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, January 6th, 2016

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)].

Saturday, November 21st, 2015

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.

Saturday, October 10th, 2015

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.

Wednesday, September 16th, 2015

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)].

Thursday, August 13th, 2015

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.

Friday, July 10th, 2015

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

Thursday, May 21st, 2015

In the December edition of the Voice, I wrote about the Supreme Court granting certiorari in Rodriguez v. United States, ___S.Ct.___, (U.S. 2014), 2014 WL 1766135. I was correct then in predicting that this could be a huge case. It involved a traffic stop prolonged for less than ten minutes while everyone waited for the arrival of a backup officer so that a drug dog could do his sniffing. The United States Court of Appeals for the Eighth Circuit found this to be a de minimis intrusion, not in violation of the Fourth Amendment.

Sunday, April 12th, 2015

On March 2, 2015, the Supreme Court handed down its opinion in Raynor v. Maryland __S.Ct.__, 2015 WL275603 (2015): “Petition for writ of certiorari to the Court of Appeals of Maryland denied.”

I am always curious about the facts in those cases that the Justices of the Supreme Court choose not to hear. Sometimes, I look at the earlier opinions in these cases and one of them—as today—becomes the subject of this column.

Wednesday, March 4th, 2015

Batson v. Kentucky, 476 U.S. 79 (1986), is such a familiar case that judges writing on a peremptory challenge issue commonly refer to it as Batson without giving the full title of the case or the citation.

Thursday, February 12th, 2015

On January 13th, a panel of the United States Court of Appeals for the Seventh Circuit [Circuit Judges Posner, Kanne, and Rovner (Opinion by Judge Posner)] handed down its opinion in four cases that had been consolidated for oral argument, United States v. Thompson v. Ortiz v. Bates v. Blount, ___F.3d___, 2015 WL 151609 (7th Cir. 2015). In each of the cases, the judgment of the district court was reversed and the case was remanded for resentencing.

Tuesday, January 20th, 2015

Waldo Snerd’s lawyer, Herman Glertz, was plagued by nightmares. There was a common theme: A horde of federal agents in possession of a search warrant for Waldo’s home or business descended upon his residence. While there or at his place of business, they interrogated Waldo and obtained an inculpatory statement from him. After Waldo was indicted, Herman filed a motion to suppress the statement in each case, alleging that Waldo was in custody and that no Miranda warning was given to him.

Saturday, December 6th, 2014

Federal Defenders and State Public Defenders are often the unsung heroes of the criminal defense bar. In so many of their cases, both the law and the facts are against them, and they have, at best, an ungrateful client. Yet, these lawyers work hard trying to make chicken salad out of chicken feathers.

Tuesday, November 4th, 2014

On the front page of the New York Times on September 2, 2014, was an article by Adam Liptak entitled “Seeking Facts, Justices Settle for What Briefs Tell Them.” From this article we learned that:

The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

Thursday, October 2nd, 2014

In the Democratic primary election of 1970, an East Texas county judge was unsuccessful in his bid for re-election—and, after hearing the results, he went to bed. A lawyer, who had represented many defendants in that judge’s court, was overjoyed when he learned of the judge’s defeat and began to celebrate. After consuming far too much of whatever it was that he was drinking, he called the judge—who was asleep—and said, “YOU AIN’T JUDGE NO MORE!” The judge responded, “I am until January 1, 1971.” At that moment, the lawyer learned of the heartbreak of premature celebration.

Tuesday, August 19th, 2014

On June 26, 2014, the headline in The New York Times read, “Justices, 9–0, Rule Cellphone Search Needs a Warrant.” The day before, the Supreme Court had announced its decision in Riley v. California, ___S.Ct.___, WL 2864483 (2014), holding that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Chief Justice Roberts authored the opinion of the Court. All of the other Justices except for Justice Alito joined in the opinion.

Thursday, July 17th, 2014

Prosecutorial discretion can be a wonderful thing. Over the years, Texas and federal prosecutors have listened to my pleas for leniency and—on a bunch of occasions—have chosen either not to indict or to charge my client with the commission of a lesser offense. Sometimes, though, prosecutorial discretion can go the other way and a client can receive a harsh sentence that is simply not appropriate under the facts of the case. We’ve all seen that.

Wednesday, June 4th, 2014

Part Two: The Supreme Court’s Decision in Paroline

Introduction

In Part One, I discussed Paroline’s journey from the United States District Court for the Eastern District of Texas to the Supreme Court of the United States, and how Stanley Schneider, Casie Gotro, and I became Paroline’s Team. Now, we continue with the Supreme Court’s resolution of his case.

We Win the Causation Issue

Tuesday, April 29th, 2014

On February 24, 2014, the Supreme Court, in a per curiam opinion, held that a defense counsel’s failure to request additional funds to replace an inadequate expert amounted to deficient performance. Hinton v. Alabama, 134 S. Ct. 1081 (2014). One sentence from that opinion leaped from the page and grabbed me by the throat: “Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” Harrington v. Richter, 562 U.S.

Wednesday, January 29th, 2014

On December 5, 2013, a panel of the United States Court of Appeals for the Seventh Circuit did not send Frank Caira an early Christmas present; instead, they affirmed his convictions for conspiracy to commit murder of a United States official and solicitation of a violent felony. United States. v. Caira, ___F3d___, 2013 WL 6326589 (7th Cir. 2013) [Panel: Chief Judge Wood and Circuit Judges Easterbrook and Hamilton. Opinion by Chief Judge Wood].

The Court held that: