconduct.
  • Voluntary Agreement to Resign: The judge may decide to re­sign in lieu of disciplinary action.
  • Formal Proceedings: These are reserved for particularly egre­gious complaints. The Commission may conduct a hear­ing or ask the Supreme Court of Texas to appoint a Spe­cial Master to hear the matter.

Id. at 9–10. Any order of additional education, public or private sanction, or public censure may be appealed to a Special Court of Review specially created by the Supreme Court of Texas. Id. at 10.

As attorneys, we do not want to cast aspersions on the ju­di­cial system on which we all rely, but sometimes, for the good of that same system, a complaint of judicial misconduct is necessary.

The complaint process is graphically illustrated by the following chart, provided by the Commission:

Federal Corner: Representing the Defendant on the Issue of Restitution in a Child Pornography Case [Paroline v. United States et al.] – By F. R. Buck Files Jr.

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Part Two: The Supreme Court’s Decision in Paroline

Introduction

In Part One, I discussed Paroline’s journey from the United States District Court for the Eastern District of Texas to the Supreme Court of the United States, and how Stanley Schneider, Casie Gotro, and I became Paroline’s Team. Now, we continue with the Supreme Court’s resolution of his case.

We Win the Causation Issue

On April 23, 2014, Stanley, Casie, and I had reason to celebrate—and we did. A divided Supreme Court held that restitution is proper under 18 USC § 2259 only to the extent the defendant’s offense proximately caused a victim’s losses. Paroline v. United States, et al., 134 S.Ct. 1710 (2014). The Court vacated the judgment of the Court of Appeals and remanded the case to the Court of Appeals. The restitution award of $3.4 million against Paroline was no more. We had won.

Who Is Going to Pay Restitution and in What Amount?

Justice Kennedy delivered the opinion of the Court and was joined by Justices Ginsburg, Breyer, Alito, and Kagan. In addition to the causation issue, the opinion addresses these other issues:

  • When must a district court order restitution under §2259?
  • How are district courts to determine the proper amount of restitution?
  • What factors should the district courts consider in determining the proper amount of restitution?

Unfortunately, district judges and prosecutors and defense lawyers will take little comfort in the guidance—or lack thereof—that Justice Kennedy gives us.

It is that portion of the opinion that deals with these issues that I’m going to focus on in this column.

The Court’s Opinion

The Court’s opinion, reads, in part, as follows:

[What This Case is About]

This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed. The relevant stat­utory provisions are set forth at 18 U.S.C. § 2259. Enacted as a component of the Violence Against Women Act of 1994, § 2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.

[Paroline’s Offense Conduct]

Petitioner Doyle Randall Paroline pleaded guilty to such an offense. He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym “Amy” for this litigation.

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[Possession of Child Pornography Is Not a Victimless Crime]

Three decades ago, this Court observed that “the exploitive use of children in the production of pornography has become a serious national problem.” New York v. Ferber, 458 U.S. 747, 749, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

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[Amy’s Story]

One person whose story illustrates the devastating harm caused by child pornography is the respondent victim in this case. When she was eight and nine years old, she was sexually abused by her uncle in order to produce child pornography.

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The digital images were available nationwide and no doubt worldwide. Though the exact scale of the trade in her images is unknown, the possessors to date easily number in the thousands. The knowledge that her images were circulated far and wide renewed the victim’s trauma and made it difficult for her to recover from her abuse. As she explained in a victim impact statement submitted to the District Court in this case:

“Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them—at me—when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle. . . . My life and my feelings are worse now because the crime has never really stopped and will never really stop. . . . It’s like I am being abused over and over and over again.” Id., at 60–61.

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[At the District Court]

Petitioner Paroline is one of the individuals who possessed this victim’s images. In 2009, he pleaded guilty in federal court to one count of possession of material involving the sexual exploitation of children in violation of 18 U.S.C. § 2252. 672 F.Supp.2d 781, 783 (E.D.Tex.2009). Paroline admitted to knowing possession of between 150 and 300 images of child pornography, two of which depicted the respondent victim. Ibid. The victim sought restitution under § 2259, asking for close to $3.4 million, consisting of nearly $3 million in lost income and about $500,000 in future treatment and counseling costs. App. 52, 104. She also sought attorney’s fees and costs. 672 F.Supp.2d, at 783. The parties submitted competing expert reports. They stipulated that the victim did not know who Paroline was and that none of her claimed losses flowed from any specific knowledge about him or his offense conduct. Id., at 792, and n. 11; App. 230 [emphasis added].

