Monthly archive

October 2014

September 2014 SDR – Voice for the Defense Vol. 43, No. 7

Voice for the Defense Volume 43, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Instructions allowing the jury to convict under aiding and abetting as an alternate theory were erroneous because they failed to require that D knew in advance that one of his cohorts would be armed. Rosemond v. United States, 134 S. Ct. 1240 (2014).

        D was charged with using a gun in connection with a drug trafficking crime, in violation of 18 U.S.C.S. § 924(c), or, in the alternative, aiding and abetting that offense under 18 U.S.C.S. § 2, after he participated in an attempted marijuana sale and shots were fired at the buyers after the buyers took the marijuana and ran. The district court instructed the jury that they could find D guilty of violating § 924(c) as an aider and abettor if the evidence showed that he knowingly and actively participated in a drug trafficking crime and knew that an accomplice used a firearm in the commission of a drug trafficking crime; the jury found D guilty of violating § 924(c). The Tenth Circuit affirmed. The Supreme Court vacated the Tenth Circuit and remanded for the Tenth Circuit to address whether D’s objection was properly preserved and whether any error was harmless.

        The Government establishes that a defendant aided and abetted a § 924(c) violation by proving the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime. In telling the jury to consider merely whether D “knew his cohort used a firearm,” the court did not direct the jury to determine when D obtained the requisite knowledge—i.e., to decide whether D knew about the gun in sufficient time to withdraw from the crime.

D’s state conviction for misdemeanor domestic assault qualified as a misdemeanor crime of domestic violence for purposes of possessing a firearm under 18 U.S.C. § 922(g)(9). United States v. Castleman, 134 S. Ct. 1405 (2014).

        D moved to dismiss his indictment for 18 U. S. C. § 922(g)(9), which forbids the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence.” He argued that his previous conviction for “intentionally or knowingly caus[ing] bodily injury,” in violation of Tenn. Code § 39-13-111(b) misdemeanor domestic assault, did not qualify as a “misdemeanor crime of domestic violence” because it did not involve “the use or attempted use of physical force” of 18 U. S. C. § 921(a)(33)(A)(ii). The district court agreed, reasoning that “physical force” must entail violent contact and that one can cause bodily injury without violent contact, e.g., by poisoning. The Sixth Circuit affirmed. The Supreme Court granted certiorari to resolve a split among circuits. The Court unanimously reversed and remanded.

        Prior case law required that courts attribute the common-law meaning of “force” to § 921(a)(33)(A)’s definition of a misdemeanor crime of domestic violence as an offense that had, as an element, the use or attempted use of physical force. Thus, the requirement of physical force was satisfied, for purposes of § 922(g)(9), by the degree of force that supported a common-law battery conviction. Applying that definition of physical force, D’s conviction qualified as a misdemeanor crime of domestic violence where he had pled guilty to having intentionally or knowingly caused bodily injury to the mother of his child, and the knowing or intentional causation of bodily injury necessarily involved the use of physical force. Neither the legislative history nor the rule of lenity supported a different interpretation.

The traffic stop precipitated by an anonymous but reliable tip complied with the Fourth Amendment because the officer had reasonable suspicion that the driver was intoxicated. Navarette v. California, 134 S. Ct. 1683 (2014).

        A highway patrol officer stopped Ds shortly after a 911 caller reported she was run off the road by a pickup truck that fit the description of Ds’ truck. After he and another officer smelled marijuana, searched the truck, and found 30 pounds of marijuana in it, officer arrested both Ds. Ds filed a motion to suppress the marijuana, arguing that officer lacked reasonable suspicion to conduct the stop and, therefore, violated the Fourth Amendment. The trial court denied the motion, and the Court of Appeal of California affirmed. The California Supreme Court denied review. The U.S. Supreme Court affirmed: The traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, officer had reasonable suspicion that the driver was intoxicated. The behavior described by the 911 caller, viewed from the standpoint of an objectively reasonable police officer, amounted to reasonable suspicion of drunk driving.

Fifth Circuit

District court did not err in convicting and sentencing D on the basis of 5.9 kilograms of cocaine, even though the cocaine had a purity of only 3.2%; because this mixture was usable in its diluted form, it was proper to use the entire 5.9 kilograms, as a mixture or substance containing a detectable amount of cocaine. United States v. Villarreal, 723 F.3d 609 (5th Cir. 2013).

D’s 24-month prison sentence upon revocation of su­per­vised release was neither procedurally nor substan­tively unreasonable, even though it exceeded the advisory Guideline range of 8 to 14 months; there is no constitutional or statutory basis for finding error when the district court relies without notice on a defendant’s behavior (here, invalid urinalysis results) while on supervised release. United States v. Warren, 720 F.3d 321 (5th Cir. 2013).

        Moreover, although due process forbids sentencing reliance upon erroneous and material information or assumptions, D failed to show that the information in question was either inaccurate or material to the sentence. Finally, D’s sen­tence was not substantively unreasonable, especially on plain-error review (applicable because D did not object to his sentence on the specific grounds he raised on appeal).

When reducing a defendant’s sentence pursuant to Fed. R. Crim. P. 35(b) (on a government motion to reduce the sentence based on substantial post-sentencing assistance by the defendant), the district court is not re­quired to consider the factors in 18 U.S.C. § 3553(a). United States v. Lightfoot, 724 F.3d 593 (5th Cir. 2013).

        Thus, if the district court thought it was not required to consider and apply those factors, it was correct and did not err. However, even if the district court thought it was prohibited from considering those factors, and even if the district court may consider those factors in its discretion (a question the Fifth Circuit did not decide), the error here was harmless because there was no indication that the § 3553(a) factors had any bearing on sentencing.

On plain-error review, Ds’ Confrontation Clause rights were not violated when the district court allowed two confidential informants to testify under pseudonyms at trial. United States v. Alaniz, 726 F.3d 586 (5th Cir. 2013).

        Defense counsel was provided with the informants’ true names and significant background information; the only restrictions were that defense counsel could not use the informants’ actual names in open court and did not have access to the informants’ dates of birth and Social Security numbers.

        However, where Ds were charged with a multiple-object money-laundering conspiracy—alleging conspiracy to violate 18 U.S.C. § 1957 (which has a 10-year maximum) and various provisions of § 1956(a) (with a 20-year maximum)—and the jury returned only a general verdict that did not specify the object offenses that the jury found Ds guilty of conspiring to commit, the jury verdict was ambiguous, and the sentence for the conspiracy count could not exceed the lowest of the po­ten­tially applicable maximums. The Fifth Circuit vacated Ds’ sentences on the money-laundering conspiracy count and remanded for resentencing on that count.

It was constitutional to order disclosure of historical cell site information merely upon the Stored Communications Act’s lower specific-and-articulable-facts standard, as opposed to a probable-cause standard. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013).

        Where the district court denied as unconstitutional the government’s application to compel cell phone providers to produce the historical cell site information for their subscribers (application was made pursuant to 18 U.S.C. § 2703(d) of the Stored Communications Act (SCA)), the dispute was ripe for review, and the Fifth Circuit had appellate jurisdiction, under 28 U.S.C. § 1291, to review the district court’s order. On the merits, the Fifth Circuit held that contrary to the district court’s reasoning, it was not unconstitutional to issue orders for disclosure of historical cell site information merely upon the SCA’s lower “specific and articulable facts” standard, as opposed to a Fourth Amendment probable-cause standard. Because the court has no discretion to deny such an application once the government has met the statutory requirements, the Fifth Circuit vacated the district court’s order denying the application and remanded with instructions to grant the application.

        Judge Dennis dissented, noting that the majority’s decision conflicted with In re United States for an Order Directing Provider of Elec. Commun. Serv. to Disclose Records to the Gov’t, 620 F.3d 304 (3d Cir. 2010).

D was not entitled to reversal of her healthcare fraud convictions based on her right to be present at trial. United States v. Thomas, 724 F.3d 632 (5th Cir. 2013).

        D waived her right to be present at two chambers conferences by failing to assert her right to attend these conferences, which she knew about. D did not waive her right to be present at the exercise of peremptory challenges and at jury empanelment; however, although this was “error” that was “plain,” it did not affect D’s substantial rights, and hence did not require reversal on plain-error review.

Court of Criminal Appeals

Evidence insufficient to support D’s conviction for misapplication of fiduciary property because he was not acting in a fiduciary capacity when he took payments from customers for window treatments and then failed to deliver those goods as promised. Berry v. State, 424 S.W.3d 579 (Tex.Crim.App. 2014).

        One acts in a “fiduciary capacity” for Tex. Penal Code § 32.45(a)(1)(C), (b), if his relationship with another is based not only on trust, confidence, good faith, and utmost fair dealing, but also on a justifiable expectation that he will place the interests of the other party before his own. D had no special or confidential relationship with his customers beyond the usual contractual relationship that existed between any seller and a buyer of goods. However, D was not entitled to resentencing on the theft count. CCA affirmed the trial court in part and reversed in part.

D’s right to counsel was violated when his incriminating statements obtained from the complaining witness with regard to a subsequent case were used as primary evidence of guilt in the current case. Rubalcado v. State, 424 S.W.3d 560 (Tex.Crim.App. 2014).

        D, arrested pursuant to an Ector County complaint, made bail and was released from incarceration. Afterwards, at the behest of Midland County law enforcement, the complaining witness in the Ector County case contacted D and elicited incriminating statements from him. The question before CCA was whether appellant’s U.S. Const. amend. VI right to counsel was violated when these statements were later used as primary evidence of guilt in the Ector County case. CCA concluded that appellant’s right to counsel was violated with respect to the Ector County prosecution, and reversed COA’s judgment.

        D’s right to counsel with respect to the current charges had attached before the recorded conversations took place. D’s right to counsel had attached with respect to the recordings insofar as they were relevant to the current prosecutions. The complaining witness was a government agent; deliberate elicitation was shown. Police encouraged the complaining witness to contact D for the purpose of eliciting a confession, and they provided recording equipment to her to memorialize any incriminating statements. Furthermore, D had not waived his right to counsel.

Partial habeas relief granted because D was prejudiced by counsel’s deficient performance at the punishment phase of trial. Ex parte Howard, 425 S.W.3d 323 (Tex.Crim.App. 2014).

        The habeas judge originally recommended that CCA grant relief in the form of a new trial because of counsel’s deficient performance in failing to have mental-health experts appointed and in failing to properly investigate and present an insanity defense. CCA originally filed and set this application to determine whether applicant was prejudiced at the guilt phase of trial by counsel’s deficient performance. CCA concluded that applicant was not prejudiced at the guilt phase because Texas law prevents the consideration at guilt of evidence of insanity caused by voluntary intoxication. But because Texas law allows consideration of such evidence at punishment, and the habeas judge had recommended granting relief, CCA remanded to the habeas judge for findings of fact on whether applicant was prejudiced with respect to the issue of punishment. In his findings of fact and conclusions of law on remand, the habeas judge concludes that applicant was prejudiced with respect to the issue of punishment. The record supports this conclusion. Consequently, CCA granted relief in the form of a new punishment hearing.

The denial of D’s motion for post-conviction DNA testing was proper because she did not meet the Tex. Code Crim. Proc. art. 64.03 requirement to prove by a preponderance of the evidence that she would not have been convicted had exculpatory results been obtained from the item she sought to have tested. Holberg v. State, 425 S.W.3d 282 (Tex.Crim.App. 2014).

        CCA affirmed the convicting court because CCA was unable to say that it was more likely than not that the jury would not have convicted D of capital murder, even if it were convinced that she had never touched the wallet, in light of the credible alternative avenues to determine, beyond a reasonable doubt, that she committed a robbery against the victim that did not depend on D touching the wallet.

COA in the instant case did not have the benefit of Ex parte Lo, No. PD-1560-12 (Tex.Crim.App. Oct 30, 2013), which held that online solicitation of a minor, Tex. Penal Code § 33.021(b), is unconstitutional; CCA remanded to COA. Freeman v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014).

The jury charge was not erroneous for failing to require the jury to render a unanimous verdict with respect to which theory of aggravated sexual assault D’s conduct satisfied. Jourdan v. State, 428 S.W.3d 86 (Tex.Crim.App. 2014).

        D was convicted of aggravated sexual assault, for which the jury assessed a sentence of 35 years in prison. COA reversed, holding that D was egregiously harmed by a jury charge at the guilt phase that failed to require the jury to render a unanimous verdict with respect to which of two theories of ag­gra­vated sexual assault D’s conduct satisfied. CCA reversed COA’s conclusions both that the jury charge was erroneous and that any such error was egregiously harmful.

        “We conclude that, in this case, the penetration of a single orifice (the sexual organ) of the one victim (Kemp) during the same transaction constituted but one offense under [Tex. Penal Code §] 22.021(a)(1)(A)(i), regardless of the various manner and means by which the evidence may show that the penetration occurred. The jury was not required to reach unanimity with respect to whether the appellant penetrated Kemp with his penis or his finger during that transaction.” CCA also found that, regardless, D did not suffer egregious harm: “the failure of the trial court to expressly require jury unanimity with respect to digital penetration versus penile contact, assuming it was error, neither affected the very basis of the case nor actually operated to deprive the appellant of his valuable right to a unanimous jury.”

