F. R. Buck Files, Jr.
Stories from F. R. Buck Files, Jr.
On February 24, 2017, a panel of the United States Court of Appeals for the First Circuit affirmed the judgment and sentence of the district court, holding that government agents may influence where a federal crime occurs, and that there is no such thing as manufactured venue or venue entrapment. United States v. Valenzuela, ___F.3d___, 2017 WL 727553 (1st Cir., February 24, 2017) [The Panel: Chief Judge Howard, Associate Justice Souter (retired, sitting by designation), and Circuit Judge Stahl (Opinion by Stahl)].
Michael Thorvald Laursen was 45 years of age and having a sexual relationship with J.B., who was only 16. Because the age of consent is 16 in the State of Washington, Laursen was not in violation of state law. On occasion, Laursen and J.B. would take sexually explicit “selfie” photographs. It never occurred to Laursen that this could cause him to be a defendant in a federal criminal case.
Last June, the United States Court of Appeals for the Sixth Circuit held that a non-citizen defendant could not establish prejudice resulting from his lawyer’s deficient performance in advising him that he would not be subject to deportation if he pleaded guilty to a drug offense and affirmed the district court’s denial of Lee’s § 2255 motion to vacate his conviction and sentence. Lee v. United States, 825 F.3d 311 (6th Cir. 2016) [Circuit Judges Norris, Batchelder and Sutton (Opinion by Batchelder)]. See also Lee v.
Robert M. Parker was a great federal judge. Before he served on the United States Court of Appeals for the Fifth Circuit, he sat in Tyler as the Chief Judge of the United States District Court for the Eastern District of Texas. He could make any appearance before him interesting, challenging—and even fun. One year, he spoke on the topic of “Departures” at the Advanced Criminal Law Course of the State Bar of Texas. His thesis was simple: Defense lawyers win few jury trials.
Like the Roadrunner and Wile E. Coyote, those who would watch child pornography and those who would prosecute them for doing so continue to try to outwit each other. In the real world, though, it is Mr. Coyote (the Government) who often prevails. Recently, I learned about the child pornographers’ use of The onion router (“Tor”) and the Government’s use of a Network Investigative Technique (“NIT”). United States v. Croghan, ___F.Supp.3d___, 2016 WL 4992105 (S.D. Iowa Sept. 19, 2016), and United States v.
On July 12, 2016, United States District Judge William H. Pauley III, of the Southern District of New York, granted the defendant’s motion to suppress the narcotics and drug paraphernalia recovered by law enforcement agents in connection with a search of his apartment. Judge Pauley held that (1) the warrantless use of a cell-site simulator to locate the defendant’s apartment as the place of use for the target cell phone, was an unreasonable search; (2) the attenuation doctrine was inapplicable; and, (3) the third-party doctrine was also inapplicable [emphasis added].
Only one criminal defense lawyer in America has ever before seen the fact situation that was presented to the United States Court of Appeals for the Sixth Circuit. United States v. Collins, ___F.3d___, 2016 WL 3583999 (6th Cir. 2016) [Panel: Circuit Judges Guy, Batchelder, and Cook. Opinion by Judge Guy.] That lawyer was the attorney of record for Mr. Collins.
Some 40 years ago, fellow TCDLA member Pat Ireland and I were representing a constable from Lamar County who had been indicted for violating the civil rights of some devil worshippers by whipping up on them. [That wasn’t the language of the indictment, but it was the gist of the offense.] In spite of our best efforts, the jury had no difficulty in returning a verdict of guilty. When it came time for sentencing, though, we had a great day.
On May 10, 2016, a panel of the United States Court of Appeals for the Tenth Circuit held that a defendant faced some danger of self-incrimination if he was required to answer mandatory questions during a sex offender history polygraph; and, the government’s threat to seek revocation of the defendant’s supervised release constituted an unconstitutional compulsion to submit to such a polygraph under the Fifth Amendment. [The panel: Circuit Judges Briscoe, Seymour, and Lucero (opinion by Seymour)] United States v.
This column is about Robert C. Nalley, a Maryland state judge who committed a federal criminal offense in a courtroom where he was hearing pre-trial matters before jury selection began. You will see in real time what the judge does and how it impacted the defendant, Delvon King-Ali, who was standing before him:
The event has occurred on thousands of occasions. Terry Trooper sees Danny Defendant driving on his highway. Something catches Terry’s attention that causes him to believe Danny has committed or is committing a criminal offense. Terry initiates a traffic stop that leads to a conversation with Danny, a seizure of something, and a warrantless arrest. The issue for the trial court or the appellate court is always the same: Did Terry have probable cause or a reasonable suspicion that Danny had committed or was committing a criminal offense?
On January 29, 2016, a panel of the United States Court of Appeals for the Second Circuit held that as matter of first impression, where officers have summoned a defendant to the door of his house, they may not effect a warrantless “across the threshold” arrest in the absence of exigent circumstances; and, that a warrantless “across the threshold” arrest of a defendant, who was summoned to door of his home for such purpose, violated the Fourth Amendment. United States v. Allen, ___ F.3d ___, 2016 WL 362570 (2016).
A prosecutor who is overly aggressive can introduce error into the trial of a case. A defense lawyer who sits on his hands and does not object can limit the appellate court’s consideration of an issue to a plain error standard. A trial judge who considers testimony improperly adduced by an aggressive prosecutor in determining what sentence to impose can make the case difficult for an appellate court to affirm. That is the conduct of the district judge and the two lawyers in United States v. Moreno, ___F.3d___, 2016 WL 53796 (3rd Cir. 2016).
On August 12, 2014, I underwent open heart surgery at East Texas Medical Center Hospital in Tyler in order to relieve the 95 percent blockage in my widow maker and the significant blockage in two of my other coronary arteries. During my first conversation with my surgeon after I left the intensive care unit, I heard him say: “You were a ticking time bomb.
Perhaps it is because La Cosa Nostra cases have never been prosecuted in the Tyler division of the Eastern District of Texas that I usually enjoy reading the opinions in LCN cases, both as to the facts and the legal issues. And, I was not disappointed in my reading of U.S. v. Messina, __ F.3d ___, 2015 WL 7005546 (2nd Cir. 2015) [Panel: Circuit Judges Calabresi, Cabranes, and Raggi (Opinion by Raggi)].
Sometimes words don’t mean what they should. Consider, for example, the words “border search.” Where would a border search be conducted? At the border. Wrong. If you go to WestLaw’s ALLFEDS database and type in the query “international airport” & “border search,” you will see that there have been 337 cases that arose out of border searches conducted at international airports.
More than forty years ago, United States District Judge William Wayne Justice appointed me to represent a pro se petitioner who was seeking habeas relief in his court. This petitioner had also appeared pro se in a divorce proceeding and had been called to the stand by his wife’s lawyer. While testifying, he admitted to many acts of sexual intercourse with his young daughter. After that case was concluded, the trial judge had a statement of facts prepared and sent it to the local district attorney.
On August 7, 2015, the United States Court of Appeals for the Eighth Circuit affirmed the defendant’s conviction and held that, as a matter of apparent first impression, an alert registered by a license plate recognition (LPR) system which a police officer used to scan license plates of nearby cars provided reasonable suspicion of criminal activity of a kind supporting an investigatory stop of a vehicle. United States v. Williams, ___F.3d___, 2015 WL 4666312 (8th Cir. 2015) [Panel: Circuit Judges Gruender, Beam, and Benton (opinion by Gruender)].
Unless you are the very best or the very worst at what you do, there is always someone above you or below you on the competency totem pole. This is true without regard to one’s profession or job. Whether it’s doctors or lawyers or dentists on the one hand or welders or painters or mechanics on the other, it’s a fact of life. For example, we all know a surgeon whom we would want to take care of us in the event of an emergency—and we know another surgeon whom we would never want in the operating room with us.
Aron Lichtenberger will not be prosecuted for his possession of child pornography because his lawyer prevailed on a Fourth Amendment issue. United States v. Lichtenberger, 2015 WL 2386375 (6th Cir. May 20, 2015) [Panel: Circuit Judges Merritt, Stranch, and Donald (who authored the opinion)].
A Synopsis of the Facts