HOUSTON — R. Allen Stanford’s relationship with the chief regulator of his Antigua bank was closer than most.

At a meeting in 2003, they became blood brothers, cutting their wrists and mixing their blood in a “brotherhood ceremony� that Mr. Stanford’s chief financial officer said promoted an elaborate scheme to hide a multibillion-dollar fraud from American and other regulators.

The assertion that the two took a “blood oath� was laid out in a plea agreement signed by the officer, James M. Davis, and filed Thursday. After the pact, Leroy King, Antigua’s chief banking supervisor, called Mr. Stanford “Big Brother.� He received Super Bowl tickets, valued at thousands of dollars, for himself and his girlfriend. And he accepted regular bribe payments from a secret Swiss bank account that Mr. Davis said he was told to handle by Mr. Stanford.

The unusual twist to the case, in which Mr. Stanford is accused of operating a multibillion-dollar Ponzi scheme, was disclosed by Mr. Davis as he pleaded guilty on Thursday to fraud and conspiracy in Federal District Court in Houston. Mr. Davis, who oversaw the movement of vast sums of money at Stanford International Bank, also said in a plea agreement that Mr. Stanford ordered him to report false revenue and false investment portfolio balances to banking regulators as far back as 1988, when Mr. Stanford ran an offshore bank on the Caribbean island of Montserrat.

“I did wrong. I’m sorry. I apologize. And I take responsibility for my actions,� Mr. Davis said after the hearing.

Mr. Stanford was also supposed to appear in court on Thursday, but he was hospitalized in the morning after his pulse rate soared, his lawyer said.

While he has repeatedly denied accusations that he ran a Ponzi scheme involving certificates of deposit issued by Stanford International Bank, he has also insisted that if anything illegal did happen, it must have been Mr. Davis’s fault.

Mr. Davis, who had been a friend of Mr. Stanford’s since they were roommates at Baylor University in Waco, Tex., started his own church in Mississippi and led prayers before bank business meetings. His lawyer, David Finn, said Mr. Davis was now working on a family farm in Michigan doing manual labor for $10 an hour as an expression of penance. He now faces up to 30 years in prison.

“He had a very heavy heart,� Mr. Finn said. “He was very contrite, and not all of my clients are.�

The plea agreement and a court presentation on Thursday by prosecutors repeated many facts that were outlined in June in an indictment of Mr. Stanford, several Stanford aides and Mr. King. Mr. Stanford and others are accused of defrauding 30,000 investors of $7 billion, filing false reports to regulators and investors, diverting more than $1.6 billion into undisclosed personal loans to Mr. Stanford, and conspiring to obstruct an investigation by the Securities and Exchange Commission.

But the plea agreement offered an assortment of new details, particularly about the relationship between Mr. Stanford and Mr. King, who ran Antigua’s Financial Services Regulatory Commission for much of the last decade. He has been arrested in Antigua and is awaiting extradition to the United States.

Shortly after their 2003 blood-brother ceremony, which also included a second, unnamed Antiguan regulator, Mr. Stanford complained that two Antiguan regulators who worked for Mr. King were “becoming aggressive and suspicious in their examination� of the Stanford bank on the island, the plea agreement said. Both employees “soon thereafter were reassigned or replaced,� Mr. Davis said in the plea agreement.

To show appreciation for Mr. King’s services, Mr. Stanford paid $8,000 for tickets to the 2004 Super Bowl game in Houston so the regulator could take his girlfriend to the event. The next year, in June, Mr. King showed Mr. Stanford a confidential letter he had received from the S.E.C. seeking information about the Stanford bank’s certificates of deposit investment portfolio, stating that the agency had evidence to suggest the bank was engaged in a “possible Ponzi scheme.� Mr. Stanford and an unnamed aide then drafted “a false and misleading response� to the S.E.C., according to the plea agreement.

In September 2006, Mr. King tipped Mr. Stanford off to another letter from the S.E.C. Mr. Stanford, Mr. Davis and others proposed various responses designed to mislead the American regulators, which Mr. King was expected to transmit back to the S.E.C.

Mr. King also helped mislead regulators of the Eastern Caribbean Central Bank when they began raising questions about Mr. Stanford’s bank, the plea agreement said. He faxed a proposed response to the Caribbean regulators to an unnamed lawyer working for Mr. Stanford. In it, Mr. King joked in a handwritten note: “Please do not bill me (laugh), Thanks a million, Lee.� The note was taken as an oblique reference to bribes already paid, according to the agreement.

Mr. King, who holds American and Antiguan passports, is reviewing legal documents and has not yet publicly responded to the charges against him, according to Attorney General Justin Simon of Antigua and Barbuda. In an interview in February, just after Mr. Stanford’s offices in Houston were raided by federal authorities, Mr. King said, “I am absolutely sure that my banking system is clean.�

Times Topics: Robert Allen StanfordMr. Simon said in an interview that he had become aware of the blood-brotherhood ceremony from his own sources. “It is believable,� he said. “As far as how many people are involved, we are still investigating.�

By the middle of 2008, the agreement asserts, Mr. Stanford, Mr. Davis and others were scrambling “desperately� to hide the details of their fraud by inflating the value of their assets on the books with “bogus real estate.� The conspirators “designed a real estate transaction wherein they would falsely inflate and convert an approximate $65 million real estate transaction in Antigua into a purported $3.2 billion dollar asset,� according to the agreement. But by January the S.E.C. was moving in fast, and when Mr. Davis met with Mr. King, “King appeared very stressed� and wondered if they could still hide their secrets. Mr. Davis tried to reassure him.

In an interview in April, Mr. Stanford said he gave Mr. Davis broad responsibilities to oversee investments. “If bad things were happening, he never brought them to my attention,� Mr. Stanford said. “He did his job and I stayed out of his hair.�

Mr. Finn acknowledged after Thursday’s plea hearing that Mr. Stanford would attempt to discredit his client during a future trial. “The only way he walks is if he can convince a jury that my client is the mastermind,� he said. “Allen Stanford uses people. Did my client allow himself to be used? Absolutely.�

Mr. Finn said it would be strange for his client to have run a fraudulent scheme to pay for Mr. Stanford’s lavish lifestyle when he was getting paid relatively little for his efforts. He said Mr. Davis had earned between $5 million and $6 million after taxes over the last decade, and was now virtually penniless.

Mr. Stanford’s lawyer, Dick DeGuerin, has asked for court permission to quit the case because his client can not assure that he will be paid. Mr. Stanford was supposed to appear in court for a hearing on whether he could retain a new legal team. Mr. Stanford has asked to be represented by two other lawyers, but they also have said they need assurances that they will be paid.

Mr. Stanford’s assets and his companies’ assets have been frozen.

After pleading guilty on Aug. 27 to three criminal charges that could put him in prison for 30 years, James M. Davis, the former chief financial officer for Stanford Financial Group and Stanford International Bank Ltd., expressed remorse for his actions that contributed to the downfall of the bank and began more than a decade ago.

“I did wrong. I’m sorry. I apologize,” the silver-haired, 60-year-old former banker told reporters outside the federal courthouse in Houston following his re-arraignment in U.S. District Judge David Hittner’s court.

David Finn, Davis’ criminal-defense attorney, told reporters that Davis, unlike most of his clients, fessed up to his wrongdoing from the first moment he came to his Dallas office.

“He had a heavy heart the first time I met him. He was very contrite,” Finn, a partner in Milner & Finn in Dallas, recalled from their initial meeting earlier this year. “James Davis came in and said, ‘I know I did wrong.’ ”

The very next day, Davis met with investigators for the U.S. Securities and Exchange Commission, Finn said.

Finn said “greed” may explain Davis’ actions.

“Why does anyone do anything that’s wrong? . . . Frankly, my guy allowed himself to be used by Allen Stanford,” Finn said.

According to the factual basis of Davis’ plea deal, prosecutors allege Davis started making false accounting entries beginning in 1988, when he started a job as controller of a bank owned by R. Allen Stanford in Montserrat, and he continued, while in various executive positions with Antigua-based Stanford International Bank, to create “false books and records” that overestimated the value of the bank’s investments, and helped prepare fictitious investment reports about the bank that were provided to securities regulators in Antigua. By the end of 2008, the prosecutors allege in the factual basis for plea, financial documents put SIB’s assets at more than $7 billion, when they were actually less than $2 billion.

Davis also helped Stanford obtain money from a Swiss bank account that Stanford used to bribe at least two employees of the securities regulation agency in Antigua and an outside auditor, the government alleges in the factual basis of the plea deal.

Davis pleaded guilty to one count of conspiracy to commit mail, wire and securities fraud; one count of mail fraud; and one count of conspiracy to obstruct SEC proceedings. He faces up to five years in prison on the two conspiracy charges and up to 20 years in prison on the mail fraud charge. He also faces a fine of up to $250,000 on each charge.

In the plea agreement Davis signed, he agreed to cooperate with the government in its investigation of the alleged $7 billion conspiracy to defraud. As part of the plea deal, he agreed to a $1 billion forfeiture judgment. The government reserves the right to ask for a “downward departure” from the sentencing guidelines if it determines his cooperation rises to the level of “substantial assistance.”

Finn said Davis expects to receive “stiff punishment.”

The charges against Davis were included in United States v. James M. Davis, an information unsealed on June 19. Also on June 19, several other individuals, including Stanford, chairman of Houston-based Stanford Financial Group, were indicted, and each has pleaded not guilty to the criminal charges.

Stanford, who is being held in a federal prison in Conroe, was supposed to appear in Hittner’s court on Aug. 27 for a hearing on who will represent him, but Hittner announced in court that Stanford was taken by ambulance to a hospital at 5:30 a.m. because of an irregular electrocardiogram and a high pulse rate.

Stanford’s attorney, Dick DeGuerin of DeGuerin & Dickson in Houston, has asked to withdraw as his lawyer because he wants assurance that he will be paid. Hittner said the hearing on whether to allow DeGuerin to withdraw will be reset. Stanford announced earlier this month that his new legal team includes Patton Boggs, but Hittner will not allow DeGuerin to withdraw unless another firm enters the case unconditionally. [ See "Between a Rock and a Hard Case," Texas Lawyer, Aug. 10, 2009, page 6. ]

After Davis’ hearing, DeGuerin said he believed stress may have caused Stanford to have medical problems on Aug. 27. Finn said it’s not serendipitous that Stanford was ill on the day Davis was scheduled to plead guilty to criminal charges.

“It had everything to do with my client and me and the government getting together in this courtroom,” Finn said.

Hittner scheduled Davis’ sentencing for Nov. 20. But Finn said it is doubtful Davis will be sentenced before Stanford’s trial is finished. Finn said Davis has been cooperating with the FBI, the U.S. Department of Justice and the SEC and he will continue to do so. Finn noted that Davis came to Houston on Aug. 26, the day before his re-arraignment, and met with the FBI and federal prosecutors.

Finn says his client’s cooperation is important to the government, but the fraud alleged in the indictment is relatively unsophisticated.

“You can just follow the money,” Finn said.

Finn said Davis’ cooperation has extended to assisting the government with a search for evidence in a pond on his property in Mississippi. Finn would not say what the divers were looking for in the pond. When asked if it was money, Finn replied, “I wish.”

Finn said that because the government has seized Davis’ assets through a civil suit filed by the SEC that is pending in the U.S. District Court for the Northern District of Texas, Davis is living with family in Michigan and is working for $10 an hour on a family farm to raise some money to pay his lawyer.

Finn said there is no way Davis has the money to cover the $1 billion forfeiture order. He said Davis made $5 million to $6 million over the past few years.

DeGuerin said it remains to be seen how Davis’ cooperation will impact the criminal case against Stanford and the other defendants.

“Mr. Davis seems to be the center of their case, and we will have to see what happens,” DeGuerin said.

Finn told reporters that the government’s allegations in the factual basis of the plea deal suggest that others may be indicted. The factual basis mentions but fails to identify by name two attorneys and SIB Executive A.

“Not all shoes have dropped yet,” Finn said.

At the government’s request, Hittner continued the terms of Davis’ bond.

ROBERT SORICH, TIMOTHY McCARTHY, AND PATRICK SLATTERY
v.
UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 08–410. Decided February 23, 2009

The petition for a writ of certiorari is denied.

McNally v. United States, 483 U. S. 350 (1987), this Court held that while “[t]he mail fraud statute clearly protects property rights, . . . [it] does not refer to the intangible right of the citizenry to good government.” Id. , at 356.

 

In 

That holding invalidated the theory that official corruption and misconduct, by depriving citizens of their”intangible right” to the honest and impartial services of government, constituted fraud. Although all of the Federal Courts of Appeals had accepted the theory, see id., at 364 (STEVENS, J., dissenting), we declined to “construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in settingstandards of disclosure and good government for local and state officials.” Id., at 360 (majority opinion). “If Congress desires to go further,” we said, “it must speak more clearly than it has.” Ibid.

Congress spoke shortly thereafter. “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” 18 U. S. C. §1346.Whether that terse amendment qualifies as speaking “more clearly” or in any way lessens the vagueness andfederalism concerns that produced this Court’s decision in

 

 

 

 

 

 

 

 

 

 

McNally

Though it consists of only 28 words, the statute has been

 

 

 

 

 

 

 

 

 

 

invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries. Courts have upheld convictions of a local housing official who failed to disclose a conflict of interest, United States v. Hasner, 340 F. 3d 1261, 1271 (CA11 2003) (per curiam); a businessman who attempted to pay a state legislator to exercise “informaland behind-the-scenes influence on legislation,” United States v. Potter, 463 F. 3d 9, 18 (CA1 2006); students who schemed with their professors to turn in plagiarized work, United States v. Frost, 125 F. 3d 346, 369 (CA6 1997); lawyers who made side-payments to insurance adjustersin exchange for the expedited processing of their clients’ pending claims, United States v. Rybicki

If the “honest services” theory—broadly stated, that officeholders and employees owe a duty to act only in the best interests of their constituents and employers—istaken seriously and carried to its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to vote for a bill because he expects it willcurry favor with a small minority essential to his reelection; a mayor’s attempt to use the prestige of his office toobtain a restaurant table without a reservation; a public employee’s recommendation of his incompetent friend for a public contract; and any self-dealing by a corporate officer.Indeed, it would seemingly cover a salaried employee’sphoning in sick to go to a ball game. In many cases, moreover, the maximum penalty for violating this statute willbe added to the maximum penalty for violating 18 U. S. C. §666, a federal bribery statute, since violation of the latter requires the additional factor of the employer’s receipt of 

 

 

 

 

 

 

 

 

 

 

To avoid some of these extreme results, the Courts of Appeals have spent two decades attempting to cabin thebreadth of §1346 through a variety of limiting principles. No consensus has emerged. The Fifth Circuit has held that the statute criminalizes only a deprivation of servicesthat is unlawful under state law,

 

 

 

 

 

 

 

 

 

 

United States v. Brumley, 116 F. 3d 728, 735 (1997) (en banc), but other courtshave not agreed, see United States v. Martin, 195 F. 3d 961, 966 (CA7 1999) (Brumley “is contrary to the law inthis circuit . . . and in the other circuits to have addressed the question”). The Seventh Circuit has construed the statute to prohibit only the abuse of position “for private gain,” United States v. Bloom, 149 F. 3d 649, 655 (1998),but other Circuits maintain that gain is not an element of the crime at all, e.g., United States v. Panarella, 277 F. 3d 678, 692 (CA3 2002). Courts have expressed frustration at the lack of any “simple formula specific enough to giveclear cut answers to borderline problems.” United States v. Urciuoli

It is practically gospel in the lower courts that the statute “does not encompass every instance of official misconduct,”

 

 

 

 

 

 

 

 

 

 

United States v. Sawyer, 85 F. 3d 713, 725 (CA1 1996). The Tenth Circuit has confidently proclaimed that the statute is “not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing,” United States v. Welch, 327 F. 3d 1081, 1107 (CA10 2003). But why that is so, and whatprinciple it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified. Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline

In the background of the interpretive venture remainthe two concerns voiced by this Court in

 

 

 

 

 

 

 

 

 

 

McNally. First, the prospect of federal prosecutors’ (or federal courts’)creating ethics codes and setting disclosure requirementsfor local and state officials. Is it the role of the Federal Government to define the fiduciary duties that a townalderman or school board trustee owes to his constituents? It is one thing to enact and enforce clear rules againstcertain types of corrupt behavior, e.g., 18 U. S. C. §666(a) (bribes and gratuities to public officials), but quite another to mandate a freestanding, open-ended duty to provide”honest services”—with the details to be worked out caseby-case. See generally Brown, Should Federalism Shield Corruption?—Mail Fraud, State Law and Post-Lopez

Second and relatedly, this Court has long recognized the”basic principle that a criminal statute must give fairwarning of the conduct that it makes a crime.”

 

 

 

 

 

 

 

 

 

 

Bouie v. City of Columbia, 378 U. S. 347, 350 (1964).

There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But “the notion of a commonlaw crime is utterly anathema today,” Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judgesand prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra

The present case in which certiorari is sought implicatestwo of the limiting principles that the Courts of Appeals 

 

 

 

 

 

 

 

 

 

 

have debated—whether the crime of deprivation of “honest services” requires a predicate violation of state law, and whether it requires the defendant’s acquisition of somesort of private gain. The jury was instructed that petitioners, who were employed by the city of Chicago, wereobliged, “[a]s part of the honest services they owed the City and the people of the City of Chicago,” to abide by alaundry list of “laws, decrees, and policies,” including a 1983 civil consent decree entered into by the city whichbarred patronage hiring for some city jobs. App. to Pet. forCert. 137–140. The Seventh Circuit approved the instruction, again rejecting the Fifth Circuit’s violation-of-statelaw principle. “It may well be,” the court said, “thatmerely by virtue of being public officials the defendants inherently owed the public a fiduciary duty to dischargetheir offices in the public’s best interest.” 523 F. 3d, at 712. And though petitioners received no direct personal benefit from the patronage they doled out on behalf oftheir political masters, the Seventh Circuit found it sufficient that the patronage appointees—who were not charged in the scheme—accrued private gain. Id.

Finally, in addition to presenting two of the principaldevices the Courts of Appeals have used in an effort to limit §1346, the case also squarely presents the issue of itsconstitutionality. The Court of Appeals rebuffed petitioners’ argument that if §1346 really criminalizes all conduct that is not “in the public’s best interest” and that benefits

 

 

 

 

 

 

 

 

 

 

someone, it is void for vagueness. The court cited two prior Circuit decisions which, it said, “provided sufficientnotice.” Id.

It may be true that petitioners here, like the defendantsin other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.”

 

 

 

 

 

 

 

 

 

 

Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding 

 

 

In Nelson v. United States, __ S.Ct. __, 2009 WL 160585 (Jan. 26, 2009), the Court took the Fourth Circuit to task for affirming a within-guidelines sentence despite the judge’s statements at sentencing that “the Guidelines are considered presumptively reasonable” and that “unless there’s a good reason in the [3553(a)] factors . . ., the Guideline sentence is the reasonable sentence.” 

Key quote from the Supreme Court:
      The Guidelines are not only not mandatory on sentencing courts; they
      are also not to be presumed reasonable.  We think it plain from the
      comments of the sentencing judge that he did apply a presumption of
      reasonableness to Nelson’s Guidelines range.  Under our recent
      precedents, that constitutes error.

And, yes, the italics were in the original opinion.

Justices Breyer and Alito concurred in the judgment; they would simply have GVR’d the case given the fact that the Soliciter General conceded the statements constituted reversable error.  Once again, though, it looks like a majority of the Court has had it with appellate courts that refuse to embrace Booker, Rita, Gall, and Kimbrough.

You can use Nelson to remind your district court judges that the guidelines cannot be given any priority at sentencing, and use the Deconstructing the Guidelines resources on fd.org’s Sentencing Resource page to show why they ought not to be followed at all.

To read the opinion:

Nelson v. United States

David Finn

COMPREHENSIVE REFORM STILL CRITICALLY NEEDED TO PROTECT
ATTORNEY-CLIENT PRIVILEGE AND EMPLOYEE LEGAL RIGHTS
In response to growing concerns raised by Congressional leaders, former Justice Department officials, and many in the legal and business communities, the Department of Justice replaced the 2006 “McNulty Memorandum� in August 2008 with new corporate charging guidelines that direct U.S. Attorneys and Assistant U.S. Attorneys not to coerce companies and other organizations to waive their attorney-client privilege or work product protections, or to pressure their individual employees to waive their own legal and constitutional rights during investigations in return for cooperation credit. The Securities and Exchange Commission subsequently issued a new Enforcement Manual in October 2008 that provides additional guidance on its privilege waiver policy outlined in the 2001 “Seaboard Report.� Though helpful,  the SEC’s new language still contains numerous loopholes and does not provide adequate protection for the privilege and employee legal rights.

In November 2007, the House overwhelmingly approved comprehensive legislation known as the “Attorney-Client Privilege Protection Act� (H.R. 3013). Many of the bill’s reforms were later adopted by the Justice Department in its new corporate charging guidelines. But unlike the limited scope of the DOJ policy, the reforms in the House bill—sponsored by Representatives John Conyers (D-MI), Bobby Scott (D-VA), and Lamar Smith (R-TX)—would apply to all federal agencies. A Senate companion bill, S.
3217, sponsored by Senators Arlen Specter (R-PA), (Vice President-elect) Joseph Biden (D-DE) and 12 other Senators from both parties, was also introduced in the 110th Congress but failed to receive a vote.

While the new Justice Department policy is a welcome and important improvement over its previous policy outlined in the McNulty Memorandum, a comprehensive solution to the ever-widening problem of government-coerced waiver is still critically needed. Therefore, the Coalition strongly supports the adoption of a Presidential Executive Order to all federal agencies requiring them to adopt effective DOJ-type reforms or the enactment of comprehensive federal legislation like the Attorney-Client
Privilege Protection Act (ACPPA) for the following reasons:

• The new DOJ policy, standing alone, does not provide a comprehensive solution to the problem of government-coerced waiver. Under the Justice Department’s new policy, companies will be required to provide all relevant facts to government investigators in order to receive full cooperation credit, but they cannot be asked or required to waive their attorney-client privilege or work product protections. In addition, where DOJ is the only investigating agency, the policy specifically bars prosecutors from pressuring companies, as a condition for receiving cooperation credit, not to pay their employees’attorneys fees or to take other unfair actions to undermine their employees’ rights and ability to mount a legal defense. Although these reforms are promising and constitute a significant improvement over DOJ’s previous policy, the new policy is limited to just the Department’s prosecutors and does not alter the
harmful waiver policies adopted by the SEC, the EPA, HUD, and many other agencies.

• The new SEC Enforcement Manual also contains many loopholes and fails to solve the governmentcoerced waiver problem. Although Section 4.3 of the SEC Manual states that agency staff should not directly ask companies to waive the attorney-client privilege or work product, it permits the staff to demand waiver if approved by a supervisor. The SEC Manual also pressures companies to “voluntarily� waive the privilege—and to take punitive actions against employees who decline to waive their legal rights—in return for full cooperation credit. Thus, the new Manual cannot be viewed as a substantialdeparture from past SEC policies and practices that have led to widespread government-coerced waiver.

• Government-coerced waiver has become a multi-agency problem that requires a multi-agency solution. In addition to the SEC, many other federal agencies have adopted policies that erode the attorney-client privilege, the work product doctrine, and employee legal rights. For example, the EPA’s “Audit Policy,� like the Justice Department’s previous McNulty Memorandum, authorizes agency officials to pressure companies to waive their attorney-client privilege and work product protections
during investigations. In addition, HUD and the Treasury Department’s Office of Foreign Asset Control(OFAC) have adopted policies that threaten to erode not only the attorney-client privilege and the work product doctrine, but also employees’ Sixth Amendment right to counsel and Fifth Amendment right against self-incrimination. As more and more federal agencies adopt similar waiver policies, broad
administrative or legislative reform is still needed to protect these fundamental rights and reverse the “culture of waiver.�

• A Presidential Executive Order applying reforms like the Justice Department’s recent reforms to all federal agencies—or new comprehensive legislation like ACPPA—would protect fundamental attorney-client privilege, work product, and employee constitutional rights during investigations. By applying the new DOJ reforms to the SEC, HUD, the EPA, and all other federal agencies, a Presidential executive order should prevent the agencies from pressuring companies to waive their attorney-client privilege and work product protections in order to receive full cooperation credit during investigations. Such an order also would help protect employees’ Sixth Amendment right to counsel and Fifth Amendment right against self-incrimination by preventing federal prosecutors from pressuring companies not to pay employees’ legal fees during investigations, to fire employees for not waiving their rights, or to take other punitive measures against the employees before their guilt has been established under law. Enactment of comprehensive legislation like S. 3217 and H.R. 3013 would offer similar benefits to a Presidential order, with the added advantage of making these critical reforms permanent and enforceable in a court of law.

• A Presidential executive order or comprehensive legislation would both strike the proper balance between effective law enforcement and the preservation of essential attorney-client privilege, work product and employee legal protections. Adoption of the Presidential order—or passage of legislation like the ACPPA—would prevent all agencies from forcing companies and employees to waive their fundamental legal rights while preserving the ability of prosecutors and other agency officials to obtain the important, non-privileged factual materials they need to punish wrongdoers and enforce the law.
<a href=”http://www.dallascriminallawyer.com”target=”_”>David Finn</a>

Holder Should Support Executive Order
On Attorney-Client Privilege

WASHINGTON, DC — The Coalition to Preserve the Attorney-Client Privilege issued the following statement on the Senate Judiciary Committee confirmation proceedings scheduled for January 15, 2009 on the nomination of Eric H. Holder Jr., to be Attorney General of the United States:

“The Coalition to Preserve Attorney-Client Privilege urges Attorney General Nominee Eric Holder to support a Presidential Executive Order requiring all federal agencies to adopt reforms of agency policies on attorney-client privilege similar to those adopted by the Department of Justice last August. The Coalition also encourages Mr. Holder to support the enactment of comprehensive federal legislation like the Attorney-Client Privilege Protection Act (ACPPA) that would stop the ever-widening problem of government-coerced waivers of privilege and employee legal rights.
“The Justice Department’s new corporate charging guidelines, which have been incorporated into the “U.S. Attorney’s Manual� are limited to just the Department’s prosecutors and do not alter the harmful forced waiver polices currently in use at the Securities and Exchange Commission, the Environmental Protection Agency, the Department of Housing and Urban Development and many other agencies.
“A Presidential Executive Order applying reforms similar to those at the Justice Department to other agencies—or new comprehensive federal legislation like ACPPA—will protect fundamental attorney-client privilege, work product doctrine and employees’ constitutional rights during investigations.�

The Coalition to Preserve the Attorney-Client Privilege members include the American Chemistry Council, American Civil Liberties Union, Association of Corporate Counsel, Business Civil Liberties, Inc., Business Roundtable, Financial Services Roundtable, Frontiers of Freedom, Lawyers for Civil Justice, National Association of Criminal Defense Lawyers, National Association of Manufacturers, Retail Industry Leaders Association and the U.S. Chamber of Commerce.
CONTACT: Joan Gartlan
(202) 419-3249
(202) 309-2022
<a href=”http://www.dallascriminallawyer.com”target=”_”>David Finn</a>

 

Case Law and Statutory Changes

 

- Just the Highlights –

 

 

Larissa T. Roeder

Assistant District Attorney

Dallas County, Texas

214/653-3627

Fax: 214/653-3643

July 17, 2008

CASE LAW

 

State v. Beam, 226 S.W.3d 392 (Tex. 2007)

     

      On June 1, 2007, the Texas Supreme Court issued an opinion upholding the line of cases, which required the expiration of the statute of limitations as a condition precedent to the expunction of arrest records in all cases where the arrested person was NOT charged by indictment with the commission of a felony offense.