The State did preserve the issue of reforming D’s conviction to attempted tampering with evidence; furthermore, the evidence was sufficient to support attempted tampering. Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014).

        D was convicted of the third-degree felony of tampering with evidence, on a theory of concealment, for reaching in his pocket, pulling out a crack pipe, and dropping it to the ground in the presence of police. On appeal, COA deemed the evidence insufficient to support a conviction for tampering with evidence by concealment because, with respect to the element of concealment, the evidence showed that “at least one of the officers on the scene . . . was aware of the presence of the item alleged to have been concealed” at all times. Accordingly, COA reversed and ordered that D be acquitted.

        After CCA, on initial discretionary review, remanded for COA to consider reforming the judgment to reflect a conviction for attempted tampering with evidence, COA explicitly declined. CCA here granted the State’s petition, reversed COA, and remanded to the trial court.

        COA erred in holding the State failed to preserve the issue of reformation because, if reformation was an appropriate remedy, it had to be applied regardless of whether either party requested or contested—or whether the jury was actually given—an instruction on the lesser-included offense. COA also erred in ruling reformation could be used only to re­form the aggravating elements of an offense, and it should have focused on what the jury actually found in the course of convicting D of the greater offense. Lastly, there was sufficient evidence to support a conviction for attempted tampering because the evidence presented was sufficient to support a reasonable inference that concealment of the pipe was apparently possible to D and that he was acting with the intent to conceal the pipe when he dropped it.

D was ineligible for community supervision from a jury due to a prior felony conviction, even though the prior conviction had been set aside, because that conviction was resurrected for the limited purpose of probation ineligibility when he was convicted of the present offense. Yazdchi v. State, 428 S.W.3d 831 (Tex.Crim.App. 2014).

        CCA affirmed COA that (1) D was ineligible for community supervision from the jury because his conviction in this case revived his earlier conviction for the limited purpose of pro­bation ineligibility, under Tex. Code Crim. Proc. art. 42.12, § 20(a)(1), even though his earlier conviction had been terminated by a discharge order that permitted him to withdraw his guilty plea, dismissed the indictment, and set aside the verdict; and (2) D did not preserve his complaint that it is impermissible to impeach his testimony with a prior probation that was discharged through judicial clemency. The requirement under § 20(a)(1) that a prior conviction be made known to the judge means that a defendant being sentenced by a jury under § 4(e) must provide the information about the prior conviction in a written motion before trial begins.

A mistrial was proper after D asked the complaining witness on cross-examination whether the witness alleged that D did the same thing to his own daughter; D inadequately showed that the witness made such an al­le­gation and that it was false. Pierson v. State, 426 S.W.3d 763 (Tex.Crim.App. 2014, pet. filed).

        D was on trial for indecency with a child and aggravated sexual assault of a child. The defense’s first question on cross-examination of the complaining witness was, “Did you also make an allegation that [D] did these same things to his own daughter?” After a hearing, the court granted the State’s request for a mistrial. D then filed a pretrial habeas application on the basis of double jeopardy. The court denied the application because it found that the mistrial was D’s fault and that there was no other appropriate remedy; thus there was a manifest necessity to retry D, and his second trial was not precluded by double-jeopardy principles.

        D was convicted at his second trial of one count of indecency with a child and seven counts of aggravated sexual assault of a child. D appealed that his second trial violated double jeopardy, but COA disagreed. CCA granted D’s ground for re­view: “The single question posed by Petitioner’s trial counsel did not create the type of very extraordinary and striking circumstances necessary to sustain a finding of manifest necessity to declare a mistrial.” CCA affirmed COA.

        The judge’s decision to grant a mistrial based on the risk of juror bias was entitled to great deference. COA did not err in holding that the trial court acted with sound discretion when it determined that an instruction to disregard D’s improper question to the witness would be insufficient to cure the error, as the trial court considered less drastic alternatives than a mistrial but found a curative instruction would have been insufficient.

A trial record need not contain a colloquy between the judge and defendant for the conclusion that defendant waived his right to an interpreter; the record here sufficiently reflected that D knowingly, intelligently, and voluntarily waived this right. Garcia v. State, 429 S.W.3d 604 (Tex.Crim.App. 2014).

        “The question in this case is whether the record must contain a waiver colloquy between the trial judge and the defendant before an appellate court may conclude that a defendant has waived his right to an interpreter. We hold that the record does not have to contain such a colloquy, as long as the record otherwise affirmatively reflects that a waiver occurred. Concluding that the record affirmatively reflects a waiver in the present case, we affirm the judgment of the court of appeals.” The record contained evidence that trial counsel told D that he had a right to an interpreter, that D agreed with counsel not to request an interpreter, and that D and counsel communicated their desire not to have an interpreter to the trial judge, albeit in an off-the-record conference.

Court of Appeals

Although a caller in Harris County made the false report of child abuse to the CPS hotline in Travis County, venue was proper in Galveston County because Galveston County resources were spent on the unnecessary investigation. Riley v. State, No. 14-12-00729-CR (Tex.App.—Houston [14th Dist] Apr 15, 2014).

        “Galveston County jurors had a natural interest in the subject matter, and Galveston County has a substantial connection to the case since the report was made concerning a child residing in Galveston County and was investigated in Galveston County. Since venue is not an element of the offense, the error did not prejudice the jurors’ decision making process. An examination of the record as a whole gives us fair assurance that the error did not affect appellant’s substantial rights.”

Text messages and video calls between D and the complainant were telephone communications within the meaning of Tex. Penal Code § 42.07(a)(4), and the evidence was legally sufficient to support D’s conviction for harassment under this Penal provision. Perone v. State, No. 14-12-00969-CR (Tex.App.—Houston [14th Dist] Apr 15, 2014).

        “In analyzing the sufficiency of the evidence, we note that no Texas court yet has explicitly addressed in a published opinion whether a text message or video call constitutes a telephone communication under [Tex. Penal Code] section 42.07(4) or an electronic communication under section 42.07(7), or both. Text messages are a type of written communication that can be exchanged between various types of devices, for example, between two cell phones. . . . We conclude that, if text messages are exchanged between two telephones, they are communications between telephones, and thus are telephone communications under section 42.07(a)(4).”

Evidence seized pursuant to a search warrant need not be suppressed because the supporting affidavit was based solely on information gathered by a police officer conducting an undercover investigation outside his jurisdiction. Halili v. State, 430 S.W.3d 549 (Tex.App.—Houston [14th Dist] 2014).

Synthetic Drug Prosecution & Defense


In 1980, designer drugs (e.g., amphetamines, fentanyl derivatives, phenethylamines related to MDMA) in the United States began to enter the marketplace. In response, Congress passed legislation seeking to ban these new designer drugs called the Federal Controlled Substance Analogue Enforcement Act (­FCSAEA) of 1986. After initial litigation of a limited degree, this law laid largely dormant until a couple of years ago. It is expected that FCSAEA-based prosecution will increase exponentially in the next several years. This anticipated resurgence in FCSAEA-based prosecutions is traceable to the modern phenomenon of synthetic drugs. PiHKAL: A Chemical Love Story is a 978-page paperback published in September 1991, written by Dr. Alexander Shulgin and his wife Ann Shulgin, which launched the careers of many new, modern-day unlicensed pharmaceutical entrepreneurs.1 With the highly profitable endeavor of synthetic drug production flooding the marketplace, federal and state legislatures have had a difficult time keeping up with the illicit trade. They have tried to keep pace with the development of synthetic cannabinoids and synthetic cathinones such as the naphthoylindoles; naphthylmethylindoles; naphthoylpyrroles; naphthylideneindenes or naphthylmethylindenes; phenylacetylindoles; cyclohexylphenols; benzoylindoles; quinolone-based synthetic cannabinoids; HU-210; dexanabinol or HU-211; WIN 55,212-2; benzylpiperazines; phenethylamines; tryptamines; pyrrolidinophenones; and the like. But it is a daunting task. Regulation is difficult, because as soon as one compound becomes scheduled and therefore illegal to possess, the makers of these drugs quickly switch to another compound—one that has the same or similar pharmacological effect but is a different chemical structure and is therefore not a scheduled substance.

This article will examine the prosecution of controlled substance “analogs” by both the state and federal governments. At the end of this read, the reader will have appreciation for the controlling law, the scientific problem of defining an analogue, the current efforts in the forensic science community to define an analogue, and the new chemical defense as seen in the case of Ohio v. Silmi et al.2

The Current State of the Law

The traditional reaction of both federal and state legislatures has been to resort to “analogue acts.” The first of these analogue acts was passed in 1986 by the federal government. The current form can be found at 21 U.S.C. § 802(32).

The Federal Controlled Substance Analogue Enforcement Act (FCSAEA) of 1986 reads as follows:

(A)  Except as provided in subparagraph (C), the term “controlled substance analogue” means a substance –

(i)    the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(ii)   which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
(iii)  with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central ner­vous system of a controlled substance in schedule I or II.

(B)  The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to para­graph (34) or (35) does not preclude a finding pursuant to subparagraph (A) of this paragraph that the chemical is a controlled substance analogue.
(C)  Such term does not include—

(i)    a controlled substance;
(ii)   any substance for which there is an approved new drug application;
(iii)   with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under section 355 of this title to the extent conduct with respect to such substance is pursuant to such exemption; or
(iv)  any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.

The developed law interpreting the FCSAEA reveals a hodge-podge of decisions. It includes:

Constitutional Challenges Based on the Void for Vagueness Doctrine

  • Definition of “controlled substance analogue” in Comprehensive Drug Abuse Prevention and Control Act is specific enough to give constitutionally adequate notice of misconduct prohibited. United States v. Reichenbach, 29 M.J. 128 (CMA 1989).
  • Controlled Substance Analogue Enforcement Act of 1986 was not unconstitutionally vague as applied, in light of sufficiently precise statutory language to enable ordinary person in position of defendants to know that listed precursor chemicals should not have been possessed for purpose of manufacturing for human consumption, substances similar to amphetamine, methamphetamine, and 4-methylaminorex;  defendants had copy of government notice that methylaminorex was to be scheduled as controlled substance, and had used false names in ordering precursor chemicals. United States v. Hofstatter, 8 F.3d 316 (6th Cir. 1993), cert. denied, 510 U.S. 1131, 114 S.Ct. 1101, 127 L.Ed.2d 413 (1994).
  • Although analogue statute, under which chemical can be considered a drug if it is an analogue to listed controlled substance, was “somewhat elastic,” it was not unconstitutionally vague as applied to defendant for trafficking in aminorex and phenethylamine as analogues to cis-4-methylaminorex and methamphetamine, respectively, since chemical charts would have put reasonable person on notice that substances were substantially similar within meaning of statute. United States v. McKinney, 79 F.3d 105 (8th Cir. 1996), vacated, 520 U.S. 1226, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997), on remand, 120 F.3d 132 (8th Cir. 1997).
  • Analogue Act, under which a substance that is substantially similar to controlled substance analogue is itself treated as controlled substance analogue, was not unconstitutionally vague under Fifth Amendment as applied to controlled substance analogues 5-methoxy-N, N-diisopropyltryptamine, also known as “Foxy,” and alpha-methyltryptamine (AMT); defendant had actual notice of Analogue Act and researched and discussed its applicability, thus foreclosing a vagueness challenge, defendant showed witnesses at least one website warning that “Foxy” could be prosecuted under the Analogue Act, defendant attempted to conceal his activity from law enforcement, defendant attempted to obtain precursor chemicals from a supplier alleging that he was a research company conducting a study of their pharmacological effects. United States v. Klecker, 228 F.Supp.2d 720 (E.D.Va. 2002), aff’d, 348 F.3d 69 (4th Cir. 2003), cert. denied, 541 U.S. 981, 124 S.Ct. 1896, 158 L.Ed.2d 482 (2004).
  • Statutory definition of the term “controlled substance analogue” was unconstitutionally vague as applied to 1,4-butanediol, claimed in a drug indictment to be an analogue of the controlled substance hydroxybutyric acid (GHB); there was no scientific consensus as to whether the two substances had substantially similar chemical structures, and it was not sufficient that 1,4-butanediol converted in the body into GHB, particularly in light of several naturally occurring substances that differed from GHB in the same manner as 1,4-butanediol, but which were not prosecuted. United States v. Roberts, 2002 U.S. Dist. Lexis 16778, (S.D.N.Y., September 9, 2002), vacated, 363 F.3d 118 (2d Cir. 2004), on remand, 2005 U.S. Dist. Lexis 9141 (S.D.N.Y., May 16, 2005).
  • Statutory definition of the term “controlled substance analogue” was not unconstitutionally vague as applied to 1,4-butanediol, claimed in a drug indictment to be an analogue of the controlled substance gamma hydroxybutyric acid (GHB), given that 1,4-butanediol differed from GHB by only two atoms and was converted into GHB upon ingestion. United States v. Roberts, supra, 363 F.3d 118, on remand, 2005 U.S. Dist. Lexis 9141 (S.D.N.Y., May 16, 2005).

