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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.

Shoutouts

Shout out to David Hall and Ariel Payan, who were jointly awarded the Warren Burnett Award by the State Bar of Texas for extraordinary contributions to improving the quality of criminal legal representation to indigent Texans. TCDLA is proud to have you both as members!

Congratulations to Dr. Andrew Davies, who was awarded the Michael K. Moore Award for Excellence in Research or Writing in the Area of Indigent Criminal Defense by the Texas Bar Association. Dr. Davies is the director of research at SMU’s Dedman School of Law’s Deason Criminal Justice Reform Center. Thank you, Dr. Davies, for your contributions to the knowledge and practices of the bench, bar, and scholarly communities!

Kudos to the Rackspace Legal Team, which was awarded the W. Frank Newton Award from the Texas State Bar. The award recognizes the pro bono contributions of attorney groups whose members have made an outstanding contribution to the provision of, or access to, legal services to the poor. The Rackspace Legal Team launched a legal service called “Adopt a Non-Profit Legal Team,” the aim of which is to increase the team’s commitment to meet the CPBO Challenge initiative in which in-house legal teams across the country are challenged to perform pro-bono legal services. The Rackspace Legal Team, which is a branch of Rackspace Technology, “adopted” the in-house legal and compliance team at Haven for Hope of Bexar County, a San Antonio non-profit serving homeless individuals and families. The Rackspace Legal Team handled the legal and compliance issues for Haven of Hope. Thank you to the Rackspace Legal Team for setting an example of how corporate legal teams can contribute their expertise and resources to non-profits to benefit the poor and indigent. Congratulations!

Current Issue: June 2020

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Features

20 | Competency Hearings – By Floyd Jennings
55 | An Artifact of Times Long Gone – By Tip Hargrove
57 | Memories of TCDLA’s 1st President (Part II) – By Frank Maloney

Columns

6 | President’s Message
7 | Chief Executive Officer’s Perspective
10 | Editor’s Comment
11 | Editor’s Comment II
12 | Ethics and the Law
14 | Federal Corner
18 | Shout Outs

Departments

5 | CLE Seminars and Meetings
25 | Significant Decisions Report

President’s Message: New Leadership

On June 22, 2020, I will be sworn in as the 50th President of the Texas Criminal Defense Lawyers Association (TCDLA). Joining me in service to TCDLA will be 59 board members and officers from across the state. This will include 10 newly elected leaders. I am certainly biased, but I believe this is the most talented, eclectic, and motivated group of lawyers we have ever assembled to lead TCDLA. We will need every ounce of their contributions, as this is perhaps the most challenging period in our history.

In order to better serve our members, TCDLA must be unwavering when it comes to the following: When a person in power openly attacks or undermines the Texas or Federal Constitutions, as they relate to the rights of the accused, we must respond quickly and effectively. When one of our members is placed in an untenable situation simply for doing his or her job, we must shield that member with the protection of our Strike Force and 3,300 members in every corner of Texas. We must advocate for laws that will ameliorate the inherent unfairness in our state’s criminal justice system. And we must look for new and creative ways to improve the lives and law practices of our members.

Those who know me, know that I have a strong interest in using technology to enhance the practice of law. I hope that you will see some changes in the coming months that will re-affirm why you became a member of TCDLA. If you like what you see, please let me, your 59 other leaders, and TCDLA staff know. If you have an idea for a new service that you think our fellow members might enjoy, please let us know that, too. I have asked our staff in Austin to provide my cell number and email address to any member, upon request. Text me.

I value your membership and commitment to TCDLA. I ask that you stay a loyal member for at least the next 12 months and see what we can do for you. TCDLA needs you now more than ever. I hope to persuade you that you need us, too. Thank you, dear colleagues.

-Grant Scheiner

Chief Executive Officer’s Perspective: Your TCDLA Family

“Call it a clan, call it a network, call it a tribe, call it a family: Whatever you call it, whoever you are, you need one.” 