·        Dallas County Dist. Attorney’s State v. Bhat, 127 S.W.3d 435 (Tex. App.–Dallas, 2004, no pet.) (holding evidence legally sufficient to support order granting expunction of misdemeanor arrest for assault where statute of limitations had not expired, in case where charges were never filed and victim refused to file a complaint)

·        Collin County Criminal Dist. Attorney’s Office. v. Dobson, 167 S.W.3d 625 (Tex. App.–Dallas 2005, no pet.) (holding evidence legally insufficient to support expunction of misdemeanor arrest where statute of limitations had not expired)

·        State v. L.T., No. 05-04-00759-CV, 2004 Tex. App. LEXIS 11610, *1 (Tex. App.–Dallas, Dec. 22, 2004, no pet.) (reversing order granting expunction where petitioner was arrested for assault, case filed with court, but later dismissed after the petitioner completed an anger management course, and the petitioner did not prove statute of limitations had expired).

·        Collin County Criminal Dist. Attorney’s Office v. Russell, No. 05-04-00100-CV, 2005 Tex. App. LEXIS 105, at *1 (Tex. App.–Dallas, 2005, no pet.) (not designated for publication) (providing proof that statute of limitations expired is element of expunction in case where petitioner was arrested for a Class C misdemeanor offense).

·        Collin County Crim. Dist. Attorney’s Office v. Winger-Bearskin, No. 05-05-00924-CV 2006 Tex. App. LEXIS 1725 (Tex. App. Dallas Mar. 6, 2006) (reversed order granting expunction where the District Attorney’s office rejected the case before filing – petitioner was arrested for misdemeanor assault and the statute of limitations had not expired).

·        Dallas County Dist. Attorney’s Office v. Hoogerwerf, NO. 2-05-034-CV, 2005 Tex. App. LEXIS 10424, * 8 (Tex. App.– Fort Worth, 2005 no pet) (reversing order granting expunction where the defendant was arrested but never indicted for sexual assault and where the statute of limitations had not expired).

 

Rules for expunctions after Beam

 

I.          DO NOT FILE A PETITION FOR EXPUNCTION ON A  MISDEMEANOR CASE, other than one resulting in an acquittal,  UNTIL THE STATUTE OF LIMITATIONS HAS EXPIRED.

            This rule applies to:

1.                  Memo agreement dismissals

2.                  Dismissals after completion of a Divert Program

3.                  Dismissals after completion of BIPP

4.                  Cases dropped before being filed

5.                  Cases where the victim filed an affidavit of non-prosecution

6.                  “Friendly� dismissals

7.                  Dismissals based on payment of restitution

8.                  Dismissals based on the defendant’s enlistment in military service

 

            The State of Limitations on a misdemeanor offense is two (2) years from the date of the offense. Tex. Code Crim. Proc. Ann. art. 12.02 (Vernon Supp. 2007).  However “The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.� Tex. Code Crim. Proc. Ann. art. 12.05(b) (Vernon Supp. 2007) (emphasis added).  The Texas Department of Public Safety applies the Article 12.05 tolling provisions when calculating a petitioner’s eligibility for expunction, with limited exception.

             Tolling provisions are currently applied as follows:

1.        Where a person is arrested and no charges are filed, the statute of limitations is computed from date of offense to date of filing.

2.        Where charges are filed and later dismissed, the statute of limitations runs from the offense date until the date the case is filed, and then starts running again the date the case is dismissed.

3.        Exception: In cases where the defendant pleads to a lesser-included offense under the original information or indictment, a tolling objection will generally not apply and thus, the statute of limitations – calculated for the originally charged offense – is calculated from the date of offense. 

 

II.                 EXPIRATION OF THE STATUTE OF LIMITATIONS APPLIES TO ALL UNINDICTED FELONY OFFENSES. 

      What this means:

1.                  A person arrested for the commission of a felony, BUT NEVER CHARGED, must wait the statute of limitations before filing a petition for expunction.

2.                  A person charged by indictment with the commission of a felony and whose case has been dismissed after indictment, must wait the statute of limitations, TOLLING PROVISIONS CONSIDERED, before filing a petition for expunction unless he can prove the dismissal was based on an absence of probable cause.  See III.

3.                  A person arrested for a felony whose case is presented to the grand jury and results in a “no bill� MAY be eligible for an expunction before the expiration of the statue of limitations.                                                                                                                                             

** A grand jury “no bill� may serve as a judicial determination of no probable cause, but, if the arresting or prosecuting agency considers the investigation to be active, the petitioner will not be able to establish that the case is “no longer pending,� and thus, will not be able to establish eligibility for expunction under Article 55.01(a)(2)(B).

4.                  In cases where a person charged by indictment with the commission of a felony offense, pleads to a lesser-included Class C offense under the felony indictment, and subsequently has his case dismissed after completion of a deferred adjudication probation, that person must prove the expiration of the statute of limitations for the original felony offense. 

5.                  Dismissal based on trial court’s granting of a writ of habeas corpus -  A person who is convicted or receives a deferred adjudication probation and subsequently has his case dismissed after the “trial court� grants a writ of habeas corpus, is probably NOT eligible to receive a petition for expunction because he cannot establish eligibility under 55.01(a)(1) – convicted and pardoned,  55.01(a)(2)(B) – no conviction or community supervision, or 55.01(c) – convicted and acquitted “by the court of criminal appeals.�

 

**Reminder, when establishing eligibility for expunction under Article 55.01(a)(2), the petitioner must establish his eligibility under all three sub paragraphs, 55.01(a)(2)(A), (B), and (C).

 

III.             EXPIRATION OF THE STATUTE OF LIMITATIONS APPLIES TO INDICTED FELONY OFFENSES UNLESS THE PETITIONER CAN PROVE THE INDICTMENT WAS DISMISSED BECAUSE THE ORIGINAL INDICTMENT WAS ISSUED BASED UPON A MISTAKE OF FACT, FALSE INFORMATION, OR OTHER SIMILAR REASON INDICATING AN ABSENCE OF PROBABLE CAUSE AT THE TIME OF THE DISMISSAL TO BELIEVE THE PERSON COMMITTED THE OFFENSE. . . .

Where a petitioner seeks to expunge a “dismissed� felony case and the statute of limitations has not run, the petitioner must show both, that mistake, false information or other similar reason caused the indictment to be presented and that the fact of wrongful or mistaken presentment caused the dismissal.  A finding that the presentment was made because of false information or mistake requires proof that the grand jury based its decision to indict on erroneous facts. 

 

Things that generally DO NOT show an absence of probable cause include:

1.                              Proof that an indictment was dismissed because the evidence was insufficient to support a conviction does not establish an absence of probable cause. Harris County Dist. Attorney’s Office v. M.G.G., 866 S.W.2d 796 (Tex. App.–Houston [14^th Dist.] 1993, no pet.).

2.                              Showing a case was dismissed after the court granted a motion to suppress evidence – inadmissible confession, illegally seized evidence, etc. – does not establish that the factual underpinnings to the presentment and indictment of the offense were incorrect. An absence of probable cause to effect a valid search and seizure “does not vitiate the probable cause necessary for a grand jury to believe that a defendant is guilty of an offense.â€?  Harris County Dist. Attorney’s Office v. Pennington, 882 S.W.2d 529 (Tex. App.–Houston [1^st Dist.] 1994, no pet.); Kendall v. State, 997 S.W.2d 630 (Tex. App.–Dallas, 1998, no pet.). 

3.                              A dismissal based on the State’s inability to locate the victim or a witness at the time of trial will generally not establish an absence of probable cause. Texas Dep’t of Pub. Safety v. Mendoza, 952 S.W.2d 560 (Tex. App.–San Antonio 1997, no pet.).

4.                             A dismissal based on a victim’s refusal or inability to testify at trial does not establish that the case was dismissed because of false information, mistake, or other information indicating a lack of probable cause.  Barker v. State, 84 S.W.3d 409 (Tex. App.–Fort Worth 2002, no pet).

STATUTORY CHANGES

Service to governmental agencies via electronic transmission

            Article 55.02, §§ 2(c)(2)(c) and 3(c) now authorizes the District Clerk to serve governmental agencies via “secure electronic mail, electronic transmission, or facsimile transmission.�

1                    Attorney’s should change petitions and proposed orders to include service in accordance with these statutory changes. 

Private entities that sell criminal history record information are now subject to orders granting expunction.

What to do:

1.      List any private entities that sell criminal history record information purchased from DPS in your petition – as a party to be served by DPS.  The District Clerk’s Office will not serve private entities or governmental agencies not located in this state.

2.      If you know of a private company that continues to release information after an order of expunction is granted – DO NOT CONTACT ME.  Notify the private entity and/or the Texas Department of Public Safety.

Applicable provisions:

1.      A petitioner should now list in his petition, “private entities that compile and disseminate for compensation criminal history record information that the petitioner has reason to believe have information related to records or files that are subject to expunction.�  Tex. Code Crim. Proc. Ann. art. 55.02 § 2(b)(C) (Vernon Supp. 2007).

2.      When an order of expunction is final, “The Department of Public Safety shall also provide, by secure electronic mail, electronic transmission, or facsimile transmission, notice of the order to any private entity that is named in the order or that purchases criminal history record information from the department.�  Tex. Code Crim. Proc. Ann. art. 55.02 § 3(c-2) (Vernon Supp. 2007) (emphasis added).

3.      Government Code § 411.0851 provides: Duty of Private Entity to Update Criminal History Record Information; Civil Liability

(a)   A private entity that compiles and disseminates for compensation criminal history record information shall destroy and may not disseminate any information in the possession of the entity with respect to which the entity has received notice that:

            (1) an order of expunction has been issued under Article             55.02, Code of Criminal Procedure; or

 

 

by: George R. Milner, III
Milner & Finn
Dallas, Texas
www.milnerfinn.com

I. INTRODUCTION

Most attorneys will begin their careers practicing in either state or federal court, but rarely both.

You might begin as a state prosecutor or public defender, and then become aprivate defense attorney. Alternatively, you might have begun as a federal prosecutor, public defender or clerking for a district judge. You become immersed in one system to the virtual exclusion of the other. As your practice changes, you start practicing in the other court system and wonder whether the differences are significant. “Hey, it’s the same country with the same federal constitution. How different could they be?� The answer is, plenty. And, the differences are not trivial. This article will analyze and compare federal criminal practice with Texas state criminal practice. It is an overview, and is not intended to be an in-depth analysis. It is designed to be a primer for attorneys who are well versed in one system and are beginning a practice in the other. There are many distinctions between practice in federal and state court. But, the trial procedures are relatively similar. Generally, practice in the federal courts tend to be more formal, whereas practice in state court may be less formal. This will obviously vary depending upon the particular judge, whether it be state or federal court. The federal constitutional principals are obviously identical.

State representation frequently begins with the arrest of your client. The client then hires an attorney to represent him or her in the anticipated criminal case. A federal criminal action could begin the same way. However, it is much more common that the client, known literally as a target, is aware of an on-going criminal investigation. The client should, and frequently does, hire an attorney during this investigative process. If the client has the slightest level of intelligence, he will immediately retain counsel upon learning of the existence of the investigation. Generally speaking, in the state system, the government arrests first, and then prepares a case for trial. In the federal system, the government prepares its case first and then arrests. Representation of a client in a federal criminal case is well beyond the scope of this article. This article is intended to only address the pragmatic distinctions between state and federal practice.

II. PRE-TRIAL ISSUES

A. Arrest

1. Texas Law

Texas law imposes no constitutional requirement to affect an arrest. Hulit v. State, 982 S.W 2d 431 (Tex. Crim. App. 1998). Tex. C. Crim P., Art. 14 provides for various situations where a peace office may or shall make a warrantless arrest. Article 14 further provides authority for a private citizen to affect a warrantless arrest.

An individual arrested in Texas is brought before a magistrate who will arraign the accused and set bail. Tex. C. Crim. P., Art. 14.06. This is almost always done in an ex parte manner with information coming almost exclusively from the police. Bail will usually be set at some amount which may be posted in cash or by a bonding company. The bail is posted with the sheriff of the county where the client has been arrested. Or, if the client is arrested pursuant to an out of county warrant, bail may be posted with the sheriff of the county where the warrant has been issued.

2. Federal Law

A federal arrest may, likewise, be made with or without a warrant. However, there is no statutory provision for a warrantless arrest. An arrest must simply be supported by probable cause. Draper v. United States, 385 U.S. 307 (1959). Most federal arrests are, however, made pursuant to a warrant. Warrantless arrests will be substantially more common in state court prosecutions.

The bail process in federal court is done pursuant to the Bail Reform Act of 1984. The accused is brought before a federal magistrate for an initial appearance. Both the government and citizen may present evidence relevant to bail. However, the court will review a pre-trial services report prepared by the probation department. This report is confidential as a matter of law. 18 U.S.C. § 3153 (c)(1). It is essentially a short background and social history report regarding your client.

Once the judge has considered the pre-trial services report, any evidence presented, and argument of counsel, the magistrate will release the defendant, set bail or detain the defendant. 18 U.S.C. § 3142 (a). Unlike state court, there is a preference for personal recognizance bonds. It is generally the case that your client will be released on his own recognizance or not at all. Again, unlike state court, denial of bail is quite common.

The Eighth Amendment notwithstanding, there is a good chance your client will begin serving his sentence while awaiting his or her trial. See 18 U.S.C. § 3142 (d). Should the magistrate detain your client, you may appeal this to the district court. The procedure is to file a motion to Revoke Detention Order. United States v. Ruben Rueben, 974 F. 2d 580, 585 ( 5th Cir. 1992) Cert. Denied, 507 U.S. 940 (1993). The district court’s review of the magistrate’s order is conducted de novo.

Counsel is well advised to prepare the client for the pre-trial services interview with the officer. The client should dress appropriately and be familiar with the process. The client must fully understand that while he or she may refuse to answer particular questions, the client may not provide false information. Counsel must use sound judgment in determining what information to provide the officer. If the offense is a financial crime, you may not wish to disclose personal financial information to the officer. Although the pre-trial services report is confidential, a copy will be given to the prosecutor. It is reasonable to assume he or she will read it and take notes. Alternatively, if you provide very limited information, the magistrate may not be able to determine your client is not a flight risk. Counsel must use sound judgment.

