Monthly archive

June 2018

June 2018 SDR – Voice for the Defense Vol. 47, No. 5

Voice for the Defense Volume 47, No. 5 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

        1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

        2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

        3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Sessions v. Dimaya, No. 15-1498, 2018 U.S. LEXIS 2497 (U.S. April 17, 2018)

        Under 8 U.S.C. § 1227(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), deportation for an alien who commits an “aggravated felony” after entering the U.S. is a virtual certainty, and the alien becomes deportable and is ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3) & (b)(1)(C), a form of discretionary relief allowing some deportable aliens to remain in the country.

        An “aggravated felony” is an offense under 8 U.S.C. § 1101(a)(43), one of which is a “a crime of violence” under 8 U.S.C. § 1101(a)(43)(F), which under 18 U.S.C. § 16 covers: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another (elements clause); or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used while committing the offense [residual clause, § 16(b)].

        To decide whether a person’s conviction “falls within the ambit” of the residual clause, courts use the categorical approach per Leocal v. Ashcroft, 543 U.S. 1, 7 (2004), which focuses on the nature of the offense, whether “the ordinary case” of an offense poses the requisite risk of the residual clause.

        In Johnson v. United States, 135 S.Ct. 2551 (2016), the SCOTUS held unconstitutional part of the definition of “violent felony” in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which re­quires a 15-year mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has three prior convictions for a “violent felony,” defined as a crime punishable by prison for a term exceeding one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

        The ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tied the judicial assessment of risk” to a hypothesis about the crime’s “ordinary case.”

        The prohibition of vagueness in criminal statutes is an essential of due process, required by both ordinary notions of fair play and the settled rules of law.

        Under Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972), and Kolender v. Lawson, 461 U.S. 352, 357–358 (1983), the void-for-vagueness doctrine guarantees that ordinary people have “fair notice” of the conduct a statute proscribes. It guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges. It is a corollary of the separation of powers, which requires Congress and not the executive or judicial branch to define what conduct is sanctionable.

        18 U.S.C. § 16(b) violates the Due Process Clause due to unpredictability and arbitrariness where it requires a court to picture the kind of conduct that the crime involved in the ordinary case and to judge whether that abstraction presented some not-well-specified-yet-sufficiently-large degree of risk.               

Wilson v. Sellers, No. 16-6855, 2018 U.S. LEXIS 2496 (U.S. April 17, 2018)

        A federal court must “look through” a summary (unexplained) decision of a state court (i.e., look through down the chain to the decision that provided reasoning) to determine the reasoning of the state court when considering a petition under 28 U.S.C. § 2254. It should presume that the unexplained decision of the higher state court adopted the same reasoning of the lower state court.

        A State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

United States Court of Appeals for the Fifth Circuit

United States v. Garcia, No. 17-10862, 2018 U.S. App. LEXIS 8779 (5th Cir. April 6, 2018) (designated for publication)

        Under United States v. Wyly, 193 F.3d 289, 299 (5th Cir. 1999), overturning a jury verdict for prosecutorial misconduct is appropriate only when taken in the context of the entire case, the prosecutor’s comments prejudicially affected the substantial rights of the defendant. The court considers: (1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.

        Prosecutor arguments that suggests that acquittal would require belief in a vast government conspiracy are improper.

        It is improper for a prosecutor to tell the jury that law enforcement witnesses should be believed simply because they were doing their job.

        Under Fed. Rule Evid. 803(8), a warrant of removal is properly admitted under the public records exception to the hearsay doctrine.

        A warrant of removal is nontestimonial and not subject to confrontation because they are kept in the ordinary course of business not produced specifically for establishing or proving some fact at trial.

        To establish a Brady violation, a defendant must show that the evidence was: (1) favorable to him; (2) suppressed by the prosecution; and (3) material.

        Regardless of whether the evidence was material or exculpatory, when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is lack of reasonable diligence, the defendant has no Brady claim.

Editor’s Note: The AUSA said during closing arguments, “It’s no different, as we talked about in testimony, when after September 11th, this department was created . . . We don’t require that the pilot then come through the plane, or the flight attendant, and recheck the boarding pass again, rescan everybody for any weapons, because we rely on the system in our country that people do their job because they care and that’s what they do.” A Mexican national named Garcia illegally crossing the border after being deported for a crime not related to terrorism has nothing to do with 9/11, an attack on one of our financial centers that killed over 3,000 Americans. This argument clearly was meant to prejudice the appellant by drawing a false analogy between mass-murdering terrorists who caused thousands of deaths and an undocumented alien. I disagree that mentioning 9/11 was “reasonable” regardless of the analogy to “TSA security,” an agency rife with incompetence. This AUSA should have just done this since during closing:

United States v. Maturino, No. 17-10251, 2018 U.S. App. LEXIS 9177 (5th Cir. April 12, 2018) (designated for publication)

        Under 18 U.S.C. § 921(a)(3)(D), firearm means “any destructive device.” Under 18 U.S.C. § 921(a)(4)(A)(ii), a grenade is a type of “destructive device.”

        Under U.S.S.G. § 2K2.1(b)(1)(D), an 8-level enhancement is allowed if the offense involved 100 to 199 firearms.

        Under U.S.S.G. § 2K2.1 Note 5, to calculate the number of firearms or explosive devices under § 2K2.1(b)(1), the court counts those that were unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed. If a defendant attempts to obtain an explosive including the M433 40mm high-explosive grenade, even if it is a dud, it counts under the U.S.S.G. as though it were live.

        U.S.S.G. commentary that interprets or explains a guideline is authoritative.

Editor’s note: The M433 40mm grenade is not the type that is thrown after a safety pin is pulled. It is fired from a grenade launcher like the M203 that is attached beneath a rifle like the M16A2 (like the one pictured here). I am a staunch defender of the Second Amendment, but my defense is limited to revolvers, semiautomatic pistols, shotguns, bolt-action rifles, and semiautomatic rifles. Explosive ordnances like the M433 40mm grenade are restricted for good reasons and do not belong in general circulation.

United States v. Mendez, No. 16-41057, 2018 U.S. App. LEXIS 7498 (5th Cir. March 23, 2018) (designated for publication)

        On review of an MTS, factual findings are reviewed for clear error and legal conclusions de novo. A factual finding is clearly erroneous if the court is left with “a definite and firm conviction that a mistake has been committed.” Voluntariness of consent is a factual inquiry that is reviewed for clear error. When the district court hears live testimony, review is particularly deferential. The appellate court must view the evidence most favorably to the party prevailing below except where the view is inconsistent with the trial court’s findings or is clearly erroneous considering all the evidence. The district court’s ruling should be upheld if there is any reasonable view of the evidence to support it. Evidence introduced at a suppression hearing is viewed in the light most favorable to the prevailing party.

        Although error not brought to the district court’s attention is subject to plain error review under Fed. Rule Crim. Proc. 52(b), under Fed. Rule Crim. Proc. 51(a), taking an exception to an adverse ruling like the denial of an MTS is not necessary to preserve the issue for appellate review.

        If a defendant fails to identify the search as a source of later statements, independent of the arrest, review of the separate claim is for plain error.

        Error raised for the first time on direct appeal that could have been (but was not) raised in the district court is reviewed for plain error, which requires showing: (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Error is plain only if it is so clear or obvious that the trial judge and prosecutor were derelict in countenancing it even absent the defendant’s timely assistance in detecting it. Establishing plain error requires a showing that the error was clear under the law in place at the time of trial. Plain error is not usually found if the court has not previously addressed the issue.

