F. R. Buck Files, Jr.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Attacks and Hypocrisy During the Confirmation Hearings of Associate Justice-to-be Ketanji Brown Jackson

On March 21, 22 and 23 of this year, over 9 million viewers tuned in to Fox News, MSNBC or CNN to watch the confirmation hearings of Judge Ketanji Brown Jackson, a nominee for the office of Associate Justice of the Supreme Court.1 After being confirmed by a vote of 53-47, she and Justice Sotomayor will be the only members of the Court with experience as federal trial judges.2  From the moment that Judge Jackson was nominated, it was almost foreordained that her nomination would be confirmed.  In the absence of an unforced error, the votes for her confirmation were there – and there were no unforced errors.  It helped, of course, that Judge Jackson was imminently qualified: 

The U.S. Senate has already confirmed Judge Jackson three times with bipartisan support on each occasion.  Since June 2021, Judge Jackson has served with distinction on the U.S., Court of Appeals for the D.C. Circuit.  Prior to her elevation to the D.C. Circuit, she spent eight years as a district court judge on the U.S. District Court for the District of Columbia.  Before her judicial service, she served as vice chair of the U.S. Sentencing Commission from 2010 to 2014.  Judge Jackson worked as an assistant federal public defender in the Office of the Federal Public Defender in the District of Columbia and as assistant special counsel at the U.S. Sentencing Commission.  She has also worked in private practice as of counsel at Morrison & Foerster and as an associate at the Feinberg Group, Goodwin Proctor, and Miller, Cassidy, Larocca & Lewin.  She also helped train future lawyers, teaching classes on trial advocacy and federal sentencing at Harvard Law School and George Washington School of Law, respectively.  A graduate of Harvard University and Harvard Law School, she clerked for Judge Patti Saris of the U.S., District Court for the District of Massachusetts.  Judge Bruce Selya of the U.S. Court of Appeals for the First Circuit, and Associate Justice Stephen Breyer of the Supreme Court.3

As a former federal defender, she will join a small number of other federal defenders who have been appointed to serve as federal judges and will be the first to serve on the Supreme Court.

According to a study by the libertarian think tank Cato Institute, prosecutors dominate the ranks of the judiciary.  As of April 2021, 318 former prosecutors were sitting as federal judges, more than one-third of the 880 total across the country.  This was followed by 243 lawyers who had represented the government as ‘noncriminal courtroom advocates.’  Among the smallest fractions of those who became federal judges were former criminal defense attorneys – about 76 total – and former public defenders, who numbered only 58, less than 7 percent of all judges.4

Judge Jackson, as anticipated, showed patience and grace in the face of inane or posturing questions, personal attacks, misstatements of what she had said and written as a judge and the less than courteous treatment of her by some of the senators.

Their first attack on Judge Jackson was for her service as a federal defender; e.g.,

  • ‘Sen. Ted Cruz… cast Jackson’s work as a public defender as revealing a character flaw.

‘People go and do that because their heart is with criminal defendants, their heart is with the murderers, with the criminals, and that’s who they are rooting for,’ Cruz said on Fox News last weekend.  He added that ‘public defenders often have a natural inclination in the direction of the criminal’ and claims Jackson ‘carried it onto the bench when she became a criminal judge.’5

  • Senator Mitch McConnell,… the minority leader, has doubled down on his suggestion that Judge Jackson’s experience as a public defender could influence her view of the law and lead her to favor criminal defendants.

‘Her supporters look at her resume’ and deduce a special empathy for criminals,’ Mr. McConnell said in a lengthy floor speech in which he argued that her work on behalf of the accused was a blot on her record.  ‘I guess that means that government prosecutor and innocent crime victims start each trial at a disadvantage.’6

  • On Tuesday, Sen. Tom Cotton… went so far as to liken Jackson’s representation of Guantanamo detainees to representing Nazis in the Nuremberg Trials.

‘You know, the last Justice Jackson’ – Robert H. Jackson – ‘left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis,’ Cotton said. ‘This Judge Jackson might have gone there to defend them.’

Cotton took care to note not only the cases Jackson was assigned as a public defender, but also briefs she filed while in private practice.  One was on behalf of 20 former federal judges who wanted to make a point about the admissibility of evidence gained via torture.  Another was on behalf of outside groups, including the libertarian Cato Institute.  In her hearings, Jackson said she was assigned the case while working for a big law firm, which had itself been assigned the case.7

If Senator Cotton had done even the slightest bit of research on Justice Jackson, he might not have spoken of the former Associate Justice.

It’s true the justice left the court temporarily to prosecute Nazis at Nuremberg after World War II.  But here’s the thing:  Jackson not only supported the Nuremberg defendants’ right to counsel, he was a key part of the governing body that enshrined it into international law.

On May 2, 1945, President Harry S. Truman appointed Jackson to lead an American delegation to prepare and prosecute war crimes charges against European Axis powers.  The appointment of such a high-ranking official prompted the other Allied powers to take the trials seriously, according to St. John’s University law professor and Jackson scholar John Q. Barrett.

But before trials could even start, the international delegation had to agree on a framework.

* * *

The constitution of the Nuremberg trials was a constitution [Jackson] wrote. ‘He believed in it seriously.’

Section Four, Article 16 concerned safeguards for a fair trial, including that a ‘Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.’

Not only were defense attorneys guaranteed, ‘they were on the U.S. payroll,’ Barrett said.  Most of the defense attorneys were German professionals, and ‘the U.S. gave them housing and mess privileges.  Germany was in rubble, so it was a good deal to be one of those defense attorneys.’

* * *

‘Justice Jackson believed everyone has the right to a fair trial, which includes a vigorous defense,’ said Kristan McMahon, president of the nonprofit Robert H. Jackson Center, adding, ‘And without that, a trial would not be fair.’8

Although I was surprised at these attacks on Judge Jackson as a federal defender, both she and her handlers should have anticipated them.

Shortly after her nomination was announced, the Republican National Committee issued a statement criticizing her public defender experience, specifically citing her work representing detainees being held at Guantanamo Bay.9

Also, at the earlier confirmation hearings for district court nominees Nina Morrison and Adriana Freeman, Senators Cotton, Hawley and Cruz made comments similar to those made at Judge Jackson’s hearings; e.g.,

  • Last month, Sen. Tom Cotton… asked Biden judicial nominee Nina Morrison, who worked for decades on the Innocence Project, which seeks to appeal convictions, ‘Are you proud that you encouraged such defiance in convicted murders?’
  • And just a few weeks ago, Sen. Josh Hawley … asked another nominee, Arianna Freeman, about having represented a convicted murderer and getting him off death row: ‘Do you regret trying to prevent this individual who committed these heinous crimes from having justice served upon him?’ 
  • Ted Cruz … told Freeman that she had ‘devoted your entire professional career to representing murderers, to representing rapists, representing child molesters.’10

Their second attack on Judge Jackson was for the sentences that she had imposed in child pornography cases; e.g.,

  • Senate Judiciary Committee member Ted Cruz expanded on his questioning of Supreme Court nominee Ketanji Brown Jackson’s rulings Tuesday on ‘Hannity.’ Cruz, R-Texas, told host Sean Hannity that in nearly every sex offender case she was involved in, she handed down ‘substantially’ weaker sentences that the guidelines provided.  Cruz said that Jackson’s average sentencing was 48% less than what prosecutors asked for in all cases allowing judicial discretion, referencing one case where she sentenced the offender to three months in jail, when the federal sentencing guidelines said 10 years.11
  • Senator McConnell said, ‘In the specific area of child exploitation crimes, the nominee was lenient to the extreme.’12
  • Senator Graham attacked Jackson as she outlined her concerns with the federal sentencing guidelines for child pornography possession and distribution. When Jackson explained that the guidelines could result in 50 years of confinement for 15 minutes spent on a computer, Graham shot back, ‘Good! Good.  Absolutely, good.  I hope you go to jail for 50 years if you are on the Internet trolling for images of children…’13


‘Every judge who does what you are doing is making it easier for the children to be exploited,’ said Senator Lindsey Graham,…picking up the line of attack.14

  • Senator Josh Hawley…said he would not consider a below-guidelines child porn sentence ‘acceptable’ from a nominee…15


‘In fact, in every case for which I can find records and Judge Jackson had discretion, she gave child porn offenders sentences below the guidelines and below what the prosecutors were requesting,’ Hawley wrote.  ‘This isn’t a one-off.  It’s a pattern.’16  (emphasis added)


Hawley maintained her sentences were not long enough.  When Jackson gently reminded him her sentences were consistent with those imposed by other judges, Hawley ultimately responded that what Congress really wanted was the restoration of mandatory guidelines.17

Senator Hawley’s comments are disturbing for they constitute an attack on our independent judiciary.  It has been 17 years since the Supreme Court held that the United States Sentencing Guidelines are advisory rather than mandatory.18  Judges are, in fact, required to impose a sentence sufficient, but not greater than necessary rather than to impose a Guidelines sentence.19

If Senator Hawley had reviewed the annual report of the United States Sentencing Commission,20 he would have learned that Judge Jackson’s sentencing record was in the mainstream in comparison with the records of other United States District Judges in these cases.

The U. S. Sentencing Commission, the bipartisan body created by Congress to set federal sentencing rules, explained in its 2021 report that suggested prison terms for defendants convicted of possessing child pornography – as opposed to producing the materials – have ‘been subject to longstanding criticism from stakeholders and has one of the lowest rates of within-guideline range sentences each year.’

‘Less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range in fiscal year 2019,’ the reporter said.

If and when we properly contextualize Judge Jackson’s sentencing record in federal child porn cases, it looks pretty mainstream,’ wrote Doug Berman, a leading expert on sentencing law and policy at The Ohio State University School of Law.

‘Federal judges nationwide typically sentence below the [child porn] guideline in roughly 2 out of 3 cases,’ Berman noted on his blog, and ‘when deciding to go below the [child porn] guideline, typically impose sentences around 54 months below the calculated guideline minimum.’

Berman also points out that government prosecutors often request below-range sentences, including in most of the Jackson cases that Hawley cited.21

Although Senator Hawley earlier said that he would not consider a below-guidelines sentence from a nominee to be “acceptable,” he and his colleagues had, in fact, raised no such issues during the confirmation hearings of judges nominated by then President Donald J. Trump or in the earlier confirmation hearings for Judge Jackson when she was nominated to serve as a judge on the D.C. Circuit.

An ABC News review of federal judges appointed and confirmed during the Trump administration found nearly a dozen had handed down below guideline sentences in cases of defendants viewing, possessing, transporting or distributing child pornography.22

…Mr. Hawley, Mr. Graham, Mr. Cotton and Mr. Cruz all voted to confirm judges nominated by President Donald J. Trump to appeals courts even though those nominees had given out sentences lighter than prosecutor recommendations in cases involving images of child sex abuse.  Mr. Graham had also voted to confirm Judge Jackson to the U.S. Court of Appeals for the District of Columbia Circuit in 2021 in spite of the sentencing decisions she had made as a district judge. (emphasis added)

In 2017, Judge Ralph R. Erickson was confirmed by a 95-1 vote to the U.S. Court of Appeals for the Eighth Circuit, with Mr. Cotton, Mr. Cruz and Mr. Graham voting in the affirmative.  (Mr. Hawley was not yet a senator.)

Judge Amy J. St. Eve was confirmed by 91-0 vote in 2018 to the U.S. Court of Appeals for the Seventh Circuit.

Most recently, Mr. Cotton, Mr. Cruz and Mr. Hawley voted to confirm Judge Andrew L. Brasher to the U.S. Court of Appeals for the 11th Circuit in 2020.  (Mr. Graham was not present for the vote.)23

The questions of Senators Hawley and Graham, in particular, and their comments to the media cause me to be concerned that there could be a rush to pass legislation that would provide for a mandatory minimum sentence for the offense of possession of child pornography.  Currently, the punishment provision for that offense does not provide for a mandatory minimum sentence.24

This would be a tragedy.  Anyone who possesses child pornography has received it and anyone who receives child pornography has possessed it.  Currently, the punishment provision for the offense of the receipt of child pornography provides for a mandatory minimum sentence of 5 years.25

Because possession cases currently do not have a mandatory minimum and receipt cases do, Assistant United States Attorneys have the ability to limit a district judge’s sentencing discretion in these cases by their charging decisions.  What should be a possession case to one Assistant United States Attorney might be a receipt case to another and there is often no consistency within a United States Attorney’s office. At the present, we can at least try, during plea negotiations in these cases, to avoid a mandatory minimum sentence for our clients by seeking a possession count rather than a receipt count.

The current climate in Congress during this election year, perhaps exacerbated by Judge Jackson’s confirmation hearings, has doomed the passage of the Equal Act which would eliminate the current 18-1 disparity in sentencing for crack cocaine versus powder.  That will also deny significant relief to more than 7,600 inmates.  This will come as a disappointment to those of us who have followed the progress of this legislation.

Washington — The Equal Act would appear to be a slam dunk even in a badly divided Congress.

The legislation, which aims to end a longstanding racial disparity in federal prison sentences for drug possession, passed the House overwhelmingly last year with more than 360 votes.

* * *

But with control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt.

* * *

The legislation would eliminate the current 18-1 disparity in sentencing for crack cocaine versus powder.  The policy that can be traced to the ‘war on drugs’ mind-set of the 1980s, which treated those trafficking in crack cocaine more harshly.  It resulted in a disproportionate number of Black Americans facing longer sentences for drug offenses that white Americans, who were usually arrested with the powder version.

* * *

The United States Sentencing Commission has said that passage of the legislation could reduce the sentences of more than 7,600 federal prisoners.  The average 14-year sentence would be cut by about six years, it estimated.

* * *

Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through.  He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.

‘My opposition to the Equal Act will be as strong as my opposition to the First Step Act,’ Mr. Cotton said.26

* * *

I understand the senators’ attacks on Judge Jackson for her sentences in child pornography cases.  Child pornography is so repugnant that there is a knee jerk response even to the mention of the words.  From their perspective, it was just good politics. 

In their attacks on criminal defense lawyers, the senators were simply exploiting a truth that we often ignore.  Many – including our friends – do not understand what we do or why we do it.  They can applaud our representation of the young or previously virtuous in cases that do not involve violence, but they cannot understand how, for example, we can raise an insanity defense when it is so obvious that our client committed the offense or how we can represent the defendant in a capital murder case when what our client is alleged to have done is so horrible.  We are an easy target.  So, what do we do in response to their attacks?  We can ignore their slings and arrows or we can recharge our batteries.

For me, I began with the Texas Lawyer’s Creed.  One of the first sentences in the creed reads, “I am passionately proud of my profession.”  I would hope that we can all say that.

Next, I reminded myself of my duty to each of my clients.  Our current Texas Disciplinary Rules of Professional Conduct gives us this guidance:  “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”  Paraphrasing the quote of former vice president John Nance Garner, that is about as exciting as warm spit.27

I prefer the charge of old Canon 5 which stated: “A lawyer who undertakes the defense of a criminal case shall raise every defense under the law in order that no man may be deprived of life or liberty without due process of law.”28  That was the Canon in effect when I was admitted to the practice of law in 1963 and it has guided me since that date.

Lastly, I looked for some inspiration and found it in the legal work of John Adams.  In his review of the new book John Adams Under Fire:  The Founding Father’s Fight for Justice in the Boston Massacre Murder Trial, Christopher Klein, writes,

The blood remained fresh on the snow outside Boston’s Custom House on the morning of March 6, 1770.  Hours earlier, rising tensions between British troops and colonists had exploded into violence when a band of Redcoats opened fire on a crowd that had pelted them with not just taunts, but ice, oyster shells and broken glass.  Although the soldiers claimed to have acted in self-defense, patriot propaganda referred to the incident as the Boston Massacre.  Eight British soldiers and their officer in charge, Captain Thomas Preston, faced charges for murdering five colonists.