Definitions and Explanation of the Elements of the Crime

  • Drug may be controlled substance “analogue” only if it meets both chemical structure and pharmacological effects prongs of statutory definition. United States v. Forbes, 806 F.Supp. 232 (D.Colo. 1992).
  • Based on legislative history, ambiguous definition of “controlled substance analogue” in Controlled Substance Analogue Enforcement Act is to be read conjunctively—i.e., substance in order to be “analogue” is required to satisfy both chemical structure prong of statutory definition and either second or third prong, respectively, requiring substantially similar effect on human nervous system or intent to have such an effect. United States v. Hodge, 321 F.3d 429 (3d Cir. 2003).
  • Ambiguous definition of “controlled substance analogue” in Controlled Substance Analogue Enforcement Act is to be read conjunctively—i.e., substance in order to be “analogue” is required to satisfy both chemical structure prong of statutory definition and either have a substantially similar effect on the central nervous system or be purported or intended to have such an effect. United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005), cert. denied, 546 U.S. 1089, 126 S.Ct. 1022, 163 L.Ed.2d 853 (2006).

Interpretation of “Substantially Similar”

  • Methylenedioxymethamphetamine (MDMA), or Ecstasy, could be treated as “controlled substance analogue” under the Analogue Act, even though it had previously been scheduled as Schedule I controlled substance, once Schedule I scheduling was held invalid. United States v. Franz, 818 F.Supp. 1478 (M.D.Fla.1993).
  • Statutory definition of controlled substance “analogue” encompassed wax-and-flour mixture sold as crack cocaine to undercover agent, even though mixture was not chemically similar to controlled substance; mixture fell within third of three disjunctive definitions, “[substance] which [defendant] represents . . . to have a stimulant, depressant, or hallucinogenic effect . . . that is substantially similar to or greater than [that of] controlled substance in schedule I or II.” United States v. Greig, 144 F.Supp.2d 386 (D.V.I. 2001), aff’d in part, reversed in part, 321 F.3d 429 (3d Cir. 2003).
  • Pills containing ginseng and vitamin B, which defendants represented to purchaser to contain schedule I controlled substance, did not constitute “controlled substance analogue” as required for conspiracy to possess and distribute controlled substance analogue conviction; there was no indication in legislative history that Controlled Substances Analogue Enforcement Act was meant to forbid individuals from passing off over-the-counter nutritional supplements or vitamins as controlled substances. United States v. Clifford, 197 F.Supp.2d 516 (E.D.Va. 2002).
  • Chemical structure of 5-methoxy-N, N-diisopropyltryptamine, also known as “Foxy,” was substantially similar to that of DET, a controlled substance analogue, so as to support treatment of “Foxy” as a controlled substance analogue under Analogue Act; “Foxy” and DET shared same core arrangement of atoms, known as tryptamine, which was the core element of a number of hallucinogenic drugs; experts agreed that “Foxy,” which was lengthened by one methyl group, had a slightly higher lipophilicity rating than DET, which meant it had greater ability to penetrate the blood stream. United States v. Klecker, supra.
  • Substance could be a “controlled substance analogue” for purpose of statute stating that a controlled substance analogue shall, to the extent intended for human consumption, be treated as a controlled substance in schedule I, only if it satisfied both the chemical structure prong of statutory definition, and either the second or third prong of statutory definition, requiring either a substantially similar effect on the human nervous system or the intent to have such an effect. United States v. Vickery, 199 F.Supp.2d 1363 (N.D.Ga. 2002).
  • In United States v. Hodge, supra, held that a wax-and-flour mixture sold to undercover federal agent as “crack cocaine” did not constitute “controlled substance analogue” within meaning of Controlled Substance Analogue Enforcement Act as mixture did not satisfy Act’s definition requiring “substantially similar” chemical structure.
  • In United States v. Brown, 415 F.3d 1257 (11th Cir. 2005), cert. denied, 547 U.S. 1023, 126 S.Ct. 1570, 164 L.Ed.2d 305 (2006), the defense called an expert to testify as to what constitutes “substantially similar” in chemistry, and to refute the prosecution’s theory of the case, but the expert was precluded from testifying. That court held that even if this expert witness proffered by defendants in prosecution for conspiracy to distribute a controlled substance analogue to testify concerning the similarity between gamma-hydroxybutyric acid (GHB), a controlled substance, and 1,4 butanediol, an alleged controlled substance analogue, was qualified to testify as an expert, witness’ testimony was based on unreliable methodology unreasonably applied. In that court’s opinion, the proffered expert witness overemphasized the differences between the two chemicals by unnecessarily double-counting a substructure present in GHB but not in 1,4-butanediol, and witness did not know and could not explain how the computer programs he used defined similarity.

Cases that Comment on Knowledge of What the Substance Is as a Requirement

  • A mens rea (scienter) element of the crime exists. This means that to be convicted of possessing with intent to distribute mixtures containing a controlled substance, the prosecution must show that the defendant knew that the substance at issue had a chemical structure substantially similar to that of a controlled substance, and he or she must either have known that it had similar physiological effects or intended or represented that it had such effects. United States v. Turcotte, supra.

The Source of the Disparate Results

The interpretation of a statute can either be amazingly simple or downright complicated. These guidelines are generally referred to as the cannons of construction.

What is happening here, from strictly the legal viewpoint, is the intersection of three powerful principles that interrelate but do not easily work together to produce a meaningful and just interpretation of the law. These separate and distinct principles are (1) in pari material; (2) the strict construction of penal statutes; and (3) the rule of lenity.

  1.   All statutes should be read as a harmonious whole, with its separate parts (such as subparts) being interpreted within their broader statutory context in a manner that furthers statutory purpose. This is called in pari materia. Justice Scalia of the United States Supreme Court once wrote: “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear . . . or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Savings Ass’n of Texas v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (citations omitted).

  2.   The strict construction of the penal statutes means that all statutes that are penal in nature must be strictly applied (they are to be applied as they are written and nothing “extra” interpreted into them).

  3.   If statutory language is ambiguous, then the rule of lenity applies. If statutory language is unambiguous, the rule of lenity does not apply. Beecham v. United States, 511 U.S. 368, 374, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994), citing Chapman v. United States, 500 U.S. 453, 463–464, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); see also National Org. for Women v. Scheidler, 510 U.S. 249, 262, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). The rule of lenity requires that “before a man can be punished as a criminal . . . his case must be ‘plainly and unmistakably’ within the provisions of some statute . . .” United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917). Lenity principles “demand resolution of ambiguities in criminal statutes in favor of the defendant.” Hughey v. United States, 495 U.S. 411, 422, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) (citations omitted); see also United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (“In these circumstances—where text, structure, and [legislative] history fail to establish that the Government’s position is unambiguously correct—we apply the rule of lenity and resolve the ambiguity in [the defendant’s] favor.”); Cleveland v. United States, 531 U.S. 12, 25 (2000) (before choosing a “harsher alternative” interpretation of the mail fraud statute, “it is appropriate . . . to require that Congress should have spoken in language that is clear and definite”) (citation omitted). Two reasons for the rule are that “fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed,” and that “legislatures and not courts should define criminal activity.” Ratzlaf v. United States, 510 U.S. 135, 148–49 (1994), citing McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931).

Condition Precedent for Prosecution: Is the Substance Intended for Human Consumption?

Under the FCSAEA, there is a prerequisite of proof that the government must show prior to getting into the pharmacology of the drug or determining the seller’s intent. The government has to affirmatively prove that this substance was intended for human consumption. The government can do this by direct evi­dence. For example, if the seller said the substance will get the buyer high, or the government can prove this by circumstantial evidence if it meets the burden of proof beyond a reasonable doubt. Circumstantial evidence does not give the fact-finder per­mission to lower the burden of proof; instead it merely allows the person to make reasonable inferences based upon other admitted evidence. This is why the producers of these substances cannot avoid criminal responsibility by simply printing “not for human consumption” on the packaging.

The government can use a context to try to meet their burden of proof by showing that the items were being sold in a head shop right next to the smoking devices that promote a sale if you bundle the two together. The government will also frequently attempt to employ a “negative corpus” or “burden shifting” tactic that is framed as “there are no non-human consumption uses for these chemicals so that is direct proof of intended use for human consumption.” (There is no logic in a negative corpus argument. In fact it is illogical.) Another familiar government argument in courthouses is that, “They didn’t come in here and offer any proof that it wasn’t used for human consumption.” This is impermissible burden shifting. At a very threshold issue, if the government cannot prove that it was used for human consumption, then the prosecution must fail.

Essential Elements

Under the FCSAEA, there are two essential elements associated with the second essential element, and they can be proven in the alternative. As is the case with all essential elements, the government has the burden of production to put forth competent evidence as well as the burden of persuasion beyond a reasonable doubt. If the government fails to produce any evidence as to an essential element, then the prosecution must fail, as there is no legal sufficiency for a conviction. The burden of persuasion focuses on the “weight of the evidence.”

The first part of subsection A calls for a structural analysis and an opinion that the molecule is “substantially similar” to a Schedule I or II substance. It is not sufficient to be merely “substantially similar” to any controlled substance whatsoever. So the government must allege and prove the structural similarity to a particular Schedule I or Schedule II substance. If this particular Schedule I or II substance is not revealed in the indictment or information, it would be wise for a criminal defense attorney to apply for a bill of particulars or file a motion seeking that the indictment or information be quashed for lack of sufficient particularity. Without sufficient proof of this first element, there can be no successful prosecution.

If the government does not prove this first element, the verdict must be “not guilty.” To satisfy the first essential element, the government must produce an expert. It is quite clear that what is and is not an analogue is not “within the ken of a lay person.” Even more so, valid structural analysis and comparison of an unknown seized substance to a Schedule I and Schedule II substance is certainly also “beyond the ken of a lay person.” Therefore, expert testimony is required. Usually this is a chemist. This witness must explain the structure and offer an opinion that this particular substance is “substantially similar” to a specific and particular Schedule I or Schedule II drug and not just simply to a controlled substance. The government must prove this opinion beyond a reasonable doubt.

Defense counsel must be very careful to examine closely the qualifications of any proffered expert who testifies in these cases. Meaningful structural examination is not within the scope of the expertise of all chemists. It is infrequently taught in undergraduate chemistry or is typically only covered in cursory fashion. Valid explanation of chemical structures in the typical analogue context requires more than simply two-dimensional simplistic ball-and-stick drawings. In fact, an expert who engages in such a simplistic method as justification for his or her opinion should set off an alarm for defense counsel. If the government is able to produce competent evidence in sufficient weight to satisfy this first essential element, the prosecution is only part way to a conviction, as it must also prove the second essential element.

The second essential element can be proven in one of two ways. Much like the first essential element, if the government does not prove this element in either of the alternative forms, the verdict must be “not guilty.”

The first alternative requires certain sub-issues of proof that: (1) to a human being (2) there is a pharmacodynamic effect similar to or greater than a particular Schedule I or Schedule II substance that produces a stimulant, depressant, or hallucinogenic effect on the central nervous system. At present, there is a wholesale lack of meaningful controlled scientific studies as to the pharmacodynamic effect of these substances. What studies exist are not performed on humans and are instead pharmacokinetic studies on pigs or rats. There is a lack of information on basic pharmacological issues with these substances such as human binding affinities, bioavailability in humans after particular methods of introduction, and the like. Other dubious sources used as references include self or community anecdotal reporting through emergency rooms or poison control centers. Finally, as is known in organic chemistry and pharmacology, a seemingly small change in structure can grossly change the pharmacodynamic affect (e.g., tetrahydrocannabinol versus cannabidiol, buprenorphine versus diprenorphine). As one can see, satisfying the burden to prove this prong could be very difficult for the prosecution.

The second alternative way to prove the second essential element simply requires proof that the person represents or intends that the seized substance will have a pharmacodynamic effect similar to or greater than a particular Schedule I or Schedule II substance that produces a stimulant, depressant, or hallucinogenic effect on the central nervous system. Again, much like the “human consumption” aspect of this prosecution, direct or circumstantial evidence can be used to prove this element. This is usually much easier to prove than the first alternative of the second essential element.

Alternative Forms of Laws to Deal with Synthetic Drugs

As of November 2012, 41 states and Puerto Rico have passed legislation that seeks to ban some form of synthetic cannabinoids.3 When it comes to synthetic cannabinoids, some acts passed by state legislatures seek to simply specifically name certain substances that they want to ban.4 This approach provides certainty in terms of the scope of potential prosecution. However, it cannot adapt quickly to changes in the synthetic drug world. For every time one substance is placed on a list, the manufacturers change their synthesis to something different. Only two state legislative (MN and CO) actions mirror the sweeping federal analogue approach as discussed above.5 Some state legislatures have passed statutes that refer to the banning of homologues.6 It is important to note and distinguish between homologues and analogues. A homologue is a specific type of analogue wherein the homologue is a compound belonging to a series of compounds differing from each other by a repeating unit. For example, methanol, ethanol, isopropanol, and butanol are homologues by just adding a CH2 group through that progression of chemicals. This homologue approach is not nearly as sweeping as the federal analogue approach. Other state legislatures have passed class-based legislation to ban certain types of synthetic cannabinoids.7 The difficulty with a class-based system is that the testifying expert must wholly understand structure and be able to articulate well to a lay jury what these classes are and how the substance clearly falls into the proposed task. Another drawback comes from public notice of what is or is not legal. For example, a layperson will find written in such a statute the banning of all naphthoylindoles and will search in vain for JWH-018. Therefore, there can be understandable confusion for the layperson who wants to comply with the law but cannot because of hyper-technical definitions that he or she cannot fairly be expected to know. In a class-based strategy, the average layperson will not find a listing of specific substances. As such, the actual notice of prohibited substances is at best lacking and at worst misleading.

A minority of state legislatures (CO and OK) have taken a receptor-based approach.8 The receptor-based approach makes a substance illegal if there is “binding activity at one or more cannabinoid receptors” or “is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring substances.”9 This receptor-based approach can be difficult because it can be argued that it is very broad in its effect and leads to ostensibly irrational results. For example, there is some research that shows acetaminophen indirectly affects CB1 receptors. Acetaminophen’s metabolite N-arachidonoylphenolamine (AM404) increases endogenous cannabinoids like anandamide and 2-Arachidonoylglycerol by inhibiting FAAH (fatty acid amide hydrolase). FAAH metabolizes anandamide (an endogenous cannabinoid) and 2-Arachidonoylglycerol.10

As of November 2012, nine state legislatures (MD, MA, NV, NH, NJ, NY, OR, VT, and WA) have not passed any form of synthetic cannabinoid laws.11 However, as of November 2012, of those states NY, OR, and WA have elected to use departmental rules to ban some forms of synthetic cannabinoids. This leaves MD, MA, NV, NH, NJ, and VT with either a legislative enactment or a department-based ban for synthetic cannabinoids.

As of November 2012, 43 states and Puerto Rico have passed legislation that seeks to ban some form of synthetic cathinones.12 The banning of these types of substances has proven to be more difficult to define for state legislatures. Most states have opted to simply list specific compounds to ban.13 A minority of states simply have a class-ban system in place. The difficulty in this approach is that defining a class or classes proves to be more difficult than in the cases of synthetic cannabinoids.

As of November 2012, eight state legislatures (CA, MT, NE, NH, OR, VT, and WA) have not passed any form of synthetic cathinone laws.14

As of November 2012, three state legislatures (OR, VT and NH) have taken no action on either synthetic cannabinoids or synthetic cathinones.15 Vermont and New Hampshire have taken neither state legislative action nor departmental regulation action.

Yet another possible way of regulating these synthetic drugs has recently emerged. It is a pharmacology-driven definition. In this case, the law says that the government must prove pharmacological effect similar to or greater than a Schedule I or Schedule II drug AND chemical structural class (in that order). If they cannot prove the pharmacological effect similar to or greater than a Schedule I or Schedule II drug, structural class never even comes into consideration. In such a statutory scheme, a chemist (alone) could not testify to a drug being a substance under that type of law even if that specific drug was listed as an example under a listed structural class. Because of this interpretation, it is misleading to the court to produce a chemistry report that says anything that could be interpreted as “Drug X is a controlled substance or its analogue.” Instead, a pharmacologist would need to testify as to the substance’s effect on a human being and then a chemist as to its structure. This approach proves difficult for the government, as it might require two experts as opposed to one, but this method is very appealing for constitutional reasons.

When the DEA, Congress, or some other legislative or rule-making body makes something illegal, it is a taking of property, plain and simple. It is depriving an individual of a property right. As such, it is subject to Due Process review (good old fashioned Fifth Amendment or Fourteenth Amendment). As this Due Process claim does not involve a suspect or quasi-suspect class or a fundamental right, it defaults to the rational basis test. The rational basis test simply means that the government has to have a legitimate reason for a law or regulation that is rationally linked to it (in other words, the connection is not a non sequitur). In order to survive a true constitutionally based challenge, one must word any statute seeking to ban these synthetics in the pharmacology-driven model so that the pharmacodynamic effect must be proven first before it can be criminalized. Otherwise, we have no rational relation to the harm trying to be prevented. In other words, we are banning things (which is a form of taking of property rights) without linking them to a demonstrated harm. Banning things for the sake of banning them and depriving people of a property interest without reason is unconstitutional and cannot be tolerated.

The Conflagration of Science and the Law

We could start this section with the concept that lawyers and legislators make laws and infrequently consult with the scientists who are the experts on this subject matter. This is how we come up with the term of “analogue” and in particular the idea of “substantially similar” that we see in the statutes. This is the root cause of all of the difficulty in the courtroom.

According to the dictionary, an analogue is “a chemical compound that has a similar structure and similar chemical properties to those of another compound, but differs from it by a single element or group. The antibiotic amoxicillin, for example, is an analogue of penicillin, differing from the latter by the addition of an amino group. Compare homologue.”

This is not totally clear. What is “substantially similar”? A number of tests have been devised by courts in the area of intellectual property to determine “substantial similarity.” None of these tests are particularly useful. Sometimes they border on circular logic, such as one appellate court that defined a “substantially identical” claim as one that is “without substantive change.” Laitram Corp. v. NEC Corp., 163 F.3d 1342, 1346 (Fed. Cir. 1998). The tests used in the intellectual property world may rely on expert or lay observation and may subjectively judge the essence or critically analyze its elements. Again, this is not much help.

Ultimately, no matter what scientific consensus may or may not develop, the question of substantial similarity is a question of fact to be determined by a jury, just like in the area of patent or copyright law.

The real world issue is that having no written standard or guidance document in the scientific community that provides support or instructions to testifying experts is akin to living in the wild, wild west. There is no law. Everyone is allowed to opine as they wish with no real consequences for being either too broad (such as saying anything with a carbon in it is an analogue to a Schedule I or II) or too narrow (such as requiring nearly identical copying of the Schedule I or II drug).

Efforts to Define Analogues by Organizations

The Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG) has posted the DRAFT document “SWGDRUG Recommendations on Analogues and Structural Class Determinations.”16 It is a very short document and really does little to solve the scientific issue in the courtroom. It reads as follows:

SWGDRUG Recommendations on Analogues and Structural Class Determinations

■ 1 Introduction

   1.1   This section provides general recommendations regarding analogues and structural class determinations.

   1.2   Jurisdictional requirements for such determinations may include structural or pharmacological (real or purported) similarity to known controlled substances or structural class definitions.

   1.3   SWGDRUG considers it fundamental for analysts to fully understand how analogues and structural classes are legally defined in a particular jurisdiction prior to de­vel­op­ing or reporting opinions.

   1.4   Such opinions should only be rendered by those with proper training and experience.

■ 2 Analogues

   2.1   The requirements for legal consideration as a controlled substance analogue are defined in jurisdictional legislation.

   2.2   Classification as a controlled substance analogue generally involves the evaluation of the similarity of structure or pharmacological properties of a chemical compound to a known controlled substance.

   2.3   The scientific evaluation of similarity may be made using a variety of techniques and approaches depending on the specific question being addressed. These specific comparisons can be broadly classified by structure, chemical properties, biochemical or pharmacological activity.

   2.4   Evaluation of similarity shall include comparisons of an appropriate nature sufficient to meet jurisdictional requirements.

   2.5   The evaluation of similarities between chemical compounds should be documented. This should include a dis­cus­sion of how the compounds are similar and how they are different.

   2.5.1 Evaluation of similarity is a subjective matter and opinions may differ.

   2.5.2 Structural comparisons in a forensic laboratory are likely to be limited to the structural class and functional group, ring or chain substitutions. As examples, isomers, homologues, salt forms, esters, and ethers may be considered. The scope of comparison conducted should be made clear in the report.

   2.6   Structural similarity between two chemical compounds is not an adequate basis to infer similar pharmacological activity.

   2.7   Likewise a lack of structural similarity is not an adequate basis to infer a lack of analogous pharmacological activity.

   2.8   If pharmacological activity is a requirement of particular legislation, the drug analyst should limit his inference and considerations to the citation of peer-reviewed literature, or relevant sworn statements in legal proceedings in absence of specific training and experience in pharmacology (or related fields).

■ 3 Structural Class Determinations

   3.1   In many jurisdictions, chemical compounds are controlled based upon structural class definitions (e.g., 3-(1-naphthoyl) indole with substitution at the nitrogen atom of the indole ring, whether or not further substituted on the indole ring to any extent, whether or not substituted on the naphthoyl ring to any extent).

   3.2   A structural class determination may be made by identifying a specific compound and assigning the compound as a member of a legal structural class.

   3.3   A structural class determination may also be made using an analytical scheme designed to identify sufficient features of a compound to assign it as a member of a legal structural class without making a conclusive identification of that compound (e.g., ortho, meta, or para position of a halogen on an aromatic ring).

   3.4   Any relevant limitations of the analytical scheme and resulting classification shall be clear in reporting.

■ 4 Reporting

   4.1   All conclusions and opinions expressed in written or oral form shall be based on sufficient supporting evidence, data, or information.

   4.2   The basis of any conclusion should be completely documented in the case notes and summarized in the written report and subject to the laboratory’s review policy.

   4.3   Conclusions and opinions reported shall be accurate, clear, objective, and meet the jurisdictional requirements. The report must also include any assumptions or limitations (e.g., potentially exculpatory information), to allow the court to make the final decision.

   4.4   The report should clearly indicate what elements of the legal requirements were evaluated and what elements were not evaluated.

   4.5   The scope of opinions and conclusions reported shall not go beyond the knowledge, training, and experience of the analyst.

A much more promising and robust effort that is, by the group’s mission statement apolitical, is being made by the members of the Advisory Committee for the Evaluation of Controlled Substance Analogs (ACECSA). According to their website, “The mission of the Advisory Committee for the Evaluation of Controlled Substance Analogs (ACECSA) is to recommend min­i­mum standards for the evaluation of non-controlled substances be­ing considered as analogs of controlled substances.”17 They have different subcommittees that are based upon a logical exploration of what should be examined when we try to better understand what is or is not an analogue and what is or is not “substantially similar.” The subcommittees include:

  • Structure (chemical backbone, functional groups, core struc­ture, 3-D structure, presence and location of double bonds and rotatable bonds)
  • Physicochemical Properties (chemical reactivity, ex vivo, in vivo, computation/empirical data, physical properties)
  • Computation Chemistry and Cheminformatics (Molecule similarity algorithms, QSAR, maximum common substructures, Tanimoto value)
  • Literature Support (published, unpublished, dissertations, research, meeting abstracts)
  • Synthetic Pathway (distinct routes separately patentability and publishability, impurity analysis)
  • Pharmacology/Toxicology (pharmacodynamic impact)

Modern Problems to Old Statutes: A Case Study of Ohio v. Silmi et al., U.S. v. Fedida, and Hammel v. U.S.

In 2012, Judge John J. Russo of the Cuyahoga County Common Pleas Court held a Daubert hearing on the issue of the definition of “what is an Analogue” and what is “substantially similar.” The case was The State of Ohio v. Mahir Silmi at al.18

In Silmi the defendants were charged with felony counts of Trafficking and Possession of Controlled Substance Analogs. The defendants filed a motion to exclude the laboratory reports and testimony from the state’s expert witness regarding the alleged controlled substance analogs based upon the premise that the testimony would be purely subjective opinions and therefore should not be admissible.

In December 2012, the court held a Daubert hearing to evaluate the admissibility of the state’s lab report as well as the proposed testimony regarding the testing. Two members of the Cuyahoga County Regional Forensic Science Laboratory (CCRFSL) drug chemistry section testified at the hearing: Paul Boggs, the supervisor of the lab’s chemistry drug section, and Gagandeep Sran, the chemist who analyzed the potential analogues in this case.

Boggs testified that when a substance arrives at the lab, the CCRFSL analyzes not only for controlled substances, but also to see if the substance has a chemical structure “substantially similar” to a controlled substance. If one chemist at the CCRFSL believes the substance to be “substantially similar,” then it would be staffed by lab personnel and looked at by the other six chemists of the CCRFSL. Only if all of them agree that the drug is “substantially similar” would the lab issue its scientific opinion that the standard of substantial similarity has been met and re­port the substance out as an illegal analog.

There were no specific guidelines set by the laboratory to perform this method when it first began. However, over time, two guidelines were developed. First, with regards to synthetic cannabinoids, the chemists determined that an alleged analog drug “had to be within the same chemical family” as the controlled substance. Second, the original backbone of the scheduled substance had to be unchanged for it to be an analogue. This second step was performed by a side-by-side comparison of the stick and letter chemical structures of the suspect drug and the scheduled drug. The testimony also disclosed there was “no statewide database, protocols, or any formal organization or mechanism of standardization regarding the testing of poten­tial analogs.”

The lab used this exact process to test the substances at issue in Simli. Ultimately, the lab concluded that the substances were analogs of JWH-018 (with an additional fluorine atom) and methcathinone (differences in the nitrogen rings).

The court relied upon Ohio Evidence Rule 70219 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),20 in deciding whether or not to allow the testing and opinion testimony in at trial.

The court ultimately concluded that the testing and proposed testimony were not sufficiently reliable enough to be allowed into evidence.

In reaching its decision, the court focused heavily on “evaluating the theory [of the testing], not the conclusion [drawn by the lab].”21 The court’s finding was that the testing implemented by CCRFSL was not objective or reliable, and that the term “substantially similar” was vague and undefined, leading to an “unguided subjective testing procedure.” The state’s own witnesses even admitted that the test is a subjective one, explaining: “It is based on something. It is just not based on something the way we would like it to be based on.” Id. This is clearly a problem for the testing procedure when Daubert and the rules of evidence require the theory of the test to be “objectively verifiable or derived from widely accepted knowledge, facts, or principles.”22

The bottom line for the court was that the term “substantially similar” was too vague for anyone to be able to properly implement it. Without better guidance the lab would be “left guessing if it is doing the right thing” and forced to “develop a test they hoped met this vague standard.” Id. This means there was no way to determine if the procedure actually produced an accurate result.

United States v. Fedida, 942 F.Supp.2d 1270 (M.D.Fla. 2013), and Hummel v. United States, Cause No. 8:12-mj-1457-T-37 (M.D.Fla., April 30, 2013),23 were both heard in the United States District Court in the Middle District of Florida–Tampa Division in December 2012. There was a consolidated hearing involving the same drug. The court examined whether UR-144 and XLR-11 are analogs of the specifically banned drug JWH-018. The court held that 2-D structures are appropriate models for comparison of these drugs, and that three-dimensional models add nothing to the discussion to change the planar examination of the structure. The court also held that the substances at issue in the case shared the same core structure and therefore met the definition of analogue. The court was referring to the indole core structure (which would include clearly ridiculous outcomes like making tryptamine found in turkey and Cialis analogues of JWH-018) and contained two substitutions at the 1 and 3 positions. The court held that the only meaningful difference with these drugs was the replacement of the cyclopropyl ring for the naphthalene ring structure. The court rejected the six defense experts and accepted the DEA chemist assertion that the substitution was of minor significance.


We hope that the reader now has a better understanding of how the controlled drug analogue statutes are interpreted and en­forced. The reasons for passing laws targeted at so-called drug ana­logues is understandable, but the reality of enforcing the laws proves to be very difficult. Like other areas of forensic science, it is imperative for the defense attorney to have a solid understanding of the science and how it is applied. With appropriate knowledge, the defense can be effective at fighting these cases and exposing the very subjective nature by which the testing is performed. Justice should be a function of empiricism and should not differ based upon geography or simply on a whim. These analogue acts certainly raise a question as to whether or not this is so.

Most importantly, when jurors and judges are shown the true and complete way that analysis is performed and how laboratory analysts reach conclusions, confidence in the ultimate conclusion is undermined. The scientific truth must be told, and it is up to the defense lawyer to tell it. Rest assured, no one else will.


1. Alexander Shulgin (Author) and Ann Shulgin, PiHKAL: A Chemical Love Story (1991).

2. Ohio v. Silmi, Cause No. CR 561754, Judge John J. Russo of the Cuyahoga County Common Pleas Court.

3. Synthetic Drug Threats, National Conference of State Legislatures (2012),

4. Synthetic Cannabinoids (a.k.a. “K2,” “Spice”) Enactments, National Conference of State Legislatures (2012),

5. Id.

6. Id.

7. Id.

8. Id.

9. CO SB 134 (2011) and Ok SB 919.

10. See generally, Bertolini A., Ferrari A., Ottani A., Guerzoni S., Tacchi R., Leone S., “Paracetamol: new vistas of an old drug,” CNS Drug Rev. 2006 Fall–Winter 12(3–4): 250–75; Anderson B. J. “Paracetamol (Acetaminophen): mechanisms of action,” Paediatr Anaesth. 2008 Oct 18(10): 915–21; Prescott L. F., “Paracetamol: past, present, and future,” Am J Ther. 2000 Mar 7(2): 143–7; Graham G. G., Scott K. F., “Mechanism of action of paracetamol” Am J Ther. 2005 Jan–Feb 12(1): 46–55; and Högestätt E. D., Jönsson B. A., Ermund A., Andersson D. A., Björk H., Alexander J. P., Cravatt B. F., Basbaum A. I., Zygmunt P. M., “Conversion of acetaminophen to the bioactive N-acylphenolamine AM404 via fatty acid amide hydrolase-dependent arachidonic acid conjugation in the nervous system,” J Biol Chem. 2005 Sep 9 280(36): 31405-12.

11. Synthetic Drug Threats, supra, n. 3.

12. Id.

13. Substituted Cathinones (a.k.a. “Bath Salts”) Enactments, National Conference of State Legislatures (2012),

14. Id.

15. Id.

16. SWGDRUG Recommendations on Analogues and Structural Class Determinations,

17. “Mission,” (last accessed April 20, 2013).

18. The State of Ohio v. Mahir Silmi et al., CR-12-561754-A,

19. Ohio Evid. R. 702(C) requires that when testimony is based upon scientific information and is reporting the result of a procedure, test, or experiment, that testimony must meet certain reliability requirements. First, the theory upon which it is based is “objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles.” Second, the design of the procedure, test, or experiment must reliably implement the theory. Last, the procedure, test, or experiment must have been conducted in a way that it will “yield an ac­curate result.”

20. “To determine reliability, the Daubert court stated that a court must assess whether the reasoning or methodology underlying the testimony is scientifically valid []. In evaluating the reliability of scientific evidence, several factors are to be considered: (l) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance[]. Although these factors may aid in determining reliability, the inquiry is flexible[]. The focus is ‘solely on principles and methodology, not on the conclusions that they generate[].’” Ohio v. Mahir Silmi, CR-12-561754-A, supra at n.18 (citations omitted).

21. Id.

22. The court also had concerns with the fact that the testing procedure had never been formally peer-reviewed and no error rate had been determined. The court noted that the test was developed merely through practice in one laboratory with no formal studies or established methodology upon which to rely.

23. In re Seizure of funds on deposit at Ameriprise Group in accounts 072372469001, 16791187001, and 167911890001, at Pershing Investment in account 3FB300824, at Morgan Keegan/Raymond James in account 32772063, and at Capital One Bank in account 8077989170 (Timothy Hummel v. US) (last accessed May 19, 2013).

Criminogenic Risk Assessments: What Are They and What Do They Mean for Your Client?

Scholars have discussed and debated for centuries what factors tend to incite criminal behavior. Over time, many scholars developed theories implicating supernatural influence, genetics, and/or environment as the dominant factors that produced criminality.1 For example, an early theory known as the demonological approach or demonological theory of crime “derives its basis from religious authority and viewed crime as a sin and the criminal as a sinner . . . [seeing] crime and criminality as the product of supernatural or ‘otherworldly’ forces . . . [such as] temptation and demonic possession.”2 Far from accepting external forces as the sole motivating factors, scholars also looked internally for the answer, touting physiology, both mental and physical, as creating an innate predisposition to crime.3

What Are Criminogenic Risk Factors?

Now, we recognize both internal and external factors as contributors to criminal behavior and recidivism. These factors, known as risk factors, are split into two categories: dynamic and static. Aptly named, static factors, like criminal history, family criminality, age at first admission to a correctional facility, number of prior incarcerations, and the commitment offense are “related to recidivism but cannot be altered through the delivery of services.”4 Dynamic risk factors, on the other hand, are changeable factors that may be in flux throughout one’s lifetime—such as the company he or she keeps, his or her attitudes and core values, substance use, and employment status.5

These dynamic risk factors, also commonly known as criminogenic risk factors or criminogenic needs, are “directly related to crime production.”6 The term criminogenic takes into account that “[o]ffenders have many needs deserving of treatment but not all of these needs are associated with their criminal behaviour.”7 To use an analogy created by scholars Edward Latessa and Christopher Lowenkamp, it is widely known that there are a variety of risk factors associated with having a heart attack.8 One’s age, sex, family history of heart problems, weight, amount of exercise, blood pressure, stress, cholesterol level, and whether one smokes can all contribute to one’s risk of having a heart attack.9 In order to understand the level of risk of having a heart attack, one would look at the totality of all of these static and dynamic factors to determine the likelihood of having a heart attack.10 However, to affect and lower the risk of having a heart attack, one would target the dynamic factors such as the health and fitness related issues, stress levels, and whether one smokes.11

Similarly, in the criminal context, criminogenic risk factors are those that can and should be targeted through the delivery of services. Various scholars and other sources have compiled extensive lists of criminogenic risk factors, many of which overlap. For example, the Texas Administrative Code lists “antisocial peers; antisocial beliefs, values, and attitudes; substance abuse, dependency, or addiction; anger or hostility; poor self-management skills; inadequate social skills; poor attitude toward work or school; and poor family dynamics.”12 Of the overlapping factors, those repeatedly asserted to be the most closely related to recidivism are an antisocial personality pattern (marked by im­pul­siveness, aggression, stimulation seeking); procriminal attitudes/antisocial cognition (such as negative attitudes towards the law, values, thinking styles, and general attitudes supportive of crime); and social supports for crime (criminal friends, isolation from prosocial others).13 Other criminogenic risk factors also related to recidivism include substance abuse, employment instability and/or dissatisfaction, family problems, and a lack of involvement in prosocial leisure activities.14

Why Are Criminogenic Needs Important?

Criminogenic needs play a huge role in a concept known as the Risk-Needs-Responsivity (RNR) model, which provides a means to assess and treat offenders in order to reduce recidivism.15 The RNR model is made of three core principles: the risk principle, the needs principle, and the responsivity principle.

The risk principle maintains that “supervision and treatment levels should match the offender’s level of risk,” meaning that “low-risk offenders should receive less supervision and services, and higher-risk offenders should receive more intensive supervision and services.”16 Although this may seem logical, often the tendency is to do the opposite—those involved in sentencing tend to require low-risk offenders to submit to an array of intervention services in an attempt to prevent further involvement with the system.17 However, some studies show that focusing excessive resources on low-risk offenders can actually lead to higher recidivism rates.18

The needs principle contends that the effective use of intervention services centers on targeting an offender’s criminogenic needs.19 This principle acknowledges that although some static risk factors, such as criminal history, play a role in the likelihood of recidivism, they cannot be altered; therefore, those involved in sentencing decisions should target an offender’s criminogenic needs because they can potentially be altered through the delivery of services.20

The responsivity principle holds that the key to reducing recidivism is “targeting the offender’s criminogenic needs . . . with the social learning and cognitive-behavioral programs most likely to effect change in the offender’s behavior given specific offender characteristics.”21 In other words, offenders must receive services that target their criminogenic needs using strategies that have not only been shown to be the most effective regardless of the type of offender, such as prosocial modeling (learning by example), but also take into account the “strengths, learning style, personality, motivation, and bio-social (e.g., gender, race) characteristics of the individual.”22

When implemented properly, the risk-needs-assessment model can significantly reduce recidivism, and in order to implement this model, the first step is to assess an offender’s criminogenic needs.23

How Are Criminogenic Needs Assessed?

The assessment of criminogenic risks occurs via the use of risk and needs assessment (RNA) instruments.24 An RNA instrument “is essentially a uniform report card that measures offenders’ criminal risk factors and specific needs that, if addressed, will reduce the likelihood of future criminal activity.”25 These instruments generally take the form of questionnaires that “guide face-to-face interviews with offenders, probing behaviors and attitudes that research shows are related to criminal reoffending.”26 Furthermore, these instruments tend to include questions regarding both static and dynamic risk factors. For example, the TDCJ-CJAD Risk/Needs Assessment tool, used to assess offender’s general risk of recidivism, asks the evaluator to assess the offender’s attitude on a scale of 0, 3, or 5—0 being motivated to change/receptive to assistance and 5 being rationalizes behavior, negative, not motivated to change.27

RNA instruments calculate “an overall score that classifies an individual’s risk of reoffending [and subsequently] inform decisions about the best course of action.”28 They can be and are being used at various points by various actors throughout the sentencing and corrections process.29 For example, courts can use these instruments to make pretrial bail and release decisions as well as sentencing and revocation decisions such as setting conditions of supervision.30 Similarly, probation and parole agen­cies use RNA instruments to “decide levels of supervision, determine the need for specialized treatment programs, develop an offender’s supervision plan[,] and inform decisions about sanctions and revocations.”31 Additionally, these instruments can serve various functions within prison and jail systems as well as parole boards.32

There are over 60 different recidivism-related risk assessment instruments that are currently in use in the U.S., some of which have specific focuses such as the risk of sex offender recidivism, violating parole, or of juvenile recidivism.33 Of these RNA instruments, 12 of them are widely used and fairly well known. For example, Travis County Adult Probation and Travis County Pretrial Services both use versions of the Ohio Risk Assessment System (ORAS), which is one of the 12 most widely used RNA instruments. Additionally, some states choose to create their own RNA instruments, some of which are loosely based on existing instruments. For example, the previously mentioned TDCJ-CJAD Risk/Needs Assessment tool, used by certain Texas agencies to assess recidivism risk, includes questions centering on factors widely accepted to be linked with recidivism.

During the last two decades, research has indicated that the use of RNA instruments “can have a profound effect on reducing offender recidivism.”34 In fact, studies show conditions “of probation not properly targeted at the offender’s most critical dynamic risk factors are counter-productive . . . [and] require both the offender and probation officer to engage in activities that are unlikely to reduce risk and distract both from focusing on the critical risk factors that do affect the likelihood of recidivism.”35

So What Does This Have to Do With You and Your Client?

