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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.

Federal Corner: Grand Jury Secrecy in the Eleventh and D.C. Circuits


For six years, the United States Court of Appeals for the Eleventh Circuit was concerned with the Pitch trilogy of cases.  The published opinions in these cases, with headnotes, are 99 pages in length.  For this reason, the excerpts from these cases will be quite abbreviated.

In Pitch I1, United States District Judge Marc T. Treadwell of the Middle District of Georgia, Macon Division, relying on Eleventh Circuit authority (Hastings), held that district courts have the inherent authority to order disclosure of grand jury records.     

In Pitch II2, a divided panel of the Eleventh Circuit held that Judge Treadwell did not abuse his discretion in finding that disclosure, under the court’s inherent authority, was warranted and affirmed the judgment. 

In Pitch III3, after a rehearing en banc, the United States Court of Appeals for the Eleventh Circuit held that district courts lack inherent, supervisory power to authorize the disclosure of grand jury records outside of Fed.R.Crim.Proc. 6(e)’s enumerated exceptions, overruling In Re Petition to Inspect and Copy Grand Jury Materials (Hastings), 735 F.2d 1261 (11th Cir. 1984), and reversed the judgment of the district court. 

This ended the Pitch trilogy of cases.


Judge Treadwell’s order that the transcripts were to be disclosed in their entirety reads, in part, as follows:

The Background of the Case

Pitch is a historian researching the July 25, 1946 murder of four African–Americans in Walton County, Georgia. The incident is commonly known as the Moore’s Ford lynching. The victims, two married couples, were dragged from a car, tied to a tree, and shot multiple times. According to most accounts, a crowd of some considerable size was present. The murders occurred shortly after the racially charged 1946 Democratic Party gubernatorial primary election, the first Democratic primary in Georgia in which black citizens were allowed to vote. In that election, former Governor Eugene Talmadge lost the popular vote to progressive James V. Carmichael but crushed Carmichael in the county unit vote.  Some believe the murders were directly related to that election.

President Truman ordered the Federal Bureau of Investigation to investigate the murders, and on December 3, 1946, District Court Judge T. Hoyt Davis convened a grand jury. According to one account, the FBI interviewed 2,790 people and the grand jury subpoenaed 106 witnesses. Laura Wexler, Fire in a Canebreak: The Last Mass Lynching in America 190 (2003). Notwithstanding the breadth of the investigation and the presence of a number of witnesses, no one identified any of the participants, and no indictments for the murders were returned. The case remains unsolved.

On February 3, 2014, Pitch petitioned this Court for an order unsealing the grand jury transcripts. Doc. 1. This Court denied the petition without prejudice on August 19, 2014 because, at the time, there was no evidence any records existed. Doc. 7 at 3. The assumption then was the records had been routinely destroyed or were somehow lost. On January 17, 2017, Pitch renewed his motion, claiming that his investigation had revealed the records were at the National Archives and Records Administration in Washington, D.C. Docs. 8 at 7, 10. That same day, the Court ordered the Department of Justice to produce the records for in camera inspection. Doc. 9. The Government then confirmed that transcripts, but no other records, had been found and filed copies under seal. Docs. 14; 16. Relying on Fed. R. Crim. P. 6(e), the Government now maintains that the records must remain sealed.

* * *

The Circuit Authority (Hastings) for the Granting of Pitch’s Petition

… it has long been recognized that a district court’s authority to order disclosure of grand jury records is not limited to the exceptions found in Rule 6(e). In this circuit, the most comprehensive discussion of the inherent authority of district courts to order disclosure of grand jury records is found in In re Petition to Inspect and Copy Grand Jury Materials (Hastings), 735 F.2d 1261 (11th Cir. 1984). In Hastings, a judicial investigating committee sought records of a grand jury that had returned an indictment against a federal district court judge. Id. at 1263–65. The judge, who had been acquitted of the charges in the indictment, opposed disclosure of the records. Id. at 1264. He argued, among other things, that Rule 6(e) ‘is the controlling source of law in this area and that none of its stated exceptions to the rule of secrecy’ allowed the judicial investigating committee access to the records. Id. at 1267. The district court disagreed, reasoning that Rule 6(e) did not provide ‘the exclusive framework’ within which a district court could exercise its discretion to release grand jury records. Id. Relying on the court’s ‘general supervisory authority over grand jury proceedings,’ the district court ordered the disclosure of the grand jury records. Id. at 1267–68. The Eleventh Circuit affirmed, holding that the district court’s conclusion ‘that it had inherent power beyond the literal wording of Rule 6(e) is amply supported.’ Id. at 1268. To reach this conclusion, the Eleventh Circuit carefully examined the history of Rule 6(e). Noting that the Supreme Court had ruled that Rule 6(e) is ‘but declaratory’ of the principle that disclosure is committed to the discretion of district judges and that the Advisory Committee’s notes on Rule 6(e) acknowledge that the Rule ‘continues the traditional practice of secrecy … except when the court permits a disclosure,’ the Eleventh Circuit concluded that ‘it is certain that a court’s power to order disclosure of grand jury records is not strictly confined to instances spelled out in the rule.’ Id. at 1268 (quoting Fed. R. Crim. P. 6 advisory committee’s note to (e)). Accordingly, the court concluded that ‘the exceptions permitting disclosure were not intended to ossify the law, but rather are subject to development by the courts in conformance with the rule’s general rule of secrecy.’ Id. at 1269.

* * *


… the Court finds that Pitch has established exceptional circumstances consonant with the policy and spirit of Rule 6(e). The reasons behind the traditional rule of grand jury secrecy, and thus the policy undergirding Rule 6(e), are no longer implicated. … Indeed, it is difficult to imagine a more suitable case for the application of a historical exception to the rule of grand jury secrecy; of the cases applying the historical exception, none has involved events that took place over 70 years before the disclosure was ordered. Accordingly, the Court finds that Pitch has established exceptional circumstances that warrant the exercise of the Court’s inherent authority to order disclosure.

The government appealed Judge Treadwell’s order. 


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


‘We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings,’ but ‘a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion.’ Douglas Oil, 441 U.S. at 218, 99 S.Ct. at 1672. Given our binding decision in Hastings, and the truly ‘exceptional circumstances’ presented by the Moore’s Ford Lynching, we cannot say that the district court abused its substantial discretion in ordering the release of the grand jury transcripts. The judgment of the district court is affirmed.

The government moved for en banc review.


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

En Banc Review and Other Questions Presented

We voted to rehear the case en banc to determine whether we should overrule our holding in Hastings—that district courts have inherent power to go beyond the exceptions listed in Rule 6(e) to order the disclosure of grand jury records—and, if not, whether a district court may exercise its inherent power to recognize a historical-significance exception to the general rule of grand jury secrecy.

* * *

The questions before us implicate the long-established policy that grand jury proceedings in federal courts should be kept secret. … The Supreme Court has long ‘recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.’ Douglas Oil, 441 U.S. at 218, 99 S. Ct. at 1672 (citing Procter & Gamble, 356 U.S. at 681, 78 S. Ct. at 986).

* * *

Fed. R. Crim. Proc. 6(e)

Rule 6(e) codified the traditional rule of grand jury secrecy. Id. Since its promulgation in 1946, Rule 6(e) has governed the disclosure of grand jury records. Illinois v. Abbott & Assocs., 460 U.S. 557, 566, 103 S. Ct. 1356, 1361, 75 L.Ed.2d 281 (1983).

* * *

Hastings and the Cases That Followed

Since we first interpreted 6(e) in Hastings, several other circuits have considered whether district courts may authorize the disclosure of grand jury records outside the circumstances listed in that rule. Some agree with Pitch and so have held, like we did in Hastings, that district courts may invoke their inherent, supervisory authority over the grand jury to permit the disclosure of grand jury records outside the text of Rule 6€. See Carlson, 837 F.3d at 763–66; In re Petition of Craig, 131 F.3d at 103; see also McKeever v. Barr, 920 F.3d 842, 853–55 (D.C. Cir. 2019) (Srinivasan, J., dissenting), cert. denied, ––– U.S. ––––, 140 S. Ct. 597, ––– L.Ed.2d –––– (2020); cf. In re Grand Jury Proceedings, 417 F.3d 18, 26 (1st Cir. 2005) (holding that a district court may exercise its inherent judicial power to impose an obligation of secrecy on a grand jury witness, even though witnesses are not covered by Rule 6€(2)(B)’s secrecy requirement). Other circuits have refused to authorize the disclosure of grand jury records outside of Rule 6€’s stated exceptions to the general rule of secrecy, finding those exceptions to be exhaustive. See McKeever, 920 F.3d at 845; United States v. McDougal, 559 F.3d 837, 840–41 (8th Cir. 2009).

* * *

In re Grand Jury 89-4-72, 932 F.2d 481, 488 (6th Cir. 1991) (‘[W]ithout an unambiguous statement to the contrary from Congress, we cannot, and must not, breach grand jury secrecy for any purpose other than those embodied by the Rule.’); see also Carlson, 837 F.3d at 767–68 (Sykes, J., dissenting).

The Court Rejects Hastings

We now depart from our analysis in Hastings, and join the Sixth, Eighth, and District of Columbia Circuits in their interpretation of Rule 6(e). disagree with Pitch that Rule 6(e) is merely a permissive rule—’a rule that permits a court to do something and does not include any limiting language.’ Carlson, 837 F.3d at 763. …Rule 6(e) provides an exhaustive list of detailed circumstances in which a district court may authorize disclosure. It lays out a general rule of secrecy followed by a set of carefully considered exceptions that limit the district court’s authority to disclose the records of a grand jury’s proceedings. The rule thus leaves no room for district courts to fashion new exceptions beyond those listed in Rule 6(e). We therefore hold that Rule 6(e) by its plain terms limits disclosures of grand jury materials to the circumstances enumerated therein. (emphasis added)

* * *

The Exceptions to the Rule of Nondisclosure

Rule 6(e)(3) … lays out a set of five detailed ‘[e]xceptions’ to this general rule of nondisclosure. Fed. R. Crim. P. 6(e)(3).

* * *

The text and structure of Rule 6(e) thus indicate that the rule is not merely permissive. Rather, it imposes a general rule of nondisclosure, then instructs that deviations from that rule are not permitted ‘[u]nless these rules provide otherwise,’ and then provides a detailed list of exceptions that specifies precisely when the rules ‘provide otherwise.’

‘Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.’ Andrus v. Glover Constr. Co., 446 U.S. 608, 616–17, 100 S. Ct. 1905, 1910, 64 L.Ed.2d 548 (1980). We find nothing in the text of Rule 6(e) to indicate an intent to permit a district court to go beyond the enumerated exceptions.

* * *

The Eleventh Circuit’s Interpretation of Rule 6(e)

Our interpretation of Rule 6(e) as exhaustive is consistent with the Supreme Court’s warning that we must be reluctant to conclude that a breach of grand jury secrecy has been authorized in the absence of a clear indication in a Rule or statute. Sells Eng’g, 463 U.S. at 425, 103 S. Ct. at 3138; see also Abbott & Assocs., 460 U.S. at 572–73, 103 S. Ct. at 1364.

* * *

The Supreme Court Has Not Yet Addressed the Question

Indeed, while the Supreme Court has not yet addressed the question, the Court has on several occasions suggested that Rule 6(e) is exclusive. See McKeever, 920 F.3d at 846 (collecting cases). More recently, the Supreme Court described Rule 6(e) as ‘placing strict controls on disclosure of “matters occurring before the grand jury.”’ Williams, 504 U.S. at 46 n.6, 112 S. Ct. at 1741–42 n.6 (citing Sells Eng’g, 463 U.S. 418, 103 S. Ct. 3133, 77 L.Ed.2d 743). (emphasis added)

* * *

Rule 6(e) Limits Disclosure

For these reasons, we find that the text of Rule 6(e) is best understood as limiting the disclosure of grand jury materials to the circumstances carefully defined in Rule 6(e)(3)(E). We therefore agree with the Government that Rule 6(e)(3)(E)’s list of exceptions to the general rule of grand jury secrecy is exclusive, and that district courts may not rely on their inherent, supervisory power to authorize disclosure of grand jury materials outside the bounds of that rule. To the extent that we held in Hastings that such inherent power does exist, that holding is overruled.

* * *

Rule 6(e) Is Exhaustive

For the foregoing reasons, we hold that Rule 6(e) is exhaustive. District courts may only authorize the disclosure of grand jury materials if one of the five exceptions listed in Rule 6(e)(3)(E) applies; they do not possess the inherent, supervisory power to order the release of grand jury records in instances not covered by the rule. We therefore overrule our holding in Hastings that district courts have inherent power to authorize the release of grand jury materials outside the confines of Rule 6(e).


My Thoughts

  • At the same time that the Pitch trilogy was making its way through the courts of the Eleventh Circuit, McKeever was doing the same in the D.C. Circuit.  McKeever was a writer who, like Pitch, wanted to review grand jury records in the course of his researching for a book that he was writing.  These records had to do with a 1957 indictment of a former agent of the Federal Bureau of Investigation. 
  • The district court denied his request for the release of these records and McKeever appealed.  The United States Court of Appeals for the D.C. Circuit affirmed.4  McKeever filed his petition for writ of certiorari to the United States Court of Appeals for the D. C. Circuit.  On January 21, 2020, the petition for writ of certiorari was denied.5  So, it is accurate to say that the Supreme Court has not considered the question; however, the Justices of the Court had the opportunity to do so.
  • I have no doubt that the United States Court of Appeals for the Fifth Circuit would follow the lead of the Eleventh and D. C. Circuits if presented with a Fed.R.Crim.Proc. 6(e) issue.

Federal Corner: The Outrageous Government Conduct Defense


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

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

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

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

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

The Factual Background

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

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

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

* * *

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

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

 * * *

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

* * *

The Procedural Background

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

* * *

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

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

* * *

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

* * *

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

* * *

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

* * *

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

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

 * * *

The Standard of Review

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

* * *

The Additional Legal Background

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

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

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

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

* * *

The Court’s Analysis

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

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

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

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

* * *


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

My Thoughts

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

Federal Corner: Medical Marijuana and Supervised Release

[Note:  Mea Culpa.  If you thought that my last column – “Fingerprints, Thumbprints and Compelled Biometric Scans to Unlock Encrypted Devices” — was confusing, you were correct.  We unintentionally sent in what was supposed to run in the VOICE along with an earlier draft of the introduction to the column.  So, what you had was, at best, redundant.  The fault lies with me and not with our editor or TDCLA’s staff who are absolutely wonderful to work with.]

More than twenty years ago, I was aware of a conspiracy to obtain and distribute marijuana here in Tyler, Texas.  This is what happened.  Susie had terminal cancer and all the pain that went with it.  Only marijuana could give her any relief.  I had a client who had been an informant for the FBI for more than a dozen years.  With their knowledge, he would purchase marijuana and give it to one of the agents who supervised him.  The marijuana would then go to a former assistant United States attorney who would pass it on to Susie’s husband.  Then Susie could have her “medical marijuana.”  It was not long before Susie died, but, for those last months, she did not have the pain that had been so terrible for her.

In 2015, the Texas legislature authorized prescriptions of low-THC cannabis for patients who were diagnosed with epilepsy; a seizure disorder; multiple sclerosis; spasticity; amyotrophic lateral sclerosis; autism; terminal cancer or an incurable neurodegenerative disease.1

In June, 2019, Governor Abbott signed a bill into law that expanded who can have access to medical marijuana products in Texas.  Effective immediately, specialty doctors can now prescribe medical marijuana to treat multiple sclerosis; Parkinson’s disease; ALS; terminal cancer; autism; and many kinds of seizure disorders.2

So, you ask, why are we talking about medical marijuana?  Because, eventually, we are going to have a much broader medical marijuana statute or series of statutes.  More Texans will be able to take advantage of medical marijuana – and some of them will wind up as defendants in federal criminal cases and be on supervised release.  And then they will be denied the benefits of the Texas medical marijuana statutes.

In Gonzales v. Raich,3 users and growers of marijuana for medical purposes under California’s Compassionate Use Act sought to declare the Controlled Substances Act (CSA), as applied to them, was unconstitutional.  Justice Stevens, writing for the Court, held that the application of CSA provisions criminalizing manufacture, distribution, or possession of marijuana to intrastate growers and users of marijuana for medical purposes did not violate the Commerce Clause.

United States v. Kelly4 is the latest case to discuss this issue. The opinion of United States Magistrate Judge Jay McCarthy reads, as follows:

Decision and Order

May an individual facing federal criminal charges use marijuana for medical purposes, provided that such use is legal under state law? For the following reasons, the answer is no.


Defendant is charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Indictment.  On October 26, 2018, I ordered him to be released from custody subject to various conditions, including that he ‘shall not commit any offense in violation of federal, state or local law while on release,’ and that he ‘submit to any method of testing required by the pretrial services office for determining whether he is using a prohibited substance.’ Order Setting Conditions of Release [4], §§(1), (8)(s).

On October 10, 2019, defendant provided the pretrial services office with a notice of his acceptance into the medical marijuana program at Dent Neurological Institute. That office has asked me whether he may participate in this program, and defendant has asked that I rescind his drug testing condition with respect to the use of marijuana for medical purposes.

The Bail Reform Act provides that any defendant who is on pretrial release must ‘not commit a Federal, State, or local crime during the period of release.’  18 U.S.C. §§ 3142(b), (c)(1)(A). ‘Compliance with federal law is a mandatory condition’ of release.  United States v. Arizaga, 2016 WL 7974826, (S.D.N.Y. 2016). Although New York State has legalized, ‘for state law purposes, approved forms of medical marijuana dispensed and administered under certain, highly regulated conditions’ (id.), ‘[t]he possession of marijuana [remains] illegal under federal law. See 21 U.S.C. § 844(a). There is no federal exception for medical marijuana.’ Id.

While acknowledging that it ‘cannot eliminate the mandatory legal compliance condition,’ the court in Arizaga nevertheless directed its pretrial services department ‘not to charge a violation of Defendant’s release conditions based solely on New York state-approved medical marijuana use or a drug-testing result consistent with New York state-approved medical marijuana usage.’  In doing so, the court invited disobedience of its release order, thereby ‘send[ing] the wrong message to recalcitrant parties … that defiance goes unpunished.’ Rosemond v. United Airlines, Inc., 2014 WL 4245974, (E.D. Va. 2014). A court order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded,’ Coene v. 3M Co., 303 F.R.D. 32, 49 (W.D.N.Y. 2014), and ‘[i]f the courts do not take seriously their own … orders who will?.’  Arnold v. Krause, Inc., 232 F.R.D. 58, 66 (W.D.N.Y. 2004), adopted, 233 F.R.D. 126 (W.D.N.Y. 2005) (Arcara, J.).

Thus, in United States v. Pearlman, 2017 WL 7732811 (D. Conn. 2017), the court denied defendant’s request to remove the drug testing condition of his pretrial release so that he could participate in a state-sanctioned medical marijuana program. The court reasoned that ‘even if [that] Condition were removed, defendant would be barred by Condition 1, which is mandatory and not waivable, from using marijuana while on pre-trial release. Accordingly, the request made by defendant would not achieve the relief he seeks. The Court cannot, and will not, sanction the violation of federal law by a defendant on pre-trial release, even if state law and the weight of public opinion appear to contradict that federal law.’

Congress may one day decide to legalize the possession of marijuana for medical (or other) purposes. However, it has yet to do so, and ‘where, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.’  United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). See also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 736, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) (‘[t]he wisdom of Congress’s judgment … is not our concern. Our responsibility is to enforce [the statute] as written’). (emphasis added)


For these reasons, §§(1) and (8)(s) of my Order Setting Conditions of Release remain in effect.


There are no Circuit Court opinions on this issue.

In the Kelly opinion, Magistrate Judge McCarthy mentions Arizaga5 and Pearlman6. Kelly was from the United States District Court from the Western District of New York.  Arizaga was from the Southern District of New York and acknowledged the conflict between federal law and New York state law.  Pearlman was from the United States District Court for the District of Columbia and reached the same conclusion as Magistrate Judge McCarthy did in Kelly.

There are also other cases in which the defendant was prohibited from participating in a state medical marijuana program while on supervised release; e.g.,

  • United States v. Meshulam7
  • United States v. Small8
  • United States v. Bey9
  • United States v. Johnson10

My Thoughts

  • We live and breathe and have our being in the Fifth Circuit.
  • If Texas ever has a broad medical marijuana program, there is no reasonable expectation that the United States Court of Appeals for the Fifth Circuit or any district courts within the Circuit will authorize a defendant to participate in a medical marijuana program while on supervised release.

Federal Corner: Fingerprints, Thumbprints and Compelled Biometric Scans to Unlock Encrypted Devices

On November 22, 2019, United States Magistrate Judge Sunil R. Harjani of the Eastern Division of the United States District Court for the Northern District of Illinois entered an order holding that compelling the defendant to place his fingers and thumbs on his iPhone home button in an attempt to unlock the phone would not be testimonial and, therefore, would not violate the defendant’s Fifth Amendment privilege against self-incrimination. In the Matter of Search Warrant Application for Cellular Telephone in United States v. Anthony Barrera, ____F.Supp.3d ___, 2019 WL 6253812 (N.D. Ill.—Eastern Division 2019).

In his opinion, Magistrate Judge Harjani cites three other cases from his district and four from other districts in which district judges or magistrate judges have written on this same issue:

  • United States v. Warrant, 2019 WL 4047615 (N.D. Cal. 2019) [Opinion by Virginia K. Demarchi, United States Magistrate Judge] The Defendant wins.
  • In the Matter of White Google Pixel 3SL Cellphone in a Black Incipio Case, 398 F. Supp. 3d 785 (D. Idaho 2019) [Opinion by David C. Nye, Chief United States District Judge] The Government wins.
  • In the Matter of the Search of a Residence in Oakland, California, 354 F.Supp. 1010 (N.D. Cal. 2019) [Opinion by Kandis A. Westmore, United States Magistrate Judge] The Defendant wins.
  • In the Matter of the Search of [Redacted] Washington, District of Columbia, 317 F.Supp. 3d 523 (District of Columbia 2018) [Opinion by G. Michael Harvey, United States Magistrate Judge] The Government wins.
  • In the Matter of the Search Warrant Application for [Redacted Text], 279 F.Supp. 3d 800 (N.D. Ill.—Eastern Division 2017) [Opinion by Edmond E. Chang, United States District Judge] The Government wins.
  • In the Matter of the Search of: The Single-Family Home and Attached Garage, 2017 WL 4563870 (N.D. Ill.—Eastern Division 2017) [Opinion by Sheila Finnegan, United States Magistrate Judge] The Defendant wins.
  • In Re Application of a Search Warrant 236 F.Supp. 3d 1066 (N.D. Ill.—Eastern Division 2017) [Opinion by M. David Weisman, United States District Judge] The Defendant wins.

So, which judges are correct in their analysis and which are wrong? We can speculate, conjecture, and guess, but as authority, all we have are cases in which district judges and magistrate judges have come to different conclusions. It is interesting that four of these cases come out of the same division of the same judicial district, and that the judges there are split 2–2 on the issue.

Magistrate Judge Harjani’s opinion reads, in part, as follows:

[An Overview]

Consumers are more often than ever using their biometric information to unlock their smartphones and apps with a fingerprint or face scan. Likewise, the government is responding by seeking authority to compel a subject to use their biometrics to unlock devices found during the execution of a search warrant. Such a request triggers potential Fourth and Fifth Amendment considerations that are addressed herein. Because of the differing views about whether a fingerprint unlock warrant violates the Fifth Amendment among courts, and in particular in this district, the Court has issued this opinion to explain its reasoning in this novel area in granting the government’s application for a warrant. For the reasons that follow, this Court holds that compelling an individual to scan their biometrics, and in particular their fingerprints, to unlock a smartphone device neither violates the Fourth nor Fifth Amendment. Accordingly, the Court has signed and authorized the government’s warrant, including the authority to compel fingers and thumbs to be pressed on the iPhone home button in an attempt to unlock the device.

* * *

[The Background of the Case]

In the current proceeding, the government has alleged that Barrera made various online threats to this confidential informant through postings on a Snapchat account, in violation of 18 U.S.C. § 1512(b). In connection with the government’s motion to revoke Barrera’s bond conditions, District Judge Robert W. Gettlemen ordered that Barrera’s iPhone be turned over to Pretrial Services. The government seeks to search this iPhone, with a home button, that was taken from Barrera in order to develop evidence of his alleged threats. The iPhone has a fingerprint lock function (known as Touch ID), and the government asked this Court for a warrant to compel the defendant to place his fingers and thumbs on the iPhone home button in an attempt to unlock the phone. The government alleged in the affidavit in support of its request for a search warrant that it will select the fingers and thumbs to press on to the home button, and that the iPhone fingerprint unlock function will disable after five incorrect attempts. At that time, the iPhone function will demand a passcode to unlock the phone.

[The Fourth Amendment Issue]

* * *

When the government seeks to search the digital data on a cell phone, the Fourth Amendment generally requires a search warrant. Riley v. California, 573 U.S. 373, 401, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

* * *

The government’s warrant application seeks authorization for another search and seizure, the taking of Barrera’s fingerprints and thumbprints “for the purpose of attempting to unlock the device via Touch ID. . . .”

* * *

The Court’s Fourth Amendment inquiry in this case is thus straightforward: does probable cause support the search of the cell phone and the use of Barrera’s fingerprints to unlock the cell phone?

        The government’s affidavit in support of the warrant application demonstrates probable cause.

* * *

[The Fifth Amendment Issue]

More complicated is the question of whether the forced fingerprint unlock of a cell phone implicates the Fifth Amendment to the United States Constitution. Under the Fifth Amendment, the government shall not compel an individual in any criminal case to be a witness against him or herself. U.S. Const. amend. V.

* * *

[Determining Whether Communication 
Are Testimonial]

The test to determine whether communications or communicative acts are privileged under the Fifth Amendment is whether they are “testimonial, incriminating, and compelled.” Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 603 (7th Cir. 2019) (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)); see also Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) (Fifth Amendment privilege “applies only when the accused is compelled to make a Testimonial Communication that is incriminating”). Applying those three requirements in reverse order here, a biometric scan is certainly compelled—the government is explicitly requesting the Court’s authority to force the scan. . . . The act may also be incriminating, as unlocking the phone may lead to the discovery of a nearly unlimited amount of potential evidence, including text messages, social media posts, call logs, emails, digital calendars, photographs, videos, and location data.

* * *

But if a compelled act is not testimonial, and therefore not protected by the Fifth Amendment, it cannot become protected simply because it will lead to incriminating evidence. Doe, 487 U.S. at 208 n.6, 108 S.Ct. 2341. As a result, the relevant Fifth Amendment inquiry here is whether the compelled act of scanning a subject’s fingerprint to unlock a device is a testimonial act.

* * *

To be testimonial, a subject’s communicative act “must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe, 487 U.S. at 210, 108 S.Ct. 2341. Otherwise stated, the Fifth Amendment’s self-incrimination clause is implicated wherever the compelled act forces an individual to “disclose the contents of the [subject’s] own mind.” Id. at 211, 108 S.Ct. 2341 (citing Curcio v. United States, 354 U.S. 118, 128, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957)).

* * *

For example, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the accused’s “testimonial capacities were in no way implicated” when the government’s officers extracted blood from the accused’s body incident to an arrest, over the accused’s objection, to test for alcohol as evidence of criminal guilt. Id. at 765, 86 S.Ct. 1826. Schmerber reasoned that Supreme Court precedent provided that only compulsion of communicative facts triggered the Fifth Amendment privilege, not compulsion of “real or physical evidence.” Id. at 764, 86 S.Ct. 1826. Thus, the Schmerber Court concluded that the incriminating blood test evidence was not testimonial because it was neither the result of the accused’s communication nor evidence of some communicative act. Id. at 764–65, 86 S.Ct. 1826.

        The Supreme Court has similarly held that requiring grand jury witnesses to produce voice and handwriting exemplars neither violates the Fourth nor Fifth Amendment, even though speaking and writing are quintessential means of communication. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, (1973); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The Dionisio and Gilbert Courts reasoned that the voice/handwriting exemplars were identifying physical characteristics that did not reflect the subject’s mental impressions.

* * *

In another compelled physical act case, the Supreme Court rejected an argument that the government had violated the privilege against self-incrimination by forcing a defendant to try on a blouse for identification purposes. Holt, 218 U.S. at 252, 31 S.Ct. 2.

* * *

One type of compelled physical act that has been considered testimonial in certain cases is the act of producing documents. Courts have found that producing documents in response to a criminal subpoena request could be a testimonial communicative act because the responding party may need to “make extensive use of ‘the contents of his own mind’ in identifying the hundreds of documents responsive to the requests in the subpoena.” United States v. Hubbell, 530 U.S. 27, 43, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) (citing Curcio, 354 U.S. at 128, 77 S.Ct. 1145).

* * *

[The Key Questions]

In analyzing this issue, the key questions, in this Court’s view, are threefold: (1) whether the biometric unlock is more like a key than a combination; (2) whether the biometric unlock is more like a physical act than testimony; and (3) whether the implicit inferences that arise from the biometric unlock procedure is sufficient to be of testimonial significance under the Fifth Amendment.

* * *

[Key Versus Combination]

First, the Court holds that the biometric unlock procedure is more akin to a key than a passcode combination. The Supreme Court in Doe, and later in Hubbell, has illustrated the difference between testimonial and non-testimonial physical acts via this helpful comparison, which aptly applies to an iPhone that has two different unlock features—a fingerprint and a passcode. In Doe, the Court noted that the Fifth Amendment permits the government to force an individual to surrender a key to a strongbox containing incriminating documents, but not to reveal the combination to a subject’s wall safe. Doe, 487 U.S. at 210 n.9, 108 S.Ct. 2341. Thus, using the Doe framework, this Court examines whether a biometric scan of an individual’s finger or thumb is more like a key or a combination.

* * *

[Physical Act Versus Testimony]

Second, the biometric procedure is first and foremost a physical act. It utilizes a body part on an individual to perform an act—rather than any implicit or explicit verbal statement. Put another way, the biometric feature is a body part used to essentially determine whether an item of evidence for a case (i.e., a cell phone) has any evidentiary value—much like a blood sample, voice exemplar, or blouse is used to determine whether it matches the blood, voice, or physical characteristics of a suspect that would provide evidentiary value in a case. As the Supreme Court appropriately stated in Wade, compelling an individual to exhibit his person to the government before trial does not violate the Fifth Amendment because such a forcing is “compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.” Wade, 388 U.S. at 222, 87 S.Ct. 1926.

* * *

Furthermore, the government selects the fingers or thumbs to impress on to the phone, not the defendant. This further supports a finding that the compelled party’s thoughts are not being used in the process.

* * *

[The Implicit Inference]

Third, the Court holds that the implicit inference from the biometric unlock procedure, that the individual forced to unlock had some point accessed the phone to program his or her fingerprint, is not sufficient to convert the act to testimonial.

* * *


For the reasons discussed above, the Court finds that the government’s application for the biometric unlock procedure does not violate the Fourth or Fifth Amendments, and as a result, the Court has signed the application and the warrant after its finding of probable cause.

My Thoughts

  • At this time, there are no cases from any of the United States Courts of Appeal on this issue.
  • Surely, the Supreme Court will write on this issue. The problem is that it will probably be in the 2022 or 2023 term before they will have the opportunity to do so.
  • Until then, we can only give an educated guess as to what the nine justices will decide.

Buck Files 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. This is his 238th column or article. He practices in Tyler with the law firm of Bain, Files, Jarrett and Harrison, P.C., and can be reached at .