October 2018 SDR - Voice for the Defense Vol. 47, No. 8

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Wednesday, October 10th, 2018

Voice for the Defense Volume 47, No. 8 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

        1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

        2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

        3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Editor’s note: the SCOTUS remains on summer recess.

October 2018 SDR-1

United States Court of Appeals for the Fifth Circuit

United States v. Anderton, No. 17-40836, 2018 U.S. App. LEXIS 22845 (5th Cir. Aug. 16, 2018) (designated for publication) [8 U.S.C. § 1324(a)(1)(A)(iv) & (v) (bringing in and harboring illegal aliens) and legality of illegal aliens residing in the United States]

        Under 8 U.S.C. § 1324(a)(1)(A)(iv) & (v) (Bringing in and harboring illegal aliens), it is illegal to (personally or in a conspiracy) encourage or induce an alien to come to, enter, or reside in the United States knowing or in reckless disregard of the fact that such residence is or will be per law.

        8 U.S.C. § 1324(a)(1)(A)(iv) & (v) is not unconstitutionally vague because “encourage” and “induce” are sufficiently clear to provide fair notice to the public and guide law enforcement.

        Under Arizona v. United States, 567 U.S. 387, 407, although it is not a crime for a removable alien to remain present in the United States, it is a civil offense, and aliens who reside here without authorization are “per law” for purposes of 8 U.S.C. § 1324(a)(1)(A)(iv) & (v).

Facts:

  • Anderton was president of A&A Landscape and Irrigation.
  • In 2011, under penalty of perjury, Anderton signed Form I-129 (Petition for a Nonimmigrant Worker), stating that the job would not involve overtime and visa workers would be paid the highest of the most recent prevailing wage that is or will be issued by the Department of Labor.
  • The prevailing wage was $8.16 to $11.16 and $12.24 for overtime.
  • In 2016, Anderton was charged with violating 18 U.S.C. § 1546(a) (Fraud and misuse of visas, permits, and other documents) (Count 1), 8 U.S.C. § 1324(a)(1)(A)(v)(I)(Count 2) (Bringing in and harboring illegal aliens), and 8 U.S.C. § 1324(a)(1)(A)(iv) (Counts 3–6).
  • Anderton moved to dismiss Count 1 for failure to state an offense and Counts 2–6, arguing that “reckless disregard” is a constitutionally deficient mens rea. The court denied both motions.
  • Three visa workers worked overtime and were not paid for it.
  • Anderton withheld $1,000 of their pay for “visa expenses.”
  • Anderton withheld some of their pay for rent.
  • All were paid far less than time-and-a-half for overtime.

8 U.S.C. §1324(a)(1)(A)(iv) & (v) is not unconstitutionally vague

  • Under 8 U.S.C. § 1324(a)(1)(A)(iv) & (v), it is illegal to (personally or in a conspiracy) encourage or induce an alien to come to, enter, or reside in the United States knowing or in reckless disregard of the fact that such residence is or will be per law.
  • 8 U.S.C. § 1324(a)(1)(A)(iv) & (v) is not unconstitutionally vague because “encourage” and “induce” are sufficiently clear to provide fair notice to the public and guide law enforcement.
  • The district court instructed the jury that encourage means to knowingly instigate, help, or advise, and induce means to knowingly bring about, to effect, or cause or to influence an act or course of conduct.

Merely residing in the United States as an illegal alien is a crime for purposes of 8 U.S.C. §1324(a)(1)(A)(iv) & (v)

  • Under Arizona v. United States, 567 U.S. 387, 407, although it is not a crime for a removable alien to remain present in the United States, it is a civil offense, and aliens who reside here without authorization are “per law” for purposes of 8 U.S.C. § 1324(a)(1)(A)(iv) & (v).
  • Thus, encouraging or inducing an alien to reside in the United States is a crime.

Editor’s note: if this appellant indeed withheld $1,000 of pay and refused to pay time-and-a-half for overtime to landscaping guys making close to minimum wage, then this defendant is not a very nice guy. It’s no wonder good landscaping guys are hard to find:

October 2018 SDR-2

United States v. Calton, No. 17-10541, 2018 U.S. App. LEXIS 23204 (5th Cir. Aug. 20, 2018) (designated for publication) [Amendment 782 sentence reductions under 18 U.S.C. § 3582(c)(2) and subsequent Amendment 782 motions]

        Under Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986), federal appellate courts have a special obligation to satisfy both their own jurisdiction and also of the lower courts even if the parties concede it.

        Under 18 U.S.C. § 3582(c)(2), if a defendant who was sentenced to prison based on a sentencing range that has subsequently been lowered by the Sentencing Commission files a motion, the court may reduce the sentence after considering the factors set forth in 3553(a) to the extent that they are applicable and the reduction is consistent with applicable policy statements issued by the Commission.

        Under Arbaugh v. Y&H Corp., 546 U.S. 500, 515–516 (2006), if Congress clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts must treat the restriction as nonjurisdictional.

        A district court has jurisdiction to consider a successive § 3582(c)(2) motion.

        Under 28 U.S.C. § 1291, the Court of Appeals has appellate jurisdiction over § 3582(c)(2) determinations because denials of sentence reductions are unquestionably final decisions of a district court since they close the criminal cases again.

        Res judicata is proper only if: (1) the parties must be identical in the two suits; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the same cause of action must be involved in [*13] both cases. Res judicata prevents collateral attack on the result of the completed lawsuit between the same parties.

        A § 3582(c)(2) motion is not a civil postconviction action but a step in a criminal case, so the denial of the motion does not operate as a res-judicata bar.

        The doctrine of the law of the case applies to a single proceeding and operates to foreclose reexamination of decided issues either on remand or on a subsequent appeal. Law of the case is not a jurisdictional rule, but a discretionary practice. Unlike res judicata, the law of the case doctrine does not encompass issues presented for decision but left unanswered by the appellate court. Law of the case does not apply where a court has not previously decided the issue.

        Where a drug-quantity-based offense level is higher than the career-offender offense level, the U.S.S.G. range is based on drug quantity. Amendment 782 applies to such sentences.

Glass v. Paxton, No. 17-50641, 2018 U.S. App. LEXIS 22843 (5th Cir. Aug. 16, 2018) (designated for publication) [Texas Campus Carry Law does not violate the First or Second Amendments or the equal protection clause]

        Editor’s Note: Glass is a liberal arts professor at UT-Austin’s Department of Sociology and Population Research. Moore and Carter are professors of English. All are referred to as “Glass.”

