Monthly archive

October 2018

October 2018 SDR – Voice for the Defense Vol. 47, No. 8

Voice for the Defense Volume 47, No. 8 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

Editor’s note: the SCOTUS remains on summer recess.

United States Court of Appeals for the Fifth Circuit

United States v. Anderton, No. 17-40836, 2018 U.S. App. LEXIS 22845 (5th Cir. Aug. 16, 2018) (designated for publication) [8 U.S.C. § 1324(a)(1)(A)(iv) & (v) (bringing in and harboring illegal aliens) and legality of illegal aliens residing in the United States]

        Under 8 U.S.C. § 1324(a)(1)(A)(iv) & (v) (Bringing in and harboring illegal aliens), it is illegal to (personally or in a conspiracy) encourage or induce an alien to come to, enter, or reside in the United States knowing or in reckless disregard of the fact that such residence is or will be per law.

        8 U.S.C. § 1324(a)(1)(A)(iv) & (v) is not unconstitutionally vague because “encourage” and “induce” are sufficiently clear to provide fair notice to the public and guide law enforcement.

        Under Arizona v. United States, 567 U.S. 387, 407, although it is not a crime for a removable alien to remain present in the United States, it is a civil offense, and aliens who reside here without authorization are “per law” for purposes of 8 U.S.C. § 1324(a)(1)(A)(iv) & (v).

Facts:

  • Anderton was president of A&A Landscape and Irrigation.
  • In 2011, under penalty of perjury, Anderton signed Form I-129 (Petition for a Nonimmigrant Worker), stating that the job would not involve overtime and visa workers would be paid the highest of the most recent prevailing wage that is or will be issued by the Department of Labor.
  • The prevailing wage was $8.16 to $11.16 and $12.24 for overtime.
  • In 2016, Anderton was charged with violating 18 U.S.C. § 1546(a) (Fraud and misuse of visas, permits, and other documents) (Count 1), 8 U.S.C. § 1324(a)(1)(A)(v)(I)(Count 2) (Bringing in and harboring illegal aliens), and 8 U.S.C. § 1324(a)(1)(A)(iv) (Counts 3–6).
  • Anderton moved to dismiss Count 1 for failure to state an offense and Counts 2–6, arguing that “reckless disregard” is a constitutionally deficient mens rea. The court denied both motions.
  • Three visa workers worked overtime and were not paid for it.
  • Anderton withheld $1,000 of their pay for “visa expenses.”
  • Anderton withheld some of their pay for rent.
  • All were paid far less than time-and-a-half for overtime.

8 U.S.C. §1324(a)(1)(A)(iv) & (v) is not unconstitutionally vague

  • Under 8 U.S.C. § 1324(a)(1)(A)(iv) & (v), it is illegal to (personally or in a conspiracy) encourage or induce an alien to come to, enter, or reside in the United States knowing or in reckless disregard of the fact that such residence is or will be per law.
  • 8 U.S.C. § 1324(a)(1)(A)(iv) & (v) is not unconstitutionally vague because “encourage” and “induce” are sufficiently clear to provide fair notice to the public and guide law enforcement.
  • The district court instructed the jury that encourage means to knowingly instigate, help, or advise, and induce means to knowingly bring about, to effect, or cause or to influence an act or course of conduct.

Merely residing in the United States as an illegal alien is a crime for purposes of 8 U.S.C. §1324(a)(1)(A)(iv) & (v)

  • Under Arizona v. United States, 567 U.S. 387, 407, although it is not a crime for a removable alien to remain present in the United States, it is a civil offense, and aliens who reside here without authorization are “per law” for purposes of 8 U.S.C. § 1324(a)(1)(A)(iv) & (v).
  • Thus, encouraging or inducing an alien to reside in the United States is a crime.

Editor’s note: if this appellant indeed withheld $1,000 of pay and refused to pay time-and-a-half for overtime to landscaping guys making close to minimum wage, then this defendant is not a very nice guy. It’s no wonder good landscaping guys are hard to find:

United States v. Calton, No. 17-10541, 2018 U.S. App. LEXIS 23204 (5th Cir. Aug. 20, 2018) (designated for publication) [Amendment 782 sentence reductions under 18 U.S.C. § 3582(c)(2) and subsequent Amendment 782 motions]

        Under Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986), federal appellate courts have a special obligation to satisfy both their own jurisdiction and also of the lower courts even if the parties concede it.

        Under 18 U.S.C. § 3582(c)(2), if a defendant who was sentenced to prison based on a sentencing range that has subsequently been lowered by the Sentencing Commission files a motion, the court may reduce the sentence after considering the factors set forth in 3553(a) to the extent that they are applicable and the reduction is consistent with applicable policy statements issued by the Commission.

        Under Arbaugh v. Y&H Corp., 546 U.S. 500, 515–516 (2006), if Congress clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts must treat the restriction as nonjurisdictional.

        A district court has jurisdiction to consider a successive § 3582(c)(2) motion.

        Under 28 U.S.C. § 1291, the Court of Appeals has appellate jurisdiction over § 3582(c)(2) determinations because denials of sentence reductions are unquestionably final decisions of a district court since they close the criminal cases again.

        Res judicata is proper only if: (1) the parties must be identical in the two suits; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the same cause of action must be involved in [*13] both cases. Res judicata prevents collateral attack on the result of the completed lawsuit between the same parties.

        A § 3582(c)(2) motion is not a civil postconviction action but a step in a criminal case, so the denial of the motion does not operate as a res-judicata bar.

        The doctrine of the law of the case applies to a single proceeding and operates to foreclose reexamination of decided issues either on remand or on a subsequent appeal. Law of the case is not a jurisdictional rule, but a discretionary practice. Unlike res judicata, the law of the case doctrine does not encompass issues presented for decision but left unanswered by the appellate court. Law of the case does not apply where a court has not previously decided the issue.

        Where a drug-quantity-based offense level is higher than the career-offender offense level, the U.S.S.G. range is based on drug quantity. Amendment 782 applies to such sentences.

Glass v. Paxton, No. 17-50641, 2018 U.S. App. LEXIS 22843 (5th Cir. Aug. 16, 2018) (designated for publication) [Texas Campus Carry Law does not violate the First or Second Amendments or the equal protection clause]

        Editor’s Note: Glass is a liberal arts professor at UT-Austin’s Department of Sociology and Population Research. Moore and Carter are professors of English. All are referred to as “Glass.”

Facts:

  • In 2015, Texas enacted Tex. S.B. 11, 84th Leg., R.S. (2015), under Tex. Gov. Code § 411.2031, the Campus Carry Law. It permits those who are firearms-carry license-holders to carry handguns on public college campuses. Campuses may still establish regulations concerning the storage of handguns in residence halls.
  • A person allowed to carry a firearm must be a Texas resident who is at least 21 years old, has not been convicted of a felony or family violence misdemeanors, is not chemically dependent, has participated in handgun training, and has passed a proficiency examination under Tex. Gov. Code §§ 411.172, 411.174, 411.188.
  • Before instituting campus concealed-carry regulations, colleges must first consult with students, staff, and faculty regarding the nature of the student population, specific safety considerations, and the uniqueness of the campus environment.
  • Following enactment of the Campus Carry Law, the UT-Austin (“University”) established a group consisting of students, alumni, staff, and faculty tasked with recommending rules and regulations for concealed carry on campus.
  • Some opposed concealed handguns in classrooms claiming that they would “have a substantial chilling effect on class discussion.”
  • Glass, Moore, and Carter (“Glass”) filed suit seeking declaratory relief on the constitutionality of the Campus Carry Law and injunctive relief against enforcement of the law and University policy.
  • Glass claimed that the law and policy violate her: (1) First Amendment right to academic freedom by chilling her speech inside the classroom; (2) rights under the Second Amendment because firearm usage in her presence is not sufficiently “well-regulated”; and (3) right to equal protection because the University lacks a rational basis for determining where students can concealed-carry handguns.
  • Glass claimed that her classroom speech would be “dampened to some degree by the fear” it could initiate gun violence in the class by students who have “one or more handguns hidden but at the ready if the gun owner is moved to anger and impulsive action,” expressing particular concern for “religiously conservative students who have extreme views” and “openly libertarian students” that Glass “suspects are more likely to own guns given their distaste for government.”
  • Glass also claimed that to the extent the Second Amendment recognizes an individual right to carry firearms, persons not carrying arms have a right to the practice being well-regulated.
  • Texas moved to dismiss the claims for lack of standing under Fed. Rule Civ. Proc. 12(b)(1) and failure to state a claim under Rule 12(b)(6).
  • The district court dismissed Glass’ claims without prejudice.

Glass’ First Amendment claim is without merit and she has no standing

  • Under Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014), to establish Article III standing, a plaintiff must show: (1) injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. The party invoking federal jurisdiction bears the burden of establishing the elements. An injury must be concrete, particularized, and actual or imminent. Standing cannot be conferred by a self-inflicted injury.
  • Glass lacked standing because she alleged a subjective First Amendment chill that was contrary to the presumption her students will conduct activities within the law and avoid prosecution.
  • Allegations of a subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of spe­cific future harm. Self-censoring speech does not typically give rise to a First Amendment claim. A person cannot manufacture standing by self-censoring her speech based on what she alleges to be a reasonable probability that concealed-carry license-holders will intimidate professors and students in the classroom.
  • Glass failed to make any plausible allegation that there is a certainty that a license-holder will illegally brandish a firearm in a classroom.
  • Glass cannot manufacture standing by self-censoring her speech based on what she alleges to be a reasonable probability that concealed-carry license-holders will intimidate professors and students in the classroom. The district court did not err. Glass lacks standing to bring her First Amendment claim.

Glass’ Second Amendment claim is without merit and she has no standing

  • Under District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the Second Amendment guarantees the individual right to possess and carry weapons in case of confrontation.
  • Under McDonald v. City of Chicago, 561 U.S. 742, 767 (2010), individual self-defense is the central component of the Second Amendment right.
  • Glass’s argument is foreclosed by Heller.

Glass’ equal protection claim is without merit and she has no standing

  • The equal protection clause requires that all persons similarly situated be treated alike.
  • Glass does not challenge Texas’ interest in public safety and self-defense but instead claims that there is no rational basis for Texas to allow private universities to ban concealed carry but not public universities.
  • The Campus Carry Law distinguishes between public and pri­vate universities to respect the property rights of private uni­versities.
  • Public safety and self-defense cannot be achieved if concealed carry is banned in classrooms because attending class is a core reason for students to travel to campus.
  • Dismissal is AFFIRMED.

Editor’s Note: These professors claimed that their “classroom speech” would be “dampened to some (unknown) degree by the fear” of purported gun violence in class caused by students who have “one or more handguns hidden but at the ready if the gun owner is moved to anger and impulsive action.” The professors expressed particular concern for “religiously conservative students who have extreme views” and “openly libertarian students” that the professors “suspect are more likely to own guns given their distaste for government.”

        Thus, according to the professors, law-abiding but “religiously conservative” or “openly libertarian” students who are at least 21 years old and possess a CHL or LTC are so dangerous and prone to violence that the First and Second Amendment rights of these professors are violated. The professors cite no facts for these suppositions. And, the rights of students to protect themselves far outweighs the purported violations of the First and Second Amendments of these professors. This reminds me of this simple axiom:

United States v. Hoffman, et al, Nos. 16-30104, 16-30226, 16-30013, & 16-30527, 2018 U.S. App. LEXIS 22188 (5th Cir. Aug. 24, 2018) (designated for publication) [Mail and wire fraud, definition of “property” in alleged crimes, general conspiracy under 18 U.S.C. § 371, Pinkerton liability, and substantive reasonableness of a sentence]

        Under 18 U.S.C. §§ 1341 & 1343, the mail and wire-fraud statutes have the same elements except for mailing versus interstate wire. Both criminalize schemes to defraud or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.

        Under Pasquantino v. United States, 544 U.S. 349, 356 (2005), property is every kind of valuable right and interest. The right to be paid money is “property.” Tax revenue is “property.”

        Tax-credits can be the object of a scheme to defraud because they reduce dollars otherwise owed to the state, and lying to obtain them has the same effect as lying to evade taxes (government collects less money). Tax-credits are the functional equivalent of government spending programs.

        When reviewing verdicts that a district court sustained or threw out, the standard of review is de novo. The court weighs the evidence in a light most deferential to the jury verdict and gives the party that convinced the jury the benefit of all reasonable inferences. The court must affirm the verdict unless no rational juror could have found guilt beyond a reasonable doubt.

        When a conspiracy offense is charged under 18 U.S.C. § 371 (general conspiracy statute), the government must prove an agreement to commit the underlying offense, knowledge of the unlawful objective and willful agreement to join the conspiracy, and an overt act by a member of the conspiracy to further the unlawful goal.

        Under the concept of Pinkerton liability from Pinkerton v. United States, 328 U.S. 640 (1946), when a coconspirator liability instruction is given, any conspirator is liable for criminal acts committed during the conspiracy that were foreseeable and that furthered the agreement.

        With an established agreement to commit mail and wire fraud, it is going to be foreseeable that mail and wire fraud might occur.

        Under Smith v. United States, 568 U.S. 106, 112–113 (2013), withdrawal from a conspiracy is an affirmative defense on which the defendant bears the burden of proof by a preponderance. Withdrawal requires a deliberate attempt to disassociate from the unlawful enterprise. The defendant typically puts this issue before the jury by requesting an instruction on withdrawal. See 5th Cir. Pattern Jury Inst. § 2.18.

        Under Biddinger v. Comm. of Police of New York, 245 U.S. 128, 135 (1917), failure to assert an affirmative defense such as seeking a withdrawal instruction or otherwise raising the issue at trial forfeits the ability to use the theory to limit the conspiracy offense.

        To prove fraud offenses, the government must show: (1) a scheme to defraud that employed false material representations, (2) the use of mail or interstate wires in furtherance of the scheme, and (3) specific intent to defraud.

        Under Gall v. United States, 552 U.S. 38, 51 (2007), appellate review of the substantive reasonableness of a sentence is highly deferential. It is not enough that the appellate court might reasonably have concluded that a different sentence was appropriate. An abuse of discretion must be shown to undo the decision of the trial judge who is in the best position to weigh the sentencing factors. Sentences outside the U.S.S.G. range are reviewed with deference but not with the presumption of reasonableness that a within-U.S.S.G. sentence is afforded.

        Under United States v. Booker, 543 U.S. 220, 261–265 (2005), appellate review of sentencing would assist in avoiding excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary. Appellate courts may consider the extent of the deviation from the U.S.S.G. when performing their limited function as a check on extreme ones.

        Giving probation to the leader of a sophisticated, multimillion-dollar fraud scheme, particularly a defendant undeterred by a previous term of probation for a federal economic crime and who also lied at trial, perpetuates one of the problems Congress sought to eliminate in creating the Sentencing Commission—that sentencing white-collar criminals to little or no imprisonment creates the impression that certain offenses are punishable only by a small fine that can be written off as a cost of doing business.

United States v. Neba, No. 17-20520, 2018 U.S. App. LEXIS 22844 (5th Cir. Aug. 16, 2018) (designated for publication)

Facts:

  • Neba was convicted of 8 counts: conspiracy to commit health care fraud, three counts of aiding and abetting health care fraud, false statements relating to health care matters, conspiracy to pay and receive health care kickbacks, payment and receipt of health care kickbacks, and conspiracy to commit laundering of monetary instruments.
  • Neba is 54, a cancer patient, and mother to two young children
  • Over nine years, Neba was a leader in a sophisticated Medicare fraud and money laundering scheme totaling $13 million.
  • Neba paid illegal kickbacks to physicians, patient recruiters, and Medicare beneficiaries to further the scheme, claiming fraudulent Medicare benefits for more than 1,000 patients.
  • Neba was also found to have obstructed justice during the investigation.
  • Neba was sentenced to 900 months (75 years).
  • Neba failed to object to the PSR and sentence.

The sentence was not greater than necessary to comply with the 18 U.S.C. §3553(a) sentencing factors.

  • When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
  • To determine if a sentence was reasonable, bifurcated review is used: (1) consider if there was procedural error like (i) failing to calculate or improperly calculating the applicable U.S.S.G. range; (ii) treating the U.S.S.G. as mandatory; (iii) failing to consider the 18 U.S.C. § 3553(a) factors; (iv) determining a sentence based on clearly erroneous facts; or (v) failing to adequately explain the chosen sentence including explanation for deviations from the U.S.S.G. range; and (2) if there was no procedural error, consider the substantive reasonableness of the sentence considering the factors in 18 U.S.C. § 3553(a): (i) nature and circumstances of the offense and the history and characteristics of the defendant; (ii) the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (iii) the kinds of sentences available; (iv) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the category of defendant as set forth in the guidelines; (v) any pertinent policy statement issued by the Sentencing Commission under 28 U.S.C. § 994(a)(2); (vi) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (vii) the need to provide restitution to any victims of the offense.
  • A sentence within a properly calculated U.S.S.G. range is presumptively reasonable.
  • Neba’s U.S.S.G. range provided for up to a life sentence, limited to 900 months as the statutory maximum.
  • Thus, her 900-month sentence was within the U.S.S.G. range and was presumptively reasonable.
  • There is no indication of a mistaken belief by the district court that it was required to sentence Neba to 900 months.

The 75-year sentence did not violate the Eighth Amendment

  • Under Ewing v. California, 538 U.S. 11, 22 (2003), federal courts should be reluctant to review legislatively mandated terms of imprisonment, and successful challenges to the proportionality of particular sentences should be exceedingly rare. The proportionality principle would come into play in the extreme example if a legislature made overtime parking a felony punishable by life imprisonment.
  • To determine whether a sentence is grossly disproportionate per the Eighth Amendment: (1) whether the sentence seems grossly disproportionate to the offense; and (2) if so, compare the sentence to (i) sentences for similar crimes in the same jurisdiction, and (ii) sentences for the same crime in other jurisdictions.
  • Due to the seriousness of the crime, Neba fails the first step.
  • Sentence is affirmed.

Editor’s Note: I suppose reasonable minds may differ on whether a 75-year sentence seems “grossly disproportionate” to the offense, which was a massive theft. Ultimately, Neba did not murder or severely injure anybody. And, I understand the consternation of Congress since: (1) Congress believes that only it is authorized to rip off taxpayers; and (2) tax dollars pay for Congressional salaries and perks. But merely because Congress believes that theft from taxpayers should be punished as severely as murder does not make it right. And merely because a judge can sentence a person to an effective sentence of life without parole for theft does not mean that the judge has to. Ms. Marie Neba, 54, cancer-patient, BOP # 99403-379, and mother of two young children, has a release date of March 13, 2082.

United States v. Reddick, No. 17-41116, 2018 U.S. App. LEXIS 23012 (5th Cir. Aug. 17, 2018) (designated for publication) [Private-search doctrine]

Facts:

  • A hash-value is an algorithmic calculation that yields an alphanumeric value for a file. It is a string of characters obtained by processing the contents of a computer file and assigning a sequence of numbers and letters that correspond to the file’s contents.
  • “Hashing” occurs where a large amount of data is entered into a complex mathematical algorithm to generate a relatively compact numerical identifier (hash-value) unique to that data.
  • Hash-values are used to compare the contents of two files against each other. If two nonidentical files are inputted into the hash program, the computer will output different results. If two identical files are inputted, the hash function will generate identical output.
  • Hash-values are used to fight child pornography distribution by comparing the hash-values of suspect files against a list of the hash-values of known child pornography images in circulation. This allows potential child pornography images to be identified rapidly without involving human investigators at every stage.
  • Reddick uploaded digital image files to Microsoft SkyDrive (cloud-hosting service).
  • SkyDrive uses PhotoDNA to automatically scan the hash-values of user-uploaded files and compare them against the hash-values of known images of child pornography. When PhotoDNA detects a match between the hash-value of a user-uploaded file and a known child pornography hash-value, it creates a CyberTip and sends the file and the uploader’s IP-address information to the National Center for Missing and Exploited Children (NCMEC).
  • Microsoft sent CyberTips to NCMEC based on the hash-values of files that Reddick had uploaded to SkyDrive.
  • Based on location data derived from the IP-address information accompanying the files, NCMEC forwarded the CyberTips to Detective Ilse, who opened the suspect files and confirmed child pornography.
  • Ilse applied for and received a warrant to search Reddick’s home and seize his computer and related materials, which un­covered additional evidence of child pornography.
  • Reddick was indicted for possession of child pornography per 18 U.S.C. § 2252(a)(2) and (b)(1).
  • Reddick initially pleaded not guilty and filed a MTS, alleging that Ilse’s warrantless opening of the files associated with the CyberTips was an unlawful search and evidence of child por­nography found in his home should be suppressed under the exclusionary rule since the initial seizure of the files was improper.
  • The district court denied his motion.

By the time Ilse viewed the suspect image files, Reddick’s expectation of privacy in his files had already been thwarted by a private third-party

  • A district court’s ruling on a motion to suppress may be affirmed based on any rationale supported by the record.
  • Under the private-search doctrine, the inquiry is whether authorities obtained information with respect to which the defendant’s expectation of privacy has not already been frustrated. Under United States v. Jacobsen, 466 U.S. 109 (1984) (FedEx search), an officer’s search of property after being alerted by a private third-party does not violate the Fourth Amendment. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information.
  • When Reddick uploaded files to SkyDrive and PhotoDNA returned a hit for child-porn, his “package” (his computer files) was inspected and deemed suspicious by a private actor. Whatever expectation of privacy Reddick might have had in the hash-values of his files was frustrated by Microsoft’s private search.

Editor’s note: The fact that this appellant uploaded child porn to a cloud-storage service shows that his understanding of how cloud-computing works is as inept as the man behind this computer:

United States v. Sanchez, No. 17-41233, 2018 U.S. App. LEXIS 23205 (5th Cir. Aug. 20, 2018) (designated for publication) [Revocation of supervised release; retribution as a factor]

Facts:

  • Sanchez was on supervised release subject to conditions under 18 U.S.C. § 3583(a) & (d). Per § 3583(e)(3), if a defendant violates a condition, the district court may revoke supervised release and impose a new term of imprisonment called a revocation sen­tence.
  • Sanchez received a call from his ex-girlfriend, who told him that Hernandez “wanted to fight him one-on-one.”
  • Sanchez told his ex to tell Hernandez: “You know what, fuck you, come over here. We will fight one-on-one and get it over with.”
  • 20 minutes later Hernandez arrived at Sanchez’s apartment with 5–10 other people.
  • Sanchez grabbed a knife, walked outside, and in self-defense (per the findings of a Texas grand jury), stabbed Hernandez, killing him. There was no indication that anybody else was armed.
  • Probation officers informed the federal district court that Sanchez had violated his conditions of supervised release by “possessing a dangerous weapon.”
  • Sanchez pleaded “true” to possessing the weapon but argued against revocation.
  • The district court imposed a prison sentence of 32 months.

Although retribution is not allowed as a factor when considering revocation, it was not considered here

  • Review of a revocation sentence is under the plainly unreasonable standard: (1) evaluate the reasonableness of the sentence using the standards of appellate review applicable to criminal sentences generally per Gall v. United States, 552 U.S. 38, 46, 51 (2007), by asking whether the district court committed significant procedural error, such as failing to consider the applicable factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence, then assess the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard; (2) vacate the sentence only if the identified error is obvious under existing law, such that the sentence is not just unreasonable but plainly unreasonable. The “obviousness” prong of Fed. Rule App. Proc. 52(b)’s plain-error test controls even if the error was preserved.
  • Revocation sentences are governed by 18 U.S.C. § 3583(e)(3), which authorizes district courts to respond to a violation of the conditions of supervised release by imposing a new term of imprisonment after considering a list of factors that incorporates most of § 3553(a). Retributive purposes under § 3553(a)(2)(A) are not included.
  • The district court’s sentence did not consider retribution because Sanchez recklessly failed to take available, reasonable steps to remove himself from a situation in which he intended to use a deadly weapon, and the court implicitly found that Sanchez posed a potential future criminal threat to the public.
  • Sanchez’s revocation sentence is AFFIRMED.

Sealed Appellee v. Sealed Appellant, No. 17-50487, 2018 U.S. App. LEXIS 23011 (5th Cir. Aug. 17, 2018) (designated for publication) [Garcia-hearings, waiver of attorney-conflicts]

Facts:

  • Angus McGinty was the elected judge of the 144th Dist. Ct. of Bexar Co. from January 2011 until he resigned in February 2014.
  • In March 2013, an informant told the FBI that Acevedo (local criminal defense attorney) was paying for repairs to McGinty’s car in exchange for favorable rulings.
  • Recordings and a wiretap confirmed that Acevedo discussed paying to repair and sell McGinty’s car, and when the car sold to an undercover FBI agent for $700 less than McGinty was asking, Acevedo paid the difference.
  • When Acevedo texted McGinty to say he had the cash from the sale, McGinty responded: “Well, I’m a whore for money.”
  • After selling McGinty’s car, Acevedo paid to find, repair, and register a new car for McGinty.
  • Acevedo provided McGinty with $6,655 in car-related services.
  • Acevedo told the informant that McGinty did “a lot of shit” for him and that McGinty sold influence at a “relative steal”: Unlike a former judge who used to ask for “a grand every couple days,” McGinty “doesn’t ask for much. I’ll give him cash and he won’t say nothing.”
  • In August 2013, Acevedo called McGinty and requested that one of his clients be removed from electronic monitoring. Without asking the client’s name or what he was charged with, McGinty agreed.
  • In December 2013, FBI agents confronted Acevedo, who agreed to cooperate.
  • Acevedo claimed that he was not the only attorney with influence in McGinty’s court and implicated criminal defense lawyers Brown and Norton. Acevedo said his allegations were based only on his observations around the courthouse and admitted that he did not have concrete information that they were involved in corruption.
  • Acevedo then claimed that Brown and Norton made campaign contributions to judges and had more influence with judges than he did.
  • Acevedo also told a secondhand account that Brown had said that he heard from a local judge that Acevedo was debriefing with the feds on public corruption cases and wanted to know if the rumor was true.
  • In January 2014, McGinty hand-delivered a backdated check to the mechanic who repaired his car at Acevedo’s request. Agents watched and recorded the meeting.
  • FBI agents soon confronted McGinty, who initially lied about where he got the parts. After being presented with the evidence against him, McGinty stated that this looks really bad and that it appeared he had been “bought.”
  • McGinty said he wanted to speak with a lawyer (Brown).
  • In June 2014, McGinty was indicted for Federal Programs Bribery, Conspiracy to Commit Federal Programs Bribery, Extortion under Color of Official Right, and 12 counts of Honest Ser­vices Wire Fraud.
  • McGinty retained Brown and Norton.
  • The government filed a Notice of Potential Conflict of Interest, alleging that Brown also represented another defendant (Aranda) whom Acevedo previously represented in state court. The district court told McGinty that the government raised a potential conflict that could undermine McGinty’s representation, and he had a right to conflict-free counsel.
  • McGinty wanted to proceed with Brown and Norton.
  • McGinty pleaded guilty to 1 count of Honest Services Wire Fraud.
  • Under Fed. Rule Crim. Proc. 11(c)(1)(C), the court imposed an agreed 24-month sentence. In the plea agreement, McGinty stated that he was fully satisfied with his attorney’s representation and reiterated this at the plea hearing.
  • In December 2015, McGinty requested an interview with FBI agents during which he stated that while a judge, he received “favors” from Brown and Norton via cash and free legal representation and in exchange he set favorable bonds and probation rather than prison.
  • McGinty speculated that Brown and Norton advised him to plead guilty to protect themselves.
  • The FBI was unable to substantiate McGinty’s allegations. The defendant that McGinty claimed received probation due to Brown and Norton’s influence got probation based on a favorable plea deal negotiated with the prosecutor.
  • The government declined to prosecute Brown and Norton.
  • McGinty filed a motion to vacate per 28 U.S.C. § 2255, claiming that Brown and Norton were conflicted due to self-interest and being suspects in the FBI investigation. Because of these alleged conflicts, they “forcefully discouraged” him from cooperating with the government (i.e., told him that if he cooperated he would be labeled a snitch, his life would be in danger, and Brown and Norton would refuse to represent him).
  • The district court denied McGinty’s motion.

Even if there was a conflict of interest, appellant waived it

  • Under Cuyler v. Sullivan, 446 U.S. 335 (1980), a defendant is entitled to conflict-free counsel, and upon showing of an actual conflict, the defendant need not show prejudice.
  • Under Lee v. United States, 137 S.Ct. 1958, 1964 (2017), a defendant is entitled to effective counsel at all critical stages of a criminal proceeding, including entry of a guilty plea.
  • Review of the denial of a § 2255 motion is de novo for legal con­clusions and clear error for factual findings.
  • Like the right to counsel of any kind, the right to conflict-free counsel can be waived. Waiver is effective when it is knowingly, intelligently, and voluntarily done. However, not all conflicts are waivable.
  • A defendant may waive his right to independent counsel by intentionally and in bad faith pursuing a course of action deliberately designed to lay a groundwork for reversal.
  • When a defendant opts to proceed with his chosen counsel in the face of a known or suspected conflict, district courts must address each defendant personally in a Garcia hearing per United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), and advise him of the potential dangers of representation by counsel with a conflict of interest, which ensures that the defendant: (1) is aware that a conflict of interest exists; (2) realizes the potential hazards to his defense by continuing with such counsel; and (3) is aware of his right to obtain other counsel.
  • Although the district court held no Garcia hearing, the record shows a knowing, intelligent, and voluntary waiver. McGinty previously worked as a prosecutor, a criminal defense attorney, and a judge. And, the district court conducted a Garcia hearing regarding Brown’s concurrent representation of Aranda. The record shows that McGinty was aware of the alleged conflict.
  • The judgment of the district court is AFFIRMED.

United States v. Urbina-Fuentes, No. 17-40425, 2018 U.S. App. LEXIS 23140 (5th Cir. Aug. 20, 2018) (designated for publication) [Using the wrong U.S.S.G. is plain error if it results in a higher sentence]

Facts:

  • Urbina-Fuentes is a Honduran who crossed into the U.S. via the Rio Grande and was detained by federal agents in Laredo.
  • He previously unlawfully entered the United States in 2004 and 2013.
  • He was charged in a one-count indictment for reentering the United States after a deportation per 8 U.S.C. § 1326(a).
  • He pleaded guilty, accepting responsibility and admitting to the factual basis provided by the government.
  • Urbina-Fuentes had prior convictions for attempted burglary of a home in Florida and the 2013 unlawful reentry after deportation.
  • The PSR correctly stated that a court must ordinarily “use the U.S.S.G. Manual in effect on the date that the defendant is sentenced,” which here is the 2016 edition.
  • The Ex Post Facto Clause prohibits raising a defendant’s sentencing range higher than it would be if it were calculated under the edition in place at the time of a defendant’s criminal conduct. For Urbina-Fuentes, whose last “overt act [in this case]” occurred on February 8, 2016, this is the 2015 edition of the U.S.S.G.
  • The USPO concluded that the 2016 U.S.S.G.s would not create ex post facto issues and calculated a range of 24 to 30 months. Urbina-Fuentes did not object to the use of the 2016 edition.
  • Urbina-Fuentes was sentenced to 30 months. Under the 2015 U.S.S.G., the sentencing range would have been 15 to 21 months

Using the wrong U.S.S.G. is plain error if it results in a higher sentence

  • When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
  • Urbina-Fuentes did not intentionally relinquish the error, and the government concedes that the district court erred by using the 2016 U.S.S.G.
  • The error is plain because a conviction for burglary of a dwelling in Florida is not a “crime of violence” under the 2015 U.S.S.G.
  • The error affected his substantial rights since his sentence would have been substantially less had the court used the correct U.S.S.G.
  • The error seriously affected the fairness, integrity, or public reputation of judicial proceedings. The failure to correct a plain U.S.S.G. error that affects a defendant’s substantial rights will seriously affect the fairness, integrity, and public reputation of judicial proceedings per Rosales-Mireles, 138 S. Ct. 1897 (2018).
  • The sentence is vacated, and case is remanded for resentencing.

United States v. Vasquez, No. 17-50564, 2018 U.S. App. LEXIS 21963 (5th Cir. Aug. 24, 2018) (designated for publication) [Extraterritoriality of a statute]

Facts:

  • Vasquez was a hitman and drug-trafficker with the Zetas who worked his way up to become the “plaza boss” of Piedras Negras, a city across the border from Eagle Pass.
  • Vasquez routinely killed and ordered his underlings to kill sus­pected informants, competitors, defectors, debtors, those close to them, and others who drew Vasquez’s ire.
  • Suspected informants were a frequent target for death.
  • Reyes worked for the Zetas but began cooperating with U.S. law enforcement in 2009. After law enforcement repeatedly in­tercepted shipments of drugs, Vasquez grew suspicious.
  • Vasquez summoned Reyes to Mexico, where he tortured him until Reyes gave up the name of another informant. Vasquez then gave him cocaine, told him to pray, shot him, and dismembered and burned him.
  • Vasquez also killed suspected informant Abascal.
  • The Zetas also orchestrated mass killings with Vasquez’s help.
  • A jury convicted Vasquez of (Count 1) killing while engaged in offenses punishable under 21 U.S.C. §§ 841(b)(1)(A) or 960(b)(1) per 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2, (Counts 2, 6, and 8) conspiracy to possess marijuana, cocaine, and methamphetamine with intent to distribute per 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, (Counts 3, 4, and 7) conspiracy to import and distribute controlled substances per 21 U.S.C. §§ 952(a), 959(a), 960(a), 960(b)(1), and 963, (Count 5) employment of minors in drug operations per 21 U.S.C. § 861(a)(1) and 18 U.S.C. § 2, (Count 9) conspiracy to possess firearms in furtherance of drug-trafficking per 18 U.S.C. § 924(c)(1), (o), and (Count 10) false statements per 18 U.S.C. § 1001(a)(2).
  • Vasquez filed a postverdict motion for a judgment of acquittal, arguing for the first time that 21 U.S.C. § 848(e)(1)(A) does not apply extraterritorially and that the drug-trafficking offenses were lesser-included offenses of § 848(e)(1)(A), so double jeopardy precluded conviction of both. The district court denied the motion.
  • The district court imposed seven consecutive terms of life imprisonment on counts 1, 2, 3, 4, 6, 7, and 8; concurrent sentences of 10 years on count 5 and 20 years on count 9, and 5 years consecutive on count 10.

21 U.S.C. §848(e)(1)(A) applies extraterritorially

  • Under Fed. Rule Crim. Proc. 12(b), other than motions challenging jurisdiction (which can be filed at any time the case is pending) motions must be raised by pretrial motion if the basis for the motion is reasonably available and the motion can be determined without a trial on the merits. This includes motions alleging a defect in the indictment like the failure to state an offense. Otherwise, the motion is untimely. The court may consider the motion if the party shows good cause.
  • Extraterritoriality is a question on the merits rather than a question of a tribunal’s power to hear the case. An argument that a statute does not apply extraterritorially is not an argument that the court lacks jurisdiction.
  • The issue is unpreserved but not waived.
  • Waiver entails the intentional relinquishment or abandonment of a known right, and waiver of a right extinguishes errors. The court may correct a forfeited error only if it satisfies the plain error standard.
  • Plain error review applies because Vasquez failed to file a pretrial motion on this issue.
  • When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that, but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
  • Under EEOC v. Aramco, 499 U.S. 244, 248 (1991), superseded by statute, Civil Rights Act of 1991, 42 U.S.C. §§ 2000e, 2000e-1, 12111, 12112, Congress has authority to enforce its laws beyond the territorial boundaries of the U.S.
  • Under Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115 (2013), there is a presumption against extraterritoriality absent a clear indication from Congress that a statute applies extraterritorially.
  • Under RJR Nabisco, Inc. v. European Cmty., 136 S.Ct. 2090, 2101 (2016), to determine whether the presumption against extraterritoriality applies, the court determines whether the: (1) presumption against extraterritoriality has been rebutted (whether the statute gives a clear, affirmative indication that it applies extraterritorially); and if there is no such indication, (2) case involves a domestic application of the statute (if conduct relevant to the statute’s focus occurred in the U.S., then the case involves a permissible domestic application even if other conduct occurred abroad. But if the conduct occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.)
  • The presumption against extraterritoriality requires a clear indication of extraterritorial effect, not an express statement. The presumption against extraterritoriality is not a “clear statement rule.”
  • 21 U.S.C. § 848(e)(1)(A) gives a clear, affirmative indication that it applies extraterritorially because it requires proof of underlying offenses that apply extraterritorially: any person engaging in or working in furtherance of a continuing criminal enterprise in an offense punishable under 841(b)(1)(A) or 960(b)(1) who intentionally kills (or causes the death) of an individual shall be sentenced to not less than 20 years up to life or to death. And 21 U.S.C. § 959 provides that it “is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the U.S.”

Texas Court of Criminal Appeals

Arroyo v. State, No. PD-0797-17, 2018 Tex. Crim. App. LEXIS 814 (Tex. Crim. App. Sep. 12, 2018) (designated for publication) [Legal sufficiency of a child’s description of the touching of her “chest” versus “breasts”]

Facts:

  • Appellant was a family friend whom K. E. considered to be an “uncle.”
  • Appellant sometimes touched K. E.’s hair, neck, and arms.
  • When K. E. was 9 years old, K. E. testified, “he got more—he started touching my chest and it kind of—I’m crying, so I’m not—I don’t know how to explain it. I knew it was wrong, I just didn’t say anything at the time. And then. . . . I don’t know what happened. Like I didn’t make him stop. He started rubbing on my leg and he kept rubbing on my leg and then he went further up my skirt . . . my vagina underneath my skirt.”
  • K. E. described two other incidents where Appellant touched her chest, went down her chest, and up her skirt.
  • Appellant was convicted of 6 counts of indecency with a child: 3 counts by touching a child’s breast and 3 counts by touching a child’s genitals.
  • The court of appeals rejected the legal sufficiency challenges to the counts that alleged the touching of the genitals but agreed on the counts that alleged the touching of the breast, holding that the complainant’s use of the word “chest” did not necessarily mean “breast.”

When a child describes conduct as “touching or down my chest,” she may have been more likely to refer her undeveloped breast area as the “chest.”

  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
  • The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common de­sign to do the prohibited act. It is not required that each fact “point directly and independently to the guilt of the appellant” if the cumulative force of all the incriminating circumstances is sufficient to support the conviction.
  • When a child describes conduct as “touching or down my chest,” she may have been more likely to refer her undeveloped breast area as the “chest.”
  • The evidence was sufficient for a rational jury to conclude that Appellant touched K. E’s breast on three occasions, and that the conduct of touching K. E.’s breast was done with the intent to arouse or gratify the sexual desire of a person.
  • Judgment of the court of appeals is reversed.

Texas Courts of Appeals

Alvarez v. State, No. 01-16-00407-CR, 2018 Tex. App. LEXIS 7191 (Tex. App. Houston [1st Dist.] Aug. 30, 2016) (designated for publication) [doctrine of invited-error does not apply in jury-charge issues unless the defendant participates in submitting the instruction]

Facts:

  • Alvarez and others went out to a restaurant for dinner.
  • Alvarez became upset after realizing his bill included a service charge although he already had paid one of his servers a tip.
  • A Harris County deputy sheriff in full uniform was working an extra job as security at the restaurant.
  • The deputy saw Alvarez at the register “getting aggressive” and “irate,” and “using a lot of vulgar language” toward a cashier.
  • The deputy approached Alvarez and identified himself as a “po­lice officer.”
  • The deputy asked Alvarez to leave several times, informing him that he would be arrested for criminal trespass if he refused.
  • Alvarez remained in the restaurant, and the deputy attempted to handcuff him and arrest him for trespass.
  • After Alvarez failed to cooperate, the deputy “had to take him to the ground.”
  • During the arrest, Alvarez hit the deputy in his stomach area and legs several times, causing him pain.
  • Alvarez was indicted for assault on a public servant, and the case was tried to a jury.
  • The record does not show who requested an instruction for re­sisting arrest. Defense counsel agreed to the instruction.
  • At the close of evidence, the jury was instructed on assault of a public servant as charged in the indictment and the “lesser-included” offense of resisting arrest. The jury was instructed that if they believed that Alvarez was “guilty of either assault on a public servant or resisting arrest,” but had “a reasonable doubt as to which of said offenses” he was guilty, they were instructed to “resolve that doubt in the defendant’s favor and find him guilty of the lesser offense of resisting arrest.”
  • On the verdict form, the jury was required to choose between not guilty, guilty of assault on a public servant, or guilty of re­sisting arrest.
  • The jury found Alvarez guilty of resisting arrest.

When a defendant does not participate in submitting a jury-charge, the doctrine of invited-error does not apply, and he may complain about the charge on appeal

  • Under Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009), a defendant may not complain on appeal of a jury instruction he affirmatively requested, but the mere absence of a showing of responsibility for the inclusion of the charge on the lesser-offense does not stop an appellant from raising a challenge on appeal.
  • Alvarez did not object to the instruction at trial, and subject to the argument that the error was invited, the State concedes the instruction was a fundamental error that would require reversal.
  • There is no indication that Alvarez’s counsel helped to prepare the jury charge or that he submitted the jury instruction challenged on appeal.
  • When a defendant does not participate in submitting a jury-charge, the doctrine of invited-error does not apply, and he may complain about the charge on appeal.
  • When a defendant is found guilty of a lesser offense but not the charged offense, the defendant is effectively acquitted of the charged offense.
  • Case is remanded with instructions to vacate the judgment of conviction for resisting arrest and to enter a judgment of acquittal for assault on a public servant.

Bordelon v. State, No. 04-17-00093-CR, 2018 Tex. App. LEXIS 5864 (Tex. App. San Antonio July 31, 2018) (designated for publication) [Double jeopardy and manifest necessity]

Facts:

  • Bordelon was indicted for continuous sexual abuse of a child.
  • When his case was called in November 2015, counsel argued during voir dire, opening argument, and cross-examination that the allegations of the child were fabricated and were the result of marital issues.
  • Counsel told the jury that there was a second child involved (M.) who had also been interviewed by the CAC, that they would hear from M., that M. made no outcry, and that they would hear nothing happened.
  • After the State rested, counsel met with M. and her mother and then with M. by herself. Based on her conversation with M., defense counsel believed she was under a statutory obligation to report M. as the child-victim of sexual abuse per Tex. Fam. Code § 261.101(a).
  • Without disclosing anything revealed to her, counsel met with her client and inquired from the prosecutor whether the State was willing to extend offers to keep M. from having to testify.
  • Counsel notified the trial court that she believed that it was impossible for her to continue representing Bordelon.
  • Counsel was adamant she never revealed the specifics of her conversation with M. to the court or prosecutor. Counsel opined that as an outcry witness under Tex. Code Crim. Proc. Art. 38.072, she could be obligated to testify against her client.
  • The trial court held an ex parte hearing after which the trial court allowed counsel to withdraw and declared a mistrial. Bor­delon did not agree to the mistrial.
  • Under a new indictment, Bordelon was charged with continuous sexual abuse of a child charge (same as in the original indictment) (Count I); aggravated sexual assault of a child (Count II); and three counts of aggravated assault (Counts III–V).
  • Bordelon filed a pretrial writ of habeas corpus on Count I.
  • During the habeas hearing, habeas counsel argued trial counsel made the trial court aware of information it should have never been told. And because the trial court was in possession of wrongfully obtained information, the trial court granted a mistrial and made defense counsel withdraw, which left Bordelon without counsel.
  • Bordelon contends the trial court failed to consider lesser alternatives to granting a mistrial, such as granting a continuance to allow for another attorney to be brought in to represent him for the remainder of the trial, decide whether to call M. in its case-in-chief, or to forgo testimony relating to M. and proceed with the case.

The trial court did not abuse its discretion by granting the mistrial

  • Under Pierson v. State, 426 S.W.3d 763, 770 (Tex. Crim. App. 2014), an appellate court reviews a trial court’s decision to grant or deny an application for writ of habeas corpus under an abuse-of-discretion standard.
  • Under Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011), when raising a double-jeopardy claim on a pretrial writ of habeas corpus, the defendant must prove by the preponderance of the evidence that he is being tried for the same offense after declaration of a mistrial to which he objected. A heavy burden shifts to the State to demonstrate the mistrial was the result of manifest necessity. Application of legal standards are reviewed de novo, while the trial court’s determinations of findings of fact, implied findings of fact, or mixed questions of fact and law are afforded almost total deference especially when that decision turns on an evaluation of credibility and demeanor. An appellate court views all evidence in the light most favorable to the trial court’s ruling.
  • Under Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011), when raising a double-jeopardy claim on a pretrial writ of habeas corpus, the defendant must prove by the preponderance of the evidence that he is being tried for the same offense after declaration of a mistrial to which he objected. A heavy burden shifts to the State to demonstrate the mistrial was the result of manifest necessity. Application of legal standards are reviewed de novo, while the trial court’s determinations of findings of fact, implied findings of fact, or mixed questions of fact and law are afforded almost total deference especially when that decision turns on an evaluation of credibility and demeanor. An appellate court views all evidence in the light most favorable to the trial court’s ruling.
  • Under Arizona v. Washington, 434 U.S. 497, 505 (1978), two exceptions apply to the double jeopardy bar for a prosecution that ends due to a mistrial: (1) if the criminal defendant consents to retrial or (2) there was a manifest necessity to grant a mistrial. Prior to declaring the mistrial, the trial court must consider the availability of less drastic alternatives and reasonably rule them out, and failure to do so is an abuse of discretion. The trial court need not expressly articulate reasons for the mistrial so long as manifest necessity is apparent from the record.
  • In deciding whether manifest necessity existed, appellate courts must balance the defendant’s right to have his trial completed by a particular tribunal and the prosecutor’s entitlement to one full and fair opportunity to present his evidence to an impartial jury.
  • A trial court’s ability to declare a mistrial based on manifest necessity is limited to “very extraordinary and striking circumstances” where the circumstances render it impossible to arrive at a fair verdict, when it is impossible to continue with trial, or when the verdict would be automatically reversed on appeal because of trial error.
  • The record supports the trial court’s conclusion that a continuance would have prejudiced the jury rather than allowed time for new counsel to prepare for trial. The entire defensive strategy relied on M’s testimony, which was made impossible when trial counsel could not present M as promised nor could any other counsel. And, a child sexual assault case is complicated, so for a new attorney to enter a case after the State has rested its case-in-chief would not only cause hardship on the attorney but would be difficult and problematic to explain to the jury. Bordelon failed to show how the requested continuance would serve to his benefit.
  • The trial court’s order denying Bordelon’s pretrial writ of habeas corpus is affirmed.

Carrera v. State, No. 10-16-00372-CR, 2018 Tex. App. LEXIS 5728 (Tex. App. Waco July 25, 2018) (designated for publication) [“Material” evidence under Tex. Code Crim. Proc. Art. 39.14(a)]

Facts:

  • Carrera was accused of hitting a jail officer who was attempting to move him to another location within the Navarro County Jail.
  • Carrera was being moved after he had refused to follow directions given to him to stop communicating with the woman who was arrested with him who had been placed in an adjacent cell.
  • Three photographs taken shortly before the trial depict the inside of portions of the Navarro County Jail where the alleged offense occurred and a page from the Navarro County Policy Manual that describes the policies for the use of force in the jail had not been provided in pretrial discovery per Tex. Code Crim. Proc. Art. 39.14(a).

Tex. Code Crim. Proc. Art. 39.14(a) requires production of material evidence

  • Under Tex. Code Crim. Proc. Art. 39.14(a), upon a request of the defendant, the State must produce “designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.”
  • To establish that requested evidence is material, a defendant must provide more than a possibility that it would help the defense or affect the trial.
  • Under Ehrke v. State, 459 S.W.3d 606, 611 (Tex. Crim. App. 2015), evidence is material if it affects the essential proof that the defendant committed the offense charged.
  • Carrera fails to argue that the evidence was material.
  • The trial court did not abuse its discretion by admitting the exhibits into evidence.
  • Judgment and sentence are affirmed.

Hinojosa v. State, No. 10-15-00356-CR, 2018 Tex. App. LEXIS 5744 (Tex. App. Waco July 25, 2018) (designated for publication) [A request from the defense is required to trigger Tex. Code Crim. Proc. Art. 39.14(a)]

        To trigger the requirements of Tex. Code Crim. Proc. Art. 39.14(a), a timely request that designates the items requested to be produced must be made to the State from the defendant. Absent such a request, the State’s affirmative duty to disclose evidence extends only to exculpatory information.

Facts:

  • The trial court admitted evidence of statements given by Hinojosa relating to her participation in alleged extraneous offenses that had not been provided to Hinojosa prior to trial under Tex. Code Crim. Proc. Art. 39.14(a).

A request is required to trigger Tex. Code Crim. Proc. Art. 39.14(a)

  • To trigger the requirements of Tex. Code Crim. Proc. Art. 39.14(a), a timely request that designates the items requested to be produced must be made to the State from the defendant. Absent such a request, the State’s affirmative duty to disclose evidence extends only to exculpatory information.

Majors v. State, No. 10-17-00041-CR, 2018 Tex. App. LEXIS 5752 (Tex. App. Waco July 25, 2018) (designated for publication) [Sufficiency of the evidence of possession of a firearm and a discovery motion to the trial court is not the same as a request under Tex. Code Crim. Proc. Art. 39.14(a)]

  • Under Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005), the sufficiency of the evidence for possession of a firearm by a felon is considered under the standards adopted for establishing the sufficiency of the evidence of possession of a controlled substance. The State must establish that the defendant knew of the weapon’s existence and that he exercised actual care, custody, control, or management over it. The State may prove possession through direct or circumstantial evidence, although the evidence must establish that the accused’s connection with the weapon was more than fortuitous. When the accused is not in exclusive control of the place the weapon was found, there must be independent facts and circumstances linking the accused to the contraband. Affirmative links to the contraband may circumstantially establish an accused’s knowing possession of a firearm, including whether: (1) he was present when the search was conducted; (2) the firearm was in plain view; (3) the firearm was in close proximity to him and he had access to the firearm; (4) he had a special connection to the firearm; (5) he possessed other contraband when arrested; (6) he made incriminating statements when taken into custody; (7) he attempted to flee; (8) he made furtive gestures; (9) he owned or had the right to possess the place where the firearm was found; (10) the place where the firearm was found was en­closed; (11) conflicting statements on relevant matters were given by the persons involved; and (12) his conduct indicated a consciousness of guilt.
  • The absence of links does not constitute evidence of innocence to be weighed against the links present. The court instead measures the sufficiency by looking to the logical force of all of the evidence rather than the number of links present in a given case.
  • To trigger the requirements of Tex. Code Crim. Proc. Art. 39.14(a), a timely request that designates the items requested to be produced must be made to the State from the defendant. Absent such a request, the State’s affirmative duty to disclose evi­dence extends only to exculpatory information.
  • The required request under Tex. Code Crim. Proc. Art. 39.14(a) is not the same as a discovery motion that requests the trial court’s action, which is an order from the court directing the State to produce evidence.

Drug-Free Zones

I. Relevant Statute—Tex. Health & Safety Code § 481.134

While not terribly long, the Texas drug-free-zone (DFZ) statute has some byzantine qualities, with numerous code cross-references that would make a tax attorney’s eyes glaze. Pull out your code book as you read this article for maximum comprehension of the intricacies of the DFZ statute. The most important question in terms of our clients’ interests are the statute’s effects . . .

II. Statutory Consequences, Effects, and Other Bad Stuff

There are, of course, many consequences to any criminal conviction, and this article does not attempt to enumerate them all. Rather, this article focuses on a defendant facing a DFZ allegation for the first time and the most serious consequences of the addition of a DFZ finding to a con­trolled-substance conviction.

A. Offense level increases
Subsections (b), (d), (e), and (f) provide for level in­creases in punishment range if the base offense is committed within specified areas. Specifically listed second-degree felonies become first-degree felonies; state jail felonies become third-degree felonies; Class A misdemeanors become state jail felonies; and Class B misdemeanors become Class A misdemeanors.

 Each of these subsections increases the maximum pun­ishment for the predicate offense; while no specific case has addressed the effect of Apprendi v. New Jersey on these subsections, it seems clear that application of Apprendi means that in order to seek the increased maximum punishment, the State is required to prove the DFZ allegation as an element of the offense. This also means that the State is required to allege the DFZ allegation as part of the indictment, which gives rise to a multitude of possible charging errors for which to be on the lookout.1
 It is important to note that Subsection (b) is worded a bit differently than the other subsections. While the other subsections increase the penalty range when certain enumerated conditions are met “on the trial of the offense,” § 481.134(b) specifically states that it applies “if it is shown at the punishment phase of the trial.” Subsection (b)’s zone definition is also different than the other subsections, and the chosen language could, therefore, reflect a choice by the Legislature to dictate that DFZ evidence is irrelevant at guilt-innocence for those specific offenses; if accepted, the effect of Apprendi could be to render application of §481.134(b) unconstitutional.
 Another important detail derives from the effects of § 481.134(e), which provides for increasing certain offenses from Class A misdemeanors to state jail felonies. Since misdemeanors are, except in certain limited circumstances, outside the jurisdiction of district courts, and more particularly, since felonies are outside the jurisdiction of county courts/county courts-at-law, the addition of (or lack of) a Subsection (e) DFZ allegation is jurisdictional in nature.

B. Increased mandatory minimum sentence!
Unlike its counterparts, which provide for offense level in­creases, Tex. H&S Code § 481.134(c) provides for increased minimum mandatory sentences that are draconian at the very least. The minimum sentence for any offense falling within that subsection is increased by five years, and the maximum fine is doubled, with the DFZ finding treated as a sentencing enhancement rather than as a substantive element of the offense. This means that the minimum punishment for a third-degree or second-degree felony offense goes from 2 years up to 7 (yes, seven) years!
 This five-year enhancement is tacked on after all other sentencing enhancements are added—meaning, for example, that someone convicted of a third-degree felony with affirmative DFZ finding who has two prior felony convictions is subject to a minimum 30-year sentence instead of the usual 25-year minimum.

C. Offense level increase PLUS increased minimum?!
For combinations of a few DFZ areas (“the premises of a public or private youth center or a playground”) and a few specific predicate offenses (§ 481.112(c), § 481.113(c), § 481.114(c), and § 481.120(b)(4)), both the offense level increase of § 481.134(b) and the increased minimum enhancement of § 481.134(c) appear to apply, increasing these offenses from second-degree felonies to enhanced first-degree felonies with a punishment range of life or 10–99 years plus a fine of up to $20,000. Given that closely related conduct (i.e., predicate offenses within 1,000 feet of an institution of higher learning or a “school”) does not fall within this overlap, there’s a good argument to be made that this language resulted from indelicate legislative drafting, and that the result of applying both the offense-level increase and the enhancement would constitute “cruel and unusual punishment.”

D. MANDATORY STACKING!
§ 481.134(h) provides for mandatory consecutive sentencing for any DFZ sentence “with punishment for a conviction under any other criminal statute.” However, this doesn’t mean that any other conviction must be stacked; convictions for offenses that are listed in § 481.134 (whether the other conviction actually involves a DFZ) are still subject to the concurrent-sentencing provisions of Tex. H&S Code § 481.132 whether or not the sentences arise from the same transaction or as a result of separate proceedings. Moore v. State, 371 S.W.3d 221 (Tex. Crim. App. 2012); Williams v. State, 253 S.W.3d 673 (Tex. Crim. App. 2008); Merritt v. State, 252 S.W.3d 757 (Tex. App.—Texarkana 2008).2

E. MINIMUM TIME TO BE SERVED
An ancillary consequence regarding DFZs is a dictated minimum term of service prior to eligibility for parole. Tex. Gov’t Code § 508.145(e) provides that an individual “serving a sentence for which the punishment is increased under Section 481.134, Health and Safety Code, is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good conduct time, equals five years or the term to which the inmate was sentenced, whichever is less.”
 This means that if a defendant is sentenced to the in­sti­tutional division with the increase under Section 481.134, (s)he will serve at least every day of the first five years of the sentence, regardless of good conduct time credits. A conviction for an offense that would normally be a state jail felony but that becomes a third-degree felony would result in no parole availability until at least five years have been served—meaning that sentences of 2 to 5 years will not be subject to parole. Sentences that are increased to first-degree felonies, or for which the minimum sentence is increased five years (or both), would be incarcerated for a minimum of five of those years. Given the annual average cost of incarceration of $22,012 per inmate (as of 2015— more recent numbers are likely higher), the increased penalties plus mandatory period of incarceration could cost taxpayers over $100,000 per defendant.3 Note that probation eligibility isn’t affected; a defendant facing a third-degree felony with a sentencing range of 7–10 years is still probation-eligible.4

III. What Does the State Have to Prove to Get Such Harsh Sentences?

Whether dealing with offense-level increases that must be pled as an element of the offense per Apprendi or with sentencing enhancements, the State is required to prove that the DFZ increase/enhancement applies per the statutory language. Generally, there are three required parts for the State to prove a DFZ increase/enhancement applies: (1) that the offense was committed within (2) a given distance of (3) a sensitive place. One thing that the State is specifically not required to prove is that a defendant knew he was within a DFZ. See Bridges v. State, 2014 WL 7204720 (Tex. App.—Amarillo 2014).

A. Sensitive places
For purposes of this article, “sensitive place” includes any of the specific places used in § 481.134. Most, but not all, of the specific places—“institution of higher education,” “public swimming pool,” “video arcade facility,” and “youth center”—are generally associated in the statute with the term “premises,” which includes all “real property and buildings and appurtenances” pertaining thereto. Even when used without the term “premises,” there is generally some reference to “real property.” The net effect is that for these sensitive places, the State must simply provide some evidence, which can be as little as an officer’s statement that a location is a sensitive place, that the location meets one of the statutory definitions. See, e.g., White v. State, 59 S.W.3d 368 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d & reh’g on pet. denied) (officer’s testimony that school was present on church premises sufficient to support conviction); Young v. State, 14 S.W.3d 748 (Tex. Crim. App. 2000) (officers’ testimony that premises was school sufficient); Hastings v. State, 20 S.W.3d 786 (Tex. App.—Amarillo 2000, pet. ref’d) (testimony that premise was named “Wheatley Elementary School” combined with officer’s testimony that it was school was sufficient). One important consideration is that for most sensitive places, they satisfy the statutory definition regardless of whether they are in session or not.
 It is also worth noting that the various DFZ provisions providing offense-level increases for drug offenses around schools and institutions of higher learning include not only the educational facilities themselves but any real property “owned, rented, or leased” by either a school/school board or an institution of higher learning.5

B. Distance
For most sensitive places, the very definition of the sensitive place includes all real property thereof; the appropriate place for the State to measure is therefore from the closest property line. Whether dealing with the 1,000-foot DFZ (included in all relevant subsections of § 481.134) or with the 300-foot DFZ (§ 481.134(b)(2)), the State may rely on any evidence that satisfies the Texas Rules of Evidence on the question, including officers’ measurements, aerial photographs, expert testimony, and the like.
 In addition to standard evidence, including ordinary maps, the statute provides for the creation of maps “produced or reproduced by a municipal or county en­gineer for the purpose of showing the location and boundaries of drug-free zones.” Tex. H & S Code § 481.135. Such maps are required to be filed with the county clerk, and are in and of themselves not only admissible, but constitute prima facie evidence as to where the edge of a drug-free zone lies. Be sure to check for these maps with the county clerk if you handle any drug cases.

C. Conduct Occurred Within the DFZ
The State must also show that the transaction complained of—the defendant’s possession, manufacture, delivery, or possession with intent to deliver—occurred either actually or constructively within the DFZ. It is insufficient to show that negotiations for a delivery took place within a DFZ when the actual delivery took place outside the DFZ unless there is evidence that the defendant intended to make delivery via a non-law enforcement agent intermediary to an individual located within the DFZ. See Villalobos v. State, 2006 WL 566464 (Tex. App.—Amarillo 2006). Importantly, this case demonstrates that when a delivery takes place outside a DFZ to one posing as an intermediary who is either an undercover officer or an informant acting on behalf of law enforcement, the offense is complete upon the initial delivery, and the DFZ is not implicated.

IV. Statutory Definitions

A. Sensitive place definitions, in relevant part6

1. “Premises”: real property and all buildings and appurtenances pertaining to the real property. Note that this definition is distinctly different from the definition of “premises” as related to possession of firearms and other weapons on school property.

2. “Institution of higher education”: any public or private technical institute, junior college, senior college or university, medical or dental unit, or other agency of higher education as defined by Section 61.003, Education Code.

3. “School”: a private or public elementary or secon­dary school, or a day-care center, as defined by Section 42.002, Human Resources Code.
 Note that private schools are included here; disputes could arise, e.g., regarding whether private homes when used for home schooling qualify, especially in light of obiter dicta reaching that conclusion expressed in White v. State, 59 S.W.3d 368 (Tex. App.—Houston [1st Dist.] 2001).

a. “Day-care center”: a child-care facility that provides care at a location other than the residence of the director, owner, or operator of the child-care facility for seven or more children under 14 years of age for less than 24 hours a day, but at least two hours a day, three or more days a week.

b. “Child-care facility”: a facility licensed, certified, or registered by the department [of Family and Protective Services] to provide assessment, care training education, custody, treatment, or supervision for a child who is not related . . . to the owner or operator of the facility.
 Note: There is a reported case—and instructive on matters a defense counsel should investigate—which has indicated that the State is not required to provide evidence of licensing, certification, or registration absent some evidence that a facility is operating without such. Haagensen v. State, 346 S.W.3d 758 (Tex. App—Texarkana 2011).

4. “Video arcade facility”: any facility open to the public, including persons 17 years of age or younger, that is intended primarily for the use of pinball or video machines, and contains at least three such machines.
 The provision that the facility be open to the public is of paramount importance; the State’s failure to establish that a facility is open to the public at large may result in acquittal; see “playground,” infra.

5. “Youth center”: any recreational facility or gymnasium that is intended primarily for use by persons who are 17 years of age or younger, and regularly provides athletic, civic or cultural activities.
 This term has a certain amount of vagueness deriving from the “regularly provides” language, with no guidance given on how regularly such activities must be offered at such a facility. YMCAs/YWCAs and other similar facilities are clearly targeted by this provision, but some prosecutorial resources suggest that facilities which would not otherwise be “youth centers” may suddenly qualify during certain times of the year, such as during summers (or, conversely, perhaps during a school year) when activities tailored towards youth might be conducted with some regularity.

6. “Playground”: any outdoor facility that is not on the premises of a school and that is intended for recreation, is open to the public, and contains three or more play stations intended for the recreation of children, such as slides, swing sets, and teeterboards.
 This provision suffers from some vagueness inasmuch as there is no specific association with a term indicating an association with particular real estate or how extensive such a relationship might be. An overreaching prosecutor might argue that an area 50-feet square containing some playground equipment would, as a result, make the entire 3-square-block park on which said area is located a sensitive place for DFZ purposes.
 Additionally, as with “video arcade facility,” the requirement that a facility be open to the public is highly important. See, e.g., Ingram v. State, 213 S.W.3d 515 (Tex. App.—Texarkana 2007) (State’s failure to demonstrate that the “public at large had access or permission to use” an outdoor recreational area with the requisite equipment resulted in insufficient evidence to support a DFZ offense level increase).

B. Drug-Free Zones
There are three basic combinations of the foregoing places (plus one that is undefined but relatively straightforward) from which DFZs themselves are defined. Additionally, some terms appear in more than one subsection. There is a slight difference between the second and third DFZ definition, since offense level increases for relatively minor possession or manufacture, delivery, or possession with intent to deliver offenses are possible around any real property in which a school dis­trict has some right of possession, whereas the five-year enhancement is restricted to the real property of an actual educational facility.

1. DFZs relative to manufacture, delivery, or possession with intent to deliver offenses that would ordinarily be state jail felonies or second-degree felonies are increased one offense level (§481.134(b)):

In, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning, the premises of a public or private youth center, or a playground, or in, on or within 300 feet of the premises of a public swimming pool or video arcade facility.

2. DFZs relative to any manufacture, delivery, or possession with intent to deliver offenses and any possession offenses except for penalty group 1A that would, prior to application of § 481.134, be third-degree felony or higher offenses: These are subject to the five-year increased minimum and doubled fine if the enhancement is proven (§ 481.134(c)):

In, on, or within 1,000 feet of the premises of a school, the premises of a public or private youth center, or a playground, or on a school bus.

3. DFZs relative to manufacture, delivery, or possession with intent to deliver offenses and any possession offenses that would ordinarily be misdemeanors or state jail offenses. Note that there is overlap between some of the place/offense combinations included in this definition and the definition in paragraph (1), above, though for these combinations the net effect (SJF–>3rd) is the same (§ 481.134(d), (e), & (f)):

In, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board, the premises of a public or private youth center, or a playground, or on a school bus.

4. Places excluded from the definition of DFZs:
The only places within DFZs for which otherwise-enhanceable conduct is nevertheless excluded from the application of § 481.134 are those identified in subsection (g): private residences, so long as (1) no minor is present, and (2) the offense is one identified in § 481.134(f) (i.e., possession of a penalty group 4 substance less than one gram; possession of a miscellaneous controlled substance; possession of two ounces or less of marijuana; or delivery of less than a quarter ounce of marijuana without remuneration).
 Since this provision is worded as a “does not apply” provision, this has the effect of operating as a de­fense to prosecution. See Tex. Pen. Code § 2.03. The Legislature is increasingly making efforts to create what it intends to be exceptions to prosecution for a variety of offenses, but because it consistently fails to properly invoke the language of TPC § 2.02, these efforts all result in creating defenses rather than exceptions. (See, e.g., H.B. 989, 84th Leg., Reg. Session, 2015).

V. Recent Changes

One should always keep in mind that nothing is safe while the Legislature is in session. Following are some recent changes that apply to the general discussion of DFZs:

30.02—burglary

  • What is otherwise a state jail felony becomes a third-degree felony if a person enters the building or remains concealed in the building with the intent to commit theft of a controlled substance

30.04—burglary of a vehicle

  • What is otherwise a Class A misdemeanor becomes a state jail felony if a person enters into the vehicle with the intent to commit theft of a controlled substance

Tex. H&S 481.1191

  • Putting “not for human consumption” is not a defense to civil liability for the ingestion of a synthetic sub­stance

Tex. H&S 481.1131

  • Provides a civil cause of action where providing, selling, or serving synthetic cannabinoids where proof of intoxication on the same of the recipient was the proxi­mate cause of damages (like a dram-shop act for synthetic cannabinoids)

Tex. H&S 481.103(d)

  • This subsection, which previously provided a defense to prosecution for either possession or manufacture/delivery of a controlled substance in PG2 where the substance had been approved by the FDA, has been removed

Penal Code 22.021(vi)

  • Removed a list of specific date-rape drugs and replaced it with the following: “any substance capable of impairing the victim’s ability to appraise the nature of the act or to resist the act.”

VI. Parting Thoughts

Because of the complexity of the statute, the foregoing is focused only on first-time offenders of drug-free zones. A defendant with prior criminal history may be subject to en­hance­ments that increase the offense level before the ap­pli­cation of § 481.134; if so, those enhancements apply before application of § 481.134(c).

 Texas Code Crim. Proc. Art. 42A.054(14)(B) also comes into play if a citizen accused has a prior conviction with a DFZ finding. If this situation applies, and the defendant is charged with a new offense under subsections (c)–(f), then the new offense is one for which probation is not available. Bottom line: Be careful of the intricacies and read the statute every time!

Notes

1. While there appears to be no Apprendi case dealing with the specific issue, the few pre-Apprendi cases that consider the appropriate point at which the State should prove the DFZ issue determined that the State has discretion to prove it in either phase of trial. See, e.g., Harris v. State, 125 S.W.3d 45 (Tex. App.—Austin 2003, pet. dism’d), citing Hastings v. State, 20 S.W.3d 786 (Tex. App.—Amarillo 2000, pet. ref’d). Apprendi appears to curtail the State’s discretion to require proof during guilt-innocence.

2. When evaluating whether the mandatory consecutive sentence provision applies, one must take care to ensure that the other offense of conviction involves an offense that is listed in § 481.134; for instance, § 481.1151, possession of a penalty group 1A substance, is for some inexplicable reason not mentioned.

3. Given these costs to taxpayers, there is some irony in the fact that a TDCAA paper written on DFZs describes the minimum time of service provision in the following language: “Not that many statutes give you that kind of bang for your buck!”

4. Even for the DFZ-enhanced third-degree felony, the maximum period of community supervision is five years. Tex. Code Crim. Proc. Art. 42A.053.

5. See § 481.134 (b), (d)–(f).

6. Some minor alterations/streamlining of statutory language and/or omission of outline form is incorporated for readability. The reader is always encouraged to verify the statutory language as definitions are apt to change with the whims of the Legislature.

Seven Ways to Win (in Chess and Trial)

Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.

—Sun Tzu

The key to victory in trial is to prepare and plan a winning strategy before trial, not after trial has begun. Keep these seven effective strategies for success in mind before your next battle.

1. Keep your opponent off balance

Pretend inferiority and encourage his arrogance. If you know the enemy and know yourself, you need not fear the results of a hundred battles.

—Sun Tzu

Get to know your opponent. Study your opponent and his moves before you ever sit across from him in battle. Ask others for information about him and about experiences they have had with him. Identify his strengths and weaknesses. Try to determine his level of honor and integrity. On the other hand, don’t ever let your opponent learn about you. Keep him in the dark about who you are and what your plan is. The more you talk, the more information you give your opponent about your plans and your personality, temperament, and preparedness. Don’t give your opponent a chance to figure you out. Keep him guessing. Appear mysterious, aloof, or even a bit crazy and unpredictable.

2. Start strong—have an opening strategy

I first heard from Robert Hirschhorn that you should never forego an opening statement. It should be a strategic storytelling event. If your opponent objects to you telling your story, stop . . . pause . . . say, “The evidence will show,” and go right back to where you were in your story. Don’t give away the whole movie in your trailer, give them just enough to pique their curiosity. Whet their appetite but stop short of showing them the whole enchilada.

3. Don’t capture just to capture

Taking pieces just to take pieces may not advance your strategy in chess. It might actually hurt you. You may be helping your opponent by taking easy pieces while he advances into a more strategic position earning more points. In trial, don’t object just to object. You should be trying enough cases to be able to begin to predict with some accuracy what objections will be sustained or overruled by what judges. A good rule of thumb is to only object when the question or answer will hurt your case. If it doesn’t hurt, why object? It only disrupts the trial, draws possibly unwanted attention from the jury, and if you are overruled, then you lose points. Another good reason to object selectively is because what goes around may come around. If your opposing counsel is leading a ton on direct or making lots of speaking objections (that don’t hurt you), then you will probably be given the same latitude from the Court when it’s your turn. Use it to your advantage.

4. Attack where weak

The opportunity to secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.

—Sun Tzu

In chess, if your opponent has a weak side, attack it. If he has an underdeveloped middle board, exploit it. In trial, attack the issues that are weakest for the State. Don’t use a shotgun approach by attacking everything in sight. Focus on the several good issues you have spotted that are weak for the State and only attack those. Use a focused approach to exploit the weak parts of the State’s case.

5. Keep the pressure applied

When you’ve got your opponent on the ropes, keep him there. If you have gained a powerful position, don’t let off the pressure. If the king or queen is being attacked from multiple directions, one wrong move lets him off the hook and reverses all your good work. With witnesses in trial, you must continually work to cut off all escape routes. Look for and anticipate all the outs your opponent may have. Keep the pressure on them so they can’t get away. Lock them down to their favorable testimony by repeating the testimony in the form of your next three questions.

6. Close it out strong—have a closing strategy

Even the best opening strategy and midgame attack is useless without a strong closing strategy. If you can’t close it out, you lose. You must not let all your good moves go to waste by not being able to pin the king! Your closing statement is your chance to shine and checkmate your opposing counsel. The object of closing is to take all the points you made in trial, bring them together, and deliver a powerful blow to the State by arguing that you have presented so much reasonable doubt that the only decision is Not Guilty. I’m a firm believer in gut feelings. I tell jurors in all my closings that if your first reaction, or your gut feeling, is that you have some reasonable doubt, then you are done and your decision is easy . . . Not Guilty. Tell jurors that if they start deliberations with a gut feeling that the case wasn’t proved, they are not to go searching for ways to explain away the reasonable doubt. I challenge them to stand strong in their beliefs to not let anybody change their mind—no matter what the foreperson thinks, no matter what time it is, no matter how uncomfortable deliberations become . . . Be strong and never let anybody change your mind for you if you feel there is reasonable doubt.

7. Consider offering a draw

He who knows when he can fight and when he cannot, will be victorious.

—Sun Tzu

Sometimes the best outcome, if you are losing, is a draw. Offer it and take it gladly. As a general rule, if you go to trial and your client is not convicted, then you won! In trial, if you feel things did not go your way and the jury is hung . . . ask for a mistrial. It may be a big victory under the circumstances. This is not a general, across-the-board rule, though. If you feel the jury is on your side and there is only a minority holding out . . . consider foregoing the draw. If you are confident the vote is in your favor, do not ask for a mistrial.

Remember, good things happen when you announce ready for trial. Be a trial lawyer. Go to trial.

TCDLA Inside Story

Does anyone remember the inside story about how TCDLA was born? Does anyone remember the likes of Tony Friloux, Phil Burleson, or Frank Maloney? And while you ponder those questions, imagine a criminal defense practice in Texas without TCDLA. Imagine practicing without defense-oriented books and written resources. Imagine practicing without the focused and quality continuing legal education we enjoy today. Imagine life without a strong criminal defense lobbying force in the Texas Legislature. Or simply imagine trying to bridge the gap between law school and a financially viable law practice all by yourself. Well, that was life prior to 1971 . . . before TCDLA was born.

The inside story on the birth of TCDLA began at the 1970 Dallas State Bar Convention. Frank Maloney, the first president of TCDLA, recalled Tony Friloux handing out flyers at the convention advocating for the establishment of a statewide criminal defense lawyer’s organization. Tony had recently organized the Harris County Criminal Bar Association and had much support from his loyal Harris County brethren for the establishment of TCDLA.

At the same time, Phil Burleson was a leader among the Dallas criminal defense bar. He noticed Tony’s efforts and saw how Dallas defense attorneys were supportive of his idea. Phil was then instrumental in organizing the now-famous meeting of defense attorneys at the Petroleum Club in the upscale Adolphus Hotel. There, factions from Houston and Dallas debated over who would lead this new defense lawyer organization.

Reliable sources revealed an agreement was reached between the two groups wherein Tony Friloux would be voted in as the first president the next year when the Bar met in Houston for its annual convention. Further, Phil Burleson would receive support from Tony for his own presidential bid the following year. And the need for comity was imperative at that time since TCDLA would be circling its wagons to combat the District and County Attorney’s Association during the coming legislative session regarding the enactment of the new penal code. Joe Goodwin of Beaumont was credited with facilitating this peace between both sides in an effort to get the nascent TCDLA established and off on the right track.

And don’t we know the best-laid plans of mice and men often go awry? At the next year’s Bar convention, neither Tony nor Phil could muster enough votes to get elected president. Consequently, plan B went into effect. Tony and Phil agreed the most innocuous person left, Frank Maloney, should be nominated. Frank was consequently nominated and then elected as TCDLA’s first president. Interestingly, Frank always claimed he did not want the job, but a close friend had persuaded him to accept. His leadership was necessary not only from a personal perspective, but also for the health and well-being of the infant TCDLA.

Frank Maloney’s first order of business was to convince the elected Board of Directors the organization desperately needed an executive director to help run the day-to-day operations. Frank incorporated the organization and hired Bill Reid as the first executive director of TCDLA. From an office in the Brown Building, Bill and Frank wrote to every district court judge in Texas seeking recommendations on leading criminal defense attorneys around the state who would be invited to join. The Board agreed on the $150 membership fee while Bill designed an application, which was sent out to all the recommended attorneys. Frank remembers fondly how he and Bill hung a big map of Texas on the wall and stuck in a pin at the address for each member who joined as a result of their initial efforts. The result? Over 200 dues-paying members that first year in 1971.

The first TCDLA Board meeting took place at the Lakewood resort outside of Austin. Bylaws were proposed and finalized at the Rice Hotel in Houston the following year. Frank explained from that point, TCDLA “began to roll,” becoming the supportive and forceful organization we know today. And in the years following, both Tony Friloux and Phil Burleson were eventually elected president – both putting their personal touches on the organization we all have come to appreciate and depend upon.

Thankfully, in 2018 we don’t have to imagine practicing criminal law in Texas without books and resources, without quality continuing legal education, or without a force in the Texas Legislature. Indeed, the dream of a few visionaries in 1970 made our professional lives possible today. And long after these visionaries pass away, TCDLA will continue to train and support one of the nation’s most effective criminal defense lawyers’ organization ever conceived—the TCDLA.

October 2018 Complete Issue – PDF Download

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Features
19 | Drug-Free Zones – By David M. Guinn Jr. & Aaron R. Clements
25 | Seven Ways to Win (in Chess and Trial) – By Tyler Flood
27 | TCDLA Inside Story – By Vincent Perini

Columns
6 | President’s Message
8 | Executive Director’s Perspective
10 | Editor’s Comment
11 | Ethics and the Law
13 | Federal Corner
17 | Shout Outs

Departments
5 | CLE Seminars and Events
38 | Significant Decisions Report

President’s Message: Coming Back to Bite You – By Mark Snodgrass

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After I graduated from high school, I was blessed with the opportunity to play football at Texas Tech. My first year was also Spike Dykes’ first year as head coach at Texas Tech. If you did not know Coach Dykes or at least know of him, you missed out on a one-of-a-kind personality. As you can imagine from a man called Spike, he was quick to give nicknames to people. With the last name Snodgrass, he always called me Boogerweed. He was a man of many words and was never hesitant to say what he thought. When expressing his thoughts, he never held back what he was really thinking. After one in particular uninspired performance that resulted in a lopsided loss, Coach Dykes told the assembled media, “We played like three tons of buzzard puke this afternoon.” This was a typical “Spikeism.”

There were other sayings and stories that were always repeated. At Friday afternoon walk-throughs before games, at some point you would always hear, “Okay men, the hay is in the barn.” His way of telling us that all the preparation was done, and we were ready to play the game. Another line was, “Who are you going to call to hold the rope?” This one came from a story he would always tell about hanging over the edge of a cliff by a rope and only having one dime to call a teammate to save you. The obvious moral was to be the person your teammates could rely upon in time of crisis. I probably spent too much time trying to figure out where you were going to find a pay phone to call someone while hanging over the edge of a cliff—and as a result ended up a lawyer and not much of a football player.

Coach Dykes also seemed to believe that there was some transitive property to college football. At the first team meeting every August at the start of two-a-days, he would always give a long speech to the whole team. The speech would always finish up with a convoluted tale about how we had beaten Texas A&M by 7 points, and they beat Arkansas by 10 points, and Arkansas beat whoever on down the line. By the end of him telling us who beat who, it would end with, “Good Lord, men, we would have beat Miami by 49 points, and they won the National Championship!”