        After briefing and hearings, the District Court declined to award restitution. 672 F.Supp.2d, at 793. The District Court observed that “everyone involved with child pornography—from the abusers and producers to the end-users and possessors—contribute[s] to [the victim’s] ongoing harm.” Id., at 792. But it concluded that the Government had the burden of proving the amount of the victim’s losses “directly produced by Paroline that would not have occurred without his possession of her images.” Id., at 791. The District Court found that, under this standard, the Government had failed to meet its burden of proving what losses, if any, were proximately caused by Paroline’s offense. It thus held that “an award of restitution is not appropriate in this case.” Id., at 793.

[At the Fifth Circuit]

The victim sought a writ of mandamus, asking the United States Court of Appeals for the Fifth Circuit to direct the District Court to order Paroline to pay restitution in the amount requested. In re Amy, 591 F.3d 792, 793 (2009). The Court of Appeals denied relief. Id., at 795. The victim sought rehearing. Her rehearing request was granted, as was her petition for a writ of mandamus. In re Amy Unknown, 636 F.3d 190, 201 (2011).

        The Fifth Circuit reheard the case en banc along with another case, in which the defendant, Michael Wright, had raised similar issues in appealing an order of restitution under § 2259, see United States v. Wright, 639 F.3d 679, 681 (2011) (per curiam ). As relevant, the Court of Appeals set out to determine the level of proof required to award restitution to victims in cases like this. It held that § 2259 did not limit restitution to losses proximately caused by the defendant, and each defendant who possessed the victim’s images should be made liable for the victim’s entire losses from the trade in her images, even though other offenders played a role in causing those losses. In re Amy Unknown, 701 F.3d 749, 772–774 (2012) (en banc).

[At the Supreme Court]

Paroline sought review here. Certiorari was granted to resolve a conflict in the Courts of Appeals over the proper causation inquiry for purposes of determining the en­ti­tle­ment to and amount of restitution under § 2259. 570 U.S. __, 133 S.Ct. 2886, 186 L.Ed.2d 932 (2013). For the reasons set forth, the decision of the Court of Appeals is vacated.

[§ 2259(a) Provides for Mandatory Restitution]

Title 18 U.S.C. § 2259(a) provides that a district court “shall order restitution for any offense” under Chapter 110 of Title 18, which covers a number of offenses involving the sexual exploitation of children and child pornography in particular. Paroline was convicted of knowingly possessing child pornography under § 2252, a Chapter 110 offense.

***

[The District Court’s Findings]

The District Court found that the Government failed to prove specific losses caused by Paroline in a but-for sense and recognized that it would be “incredibly difficult” to do so in a case like this. 672 F.Supp.2d, at 791–793. That finding has a solid foundation in the record, and it is all but unchallenged in this Court. See Brief for Respondent 1723 Amy 63; Brief for United States 19, 25. But see Supp. Brief for United States 8–10. From the victim’s perspective, Paroline was just one of thousands of anonymous possessors. To be sure, the victim’s precise degree of trauma likely bears a relation to the total number of offenders; it would probably be less if only 10 rather than thousands had seen her images. But it is not possible to prove that her losses would be less (and by how much) but for one possessor’s individual role in the large, loosely connected network through which her images circulate. See Sentencing Comm’n Report, at ii, xx [emphasis added].

[Paroline’s Conduct in Context]

Even without Paroline’s offense, thousands would have viewed and would in the future view the victim’s images, so it cannot be shown that her trauma and attendant losses would have been any different but for Paroline’s offense. That is especially so given the parties’ stipulation that the victim had no knowledge of Paroline. See supra, at 1736–1737 [emphasis added].

***

Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined acts of all other relevant offenders, and in comparison to the contributions of other individual offenders, particularly distributors (who may have caused hundreds or thousands of further viewings) and the initial producer of the child pornography [emphasis added].

