October 2019

Voice for the Defense Volume 48, 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

The SCOTUS is on summer break until the October 2019 Term, which begins on October 7, 2019.

United States Court of Appeals for the Fifth Circuit

United States v. Anderson, No. 18-11001, 2019 U.S.App.LEXIS 22582 (5th Cir. July 31, 2019) (designated for publication) [18 U.S.C. § 1952 (Travel Act); 18 U.S.C. § 1956 (money laundering); criminal attempt; 18 U.S.C. § 371 (conspiracy); 18 U.S.C. § 875 (extortion); 18 U.S.C. § 880 (receiving extorted money)]

        Under 18 U.S.C. § 1952(a), the Travel Act prohibits traveling in interstate or foreign commerce or using the mail or any facility in interstate or foreign commerce with intent to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity and then performing or attempting such act. A “business enterprise” involving narcotics or controlled substances is an “unlawful activity” under the Act. A business enterprise is a continuous course of conduct (rather than sporadic casual involvement) in a proscribed activity. The government need not prove that the defendant personally engaged in a continuous course of conduct but needs to prove only that there was a continuous business enterprise and that the defendant participated in the enterprise. Knowing promotion of one transaction in the broader enterprise is promotion of the enterprise.

        Under 18 U.S.C. § 1956 (money laundering), it is unlawful to conduct or attempt to conduct a financial transaction knowing that the property involved in the transaction are proceeds of unlawful activity with the intent to carry on specified unlawful activity—or knowing that the transaction is designed to conceal or disguise the nature, location, source, ownership, or control of the proceeds of specified unlawful activity. “Transaction” means purchase, sale, loan, pledge, gift, transfer, or other disposition. “Financial transaction” is one that affects interstate or foreign commerce involving the movement of money. Drug trafficking is a specified unlawful activity. There must be a financial transaction that follows the underlying criminal activity that generates the proceeds so the laundering transaction must be distinct from the criminal conduct generating the proceeds to be laundered, because otherwise any criminal activity involving money would double as a laundering offense. Money does not become “proceeds” until the underlying criminal transaction is complete.

        To be guilty of attempt, the defendant (1) must have been acting with the culpability otherwise required for the commission of the attempted crime and (2) must have engaged in conduct that constitutes a substantial step toward commission of the crime.

        Under 18 U.S.C. § 875, extortion using interstate communications, a person commits a crime if he: (a) transmits in interstate or foreign commerce any communication containing a demand for a ransom or reward for the release of any kidnapped person (up to 20 years in BOP); (b) with intent to extort from any person or entity money or other thing of value, transmits in interstate or foreign commerce any communication containing a threat to kidnap or injure the person of another (up to 20 years in BOP); (c) transmits in interstate or foreign commerce any communication containing a threat to kidnap any person or any threat to injure the person of another (up to 5 years in BOP); or (d) with intent to extort from any person or entity money or other thing of value transmits in interstate or foreign commerce any communication containing a threat to injure the property or reputation of another (living or deceased) or any threat to accuse another of a crime (up to 2 years in BOP).

        Under 18 U.S.C. § 880, a person who receives, possesses, conceals, or disposes of money or property that was obtained from extortion knowing that the money or property was unlawfully obtained shall be imprisoned not more than 3 years and fined.

        Under 18 U.S.C. § 371, conspiracy requires evidence of: (1) an agreement between two or more persons to pursue an unlawful objective; (2) knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy. An agreement may be inferred from concert of action, voluntary participation may be inferred from a collocation of circumstances, and knowledge may be inferred from surrounding circumstances.

Ayestas v. Davis, No. 15-70015, 2019 U.S.App.LEXIS 22780 (5th Cir. July 31, 2019) (designated for publication) [trial counsel’s performance is to be evaluated based on the professional norms prevailing when the representation took place]

        Remand is not required if the judgment is sustainable for any reason.

        Under Bobby v. Van Hook, 558 U.S. 4, 7 (2009), trial counsel’s performance is to be evaluated based on the professional norms prevailing when the representation took place.

        Under Harrington v. Richter, 562 U.S. 86, 109 (2011), although courts may not indulge post-hoc rationalization for counsel’s decisionmaking that contradicts the available evidence of counsel’s actions, neither may they insist counsel confirm every aspect of the strategic basis for his actions.

Editor’s note: because the opinion omits critical facts contained in the SCOTUS opinion that remanded the case, here are those facts:

Facts:

• In 1997, Ayestas was convicted of capital murder in Texas.
• The evidence showed he and two accomplices invaded the home of 67-year-old Paneque, bound her with duct tape and electrical cord, beat and strangled her, and burglarized her home.
• Two weeks after Paneque’s death, while drunk, Ayestas told Nuila that he had recently murdered a woman. Petitioner brandished an Uzi and threatened to murder Nuila if he did not help him kill the accomplices.
• Petitioner kept talking until he eventually passed out.
• Nuila called the police, who arrested petitioner.
• As 404(b) evidence, during punishment, the State presented evidence that a few days after the murder, petitioner pulled out a machinegun and forced Martinez into a room where two of petitioner’s friends were holding Martinez’s friend at knifepoint. Martinez begged for his life while petitioner and his friends haggled about who would kill them. Petitioner relented but threatened to kill Martinez and his family if he contacted the police. Petitioner stole Martinez’s truck.
• Trial counsel presented very little mitigation evidence due in part due to petitioner’s refusal for months to allow him to contact his family in Honduras, who might have testified about his character and upbringing. On the eve of trial, petitioner gave in, and his lawyers attempted to contact his family, but were unsuccessful in getting any of them to testify.
• The jury found petitioner guilty and sentenced him to death, finding unanimously that under Tex. Code Crim. Proc. Art. 37.071 § 2(b), (d)(2), (e) & (g): (1) he poses a continuing threat to society; (2) he personally caused the death of the victim, intended to kill her, or anticipated that she would be killed; and (3) there were not sufficient mitigating circumstances to warrant a sentence of life without parole instead of
• death.
• In the habeas petition under 28 U.S.C. § 2254, his attorney alleged IATC for failure to conduct an adequate search for mitigation evidence concerning mental illness and history of drug and alcohol abuse.
• This claim was not raised by state habeas counsel, so the district court held that the claim was barred by procedural default,
• The SCOTUS reversed for reconsideration under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), which held that a state prisoner seeking federal habeas relief could overcome the procedural default of an IATC claim by showing that the claim is substantial and that state habeas counsel was also ineffective in failing to raise the claim in a state habeas proceeding.
• To help develop these claims, petitioner filed an ex parte motion asking the District Court for $20,016 in funding to conduct a search for evidence supporting his petition, relying on 18 U.S.C. § 3599(f).
• The District Court refused the funding request, and the Fifth Circuit affirmed.
• When the District Court denied petitioner’s funding request and his habeas petition, he took an appeal to the Fifth Circuit under 28 U.S.C. §§ 1291 and 2253, which grant the courts of appeals jurisdiction to review final “decisions” and “orders” of a district court.
• When the Fifth Circuit affirmed, petitioner sought review in the SCOTUS under 28 U.S.C. § 1254, which gives the SCOTUS jurisdiction to review cases in the courts of appeals.

Editor’s note: because the opinion omits critical findings of the SCOTUS opinion that remanded the case, here are those findings from Ayestas v. Davis, 138 S.Ct. 1080 (2018):

• Under Hohn v. United States, 524 U.S. 236, 245 (1998), not all decisions made by a federal court are “judicial” in nature; some decisions are “administrative,” and are not subject to the review of the SCOTUS. Administrative decisions are those about things like facilities, personnel, equipment, supplies, and rules of procedure.
• A District Court’s ruling on a funding request under 18 U.S.C. § 3599(f) is not an “administrative” decision.
• Under 18 U.S.C. § 3599(f), “Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor.”
• The Fifth Circuit held that individuals seeking funding for such services must show that they have a “substantial need” for the services, and this is error because it is arguably more demanding. The Fifth Circuit exacerbated the problem by invoking precedent to the effect that a habeas petitioner seeking funding must present “a viable constitutional claim that is not procedurally barred.”
• Although the Fifth Circuit adopted the rule before Trevino, after Trevino the rule is too restrictive because Trevino permits a Texas prisoner to overcome the failure to raise a substantial ineffective-assistance claim in state court by showing that state habeas counsel was ineffective. It is possible that investigation might enable a petitioner to carry the burden. In cases where which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.
• Determining whether funding is “reasonably necessary” is a decision as to which district courts enjoy broad discretion.
• A funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks. The “reasonably necessary” test requires an assessment of the likely utility of the services requested, and 28 U.S.C. § 3599(f) cannot be read to guarantee that an applicant will have enough money to turn over every stone.

This is the summary of the Fifth Circuit’s opinion:

Trial counsel’s performance is to be evaluated based on the professional norms prevailing when the representation took place

• Review of the denial of a motion under 28 U.S.C. § 3599(f) is for an abuse of discretion. A district court abuses its discretion if it bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence. The underlying conclusions of law are reviewed de novo and conclusions of fact are reviewed for clear error.
• Remand is not required if the judgment is sustainable for any reason.
• Under Bobby v. Van Hook, 558 U.S. 4, 7 (2009), trial counsel’s performance is to be evaluated based on the professional norms prevailing when the representation took place.
• Scrutiny of mitigation investigations did not take shape until after Ayestas’ state-habeas application was filed in 1998, at which time the ABA guidelines spoke only briefly to the duties for postconviction counsel. Ayestas’ request for funding closely tracks supplementary ABA guidelines, but their probative value is diminished by the fact that they were adopted a decade after the state-habeas application was filed.
• Ayestas’ state-habeas attorney in 1998 would not have found much in case law for claims based upon mitigating evidence of substance abuse and mental illness. In 1998, the most relevant authority was likely Strickland itself, which held that trial counsel could reasonably surmise from his conversations with his client that character and psychological evidence would be of little help.
• Cases like Wiggins v. Smith, 539 U.S. 510 (2003), Rompilla v. Beard, 545 U.S. 374, 393 (2005), and Porter v. McCollum, 558 U.S. 30, 39 (2009), were handed down long after 1998.
• Under Harrington v. Richter, 562 U.S. 86, 109 (2011), although courts may not indulge post-hoc rationalization for counsel’s decisionmaking that contradicts the available evidence of counsel’s actions, neither may they insist counsel confirm every aspect of the strategic basis for his actions.
• With respect to Ayestas’ mental illness, neither trial counsel nor state-habeas counsel could have been expected to explore it given that there was no evidence he was schizophrenic until 2000, two years after his state-habeas application was filed. State-habeas counsel cannot have been ineffective for failing to investigate mental illness because the record establishes that there was nothing to factually put counsel on notice of any reasonable likelihood that any such condition existed at trial or when the state-habeas application was filed.
• This is not a Wiggins fact-pattern because counsel’s failure to present evidence of mental illness did not result from pure inattention, and this is not a case like Porter, where counsel wholly ignored multiple avenues of investigation, nor is it like Rompilla where there was a readily available file that the prosecution tipped-off to defense counsel.