RNA instruments are currently being used in various states at various levels of the criminal justice process. The kind of RNA instrument used, the context in which it is being used, and your client’s score on the assessment can have a variety of implications.

First, each RNA instrument has its flaws. For example, many of the assessment tools “were originally developed for men and then applied to women with little regard for their validity or appropriateness,” ultimately leading to over-classification of women offenders and sometimes a higher monitoring level for women than their behavior warrants.36 Moreover, because many of the instruments were developed using small, homogenous sample sets, when applied to populations different form the original sample, the RNA instrument can lack validity.37 For example, “assessing risk on a population that is largely Native American and rural with a tool that was developed on a population of urban African Americans will not produce optimal results.”38 So, doing a little research about the particular RNA instrument being used to assess your client can go a long way. By enabling yourself to point out the flaws in the instrument as they apply to your client could discourage decision makers from leaning too heavily on the instrument should its use be detrimental to your client.

Additionally, as previously mentioned, devoting too many intervention resources to low-risk offenders can potentially increase the likelihood of recidivism.39 Should your client’s assessment results categorize him or her as a low-risk offender, knowing this piece of information could help to garner a more lenient sentence with fewer strings attached. Conversely, should an assessment indicate your client may be a high-risk offender, encouraging individually tailored intervention practices at sentencing could have a profound effect on your client’s future.

Finally, simply being aware of the existence of RNA instruments puts you and your client at an advantage. Inquiring about the use of RNA instruments throughout the judicial process allows you to create a more holistic pictures of the factors considered in the assessment of your client’s culpability (or lack thereof) and potential sentencing decisions.

The use of RNA instruments varies between jurisdictions, and it is likely that their use will continue to increase in the upcoming years as judicial decision makers continue to embrace the need for individualized sentencing. Educating yourself about these assessments can help you more zealously advocate for your client—whether it be in defense of their charge or in encouraging appropriate sentencing.


1. Heidi Rimke, The Pathological Approach to Crime: Individually Based Theories, Criminology: Critical Canadian Perspectives 78, 79 (2011).

2. Id. at 80.

3. Aidan Sammons, Physiological theories of offending.

4. Pamela M. Casey, Roger K. Warren & Jennifer K. Elek, Using Offender Risk and Needs Assessment Information at Sentencing: Guidance for Courts from a National Working Group, 4 (2011),
.ashx. See also Edward J. Latessa & Christopher Lowenkamp, What Are Criminogenic Needs and Why Are They Important?, For the Record 4th Quarter 2005, 15 (2005) See also Revised Parole Guidelines, Texas Board of Pardons and Paroles (October 14, 2013, 1:30 PM),

5. Latessa & Lowenkamp, supra note 4.

6. 37 Tex. Admin. Code § 163.40 (a)(11) (2013).

7. D. A. Andrews & James Bonta, Risk-Need-Responsivity Model for Offender Assessment and Rehabilitation (2007) at 5,

8. Latessa & Lowenkamp, supra note 4.

9. Id.

10. Id.

11. Id.

12. 37 Tex. Admin. Code § 163.40 (a)(11) (2013).

13. Casey et al., supra note 4 at 5; Jillian K. Peterson & Jennifer L. Skeem, Major Risk Factors for Recidivism Among Offenders with Mental Illness, 6 (2011.

14. Id.

15. Casey et al., supra note 4 at 4; see also Andrews and Bonta, supra note 7.

16. Casey et al., supra note 4 at 5.

17. Id.

18. Casey et al., supra note 4 at 5; see also Andrews and Bonta, supra note 7 at 10 (asserting that while some treatment to low-risk offenders can cause a very mild reduction in recidivism, providing intensive services to low-risk offenders may actually increase recidivism unlike their high-risk counterparts).

19. Casey et al., supra note 4 at 4.

20. Id. at 4–5.

21. Id .at 6.

22. Andrews & Bonta, supra note 7 at 1.

23. Id.

24. Casey et al., supra note 4 at 1.

25. The Pew Center on the States, Risk-Needs Assessment 101: Science Reveals New Tools to Manage Offenders, 2 (2011),

26. Id.


28. The Pew Center on the States, supra note 25 at 2.

29. Id.

30. Id.

31. Id.

32. Id.

33. Sarah Desmerais, Understanding Risk Assessment and Its Applications (February 28, 2013),

34. Casey et al., supra note 4 at 1.

35. Id .at 17.

36. Patricia Van Voorhis, et al., U.S. Department of Justice, Achieving Accurate Pictures of Risk and Identifying Gender Responsive Needs: Two New Assessments for Women Offenders, 2 (2008),

37. Scott Van Benschoten, Risk/Needs Assessment: Is This the Best We Can Do? 72 Federal Probation 38, 41 (2008).

38. Id. at 4–5.

39. Andrews and Bonta, supra note 7 at 10 (asserting that while some treatment to low-risk offenders can cause a very mild reduction in recidivism, providing intensive services to low-risk offenders may actually increase recidivism unlike their high-risk counterparts).

The Defense Strikes Back

There are lots of politicians who claim to be super patriotic. They are generally neither super nor patriotic. These self-proclaimed super patriotic politicians often claim a strong allegiance to our founding fathers. In truth, a good number of these politicians take positions that are contrary to those of our founding fathers. Loudly boasting that one is a patriot while advocating positions that are contrary to those of our founders is disingenuous and sometimes downright delusional.

There is only one group that consistently maintains its fidelity to the principles enunciated by our founding fathers; that group is the defense bar. Only the defense bar daily stands and fights to preserve the Bill of Rights. We do not brag on our fidelity to the Constitution—we live it.

For at least three decades, for as long as I have practiced, our society has cast us as the bad guys. We are often viewed at best as maybe one moral notch above the guiltiest of our clients.

As defense lawyers, we are often treated with disdain. Local news and popular television have largely contributed to our vilification. In defending those charged with a crime, we are often treated as if we support the crime. Such is not the case. It is a libel and it is not true. In supporting the Constitution and defending the accused, we do not thereby become supporters of the alleged criminal conduct.

The next time someone mocks you for being a defense lawyer, take them on cross. Utilize the “Doctor Analogy,” which goes as follows:

  • Doctors take an oath, right?
  • If a doctor is in the emergency room and they bring in a man who is riddled with bullets, pursuant to the doctor’s oath, would you expect the doctor to try his best to save the man?
  • If the man riddled with bullets was also accused of shooting a cop or molesting a child, would you still expect the doctor to use his ability, professional skills, and experience to save the man?
  • If the doctor saved the man accused of shooting the cop or molesting the child, would you think less of the doctor for having done his job, or would you appreciate that the doctor had honorably kept his oath?

As defense lawyers, we take an oath, and our oath is no less serious to us than any doctor’s oath is to him. In many ways, we have the same job as doctors. Like doctors, it is our duty to use our professional skills to try to save those who come to us. Arguably, the only difference is that doctors work in the emergency room, and we work in the courtroom.

It is time that we defense lawyers stop accepting this mistreatment. Our colleagues in the defense bar should be lionized, not demonized.

The words in the Declaration were a start in the long continuing fight for liberty in this country. The words are a rejection of tyranny and a bonding of those willing to give all to fight tyranny.

The defense bar daily continues the fight for liberty against those who would take it. The tyrants of today are not kings, per se. The tyrants of today are abusive judges & prosecutors who think themselves kings & queens.

So when we read the Declaration aloud in front of courthouses, it is a powerful symbolic statement. It is our public embracing of our role in the long continuum in the fight for liberty in this country. It is our announcement that we are united in our fight against abusive judges and prosecutors.

This year, TCDLA members were lead by a tremendous group of 74 volunteer local defense lawyers. In each community, these defense lawyers stepped forward to organize local readings.

In an unprecedented event, TCDLA lawyers lead readings in 74 Texas cities and towns, 4 states, and 2 foreign countries. In an historic event, TCDLA defense lawyers stood shoulder to shoulder in front of courthouses in one out of every four counties in Texas. Together, we held readings from El Paso to Orange and from Pampa to Harlingen.

Together, we made a powerful statement to our adversaries that we, the defense bar, are united like never before.

The long days of the defense bar remaining quiet are over! We are proud of our work! We are the heirs of our founding fathers! As such, we lay claim to the Declaration of Independence. We are the proud guardians of the principles enunciated therein.

From this point forward, TCDLA will annually celebrate July 4th with readings of the Declaration. We will raise our voices across Texas and annually reaffirm our commitment in our fight for liberty and against tyranny.

As the statewide organizer, I thank and praise all local organizers for your leadership, time, and dedication. All local leaders and participants deserve our praise and thanks—for every reading makes us all stronger. The local organizers and the communities where they lead readings are all listed below.

If you have not sent me your group photo please do so. If you are interested in joining us next year by organizing a reading in your hometown, please let me know. Next year we will have 100 readings across Texas!

God Bless Texas!
Robb Fickman
TCDLA State coordinator

The 2014 TCDLA Declaration Readings

Abilene—Joe Pelton
Alice—Michael Guerra
Alpine—Mimi Smith
Amarillo—Jeff Blackburn & Ryan Brown
Angleton—Mark Jones
Anahuac—Donlee Smith
Athens—Dana Mayhall
Austin—Bradley Hargis & Joseph Martinez
Bandera—John & Cindy Payne
Bay City—Scott Markowitz
Beaumont—Dustin Galmor
Big Bend—Jim Darnell
Boerne—Charles Weatherbee
Bryan—Shane Phelps
Burnet—Tony Odiorne & Michelle Moore
Coleman—Gary Smart
Comanche—John Stickels
Conroe—Josh Zeintek
Corpus Christi—Michelle Ochoa & Constance Luedicke
Corsicana—Kerri Donica & Steve Keathley
Dallas—John Gioffredi
Del Rio—Gail Schroeter
Denton—Sarah Roland
Eastland—Landon Thompson
Edinburg—Joseph Connors
El Paso—Jim Darnell
Fredericksburg —Tammy Keener & Cheryl Sione
Fort Davis—Mimi Smith
Fort Worth—Shawn Paschall
Galveston—Julie Hatcher
Georgetown—John Armstrong & Shawn Dick
Graham—Franz Von Hoffman
Greenville—Katherine Ferguson
Harlingen—Omar Rosales
Hempstead—James Rivera
Hillsboro—Terence “Tiger” Russell
Houston—Robb Fickman & Carmen Roe
Huntsville—David O’Neil
Kaufman—Michael Ray Harris
Kerrville—Clay Steadman
Kingsville—Jaime Carrillo
La Grange—Phil Baker
Laredo—Roberto Balli, Oscar Peña & Ray Rodriguez
Livingston—Todd Dillon
Lockhart—David Shulman & Kevin Fine
Longview—David Moore
Lubbock—Rusty Gunter
Marfa—Mimi Smith
Marshall—Kimberley Miller
McKinney—Jon O’Toole & Karen Chesley
Midland—Woody Leverett
Mount Vernon—Bart Craytor
Nacogdoches—Tim James
New Boston—Bart Craytor
New Braunfels—Megan Roper & Jamie Balagia
Odessa—Lane Haygood
Orange—Cindy Henley
Pampa—Edgar Castillo
Plainview—Troy Bollinger
Richmond—Dawn Zell Wright
Rockwall—Justin Hall
San Angelo—Tip Hargrove & Fred Brigman
San Antonio—Adam Kobs & John Convery
San Marcos—Scot Courtney
Seguin—George Taylor
Sinton—Joel Thomas
Sweetwater—John Young
Tyler—Bobby Mims
Uvalde—Emmett Harris
Vanderpool—David Black
Waco—Josh Teton & Tom Ragland
Waxahachie—Cindy Ermatinger
Wharton—Mark Racer
Wichita Falls—Rick Bunch

Other Readings By TCDLA Members

Blank Point Beach, Sea Ranch—Richard Anderson
New Orleans, Louisiana—Sharon Curtis
Mississippi—Nicole Deborde
Yellowstone, Wyoming—Tyler Flood

Readings Outside the States

Paris, France—Mark Bennett
Cancun, Mexico—Danny Easterling

Executive Director’s Perspective: In Toto – By Joseph A. Martinez


TCDLA received notice from the Texas Court of Criminal Appeals of the following grant awards for fiscal year 2015 (September 1, 2014, through August 31, 2015).

Criminal Defense Lawyers Project$1,003,887
Public Defender$33,059

TCDLA will maximize these grants and conduct over 50 seminars in the coming year. Seminars will be held in 24 different cities around Texas. Working together with our public defender offices and our local criminal defense bars, we project we will train more than 5,500 lawyers, including members of their defense teams and office staff, in fiscal year 2015.

We thank the Texas Court of Criminal Appeals for having the trust and confidence in TCDLA to provide quality continuing legal education to criminal defense lawyers across Texas. We thank in particular Judge Hervey, who is oversight for the entire Judicial and Court Personnel Training Fund.

Special thanks to Judge Herb Evans (Austin) and Judge David Wahlberg (Austin), course directors for our Crimes of Violence seminar held in Austin in August. Thanks to their efforts we had 44 attendees.

Special thanks to Danny Easterling (Houston) and Grant Scheiner (Houston), course directors for the 12th Annual Top Gun DWI seminar held in Houston in August. Thanks to their efforts we had 223 attendees.