***

[The Remedial and Penological Purposes of § 2259]

The cause of the victim’s general losses is the trade in her images. And Paroline is a part of that cause, for he is one of those who viewed her images. While it is not possible to identify a discrete, readily definable incremental loss he caused, it is indisputable that he was a part of the overall phenomenon that caused her general losses. Just as it undermines the purposes of tort law to turn away plaintiffs harmed by several wrongdoers, it would undermine the remedial and penological purposes of § 2259 to turn away victims in cases like this.

        With respect to the statute’s remedial purpose, there can be no question that it would produce anomalous re­sults to say that no restitution is appropriate in these cir­cum­stances. It is common ground that the victim suffers continuing and grievous harm as a result of her knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse she endured. Brief for Petitioner 50; Brief for Respondent Wright 4; Brief for United States 23; Brief for Respondent Amy 60. Harms of this sort are a major reason why child pornography is outlawed. See Ferber, 458 U.S., at 759, 102 S.Ct. 3348. The unlawful conduct of everyone who reproduces, distributes, or possesses the images of the victim’s abuse—including Paroline—plays a part in sustaining and aggravating this tragedy. And there can be no doubt Congress wanted victims to receive restitution for harms like this. The law makes restitution “mandatory,” § 2259(b)(4), for child-pornography offenses under Chapter 110, language that indicates Congress’ clear intent that victims of child pornography be compensated by the perpetrators who contributed to their anguish. It would undermine this intent to apply the statute in a way that would render it a dead letter in child-pornography prosecutions of this type.

        Denying restitution in cases like this would also be at odds with the penological purposes of § 2259’s mandatory restitution scheme. In a sense, every viewing of child pornography is a repetition of the victim’s abuse. One reason to make restitution mandatory for crimes like this is to impress upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims. See Kelly, supra, at 49, n. 10, 107 S.Ct. 353 (“Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused”). It would be inconsistent with this purpose to apply the statute in a way that leaves offenders with the mistaken impression that child-pornography possession (at least where the images are in wide circulation) is a victimless crime.

***

[When Must District Courts Order Restitution Under § 2259]

[W]here it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims [emphasis added].

[How Are District Courts to Determine the Proper Amount of Restitution?]

There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses. This cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment. But that is neither unusual nor novel, either in the wider context of criminal sentencing or in the more specific domain of restitution. It is well recognized that district courts by necessity “exercise . . . discretion in fashioning a restitution order.” § 3664(a). Indeed, a district court is expressly authorized to conduct a similar inquiry where multiple defendants who have “contributed to the loss of a victim” appear before it. § 3664(h). In that case it may “apportion liability among the defendants to reflect the level of contribution to the victim’s loss . . . of each defendant.” Ibid. Assessing an individual defendant’s role in the causal process behind a child-pornography victim’s losses does not involve a substantially different or greater exercise of discretion.

[Factors for the District Courts to Consider]

There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law’s development. Doing so would unduly constrain the decisionmakers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images (excluding, of course, any remote losses like the hypothetical car accident described above, see supra, at 1721), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses. These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role. See Brief for United States 49.

        These factors need not be converted into a rigid for­mula, especially if doing so would result in trivial restitution orders. They should rather serve as rough guideposts for determining an amount that fits the offense. The resulting amount fixed by the court would be deemed the amount of the victim’s general losses that were the “proximate result of the offense” for purposes of § 2259, and thus the “full amount” of such losses that should be awarded. The court could then set an appropriate payment schedule in consideration of the defendant’s financial means. See § 3664(f)(2).

***

[How Doyle Randall Paroline Is to Be Viewed]

Treating [Paroline] as a cause of a smaller amount of the victim’s general losses, taking account of his role in the overall causal process behind those losses, effects the statute’s purposes; avoids the nonsensical result of turning away victims emptyhanded; and does so without sacrificing the need for proportionality in sentencing.

***

[The Court’s Acknowledged Difficulties with Its Approach]

This approach is not without its difficulties. Restitution orders should represent “an application of law,” not “a decisionmaker’s caprice,” Philip Morris USA v. Williams, 549 U.S. 346, 352, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007) (internal quotation marks omitted), and the approach articulated above involves discretion and estimation. But courts can only do their best to apply the statute as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their conduct on those victims, but also that defendants should be made liable for the consequences and gravity of their own conduct, not the conduct of others. District courts routinely exercise wide discretion both in sentencing as a general matter and more specifically in fashioning restitution orders. There is no reason to believe they cannot apply the causal standard defined above in a reasonable manner without further detailed guidance at this stage in the law’s elaboration. Based on its experience in prior cases of this kind, the Government—which, as noted above, see supra, at 1718–1719, bears the burden of proving the amount of the victim’s losses, §3664(e)—could also inform district courts of restitution sought and ordered in other cases [emphasis added].