During my years at Texas Tech, the Depot District was the area of town for college students to go for entertainment. It was also the area of town that was liable to get you in trouble. One last story that Coach Dykes always told at the first of two-a-days and whenever someone got into trouble started off, “Men we are 0-30 at the Depot.”

He would then go on to tell that when he was a kid growing up in Ballinger, there was a short cut to school—or to his girlfriend’s house or somewhere (depending on which day he was telling the story)—that went through Ms. Jones’ backyard. Ms. Jones had a big mean chow dog that would bite you every time you took the short cut. This story then led to every time you did something stupid or got in trouble being told, “Don’t let Ms. Jones’ chow dog bite you.”

If you have made it this far, I am guessing that you are probably asking, “What does any of this have to do with the Texas Criminal Defense Lawyers Association?”

One of the best services TCDLA offers its members is the Ethics Hotline. The Ethics Committee is chaired by Robert Pelton and co-chaired by Mike Mowla. The committee is comprised of 20 or so other lawyers throughout the state, many of whom have served on grievance committees or have represented people in grievance proceedings—all of whom regularly practice criminal defense law. The Ethics Hotline can be reached at 1-512-646-2734. Most calls are responded to within hours. Serving as a member of this committee while president of TCDLA has impressed further upon me what a great service these folks do for our membership. In every case I have seen, the responses were quick, well-reasoned, and well received by the member who sought advice. All matters remain confidential unless the member chooses otherwise.

If you find yourself in a situation where your client wants you to do something you do not feel is appropriate, or you are just not sure what the right thing to do is, please know that TCDLA has someone there to hold the rope. All you have to do is make the call. Just remember to not let Ms. Jones’ chow dog bite you.

Executive Director’s Perspective: Things We Take for Granted – By Melissa J. Schank

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“Gratitude is the healthiest of all human emotions. The more you express gratitude for what you have, the more likely you will have even more to express gratitude for.”

—Zig Ziglar

Working with a new vendor, hotel, or supplier is very difficult at times. Recently we moved to a higher-end resort-style venue for our September quarterly seminar and board meetings. (A review of many of our attendees’ evaluations showed this is what they wanted.) It was challenging not to have the flexibility we have had with the venues we’ve built relationships with in the past. I walked by on the way to dinner, and they had set up the room incorrectly. By chance I was able to correct this—otherwise there wouldn’t have been anywhere for the 70-plus board members to eat. We had a meeting before the event and provided a diagram for the setup of our board meeting, but a hollow square was new to them, it not being their norm. I had to dispute a $250 reset fee when we provided a diagram. We were new customers, and they were not guaranteed we would come back. We had our food discounted 75%, which staff had never seen before. We tried to increase our room block, but because of UT football we couldn’t. We felt this impacted our attendance.

In a way, I can relate this to changeover in personnel. When you have someone who is a good employee in an ever-changing environment, you must provide some incentive to keep that employee. That means not only offering a competitive salary but also a good work environment and benefits—all of which increase expenses each year. The alternative is losing excellent staff and having to retrain over and again.

When someone leaves who has been with your company for many years, you find that it’s those little duties they perform that are not well known, as well as their ability to get along with everyone in-house, that create a positive work environment and—most importantly—facilitate communication with your members. With today’s ever-tightening economy, particularly in a university city, the competition for qualified workers is challenging. Staff members may leave for various reasons—for some it may be the drive, for others a higher salary, lunch provided daily, happy hours, or just more flexibility. In the end, it is a gamble how long any one individual will stay.

Endless opportunities seem to arise for the skilled employee. The question for them is what proves to be the best fit. When I have someone approach me asking what to do, I selfishly want to say never leave us. But I get out a piece of paper and list the positives and negatives: What is the drive time during work hours, are the hours flexible, what is the 401k contribution, what is offered in time off, where would you sit (are there windows?), do they feed you, what benefits do they provide, and for health insurance what is the co-pay, be it an HMO or PPO? I secretly hope our overall package is more attractive and they will choose to stay. Why do you want to leave? What do they have that you were offered?

What is it that creates loyalty? Does it exist? I often question myself what happened to the work ethic I grew up with? How do we get that back?

These are some of the questions that weighed heavily on me as we prepared for the latest seminar. Our TCDLA Board and Executive and CDLP committees met this past Saturday, September 15, 2018. We had a devoted group of criminal defense attorneys who traveled in and out while surrounded by tropical storms and nonstop rain. Staff members traveled over an hour in low visibility to participate and take part in TCDLA business. Here are some of the highlights from the meetings:

The Criminal Defense Lawyers Project committee discussed the theme for their first road show, “Come and Take It,” which launched September 21st in Corpus Christi. Visit our website for the themed events near you. We are also promoting the Forensics seminar, where criminal defense lawyers, students, and faculty come together to learn about science, the law, and how to avoid a charge of ineffective counsel. The committee is also working to ensure speakers have quality papers and PowerPoints by offering peer review.

TCDLA will also work with NACDL on two upcoming projects. The first is a police accountability database, which has the potential to significantly enhance the capability of defense to investigate, record, and retrieve prior bad acts of police officers and, ultimately, hold them accountable. TCDLA will work with NACDL to create a “Cop Accountability Project” database for Texas, much as NACDL and the Legal Aid Society of New York have done to share with city defenders and nonprofits such as the Innocence Project.

A second project concerns a NACDL report on trial penalties, “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It” (available at www.nacdl.org/trialpenalty). The “trial penalty” refers to the major difference between the sentence offered prior to trial versus that received after trial. Accused persons must surrender many fundamental rights essential to a fair justice system to avoid it. Studies show that innocent people routinely plead guilty and accept plea offers rather than face this penalty. As NACDL launches this major reform effort, TCDLA will partner to produce similar reports.

TCDLA committees in general are very active now. We heard several reports, for instance, on how crucial members find our ethics hotline. We encourage all to call the ethics hot­line if you have any questions or concerns—before you post anything on the listserve or social media. We also heard reports from the DWI, Amicus, Strike Force, Corrections and Parole, Technology, Budget, Legislative, and Membership committees on their ongoing business. The Membership Committee for one discussed some innovative tools and resources they’d like to make available to all members. The committee is aggressively working on retaining our current members and attracting new membership. We encourage any feedback you may have, any new member benefits you would like to see instituted.

Prior to the seminar, our staff attended a sexual harassment training that was customized for TCDLA board members, committee members, staff, and volunteers as well. The law firm recorded the training, and all board members will be required to watch it prior to the December board meeting. The training also incorporates TCDLA’s Code of Conduct, which all board members are required to sign annually. TCDLA is in the forefront of non­profits in taking the initiative to protect all those connected with TCDLA.

The most important thing I took from the training is that while I personally may not be offended by the comments or actions of others, the person next to me may be—and also may not say anything until the damage is irreversible. I need to be more conscious of my actions and those of others—and then take initiative to personally sidebar that person because more times than not it was not intended to be a malicious remark or action. When you bring it to their attention and make them aware of the situation, you can prevent future such occurrences. In today’s political climate, there are so many “rules,” making it impossible to be perfect. But I can strive to do my best to be open to criticism and to offer my support or advice to the next person, even if it may be something they do not want to hear.

A perfect example is when someone close to me is preparing to leave my house but I know they should not be driving. Am I more worried about them being upset with me if I say something, or would it be worse if I don’t say anything and something happens to them? This might also apply to other sensitive issues. Often I hear the comments, “It is none of my business,” or, “They’re not going to listen,” but I feel we must stand up because that one time may make a difference and head off something that might negatively affect that person and/or his family. As part of a TCDLA community, I challenge everyone to step out of the box this month and offer your support and empower another individual you normally may not interact with. I hope next time I see you there will be great stories to share on how you made a difference in someone’s life.

And finally, in other news, this year we are changing audit firms to one that performs audits for other CCA grantees and other similar organizations. Staff will start working on preparing items for audit as well as tax returns. TCDLA strives to be very transparent financially. Financial reports are sent out to the board monthly and the audit report annually. Staff is always available to answer any questions you may have, including on finances.

Editor’s Comment: You Spoke, We Listened – By Sarah Roland

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First, thank you to everyone who completed the recent Voice survey. We read and appreciate all the comments and encourage everyone to participate in future surveys. Overwhelming, you told us that you like the overall look of the Voice, that the articles are timely and current, and that you would like to see the Voice continued in print as well as electronically. You asked for more DWI and Fourth Amendment articles and fewer pictures of TCDLA events.

We will do our best to make sure those requests are met while maintaining a balance of information with other relevant, timely articles. What is published depends on what is submitted. It depends on contributions from our members and other experts. To that end, there is no magic timeline for publishing articles. It is a very fluid, dynamic process. It doesn’t just work to go with a first-in-first-out operation.

In this issue you will see a review of drug-free zones by David Guinn and Aaron Clements, practical trial advice from Tyler Flood, and an historical perspective of TCDLA by V. Perini that we should all read and appreciate. Next month look for a discussion of Deemed Consent from Gary Trichter. We will continue to try to have search-and-seizure articles and DWI articles.

We also want to highlight the successes of our members. Let us know when you’ve had a success, whether big or small, so we can give you a shout out! All victories matter. We need to laud each other. If we don’t know, we can’t give you a shout out.

The Voice is an indispensable part of TCDLA. It reaches our membership and all the judges. To that end, we consistently strive to make it a worthwhile, quality publication meaningful for all our members. There is always room for improvement. It is a privilege to continue to serve as your editor. Please, always let us know how we can continue to make this the best publication possible.

Ethics and the Law: Privilege Peril

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Discussions of previous acts are generally subject to the attorney-client privilege. If, for example, a client tells his lawyer that he robbed a bank or lied about assets during a divorce, the lawyer probably can’t disclose the information. But if a client initiates a communication with a lawyer for the purpose of committing a crime or an act of fraud in the future, the attorney-client privilege typically doesn’t apply. Likewise, most states allow—or require—attorneys to disclose information learned from a client that will prevent death or serious injury. Many have a similar rule where revealing otherwise confidential information would prevent or remedy financial injury due to a crime or fraud.

This can cause serious problems. Several lawyers have been killed by clients or others. Historically, many lawyers (including John Wesley Hardin, who became a lawyer while serving time in prison for murder) have been killed. In the last 20 years alone several lawyers have been killed.

Racehorse Haynes told me that “email” stands for evidence. Be careful what you put in emails, Twitter, Facebook, Instagram, or any other social media. These things have been the downfall of many people. One lawyer sent sensitive info to his client and noticed it had a different address when he received an answer. Turns out, another person had access to the email account and read the secret message. It caused great problems for the lawyer. One District Attorney sent a message to an alleged girlfriend about kissing her behind the ear. This was discovered in an open-records request and caused great embarrassment and eventually led to the DA resigning from office.

As with all legal issues and laws, there are exceptions, including exceptions to the sacred privilege. There is Peril in the Privilege. Be careful. If a client wants another person to be with them when discussing the case, warn the client. And if the client insists, get the client to sign a waiver of the privilege. It has happened many times that a husband, wife, or best friend turns on the client. They may become a Judas and bring great harm to your client.

All lawyers should have a strong working knowledge of lawyer-client privilege. The client is the only one who can waive the privilege except in rare cases. There is complete privilege if a client tells you he has committed a crime—from murder on down. There is no privilege if a client tells a lawyer he is going to commit a crime. It sounds simple enough, but it is not. Our committee spent a day working with a lawyer on a situation where a lawyer was feeling threatened by a client. The following is one of many emails a lawyer recently received from a client. The lawyer called the hotline, and almost all members of the committee sent responses.

ARE YOU PEOPLE SO FUCKING STUPID THAT YOU DON’T EVEN REALIZE THAT I WAS WRONGFULLY CONVICTED IN ARIZONA? IF IT HAPPENS AGAIN I AM GOING TO MAKE SURE THAT THERE ARE GOING TO BE DIRE FUCKING CONSEQUENCES AND BY DIRECT I MEAN FUCKING PERMANENT.

Committee Advice to the Lawyer

The consensus was that the lawyer should file an ex-parte motion to withdraw. There was some minor disagreement as to whether this language rose to the level of a terroristic threat, but the lawyer felt very uncomfortable after receiving a long string of crazy semi-threatening emails. We told him to make a police report and get a case number in case the client should make an attempt to harm him. Lawyer Mowla and I both advised him to get a concealed hand­gun permit and carry the pistol with him at all times.

Member Comment: Point well-taken. The school-shooter warn­ings left by Nikolas Cruz, the Parkland shooter, included a YouTube message, “I’m going to be a professional school shooter.” He wrote to a woman, “I’m going to fucking kill you,” and, “I am going to watch you bleed.” In other posts, he identified his AR-15 knockoff and said he is going to use it to shoot police and those Antifa types. He was making imminent threats openly without any conditions.

This knucklehead on the other hand is talking to his lawyer about things he “wants” to do or things he “hopes” to see happen. The context and the communication method are different.

Member Comment: Both writers exhibit mental instability to me. There are warning signs that need to be investigated. Professionals should decide if he is a danger to the community. Out of our area of expertise.