Facts:

  • In 2015, Texas enacted Tex. S.B. 11, 84th Leg., R.S. (2015), under Tex. Gov. Code § 411.2031, the Campus Carry Law. It permits those who are firearms-carry license-holders to carry handguns on public college campuses. Campuses may still establish regulations concerning the storage of handguns in residence halls.
  • A person allowed to carry a firearm must be a Texas resident who is at least 21 years old, has not been convicted of a felony or family violence misdemeanors, is not chemically dependent, has participated in handgun training, and has passed a proficiency examination under Tex. Gov. Code §§ 411.172, 411.174, 411.188.
  • Before instituting campus concealed-carry regulations, colleges must first consult with students, staff, and faculty regarding the nature of the student population, specific safety considerations, and the uniqueness of the campus environment.
  • Following enactment of the Campus Carry Law, the UT-Austin (“University”) established a group consisting of students, alumni, staff, and faculty tasked with recommending rules and regulations for concealed carry on campus.
  • Some opposed concealed handguns in classrooms claiming that they would “have a substantial chilling effect on class discussion.”
  • Glass, Moore, and Carter (“Glass”) filed suit seeking declaratory relief on the constitutionality of the Campus Carry Law and injunctive relief against enforcement of the law and University policy.
  • Glass claimed that the law and policy violate her: (1) First Amendment right to academic freedom by chilling her speech inside the classroom; (2) rights under the Second Amendment because firearm usage in her presence is not sufficiently “well-regulated”; and (3) right to equal protection because the University lacks a rational basis for determining where students can concealed-carry handguns.
  • Glass claimed that her classroom speech would be “dampened to some degree by the fear” it could initiate gun violence in the class by students who have “one or more handguns hidden but at the ready if the gun owner is moved to anger and impulsive action,” expressing particular concern for “religiously conservative students who have extreme views” and “openly libertarian students” that Glass “suspects are more likely to own guns given their distaste for government.”
  • Glass also claimed that to the extent the Second Amendment recognizes an individual right to carry firearms, persons not carrying arms have a right to the practice being well-regulated.
  • Texas moved to dismiss the claims for lack of standing under Fed. Rule Civ. Proc. 12(b)(1) and failure to state a claim under Rule 12(b)(6).
  • The district court dismissed Glass’ claims without prejudice.

Glass’ First Amendment claim is without merit and she has no standing

  • Under Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014), to establish Article III standing, a plaintiff must show: (1) injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. The party invoking federal jurisdiction bears the burden of establishing the elements. An injury must be concrete, particularized, and actual or imminent. Standing cannot be conferred by a self-inflicted injury.
  • Glass lacked standing because she alleged a subjective First Amendment chill that was contrary to the presumption her students will conduct activities within the law and avoid prosecution.
  • Allegations of a subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of spe­cific future harm. Self-censoring speech does not typically give rise to a First Amendment claim. A person cannot manufacture standing by self-censoring her speech based on what she alleges to be a reasonable probability that concealed-carry license-holders will intimidate professors and students in the classroom.
  • Glass failed to make any plausible allegation that there is a certainty that a license-holder will illegally brandish a firearm in a classroom.
  • Glass cannot manufacture standing by self-censoring her speech based on what she alleges to be a reasonable probability that concealed-carry license-holders will intimidate professors and students in the classroom. The district court did not err. Glass lacks standing to bring her First Amendment claim.

Glass’ Second Amendment claim is without merit and she has no standing

  • Under District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the Second Amendment guarantees the individual right to possess and carry weapons in case of confrontation.
  • Under McDonald v. City of Chicago, 561 U.S. 742, 767 (2010), individual self-defense is the central component of the Second Amendment right.
  • Glass’s argument is foreclosed by Heller.

Glass’ equal protection claim is without merit and she has no standing

  • The equal protection clause requires that all persons similarly situated be treated alike.
  • Glass does not challenge Texas’ interest in public safety and self-defense but instead claims that there is no rational basis for Texas to allow private universities to ban concealed carry but not public universities.
  • The Campus Carry Law distinguishes between public and pri­vate universities to respect the property rights of private uni­versities.
  • Public safety and self-defense cannot be achieved if concealed carry is banned in classrooms because attending class is a core reason for students to travel to campus.
  • Dismissal is AFFIRMED.

Editor’s Note: These professors claimed that their “classroom speech” would be “dampened to some (unknown) degree by the fear” of purported gun violence in class caused by students who have “one or more handguns hidden but at the ready if the gun owner is moved to anger and impulsive action.” The professors expressed particular concern for “religiously conservative students who have extreme views” and “openly libertarian students” that the professors “suspect are more likely to own guns given their distaste for government.”

        Thus, according to the professors, law-abiding but “religiously conservative” or “openly libertarian” students who are at least 21 years old and possess a CHL or LTC are so dangerous and prone to violence that the First and Second Amendment rights of these professors are violated. The professors cite no facts for these suppositions. And, the rights of students to protect themselves far outweighs the purported violations of the First and Second Amendments of these professors. This reminds me of this simple axiom:

October 2018 SDR-3

United States v. Hoffman, et al, Nos. 16-30104, 16-30226, 16-30013, & 16-30527, 2018 U.S. App. LEXIS 22188 (5th Cir. Aug. 24, 2018) (designated for publication) [Mail and wire fraud, definition of “property” in alleged crimes, general conspiracy under 18 U.S.C. § 371, Pinkerton liability, and substantive reasonableness of a sentence]

        Under 18 U.S.C. §§ 1341 & 1343, the mail and wire-fraud statutes have the same elements except for mailing versus interstate wire. Both criminalize schemes to defraud or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.

        Under Pasquantino v. United States, 544 U.S. 349, 356 (2005), property is every kind of valuable right and interest. The right to be paid money is “property.” Tax revenue is “property.”

        Tax-credits can be the object of a scheme to defraud because they reduce dollars otherwise owed to the state, and lying to obtain them has the same effect as lying to evade taxes (government collects less money). Tax-credits are the functional equivalent of government spending programs.

        When reviewing verdicts that a district court sustained or threw out, the standard of review is de novo. The court weighs the evidence in a light most deferential to the jury verdict and gives the party that convinced the jury the benefit of all reasonable inferences. The court must affirm the verdict unless no rational juror could have found guilt beyond a reasonable doubt.

        When a conspiracy offense is charged under 18 U.S.C. § 371 (general conspiracy statute), the government must prove an agreement to commit the underlying offense, knowledge of the unlawful objective and willful agreement to join the conspiracy, and an overt act by a member of the conspiracy to further the unlawful goal.

