June 2018

Assume that you are a hard-working drug courier just trying to make an illegal living. You have been hired to haul a load of merchandise from Harlingen to Dallas, or El Paso to Longview. You have taken all possible precautions to prevent being stopped by law enforcement and having your cargo seized: 1) You are not using a rental car; 2) you made sure the turn indicators, as well as all of the other lights on the vehicle, work correctly; 3) there are no fast food wrappers strewn about the inside of your car; 4) you removed all air fresheners and religious symbols from your mirror; 5) you have practiced your deep-breathing exercises so that if you get stopped, you won’t appear too nervous; and 6) you are wearing a high-neck shirt so the throbbing vein in your neck cannot be seen.

Despite all your preparations, you are pulled over for [fill in the traffic violation de jour]. While the officer approaches the car, you silently chant your mantra and pull your collar up. Although you are courteous, make eye contact (but not too much), have all your documents in order, and answer all the officer’s questions (while making sure your answers don’t seem too pat), the officer insists on searching your vehicle. Of course, you refuse, so the dreaded drug dog is called in to sniff around. The dog allegedly alerts by sitting or squatting or wagging its tail or panting or peeing on the tire. Your merchandise is ultimately seized, and you are arrested.

After reviewing the incident report, you discover one of the factors the officer relied upon to prolong the stop was the fact that you were “traveling a known drug corridor.” Your first reaction might understandably be, “What the heck is a ‘known drug corridor?’” This article will attempt to answer that question.

What Is a Drug Corridor?

That’s a good question. Absent a more trustworthy source, a workable definition can be located on Wikipedia. There, a drug corridor is defined as “the name given to various paths in the U.S., generally being coterminal with major highways and interstates, that are major highways for the flow of illicit drugs into, out of, and across the U.S.”¹ The concept appears in case law under various monikers, including “drug corridor,” “drug thoroughfare,” and “drug avenue.” Regardless of which name is used, it is frequently cited by law enforcement as a factor to support reasonable suspicion for prolonging a traffic stop.

Where Did the Term Come From? Possibly, Operation Pipeline (1984)

In case law and other sources, the origin of the phrase is not readily explained.² It simply appeared in one case, and as time went by, it gradually started popping up more and more frequently. The Drug Enforcement Administration is the most likely source, where one of the earliest references to the term was located on the DEA website in the section containing a history of the DEA, 1980 to 1985.³ As explained in that history, “Operation Pipeline” was created in response to an increase of drug arrests following traffic stops.

As drug traffickers established their networks within U.S. borders, they began to rely heavily on the highway system to move their wares from entry points to distribution hubs around the country. Beginning in the early 1980s, New Mexico state troopers grew suspicious when they noticed a sharp increase in the number of motor vehicle violations that resulted in drug seizures and arrests. At the same time, and unknown to the troopers in New Mexico, troopers in New Jersey began making similar seizures during highway stops along the Interstate 95 “drug corridor” from Florida to the Northeast.⁴

The success of the highway interdiction programs in New Jersey and New Mexico led to the creation of Operation Pipeline. This DEA-funded training program featured state police and highway patrol officers with expertise in highway interdiction who provided training to other officers throughout the country.⁵

Therefore, we probably have the DEA, and its ongoing training, to thank for the phrase and its increased use.

First Appearance in Case Law

In state court decisions, the earliest appearance of “drug corridor” (or a variation thereof) was in a concurring opinion of a 1989 Georgia state court decision.⁶ In that case, a trooper saw a Dodge van “travel approximately 40 yards some 2 to 3 feet inside the emergency lane.”⁷ The defendant was detained for suspicion of DUI ,and the trooper searched the van “in order to find evidence such as cans or bottles that would indicate whether appellee had been drinking.”⁸ Instead of cans or bottles, the officer found 18 individually wrapped kilogram packages of cocaine, hidden behind a piece of loose interior molding.⁹ The court affirmed the suppression of the evidence, finding the trooper was “taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the [van] or its contents, [and thereby] did produce a new invasion of [appellee’s] privacy unjustified by the exigent circumstance that validated the .”¹⁰

The concurring judge called for a drug-sniffing dog in every patrol car, and referenced “drug corridor” in the process:

The investigating officer needs a practical solution to the problem identified by Justice Scalia—an effective means, short of an unconstitutional search, to investigate suspicious circumstances. The United States Supreme Court has held that exposure of personal effects located in a public place to a trained canine does not constitute a search within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed.2d 110 (1983). Thus, the solution I propose is that a drug-sniffing dog accompany each officer patrolling a highway known to be a drug corridor. The positive reaction of a drug-sniffing dog would have provided the probable cause necessary in this case to search areas of the vehicle not otherwise subject to a search incident to the lawful arrest of the driver.¹¹

The first reference to a drug corridor in federal case law was a 1988 New Jersey District Court forfeiture case.¹² The defendant and two other individuals were driving on U.S. Route 40 in Carneys Point Township, Salem County, New Jersey. Their car was stopped by a New Jersey trooper for speeding. The trooper testified that the driver was “extremely nervous and breathing irregularly.” The trooper performed a pat down of the driver for weapons, but instead found several hard objects in the driver’s jacket pocket that turned out to be rolls of currency wrapped and bound by rubber bands. The trooper also found two small bags containing what appeared to be marijuana, which the driver grabbed away from the trooper and then attempted to flee from the scene. He and the passengers were ultimately arrested and $32,310 was found after the vehicle was searched. At a later interview, all three individuals claimed that the money belonged to the passengers and “represented many years of savings; and, the money was to be used to buy into a business or restaurant in the Rhode Island/Massachusetts area.”¹³