B. Indictment

1. Texas Law

An indictment is a written statement of a grand jury accusing a person of a crime. Tex. C. Crim. P., Art. 21.01.

Although there are some procedural requirements, the offense charged must be set forth in plain and intelligible words. See Tex. C. Crim. P., Art. 21.02.

Everything necessary to be proved should be stated in the indictment. Tex. C. Crim. P., Art. 21.03.

However, the state is not required to plead evidentiary matters, and generally need only plead the elements constituting the offense. Generally, if the indictment tracks the relevant statute, it will be sufficient. However, the indictment must be sufficiently certain such that it will enable the accused to plead the judgment in bar of any subsequent prosecution of the same offense. Tex. C. Crim. P., Art. 21.04.

Texas law provides that a grand jury shall be comprised of twelve grand jurors and

two alternates. Tex. C. Crim. P., Art. 19.18. A quorum is comprised of nine grand jurors. Tex. C. Crim. P., Art. 19.40.

Grand jury proceedings shall be secret. Tex. C. Crim. P., Art. 20.02.

Although the concept of the grand jury might be similar under Texas law as compared with federal law, there is vast difference in function. A grand jury in Texas is principally used to screen criminal accusations. Cases are presented and the grand jurors deliberate and vote whether to indict. It is only required that nine jurors vote affirmatively in order to return an indictment. Tex.C. Crim. P., Art. 20.19.

Generally speaking, the state grand jury does not pro-actively investigate criminal matters, although it has such authority. Cases are presented to the grand jury by the relevant district attorney, and the grand jury votes whether to return an indictment. Further, Texas law does not proscribe communication with the grand jury by defense counsel. This is commonly done by delivering written information through, and with the consent of, the prosecutor

2. Federal Law

A federal indictment may be similar to a state indictment, but it’s usually not. It must contain the essential facts constituting the offense charged. Fed. R. Crim. P. 7 ( c ).

The indictment must also state the specific statute, rule, regulation or other provision of law which the defendant is accused of violating. Id. It is quite common for a prosecutor to write an indictment which describes the alleged criminal conduct in a lengthy narrative form. And, as might be expected, it is common for the prosecutor to tell the story in a light most favorable to the government. The court may, upon defendant’s motion, strike surplusage contained in the indictment. Fed. R. Crim. P. 7 (d).

And, it is important to carefully examine the indictment because, unlike state court, the indictment goes into the jury room during deliberations.

A federal grand jury is comprised of 16 to 23 members. Fed. R. Crim. P. 6 (a).

An indictment required only the concurrence of at least twelve members of the grand jury. Fed. R. Crim. P. 6 (f).

The federal grand jury is not a screening mechanism for criminal prosecutions. On the contrary, the federal grand jury is a weapon of the prosecutor. A federal grand jury possesses extremely broad investigative power. A federal grand jury may investigate merely upon suspicion that the law is being violated, or even just because it wants assurance that it is not. United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991).

Although the grand jury was at one time designed to protect the individual from the government, those days have clearly passed. The grand jury has the power to subpoena documents and witnesses. Federal prosecutors tend to thoroughly investigate their cases through sworn grand jury testimony and documents obtained pursuant to subpoena. And, contrary to Texas state law, the direct submission of any written materials or documents by the defense to a federal grand jury is, itself, a federal criminal offense. See 18 U.S.C. § 1504.

C. Speedy Trial

1. Texas Law

There is no valid statutory act requiring a right to a speedy trial. Meshel v. State, 739 S.W. 2d 246 (Tex. Crim. App. 1987). Texas law simply applies the Sixth Amendment standard as according to Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). There is no bright line rule and no inflexible test. However, the court must consider the length of delay, the reason for delay, assertion of the right to a speedy trial by the defendant, and any prejudice to the defendant due to the delay.

2. Federal Law

Federal law provides a statutory speedy trial right. See 18 U.S.C. § 3161. This statutory speedy trial right commences upon arrest of the accused for a federal, not state, offense. United States v. Adams, 694 F. 2d 200 (9th Cir 1982).

The indictment must be returned within 30 days of arrest. Trial must commence within 70 days of either indictment or initial appearance, whichever occurred later. No trial may commence prior to 30 days from indictment or initial appearance. The court has authority to dismiss, either with or without prejudice, an indictment based upon violations of this statutory speedy trial right. But, there are a number of enumerated factors which the court must consider before dismissing an indictment with prejudice. These include the seriousness of the offense, the facts and circumstances which lead to dismissal, the impact of re-prosecution on administration of the speedy trial right and on the administration of justice. 18 U.S.C. § 3161 (a)(1).

The statute provides for the exclusion of time which is due to a number of enumerated factors which the court must consider. These include:

1.) a competency examination of the defendant;
2.) times during which the defendant is mentally or physically incompetent;
3.) time during which the defendant is in drug treatment with a prosecution deferral ;
4.) any time during which an inter-lockatory appeal is proceeding;
5.) pending pre-trial motions;
6.) time caused by transferring the case or removal of a defendant from another district;
7.) time during which the court considers any plea agreement;
8.) time during which prosecution is deferred
9.) time during which the defendant or an essential witness is absent;
10.) A “reasonable period� of delay when the defendant is joined with co-defendants whose speedy trial has not run;
11.) time during which “ the ends of justice …outweighs the best interest of the public and the defendant in a speedy trial â€? because of 

             (a) an unusual or complex case, or 
             (b) because of continuity of counsel for the government or defendant. 18 U.S.C. 3161 (h).

It is important to assume in federal court that you may not be able to obtain a continuance of a trial. This is true even if the government does not oppose the defendant’s motion for continuance. The trial court is constrained by the Speedy Trial Act. It is important that you review the statutory provisions thoroughly and address them in your motion for continuance. You should provide supporting material to justify your factual and legal arguments for a continuance. And, at the same time, you must be prepared to try the case on the scheduled trial date.

D. Joinder

1. Texas Law

Texas law provides that a defendant may be prosecuted in a single criminal transaction

for all offenses rising out of the same criminal episode. Tex. C. Crim. P., Art. 3.02.

2. Federal Law

Federal law provides for broader joinder of offenses. An indictment or information may charge a defendant with two or more offenses, whether felonies or misdemeanors or both, if the offenses are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. Fed. R. Crim. P. 8.

Rule 8 is broadly construed in favor of initial joinder. United States v. Davis, 752 F. 2d 963 (5th Cir. 1985).

Essentially, joinder is proper if the offenses occurred over a relatively short time period and share some evidentiary matters. United States v. Lueben, 812 F. 2d 179 (9th Cir. 1987).

E. Severance

1. Texas Law

Texas law provides a broad right of severance. Generally speaking, a defendant has an absolute right to a severance of offenses which have been consolidated or joined for trial. Tex. Penal C. §.304.

However, there is a potential catch. Texas law generally provides that if a defendant is convicted of more than one criminal offense in one trial proceeding, the sentences generally must run concurrently, as opposed to consecutively. Tex. Penal C.§ 3.03 (a).

But, if a defendant elects to sever offenses which have been joined for trial, the court in its discretion may order the sentences to run concurrently or consecutively. Tex. Penal C. § 3.04 (b). Counsel must give grave consideration before asking for a severance. There are other limitations upon the broad right of severance under Texas law. Generally, sex offenses may not be severed. The specific offenses are listed in Tex. Penal C. § 3.03 (a). If the relevant offenses are enumerated in § 3.03 (b), the court, before ordering aseverance, must determine that either the state or the defendant would be unfairly prejudiced by a joinder of the offenses. Tex. Penal C. § 3.04 (c).

2. Federal Law

Federal law provides a limited right to a severance. If joinder of offenses or defendants appears to prejudice the government or a defendant, the court may sever the defendants’ trials, order separate trials as to separate counts, or provide any other relief that justice requires. Fed. R. Crim. P. 14. Pursuant to Fed. R. Crim. P. 12 (b) (5), a motion to sever must be made prior to trial. Personal observation suggests federal judges do not enjoy trials. Likewise, federal judges appear to enjoy multiple trials substantially less. Accordingly, unless you can make a firm showing of overwhelming prejudice, you should expect to have all criminal offenses and defendants tried together in one proceeding.

F. Discovery

1. Texas Law

Discovery in Texas state courts is generally covered by Chapter 39 of the Code of Criminal Procedure. A state court defendant’s right to discovery is, in most situations, provided by Tex. C. Crim. P., Art. 39.14. The defendant in state court, generally has right to examine physical evidence. The defendant has no right to discover witness statements, until after the witness has testified. See Tex. C. Crim. P., Art. 39.14 (a); Tex. R. Evid. 615 (a).

Texas law also provides both the state and defendant a right to notice of expert witnesses. See Tex. C. Crim. P. Art.39.14 (b).The court upon motion of either party, may order a party or parties to disclose the name and address of each witness the party may use to present evidence pursuant to Texas Rules of Evidence 702, 703, and 705. Texas law also provides a defendant reasonable notice upon request, not a motion, to the state’s intention to offer evidence of extraneous wrongs, crimes or bad acts, either at the guilty/not guilty phase or the punishment phase. See Tex. R. Evid. 404 (b) and Tex. C. Crim. P., Art. 37.07.

2. Federal Law

Discovery in federal court is pursuant to Fed. R. Crim. P., 16. However, it is important to completely familiarize yourself with the relevant judge’s pre-trial order. Frequently, a judge will enter a pre-trial order which addresses discovery issues. Filing a motion for discovery might advise the court you have not read the court’s order. If there is no discovery order issued by the court, the right to discovery is triggered by defense motion. However, counsel should be aware this will trigger reciprocal discovery requirements. Generally, the defense is entitled to the defendant’s written or oral statements, the defendant’s prior record, any documents and objects which the government either possesses or controls, if they are material to preparing the defense, or the government intends to use them in its case in chief at trial, or the item was obtained or belongs to the defendant; the reports of examinations and tests; expert witnesses. Fed. R. Crim. P., 16. The defense is not entitled to witness statements, except as provided by 18 U. S. C. § 3500. And, the defense is not entitled to grand jury transcripts, except as provided by Fed. R. Crim. P. 6, 12 (h), 16 (a)(1), and 26.2.

G. Plea Negotiation

1. Texas Law

Plea negotiations in Texas courts are incredibly different than in federal court. At the outset, plea negotiation in state court is almost universally conducted post indictment. Additionally, plea negotiations in Texas courts are quite similar to contractual negotiations. The state and defense may, and typically do, negotiate the precise sentence which the defendant will receive based upon his plea of guilty or no contest. The court is not bound by the agreement. Tex. C. Crim. P., Art. 26.13. However, the defendant has the right to withdraw his plea if the court advises that it will not follow the agreement between the parties. Tex. C. Crim. P., Art. 26.13. This fact alone makes state plea bargaining vastly different than federal plea bargaining. And, in the vast majority of the cases, the trial court will follow an agreement between the state and the defendant.

2. Federal Law

On the other hand, plea negotiations are frequently done prior to indictment in federal representations. If a satisfactory plea agreement is going to be reached in federal court, it generally must be consummated prior to indictment. An indictment reduces the number of sentencing options. At the outset, counsel may negotiate a “charge bargain.� This means defense counsel negotiates an agreement with the government to only charge the defendant with a specific criminal offense. Generally, this is done in order to charge the defendant with a criminal offense which has a lower statutory maximum punishment than other offenses which could be charged by the government. However, charge bargaining is not as readily available as it once was. Former Attorney General John Ashcroft directed prosecutors to charge defendants with the most severe, readily provable offense. Charge bargaining, accordingly, may be limited depending upon the particular prosecutor’s adherence to this directive. This directive was originally set forth in the Ashcroft Sentencing Memorandum, and this was reaffirmed in the Comey Sentencing Memorandum issued in 2005.
Contrary to Texas law, there is rarely an agreement to a specific sentence in federal court. Federal sentences are determined by giving extreme deference to the now “advisory� United States Sentencing Guidelines. See United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

Essentially, the defendant will plead guilty to one or more criminal offenses. The court will advise the defendant that sentencing will be determined by consideration of the “advisory� United States Sentencing Guidelines. The court must also consider all matters relevant to sentencing pursuant to 18 U.S.C. § 3553 (a). The defendant will be advised that except for the statutory maximum, no one can determine what the specific sentence will be. The defendant will be advised that if the sentence is substantially higher than the defendant expected, he will not be able to withdraw his plea. Your client will then meet with a probation officer for a pre-sentence interview. The probation officer will do a thorough background report on the client. The probation officer will also communicate with the prosecutor and relevant enforcement agents. The probation officer will then prepare a pre-sentence report which will advise the court of the relevant sentencing guidelines and will provide the court with a specific guideline range of punishment. Both counsel for the government and the defendant will have the right to object to this report. In the end, the judge will make the final decision as to which guideline range is applicable. Although not binding, a sentence in his range will be deemed “reasonable.� The court may then consider other matters, if applicable. Then, the court will sentence the defendant. It is important to understand the probation officer has been well trained to understand every conceivable way to increase, not decrease, the guideline range. The client should be made to understand this. You must go to the interview with your client. The client should dress appropriately. If there are matters outside the guidelines which may affect sentencing, you must start laying the groundwork for these at the pre-sentence interview. If your client has a substance abuse issue, he or she may qualify for the Comprehensive Residential Drug Abuse Program. See 18 U.S.C. § 3621
(e). You should provide information to the probation officer which demonstrates a genuine substance abuse problem. Ultimately, your client may shave a year off his sentence for successful completion of the program.

