Monthly archive

April 2020 - Page 2

Chief Executive Officer’s Perspective: Trying Times

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“We are each other’s harvest; we are each other’s business; we are each other’s magnitude and bond.”

– Gwendolyn Brooks

This month has been overwhelmingly difficult – both professionally and personally.  I know I am not alone in feeling the weight of concerns that have come along with the global spread of COVID-19 – how to keep our members, staff, and family safe while still ensuring income is coming to pay the bills.

At TCDLA, we have always had an overwhelming number of committees and members band together to assist in various areas. 

When a member brings a concern, we unite as one to get the resources or answers needed. This pandemic and its effect on our profession is no different. The Executive Committee, under the leadership of President Kerri Anderson Donica, has worked unselfishly and tirelessly on so many issues that surround the criminal defense field and TCDLA. We are updating the website and continuing to add resources and motions. Do NOT hesitate to reach out and let us know how we can do better to support you. We have several different alternatives for face to face CLE that we are also offering.  I want to stress more than anything, at trying times like this, we need each other and should not be ashamed to share our deepest concerns, fears, or feelings.

I hope each of you builds the courage to ask for help when needed.  We are here for each other. One thing I have seen over and over is how TCDLA bands together and takes care of each other. It is very humbling and powerful.

Visit our website for more information. Please send your concerns, requests, or any resources, documents, or motions you have to share to .

Ethics Hotline is being closely monitored. Call 512-646-2734.

Strike Force Co-Chairs:

     Nicole DeBorde | | (713) 526-6300 p

     Wm. Reagan Wynn | | (817) 336-5600 p

Be sure to continuously check our website for updates. Our home office is not closed but some staff are working remotely. Our phone line hours are from 8 a.m. to 5 p.m. For 24-hour help, contact Melissa Schank, 512-619-2060, Mari Flores, 512-743-5149 or Rick Wardroup, 806-283-1496.

Editor’s Comment: All Hands On Deck

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The response to the COVID-19 pandemic is infiltrating every aspect of life. It’s affecting our work and how we interact with clients and attend court. Adapting to what seems like a constant change in court procedures is more than frustrating. It is clear this is not business as usual. It’s our new, present reality.

And in many ways, it requires a greater degree of attention and advocacy both for us and our clients. Neither we, as criminal defense lawyers, nor our clients, are expendable. The system cannot and will not work without us. 

We all must do our part professionally and personally. First of all, let’s continue to take care of ourselves and our families. We can’t effectively take care of anyone else if we don’t take care of ourselves first. Let’s also continue to support and help each other. We must stand together and collectively advocate for our interests. We are the only ones who look after us. And let’s continue to vigorously advocate for our clients. Let’s file PR bonds when necessary and keep in communication with our clients and their families. Consider how much anxiety parents or loved ones of clients must feel if their loved one is in jail during this pandemic. In spite of this pandemic, our justice system will remain and advocacy for our clients is paramount.

Please also know that there are tremendous resources available through TCDLA, and as always, we have a legion of lawyers willing and ready to help at any point, even if it’s just to talk. Remember our members’ response to Hurricane Harvey in 2017? We will weather this viral storm, too, together. 

Let’s all also be careful that the prudent practice of social distancing doesn’t mutate into social isolation.  We need each other. And, at the same time, while we may be feeling a bit of cabin fever with the new practice of social distancing, let’s remember our clients in jail, some of them in isolation. If we think social distancing is hard at times, let’s perhaps think about how to channel this feeling into a future jury argument about how hard being separated from society actually is. Now, we all have the common shared experience of social distancing that perhaps we can draw on for the benefit of our clients. 

Be safe and well.

Ethics & The Law: Past Tense

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Below is a real question presented to the Ethics Committee by a member:

I have a client that I represented in a recent exoneration. The date of offense was 2001. The exoneration process started in 2014-2015. It is now complete.

Former client is considering getting case expunged. In preparation for that, he has asked for his complete file. There are several exhibits to the writ that were filed under seal, with specific exclusionary language regarding access – even by him – on the grounds of witness safety and protection of the investigation. However, there is other information in his file that isn’t covered by a court order and could be problematic. Names, addresses, phone numbers, inculpatory statements… I’m concerned about possible retaliation towards these writ witnesses. Also, in our file is sensitive information developed by the DA during their investigation, a copy of which was provided to me as discovery.

What are my options here? Am I obligated to turn everything that is un-sealed over to him? Am I required to redact anything before I turn it over to him? Do I have a duty to approach the court for guidance – which my client will see as opposing him? Has there been any change in the lack of applicability of 39.14 to these cases?

Any guidance you can provide would be greatly appreciated. Thanks so much!

ANSWERS

Keith Hampton

I think a court order cures almost all of these issues. I agree that if he has a lawyer, then go through him, but if not, then it sounds like he is a client who could misuse parts of the file. I think your ethical duties are broader than robotic obedience to a client’s demand. If I understand the circumstances (and I think I know the case), then I would ask for a hearing and let the judge redact or order you to refrain from disclosure. I am limiting my remarks to the ethics of what to do and not a civil suit or any other considerations.

John Wright

  • If there are some items that the attorney is sure she can simply provide to the client, I would recommend that be done right away.
  • Send the materials under a cover letter that says that the attorney has other materials that she is not sure the law will permit her to provide to the client, and that legal issue is now under review. The lawyer will do well to convey the idea that she is trying to be careful, not just recalcitrant.
  • The lawyer might consider asking the former client if he has a Texas licensed lawyer that will accept the file materials, and discuss them with him, knowing that the lawyer will have duties and obligations under the Michael Morton Act and the general duty to protect the rights of third parties.
  • If the former client persists in having all the materials sent to him personally, consider filing a suit in inter pleader under the civil rules. The theory of such a suit runs like this: I have possession of certain papers and property that may belong to the former client, third parties or to the court itself. The relief requested, after notice to the former client, the DA and all interested parties and a hearing, is that the court will decide what must be done with the papers and property. Once the court decides, the order can be appealed by anyone not happy with the outcome.
  • My overriding advice is to try to make nice with such a former client to the extent that is lawfully possible.
  • The client needs to be advised about the law on expungement so that process can be expedited.

Special thanks to Keith Hampton, JohnWright, and Sharon Bass.

Federal Corner: The Outrageous Government Conduct Defense

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In the November 2016 edition of the VOICE, my Federal Corner column was entitled Child Pornography; The Playpen; The Onion Router (“Tor”); Network Investigative Technique (“NIT”) Warrants; Suppression; and, Confusion in the Courts.  I wrote about United States v. Croghan, ___F.Supp.3d___, 2016 WL 4992105 (S.D. Iowa Sept. 19, 2016) and United States v. Werdene, ___F.Supp.3d___, 2016 WL 3002376 (E.D. Pa. May 18, 2016).  In these cases, judges from Iowa and Pennsylvania came to different conclusions as to whether evidence seized under the authority of a search warrant issued by a magistrate judge from Virginia should be suppressed.

Croghan and Werdene came out of the FBI’s investigation of “Playpen,” a child pornography website.  In January, 2015, FBI agents seized Playpen’s servers and then obtained a warrant from a magistrate judge of the United States District Court for the Eastern District of Virginia.  This warrant authorized the agents to install a Network Investigative Technique (“NIT”) to identify the Internet Protocol (“IP”) addresses of the computers that had accessed Playpen. 

The NIT was able to collect identifying information from the activating computers of any user or administrator who logged into Playpen by entering a username and password.  The activating computer, wherever located, transmitted the information, including the IP address and host name to a government facility in Virginia.  The FBI deployed the NIT on Playpen’s servers from February 20, 2015, to March 4, 2015.  During these two weeks, some 100,000 users accessed the website.

Almost four years later, on March 3, 2020, the United States Court of Appeals for the Tenth Circuit held that the FBI’s operation of the Playpen website for two weeks, after arresting its operator, in order to determine the identities of website users, was not so outrageous as to violate due process. 

This was yet another of the Playpen cases in which FBI agents had seized evidence of child pornography under the authority of that same NIT warrant issued by the magistrate judge from Virginia.  United States v. Wagner, ___F.3d___, 2020 WL 1024700 (10th Cir. March 3, 2020) [Panel: Circuit Judges Holmes, Matheson and Bacharach.  Opinion by Matheson.] [Note:  There are other issues in Wagner but it is the outrageous government conduct issue that I want to focus on.]  Judge Matheson’s opinion reads, in part, as follows:

The Factual Background

The FBI seized Playpen’s servers in January 2015 and moved them to a government facility in Virginia. The FBI then hosted the website from this facility, hoping to identify its users.

The FBI obtained a warrant from a magistrate judge in the U.S. District Court for the Eastern District of Virginia (‘NIT Warrant’), which authorized agents to install an NIT on Playpen’s servers to collect identifying information from the ‘activating computers … of any user or administrator who log[ged] into [Playpen] by entering a username and password.’ Supp. App. at 89. The activating computer, ‘wherever located,’ transmitted the information, including its IP address and host name, to the government facility in Virginia.

The FBI deployed the NIT on Playpen’s servers from February 20, 2015 to March 4, 2015, during which 100,000 users accessed the website.

* * *

Playpen user ‘soldiermike’ logged into the website on February 28, 2015. The NIT identified soldiermike’s computer’s host name as ‘SFC-Gunner.’ … It also identified its IP address. Using subpoenaed records from the Tri-County Telephone Association, the FBI traced the IP address to Mr. Wagner and his residence in White City, Kansas.

On September 15, 2015, the FBI obtained a warrant to search Mr. Wagner’s residence from a magistrate judge in the U.S. District Court for the District of Kansas (‘Residence Warrant’). The warrant authorized agents to seize, among other items, computers used to ‘display or access information pertaining to a sexual interest in child pornography’ or to ‘distribute, possess, or receive child pornography.’  

 * * *

Agent Jones and FBI Special Agent Mike Daniels interviewed Mr. Wagner… He denied accessing child pornography on his computer but admitted to a past pornography addiction. He said that he and his wife were the only users of the family laptop, that no one had lived with them in the last year, and that no one else could access their wireless network.  Agents in the home found child pornography on the laptop in a folder labeled ‘TOR.’  

* * *

The Procedural Background

A federal grand jury indicted Mr. Wagner on two counts: (1) receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2); and (2) possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

* * *

Mr. Wagner moved to … dismiss the indictment, asserting the FBI’s 13-day operation of the Playpen website was outrageous in violation of due process.

Following a hearing, the court … concluded … that the Government did not engage in outrageous conduct. 

* * *

Following a three-day trial, a jury convicted Mr. Wagner of both counts.

* * *

The district court sentenced Mr. Wagner to eight years of imprisonment and five years of supervised release.  Mr. Wagner timely appealed.

* * *

On appeal, Mr. Wagner contends the district court erred when it … denied the outrageous government conduct motion…

* * *

The District Court’s Ruling and Wagner’s Contention on Appeal

The district court denied Mr. Wagner’s motion to dismiss the indictment, concluding the Government’s conduct was not outrageous in violation of due process. Mr. Wagner contends the FBI’s operation of Playpen, a child pornography website, established the ‘extraordinary’ outrageous conduct defense. United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994). We disagree.

 * * *

The Standard of Review

We review the denial of a motion to dismiss an indictment for outrageous government conduct de novo. Perrine, 518 F.3d at 1207.

* * *

The Additional Legal Background

‘When the government’s conduct during an investigation is sufficiently outrageous, the courts will not allow the government to prosecute offenses developed through that conduct because [doing so] would offend the Due Process Clause of the Fifth Amendment.’ Pedraza, 27 F.3d at 1521 (quotations omitted). To prove outrageous government conduct, the defendant must show ‘either (1) excessive government involvement in the creation of the crime, or (2) significant governmental coercion to induce the crime.’ United States v. Dyke, 718 F.3d 1282, 1288 (10th Cir. 2013) (quotations omitted). Under ‘the totality of the circumstances[,] … the government’s conduct [must be] so shocking, outrageous and intolerable that it offends the universal sense of justice.’ Perrine, 518 F.3d at 1207 (quotations omitted).

‘Excessive government involvement occurs if the government engineers and directs the criminal enterprise from start to finish.’ Pedraza, 27 F.3d at 1521 (quotations omitted). It is not excessive for the government ‘to infiltrate an ongoing criminal enterprise’ or ‘to induce a defendant to repeat or continue a crime or even to induce him to expand or extend previous criminal activity.’ Dyke, 718 F.3d at 1288 (quotations omitted). The government can, for instance, ‘suggest the illegal activity,’ ‘provide supplies and expertise for the illegal activity,’ and ‘act as both supplier and buyer in sales of illegal goods.’ (quotations omitted).

Governmental coercion must be ‘particularly egregious [to] rise[ ] to the level of outrageous conduct.’ Pedraza, 27 F.3d at 1521. ‘[I]f the defendant is already involved in criminal activity similar to the type of crime the government is attempting to induce him to commit, then the government’s conduct is a less important consideration.’ Dyke, 718 F.3d at 1289 (quotations omitted); see also United States v. Pawlak, 935 F.3d 337, 344 (5th Cir. 2019) (holding that ‘[a] defendant who actively participates in the crime may not avail himself of [this] defense’ (quotations omitted)).

Every circuit to consider the issue has held the FBI’s operation of Playpen was not outrageous government conduct. See United States v. Anzalone, 923 F.3d 1, 6 (1st Cir. 2019); Pawlak, 935 F.3d at 345-46; United States v. Harney, 934 F.3d 502, 506-07 (6th Cir. 2019); Kienast, 907 F.3d at 530-31; United States v. Tippens, 773 F. App’x 383, 385 (9th Cir. 2019) (unpublished).

* * *

The Court’s Analysis

Mr. Wagner has not shown the Government’s conduct was ‘so shocking … and intolerable that it offends the universal sense of justice.’ Perrine, 518 F.3d at 1207 (quotations omitted). The Government was not excessively involved in Playpen’s operation and did not coerce Mr. Wagner’s participation.

The FBI did not ‘engineer[ ] and direct[ ] [Playpen’s operation] from start to finish.’ Dyke, 718 F.3d at 1288 (quotations omitted). It did not create Playpen, alter the site’s functionality, add child pornography, or solicit new users. It seized Playpen’s servers and, pursuant to a warrant, hosted the website from a different location. Providing a suspect an opportunity ‘to expand or extend previous criminal activity’ is not ‘excessive’ government conduct. (quotations omitted).

Nor did the FBI coerce Mr. Wagner to access Playpen or download child pornography. He was an ‘active consumer’ of child pornography before the FBI hosted the website. Pawlak, 935 F.3d at 345. Indeed, the 4,311 images and 74 videos of child pornography found on the laptop in his home, App. at 578, strongly indicate he would have accessed Playpen without the FBI’s intervention. See Pedraza, 27 F.3d at 1522-23 (finding no outrageous conduct where the defendants did not show ‘they lacked the capacity to commit the crime without the government’s assistance’ (alterations and quotations omitted)).

Mr. Wagner has not shown the “egregious circumstances” necessary to warrant application of the “extraordinary” outrageous conduct defense. … The district court properly denied his motion to dismiss the indictment.

* * *

Conclusion

We uphold Mr. Wagner’s convictions and the district court’s denial of his motion … to dismiss the indictment. We affirm the district court’s judgment.

My Thoughts

  • The Playpen cases are now in their fourth year and continue to be interesting reading.
  • In researching for this month’s column, I came across two law review articles that are each a “must read” for anyone asserting an outrageous government conduct or entrapment defense:  Reconfiguring the Entrapment and Outrageous Government Conduct Doctrine, 84 Geo. L. J. 1945 (May 1996), John David Buretta; and, The Case for Preserving the Outrageous Government Conduct Defense, 91 Nw. U. L. Rev. 305 (Fall 1996), Stephen A. Miller.
  • United States v. Pawlak, 935 F.3d 337 (5th Cir. 2019) is the latest Fifth Circuit case discussing the outrageous government conduct defense in a child pornography case.  The Court held that the defendant, as an active user of a child pornography website operating on an anonymity network, could not assert the outrageous government conduct defense; and, the government’s conduct in briefly operating a website in an attempt to discover the identities of website users was not outrageous.
  • In United States v. Ferguson, 2018 WL 1782928 (S.D. Tex. April 13, 2018), United States District Judge Gray H. Miller denied a motion filed by the defendant to dismiss the indictment based on an allegation that the government engaged in outrageous government conduct.  The opinion is well written and sets out the difficulty of prevailing on an outrageous government conduct defense.

Shout Outs

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Michael Mowla successfully stayed the execution of John Hummel on March 18. Michael argued that the panic and concerns related to COVID-19 could impact the courts, the governor, and the Board of Pardons and Paroles making a fair decision when considering final appeals and clemency pleas. Congratulations once again to Michael for fighting for fairness in the criminal justice system!

Daniel Werlinger and Lisa Andrews of Harris County helped get a capital murder charge dismissed for Jeff Wax’s client, Amir Yarbrough, who had been in jail for two years awaiting trial. Werlinger and Andrews argued Yarbrough was not culpable and the state would have difficulty proving the case beyond a reasonable doubt in trial. Way to go!

Lisa Greenberg and Adam Rodrigue got another mistrial for their client accused of capital murder. One of their previous cases, also a capital murder case, was dismissed after three mistrials and two hung juries. Rulings like those are testaments to how outstanding your defense of the accused is!

Clint Broden obtained a rare reversal in the Eastland Court of Appeals for a client sentenced to 68 years imprisonment after a drug conviction.  Court of Appeals ruled the trial court committed reversible error when it refused to give a 38.23 instruction. Awesome work, Clint!

Veronica Veyhl and Phillip Hall obtained a verdict of not guilty on nine counts of continuous sexual abuse of a child in Tarrant County. The case was tried in the 371st District Court and the jury returned the not-guilty verdict within 50 minutes. Way to go, Veronica and Phil!