United States v. Daniel, et al, Nos. 17-20541 & 17-20543, 2019 U.S.App.LEXIS 22556 (5th Cir. July 30, 2019) (designated for publication) [Legal sufficiency, marriage fraud, conspiracy, aiding and abetting, jury charge error]

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), when reviewing the sufficiency of the evidence, a court views all evidence whether circumstantial or direct in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury’s verdict. The jury retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of witnesses. Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The inquiry is limited to whether the jury’s verdict was reasonable, not whether the reviewing court believes it to be correct. A preserved sufficiency claim is reviewed de novo but with substantial deference to the jury verdict.

        Under 18 U.S.C. § 371, conspiracy requires evidence of: (1) an agreement between two or more persons to pursue an unlawful objective; (2) knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy. An agreement may be inferred from concert of action, voluntary participation may be inferred from a collocation of circumstances, and knowledge may be inferred from surrounding circumstances.

        Under 8 U.S.C. § 1325(c), to prove marriage fraud, the government must show that the person (1) knowingly entered into a marriage (2) for evading any provision of the immigration laws. A person who knowingly enters into a marriage for evading any provision of the immigration laws shall be imprisoned for not more than five years or fined not more than $250,000 or both. All elements of marriage fraud are satisfied when the defendant enters into the marriage.

        Under 18 U.S.C. § 2 (aiding and abetting) and Rosemond v. United States, 572 U.S. 65, 70 (2014), a person who aids, abets, counsels, commands, induces, or procures a federal offense is punishable as a principal. A person is liable for aiding and abetting a crime if he (1) takes an affirmative act in furtherance of that offense (2) with the intent of facilitating the offense’s commission. This includes all assistance rendered by words, acts, encouragement, support, or presence even if that aid relates to only one or some of a crime’s phases or elements.

        Challenges to jury instructions are reviewed for an abuse of discretion. The trial court has substantial latitude in describing the law to the jurors. The Fifth Circuit examines whether the entire charge was a correct statement of the law and clearly instructed the jurors on the principles of the law applicable to the factual issues. A district court reversibly errs in refusing to give a defendant’s proposed instruction if the requested instruction: (1) is substantially correct; (2) is not substantially covered in the charge; and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant’s ability to effectively present a given defense.

        Under 18 U.S.C. § 3583(d) and 18 U.S.C. § 3553(a)(1), (2)(B)–(D), district courts have wide discretion in imposing terms and conditions of supervised release. A district court may impose any condition of supervised release it considers appropriate provided that the condition: (1) is reasonably related to one of these factors: (i) nature and circumstances of the offense and the history and characteristics of the defendant; (ii) adequate deterrence of criminal conduct; (iii) protection of the public from further crimes of the defendant; and (iv) needed educational or vocational training, medical care, or other correctional treatment to the defendant; (2) does not involve a greater deprivation of liberty than is reasonably necessary for the purposes of the last three statutory factors; and (3) is consistent with pertinent policy statements issued by the Sentencing Commission. A district court must set forth factual findings to justify special conditions, but even without factual findings, the special condition may be affirmed if the Fifth Circuit can infer the district court’s reasoning after an examination of the record.

United States v. Escalante, No. 18-10408, 2019 U.S.App.LEXIS 23234 (5th Cir. Aug. 2, 2019) (designated for publication) [SORNA; categorical approach per Descamps; circumstance-specific inquiry into victim’s age when classifying sex-offender tier-levels]

        Per 34 U.S.C. § 20913(c), the Sexual Offense Registration and Notification Act of 2006 (SORNA) requires sex offenders to update their registration after a change in residence. Under 18 U.S.C. § 2250, failing to do so is a federal crime when the offender travels in interstate commerce.

        Under U.S.S.G. § 2A3.5, three base-offense levels apply when a sex offender is found guilty of failing to register. The levels correspond with the sex-offender tiers in 34 U.S.C. § 20911. A Tier II sex offender is one whose offense is comparable to or more severe than certain offenses when committed against a minor.

        The categorical approach per Descamps v. United States, 570 U.S. 254, 261 (2013), is applied when classifying the SORNA tier of a defendant’s state-law sex offense: The court must consider the elements of the statute of conviction rather than specific conduct. If the statute of conviction sweeps more broadly than the federal offense, the state offense cannot serve as a proper predicate.

        SORNA requires courts to perform a circumstance-specific inquiry to determine whether the victim was a minor when applying the categorical approach to classify sex-offender tier levels.

        Under Nijhawan v. Holder, 557 U.S. 29, 37–40 (2009), federal statutes may impute the categorical approach by referring to generic or cross-referenced crimes but require circumstance-specific inquiries to determine whether specific conditional or modifying requirements are met. This “hybrid” approach turns on how the circumstance-specific conditions modify the generic or cross-referenced offenses.