        Under the concept of Pinkerton liability from Pinkerton v. United States, 328 U.S. 640 (1946), when a coconspirator liability instruction is given, any conspirator is liable for criminal acts committed during the conspiracy that were foreseeable and that furthered the agreement.

        With an established agreement to commit mail and wire fraud, it is going to be foreseeable that mail and wire fraud might occur.

        Under Smith v. United States, 568 U.S. 106, 112–113 (2013), withdrawal from a conspiracy is an affirmative defense on which the defendant bears the burden of proof by a preponderance. Withdrawal requires a deliberate attempt to disassociate from the unlawful enterprise. The defendant typically puts this issue before the jury by requesting an instruction on withdrawal. See 5th Cir. Pattern Jury Inst. § 2.18.

        Under Biddinger v. Comm. of Police of New York, 245 U.S. 128, 135 (1917), failure to assert an affirmative defense such as seeking a withdrawal instruction or otherwise raising the issue at trial forfeits the ability to use the theory to limit the conspiracy offense.

        To prove fraud offenses, the government must show: (1) a scheme to defraud that employed false material representations, (2) the use of mail or interstate wires in furtherance of the scheme, and (3) specific intent to defraud.

        Under Gall v. United States, 552 U.S. 38, 51 (2007), appellate review of the substantive reasonableness of a sentence is highly deferential. It is not enough that the appellate court might reasonably have concluded that a different sentence was appropriate. An abuse of discretion must be shown to undo the decision of the trial judge who is in the best position to weigh the sentencing factors. Sentences outside the U.S.S.G. range are reviewed with deference but not with the presumption of reasonableness that a within-U.S.S.G. sentence is afforded.

        Under United States v. Booker, 543 U.S. 220, 261–265 (2005), appellate review of sentencing would assist in avoiding excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary. Appellate courts may consider the extent of the deviation from the U.S.S.G. when performing their limited function as a check on extreme ones.

        Giving probation to the leader of a sophisticated, multimillion-dollar fraud scheme, particularly a defendant undeterred by a previous term of probation for a federal economic crime and who also lied at trial, perpetuates one of the problems Congress sought to eliminate in creating the Sentencing Commission—that sentencing white-collar criminals to little or no imprisonment creates the impression that certain offenses are punishable only by a small fine that can be written off as a cost of doing business.

United States v. Neba, No. 17-20520, 2018 U.S. App. LEXIS 22844 (5th Cir. Aug. 16, 2018) (designated for publication)

Facts:

  • Neba was convicted of 8 counts: conspiracy to commit health care fraud, three counts of aiding and abetting health care fraud, false statements relating to health care matters, conspiracy to pay and receive health care kickbacks, payment and receipt of health care kickbacks, and conspiracy to commit laundering of monetary instruments.
  • Neba is 54, a cancer patient, and mother to two young children
  • Over nine years, Neba was a leader in a sophisticated Medicare fraud and money laundering scheme totaling $13 million.
  • Neba paid illegal kickbacks to physicians, patient recruiters, and Medicare beneficiaries to further the scheme, claiming fraudulent Medicare benefits for more than 1,000 patients.
  • Neba was also found to have obstructed justice during the investigation.
  • Neba was sentenced to 900 months (75 years).
  • Neba failed to object to the PSR and sentence.

The sentence was not greater than necessary to comply with the 18 U.S.C. §3553(a) sentencing factors.

  • When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
  • To determine if a sentence was reasonable, bifurcated review is used: (1) consider if there was procedural error like (i) failing to calculate or improperly calculating the applicable U.S.S.G. range; (ii) treating the U.S.S.G. as mandatory; (iii) failing to consider the 18 U.S.C. § 3553(a) factors; (iv) determining a sentence based on clearly erroneous facts; or (v) failing to adequately explain the chosen sentence including explanation for deviations from the U.S.S.G. range; and (2) if there was no procedural error, consider the substantive reasonableness of the sentence considering the factors in 18 U.S.C. § 3553(a): (i) nature and circumstances of the offense and the history and characteristics of the defendant; (ii) the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (iii) the kinds of sentences available; (iv) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the category of defendant as set forth in the guidelines; (v) any pertinent policy statement issued by the Sentencing Commission under 28 U.S.C. § 994(a)(2); (vi) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (vii) the need to provide restitution to any victims of the offense.
  • A sentence within a properly calculated U.S.S.G. range is presumptively reasonable.
  • Neba’s U.S.S.G. range provided for up to a life sentence, limited to 900 months as the statutory maximum.
  • Thus, her 900-month sentence was within the U.S.S.G. range and was presumptively reasonable.
  • There is no indication of a mistaken belief by the district court that it was required to sentence Neba to 900 months.

The 75-year sentence did not violate the Eighth Amendment

  • Under Ewing v. California, 538 U.S. 11, 22 (2003), federal courts should be reluctant to review legislatively mandated terms of imprisonment, and successful challenges to the proportionality of particular sentences should be exceedingly rare. The proportionality principle would come into play in the extreme example if a legislature made overtime parking a felony punishable by life imprisonment.
  • To determine whether a sentence is grossly disproportionate per the Eighth Amendment: (1) whether the sentence seems grossly disproportionate to the offense; and (2) if so, compare the sentence to (i) sentences for similar crimes in the same jurisdiction, and (ii) sentences for the same crime in other jurisdictions.
  • Due to the seriousness of the crime, Neba fails the first step.
  • Sentence is affirmed.

Editor’s Note: I suppose reasonable minds may differ on whether a 75-year sentence seems “grossly disproportionate” to the offense, which was a massive theft. Ultimately, Neba did not murder or severely injure anybody. And, I understand the consternation of Congress since: (1) Congress believes that only it is authorized to rip off taxpayers; and (2) tax dollars pay for Congressional salaries and perks. But merely because Congress believes that theft from taxpayers should be punished as severely as murder does not make it right. And merely because a judge can sentence a person to an effective sentence of life without parole for theft does not mean that the judge has to. Ms. Marie Neba, 54, cancer-patient, BOP # 99403-379, and mother of two young children, has a release date of March 13, 2082.

October 2018 SDR-4

United States v. Reddick, No. 17-41116, 2018 U.S. App. LEXIS 23012 (5th Cir. Aug. 17, 2018) (designated for publication) [Private-search doctrine]

Facts:

  • A hash-value is an algorithmic calculation that yields an alphanumeric value for a file. It is a string of characters obtained by processing the contents of a computer file and assigning a sequence of numbers and letters that correspond to the file’s contents.
  • “Hashing” occurs where a large amount of data is entered into a complex mathematical algorithm to generate a relatively compact numerical identifier (hash-value) unique to that data.
  • Hash-values are used to compare the contents of two files against each other. If two nonidentical files are inputted into the hash program, the computer will output different results. If two identical files are inputted, the hash function will generate identical output.
  • Hash-values are used to fight child pornography distribution by comparing the hash-values of suspect files against a list of the hash-values of known child pornography images in circulation. This allows potential child pornography images to be identified rapidly without involving human investigators at every stage.
  • Reddick uploaded digital image files to Microsoft SkyDrive (cloud-hosting service).
  • SkyDrive uses PhotoDNA to automatically scan the hash-values of user-uploaded files and compare them against the hash-values of known images of child pornography. When PhotoDNA detects a match between the hash-value of a user-uploaded file and a known child pornography hash-value, it creates a CyberTip and sends the file and the uploader’s IP-address information to the National Center for Missing and Exploited Children (NCMEC).
  • Microsoft sent CyberTips to NCMEC based on the hash-values of files that Reddick had uploaded to SkyDrive.
  • Based on location data derived from the IP-address information accompanying the files, NCMEC forwarded the CyberTips to Detective Ilse, who opened the suspect files and confirmed child pornography.
  • Ilse applied for and received a warrant to search Reddick’s home and seize his computer and related materials, which un­covered additional evidence of child pornography.
  • Reddick was indicted for possession of child pornography per 18 U.S.C. § 2252(a)(2) and (b)(1).
  • Reddick initially pleaded not guilty and filed a MTS, alleging that Ilse’s warrantless opening of the files associated with the CyberTips was an unlawful search and evidence of child por­nography found in his home should be suppressed under the exclusionary rule since the initial seizure of the files was improper.
  • The district court denied his motion.

By the time Ilse viewed the suspect image files, Reddick’s expectation of privacy in his files had already been thwarted by a private third-party

  • A district court’s ruling on a motion to suppress may be affirmed based on any rationale supported by the record.
  • Under the private-search doctrine, the inquiry is whether authorities obtained information with respect to which the defendant’s expectation of privacy has not already been frustrated. Under United States v. Jacobsen, 466 U.S. 109 (1984) (FedEx search), an officer’s search of property after being alerted by a private third-party does not violate the Fourth Amendment. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information.
  • When Reddick uploaded files to SkyDrive and PhotoDNA returned a hit for child-porn, his “package” (his computer files) was inspected and deemed suspicious by a private actor. Whatever expectation of privacy Reddick might have had in the hash-values of his files was frustrated by Microsoft’s private search.

Editor’s note: The fact that this appellant uploaded child porn to a cloud-storage service shows that his understanding of how cloud-computing works is as inept as the man behind this computer:

October 2018 SDR-5

United States v. Sanchez, No. 17-41233, 2018 U.S. App. LEXIS 23205 (5th Cir. Aug. 20, 2018) (designated for publication) [Revocation of supervised release; retribution as a factor]

Facts:

  • Sanchez was on supervised release subject to conditions under 18 U.S.C. § 3583(a) & (d). Per § 3583(e)(3), if a defendant violates a condition, the district court may revoke supervised release and impose a new term of imprisonment called a revocation sen­tence.
  • Sanchez received a call from his ex-girlfriend, who told him that Hernandez “wanted to fight him one-on-one.”
  • Sanchez told his ex to tell Hernandez: “You know what, fuck you, come over here. We will fight one-on-one and get it over with.”
  • 20 minutes later Hernandez arrived at Sanchez’s apartment with 5–10 other people.
  • Sanchez grabbed a knife, walked outside, and in self-defense (per the findings of a Texas grand jury), stabbed Hernandez, killing him. There was no indication that anybody else was armed.
  • Probation officers informed the federal district court that Sanchez had violated his conditions of supervised release by “possessing a dangerous weapon.”
  • Sanchez pleaded “true” to possessing the weapon but argued against revocation.
  • The district court imposed a prison sentence of 32 months.

Although retribution is not allowed as a factor when considering revocation, it was not considered here

  • Review of a revocation sentence is under the plainly unreasonable standard: (1) evaluate the reasonableness of the sentence using the standards of appellate review applicable to criminal sentences generally per Gall v. United States, 552 U.S. 38, 46, 51 (2007), by asking whether the district court committed significant procedural error, such as failing to consider the applicable factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence, then assess the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard; (2) vacate the sentence only if the identified error is obvious under existing law, such that the sentence is not just unreasonable but plainly unreasonable. The “obviousness” prong of Fed. Rule App. Proc. 52(b)’s plain-error test controls even if the error was preserved.
  • Revocation sentences are governed by 18 U.S.C. § 3583(e)(3), which authorizes district courts to respond to a violation of the conditions of supervised release by imposing a new term of imprisonment after considering a list of factors that incorporates most of § 3553(a). Retributive purposes under § 3553(a)(2)(A) are not included.
  • The district court’s sentence did not consider retribution because Sanchez recklessly failed to take available, reasonable steps to remove himself from a situation in which he intended to use a deadly weapon, and the court implicitly found that Sanchez posed a potential future criminal threat to the public.
  • Sanchez’s revocation sentence is AFFIRMED.

Sealed Appellee v. Sealed Appellant, No. 17-50487, 2018 U.S. App. LEXIS 23011 (5th Cir. Aug. 17, 2018) (designated for publication) [Garcia-hearings, waiver of attorney-conflicts]

Facts:

  • Angus McGinty was the elected judge of the 144th Dist. Ct. of Bexar Co. from January 2011 until he resigned in February 2014.
  • In March 2013, an informant told the FBI that Acevedo (local criminal defense attorney) was paying for repairs to McGinty’s car in exchange for favorable rulings.
  • Recordings and a wiretap confirmed that Acevedo discussed paying to repair and sell McGinty’s car, and when the car sold to an undercover FBI agent for $700 less than McGinty was asking, Acevedo paid the difference.
  • When Acevedo texted McGinty to say he had the cash from the sale, McGinty responded: “Well, I’m a whore for money.”
  • After selling McGinty’s car, Acevedo paid to find, repair, and register a new car for McGinty.
  • Acevedo provided McGinty with $6,655 in car-related services.
  • Acevedo told the informant that McGinty did “a lot of shit” for him and that McGinty sold influence at a “relative steal”: Unlike a former judge who used to ask for “a grand every couple days,” McGinty “doesn’t ask for much. I’ll give him cash and he won’t say nothing.”
  • In August 2013, Acevedo called McGinty and requested that one of his clients be removed from electronic monitoring. Without asking the client’s name or what he was charged with, McGinty agreed.
  • In December 2013, FBI agents confronted Acevedo, who agreed to cooperate.
  • Acevedo claimed that he was not the only attorney with influence in McGinty’s court and implicated criminal defense lawyers Brown and Norton. Acevedo said his allegations were based only on his observations around the courthouse and admitted that he did not have concrete information that they were involved in corruption.
  • Acevedo then claimed that Brown and Norton made campaign contributions to judges and had more influence with judges than he did.
  • Acevedo also told a secondhand account that Brown had said that he heard from a local judge that Acevedo was debriefing with the feds on public corruption cases and wanted to know if the rumor was true.
  • In January 2014, McGinty hand-delivered a backdated check to the mechanic who repaired his car at Acevedo’s request. Agents watched and recorded the meeting.
  • FBI agents soon confronted McGinty, who initially lied about where he got the parts. After being presented with the evidence against him, McGinty stated that this looks really bad and that it appeared he had been “bought.”
  • McGinty said he wanted to speak with a lawyer (Brown).
  • In June 2014, McGinty was indicted for Federal Programs Bribery, Conspiracy to Commit Federal Programs Bribery, Extortion under Color of Official Right, and 12 counts of Honest Ser­vices Wire Fraud.
  • McGinty retained Brown and Norton.
  • The government filed a Notice of Potential Conflict of Interest, alleging that Brown also represented another defendant (Aranda) whom Acevedo previously represented in state court. The district court told McGinty that the government raised a potential conflict that could undermine McGinty’s representation, and he had a right to conflict-free counsel.
  • McGinty wanted to proceed with Brown and Norton.
  • McGinty pleaded guilty to 1 count of Honest Services Wire Fraud.
  • Under Fed. Rule Crim. Proc. 11(c)(1)(C), the court imposed an agreed 24-month sentence. In the plea agreement, McGinty stated that he was fully satisfied with his attorney’s representation and reiterated this at the plea hearing.
  • In December 2015, McGinty requested an interview with FBI agents during which he stated that while a judge, he received “favors” from Brown and Norton via cash and free legal representation and in exchange he set favorable bonds and probation rather than prison.
  • McGinty speculated that Brown and Norton advised him to plead guilty to protect themselves.
  • The FBI was unable to substantiate McGinty’s allegations. The defendant that McGinty claimed received probation due to Brown and Norton’s influence got probation based on a favorable plea deal negotiated with the prosecutor.
  • The government declined to prosecute Brown and Norton.
  • McGinty filed a motion to vacate per 28 U.S.C. § 2255, claiming that Brown and Norton were conflicted due to self-interest and being suspects in the FBI investigation. Because of these alleged conflicts, they “forcefully discouraged” him from cooperating with the government (i.e., told him that if he cooperated he would be labeled a snitch, his life would be in danger, and Brown and Norton would refuse to represent him).
  • The district court denied McGinty’s motion.

Even if there was a conflict of interest, appellant waived it

  • Under Cuyler v. Sullivan, 446 U.S. 335 (1980), a defendant is entitled to conflict-free counsel, and upon showing of an actual conflict, the defendant need not show prejudice.
  • Under Lee v. United States, 137 S.Ct. 1958, 1964 (2017), a defendant is entitled to effective counsel at all critical stages of a criminal proceeding, including entry of a guilty plea.
  • Review of the denial of a § 2255 motion is de novo for legal con­clusions and clear error for factual findings.
  • Like the right to counsel of any kind, the right to conflict-free counsel can be waived. Waiver is effective when it is knowingly, intelligently, and voluntarily done. However, not all conflicts are waivable.
  • A defendant may waive his right to independent counsel by intentionally and in bad faith pursuing a course of action deliberately designed to lay a groundwork for reversal.
  • When a defendant opts to proceed with his chosen counsel in the face of a known or suspected conflict, district courts must address each defendant personally in a Garcia hearing per United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), and advise him of the potential dangers of representation by counsel with a conflict of interest, which ensures that the defendant: (1) is aware that a conflict of interest exists; (2) realizes the potential hazards to his defense by continuing with such counsel; and (3) is aware of his right to obtain other counsel.
  • Although the district court held no Garcia hearing, the record shows a knowing, intelligent, and voluntary waiver. McGinty previously worked as a prosecutor, a criminal defense attorney, and a judge. And, the district court conducted a Garcia hearing regarding Brown’s concurrent representation of Aranda. The record shows that McGinty was aware of the alleged conflict.
  • The judgment of the district court is AFFIRMED.

United States v. Urbina-Fuentes, No. 17-40425, 2018 U.S. App. LEXIS 23140 (5th Cir. Aug. 20, 2018) (designated for publication) [Using the wrong U.S.S.G. is plain error if it results in a higher sentence]

Facts:

  • Urbina-Fuentes is a Honduran who crossed into the U.S. via the Rio Grande and was detained by federal agents in Laredo.
  • He previously unlawfully entered the United States in 2004 and 2013.
  • He was charged in a one-count indictment for reentering the United States after a deportation per 8 U.S.C. § 1326(a).
  • He pleaded guilty, accepting responsibility and admitting to the factual basis provided by the government.
  • Urbina-Fuentes had prior convictions for attempted burglary of a home in Florida and the 2013 unlawful reentry after deportation.
  • The PSR correctly stated that a court must ordinarily “use the U.S.S.G. Manual in effect on the date that the defendant is sentenced,” which here is the 2016 edition.
  • The Ex Post Facto Clause prohibits raising a defendant’s sentencing range higher than it would be if it were calculated under the edition in place at the time of a defendant’s criminal conduct. For Urbina-Fuentes, whose last “overt act [in this case]” occurred on February 8, 2016, this is the 2015 edition of the U.S.S.G.
  • The USPO concluded that the 2016 U.S.S.G.s would not create ex post facto issues and calculated a range of 24 to 30 months. Urbina-Fuentes did not object to the use of the 2016 edition.
  • Urbina-Fuentes was sentenced to 30 months. Under the 2015 U.S.S.G., the sentencing range would have been 15 to 21 months

Using the wrong U.S.S.G. is plain error if it results in a higher sentence

  • When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
  • Urbina-Fuentes did not intentionally relinquish the error, and the government concedes that the district court erred by using the 2016 U.S.S.G.
  • The error is plain because a conviction for burglary of a dwelling in Florida is not a “crime of violence” under the 2015 U.S.S.G.
  • The error affected his substantial rights since his sentence would have been substantially less had the court used the correct U.S.S.G.
  • The error seriously affected the fairness, integrity, or public reputation of judicial proceedings. The failure to correct a plain U.S.S.G. error that affects a defendant’s substantial rights will seriously affect the fairness, integrity, and public reputation of judicial proceedings per Rosales-Mireles, 138 S. Ct. 1897 (2018).
  • The sentence is vacated, and case is remanded for resentencing.

United States v. Vasquez, No. 17-50564, 2018 U.S. App. LEXIS 21963 (5th Cir. Aug. 24, 2018) (designated for publication) [Extraterritoriality of a statute]

Facts:

  • Vasquez was a hitman and drug-trafficker with the Zetas who worked his way up to become the “plaza boss” of Piedras Negras, a city across the border from Eagle Pass.
  • Vasquez routinely killed and ordered his underlings to kill sus­pected informants, competitors, defectors, debtors, those close to them, and others who drew Vasquez’s ire.
  • Suspected informants were a frequent target for death.
  • Reyes worked for the Zetas but began cooperating with U.S. law enforcement in 2009. After law enforcement repeatedly in­tercepted shipments of drugs, Vasquez grew suspicious.
  • Vasquez summoned Reyes to Mexico, where he tortured him until Reyes gave up the name of another informant. Vasquez then gave him cocaine, told him to pray, shot him, and dismembered and burned him.
  • Vasquez also killed suspected informant Abascal.
  • The Zetas also orchestrated mass killings with Vasquez’s help.
  • A jury convicted Vasquez of (Count 1) killing while engaged in offenses punishable under 21 U.S.C. §§ 841(b)(1)(A) or 960(b)(1) per 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2, (Counts 2, 6, and 8) conspiracy to possess marijuana, cocaine, and methamphetamine with intent to distribute per 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, (Counts 3, 4, and 7) conspiracy to import and distribute controlled substances per 21 U.S.C. §§ 952(a), 959(a), 960(a), 960(b)(1), and 963, (Count 5) employment of minors in drug operations per 21 U.S.C. § 861(a)(1) and 18 U.S.C. § 2, (Count 9) conspiracy to possess firearms in furtherance of drug-trafficking per 18 U.S.C. § 924(c)(1), (o), and (Count 10) false statements per 18 U.S.C. § 1001(a)(2).
  • Vasquez filed a postverdict motion for a judgment of acquittal, arguing for the first time that 21 U.S.C. § 848(e)(1)(A) does not apply extraterritorially and that the drug-trafficking offenses were lesser-included offenses of § 848(e)(1)(A), so double jeopardy precluded conviction of both. The district court denied the motion.
  • The district court imposed seven consecutive terms of life imprisonment on counts 1, 2, 3, 4, 6, 7, and 8; concurrent sentences of 10 years on count 5 and 20 years on count 9, and 5 years consecutive on count 10.

21 U.S.C. §848(e)(1)(A) applies extraterritorially

  • Under Fed. Rule Crim. Proc. 12(b), other than motions challenging jurisdiction (which can be filed at any time the case is pending) motions must be raised by pretrial motion if the basis for the motion is reasonably available and the motion can be determined without a trial on the merits. This includes motions alleging a defect in the indictment like the failure to state an offense. Otherwise, the motion is untimely. The court may consider the motion if the party shows good cause.
  • Extraterritoriality is a question on the merits rather than a question of a tribunal’s power to hear the case. An argument that a statute does not apply extraterritorially is not an argument that the court lacks jurisdiction.
  • The issue is unpreserved but not waived.
  • Waiver entails the intentional relinquishment or abandonment of a known right, and waiver of a right extinguishes errors. The court may correct a forfeited error only if it satisfies the plain error standard.
  • Plain error review applies because Vasquez failed to file a pretrial motion on this issue.
  • When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that, but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
  • Under EEOC v. Aramco, 499 U.S. 244, 248 (1991), superseded by statute, Civil Rights Act of 1991, 42 U.S.C. §§ 2000e, 2000e-1, 12111, 12112, Congress has authority to enforce its laws beyond the territorial boundaries of the U.S.
  • Under Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115 (2013), there is a presumption against extraterritoriality absent a clear indication from Congress that a statute applies extraterritorially.
  • Under RJR Nabisco, Inc. v. European Cmty., 136 S.Ct. 2090, 2101 (2016), to determine whether the presumption against extraterritoriality applies, the court determines whether the: (1) presumption against extraterritoriality has been rebutted (whether the statute gives a clear, affirmative indication that it applies extraterritorially); and if there is no such indication, (2) case involves a domestic application of the statute (if conduct relevant to the statute’s focus occurred in the U.S., then the case involves a permissible domestic application even if other conduct occurred abroad. But if the conduct occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.)
  • The presumption against extraterritoriality requires a clear indication of extraterritorial effect, not an express statement. The presumption against extraterritoriality is not a “clear statement rule.”
  • 21 U.S.C. § 848(e)(1)(A) gives a clear, affirmative indication that it applies extraterritorially because it requires proof of underlying offenses that apply extraterritorially: any person engaging in or working in furtherance of a continuing criminal enterprise in an offense punishable under 841(b)(1)(A) or 960(b)(1) who intentionally kills (or causes the death) of an individual shall be sentenced to not less than 20 years up to life or to death. And 21 U.S.C. § 959 provides that it “is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the U.S.”

Texas Court of Criminal Appeals

Arroyo v. State, No. PD-0797-17, 2018 Tex. Crim. App. LEXIS 814 (Tex. Crim. App. Sep. 12, 2018) (designated for publication) [Legal sufficiency of a child’s description of the touching of her “chest” versus “breasts”]

Facts:

  • Appellant was a family friend whom K. E. considered to be an “uncle.”
  • Appellant sometimes touched K. E.’s hair, neck, and arms.
  • When K. E. was 9 years old, K. E. testified, “he got more—he started touching my chest and it kind of—I’m crying, so I’m not—I don’t know how to explain it. I knew it was wrong, I just didn’t say anything at the time. And then. . . . I don’t know what happened. Like I didn’t make him stop. He started rubbing on my leg and he kept rubbing on my leg and then he went further up my skirt . . . my vagina underneath my skirt.”
  • K. E. described two other incidents where Appellant touched her chest, went down her chest, and up her skirt.
  • Appellant was convicted of 6 counts of indecency with a child: 3 counts by touching a child’s breast and 3 counts by touching a child’s genitals.
  • The court of appeals rejected the legal sufficiency challenges to the counts that alleged the touching of the genitals but agreed on the counts that alleged the touching of the breast, holding that the complainant’s use of the word “chest” did not necessarily mean “breast.”

When a child describes conduct as “touching or down my chest,” she may have been more likely to refer her undeveloped breast area as the “chest.”

  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
  • The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common de­sign to do the prohibited act. It is not required that each fact “point directly and independently to the guilt of the appellant” if the cumulative force of all the incriminating circumstances is sufficient to support the conviction.
  • When a child describes conduct as “touching or down my chest,” she may have been more likely to refer her undeveloped breast area as the “chest.”
  • The evidence was sufficient for a rational jury to conclude that Appellant touched K. E’s breast on three occasions, and that the conduct of touching K. E.’s breast was done with the intent to arouse or gratify the sexual desire of a person.
  • Judgment of the court of appeals is reversed.

Texas Courts of Appeals

Alvarez v. State, No. 01-16-00407-CR, 2018 Tex. App. LEXIS 7191 (Tex. App. Houston [1st Dist.] Aug. 30, 2016) (designated for publication) [doctrine of invited-error does not apply in jury-charge issues unless the defendant participates in submitting the instruction]

Facts:

  • Alvarez and others went out to a restaurant for dinner.
  • Alvarez became upset after realizing his bill included a service charge although he already had paid one of his servers a tip.
  • A Harris County deputy sheriff in full uniform was working an extra job as security at the restaurant.
  • The deputy saw Alvarez at the register “getting aggressive” and “irate,” and “using a lot of vulgar language” toward a cashier.
  • The deputy approached Alvarez and identified himself as a “po­lice officer.”
  • The deputy asked Alvarez to leave several times, informing him that he would be arrested for criminal trespass if he refused.
  • Alvarez remained in the restaurant, and the deputy attempted to handcuff him and arrest him for trespass.
  • After Alvarez failed to cooperate, the deputy “had to take him to the ground.”
  • During the arrest, Alvarez hit the deputy in his stomach area and legs several times, causing him pain.
  • Alvarez was indicted for assault on a public servant, and the case was tried to a jury.
  • The record does not show who requested an instruction for re­sisting arrest. Defense counsel agreed to the instruction.
  • At the close of evidence, the jury was instructed on assault of a public servant as charged in the indictment and the “lesser-included” offense of resisting arrest. The jury was instructed that if they believed that Alvarez was “guilty of either assault on a public servant or resisting arrest,” but had “a reasonable doubt as to which of said offenses” he was guilty, they were instructed to “resolve that doubt in the defendant’s favor and find him guilty of the lesser offense of resisting arrest.”
  • On the verdict form, the jury was required to choose between not guilty, guilty of assault on a public servant, or guilty of re­sisting arrest.
  • The jury found Alvarez guilty of resisting arrest.

When a defendant does not participate in submitting a jury-charge, the doctrine of invited-error does not apply, and he may complain about the charge on appeal

  • Under Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009), a defendant may not complain on appeal of a jury instruction he affirmatively requested, but the mere absence of a showing of responsibility for the inclusion of the charge on the lesser-offense does not stop an appellant from raising a challenge on appeal.
  • Alvarez did not object to the instruction at trial, and subject to the argument that the error was invited, the State concedes the instruction was a fundamental error that would require reversal.
  • There is no indication that Alvarez’s counsel helped to prepare the jury charge or that he submitted the jury instruction challenged on appeal.
  • When a defendant does not participate in submitting a jury-charge, the doctrine of invited-error does not apply, and he may complain about the charge on appeal.
  • When a defendant is found guilty of a lesser offense but not the charged offense, the defendant is effectively acquitted of the charged offense.
  • Case is remanded with instructions to vacate the judgment of conviction for resisting arrest and to enter a judgment of acquittal for assault on a public servant.

Bordelon v. State, No. 04-17-00093-CR, 2018 Tex. App. LEXIS 5864 (Tex. App. San Antonio July 31, 2018) (designated for publication) [Double jeopardy and manifest necessity]

Facts:

  • Bordelon was indicted for continuous sexual abuse of a child.
  • When his case was called in November 2015, counsel argued during voir dire, opening argument, and cross-examination that the allegations of the child were fabricated and were the result of marital issues.
  • Counsel told the jury that there was a second child involved (M.) who had also been interviewed by the CAC, that they would hear from M., that M. made no outcry, and that they would hear nothing happened.
  • After the State rested, counsel met with M. and her mother and then with M. by herself. Based on her conversation with M., defense counsel believed she was under a statutory obligation to report M. as the child-victim of sexual abuse per Tex. Fam. Code § 261.101(a).
  • Without disclosing anything revealed to her, counsel met with her client and inquired from the prosecutor whether the State was willing to extend offers to keep M. from having to testify.
  • Counsel notified the trial court that she believed that it was impossible for her to continue representing Bordelon.
  • Counsel was adamant she never revealed the specifics of her conversation with M. to the court or prosecutor. Counsel opined that as an outcry witness under Tex. Code Crim. Proc. Art. 38.072, she could be obligated to testify against her client.
  • The trial court held an ex parte hearing after which the trial court allowed counsel to withdraw and declared a mistrial. Bor­delon did not agree to the mistrial.
  • Under a new indictment, Bordelon was charged with continuous sexual abuse of a child charge (same as in the original indictment) (Count I); aggravated sexual assault of a child (Count II); and three counts of aggravated assault (Counts III–V).
  • Bordelon filed a pretrial writ of habeas corpus on Count I.
  • During the habeas hearing, habeas counsel argued trial counsel made the trial court aware of information it should have never been told. And because the trial court was in possession of wrongfully obtained information, the trial court granted a mistrial and made defense counsel withdraw, which left Bordelon without counsel.
  • Bordelon contends the trial court failed to consider lesser alternatives to granting a mistrial, such as granting a continuance to allow for another attorney to be brought in to represent him for the remainder of the trial, decide whether to call M. in its case-in-chief, or to forgo testimony relating to M. and proceed with the case.

The trial court did not abuse its discretion by granting the mistrial

  • Under Pierson v. State, 426 S.W.3d 763, 770 (Tex. Crim. App. 2014), an appellate court reviews a trial court’s decision to grant or deny an application for writ of habeas corpus under an abuse-of-discretion standard.
  • Under Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011), when raising a double-jeopardy claim on a pretrial writ of habeas corpus, the defendant must prove by the preponderance of the evidence that he is being tried for the same offense after declaration of a mistrial to which he objected. A heavy burden shifts to the State to demonstrate the mistrial was the result of manifest necessity. Application of legal standards are reviewed de novo, while the trial court’s determinations of findings of fact, implied findings of fact, or mixed questions of fact and law are afforded almost total deference especially when that decision turns on an evaluation of credibility and demeanor. An appellate court views all evidence in the light most favorable to the trial court’s ruling.
  • Under Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011), when raising a double-jeopardy claim on a pretrial writ of habeas corpus, the defendant must prove by the preponderance of the evidence that he is being tried for the same offense after declaration of a mistrial to which he objected. A heavy burden shifts to the State to demonstrate the mistrial was the result of manifest necessity. Application of legal standards are reviewed de novo, while the trial court’s determinations of findings of fact, implied findings of fact, or mixed questions of fact and law are afforded almost total deference especially when that decision turns on an evaluation of credibility and demeanor. An appellate court views all evidence in the light most favorable to the trial court’s ruling.
  • Under Arizona v. Washington, 434 U.S. 497, 505 (1978), two exceptions apply to the double jeopardy bar for a prosecution that ends due to a mistrial: (1) if the criminal defendant consents to retrial or (2) there was a manifest necessity to grant a mistrial. Prior to declaring the mistrial, the trial court must consider the availability of less drastic alternatives and reasonably rule them out, and failure to do so is an abuse of discretion. The trial court need not expressly articulate reasons for the mistrial so long as manifest necessity is apparent from the record.
  • In deciding whether manifest necessity existed, appellate courts must balance the defendant’s right to have his trial completed by a particular tribunal and the prosecutor’s entitlement to one full and fair opportunity to present his evidence to an impartial jury.
  • A trial court’s ability to declare a mistrial based on manifest necessity is limited to “very extraordinary and striking circumstances” where the circumstances render it impossible to arrive at a fair verdict, when it is impossible to continue with trial, or when the verdict would be automatically reversed on appeal because of trial error.
  • The record supports the trial court’s conclusion that a continuance would have prejudiced the jury rather than allowed time for new counsel to prepare for trial. The entire defensive strategy relied on M’s testimony, which was made impossible when trial counsel could not present M as promised nor could any other counsel. And, a child sexual assault case is complicated, so for a new attorney to enter a case after the State has rested its case-in-chief would not only cause hardship on the attorney but would be difficult and problematic to explain to the jury. Bordelon failed to show how the requested continuance would serve to his benefit.
  • The trial court’s order denying Bordelon’s pretrial writ of habeas corpus is affirmed.
October 2018 SDR-6

Carrera v. State, No. 10-16-00372-CR, 2018 Tex. App. LEXIS 5728 (Tex. App. Waco July 25, 2018) (designated for publication) [“Material” evidence under Tex. Code Crim. Proc. Art. 39.14(a)]

Facts:

  • Carrera was accused of hitting a jail officer who was attempting to move him to another location within the Navarro County Jail.
  • Carrera was being moved after he had refused to follow directions given to him to stop communicating with the woman who was arrested with him who had been placed in an adjacent cell.
  • Three photographs taken shortly before the trial depict the inside of portions of the Navarro County Jail where the alleged offense occurred and a page from the Navarro County Policy Manual that describes the policies for the use of force in the jail had not been provided in pretrial discovery per Tex. Code Crim. Proc. Art. 39.14(a).

Tex. Code Crim. Proc. Art. 39.14(a) requires production of material evidence

  • Under Tex. Code Crim. Proc. Art. 39.14(a), upon a request of the defendant, the State must produce “designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.”
  • To establish that requested evidence is material, a defendant must provide more than a possibility that it would help the defense or affect the trial.
  • Under Ehrke v. State, 459 S.W.3d 606, 611 (Tex. Crim. App. 2015), evidence is material if it affects the essential proof that the defendant committed the offense charged.
  • Carrera fails to argue that the evidence was material.
  • The trial court did not abuse its discretion by admitting the exhibits into evidence.
  • Judgment and sentence are affirmed.

Hinojosa v. State, No. 10-15-00356-CR, 2018 Tex. App. LEXIS 5744 (Tex. App. Waco July 25, 2018) (designated for publication) [A request from the defense is required to trigger Tex. Code Crim. Proc. Art. 39.14(a)]

        To trigger the requirements of Tex. Code Crim. Proc. Art. 39.14(a), a timely request that designates the items requested to be produced must be made to the State from the defendant. Absent such a request, the State’s affirmative duty to disclose evidence extends only to exculpatory information.

Facts:

  • The trial court admitted evidence of statements given by Hinojosa relating to her participation in alleged extraneous offenses that had not been provided to Hinojosa prior to trial under Tex. Code Crim. Proc. Art. 39.14(a).

A request is required to trigger Tex. Code Crim. Proc. Art. 39.14(a)

  • To trigger the requirements of Tex. Code Crim. Proc. Art. 39.14(a), a timely request that designates the items requested to be produced must be made to the State from the defendant. Absent such a request, the State’s affirmative duty to disclose evidence extends only to exculpatory information.

Majors v. State, No. 10-17-00041-CR, 2018 Tex. App. LEXIS 5752 (Tex. App. Waco July 25, 2018) (designated for publication) [Sufficiency of the evidence of possession of a firearm and a discovery motion to the trial court is not the same as a request under Tex. Code Crim. Proc. Art. 39.14(a)]

  • Under Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005), the sufficiency of the evidence for possession of a firearm by a felon is considered under the standards adopted for establishing the sufficiency of the evidence of possession of a controlled substance. The State must establish that the defendant knew of the weapon’s existence and that he exercised actual care, custody, control, or management over it. The State may prove possession through direct or circumstantial evidence, although the evidence must establish that the accused’s connection with the weapon was more than fortuitous. When the accused is not in exclusive control of the place the weapon was found, there must be independent facts and circumstances linking the accused to the contraband. Affirmative links to the contraband may circumstantially establish an accused’s knowing possession of a firearm, including whether: (1) he was present when the search was conducted; (2) the firearm was in plain view; (3) the firearm was in close proximity to him and he had access to the firearm; (4) he had a special connection to the firearm; (5) he possessed other contraband when arrested; (6) he made incriminating statements when taken into custody; (7) he attempted to flee; (8) he made furtive gestures; (9) he owned or had the right to possess the place where the firearm was found; (10) the place where the firearm was found was en­closed; (11) conflicting statements on relevant matters were given by the persons involved; and (12) his conduct indicated a consciousness of guilt.
  • The absence of links does not constitute evidence of innocence to be weighed against the links present. The court instead measures the sufficiency by looking to the logical force of all of the evidence rather than the number of links present in a given case.
  • To trigger the requirements of Tex. Code Crim. Proc. Art. 39.14(a), a timely request that designates the items requested to be produced must be made to the State from the defendant. Absent such a request, the State’s affirmative duty to disclose evi­dence extends only to exculpatory information.
  • The required request under Tex. Code Crim. Proc. Art. 39.14(a) is not the same as a discovery motion that requests the trial court’s action, which is an order from the court directing the State to produce evidence.