H. Pre-trial Motions

1. Texas Law

The filing and urging of pre-trial motions in state court is reasonably similar to the process in federal court. Whether you are in state or federal court, it is imperative that you be familiar with the particular court’s scheduling, orders, and/or procedures. Many courts, both in state and federal court, have standing pre-trial orders. Many state courts will have an informal process, and will not require that pre-trial motions be filed and/or scheduled by any particular day. Some state courts will schedule a pre-trial hearing. If there is a pre-trial hearing date, and the court has not ordered that motions be filed by a particular day, then all pre-trial motions should be filed at least seven days prior to that date. Tex. C. Crim. P., Art. 28.10 § 2.

Although the practice should be discouraged, it is acceptable to file boiler plate motions in many state cases. A state court motion should be tailored to the case. And, although not required, it may be helpful to file a brief in support of your motion.

2. Federal Law

The substantial difference in federal court is that the process will be somewhat more formal. You will almost always be given a scheduling order imposing a deadline or the filing of pre-trial motions. It is common to never afford the defendant a live hearing on the motions. And, unlike state court, boiler plate motions should not be used. The practice in federal court is more time consuming. All pre-trial motions should be tailored specifically to the relevant facts and legal issues raised by the particular case.

Additionally, counsel should carefully review the local rules of the district. Many pre-trial motions require submission of a brief or memorandum of law in support of a motion. Counsel should understand the pre-trial motion and supporting brief may be the only argument you will make to the court. Never assume that you will be permitted a live hearing or oral argument. If factual support is necessary, you should attach supporting documents and/or affidavits.

Additionally, most federal districts require the moving party to consult with the attorney for the opposing side. This means all pre-trial motions must be discussed with the opposing attorney. You are generally required to ask whether the opposing attorney agrees to the granting of the motion. You will then attach a “Certificate of Conference� to your pre-trial motion. The Certificate of Conference will verify that you have discussed the motion with the opposing attorney, and state whether the opposing attorney agrees to or opposes the motion.

There is another fundamental distinction between state court and federal court. Unlike state court, motions filed in federal court will be thoroughly read. If they are not completely read by the judge, they certainly will be read carefully by the clerks. You should proof read the motion and supporting memoranda or brief.

I. Change of Venue

1. Texas Law

If the judge determines either party cannot receive a fair and impartial trial in the county,

the judge may sua sponte order venue transferred to any county within the district. Tex. C. Crim.

P., Art. 31.01. The court must provide notice to the parties and conduct a hearing on the issue. Id.

The state may move for a change of venue for existing influences favoring the accused, general

lawlessness in the county, or potential risk to the lives of the defendant or a witness. Tex. C.

Crim. P., Art. 31.02. The defendant may move to change venue by filing a written motion along

with the defendant’s affidavit and the affidavits of at least two credible persons who are residents

of the county where the prosecution is instituted. Tex. C. Crim. P., Art. 31.03. The affidavits

must show either there is so great a prejudice against the defendant in the county that he or she

cannot get a fair trial, or there is a dangerous combination against the defendant instigated by

influential persons such that he cannot expect a fair trial. Id.

Texas law also permits a forum non conveniens change of venue. This may be done upon

motion of the defendant for convenience of parties and witnesses. But, such a motion is

discretionary and requires the consent of the state. Tex. C. Crim. P., Art. 31.03 (b).

2. Federal Law

Federal law is more restrictive. A transfer of venue based upon prejudice must be made

upon the defendant’s motion. Fed. C. Crim. P. 21 (a). It cannot be ordered sua sponte or on

motion by the government. Id. Federal law also permits a forum non conveniens change of

venue. See Fed. R. Crim. P. 21 (b). The state and federal standards are essentially the same,

except the federal rule does not require consent of the government. See Id.

III. FOURTH AMENDMENT ISSUES

Arguably, Texas provides greater protection from unreasonable search and seizure

than the Fourth Amendment. See Heitman v. State, 815 S.W.2d 681(Tex. Crim. App. 1991). In

any given case, counsel should thoroughly research whether evidence was obtained in violation

of either the Texas or U.S. Constitutions. However, there are some general distinctions between

Texas law and U.S. law in the area of search and seizure. Additionally, there is significant and

pervasive distinction between state and federal court in this area. State law generally permits the

defendant to argue the exclusionary rule to the jury. If a fact is raised, the defendant can request

the jury be instructed to not consider evidence if the state fails to prove beyond a reasonable

doubt the evidence was lawfully obtained.

Federal law, on the other hand, does not permit this. Application of the exclusionary rule

is purely a question of law for the court. The jury in a federal trial will not be instructed to

disregard any evidence admitted based upon a Fourth Amendment violation.

A. Good Faith

If a search warrant is found to be defective, Texas does not permit a good faith exception

to the exclusionary rule. See Tex. C. Crim. P., Art. 38.23 (b). A search warrant affidavit must

provide probable cause. Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990). On the other

hand, federal law permits a good faith exception to the exclusionary rule. See United States v.

Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

B. Inevitable Discovery

In federal court, there is an inevitable discovery doctrine permitting an exception to the

exclusionary rule. See Nix v. Williams 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984).

However, Texas law does not permit inevitable discovery as an exception to the exclusionary

rule. See Garcia v. State, 829 S. W. 2d 796 (Tex. Crim App. 1992).; State v. Daugherty, 931

S.W. 2d 268 (Tex. Crim App. 1996) (Reh’g. Denied).

C. Illegal Conduct by Private Citizen

The exclusionary rule in Texas courts applies to the conduct of government agents and

private citizens. See Tex. C. Crim P., Art. 38.23 State v. Johnson, 939 S. W. 2d 586 (Tex. Crim

App. 1996). The exclusionary rule in federal court does not apply to the conduct of private

citizens.

D. Consent

The burden on the government is different when consent to search is at issue. In Texas

courts, the state must prove consent by clear and convincing evidence. State v. Ibarra, 953

S.W.2d 242 (Tex. Crim App. 1997). However, in federal courts, the government must only prove

consent by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 94 S. Ct.

988, 39 L. Ed. 2d 242 (1974).

IV. CONFESSIONS

1. Texas Law

Texas law provides that the admissibility of confessions is controlled by the Fifth

Amendment and Tex. C. Crim P., Art. 38.22. Generally speaking, in order to admit a statement

resulting from custodial interrogation, the state must prove the statement was voluntarily made,

the defendant was advised of his or her rights pursuant to Art. 38.22, and the statement was

either written or electronically recorded. See Tex. C. Crim. P., Art. 38.22. Counsel should

thoroughly review 38.22 as there are other potential requirements and exceptions which might

apply.

The defendant may initially challenge the voluntariness of any statement outside the

jury’s presence by objecting or requesting such a hearing. See Jackson v. Denno, 378 U.S. 368,

84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The defendant must initially produce some evidence

which controverts the presumption of proper police conduct, thus shifting the burden to the state.

The state then bears the burden of proving the confession was voluntarily given. Munoz v. State,

851 S.W.2d 238 (Tex. Crim. App. 1993); (overruled on other grounds). Dunn v. State, 721

S.W.2d 325 (Tex. Crim. App. 1986). The judge must determine the confession to be voluntary

before it may be admitted before the jury. Implicit in these cases is the conclusion the judge must

determine that a rational trier of fact could find beyond a reasonable doubt that the confession

was voluntary.

A significant distinction is that once you lose the Jackson v. Denno hearing (and you

will), Texas law affords the defendant the right to challenge the confession in front of the jury.

Tex. C. Crim. P., Art. 38.22 § 6. The defendant may present evidence regarding the voluntariness

of the confession. And, the jury will be instructed that unless it believes beyond a reasonable

doubt that the confession was voluntarily given, the jury may not consider it for any purpose

whatsoever. Id. Moreover, the exclusionary instruction directs the jury to not consider any

evidence which was derived from the statement by the accused.

2. Federal Law

On the other hand, there is no such requirement for a confession to be admitted in federal

court. The issue to be determined by the court is whether the statement was freely and

voluntarily made, and whether the agents complied with Miranda. Generally speaking, if the

agents complied with Miranda and did not beat the defendant senseless, a court will usually find

the statement to have been made freely and voluntarily. And, unlike state court, the government

must prove voluntariness only by a preponderance of the evidence. Colorado v. Connelly, 479

U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). But, as is true in state court, the defendant is

entitled to a hearing outside the jury’s presence to determine whether the confession was

voluntary. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).

V. DOUBLE JEAPARDY

1. Texas Law

Jeopardy attaches in a jury trial when the jury is sworn. State v. Proctor, 841 S.W. 2d 1 (Tex. Crim. App. 1991). In a trial without a jury, jeopardy attaches when the accused pleads to the charging instrument. State v. Torres, 805 S.W. 2d 418 (Tex. Crim. App. 1991). This holding is not based upon the Fifth Amendment, but is required by Tex. Const., Art. I § 14.
2. Federal Law

The rule is the same in a jury trial. Jeopardy attaches when the jury is impaneled and sworn. Donum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963). However, the rule is different in a bench trial. Jeopardy attaches in a trial to the court when the court begins to hear evidence. Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055, 1062, 43 L. Ed. 2d 265 (1975). The Supreme Court later, in dicta, interpreted this to mean jeopardy attaches when the first witness is sworn. See Crist v. Bretz, 437 U.S. 28, 37, 98 S. Ct. 2156, 2162 n 15, 57 L. Ed. 2d 24 (1978).
VI. DISCLOSURE OF DEFENSES

A. Alibi

1. Texas Law

Texas law does not regard alibi as a defense. This is simply a factual scenario which is

inconsistent with the state’s case. An alibi is simply offered to rebut the state’s case. There is no

requirement that the defendant provide notice to the state of his or her intention to assert an alibi.

2. Federal Law

However, the defendant in federal court may have to provide notice to the government of

the defendant’s intention to assert alibi as a defense. See Fed. R. Crim. P. 12.1. The government

must request said notice in writing. The request must state the time, date, and place of the alleged

offense. Fed. R. Crim. P. 12.1 (a)(1). Upon such request, the defendant must, within 10 days of

the request or any time designated by the court, serve written notice on the government of any

intended alibi defense. The defendant’s notice must state each specific place where the defendant

claims to have been and the name, address, and telephone number of each alibi witness on whom

the defendant will rely. Fed. R. Crim P. 12.1 (a)(2). The defendant may then request information

pertaining to witnesses who establish the defendant’s presence at the scene of the alleged offense

and government rebuttal witnesses. If either party fails to comply, the court may exclude

testimony of undisclosed witnesses.

B. Insanity

1. Texas Law

Insanity is an affirmative defense under Texas law. Tex. C. Crim. P., Art. 46C.051.

The defendant must provide notice at least twenty days prior to trial, unless the trial Court

schedules a pre-trial hearing more than twenty days prior to trial. Tex. C. Crim. P., Art. 46C.051.

Should the court schedule a pre-trial hearing more than twenty days in advance of trial, the

defendant must provide notice at the pre-trial hearing. If the defendant fails to provide the

required notice, the court will not admit evidence on the insanity defense unless the court finds

good cause exists for the failure to give notice. Tex. C. Crim. P., Art. 46C.052.

2. Federal Law

A defendant in federal court must provide written notice to the government of his

intention to assert an insanity defense. This notice must be provided at the time pre-trial

motions are filed, or at any time designated by the court. Fed. R. Crim P. 12.2 (a). The

government may then compel, pursuant to Rule 12.2 (c), the defendant to submit to a

competency examination under 18 U.S.C. § 4241 (statute pertaining to determination of

mental competency to stand trial).

C. Duress

1. Texas Law

Texas law provides that duress is an affirmative defense which the defendant must prove

by a preponderance of the evidence. Charles v. State, 636 S.W. 2d 5, 6 (Tex. App. Dallas 1992)

(pet. ref’d).

2. Federal Law

The federal law is substantially different. The initial burden of production rests upon the

defendant. The defendant must make a prima facie showing of duress. However, once that is

done the burden shifts to the government to affirmatively disprove duress beyond a reasonable

doubt. United States v. Falcon, 766 F.2d 1469, 1477 (10th Cir. 1985).

VII. TRIAL

A. Jury Selection

1. Texas Law

Each side is permitted ten peremptory challenges in a non-capital felony trial in

Texas. Tex. C. Crim P., Art. 35.15 (b). Both parties are entitled to three peremptory

challenges in a misdemeanor case tried in a county court. Tex. C. Crim. P., Art. 35.15

(c). The parties are entitled to five peremptory challenges in a misdemeanor case tried

in a district court. Id. Additionally, Tex. Const., Art. I § 10 provides the right of counsel

to question the venire in order to intelligently exercise peremptory challenges. Ex parte

McKay, 819 S.W.2d 478 (Tex. Crim App. 1990). The ability to properly question the

jurors will be the fundamental distinction between the state and federal court. Counsel

for both the state and defendant are generally permitted to adequately question the

panel.

2. Federal Law

Federal law provides the defendant with ten peremptory challenges, and the

government is entitled to six. Fed. R. Crim. P. 24. However, if there are multiple

defendants, the defense will still only be entitled to ten peremptory challenges which

must be shared among the defendants. The court has the authority to grant additional

peremptory challenges. The court may empanel up to six alternates, and each side will

be entitled to one additional peremptory challenge in the alternate zone. The court is

not required to permit individual questioning by the attorneys. United States v. Segal,

534 F.2d 578 (5th Cir.1976).

Many federal judges will not permit attorney voir dire. And, those federal judges who

permit it generally impose severe time limitations. The trial court has almost limitless discretion

in the conducting of voir dire. Mu’Min v. Virginia 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d

493 (1991). You will generally provide the court with a list of requested voir dire questions. The

judge will then determine which questions will be asked. The court may ask questions which

were not submitted by either party. Typically, the judges will tend to ask questions which elicit

yes or no answers, as opposed to questions designed to elicit opinions. In short, the information

upon which you base your challenges will be very limited in federal court, as opposed to state

court.

B. Witness Statements

1. Texas Law

Tex. R. Ev. 615 controls the production of witness statements in criminal cases,

except for situations which raise Brady issues. The rule generally allows a party which did

not call a witness to compel the production of any statement given by the witness which

relates to the subject matter about which the witness testified. The party requesting

production of the statement has the right to a recess of the proceedings in order to

examine the statement for use in the trial. Tex. R. Ev. 615 (d). If either party fails to produce

such a statement, the court shall strike the testimony of the witness. And, if the

state elects not to comply, the court shall declare a mistrial if required in the interest of

justice. Tex. R. Ev. 615 (e).

