April 2013 SDR – Voice for the Defense Vol. 42, No. 3

Voice for the Defense Volume 42, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Establishing the defense of withdrawal from a conspiracy is a burden that rests firmly on the defendant even if the withdrawal took place after the statute-of-limitations period. Smith v. United States, No. 133 S. Ct. 714 (2013).

        Petitioner was convicted of charges that included conspiracy to possess and distribute narcotics, in violation of 21 U.S.C.S. § 846, and Racketeer Influenced and Corrupt Organizations Act conspiracy under 18 U.S.C.S. § 1962(d). Petitioner claimed that the conspiracy counts were barred by a five-year statute of limitations because he spent the last six years of the charged conspiracies in prison. The trial court instructed the jury that the burden was on D to prove withdrawal from the conspiracy by a preponderance of the evidence. D appealed that once he presented evidence supporting a withdrawal defense, the government had the burden to prove beyond a reasonable doubt that he did not withdraw outside the limitations period. The D.C. Circuit court affirmed the conspiracy convictions. The Supreme Court affirmed.

        Establishing individual withdrawal was a burden that rested on D regardless of when the purported withdrawal took place. Allocating to D the burden of proving withdrawal did not violate the Due Process Clause, as the defense of withdrawal did not negate an element of the charged conspiracy crimes. Although union of withdrawal with a statute of limitations defense could have freed D of criminal liability, it did not place upon the prosecution a burden to prove D did not withdraw.

Fifth Circuit

In sentencing D convicted of attempted illegal reentry and false personation, district court reversibly erred in applying a 16-level crime of violence enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on D’s Oklahoma kidnapping conviction. United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012).

        The statutory subsection under which D was previously convicted, Okla. Stat. tit. 21, § 741, could be violated in a way that was outside the generic definition of “kidnapping.” Nor did the offense qualify as a “crime of violence” under the residual, “has as an element” portion of the “crime of violence” definition because the term “forcibly” in the Oklahoma statute did not necessarily equate to the “physical force” required for this enhancement. The Fifth Circuit remanded for resentencing.

D’s appeal of the district court’s denial of his motion to modify supervised release conditions was barred by D’s plea agreement; the agreement barred D from appealing his conviction or sentence and from contesting his sentence in any post-conviction proceeding. United States v. Scallon, 683 F.3d 680 (5th Cir. 2012).

        The Fifth Circuit left open the question of whether an appeal waiver would bar an appeal from an order modifying or revoking supervised release where that modification or revocation was sought by the government in a 18 U.S.C. § 3583(e)(2) motion.

District court did not err in denying child-pornography D’s motion to suppress; the search warrant did not lack sufficient particularity simply because it authorized the search of all “electronic devices” and “electronic memory devices.” United States v. Triplett, 684 F.3d 500 (5th Cir. 2012).

        The law permits an affidavit incorporated by reference to amplify particularity. When viewed alongside the affidavit and its stated goal of finding items relevant to locating a missing person, the warrant’s list of items to be seized was reasonably focused. Furthermore, the warrant was not so lacking of indicia of probable cause to render official belief in its existence entirely unreasonable, thus shielding the officers’ actions pursuant to that warrant under the good-faith doctrine.

The public interest in disclosure of D’s redacted PSR to the immigration judge outweighed his remaining privacy interest and his interest against the dissemination of inaccurate information. United States v. Iqbal, 684 F.3d 507 (5th Cir. 2012). 

        Despite the confidentiality normally attaching to presentence reports in federal criminal cases, district court did not err in allowing disclosure of a redacted version of the PSR pre­pared in D’s structuring case to immigration officials. The immigration officials had a compelling, particularized need for the PSR in connection with proceedings to remove D from the United States. D’s interest in preventing the use of misleading or inaccurate information was obviated by the fact that the district court’s favorable rulings on D’s PSR objections were a matter of public record. Likewise, any privacy concerns were obviated by redactions of personal information from the PSR. Finally, Department of Homeland Security attorneys did not behave contumaciously in attempting to introduce the PSR to the immigration judge without the district court’s permission, based on their interpretation of a limited redisclosure authorization in the PSR.

The two-level sentencing enhancement of USSG § 2D1.1(b)(5) applies when “the offense involved the importation of… methamphetamine,” even if the defendant did not know that the meth he possessed was imported. United States v. Serfass, 684 F.3d 548 (5th Cir. 2012). 

