Sentencing Commission Recommends 2013 Amendments

April 15, 2013

th.jpegLast week, the U.S. Sentencing Commission voted to submit to Congress proposed amendments to our "beloved" sentencing guidelines. A text of the amendments is here. The amendments will be formally submitted to Congress by May 1, and they will take effect November 1 unless Congress takes action otherwise.

Here is a summary of some of the proposed changes:

1. Acceptance of Responsibility:

Bad news for Defendants: The Commission followed the approach of the Fifth Circuit by stating a court can refuse to grant the third level of acceptance reduction even though the government has moved for it.

Good News for Defendants: The Commission stated the court and government is now limited to following standard: did the defendant assist authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently? In other words, the government cannot withhold filing the motion for the third level, and the court cannot withhold giving the third level, for other extraneous reasons, such as "whether the defendant agreed to waive his/her right to appeal."

2. Tax:

Good News for Defendants: Courts "should" now account for unclaimed credit, deductions, and exemptions in determining tax loss under the following circumstances:
a) the standard deduction and personal and dependent exemptions to which the defendant was entitled; and,
b) any unclaimed credit, deduction, or exemption that is needed to ensure a reasonable estimate of the tax loss, but only to the extent that (i) the credit, deduction, or exemption was related to the tax offense and could have been claimed at the time the tax offense was committed; (ii) the credit, deduction, or exemption is reasonably and practicably ascertainable; and (iii) the defendant presents information to support the credit, deduction, or exemption sufficiently in advance of sentencing to provide an adequate opportunity to evaluate whether it has sufficient indicia of reliability to support its probable accuracy.

The burden will be on the defendant to establish any such credit, deduction, or exemption by a preponderance of the evidence.

3. Other Amendments More Rare in Their Application:

Be sure to review the proposed amendments if you have cases in the following areas:

Pre-Retail Medical Products;
Trade Secrets;
Counterfeit and adulterated drugs;
Counterfeit military goods and services;
Smuggling goods out of the United States;
Trespass offenses.

4. Setser: Unfortunately, the Commission did not address the impact of the Supreme Court's Setser decision, which held that federal judges have the discretion to order that a sentence run consecutively to (or concurrently with) an anticipated, but not yet imposed, state sentence. The guideline that governs imposition of a sentence on a defendant subject to an undischarged term of imprisonment (Section 5G1.3) remains unchanged. The Commission merely added a reference to the Setser ruling in the background to the Guideline.

Results Are In on Fair Sentencing Act

January 2, 2013

In today's world, where approval ratings of Congress are alarmingly low, we grow less and less hopeful that our government can effectively function. Every now and then, however, we see a glimmer of light that offers some positive indication of a job well done. The United States Sentencing Commission recently published a data report on the results of Congress' Fair Sentencing Act of 2010. The data is interesting.

Recall that Congress initially created in 1986 a widely disparate 100:1 sentencing structure between crack and powder cocaine on the view that crack was a more dangerous and harmful drug. In decades after, extensive research by the United States Sentencing Commission and other experts debunked Congress' initial theory by finding that the differences between the effects of the two drugs were grossly exaggerated. Research conclusively proved that the sentencing disparity was unwarranted and effectively created an unconstitutionally discriminate sentencing scheme. Simply put, the data proved there was no reasonable basis to punish one man more harshly than another for the same type of conduct.

After more than fifteen years of attempted legislation to fix the wrong, Congress ultimately passed the Fair Sentencing Act of 2010. The Act brought fairness and equality into our sentencing structure by increasing the quantities of crack cocaine that trigger the five and ten-year mandatory minimum sentences, and eliminating the five-year mandatory minimum sentence for simple possession of crack cocaine. The Act was signed into law by President Obama on August 3, 2010, and later retroactively implemented by the Sentencing Commission through sentencing guideline amendment.

The data report recently published by the Commission sets out in detail how the 2010 Act impacted previously-sentenced defendants. It breaks down statistics by state, federal judicial circuit, divisions within each circuit, year of original sentence, criminal history categories, demographics by race, ethnicity, citizenship, gender and age, as well as other categories. In sum, nearly 6,600 defendants received, on average, a 29-month reduction in their sentences as a result of retroactive, new guidelines. Corroborating the suspicion that the previous sentencing structure was largely discriminatory, more than 85% of those entitled to a reduction were black persons.

The report is available at the Sentencing Commission's web site. Though the report is filled with numbers and percentages that are lifeless to some, there is no denying that the data proves the Act had a tangible effect on the lives of real humans. Well over 6,000 families would have remained split for years but for Congress checking itself. It is refreshing to me that our government is still humble enough to take another look at what it has done in order to bring fairness into our laws.

Defense Forensic Expert Trumps PSR

December 27, 2012

Two married doctors were charged with several types of health care fraud crimes, including, (1) "upcoding" cheaper "trigger-point injections for more expensive "facet-point" injections, (2) submitting "phantom" bills for services never rendered, and (3) unlawful distribution of controlled substances. They pled guilty to counts only charging the "up coded" injection-billing fraud. The agreement did not specify an agreed restitution amount. The PSR recommended restitution of $43,318,170.93, and defendants objected on several bases: (1) no credit was given for amounts insurers would have paid for actual trigger-point injections; (2) improper inclusion of insurer payment for non-injection treatment unrelated to the offenses of conviction, such as undisputedly legitimate allergy services.

The defendants submitted a report prepared by their own forensic accountant. Applying credits for the two categories mentioned above, the accountant concluded the actual loss to insurers totaled $21,028,963.61. The district court overruled the objections and ordered restitution of $43,318,170.93. The Fifth Circuit vacated the district court's sentence and remanded the case for recalculation. See United States v. Sharma & Sharma, Nos. 11-20102, 20167, & 20204.

As to the first argument, the court found that the probation office "went astray" by including the total amount of insurer payments to the doctors, resulting in an overstatement of victim loss. Specifically, the court found the restitution award should not have included amounts for non-injection medical services (i.e., conduct outside the counts of conviction), particularly where one insurance company's report expressly stated it was "not sure which claims relate to the guilty plea." The Fifth Circuit found that the "obvious mistakes" in the PSR "undermine our confidence that the Probation Office gave any meaningful scrutiny to the actual losses of Medicare, Medicaid, and the remaining twenty-seven private insurer victims."

As for the defendants' second argument, the court observed that restitution awards should always allow credit for amounts that insurers would have paid had the defendant not committed the fraud. In this case, however, the defendants failed to submit competent evidence that actual services that were medically necessary were provided and would have been paid absent the upcoding. Conversely, the government submitted unrebutted evidence of misdiagnosis, improper medical advice, and an assembly-line injection stream without routine sanitary precautions. Anecdotal statements from several patients was insufficient to counter the government's evidence.

This case does not set forth any change in the law that I can see, but it does demonstrate how different an outcome can be dependent on a defendant's response. Clearly, the case reinforces the need to challenge a PSR's conclusory findings and recommendations, and to do so with competent evidence. Too often, I've seen PSR mirror government offense reports without undertaking the type of "meaningful scrutiny" referenced by the Fifth Circuit. Here, the contrast of different responses by the defense was evident: a good forensic analysis was quite useful in one of the defendants' arguments, and yet the failure to provide evidence (assuming there would have been any evidence) on the second argument led to a different result.

Trial Judge's Comment Not Sufficiently Prejudicial

December 19, 2012

Charles Irby appeared for jury selection, ready to fight against charges of committing various alleged tax crimes, including four counts of willful failure to file a tax return and one count of attempting to evade paying a tax. United States v. Irby, No. 11-60800, __ F.3d __ (5th Cir., Dec. 18, 2012). All was going according to plan, when the trial judge says the following:

"It's a civic duty, and the older circuit judge I used to practice under many, many years ago used to tell jurors, "You've got two things [sic]: You should vote, you should pay your taxes, and then serve on a jury. Three things that you should do to comply with your citizenship."

Mr. Irby was found guilty, and the court later ordered sentences of 60, 36 and 12 months, all to run consecutive to each other for a grand total of 108 months in prison. Not surprisingly, Mr. Irby complained on appeal that the district judge's pronouncement during jury selection violated Mr. Irby's constitutional "due process" right to a fair trial. As we know, the Supreme Court has repeatedly recognized that our Constitution is there to ensure that all citizens receive a "fair trial in a fair tribunal."

The Fifth Circuit Court of Appeals, however, held that Mr. Irby was not denied his right to a fair trial. The appellate court said that one single statement by the judge in jury selection was insufficient to demonstrate misconduct, where the trial lasted four days and the jury was ultimately instructed about the government's burden of proof and the presumption of innocence.

I admit it: I don't possess the breadth of wisdom of the three learned jurists on the Fifth Circuit panel who made this decision. But looking at this from my perch as a trial lawyer, the effect of the trial judge's robed pronouncement is particularly disturbing. My experience as a trial lawyer (both as a prosecutor and defense attorney) and as a citizen sitting several times as a prospective juror has taught me that common folk chosen from the venire walk into a federal courtroom with wonder and interest, capturing every sight and sound. The judge enters the room with dark robe stretching to the floor, and all are ordered to stand by the bold bark of the watchman. As all sit down in silence, the pomp of the experience begins to settle in, and all listen to the person designated as the seat of wisdom for these proceedings.

Hyperbole? I don't think so . . . at least not in this situation. The central issue for this man at his trial focused on an allegation of failure to file taxes. We, and surely any jurist and prosecutor assigned to work on this case, must presume this citizen was entitled to present his defense that countered the necessity of filing a tax return and provide his answer as to why a tax return had not been filed. Before Mr. Irby was given that chance, however, all prospective jurors heard an opinion on this exact same topic from the one person who they naturally assume is the voice of justice and wisdom above all others in the room. And it was not only the black-robed beacon of wisdom who spoke, but also the "older circuit judge . . . [of] many, many years ago" from whom this jurist was mentored. Together, they conveyed an unmistakable impression of endorsement for the prosecution's theory that no excuse is sufficient for this citizen to forsake such an important responsibility.

Giving the jurist the benefit of doubt, perhaps his words mirrored those he gave to all prospective jurors in all trials in an attempt to convey the importance of the jurors' decisions to heed the call to jury duty. But in this particular case, with these type of criminal charges, it seems to this trial lawyer that the better part of wisdom should have counseled the esteemed jurist to leave out the clause relative to filing taxes. His comment set the stage for the drama that was to unfold. Similar to an opening scene of a movie, or an opening line to a book, the jurist's comment underscored to the prospective jurors that this jurist did not look kindly upon anyone who would scoff at our country's call to citizenship through the payment of taxes.

