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.

Tuesday, October 1st, 2013

For this column, I decided that I would break my mold and try something different. For the past 170+ columns, I have focused on only one case per column, but I saw something in mid-August that was just too good to pass up. Lawyers in two cases were engaging in role reversals. In the Third Circuit, a defendant’s attorney complained of the district court’s refusal to grant use immunity to a defense witness. U.S. v. Quinn, ___F.3d___, 2013 WL 4504647 (3rd Cir.

Saturday, September 7th, 2013

Unintended legal research almost always begins with my finding an article in the New York Times that peaks my interest and leads me into doing some structured WestLaw research. That happened on July 30th, as I was looking at the New York Times app on my iPad and saw an article entitled “Warrantless Cellphone Tracking Is Upheld” by Somini Sengupta that was to appear in the next morning’s edition of the Times. The article began with these two lead paragraphs:

Saturday, July 20th, 2013

Scott Rothstein was a successful lawyer who became the Chairman and CEO of Rothstein, Rosenfeldt and Adler, P.A. (RRA)—a Florida law firm with 70 lawyers. But that’s not the story.

Rothstein was charged in a five-count Information that alleged violations of the RICO statute: 18 U.S.C. § 1962(c). The charges were based on a common allegation that Rothstein operated a “Ponzi” scheme by

Thursday, June 6th, 2013

United States District Judge Karon Owen Bowdre of the United States District Court for the Northern District of Alabama, Southern Division, recently authored a memorandum opinion having to do with the Crime Victims Right Act: 18 U.S.C. § 3771. United States of America v. Michael Heath Thetford, WL 1309851 (2013). The CVRA can be a pain for defense lawyers, prosecutors and the judges of the federal courts. Any defense lawyer who has been through a case involving a Ponzi scheme with multiple victims can attest to this.

Tuesday, May 7th, 2013

A conflict of interest between a lawyer and a client is a terrible thing. Even an allegation that such a conflict existed at the time of the lawyer’s representation of the client can haunt the lawyer for years to come. The safest course to take when there is such an allegation is for the lawyer to run away and fight another day.

Wednesday, April 3rd, 2013

On February 19, the Supreme Court held that the Summers rule, which allows officers executing a search warrant to detain the occupants of the premises, is spatially constrained and limited to the immediate vicinity of the premises to be searched. Bailey v. United States __S.Ct.__, 2013 WL 598438 (2013). KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a concurring opinion, in which GINSBURG and KAGAN, JJ., joined.

My Report to TCDLA
Tuesday, February 12th, 2013

When Waxahachie attorney Ron Bunch and I were elected to the State Bar Board of Directors in 2004, we became the only TCDLA members to be serving on the board. What we found was appalling: The Executive Director of the State Bar of Texas had never worked with—or even met—the Executive Directors of TCDLA or TDCAA.

Tuesday, February 12th, 2013

Fernando Fraga had a partial victory at the United States Court of Appeals for the Fifth Circuit on January 10, 2013. A panel of the Circuit held that United States District Judge Janis Graham Jack’s a sentencing error in automatically imposing a lifetime sentence of supervised release affected the defendant’s substantial rights. The Court vacated the order pertaining to Fraga’s lifetime term of supervised release and remanded the case for further proceedings on this issue. __ F.3d __ (5th Cir.

Friday, December 28th, 2012

On March 28, 2012, a panel of the United States Court of Appeals for the Seventh Circuit affirmed the conviction of Marvin Peugh and the 70-month sentence imposed by United States District Judge Fredrick Kapala of the Northern District of Illinois. The Court held that using the United States Sentencing Guidelines in effect at time of sentencing, rather than at the time of the offense, did not violate the Ex Post Facto Clause. (Emphasis added.) United States v. Peugh 675 F.3d 736 (7th Cir.

Tuesday, November 20th, 2012

The Honorable Carl E. Stewart is now the Chief Judge of the United States Court of Appeals for the Fifth Circuit. He is a Clinton appointee who has served on the Court since 1994 and became Chief Judge on October 1, 2012. He is the first African-American to serve in this capacity.

Thursday, October 25th, 2012

On occasion, the Supreme Court will tease us by handing down a three-line opinion that does not give us guidance but only raises questions. That is what occurred on October 1, 2012, when the Court wrote, “The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Williams v. Illinois, 132 S.Ct. 2221 (2012). Shanton v.

Wednesday, October 3rd, 2012

On August 14, 2012, The United States Court of Appeals for the Sixth Circuit affirmed the conviction of Melvin Skinner, a drug defendant whom law enforcement officers had tracked—by using data from Skinner’s cell phone—from Tucson, Arizona, to near Abilene, Texas, where they arrested him. United States v. Skinner, ___ F.3d ___, 2012 WL 3289801 (6th Cir. 2012)


Thursday, September 6th, 2012

Finally, a breath of sanity. On July 6, 2012, the United States Court of Appeals for the Fifth Circuit, sitting en banc, held that a SORNA registration requirement was unconstitutional as applied to Anthony James Kebodeaux. United States v. Kebodeaux, __F.3d __, 2012 WL 2632106 (5th Cir.

Friday, June 29th, 2012

Alexander Frank McKinnon could not have read Burglaries for Dummies. If he had, he would have paid attention to rule 46: “When driving around looking for houses to burgle, make certain that your vehicle’s inspection sticker is valid.” Because of his inattention to detail, McKinnon is now serving a sentence of 30 months in a federal prison.

In affirming his conviction, a panel of the United States Court of Appeals for the Fifth Circuit held that:

Saturday, June 2nd, 2012

April 11, 2012, was a great day for Jesus Rodriguez, who learned that the United States Court of Appeals for the District of Columbia Circuit held that his trial counsel provided ineffective assistance by not reasserting Rodriguez’s eligibility for safety-valve relief after he had truthfully debriefed. United States v. Rodriguez, ___ F.3d ___, 2012 WL 1193763 (D.C. Cir. 2012) [Panel: Circuit Judge Henderson and Senior Circuit Judges Williams and Ginsburg. (Opinion by Judge Henderson.)]

Tuesday, April 24th, 2012

Several years ago, I was on a cruise ship that had docked in Kusadasi, Turkey. I called the office to check in and found out that I had a crisis. Over the next four hours I made or received a number of calls as we tried to work through the issues. When you have a cell phone, you’re always in touch with your home or your office or your clients or your friends. I love my cell phone. Law enforcement officers like cell phones, too. Individuals whom they arrest often have cell phones that contain information that will help the government convict them.

Saturday, March 24th, 2012

Rondrick Lamar Gray recently learned an important lesson. Be careful where you hide the dope. On February 12, 2012, a panel of the United States Court of Appeals for the Fifth Circuit affirmed Gray’s conviction for possession of crack cocaine with the intent to distribute. United States v. Gray, ___ F.3d ___, 2012 WL 315989 (5th Cir. 2012) [Panel: Circuit Judges Benavides, Prado, and Graves. Opinion by Judge Prado.]

Thursday, February 9th, 2012

On December 16, 2011, the United States Court of Appeals for the Fifth Circuit held, as a matter of first impression, that the Equal Protection Clause prohibits a black defendant from using a peremptory challenge to strike a white prospective juror because of that juror’s race. United States v. Bennett; ___ F.3d ___, 2011 WL 62755703 (5th Cir. 2011) [Panel: Circuit Judges Smith, Prado (who authored the opinion) and Elrod]. Was I surprised at the holding of the Court? Yes, because I thought that this issue had been decided years ago.

Tuesday, December 13th, 2011

Do we have undocumented aliens in Texas? [Yes!] Do undocumented aliens sometimes ride as passengers in motor vehicles? [Yes!] Do we have ICE agents in Texas? [Yes!] If a law enforcement officer stops a vehicle for a traffic offense and has reason to believe that a passenger in the vehicle is an undocumented alien, can he take a “time-out” to call an ICE agent? “Yes,” says the United States Court of Appeals for the Fourth Circuit. See United States v. Guijon-Ortiz, 2011 WL 5438974 (4th Cir. 2011).

Tuesday, November 22nd, 2011

Federal Rule of Evidence 403 can be the barrier that keeps the government from introducing that evidence against your client that will virtually guarantee a conviction.