Special thanks to Kerri Anderson-Donica (Corsicana), Audrey Moorehead (Dallas), and George Milner III (Dallas), our course directors for the Cross-Examination seminar held in Dallas in September. Thanks to their efforts we had 132 attendees.

Special thanks to Harold Danford (Kerrville), Clay Steadman (Kerrville), and Kelly Pace (Tyler), our course directors for the Training Your Defense Team to Win seminar held in Fredericksburg. Thanks to their efforts we had over 50 attendees.

This was the first CCA-funded CDLP seminar focused on training the defense team, which includes contract private investigators, mitigation investigators, interns and externs, legal assistants, paralegals, social workers, or any person who might reasonably be appointed by a court to assist defense counsel (other than expert witnesses). Please bring your staff. This training will be held in the following locations:

October 10, 2014Abilene
November 14, 2014Galveston
November 18, 2014McAllen
January 16, 2015Austin
April 17, 2015Waco
April 24, 2015Longview
July 9–10, 2015South Padre Island

Special thanks to Jamie Gandara (El Paso), Dan Marquez (El Paso), Bill Cox (El Paso), and Rick Wardroup (Lubbock), our course directors for the Forensic Evidence & Expert Witnesses seminar held in El Paso in September. Thanks to their efforts we had 66 attendees.

Special thanks to Edwin Colfax (Austin), our course director for the Comal County Appointed Attorney Training: Effective Representation for Indigent Defendants, held in New Braunfels in September. Thanks to Edwin and the speakers efforts we had 30 attendees.

John Ackerman and Tony Vitz are the course directors for one of the most important training seminars that TCLDA conducts, the Roundtop IV Advanced Skills Training—Cross-Examination seminar. This intensive five-day course is designed to improve counsel’s communication with members of the jury. It involves methods and techniques that John Ackerman and others have developed over the last 35 years. The training involves a component of self-exploration that experience shows improves and enhances the communication process. Thousands have benefited from this training over the years. Please go to our website or call the home office for more information.

Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas), , or Laurie Key (Lubbock), , or Carmen Roe (Houston), , co-chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

**In addition, Capital Assistance Attorney Rick Wardroup has participated in the following training hours:

100 attendees at Capital Trial College, 20 hours = 2,000 hrs;
60 attendees at Capital Voir Dire, 20 hours = 1,200 hrs;
120 attendees at CCP Ch. 38, 7 hours = 840 hrs;
80 attendees at MacCarthy’s Cross Exam Program, 15 hours = 1,200 hrs.

His direct teaching was two hours at the Capital Trial College, one hour at Capital Voir Dire, one half-hour at the Chapter 38 program, and one hour at the Cross Exam program. Rick was a course director for each of the above other than the Capital Voir Dire program.

Ethics and the Law: Leaving with a Clean Slate


Toby Boyer, Houston lawyer, told me he wanted to leave this world with a clean slate. Toby knew the end was near, and we tried to help him get his affairs in order. He continued going to court to take care of his clients almost to the day he left this world. A case I was helping him with in another county could not be resolved easily, so Toby said he wanted to give back the fee. I tried to get Toby to keep part of the fee and he said, “No, I want to leave this world with a clean slate.” Not many would have done that, but the client got all his money back.

When we’re leaving this world, announced or unannounced, there are some ethical issues involved. What happens to the client? What happens to the fees? Another lawyer friend died unannounced, and it was amazing how many of the clients said they had paid the fee in full. The lawyer’s partner called the hotline regarding the dilemma. He too was an honorable man, and he stayed on all the cases and received no money since the clients had “paid the full fee.”

When shutting down an office, please refer to the Texas Rules of Disciplinary Procedure. Rule 13.01, Notice of Attorney’s Cessation of Practice, states:

When an attorney licensed to practice law in Texas dies, resigns, becomes inactive, is disbarred, or is suspended, leaving an active client matter for which no other attorney licensed to practice in Texas, with the consent of the client, has agreed to assume re­sponsibility, written notice of such cessation of practice shall be mailed to those clients, opposing counsel, courts, agencies with which the attorney has matters pending, mal­practice insurers, and any other person or entity having reason to be informed of the cessation of practice. If the attorney has died, the notice may be given by the personal representative of the estate of the attorney or by any person having lawful custody of the files and records of the attorney, including those persons who have been employed by the deceased attorney. In all other cases, notice shall be given by the attorney, a person authorized by the attorney, a person having lawful custody of the files of the attorney, or by Chief Disciplinary Counsel. If the client has consented to the assumption of responsibility for the matter by another attorney licensed to prac­tice law in Texas, then the above notification requirements are not necessary and no further action is required.

Charles Thompson, Houston lawyer, has contributed the following, proposing the adoption of a new rule in Texas to aid us all when the day or night comes that we call it quits, announced or unannounced:

Texas Should Adopt ABA Model Ethics Rule 1.17

Many solo practitioners are stunned to learn that you (or your estate) cannot ethically sell your law practice in the State of Texas. Any other profession in the Texas can obtain compensation for the goodwill that has built up over the years of practice. Doctors can, dentists can, accountants can, and lawn-service firms can. All but four states allow for the sale of a law practice. Alabama, Louisiana, and Kansas are the other states that don’t allow sales.

This prohibition becomes a particular hardship when a solo practitioner suddenly dies. There are many ways to skirt the prohibition on sales if both lawyers are living. The “seller” and the “purchaser” can form a partnership where both attorneys are “responsible attorneys” for all the clients’ files, the “buyer” makes a contribution to the partnership, then the seller retires and receives compensation pursuant to the retirement. DR 1.04(h) states that payments are not prohibited to a former partner or associate pursuant to a separation or retirement agreement. But if an estate is involved, the issue becomes quite tricky.

I know this from personal experience. My father was a general solo here in Houston. I had practiced for about a year in the Dallas area because I wanted to “make it on my own.” I was an associate in an insurance defense firm. I was objecting to interrogatories when I got the call that my father had died of heart attack. I suddenly had to handle and eventually close a going law practice while grieving. I do not feel I was able to realize the maximum value from my father’s practice.

DR 1.05(a) makes it impossible to disclose the information needed to properly value a law firm. A lawyer is also prohibited from soliciting the clients of the deceased attorney. DR 7.05.

ABA Model Rule 1.17 would fix this oversight. This rule permits the sale of a law practice, including its goodwill. The rule is as follows:


A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied:

(a)   The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, [in the geographic area] [in the jurisdiction] (a jurisdiction may elect either version) in which the practice has been conducted;

(b)   The entire practice, or the entire area of practice, is sold to one or more lawyers or law firm;

(c)   The seller gives written notice to each of the seller’s clients regarding:

(1)  the proposed sale;
(2)  the client’s right to retain other counsel or to take possession of the file; and
(3)  the fact that the client’s consent to the transfer of the client’s files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice.
 If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file.

(d)   The fees charged clients shall not be increased by reason of the sale.

It is time that the widows and widowers be compensated for all your hard work upon your death. This rule (or a variation) needs to be adopted by the State Bar.

Remember none of us get out of here alive. None of the lawyers working with me are afraid of dying; we just don’t want to be there when it happens.

Off the Back: Who Should Polygraph Our Clients? – By Stephen Gustitis


For young criminal defense attorneys learning the ropes, “Who should polygraph my client?” is a familiar question. There are limited exceptions to this rule but, generally, defense attorneys should not permit their client to submit to a polygraph examination administered by the police. The best reason is results of the police administered polygraph, including pre- and post-polygraph interviews with the client, are not protected by the attorney/client privilege. Only when the polygrapher is hired by the lawyer and made part of the defense team are the results privileged. See Tex R. Evid 503. Just like any other expert hired by the defense, the polygrapher’s file is confidential and cannot be revealed to anyone without the express consent of the client. That’s the principal rationale for refusing a polygraph administered by the cops. But there are also several strategic reasons, as well.

Rarely does a detective ask the complainant to submit to a polygraph examination. Rather, the citizen accused is asked (sometimes bullied) into submitting. The test results depend upon the questions asked, the skill of the polygraph operator, the polygrapher’s integrity, and the guilt/innocence of the suspect. Significantly, all these variables are out of your control. Now consider the potential results of a police-administered polygraph. Three possible outcomes exist.

First, the suspect may pass the test. Obviously a good outcome. Since many criminal investigations are “she said… he said” type cases, police officers struggle to ascertain the “truth” to assist them in making recommendations to prosecutors deciding which cases to charge and which cases to refuse. Moreover, prosecutors are loath to let guilty people go free. They endeavor to avoid charging mistakes. Consequently, they may look for an objective measure to help them decide whether to pull the trigger on an arrest warrant or criminal indictment. This is where the passed polygraph examination may give them comfort and an easy out. With that said, even a passed polygraph never assured a person would not be arrested, be charged with, or confess to a crime.

Second, the suspect may “fail” the police administered test. Oops! I said “fail” since a polygrapher may inform suspects they failed the examination (even though they passed) to induce a confession. Yes, the police can lie to encourage confessions. See Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997)(deception does not necessarily make a confession involuntary). The police now have profound interrogation leverage. Now the detective believes the suspect is guilty. Now prosecutors believe the suspect is guilty and may sleep better knowing they indicted a person who failed a polygraph. Beyond this, countless admissible confessions have followed a failed polygraph test.

Lastly, a polygraph may be inconclusive. In my experience an inconclusive result can be just as bad as failing. The inconclusive test result gives the police no objective assurances of the suspect’s truthfulness and can also be used to cajole a confession.

Now consider the benefits of a polygraph administered by your hired expert. It’s preferable to employ a trusted polygrapher. It may take legwork, but hiring a respected operator will eliminate the credibility issue with police and prosecutor when your client passes the test. Furthermore, everything said between the polygrapher and your client is confidential. The lawyer can spend time with the polygrapher and tailor the questions related to any possible defenses. You also have control over the polygrapher’s interaction with your client. When your client passes the test, you decide (with the client’s permission) when the positive results are revealed to the authorities. If the police want a confirmation polygraph from their own expert, you may feel better, although reluctant, about allowing the client to submit to a second examination. If the results of the test are inconclusive, you have the option of repeating the test without fear the polygrapher will attempt to extract a confession from your client. Finally, if the client fails the polygraph examination, you simply bury the test results within the confines of the attorney/client privilege. You also have the option of repeating the test, anticipating better results.

So the question of who should polygraph our clients, then, is a no-brainer. Our hired expert does it. As a result, we control the process and the aftermath. When things go bad… well, it’s like it never even happened. Conversely, if things go favorably, we can announce it from the rooftops and trust the prosecutor will take the easy out. Good luck.

Note: In the Expert List section of our Members Only portion of our website, Michael Gougler and Gary J. Hale De Los Santos are the listed polygraph examiners.

“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.

Federal Corner: A Lawyer Should Read the Entire Opinion Before Beginning to Celebrate – By F. R. Buck Files Jr.


In the Democratic primary election of 1970, an East Texas county judge was unsuccessful in his bid for re-election—and, after hearing the results, he went to bed. A lawyer, who had represented many defendants in that judge’s court, was overjoyed when he learned of the judge’s defeat and began to celebrate. After consuming far too much of whatever it was that he was drinking, he called the judge—who was asleep—and said, “YOU AIN’T JUDGE NO MORE!” The judge responded, “I am until January 1, 1971.” At that moment, the lawyer learned of the heartbreak of premature celebration.

I was reminded of that incident when I read the opinion of the United States Court of Appeals for the Third Circuit in United States v. Bagdy, ___F.3d___, 2014 WL 4100586 (3rd Cir. 2014) [Panel of the Circuit: Smith, Vanaskie (authored the opinion) and Shwartz], in which the Court held that Bagdy did not violate a specific condition of his supervised release in relation to a restitution hearing, vacated the order revoking his supervised release and remanded the case to the District Court for further proceedings.

Judge Vanaskie’s opinion contains the following:

[An Overview of the Case]

At issue on this appeal is whether supervised release may be revoked and an offender sent to prison based upon a District Court’s finding that the offender acted in bad faith in relation to his obligation to make restitution to the victims of his criminal conduct. In this case, although Appellant David Bagdy complied with the letter of the District Court’s restitution order by ultimately paying more than one-third of a $435,000 inheritance he had received while on supervised release, he engaged in a lavish spending spree that dissipated the balance of the inheritance while delaying the proceedings intended to modify the restitution order. Like the District Court, we find Bagdy’s conduct reprehensible. We conclude, however, that the District Court could not revoke supervised release for such bad faith conduct because Bagdy did not violate a specific condition of supervised release in relation to the restitution obligation. Accordingly, we will vacate the judgment and remand for further proceedings. [Note: At this point in the opinion, Bagdy and his lawyer probably thought they had won—but wait.]

[Bagdy’s Plea and Sentence]

Bagdy pled guilty to a charge of wire fraud arising from a scheme to embezzle hundreds of thousands of dollars from a small family-owned lumber business for which he served as a consultant. The District Court sentenced him to 36 months’ imprisonment and three years of supervised release. The District Court also ordered that Bagdy make restitution in the amount of $566,115.57. As a condition of supervised release, the District Court ordered that Bagdy “make periodic payments of at least ten percent of his gross monthly income toward any outstanding balance of restitution. Payments shall be made in such amounts and at such times as directed by his probation officer and approved by the Court.” Furthermore, Bagdy was required to “provide his probation officer with access to any requested financial information” to enable the probation office to determine an appropriate payment schedule.