This trial lawyer also takes issue with the appellate court's conclusion that "one single voir dire statement" was insufficient to carry much weight in the context of a 4-day trial. The power of the jurist's statement in Irby's trial does not rest in the number of syllables that were uttered, but in the picture they painted of the judge's heart and inner thought. In the gospel of Matthew, we are taught "what comes out of the mouth proceeds from the heart." And often, given the setting, the import of words cannot be diminished: "Whatever words we utter should be chosen with care, for people will hear them and be influenced by them for good or ill." Buddha, 563-483 B.C.

I surely do not suggest what occurred here was done with bad intent, or anything close to it. It's the effect of what was said, however, that concerns me. In a case I worked on recently, I asked an appellate court to consider the misleading and devastating effect of a prosecutor's statement in final argument that the key government witness should be given "the benefit of the doubt" despite the inconsistencies within his testimony. I had always thought it was the defendant-citizen who was to be given "the benefit of the doubt." Nevertheless, as in the Irby case, this pronouncement by the credible and esteemed representative of the government was considered to be cured in the context of the court's generalized instructions on burden of proof. I was concerned then, and I am concerned with the Irby decision. But I'm just a defense attorney.

Two Deaths and a Crossroad of Justice

November 26, 2012

The year of our Lord 2012 saw the passing of two gifted men, each of whom practiced their craft in the criminal law courts of Bexar County, Texas. This thanksgiving season, I reflected on my experience with each man. Each lifted the spirit of the room they occupied; each earnestly advocated his position with integrity, passion and a unique set of skills; each exemplified what an attorney should be. This thanksgiving season, I gave thanks for Jimmy Parks, Jr., and Charles "Chip" Rich, III. As I pondered about their lives, however, I received an unexpected gift . . . a different perspective on justice.

Much has been written and said about each man since their respective passing. Each life commendable; memory of each deserved. Though each worked in the same courthouse and the same area of law, their lives did not often intersect. They were not social friends, insofar as I know; nor did they attend the same church or share the same close friends. What they did share were remarkable, good qualities in their passion for law and justice; they were both outstanding attorneys; they both loved their children and families immensely; they both were strong in their faith; and they both carried the name of their respective fathers.

What stirs me, however, is not their similarities, but rather the crossroad that the proximity of their deaths has brought me to. As I have reflected on these men, I realize that it is not their qualities that have had the greatest impact on my life. Rather, what jumps out to me as an enlightening aspect of their existence and the proximity of their deaths is the juxtaposition of the spiritual force that guided them against the diametrically-opposing positions they each advocated. They each traveled down near-parallel tracks in our criminal justice system, consistently taking adversarial positions. The near-parallelism of their advocacy ostensibly was to arrive at a crossroad of justice. But now, after thinking more about their faith as it was applied in their careers, I began to wonder whether the crossroad of their lives and deaths is meant to steer me to see justice in a new light.

Jimmy Parks, Jr., was 61 years old when he passed away. As many have written and as I know personally, Jimmy was a warrior extraordinaire. He took the defense of citizens-accused to a form of art. Having fought alongside him in many battles and shared many conversations about life, I know the passion he held for constitutional principles of fairness, burden of proof and presumption of innocence. His very existence constantly called out for justice.

Charles "Chip" Rich, III, was 46 years old when he passed away. By all accounts, he too was a warrior extraordinaire. As a felony prosecutor in the District Attorney's office, he passionately and tirelessly argued on behalf of victims and against the ravages of crime. Having worked against him and listening to similar stories of others, it is clear that Chip held an unbreakable conviction for righteousness, fairness and the rule of law. Similar to Jimmy, Chip's very existence constantly called out for justice.

I attended the funeral services of each of these good men. I left comforted in knowing that each was a faithful man, passionately devoted to living the word of God. They each gave of themselves outside of law, living out the type of life God desires of us. As Christian lawyers, they must have pondered the meaning and breadth of chapters 61 and 56 of the Book of Isaiah, where scripture teaches that God "loves justice" and we are to "maintain justice and do what is right." How did they respond? How do we all respond in the way we "pursue" justice?

After Chip's funeral, it stirred within me the juxtaposition of two devoted followers of Christ choosing diametrically-opposed tracks to search for justice.Of course, all trial lawyers know that our judicial system is built on two opposing sides vigorously advocating and defending their respective position. We are taught to conclude that such a clash of forces births justice. In zealously advocating his position, it's reasonable that Jimmy and Chip each believed they were fulfilling his role in God's will. Heck, we all do. But is it reasonable to conclude that justice is borne through such a system? Should we leave the dying of these men with the simplistic notion that two solid warriors for justice now will rest, and life in our criminal justice system will ramble on as before? Or can the duality of their lives and deaths cause us to re-think our notion of justice and advocacy? That is, is it enough for opposing lawyers to continue to travel parallel tracks separated by a chasm, fiercely advocate for their respective positions and trust that "justice" is the inevitable destination? If so, how do we rationalize the seeming dichotomy of attorneys such as Jimmy and Chip who are devoted followers pursuing the same Biblical "justice"? Is this continued parallelism the best route to "do right" under the law?