        Under 34 U.S.C. § 20911(3), a state sex offense is Tier II for SORNA sentencing purposes when it is comparable to or more severe than abusive sexual contact under § 2244 when committed against a minor. Abusive sexual contact under 18 U.S.C. § 2244 sexual abuse of a minor under 18 U.S.C. § 2243(a) requires that the victim be 12–15 years old and the offender be 4 years older than the victim.

        SORNA requires a circumstance-specific inquiry into the victim’s age when classifying sex-offender tier levels to determine whether the victim was a minor or in the case of a Tier III categorization under 34 § 20911(4)(A)(ii), whether the victim was younger than 13.

        SORNA does not permit a court when applying the categorical approach to determine sex-offender tier levels to conduct a circumstance-specific inquiry into an offender-victim age differential that is built into one of the corresponding cross-referenced offenses as an element of the crime.

United States v. Fields, No. 18-10928, 2019 U.S.App.LEXIS 22454 (5th Cir. July 29, 2019) (designated for publication) [Using prior conduct not resulting in a conviction in a sentencing calculation]

        A district court may impose a sentence outside the U.S.S.G. range if after considering factors identified in 18 U.S.C. § 3553(a) and making an individualized assessment based on the facts presented, the court determines that an outside-U.S.S.G. range is warranted. Prior conduct not resulting in a conviction may be considered in a sentencing calculation as long as the court finds by a preponderance that the conduct occurred.

        District courts may consider any information that “bears sufficient indicia of reliability to support its probable accuracy,” which means that the court may not rely on a “bare arrest record,” and even if a PSR provides a more detailed factual recitation of the conduct underlying an arrest, if that recitation lacks sufficient indicia of reliability then it is error for the district court to consider it at sentencing regardless of whether the defendant objects or offers rebuttal evidence. But if the factual recitation possesses sufficient indicia of reliability, the court may consider it unless the defendant objects and offers rebuttal evidence challenging the truthfulness, accuracy, or reliability of the evidence supporting the factual recitation in the PSR. Mere objections are generally insufficient unless they sufficiently alert the district court to questions regarding the reliability of the evidentiary basis for the facts contained in the PSR.

        A district court may rely on a PSR’s factual recitation of conduct underlying an arrest even if the defendant was acquitted of charges underlying the arrest. Acquittal on criminal charges does not prove that the defendant is innocent but proves only reasonable doubt as to guilt. It is impossible to know why a jury found a defendant not guilty since an acquittal can be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt. Thus, the jury cannot be said to have “necessarily rejected” facts when it returns a general verdict of not guilty and the verdict does not prevent the district court from considering conduct underlying the acquitted charge so long as that conduct has been proved by a preponderance of the evidence.

United States v. McKown, No. 18-20467, 2019 U.S.App.LEXIS 21763 (5th Cir. July 22, 2019) (designated for publication) [Constitutionality and appealability of orders under 18 U.S.C. § 4241(d), commitment for restoring competency]

        Under 18 U.S.C. § 1291 and Flanagan v. United States, 465 U.S. 259, 263, (1984), an appellate court may resolve appeals only of final decisions of the district courts, which are the conviction and sentence. Under Sell v. United States, 539 U.S. 166, 176 (2003), the collateral order doctrine allows a preliminary or interim decision to be appealed if it: (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.

        A district court’s ruling under 18 U.S.C. § 4241(d) is reviewable as a collateral order because a commitment order conclusively determines a defendant’s present right to be at liberty prior to trial, whether a defendant was denied due process is an important question that is separate from whether he is guilty of the crimes charged, and such an order is effectively unreviewable on appeal from a final judgment because if the defendant were never tried or were tried and acquitted, there would be no appellate review, but if he were tried and convicted, no meaningful relief would be available.

        Under Cooper v. Oklahoma, 517 U.S. 348, 354 (1996), the Due Process Clause of the Fifth Amendment circumscribes federal prosecutorial power in two relevant respects: proscribes the criminal trial of an incompetent defendant; and recognizes a substantial liberty interest in avoiding confinement in a mental hospital. Because commitment constitutes a significant deprivation of liberty, the government must advance a sufficiently compelling interest to justify pretrial detention.

        Under Jackson v. Indiana, 406 U.S. 715, 731–733 (1972), the “rule of reasonableness” provides that an incompetent defendant could be committed only for a reasonable time necessary to assess the likelihood of recovery and the nature and duration of commitment must bear some reasonable relation to the purpose for which the individual is committed.

        Not only is there a statutory cap of four months for confinement under 18 U.S.C. § 4241(d), the length is restricted to a reasonable period of time as is necessary to determine whether the defendant will attain sufficient capacity in the foreseeable future. It allows the defendant to gain early release through a medical determination before the conclusion of the four-month period. Because 18 U.S.C. § 4241(d) has a flexible and case-oriented approach to determining the length of confinement, it comports with the rule of reasonableness under Jackson.