[Conclusion]

The Fifth Circuit’s interpretation of the requirements of § 2259 was incorrect. The District Court likewise erred in requiring a strict showing of but-for causation. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

        It is so ordered.

Chief Justice Roberts’ Dissent

Chief Justice Roberts, joined by Justices Scalia and Thomas, dissented. His dissent virtually adopts the argument that Stanley presented to the Court concerning the importance of 18 U.S.C. § 3664(e), which reads:

Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant’s dependents, shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires [emphasis added].

It was Adele Hedges, former Chief Justice of the Fourteenth Court of Appeals, who suggested this argument during a moot court session at Susman Godfrey’s office in Houston in January. In 1990, the Supreme Court held that an award of restitution under the Victim and Witness Protection Act is authorized only for loss caused by the specific conduct which forms the basis for the offense of conviction. Hughey v. United States, 110 S.Ct. 1979 (1990). The following year, Congress enacted 18 U.S.C. § 3664(e), which is simply a codification of Hughey. Stanley did an eleventh hour amendment to his argument and the Chief Justice and Justices Thomas and Scalia found it persuasive.

In his dissent, Chief Justice Roberts is critical of the Court’s suggested methodology for determining restitution; e.g.,

According to the Government’s lodging in this case, District Courts awarding less than Amy’s full losses have imposed restitution orders varying from $50 to $530,000. Restitution Awards for Amy Through December 11, 2013, Lodging of United States. How is a court supposed to use those figures as any sort of guidance? Pick the median figure? The mean? Something else [emphasis added]?

***

[T]o the extent it is possible to project the total number of persons who have viewed Amy’s images, that number is tragically large, which means that restitution awards tied to it will lead to a pitiful recovery in every case. See Brief for Respondent Amy 65 (estimating Paroline’s “market share” of Amy’s harm at 1/71,000, or $47). The majority says that courts should not impose “trivial restitution orders,” ante, at 1728, but it is hard to see how a court fairly assessing this defendant’s relative contribution could do anything else [emphasis added].

That dissent ends with this paragraph:

The Court’s decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.

Judge Sotomayor’s Dissent

Justice Sotomayor also dissented. She would have affirmed the Fifth Circuit’s holding that the district court “must enter a restitution order reflecting the ‘full amount of [Amy’s] losses.’”

My Thoughts

  • During an in-chambers conference, I argued that granting Amy the relief she sought would violate the Excessive Fines Clause of the Eighth Amendment. To my argument, an As­sistant United States Attorney replied, “You can’t hide behind the Eighth Amendment in a child pornography case.”
     Justice Kennedy was not so flippant. He wrote, “The reality is that the [Amy’s] suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution. That approach is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment” [emphasis added].
     Before Paroline, if you had run the Westlaw query restitution /p “Eighth Amendment,” you would have gotten no cases. Run it now, and you’ll pick up Paroline.
  • After Paroline, every defendant in a child pornography case—when there is an identifiable victim—is going to be required to pay restitution. The Court has interpreted § 2259 to be a strict liability statute. My concern is that there is going to be no consistency in these restitution awards.
  • Every defendant in every restitution case should be concerned about holding the Government to its burden under 18 U.S.C. § 3664(e).
  • Our case is still some months away from being over. Paroline will be ordered to pay some amount of restitution, but it won’t be $3.4 million.
  • Amy’s lawyers wanted this case to go to the Supreme Court, but I never understood why they would choose a defendant who possessed only two images of Amy as their target.
     Between the first and second hearings that were held in the district court, I attempted to enter into settlement ne­go­tiations with James Marsh. He told me that he was not in­terested in settling the case. He wanted an opinion. After the Fifth Circuit’s en banc opinion, which gave Amy all the relief that she had requested, Paul Cassell actually gave some helpful suggestions to Stanley on what our petition for writ of certiorari might contain. He also wanted an opinion.
     During Cassell’s argument before the Supreme Court, it was obvious to everyone in attendance that most of the Justices were not buying what he had to sell—and his demeanor began to change. In the Lawyer’s Lounge after arguments, he was, at best, aloof. That gave us great comfort.
     I believe that Amy’s lawyers underestimated the strength of our position and Stanley’s ability to articulate that position. The lesson is there. Be careful what you ask for.
  • The surprise: When Justice Scalia was at the Fifth Circuit con­ference in May, he barely mentioned Paroline. Could he actually have been concerned about embarrassing the former Chief Judge of the Circuit for her opinion? We’ll never know the answer to that question.
  • Bye, bye Supreme Court. It was a great adventure for the Team!

