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April 2019 - Page 2

Ethics and the Law: Safe Not Sorry


Who among us has been interrogated by their 4-year-old child or grandchild about what lawyers do? Unfortunately, we do not make our living playing Pet Bingo, Llama Spit Spit, or Toca Kitchen on a tablet. For most of us, at the end of the day, all of our time is spent TALKING, and our currency is information: Whether it be privileged, non-privileged, helpful, or harmful, we process A LOT of it. Gone are the days of Atticus Finch and Perry Mason. Simple letters couriered by the mailman and telephone calls from a land line and consultations only in the office are dead.

A lawyer’s duty to keep abreast of changes in the law includes keeping up with technology. To ethically represent your client, you must accept the challenge and do your best to keep up with all new technology advances. Like all evidence, it can cut both ways. The Instagram photo of Johnny at the local bar that supports your client’s mistaken identity defense can also put him behind bars for a revocation of his parole or probation. The late Racehorse Haynes often commented, “Texting means Trouble, and Email means Evidence.”

It is our job to get it through out client’s head that once they catch a case, their online persona and content is a field day—whether through Snapchat, Instagram, electronic surveillance, wiretap, text messages, or emails. You would think jail calls would be a no-brainer for Our Hero to keep his mouth shut. Always tell your hero not to talk about his case on jail calls. I heard a story of an inmate telling his sister what kind of pistol he used when he shot his wife 9 times while she was stopped at a red light. Coupled with the jailhouse snitch, the recorded phone calls can tag an extra 20 years on a case for the Defendant.

The Texas Rules of Professional Conduct are silent on the specific use of email to convey confidential information; instead, they focus not on the manner of the communication but on the content analysis of confidential information, as indicated in Rule 1.05 (a) (b) (c) (d).

Emails can lead to severe consequences, derailing people in all walks of life from Washington, D.C., on down to the City of Houston and on to infinity. And as harmful as they can be, you should be advised to memorialize events to create a timeline for a defense strategy.

Social Media (from Brad Johnson/Texas Bar Blog):

We all know that an attorney has a duty to protect confidential client information, but it’s easy to forget that duty when posting on social media or responding to online reviews related to a lawyer’s services. The proper analysis under the Texas Disciplinary Rules of Professional Conduct will involve Rule 1.05, which generally defines the scope and extent of a lawyer’s duty to protect confidential client information.

Rule 1.05(a) broadly defines “confidential information” to include information protected by the lawyer-client privilege, as well as “all information relating to a client or furnished by the client” that a lawyer acquires during the course of or by reason of the representation. Rule 1.05(b) prohibits a lawyer from revealing confidential information of a client or former client absent an applicable exception—and also extends to the use of confidential information to the disadvantage of a client or former client.

For example, an attorney’s inclusion of information in a social media post that identifies a particular client, or which would allow a third party to do so, will generally be subject to the restrictions of Rule 1.05. These limitations will apply regardless of whether the communication is made in a public social media post or a social media post that is limited to friends and acquaintances of the lawyer.

The Professional Ethics Committee for the State Bar of Texas issued Ethics Opinion 662 (August 2016), related to an attorney’s duty of confidentiality in responding to a former client’s adverse comments on the internet, and Ethics Opinion 648 (April 2015), related to an attorney’s communication of confidential information by email. These provide useful analysis related to an attorney’s duty of confidentiality as related to electronic communications. See As always, the proper analysis will depend on the specific facts involved.

Many of us are caught on cameras about 70 times—in workplaces, shops, or other public places with surveillance cameras installed. Whether you are picking your nose or scratching yourself, it is probably on film. Many courthouses have cameras and audio recorders that can pick up conversations. Do not discuss your client’s case in elevators or areas where others are around. Do not take chances with social media postings, and remember you may be subjecting your law license to jeopardy if you do not follow the advertising rules. BE SAFE NOT SORRY.

If you are a Texas lawyer and have questions about your ethical obligations, you may contact the TCDLA Ethics Hotline at (512)646-2734 for guidance on how to access the relevant rules and information, including ethics opinions and caselaw, that may help you reach an informed decision. When the little 4-year-old asks what you do, you might want to say, “It depends.”

Thanks to Joseph Connors, Keith Hampton, Robyn Harlin, Sharon Bass, and Brad Johnson.

Federal Corner: A Great Case of First Impression on a Drug-and-Gun Sentencing Enhancement Issue – By F. R. Buck Files Jr.


In the olde days, I believed that taking a common sense and fair play approach to any criminal law issue would give you the correct answer. Then, I realized that this did not always work. With that as a background, imagine my happiness when I read a per curiam opinion of the United States Court of Appeals for the Eleventh Circuit in which the Court held that: “[1] as matter of first impression, the mere proximity between defendant’s gun and two alprazolam tablets could not support sentencing enhancement for use or possession of firearm in connection with another felony offense; [2] enhancement for use or possession of firearm in connection with another felony offense was not warranted; and [3] error in applying enhancement was not harmless” (emphasis added). United States v. Gibbs, 2018 WL 5096319 (11th Cir. October 18, 2018) [Panel: Circuit Judges Wilson, Jordan, and Higginbotham].

The opinion reads as follows:

[The Facts in the Case]

The facts of this case are straightforward. Its roots lie in the decision of the Escambia County Sheriff’s Office to search Bruce Gibbs’ home pursuant to a warrant relying upon disclosures by an informant that Gibbs had sold cocaine on two separate dates—April 24, 2015, and April 29, 2015. On executing the warrant, the sheriff’s office found two blue pills that officers identified as alprazolam, a metal grinder with marijuana residue inside, and a baggie with traces of white powder later determined to be cocaine, all in the kitchen, and a Glock pistol with a magazine enhanced to hold 31 rounds, loaded and in the attic. The attic was accessible through a panel in the house’s hallway; the firearm was clean and lacked signs of dust, suggesting that it was well-maintained and recently placed. It was also identified as stolen.

[The Defendant’s Record and the Charged Offense]

Gibbs had been convicted of various crimes in the past, including possession with intent to distribute more than 20 grams of marijuana, driving after his license was revoked, and battery, each of which was punishable by a term exceeding one year. This record made his firearm possession unlawful under 18 U.S.C. § 922(g)(1) and exposed Gibbs to imprisonment under 18 U.S.C. § 924(a)(2). He pled guilty on December 22, 2016.

[In the District Court]

At sentencing, Gibbs raised a number of objections to the Pre-Sentence Report. The “primary objection to the calculation” concerned an enhancement of four levels under U.S.S.G. § 2K2.1(b)(6)(B) for Gibbs’ possession of a firearm in connection with another felony—namely, his possession of the two alprazolam pills without a prescription. The district court rejected Gibbs’ several arguments that the enhancement should not apply. It focused upon the loaded gun, Gibbs’ addiction to the alprazolam tablets, and their relatively high street value, concluding that the gun facilitated his possession and applying the enhancement over his objection.

        The district court sentenced Gibbs to 72 months of imprisonment, noting that the sentence stood just above the top end of the range that would obtain in the absence of the enhancement—55 to 71 months—but below the bottom of the range that obtained with the application of the enhancement—84 to 105 months.

[The Question on Appeal]

Gibbs timely appealed. The sole question on appeal is the legitimacy of the enhancement under U.S.S.G. § 2K2.1(b)(6)(B).

[The Standard of Review]

This enhancement requires a sentencing judge find, by a preponderance of evidence, that the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” In challenges to sentencing decisions, we review the district court’s determinations of law de novo and its findings of fact for clear error. A district court’s determination that a defendant possessed a gun “in connection with” another felony is a finding of fact. Under this standard of clear error, we “must affirm the district court unless review of the entire record leaves us ‘with the definite and firm conviction that a mistake has been committed.’”

[The Evidence of Drug Trafficking Offenses in the Record]

There is evidence in the record that Gibbs committed both drug trafficking offenses (selling cocaine to a confidential informant on two occasions) and drug possession offenses (possessing alprazolam tablets without a prescription, and leaving marijuana and cocaine residue in his home).

[The Question of the Sufficiency of the Evidence]

The question is the sufficiency of the evidence connecting the gun to either of these categories of offenses. The government argues that Gibbs possessed the firearm “in connection with” both felony drug possession and drug trafficking offenses.

[The Court’s Conclusion]

We conclude that the district court erred in footing the enhancement on Gibbs’ drug possession. Because we agree with the district court that the enhancement could not be supported on drug-trafficking grounds, we therefore determine that there was no permissible justification for the court to impose the enhancement.

[The District Court’s Factual Determination and the Court’s Acceptance of That Determination]

The government argues, and the district court decided, that Gibbs possessed two alprazolam tablets without a prescription—a felony under Florida law. . . . We therefore proceed under the assumption that Gibbs possessed alprazolam tablets in his apartment.

[The Sentencing Commission’s Application Notes]

The Sentencing Commission’s application notes are binding when they do not contradict the Sentencing Guidelines’ plain meaning. The notes to U.S.S.G. § 2K2.1(b)(6)(B) provide that a firearm is generally held “in connection with” another felony “if the firearm . . . facilitated, or had the potential of facilitating, another felony offense.”

[The Central Issue Before the Court]

The central issue is therefore whether Gibbs’ possession of the firearm facilitated or had the potential to facilitate his possession of alprazolam, or whether any relation between the two resulted from “accident or coincidence” [emphasis added].

[The Undecided Proximity Problem]

The question remains, however, of what evidence may sufficiently establish that a firearm facilitated or had the potential to facilitate another felony. We have not yet decided whether proximity between firearm and drug is sufficient to trigger U.S.S.G. §2K2.1(b)(6)(B) when the felony serving as the basis for the enhancement is drug possession. The application notes also provide that the enhancement automatically applies “in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia” [emphasis added].

[Other Circuits’ Conclusions on This Issue and This Court’s Agreement With Those Circuits]

Several circuits have concluded that by treating “close proximity” as sufficient to show a “connection” for drug trafficking offenses, the Commission by implication required something beyond proximity when the offense does not involve drug trafficking. We agree that mere proximity between Gibbs’ gun and the alprazolam tablets could not support the enhancement, without a conclusion that the gun facilitated or could facilitate Gibbs’ possession.

[The District Court’s Reliance on These Factors]

This said, the district court did not rest the enhancement on spatial proximity between the gun and the alprazolam tablets alone. It specifically relied on three factors beyond proximity to conclude that the gun facilitated or had the potential to facilitate Gibbs’ drug possession. First, Gibbs’ gun was modified to hold more ammo, and it was loaded. Second, Gibbs was addicted to alprazolam. And third, the district court concluded that alprazolam tablets have a relatively high street value. We therefore must determine whether these facts adequately supported the enhancement.

[Several Principles From the Opinions of the Other Circuits]

In review of this fact-bound inquiry, we can extract several principles from other circuits’ opinions. In general, if a gun emboldens or has the potential to embolden the defendant, or if the defendant uses or could use the gun to protect the drugs, the enhancement is more likely to be appropriate. Relevant here, courts will look to the quantity of the drugs and their street value to determine whether possession of a gun was likely to achieve these purposes; for smaller amounts or less valuable drugs, a gun is less likely to be necessary to facilitate possession. Some will further consider whether the gun and drug possession occurred in public, since there, a weapon could be more useful in emboldening or protecting the defendant. And, as we have explained, physical and temporal proximity—including ease of access to the firearm—may be relevant but will typically not be determinative.

[The Court’s Analysis of the Three Factors]

The relationship between Gibbs’ gun and the drugs was more akin to “accident or coincidence.” The government presented evidence that Gibbs possessed two alprazolam tablets at the time the gun was found, each worth about $20, and a bag with trace amounts of cocaine. While not negligible, a total value of $40 or $50 does not lend itself to a strong inference that Gibbs required the gun to protect his supply. Both the gun and the tablets were located within his home, and there was no evidence that he took them outside separately or together. While the gun was accessible from the hallway, it was not immediately accessible from the kitchen where the drugs were found. Gibbs’ addiction does weigh in favor of a connection, since it increases the possibility that he would have chosen to use the gun to protect the alprazolam.

[The Court’s Conclusion]

In total, though, we conclude that the district court clearly erred in finding that the gun facilitated Gibbs’ drug possession. Connecting a Glock handgun modified to hold 31 rounds to two prescription pills found in a different part of the house—not in proximity—is a reach too far.

[The Government’s Argument on “Close Proximity” Which the District Court Had Rejected]

The government suggests that even if Gibbs’ drug possession could not ground the enhancement, we may affirm based on a connection between the gun and drug trafficking—which only requires a showing of “close proximity.” The district court rejected this argument at sentencing, and we agree for substantially the same reasons. The government presented evidence that Gibbs had engaged in drug trafficking about two weeks before the gun was found in his attic, but no evidence that he possessed the gun at the time of those sales. At the sentencing hearing, Gibbs said that he had only acquired the firearm the night before the search and it was not related to drug trafficking. And the two drug-trafficking transactions the government identified occurred outside Gibbs’ home, and there was no evidence that Gibbs had the firearm on him at either time. We cannot conclude that the district court erred—let alone erred clearly—in finding no connection.

[The District Court’s Error Was Not Harmless]

Having concluded that the district court erred in imposing the sentencing enhancement, we must address whether this error was harmless, or whether it was reasonably likely to have affected Gibbs’ substantial rights. At sentencing, the district court explained its deliberate choice to give a sentence between the non-enhanced and enhanced ranges, and specifically took into account the fact that Gibbs had been “[driven into] that next higher guideline range.” And the court did not indicate that it would have given Gibbs the same sentence even if the enhancement were not applicable, certainly not explicitly. The application of the sentencing error was not harmless, and Gibbs is entitled to resentencing.


Because the district court erred in enhancing Gibbs’ sentence for use or possession of a firearm in connection with a felony, we vacate the district court’s sentencing decision and remand for resentencing without application of the four-level enhancement.

My Thoughts

  • In Gibbs, the Court refers to cases from other circuits. In the footnotes, these are cases from the United States Courts of Appeal for the Third, Fourth, Fifth, Sixth, Eighth, and Eleventh circuits and should be reviewed if you are going to need to prepare a memorandum of law on a proximity issue.
  • The Fifth Circuit case referred to is United States v. Jeffries, 587 F.3d 690 (5th Cir. 2009). It is mentioned in footnote 11 and reads: “If the comment had intended to allow a ‘mere proximity’ argument to suffice for all drug crimes, it would have said so. It did not.” [Note: In Jeffries, the Court held that the discovery of a firearm and a single rock of crack cocaine during the search of a vehicle did not support the imposition of a four-level enhancement for possessing a firearm in connection with another felony offense.]
  • It’s so nice to read a common sense/fair play opinion—even if it is only a per curiam one from another circuit.

Shout Outs


Kudos to the dynamic duo of John Hunter Smith and Thomas Wynne of Sherman for their recent wins. TCLDA Secretary John Hunter and Thomas represented a mother charged with Assault Causing Bodily Injury–Family/Household (Impeding Breath) of her 17-year-old daughter in the 336th District Court in Fannin County. After 4½ days of trial, the jury returned a Not Guilty verdict. And in County Court at Law #2 in Grayson County, Texas, John Hunter received the big NG on a DWI–1st where client was alleged to have been intoxicated by marijuana. Congratulations, gentlemen, on your success in the quest for justice.

Shout out to TCDLA ex-prez Gerry Morris of Austin for his efforts in freeing an innocent man who spent 25 years in TDCJ. Suzanne Spencer also credits David Sheppard and Susan D’Arezzo Sheppard for doing the heavy lifting in the case under the auspices of the University of Texas Innocence Project.
 After a winning motion to test DNA (“contested by the same DA’s office that brought you Twin Peaks”), all four men convicted in the case were excluded. A contested 11.07 writ led to a trial court entering findings of actual innocence, though the CCA decided the burden hadn’t been met. As Gerry notes, “It sustained the finding that the evidence showed by a preponderance of the evidence that no jury in its right mind would now convict the men, but not by clear and convincing evidence.” He says that he came late into the mess, saying those who fought the battles deserve the credit, and that they would now fight for the exoneration that would allow the men compensation. Gerry in particular credits David Sheppard, Tiffany Dowling, Marjorie Bachman, and Caitlin Meredith—as well as the lawyers for the other men involved in the case—for their efforts. Hats off to Gerry and all involved for this big win—and on to the money round. . . .

Shout out to James Rogers and Tony Vitz of McKinney for their recent win in a hard-fought trial on Assault Family Violence. In a spat with girlfriend in a relationship on the skids, D pushed her—in self-defense—and she cut the back of her head on a door frame and bled profusely. Feeling remorse, he called 911 and reported himself. D, who had “Reckless” tattooed on his forehead and sports hoops and a beard, builds and repairs guns as a hobby, so our heroes faced an uphill fight from the start. Girlfriend, apparently unconcerned about the case, moved out of state, so defense was left contending with D’s admission and appearance, as well as the injury itself. James and Tony concentrated on humanizing D, relying on their psychodrama training, even having D reenact incident before the jury to involve them in the story. In the end, jurors could relate to D and judged him in light of a deteriorating relationship. Great job in the finding the way in an interesting case, guys.

Hat tip to Megan Roper Grantham of Canyon Lake and Blakely Mohr of Southlake for their recent NG in Tarrant County on a charge of possession of less than two ounces of marijuana. Megan was particularly incensed that a conviction in this day and age for such a “crime” would have cost D a job, one that supported a wife and three kids. Her mood was in no way lightened by what she saw as an “absolutely indignant, dismissive, and rude” attitude out of one of the prosecution team. This one ended well, though, thanks to y’alls’ fine work. Good job.

Congratulations to Amanda Hernandez of San Antonio, associate attorney with the Flanary Law Firm, for being named the 2019 Young Lawyer of the Year by the San Antonio Criminal Defense Lawyers Association. We see many shout outs in your future, Amanda. You make us proud.