[Bagdy Begins Supervised Release, Inherits Money, and Pays His Ten Percent]

Bagdy completed his prison term and commenced supervised release in July of 2011. In March of 2012, Bagdy reported to his probation officer that he had received $409,799.13 in inheritance from his aunt. Bagdy consulted with his probation officer regarding his restitution obligation in regards to the inheritance and paid $41,000 of the total toward restitution. Bagdy maintains that this contribution reflected the ten percent of his gross monthly income that he believed the District Court’s judgment obligated him to put toward restitution.

[The Government Seeks an Order of Restitution and Bagdy Pays $60,000]

On April 9, 2012, the government filed a motion to modify the order of restitution under 18 U.S.C. § 3664(k).2 Shortly after filing the motion, the government met with Bagdy and his counsel in an attempt to reach a settlement as to the amount of his inheritance Bagdy would put toward restitution. Although no formal agreement was reached at the meeting, Bagdy contributed an additional $60,000 of his inheritance toward restitution and remained in communication with the government regarding a possible settlement.

[Negotiations Continue and Bagdy Delays]

While negotiations between the government and Bagdy continued, Bagdy requested several extensions of time to file a response to the government’s §3664(k) motion, representing to the District Court that he was engaged in “good faith negotiations to resolve all restitution issues by agreement” with the government. For months, the government did not oppose Bagdy’s extension motions and the District Court granted five of them. When no settlement had been reached as of early November 2012, the government emailed Bagdy’s counsel to express its concern that Bagdy may be stalling the hearing while depleting his inheritance [emphasis added]. [Note: See “My Thoughts.”]

[The §3664(k) Hearing]

The District Court finally held the § 3664(k) hearing on December 3, 2012. At the hearing, the government informed the District Court that Bagdy had inherited from his aunt an additional $25,000 that it had previously been unaware of, bringing his total inheritance to $434,799.13. The government also told the court that it had just learned that Bagdy had spent all but about $52,000 of the inheritance. The government requested to have Bagdy’s conditions of supervised release modified to order payment of the $52,000 balance of his inheritance. Bagdy’s counsel did not object and the District Court granted the motion.

        The government candidly acknowledged that it did not know if Bagdy had violated any condition of supervised release by depleting his inheritance. The District Court instructed the government to “[c]onsult with the probation department and do your research and look for precedent and see if potentially if the bad faith on the part of the Defendant under all of these circumstances somehow constitutes a constructive breach of the conditions [of supervised release].”

[The Government Seeks Revocation of Bagdy’s Supervised Release]

On February 6, 2013, the government filed a motion requesting that the District Court hold a hearing regarding Bagdy’s alleged violation of his supervised release. The motion noted that “since receiving a total of $434,000 last year from an inheritance, the defendant has paid $152,048.48 toward restitution, and has spent the remaining $281,952.” The government’s motion detailed Bagdy’s expenditures during this period, as reported to the probation office, but also alleged that copies of Bagdy’s bank records reflected additional expenditures that had not been reported to the probation office. Unreported expenditures included $41,000 in ATM withdrawals, $21,800 in Western Union transfers, and $5,800 in purchases from a business named Fragile Paradise Florist. The government argued that Bagdy’s failure to put a greater amount of his inheritance toward restitution while making extravagant personal expenditures constituted a willful violation of the conditions of supervised release.

[The Hearing on the Motion to Revoke Bagdy’s Supervised Release]

At the June 4, 2013, hearing on the motion, the government maintained that Bagdy’s conditions of supervised release required him to pay the full amount of restitution and that “[t] he requirement that he pay not less than 10 percent is merely setting a floor during the term of his supervised release that he has to satisfy.” Bagdy’s counsel responded by contending that “a specific violation of a condition of this Court’s judgment has not been adequately alleged” because nothing in the restitution order had indicated that Bagdy could be found in violation for not making payments in good faith.

[The District Court’s Decision]

The District Court concluded:

Mr. Bagdy, I have to agree with the Government, I think that your conduct in this case, you knew you owed this money, and to have inherited this large sum and to spend it the way you did was not acting in good faith and it does constitute a violation of my restitution order. So I do find that you violated the condition and I am going to sentence you to six months incarceration.


[Revocation of Supervised Release Hearings]

A District Court may revoke a defendant’s supervised release and impose a term of imprisonment “if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of . . . supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release. . . .” 18 U.S.C. § 3583(e)(3). The issue presented here is whether Bagdy violated a specific condition of supervised release by remitting only $152,048.84 from his inheritance.

        We have repeatedly expressed concern that conditions of supervised release be sufficiently clear to enable individuals on supervised release to freely choose between compliance and violation. In this regard, our precedents require that conditions of supervised release provide a defendant with “adequate notice of what he may and may not do….”


[The District Court Erred in Revoking Bagdy’s Supervised Release]

At the revocation hearing, the District Court did not identify an explicit condition of supervised release that Bagdy had violated. The District Court took issue with Bagdy’s depletion of his inheritance on personal ex­penses, finding that the dissipation of assets constituted bad faith in light of Bagdy’s obligation to make com­plete restitution to his victims. Bagdy, however, had in­formed his probation officer and consulted the officer before making his initial payment of $41,000. Regarding payment, the judgment setting forth the conditions of supervised release provided that “[t]he defendant shall make periodic payments of at least ten (10%) percent of his gross monthly income toward the outstanding balance of restitution. Payments shall be made in such amounts and at such times as directed by his probation officer and approved by the court.” There is nothing to suggest that Bagdy failed to make payment as directed by his probation officer. Bagdy’s failure to preserve a greater portion of his inheritance for satisfaction of the restitution order was not, on its own, a violation of the conditions of supervised release.

        The District Court found Bagdy in violation of supervised release for behavior that was not prohibited by an express condition of the judgment setting forth his conditions of supervised release. The question then is whether supervised release may be revoked where a defendant’s conduct supports a finding that he did not act in good faith in discharging his obligation to make resti­tu­tion in full.

        [Note: Bagdy and his lawyer are probably even more certain that they have won—but wait.]

[The Government’s “Good Faith” Argument]

The government argues that, although no good faith term appeared in Bagdy’s conditions of supervised release, the Supreme Court’s decision in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), authorizes a District Court to revoke supervised release when an offender fails to act in good faith with respect to paying restitution.


Unlike Bearden, Bagdy’s failure to pay more than $152,000 of his inheritance towards restitution did not violate an explicit condition of supervision. And the conditions of Bagdy’s supervised release did not require that he make good faith efforts to pay his restitution.

[The Government’s “Breach of Agreement” Argument]

The government . . . directs our attention to the informal agreement that it reached with Bagdy in early 2012, which provided that Bagdy would not deplete his inheritance prior to reaching a settlement with the government. Even if Bagdy’s conduct breached such an agreement, honoring that agreement was not a condition of supervised release.

[The Third Circuit’s Advice to the District Courts of the Circuit]

To avoid the occurrence of a similar situation in the future, District Courts may wish to consider adding a term to conditions of supervised release that would provide for contingencies where a defendant with a restitution ob­li­ga­tion comes upon an unforeseen inheritance or wind­fall. Such a term might prohibit defendants from spending a certain percentage of contested funds during the pendency of a § 3664(k) motion. In the absence of any such term in this case, we cannot affirm the District Court’s decision to revoke Bagdy’s supervised release for actions that were not in violation of his conditions of supervised release.


[In Two Footnotes to the Opinion, Judge Vanaskie Explains to the District Court How to Revoke Bagdy’s Term of Supervised Release]

Footnote 1: Bagdy may have violated other conditions of supervised release. For example, he may have violated a condition that required him to make certain reports to his probation officer on financial matters. On remand, the District Court is free to consider whether Bagdy violated a specific condition of supervision, and, if so, what the appropriate sanction for that violation should be [emphasis added].

        Footnote 6: The government argues that, by not disclosing numerous personal expenditures he made that exceeded $500, Bagdy violated a condition of supervised release that required him to “report to the probation officer as directed by the court or probation officer and . . . submit a truthful and complete written report within the first five days of each month.” Although the record appears to support the government’s claim that Bagdy was not forthcoming with probation regarding his expenditures, the District Court did not find him in violation of this condition at his revocation hearing. The District Court should consider on remand whether Bagdy can be found in violation of this condition of supervised release [emphasis added]. [Note: Bagdy and his now lawyer knew that they had nothing to celebrate.]

My Thoughts

  • If I were Bagdy’s lawyer, I would be deeply concerned. The opinion is crystal clear that he filed five requests for extensions of time to file a response to the Government’s §3664(k) motion. The Government did not oppose these requests. In each of these requests, he represented to the District Court that he was engaged in “good faith negotiations to resolve all restitution issues by agreement” with the Government. I know judges and prosecutors who would probably believe that he was less than candid in his representations that he was engaged in “good faith negotiations.” It would appear that he was at least negligent in his choice of words. The Government might not be so accommodating to him in the future.
  • We would never have a restitution issue such as Bagdy’s in the Eastern District of Texas. Here, the standard order of restitution requires that 100% of any inheritance be applied to the outstanding balance of a restitution order.
  • Bagdy probably shouldn’t ask for a refund of the $60,000.
  • Bagdy’s restitution issue is unique. I could not find another fact situation such as his in WestLaw’s federal database.

Said & Done


Congratulations to TCDLA Director Jani Maselli Wood and General Counsel Patricia Cummings, both of whom were selected by Texas Lawyer as “Texas Lawyer’s 2014 Winning Women.” Of course, we all knew they’re winners, but it’s nice to be recognized as such in the press.

In August, Houston attorney Nicole DeBorde was elected to the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL). Nicole has served as president of the Harris County Criminal Lawyers Association and chair of the Houston Bar Association, among her many positions, and currently is a TCDLA board member. Congratulations, Nicole.

Ted Wood and co-counsel Jamal Rhadbane heard the two-word verdict recently on an aggravated robbery in San Antonio. The complaining eyewitness said he was 70 percent sure that D did the deal, so counsels asked him if he thought he should go to prison on a 70 percent confidence ID. He said no. The jury still took 4 hours to acquit, for which Ted and Jamal are grateful. Defendant had an IQ of 70, so it was disturbing they took so long on such a weak ID. All’s well, guys. Good job.

Mick Mickelsen has recently enjoyed a couple significant victories for the defense. This spring he successfully defended a client on counts relating to allegations of theft of trade secrets from Texas Instruments. D returned from China to face three counts of knowingly stealing and misappropriating TI trade secrets and was found not guilty on all counts.
 And in July 2014, Mick prevented a client from being charged with disability fraud in Federal court. The client was facing lengthy prison time under the sentencing guidelines, but due to the extenuating circumstances the judge declined to impose a guideline sentence and placed him on probation. Congrats, Mick, for jobs well done.

On June 25, 2014, TCDLA Director Clint Broden won another appellate case before the United States Court of Appeals for the 5th Circuit. The client hired Broden after he was convicted at trial. Although the Fifth Circuit upheld the conviction, Broden convinced the Court to reverse the sentence. It is expected that the client’s sentencing could be reduced by approximately seven years upon re-sentencing. Good work, Clint.

TCDLA past president Cynthia Orr got good news from the Texas Court of Criminal Appeals on her appeal in the case of Hannah Overton, who’s served seven years in prison of a life sentence on a capital murder conviction. The trial had drawn national attention, featured on ABC’s “20/20” and Katie Couric’s daytime talk show “Katie.” The Nueces County District Attorney’s office now has the option to try her on a lesser charge, dismiss the case, or retry her on the capital murder charge. This was some fine work, Cynthia. Congratulations.

Kathryn Case, Executive Director of Texas Defenders, sent along these kudos: Three cheers to attorney Dan Hurley and his entire team for getting the death penalty waived for Amarillo plastic surgeon Thomas Michael Dixon! Dixon was accused of hiring a hitman in July 2012 to kill a rival doctor dating Dixon’s ex-girlfriend. In November 2013, the Lubbock DA announced he would seek the death penalty against Dixon, but has now withdrawn its intent to seek death, and the case is scheduled to go to trial as a mini-cap in late October. The hitman, represented by a Regional Public Defender for Capital Cases defense team led by Dennis Reeves, avoided the death penalty when he accepted a plea deal in return for an LWOP sentence.
 Kudos also to capital defense counsel Jerald Graber, Robert Morrow, and Phillip Scardino, to mitigation specialists Gina Vitale and Amy Martin, and to fact investigators Laura Lawhon and Suzanne Kehoe for obtaining an incredible plea to stacked life sentences today for a defendant facing two separate capital murder charges in Harris County. D faced the death penalty for a murder in the course of the robbery of a game room, and some months later, authorities obtained evidence that he had also shot and killed a print-shop owner and stolen the man’s car. A mitigation document submitted to the DA’s office was described as a persuasive work of art, yielding the offer of stacked LWOP sentences in return for guilty pleas. There is much more to this story, Kathryn says, but suffice it to say, it is a story of never giving up the effort to save the client’s life.