At a forfeiture hearing, the district court found the stop legal and also found that the trooper’s suspicions were aroused by, among other things, the fact that “the stop occurred at an area known as a major ‘drug corridor’ where the officer himself had made about 400 arrests in connection with drug trafficking.”¹⁴ The decision further stated that the stop occurred “on Route 40, colloquially referred to as ‘cocaine alley,’ which both [troopers] testified is a known drug corridor.”¹⁵

Fifth Circuit and Texas Cases

Moving closer to home, the first mention of a drug corridor appearing in a Fifth Circuit decision was United States v. Powell.¹⁶ There, a Texas state trooper was patrolling Interstate 45 near Centerville, in Leon County, Texas. Of interest, at least regarding the subject of this article, the trooper never mentioned that the defendant was traveling on a known drug corridor. The evidence showed that he stopped the defendant for speeding, and as he approached the vehicle, he noticed that the driver’s window was rolled down a few inches. When asked to roll it down further, the driver replied that it was broken. After asking for and receiving consent to search the car, the trooper found cocaine in the driver’s door. The defendant was convicted of possession of cocaine with intent to distribute.¹⁷

The defendant argued on appeal that his motion to suppress should have been granted because the stop was unreasonably prolonged, relying on United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) and United States v. Jones, 234 F.3d 234 (5th Cir. 2000).¹⁸ The Fifth Circuit found both cases distinguishable, in part because “the highway on which [Santiago] traveled was not deemed a major drug corridor” and “Jones was not traveling on a known drug corridor.”¹⁹ The highway in Santiago was Interstate 20 in Bossier Parish, Louisiana.²⁰ In Jones, the exact location was not disclosed—the decision merely stated that the car was stopped “just inside the city limits of Amarillo, Texas,” and the defendants were traveling from California to Memphis, Tennessee.²¹ The appeals court in Powell implicitly found that I-45, near Centerville, was a drug corridor, but offered no hint as to how or when the highway qualified as such.

The winner for first-mention-in-Texas decisions appears to be Adams v. State.²² On July 30, 1998, a deputy sheriff stopped a red Ford Taurus for driving on the shoulder of Highway 59. The case was tried in Polk County, Texas, so although not specifically mentioned, it is assumed that the relevant portion of Highway 59 was in Polk County. The deputy encountered three individuals in the car, and he questioned each one of them. Several factors led the deputy to “believe that a crime was being committed: The Taurus was a rental car, the driver was not named on the car rental agreement, the occupants were returning to Lufkin after a ‘turnaround trip’ to Houston, and the occupants were nervous, evasive, and gave conflicting stories regarding their recent travels.”²³ In a footnote, the court explained that the deputy “described a ‘turnaround trip’ as a quick trip, usually overnight, to a major drug-supplying city to purchase narcotics and take them to another city to sell them. He characterized Houston as a major drug source and Highway 59 as a major drug thoroughfare.” Id. at n. 3. Again, there was no explanation as to how or when Highway 59 achieved the “major drug thoroughfare” status.

Does Traveling on a Known Drug Corridor Really Mean Anything?

In the beginning, courts seemed to take testimony regarding traveling on a drug corridor as meaningful, especially when combined with other factors. For instance, in Williams v. State,²⁴ a 2003 decision, the defendant was stopped for speeding on I-30 in Rockwall County (northeast of Dallas). The trooper testified that he knew I-30 “to be a major drug trafficking thoroughfare.” The trooper also noticed that the defendant was “extremely nervous, spoke softly in a monotone voice, and would not make eye contact.”²⁵ In addition, the defendant was unable to produce valid proof of insurance. When the trooper asked whether there were any guns, knives, hand grenades, dead bodies, or drugs in the vehicle, the defendant said “no” and then laughed, which made the officer believe something illegal might be in the vehicle.²⁶ The officer then asked if there were any drugs in the car, which the defendant answered, “No, sir.” After receiving con­sent to search the car, the trooper found three pounds of mari­juana in the trunk.

In affirming the trial court’s denial of the defendant’s motion to suppress, the Dallas court cited the following evidence in support of reasonable suspicion: nervous behavior, lack of eye contact, previous arrest for unlawfully carrying a weapon, trooper’s knowledge “that Interstate 30 was a favorite thoroughfare among drug traffickers, and, in his experience, appellant’s laughter in response to the question about whether he possessed anything illegal was generally indicative of someone found to have contraband in their possession.”²⁷ The evidence regarding I-30 being a “favorite thoroughfare among drug traffickers” appeared to be taken at face value and without question.

Courts Have Begun to Question the Relevance of a Drug Corridor

In 2008, the Texarkana Court of Appeals issued two decisions on the same day, where it considered the forfeiture of currency.²⁸ For the first time, a court questioned the relevance and weight of evidence regarding traveling on a drug corridor. In $130,500 v. State, a trooper stopped a Dodge truck for speeding while traveling west on Interstate 30 in east Texas. Inside the truck were the defendant, two other adults, two children, and some luggage. After getting consent to search the truck, the trooper found $130,510.00, packaged with rubber bands and shrink-wrap. Later, at the DPS station, after the money had been removed from the wrappings, some of the wrappings were put beneath a “non-contaminated” trash can, and a drug dog alerted at the bottom of the can where the wrappings were. DPS claimed that the dog alert meant the money had “probably” been contaminated with a controlled substance and filed forfeiture proceedings.²⁹

At a subsequent hearing, the trooper testified that I-30 was a drug corridor and that drug dealers use “ready made families” to look like innocent travelers, sometimes even carrying luggage. In response to this testimony, the court noted the following:

While those things are in evidence, we are skeptical that such evidence offers any probative value to support the State’s case. In numerous forfeiture cases, we have seen testimony from various officers that a large number of roads in east Texas are “drug corridors” and no suggestion that any east Texas roads are not drug corridors. We also find it questionable that facts traditionally seen as suggesting innocence become suspicious when the government may be able to confiscate an item of substantial value by recasting such facts.³⁰

The court ultimately determined that while the State’s evidence was “legally sufficient to support the trial court’s judgment of forfeiture,” it also found “the evidence factually insufficient to support it” and remanded for a new trial.³¹

In 43,774 v. State, the defendant was stopped for following too close while driving through Gregg County, Texas, on his way to Dallas from Mississippi.³² After getting consent to search the vehicle, the officer found approximately $40,000 in two hidden compartments. While testifying at the forfeiture hearing, the officer “opined that typically drugs went east and money went west and stated that he had stopped [the defendant] going westbound on the interstate highway.”³³ The trial court ruled in favor of the State for the forfeiture.³⁴

Although the appeals court affirmed the trial court’s decision, the court dismissed as “relatively nonprobative the evidence that the vehicle was being driven in a certain direction and that [the defendant] was nervous.” The court cited Deschenes v. State, 253 S.W.3d 374, 383 nn. 9 & 10 (Tex. App.—Amarillo 2008, pet. ref’d.) (“traveling a particular route does not establish probable cause for forfeiture”).³⁵ The court wrapped up its decision by adding some “additional comments” that included the following:

The fact that a person is driving a vehicle on an interstate highway is virtually meaningless in determining a connection to illegal substances. We realize that narcotics and cash derived from drug transactions are transported by vehicles traveling on the interstate highway or other major highways. But to conclude from that general premise that a particular vehicle driving on that highway is likely to be involved in possessing or selling drugs or has monies derived from it, is simply a fallacy in reasoning and logic. It adds nothing to the quest to determine the issues involved.

Additionally, it may well be true that “drugs travel east and money travels west,” but once again, simply because a vehicle is driven in one direction or the other does not help determine which of all those persons driving those vehicles in such direction is violating the law.³⁶

“Damned If You Do, Damned If You Don’t”

The Fifth Circuit, in United States v. Madrigal (a non-forfeiture case), had the opportunity to consider whether someone taking a particular route was material to the finding of reasonable suspicion.³⁷ On October 31, 2012, an officer observed the defendant and his wife following another vehicle too closely on Interstate 10, between San Antonio and Houston.³⁸ The defendant explained that he was driving from Reynosa, Mexico, and was traveling to Houston to look at a truck.³⁹ The officer ques­tioned the defendant about why he choose to travel on Interstate 10 rather than Highway 59, and the defendant replied that his friend in Houston told him I-10 was shorter. After checking the defendant’s license, the officer continued to question the defendant but never returned the license and registration during this exchange.

After receiving consent to search the truck, the officer conducted a canine search, but the dog did not alert. The officer then noticed that one of the fuel tanks was disconnected and had tool marks on it. Using a scope, he determined the liquid in the tank had an unusual appearance for diesel. The defendant agreed to follow the officer to the police station, where the search continued. The fuel tank was removed, spilling some of the liquid on the floor and also on the officer’s pants. No drugs were found, and the defendant was allowed to leave. However, the officer later noticed that some of the liquid that had spilled on his pants had crystallized. The substance tested positive for methamphetamine, and the defendant was arrested near Houston. The district court denied the defendant’s motion to suppress.⁴⁰

The issue on appeal was whether the officer had reasonable suspicion to continue the detention. Among the facts cited to support reasonable suspicion was the defendant’s travel itinerary.⁴¹ The government argued that the itinerary was suspicious because, in part: (1) he traveled from a drug source to a drug distribution place; and (2) he traveled on a drug route.⁴² The Fifth Circuit noted that suspicion could arise from using a drug corridor or avoiding checkpoints unless it created a “damned if you do, damned if you don’t” situation.⁴³

Regarding the route taken, the court explained that the defendant’s use of Interstate 10 gave rise to little suspicion. “Interstate 10 like all highways between Mexico and Houston may be used as a drug corridor, but it also is a major thoroughfare for legitimate purposes. The vast majority of traffic on Interstate 10 are law-abiding citizens who are traveling to work, home, or for other legitimate purposes.” Further, the defendant’s choice to avoid Highway 59 also was not inherently suspicious.

The government argues that many drug couriers avoid Highway 59 because it has numerous police checkpoints. Of course this cuts both ways: a driver on a legitimate trip to Houston may also avoid Highway 59 because of the inconvenience and delay of the checkpoints. Finally, if the defendant chose to travel on Highway 59—it would arguably be just as suspicious as Interstate 10, and the mileage is not dramatically different. If the defendant used Highway 59, he would be on a direct drug corridor. Thus a courier is suspected of drug activity whether on Interstate 10 or Highway 59, and accordingly, is “damned if he did, and damned if he didn’t.”⁴⁴

Based on the evidence, the Fifth Circuit found the case to be “a close call,” but concluded that the officer lacked enough facts to give rise to reasonable suspicion.⁴⁵ Because the issue of the defendant’s consent was not considered in the trial court, the case was remanded for the district court to determine if the defendant’s consent to search was voluntary and given with free will.⁴⁶

Again, What Is a Drug Corridor?

According to law enforcement, just about any piece of pavement running north and south or east and west is a drug corridor. Practically any road used by vehicles is a drug corridor. With few exceptions, the only evidence presented in this regard comes from the arresting officer and is typically just the officer stating his opinion. There are rarely any facts backing up the officer’s claim. Instead, the mention of a particular road being a drug corridor is almost always tied to the subject of officer “experience and training.” In other words, the court will point out that the evidence, based on the officer’s experience and training, showed that a particular road was considered to be a known drug corridor, and is to be considered along with all the other factors cited by the officer.⁴⁷ The accompanying map shows every road in Texas that has been designated as a “drug corridor.”

What Can Be Done?

What can a defense counsel do to counter the assertion that a road is a known drug corridor? Below are some possible suggestions to employ (if justified by the circumstances):

• Question the officer regarding how he came to the conclusion a particular route was a drug corridor. Did someone tell him that? If so, who? What part of his training covered drug corridors? Is there an authoritative list that designates certain routes to be drug corridors?
• Be aware of those “damned if you do; damned if you don’t” scenarios and point them out to the court.
• In the motion to suppress, cite the “additional comments” language from 43,774 v. State and the finding in United States v. Madrigal, where the courts questioned the probative value of the drug corridor claim.⁴⁸

While I don’t advocate taking up the drug courier trade, if you do, I suggest supplementing your list of places and things to avoid. First, avoid the routes highlighted on the above map All these roads have been cited in Texas and Fifth Circuit cases as drug corridors! Avoid the interstates. Avoid the main highways. It might take you longer, but enjoy the scenery and ambience of small towns as you travel the backroads of Texas. Don’t forget your turtleneck to hide that tell-all, pulsating artery in your neck. And lastly, avoid responding to a police officer’s attempt at humor, as it just might be probable cause for an arrest.

Notes

1. See https://en.wikipedia.org/wiki/Drug_corridor (last visited 3/15/18).

2. Case law research for this article was limited primarily to Texas and Fifth Circuit cases.

3. See https://www.dea.gov/about/history.shtml [click on 1980–1985 tab] (last visited 3/15/18)

4. Id. at p. 54.

5. Id.

6. See State v. Escobar, 388 S.E.2d 534, 537 (Ga. App. 1989) (Pope, J. concurring specially).

7. Id. at 535–36.

8. Id. at 536.

9. Id.

10. Id. at 537–38.

11. Id. (emphasis added).

12. United States v. $32,310.00 in U.S. Currency, 1988 WL 169271, at *3 (D. N.J. 1988).

13. Id. at *1.

14. Id. at *3.

15. Id. at *7 (emphasis added).

16. 137 Fed. Appx. 701 (5th Cir. 2005).

17. Id. at 702.

18. Id. at 707–08.

19. Id. at 708 (emphasis added).

20. Santiago, 310 F.3d at 340.

21. Jones, 234 F.3d at 239–40.

22. 2001 WL 246018 (Tex. App.—Texarkana 2001, no pet.).

23. Id. at *1.

24. 2003 WL 22020783 (Tex. App.—Dallas 2003, no pet.).

25. Id. at *2.

26. There is no explanation as to why laughing at the officer’s question re­garding “hand grenades” or “dead bodies” would lead the officer to suspect crim­inal activity. He probably would have been suspicious if the defendant had not laughed at his attempt at humor.

27. Id. at *4.

28. $130,510.00 in U.S. Lawful Currency v. State, 266 S.W.3d 169 (Tex. App.—Texarkana 2008, pet. denied), and $43,774.00 U.S. Currency v. State, 266 S.W.3d 178 (Tex. App.—Texarkana 2008, pet. denied).

29. $130,510.00 v. State, 266 S.W.3d at 172.

30. Id. at n. 5 (emphasis in original).

31. Id. at 177.

32. $43,774.00 v. State, 266 S.W.3d at 180.

33. Id. at 181.

34. Id. at 182.

35. Id. at 184.

36. Id. at 187–88.

37. United States v. Madrigal, 626 Fed. Appx. 448 (5th Cir. 2015).

38. Id. at 448–49.

39. Id. at 449.

40. Id.

41. Id. at 450.

42. Id. at n. 17.

43. Id. at 451.

44. Id.

45. Id. at 452.

46. Id.

47. “Appellant was traveling on [Highway] 287, which in Trooper Harden’s training and experience is a drug corridor.” See Smith v. State, 2017 WL 1289354, at *5 (Tex. App.—Fort Worth 2017, pet. ref’d). See also United States v. Pack, 612 F.3d 341, 361 (5th Cir.), modified 622 F.3d 383 (5th Cir. 2010) (Officer testified regarding driver’s extreme nervousness, conflicting stories, “and the fact that the two were traveling along a drug trafficking corridor” caused officer to suspect that they were engaged in criminal drug activity. Officer’s “suspicion is entitled to significant weight, because he had been a law enforcement officer for 17 years.”).