-Jane Howard

June is always a time of rebirth due to changing of the guards. With these strange and difficult times because of COVID-19, we continue into the unknown. Regardless, TCDLA has become stronger. The membership and local bars and under the leadership of Kerri Anderson Donica have united. It has truly been a pleasure to work with Kerri, not only as president but as a mentor and friend.

The executive committee has met numerous hours to ensure we are supporting all the needs of our membership. A huge thanks goes out to TCDLEI Chair Clay Steadman and the board for providing more than $45,000 in scholarships for attorneys enduring hardships.

The COVID-19 Task Force, led by Clay Steadman, Nicole DeBorde Hochglaube, John Hunter Smith, and Jeep Darnell, works endless hours communicating with members and working with counties to ensure safe conditions. Our GA-13 committee, under the helm of Betty Blackwell, Allison Clayton, Jeep Darnell, and Kyle Therrian, have written numerous writs, worked into the late hours of three a.m. to meet deadlines, and assisted so many of our members.

In addition, the Ethics Hotline, chaired by Robert Pelton, fields numerous calls daily and the response time is remarkable. Our members rave about the service and responses they receive from Robert and his committee.

The Strike Force, under Nicole DeBorde Hochglaube and Reagan Wynn, stands ready to defend our attorneys if the need arises. Robb Fickman has fielded concerns with the court system raised by our members as well.

TCDLA has more than 32 committee each serving a unique purpose. All the committees and chairs this year have worked tirelessly and provided support as needed and requested without any complaints.

Laurie Key as CDLP chair has worked very hard to adapt to the new norm and quickly change live events to webinars. Our committees are composed of volunteers. While trying to practice during this time, each has shown so much dedication, support, and selflessly given time.

Our May DWI Defense Project seminar was very successful. Courser directors Larry Boyd, David Burrows, and Frank Sellers, as well as all the speakers, not only hung in there with TCDLA and tried something new, they did it with ease. Of course, we had some glitches, but they were champs along with all the viewers!

The TCDLA staff are also here to assist you. We will get you the information or service you need. Do not ever hesitate to contact us.

As Grant M. Scheiner takes over the responsibilities of president in June, we will continue to work together, develop and maintain strong bonds, and TCDLA will be stronger than ever and be here for our members and support criminal defense attorneys throughout the state of Texas. Together we are your tribe, clan, and most importantly your TCDLA family!

Editor’s Comment: Times A-Changin’

“Is it over yet?” we keep asking ourselves and each other. “Can’t things just go back to normal?” Not hardly. As the great lyricist Bob Dylan sang in 1963, “The Times They Are A-Changin”. Amid the first (and hopefully only) pandemic that we have all experienced, we are being put to the test every day. We are trying to stay connected in the face of social distancing. We are homeschooling while simultaneously trying to keep the doors to our businesses open and dollars coming in to take care of our employees…even though the majority of the state has been under stay-at-home orders. We have all been adapting and maintaining in the best ways we know… all while trying to keep our families and ourselves healthy.

And as you know, TCDLA has been adapting, maintaining, and retooling, too. There is no better evidence of this than Rusty Duncan. While this wasn’t Rusty as it has been in years past, this year was still a success thanks to our chief executive officer, Melissa Schank, and her staff, our course directors, and our speakers. And I’m sure the same will be said about the Declaration Readings next month. Be sure to start or get involved in your local Declaration reading whether it occurs virtually or in accordance with social distancing recommendations. It is that important. Especially now, as we define for ourselves and for our clients why the work we do is essential.

A final thought. Take time for yourself to be and stay well. In addition to the regular stresses of our daily pre-pandemic practices, this is an emotionally exhausting, stressful, overwhelming time. While the doors are closed and the phones may not be ringing as much lately, the new stresses are unique and very real. So, exercise, meditate, read, knit, watch baseball (when it starts back in July) — do something for you. Self-care is vitally important. We need to take care – both physically and mentally – of ourselves first so that we can take care of our families, friends, and clients. A great place to start is TCDLA’s seminar series Mindful Mondays.

Stay safe and well,

-Sarah

P.S. – And this month, again for the safety of our staff, members, and postal service workers, we are publishing the Voice online. We know the overwhelming majority of our readers prefer to have the hard copy of the Voice and it is our hope to return to that very soon. In the meantime, if you’d still like a hard copy, please let us know so that we can get it to you.

We are all in this pandemic together as humans and as criminal defense lawyers, but we each have our own unique experiences both personally and professionally. As courthouses across the state begin to reopen, please consider sharing your experience – whether uplifting, heart wrenching, or anything in between – with us. We are compiling stories of criminal defense lawyers from around the state to share in the upcoming issue this summer. Send submissions to .

Editor’s Comment: Defending the Indefensible

There’s a lot going on in our world. As an American, I can’t help but think about, worry about, and be saddened by what is going on. What happened to George Floyd is wrong, and the officers should be held accountable for their conduct. But, as a criminal defense lawyer, the idea of circumventing due process to hold those officers accountable, as seems to be the rallying cry of many, is also scary and terribly worrisome.

In the Boston Massacre Trial of 1770, then-future president John Adams defended eight British soldiers who had killed five Bostonians. The killings were publicly and collectively termed the “Boston Massacre” within days after they had occurred. The five Bostonians killed quickly became martyrs for the Patriot cause. To describe Adams’ defense as unpopular would be a massive understatement. That his business would have taken a tremendous hit because of his defense of the eight British soldiers is a given. But he did it. Due to Adams’ defense work, Captain Preston, whom the prosecution argued gave the order to fire, was acquitted. And, when the trials of the remaining British soldiers were finally over, only two were convicted – and of the lesser offense of manslaughter, at that.

How and why did Adams defend the British soldiers? He did it for the same reasons we defend the indefensible case: because we, as criminal defense lawyers, hold an unshakeable belief in our justice system.

Several years later, the Declaration of Independence was adopted by the Continental Congress on July 4, 1776. That was followed by the US Constitution which was ratified on June 21, 1788.

Fast forward nearly 250 years, to the killing of George Floyd. Mr. Floyd’s death has been followed by days (and sure to be weeks) of protest — many peaceful but some riotous. It can be unsettling and uncomfortable, and it should be. Injustices are inhumane.

But, we also realize as criminal defense lawyers who believe in our Constitution, that just as surely as protestors have a right to speak out, so too, do the Minnesota police officers have a right to fair trials with zealous representation unclouded by personal judgment. It doesn’t mean we condone the conduct in any way; quite the opposite. It doesn’t mean we want to see the officers escape accountability for their actions; they should be held accountable for their conduct. It just means to keep the integrity in our justice system – a system designed to protect the innocent – we must have trials where the defense is just as vigorous as the defense mounted on behalf of the British soldiers by John Adams. Our justice system fails when there is a laydown, railroad job – from any side.

It takes a special kind of person – it takes a criminal defense lawyer – to fight for our Constitution, be a zealous advocate, and defend the truly indefensible cases. It takes a special kind of lawyer to be able to not let personal feelings interfere with their representation. There are some cases some of us choose not to take because we recognize our objectivity may be or become compromised, and that’s ok. We are all human.

We will all defend the unpopular, hated client at some point during our careers. We have all been asked (at least a dozen times) “how do you defend someone you know is guilty?” And we all know, and believe to our very core, the answer to that question. We believe in and protect our Constitution. That is just what great defense lawyers like John Adams do. They stare into the abyss and march forward giving it their all to protect our justice system for all of us.

___________________________

Please be a part of the Declaration Readings happening in your area this Independence Day.

Sarah Roland
Editor

Clay Steadman
Associate Editor

Jeep Darnell
Associate Editor

Melissa Schank
Executive Director

Ethics & The Law: The Trains Will Run Again

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When Texas was younger, her pioneers lived in fear of yellow fever, scarlet fever, malarial fever, dengue fever, a handful of generic bilious fevers, and about as many poxes.

Before the first blue norther came in each year, people stayed on edge. It came with the pioneer territory. 

So it’s no surprise that in September 1897, when cases of yellow fever popped up at Ocean Springs, Mississippi, Texans tensed up. Those who had survived the epidemic 30 years before recalled the losses of entire families, and the deaths of thousands. 

But things were different in 1897. Telephones supplemented telegraphs, bringing the news faster, and with the inflection of the human voice. People also traveled more, faster and farther than they had in 1867. A fantastic web of rail connected Texans to Texas and to everywhere else.

The good part about 1897 was that Texas found out about the outbreak in real time. The bad part about 1897 was that people from infected places might be arriving at the train station in your town any minute. What if they were bringing with them a bug that could wipe your community off the map?

The fever moved down the coast. Mobile, Biloxi, Bay St. Louis. Port towns all over the U.S. quarantined against ships from Gulf ports. Texas likewise locked down her ports to ships from any point east of New Orleans. Police inspected inbound trains to make sure passengers weren’t coming from infected towns. The people were cautiously optimistic.

Then news of 12 cases in New Orleans hit the papers, and all hell broke loose. New Orleans health officials swore that it was just some lesser fever, but nobody cared. Towns all along the coast declared absolute quarantines against New Orleans and other infected places. Cotton futures plummeted. Ripples of the news were felt in the great east coast financial kingdoms.

Texas papers daily carried the updated number of cases, deaths and recovered patients in New Orleans. To try to keep her commerce alive, New Orleans declared herself squeaky clean and announced new clean-up measures. It would now clean…wait for it…the asphalt! Just in case yellow fever germs were living on the blacktop, New Orleans was singeing the surface. 

But Texans didn’t care. Towns in East Texas outright refused to allow trains to stop at their stations. Keep it moving at 25 mph…or else. The State Health Officer, Dr. Swearingen, posted armed guards at all dirt roads entering Texas from Louisiana. Quarantine camps, like the one below, sprang up outside of railroad towns.

Travelers who were shut out of their destinations because of quarantines, but couldn’t turn back because trains weren’t running east, were held at these camps for 2 weeks to prove they were disease-free.

Places like Marlin and Georgetown locked themselves down entirely. Nobody could enter. If you lived there and were returning home after lockdown was declared, well that was just too bad. Bryan sent a health official to inspect Houston, on behalf of its citizens, who had heard rumors that the Bayou City was infected. Denton also issued a quarantine against any outside entry.

Big towns and little towns did the only thing they thought might save them – they cleaned. Galveston appropriated $5,000 to clean the city gutters, pull weeds and pick up trash. Houston declared that any structure within 250 feet of a sewer line had to tie into the line. Corpus engaged in a city-wide cleanup effort. In Milam County, a volunteer force in Cameron disinfected the town. As far as I know, nobody scorched the pavement to kill germs in Texas.

By the third week of September 1897, the papers were filled with quarantine notices and rumors of “suspicious cases.” Caldwell, Navasota, Wills Point, Brenham, Tyler, Calvert, La Grange, Huntsville, Brookshire, Hearne, Columbus…even Dallas declared a quarantine against trains and humans from infected or suspicious places.

The holdouts were few. Waxahachie, Palestine and Corsicana said they didn’t believe yellow fever was coming to Texas, so they remained open. Naturally, other towns quarantined against the open towns. Overall, everyone quarantined against each other in the spirit of self-preservation.

Then nothing happened. Texas thought it had dodged a bullet. The Houston Post published this triumphant but creepy victory cartoon to kick off October 1897. 