Member Comment: I would say that spotting psychosis is a learned skill in our profession, especially if you read a lot of the same material that shrinks do (as many of us have). That doesn’t make us professional shrinks, but certainly learned laypersons. Representing a guy like John Battaglia forces you to hone your skills. Until I finally lost him on February 1 to the needle, Battaglia was a talking, breathing psychiatric Petri dish. It took me months and multiple stays of execution to calm him down and convince him that I was indeed acting as his advocate, that ethnically I am Georgian (and if anything, Georgian Orthodox) and heterosexual, and not the “backstabbing in-the-pocket-of-the-DA Muslim Arab ****** ***** cocksucker” that he thought I was. These were his words in a letter he wrote to the court right after I was first appointed, and I think he really believed it even though my first name is Michael and my surname clearly is not Arab or “Muslim” (whatever that means).

In situations where I have dealt with a client who did not make imminent threats as I described before, but who clearly were mentally unstable (I agree with you that counsel’s client is unstable), I counseled the client to seek mental health assistance and referred them to excellent shrinks. Luckily, the clients were just stable enough to heed my advice. Once that happened, they were in the hands of the shrink, who acted accordingly. The client perhaps got help he needed, and I didn’t have to worry about violating the attorney-client privilege.

Member Comment: If something terrible happens to the subject of his invectives and the authorities learn of these texts, someone is going to have to explain why “see or hear something, say something” doesn’t apply. Why isn’t saying he wants the lawyer to die not a warning similar to the recent school shootings—where no one said anything even though the shooters left similar warnings?

Member Comment: No duty to disclose anything to the authorities or court. The client did not make a direct threat. Wishing someone and his family dead, including at the hands of a “drunk Mexican” (?) is not the same as making an imminent threat.

Be careful of listening ears. Talking about cases in the elevator at the courthouse is not a good idea. Remember what happened to Samson when he ran his mouth and told his secret to Delilah.

The SCOTUS case below elaborates further on attorney-client privilege. Before his trial for murder, the defendant, Whiteside, discussed his planned testimony with his attorney, and said that he had seen “something metallic in [the victim’s] hand,” in contradiction to earlier statements that he had not seen a gun in the victim’s hand. Whiteside’s attorney, Robinson, had warned that he (Robinson) would have an ethical obligation to report perjured testimony to the court. Whiteside, on the stand, admitted that while he believed the victim had a gun, he did not actually see a gun in the victim’s hand. Whiteside was convicted, and subsequently applied for a federal writ of habeas corpus on the grounds that his conviction was tainted under the Sixth Amendment in that his attorney’s threat to disclose the perjury had deprived Whiteside of effective assistance of counsel.

Supreme Court decision
Nix v. Whiteside, 475 US 157

The Court ruled unanimously that Whiteside had not been deprived of his Sixth Amendment rights. The majority opinion, written by Chief Justice Burger, stated that an attorney’s duty to his client’s cause is “limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth,” and that “the right to counsel includes no right to have a lawyer who will cooperate with planned perjury.”

Concurrences by Justices Blackmun, Brennan, and Stevens stated that Whiteside had failed to show that the attorney’s actions had caused prejudice to the defendant’s trial required to sustain a claim of “ineffective representation,” as required by the case of Strickland v. Washington, 466 U.S. 668 (1984).

In a separate concurrence, Justice Brennan said that the Court is deciding only the narrow issue “conduct acceptable under the Sixth Amendment” (quoting the lower court). “Unfortunately, the Court seems unable to resist the temptation of sharing with the legal community its vision of ethical conduct.” But it is up to “the States . . . how [lawyers] behave in their courts, unless and until federal rights are violated.”

Special thanks to Joseph Connors, Michael Mowla, Jack Zimmermann, and Sharon Bass.

Federal Corner: The Supreme Court Giveth and the Courts of Appeal Taketh Away – By F. R. Buck Files Jr.

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For all those clients and their lawyers who have Carpenter issues on appeal, August was BAD NEWS MONTH for them. We all remember that on June 22, 2018, the Supreme Court held that the Government must generally obtain a search warrant supported by probable cause before acquiring CSLI from a wireless carrier. Carpenter v. United States, 138 S.Ct. 2206 (2018). What I did not pay attention to in the opinion was the second clause of this sentence: “The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion” (emphasis added).

On August 21, 2018, a panel of the United States Court of Appeals for the Second Circuit held that cell phone evidence did not have to be suppressed on Fourth Amendment grounds. [Note: In the opinion, the Court explains that “under the ‘good faith’ exception, when the Government ‘act[s] with an objectively reasonable good-faith belief that their conduct is lawful,’ the exclusionary rule does not apply” (emphasis added).] United States v. Zodhiates, ___F.3d___, 2018 WL 3977030 (2d Cir. August 21, 2018) [Panel: Circuit Judges Parker and Raggi and Jesse M. Furman (District Judge, sitting by designation) (opinion by Chief Judge Parker)].

On August 24, 2018, a panel of the United States Court of Appeals for the Seventh Circuit held that the government’s warrantless collection of cell site location information recorded by defendant’s cell-phone provider, in violation of Fourth Amendment, fell within the good faith exception to exclusionary rule. United States v. Curtis, ___F.3d___, 2018 WL 4042631 (7th Cir. August 24, 2018) [Panel: Chief Judge Wood, Circuit Judges Bauer, and Kanne (Opinion by Chief Judge Wood)].

In each of these cases, the Government obtained CSLI records through a subpoena issued pursuant to the Stored Communications Act. The defendant filed a motion to suppress in the district court, as had the defendant in Carpenter. The district court denied the motion to suppress, and the issue was preserved for appellate review. The appellate court denied relief and based its decision on the good faith exception to the exclusionary rule.

In Zodhiates, Chief Judge Parker’s opinion reads, in part, as follows:

[The Defendant’s Contention]

Zodhiates contends that the government violated the Fourth Amendment when it secured his cell phone records by subpoena under the SCA because it was required to proceed by a warrant supported by probable cause and, consequently, the records were inadmissible.

* * *

[Carpenter v. United States]

During the pendency of this appeal, the Supreme Court decided Carpenter v. United States, ___ U.S. ___ 138 S.Ct. 2206, ___ L.Ed.2d ___ (2018), in which it held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell service location information]” and, therefore, under the requirements of the Fourth Amendment, enforcement officers must generally obtain a warrant before obtaining such information. However, Zodhiates is not entitled to have the records suppressed because, under the “good faith” exception, when the Government “act[s] with an objectively reasonable good-faith belief that their conduct is lawful,” the exclusionary rule does not apply. Davis v. United States, 564 U.S. 229, 238, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (internal quotation marks omitted). This exception covers searches conducted in objectively reasonable reliance on appellate precedent existing at the time of the search. See United States v. Aguiar, 737 F.3d 251, 259 (2d Cir. 2013) [emphasis added].

[The Third Party Doctrine]

In 2011, appellate precedent—the third party doctrine—permitted the government to obtain the phone bill records by subpoena as opposed to by warrant. Under this doctrine, the Fourth Amendment “does not prohibit the obtaining of information revealed to a third party and conveyed by [the third party] to Government authorities.” Miller, 425 U.S. at 443, 96 S.Ct. 1619. In Miller, the Supreme Court held that the government was entitled to obtain a defendant’s bank records with a subpoena, rather than a warrant, because the bank records were “business records of the banks” and the defendant had “no legitimate expectation of privacy” in the contents of his checks because those documents “contain[ed] only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business” (internal quotation marks omitted). Similarly, in Smith, the Supreme Court held that a defendant did not have a reasonable expectation of privacy in the telephone numbers that he dialed because “[t]elephone users . . . typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes” [emphasis added].

        These cases stand for the proposition that, in 2011, prior to Carpenter, a warrant was not required for the cell records. We acknowledged as much in United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017), when we considered ourselves bound by the third party doctrine in Smith “unless it is overruled by the Supreme Court” [emphasis added].

[Zodhiates’ Argument]

To escape this result, Zodhiates directs us to United States v. Jones, 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), which held that when the government engages in prolonged location tracking, it conducts a search under the Fourth Amendment requiring a warrant. However, Jones is of no help to him. It was decided in 2012, after the Government’s 2011 subpoena and consequently is not relevant to our good faith analysis. For these reasons, we conclude that the District Court properly denied Zodhiates’ motion to suppress the cell location evidence.

[The Conclusion]

For the foregoing reasons, the judgment of the District Court is affirmed.

In Curtis, Chief Judge Wood’s opinion reads, in part, as follows:

[The Defendant’s Argument]

Curtis . . . argues that the district court should have excluded evidence of his cell-site location information (“CSLI”), which he alleges was obtained in violation of the Fourth Amendment.

* * *

[Carpenter v. United States]

The Supreme Court resolved Curtis’ Fourth Amendment argument in Carpenter v. United States, ___ U.S. ___ 138 S.Ct. 2206, ___ L.Ed.2d ___ (2018). There it decided that a person in Curtis’ position, for whom data was collected for a substantial time, maintains a legitimate expectation of privacy for Fourth Amendment purposes in the records of his physical movements disclosed by CSLI. It declined to say whether there was “a limited period for which the Government may obtain an individual’s historical CSLI free from Fourth Amendment scrutiny,” deciding only that accessing seven days’ or more worth of information was enough. In Carpenter, as here, the prosecutors had obtained court orders under the SCA, and those court orders purported to authorize the collection of the target’s cell phone records. The Court said that SCA compliance did not matter, because the showing required by the SCA “falls well short of the probable cause required for a warrant.” The Court also rejected the applicability of the “third-party doctrine,” which (when it applies) allows the collection of business records collected by a third party in the ordinary course of operations. It remanded the case for further proceedings [emphasis added].

[The Second Issue]

Our case stands in the same position as the Carpenter remand. The Court has resolved the question whether an SCA order obviates the need for the warrant, but it has not spoken to what should happen next. We must decide whether this conceded error automatically results in relief for Curtis, for whom records covering 314 days were collected. We conclude that it does not. A different part of Fourth Amendment jurisprudence is, in our view, dispositive: evidence obtained in good-faith reliance on a statute later declared unconstitutional need not be excluded. Illinois v. Krull, 480 U.S. 340, 349–50, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) [emphasis added].

[Curtis’ Unsuccessful Attack on Krull]

Curtis’ proposed path around Krull is ambitious. He does not argue that officers obtained his CSLI in bad faith. Far from it: his motion to suppress seemingly concedes that there would have been probable cause to seek a search warrant. It is Krull itself that he attempts to push out of the picture. He argues that Krull applies only to statutes authorizing administrative searches. His logic proceeds in three steps. First, he urges, the good-faith exception to the exclusionary rule cannot be applied so as to insulate statutes from constitutional challenge. To do so would “destroy
[ ]all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights.” Krull, 480 U.S. at 369, 107 S.Ct. 1160 (O’Connor, J., dissenting). Second, he suggests that the Krull majority could sidestep that concern because the target of an ad­ministrative search necessarily knows that a search is im­pending. A forewarned target still has reason to “bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its implementation” notwithstanding the good-faith exception. Third, he points out that the target of an SCA order issued under section 2703(d) has no knowledge of the order until the CSLI has been collected and used in a criminal proceeding. At that late hour, a defendant has no incentive to challenge the statute because the good-faith exception permits admission of the fruits of an unconstitutional search.

[Defendants Can Still Contest the Validity of a Statute]

Experience has shown that the good-faith exception has not had the chilling effect that Curtis fears. Curtis, like many others, has challenged section 2703(d) of the SCA on Fourth Amendment grounds notwithstanding the risk that the exception may apply. See, e.g., Carpenter, supra; United States v. Graham, 824 F.3d 421, 425 (4th Cir. 2016) (en banc); United States v. Daniels, 803 F.3d 335, 351–52 (7th Cir. 2015); Davis, 785 F.3d at 511; In re U.S. for Historical Cell Site Data, 724 F.3d 600, 608 (5th Cir. 2013). This is just what the Krull majority predicted: defendants will still “contest the validity of statutes [even] if they are unable to benefit directly by the subsequent exclusion of evidence. . . .”

[The Exclusionary Rule]

The exclusionary rule is designed primarily to deter unconstitutional conduct. Nothing substantiates the fear that when passing laws such as the SCA “legislators are inclined to subvert their oaths and the Fourth Amendment.” Even if there were a need to deter legislators, “there is nothing to indicate that applying the exclusionary rule to evidence seized pursuant to the statute prior to the declaration of its invalidity will act as a significant, additional deterrent.” We conclude, therefore, that even though it is now established that the Fourth Amendment requires a warrant for the type of cell-phone data present here, exclusion of that information was not required because it was collected in good faith.

* * *

[The Conclusion]

Not all constitutional injuries have a remedy. In this case, good faith renders the Fourth Amendment violation non-redressable . . . We therefore affirm the judgment.

My Thoughts

  • Ah, the good faith exception to the exclusionary rule. When Carpenter was decided, I wrote: “I will be surprised if this case impacts us at all. The Government will have a higher hurdle to get over before they will be able to obtain cell site location information; however, there’s nothing magic about obtaining a search warrant for this information.” “The Federal Corner,” July/August 2018 Voice for the Defense, p. 17. I will stick with that prediction.
  • I would now predict that there will be few, if any, cases with Carpenter issues that will survive a good faith exception to the exclusionary rule analysis by a Circuit Court.
  • It will be interesting to see what the United States Court of Appeals for the Sixth Circuit does on remand when they have the opportunity to reconsider Carpenter. Will the good faith exception to the exclusionary rule take away Carpenter’s win? Stay tuned.