2. Federal Law

The federal rule is virtually identical to the Texas state rule regarding production

of witness statements after the witness has testified. See Fed. R.Crim P. 26.2. The production of

government agent and witness statements is also controlled by the Jencks Act. See 18 U.S.C. §

3500. This rule essentially provides that any recorded statement or report made by a witness is

not subject to compelled disclosure until the witness has testified on direct examination at trial.

See 18 U.S.C. § 3500. However, the defense is entitled to production after the witness testifies at

a pre-trial proceeding or detention hearing. See Fed. R. Crim. P. 26.2 and 46 (j).

C. Accomplice Testimony

1. Texas Law

Texas law places restrictions upon the sufficiency of accomplice testimony. A

conviction is not sufficient if based upon accomplice testimony, unless it is corroborated by

other evidence tending to connect the defendant with the offense. Tex. C. Crim. P., Art.

38.14. The corroborating evidence will, itself, be insufficient if it merely shows the

commission of the crime. Id

2. Federal Law

Federal law affords no such protection to the accused. A conviction can be based

upon uncorroborated testimony of an accomplice. The jury will be given a specific charge to

consider such testimony with caution, and only consider it if you believe it beyond a

reasonable doubt. Accordingly, if the jury believes the uncorroborated accomplice

testimony beyond a reasonable doubt, the evidence is sufficient to sustain a conviction.

D. Cross Examination

1. Texas Law

Both state and federal law permit and afford the right to confront and cross-examine all witnesses against the accused. U.S. Const., Amen. VI; Tex. Const., Art. I § 10. The difference is within the scope permitted the examiner during cross-examination. Texas law provides that the “witness may be cross-examined on any matter relevant to any issue in the case, including credibility.� Tex. R. Evid. 611 (b).
2. Federal Law

The primary difference is the limitation of the scope of cross-examination. The scope of cross-examination should be limited to the subject matter of the direct examination and issues relevant to credibility of the witness. Fed. R. Evid. 611 (b). However, the court has discretion to permit cross-examination into matter beyond the scope of direct examination. Id. Another difference in federal court is the authority of the court to control the presentation and mode of cross-examination. The applicable rule permitting this, Rule 611 (a), is identical in the Texas and Federal rules. The difference is the frequency which a federal judge will use such authority.
E. Impeachment With Prior Conviction

1. Texas Law

Texas law permits either party to impeach a witness with proof the witness has been convicted of a felony or crime of moral turpitude if the judge determines the probative value outweighs its prejudicial effect. Tex. R. Evid. 609 (a). However, there is a time limit. If more than ten years has elapsed since the latter of the conviction date or date of release from confinement from that conviction, evidence of the conviction is inadmissible. Tex. R. Evid. 609 (b). A time-barred conviction may, however, be admissible if the judge “determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.� Id. If the conviction is on appeal, it is inadmissible. Tex. R. Evid. 609 (e). If the conviction in question was the object of a pardon or similar procedure based on innocence, the conviction is not admissible. Tex. R. Evid. 609 (c) (3). If there is a pardon based upon rehabilitation or if probation was satisfactorily completed, and there is no subsequent conviction for a felony or crime involving moral turpitude, the conviction is inadmissible. Tex. R. Evid. 609 (c) (1) and (2). Additionally, upon timely written request specifying the witnesses, the proponent must give the adverse party sufficient advance written notice of intent to use evidence of the conviction. Tex. R. Evid. 609 (f). This, of course, would require a party to identify its witnesses well in advance of trial. But, failure to comply with the request for notice of intent renders evidence of the conviction inadmissible. Id.

2. Federal Law
The federal rule is significantly different. The federal rule does not permit impeachment with a conviction for a crime involving moral turpitude. See Fed. R. Evid. 609 (a). But, evidence that any witness has been convicted of any crime in which it can readily be determined had as an element of the crime an act of dishonesty or false statement is admissible. Fed. R. Evid. 609 (a) (2). The general rule that felony convictions are admissible is subject to application of Rule 403. Fed. R. Evid. 609 (a) (1). However, if the government offers evidence of a conviction against the accused, the court must determine whether the probative value of the evidence outweighs the prejudicial effect to the accused. Id. The general ten-year rule is the same as the Texas rule. See Fed. R. Evid. 609 (b). However, if a party wished to offer evidence of a conviction more than ten years old, the proponent must give the adverse party sufficient advance written notice of its intent to use such evidence. Id. Unlike the state rule, the opponent does not have to request this notice. The effect of a pardon is the same in federal court. See Fed. R. Evid. 609 (c). But, the effect of an appeal of the conviction is exactly the opposite in federal court. A conviction is admissible even during the pendency of an appeal. Fed. R. Evid. 609 (e). But, evidence of the pendency of the appeal is, likewise, admissible. Id.
F. Hearsay

Upon the law of hearsay, there are several subtle, and some not so subtle, distinctions. Where a party offers a statement against interest in a Texas court, the availability of the declarant is immaterial. Tex. R. Evid. 803 (24). Whereas, the declarant must be unavailable to admit such a statement in federal court. Fed. R. Evid. 804 (b) (3). If the statement tends to incriminate the declarant, Texas requires the statement to be corroborated. Tex. R. Evid. 803 (24). However, this corroboration is only required in federal court if the statement is offered to exculpate the accused. Fed. R. Evid. 804 (b) (3). Accordingly, the federal counterpart only places the corroboration requirement upon the defense.
There is a significant difference with regard to “unavailability� where it is shown that a party caused the witness to be unavailable. Texas law provides that where unavailability of the declarant “is due to the procurement or wrong-doing of the proponent of the declarant’s statement�; the declarant is not deemed “unavailable.� See Tex. R. Evid. 804 (a). The federal rule is, by contrast, substantially more broad. “A statement offered against a party that has engaged or acquiesced in wrong-doing that was intended to, and did, procure the unavailability of the declarant as a witness.� Fed. R. Evid. 804 (b) (6). The federal rule creates a separate exception to the hearsay rule for all such statements.
Finally, there is a general exception created by the federal rules. If a hearsay statement does not fit within the enumerated exceptions, it will not be excluded on hearsay grounds if it possesses equivalent circumstantial guarantees of trustworthiness and “the court determines that (a) the statement is offered as evidence of a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence.� Fed. R. Evid. 807. The proponent of such a statement must provide notice of intent to offer the statement sufficiently in advance of trial. Id. The notice must contain the name and address of the declarant. Id. This is a broad exception to the hearsay rule. Texas law provides no such residual exception to the hearsay rule.
G. Jury Charge

There are fundamental differences between state and federal court as it relates to

the jury charge. Texas law requires that a written charge distinctly setting forth the law

applicable to the case and not expressing any opinion as to the weight of evidence be

given to the jury. See Tex. C. Crim. P., Art. 36.14. Both the state and defendant have the

right to object to portions of the charge, and to request special charges be included in the

charge. Tex. C. Crim. P., Art. 36.15. The procedure for submitting requested charges is

somewhat similar in a federal trial. However, you will generally submit you’re requested

jury instructions to the court prior to trial in accordance with a scheduling order. And, the

court will prepare a written charge to be submitted to the jury. However, a federal judge

can and will give instructions regarding specific factual issues raised by the evidence.

(See infra.) Additionally, and fundamentally different than Texas law, the court may

express opinions pertaining to the believability of witnesses and the weight to be given

certain evidence. Federal judges tend to follow the pattern charges for the relevant circuit.

But, do not limit your jury charge requests to the pattern charges for your circuit.

H. Commenting on Fact by Court

1. Texas Law

The court in its charge to the jury may express no opinion as to the weight of evidence. Tex. C. Crim. P., Art. 36.14. The court may not sum up testimony, discuss the facts, or use any argument calculated to arouse the sympathy or excite the passions of the jury. Id. Unless there is a specific statute to the contrary, the jury is the exclusive judge of the facts. Tex. C. Crim. P., Art. 36.13.
2. Federal Law
A court at its discretion in submitting its charge to the jury, may express its opinion upon the facts so long as all matters of fact are ultimately submitted to determination by the jury. Lovejoy v. United States, 128 U.S. 171, 9 S. Ct. 57, 32 L. Ed. 389 (1888). Generally, it is the judge’s province when necessary to express his or her opinion of the evidence, provided he or she makes it known to the jury that they are free to exercise their independent judgment of the facts. And, a court may go too far in expressing its opinion of the facts. See Quercia v. United States, 53 S. Ct. 698 (1933). However, the trial court in Quercia literally instructed the jury, in reference to the defendant’s testimony, “I think that every single word that man said, except when he agreed with the government’s testimony, was a lie.� Id. This case was actually affirmed at the circuit court. See Quercia v. United States, 62 F. 2d 746 (1st Cir. 1933). Accordingly, it may be difficult for a federal judge to go too far.
I. Final Argument
1. Texas Law

Texas law permits more liberal allocation of the prosecutor’s final argument. The prosecutor is not required to open the final argument, but may simply reserve his or her entire argument for rebuttal. The court controls the order of argument, but the state enjoys the right to make the concluding argument to the jury. Tex. C. Crim. P., Art. 36.07. The universal practice is to permit the state to open final argument. Then, the defense will argue, and be followed by the state’s rebuttal. It is also extremely common for a state prosecutor to reserve the more significant points for rebuttal so that defense counsel may not respond to such arguments.
2. Federal Law
Closing argument is more restrictive in federal court, both by rule and by custom. The order of arguments is controlled by the Federal Rules of Criminal Procedure. The government argues first, then the defense argues, and the government rebuts. Fed. R. Crim. P. 29.1. The rule does not address the situation wherein the government waives its right to open the closing arguments. However, it is the Advisory Committee’s view that such a waiver is improper. The “fair and effective administration of justice is best served if the defendant knows the argument s actually made by the prosecution in behalf of conviction before the defendant is faced with the decision whether to reply and what to reply. Fed. R. Crim. P. 29.1 advisory committee’s note (1975). The Committee is of the view that the prosecutor, when he waives his initial closing argument, also waives his rebuttal.� Id. (citing House Report No. 94-247.) The custom in federal court is to follow the committee’s opinions. Moreover, it appears to be the universal practice of federal prosecutors to make meaningful use of their initial closing argument and to use rebuttal for just that.
J. Motion for Judgment of Acquittal/Directed Verdict
1. Texas Law

Texas law provides the defendant an opportunity to move the court to direct the

jury to return a verdict of not guilty. This is called a motion for a directed or instructed

verdict. This motion is made outside the presence of the jury after the state has rested its

case in chief. The issue before the court is whether the state has produced some credible

evidence proving each and every element of the offense. The court will not make

determinations as to the weight to be attributed to any particular evidence. And, the

evidence is viewed in a light most favorable to the state. However, if the record is devoid

of any evidence proving an element, the defense is entitled to a directed verdict. The

court will then prepare a charge which instructs the jury to return a verdict of not guilty.

2. Federal Law

The Federal procedure is different. And, it is very important that the appropriate

motion is made, and re-urged at the appropriate times. The federal motion is called

Motion for Judgment of Acquittal. See Fed. R. Crim. P. 29. The defendant in federal

court must move for a judgment for acquittal at the close of the government’s case. If the

motion is denied, the motion should be re-urged at the close of all the evidence. If there

is a guilty verdict, the defendant must renew the motion for judgment of acquittal within

seven days after the guilty verdict. See Fed. R. Crim. P. 29 (c) This motion is not

required. However, it will substantially change the standard of review on appeal if the

defendant fails to move for judgment of acquittal at each appropriate time.

VIII. EXPUNCTION

Texas law provides that a person acquitted of an offense is entitled to an

expunction. See Tex. C. Crim. P., Art. 55. An expunction permits a defendant to

essentially erase all public and law enforcement records arising from the arrest for the

offense. It also enables the defendant to lawfully deny that he was ever arrested for or charged

with the expunged offense.

On the contrary, there is no procedural right to an expunction in the federal

system. Federal district courts do, however, have jurisdiction to expunge records

maintained by the judiciary, but not the executive branch. United State v. Janik, 10 F. 3rd

470, 472 (7th Cir. 1993). This means, unlike Texas law, the law enforcement agency and

the Department of Justice may maintain records relating to the accusation. On the other

hand, though, a citizen in federal court may obtain a judicial expunction even when the

person was convicted of the offense. See United States v. Flowers, 389 F. 3rd 737 (7th Cir.

2004). The test is whether “the dangers of unwarranted adverse consequences to the

individual outweigh the public interest in maintenance of the records, then expunction is

appropriate.� Id. At 739 (quoting Janik, 10 F. 3rd at 472).

IX. SENTENCING

Sentencing in federal court is vastly different from sentencing in Texas state

courts. Entire volumes have been written analyzing the federal sentencing guidelines. The

sentencing system in Texas state court is fairly simple. There is a range of punishment

applicable to each given offense. The defendant in state court, unlike federal court, has a

right to elect that the jury assess punishment in the event of a conviction. No such right to

jury sentencing exists in the federal system.

X. CONCLUSION

Although there are many differences, the two systems are not fundamentally

different. A trial in federal court is reasonably similar to a trial in state court. The order of

the proceedings is the same, and the manner of presenting one’s case is the same. That

being said, however, it is important to know the procedural and legal differences. And,

this article should serve as a good primer for the practitioner who is venturing into new

waters.

Good Luck and God Bless You.

Judge David Finn

UNITED STATES OF AMERICA, CRIMINAL ACTION NO.
)
Plaintiff, ) 3:03-CR-80
)
v. )
)
JOHN ADAMS THROPAY, )
)
Defendant. )
)

SUPPLEMENT TO MOTION TO VACATE , SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255BY A PERSON IN FEDERAL CUSTODY

F. Clinton Broden
Tx. Bar 24001495
Broden & Mickelsen
2707 Hibernia St.
Dallas, Texas 75204
214-720-9552
214-720-9594 (facsimile)
TABLE OF CONTENTS

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

I. ROADSIDE VIDEO 1

II. TROOPER GUILL’S TRIAL TESTIMONY 4

III. DISCUSSION 6

A. Ineffective Assistance of Counsel 6
B. Mr. Thropay’s Consent to Search was not Valid and No Reasonable Suspicion Existed to Otherwise Search His Vehicle. 7

1. Principles of Law 7

2. Precedent 9

a. United States v. Jones, 234 F.3d 234 (5th Cir. 1999) 9

b. United States v. Dortch, 199 F.3d 193 (5th Cir. 1999) 10

c. United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) 12

d. United States v. Perkins, 348 F.3d 965 (11th Cir. 2003) 12

e. United States v. Beck, 140 F.3d 1129 (8th Cir. 1998) 14

f. United States v. Jones, 269 F.3d 919 (8th Cir. 2001) 16

3. Instant Case 17

IV. CONCLUSION 19

CERTIFICATE OF SERVICE 21

TABLE OF AUTHORITIES

Illinois v. Caballes, 543 U.S. 405 (2005) 7

Joshua v. Dewitt, 341 F.3d 430 (6th Cir. 2003) 6-7, 19

United States v. Beck, 140 F.3d 1129 (8th Cir. 1998) 14-17, 19

United States v. Dortch, 199 F.3d 193 (5th Cir. 1999) 8, 10-12, 17, 19

United States v. Jones, 234 F.3d 234 (5th Cir. 1999) 9-10, 12, 17, 19

United States v. Jones, 269 F.3d 919 (8th Cir. 2001) 8, 16

United States v. Lambert, 46 F.3d 1064 (10th Cir. 1995) 8

United States v. Perkins, 348 F.3d 965 (11th Cir. 2003) 13-14, 18

United States v. Santiago, 310 F.3d 336 (5th Cir. 2000) 8, 12-13, 17, 19

United States v. Wood, 106 F.3d 942 (10th Cir. 1997) 19

John Adams Thropay has finally obtained the videotapes of his roadside stop by Trooper Bryan Guill which ultimately led to the seizure of the drugs for which he was convicted. The videotapes were introduced at trial as Government’s Exhibits 1 and 2 and a combined videotape is submitted as Attachment A to this Supplement. As discussed below, the videotape establishes beyond peradventure that Mr. Thropay had a meritorious suppression motion which his trial counsel failed to research and pursue.

I. ROADSIDE VIDEO
The videotape of the roadside stop reveals that Mr. Thropay was driving a car, with Sabrina Laprade as a passenger, that was stopped by Iowa State Trooper Bryan Guill at approximately 11:14:00 on February 17, 2003. When Trooper Guill approaches Mr. Thropay’s vehicle, the following discussion takes place through the open driver’s window between Trooper Guill and Mr. Thropay:
1. Trooper Guill tells Mr. Thropay he was going a little fast

2. Trooper Guill asks Mr. Thropay where they (Mr. Thropay and Ms. Laprade) are going and Mr. Thropay responds that they are going someplace warm because their heater is broken

3. Trooper Guill asks where they are coming from and Mr. Thropay responds, “El Paso.�

4. Trooper Guill asks where they are coming from today and the response is unintelligible.

5. Trooper Guill asks where their luggage is and Mr. Thropay responds that it is in the trunk.

6. Trooper Guill tells Mr. Thropay that his speed was 90 miles per hour.

At approximately 11:15:14, Trooper Guill returns to his vehicle to run a license check on Mr. Thropay’s vehicle and a records checks on Mr. Thropay and Ms. Laprade. The dispatcher first responds at 11:19:42 and then at 11:22:25 responds again and tells Trooper Guill that Mr. Thropay has a prior conviction for marijuana sale in California. At approximately 11:23:58 before returning to the Mr. Thropay’s vehicle, Trooper Guill asks the dispatcher to locate a drug dog to come to the scene.
Trooper Guill returns to Mr. Thropay’s car at 11:24:31 and orders Mr. Thropay to come back to the patrol car so that he can “explain the ticket.� When Trooper Guill and Mr. Thropay return to the patrol car, rather than “explain[ing] the ticket,� Trooper Guill peppers Mr. Thropay with a barrage of questions, including:
-Who did you buy the car from?
-Why doesn’t the heater work?
-Where are you coming from?
-Why did you take that route?
-Where are you going?
-Do you have an insurance card?
-When did you buy the car?
-How do you know Ms. Laprade?
-How long have you been dating Ms. Laprade?
-Is there anything in the car that I should know about?
-Do you have any objection if I go through the car?
-Do you still live in California?

During the entire time, the videotape establishes that Trooper Guill retained Mr. Thropay’s license.
At 11:29:50, Trooper Guill again asks the dispatcher to locate a drug dog and tells the dispatcher, “Let them know it is pretty good!� At 11:33:28, the dispatcher notifies Trooper Guill that a dog has been located.
At 11:34:01, Trooper Guill approaches the passenger side of the vehicle and questions Ms. Laprade as to where she and Mr. Thropay were headed, where they came from and if there was anything in the car that he should know about and he then brings Ms. Laprade back to the patrol car.
From 11:39:22-11:41:17, Trooper Guill searches Mr. Thropay’s car after obtaining his signature on a consent to search form. It is not until 11:42:18 that he tells Mr. Thropay that he ordered a drug dog and that it would be there shortly. In the interim he asks Mr. Thropay what he does for a living and Mr. Thropay tells him he does “data entry.â€?
The drug dog arrives at approximately 12:08:24, almost one hour after Trooper Guill originally stopped Mr. Thropay. During the entire time, Trooper Guill retained Mr. Thropay’s license and resisted providing him the speeding citation. Indeed, the speeding citation that was ultimately issued does not contain Mr. Thropay’s signature and instead states “In Jail.� See Attachment C hereto.

II. TROOPER GUILL’S TRIAL TESTIMONY
Trooper Guill testified at trial that, upon his stop of Mr. Thropay’s vehicle, it appeared “odd� that “the passenger and driver were wearing a stocking hat and coat.� See Tr. at 12:14-18. Of course, the videotape indicates that Mr. Thropay told him that the car’s heater was not working. Trooper Guill admitted on cross examination that “with a broken heater in the middle of February it wouldn’t be unusual to be wearing a coat and stocking cap in a car.� Id. at 51:18-21.

Trooper Guill also testified that it was “odd� to him that the vehicle was registered in Texas when both Mr. Thropay and Ms. Laprade had California identification. Id. at 12:20-22. He also found it “odd� that there was no luggage visible in the vehicle. Id. at 12:23:24. Of course, the videotape indicates, quite naturally, that the luggage was ultimately found in the closed trunk of the sedan.
Trooper Guill claimed that the “driver appeared to be a little nervous� and “[t]he passenger avoided eye contact� with him. Id. at 12:18-19. Nevertheless, he acknowledges on the videotape that Ms. Laprade was sleeping when he originally stopped the vehicle.

Trooper Guill testified that, given these “odd facts,� he brought Mr. Thropay back to his patrol car to question him. Id. at 16:2:14. He claims to have made “casual conversation� with Mr. Thropay at this point as to where he and Ms. Laprade were coming from and where they were going. Id. at 16:10-17. He also claimed, although his testimony is belied by the videotape, that it was only after he took Mr. Thropay to the patrol car that Mr. Thropay told him the car’s heater was broken. Id. at 16:21-23.

Trooper Guill told the jury that, following the questioning in the patrol car, he obtained Mr. Thropay’s oral and written consent to search the vehicle. Id. at 18:23-19:3. As noted above, Trooper Guill testified under oath at trial that it was only at this point that he requested the K-9 unit, although the videotape clearly shows Trooper Guill’s testimony to be perjurious. Id. at 23:17-20. Likewise, Trooper Guill was adamant when he told the jury at trial that he “did not search the vehicle or get into the vehicle before the dog arrived. Id. at 52:1-2. It was after.� The fact that the videotape shows Trooper Guill searching and entering the vehicle approximately one-half hour before the arrival of the K-9 unit, clearly indicates that this testimony is also false.

III. DISCUSSION

A. Ineffective Assistance of Counsel
There can be no question that the failure to pursue a suppression motion based upon an unconstitutional search of a vehicle following a roadside stop that yields incriminating evidence constitutes ineffective assistance of counsel. Indeed, the United States Court of Appeals for the Sixth Circuit addressed this very question in Joshua v. Dewitt, 341 F.3d 430 (6th Cir. 2003). In Joshua, an Ohio State Trooper, following a traffic stop of Joshua’s vehicle for speeding, learned that Joshua was “a known drug courier.� Id. at 434-435. In addition, the trooper claimed that Joshua was “nervous and restless� and that, when he questioned Joshua about his travel plans, the route “‘didn’t make any sense what so ever.� Id. at 435. There was also a discrepancy in the rental car papers for the car Joshua was driving. Id. at 443. Consequently, the trooper detained Joshua until he could arrange for a K-9 search for Joshua’s car. Id. at 435. The K-9 search ultimately discovered a large quantity of crack cocaine. Id.

The Sixth Circuit in Joshua held that, despite a state court ruling to the contrary and the deference it was required to give the state court findings under the Antiterrorism and Effective Death Penalty Act of 1966, Joshua’s counsel was ineffective for failing to challenge the basis for his continued detention pending the K-9 search of his vehicle. In reaching this holding, it concluded that the discrepancy in the rental car papers, Joshua’s alleged nervousness, and the trooper’s knowledge of Joshua’s criminal history did not support Joshua’s continued detention until the arrival of a K-9 unit. Id. at 443-452. Similarly, the Court found that taking route that “made no sense to the trooper� was “not a fact suggestive of illegal conduct.� Id. at 445.

Coincidentally, the “odd� factors alleged in Joshua are remarkably similar to the “odd� factors recounted by Trooper Guill in the instant case. One of the only distinguishing factors is that Joshua, unlike Mr. Thropay, was apparently not asked to consent to the ultimate search of his vehicle. But, as explained below, given the facts of the instant case this distinction is without Fourth Amendment relevance.

B. Mr. Thropay’s Consent to Search was not Valid and No Reasonable Suspicion Existed to Otherwise Search His Vehicle.

1. Principles of Law

There are two well established principles of law that should guide this Court’s determination as to whether Mr. Thropay would have had a valid motion to suppress.

First, when a person is stopped for a traffic violation “[a] seizure that is justified solely by the interest in issuing a…ticket to the diver can become unlawful if it is prolonged beyond the time reasonably required to complete the mission.â€? Illinois v. Caballes, 543 U.S. 405, 407 (2005). Indeed, cases from this circuit as well as other circuits establish that a traffic stop may not last any longer than is necessary to complete the investigative purposes of the traffic stop unless, while that investigation is being completed, the state can show that the investigating officer developed “reasonable suspicionâ€? to detain the person for some other reason. See, e,g., United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001) (“After Trooper DeWitt had completed this initial investigation and determined that Jones was neither tired nor intoxicated, that his license and registration were valid, and that there were no outstanding warrants for his arrest, then the legitimate investigative purposes of the traffic stop were completed.â€?).

Second, once a court determines that a traffic stop should have concluded under the principle outlined above, a person’s consent to the search of his vehicle cannot be considered voluntary when the investigating officer does not return the person’s license prior to obtaining the consent. See United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999), citing, United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995). Indeed, as noted by the United States Court of Appeals for the Tenth Circuit in Lambert what began as a consensual encounter quickly became an investigative detention once the agents received Mr. Lambert’s driver’s license and did not return it to him. Id.

The above principles of law are perhaps best explained in United States v. Santiago, 310 F.3d 336, 341-42 (5th Cir. 2000):
During a traffic stop, an officer can request a driver’s license, insurance papers, and vehicle registration; he or she may also run a computer check and issue a citation. The officer may detain and question the subjects of a traffic stop during the time a computer check is being conducted…..

However, a Fourth Amendment violation occurs when the detention extends beyond the valid reason for the stop. Once a computer check is completed and the officer either issues a citation or determines that no citation should be issued, the detention should end and the driver should be free to leave. In order to continue a detention after such a point, the officer must have a reasonable suspicion supported by articulable facts that a crime has been or is being committed. (citations omitted)

2. Precedent

There are also several cases on point, in addition to the Joshua case discussed above, that should guide this Court’s determination as to whether Mr. Thropay would have had a valid motion to suppress.

a. United States v. Jones, 234 F.3d 234 (5th Cir. 1999)

Jones is almost directly on point. In that case, the driver, Daniel, was stopped for speeding. Jones, 234 F.3d at 237. The officers that stopped Daniel asked him and his passenger, Jones, a series of questions. Id. The officers took Daniel and Jones back to the patrol car and “initiated a conversation with Daniel concerning the issuance of the warning ticket� and requested a records check while asking more probing questions of Daniel and Jones Id. at 237-38. Three minutes after the records check was completed, the officers asked Daniel if he would consent to the search of the vehicle and he did consent. Id. at 238. Just like the instant case, at the time the officers in Jones requested permission to search, they had retained Daniel’s license and warning citation. Id. Ultimately, drugs were discovered. Id.

The Fifth Circuit first held that Daniel’s consent to search was the fruit of an unlawful detention because it occurred after the speeding investigation should have been completed and while the officers retained his license and the ticket:
At least three minutes transpired from the response by the dispatcher to the time that Russell asked for consent to search the car. Except for obtaining Daniel’s signature, Russell had completed the warning citation. But instead of obtaining Daniel’s signature and returning his driver’s license and rental agreement, Russell chose the more dilatory tactic of exiting the car, returning Jones’s identification papers before doing the same for Daniel, and, most importantly, repeating to Jones the same questions that were asked of him before. After the computer checks were finished, any delay that occurred with respect to the warning citation being meted out was due to the officers’ action or inaction. The basis for the stop was essentially completed when the dispatcher notified the officers about the defendants’ clean records, three minutes before the officers sought consent to search the vehicle. Accordingly, the officers should have ended the detention and allowed the defendants to leave. And the failure to release the defendants violated the Fourth Amendment. The district court erred by not so holding.Id. at 241.

The Fifth Circuit then considered whether, regardless of consent, the officers had “reasonable suspicion� to search the car based upon the fact that both Daniel and Jones gave inconsistent answers to questions and that Daniel had a prior arrest on crack cocaine charges. It held that these reasons did not constitute “reasonable suspicion� to independently support the search in that case.� Id. at 248-49.

b. United States v. Dortch, 199 F.3d 193 (5th Cir. 1999)

In Dortch, the defendant was legitimately stopped for a traffic violation. Dortch, 199 F.3d at 195. Like the instant case, following the stop, the officer noted that the car was not registered to either the driver, Dortch, or the passenger. Id. at 195. Like the instant case, the driver and the passenger gave conflicting answers to where they had been. Id. at 196. Like the instant case, the officer who stopped the car did not see any luggage . Id. Like is the instant case, the officer claimed Dortch was “nervous.� Unlike the instant case, the passenger and driver also gave conflicting answers as to how they came into possession of the car. Id. While the officer was running a records check, he obtained Dortch’s permission to search the trunk but not the vehicle. Id. The officer then informed Dortch that, although he was free to go, his car would be detained pending a K-9 search. Id. Ultimately, the K-9 alerted to drugs on Dortch’s person, rather than in his vehicle, and Dortch consented to a pat down of his body where drugs were located. Id.

Dortch appealed the denial of his suppression motion. The Fifth Circuit first noted correctly that Dortch could not successfully claim that any detention pending the computer check on his license was impermissible. Id. at 198. Nevertheless, the Court next noted that, once the records check was completed, the continued detention of Dortch had to be supported by reasonable suspicion. Id. at 199. It then held that, “the confusion as to the relationship of Dortch to the proper renter of the vehicle, combined with Dortch’s absence as an authorized driver on the rental agreement and the allegedly inconsistent answer about the stay in Houston, gave rise only to a reasonable suspicion that the car might have been stolenâ€? and not that the driver was involved with drug activity to justify detention pending the arrival of the K-9. Id. Likewise, it held that Dortch’s alleged “nervousnessâ€? also did not justify continued detention after the traffic stop investigation should have concluded.

For purposes of applying Dortch to the instant case, it is significant that the government argued that Dortch consented to the search of his body. Nevertheless, the Fifth Circuit held that Dortch had not been free to go at the time he gave consent because the officer had retained his license and rental papers at the time consent was obtained and, consequently, Dortch’s consent was fruit of the illegal detention that took place following the time he should have been released when the records check was completed. Id. at 202.

c. United States v. Santiago, 310 F.3d 336 (5th Cir. 2002)

The Fifth Circuit, in Santiago, again addressed the issues that confront this Court in the instant case. There, a Louisiana State Trooper conducted a traffic stop of Santiago and his vehicle because of a flashing light emanating from the vehicle. Id. at 337-38. Upon approaching the vehicle, the trooper noted that the light was from a crystal ball hanging from the car’s rear view mirror and concluded that this was illegal under Louisiana law. Id. The trooper proceeded to ask Santiago and his passenger numerous questions. Id. After some time, the trooper ran a check on Santiago’s license. He then proceeded to ask Santiago additional questions once the records check was complete and obtained Santiago’s consent to search the vehicle after asking these additional questions. Id. at 339.

The Fifth Circuit, like it did in Jones and Dortch, concluded that, once the records check was complete, the stop should have been concluded. Id. at 342 (“Trooper Raley’s original justification for the stop ended, however, at the time the computer check was completed. At that point, there was no reasonable or articulable suspicion that Santiago was trafficking in drugs, but Raley nonetheless continued his interrogation after the original justification for the stop had ended.â€?). It then held that, because the consent to search occurred during the illegal detention, it did not support the resulting search. Id. at 343 (“[U]nder the circumstances of this case, the consent to search was not an independent act of free will, but rather a product of the unlawfully extended detention.â€?).

d. United States v. Perkins, 348 F.3d 965 (11th Cir. 2003)

Here, an Alabama patrolman stopped Perkins for a traffic violation. Perkins, 348 F.3d at 967. After the patrolman completed a driver’s license check and issued a warning ticket and “he was finished with that portion of his investigation relating to the traffic stop,â€? the patrolman “continued to detain Perkins because of his nervousness; what he perceived as Perkins’ evasive behavior in response to his questions; and his hunch that Perkins was being untruthful about his destination.â€? Id. at 968. Like Trooper Guill in this case, the patrolman then pursued his hunches with further questioning. Ultimately, the patrolman in Perkins asked for permission to search the car and Perkins refused. Id. The patrolman then requested a K-9 search that resulted in the seizure of drugs. Id. The United States Court of Appeals for the Eleventh Circuit held the search unconstitutional.

The Perkins Court first concluded that “the circumstances here do not give rise to the requisite reasonable suspicion justifying continued detention of Perkins and [his passenger] after the warning ticket had been issued.� Id. at 970. The government then argued that the following circumstances created “reasonable suspicion� to extend the stop beyond the time necessary to conclude the traffic violation:
(1) Perkins’ nervousness; (2) the “odd behavior” of Perkins in repeating the questions [the patrolman] asked him; (3) Perkins’ possession of a Florida driver’s license while claiming to live in Montgomery, Alabama; and (4) the “inconsistent” statements from Perkins and [his passenger] with regard to whom they were going to see in Greenville, Alabama.Id.

The Eleventh Circuit quickly rejected this argument. Id. (“We find that these circumstances, separately or cumulatively, cannot support a legitimate inference of further illegal activity that rises to the level of objective, reasonable suspicion required under the Fourth Amendment.�)

e. United States v. Beck, 140 F.3d 1129 (8th Cir. 1998)

In Beck, the United States Court of Appeals for the Eight Circuit confronted a traffic stop of the defendant by an Arkansas patrolman. United States v. Beck, 140F.3d 1129, 1332 (8th Cir. 1998). After speaking to Beck, the officer returned to his patrol car to run a records check. Id. Following the completion of the check, he returned Beck’s license and rental car agreement and asked permission to search the vehicle. Id. Beck nervously declined to give consent. Id. The patrolman then called for a K-9 unit and the dog, once it arrived, alerted on Beck’s car. Id. at 1332-33.

The Eight Circuit first noted “[u]nless Officer Taylor had a reasonably articulable suspicion for believing that criminal activity was afoot, continued detention of Beck became unreasonable after he had finished processing Beck’s traffic violation.â€? Id. at 1134. Nevertheless, it also noted (as distinguished from this case), that the initial questioning of Beck after the patrolman returned to the vehicle was “consensualâ€? but only because “Officer Taylor had already returned Beck’s driver’s license and rental agreementâ€? at this juncture and, therefore, Beck was free to go at the time he gave his consent. Id. at 1135. It then went on to hold that, although the encounter was consensual because Beck’s paperwork was returned, it became non-consensual when Beck was informed that, if he refused to consent to a search, a K-9 unit would be called. Id.

Because the search took place after the detention of Beck became non-consensual, the Eight Circuit examined the facts to see if there was independent “reasonable suspicion� to justify the non-consensual detention. Id. at 1136-40. Some of these factors match the “odd� factors allegedly present in this case, but there were many additional factors that might have supported a “reasonable suspicion� determination in Beck that was not present in the instant case:
Here, the government contends that reasonable suspicion for Beck’s renewed detention arose from the following seven circumstances: (1) Beck was driving a rental car which had been rented by an absent third party; (2) the Buick was licensed in California; (3) there was fast food trash on the passenger side floorboard; (4) no visible luggage in the passenger compartment of the automobile; (5) Beck’s nervous demeanor; (6) Beck’s trip from a drug source state to a drug demand state; and (7) Officer Taylor’s disbelief of Beck’s explanation for the trip. Id. at 1137.

Still the Eight Circuit found that these facts did notconstitute independent “reasonable suspicion� for the search Beck’s vehicle. Id. at 1137-40.

Some of the Court’s observations regarding the factors alleged to support “reasonable suspicion� in Beck are applicable to the “odd� facts identified in the instant case. First, it held that the fact that the rental car was in some other person’s name was not “inherently suspicious.� Id. at 1137. Second, it observed that it had previously noted that “out-of-state plates are consistent with innocent behavior and not probative of reasonable suspicion.� Id. Third, it dismissed the “no luggage in the passenger compartment� factor out-of-hand. Id. at 1139 (“[W]e think that this circumstance fails to generate any suspicion of criminal activity. Indeed, motorists are specifically advised by law enforcement agencies, as a crime prevention tip, not to leave their luggage in view.�). Finally, it was equally dismissive of the officer’s subjective assessment of Beck’s nervousness. Id. (“It certainly cannot be deemed unusual for a motorist to exhibit signs of nervousness when confronted by a law enforcement officer.�).

f. United States v. Jones, 269 F.3d 919 (8th Cir. 2001)
A Missouri trooper stopped Jones for moving violations that might have been caused by intoxication. Jones, 269 F.3d at 922. While conducting a records check on Jones, the trooper engaged him in conversation. Id. The trooper then returned Jones’ paperwork and issued him a warning citation. Id. at 923. He then asked permission to search Jones’ vehicle and Jones declined. Id. The trooper then called a K-9 unit and the drug dog alerted to drugs. Id. at 923-924.

The Eight Circuit first noted that a seizure had taken place once Jones refused permission to search his vehicle. Id. at 926. It then reviewed whether there was independent “reasonable suspicionâ€? to support the seizure. Id. at 926-2. The government relied upon the following alleged factors: “ Jones slowed while being passed, his camper wheels crossed traffic lines, he gave an inconsistent answer regarding his prior arrest record, and he acted nervously upon being detained and questioned inside Trooper DeWitt’s patrol car.â€? The Court held that the factors did not constitute “reasonable suspicionâ€? to justify the seizure. Id. at 929 (“Trooper DeWitt’s detention of Jones past the point necessary to complete his traffic stop investigation exceeded the scope of a lawfully initiated traffic stop. The extended investigative detention was unsupported by a reasonable, articulable suspicion that criminal activity was afoot and therefore violated Jones’s Fourth Amendment right to be free from unreasonable seizure.â€?).

3. Instant Case

Applying the foregoing legal principles as well as the precedent discussed above, there can be no doubt whatsoever that Mr. Thropay had been “seized� at the time the K-9 unit was called to his vehicle. Mr. Thropay does not complain of the initial stop nor does he complain of the initial questioning prior to the records check being run. Nevertheless, once Trooper Guill processed the traffic violation and completed the records check, he should have issued Mr. Thropay his citation, returned his license and allowed him to proceed. When Trooper Guill did not allow Mr. Thropay to proceed after processing the traffic violation, an illegal seizure had occurred.

Next, despite Mr. Thropay’s consent to the search of his vehicle, such consent was not valid in that it was fruit of the illegal seizure. As noted consistently by the Fifth Circuit, in Dortch, Jones, and Santiago, the fact that the detention continued past the time it should have been concluded makes any consent obtained during such a period illegal. Likewise, it is significant that, at the time consent was obtained in this case, Trooper Guill had not returned Mr. Thropay’s license. Compare, Beck, 140 F.3d at 1135 (Consensual because license was returned).

Therefore, the only real question is whether there was independent “reasonable suspicion� to detain Mr. Thropay for almost an hour in order to conduct a K-9 search of his vehicle. At trial, the trooper identified the following factors: (1) the vehicle was registered in Texas when both Mr. Thropay and Ms. Laprade had California identification; (2) there was no luggage present in the vehicle; (3) the “driver appeared to be a little nervous� and “[t]he passenger avoided eye contact� with him. Moreover, giving the government the benefit of the doubt, Trooper Guill learned of a fourth factor- that Mr. Thropay had a conviction for marijuana sale- after conducting the records check but prior to calling for a drug dog and prior to returning Mr. Thropay’s vehicle where he could have concluded the traffic stop.

Of course, factors 2 and 3 were dismissed out of hand by the Eight Circuit in Beck. As to the factor 1, given that Mr. Thropay was now living in Texas it would not be unusual for him to have bought a car in Texas. The simple fact that he did not change his driver’s license does not indicate criminal behavior. See Perkins, 348 F.3d at 971 (“[T]here are many reasons one may have failed to change the license including lack of time because of a recent move, cost, inconvenience, carelessness, or simple laziness.�). Finally, a driver’s criminal history has been held not to be sufficient to create “reasonable suspicion.� As noted by the United States Court of Appeals for the Tenth Circuit when analyzing “reasonable suspicion� factors to justify a traffic stop:

We have previously cautioned that prior criminal involvement alone is insufficient to give rise to the necessary reasonable suspicion to justify shifting the focus of an investigative detention from a traffic stop to a narcotics or weapons investigation. “If the law were otherwise, any person with any sort of criminal record…could be subjected to a Terry-type investigative stop by a law enforcement officer at any time without the need for any other justification at all.” Given the near-complete absence of other factors which reasonably gave rise to suspicion, the fact that Mr. Wood had previously been convicted of narcotics violations adds little to the calculus. United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). See also Jones, 234 F.3d at 248-49.

IV. CONCLUSION

As set forth above, there was no basis to detain Mr. Thropay between what should have been the end of the traffic investigation at 11:24 and the alert of K-9 Freon at 12:09. Consequently, Mr. Thropay had a meritorious suppression motion, supported by precedent, that would have resulted in the suppression of the drugs that were ultimately seized from his vehicle. Moreover, such a motion would have been case dispositive.

Respectfully submitted,

F. Clinton Broden
Tx. Bar 24001495
Broden & Mickelsen
2707 Hibernia St.
Dallas, Texas 75204
214-720-9552
214-720-9594 (facsimile)
CERTIFICATE OF SERVICE

I certify that on July 20, 2006, I caused the foregoing document to be served by electronic means, on:
Gary Hayward, Esq.
United States Attorney’s Office
110 East Court Avenue
Des Moins, Iowa 50309

F. Clinton Broden

David Finn