Orange reported it was resuming business. Hillsboro and Waco lifted their quarantines. Public schools re-opened on October 4 in Richmond. A large crowd at Sabine Pass greeted the first train to arrive there in weeks. Merchants and markets rallied. Everyone was alive again. And that should have been the end of the story.

….but it wasn’t. An October 12, 1897 statement by Dr. Juan Guiteras of the U.S. Marine Hospital, published in the Houston Post, upended Texas in way that made the events of September look like dinner theater.

Dr. G’s report declared that he had inspected Houston and Galveston, and the fever was present in both places. Yellow Jack, Bronze John, the Saffron Scourge –  it had arrived in Texas! About 12 cases, he said, most of them recovered, but definitely yellow fever.

Houston and Galveston doctors moved swiftly to denounce Guiteras’ statement, claiming it was just dengue fever, not yellow fever. City councils passed resolutions declaring that their cities had one malady and not the other. But the damage was done. Texans flew into action.

Now Texas towns declared quarantines against Houston and Galveston, as well as other places down the coast. The old shotgun quarantine method went into effect. Try to enter from Houston and you had to deal with men with guns. The San Francisco Bulletin summed it up well:

The town of Bryan not only tried to prevent trains from stopping there, they barred trains from entering the county entirely. Picture it like a train robbery, but without the theft part. Brazos County was not alone in this tactic. 

Texas A&M entered total isolation and declared it would stay that way until the first frost.

In Fayette County, a Muldoon company loading a huge order of rock bound for the Galveston jetties stopped work…no train would be sent to infected Galveston.

Folks in Wharton and other towns just fled. Trying to avoid contact with other people – even their neighbors – they fled to the interior and North Texas.

At Brenham, there was a run on groceries and supplies (yep….19th century toilet paper pirates). People living outside of town were preparing for “a siege in case this yellow fever business comes to the worst.”

The news from La Grange two days after the cases were announced:

“Our streets have been almost deserted this week, owing to people being afraid to come into town.”

On the day the Associated Press broke the news of cases in Texas, the Western Union office at Houston was flooded with 750 telegrams and had to call in extra hands to deal with the 900 responses to be sent out.

Houston immediately bought from Washington D.C. a new device for mechanical fumigation of mail. The machine, by way of a paddle with thin metal tines, slapped tiny holes in each envelope to allow sulphur or formaldehyde fumes inside to kill germs on the letters.

San Antonio locked down, but the Austin city council couldn’t agree to quarantine or not to quarantine, so they just adjourned without doing anything at all.

Mayor Rice of Houston, at the pleading of the Houston Cotton Exchange, issued an invitation for town representatives from the Texas interior to come to Houston and inspect it for themselves.

He even offered to provide free transportation. Each town decided independently whether or not they wanted to risk sending their most trusted citizens into Houston. In the end, the handful that went were able to convince others that Houston wasn’t a hotbed of yellow fever.

Texas Health Officer Swearingen released the state ordered quarantine of Houston and Galveston when no new cases had appeared for about 10 days.

Less than 2 weeks after the panic began, it subsided. Houston theaters announced they’d resume plays. Public schools re-opened across the state. And the Houston Post trumpeted the news everyone was waiting to hear.

Trains will run again! Texans and commerce began to move. They shopped, sent letters, received newspapers, saw their neighbors. Texas was gonna be okay.

Little did they know, it was those new-fangled window screens they’d installed since the last epidemic that had saved them from heartbreak and death. The discovery that mosquitoes were the cause of the dreaded disease was still a couple years away. Newspaper editors, with a few days’ hindsight under their belts, scoffed at the experts who had raised the alarm of the fever in Texas. Halletsville bragged on itself for knowing all along that the scare was no big deal. Ain’t hindsight grand? 

This thing we’re living through right now is like 1897 in many ways. Every day, we’re bombarded with figures and death tallies. Every day we’re reminded to stay at home. Every day we’re told that the economy is wrecked.

There are pertinent things we don’t understand yet, just like those Texans didn’t know the damn mosquitoes were the cause of yellow fever. We’re leery of the various alarms & predictions of experts, but afraid nonetheless. We’re bringing back shotgun quarantine at the Louisiana border.

But we are adapting and we are pioneering new ways of doing what needs to be done. We are doing as Texans have always done – moving ably through uncharted territory.

And while we don’t yet know how our version of this story ends, we must remember this: the trains will run again. You can count on it. 

When the trains start running again, remember the RULES OF ETHICAL BEHAVIOR. Many of the ethical complaints received by the state bar are for FAILURE TO COMMUNICATE. Even though you may not be in your office, it is vital to be in contact with your clients. If they are in jail, send a letter or put a little money on their books. Talk with their family to reassure them that you are OK and concerned and working on their cases. It is time to COWBOY UP.

Cowboy Up, America.

When a cowboy’s in a pinch, he just tightens up the cinch, spurs his horse, and rides right through it because that’s the way the Duke would do it. He’d “cowboy up.” And with our country now in danger, a cowboy’s like the old Lone Ranger. Ridin’ hard and shootin’ straight, fightin’ those who spread the hate. The original meaning of “cowboy up” was to inform the next bull rider or bucking bronco rider at a rodeo to get ready to ride or “cowboy up.” As lawyers, it is hard to be away from court. Most of us are complaining about having no business and no money. Many of the accused citizens we represent have no jobs and no money. You don’t have to look far to see many who are in much worse shape than we are. Be ready to get back to court when the time comes and be an ethical lawyer. COWBOY UP!  

Thanks to Mark Pusateri with Copano Press in Corpus Christi for allowing me to use some of his historical info. Special thanks to Jim Skelton and my brother Joe. The three of us were cowboys once. Jim lost three fingers when the rope on his saddle horn ripped. My brother almost got blood poisoning when a steer pushed him into a sharp gate post and ripped his leg open. I only got a concussion when a half-broke horse ran me under a tree. Jim was 11, Joe was nine, and I was 12. When we had a problem, Jim always said, “Y’all need to COWBOY UP.”

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.

Conclusion

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.

Shout Outs

Congratulations to Sally Ring, whose client was granted a writ of habeas corpus! The client was charged with three felonies but the judge granted PR bonds, stating Governor Abbott’s Executive Order GA-13 was unconstitutional, violating the U.S. and Texas constitutions, due process, and separation of powers. Way to go, Sally!

Shout out to Mark Bennett for his win in the Supreme Court in Ex parte EH 18-0932. Expunction ordered to be granted when case was based on former penal code 33.021(b) online solicitation which had been held by the CCA to be unconstitutional. Nice job, Mark!

Huge kudos to Northern District of Texas Federal Public Defender Jason Hawkins, Assistant  Federal Public Defender Michael Kawi, and civil rights attorney Stephanie Inman! The chief judge chose to hold a trial, despite the FPD office’s efforts to show, through several motions to continue, an emergency appeal, and a writ of mandamus, that holding a trial at this time is dangerous. The FPD office’s client, Timothy Tanner, was charged with felon in possession of a firearm with three-to-four witnesses. His trial was scheduled for June 1 – the first federal criminal trial in the nation post-pandemic. Mr. Tanner was found not guilty and knelt with the trial team outside the courthouse right after the verdict was rendered. Way to go!

If you see Gus Saper around, be sure to congratulate him on his getting his client’s nine-year sentence reduced to time served, six months home confinement, and 250 hours of community service. The case was not easy and only succeeded after Gus filed a motion for reconsideration of federal Judge Marina Marmelejo’s second order denying motion to reduce sentence. Awesome job, Gus!

From left to right: Civil rights attorney Stephanie Inman; paralegal Monaleeza Montalvo; investigator Roen Serna; client Timothy Tanner; and Assistant Public Defender Michael Kawi.
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