        Under Segura v. United States, 468 U.S. 796, 804 (1984), the exclusionary rule reaches evidence seized as a direct result of the violation and evidence indirectly derived from it, the fruit of the poisonous tree.

        When considering whether evidence should be suppressed as the fruit of the poisonous tree, under Nix v. Williams, 467 U.S. 431, 443–444 (1984), the exclusionary rule is subject to three safety-valve doctrines: (1) independent source, (2) inevitable dis­covery, and (3) attenuation.

        Under Brown v. Illinois, 422 U.S. 590, 599 (1975), the attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence. Evidence may be sufficiently attenuated from the Fourth Amendment violation even where the violation is a but-for cause of the discovery of the evidence if the evidence is obtained by means sufficiently distinguishable to be purged of the primary taint.

        Under Kaupp v. Texas, 538 U.S. 626, 633 (2003), the factors to be considered regarding whether custodial statements are the fruit of an unlawful arrest are: (1) provision of Miranda warnings (government bears the burden of proving voluntariness by a preponderance of the evidence: statement is voluntary if under the totality of the circumstances, the statement is the product of the defendant’s free and rational choice, and cannot be involuntary in the absence of coercive police activity); (2) temporal proximity between the unlawful arrest and the challenged statements (elapse time is not determinative. Where little time has elapsed, the determination turns on the conditions of custody; a shorter lapse of time is tolerated when circumstances of the detention are less severe); (3) intervening circumstances (development of independently procured probable cause following an illegal arrest is a critical factor attenuating the taint of the initial illegal arrest); and (4) purpose and flagrancy of the official misconduct (Suppression applied to deter police misconduct. To be purposeful or flagrant, must be more than negligent or merely the absence of probable cause. Misconduct is not “flagrant” just because officers violated the Fourth Amendment. Improper purpose or conscious wrongdoing is required, not merely advance planning).

United States v. Perales, No. 17-40005, 2018 U.S. App. LEXIS 8112 (5th Cir. March 30, 2018) (designated for publication)

        On review of an MTS, factual findings are reviewed for clear error and legal conclusions de novo. A factual finding is clearly erroneous if the court is left with “a definite and firm conviction that a mistake has been committed.” Voluntariness of consent is a factual inquiry that is reviewed for clear error. When the district court hears live testimony, review is particularly deferential. The appellate court must view the evidence most favorably to the party prevailing below except where the view is inconsistent with the trial court’s findings or is clearly erroneous considering all the evidence. The district court’s ruling should be upheld if there is any reasonable view of the evidence to support it. Evidence introduced at a suppression hearing is viewed in the light most favorable to the prevailing party.

        Under Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), a search conducted by consent is excepted from the Fourth Amend­ment’s warrant and probable cause requirements. When the Government asserts that no search warrant was required be­cause of consent, the government must prove by a preponderance of the evidence that consent was freely and voluntarily given. Whether consent was voluntary or the product of duress or coercion (express or implied) is a question of fact to be determined from the totality of all the circumstances.

        Under United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993), the factors used to determine whether a defendant vol­untarily consented to a search are the: (1) voluntariness of the defendant’s custodial status; (2) presence of coercive police pro­cedures; (3) extent and level of the defendant’s cooperation with the police; (4) defendant’s awareness of his right to refuse consent; (5) defendant’s education and intelligence; and (6) defendant’s belief that no incriminating evidence will be found. All factors are relevant, and no single factor is dispositive.

United States v. Sealed Appellee, No. 17-50451, 2018 U.S. App. LEXIS 8979 (5th Cir. April 10, 2018) (designated for publication)

        Absent a statutory or constitutional exception, a district court cannot depart below a mandatory minimum sentence.

        The judgment of sentence is vacated, and the case is remanded for resentencing.

Texas Court of Criminal Appeals

Fowler v. State, No. PD-0343-17, 2018 Tex. Crim. App. LEXIS 124 (Tex. Crim. App. April 18, 2018) (designated for publication)

        Under Tex. Rule Evid. 901, to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Authenticity may be established with evidence of distinctive characteristics and the like, which include the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. Conclusive proof of authenticity before allowing admission of disputed evidence is not required. Rule 901 merely requires some evidence sufficient to support a finding that evidence in question is what the proponent claims.

        The proponent of a video may sufficiently prove its authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device.

        Under the “liberal standard of admissibility,” it is the jury’s role ultimately to determine whether an item of evidence is indeed what its proponent claims. The trial court need only make the preliminary determination that the proponent of the item has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is authentic.

        Although the most common way to authenticate a video is through the testimony of a witness with personal knowledge who observed the scene, that is not the only way. The video may also be authenticated by the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

        Video recordings without audio are treated as photographs and are properly authenticated when it can be proved that the images accurately represent the scene in question and are relevant to a disputed issue.

Editor’s Note: What is the “zone of reasonable disagreement” is often in the eye of the beholder.

Gonzalez v. State, No. PD-0181-17, 2018 Tex. Crim. App. LEXIS 121 (Tex. Crim. App. April 11, 2018) (designated for publication)

        Review of a trial court’s decision to admit or exclude evidence, as well as its decision as to whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice, is under an abuse of discretion standard. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. An appellate court may not substitute its decision for that of the trial court.

        Relevant evidence is generally admissible. It is evidence that has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. Evidence does not need to prove or disprove a fact by itself to be relevant. It is sufficient if the evidence provides a small nudge toward proving or disproving a fact of consequence.

        Evidence of a defendant’s “other crimes, wrongs, or acts” is not admissible to prove the character of a person to show that he acted in conformity with that character. Evidence of such prior bad acts may be admissible if it has relevance apart from its tendency to prove character conformity. If evidence of prior bad acts is not relevant apart from supporting an inference of character conformity, it is inadmissible under Tex. Rule Evid. Rule 404(b). If the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the evidence is inadmissible under Tex. Rule Evid. 403.

        Evidence of drug-use is irrelevant if it does not apply to a “fact of consequence.” At some point, evidence of drug use could be so far removed in time from the commission of the offense that it would become irrelevant because it could not support any inference of intoxication during the commission of the offense.

        Under Gigliobianco v. State, 210 S.W.3d 637, 641–642 (Tex. Crim. App. 2006), in determining the admissibility of uncharged or collateral evidence, the trial court must examine and “balance” these factors: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any ten­dency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evi­dence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evi­dence already admitted.

        Evidence is unfairly prejudicial if it has the capacity to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged.

        Nonconstitutional errors that are harmful require reversal only if they affect Appellant’s substantial rights, which means that error is reversible only when it has a substantial and injurious effect or influence in determine the jury’s verdict. If the appellate court has fair assurance from an examination of the entire record that the error did not influence the jury, or had but a slight effect, we will not overturn the conviction. In making this determination, an appellate court must consider: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence sup­porting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained of error.

Texas Courts of Appeals

State v. Davis, No. 05-15-00232-CR, 2018 Tex. App. LEXIS 2305 (Tex. App. Dallas March 29, 2018) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 38.23(a), no evidence ob­tained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the defendant on the trial of any criminal case. Under Tex. Code Crim. Proc. Art. 38.23(b), it is an exception to 38.23(a) that the evidence was obtained by a law enforcement officer acting in objective good-faith reliance upon a warrant issued by a neutral magistrate based upon probable cause.