        Because the district court did not clearly err in finding that the meth possessed by D was in fact imported, the Fifth Circuit affirmed the enhancement.

The government’s plain breach of the plea agreement did not affect D’s substantial rights because the district court based its loss decision on the presentence report, the Guidelines, and D’s failure to articulate an alternative method of calculating loss. United States v. Hebron, 684 F.3d 554 (5th Cir. 2012).

        The government did plainly breach the plea agreement by advocating for a Guideline loss amount of $320,000 when, in the plea agreement, it agreed to a loss calculation of under $200,000. There was no indication that the government’s specific argument in favor of the higher loss calculation affected the sentence. Even if the error had affected D’s substantial rights, this was not one of the rare cases where COA should ex­ercise its discretion to correct the error even on plain-error review.

        Nor did the district court reversibly err in calculating the loss attributable to D convicted of FEMA fraud in connection with hurricane relief provided to the town of which he was the mayor. Although the government generally bears the burden of proving that the alleged intended loss was garnered by fraudulent means, where the government has shown that the fraud was so extensive and pervasive that separating legitimate benefits from fraudulent ones is not reasonably practicable, the burden shifts to D to make a showing that particular amounts are legitimate.

Like supervised-release-revocation sentences, sentences imposed upon revocation of probation are reviewed under the plainly unreasonable standard. United States v. Kippers, 685 F.3d 491 (5th Cir. 2012). 

        Although the district court originally announced its intention of extending D’s probation rather than revoking it, the court changed its mind when D accused his daughter—the victim of the assault triggering the revocation—of being a liar. Nevertheless, the sentence was not procedurally unreasonable because the district court considered the 18 U.S.C. § 3553(a) factors at least implicitly, did not select a sentence based on clearly erroneous facts, and did not fail to adequately explain the sentence.

        Nor was the 48-month revocation sentence unreasonable (notwithstanding that the Chapter 7 Guidelines suggested a range of 3 to 9 months) in light of the district court’s leniency in originally sentencing D and the gravity of the crime triggering revocation.

Indictment against Army Lieutenant Colonel on November 12, 2010, charging him with fraud between December 1, 2003, and May 16, 2004, was timely; the statute of limitations for certain crimes is suspended during wartime. United States v. Pfluger, 685 F.3d 481 (5th Cir. 2012). 

        The Wartime Suspension of Limitations Act, 18 U.S.C. § 3287, suspends the statute of limitations for certain crimes when the United States is at war. Section 3287 was triggered by the Authorization for the Use of Military Force of September 18, 2001, and the Authorization for the Use of Military Force against Iraq of October 11, 2002. The question was only when hostilities had been terminated. Although D argued that hostilities terminated May 1, 2003, based on President Bush’s declaration that “[m]ajor combat operations in Iraq have ended,” the Fifth Circuit rejected this “functional approach” to the question (which was supported by United States v. Prosperi, 573 F. Supp. 2d 436 (D. Mass. 2008)) and adopted a more formal approach requiring an official declaration by Congress or the President. Because neither Congress nor the President met the formal requirements for terminating § 3287’s suspension of limitations as of May 2004 (“nor yet to this date”), § 3287 applied to D.

District court plainly erred in the procedure of D’s for­fei­ture order, but D failed to show that the errors affected his substantial rights. United States v. Marquez, 685 F.3d 501 (5th Cir. 2012).

        District court plainly violated the mandatory requirements of Fed. R. Crim. P. 32.2 by failing to make a forfeiture determination as soon as practicable after D’s guilty plea was accepted, and by failing to enter a preliminary order of forfeiture setting forth the amount of the money judgment ultimately ordered ($2 million). Nevertheless, D was not entitled to relief on plain-error review because he failed to show that the errors affected his substantial rights, i.e., that there was a reasonable probability that the result of the proceedings would have been different had the district court followed the procedures. The Fifth Circuit affirmed the judgment.

District court abused its discretion in finding that D un­timely filed his motion to dismiss for a Speedy Trial violation; however, taking into account the excludable time, there was no Speedy Trial violation. United States v. Hale, 685 F.3d 522 (5th Cir. 2012).

        Furthermore, in prosecution of former police officer accused of escorting drug transports, district court did not err in excluding out-of-court statements made by co-defendant, who became the government’s chief witness. D did not satisfy the predicates of Fed. R. Evid. 613(b) for allowing extrinsic evidence of a prior inconsistent statement, and the exclusion of these statements did not violate the Confrontation Clause because D was allowed to ask the co-defendant about his statements. Nor were the statements of co-defendant’s deceased father admissible under Fed. R. Evid. 804(b)(3); the statements were not clearly against the declarant’s interest, and there were no corroborating circumstances that clearly indicated the state­ments’ trustworthiness.

        Court did not plainly err in failing to fully instruct the jury on the substantive crime underlying the conspiracy, actual possession with intent to distribute cocaine. The instructions were sufficient to apprise the jury of the definition and character of the substantive crime, and the use of actual cocaine was not necessary for D to be guilty of conspiracy (these were dummy runs set up by an undercover agent). Nor did court abuse its discretion in rejecting D’s requests for instructions on the public-authority defense or entrapment by estoppel. Finally, the court’s response to a jury note, which primarily referred the jury to the original instructions, was not an abuse of discretion.

Court of Criminal Appeals

The error D alleged was not properly preserved; his motion for continuance was oral and unsworn. Blackshear v. State, 385 S.W.3d 589 (Tex.Crim.App. 2012).

        D was found guilty of possession of a controlled substance enhanced by two prior convictions. The jury was unable to reach a verdict on punishment, and the trial court granted D’s motion for a mistrial as to the punishment phase. The rec­ord contained no written and sworn motion for continuance. After a new trial on punishment that same day, a sentence was imposed. On appeal, D claimed the trial court erred in denying his motion for a continuance following the mistrial. COA agreed, finding that because the State presented the same witnesses at the retrial on punishment as it presented at the guilt phase of trial, D could have used those transcripts to impeach the witnesses on retrial. CCA found that the issue was not properly preserved for appeal. The motion in question was oral and unsworn, and no due process exception existed to the written-and-sworn requirement. CCA reversed COA and reinstated the trial court.

An applicant must prove harm to obtain relief in a writ of habeas corpus premised on an illegal-sentence claim. Ex parte Parrott, No. AP-76,647 (Tex.Crim.App. Jan 9, 2013).

        D raised an illegal-sentence claim based on the State’s improper use of a prior conviction for enhancement purposes. CCA denied relief. The habeas record established that D was previously convicted of offenses that supported the punishment range within which he was sentenced; therefore, he failed to demonstrate harm.

Even if there is no pending habeas corpus application, COA has jurisdiction to rule on mandamus petitions regarding access to material that could be used in a future habeas application. Padieu v. Ct. App. of Texas, Fifth Dist., No. AP-76,727 (Tex.Crim.App. Jan 9, 2013).

        CCA conditionally granted mandamus and directed COA to rescind its decision dismissing relator’s petitions for writ of mandamus for want of jurisdiction and to consider the merits of the issues raised. This writ of mandamus would issue only if COA did not comply within thirty days.

CCA directly reformed the judgment to remedy an im­properly stacked sentence. Sullivan v. State, Nos. PD-1678-11 & PD-1679-11 (Tex.Crim.App. Jan 9, 2013).

        D was convicted of the sexual assault of three inmates at the Texas Youth Commission facility. One of the inmates, A.S., was 17 years old. The other two, N.P. and C.C., were under age 17. D was convicted of two counts of sexual assault against N.P. and one count each for A.S. and C.C. On each count, the jury assessed punishment of confinement for 18 years.

        The trial judge pronounced that the two N.P. sentences would run concurrent with each other; the A.S. and C.C. sentences would run consecutively with each other; and the N.P. sentences would run consecutively to the others. As a result, there would be “three consecutive 18-year terms.” The judge then said that the concurrent N.P. sentences would be the last in the stacking series. For each indictment, the judge entered a written cumulation order that said the N.P. sentences would be the first in the series.

        As both parties agree, the judge erred in cumulating the A.S. sentence with the other sentences. Because A.S. was not under 17, that sentence must run concurrent with all sentences from the same criminal action, i.e., for the N.P. and C.C. sentences. But the N.P. and C.C. sentences fall within an exception to chapter 3 of Texas Penal Code because those victims were younger than 17; those sentences could run consecutive to each other. CCA also reformed the sequence of stacking to conform to the judge’s oral pronouncement.

A law-enforcement officer seeking a search warrant need not swear out the supporting affidavit in the phys­ical presence of the magistrate; he may do so telephonically. Clay v. State, 391 S.W.3d 94 (Tex.Crim.App. 2013).