Not far from the Custom House, a 34-year-old Boston attorney sat in his office and made a difficult decision.  Although a devout patriot, John Adams agreed to risk his family’s livelihood and defend the British soldiers and their commander in a Boston courtroom.  At stake was not just the fate of nine men, but the relationship between the motherland and her colonies on the eve of American Revolution.29

Dan Abrams and coauthor David Fisher detail what they call the ‘most important case in colonial American history’ and an important landmark in the development of American jurisprudence.

MM Nussbaum relates the conclusion of the case and the pride that Adams had in his representation of those British soldiers.

In the trial that ensued, Adams argued that Captain Preston had never issued the order for his soldiers to ‘fire,’ and that those who had shot into the crowd did so entirely in self-defense.  Adams called those within the mob that provoked the soldiers ‘outlandish Jack tars,’ among other things.  Adams’ persuasion won the day, and Preston and six of his soldiers were acquitted of all charges.  Two soldiers were found guilty of manslaughter and were punished by having their thumbs branded.

Ultimately, Adams was proud of his service to the British soldiers.  Later in his life he wrote:

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough.  It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.  Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.  As the Evidence was, the Verdict of the Jury was exactly right.  This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here.  But it is the strongest Proofs of the Danger of Standing Armies.30

If there had been a Colonial Criminal Defense Lawyers Association, John Adams would surely have been one of its leaders.  Now, I am inspired.  It is time to put the attacks aside and to go back to representing our clients.

Federal Corner: Six Days in a Texas Prison Hell


For nearly a quarter of a century, I have been writing for The Voice about federal criminal cases. For my 250th – and last – column, I found a federal civil rights case with facts that are so beyond the pale that I wanted to bring them to your attention. On November 2, 2020, the Supreme Court, in a case from the United States Court of Appeals for the Fifth Circuit, held, per curiam and without oral argument, that

(1) The Court of Appeals properly ruled that the conditions of confinement alleged by Mr. Taylor, whereby for six full days he was confined in a pair of shockingly unsanitary cells, the first of which was covered nearly floor to ceiling in “massive amounts” of feces and the second of which was frigidly cold and equipped with only a clogged floor drain to dispose of bodily wastes, violated the Eighth Amendment’s prohibition on cruel and unusual punishments; but

(2) The prison officials responsible for Taylor’s confinement had fair warning that their specific acts were unconstitutional and, thus, the Court of Appeals erred in granting the official qualified immunity with respect to Mr. Taylor’s claims.
Taylor v. Riojas 1

We are accustomed to the horrible fact situations that we find in some of our criminal cases. It just goes with the territory. Taylor, though, is concerned with the abuse that an inmate in a Texas prison suffered at the hands of his prison guards. We should all hope that nothing like this ever happens to one of our clients.

In their Petition for a Writ of Certiorari, Mr. Taylor’s lawyers included this Statement of the Case:

At the time of the events giving rise to this suit, Petitioner Trent Taylor was incarcerated in the John T. Montford Unit of the Texas Department of Criminal Justice (Montford). Pet. App. 3a. Respondents Robert Riojas, Ricardo Cortez, Stephen Hunter, Larry Davidson, Shane Swaney, and Joe Martinez were officials at Montford during that period.  Id.

Taylor was transferred to Montford, a psychiatric prison unit, for mental health treatment following a suicide attempt. Electronic Record on Appeal (R.O.A.) 49 Instead of providing that treatment, Respondents stripped Taylor of his clothing, including his underwear, and placed him in a cell where almost every surface— including the floor, ceiling, windows, and walls—was covered in “massive amounts” of human feces belonging to previous occupants. Pet. App. 7a-8a;

R.O.A. 50. The smell was overpowering and could be discerned from the hallway. Pet. App. 8a; R.O.A. 50. Taylor was unable to eat because he feared that any food in the cell would become contaminated. Pet. App. 8a. Feces “packed inside the water faucet” prevented him from drinking water for days. Id. Respondents were aware the cell was coated in excrement:   One Respondent asked several others whether Taylor’s cell was the one covered in feces; another answered, “Yes, he’s going to have a long weekend,” and the officials laughed. Id.; R.O.A. 50. Taylor asked numerous prison staff members to clean the cell, but they refused. Pet. App. 8a n.8. When Taylor complained of the conditions, Respondent Swaney responded, “Dude, this is Montford, there is s*** in all these cells from years of psych patients,” Pet. App. 8a (brackets omitted).

Four days later, Respondents removed Taylor from the first cell; they then transferred him, still naked, to a different “seclusion cell.” Pet. App. 8a, 12a. Montford inmates referred to this cell as “the cold room” because of its frigid temperature; Swaney told Taylor he hoped Taylor would “f***ing freeze” there. Pet. App. 8a n.9. This cell had no toilet, water fountain, or furniture.   Pet. App. 8a. It contained only a drain on the floor, which was clogged, leaving a standing pool of raw sewage in the cell. Pet. App. 8a. Because the cell lacked a bunk, Taylor had to sleep on the floor, naked and soaked in sewage, with only a suicide blanket for warmth. Pet. App. 8a-9a, 33a.

Taylor spent three days in the seclusion cell, during which Respondents repeatedly told him that if he needed to urinate, he would not be escorted to the restroom but should urinate into the backed up drain. Pet. App. 8a. Taylor refused, not wanting to add to the pool of sewage in which he had to sleep naked. Pet. App. 8a-9a. Instead, Taylor avoided urinating for 24 hours until he involuntarily urinated on himself; he attempted to use the clogged drain as instructed, but Taylor’s urine “mix[ed] with the raw sewage and r[a]n all over [his] feet.” Pet. Appl. 91, 19a (alterations in original). As a result of holding his urine in a bacteria-laden environment for an extended period, Taylor developed a distended bladder required catheterization.2

The Supreme Court’s per curiam opinion reads as follows:


Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in ‘ “massive amounts” of feces’: all over the floor, the ceiling, the window, the walls, and even ‘ “packed inside the water faucet.” ’ Taylor v. Stevens, 946 F.3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

[The Eighth Amendment]

The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

[The Fifth Circuit Concluded That the Prison Officials Did Not Have Fair Warning]

But, based on its assessment that ‘[t]he law wasn’t clearly established’ that ‘prisoners couldn’t be housed in cells teeming with human waste’ ‘for only six days,’ the court concluded that the prison officials responsible for Taylor’s confinement did not have ‘ “fair warning” that their specific acts were unconstitutional.’ 946 F.3d at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

[The Fifth Circuit Erred in Granting Qualified Immunity]

The Fifth Circuit erred in granting the officers qualified immunity on this basis. ‘Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.’ Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct.

596, 160 L.Ed.2d 583 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U.S. at 741, 122 S.Ct. 2508 (explaining that ‘ “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question”’ (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997))); 536 U.S. at 745, 122 S.Ct. 2508 (holding that ‘[t]he obvious cruelty inherent’ in putting inmates in certain wantonly ‘degrading and dangerous’ situations provides officers ‘with some notice that their alleged conduct violate[s]’ the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells. See, e.g., 946 F.3d at 218 (one officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was ‘ “going to have a long weekend” ’); ibid., and n. 9 (another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would ‘ “f***ing freeze” ’).


Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution. We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.

[Note: Justice Barrett took no part in the consideration order decision of this case. Justice Thomas dissented, without written opinion. Justice Alito concurred in the judgment, with a written opinion.]

[The Prequel to the Supreme Court’s Opinion in Taylor]

In 2014, Trent Taylor, a Texas inmate who was serving a sentence for robbery, began his journey through the federal courts. He filed, pro se, a civil rights complaint pursuant to 42 USC § 1983 in the United States District Court for the Northern District of Texas. Mr. Taylor named eleven correctional officers and/or prison officials as defendants.

In his complaint, Mr. Taylor raised – among other issues – a cell conditions issue. All of the defendants relied on the affirmative defense of qualified immunity and moved for summary judgment. In the district court’s order are the following two sentences:

The Court finds that although the conditions of Plaintiff’s confinement may have been quite uncomfortable during the days he was held in the two cells in question, the conditions did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Accordingly, Plaintiff has failed to rebut Defendants’ assertion of qualified immunity on his conditions-of-confinement claim, and their Motions for Summary Judgment should be granted.3  (emphasis added)

After the district court granted summary judgment in favor of the defendants, Mr. Taylor appealed, pro se, to the United States Court of Appeals for the Fifth Circuit. On December 20, 2019, a panel of the Circuit held in Taylor v. Stevens, inter alia, that “[1] it had jurisdiction over appeal;… and, [3] correctional officers were entitled to qualified immunity from conditions-of- confinement claim; …”

The Court’s opinion reads, in brief part, as follows:

Taylor repeatedly alleged that the defendants knew that his cells were covered in feces and urine and that he had an overflowing sewage drain in his seclusion cell.

‘The risk’ posed by Taylor’s exposure to bodily waste ‘was obvious.’   And the risk was especially obvious here, as the defendants forced Taylor to sleep naked on a urine-soaked floor. Taylor also alleged that the defendants failed to remedy the paltry conditions, so he has shown factual disputes on deliberate indifference. In sum, Taylor has met his burden at the first QI prong to show that his Eighth Amendment rights were violated. See Arenas, 922 F.3d at 620.

* * *

The second prong of QI asks ‘whether the right was clearly established at the time of the violation.’

* * *

The ‘salient question,’ therefore, is whether the defendants had ‘fair warning’ that their specific actions were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

The law wasn’t clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, see, e.g., McCord, 927 F.2d at 848, we hadn’t previously held that a time period so short violated the Constitution, e.g., Davis, 157 F.3d at 1005–06 (finding no violation partly because the defendant stayed in the cell for only three days). (emphasis added)

* * *

It was therefore not ‘beyond debate’ that the defendants broke the law. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. They weren’t on ‘fair warning’ that their specific acts were unconstitutional. Hope, 536 U.S. at 741, 122 S.Ct. 2508.4

Lawyers to the Rescue

After going 0 for 2 as a pro se litigant, Mr. Taylor’s luck changed for the better. Samuel Weiss, of RIGHTS BEHIND BARS in Washington, D.C., read the Fifth Circuit’s opinion in Taylor and decided to come to Texas and meet with Mr. Taylor. He did so and offered to represent him pro bono to seek relief at the Supreme Court. Mr. Taylor was pleased to become his newest client and accepted Mr. Weiss’ generous offer.

When Mr. Weiss returned to Washington, D.C., he met with his board of directors that included an associate with the Orrick, Herrington and Sutcliffe firm’s Washington, D.C. office. Orrick is a global firm with some 1,100 lawyers in the United States and in at least 12 other countries. At that time, Kelsi Brown Corkran was the head of U.S. Supreme Court practice at Orrick. After a meeting with Mr. Weiss, the decision was made that Orrick lawyers would join with Mr. Weiss in the representation of Mr. Taylor. At the Supreme Court, Ms. Corkran was counsel of record – with three other Orrick lawyers and Mr. Weiss as Mr. Taylor’s appellate team.

Ms. Corkran is now a Pro Bono Senior Fellow at Georgetown University’s Law Center’s Institute for Constitutional Advocacy and Protection. In talking with her about Taylor, she mentioned that this was the first time in 16 years that the Supreme Court has denied qualified immunity to a state official in a § 1983 case. For those representing plaintiffs or defendants in § 1983 cases, it is important to know that Taylor is already being cited in the trials of these cases.

My Thoughts

  • Congratulations to Mr. Taylor’s appellate team for their successful representation of him. It is impressive to see this pooling of talent on behalf of an indigent Texas inmate.
  • Over the years, some of our larger Texas law firms have committed their substantial legal resources to the representation of indigent inmates. It would be wonderful if more of these firms would rise to the challenge. Perhaps Taylor will inspire them to do so. If they do, they should get recognition for their efforts.
  • Man’s Inhumanity to Man were the first words that came to mind as I was reading Taylor.
  • I would have at least these questions:
    • How many, if any, prison employees – in whatever capacity – were disciplined because of the abuse that Mr. Taylor suffered?
    • How many other inmates at the Montford Unit endured the same cell conditions as Taylor?
    • What, if any, remedial action has been taken by prison officials in response to Taylor’s original complaints or to the Supreme Court’s opinion?
    • What, if anything, has the Texas Department of Criminal Justice done to address the issues raised by Mr. Taylor?
  • I am surprised that Taylor has not been picked up by the print media. This is the kind of case that The Dallas Morning News and the Houston Chronicle would have jumped all over 25 or  30 years ago. The days of the investigative reporter may be over.

TCDLA Thanks You, Buck!

All previous installments in “The Federal Corner” series can be found online by logging into your TCDLA member account and visiting voiceforthedefenseonline.com.

Don’t despair–”The Federal Corner” will continue in future issues of the Voice. Our editors are busily compiling a team of authors with federal experience to contribute to this important topic.

If you have federal experience and would like to contribute, please reach out to one of our editors:

Sarah Roland:
Clay Steadman:
Jeep Darnell:
Amanda Hernandez:

Some Reflections and Some Thank Yous

Buck Files

Writing the “Federal Corner” has been both challenging and rewarding. The challenge has been to find a case for each edition of the VOICE that would be of interest to our members and to the judges who also receive a copy of the magazine. The case would have to be recent and not too long or too complex for me to fit it into the space that I was allocated.

The reward was in what I learned. For each column, I would usually review some six to twenty cases. I always found something in this research that I would never have known if I had not been writing this column.

As the turtle who was sitting on top of the fence post said, “I didn’t get here by myself.” I owe a word of thanks to:

  • Our former executive director Joseph Martinez and our current executive director Melissa They supported my efforts enthusiastically. When I turned in my 100th column, Joseph said, “Keep writing.” When I turned in my 200th column or article, Melissa said, “Keep writing.” I listened to each of them, but now it’s time to hang it up. 250 columns or articles is enough for anyone.
  • Sarah Roland, the current editor of the VOICE. It is her responsibility to turn out ten editions of the VOICE each year and she has done a magnificent job in working with others to improve the quality of the magazine. Sarah has been a pleasure to work with and I have no doubt that she will be a leader in our association for many years.
  • The other editors with whom I have worked. I have good memories of each of you and enjoyed working with you.
  • The TCDLA staff, both past and present, with whom I have worked—especially Craig Hattersley.
  • The TCDLA members who have called to mention a case to me that I later wrote about.
  • The TCDLA members who would have a kind word for me about one of my columns or articles. People who write for a publication are like radio announcers. We never know if anyone is paying attention to what we are trying to communicate.

Federal Corner: If You Have a Cell Phone Search Issue, Assume the Governor is Aware of Morton


On February 2, 2021, a panel of the United States Court of Appeals for the Fifth Circuit held that an officer’s affidavit provided probable cause to search the contacts, call logs, and text messages on the defendant’s cell phone, but not to search for photographs on the cell phone; and, also, that the good faith exception did not apply to allow the admission of the photographs that were found on the cell phone.  United States v. Morton.1

A week or so later, I asked an AUSA whether he had read Morton.  He replied that he and the other lawyers in the office – and one of the magistrate judges in the division – had read it and were concerned about its implications.  If you have a case that involves the search of a cell phone, Morton is a “must read.”  It is another Leon2 case, but one in which the defendant prevailed.

Judge Jolly’s opinion reads, in part, as follows:

An Overview of the Opinion

In this appeal, we are asked to determine whether the good faith exception to the Fourth Amendment’s exclusionary rule allows officers to search the photographs on a defendant’s cellphones for evidence of drug possession, when the affidavits supporting the search warrants were based only on evidence of personal drug possession and an officer’s generalized allegations about the behavior of drug traffickers—not drug users. We hold that the officers’ affidavits do not provide probable cause to search the photographs stored on the defendant’s cellphones; and further, we hold that the good faith exception does not apply because the officers’ reliance on the defective warrants was objectively unreasonable. And while respecting the ‘great deference’ that the presiding judge is owed, we further hold that he did not have a substantial basis for his probable cause determination with regard to the photographs. We thus conclude that the digital images found on Morton’s cellphones are inadmissible, and his conviction is therefore VACATED. Accordingly, the case is REMANDED for further proceedings not inconsistent with this opinion.