48. 266 S.W.3d at 187–88 and 626 Fed. Appx. at 451.

President Trump has charged his closest advisor, son-in-law Jared Kushner, to lead prison reform. People may ask why Kushner? He has no background in criminal justice or prison reform. Nor is he a former felon. But he has proven to be a highly educated successful real-estate developer. Kushner holds degrees from Harvard and New York University. He has displayed talent in fields he has chosen to pursue, from real-estate development to publishing. But with a bevy of professionals who have spent their lives studying and working to improve the system to choose from, why would the Trump administration select a novice to lead the way in conducting and implementing effective prison reforms?

The only possible reason may be that Kushner’s father, Charles Kushner, is a former federal inmate. In 2005, Charles Kushner was convicted in the District of New York for tax evasion, illegal campaign contributions, and witness tampering. Charles Kushner was subsequently sentenced to two years in federal prison and served 1 year at a minimum-security Federal Prison Camp in Montgomery, AL, among other white-collar criminals. His father is hardly the face of the average felon in America. His sentence carried a maximum of 3 years in prison, but he only received 24 months, of which he served only 12. This begs the question of how come he only served half his sentence. Charles Kushner received halfway-house time soon after starting his sentence.

Kushner teamed up with U.S. Attorney General Jeffrey Sessions. Sessions has a hardline stance for sentencing and maintaining mass incarceration rates. He also favors expanding private prisons, which greatly benefit from high prison populations. Recently, Sessions cautioned the U.S. Senate not to support a bipartisan bill that would reduce sentences for nonviolent offenders, remove the three-strike mandatory-life provision, and allow federal judges discretion in sentencing decisions (Reuters, February 14, 2018).

It is widely known the United States leads the world in the number of individuals we incarcerate. In 2016, state and federal prisons held approximately 1,505,400 prisoners. This number is a drop from the previous year, seeing 2,300 fewer prisoners admitted to state and federal prisons in 2016 than in 2015.* Even though this reduction in prison population over the past year is relatively minuscule (approximately 1 percent), the Bureau of Justice Statistics (BJS) recently released data reflecting that this is the third consecutive year that the state and federal prison population intake is declining. This downward trend is evidence that correctional reforms are moving slowly in the right direction.

Regardless of the administration in place in the United States, the public outcry for alternative sentencing and less incarceration has caught the attention of our political leaders. As political initiatives and strategies continue to take effect in prison programs, the need to stay updated on the latest BOP programs is essential for the offender, consultants, and legal professionals.

Federal prison consulting can assist with the laborious journey to federal prison. Upon sentencing in Federal District Court, the Bureau of Prisons (BOP) has the sole responsibility in determining where an offender will be designated for service of his/her sentence. Prior to a designation occurring, the Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas, receives documents from the sentencing court, U.S. Probation Office, and the U.S. Marshals Service. Upon receipt of these documents, the DSCC will classify the offender to determine his/her security level and decide on an appropriate security-level facility.

Upon classification, the DSCC will initially designate the offender to a facility based on his/her security level. In determining an appropriate facility, the DSCC considers a number of factors, including medical and mental health concerns, security and separation issues, release residence, gang affiliations, judicial recommendations, and population management of the BOP. The BOP attempts to designate offenders to facilities commensurate with their security and program needs within a 500-mile radius of their release residence.

Prior to sentencing, the Pre-Sentence Investigation Report (PSR) is the most important document utilized in determining an offender’s security level. It is imperative that it is thorough and accurate—otherwise it could negatively impact the offender and result in designation to a higher security facility. In addition, it provides important information to the court and Federal Bureau of Prison (BOP) regarding the offender’s socio-economic status and substance-abuse history, medical and mental health concerns, family support, and employment history. This information is used by the BOP to determine programming recommendations for the offender and to assist with pre-release programs. It is important to have a consultant on your side who can review the PSR and suggest objections and changes before it is submitted to the judge.

Often, federal judges make important recommendations in the offender’s Judgment and Commitment Order. It is important to ensure it appropriately reflects your client’s security level and programming needs, which will come from the PSR. If the security level is inaccurate with BOP policy, the BOP has the right to not follow the recommendation.

The rules apply even to certain sex offenders. We had a case where the defendant was found guilty of Possession of Child Pornography. He did qualify for the RDAP program. He was designated to a close-by low-security BOP facility that has RDAP. He released with 6 months of RRC placement and received one year off his sentence under Title 18 3621. Most attorneys don’t realize that in the right case a sex offender might be eligible for time off their sentence. In some cases, they are eligible and not precluded from an early release benefit.

Lately in North Texas there have been major conspiracy cases for drug and healthcare crimes. Many co-defendants, once indicted, were deemed by the BOP as uncommitted separation cases, also known as separates, and assigned prison numbers. Given this status and depending on the time of sentencing, some of the defendants may find themselves in prisons far from home. This can be avoided given proper consultation.

Prior to sentencing, you must have an accurate PSR scored correctly to make sure the point total is as low as possible. In addition, it helps to include language supporting any eligible programs. For example, unverified education is a one-point enhancement that can make the difference between a Low and a Camp minimum-security institution. Finally, at sentencing you should make Judicial Recommendations. We often hear (sometime from judges), “The BOP will do what they want anyway, so I won’t make any recommendations.” Offer recommendations! The BOP (particularly at facility designation) will see these and weigh them carefully, although the BOP has the ultimate authority on the placement and programming.

Just as Charles Kushner received halfway-house time relatively soon after he began his federal sentence, you can for your clients also. One of the common ways is by applying for the Second Chance Act, which allows nonviolent first-time offenders to be given average of 6 to 12 months of halfway-house time to ensure a successful reintegration into society. Often this time is used to find employment, housing, reconnect with family members, and participate in programming not offered in prison. Despite some reduction in Residential Re-entry Center (RRC) bed space, submitting a Second Chance Act request, which can be tailored to the institution and RRC, can absolutely increase the chance of receiving more RRC than would otherwise have been given without submitting the request.

Another popular program is the Residential Drug Treatment Program (RDAP). RDAP is the Bureau’s most intensive treatment program. The most attractive part of this program is that eligible inmates may receive up to a year off their sentence upon successful completion. Offenders are housed in a unit separate from general population; they participate in half-day programming and half-day work, school, or vocational activities. This component must last at least 6 months. To ensure the Bureau provides evidence-based treatment in its drug-abuse treatment programs, the RDAP is a minimum of 500 hours. The RDAP has a duration of 9 to 12 months.

The BOP receives thousands of requests for this program, though not every inmate is a viable candidate. First, the inmate must meet diagnostic criteria for a Substance Use Disorder as outlined by the APA Diagnostic and Statistical Manual, 5th Ed. (American Psychiatric Association). Then, the pre-sentence report must be reviewed. The pre-sentence report is the crucial document that determines eligibility for entrance into RDAP. There needs to be a documented history of substance abuse in the PSR that is present before the arrest/indictment for the current offense.

In conclusion, the journey through the federal prison system requires guidance and effective decision-making. Make sure you get the assistance necessary so you can navigate it properly to best serve your client.

*  *  *

The programs and issues addressed above are those we typically address as consultants, though these options are not exhaustive of all those one has as a federal offender. We have collaborated with many TCDLA members, provided CLE at various meetings, and would love the opportunity to continue to do so. The authors can be reached by email at or on www.federalprisonauthority.com.

When we are able to attack we must seem unable, when using our forces, we must seem inactive, when we are near we must appear far away, when we are far away we must make the opponent believe we are near. Humble words and increased preparations are signs that your opponent is about to advance. Violent language and driving forward as if to attack are signs that your opponent may retreat.

—Sun Tzu

Before Bobby Fischer became the World Champion Chess player in 1972 by beating Boris Spassky, Spassky was known as the Demon of Deception. He played some of the most exciting and surprising moves ever seen in chess. Many were designed to deceive his opponent and take advantages of opportunities that resulted from those deceptions.

The Sun Tzu book The Art of War teaches deception, prepa­ration, and skill on the battlefield. All warfare is based on deception, using surprise maneuvers and using your opponent’s psychological predispositions against him to gain tactical advantages.

In chess and martial arts, attack by deception is the attack of the master. We must surprise our opponent and catch them in the moment of his helplessness.

This applies to trial. If you are prepared and know your case inside and out there will be at least one moment, one point in the case, one opportunity you can seize and take advantage of to surprise your opponent. However, if you are unprepared, opportunities may present themselves without you even being aware of them and you will not be able to exploit them.

When the time comes for your attack you should “look as boldly aggressive as a beast of prey—without becoming reckless—in order to bring pressure at once upon the adversary’s morale.”

—Bruce Lee

Attack your opponent where he is unprepared and appear where you are not expected to attack.

If your opponent’s pleadings are open to attack, weigh the costs and benefits of bringing pretrial motions as opposed to using the deficiencies to your advantage in trial. Not all problems with your opponent’s pleadings require or deserve a “motion to fix” (otherwise known as a motion to quash). And you do not have to raise a motion to suppress by written pretrial motion. You can raise a motion to suppress at any time during trial before the objectionable evidence is admitted. Roberts v. State, 545 S.W.2d 157 (Tex. Crim. App. 1977).

Ponder and deliberate before you make a move. Sun Tzu teaches us:

He will win who knows when to fight and not to fight.

He will win who prepared himself and waits to take the enemy unprepared.

Trial is about opportunity. You must think about and plan for all possible outcomes, 99% of which will never occur. In all my trials in 17 years of practice I have yet to have one go exactly as expected. There is almost always something that happens that I wasn’t expecting (but hoping for)—and I was prepared for and ready to take advantage of the surprise opportunity. The successful trial lawyer is an opportunist. Be an opportunist.

There is no need to stick your chest out and talk loudly and make a public show of confidence unless you want to tip your opponent off that you are not prepared. This usually is a signal that you are desperately trying to obtain a dismissal so you don’t have to go to trial. This is what I see many lawyers do who are either (1) dealing with a weak defense case, or (2) scared to go to trial.

Being a trial lawyer is the only way to do this job correctly. The small number of lawyers setting their cases for trial that I see is embarrassing. I want to encourage all attorneys to go to trial more often and reap the rewards of taking advantage of opportunities that present themselves during trial. Opportunities that only present themselves when in trial. Opportunities that would never be realized if the attorney did not thoroughly prepare for trial, and opportunities that would never be seen if the lawyer pleads out a case when there is no risk in trying it.

Much success in trial comes from out-preparing your opponent and finding issues to use—and then waiting for the right opportunity and the right time to make use of those issues. Don’t spoil your chances by bragging or boasting beforehand about problems you have found with your opponent’s case. Telling your opponent about issues beforehand will cause you to lose the issues completely. The issues will be “fixed.”

What could be better than knowing your case inside and out and keeping quiet about it and luring your opponent into a false sense of confidence? You go to trial and then unleash your attack, taking your opponent by surprise.

To be successful in trial, why not prepare, prepare, prepare, then be quiet, appear unprepared, and wait for your day of triumph? Don’t telegraph your level of confidence in the case.

On that note, if you study people you can pick up on so many cues that tell you everything you need to know. For example, during a break in trial the other day I was about to move to suppress the HGN (motion granted), and I asked the officer in the hallway a question about it before we went back on the record. His answer was evasive as he paused, looked accusingly at me, and then stated, “I’m not supposed to be talking to you.”

I explained that it was fine for him to talk to the attorneys just not other witness, but then I said, “Thank you though, you just answered my question for me.”

He was weak and was trying to appear strong. If he was strong and had no problems with his HGN test, he would have responded differently I think.

The idea of being quiet and confident goes both ways, though. The prosecutors I am most concerned about, the ones who I worry the most about, are not the ones emailing me or calling me asking me if I am ready on a case. It’s the ones who I ask if they are ready and they simply give a one-word answer: “Yes.”

If they are bugging me, asking why we aren’t pleading and if I am really going to be ready for trial, then I know they are not wanting to go to trial on that case for some reason. You can learn a lot by paying attention to people’s actions.

So be prepared but don’t advertise it. If the State is definitely going to try your case, then informing your opponent of all the work you have done in preparing for the trial and letting them know that you are very ready and very prepared will cause them to work harder and be even more prepared to fight you. If you know for sure it is a trial case, then consider following the ancient lessons learned from warfare and from the game of chess. Act weak and unprepared and you can catch your opponent off guard. Feign weakness and your chances of success increase. This doesn’t necessarily apply to cases that you know are very weak for the state. In this situation you want them to see and hear how prepared you are so that you can increase your chances of a dismissal or a reduction.

Now go out there and fight with a winning strategy in place. Set your cases for trial and announce “Ready” on trial day!

Fate whispers to the warrior, you cannot withstand the storm,
the warrior whispers back, I am the storm!”

Every case a criminal defense attorney takes on has the potential to become a gunfight, with the dramatic showdown coming to a head in front of a judge and jury. The defendant faces significant consequences if his attorney has not properly prepared, and unfortunately, this is the reality in many criminal defense cases.

I’m referring to the gross under-utilization of private investigators to objectively review and investigate the facts of the case for the defense.

According to an online article in the Journal Sentinel, dozens of Wisconsin defense attorneys routinely worked hundreds of felony cases without ever engaging a private investigator. Seneca Malone was the defendant in the case example, but the article makes it clear that not using private investigators was a common practice. You can read the full article here: shorturl.at/bkT45.

There is no study that measures how many Texas attorneys regularly use private investigators, but a consensus amongst my colleagues put the number at about 35%. This is despite guidance published in the State Bar of Texas’ “Performance Guidelines for Non-Capital Criminal Defense Representation,” which states:

Counsel has a duty to conduct, or secure the resources to conduct, an independent case review and investigation as promptly as possible. Counsel should, regardless of the client’s wish to admit guilt, determine whether the charges and disposition are factually and legally correct and inform the client of potential defenses to the charges. Counsel should explore all avenues leading to facts relevant both to the merits and to the penalty in the event of a con­vic­tion. In no case should counsel delay a punishment phase investigation based on the belief that the client will be found not guilty or that the charges against the client will otherwise be dismissed.

Considering that 100% of all DAs use investigators, this guidance is particularly meaningful.

Of course, there is Gideon v. Wainwright, 372 U.S. 335 (1963), the landmark case in which the SCOTUS determined it was unfair for an unrepresented defendant to face the combined forces of the prosecutor’s office and police investigators without assistance—which includes independent investigators.

At issue in every case is the quality of investigations conducted by law enforcement and/or the DA’s office. In a nutshell, a LE investigation should accomplish the following:

• Determine if a crime has been committed;
• Identify the person(s) who committed the crime;
• Gather evidence & factually record the details regarding the crime;
• Develop PC to arrest the perpetrator of the crime & make an arrest; and
• Prepare the reports & file the case.

These are different from what the DA’s investigator will focus on:

• Review the results of the LE investigation and the five things listed above;
• Investigate the strength of the case and the ability to prove the facts of the case as seen by LE;
• Investigate the credibility of the officers, witnesses & victims;
• Determine whether LE conducted their investigation as per the law & Constitution;
• Investigate & determine how to charge the case;
• Investigate the state’s role in protecting society & seeking justice for the victim; and
• Investigate the defendant’s background for the punishment phase to maximize the penalty.

As a certified law enforcement instructor, I know that the education and training for police investigators is not standardized. Sure, there are plenty of TCOLE approved courses that cover investigative topics, but the frequency and sophistication of the training investigators receive is dependent on their agency’s budget, training opportunities, manpower requirements, and, to a large degree, their own initiative.

Even if investigators are well-trained, there is still the question of how much actual experience they have with a given offense. How long has the officer been an investigator? What resources did he/she have at the time? How many other cases was the officer working? Was the investigator solo, or did they have a senior/junior partner? There are many good criminal investigators out there, but if a sub-par investigator’s work has never been properly challenged, the defense will never know the difference.

As a former criminal investigator, I admire and respect law enforcement; they have a tough job to do. If I were to suggest, however, that police always conduct objective, professional, and thorough investigations, I would be laughed out of the room. They are human, and therefore make their fair share of mistakes, made possible by a lack of training, experience, or supervision, tunnel-vision, or some other variable. Worse, they are agents of a system that hates to admit mistakes, which makes it difficult for many investigators to concede their own errors. Knowing this, why on earth would any attorney try a case without having an independent investigator?

In my own experience, I have discovered actionable evidence that the state did not properly investigate in almost every case, police manipulation of witness statements, witnesses who committed perjury, relationships between actors that police failed to explore, close analysis of crime scenes to disprove the state’s theory of the crime—just to name a few. These are issues that most attorneys do not have the training, experience, or time to discover on their own.

According to the National Registry of Exonerations, in 86 death-row cases, the causes of wrongful conviction varied:

52%—Eyewitness Error
20%—Government Misconduct
12%—Snitch
10%—Junk Science
9%—False Confession
38%—Other

The statistics are overlapping, as more than one cause may have contributed to the conviction. Notice, however, that other than junk science, there is no scientific test to guard against the rest of these causes. Ergo, the vast majority of wrongful convictions are not due to bad science, but flawed investigations. It also proves that law enforcement can’t be relied upon to go the extra mile, and that’s where independent investigators come in to tell the rest of the story.

An attorney who has never used private investigators may not realize how invaluable they can be, whether at trial, or even better, by ensuring the client never goes to trial. Even in cases where a defendant’s guilt is clear, independent investigation can provide strong support for mitigation in the punishment phase.

As part of the defense team, investigators assist in the evaluation, preparation, and presentation of a defense. That includes any or all of the following:

• Conduct an investigation to uncover reasonable doubt;
• Determine the correctness of the charges by validating/in­validating elements of the offense;
• Conduct a complete initial defendant interview (this should not be done by the attorney);
• Identify and classify prosecution and defense witnesses;
• Identify deficiencies/strengths in witness credibility;
• Locate and interview witnesses;
• Confirm or dismiss an alibi;
• Develop alternative suspects;
• Identify preliminary theory of defense;
• Prepare a timeline of major events;
• Crime-scene examination and analysis;
• Call upon experts; and
• Focus on specific issues.

Let’s be honest, though—it often comes down to money, doesn’t it? Cost is the number-one reason cited by attorneys for why they didn’t hire an investigator. It’s true: Good investigators aren’t cheap, but neither are good lawyers, and the reality is that in the case of a defendant who can’t afford an investigator, the state is responsible for ensuring they have access to independent investigation. In court-appointed cases, no one gets paid what they are worth, but with good record-keeping, attorneys and investigators can still make a living.

In the end, the decision to hire an investigator comes down to a defense attorney’s duty to provide the best possible defense for their client. With that in mind, and given the verbiage in the performance guidelines, failure to conduct an independent investigation is a strong argument in an IAC claim. Every bad case generally has the same two things in common—a flawed law enforcement investigation and a defense attorney who failed to vigorously challenge it.

Do your clients a favor and find a really good private investigator you can count on. Check their background, ask for referrals, talk to other attorneys who have used them, and take the time to understand their capabilities. Not all private investigators are created equal, however, so here are a few things to look for and expect:

• LE Experience—Ideally you want someone familiar with the way law enforcement personnel operate. Rules, regulations, policies, limitations, practices, mores, mindset, etc.;
• Investigative Experience—You want an investigator who knows how an investigative task should be conducted and how LE conducts this task (interview & interrogation, crime-scene response & processing, report writing, chain of command, chain of custody, use of LE tools, search warrants, arrest warrants, tactical operations & tactics, etc., etc.);
• Ability to use their experience and tactics like LE does, but in the defense investigation role;
• Ability to communicate this knowledge to the defense attorney;
• Ability to subpoena witnesses & records as needed; and
• Ability to help provide ideas for defense strategy.

You should ideally have more than one investigator, because you may need different specialties, like cyber-forensics or accounting. Do a few cases with the ones you like, then make it a habit. Without a doubt, you’ll get better results for your clients, and you will have satisfied both the spirit and intent of your duty.

Daryl Parker received help on this with Billy Meeks, J. D. Spielman, and Trent Forbes, partners in Blackfish Investigations (www.blackfishpi.com), a full-service private investigation firm headquartered in Collin County.