The State’s failure to prove that D secured the performance of the contract with a “worthless check” was failure to prove an essential element of theft of service by deception. Daugherty v. State, No. PD-1717-11 (Tex.Crim.App. Jan 9, 2013).

        D signed a construction-service contract and wrote a $1,657 check as a deposit. The $48,000 contract price was not due until the project was completed. At that time, D no longer had the money to pay the debt. She gave the contractor an insufficient-funds check. A jury convicted her of theft of services for obtaining the contractor’s service by deception when she gave him the insufficient-funds check. COA reversed and rendered an acquittal because it determined the evidence was legally insufficient to support the conviction. CCA affirmed COA.

        Under the theft-of-services statute, Tex. Penal Code § 31.04(a), the State is required to prove all the elements occurred at the same time; the defendant must have “secured” the victim’s services by an act of deception. The proof must be that (1) contractor relied upon D’s prior act of deception when he performed his services, and (2) D had no intent to pay contractor for his services at the moment that she committed that deceptive act. The deception must occur before the service is rendered, and that deceptive act must induce the other person to provide the service. This routine civil breach of contract case does not give rise to a criminal conviction for theft of services.

D did not explain why he was unable, through reasonable diligence, to discover the factual basis of his current habeas writ in his initial post-conviction writ. Ex parte Sledge, 391 S.W.3d 104 (Tex.Crim.App. 2013).

        D was placed on deferred adjudication for sexual assault. The convicting court later adjudicated D’s guilt and sentenced him to five years’ imprisonment because he allegedly committed two new offenses. D filed an initial post-conviction habeas application in which he claimed that there was insufficient evidence to support his conviction. CCA denied the initial writ without written order. This is a subsequent post-conviction habeas application in which D alleged that the trial court lacked jurisdiction to revoke his deferred adjudication because the capias for his arrest did not issue until three days after his community supervision period expired. CCA dismissed the writ.

        A trial court loses jurisdiction to adjudicate a defendant’s guilt when the district clerk fails to issue a capias before his probation expires; however, because this is a subsequent post-conviction writ application, CCA is barred by the abuse of the writ doctrine, Tex. Code Crim. Proc. art. 11.07, § 4, from reaching the claim’s merits. Section 4 contains three exceptions to the rule that bars consideration of a subsequent post-conviction writ application, but the current application contains no “sufficient specific facts establishing” any of the enumerated exceptions. The application fails to establish either new law, new facts, or actual innocence.

The State was entitled to the broadest submission of its theories of liability that were authorized by the charging instrument and supported by the evidence. In re State ex rel. Weeks, 391 S.W.3d 117 (Tex.Crim.App. 2013).

        This mandamus action arose from a capital-murder trial that had reached the jury-charge portion of the guilt phase. The State sought to require the judge of Walker County to submit the “intent to promote or assist” theory of the law of par­ties, and the “conspiracy” theory of the law of parties without any manner-and-means restriction. The judge’s proposed charge would submit the conspiracy theory but not the intent to promote or assist theory and would require the State to prove that D should have anticipated the manner and means by which his co-conspirator killed the victim. CCA ordered COA to grant mandamus relief directing the trial judge to submit the Tex. Penal Code § 7.02(a)(2) theory of party liability and the § 7.02(b) theory without requiring the State to show that D should have anticipated the particular method of the murder.

        By focusing on the credibility and weight of the State’s evi­dence, the trial judge converted a matter-of-law determination based on the existence of some evidence to support a liability theory into a factual finding on the reasonableness of the State’s theory. This was contrary to established law that required the judge to instruct the jury on the law applicable to the case, including all theories of liability requested by the State for which there was some evidence in the record.

The evidence was legally sufficient to support D’s murder conviction. Temple v. State, No. PD-0888-11 (Tex.Crim.App. Jan 16, 2013).

        D was convicted for the murder of his wife and sentenced to life in prison. COA and CCA affirmed that the evidence was sufficient to support D’s conviction: (1) D was unhappy with his marriage and was having an extramarital relationship; (2) D had the opportunity to commit the crime, as there were 18 to 33 minutes on the afternoon of the murder during which his location was unaccounted for; (3) there were several inconsistencies in D’s story; (4) the burglary of D’s home appeared to be staged, including the facts that it occurred when the neighborhood was busy and neighbors did not see anything unusual or hear D’s loud and aggressive dog barking; (5) D lacked emotion after discovering that his wife had been shot; (6) shortly after his wife’s murder, D resumed his extramarital relationship; and (7) D had a history of shotgun use.