        In evaluating a procedural due process claim, a court: (1) considers whether governmental action has deprived an individual of a constitutionally protected interest; and (2) determines whether the procedures afforded the defendant were adequate. Under Mathews v. Eldridge, 424 U.S. 319, 335 (1976), to decide what procedures should apply in a case, the court weighs the: (1) private interest that is affected by the official action; (2) risk of an erroneous deprivation of such interest through the procedures used, and the probable value of additional or substitute procedural safeguards; and (3) government’s interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

United States v. Pawlak, No. 17-11339, 2019 U.S.App.LEXIS 24366 (5th Cir. Aug. 15, 2019) (designated for publication) [Obstruction of justice enhancement under U.S.S.G. § 3C1.1 applies even if no actual obstruction occurs]

        Under U.S.S.G. § 3C1.1, if the: (1) defendant willfully obstructed or impeded or attempted to obstruct or impede the administration of justice with respect to the investigation, prosecution, or sentencing of the offense of conviction; and (2) obstructive conduct is related to the defendant’s offense of conviction and any relevant conduct or a closely related offense, a two-level enhancement is applied. This occurs where there is destroying or concealing evidence that is material to an official investigation or judicial proceeding or attempting to do so.

Editor’s note: This opinion addresses several issues, including alleged error of the denial of a motion to dismiss the indictment, motion to suppress, and sufficiency of the evidence. Because the other issues have been summarized recently, the only issue summarized is the obstruction of justice.

Facts:

• When he learned that the feds were searching his home for sharing child porn on PlayPen, a child-porn website, Pawlak attempted to delete the contents of a hard drive and downloaded software designed to wipe a computer hard drive but did not use it.
• This resulted in a two-level enhancement for obstruction of justice.
• The mere attempt to obstruct justice allows a 2-level enhancement
• Pawlak argues that the attempt to erase his hard drive occurred contemporaneously with his arrest, so the enhancement should not apply.
• Under U.S.S.G. § 3C1.1, if the: (1) defendant willfully obstructed or impeded or attempted to obstruct or impede the administration of justice with respect to the investigation, prosecution, or sentencing of the offense of conviction; and (2) obstructive conduct is related to the defendant’s offense of conviction and any relevant conduct or a closely related offense, a two-level enhancement is applied. This occurs where there is destroying or concealing evidence that is material to an official investigation or judicial proceeding or attempting to do so.
• Pawlak attempted to wipe his hard drive shortly after he learned that federal agents were searching his house. And, his downloading the software that would wipe his hard drive was obstruction even though he didn’t use it.

United States v. Waguespack, No. 18-30813, 2019 U.S.App.LEXIS 24327 (5th Cir. August 15, 2019) (designated for publication) [Obstruction of justice enhancement under U.S.S.G. § 3C1.1 may apply even if the defendant is not aware that an investigation is ongoing]

        Under U.S.S.G. § 3C1.1, if the: (1) defendant willfully obstructed or impeded or attempted to obstruct or impede the administration of justice with respect to the investigation, prosecution, or sentencing of the offense of conviction; and (2) obstructive conduct is related to the defendant’s offense of conviction and any relevant conduct or a closely related offense, a two-level enhancement is applied. This occurs where there is destroying or concealing evidence that is material to an official investigation or judicial proceeding or attempting to do so. Obstructive conduct that occurred prior to the start of the investigation of the offense of conviction may be covered if the conduct was purposefully calculated—and likely to thwart the investigation or prosecution of the offense of conviction. This includes situations where the defendant may not be aware that an investigation is ongoing.

Editor’s note: This opinion addresses several issues, including a Brady violation and sufficiency of the evidence. Because the other issues have been summarized recently, the only issue summarized is the obstruction of justice, as above.

Facts:

• Waguespack was identified as a suspect in an undercover investigation of peer-to-peer networks for child porn.
• Investigator Ratcliff used Torrential Downpour to download over 400 images of child porn from an IP Address in Baton Rouge, which was on a computer in the home of Waguespack’s father.
• The father confirmed that only Waguespack used the computer.
• The computer contained software searching for and downloading files with names indicative of child porn. After a forensic examination, the computer was found to have installed encrypted space and anti-forensic software, CCleaner & Eraser. There were paths with names indicative of child-porn that led to an “E-drive,” but examiners were unable to locate it in the unencrypted space of the drive. The examiners were unable to find any user-accessible child porn on the computer. However, examiners found 2,800 images and four videos of child porn in a thumbnail cache in a deleted zip file in an unallocated space of the drive. The names in the unallocated space were not indicative of child porn.
• After Waguespack was convicted of possession and distribution of child porn, the PSR recommended a two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1 because there was anti-forensic software installed on the computer. Waguespack objected because he never attempted to delete or conceal evidence after he learned of the investigation. The district court overruled the objection.

Obstruction of justice enhancement may apply even where the defendant may not be aware that an investigation is ongoing

• Under U.S.S.G. § 3C1.1, if the: (1) defendant willfully obstructed or impeded or attempted to obstruct or impede the administration of justice with respect to the investigation, prosecution, or sentencing of the offense of conviction; and (2) obstructive conduct is related to the defendant’s offense of conviction and any relevant conduct or a closely related offense, a two-level enhancement is applied. This occurs where there is destroying or concealing evidence that is material to an official investigation or judicial proceeding or attempting to do so. Obstructive conduct that occurred prior to the start of the investigation of the offense of conviction may be covered if the conduct was purposefully calculated—and likely to thwart the investigation or prosecution of the offense of conviction. This includes situations where the defendant may not be aware that an investigation is ongoing.
• A finding of obstruction of justice is a factual finding that is reviewed for clear error.
• Although there was no evidence that Waguespack engaged in obstructive conduct during the Government’s investigation of his activities or even that he was aware that an investigation was about to commence. However, based on the plain language of guidelines, the enhancement may be applied for conduct that occurred prior to an investigation if the conduct was purposefully calculated—and likely to thwart the investigation or prosecution of the offense of conviction.

Texas Court of Criminal Appeals

No published opinions were handed down by the TCCA since the last SDR.

Texas Courts of Appeals

Ex parte Barton, No. 02-17-00188-CR, (Tex.App.—Fort Worth Aug. 8, 2019) (designated for publication) [Tex. Penal Code § 42.07(a)(7) is facially unconstitutional as vague and overbroad]

        Under Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969), and Scott v. State, 322 S.W.3d 662, 668 (Tex.Crim.App. 2010), the protection of free speech includes the free communication and receipt of ideas, opinions, and information. But under Cohen v. California, 403 U.S. 15, 21 (1971), free speech is not absolute and the State “may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable manner.” Under Vill. of Hoffman Estates, v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 494 (1982), when considering a First Amendment challenge, a court must first determine whether it reaches a substantial amount of constitutionally protected conduct before considering whether the challenged law or regulation is facially overbroad or vague.

        A person who communicates with the intent to harass, annoy, alarm, abuse, torment, or embarrass can have intent to engage in legitimate communication of ideas, opinions, information, or grievances. Thus, Tex. Penal Code § 42.07(a)(7) is facially unconstitutional because it is vague and overbroad.

        Under May v. State, 765 S.W.2d 438, 439 (Tex.Crim.App. 1989), vague laws violate the Constitution by allowing arbitrary and discriminatory enforcement by failing to provide fair warning and by inhibiting the exercise of First Amendment freedoms. A law imposing criminal liability must be sufficiently clear to: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited; and (2) establish determinate guidelines for law enforcement. A law that implicates First Amendment freedoms requires greater specificity to avoid chilling protected expression.

        Under Morehead v. State, 807 S.W.2d 577, 580 (Tex.Crim.App. 1991), a statute is overbroad in violation of the First Amendment if in addition to proscribing activity that may be constitutionally forbidden, it sweeps within its coverage a substantial amount of expressive activity that is protected by the First Amendment. Under State v. Johnson, 475 S.W.3d 860, 865 (Tex.Crim.App. 2015), the statute’s oppressive affect cannot be minor but must prohibit a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on fanciful hypotheticals.

Bertram v. State, No. 01-17-00940-CR, 2019 Tex.App.-LEXIS 4444 (Tex.App.—Houston [1st Dist.] May 30, 2019) (designated for publication) [Standard of review for motion for a directed verdict; aggravated kidnapping]

        Under Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996), a motion for a directed verdict and a challenge from the motion is the same as a challenge to the legal sufficiency.

        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 legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in testimony, weighing of evidence, and drawing reasonable inferences from the facts. 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. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. 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.

        To prove attempt under Tex. Penal Code § 15.01, there must be sufficient evidence that a defendant did an act amounting to more than mere preparation with the specific intent to commit the target offense.

        Under Tex. Penal Code § 20.04, a person commits aggravated kidnapping if he intentionally or knowingly abducts another and commits an aggravating element. “Abduct” means to restrain with intent to prevent liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force. The defendant must have restrained (actus reus) with the specific intent to prevent liberation (mens rea). Secreting or holding another where he is unlikely to be found is part of the mens rea and not the actus reus. The State is not required to prove that the defendant secreted or held another but only that he restrained with the specific intent to prevent liberation by secreting or holding. The offense is completed when at any time during the restraint the defendant forms intent to prevent liberation by secreting or holding another in a place unlikely to be found.

        Under Tex. Penal Code § 20.04(a), a kidnapping is aggravated when a defendant intentionally or knowingly abducts another with the specific intent to: (1) hold for ransom or reward; (2) use as a shield or hostage; (3) facilitate the commission of a felony or the flight after the attempt or commission of a felony; (4) inflict bodily injury or violate or abuse sexually; (5) terrorize the victim or a third person; or (6) interfere with the performance of any governmental or political function.

Editor’s note: This is the complete relevant law on legal sufficiency:

• 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 legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in testimony, weighing of evidence, and drawing reasonable inferences from the facts. 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. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. 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.

Burwell v. State, No. 01-18-00300-CR, 01-18-00301-CR, & 01-18-00302-CR, 2019 Tex.App.-LEXIS 4139 (Tex.App.—Houston [1st Dist.] May 21, 2019) (designated for publication) [Searches by private persons or entities]

        Under United States v. Jacobsen, 466 U.S. 109, 113 (1984), Fourth Amendment protections generally do not extend to the conduct of private persons who are not acting as government agents or with the knowledge and participation of a government official.

        Under Walter v. United States, 447 U.S. 649, 656 (1980), even a wrongful search or seizure by a private citizen does not deprive the government of the right to use evidence obtained from the wrongful search. But the government may not encourage conduct by private persons that the government cannot do. If the government encourages a search or the private citizen searches solely for the purpose of aiding law enforcement, the search is illegal.

        Under Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 614 (1989), whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes turns on the degree of the Government’s participation in the private party’s activities.

        Under Stoker v. State, 788 S.W.2d 1, 11 (Tex.Crim.App. 1989), to determine whether a person is acting as an instrument or agent of the government, a court considers whether the: (1) government knew of and acquiesced in the intrusive conduct, and (2) party performing the search intended to assist law enforcement efforts or instead to further his own ends. The defendant bears the burden of proving that a private party acted as an agent of the government.