        Under McClintock v. State, No. PD-1641-15, 2017 Tex. Crim. App. LEXIS 291 (Tex. Crim. App. March 22, 2017) (designated for publication), Art. 38.23(b) applies when the prior law enforcement conduct that uncovered the evidence used in the affidavit for the warrant is “close enough to the line of validity that an ob­jectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct.” The dog-sniff, which occurred at the front door of McClintock’s single-dwelling upstairs apartment, was an unconstitutional invasion of the curtilage. However, at the time the officers used the trained canine to sniff for drugs at the door of the appellant’s apartment, the constitutionality of that conduct remained “close enough to the line of validity” for the court to conclude an objectively rea­son­able officer preparing a warrant affidavit would have believed the information supporting the warrant application was not tainted by unconstitutional conduct.

        Under Florida v. Jardines, 569 U.S. 1 (2013), curtilage is the area around the home to which the activity of home life extends, and a person has a reasonable expectation of privacy in the home and its curtilage. Only when the drug-sniff is conducted during a warrantless invasion of the curtilage does it constitute an unconstitutional search for Fourth Amendment purposes. The SCOTUS did not make this distinction “crystal clear” until Jardines.

Ex parte Jones, No. 12-17-00346-CR, 2018 Tex. App. LEXIS 2718 (Tex. App. Houston [1st Dist.] April 18, 2018) (designated for publication)

        The free speech protections of the First Amendment are implicated when the government seeks to regulate protected speech or expressive conduct. It is the obligation of the person desiring to engage in allegedly expressive conduct to demonstrate that the First Amendment applies.

        Under Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014), photographs and visual recordings are inherently expressive. There is no need to conduct a case-specific inquiry into whether these forms of expression convey a particularized message. A person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings.

        Because photographs and visual recordings described by Tex. Penal Code § 21.16(b) (“revenge porn statute”) are inherently expressive and the First Amendment applies to the distribution of such media in the same way it applies to their creation, the right to freedom of speech is implicated.

        Under Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994), laws that distinguish favored speech from disfavored speech based on the ideas or views expressed are content-based. Laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are content-neutral.

        Under Ex parte Lo, 424 S.W.3d 10, 15 fn.12 (Tex. Crim. App. 2013), if it is necessary to look at the content of the speech in question to decide if the speaker violated the law, the regulation is content-based.

        Content-based laws that suppress, disadvantage, or impose differential burdens on speech are reviewed under a strict-scrutiny standard. Content-neutral laws that govern expression but do not seek to restrict its content are subject to intermediate scrutiny.

        Under Sorrell v. IMS Health Inc., 564 U.S. 552, 571 (2011), content-based regulations are presumptively invalid, and it is rare that a regulation restricting speech because of its content will ever be permissible. Under strict scrutiny, a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest.

        Under United States v. Stevens, 559 U.S. 460, 468–469 (2010), unprotected speech is obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.

        Under Miller v. California, 413 U.S. 15, 23 (1973), and Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 576 (2002), the issue of whether a matter is obscene and constitutes unprotected speech has been a determination to be made initially by the trier of fact. Tex. Penal Code § 21.16 does not include language that would permit a trier of fact to determine that the visual material disclosed is obscene.

        Tex. Penal Code § 21.16(b) is an invalid content-based restriction and overbroad because it violates rights of too many persons by restricting more speech than the Constitution permits. To the extent that it proscribes the disclosure of visual material, it is unconstitutional on its face in violation of the Free Speech clause of the First Amendment.

Joyner v. State, No. 01-16-00775-CR, 2018 Tex. App. LEXIS 2517 (Tex. App. Houston [1st Dist.] April 10, 2018) (designated for publication)

        Under Tex. Rule App. Proc. 33.1, to raise error on appellate review, the record must show that the: (1) complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (2) trial court ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule and the complaining party objected to the refusal.

        Under Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011), a complaint must be clear enough to provide the judge and the opposing party an opportunity to address and, if necessary, correct the purported error.

        Under Bitterman v. State, 180 S.W.3d 139, 144 (Tex. Crim. App. 2005), to preserve a complaint that the State breached a plea agreement, a defendant must bring the alleged breach to the trial court’s attention with a timely request, objection, or motion and seek a ruling on the issue. One may preserve a breach-of-the-plea-agreement argument by bringing the issue to the trial court’s attention as soon as the error can be cured either by objecting at the time of the breach or moving for a new trial to com­pel specific performance of the plea agreement.

        Under Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), there are three categories of rights: (1) those that are mandatorily enforced, (2) rights subject to waiver, and (3) rights subject to forfeiture. If an alleged error falls into category 1 or 2, it may be raised for the first time on appeal. All other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).

        A claim of error constituting a purported breach of a plea agreement must be preserved for appellate review.

        A claim of prosecutorial misconduct must be preserved for appellate review.

Editor’s Note: make those objections!

Marcopoulos v. State, No. 01-15-00317-CR, 2018 Tex. App. LEXIS 2351 (Tex. App. Houston [1st Dist.] April 3, 2018) (designated for publication)

        Under State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013), a trial court’s ruling on an MTS is reviewed under a bifurcated standard: Provided the record supports the trial court’s determinations of historical facts, and mixed questions of law and fact that rely on credibility, those determinations almost require total deference. The trial court’s application of law to the facts are reviewed de novo.

        If the trial court does not make FFCL, the reviewing court upholds the trial court’s ruling on any theory of law applicable to the case and presumes the court made implicit findings in support of its ruling if the record supports those findings.

        Under Arizona v. Gant, 556 U.S. 332, 338 (2009), the search-incident-to-arrest exception to the warrant requirement derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. It allows officers to: (1) remove weapons the arrestee might seek to use and to prevent the concealment or destruction of evidence; and (2) search a de­fendant, or areas within the defendant’s immediate control, to prevent the concealment or destruction of evidence. It places a temporal and a spatial limitation on searches incident to arrest, excusing compliance with the warrant requirement only when the search is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. The area “within his immediate control” means the area from within which he might gain possession of a weapon or destructible evidence. Neither the possibility of access nor the likelihood of discovering offense-related evidence authorizes the search of a defendant’s vehicle where the defendant was already arrested.

        Under Gant, officers may order out the driver and passengers to perform a “pat-down” (Terry pat-down) upon reasonable suspicion that they may be armed and dangerous and conduct a search of the passenger compartment including any containers per a custodial arrest. But even when they conduct a search incident to a lawful custodial arrest, officers cannot search the vehicle when the arrestee is secured and not within reaching distance of the passenger compartment. Nor may officers pat down the driver or passengers without reasonable suspicion that they may be armed and dangerous.

        Under Colorado v. Bertine, 479 U.S. 367, 371 (1987), and Florida v. Wells, 495 U.S. 1, 4 (1990), inventory searches serve to protect an owner’s property while it is in the custody of the police to insure against claims of lost, stolen, or vandalized prop­erty, and to guard the police from danger. The inventory-search policy should be designed to produce an inventory, and standardized criteria must regulate the opening of containers found during the search. Nothing prohibits the exercise of police discretion so long as that discretion is exercised according to stan­dard criteria and based on something other than suspicion of evidence of criminal activity. The inventory search must not deviate from department policy and must not be a ruse for a general rummaging to discover incriminating evidence, a burden that the State may satisfy by showing that an inventory policy existed and was followed.

        Under Holmes v. State, 323 S.W.3d 163, 174 (Tex. Crim. App. 2010), when a trial court’s erroneous ruling on an MTS can contribute to the State’s leverage in the plea-bargaining process, harm is established.

State v. Martinez, No. 13-16-00659-CR, 2018 Tex. App. LEXIS 2590 (Tex. App. Corpus Christi April 12, 2018) (designated for publication)

        Under Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007), Texas has no pretrial procedure enabling a criminal defendant to challenge, or a trial court to determine, the sufficiency of the evidence on an element of the charged offense. Pretrial motions cannot be used to argue that the state cannot prove an element of the crime. A pretrial proceeding should not be a “‘mini-trial” on the sufficiency of the evidence.

        Under Crocker v. State, 573 S.W.2d 190, 204 (Tex. Crim. App. 1978), an indictment returned by a legally constituted unbiased grand jury, if valid on its face, is sufficient to mandate trial of the charge on the merits. A defendant may move to quash an indictment based on defects contained on the face of the indictment, not by evidence presented at a pretrial hearing.

Quezada v. State, No. 08-14-00273-CR, 2018 Tex. App. LEXIS 1949 (Tex. App. El Paso March 15, 2018) (designated for publication)

        Under Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003), and Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002), the trial court is given wide discretion over the jury selection process and may impose reasonable limits on the questions asked. The trial court may determine the propriety of certain questions, and its decision will not be disturbed absent an abuse of discretion. A trial court abuses its discretion when it disallows a proper question about a proper area of inquiry. A question is proper if it seeks to discover a juror’s views on an issue applicable to the case.

        A defendant is eligible for community supervision if before trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.

        Under Tex. Code Crim. Proc. Art. 28.01, a trial court may hold a pretrial hearing and mandates a defendant raise all preliminary matters at the hearing if the trial court exercises its dis­cretion to hold one. Any preliminary matters not raised or filed seven days before the hearing cannot be later raised or filed except by permission of the trial court for good cause shown. Preliminary matters include all pleadings of the defendant, and under Tex. Code Crim. Proc. Art. 27.02, pleadings of a defendant include an application for probation.

        A defendant has the right to question venire members to expose interest or partiality to use peremptory strikes intelligently. If counsel is unable to determine such material information, the defendant is unable to exercise his challenges and peremptory strikes intelligently and his ability to select an impartial jury is hindered.

        Under Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014), not all instances of improperly limiting defense counsel’s voir dire is constitutional error. The TCCA held that the right to counsel was not necessarily violated by impediments imposed on counsel’s ability to use peremptory challenges.

        Under Tex. Rule App. Proc. 44.2, under the harmless-error standard, an appellate court must reverse the judgment unless it can determine beyond a reasonable doubt that the error did not contribute to the result.

Editor’s Note: The district clerk in this case refused to file the application for probation because “she understood the application was to have been submitted at the Article 28.01 pretrial conference. She directed counsel to take the matter up with the trial court because she was busy going over the venire absences.” The job of a court clerk is to file pleadings, especially those submitted by licensed attorneys, not to check the pleadings for substance or timing as this clerk did. The duties and powers of district clerks are clearly set forth in Tex. Gov. Code § 51.303, Duties and Powers (of district clerks):

   (a)   The clerk of a district court has custody of and shall carefully maintain and arrange the records relating to or lawfully deposited in the clerk’s office.

   (b)   The clerk of a district court shall:

         (1) record the acts and proceedings of the court;

         (2) enter all judgments of the court under the direction of the judge; and

         (3) record all executions issued and the returns on the executions.

   (c)   The district clerk shall keep an index of the parties to all suits filed in the court. The index must list the parties alphabetically using their full names and must be cross-referenced to the other parties to the suit. In addition, a reference must be made opposite each name to the minutes on which is entered the judgment in the case.

   (d)   Repealed by Acts 1995, 74th Leg., ch. 641, Sec. 1.05, eff. Sept. 1, 1995.

   (e)   The clerk of a district court may:

         (1) take the depositions of witnesses; and

         (2) perform other duties imposed on the clerk by law.

   (f)    In addition to the other powers and duties of this section, a district clerk shall accept applications for protective orders under Chapter 71, Family Code.

Nothing in Tex. Gov. Code § 51.303 authorizes a district clerk to act as a “gatekeeper” to the substance or timing of a pleading. Nor is a clerk authorized to claim that she is “so busy” that she cannot file a pleading. Clerks need to do their jobs and leave the lawyering to the lawyers. Lawyers have enough to worry about, including ferreting out bias in the venire panel.

Simpson v. State, No. 01-17-00158-CR, 2018 Tex. App. LEXIS 2513 (Tex. App. Houston [1st Dist.] April 10, 2018) (designated for publication)

        Under Tex. Penal Code § 19.02(d), at the punishment stage, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the evidence raises the issue of sudden passion, during either phase of trial, the trial court must submit the issue in the jury charge if the defendant requests it

        Under Tex. Code Crim. Proc. Art. 36.14, the trial court is re­quired to submit instructions only on “the law applicable to the case.” Under Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011), an unrequested defensive issue is not the law applicable to the case.

        Sudden passion is a defensive issue. For it to become the law applicable to the case, a defendant must request an instruction on it or object to its absence.

        A trial court has no duty to sua sponte instruct the jury on an unrequested defensive issue.

Editor’s Note: The opinion touches on the standard of review, but its explanation is incomplete. The standard of review for jury-charge issues is:

  • Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh.), and Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), if the defendant preserved jury-charge error, the appellate court will reverse if the defendant suffered “some harm.” Neither the State nor the defendant bears the burden of proving harm; the court of appeals must review the entire record to determine if the defendant suffered harm. To determine whether a defendant suffered “some harm,” a reviewing court considers: (1) the entire jury charge; (2) the arguments of counsel; (3) the entirety of the evidence; and (4) other relevant factors present in the record, including voir dire and opening statements. “Some harm” requires a finding that the defendant “suffered some actual, rather than merely theoretical, harm from the error.”
  • Under Almanza, 686 S.W.2d at 171, if the defendant did not preserve jury-charge error, review is for egregious harm, which requires the appellate court to consider: (1) the entire jury charge, (2) the state of the evidence, (3) closing arguments of the parties, and (4) any other relevant information in the record. Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.
  • Under Tex. Penal Code § 19.02(d), at the punishment stage, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the evidence raises the issue of sudden passion, during either phase of trial, the trial court must submit the issue in the jury charge if the defendant requests it
  • Under Tex. Code Crim. Proc. Art. 36.14, the trial court is required to submit instructions only on “the law applicable to the case.” Under Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011), an unrequested defensive issue is not the law applicable to the case.
  • Sudden passion is a defensive issue. For it to become the law applicable to the case, a defendant must request an instruction on it or object to its absence.
  • A trial court has no duty to sua sponte instruct the jury on an unrequested defensive issue.
  • Judgment and sentence affirmed.

Spiers v. State, No. 14-16-00892-CR, 2018 Tex. App. LEXIS 1744 (Tex. App. Houston [14th Dist.] March 8, 2018) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 38.14, a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

        Under Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011), when reviewing the sufficiency of the nonaccomplice evidence under Art. 38.14, the reviewing court must decide whether the inculpatory evidence tends to connect the defendant to the commission of the offense. The corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt by itself but must link the defendant in some way to the commission of the crime and show that rational jurors could conclude that this evidence sufficiently tended to connect the defendant to the offense.

        There is no set amount of nonaccomplice corroboration evidence that is required, and each case must be judged on its own facts. To determine if the corroboration evidence is sufficient, the court eliminates the accomplice testimony and examines the remaining record to see if there is any evidence that tends to connect the defendant with the crime. The evidence is reviewed in the light most favorable to the jury’s verdict. When there are conflicting views of the evidence (that tends to connect the defendant to the offense and does not), the appellate court defers to the jury’s resolution. The appellate court may not take a “divide and conquer” approach but must consider the combined force of all the nonaccomplice evidence.

        Evidence of the defendant’s motive and opportunity is insufficient on its own to corroborate accomplice testimony, but motive and opportunity may be considered with other evidence that tends to connect the defendant to the crime.

        Evidence that the defendant was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the defendant to the crime to furnish sufficient corroboration to support a conviction. Even circumstances that appear insignificant may amount to sufficient evidence of corroboration.

        Under Hacker v. State, 389 S.W.3d 860, 870 (Tex. Crim. App. 2013), although insufficient by itself, motive is a significant circumstance indicating guilt and can be the “glue that holds the entire case together.”

        Under Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997), evidence that a defendant was in the company of the accomplice at or near the time or place of a crime is proper corroborating evidence to support a conviction.

Voda v. State, No. 14-16-00857-CR, 2018 Tex. App. LEXIS 2133 (Tex. App. Houston [14th Dist.] March 27, 2018) (designated for publication)

        Under Barker v. Wingo, 407 U.S. 514, 530 (1972), in addressing a speedy-trial claim, a court must balance the following: (1) the length of delay (12 months between the time of the accusation and the time of trial is presumptively prejudicial); (2) the State’s reason for the delay (deliberate attempts by the State to delay the trial to hamper the defense are weighed heavily against the State. Neutral reason such as negligence or overcrowded courts are weighted less heavily but should be considered since the ultimate responsibility for such circumstances rests with the State rather than with the defendant. When the record is silent regarding the reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the de­fense nor a valid reason for the delay); (3) defendant’s assertion of his right to a speedy trial (although the defendant has no duty to bring himself to trial, he does have the responsibility to assert his right to a speedy trial); and (4) prejudice to the defendant because of the length of delay (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) most importantly, limiting the possibility that the defense will be impaired.

        Under Doggett v. U.S., 505 U.S. 647, 651–652 (1992), before a court engages in an analysis of each Barker factor, the defendant must “first make a threshold showing that ‘the interval between accusation and trial has crossed the threshold dividing ordinary from presumptively prejudicial’ delay.” Affirmative proof of prejudice is not essential to every speedy-trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify, but the presumption of prejudice to a defendant’s ability to defend himself is extenuated by the defendant’s acquiescence in some or all the delay.

Traveling on a Known Drug Corridor: Who Knew?

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.


1. See (last visited 3/15/18).

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

3. See [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.

Political Trends, Sentencing, Classification, Designation & Program Practice in Federal Prison

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

* Bureau of Justice Statistics (BJS) National Prisoner Statistics Report—Jan. 10, 2018.

Appear Weak When You Are Strong

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!”

Don’t Bring a Knife to a Gunfight

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:

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
10%—Junk Science
9%—False Confession

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 (, a full-service private investigation firm headquartered in Collin County.

June 2018 Complete Issue – PDF Download



21 | Traveling on a Known Drug Corridor: Who Knew? – By Todd Duncan
27 | Political Trends, Sentencing, Classification, Designation & Program Practice in Federal Prison – By Bruce Cameron, Jose Santana & Ralph Miller
30 | Appear Weak When You Are Strong – By Tyler Flood
33 | Don’t Bring a Knife to a Gunfight – By Daryl Parker

6 | President’s Message
8 | Executive Director’s Perspective
10 | Ethics and the Law
13 | Federal Corner
18 | Shout Outs

5 | CLE Seminars and Events
37 | Significant Decisions Report

President’s Message: The Road Taken – By Mark Snodgrass


As I sit at my desk writing this first President’s Message column for TCDLA, I cannot help but think of a cold winter day when my son Luke was about five years old. The two of us were driving down a dirt road, and we passed by a flat rock perched on top of a fence post. Luke glanced at me in with a look of wonder in his eye and asked, “Dad, how did that rock get there?” Over the next mile or two, he came up with several theories on his own, each a little more grandiose than the previous, before finally asking the question again. After studying on the question for a while, I wisely told him, “I have absolutely no idea.”

The same thing could be said about how I became president of this great organization. I am truly honored and humbled to be the 48th president of TCDLA. Looking back, I can honestly say that I am not really sure how I got here. I never intended to be a criminal defense attorney, much less president of this organization. One thing I do know is I would not be in this position if it were not for so many great members of this organization.

When I got out of law school, the absolute last thing I thought I wanted to be was a criminal defense lawyer. I was waiting on my bar results and had the good fortune to run into the late Floyd Holder while in Lubbock on a hunting trip with some old friends. Floyd was about two weeks from starting a federal hate-crime trial and asked if I wanted to do some research for him to help him get ready. I gladly accepted and two weeks later walked into the federal courthouse in Lubbock to help out in the first criminal trial I had ever seen in my life. Before the trial even began, the Honorable Sam Cummings had a lively “talk” with an attorney from Fort Worth who had tried to rearrange the chairs in his courtroom. During this talk, Judge Cummings’ face became redder and redder and his voice got louder and louder, before finally instructing the attorney to leave the furniture alone—with a few other choice words thrown in for good measure. I was not even a licensed attorney, but based on that little pretrial pep talk, I was pretty sure that criminal defense was my not calling.

The next thing I knew, I stuck around Floyd’s office after getting a bar card and I was primarily practicing criminal defense. Luckily Floyd started encouraging me to attend various TCDLA seminars. By attending these seminars, I was able to see that our clients were not the only ones being at times wrongly accused and having their constitutional rights trounced upon. I was amazed to see great lawyers like Gerry Goldstein, Scrappy Holmes, and many others too numerous to list speak and share their tremendous knowledge with anyone who cared to listen. I was amazed that not only would they try and help teach you the law, but they would also teach you how to use what you were learning. Somewhere during this time period, I realized the only kind of lawyer I wanted to be was a criminal defense lawyer.

Then one day in 2002 my friend Dan Hurley called me at the office and encouraged me to get more involved in TCDLA and to apply for a position as an associate board member. I luckily was elected to that position and began serving TCDLA under then-president Cynthia Orr, and have been trying to serve this organization ever since.

The great thing about TCDLA is dang sure not me, but the 3,200-plus men and women who make up its membership. Anything I have ever accomplished as an attorney can be somehow traced back to this great organization, whether it is an idea heard during a presentation at Rusty Duncan, a war story overheard at happy hour before a board meeting, a motion off the website, or some case learned of on the listserve. The members of this organization are its strength. This organization is full of folks who when they reach greater heights send the elevator back down to help others get there as well.

I want to encourage all our members to become more involved in TCDLA. TCDLA has over 30 committees that need your help. TCDLA helps put on more than 50 CLE events each year. TCDLA has an active lobbying team looking out for you and your clients’ interest. Let our legislative committee know what is important to you. I challenge each of you to find a young lawyer at your local courthouse and take him or her for coffee and encourage them to join TCDLA. TCDLA is a better and stronger organization when our members are involved and active. We do not need to make TCDLA great again; TCDLA is already a great organization. Our members being involved and participating make TCDLA even greater.

A well-deserved thank you, David Moore, for your tremendous leadership through some interesting times this past year. Thank you as well to the other 46 men and women who have come before me in this office for your tremendous service and vision in leading our great organization. Thank you to our recently retired executive director Joseph Martinez for his tremendous service to this organization. Congratulations and thank you to Melissa Schank, who was recently named executive director of TCDLA after many years of yeoman’s service. Thank you also goes out the current officers, board members, committee members, and TCDLA staff for their tremendous service to TCDLA. Finally, thank you to all the members of the greatest organization of criminal defense lawyers in the country who daily stand as a last defense against the power of the government.

Executive Director’s Perspective: Where Heroes Come From – By Melissa J. Schank


That’s where I’ll get the love in my heart: from, the fact that little young guys can look at the obstacles that I had to go through to become a Hall of Famer and know it’s not so bad when it comes to them trying to accomplish the same goal.

—Allen Iverson

This month we had a delightful visit from the family of Fidencio G. Garza Sr. of Edinburg. He was a recipient in 1986 of the TCDLA Hall of Fame Award. The Hall of Fame Award is TCDLA’s most prestigious award. The requirements are:

1.   Minimum of thirty (30) years has elapsed since engaging in active practice of law or the candidate is deceased
2.   Substantial commitment to defense of persons accused of crimes on appeal or trial, not to be based solely on won-lost record or publicity, but in court excellence; and
3.   Significant contributions to the profession.

Fidencio was married to Fela Villarreal, a public school educator. He was admitted to the bar after receiving his Juris Doctor degree from South Texas College of Law. Fidencio had two children—a daughter, Ernestina, and a son, Fidencio Garza Jr. The junior Fidencio followed his father’s footsteps and became an attorney in 1961 and later became a U.S. Magistrate Judge as one of many more accomplishments. Fidencio Sr. passed in 1957.

His family came by the office to take pictures with our Hall of Fame plaque in honor of his memory and in recognition of his accomplishments. Some traveled from as far as California. In attendance was Angela Moreno, Fidencio’s niece, whom he baptized, along with Baldemar Cano Jr., who also became a lawyer and judge, and his wife, Belia Cano. Alfredo and Emma Lopez and Buddy Cano also attended.

The family shared many stories—including when Fidencio Sr. ran for district attorney in Falfurrias County, a controversial move since he was Hispanic. Fidencio was shot during the election and ended up relocating. He had been fighting de facto segregation in Raymondville in the ’40s and ultimately prevailed (State v. Garza, 269 S.W.2d 596 [1954]).

His relatives described him as an aggressive criminal defense attorney. He was a strong-minded, macho, and assertive man. He was outspoken, at times domineering, and always stood his ground. He and his brother were the first in their family to go to college. Many of the children, nephews, and nieces looked up to him growing up as kids. They were very proud of him, and in their eyes, he was the number one attorney.

The description reminds me of a lot of our criminal defense attorneys. I travel to many seminars and events where I am around our members’ family. The stories they all share are fascinating. Each one is shared with love and similarly proud feelings. Our defense attorneys are true heroes.

Our Hall of Fame plaque is proudly displayed in our home office. Annually we delicately package it to travel with us to Rusty Duncan to display in our registration area. Stop by this year to take a moment and see the names of the recipients who have been honored through the years.

A reminder: The Hall of Fame awards applications are due April 10th each year. The application can be found on our website or requested by contacting the TCDLA home office. Recipients are selected only if a nominee is submitted and approved. We have several awards presented annually at Rusty Duncan for which we accept applications. We always hear comments after the fact that someone should be inducted. But we do first need an application for recipients to be reviewed by the Awards Committee. We encourage you to submit a form next year for a deserving candidate for one of the awards listed below. Any lawyer may nominate a qualified candidate.

  • TCDLA Hall of Fame
  • TCDLA Percy Foreman Lawyer of the Year
  • TCDLA Charles Butts Pro Bono Lawyer of the Year Award
  • TCDLA Senator Rodney Ellis Justice Award

If you would like to see the award criteria or video capturing the recipients’ history, visit our website at and click on the “About” tab. There you’ll find videos, honorees’ names, criteria, and applications. Join us this year as we induct Martin Underwood, Daniel Hurley, and Frank Jackson into the 2018 TCDLA Hall of Fame on June 21, 2018, at Rusty Duncan in San Antonio. For more details, contact the TCDLA office at (512)478-2514. Hope to see you in June!

Ethics and the Law: Faster Than a Speeding Bullet


All the rules and information in this article require some careful study, as there may be some duplication. The bottom line: Follow the rules before you put your Superman ad on TV, the internet, Facebook, or other social media. An ad picturing you stopping an 18-wheeler or jumping on cars or trucks may be something only Superman could do, but even Superman may not be able to save you from a grievance if you don’t get it approved by the State Bar.

Narrator: Faster than a speeding bullet. More powerful than a locomotive. Able to leap tall buildings in a single bound.
Man 1: Look! Up in the sky! It’s a bird.
Woman: It’s a plane!
Man 2: It’s Superman!
Narrator: Yes, it’s Superman, strange visitor from another planet who came to earth with powers and abilities far beyond those of mortal men. Superman, who can change the course of mighty rivers, bend steel in his bare hands. And who, disguised as Clark Kent, mild-mannered reporter for a great metropolitan newspaper, fights a never-ending battle for truth, justice, and the American way.

When you put up a website or do any type of advertising, you need to be aware of a few things. Get it cleared by the SBOT advertising review department for starters. And, read Tex. Disciplinary Rule Prof. Cond. 7.07 (…).

Deciphering the State Bar of Texas Advertising Rules with Gene Major
Bruce Vincent

For more than 20 years, the State Bar of Texas advertising rules have governed lawyer advertising, including print and electronic ads, websites, brochures, and practically any communication about a lawyer’s legal services that reaches the public. Despite two decades of regulation, Texas lawyers and law firms still have questions about exactly what is and isn’t allowed, and the potential impact for violations.

That lack of familiarity can lead to a firm or an individual lawyer having their ad, website, etc., labeled as “noncompliant” by the State Bar of Texas Advertising Review Department, which reviews lawyer advertising for violations under the Texas Disciplinary Rules of Professional Conduct. Those who fail to remedy noncompliant communications may be the subject of an official complaint filed with the Bar’s Chief Disciplinary Counsel.

The prospect of defending a disciplinary complaint—not to mention the possibility of coming out on the losing end—undoubtedly contributes to the thinking of those who abide by the rules. However, whether based on ignorance or arrogance, some attorneys and firms continue to operate outside the lines even with the unenviable prospect of being caught looming on the horizon.

Gene Major on Texas’ Ad Rules

I recently talked with Gene Major, Director of the State Bar Advertising Review Department and Director of the Bar’s Attorney Compliance Division, about the state’s lawyer advertising landscape and the common mistakes that can lead to violations.

Gene has been with the State Bar for nearly 20 years, and he’s seen just about every type of lawyer advertising you can imagine, from loud-mouthed lawyers hawking their services during daytime TV to massive websites maintained by the state’s largest law firms.

Following are the highlights from our conversation:

How many advertisements does your office review during the course of a year?

On average, the Advertising Review Department handles about 3,500 advertisements and solicitation communications per year. A lot of the submissions we receive have initial problems that we clearly identify. This provides the opportunity for individual attorneys and firms to make necessary changes so their ad or solicitation is compliant with the Texas Disciplinary Rules of Professional Conduct.

Roughly 80% of the ads and solicitation communications submitted to the State Bar of Texas are eventually approved for public dissemination.

What are some of the most common mistakes and/or violations that your office sees when determining whether an ad is compliant?

While we review each submission individually and no two are the same, there are several things that seem to appear over and over again.

Failing to file an advertisement or solicitation is a common problem that violates TDRPC Rule 7.07. Although the State Bar has been regulating lawyer advertising for more than two decades, we still see instances where a lawyer or firm simply fails to submit an ad as required under the rules.