The evidence failed to show that D violated the no-contact condition of his probation. Hacker v. State, 389 S.W.3d 860 (Tex.Crim.App. 2013).

        D was convicted for assaulting his wife and placed on deferred-adjudication probation with a no-contact condition. Probation was revoked based on violation of that condition. COA affirmed. CCA reversed and ordered that the State’s motion to revoke probation be dismissed.

        The evidence failed to show that D violated the no-contact condition. The condition allowed contact by telephone regarding issues of child custody. In addition, D and his wife had ar­ranged for him to babysit the children at his wife’s home while she was at work. D’s phone conversations with his wife for the purpose of avoiding physical contact with her while he obtained and relinquished custody over the children were not prohibited communications because they related to the timing of his custody over the children. D’s admission that he talked to his wife on the phone frequently for the purpose of child custody was not an admission that he engaged in conduct that violated his probation. Occupying his wife’s home when she was not there and having his belongings in her home did not establish prohibited communications with his wife or proximity to her. And evidence of D’s motive or opportunity to violate the no-contact condition was not probative, absent evidence that conduct occurred that would be a violation.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Polygraph examiner had no obligation to stop exam upon D’s request to have counsel present, even though investigator—gratuitously—had informed D of Miranda rights. State v. Howard, 378 S.W.3d 535 (Tex.App.—Fort Worth 2012, pet. ref’d).

Officer lacked an objectively reasonable basis for believing D failed to stop at a clearly marked stop line; the traffic light was six car lengths past the stop line, and the line was faint and encountered at dusk. State v. Hummel, No. 05-11-00833-CR (Tex.App.—Dallas Aug 17, 2012, pet. ref’d).

        “The trial court stated the faint stop line at dusk was not sufficiently legible to an ordinarily observant person. The trial court further found an ordinarily prudent driver would not have anticipated the stop line because the traffic light was at least six car lengths past the stop line and there was no sign to alert a driver to the stop line. The court also found the red light had changed to green simultaneously with [D] reaching the stop line, and he was therefore not required to stop[.]”

“An officer may request consent to search a vehicle even after the purpose of a stop is complete.” Salinas v. State, No. 05-11-00048-CR (Tex.App.—Dallas Aug 20, 2012).

Vehicle’s crossing yellow line considered in RS determination, even though it did not occur until after officer turned on his emergency lights. Myers v. State, No. 03-11-00078-CR (Tex.App.—Austin Aug 28, 2012).

        “‘[E]vents occurring after the show of authority by the officers, i.e., when the emergency lights were activated, until appellant finally pulled over, are relevant to a determination of reasonable suspicion.’ Gilbert v. State, 874 S.W.2d 290, 295 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d). [D] ‘was not seized or detained until [s]he complied with the officers’ signal to pull over,’ id., and that did not occur until after [officer] observed Myers straddle the yellow marker.”

D lacked standing to challenge search of third-party’s cell phone including text messages sent by D to that phone. Contreras v. State, No. 02-11-00252-CR (Tex.App.—Fort Worth Aug 30, 2012, pet. ref’d).

        “[D] presented no evidence showing that he had any ownership interest in the messages he sent to [girlfriend] or that he took any steps to keep the messages private once he sent them to her phone.”

D had no reasonable expectation of privacy that was invaded by officer pressing alarm button on D’s car keys. Wiley v. State, 388 S.W.3d 807 (Tex.App.—Houston [1st Dist] 2012, pet. ref’d). 

        Vehicle was parked on public street and D had no reasonable expectation of privacy in identity of his vehicle and officers did not attempt to discover encrypted code used in the alarm.

Protective sweep of attic proper. Richert v. State, No. 01-10-00901-CR (Tex.App.—Houston [1st Dist] Aug 30, 2012).

        “[D] argues that the warrantless search of his attic cannot be justified under the protective-sweep exception because [officer] ‘did not articulate any reasonable suspicion that the attic area harbored any individual posing a threat to those on the arrest scene.’… Although the officers could see into most of the attic by using a mirror, the attic was dark and the officers could not see behind the chimney or the air conditioning unit.”

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