Said & Done

/

Kudos

Simon Purnell tried two federal jury trials, in two consecutive weeks in April, and walked his clients in both cases. The first, in Victoria, Texas, involved the alleged smuggling of marijuana into FCI Three Rivers, a medium-security facility, by Ms. Phillips, a female visitor. The government presented video of the visit, theorizing a kiss at the end of the visit as the delivery vehicle. The jury found for the defendant after hearing about the alternative ways drugs get into prisons—namely, the guards, other visitors, and the inmates themselves. It also helped that the guards were not consistent in their testimony… and that the inmate testified it was another inmate who passed it to him in the strip-search room while one of the guards sat surfing the internet.
 The second case, in Corpus Christi, involved a spin-off case from the DEA and FBI investigation of the “silk road” website. The DEA office in Indonesia tracked a purchase of sassafras oil (one of the precursors for MDMA and meth) on the website to Corpus. Despite having the technology to track the purchase, package, and delivery (which was videotaped), finding an adult chemistry set and various alternative chemistry texts with recipes for the production of MDMA and meth, the agents followed DEA policy and did not record the interview and alleged confession. The jury found the defendant not guilty after hearing about the coercive techniques used by the DEA in this case, including threatening to arrest my client’s disabled mother for marijuana and pills she had in her room.
 All in all, a hectic couple of weeks for Simon, but the results definitely made the effort worth it. Way to go, counselor.

Nicole DeBorde got some good news in one tough case in the 262nd District Court in Harris County. Accused, who had been to the penitentiary for credit card abuse and burglary on concurrent charges, was charged with Aggravated Sexual Assault of a Child. He was living with his girlfriend and her extended family, and the 13-year-old niece of his girlfriend told another aunt he had been sexually assaulting her. Other children in the home were questioned, and an 8-year-old and 10-year-old also made outcry. The SANE examination revealed an acute tear in the oldest complainant’s genitalia. The accused testified at trial, so his priors were revealed. All extraneous allegations came into evidence. It was also revealed that the accused’s girlfriend had been asking her children for years whether “anyone had touched them.” The first accuser was having progressively worse discipline problems and blamed the accused for her punishments over these issues. The jury deliberated for two days and came back with the correct verdict of not guilty. Congratulations, Nicole, on a tough win.

TCDLA Board member Oscar Vega won a not guilty on all four counts of a federal conspiracy indictment in Judge Ricardo Hinojosa’s court in McAllen. His client was charged with having made false statements to, and committed fraud against, the Department of Education. The charges alleged employees and students made false statements on financial statements for Pell Loans. The jury deliberated for an hour before returning a verdict of not guilty on all counts. Kudos to Oscar for such a quick win.

TCDLA Board member Sarah Roland would like to pass out a couple kudos as well, the first to Patty Tress. Sarah tells us that Patty recently got three verdicts of not guilty after a jury trial in Denton County on aggravated kidnapping, felony assault, and felony evading. And this despite the fact that her guy had been to the pen before, too. Way to go, Patty.
 Sarah, no slouch herself (she joins Lance Evans and Laurie Key as next year’s Rusty course directors), would also like to commend CDLP committee chairs Kelly Pace and Michael Gross for putting together marvelous seminars. Michael, who is also the Voice editor, presided over the Trial Strategies That Work series wending its way around the state. Look for more details coming soon on Kelly’s series, titled Training Your Defense Team to Win, a comprehensive approach that promises to involve your entire law office in winning cases. A big thanks to Michael and Kelly for their hard work putting these together.