Another issue we see regularly is the use of trade names, which is prohibited under TDRPC Rule 7.01. It’s important to know that this rule is not applicable to descriptive URLs (for example,, etc.). Many firms do not take the time to come up with a descriptive URL. Now that they are included on firm letterhead and business cards—provided they are not false, misleading, or deceptive—descriptive URLs can help people remember you.

We also see instances where ads and websites violate Rule 7.02(a)(2), which covers past case successes and results. If you list a dollar amount in your ad, on your website, or in any other public communication, then it must include the actual amount received by your client. If you list an overall recovery amount, the same rule requires that you also list the amount of attorney’s fees and litigation expenses that were withheld from whatever your client received.

One final issue that appears is another violation of Rule 7.02 based on how professional honors and accolades are listed. If you have been selected to Texas Super Lawyers, Best Lawyers in America, or other similar recognition, then you must also include the name of the organization that is presenting the award and the year or years you were selected. Putting a Super Lawyers logo on your website or in an advertisement without this information is a violation that we point out regularly.

What types of penalties are in place for those who fail to file their ads with the Ad Review Committee or those who produce ads that violate the ad rules?

The financial penalty for failing to file an ad or solicitation communication is essentially $250 since the normal filing fee is $100 and the non-filer fee is $350. Those who fail to file will receive a non-filer letter from the ad review staff. If they don’t respond to that letter as required, then they can be referred by the Advertising Review Committee to the State Bar’s Chief Disciplinary Counsel, which conducts its own independent investigation before determining the next course of action.

There are other ways that you may be referred to the State Bar’s Chief Disciplinary Counsel if your communication violates the TDRPC. While that doesn’t happen very often, we have seen instances where it has been necessary.

Many lawyers market themselves by sending emails and newsletters to their own mailing lists or those purchased from third-party vendors. How can an attorney avoid running afoul of the ad rules when relying on mailing lists for marketing?

If a firm or individual lawyer is communicating with current and former clients, others lawyers, or other professionals, then they are not required to make an Ad Review submission so long as the communication is not false, misleading, or deceptive.

Using lists from third-party vendors is different since it is presumed that you do not have an attorney/client relationship with everyone on the list. In those instances, it is important to follow Rule 7.02 for advertisements and Rule 7.05 for solicitation communications.

For example, Rule 7.05 requires that you follow all the provisions of Rule 7.02 in addition to plainly marking all non-electronic communications with “ADVERTISEMENT” on the first page, and on the face of the envelope or other packaging that is used to transmit the communication. For such solicitations that are communicated electronically, “ADVERTISEMENT” must be included in the subject line and at the beginning of the communication itself.

Bruce Vincent is a writer and editor who was the only reporter to provide daily coverage of the federal trial that resulted in the Texas rules for attorney advertising. He regularly helps lawyers and law firms produce websites, advertisements, and other promotional pieces that comply with the State Bar rules. Contact him at .

While the First Amendment guarantees freedom of speech, the courts limit commercial speech. If you want to keep your privilege to practice law in Texas, remember that many have had advertising grievances sustained by the State Bar because they were unaware of (or just disregarded) the Texas Disciplinary Rules of Professional Conduct. Relevant portions of the rules may be seen on here.

This article was provided with help from Joseph Connors, Michael Mowla, Mary Flood, Chuck Lanehart, Bruce Vincent, and Gene Majors.

Federal Corner: There Will Be No More Plea Hearings by Videoconference in the Federal Courts – By F. R. Buck Files Jr.


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

When Chief Judge James D. Peterson of the United States District Court for the Western District of Wisconsin read that opinion of the United States Court of Appeals for the Seventh Circuit, he had a right to be really angry.

A grand jury had indicted Gregory Bethea for possessing a counterfeit access device in violation of 18 U.S.C. § 1029(a)(1). In addition to his legal problems, he had significant medical issues, which are set out in Footnote 1 to Judge Flaum’s opinion:

Specifically, Bethea requires dialysis for ten hours a day, five days a week; suffers from pulmonary issues; recently had a heart stent implemented; is wheelchair-bound; and suffers from Charcot joint syndrome, which makes him highly susceptible to fractures and dislocations from even minor physical contact.

In order to accommodate Bethea, Judge Peterson conducted a plea and sentencing hearing by videoconference. The judge presided from his courtroom in Madison, Wisconsin, and the defendant appeared from a site in Milwaukee. After accepting Bethea’s plea of guilty, Judge Peterson conducted a sentencing hearing and imposed a sentence of 21 months’ imprisonment. This sentence was at the low end of the advisory Guidelines range of 21 to 27 months; nevertheless, Bethea gave notice of appeal. Although he had not raised a Rule 43 issue by pretrial motion or during the plea colloquy, his lawyer on appeal argued successfully that Judge Peterson was not permitted to accept his guilty plea via videoconference.

Judge Flaum’s opinion reads, in part, as follows:

[Bethea’s Argument on Appeal]

Bethea argues that his combined guilty plea and sentencing via videoconference violated Federal Rule of Criminal Procedure 43(a) because he was not physically present in the courtroom during his plea. He argues this was an unwaivable obligation, and the court’s failure to adhere to the requirement constitutes per se reversible error. Thus, he maintains that even if he consented to the form of proceeding, we must still vacate his plea and sentence.

[Federal Rules of Criminal Procedure Rule 43]

Rule 43 of the Federal Rules of Criminal Procedure governs the circumstances under which a criminal defendant must be present in the courtroom. The Rule states that “the defendant must be present at . . . the initial appearance, the initial arraignment, and the plea.” Fed. R. Crim. P. 43(a). The presence requirement is couched in mandatory language—“the defendant must be present.” Id. See also In re United States, 784 F.2d 1062, 1062–63 (11th Cir. 1986) (“The rule’s language is clear; the rule does not establish the right of a defendant to be present, but rather affirmatively requires presence”) [emphasis added throughout].

[The Exceptions to the Rule]

True, the Rule’s presence requirement does contain several exceptions and waiver provisions. See Fed. R. Crim. P. 43(b), (c). These exceptions include, for example, when a proceeding involves the correction or reduction of a sentence, see Fed. R. Crim. P. 43(b)(4), or when the defendant is voluntarily absent during sentencing in a noncapital case after initially attending the trial or plea, see Fed. R. Crim. P. 43(c)(1)(B). But none of these exceptions apply to the situation before us and are generally limited to the sentencing context. Moreover, Rule 43 was amended in 2011 to permit videoconference pleas for misdemeanor offenses. See Fed. R. Crim. P. 43(b)(2) (stating that when the offense “is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits . . . plea . . . to occur by video teleconferencing or in the defendant’s absence”). That the drafters did not include that option in the felony plea situation is telling.

[The Other Circuit Court Opinions]

No other circuit has addressed whether a defendant can affirmatively consent to a plea by videoconferencing. However, four circuits have addressed whether a district court can require it. All have held that Rule 43 obligates both the defendant and the judge to be physically present; the outcome is the same whether it is the judge or defendant who appeared via videoconference. See United States v. Williams, 641 F.3d 758, 764 (6th Cir. 2011) (“The text of Rule 43 does not allow video conferencing” and the “structure of the Rule does not support it”); United States v. Torres–Palma, 290 F.3d 1244, 1246–48 (10th Cir. 2002) (“[V]ideo conferencing for sentencing is not within the scope of a district court’s discretion”); United States v. Lawrence, 248 F.3d 300, 303–05 (4th Cir. 2001); United States v. Navarro, 169 F.3d 228, 238–39 (5th Cir. 1999).

[The Court’s Holding]

We agree with our sister circuits’ reasoning and extend it one step further. We thus hold that the plain language of Rule 43 requires all parties to be present for a defendant’s plea and that a defendant cannot consent to a plea via videoconference.

[The Benefits of Physical Presence]

Our decision is supported by the unique benefits of physical presence. As the Sixth Circuit explained, “[b]eing physically present in the same room with another has certain intangible and difficult to articulate effects that are wholly absent when communicating by video conference.” Williams, 641 F.3d at 764–65. Likewise, the Fourth Circuit reasoned that “virtual reality is rarely a substitute for actual presence and that, even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it.” Lawrence, 248 F.3d at 304.

        This Court has also recognized the value of the defendant and judge both being physically present. In the context of revocation of supervised release via videoconferencing, we noted that “[t]he judge’s absence from the courtroom materially changes the character of the proceeding.” Thompson, 599 F.3d at 601. The same is true if the defendant is the person missing. “The important point is that the form and substantive quality of the hearing is altered when a key participant is absent from the hearing room, even if he is participating by virtue of a cable or satellite link.” Id. at 600. A “face-to-face meeting between the defendant and the judge permits the judge to experience ‘those impressions gleaned through . . . any personal confrontation in which one attempts to assess the credibility or to evaluate the true moral fiber of another.’” Id. at 599 (alteration in original) (quoting Del Piano v. United States, 575 F.2d 1066, 1069 (3d Cir. 1978)). “Without this personal interaction between the judge and the defendant—which videoconferencing cannot fully replicate—the force of the other rights guaranteed” by Rule 43 is diminished. See id. at 600. Thus, while it might be convenient for a defendant or the judge to appear via videoconference, we conclude the district court has no discretion to conduct a guilty plea hearing by videoconference, even with the defendant’s permission.

[Per Se Error]

In so holding, we agree with the Tenth Circuit that a Rule 43(a) violation constitutes per se error. Torres–Palma, 290 F.3d at 1248; see also Lawrence, 248 F.3d at 305 (automatically reversing for Rule 43 error); Navarro, 169 F.3d at 238–39 (same). “Rule 43 vindicates a central principle of the criminal justice system, violation of which is per se prejudicial. In that light, presence or absence of prejudice is not a factor in judging the violation.” Torres–Palma, 290 F.3d at 1248.

[The Curse of Trying to Accommodate a Defendant]

We are sympathetic to the government’s concerns that a defendant on appeal can complain of an accommodation that was for his benefit below. We also agree with various courts that have stated it would be sensible for Rule 43 to allow discretion in instances where a defendant faces significant health problems. See, e.g., United States v. Brunner, No. 14–cr–189, 2016 WL 6110457, at (E.D. Wis. Sept. 23, 2016). However, Rule 43(a) simply does not allow a defendant to enter a plea by videoconference. See Lawrence, 248 F.3d at 305 (“[T]he rule should indeed provide some flexibility. But it does not. We cannot travel where the rule does not go.”).


Accordingly, we remand to the district court for the plea and resentencing of Bethea in the physical presence of a judge.

My Thoughts

For the TCDLA members who have been around for a while, it would seem that I write a column about a Fed. R. Crim. P 43 issue every 19 years. The June 1999 issue of the Voice included a column entitled “Hell, No! Said the Judge.” In it, I reviewed United States v. Navarro, 169 F.3d 228 1999 WL 118338 (5th Cir. 1999).

Judge Politz announced the judgment of the Court and delivered the opinion as to Parts I through V. Judge Emilio M. Garza delivered an opinion as to Part VI—the Rule 43 issue—to which Judge Politz dissented. Each of these opinions was so well written that I would have been unable to predict the outcome of the case. The following excerpts are from that June 1999 column:

A divided panel of the United States Court of Appeals for the Fifth Circuit vacated the life sentence imposed against a defendant and remanded the case for re-sentencing after determining that in the absence of a waiver, a defendant in a criminal case has a right to be physically present in the same courtroom as the judge during a sentencing hearing. An effort to generate the votes for an en banc review failed and Navarro became the law of the Circuit. [Panel: Politz, Garza, and Stewart, Circuit Judges].

        Navarro and Edmondson were indicted for violations of Title 21 U.S.C. §§ 841(a)(1) and 846 and of Title 18 U.S.C. § 2. Trial was held in the Sherman Division of the Eastern District of Texas before Chief Judge Richard A. Schell, who usually sits in Beaumont but who shares the docket of the Sherman Division with Judge Paul Brown. After the defendants were convicted, Judge Schell returned to Beaumont and the sentencing hearing was scheduled to be conducted by video-conference.

        Although Navarro signed a Waiver of Rights and Consent to Proceed by Video-Conference, Edmondson refused to sign the form and objected to the procedure saying that he wanted to be sentenced in person. Judge Schell overruled his objection and, after a video-conference hearing, sentenced him to life imprisonment.


The opinion continues, “The first step in interpreting the Rule is to consider the plain, ordinary meaning of the language of the Rule.” After looking at the definition of “presence” in Black’s Law Dictionary and Webster’s Third New International Dictionary, the Court determined, “The plain import of the definitions is that a person must be in existence at a certain place in order to be ‘present,”’ which is not satisfied by video conferencing.”

        The Court then looked at the context of the words in Rule 43 noting that “the rights protected by Rule 43 include the defendant’s constitutional Confrontation Clause and Due Process rights, and the common law right to be present.”

        The Court pointed out that “the Supreme Court has interpreted the Confrontation Clause, with certain exceptions, to guarantee a defendant a face-to-face meeting with witnesses appearing before the trier of fact. See Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 3165, 111 L.Ed.2d 666 (1990). Video conferencing would seemingly violate a defendant’s Confrontation Clause rights at those other stages of trial. The scope of the protection offered by Rule 43 is broader than that offered by the Constitution, and so the term ‘present’ suggests a physical existence in the same location as the judge. This means that, for the purposes of sentencing, a defendant must be at the same location as the judge to be ‘present.’” The court determined that the context of the term “present” in Rule 43(a) indicates that a defendant must be physically in the courtroom.

        Finally, the Court stated: “We conclude that sentencing a defendant by video conferencing does not comply with Rule 43 because the defendant is not ‘present.’ We refrain from interpreting Rule 43 in a matter at odds with the clear import of the language of Rule 43 and the Advisory Committee Notes. ‘Absent a determination by Congress that closed circuit television may satisfy the presence requirement of the rules, [we are] not free to ignore the clear instructions of Rule [ ] . . . 43.’ Valenzuela-Gonzalez v. United States Dist. Court, 915 F.2d 1276, 1281 (9th Cir.1990).”

        After reading Navarro, I checked with the District Clerk’s Office here in Tyler and found that no General Order had been entered on the procedure to be followed for video-conferencing; neither is there any local rule. Thus, there are no written guidelines for video-conferencing.

        After pondering the concept of sentencing by video conference, I could not think of a single reason why a lawyer would agree to such a procedure. To get a “second opinion,” I visited with one district judge who had worked as a trial lawyer in the federal system before his appointment to the bench. He himself does video-conference sentencings. I asked him to take off his judicial robe and to put on his trial lawyer’s hat—which he agreed to do on a condition of anonymity. I then asked the question, “As a lawyer, would you have ever agreed to this procedure?”

        His answer: “Hell, No!”

[Note: The judges of the Circuits are not consistent when they speak of videoconferencing. Some run the two words together; some use a hyphen between the words; and some use two separate words.]