I'm not so sure. Probably a bit crazy, but I'm unwilling to dismiss the proximity of the passing of these opposing warriors as happenstance. The duality of their deaths has led me to consider the possibility of a different way. The crossroad where the spirit of these two devoted followers and adversaries met encourages me to envision a new path. A path where the spirit of justice that each man embodied can live as one. I'm led to envision a place where me and all of us could actually become the embodiment of one spirit of justice where one can zealously advocate for a client, yet still understand, empathize and wrap herself within the spirit of the other's position.

I sat as a prospective juror in a jury selection a couple of months ago, and watched and listened as two opposing lawyers attempted to drive toward justice. The prosecutor carefully and meticulously worked to diminish the level of proof required to reach "proof beyond a reasonable doubt". Despite this standard's position as the highest burden of proof in our land, if not the world, "reasonable doubt" was cut to shreds. By the time it was over, any citizen-juror who lacked experience in the law was left to conclude that some degree of doubt was the inevitable result in any presentation of evidence, and that it would be absurd to think no one could be convicted in the presence of such doubt. In his explanation, the prosecutor made no distinction between "reasonable" and "unreasonable" doubt; rather, he suggested that elimination of all "doubt" is impossible. Interestingly (and in my opinion, tragically), the "defense" attorney sat silent. The prosecutor then asserted that we were there as jurors to ultimately decide if the defendant was guilty or "innocent" (which, of course, is a wrong statement of the law). Again, the defense attorney sat silent. As a former prosecutor, I wondered why this prosecutor felt it necessary to minimize his burden of proof and cut against what clearly our forefathers felt was necessary to protect against injustice. Why not embrace the spirit of justice that is the foundation for this standard of proof, and confidently assert his proof is more than sufficient to prove guilt?

I wondered whether the "win" we all pursue becomes more important than the principles on which our country was built; the principles on which our Bible was written. Principles such as that found in Genesis 18 and Exodus 23 where the system of law prioritized the protection of the innocent from punishment; the same principle later reinforced by our forefathers John Adams ("it is more important that innocence be protected than it is that guilt be punished") and Benjamin Franklin ("it is better 100 guilty persons should escape than that one innocent person should suffer") and recognized by our nation's Supreme Court as a principle inherent in our Constitution. It would be good if my experience in jury selection was unusual, but unfortunately I've seen an antagonistic, adversarial approach many times before. We hear prosecutors and defense attorneys sarcastically and derogatorily referring to the other as a member of "the dark side," even though both faithfully seek light and understanding from the same Bible and worship the same God. An attitude of antagonism, distrust and opposition too often pervades their dealings and affects their arguments in court. All too often opposing attorneys travel down the same parallel tracks toward a perceived goal of justice, separated by a chasm void of understanding or empathy.

But today, the juxtaposition of the deaths of my friend Jimmy and the honorable Chip, their faith, and their passion for justice is too much to overlook. I believe the crossroad where their spirits met this year is a place I should seek - - a place where we all should live in our advocacy. I want to continue to examine their lives and work and passion and faith in the conjunction, and know that it has a lesson for me. A lesson about advocacy; about life; and about Biblical and American justice. A lesson that life in our criminal justice system should not just ramble on as before.

Kudos for Award-winning Texas Judges!

May 30, 2012

judge.jpgThe American Board of Trial Advocates awarded two Texas jurists the honor of being a "2012 Jurist of the Year". The Texas chapters of the trial advocacy group named Chief U.S. District Judge Fred Biery of the Western District of Texas and Justice Sue Walker of the Second Court of Appeals (Ft. Worth) in a press release. The organization said the following of the honorees:

"The recipients . . . are held in the highest esteem by TEX-ABOTA members . . . They must be fair and ethical and have made significant contributions toward preserving and promoting the jury trial system."

Texas' sixteen chapters comprised of more than 1,000 members participated in the decision. Congratulations to these two outstanding jurists!!!

New Evidence Software for Lawyers Appointed in Large Federal Cases

May 24, 2012

Good news for lawyers appointed to represent defendants in large document-heavy cases: attorneys can now utilize a web-hosted internet platform for review of large volumes of case material. After the case material is "deposited" in one central repository, it then can be reviewed, tagged and accessed by the lawyer in the privacy of his/her office or home.

The software, styled "CaseVantage", is a secure Internet database review tool for case data and e-discovery. Detailed info on this program can be found here. Similar to the popular database software engine known as Summation, the online CaseVantage system allows each appointed defense attorney on the case to link to and review case data; keep private notes about the data; and tag, filter, annotate and code information about the files which can be shared with others on the team. A big plus is the availability of project management expertise and training for all users.

I spoke with a member of the National Litigation Support Team about the program. There are a couple of hurdles to overcome in order to qualify to use the program. First, the platform does not have room to host all cases. Each potential case is analyzed to determine whether it is suitable for the program. The primary factor appears to be whether the case contains a large amount of case material. It should be noted, however, that the electronic "size" of the material may not be necessarily determinative. For example, if the case involves many audio and/or video files, it may not qualify even though the material is more than a "terabyte" in size. Conversely, if the case involves less than a "terabyte" of material, but such material consists of tens of thousands of scanned pages of documents, it may qualify due to the difficult challenges posed in document review.

Second, the number of appointed attorneys on the case (i.e., CJA Panel lawyers and federal public defenders) will be considered. Attorneys retained by co-defendants would still be able to access the database, but would have to pay for their individual access.

Access to the software program is free to qualifying CJA Panel attorneys and public defenders. Once an attorney's participation is approved, the attorney will be able to access all stored material, including being able to open and view computer file types even if the attorney does not have the underlying software on his/her computer. The program eliminates the need for panel attorneys to have specific hardware, software, or IT support usually necessary to utilize similar evidence-review platforms. For example, you would not need to have Microsoft Excel to view an XLS spreadsheet.

Electronic space is limited on the program, so it remains to be seen how accessible the program will be once the need arises. If you have a case that could possibly qualify, you may want to check into it asap. In addition to the link posted above, for more info contact the friendly folks with the National Litigation Support Team.

Failure to Explain Deportation Consequence Not Necessarily Reviewable in Old Cases

May 17, 2012

About two years ago, the Supreme Court decided in Padilla v. Kentucky that the Sixth Amendment imposes a duty to advise criminal defendants about the potential deportation/removal consequences arising from a guilty plea. Failure to do so nullifies the plea.

Before anyone gets too excited, however, the Fifth Circuit decided this month that Padilla is not applicable retroactively and therefore may not serve as a basis to collaterally challenge a conviction. In other words, even though a defendant pled guilty without having received what is now considered essential advice, he cannot complain about the error if it occurred before March 2010.

In United States v. Amer, the defendant filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255, alleging his attorney failed to inform him that his guilty plea carried a risk of deportation. It appears the government did not dispute that Amer's attorney failed to give him advice about deportation consequences. On its face, this is a challenge squarely fitting within Padilla. Not so fast, Mr. Padilla. In situations where a prisoner is asserting a right based on a recent Supreme Court case, the law allows relief only if (a) the prisoner's claim is made within one year of the Supreme Court "initially" recognizing the right, (b) the prisoner's claim is based on a right "newly recognized" by the Supreme Court, and (c) the right was "made retroactively applicable to cases on collateral review." See 28 U.S.C. § 2255(f)(3). Where retroactivity is not clear, courts apply a formula outlined in another Supreme Court case, Teague v. Lane, to determine whether the rule can be applied retroactively. In Teague, the basic premise is "new" rules of criminal procedure are generally not retroactive.

Unfortunately, the Supreme Court has not yet provided guidance as to whether its holding in Padilla is retroactive. Did the Padilla case requiring defense lawyers to discuss deportation consequences prior to a guilty plea announce a "new" rule of criminal procedure, or was it merely a reasonable extension of an old rule? To be fair, the Fifth Circuit noted in its holding that it was "look[ing] forward to likely resolution of this question by the Supreme Court" as the Supreme Court has granted certiorari to address the matter. Until that time comes, however, the Fifth Circuit decided that a prisoner who suffered ineffective counsel in this manner is out of luck in this circuit if the case was final before March 2010. In Amer, the Fifth Circuit applied the Teague retroactivity formula and held that the Padilla case now requiring advice of deportation consequences announced a "new" rule of criminal procedure, and therefore does not apply retroactively.

Jurors Asking Questions - Changing the Game in Clemens' Trial

May 16, 2012

When Roger Clemens was playing major league baseball, I wonder how he would have felt if the umpire told him in Game 7 of the World Series that fans were going to be allowed to decide whether Clemens should throw a fastball, curve or slider to each batter? Something tells me that he would not have reacted too well. Heck, some pitchers don't like their own managers, catchers or wives making those calls.

Well, that's similar to what is being allowed in Clemens' federal criminal trial. At the conclusion of each witness' testimony, the judge is allowing jurors to submit written questions for the witness. Each juror, if he/she chooses, submits a note card to the judge. The judge, U.S. District Judge Reggie Walton, then reviews the cards at a bench conference with prosecutors and defense lawyers, and each is allowed to object to the question being posed and/or offer an alternative wording. If approved, the judge reads the question(s) to the witness and the witness testifies in response.

Apparently, the judge presiding over Clemens' trial has long advocated for this procedure, reasoning that it helps jurors concentrate on each witness' testimony and adds to a more full understanding of the evidence. This same judge allowed the procedure in the criminal trial of "Scooter" Libby, another high-profile trial, and lawyers for both sides affirmed its benefit.

Questions raised by jurors in the Clemens' trial have been interesting, often giving lawyers a hint of how witnesses and issues are being perceived by the jurors. Here and here are articles listing some of the questions asked by jurors in the Clemens' trial. As noted by my good friend Solomon Wisenberg, one question was particularly helpful for Clemens, when Judge Walton allowed a juror's question to the general manager of the New York Yankees, Clemens' former team. The Yankee GM was asked what Clemens was like as a player and a leader. In true Yankee form, the GM hit the softball question out of the park by going on and on about Clemens' outstanding character traits. Always great to have great character evidence for the defendant right in the middle of the prosecutor's case! Even more so where the character evidence goes further than what would normally be permitted under the rules.

The fact that such evidence is arguably objectionable should not affect the decision of whether to use this procedure. As noted in the two articles highlighted above, the judge scrutinizes each proposed question under applicable rules of evidence and listens to argument from each counsel, so there is the same safeguard that is in place for questions posed by lawyers. I don't know of a Texas federal judge that allows this practice. Personally, I would like to see it. Our judicial system should never be satisfied that it is doing all that it can do to achieve justice. We should continually explore whether new procedures could make the "game" better for all involved, particularly where the stakes are so high.

Court Recognizes Border Area is a Different Place Now

May 3, 2012

It's refreshing when you read a court's opinion and you see that the court has its eyes open to a changing world. Where it recognizes that old cases may no longer reflect reality, and chooses not to merely rubber-stamp a party's same 'ole argument that's worked for years. In United States v. Jones, 2012 WL 1309837, a drug seizure case close to the U.S./Mexico border, the government relied on classic border "roving patrol" case law to justify a traffic stop. As in hundreds of cases through the past decade, the government argued (1) Highway 83 is "notorious for alien and drug smuggling," (2) two vehicles were "driving in tandem," (3) a flatbed was "not typical of oilfield trucks in the area" because it had no company logo on its side doors, and (4) oilfield trucks are not on the highway during nighttime hours. Though these arguments historically have worked in border roving patrol stops, the Jones court took a different approach by choosing to factor in the new business environment along the south Texas border. Going through each of the government's arguments which attempted to establish the agents' reasonable suspicion, the court distinguished prior case law.

The Border's "notorious smuggling" Roads

The government argued that agents first became suspicious when they observed two trucks traveling north on Texas Hwy. 83, a road they described as a "notorious smuggling route" in proximity to the border. This portion of Hwy. 83 runs north/south roughly parallel to and at times no further than 1/2 mile from the Rio Grande River; the river acts as the natural Texas/Mexico border. Citing Fifth Circuit precedent, the government argued that a "road's reputation as a route commonly used for transporting contraband may add to the reasonableness of suspicion." The Jones court, however, distinguished this precedent in making the observation that this "past year alone, Highway 83 and other local roads have seen a marked increase in traffic due to an explosion of oil and gas exploration in the area." The court rejected the government's argument that has been applied historically to vehicles traveling on this road, finding that the recent change in business activity in this area no longer allows the same assumptions of guilt. As found by the court, travel along this road is "insufficient to support a roving patrol stop," "despite the flatbed's presence on a border road frequently used by smugglers."

Two Trucks Driving "in Tandem"

Having seen one truck traveling behind another as they drove north along this Texas highway, the agents concluded the trucks "seemed to be driving in tandem" with each other. Citing Fifth Circuit precedent, the government argued that "belief that two vehicles are traveling in tandem in a lead car and load car arrangement may contribute to reasonable suspicion." The Jones court, however, carefully analyzed the actual circumstances of the vehicles' travel to find that it was "unlikely" that the two trucks were involved in a joint smuggling operation. As the court observed, "certain circumstances cut somewhat against the drawing of a load car-scout car inference." First, the two trucks were traveling only one car length apart, contradicting the agents' theory that the lead truck acted as a "scout" or decoy for the "load" truck. As the court noted, the entire reasoning behind a "tandem" scenario is for one car to act as a decoy and/or scout for the other. Second, prior to stopping defendant Jones' truck (the purported "scout" truck in the front lead position), agents stopped and searched the second truck (the purported "load" truck behind the first) and discovered it did not contain contraband. Basically, the facts didn't fit the government's theory. By not rubber stamping the agents' conclusory "tandem" argument and looking instead at actual facts, the court cut the wind out of the agents' sail of suspicion.

The "Missing Logo" Argument

The government also relied on Fifth Circuit precedent to argue that the trucks were not "typical" of oilfield trucks in the area and this added to the agents' reasonable suspicion. The argument rested on the trucks not having business logos displayed on the side doors. The Fifth Circuit precedent cited by the government involved utility trucks without oil company logos. The Jones court carefully analyzed the precedent and found that one of the situations previously addressed involved trucks on a restricted ranch road, where agents were already familiar with the company trucks that traveled a particular road; in another situation, agents saw a truck that was unusually clean despite having traveled down a ranch road. In distinguishing the precedent, the Jones court again recognized the "recent increase in oil and gas traffic along this road" and the fact that such traffic now involves "trucks of all kinds, with and without logos." Again, current reality trumped historical assumptions.

Notorious "Nighttime" Driving

The government also argued that the two trucks at issue were inherently suspicious because they were traveling "out on the highway past the usual hour for such vehicles." The Jones court again recognized the change in the south Texas business climate, recognizing that "traffic along Highway 83 was decidedly heavy even at the hour when the stop occurred." The court noted that the dramatic increase in oil and gas exploration has resulted in trucks "traveling at all hours of the day and night." Reality trumps historical assumptions.

In the final analysis, the Jones court rejected the government's attempt to add fact upon fact to build a mountain of reasonable suspicion, where the facts simply did not comport with existing reality or common sense. The court ultimately denied the defendant's motion to suppress on other grounds, and properly recognized that agents have an increasingly difficult job on the border given the uptick of dangerous narcotics trafficking activity. Nevertheless, it is great to see a court recognize that different business and cultural environments may warrant a closer and different analysis. In the end, justice was served.

Fifth Circuit Quickly Applies New Plea Bargain Law & Orders Evidentiary Hearing

April 19, 2012

1375194_fire_8.jpgIt did not take long for the Supreme Court's recent decisions to have an effect. This past week, I wrote about two cases handed down in March by the Supreme Court that could alter how closely courts scrutinize a lawyer's advice on whether to accept a plea bargain. Four days after my blog post, the Fifth Circuit issued an opinion citing the two Supreme Court cases, vacated a district court order, and remanded the case for an evidentiary hearing on the issue of a lawyer's alleged ineffective advice in connection with a proposed plea bargain. As I forecasted in my previous blog post, the scrutiny on a lawyer's plea bargain advice begins.

In U.S. v. Rivas-Lopez, the Fifth Circuit reviewed a district court order denying Rivas' 2255 motion raising claims of ineffective assistance of counsel. After having lost his jury trial and subsequent appeals, Rivas filed a 2255 motion for habeas relief, alleging his lawyer overestimated his sentencing exposure under a proferred plea deal. Rivas claims the faulty legal advice led him to reject the offer and stand trial, where he was convicted for several counts associated with an alleged harboring of aliens. Rivas claims he rejected the plea offer because his lawyer advised him that he was facing a sentencing guideline range of 262-327 months if he pled guilty under the proffered deal; he alleges the lawyer told him several guideline enhancements applied in his case. Feeling his exposure was too high to plead guilty, Rivas went to trial.

After trial, however, the trial court decided that Rivas' guideline range was much lower than previously estimated by Rivas' lawyer. It appears that if Rivas had accepted the original plea offer, the guideline enhancements would not have been imposed, he would have received a 3-level reduction for acceptance of responsibility, and his guideline range would have been 87-108 months. Basically, Rivas' complaint is that his lawyer overestimated his sentencing exposure by 154-240 months! After receiving a sentence of 188 months after trial (about 100 months higher than he probably would have received if he pled guilty), Rivas is not too happy.

Continue reading "Fifth Circuit Quickly Applies New Plea Bargain Law & Orders Evidentiary Hearing" »

Lawyers' Confidential Plea Bargain Advice Subject to Scrutiny

April 14, 2012

scrutiny.jpgSeveral weeks ago, the U.S. Supreme Court decided two cases that could bring increased outside scrutiny on confidential lawyer/client plea-bargain colloquy. In Missouri v. Frye and Lafler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies to the plea bargaining process. Facially, this may not seem like too big a surprise, as we assume a lawyer's constitutional duty applies to each significant stage of the case, including pleas. By allowing habeas relief to this specific area, however, the concept could have interesting application on future day-to-day pleas and trials.

Factually, the cases differ. In Frye, the defense attorney failed to convey the prosecutor's plea offer to his client; not surprisingly, the Court held that counsel erred by not relaying a plea offer that could have resulted in a lesser sentence and/or a conviction of a lesser crime. In Cooper, the attorney conveyed the offer to his client, but was held to have erred by giving a constitutionally-defective assessment of the strength of the government's case. Even though both defendants were found guilty in jury trials, counsels' errors with respect to conveying and/or explaining plea offers were held to violate each defendant's Sixth Amendment right to effective assistance of counsel.

Interesting will be the effect these cases have on future cases. In at least one jurisdiction, the Department of Justice took an aggressive, affirmative step to protect convictions by filing a motion to ensure there are no Frye or Cooper violations. The government's motion sought to make a record of the defendant's "plea negotiation activity" in two ways:

  1. 1. Requiring defense counsel to publicly report the government's plea offer to the court in the presence of the prosecutor, and requiring the defendant to publicly acknowledge having rejected the offer (i.e., the government's attempt to address the Frye concern); and,
  2. 2. Requiring defense counsel to privately report to the court the details of the lawyer's confidential advice to his client concerning whether the defendant should accept or reject the plea offer (i.e., the government's attempt to address the Cooper concern).


Understanding that the government and courts could now be concerned that future cases not suffer Frye or Cooper problems, defense counsel should nevertheless be hesitant to readily accede to the above-described government remedies. Attorney Lawrence Goldman does a good job in the White Collar Crime Prof Blog (here and here) of describing how each of the government's requests poses significant problems. To prepare yourself for the possibility of a similar government motion being filed in your case, consider the following.

Continue reading "Lawyers' Confidential Plea Bargain Advice Subject to Scrutiny" »

Can Someone be "Unreasonable" Yet Still Act in "Good Faith"? Curiously . . . yes!

April 5, 2012

How can a court find an intrusive body cavity search was one of the most disturbing and constitutionally "unreasonable" searches possible, yet also find the unreasonable intrusion is not an impediment to the prosecution of its victim? Easy . . . the "good faith" exception! Once again, "good faith" rescues a particularly shocking search and seizure. Is it time to revisit the law? Do we really want this concept of "objective good faith" to sanction use of evidence obtained through plainly "unreasonable" police conduct? I always thought that acting in an "unreasonable" way was mutually exclusive of acting in "good faith." Not in America!

We all want to be comforted by the notion that our Constitution and its Fourth Amendment exist to protect us against "unreasonable" searches and seizures. Seeing this concept played out in a recent case, however, has once again caused me to re-think my level of comfort. In United States v. Gray, the Fifth Circuit addressed a motion to suppress evidence obtained via a "proctoscopic examination under sedation." Basically, Mr. Gray was left awake to witness the forced search of his sedated rectum as a doctor inserted a 5" rigid metal tube; this test was preceded and followed by several digital rectal exams. Though he had repeatedly and expressly denied permission for anyone to probe his rectum, justice marched forward. The facts leading up to this search are notable.

A San Angelo policeman was told Gray possessed and sold crack (it should be noted that nothing in the opinion referenced the reliability of this initial information or credibility of the informant). Based on this tip, officers stopped Gray's car and arrested him for outstanding traffic warrants. Gray's female passenger was "taken into custody" (though there is no indication why) and later told officers that Gray earlier threw a small plastic baggie at her as police were approaching Gray's car and told her to hide it. She told officers she refused to hide it, and, apparently from their subsequent acts, they accepted her story as gospel.

* Officers did an "extensive 2-hour search" of the car, but found nothing.

* Officers conducted two strip searches of Gray, including an instruction that he squat, pull his buttocks apart and cough; they found nothing.

* Officers conducted a strip search of all of the inmates in Gray's holding cell; they again found nothing.

The only source of specific evidence that there indeed existed a plastic bag of crack was Gray's female passenger's allegation and a positive dog alert to the center console of Gray's car. Even though (a) the policeman was unable to offer anything to establish the credibility of this first-time female informant, (b) there was no indication they subjected her to the same type of cavity search perpetuated on Gray, and (c) she never indicated she saw him do anything to take back the baggie, the officer assumed as true the existence of the baggie and concluded that Gray's rectum was the "only place" that it could be hidden. Missing in the court's opinion is an explanation of how Gray would have had the opportunity to quickly hide the baggie for later insertion into his rectum. Based mostly on what the female said transpired inside the car, officers obtained a search warrant from a Texas state judge, authorizing them to search his rectum.

Officers took Gray to the hospital, and a series of examinations ensued. X-rays proved inconclusive of the existence of any abnormal object in Gray's rectum. A doctor's digital exam of Gray's rectum also proved inconclusive of anything foreign inside him. Finally, it was decided that a proctoscopic exam of Gray's rectum would be conducted, despite the availability of less intrusive alternatives:

Continue reading "Can Someone be "Unreasonable" Yet Still Act in "Good Faith"? Curiously . . . yes!" »

Defense Lawyers Put to Task

March 30, 2012

I write this as a reminder to my brother defense lawyers. Two cases came out of the Fifth Circuit this month that highlight the need for me and all defense lawyers to remain vigilant about procedural matters. Because I am not interested in disparaging any particular lawyer, I will not identify the case names in this blog. Rather, my purpose in writing about the cases is to bring to light what all of us already know . . . we must always remain vigilant about applicable procedural rules governing our representation of citizens-accused. Also, I recognize that each case invariably has aspects not identified in an appellate court's summary of facts, and it could be there were sound, strategical reasons for the attorneys' actions in these two cases. Nevertheless, the cases do serve as a good reminder to each of us of the importance of procedural prudence. If you have good reason to know the case names and citations, please contact me at my office and I can give them to you.

In one case, a district court excluded a defense expert witness at trial because the defense attorney failed to give the government a written summary of the expert witness' testimony prior to trial. The district and appellate courts relied on Federal Rule of Criminal Procedure 16(b)(1)(C), which requires advance notice to the government of a summary of anticipated testimony. When questioned by the district court, the defense attorney made a valiant effort to justify his non-disclosure, including the fact that it was impossible to provide an advance written summary of testimony prior to listening to what the government's expert was going to say. I've seen this argument successfully made in the context of not providing an advance disclosure of anticipated defense witnesses. Additionally, the defense attorney argued that the government had prior notice of the defense expert by the fact that he specifically requested that the expert be allowed to observe the government's expert in another case. Unfortunately for the defendant, however, the appellate court affirmed the district court's ruling that prevented the defense expert's testimony on the basis that the prosecutor was not given the proper advance notice under Rule 16.

In a different case, a defendant argued the district court erred in imposing a two-level sentencing enhancement for obstruction of justice pursuant to section 3C1.1 of the federal sentencing guidelines. The facts appear to support the defendant's appellate argument, in that (1) the entirety of the facts which provide the basis of the obstruction enhancement were committed by the defendant's co-defendant, and (2) the defendant declined to accept his co-defendant's invitation that he join in the obstructive conduct. Unfortunately for the defendant, however, his appellate argument was foreclosed by the fact that his defense attorney failed to object to the recommended sentencing enhancement at or prior to the sentencing hearing. Because resolution of this type of enhancement is a factual finding by the sentencing court, failure to object at the trial court level precludes appellate review. The enhancement effectively increased the defendant's guideline range from 57-71 months of imprisonment to 70-87 months. The court sentenced him to 78 months imprisonment.

These cases are stark reminders to all of us.

Applications Due for Western District's Federal Public Defender

March 29, 2012

As you probably know, Henry Bemporad, our current Federal Public Defender for the Western District of Texas, is slated to soon don his judicial robe as the new U.S. Magistrate Judge in the San Antonio Division. Applications are currently being accepted for the position of FPD, with a deadline of April 15th.