F. R. Buck Files, Jr.

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Buck Files, a member of TCDLA’s Hall of Fame and the President of the State Bar of Texas, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

Stories from F. R. Buck Files, Jr.

Wednesday, October 10th, 2018

For all those clients and their lawyers who have Carpenter issues on appeal, August was BAD NEWS MONTH for them. We all remember that on June 22, 2018, the Supreme Court held that the Government must generally obtain a search warrant supported by probable cause before acquiring CSLI from a wireless carrier. Carpenter v. United States, 138 S.Ct. 2206 (2018).

Friday, August 24th, 2018

Over the last several months, I have realized that it has been some time since I wrote a column about a case having an ineffective assistance of counsel issue. Then along came United States v. Aguiar, 894 F.3d 351 (D.C. Cir. 2018) [Panel: Circuit Judges Rogers, Griffith, and Srinivasan (opinion by Rogers, Griffith dissenting)]. In Aguiar, a divided panel of the Circuit held that the defendant’s attorney performed deficiently in failing to advise his client of the clear and easily determinable consequences of rejecting a plea offer.

Thursday, July 26th, 2018

On June 22, May 29, and May 14, 2018, the Supreme Court released opinions in three cases that reversed the judgments of the United States Court of Appeals for the Sixth Circuit, the Supreme Court of Virginia, and the United States Court of Appeals for the Third Circuit. Each of these cases was concerned with a significant search issue. In each case, a motion to suppress evidence was filed by the defendant’s lawyer and denied by the trial judge.

Tuesday, June 5th, 2018

Since I have a dislike for the conducting of judicial proceedings by videoconference, I was pleased to read the opinion of the United States Court of Appeals for the Seventh Circuit in United States v. Bethea, ___F.3d___, 2018 WL 1959638 (April 26, 2018). A panel of the Circuit held that a defendant (Bethea) could not affirmatively consent to a felony plea by videoconference—and, that the error was per se prejudicial error, warranting automatic reversal. [Panel: Circuit Judges Bauer, Flaum, and Manion. Opinion by Judge Flaum.]

Saturday, April 28th, 2018

I have vivid memories of the trial of a conspiracy case that took place 40 years ago. There were seven of us sitting at the defense table representing our clients. Early on, it became obvious that we had almost as much to worry about from one of our brethren as we did from the Government.

Saturday, March 31st, 2018

Almost four years ago, the Supreme Court held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Riley v. California, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) [Opinion by Chief Justice Roberts, in which Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Alito filed an opinion concurring in part and concurring in the judgment].

Friday, March 9th, 2018

It must be such an irritation for a judge to have folks wander into the courtroom when the lawyers are conducting their voir dire examinations of the jury panel. In response to this irritation, some judges began to close their courtrooms during the voir dire—even in the trials of criminal cases. Then the Supreme Court held that a defendant’s Sixth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire examination of prospective jurors—and courtrooms began to remain open. Presley v. Georgia, 130 S.Ct.

Tuesday, February 6th, 2018

The Department of Homeland Security and the Department of Justice are competing against each other in a turf battle and playing tug of war with our clients. DHS is tugging on one arm, seeking deportation. The Department of Justice is on the other arm, seeking prosecution. This is a fact situation we have seen recently in two cases: United States v. Boutin, ___F.Supp.3d___, 2017 WL 6611569 (E.D.N.Y. December 20, 2017) [Memorandum and Order, Chief United States District Judge Dora L. Irizarry], and United States v.

Thursday, December 14th, 2017

When I go to the doctor, I expect to get answers to my questions. What’s wrong with me? What do you need to do to make me feel better? How long will that take?

Tuesday, October 31st, 2017

For those of us who live and practice law in cities near interstate highways, it is common for us to represent clients who have been stopped by law enforcement officers while they were driving rental cars and transporting drugs. In each of these cases, we consider filing a motion to suppress the evidence discovered and seized by the officers. Often, there is an issue as to whether our clients have standing to challenge the search of their vehicles and the seizure of the drugs.

Saturday, September 30th, 2017

On September 6, 2017, I received an email from my immigration guru, Richard Fischer of Nacogdoches. Attached to that email was a copy of Matter of Ali Mohamed Mohamed, 27 I&N Dec. 92 (BIA 2017), Interim Decision #3900. This was a September 5th decision of a panel of the U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals.

Thursday, August 31st, 2017

No client is more self-righteously indignant than the one who learns that he has been tricked into giving a confession by officers using a variation of the very old “we-found-your-fingerprints-at-the-scene” ploy. Unfortunately for the client, the courts have approved the use of such trickery—e.g.,

Tuesday, July 25th, 2017

On June 23, 2017, the Supreme Court held that the defendant, Jae Lee, had demonstrated a reasonable probability that he would not have pleaded guilty if he had known that it would lead to his mandatory deportation, and thus, his lawyer’s erroneous advice as to the deportation consequences of his guilty plea prejudiced him and amounted to ineffective assistance of counsel. Lee v. United States, ___S.Ct.___, 2017 WL 2694701 (June 23, 2017) [Opinion by Chief Justice Roberts in which Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined.

Tuesday, June 6th, 2017

Congress can create laws and the federal courts can interpret these laws, but we are seldom caught off guard by them. At least we have the opportunity to be aware of, for some considerable time, what each is considering.

Tuesday, May 9th, 2017

Last Spring, I came across an article from the Los Angeles Times written by Matt Hamilton and Richard Winton entitled “A New Frontier in Battle Over Digital Security.” 2016 WLNR 13156357 (April 30, 2016). Because I had been interested in whether individuals can be required to unlock their iPhones and iPads by having their fingerprints involuntarily placed on these devices, I kept the article for another day—which is today. The article reads, in part, as follows:

Thursday, March 30th, 2017

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)].

Thursday, March 9th, 2017

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.

Wednesday, January 25th, 2017

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.

Tuesday, December 6th, 2016

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.

Saturday, November 5th, 2016

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.