The Facts in the Case

Brian Matthew Morton was stopped for speeding near Palo Pinto, Texas. After the officers smelled marijuana, he gave consent to search his van. Officers found sixteen ecstasy pills, one small bag of marijuana, and a glass pipe. When, however, they discovered children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear in the vehicle, they became more concerned that Morton might be a pedophile.  After arresting Morton for drug possession, one of the officers, Texas Department of Public Safety (DPS) Trooper Burt Blue, applied for warrants to search Morton’s three cellphones that were found in the van. Trooper Blue’s affidavits for the search warrants mentioned no concerns about child exploitation; instead, the warrants purported to seek more evidence of Morton’s criminal drug activity based on Trooper Blue’s training and experience—fourteen years in law enforcement and eight years as a ‘DRE-Drug Recognition Expert’—as well as the drugs found in Morton’s possession and his admission that the drugs were in fact marijuana and ecstasy.

The Affidavits and the Warrants

The affidavits and warrants were identical to each other except for naming different cellphones to be searched. The paragraph of the affidavits describing the objects of the search reads:

It is the belief of affiant that suspected party was in possession of and is concealing in the cellphones … evidence of the offense of Possession of ecstasy, possession of marijuana and other criminal activity; to wit telephone numbers, address books; call logs, contacts, recently called numbers, recently received calls; recently missed calls; text messages (both SMS messages and MMS messages); photographs, digital images, or multimedia files in furtherance of narcotics trafficking or possession.3 (emphasis in the opinion)

In full, the sole paragraph in each affidavit purporting to provide probable cause to search Morton’s photographs reads:

Affiant knows through training and experience that photographic images taken on cellular telephones can be stored in the telephones sic memory and retained for future viewing. Affiant also knows through training and experience that criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs. Affiant believes that photograph images stored in the cellular telephone may identify other co-conspirators and show images of illicit drugs and currency derived from the sale of illicit drugs.4 (emphasis in the opinion)

The Search and the Indictment That Followed

Relying on these affidavits, a judge issued warrants to search Morton’s phones. While searching the phones’ photographs, Trooper Blue and another officer came across sexually explicit images of children. The officers then sought and received another set of warrants to further search the phones for child pornography, ultimately finding 19,270 images of sexually exploited minors. The government then indicted Morton for a violation of 18 U.S.C. § 2252(a)(2) for the child pornography found on his three cellphones. The subject of drugs had vaporized.

The Motion to Suppress; the Guilty Plea; and, the Appeal

In pretrial proceedings, Morton moved to suppress this pornographic evidence. He argued that the affidavits in support of the first set of warrants failed to establish probable cause to search for his additional criminal drug activity. The government responded by stating that the warrants were supported by probable cause and, if not, then the good faith exception to the exclusionary rule—first announced by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)—should apply. The district court ruled in favor of the government, and Morton later pled guilty to the child pornography charge while reserving his right to appeal the district court’s suppression decision. He was sentenced to nine years in prison, and this appeal of the suppression ruling followed.

Appellate Review of the Denial of a Motion to Suppress

… In reviewing a district court’s denial of a suppression motion for evidence obtained pursuant to a search warrant, our precedent usually applies a two-step test. United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010). First, we decide whether the good faith exception should apply. Id. If the good faith exception applies, then no further inquiry is required. Id. If the good faith exception does not apply, we proceed to a second step of analysis, in which we review whether the issuing judge had a substantial basis for determining that probable cause existed. Id.

The Good Faith Exception

The good faith exception to the suppression of evidence obtained in violation of the Fourth Amendment arises when an officer’s reliance on a defective search warrant is ‘objectively reasonable.’ United States v. Sibley, 448 F.3d 754, 757 (5th Cir. 2006). In such a case, the evidence obtained from the search ‘will not be excluded.’ Id. This court has decided that the good faith exception applies to most searches undertaken pursuant to a warrant unless one of the four situations enumerated in Leon removes the warrant from the exception’s protection. Leon, 468 U.S. at 923, 104 S.Ct. 3405; see Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Only one of these ‘exceptions to the good faith exception’ is relevant here: Morton alleges that the warrant ‘so lacked indicia of probable cause’ that the officers’ reliance on it was ‘entirely unreasonable.’ Leon, 468 U.S. at 923, 104 S.Ct. 3405.  (emphasis added.)

 Indicia of Probable Cause

To determine if there were indicia of probable cause, the reviewing court will usually be required to look at the affidavit supporting the warrant, but, even so, all of the circumstances surrounding the warrant’s issuance may be considered. United States v. Payne, 341 F.3d 393, 400 (5th Cir. 2003); United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). Affidavits must raise a ‘fair probability’ or a ‘substantial chance’ that criminal evidence will be found in the place to be searched for there to be probable cause. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (cleaned up).

Trooper Blue’s Affidavits

Here, as suggested by this court’s precedent, we turn to Trooper Blue’s affidavits supporting the search warrants. The affidavits seek approval to search Morton’s contacts, call logs, text messages, and photographs for evidence of his drug possession crimes. As the government properly conceded at oral argument, separate probable cause is required to search each of the categories of information found on the cellphones. Although ‘treating a cell phone as a container … is a bit strained,’ the Supreme Court has explained that cellphones do ‘collect  in one place many distinct types of information.’ Riley v. California, 573 U.S. 373, 394, 397, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). And the Court’s opinion in Riley went to great lengths to explain the range of possible types of information contained on cellphones. (emphasis added.)

Riley made clear that these distinct types of information, often stored in different components of the phone, should be analyzed separately. This requirement is imposed because ‘a cell phone’s capacity allows even just one type of information to convey far more than previously possible.’ … Absent unusual circumstances, probable cause is required to search each category of content. Id. at 395, 134 S.Ct. 2473 (stating that ‘certain types of data’ on cellphones are ‘qualitatively different’ from other types); id. at 400, 134 S.Ct. 2473 (analyzing data from a phone’s call log feature separately)… (emphasis added.)

This distinction dovetails with the Fourth Amendment’s imperative that the ‘place to be searched’ be ‘particularly described.’ U.S. CONST. amend. IV.; cf., e.g., United States v. Beaumont, 972 F.2d 553, 560 (5th Cir. 1992)…

Here, this observation means that the facts as alleged in Trooper Blue’s affidavits must raise a ‘fair probability’ or a ‘substantial chance’ that evidence relevant to Morton’s crime—that is, simple drug possession—will be found in each place to be searched: his contacts, his call logs, his text messages, and his photographs. There must be a specific factual basis in the affidavit that connects each cellphone feature to be searched to the drug possession crimes with which Morton was initially charged.  (emphasis added.)

The affidavits successfully establish probable cause to search Morton’s contacts, call logs, and text messages for evidence of drug possession. In attesting that probable cause exists, officers may rely on their experience, training, and all the facts available to them.

But the affidavits also asserted probable cause to believe that the photographs on Morton’s phones contained evidence of other drug crimes, and on this claim, they fail the test of probable cause as related to the crime of possession. That is, they fall short of raising a ‘substantial chance’ that the photographs on Morton’s phones would contain evidence pertinent to his crime of simple drug possession. As we have said, officers are permitted to rely on training and experience when attesting that probable cause exists, but they must not turn a blind eye to details that do not support probable cause for the particular crime. Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)…  (emphasis in the opinion)

Here, Trooper Blue supplied two facts to provide probable cause to search the images on Morton’s phones. First, Morton was found with less than two ounces of marijuana, a pipe, and sixteen pills that Morton stated were ecstasy. Second, based on Trooper Blue’s training and experience, ‘criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs.’ This background led Trooper Blue to assert thatphotograph images stored in the cellular telephone may identify other co-conspirators and show images of illicit drugs and currency derived from the sale of illicit drugs.’ These photographs would, in turn, be evidence of ‘other criminal activity … in furtherance of narcotics trafficking’ and Morton’s drug possession crimes. The search warrant is thus expanded to seek information of an alleged narcotics trafficking conspiracy based solely on Morton’s arrest for, and evidence of, simple drug possession.  (emphasis added.)

The Syllogism Fails to Provide Adequate Grounds For the Extensive Search

The syllogism that Trooper Blue offers to gain access to Morton’s photographs does not provide adequate grounds for the extensive search. In short, the syllogism is (1) Morton was found with personal-use quantities of drugs; and (2) drug dealers often take photos of drugs, cash, and co-conspirators; it therefore follows that (3) the photographs on Morton’s phones will provide evidence of Morton’s relationship to drug trafficking. The fallacy of this syllogism is that it relies on a premise that cannot be established, namely that Morton was dealing drugs. And here, Trooper Blue disregarded key facts that show that the evidence did not support probable cause that Morton was a drug dealer.

To begin, the quantity of drugs Morton possessed can best be described as personal-use: a single small bag of marijuana and a few ecstasy pills. Further, Morton did not have scales, weapons, or individual plastic bags that are usually associated with those who sell drugs. It is also significant that the officers arrested Morton for possession of marijuana and ecstasy but not distribution of these drugs. Compare TEX. HEALTH & SAFETY CODE §§ 481.121, 481.116 with id. §§ 481.120, 481.113.  In sum, indications of drug trafficking were lacking: no significant amount of drugs; paraphernalia for personal use, not sale; and no large amounts of cash. Or precisely: there was no evidence supporting drug trafficking.

Since it seems that no evidence supported probable cause to believe that Morton was dealing in drugs, the affidavit leaves us with only the allegations that (1) Morton was found with drugs so (2) it therefore follows that the photographs on Morton’s phones will provide evidence of Morton’s crime of drug possession. With only this bare factual support that Morton possessed drugs, the affidavits contain nothing to link Morton’s marijuana and ecstasy with the photographs on his phones. The affidavits thus do not create a ‘fair probability’ or a ‘substantial chance’ that evidence of the crime of drug possession will be found in the photographs on Morton’s cellphones. Therefore, under these facts and based on the specific language in these affidavits, we hold that probable cause was lacking to search Morton’s photographs for proof of his illegal drug possession.  (emphasis added.)

The Good Faith Exception Does Not Save the Day

Having demonstrated that the warrants to search the photographs stored on Morton’s cellphones were not supported by probable cause, we next turn to the question of whether the evidence produced by the search may nevertheless be admitted based upon the good faith exception. To resolve this question, we ask whether the officers’ good faith reliance on these defective warrants was objectively reasonable. … In reviewing whether an officer’s reliance is reasonable under the good faith exception, we ask ‘whether a reasonably well-trained officer would have known that the search was illegal’ despite the magistrate’s approval. United States v. Gant, 759 F.2d 484, 487–88 (5th Cir. 1985).

The facts here lead to the sensible conclusion that Morton was a consumer of drugs; the facts do not lead to a sensible conclusion that Morton was a drug dealer. Under these facts, reasonably well-trained officers would have been aware that searching the digital images on Morton’s phone—allegedly for drug trafficking-related evidence—was unsupported by probable cause, despite the magistrate’s approval. Consequently, the search here does not receive the protection of the good faith exception to the exclusionary rule.

The Magistrate Did Not Have a Substantial Basis for Determining That Probable Cause to Search the Cell Phone Existed

However, the good faith exception, applicable to the officers, does not end our analysis. As we have said, if the good faith exception does not save the search, we move to a second step: whether the magistrate who issued the warrant had a ‘substantial basis’ for determining that probable cause to search the cellphones existed. United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010). While the good faith analysis focuses on what an objectively reasonable police officer would have known to be permissible, this second step focuses on the magistrate’s decision. The magistrate is permitted to draw reasonable inferences from the material he receives, and his determination of probable cause is entitled to ‘great deference’ by the reviewing court in all ‘doubtful or marginal cases.’ United States v. May, 819 F.2d 531, 535 (5th Cir. 1987); see 2 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 3.1(c) & n.78 (4th ed. 2019).

Here, even giving the magistrate’s determination the deference due, we hold that the magistrate did not have a substantial basis for determining that probable cause existed to extend the search to the photographs on the cellphones. Even if the warrants provided probable cause to search some of the phones’ ‘drawers’ or ‘file cabinets,’ the photographs ‘file cabinet’ could not be searched because the information in the officer’s affidavits supporting a search of the cellphones only related to drug trafficking, not simple possession of drugs. There was thus no substantial basis for the magistrate’s conclusion that probable cause existed to search Morton’s photographs, and the search is not saved by the magistrate’s authority. The search was unconstitutional, not subject to any exceptions, and the evidence must be suppressed as inadmissible. (emphasis added.)

What the Court Has Said

Today, we have held that a reasonably well-trained officer would have known that probable cause was lacking to search the photographs stored on the defendant’s cellphones for evidence related to drug possession, which was the only crime supporting a search. Moreover, we have held that any additional assertions in the affidavits were too minimal and generalized to provide probable cause for the magistrate to authorize the search of the photographs. Because the officers’ search of the stored photographs pursuant to the first warrants was impermissible, obviously the use of that information—which was the evidence asserted to secure the second set of warrants—tainted the evidence obtained as a result of that second search, making it the unconstitutional ‘fruit of the poisonous tree.’ See, e.g., United States v. Martinez, 486 F.3d 855, 864 (5th Cir. 2007). Therefore, the evidence obtained as a result of the second set of warrants is inadmissible.  (emphasis added.)

My Thoughts

  • Any analysis of a cell phone search issue should begin with a review of Riley and, now, Morton
  • Any cell phone search can include looking at contacts, cell logs, text messages and photographs.
  • The affidavit prepared by the individual seeking a search warrant for a cell phone, absent unusual circumstances, must show probable cause for searching for each of these distinct types of information.
  • As Judge Jolly noted, “…we ask whether the officer’s good faith reliance on these defective warrants was objectively reasonable… In reviewing whether an officer’s reliance is reasonable under the good faith exception, we ask ‘whether a reasonably well-trained officer would have known that the search was illegal’ despite the magistrate’s approval.”  As criminal defense lawyers, we should like this question.  The Government does not.

Federal Corner: A Nonroutine Border Search + A Leon Good Faith Issue = An Interesting Case


In United States v. Leon1, the Supreme Court held that the Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.  (emphasis added)

On November 21, 2019, a panel of the United States Court of Appeals for the Fourth Circuit held that (1) the forensic searches of an airplane passenger’s laptop computer, cell phone, and digital media player, after he arrived at international airport, had to be regarded as “nonroutine;” (2) warrantless forensic searches of an airplane passenger’s electronic devices was not justified under the “border search” exception to warrant requirement; (3) subsequent warrant-backed searches of electronic devices did not constitute an “independent source” that cured any taint from prior warrantless, forensic searches; (4) but evidence did not have to be suppressed, given the agents’ “good faith” reliance on existing precedent.  United States v. Aigbekaen.2

A search of WestLaw’s ALLFED database reflects 5,215 cases in which a district or appellate court has cited Leon.3  In many of these, Leon’s good faith exception permitted an appellate court to affirm a conviction.  There are, though, other Leon cases where there is no issue as to a warrant.  Aigbekaen is one of those cases.

Judge Motz’ opinion reads, in part, as follows:

The Facts of the Case

In April of 2015, a minor alerted law enforcement officers that Raymond Idemudia Aigbekaen and another man had trafficked her for sex in three mid-Atlantic states. As part of the investigation that followed, when Aigbekaen returned to the United States from traveling abroad, the Government seized his MacBook Pro laptop, iPhone, and iPod at the airport and conducted warrantless forensic searches of the data on all three devices. …

The Indictment and the Motion to Suppress

… a grand jury indicted Greene4 and Aigbekaen on six counts, all of which related to interstate sex trafficking of L. and transportation of her for the purpose of prostitution.

Prior to trial, Aigbekaen moved to suppress various pieces of evidence, including (as relevant here) any evidence recovered from the May 2015 warrantless forensic searches.

Aigbekaen’s Argument on the Motion to Suppress and the Government’s Response

Aigbekaen argued that the May 2015 forensic searches were unconstitutional because they were conducted without warrants and did not fall within the border search exception to the warrant requirement. Aigbekaen maintained that ‘there has to be a point at which the nature of the government investigation is so separated and so divorced from anything related to the border’ that the exception becomes inapplicable. He explained that the Government’s ‘general interest in enforcing domestic criminal laws’ does not constitute an interest justifying ‘border searches.’ The Government responded that, at the time of the forensic searches, it had reasonable suspicion both that Aigbekaen had trafficked L. for sex domestically and that he ‘might be bringing contraband in the form of child pornography into the country,’ citing for the latter argument only an ‘allegation from the manager of the hotel where the victim was recovered.’

The District Court’s Holding; the Jury’s Verdict; and, Notice of Appeal

At the close of the suppression hearing, the district court dismissed the Government’s child pornography argument as ‘a lot weaker’ but held that under ‘the traditional border search analysis,’ ‘the circumstances of where the property was and where the person was when the search occurred’ ‘trumped’ any need to justify the specific search. As a result, the court found that no warrants were required for the May 2015 searches. The court further reasoned that if any individualized suspicion was needed to justify the ‘intrusive’ forensic searches of Aigbekaen’s devices, the Government met this standard because HSI had ‘at least’ reasonable suspicion, if not probable cause, that the warrantless searches would reveal evidence of domestic sex trafficking.

The court thus denied the suppression motion, and Aigbekaen proceeded to trial. After considering testimony from over twenty witnesses, a jury found Aigbekaen guilty on all six counts. Aigbekaen timely noted this appeal.

Aigbekaen’s Argument on Appeal

Aigbekaen’s principal argument on appeal is that the May 2015 warrantless forensic searches of his laptop, iPhone, and iPod violated the Fourth Amendment. Although the Government contends (and we ultimately agree) that the good-faith exception to the exclusionary rule requires affirmance in any event, ‘when a Fourth Amendment case presents a novel question of law whose resolution is necessary to guide future action by law enforcement officers and magistrates, there is sufficient reason for a court to decide the violation issue before turning to the good-faith question.’ United States v. Bosyk, 933 F.3d 319, 332 n.10 (4th Cir. 2019) (alterations in original) (quoting Illinois v. Gates, 462 U.S. 213, 264, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (White, J., concurring)).

The Standard of Review

We review the district court’s legal conclusions de novo and its factual findings for clear error, considering the record evidence in the light most favorable to the Government. Kolsuz, 890 F.3d at 141–42. Because the Government conducted the challenged searches without warrants, it bears the burden of proving, by a preponderance of the evidence, that an exception to the warrant requirement applies. United States v. Davis, 690 F.3d 226, 262 (4th Cir. 2012).

The Fourth Amendment

The Fourth Amendment requires that governmental searches and seizures be reasonable. In most cases, this requires a warrant based on probable cause. … ‘In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.’ … (emphasis added)

The Border Search Exception

One such exception applies at our nation’s borders, where the Supreme Court has long recognized the federal Government’s substantial sovereign interests in ‘protecting … territorial integrity’ and national security, … blocking ‘the entry of unwanted persons and effects,’ … ‘regulating the collection of duties,’… and ‘preventing the introduction of contraband,’… These Government concerns are ‘at their zenith’ at the border, whereas an individual’s ‘expectation of privacy is less at the border than it is in the interior.’ … Thus, ‘at a border’ or its ‘functional equivalent, like an international airport … government agents may conduct routine searches and seizures of persons and property without a warrant or any individualized suspicion.’ Kolsuz, 890 F.3d at 137 (internal quotation marks omitted). 

Nonroutine Border Searches

Although this ‘border search’ exception to the warrant requirement is broad, it is not boundless. Even when the exception applies, the Supreme Court has explained that certain ‘highly intrusive searches’ may qualify as ‘ “nonroutine” ’ and so require some level of individualized suspicion. Flores-Montano, 541 U.S. at 152, 124 S.Ct. 1582 (quoting Montoya de Hernandez, 473 U.S. at 541 n.4, 105 S.Ct. 3304).

Warrantless Searches Not Related to Sovereign Interests

… neither the Supreme Court nor this court has ever authorized a warrantless border search unrelated to the sovereign interests underpinning the exception, let alone nonroutine, intrusive searches like those at issue here. … This restriction makes particularly good sense as applied to intrusive, nonroutine forensic searches of modern digital devices, which store vast quantities of uniquely sensitive and intimate personal information, id. at 145 (citing Riley, 573 U.S. at 393–97, 134 S.Ct. 2473), yet cannot contain many forms of contraband, like drugs or firearms, the detection of which constitutes ‘the strongest historic rationale for the border-search exception,’ United States v. Molina-Isidoro, 884 F.3d 287, 295 (5th Cir. 2018) (Costa, J., concurring).

to conduct such an intrusive and nonroutine search under the border search exception (that is, without a warrant), the Government must have individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband. See also United States v. Ramsey, 431 U.S. 606, 620, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) … (emphasis added)

The Court’s Conclusion

Applying these principles to the facts at hand, we can only conclude that the warrantless forensic searches of Aigbekaen’s devices in May of 2015 lacked the requisite nexus to the recognized historic rationales justifying the border search exception. Of course, when Aigbekaen landed at the airport with his MacBook Pro, iPhone, and iPod in tow, HSI agents had not only reasonable suspicion but probable cause to suspect that he had previously committed grave domestic crimes. But these suspicions were entirely unmoored from the Government’s sovereign interests in protecting national security, collecting or regulating duties, blocking Aigbekaen’s own entry, or excluding contraband. Thus, holding the border search exception applicable here, based simply on the Government’s knowledge of domestic crimes, would ‘untether’ that exception from its well-established justifications. Riley, 573 U.S. at 386, 134 S.Ct. 2473. (emphasis added in the opinion)

The Court Rejects the Government’s Argument

… the Government asserts that Aigbekaen’s crime ‘clearly was one that is the proper subject of a border search, because sex trafficking is a crime “commonly involving cross-border movements.” ’ Supp. Response Br. at 13 (quoting United States v. Caballero, 178 F. Supp. 3d 1008, 1017 n.7 (S.D. Cal. 2016)). Of course, the general character of a crime may be relevant to an officer’s reasonable suspicion that it involves a transnational component. But inherent in the notion of individualized suspicion is some evidentiary basis for what a specific crime does involve in the individual case at hand, not just what it ‘commonly involves’ as a general matter. Here, the Government has offered no reasonable basis to suspect that Aigbekaen’s domestic crimes had any such transnational component. (emphasis added in the opinion)

The Court Rejects the District Court’s Conclusion

We also must reject the district court’s conclusion that a nonroutine, intrusive search’s physical and temporal proximity to an international border ‘trumps everything’ under the Fourth Amendment. To be sure, the Supreme Court has stated that routine border searches ‘are reasonable simply by virtue of the fact that they occur at the border.’ Ramsey, 431 U.S. at 616, 97 S.Ct. 1972. But in the context of ‘highly intrusive’ nonroutine border searches, … the Court has explicitly struck a ‘balance between the interests of the Government and the privacy right of the individual,’ Montoya de Hernandez, 473 U.S. at 540, 105 S.Ct. 3304; see also Riley, 573 U.S. at 385, 134 S.Ct. 2473 (instructing courts to evaluate any exception to the warrant requirement by weighing individual privacy interests against ‘legitimate governmental interests’ (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999))). Consistent with this balancing, we clarified in Kolsuz that a nonroutine search’s location is not dispositive of whether the border search exception applies; rather, it is the search’s relation to the Government’s sovereign interests that is paramount. 890 F.3d at 142–43.

Border Searches Unrelated to Sovereign Authority

… it would be patently unreasonable to permit highly intrusive forensic Government searches of travelers’ digital devices, without warrants, on bases unrelated to the United States’s sovereign authority over its borders. To be clear, we do not question the import of the Government’s general interest in combatting crime. But we cannot agree that this interest categorically eclipses individuals’ privacy interests in the vast troves of data contained on their digital devices when the suspected offenses have little or nothing to do with the border.

… where a search at the border is so intrusive as to require some level of individualized suspicion, the object of that suspicion must bear some nexus to the purposes of the border search exception in order for the exception to apply. Because no such nexus existed here, the warrantless, nonroutine forensic searches violated the Fourth Amendment.

Because the Government lacked sufficient individualized suspicion of criminal activity with any nexus to the sovereign interests underlying the border search exception, its warrantless forensic searches of Aigbekaen’s devices violated the Fourth Amendment.

The Good Faith Exception Saves the Day for the Government

The Government next contends that the good-faith exception to the exclusionary rule bars suppression of any evidence tainted by any constitutional defect in the May 2015 searches. Aigbekaen counters that the lack of a nexus renders the good-faith exception inapplicable. On this point, we must agree with the Government.

The evidentiary fruits of Fourth Amendment violations are generally inadmissible at trial. See Wong Sun v. United States, 371 U.S. 471, 484–85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). But the fruits of ‘a search conducted in reasonable reliance on binding precedent are not subject to the exclusionary rule,’ as that rule is designed ‘to deter future Fourth Amendment violations.’  …

In this case, the HSI agents who searched Aigbekaen’s devices in May of 2015 reasonably relied on an ‘established and uniform body of precedent allowing warrantless border searches of digital devices.’ … Although it has long been understood that the scope of a warrant exception should be tailored to the purposes underlying that exception, no court had yet applied that principle to require a warrant ‘for any border search, no matter how nonroutine or invasive.’ … Molina-Isidoro, 884 F.3d at 294 (Costa, J., concurring) (noting that ‘no reported federal decision has required a warrant for any border search’). Only in 2018 did this court recognize that ‘a search initiated at the border could become so attenuated from the rationale for the border search exception that it no longer would fall under that exception’ and so require a warrant. Kolsuz, 890 F.3d at 143. And only today have we applied that principle to hold unconstitutional such an attenuated, warrantless, nonroutine forensic search at the border. (emphasis added)

Tellingly, Aigbekaen offers almost no argument against application of the good-faith exception, save for a question-begging allegation that the Government ‘attempted to exploit an exception to the Fourth Amendment warrant requirement.’ He may well be correct that even prior to Kolsuz, ‘the better practice’ would have been for the Government to get a warrant in the first place. But good faith does not mandate best practices. Given the uniform body of precedent that permitted warrantless searches at the border in May of 2015, we cannot help but conclude that the good-faith exception applies here. (emphasis added)


For the foregoing reasons, the judgment of the district court is AFFIRMED.

My Thoughts

  • Although Aigbekaen was decided more than a year ago, it just popped up in WestLaw’s Topical Highlights – Criminal Justice.  Even though this is not a new case, it is a good read.
  • When Leon was decided, it appeared that it would be applicable only to those cases in which law enforcement officers had obtained a search warrant.  Not so.
  • Aigbekaen was convicted in the United States District Court for the District of Maryland.  Chief Judge James K. Bredar presided over his trial.  As Aigbekaen illustrates, search issues are often challenging — even for chief judges.

Federal Corner: There is a Limit to the Power of Federal Probation Officers


On October 27, 2020, a panel1 of the United States Court of Appeals for the Fifth Circuit, held as a matter of first impression, that the district court abused its discretion by giving the defendant’s probation officer the option to choose between inpatient and outpatient drug treatment; and, that when substance abuse treatment is a condition of supervised release, the decision to restrict the defendant’s liberty during the course of substance abuse treatment must remain with the judge, as opposed to the defendant’s probation officerUnited States v. Martinez, ___F.3d___, 2020 WL 6281738 (5th Cir., 2020)

Over the years, we have had a number of instances where a federal probation officer, we believed, was overstepping his authority; however, we have been able to resolve these issues without the necessity of a hearing or an appeal.  Martinez gives us something of a road map of where to go if we cannot do this.  Judge Elrod’s opinion reads, in part, as follows:

Martinez Has Continuing Drug Issues at His Halfway House

Martinez pleaded guilty to unlawful escape after he failed to return to a halfway house at the end of a workday. Martinez began serving the supervised-release portion of his sentence for that offense in August of 2018. In November 2018, Martinez’s probation officer petitioned the district court to modify the conditions of Martinez’s supervised release because Martinez tested positive for cocaine use. The modification required Martinez to ‘participate in a program of testing and treatment for drug abuse.’

Martinez’s probation officer once more petitioned the court for a modification in August of 2019 because Martinez continued to engage in drug use. At the revocation hearing for this petition, Martinez’s counsel said that Martinez ‘would be the first to admit there are times that he struggles with substance abuse.’ Martinez’s substance-abuse struggles sparked the following dialogue between the district court and Martinez:

The Dialogue Between the Court and Martinez

[THE COURT:] It seems to me—you know, I may be off base, or maybe not—that you’re your own worst enemy. You walked away from a halfway house; that got you the escape charge. You failed to report. You’ve done, you know, cocaine on a number of occasions. And I understand how hard sometimes those habits are to break.

But, you know, as a judge, we can order drug treatment, we can order all these different things to try to help, but you’re the only one that can make that decision for yourself. You need to really take it to heart….

I’m going to sentence you, but I’m also going to recommend to the Bureau of Prisons that you participate in the drug treatment program. When you get out, I want you to participate in the drug treatment program.

All right. The Court hereby revokes the term of supervised release in 17-CR-34 and sentences the defendant Abran Martinez to 10 months in the custody of Bureau of Prisons with the reimposition of supervised release under the same terms and conditions of one year….

Mr. Martinez, as I said, I can order things until I’m blue in the face. It only works if you really put your heart into it.

THE DEFENDANT: By continuing on this release, it just—I mean, I’ve tried it. I’ve tried it several times. I don’t know what it is. I just can’t—I can’t do it. I mean, I’ll try. I’ll try again.

THE COURT: I want you to try again. I know that the probation department didn’t recommend it. And that is one of the reasons I only put you back on for a year. If I can help you make that step, I want to help you, but try it one more time.

Our goal is to get you off drugs. I don’t want to run your life. I have enough trouble running my life. But I want to give you a chance to break this drug habit. (emphasis added)

The Written Conditions of Supervised Release

After the hearing, the district court imposed the following written condition:  You must participate in an inpatient or outpatient substance-abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program, including the provider, location, modality, duration, and intensity. You must pay the costs of the program, if financially able. (emphasis added)

Martinez’s Arguments on Appeal

Martinez appealed the written condition, challenging particularly the words ‘inpatient or outpatient.’ Martinez argues first that he did not have an opportunity to object to these words because he encountered them for the first time in the written judgment. Thus, according to Martinez, our review should be for abuse of discretion. Martinez then argues that the words ‘inpatient or outpatient’ impermissibly delegate judicial sentencing authority to Martinez’s probation officer because inpatient drug-treatment involves a significant deprivation of liberty.  (emphasis added)

The Government’s Response

The government, conversely, asserts that we should review for plain error because Martinez failed to object to the condition of supervised release in the district court. According to the government, Martinez did have the opportunity to object because the district court stated it was imposing a term of supervised release ‘under the same terms and conditions’ as the 2018 modification to Martinez’s supervised release. On the government’s theory, although the 2018 modification did not contain the words ‘inpatient or outpatient,’ it implicitly contained those options; ‘by leaving those terms unstated, the 2018 condition necessarily contains both.’

The Court Agrees With Martinez

We agree with Martinez. He had no opportunity to object, and so we review for abuse of discretion. In United States v. Franklin, we reviewed an appeal of a condition of supervised release for abuse of discretion because the defendant had no opportunity to object to the discretion given to a probation officer to require mental-health treatment. 838 F.3d 564, 567 (5th Cir. 2016). The district court’s oral pronouncement at the sentencing hearing did not mention or define the probation officer’s role in the recommended mental-health treatment. Id. Similarly, in this case the district court’s oral statements at the sentencing hearing did not mention or define the discretion the court would give to the probation officer to choose between inpatient and outpatient treatment.

The District Court Abused Its Discretion

The district court abused its discretion by giving Martinez’s probation officer the option to choose between inpatient and outpatient drug treatment. While probation officers may ‘manage aspects of sentences’ and oversee the conditions of supervised release, a probation officer may not exercise the ‘ “core judicial function” of imposing a sentence, “including the terms and conditions of supervised release.”United States v. Barber, 865 F.3d 837, 839 (5th Cir. 2017) (quoting Franklin, 838 F.3d at 568). This duty belongs to the court and may not be delegated. Id. We have previously vacated special conditions that delegate judicial authority to the probation officer by allowing the probation officer to decide whether mental-health or substance-abuse treatment should be required. United States v. Simpson, 788 F. App’x 991, 992 (5th Cir. 2020); United States v. Griffin, 780 F. App’x 103, 106–07 (5th Cir. 2019); United States v. Moreno, 697 F. App’x 384, 384–85 (5th Cir. 2017); Franklin, 838 F.3d at 568. We have not yet, however, decided whether giving a probation officer the option to require inpatient treatment impermissibly delegates a core judicial function.  (emphasis added)

The Second, Ninth and Tenth Circuits Have Addressed This Issue

Three of our sister circuits have addressed this question in published opinions, and each has decided that the court may not delegate the decision to require inpatient treatment to a probation officer because of the significant liberty interests at stake in confinement during inpatient treatmentSee United States v. Matta, 777 F.3d 116, 122–23 (2d Cir. 2015); United States v. Mike, 632 F.3d 686, 695–96 (10th Cir. 2011); United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009). Inpatient treatment differs from outpatient treatment because the patient cannot leave; the patient must remain at the hospital or facility day and night throughout the duration of the treatment. Matta, 777 F.3d at 122. ‘Conditions that that touch on significant liberty interests are qualitatively different from those that do not.’ Mike, 632 F.3d at 695. (emphasis added)

The Court Agrees With the Second Circuit

Mike is right. The decision to place a defendant in inpatient treatment cannot be characterized as one of the managerial details that may be entrusted to probation officers. See Barber, 865 F.3d at 839. The decision to restrict a defendant’s liberty during the course of treatment must remain with the judge. That said, our decision should not be construed to prevent a defendant from electing inpatient treatment in the absence of a court order. Instead, we hold today that the judge may not delegate to the probation officer the decision to require inpatient, rather than outpatient, treatment because of the liberty interests at stake.  (emphasis added) 


 The condition allowing Martinez’s probation officer to elect between inpatient or outpatient treatment is vacated, and the case is remanded for further proceedings consistent with this opinion.

My Thoughts

  • In most opinions, the judge of the court below is mentioned by name in the opinion; however, Judge Elrod did not tell us who the judge was in Martinez’s case.  During his colloquy with Martinez, the judge showed both patience and kindness in his comments.  I want him to hear my next drug case.

Federal Corner: Do Your Research Before Predicting Your Client’s Advisory Sentencing Guidelines Range


This is an experience that we have all had:  The evidence against your client in his federal criminal case is overwhelming and he has realized that a plea of guilty is probably inevitable.  He asks, “What am I looking at?”  The answer to his question may be more or less complex.  In either instance, though, he is entitled to an intelligent – and accurate – answer.  If he receives something less, there is always the possibility of a post-conviction writ alleging ineffective assistance of counsel.  This is something that every lawyer should want to avoid.

Unfortunately, the lawyer for Aluro Pablo Valdez, Jr., did not give him such an answer.  Even so, a divided panel of the United States Court of Appeals for the Fifth Circuit held that Valdez’ lawyer’s performance in incorrectly advising him about the applicable Sentencing Guidelines range was not ineffective.  United States v. Valdez, 973 F.3d 396 (5th Cir. 2020) Panel:  Circuit Judges Wiener, Engelhardt and Oldham.  Opinion by Engelhardt; dissenting opinion by Wiener.)

Judge Engelhardt’s opinion reads, in part, as follows:

Valdez’ Claim of Ineffective Assistance of Counsel

Defendant-Appellant Lauro Valdez, Jr., federal prisoner # 76629-080, appeals the denial of his 28 U.S.C. § 2255 motion to set aside his conviction for being a felon in possession of a firearm. Valdez advanced several grounds for relief in the district court, but this court granted a certificate of appealability as to only one: Valdez’s claim that before he pleaded guilty, he received ineffective assistance of counsel because his trial attorney underestimated the range of imprisonment recommended by the United States Sentencing Guidelines (‘Guidelines’). United States v. Valdez, No. 18-40495 (5th Cir. Feb. 28, 2019) (one-judge order). (emphasis added)

An Overview of Valdez’ Plea and Sentencing in the District Court

After a jury was empaneled for his trial, Valdez pleaded guilty—with no plea agreement—to one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Valdez used the firearm to commit murder, so the Guidelines recommended a range of 324 to 405 months’ imprisonment. Valdez’s attorney estimated that his Guidelines range would be between twenty-four and thirty-three months, but the district court, after two colloquies pursuant to Fed.R.Crim.P. 11(b), accepted the guilty plea and sentenced Valdez to the statutory maximum term of 120 months in prison. (emphasis added)

The Background of the Case

Valdez was arrested and charged in state court with murder. While the state case was pending, Valdez was charged in federal court for being a felon in possession of a firearm.  In the federal matter, Valdez planned to assert a justification defense. Someone had fired shots at Valdez’s house ten days before the killing of Rodriguez, and Valdez claimed that he had received threatening phone calls. Valdez argued that he was justified in possessing the firearm because, in the context of those prior incidents, he feared for his life when Rodriguez arrived outside his door and yelled threats.

Valdez decided to go to trial for the possession charge. On October 19, 2015, after the jury had been selected, the district court conducted a hearing on whether to allow Valdez to assert the affirmative defense of justification at trial. The court clarified that Valdez would not be permitted to raise his affirmative defense unless he could make a prima facie showing on all four elements of justification.

 … after conferring with his counsel, Valdez then, before the district court officially ruled on any pretrial motions, sought to change his plea to guilty. The court specifically noted that only his sentence and any § 2255 issues would be appealable, and his counsel confirmed that was correct.

The Plea Colloquies

During the Rule 11 colloquy, the district court told Valdez, appropriately, correctly, and expressly, that

right now you don’t know what sentence I would give you, I don’t know what sentence I would give you and I don’t know that because a Probation officer has to meet with you, your lawyer gets to be present and they have to give me a report about your criminal history and then they’ve got to give me a report about this case and where you score.

Valdez initially said that his attorney had not reviewed the Guidelines with him, but after being shown a copy of the manual, he said that he was familiar with them. The court thoroughly explained how the Guidelines arrive at a recommended sentence, noted clearly that the court had the power to sentence above or below that range, and stated the factors that the court must consider when choosing a sentence. The court asked, ‘Are you aware of the penalties?’ to which Valdez replied, ‘Yes, ma’am.’ The court then explained that the statutory maximum penalty was ten years in prison. Valdez again said that he understood and that he had no questions about the penalty. The court explicitly addressed the issue of an estimated sentence, including one from Valdez’s counsel (emphasis added):

And this is important because I will tell you that your attorney may have given you a good faith estimate where he thinks you may fall in that chart and — and he may tell you, ‘You know, I’ve been in front of this Judge a lot of times, I think she may or may not do this,’ but at the end of the day he really has no idea and you really have no idea and I have no idea because I don’t know where you’re going to score and I don’t know everything about your life history, and so whatever your lawyer may have said to you is not a promise, it’s not a guarantee and it’s not binding on this Court. Do you understand that? (emphasis in the opinion)

Valdez said, ‘Yes, ma’am,’ and confirmed that he wanted to proceed with pleading guilty.

The hearing continued to the next day, October 20, 2015, when the district court again confirmed that Valdez understood that he could not withdraw his guilty plea if he was unhappy with the sentence he received. The court then gave Valdez a chance to withdraw his plea. He declined, and the court accepted Valdez’s plea of guilty.

 The Advisory Sentencing Guidelines Range

The district court determined that the Guidelines recommended a range of imprisonment of 324 to 405 months. Valdez had a criminal history category of II, which the district court found significantly underrepresented Valdez’s criminal activity. The district court determined that Valdez’s base offense level was forty-three because he committed first degree murder … The court then applied a three-level reduction for acceptance of responsibility.

Under the Guidelines, when a firearm is possessed or used in connection with another offense that results in death, the base offense level for illegal possession of that firearm is taken from the homicide subpart of the Guidelines that is most analogous to the conduct, if the resulting offense level is greater than it would be otherwise. U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(c)(1) (U.S. SENTENCING COMM’N 2015). First degree murder results in an offense level of forty-three, second degree murder an offense level of thirty-eight, voluntary manslaughter an offense level of twenty-nine, and involuntary manslaughter an offense level of twelve to eighteen. Id. §§ 2A1.1, 2A1.2, 2A1.3, 2A1.4.

Valdez’ Argument at Sentencing and the Court’s Response

Despite the … undisputed facts, Valdez urged the district court not to apply the homicide cross-reference because he had not been convicted of homicide in state court, making the base offense level twenty. That would have resulted in a Guidelines range of twenty-seven to thirty-three months of imprisonment after a three-level reduction for acceptance of responsibility. See Id. Ch. 5, Pt. A. The court overruled Valdez’s objection to the cross-reference and sentenced him to the statutory maximum term of 120 months in prison. The court observed that, although it found that Valdez committed first degree murder, the Guidelines recommendation would also have exceeded the statutory maximum if Valdez had only committed second degree murder. Important to the issue raised here, the district court further explained that even if it had not used a first or second degree murder application to calculate the Guidelines range, the court would have relied on Valdez’s extensive and underrepresented criminal history to vary upwards to the maximum sentence of 120 months. (emphasis added)

 Valdez’ Allegation in a § 2255 Petition and His Lawyer’s Response

Valdez then filed a motion under 28 U.S.C. § 2255, seeking to set aside his conviction. Valdez … asserted … that his trial counsel was ineffective in substantially underestimating Valdez’s Guidelines range and therefore failing to advise Valdez that he faced a significant risk of receiving the statutory maximum term of imprisonment.

Valdez’s trial counsel submitted an affidavit stating that he ‘informed him of the guideline levels’ and the statutory maximum of ten years but admitting that he did not inform Valdez that the base offense level could be forty. 

The District Court’s Ruling

The district court denied Valdez’s § 2255 motion. As to the issue now on appeal, the district court found that Valdez understood that he faced a maximum possible sentence of 120 months, and there was no evidence that his counsel promised him a particular sentence. With that understanding, the court reasoned, Valdez could not show that he was prejudiced by ignorance of section 2K2.1(c)(1)(B)’s potential application before his decision to plead guilty.

Valdez’ Burden at the Fifth Circuit

To prevail on an ineffective assistance of counsel claim, a defendant must satisfy the test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by showing that (1) his ‘counsel’s performance fell below an objective standard of reasonableness,’ and (2) that his counsel’s deficient performance caused him prejudice. United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004).

Valdez’ Lawyer’s Advice and the Court’s Holding

Here, although Valdez’s counsel’s estimate of what he ‘hoped’ Valdez’s sentence would be was well below the 120 months to which Valdez was ultimately sentenced, counsel properly apprised Valdez, prior to his pleading guilty, of the maximum penalty the court could impose. And counsel also made abundantly clear to Valdez that no estimation he offered was a guarantee or a promise. It is no doubt that counsel’s estimated sentencing range was far lower than Valdez’s actual sentence. Nevertheless, we do not find any deficiency in counsel’s estimation to be unreasonable. (emphasis added)

Valdez Was Aware of What He was Facing

…Valdez was clearly aware that the maximum possible prison term was 120 months, even though he and his attorney were operating with the understanding that the Guidelines with a plea would suggest a significantly lower sentence. …Valdez and his attorney knew full well the circumstances of the charge against him, including most significantly the use of the subject firearm to murder Rodriguez, … as well as Valdez’s significant criminal history aside from this incident. It came as no surprise to the defendant or his counsel that the district court would indeed factor in all of the circumstances in determining a sentence, whether after trial or following a guilty plea. See Lee, 137 S. Ct. at 1966 (‘The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea.’). (emphasis added)

Valdez was clearly advised—multiple times—by both the court and his counsel of the maximum sentence he could receive, such that he was ‘fully aware of his plea’s consequences.’  

Be Aware That This Analysis Will Not Apply to Every Case

This is not to say that every defendant whose attorney makes an error in estimating his Guidelines range has not suffered prejudice.  But, in this instance, Valdez has not shown that his counsel’s estimation of the applicable Guidelines range alone caused him to plead guilty. Rather, the record indicates that Valdez’s decision to plead guilty at the eleventh hour was logically motivated by the exposure of evidence which proved fatal to his affirmative defense, all but guaranteeing a conviction at trial, without any possible sentencing benefits he knew might be available with a plea of guilty.

Accordingly, the judgment of the district court is affirmed.

Judge Wiener filed a dissenting opinion in which he cited cases from the D.C., Sixth, Seventh, Ninth and Tenth Circuits in support of his conclusion that Valdez’ lawyer had not provided the effective assistance of counsel.

Judge Wiener’s opinion reads, in part, as follows:

I respectfully dissent in the belief that Valdez has satisfied both prongs of Strickland and that the majority deeply undermines the Sixth Amendment’s guarantees in contemporary criminal defense by rendering counsel’s familiarity with the Sentencing Guidelines optional when advising a client of the consequences of a guilty plea. 

Because of the importance of sentencing guidelines in contemporary criminal practice, professional standards for defense counsel repeatedly emphasize that defense counsel must be familiar with the law and procedures applicable to sentencing, including any applicable sentencing guidelines. Such standards can inform the attorney conduct that is reasonable. ‘Although they are “only guides,” … and not “inexorable commands,” … these standards may be valuable measures of the prevailing professional norms of effective representation….’

Recognizing the importance of the Guidelines in the sentencing process, several other circuit courts require defense counsel to make a minimally competent Guidelines estimate, or at least a good faith attempt. They do so, for the most part, even in the era of advisory Guidelines, and so by implication hold that defense counsel does not discharge his duty by merely informing his client of the statutory maximum sentence.

The consistent theme in the foregoing decisions is that defense counsel’s performance in making a Guidelines calculation is unreasonable under prevailing professional norms when, because of his ignorance of basic Guidelines provisions, counsel makes an error of significant magnitude. And that is precisely what happened here. (emphasis added)

At the very least, Valdez has shown enough to merit an evidentiary hearing in the district court, which he was denied. ‘A district court must hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”’ Valdez’s claim is plausible enough that he should be allowed to present evidence regarding (1) why counsel failed to advise him of the cross reference provision and (2) the benefits that counsel erroneously advised Valdez might accrue from his pleading guilty.

These are the reasons why I respectfully dissent.

My Thoughts

  • I liked Judge Wiener’s dissent and can see where another panel might have come to a different conclusion than the one that decided Valdezs appeal.
  • Valdez appeared for his plea and sentencing before United States District Judge Marina Garcia Marmolejo of the United States District Court of the Southern District of Texas.  Her plea colloquies with Valdez and her explanation as to the sentence imposed provided the basis for the panel’s holding in Valdez.
  • After all these years, I can still find some federal sentencing issues to be confusing.  My “go to” resource is Federal Sentencing Guidelines Handbook by Roger W. Haines, Jr., Frank O. Bowman, III, and J. Douglas Wilson 2019 Thomson Reuters.  I would recommend it.

Federal Corner: Competing Views on the Granting of a Motion for a New Trial


On August 20, 2020, a sharply divided panel of the United States Court of Appeals for the Fifth Circuit affirmed the order of Senior District Judge David Briones of the United States District Court for the Western District of Texas granting the defendant’s motion for a new trial.  United States v. Crittenden, ___F.3d___, 2020 WL 4876721 (5th Cir. 2020) Panel:  Circuit Judges Dennis, Elrod (authored the opinion – 2855 words) and Costa (authored the dissenting opinion – 2315 words)  For any lawyer looking to file a motion for new trial in a federal case, this should be a “must read.”

Judge Elrod’s opinion reads, in part, as follows:

An Overview of the Case

A jury convicted Samuel Crittenden and his wife Carla Dominguez of possession with intent to distribute 500 grams or more of methamphetamine. The district court granted Crittenden a new trial because the record does not show that he knew that the bags he removed from his house—and the bag his wife requested that he bring her—contained methamphetamine or any other controlled substance. Because the district court did not abuse its discretion in granting Crittenden a new trial, we affirm. (emphasis added)

The Facts of the Case

In 2017, Federal Bureau of Investigation agents received a tip from the Drug Enforcement Agency field office in Juarez, Mexico, that ten pounds of methamphetamine was being stored at a house in El Paso. The FBI agents enlisted a cooperating informant to call Dominguez’s phone number, which was associated with the tip, in order to arrange a controlled methamphetamine purchase. In a series of phone calls over the next few days, Dominguez and the informant discussed the informant’s ostensible interest in ‘windows’—a street term for methamphetamine. The informant met Dominguez in person in the parking lot of a JCPenney where they discussed the sale of ‘crystal,’ and the informant offered to buy ‘ten’ for $35,000. The two agreed to meet again after Dominguez had verified how much supply she had.

After the meeting, the agents surveilled Dominguez as she returned to the house she shared with Crittenden. Thereafter, the agents observed the two depart the home in separate cars. One of the agents followed Crittenden to another home on Byway Drive in El Paso, where Crittenden exited his vehicle and went inside. The agent broke off the surveillance and rejoined the remaining agents that had continued to surveil Dominguez. Dominguez, however, ultimately led the agents back to the Byway Drive residence. The agents observed a male who was likely Crittenden exit the house and hand Dominguez a black bag through the window of her car. (emphasis added)

Dominguez then drove away from the house. When law enforcement intercepted her, they found a black leather handbag containing ten bundles of methamphetamine collectively weighing 4.2 kilograms. Law enforcement then interviewed Crittenden. According to the agents’ later testimony, Crittenden stated that he had moved the bags—which were Dominguez’s—to the Byway Drive residence, believing that they contained marijuana. When Dominguez asked him to retrieve one of the bags for her, he did so. A resident of the Byway Drive house would later testify that Crittenden had asked him if he could stay at the Byway Drive house and store some personal effects in the attic because he was having a fight with Dominguez. After receiving consent from the residents of the Byway Drive house to search the attic, law enforcement recovered three roller suitcases filled with 1.65 kilograms of methamphetamine and 47 kilograms of marijuana. (emphasis added)

 The Offenses

Dominguez and Crittenden were charged in the Western District of Texas with (1) conspiracy to possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); (2) possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); and (3) conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846.

The Testimony at Trial

At trial, Dominguez took the stand as the sole witness for the defense. She testified that she used to buy marijuana for her and her friends’ personal use from an individual named Juan Diaz. Dominguez stated that this relationship ended when, in 2015, she and Crittenden decided to have a fifth child together and resolved ‘to get closer to God and to take care of their family together without having any kind of partying or drug use.’ She said that she did not hear from Diaz again until he called her in January of 2017 and asked her if she could retrieve his car, which he said had been left on the U.S. side of the border as a result of a fight he had with his girlfriend, and hold it at her house until his sister could pick it up the following day. Dominguez testified that she agreed and retrieved the car, but when Juan’s sister arrived, she took several bags and a large plastic container out of the trunk, gave them to Dominguez, and quickly left before Dominguez could object. (emphasis added)

With regard to the series of phone calls, Dominguez testified that she first did not understand what the calls concerned and assumed they were in regard to some broken windows in her house. When the calls continued, Dominguez stated, she began to suspect that the packages contained drugs or other contraband and that her and her family’s lives were in danger, so she went along with meeting the individuals who contacted her in order to get rid of the packages. Dominguez stated that when she told Crittenden about what was occurring, Crittenden said that he did not want to have anything to do with the matter and that he did not want the packages to be in the house with their children. According to Dominguez, Crittenden then moved the packages to the Byway Drive residence to get them out of the house.

Dominguez testified that she just instructed Crittenden to ‘grab a bag’ from the Byway Drive house on the day she met with the informant without specifying the contents of the bag. She stated that Crittenden was not involved in any of the transactions and did not know Diaz. (emphasis added.

The Result of the Trial

…the jury convicted both defendants on all counts.

The Defendant’s Motions and the Court’s Response

Crittenden then renewed a properly preserved motion for judgment of acquittal, or, in the alternative, for a new trial. The district court granted the motion for a new trial. In its memorandum opinion, the district court concluded that the Government failed to prove that Crittenden participated in a conspiracy or that he had the knowledge of the nature of the controlled substance he possessed that was required to convict him of possessing methamphetamine with the intent to distribute. (emphasis added)

As to the possession count, the court stated:

No direct or circumstantial evidence was presented during the first trial to show beyond a reasonable doubt that Mr. Crittenden knew the contraband was comprised of any controlled substances listed on the schedules or that he knew the identity of the controlled substances he possessed.  (emphasis added)

The Government Appealed, In Part

The Government timely appealed the grant of new trial on the possession count.  It did not appeal the grant of new trial on the conspiracy counts.

The Standard of Review

Unlike a judgment of acquittal based on the sufficiency of the evidence, which this court reviews de novo while taking the evidence in the light most favorable to the verdict, ‘the decision on a new trial motion is entrusted to the discretion of the district court so this court will reverse it only on an abuse of that leeway.’ United States v. Hoffman, 901 F.3d 523, 552 (5th Cir. 2018). This court thus reviews a district court’s grant of a new trial for abuse of discretion, while considering de novo any questions of law that figured into the determination. United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004). ‘A district court by definition abuses its discretion when it makes an error of law.’ Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)…

Federal Rule of Criminal Procedure § 33(a)

A district court may grant a new trial under Federal Rule of Criminal Procedure 33(a) ‘if the interest of justice so requires.’ ‘In this Circuit, the generally accepted standard is that a new trial ordinarily should not be granted “unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.” ’ United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting Wall, 389 F.3d at 466).

The Government’s Argument on Appeal and the Court’s Response

On appeal, the Government argues that the district court ‘erroneously found that the government had failed to prove … that Crittenden knowingly possessed a controlled substance.’  … We conclude that the district court correctly stated the relevant law and permissibly applied it to the facts of this case.

    • 841(a)’s Knowledge Requirement

As to the governing legal principles, the district court properly noted that the ‘knowledge requirement of § 841(a) may be met by showing that the defendant knew he possessed a substance listed on the schedules.’ McFadden v. United States, 576 U.S. 186, 192, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015). The district court also properly concluded that a defendant’s mere ‘belief’ that he possessed a controlled substance—divorced from other factors such as deliberate ignorance—’is not enough to establish knowledge.’

 Deliberate Indifference Is Not Before the Court

…the Government has never argued deliberate ignorance in this case, and the jury was not instructed on it. We therefore express no opinion regarding whether the evidence demonstrated Crittenden’s deliberate ignorance.

The Evidence, Or Lack Thereof, Favors the Defendant

… There was no evidence that the methamphetamine at issue belonged to Crittenden or that Crittenden was attempting to sell the drugs; rather, federal agents seized the methamphetamine from Dominguez pursuant to a transaction the confidential informant set up with Dominguez. Although the jury originally convicted Crittenden of conspiring with Dominguez to sell the drugs, the evidence supposedly showing Crittenden’s involvement in any such conspiracy was so insufficient that the Government did not even appeal when the district court granted a new trial on the conspiracy counts.

In fact, the evidence does not show that Crittenden ever laid eyes on the drugs themselves—not when he moved the bags into the Byway Drive residence, and not when he retrieved a bag on Dominguez’s instructions. At oral argument, the Government pointed to Dominguez’s testimony that Crittenden ‘probably’ moved the drug packages from their original container to the bags before moving them to the Byway Drive residence. … But Dominguez also admitted that she ‘wasn’t there’ when the drug packages were moved into the bags and therefore ‘wouldn’t be able to tell you if it was Crittenden or someone else.’  At any rate, the district court was not required to credit Dominguez’s testimony in granting the motion for new trial. (emphasis added)

Despite the Government’s repeated prodding, Dominguez expressly disavowed telling Crittenden that the bag she asked him to retrieve contained any drugs at all, testifying instead that she told Crittenden to ‘just grab a bag.’  The evidence shows only that Crittenden complied with Dominguez’s request by bringing her a bag. Nothing more. (emphasis added)

Some FBI agents testified that Crittenden told them that he ‘believed’—incorrectly, as it turned out—that ‘the bags contained marijuana.’  That is why he ‘removed them … from his home and family’ by putting them in the Byway Drive house. But, as previously explained, the district court properly concluded that testimony ‘showing, if anything, that Mr. Crittenden believed the bags contained marijuana’ is insufficient to prove knowledge. As a result, it was not an abuse of discretion for the district court to grant Crittenden a new trial on the basis of insufficient evidence of knowledge. (emphasis added)

The Law of the Circuit

…we are bound by the law of this circuit, which has long afforded district courts ‘considerable discretion with respect to Rule 33 motions.’ United States v. Jordan, 958 F.3d 331, 338 (5th Cir. 2020) (quoting United States v. Simmons, 714 F.2d 29, 31 (5th Cir. 1983)). Indeed, this court has stated that a district court may grant a new trial even where ‘the evidence is sufficient to support a conviction,’ if, upon ‘cautiously reweighing it,’ the district court concludes that the evidence ‘preponderates heavily against the guilty verdict.’ United States v. Herrera, 559 F.3d 296, 302 (5th Cir. 2009).

Preventing A Miscarriage of Justice

Here, the district ‘court did not simply disregard the jury’s verdict in favor of one it felt was more reasonable.’ Robertson, 110 F.3d at 1119. Instead, ‘it cautiously reweighed the evidence implicating Crittenden and determined that a mistake had been committed. On this basis, having given full respect to the jury’s findings, and to prevent a miscarriage of justice, it granted a new trial.’ Id. at 1119–20. 

For the forgoing reasons, the district court’s order granting a new trial is affirmed. 

Judge Costa’s, dissenting opinion reads, in part, as follows:

The Constitution twice says that juries decide criminal cases. U.S. CONST. art. III, § 2, cl. 3; id. amend. VI.

The jury’s constitutional role in deciding criminal trials leaves little room for judicial second-guessing. Our review of verdicts is therefore quite limited. See, e.g., Burks v. United States, 437 U.S. 1, 16–17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Likewise, the authority to grant a new trial when there is enough evidence to support the verdict, but the judge would weigh the evidence differently, is in some tension with Article III and the Sixth Amendment. As a result, although we review the grant of a new trial only for abuse of discretion, we have repeatedly warned that its discretion is not unbridled. United States v. Arnold, 416 F.3d 349, 360 (5th Cir. 2005);…

… The district court granted the new-trial motion in a one-page order that said an opinion would follow. That order did not mention anything about weak evidence of knowledge. And despite the fact that the evidence presented at trial would have been freshest in the court’s mind when it granted the motion, it took five months to give a reason for doing so.

At a status conference after it finally issued the order explaining the new-trial grant, the court added:

I think if it was up to the Fifth Circuit I’m going to get reversed, quite frankly, but I went over the PSR this morning. Mr. Crittenden is facing 292 to 365 months and I think that’s the reason I considered … granting a new trial because I was very reluctant to issue that type of sentence. (emphasis included in the opinion)

The district court doubled down at Dominguez’s sentencing:

Counsel, as I informed you sometime back, maybe last week, I’m going to grant a new trial for Mr. Crittenden.

I am—his guideline range is 292 to 365 months and he’s facing a 20-year mandatory minimum. I can’t … even go the 20-year mandatory minimum on him and I’m certainly not going to go 292 months.

He had a limited role in what his wife was doing and she got him into this. Very limited role.

Ultimately, this case pits the deference we owe district judges on discretionary matters against the deference judges owe juries. Both the district judge and the jury saw and heard the evidence. … Between the two, the choice is easy given the overwhelming evidence of Crittenden’s guilt. I go with the citizens who missed work and had to rearrange family responsibilities because they showed up to do their civic duty. When it comes to commonsense questions like the ones this trial posed, the perspective of a single judge is no match for the collective wisdom that a jury of varied backgrounds and experiences brings to bear.

Yet the district court—now with our court’s blessing—concluded that the cross-section of the El Paso community that found Crittenden guilty committed a miscarriage of justice. (I guess I too would have been party to that miscarriage of justice as I think the jury got it right.) This judicial override of the jury’s verdict disrespects their service.

My Thoughts

  • What a great case.  Judge Elrod’s opinion gives us a roadmap for the urging of a motion for new trial and Judge Costa’s opinion gives us a preview of the Government’s anticipated response.
  • I’ve given you a taste.  Please read the entire opinion.

Federal Corner: The Sixth Amendment Right of Self-Representation


On August 6, 2020, a panel of the United States Court of Appeals for the Ninth Circuit held that the trial court’s termination of the defendant’s pro se status – because he asked an impermissible question during the cross-examination of a prosecution witness – violated his Sixth Amendment right of self-representation. United States v. Engel, ___F.3d___, 2020 WL 4519071 (9th Cir. August 6, 2020) Panel:  Circuit Judges William A. Fletcher, Jay S. Bybee and Paul J. Watford.  (Opinion by Bybee)

Judge Bybee’s opinion reads, in part, as follows:

An Overview of the Case

A jury convicted Appellant Todd Engel of obstruction of justice and interstate travel in aid of extortion. He contends that the district court violated the Sixth Amendment during his trial when the court terminated his right to represent himself and appointed standby counsel to represent him instead. We hold that Engel’s conduct was not sufficiently disruptive to justify termination of his right to self-representation. Because this is a structural error, we vacate Engel’s conviction and remand for a new trial.

The Facts of the Case

Engel’s criminal conviction stems from his involvement in an armed standoff between agents of the Bureau of Land Management (BLM) and a group of private militia members rallied behind Nevadan Cliven Bundy.1 In early April 2014, Engel traveled from his home in Idaho to Bunkerville, Nevada, to impede a BLM operation. When Engel and the other militia members confronted the BLM agents, Engel was holding an AR-15, wearing combat gear, and located on a bridge overlooking BLM’s position. Fortunately, no shots were ever fired, and the BLM agents eventually retreated.

The Indictment and the Order of Trial

Engel then became a target of federal criminal prosecution. In March 2016, a grand jury returned a superseding indictment against nineteen defendants. Engel was named in eleven counts. The district court severed the defendants’ trials into three tiers, placed Engel in Tier 3 (the tier containing the defendants alleged to be least culpable), and ordered those defendants to be tried first.

The Defendant Elected to Represent Himself

At the commencement of his trial, Engel asked to represent himself. After conducting a Faretta hearing, the district court granted his request, but appointed standby counsel to be used if necessary. Engel represented himself during the majority of the trial.

The Defendant’s Cross-Examination of a Government Witness

That changed on the twenty-first day of trial. While Engel was cross-examining a government witness, the following exchange occurred:

    1. Was Dan Love the special agent in charge of this operation?
    2. Yes, he was. He was an incident commander.
    3. And in any video or audio do—have you seen anywhere where I had any discussions with him?
    4. No.

GOVERNMENT COUNSEL: Again, found—well—again, foundation if we’re talking about which video and audio.

THE COURT: He’s answered the question.


    1. Isn’t it true that Dan Love’s under criminal investigation for—

GOVERNMENT COUNSEL: Objection, Your Honor.

THE COURT: Mr. Engel …


THE COURT: The jury will disregard Mr. Engel’s—

PRO SE ENGEL: No further questions.

The Strategy Behind the Cross-Examination

To put this incident in context, Dan Love was the BLM agent in charge of the impoundment effort. After the events near the Bundy Ranch, a government report was issued that detailed several breaches of protocol and abuses of power that Love committed during events having nothing to do with Bundy or Engel. Although the report said nothing about Love’s conduct during the confrontation with BLM agents in April 2014, Engel and his co-defendants hoped to get this information before the jury to cast BLM in a negative light. But the district court denied the defendants’ motion to compel Love’s attendance as a witness, finding that questioning Love about the report would be irrelevant. Thus, through the question he asked, Engel presumably sought to introduce the jury to the evidence underlying the government report regarding Love’s misconduct, even though Love was not testifying. Further, no criminal investigation of Love was ever initiated, so Engel’s question about whether Love was under criminal investigation implied a false premise.

The Government Sought a Sanction

After the district court excused the jury following Engel’s question, the government renewed its objection. The government argued that Engel ‘should be sanctioned for it and his pro se status should be revoked.’

The Defendant’s Demeanor

In response, Engel was calm and apologetic. He explained that he asked the question because Love had ‘sworn a Grand Jury testimony against me’ and Engel was frustrated that he was ‘not even going to be able to talk to Love.’ But he concluded his explanation by saying, ‘I apologize for the question’ and asked that he be allowed to continue representing himself.

The District Court Revoked the Defendant’s Right to Represent Himself

The district court ultimately agreed with the government. The court found that Engel’s question was ‘improper,’ and that Engel ‘knew very well that that question could not be asked.’ Accordingly, the district court revoked Engel’s right to represent himself, appointing standby counsel—John George—to represent Engel ‘for the remainder of the day.’ When George objected, arguing that Engel had ‘done a fairly remarkable job’ representing himself thus far and that a less drastic sanction was appropriate, the district court disagreed, finding that Engel’s ‘intentional ’ decision to ask the question ‘indicated that he’s not going … to follow my court order.’ The court also noted that Engel ‘was very smug about it afterwards when he went back and sat down, very proud of himself for sliding it in.’ Ultimately, the court was unwilling ‘to risk any more that Engel was going to say something in front of the jury that is not permitted and that would potentially cause me to call a mistrial.’ After hearing the court’s decision, Engel simply stated, ‘Okay. I’m sorry.’

Stand By Counsel Continued the Cross-Examination

George represented Engel the remainder of the twenty-first day of trial. During the proceedings, George cross-examined several more government witnesses on Engel’s behalf.

The Defendant was Permitted to Present Closing Argument

As the trial was drawing to a close, the district court allowed Engel to represent himself again for the purposes of closing argument.

The Verdict, Sentence and the Appeal

Following trial, the jury convicted Engel on two counts: Obstruction of the Due Administration of Justice in violation of 18 U.S.C. §§ 1503 & 2, and Interstate Travel in Aid of Extortion in violation of 18 U.S.C. §§ 1952(a)(2) & 2. The district court sentenced Engel to 168 months’ imprisonment and ordered him to pay $1,636,790.33 in restitution. An amended judgment against Engel was entered on September 24, 2018, and this appeal followed. 

The Standard of Review

We have never definitively articulated the standard of review that applies to a defendant’s claim on direct appeal of a criminal conviction that his Sixth Amendment right to self-representation was violated. Engel argues that we should apply de novo review. The Second, Third, Fifth, Eighth, and Tenth Circuits have taken this position. See United States v. Hausa, 922 F.3d 129, 134 (2d Cir. 2019) (per curiam); United States v. Weast, 811 F.3d 743, 748 (5th Cir. 2016); United States v. Mosley, 607 F.3d 555, 558 (8th Cir. 2010); United States v. Smith, 413 F.3d 1253, 1279 (10th Cir. 2005); United States v. Peppers, 302 F.3d 120, 127 (3d Cir. 2002) (employing ‘plenary review’). And at least one of our prior cases implicitly supports this position. See United States v. Flewitt, 874 F.2d 669, 676 (9th Cir. 1989) (holding that ‘the district court erred by not allowing the defendants to proceed pro se at trial’ (emphasis added)). The government contends that we should apply an abuse-of-discretion standard because the termination of a defendant’s right to self-representation implicates a district court’s management of the courtroom. The Seventh Circuit has taken this position. See United States v. Brock, 159 F.3d 1077, 1079 (7th Cir. 1998). Because we think the result in this case is the same under either standard, we need not resolve this split in authority. See United States v. Smith, 780 F.2d 810, 811 (9th Cir. 1986) (declining to clarify the correct standard of review because the outcome would be the same under any standard). (emphasis added)

The Sixth Amendment and Self-Representation

The Sixth Amendment grants a criminal defendant ‘personally the right to make his defense.’ Faretta, 422 U.S. at 819, 95 S.Ct. 2525. This right guarantees a defendant ‘actual control over the case he chooses to present to the jury,’ and it ‘exists to affirm the accused’s individual dignity and autonomy.’ McKaskle v. Wiggins, 465 U.S. 168, 178, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). As the Supreme Court has recognized, the right to self-representation has a longstanding historical pedigree, having been imported by the Framers from English legal practice. See Faretta, 422 U.S. at 821–32, 95 S.Ct. 2525. Although the Sixth Amendment does not explicitly articulate a right to self-representation, the right is implied by the Sixth Amendment’s language. Under the Amendment, ‘it is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.”’ Id. at 819, 95 S.Ct. 2525. In short, ‘the right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.’ Id. at 819–20, 95 S.Ct. 2525.

The Right to Self-Representation is not Absolute

Even so, a defendant’s right to self-representation ‘is not absolute.’ United States v. Johnson, 610 F.3d 1138, 1144 (9th Cir. 2010). A district court ‘may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct,’ Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525, or who is unable or unwilling ‘to abide by rules of procedure and courtroom protocol,’ Wiggins, 465 U.S. at 173, 104 S.Ct. 944.

Several cases illustrate this principle at work. For example, the right to self-representation may not be terminated even though a defendant ‘files numerous nonsensical pleadings, is uncooperative at times,’ insists ‘on wearing prison garb in front of the jury,’ and confusingly tells the jury that ‘he wants the jury to “enter a guilty plea”’ during opening statements. Johnson, 610 F.3d at 1143–44. Similarly, a defendant’s self-representation cannot be revoked merely because the defendant lacks familiarity ‘with the rules of evidence or the specifics of criminal procedure.’ United States v. Lopez-Osuna, 242 F.3d 1191, 1200 (9th Cir. 2000); see also Flewitt, 874 F.2d at 674–75 (holding that a defendant does not forfeit the right to represent himself by failing ‘to prepare properly for trial’ or filing ‘continual motions’ that are largely irrelevant). On the other hand, the right to self-representation can be terminated when a defendant engages in ‘heated discussions’ with the judge, threatens a juror such that the juror must be dismissed, and tells the jury something that the district court specifically ordered him not to disclose. United States v. Mack, 362 F.3d 597, 599 (9th Cir. 2004); see also Badger v. Cardwell, 587 F.2d 968, 971–73 (9th Cir. 1978) (affirming the removal of a pro se defendant from the courtroom after he engaged in ‘an increasingly heated dialogue’ with the judge, ‘raised a clenched fist’ at the judge, and ‘taunted the court to expel him’).

The Facts in this Case Do Not Support the District Court’s Termination of the Defendant’s Right of Self-Representation

When viewed in comparison to these cases, the facts here do not support the district court’s termination of Engel’s right to represent himself. Unlike the defendants in Mack and Badger, Engel was not defiant and did not engage in blatantly outrageous conduct, such as threatening a juror or taunting the district judge. To the contrary, Engel merely asked a question prejudicial to the government. When the government objected, Engel remained calm and ultimately acquiesced in the court’s decision to revoke his right to self-representation. He was never removed from the courtroom, nor did he need to be removed.

The Defendant’s Alleged Disobeying of a Prior Court Order

This conclusion is not undermined by the district court’s suggestion that Engel had disobeyed a ‘prior court order’ by asking whether Love was under criminal investigation. A defendant may forfeit the right to represent himself if he ‘fails to obey the rulings of the court.’ Flewitt, 874 F.2d at 673; see also Wiggins, 465 U.S. at 173, 104 S.Ct. 944 (noting that a self-represented defendant must be ‘able and willing to abide by rules of procedure and court protocol’). But it is not clear that Engel did violate a court order. The order to which the district court appears to be referring is an oral ruling denying a motion to compel Love to appear as a witness because questioning him about the events detailed in the report would be irrelevant. In that oral ruling, the court did not specifically address whether other witnesses could be asked about the investigation of Love. Perhaps it was implied that such questions should not be asked, but the order is not so unambiguous such that Engel’s conduct clearly violated it.

And even if Engel did violate that single order, that is insufficient to justify terminating his right to represent himself. Termination may be appropriate when the defendant has engaged in ‘severely disruptive behavior.’ Lopez-Osuna, 242 F.3d at 1200. Prior to this moment on the twenty-first day of trial, Engel appears to have complied with all the court’s orders. Indeed, the district court never previously had occasion to reprimand Engel for disobedience or threaten to revoke his right to represent himself. Had Engel repeatedly violated the court’s orders, that might be sufficiently disruptive to revoke his pro se status. But a single instance of disobedience that is unaccompanied by open defiance or disruption does not justify the termination of Engel’s constitutional right to self-representation without prior warning. Engel’s single question appears no more disruptive or obstructive than questions sometimes asked by counsel, to which opposing counsel would object. Had Engel’s own counsel asked a similar question, the district court would have sustained the objection and, most likely, admonished counsel. As a result, the district court’s action violated Engel’s Sixth Amendment right.

The District Court’s Error Was Not Cured by Permitting the Defendant to Present Argument

This violation was not cured by the fact that the termination of Engel’s right to represent himself was only for a limited time. The Sixth Amendment right to self-representation ‘applies at all critical stages’ of a criminal prosecution. United States v. Rice, 776 F.3d 1021, 1024 (9th Cir. 2015). George, the standby counsel appointed to represent Engel, cross-examined several of the government’s witnesses. The cross-examination of the prosecution’s witnesses at trial is clearly a critical stage. See United States v. Yamashiro, 788 F.3d 1231, 1234–35 (9th Cir. 2015) (‘A critical stage is any stage of a criminal proceeding where substantial rights of a criminal accused may be affected.’ (internal quotation marks omitted)). Thus, even though the district court reinstated Engel’s right to represent himself before closing arguments, Engel was precluded from cross-examining government witnesses, violating the Sixth Amendment.

Sympathy for the District Judge

We are sympathetic to the situation the district court faced. The risk of declaring a mistrial after twenty-one days of trial in a high-profile case with six co-defendants is a risk that ought to be avoided. But the Sixth Amendment guarantees a defendant’s right to represent himself. And that right can be revoked only when the defendant exhibits clearly defiant or obstructionist misconduct. Engel’s conduct here falls far short of that standard.

The Holding and the Result of the Case

We conclude that the district court’s termination of Engel’s right to represent himself violated the Sixth Amendment. A violation of a defendant’s Sixth Amendment right to self-representation is structural error. See Wiggins, 465 U.S. at 177–79 & n.8, 104 S.Ct. 944; Rice, 776 F.3d at 1025 (‘The Supreme Court has found denial of the right of self-representation to be structural error because it deprives a defendant a fair chance to present his case in his own way.’ (internal quotation marks omitted)). Thus, we must vacate Engel’s criminal conviction and remand for a new trial.

Vacated and remanded.

My Thoughts

  • There are no Fifth Circuit cases after Weast on this issue.
  • From what I have seen over the years, the right to self-representation is most often the right to a speedy verdict of guilty.

The Federal Corner: Beware of Your Friends in the Courthouse Who Can Help Jurors Convict Your Client


On May 1, 2020, a panel of the United States Court of Appeals for the Fifth Circuit held that District Judge Amos L. Mazzant of the Eastern District of Texas, did not abuse his discretion in failing to hold an evidentiary hearing before granting the defendant’s motion for new trial; and, that the new trial was warranted.  United States v. Jordan, 958 F.3d 331 (5th Cir. 2020) [Panel:  Circuit Judges Elrod, Southwick and Haynes.  (Opinion by Elrod)] This case was concerned with whether the comments of a Court Security Officer (CSO) had influenced a juror in arriving at her verdict.  What makes the case unique is that Judge Mazzant’s three law clerks became, in essence, witnesses for the defendant.

Judge Elrod’s opinion reads, in part, as follows:

The Background of the Case

The Government charged Laura and Mark Jordan with conspiracy, honest services wire fraud, and bribery involving a federal program. The charges concerned Laura Jordan’s 2013–2015 tenure as mayor of Richardson, Texas. During that time, according to the Government, she accepted gifts and favors from real estate developer Mark Jordan in exchange for favorable votes on city rezoning measures. The two eventually married.

The charges were filed in 2018, and trial began in February 2019. Soon after deliberations started, the jury sent the district court the following note: ‘[Juror] No. 11 is very upset and feels they can’t continue. What can we do? She’s asking to be excused and can’t vote.’ The district court suggested that it conduct an ex parte interview with Juror #11 to discover what the issue was, and the parties agreed. In the interview, Juror #11 stated that she wanted to be excused because ‘[i]t [wa]s making [her] sick to [her] stomach to convict them and [she] just can’t.’ She also stated that sticking to her guns would produce ‘a hung jury.’ The district court responded with the following:

That’s a vote, so that—so what I’m saying is I’m not encouraging you one way or another, because what would happen is—well, you can’t worry about the consequences. Every juror should re-examine their own views is what I say in the charge, and if you have a firmly held conviction, whatever that conviction is, that’s up to you to decide. You have to make your own decision.

After the meeting was over, the district court relayed its essence to the parties in general terms. The Government asked that Juror #11 be excused, but the district court—in a second ex parte meeting—informed Juror #11 that it had decided not to excuse her. It reiterated to Juror #11 that ‘whatever your convictions are, those are your convictions, and each juror makes their own decision about what the evidence is and what the verdict should be, and so that’s up to you. Every juror is entitled to their opinion about the evidence and the result.’ A few hours later, the jury reached a verdict of guilty on almost every count.

The next day, at a detention hearing, the district judge had some troubling news for the parties. He told them that he had learned about a conversation that had taken place the previous afternoon—shortly after the verdict was rendered—between his law clerks and a Court Security Officer (CSO). According to the law clerks, the CSO had stated that he had spoken to a juror regarding the case about ‘30 to 45 minutes’ before the verdict was rendered. During a teleconference held the following week, the district judge also relayed that he had learned from his law clerks that the juror the CSO had spoken to was Juror #11. The Government asked whether the district court was intending to ‘hold any kind of hearing or get testimony from the juror,’ to which the district court responded that ‘that is fine in terms of the [CSO]’ but that it was ‘not going to subject [jurors] to examination on the witness stand.’ The district judge also noted that his law clerks had prepared a written memo detailing their recollections of the conversation.

A few days after the teleconference, the Government emailed the district court to ‘propose[ that] the Court instruct the CSO to answer targeted interrogatories about what precisely … the CSO said to any juror.’ The same day, the district court filed the law clerk memo under seal. Law Clerk #1 reported that

[The CSO] indicated that while the jurors were on a break from deliberations, he observed [Juror #11] was particularly upset and even crying. He relayed to me and my fellow law clerks that he told her to put her emotions aside and to determine the outcome of the case without regard to emotions or the possible sentence in the case reminding her that her job was to determine whether the defendants were guilty or not guilty. He then indicated that the jury reached a verdict in this case within about 30-45 minutes of this conversation. (emphasis added)

Law Clerk #2 reported that the CSO ‘stated that he told this juror that she should vote based on her conscience without regard to the punishment that may be imposed on the Defendants.’ Law Clerk #2 added that

The next morning, Officer Collins told me that, when asked to confirm her decision before the Court, a juror had intended to state that her decision was made ‘with reservation.’ Officer Collins stated that the juror could not say that her decision was made ‘with reservation’ because her response would not be believed. I do not know if this was Officer Collins’ commentary to me on the matter or whether he told the juror this. He did tell the juror, however, that she should vote her conscience and that if she did not believe the defendants were guilty, she should vote not guilty. He also told her that she should not be concerned about any punishment the defendants may receive.

The identity of this latter juror is unknown. (emphasis added)

Law clerk #3 reported that

Officer Collins stated … that he told the juror(s) they needed to set their emotion aside and determine whether the Defendants committed the crimes or not. Officer Collins continued, stating he told the juror(s) that if they thought the Defendants committed the crimes, they should find the Defendants guilty, and if they thought the Defendants did not commit the crimes, they should find the Defendants not guilty. (emphasis added)

The next day, the Jordans filed a motion for new trial under Federal Rule of Criminal Procedure 33. They argued that a new trial was warranted because (1) the CSO’s comments improperly influenced the jury, (2) the district court gave an improper ex parte instruction to Juror #11, and (3) Juror #11’s decision-making was influenced by poor physical and emotional health. The Government argued that ‘[alt]hough the Court can deny the motion for new trial at this stage based on the lack of competent evidence, it cannot grant the motion, at least without holding an evidentiary hearing.’

About six weeks after the motion for new trial was filed, the district court granted it without holding an evidentiary hearing. The district court rejected the Jordans’ arguments relating to its ex parte meetings and Juror #11’s health, but accepted their argument that the CSO improperly influenced the jury. Relying on the law clerk memo for the substance of the CSO’s comments, the district court ruled that those comments contaminated jury deliberations to the point that the Jordans were denied their Sixth Amendment right to a fair trial.

The Government appeals.

The Court’s Standard of Review

‘We review only for abuse of discretion a court’s handling of complaints of outside influence on the jury.’ United States v. Mix, 791 F.3d 603, 608 (5th Cir. 2015) (quoting United States v. Smith, 354 F.3d 390, 394 (5th Cir. 2003)). ‘We review a district court’s grant of a new trial under Federal Rule of Criminal Procedure 33 using the same abuse-of-discretion standard.’ Id.

The Defendant’s and the Government’s Burdens of Proof

‘To be entitled to a new trial based on an extrinsic influence on the jury, a defendant must first show that the extrinsic influence likely caused prejudice.’ Id. ‘The government then bears the burden of proving the lack of prejudice.’ Id. ‘The government can do so by showing there is “no reasonable possibility that the jury’s verdict was influenced by the extrinsic evidence.”’ Id. (quoting United States v. Davis, 393 F.3d 540, 549 (5th Cir. 2004)).

The Government’s Argument Concerning the District Court’s
Failure to Hold an Evidentiary Hearing and the Court’s Response

The Government argues that the district court abused its discretion by granting the motion for new trial without holding an evidentiary hearing. We conclude that the district court’s decision falls within its broad discretion in these matters.

 The Government’s first argument is that our precedent creates a ‘bright-line rule’ that, when a district court is confronted with credible allegations of outside influence on a jury, it must hold an evidentiary hearing.

The Government cannot cite a single case in which we vacated a district court’s grant of new trial for failure to hold a hearing. The quartet of cases it does cite for its alleged ‘bright-line rule’—in only one of which we actually remanded for a hearing at all—were cases in which the district court declined to grant a new trial.

Thus, to the extent there is any ‘bright-line rule’ applicable to allegations of outside influence on the jury, it is not one applicable to this case.

We analyze the district court’s exercise of its broad discretion not to hold a hearing in an outside-influence case only to ensure that the district court permissibly balanced the costs, benefits, and interests at stake.

In the unique circumstances of this case, the district court did not abuse its discretion by determining that the additional benefits of a hearing were too slim to overcome the ‘unnecessary attention’ and disruption a hearing would inject into this ‘high-profile case,’ given that it already had ‘sufficient’ documentation of outside influence to warrant a new trial. As the district court noted, the law clerks ‘have no personal interest in this case’ and ‘prepared the [memo] shortly after the events in question,’ adding to its reliability. Moreover, the district court made the memo available on the docket for the parties’ reference in briefing the motion for new trial.

In sum, the district court did not abuse its discretion in exercising its prerogative, ‘within broadly defined parameters, to handle [the allegation of outside influence] in the least disruptive manner possible’ in this unusual case.

The Government’s Argument Concerning the District Court’s
Granting a New Trial and the Court’s Response

The Government’s final argument is that, even fully crediting the law clerk memo, the CSO’s statements did not merit a new trial because they were ‘innocuous, defense-friendly, and duplicative of the district court’s own instructions.’

We conclude that the district court did not abuse its discretion in granting a new trial in this case. In urging Juror #11—whose comments to the district court evinced her great distress at the prospect of conviction—to vote ‘without regard to the punishment that may be imposed,’ the CSO arguably conveyed a preference for a guilty verdict. The same goes for the CSO’s similar comment to the unidentified juror when that juror voiced an intention to vote ‘with reservation.’ Worse, the CSO’s statement that the jury should return a guilty verdict ‘if they thought the Defendants committed the crimes’ can be reasonably understood as urging a standard for conviction that is lower than the correct one, which ‘requires proof beyond a reasonable doubt.’ United States v. Fields, 932 F.3d 316, 321 (5th Cir. 2019). Finally, the CSO’s ‘official character … as an officer of the court’ gave his comments a veneer of authority that could have ‘carrie[d] great weight with a jury.’ Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966).

‘District judges have considerable discretion with respect to Rule 33 motions.’ United States v. Simmons, 714 F.2d 29, 31 (5th Cir. 1983). The district court permissibly concluded that this evidence showed a sufficient likelihood of prejudice to shift the burden to the Government, and further that the Government did not (and could not) show ‘no reasonable possibility that the jury’s verdict was influenced by’ the CSO’s comments. Mix, 791 F.3d at 608 (quoting Davis, 393 F.3d at 549).

For the reasons stated, the district court’s order granting a new trial is affirmed.

My Thoughts

  • Anyone who has spent any time in a federal courthouse knows that there is a closeness between a judge and the members of the judge’s staff.  There was simply no possibility that Judge Mazzant was going to ignore or give little weight to the statements of his law clerks.
  • We have all been concerned about how the verbal or non-verbal communications of court personnel could influence a jury – to our client’s detriment.  Judge Glenn Phillips of the 241st District Court in Tyler had a court coordinator who was never without one item of jewelry:  A gold necklace with a small hangman’s noose on it that had been a present from her husband, a Tyler Police lieutenant.  When it was necessary for her to be in the courtroom during a trial or to accompany jurors to a meal outside of the courthouse, I had a standard oral motion that I would present to the court requesting that Judge Phillips direct her to turn the necklace around in order that the jurors could not see the noose.  The motion was always granted.

Federal Corner: Officer Snerd, Could You Run Something For Me On Your Computer?


Ten times each year, I have the fun of deciding what the topic will be for the next “Federal Corner.” The answer will almost always be found from WestLaw research, articles in the New York Times, something from the internet, a suggestion from another TCDLA member, or in the grants of certiorari by the Supreme Court.

This time, I had a two-fer: Certiorari was granted in Van Buren v. United States1 and TCDLA member and State Bar President-Elect Larry McDougal commented on this case in a Facebook post. Since Larry, in an earlier life, was a police officer – like Van Buren – it is not surprising that he is interested in this case.

A federal grand jury had charged Van Buren with violations of 18 U.S.C. §§ 3343 and 1346 (honest-services wire fraud) and 18 U.S.C. § 1030 (felony computer fraud). After a jury trial before United States Senior District Judge Orinda D. Evans of the Northern District of Georgia, Van Buren was convicted of each count in the indictment. He then gave notice of appeal. [Note: The opinion does not reflect the sentence imposed.]

As to the honest-services wire fraud count, a panel of the United States Court of Appeals for the Eleventh Circuit vacated Van Buren’s conviction and remanded the case for a new trial because of the district court’s failure to instruct the jury properly as to that count; however, the Court held that the evidence against Van Buren was sufficient to support his felony conviction for violating the Computer Fraud and Abuse Act.2

In order to understand the case, it is important to begin with the facts as they are set out in Judge Rosenbaum’s opinion:

The Facts of the Case

Nathan Van Buren was a sergeant with the Cumming, Georgia, Police Department. In his capacity as a police officer, Van Buren came to know a man named Andrew Albo. Albo was a recent widower in his early sixties, who allegedly fancied younger women, including minors and prostitutes. He allegedly paid prostitutes to spend time with him and then often accused the women of stealing the money he gave them. At least one woman also alleged Albo surreptitiously recorded and harassed her. The Deputy Chief of Police in the Cumming Police Department believed that Albo ‘had a mental health condition’ and considered Albo to be ‘very volatile,’ so he warned his officers to ‘be careful’ with Albo.

Van Buren did not heed the Deputy Chief’s caveat. Instead, he fostered a relationship with Albo. Van Buren, who first met Albo when he helped arrest Albo for providing alcohol to a minor, often handled the disputes between Albo and various women. At the time, Van Buren was grappling with financial difficulties, and Van Buren saw in Albo a chance to improve his situation. So Van Buren decided to ask Albo for a loan. To justify his request, Van Buren falsely claimed he needed $15,368 to settle his son’s medical bills. He explained to Albo that he could not obtain a loan from a bank because he had shoddy credit.

Unbeknownst to Van Buren, however, Albo recorded their conversations. Albo presented the recording of Van Buren’s loan solicitation to a detective in the Forsyth County Sheriff’s Office. He told the detective that Van Buren was ‘shak[ing] him down for his money.’ Albo’s complaint drew the suspicion of the FBI, which created a sting operation to test how far Van Buren was willing to go for money. Under the plan, Albo was to give Van Buren some cash, and in exchange, Albo was to ask Van Buren to tell him whether Carson, a woman he supposedly met at a strip club, was an undercover police officer.

Over a series of meetings and communications monitored and recorded by the FBI, Albo put the plan into action. At lunch with Van Buren on August 21, 2015, Albo handed Van Buren an envelope with $5,000, telling him that this was ‘not the whole thing.’ Van Buren offered to pay Albo back, but Albo waved that off, saying money was ‘not the issue.’ Instead, Albo told Van Buren he had met a woman he liked at a strip club, but he needed to know if she was an undercover officer before he would pursue her further. Van Buren agreed to help.

On August 31, Albo followed up on a previous discussion the pair had had about searching the woman’s license plate in the police database. During that conversation, Albo asked Van Buren whether he had had a chance to conduct the search yet. Van Buren replied, ‘As far as running the plates, I don’t—I don’t think I got the right plate numbers from you.’ Van Buren then told Albo to just text him the plate number, so Albo texted Van Buren ‘Pkp’ and ‘1568,’ a fake license plate number created by the FBI. Van Buren responded that he would look into the matter, but he would need the ‘item’ first. Albo replied that he had ‘2,’ and the pair scheduled to meet for lunch.

At lunch, Albo passed Van Buren an envelope containing $1,000 and apologized that he did not have $2,000, as they had discussed. Van Buren asked Albo for the woman’s name, explaining that ‘the car may not [be] registered to her.’ After learning that her name was Carson, Van Buren promised to attend to the matter promptly, and Albo responded, ‘then I will have all the money for you.’

A few days later, on September 2, 2015, Van Buren searched for license-plate number PKP1568 in the Georgia Crime Information Center (‘GCIC’) database, an official government database maintained by the Georgia Bureau of Investigation (‘GBI’) and connected to the National Crime Information Center (‘NCIC’) maintained by the FBI. Van Buren then texted Albo to tell him he had information for him.

The next day, the FBI and GBI arrived at Van Buren’s doorstep and conducted an interview with Van Buren. During the interview, Van Buren admitted he had concocted a fake story about his son’s need for surgery to justify asking Albo for $15,000. He also conceded he had received a total of $6,000 from Albo. In addition, Van Buren confessed he had run a tag search for Albo and he knew doing so was ‘wrong.’ And while Van Buren asserted that $5,000 of the money he received from Albo was a ‘gift,’ he did reply ‘I mean he gave me $1,000’ when asked if he received anything in exchange for running the tag. Finally, Van Buren conceded he understood the purpose of running the tag was to discover and reveal to Albo whether Carson was an undercover officer.

As to the computer fraud count, Judge Rosenbaum’s opinion reads as follows:

The Challenge to the Sufficiency of the Evidence

We next consider Van Buren’s contention that the evidence did not sufficiently support his conviction for computer fraud. Although styled as a sufficiency-of-the-evidence challenge, the animating force behind this argument is an appeal to overrule United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010), where we held that even a person with authority to access a computer can be guilty of computer fraud if that person subsequently misuses the computer.

United States v. Rodriguez

Rodriguez, the defendant in that case, was a Social Security Administration (‘SSA’) employee who, for personal reasons, used the SSA’s computer database to research information such as birth dates and home addresses of 17 people. Rodriguez, 628 F.3d at 1260. This violated SSA policy, which prohibited employees from obtaining information from SSA databases without a legitimate business reason. Id. Rodriguez was convicted of computer fraud.

Van Buren’s Argument on the Computer Fraud Statute

On appeal, though, he argued he was innocent because ‘he accessed only databases that he was authorized to use,’ albeit for inappropriate reasons. Id. at 1263. We rejected that argument. We noted that the computer-fraud statute defines ‘exceeds authorized access,’ as ‘to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled [so] to obtain or alter.’ Id. at 1263 (quoting § 1030(e)(6)). Then we determined that the defendant had ‘exceeded his authorized access and violated the [computer-fraud statute] when he obtained [the victims’] personal information for a nonbusiness reason.’ Id. (emphasis added).

Van Buren Relies on Second and Ninth Circuit Cases That Criticize Rodriguez

Van Buren points out that our sister circuits have criticized Rodriguez’s interpretation of ‘exceeds authorized access,’ since it purportedly allows employers or other parties to legislate what counts as criminal behavior through their internal policies or their terms of use. Echoing the defendant’s argument in Rodriguez, Van Buren alleges that he is innocent of computer fraud because he accessed only databases that he was authorized to use, even though he did so for an inappropriate reason.

The Court Acknowledges Nosal and Valle

We acknowledge that other courts have rejected Rodriguez’s interpretation of ‘exceeds authorized access.’ See, e.g., United States v. Nosal, 676 F.3d 854, 860 (9th Cir. 2012) (en banc) (noting that activities like ‘[Google]-chatting with friends, playing games, shopping or watching sports highlights’ on a work computer are routinely prohibited by computer-use policies, and worrying that ‘under the broad interpretation of the [computer-fraud statute], such minor dalliances would become federal crimes’); United States v. Valle, 807 F.3d 508, 528 (2d Cir. 2015) (‘While the Government might promise that it would not prosecute an individual for checking Facebook at work, we are not at liberty to take prosecutors at their word in such matters.’).

The Eleventh Circuit’s Prior Precedent Rule

But under our prior-precedent rule, ‘a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc’ Archer, 531 F.3d at 1352. Since Van Buren has identified no Supreme Court or en banc decision of this Circuit that abrogates Rodriguez, we must continue to follow it.

Under Rodriguez, the Evidence Was Sufficient for the Jury to Convict the Defendant

And under Rodriguez, there is no question that the record contained enough evidence for a jury to convict Van Buren of computer fraud. The evidence showed that Van Buren accepted $6,000 and agreed to investigate Carson. It demonstrated that Van Buren searched what was supposed to be Carson’s tag in the GCIC database. At trial, one of the assistant deputy directors of the GCIC testified that the database is supposed to be used for law-enforcement purposes only and that officers are trained on the proper and improper uses of the system. Van Buren also admitted to the FBI and GBI that he knew it was ‘wrong’ to run the tag search and that he had done so for money. And as we have noted, Rodriguez previously rejected the contention that misusing databases a defendant lawfully can access does not constitute computer fraud. Taken in the light most favorable to the verdict, under our binding Circuit precedent, a jury could have found beyond a reasonable doubt that Van Buren committed computer fraud for financial gain.


Vacated and remanded in part; affirmed in part.

My Thoughts

  • Computer fraud is a misdemeanor unless, among other things, it is committed for private financial gain.3
  • I did not find a Fifth Circuit case directly on point.
  • The Supreme Court granted the Petition for Certiorari in Van Buren very quickly. The Eleventh Circuit opinion was handed down on October 10, 2019, and certiorari was granted on April 20, 2020.
  • Law enforcement officers should be concerned about how the Supreme Court decides Van Buren. Their opinion should clarify the federal consequences of – for example – running a license plate for a friend who is interested in the attractive lady who was driving the Porsche or the criminal history of a young man who is dating the daughter of a friend.
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