Fulton v. State, No. 04-18-00529-CR, 2019 Tex.App.-LEXIS 6536 (Tex.App.—Austin July 31, 2019) (designated for publication) [Evading arrest with a vehicle under Tex. Penal Code § 38.04(b) is an F-3]

        Under Sims v. State, 569 S.W.3d 634, 640 (Tex.Crim.App. 2019), and Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), when deciding issues related to statutory construction, appellate courts apply a de novo standard of review. The courts seek to effectuate the purpose of the Legislature.

        Under Ex parte Jones, 440 S.W.3d 628, 629 (Tex.Crim.App. 2014), evading arrest with a vehicle under Tex. Penal Code § 38.04(b) is an F-3.

Ex parte J.A.G., No. 04-18-00218-CV, 2019 Tex.App.-LEXIS 5312 (Tex.App.—San Antonio June 26, 2019) (designated for publication) [Expunction of cases in which the statute was declared unconstitutional]

        Under Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992), a trial court’s ruling on a petition for expunction is reviewed for an abuse of discretion. Questions of law are reviewed de novo because a trial court has no discretion in determining what the law is or applying the law to the facts. A trial court abuses its discretion if it misapplies or misinterprets the law.

        One requirement that must be shown to be entitled to an expunction under Tex. Code Crim. Proc. Art. 55.01(a)(2) is that there was no court-ordered community supervision under Chapter 42A.

        Under Reyes v. State, 753 S.W.2d 382, 383 (Tex.Crim.App. 1988), an unconstitutional statute is void from its inception. Under Smith v. State, 463 S.W.3d 890, 896 (Tex.Crim.App. 2015), when a statute is declared facially unconstitutional, there is no valid law upon which to base a prosecution or to justify the imposition of community supervision.

        Legal consequences under void statutes are void from inception, so community supervision imposed under a void statute is a legal nullity.

Mitchell v. State, No. 01-18-00609-CR, 2019 Tex.App.-LEXIS 5112 (Tex.App.—Houston [1st Dist.] June 20, 2019) (designated for publication) [Statutory construction; reporting duties under Tex. Transp. Code § 550.025(a)]

        Under Wagner v. State, 539 S.W.3d 298, 306 (Tex.Crim.App. 2018), courts construe statutory text according to its plain meaning unless the text is ambiguous or the plain meaning leads to absurd results the Legislature could not possibly have intended. To determine a statute’s plain meaning, courts read words and phrases in context and construe them according to the rules of grammar and usage. Every word is presumed to be used for a purpose, and each word, phrase, clause, and sentence is given effect if reasonably possible.

        Under Tex. Transp. Code § 550.025(a), the operator of a vehicle involved in an accident resulting only in damage to a structure or landscaping adjacent to a highway shall: (1) take reasonable steps to locate and notify the owner or person in charge of the property of the accident and of the operator’s name, address, and (ID of the vehicle); and (2) if requested and available, show the operator’s DL to the owner or person in charge of the property. Under § 550.025(b), a violation is a class-C misdemeanor if damage is < $200 and a class-B misdemeanor if $200 or more. Reporting duties under Tex. Transp. Code § 550.025(a) include public and private structures.

Moon v. State, No. 06-18-00128-CR, 2019 Tex.App.-LEXIS 3870 (Tex.App.—Texarkana May 15, 2019) (designated for publication) [Confrontation clause re prior sworn testimony]

Facts:

• Moon was released on bond from Fannin Co. Jail after being arrested for aggravated assault of a peace officer (F-1).
• The bond was conditioned on Moon appearing in court.
• Moon appeared for jury selection and the first day of the State’s case.
• The next day, Moon’s attorney informed the trial court that Moon had fallen the night before and was unresponsive. Moon had been taken to the Texoma Medical Center was unable to communicate.
• The trial court declared a mistrial.
• A month later, the State retried Moon. The jury convicted him.
• A few weeks later, Moon was indicted for bail jumping. Shortly before the trial, his wife Lori, who had testified against him during the punishment-phase of the aggravated assault trial, died of cancer.
• During the guilt/innocence stage of the trial, over Moon’s objection the trial court admitted that portion of Lori’s testimony from the aggravated assault trial.

To satisfy the Confrontation Clause, prior testimony from a different case may be used provided the witness is unavailable and the defendant had an opportunity to cross-examine the witness

• Under Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh.), review for a trial court’s decision on admission of evidence is for an abuse of discretion, which occurs if the decision is so clearly wrong as to lie outside the zone of reasonable disagreement.
• Under Holmes v. South Carolina, 547 U.S. 319, 324 (2006), and California v. Trombetta, 467 U.S. 479, 485 (1984), a trial court’s discretion on admission of evidence is constrained by constitutional protections including the Confrontation Clause, which guarantee a meaningful opportunity to present a complete defense.
• Under State v. Ballard, 987 S.W.2d 889, 893 (Tex.Crim.App. 1999), a trial court’s misapplication of the law to the facts of a case is a per se abuse of discretion.
• Under Crawford v. Washington, 541 U.S. 36, 68 (2004), and U.S. Const. Amend. VI, the Confrontation Clause allows a defendant the right to be confronted with witnesses against the defendant. If testimonial evidence is at issue (like testimony from a prior proceeding), the Sixth Amendment requires the unavailability of the witness and a prior opportunity for cross-examination.
• To satisfy the Confrontation Clause, prior testimony from a different case may be used provided the witness is unavailable and the defendant had an opportunity to cross-examine the witness.
• The trial court did not abuse its discretion in admitting Lori’s prior testimony. Nor was the Confrontation Clause implicated.

In re The State of Texas, No. 08-18-00102-CR, 2019 Tex.App.-LEXIS 5774 (Tex.App.—El Paso July 10, 2019) (designated for publication) [Mandamus and video recording of the psychiatric examination of a defendant]

        Under In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App. 2013), to be entitled to mandamus relief, the relator must show: (1) no adequate remedy at law; and (2) what he seeks to compel is a ministerial act that requires a clear right to the relief requested, which is shown when the circumstances dictate one rational decision under unequivocal, well-settled statutory, constitutional, or case law. A party is entitled to mandamus relief to correct judicial action that is clearly contrary to well-settled law.

        Under Soria v. State, 933 S.W.2d 46 (Tex.Crim.App. 1996), and Lagrone v. State, 942 S.W.2d 602 (Tex.Crim.App. 1997), when a defendant initiates a psychiatric examination and introduces psychiatric testimony based on that examination, the defendant constructively testifies through the defense expert and waives his Fifth Amendment rights to a limited extent. When the defendant in a death penalty case presents psychiatric testimony on future dangerousness, the trial court may compel an examination of the defendant by an expert of the State’s choosing, and the State may present rebuttal testimony of that expert based upon the expert’s examination of the defendant. The rebuttal testimony is limited to the issues raised by the defense expert. Trial courts may order a defendant to submit to a state-sponsored psychiatric exam on future dangerousness when the defense introduces or plans to introduce expert psychiatric testimony. The Soria-Lagrone rule has not been extended to non-death penalty cases.

        There is no statute or case law that prohibits the video recording of the psychiatric examination of a defendant.

Tilghman v. State, No. 03-17-00803-CR, 2019 Tex.App.-LEXIS 4921 (Tex.App.—Austin June 7, 2019) (designated for publication) [Expectation of privacy in a hotel room; exigent circumstances]

        Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000), and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on an MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002), and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record.

        Under Stoner v. California, 376 U.S. 483 (1964), a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures and the protection would disappear if it is left to depend upon the unfettered discretion of an employee of the hotel. If there is evidence showing that the guest has been evicted from the hotel or his term of occupancy has expired, the reasonable expectation of privacy in the room diminishes or disappears.

        Under Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007), to validate a warrantless search based on exigent circumstances, the State must show: (1) probable cause to enter or search a specific location (probable cause exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found); and (2) an exigency that requires an immediate entry to a place without a warrant must exist. The exigency must make the needs of law enforcement so compelling that a warrantless search is objectively reasonable.

        Under Weems v. State, 493 S.W.3d 574, 578 (Tex.Crim.App. 2016), and Missouri v. McNeely, 569 U.S. 141, 148-149 (2013), exigency provides for a reasonable yet warrantless search because there is compelling need for official action and no time to secure a warrant. Whether officers face an emergency that justifies acting without a warrant calls for a case-by-case determination based on the totality of circumstances. The emergency must exist at the time of the warrantless intrusion and not on exigencies discovered once inside.

        Under McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App. 1991), exigent circumstances justify a warrantless intrusion to: (1) provide aid or assistance to persons officers reasonably believe need assistance; (2) protect officers from persons they reasonably believe to be present, armed, and dangerous; and (3) prevent the destruction of evidence or contraband.

Ransier v. State, No. 14-17-00580-CR, 2019 Tex.App.-LEXIS 6021 (Tex.App.—Houston [14th Dist.] July 16, 2019) (designated for publication) [Waiver of error; instruction on lesser-included offense]

        Under Stairhime v. State, 463 S.W.3d 902, 906 (Tex.Crim.App. 2015), when assessing the meaning of an attorney’s statement that he has “no objection” about a matter that was previously ruled upon, courts should ask: (1) whether the entire record demonstrates that the defendant did not intend and the trial court did not construe the “no objection” to be an abandonment of a claim of error that was earlier preserved; then (2) if after applying this test it remains ambiguous whether abandonment was intended, the ambiguity must be resolved in favor of finding waiver.

        Under Bullock v. State, 509 S.W.3d 921, 924 (Tex.Crim.App. 2016), and Tex. Code Crim. Proc. Art. 37.09, to determine whether the trial court was required to give a requested charge on a lesser-included offense: (1) determine whether the requested instruction is a lesser-included offense of the charged offense; and (2) assess whether the record-evidence supports an instruction on the lesser-included offense (there must be some evidence in the record that would permit a jury to rationally find that if the defendant is guilty he is guilty only of the lesser-included offense). Anything more than a scintilla of evidence is adequate. Some evidence must refute or negate other evidence establishing the greater offense or the evidence is subject to different interpretations. If the jury is charged on alternate theories, the record-evidence supports an instruction only if there is evidence that, if believed, refutes or negates every theory that elevates the offense from the lesser to the greater.

        Under Masterson v. State, 155 S.W.3d 167, 171 (Tex.Crim.App. 2005), the harm from denying a lesser-offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer.