Federal Law Gumbo

T e x a s C r i m i n a l D e f e n s e L a w y e r ’s A s s o c i a t i o n

COURSE DIRECTORS

David Botsford & John Convery February 10-11, 2022 • New Orleans, LA

FEDERAL LAW GUMBO SEMINAR INFORMATION Date February 10-11, 2022 Location New Orleans, Louisiana l The Roosevelt, 130 Roosevelt Way, New Orleans, LA 70112 Course Directors David Botsford and John Convery Total CLE Hours 12.0 Ethics: 1.0

Thursday, February 10, 2022 Time

CLE

8:00 am

Topic

1.0

9:30 am

Speaker

Opening Remarks

David Botsford and John A. Convery

Restitution Anyone?

Michael Gross

Break

9:45 am

1.0

Grand Jury Representation

Ed Mallet

10:45 am

1.0

Terrorism, Foreign & Domestic

Cynthia Hujar Orr

11:45 am

Lunch on Your Own

1:15 pm

1.0

PreTrial Motions

Mike Heiskell

2:15 pm

1.0

Mental Disabilities

Elizabeth Kelley

3:15 pm 3:30 pm 4:30 pm

Ethics: 0

Registration and Continental Breakfast

8:15 am

8:30 am

Daily CLE Hours: 6.0

Break 1.0

Public Corruption Panel

John Convery and Billy Gibbens

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

FEDERAL LAW GUMBO SEMINAR INFORMATION Date February 10-11, 2022 Location New Orleans, Louisiana l The Roosevelt, 130 Roosevelt Way, New Orleans, LA 70112 Course Directors David Botsford and John Convery Total CLE Hours 12.0 Ethics: 1.0

Friday, February 11, 2022 Time

CLE

Daily CLE Hours: 6.0 Topic

Speaker

8:00 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Michael Gross John A. Convery

Professionalism & CJA Vouchers, Budgeting, Resources

Margaret Alverson

8:30 am

1.0 Ethics

9:30 am

Break

9:45 am

1.0

Forfeitures

John Carroll

10:45 am

1.0

Health Care Fraud

Mary Stillinger

11:45 am

Lunch on Your Own

1:15 pm

1.0

Plea Bargaining

Michael McCrum

2:15 pm

1.0

Improving Sentencing Presentations

Claude J. Kelly

3:15 pm 3:30 pm 4:30 pm

Ethics: 0

Break 1.0

White Collar Cases, 5th Circuit & Supreme Court

Hon. Henry Bemporad

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Federal Law Gumbo Table of Contents

Speaker

Topic February 10-11, 2022

Michael Gross Ed Mallet Cynthia Hujar Orr Mike Heiskell Elizabeth Kelley Margaret Alverson John Carroll Michael McCrum Hon. Henry Bemporad

Restitution Anyone?

Grand Jury Representation Terrorism, Foreign & Domestic Pre-Trial Motions Mental Disabilities Professionalism & CJA Vouchers, Budgeting, Resources Forfeitures Plea Bargaining White Collar Cases, 5th Circuit & Supreme Court

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Federal Law Gumbo February 10-11, 2022

Topic: Restitution Anyone?

Speaker:

Michael Gross 1524 N Alamo St San Antonio, TX 78215-1205 (210) 354-1919 Phone (210) 354-1920 Fax lawofcmg@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

RESTITUTION IN FEDERAL CASES

Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 (210) 354-1919 lawofcmg@gmail.com www.txmilitarylaw.com

Federal Law Gumbo New Orleans, Louisiana February 10-11, 2022

GROSS & ESPARZA, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919 MICHAEL C. GROSS CURRICULUM VITAE EDUCATION B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987 PROFESSIONAL ACTIVITIES AND RECOGNITIONS Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012 Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995 Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011 President, Texas Criminal Defense Lawyers Association, 2021-2022 President, San Antonio Criminal Defense Lawyers Association, 2010-2011 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009 Named in Best Lawyers in America, 2005 - 2021 Named Best Lawyers 2015 San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017 Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2021 Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014 Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2021 Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble COURT ADMISSIONS Supreme Court of the United States, 1991 Supreme Court of the State of Texas, 1987 United States Court of Appeals for the Armed Forces, 1990 United States Court of Appeals for the Fifth Circuit, 1990 United States Court of Appeals for the Tenth Circuit, 1998 United States District Court for the Northern District of Texas, 1990 United States District Court for the Southern District of Texas, 1991 United States District Court for the Eastern District of Texas, 1991 United States District Court for the Western District of Texas, 1992

TABLE OF CONTENTS I.

Statutes authorizing restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. The Mandatory Victims Restitution Act of 1996 (MVRA) . . . . . . . . . . . . . . . . . . 1 1.

Multi-defendant cases; joint/several or apportioned liability . . . . . . . . . . . 1 2.

Plea agreement provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3.

Restitution as opposed to forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. The Victim and Witness Protection Act of 1982 (VWPA). . . . . . . . . . . . . . . . . . . 1 C. Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

MVRA & VWPA restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Record must support restitution amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Restitution in sex offense cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.

Restitution in child porn cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.

Restitution in sex trafficking cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.

Restitution in sex assault cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C. Restitution in accessory cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 D. Actual loss caused in medical cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.

Credit for medical services actually provided. . . . . . . . . . . . . . . . . . . . . . . 4 2.

Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3.

When credit is warranted for medical services actually provided . . . . . . . 5 4.

When credit is not warranted for medical services actually provided . . . . 5 E. Immigration consequences of restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III.

Procedure for issuance and enforcement of restitution orders . . . . . . . . . . . . . . . . . . . . . . 6 A. Procedure for court’s issuance of restitution orders . . . . . . . . . . . . . . . . . . . . . . . . 6 B. Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. Restraint of defendant’s assets to preserve them for restitution under MVRA . . . 6 1.

Motion to prevent dissipation of assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2.

Rule 65 of the Federal Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . 7 3.

Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4.

Government request charging order on defendant’s property interest . . . . 9 5.

IRS or USAO as party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I.

Statutes authorizing restitution.

A.

The Mandatory Victims Restitution Act of 1996 (MVRA).

based on their economic circumstances and their respective contributions to the victim’s losses.

2.

Federal courts lack inherent authority to order restitution as part of a criminal sentence; courts may order restitution only pursuant to statutory authority. United States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012). The Mandatory Victims Restitution Act of 1996 (hereinafter MVRA), 18 U.S.C. § 3663A, provides that for crimes of violence, certain property offenses, crimes related to consumer product tampering resulting in physical or pecuniary loss, or crimes related to theft of medical products, “the court shall order, in addition to . . . any other penalty authorized by law, that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim’s estate.”

18 U.S.C. § 3663A(a)(1). The MVRA defines a victim as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A (a)(2). Victims have a “right to full and timely restitution as provided in law.” 18 U.S.C. § 3771(a)(6). Victims, however, have no right to appeal a restitution order. United States v.

Hunter, 548 F.3d 1308, 1313 (10th Cir. 2008).

1.

Plea agreement provisions.

Under the MVRA, a district court must “order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.” 18 U.S.C. § 3663A(a)(3).

3.

Restitution as opposed to forfeiture.

A court sentencing a defendant for an offense involving property loss must order the defendant to pay restitution to the victim. 18 U.S.C. § 3663A. “[W]here a fraudulent scheme is an element of the conviction, the court may award restitution for actions pursuant to that scheme.” United States v.

Cothran, 302 F.3d 279, 289 (5th Cir. 2002).

While restitution represents a victim’s loss from the defendant’s offense, forfeiture represents the defendant’s gain from the offense. United States v. Taylor, 582 F.3d 558, 566 (5th Cir. 2009) (citing United States v. Webber, 536 F.3d 584, 602-03 (7th Cir. 2008)). Restitution and forfeiture may be awarded in the same case. United States v.

Sanjar, 876 F.3d 725 (5th Cir. 2017).

B.

The Victim and Witness Protection Act of 1982 (VWPA).

Restitution may be ordered pursuant to 18 U.S.C. § 3556, which provides that “[t]he court, in imposing a sentence on a defendant who has been found guilty of an offense shall order restitution in accordance with [18 U.S.C. §] 3663A, and may order restitution in accordance with [18 U.S.C. §] 3663.” In 1982, Congress enacted the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663, which authorizes district courts discretion to

Multi-defendant cases; joint/several or apportioned liability.

In multi-defendant cases, 18 U.S.C. § 3664(h) explicitly gives a district court discretion as to whether joint and several liability should apply or whether liability should be apportioned among the defendants 1

order restitution for crime victims. 18 U.S.C. § 3663(a)(1)(A) (stating that a district court may order that a defendant make restitution to any victim of an offense). The VWPA requires that a court consider the defendant’s financial circumstances before ordering restitution. 18 U.S.C. § 3663(a)(1)(B). The MVRA made restitution mandatory in certain cases, particularly for crimes of violence and theft with identifiable victims who “suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1)). The MVRA applies in relevant part to any “offense against property under [Title 18], . . . including any offense committed by fraud or deceit[.]” 18 U.S.C. § 3663A(c)(1)(A)(ii). Unlike the discretionary restitution that the VWPA authorizes, the MVRA prohibits courts from considering defendants’ economic circumstances when determining the restitution amount. 18 U.S.C. § 3664(f)(1)(A).

C.

calculating the amount of loss, the trial judge considered the false claims that were submitted for settlement checks. Id. The trial judge ordered the defendant to pay restitution pursuant to the MVRA. Id. One of the issues on appeal was the restitution amount and whether or not the record supported the district judge’s calculation of the amount of loss. Id. The defendant agreed that a restitution order was legal, but the defendant disagreed with the amount of restitution. Id. This Court stated, “The general rule is that a district court can award restitution to victims of the offense, but the restitution award can encompass only those losses that resulted directly from the offense for which the defendant was convicted.” Id. (quoting United States v. Maturin, 488 F.3d 657 (5th Cir. 2007). If even less than 1% of the restitution amount is unsupported by the record, the appellate court will vacate the restitution order. United States v. Arledge, supra. In vacating the restitution order, the court determined that the evidence did not support a finding that three of the claims submitted for settlement checks were false. Id.

Burden of proof.

The burden to demonstrate “the amount of the loss sustained by a victim” is on the government. 18 U.S.C. § 3664(e). The MVRA, however, approves burden shifting based on which party is “best able to satisfy those burdens and who [has] the strongest particular incentive to litigate the particular issues involved.” United States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998).

II.

MVRA & VWPA restitution.

A.

Record must support restitution amount.

B.

Restitution in sex offense cases.

Several statutes apply to restitution in federal sex cases. If certain conditions are met, the MVRA requires a district court sentencing a defendant to order restitution pursuant to the VWPA under section 3663. The VWPA allows (but not requires) a district court sentencing a defendant to order restitution if certain conditions are met. The following statutes have mandatory restitution provisions: (1) child pornography, 18 U.S.C. § 2259; (2) sex trafficking, 18 U.S.C. § 1593; and (3) sexual abuse, 18 U.S.C. § 2248. The government has the burden of proving in these cases by a preponderance of the evidence the “amount of loss sustained by a victim.” 18 U.S.C. § 3664(e).

In United States v. Arledge, 553 F.3d 881 (5th Cir. 2008), the defendant was convicted of conspiracy and fraud. The defendant had fabricated evidence for mass tort settlement claims by using legitimate claims to conceal fraudulent claims. Id. In 2

1.

recover ill-gotten gains (greater of gross income or value to defendant of victim’s services or labor under minimum wage) and the full amount of losses. 18 U.S.C. § 1593 (b)(3). The full amount of losses include medical services, therapy/rehabilitation, transportation/housing/childcare, lost income, attorney’s fees, and any other losses resulting from the offense. 18 U.S.C. § 1593(b). A restitution amount of $3,892,055.00 for four minor victims was upheld as reasonable in that the court calculated $500.00 daily for each victim for the period they worked for the defendant in addition to mental health treatment and attorney’s fees. In re Sealed Case, 702 F.3d 59 (D.C. Cir. 2012).

Restitution in child porn cases.

In child porn cases, victims may recover “the full amount of losses” which is defined as a list of various categories of potential loss, medical care, and lost future income. 18 U.S.C. § 2259(a)(3). The Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 revised 18 U.S.C. § 2259 and requires a district court to “determine the full amount of the victim’s losses that were incurred or are reasonably projected to be incurred by the victim as a result of the trafficking in child pornography depicting the victim.” 18 U.S.C. § 2259(b) (2)(A). The district court must then “order restitution in an amount that reflects the defendant’s relative role in the causal process that underlies the victim’s losses, but which is no less than $3,000.” § 2259(b) (2)(B). The Act supersedes the Supreme Court’s interpretation of § 2259 requiring district courts to award restitution commensurate with the defendant’s causal role in the victim’s losses without any mandatory amount.

Paroline v. United States, 572 U.S. 434, 458, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014). A defendant, however, “cannot be twisted into a license to hold a defendant liable for an amount drastically out of proportion to his own individual causal relation to the victim’s losses.” Id. A restitution amount of $1.3 million was reversed because it held a defendant accountable for harm initially caused by the victim’s abuser and calculated in an expert report that did not disaggregate those harms. United States v. Galan, 804 F.3d 1287 (9th Cir. 2015). A defendant should request a district court explain its methodology underlying a restitution decision in these cases.

2.

3.

Restitution in sex assault cases.

In sex assault cases, victims may recover the full amount of losses. 18 U.S.C. § 2248(b)(3). A court may not order a defendant to pay restitution to a facility that provided free care to a victim. United States v. Follet, 269 F.3d 996 (9th Cir. 2001). A cost not paid by a victim is not incurred by the victim even if the organization providing the services incurred costs for the victim’s benefit. Id. A $31,994.00 restitution order for a victim’s mother making trips from her home to victim’s school was appropriate because she was the victim’s legal guardian and therefore able to recover travel expenses proximately cause by the offense. United States v. Tsosie, 639 F.3d 1213 (9th Cir. 2011).

C.

Restitution in accessory cases.

A person charged as an accessory after the fact is liable for restitution only if the government can prove the person’s offense conduct directly and proximately caused financial loss to a victim. United States v.

Squirrel, 588 F.3d 207 (4th Cir. 2009).

Restitution in sex trafficking cases.

In sex trafficking cases, victims may 3

D.

dollar must be supported by record evidence.”

Id. “Actual loss also must not include compensation for that which would have occurred in the absence of the crime. Thus, in health-care fraud cases, an insurer’s actual loss for restitution purposes must not include any amount that the insurer would have paid had the defendant not committed the fraud.”

Id. A district court “abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” United States v. Crawley, 533 F.3d 349, 358 (5th Cir. 2008).

Actual loss caused in medical cases.

An MVRA restitution order is issued and enforced in accordance with 18 U.S.C. § 3664, which sets forth the procedures for calculating and ordering restitution. 18 U.S.C. § 3663A(d). Section 3664(f)(1)(A) provides that “the court shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” This language has been interpreted to require that a restitution order be based on actual loss rather than intended loss. United States v. Harvey, 532 F.3d 326, 339 (4th Cir. 2008).

1.

2.

Burden of proof.

The burden to demonstrate “the amount of the loss sustained by a victim” is on the government. 18 U.S.C. § 3664(e). The MVRA, however, approves burden shifting based on which party is “best able to satisfy those burdens and who [has] the strongest particular incentive to litigate the particular issues involved.” United States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998).

Credit for medical services actually provided.

In United States v. Sharma, 703 F.3d 318 (5th Cir. 2012), the defendant plead guilty to defrauding insurance companies by billing for medical services that were never performed. Id. The defendant was ordered to pay restitution and claimed on appeal that part of the restitution amount violated the MVRA because the evidence did not include the actual loss of three insurers. Id. The defendant contested the loss amount during sentencing, but the trial judge approved the restitution amount unsupported by the evidence. Id. The Fifth Circuit held this was an abuse of discretion, vacated the restitution order, and remanded this issue to the trial judge to recalculate the restitution amount and make findings on the record regarding each insurer’s actual loss. Id. “A restitution order cannot compensate a victim for losses caused by conduct not charged in the indictment or specified in a guilty plea or for losses caused by conduct that falls outside the temporal scope of the acts of conviction.” Id. “Moreover, excessive restitution awards cannot be excused by harmless error; every

In Sharma, the Fifth Circuit held that “at least a portion of the burden . . . to establish [an] entitlement to a restitution credit” should be transferred to the defendant in Medicare cases where the defendant claims that legitimate medical services were provided. Id. The defendant therefore has a burden to show entitlement to an offset against the amount of actual loss. See United States v. Mathew, 916 F.3d 510, 521 (5th Cir. 2019). The defendant meets this burden by establishing “(1) ‘that the services [he provided to Medicare beneficiaries] were legitimate’ and (2) ‘that Medicare would have paid for those services but for his fraud.’” Id. [] If the defendant satisfies this burden, “the government can rebut with additional evidence.” Id.

4

Sharma held that a district court may shift “the burden of demonstrating such other matters as the court deems appropriate . . . [to] the party designated by the court as justice requires.” The following cases support a district judge requiring a defendant to prove entitlement to a restitution credit. In United States v. Loe, 248 F.3d 449 (5th Cir. 2001), it was held proper for the district court to reject a restitution credit because the defendant failed “to provide reliable evidence supporting its claims” that not all of its insurance claims were fraudulent. In United States v.

Sheinbaum, 136 F.3d 443 (5th Cir. 1998), it was proper for the district court to find that the defendant had “the burden of proving an offset” to restitution for any amounts it paid the victim in a civil settlement. In United States v. Edet, No. 08-10287, 2009 U.S. App. LEXIS 81138 (5th Cir., Mar. 18, 2009) (unpublished), no error occurred in a denial of credit for the value of wheelchairs provided to patients because the defendant failed to offer evidence that Medicare would have paid for the wheelchairs in the absence of the fraud.

for the medications regardless of the fraud.”

Id. The Fifth Circuit vacated the restitution order and remanded for recalculation with a credit for the value of the medication. Id.

3.

A LPR convicted of an aggravated felony after admission is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony is defined, in part, as a crime involving “fraud or deceit” in which the loss to the victim exceeded $10,000.00. 8 U.S.C. § 1101(a)(43) (M)(i). Wire fraud is considered a crime involving fraud or deceit. Nijhawan v. Holder, 557 U.S. 29, 43 (2009). The main issue for a defendant’s immigration status in a wire fraud case, therefore, is whether or not the wire fraud conviction caused loss exceeding $10,000.00 – i.e., does any restitution amount exceeding $10,000.00 relate to conduct outside of the criminal conduct for which he was convicted. Nijhawan v. Holder, supra at 42.

4.

When credit is not warranted for medical services actually provided.

In United States v. Jones, 664 F.3d 966 (5th Cir. 2011), Medicare was billed by defendants for providing physical rehabilitation services, but the defendants fraudulently misrepresented the qualifications of those who performed the work. Id. The restitution order to Medicare was for the total amount Medicare paid to the defendants without any credit for the value of the physical therapy actually provided. Id. The Fifth Circuit affirmed because, although the patients received some therapeutic benefit, Medicare would not have paid for any of the treatment absent those fraudulent misrepresentations. Id. E.

When credit is warranted for medical services actually provided.

In United States v. Klein, 543 F.3d 206 (5th Cir. 2008), the defendant doctor was convicted of billing insurers for personally giving three shots to patients when actually all patients gave themselves two of the three shots. Id. The district court ordered restitution for the entire amount the insurers paid the defendant for: (1) the two self-administered shots; (2) the value of the medication; and (3) the amount charged by the defendant to administer the medication. Id. This restitution calculation overstated the insurers’ losses because there should have been a credit for the value of the medication. Id. Regardless how the medication was administered, “the insurance companies would have had to pay 5

Immigration restitution.

consequences

of

III.

Procedure for issuance and enforcement of restitution orders.

A.

Procedure for court’s issuance of restitution orders.

The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant’s dependents, shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires.” 18 U.S.C. § 3664(e).

“For orders of restitution under this title, the court shall order the probation officer to obtain and include in its presentence report, or in a separate report, as the court may direct, information sufficient for the court to exercise its discretion in fashioning a restitution order.

The report shall include, to the extent practicable, a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant.” 18 U.S.C. § 3664(a). “The court shall disclose to both the defendant and the attorney for the Government all portions of the presentence or other report pertaining to the matters described in subsection (a) of this section.” 18 U.S.C. § 3664(b).

Restraint of defendant’s assets to preserve them for restitution under MVRA.

1.

Motion to prevent dissipation of assets.

“An order of restitution may be enforced by the United States in the manner provided for in subchapter C of chapter 227 and subchapter B of chapter 229 of this title [18 USCS §§ 3571 et seq. and 3611 et seq.]; or (ii) by all other available and reasonable means.” 18 U.S.C. § 3664(m)(1)(A).

“If the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.” 18 U.S.C. § 3664(d)(5).

B.

C.

“A judgment may be enforced by any of the remedies set forth in this subchapter [28 USCS §§ 3201 et seq.]. A court may issue other writs pursuant to section 1651 of title 28, United States Code, as necessary to support such remedies, subject to rule 81(b) of the Federal Rules of Civil Procedure.” 28 U.S.C. § 3202(a).

The government enforces orders of restitution as well as other debts owed the United States through the Federal Debt Collection Procedures Act of 1990 (“FDCPA”), 28 U.S.C. §§ 3001, et seq. The FDCPA authorizes a court to utilize the All Writs Act, 28 U.S.C. §1651, to support any of the remedies set forth in the FDCPA. 28 U.S.C. § 3202(a).

Burden of proof.

“Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.

6

While the language of the All Writs Act refers to writs issued in aid of jurisdiction, the Supreme Court has held that the Act empowers district courts to issue orders or injunctions “necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” United States v. New York Tel. Co., 434 U.S. 159, 172 (1977); United States v. Cohen, 152 F.3d 321, 325 (4th Cir. 1998) (stating that “courts have held that ‘where an injunction is proper in order to protect or effectuate the judgments of a federal court, it is within that court’s power to issue the injunction under the All Writs Act’”) (quoting Ward v. Pennsylvania New York Cent. Transp. Co., 456 F.2d 1046, 1048 (2d Cir. 1972)). A district court’s power in this regard includes the power to enjoin or bind non-parties. In re Baldwin–United Corp., 770 F.2d 328, 338 (2d Cir. 1985).

selling or disposing of defendant’s property and allowing government to file notice of lis pendens where such order necessary to protect and effectuate sentencing and restitution orders and to ensure future availability of property to satisfy the restitution order).

“Property” includes any present or future interest, whether legal or equitable, in real, personal (including choses in action), or mixed property, tangible or intangible, vested or contingent, wherever located and however held (including community property and property held in trust (including spendthrift and pension trusts)) . . . 28 U.S.C. § 3002(12).

Once a defendant has been sentenced, the government becomes a secured creditor.

The lien that arises pursuant to a federal criminal judgment is a creation of federal law.

18 U.S.C. § 3613. The lien attaches to all property interests, whether equitable or legal, present or future, wherever located and however held. 28 U.S.C. § 3002(12).

Congress recognized victim’s losses to be as important as the collection of taxes. The MVRA was enacted by Congress “‘to ensure that the loss to the crime victim is recognized,’ as well as to guarantee that ‘they receive the restitution that they are due.’”

United States v. First Bank & Trust E. Texas, 2007 U.S. Dist. LEXIS 26408, 2007 WL 1091021 (E.D. Tex. 2007).

The All Writs Act has been used to restrain a defendant from dissipating assets.

Post-conviction, defendants “no longer are bathed with the presumption of innocence,” and a court has the power to restrain assets between the time of conviction and the time of sentencing so that assets are available to comply with an anticipated restitution order.

United States v. Numisgroup Int’l Corp., 169 F.Supp.2d 133, 138 (E.D. N.Y. 2001); United States v. Gates, 777 F.Supp. 1294, 1296 n.7 (E.D. Va. 1991) (trial court has authority to order a defendant awaiting sentencing not to dispose of his assets to ensure meaningful ability to impose a proper sentence and “to fulfill the intent and mandate of Congress that a financially able defendant pay fines and costs of prosecution, incarceration, and supervised release or probation.”); United States v. Abdelhadi, 327 F.Supp.2d 587 (E.D. Va. 2004) (authorizing under All Writs Act restraining order against defendant and others acting in concert with him from transferring,

2.

Rule 65 of the Federal Rules of Civil Procedure.

Entitlement to a preliminary injunction under the All Writs Act requires consideration of the same factors as a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure, that is, (1) the threat of irreparable harm to the movant; (2) the balance between this harm and the injury caused by granting the injunction; (3) the probability of 7

succeeding on the merits; and (4) the public interest. Canady v. Allstate Ins. Co., 282 F.3d 1005, 1020 (8th Cir. 2002), abrogated on other grounds by Syngenta Crop Protection, Inc. v.

Henson, 537 U.S. 28 (2002) (citing Dataphase Sys. v. C L Sys., 640 F.2d 109, 113 (8th Cir. 1981)). It does not, however, require “rigid” adherence to the procedures and prescriptions of Rule 65, “so long as the injunction is ‘specific and definite enough to apprise those within its scope of the conduct that is being proscribed.’” United States v. Yielding, 657 F.3d 722, 727 (8th Cir. 2011) (quoting In re Baldwin–United Corp., 770 F.2d 328, 338 (2d Cir. 1985)).

resolved. The district court ordered the money to be paid to the government and the TRO dissolved, and the defendant (and other third parties) appealed. On appeal, the third parties argued that the TRO should be vacated because the United States and the district court failed to comply with Rule 65 of the Federal Rules of Civil Procedure. In rejecting this contention, the Eighth Circuit held that “injunctive relief under the All Writs Act need not rigidly comply with Rule 65's prescriptions so long as the injunction is ‘specific and definite enough to apprise those within its scope of the conduct that is being proscribed.’” Id. The Eighth Circuit found that the affected parties had notice of the TRO, had the opportunity to move to dissolve it, and there was no contention that it lacked specificity.

“The power conferred by the All Writs Act ‘ex t ends , u n d e r a p p r o pri ate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order.’” Yielding at 728 (quoting United States v. N.Y. Tel. Co., 434 U.S. 159, 174 (1977)). The power extends to compelling persons not parties to the action to act or not to act. USCOC of Greater Missouri, LLC v. Cty. of Franklin, Mo., 636 F.3d 927, 932 (8th Cir. 2011).

The rationale for this is because “[i]njunctions issued under the authority of the All-Writs Act stem from very different concerns than those motivating preliminary injunctions governed by [Rule 65].” In re Johns-Manville Corp., 27 F.3d 48 (2d Cir. 1994). The All Writs Act, as discussed above, may be used to issue writs necessary or appropriate to protect or effectuate its judgments. Rule 65, meanwhile, is designed to preserve the status quo between the parties before the court pending a decision on the merits of the case at hand. United States CFTC v. Amaranth Advisors, LLC, 523 F.Supp.2d 328 (S.D.N.Y. 2007). In cases where a defendant has been sentenced and no need to preserve the status quo pending a merits decision, the government will argue that a need exists for relief to prevent third parties from dissipating the defendant’s primary assets so a restraining order should not be considered a preliminary injunction within the meaning of FRCP 65 and therefore should not be dissolved on that basis.

Courts have held that “[a] sentencing court has jurisdiction to enforce its restitution order and may use the All Writs Act, when necessary and appropriate, to prevent the restitution debtor from frustrating collection of the restitution debt.” Yielding, 657 F.3d 722, 727 (8th Cir. 2011). In Yielding, a criminal defendant was convicted of aiding and abetting a violation of the federal AntiKickback Statute. While his direct appeal was pending, the government discovered that the defendant would be paid to settle unrelated civil litigation. At the request of the government, the district court entered a restraining order enjoining the defendant from dissipating the proceeds until the dispute was 8

One district court has concluded the Fifth Circuit has implicitly found that All Writs Act injunctions need not satisfy the Rule 65 requirements for injunctive relief. In re Chinese-Manufactured Drywall Products Liability Litigation, 2011 U.S. Dist. LEXIS 62222, 201l WL 2313866 (E.D. La. June 9, 2011). Chinese-Manufactured Drywall held that the requirements of Rule 65(d) be complied with, i.e., the “injunction must simply be framed so that those enjoined will know what conduct the court has prohibited.”

Id. (quoting Islander E. Rental Program v.

Barfield, 145 F.3d 359 (5th Cir. 1998)).

3.

individual, including the degree to which corporate formalities have been followed and corporate and individual property have been kept separately; the amount of financial interest, ownership and control the individual maintains over the corporation; and whether the corporation has been used for personal purposes. Id. at 272. The Fifth Circuit has noted that there are three distinct strands under Texas law where the corporate form should be disregarded: (1) alter ego proper, where a corporation is a mere tool or conduit; (2) illegal purpose, where the corporate form is used as a technique for avoiding legal limitations; and (3) sham to perpetrate a fraud, focused on whether an “inequity” or “injustice” is created. Pan Eastern Exploration Co. v. Hufo Oils, 855 F.2d 1106 (5th Cir. 1988), superseded on other grounds by, Tex. Bus. Corp. Act Ann. Art. 2.21.

Depositions

For incarcerated persons, Rule 30(a)(2)(B) requires parties to seek leave to depose such persons. Interested parties are entitled to depose a defendant in a civil action.

Leve v. General Motors Corp., 43 F.R.D. 508, 511 (S.D.N.Y. 1967). Depositions of opposing parties and witnesses are so routine that courts have permitted them even when the party seeking to depose an incarcerated party or witness has neglected to request leave under Rule 30(a). Kendrick v. Schnorbus, 655 F.2d 727, 729 (6th Cir. 1981); Miller v. Bluff, 131 F.R.D. 698, 700 (M.D. Pa. 1990).

4.

5.

IRS or USAO as party.

It is well established law that in actions involving federal taxes the proper party is the United States and not the IRS. Blackmar v. Guerre, 342 U.S. 512, 514 (1952). However, in some restitution cases the United States may have two different components represented by different offices.

The United States in regard to the criminal restitution owed by a defendant may be represented by the United States Attorney’s Office for the given district. In regard to tax liabilities owed by the defendant and the tax judgment the United States, on behalf of the IRS, may be represented by the Tax Division of the United States Department of Justice.

Government request charging order on defendant’s property interest.

The government may argue that an alter ego analysis allows the government to obtain a charging order against a defendant’s property interest. Under Castleberry v.

Branscum, 721 S.W.2d 270 (Tex. 1986), superseded by statute on other grounds, SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 455 (Tex. 2008)). the following must be looked into for an alter ego and reverse corporate veil piercing analysis: the total dealings of the corporation and the

Pursuant to 26 U.S.C. §§ 7401 and 7403, the IRS may seek to recover the unpaid federal taxes, penalties and interest assessed against a defendant by foreclosure of federal tax liens and tax judgments encumbering the defendant’s interest in certain real property 9

subject to the restitution action. 26 U.S.C. § 7403 requires that all parties which have liens on the property at issue to be a party to the suit. Thus, section 7403 would make the United States, regarding a criminal restitution judgment filed in a county of a State, a necessary party to the action regardless of the criminal restitution judgment’s priority.

Pursuant to 26 U.S.C. § 6321, federal tax liens may arise and attach to all of a defendant’s property and rights to property in existence on the date of assessments acquired thereafter. United States v. Nat’l Bank of Commerce, 472 U.S. 713, 719 (1985); Glass City Bank v. United States, 326 U.S. 265, 267-69 (1945). A defendant’s property interests include property held for him by a nominee or alter ego. Oxford Capital Corp. v.

United States, 211 F.3d 280, 284 (5th Cir. 2000). Section 6321 federal tax liens may have been effective against the defendant and the whole world, even if a notice of the lien was not recorded. Rice Investment Co. v.

United States, 625 F.2d 565, 568 (5th Cir. 1980). A subsequent transfer of a defendant’s property would not affect these liens because no matter into whose hands the property goes, the property passes with the lien attached.

United States v. Bess, 357 U.S. 51, 57 (1958).

Federal tax liens also attach to property held by the taxpayer’s nominees – someone who has legal title when, in substance, the taxpayer enjoys the benefits of ownership. G.M. Leasing Corp. v. United States, 429 U.S. 338, 350–51 (1977); United States v. Swan, 467 F.3d 655, 658 (7th Cir. 2006); Macklin v. United States, 300 F.3d 814, 818 n.2 (7th Cir. 2002).

10

Texas Criminal Defense Lawyers Association

Federal Law Gumbo February 10-11, 2022

Topic: Grand Jury Representation Speaker:

Ed Mallet 4306 Yoakum Blvd Ste 400 Houston, TX 77006-5851 (713) 236-1900 Phone (713) 228-0321 Fax edward@msblawyers.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Federal Law Gumbo February 10-11, 2022

Topic: Terrorism, Foreign & Domestic Speaker:

Cynthia Hujar Orr 310 S Saint Marys St., 29th Floor San Antonio, TX 78205-3117 (210) 226-1463 Phone (210) 226-8367 Fax whitecollarlaw@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

United States Court of Appeals, Fifth Circuit.

UNITED STATES OF AMERICA, Plaintiff–Appellee, v. WISSAM ALLOUCHE, also known as Wissam Ismail Allouche, also known as Wissam I. Allouche, Defendant–Appellant.

No. 15-50409 Decided: July 12, 2017 Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.

We deny the petition for rehearing en banc but grant panel rehearing. We withdraw our earlier opinion, which affirmed Defendant–Appellant Wissam Allouche's convictions under 18 U.S.C. §§ 1001 and 1425(b). We now substitute therefor the following, which affirms the § 1001 conviction but reverses the § 1425(b) conviction: Allouche was convicted of unlawfully procuring citizenship by making false statements about his marriage in violation of 18 U.S.C. § 1425(b) and of making a materially false statement on a security clearance form in violation of 18 U.S.C. § 1001. The district court sentenced him to sixty months' imprisonment and revoked his U.S. naturalization and citizenship pursuant to 8 U.S.C. § 1451(e). On appeal, Allouche raises eleven issues challenging these convictions and his sentence. We address only whether sufficient evidence supported Allouche's § 1425(b) conviction. Because we find such evidence lacking, we reverse Allouche's conviction for unlawfully procuring citizenship in violation of § 1425(b). Having reviewed the other challenges raised by Allouche on appeal and finding no error, we affirm Allouche's conviction for making a materially false statement in violation of § 1001.

I. FACTUAL AND PROCEDURAL BACKGROUND Allouche was born in Beirut, Lebanon, in 1968. In the early 1980s, he joined an organization called the Amal Militia. The Amal Militia was founded in the 1970s and was associated with Shia Muslims in Lebanon. Dr. Matthew Levitt, an expert on counterterrorism and intelligence, testified that “Amal was engaging in the types of case[s], textbook case study actions that you would describe as terrorism.” As a member of the Amal Militia, Allouche was trained in the use of assault weapons, rocketpropelled grenades (“RPGs”), and explosives. Allouche also fought against Israel in the 1982 Lebanese–Israeli War. Israeli soldiers captured Allouche and held him as a prisoner of war for eighteen to twenty-four months. Upon his release from Israeli custody, Allouche rejoined the Amal Militia in Lebanon. He was then given command of

approximately 200 fighters in Deir Al Zahrani, a city in southern Lebanon. Allouche left Lebanon in 1987 and went to Germany.

In 1997, Allouche met Jennifer Danko, an officer in the U.S. Army Medical Services Corps, while she was stationed in Germany. Danko and Allouche were married roughly a year and a half later. In 2002, Danko was transferred from Germany to Fort Sam Houston in San Antonio, Texas. Allouche accompanied Danko to San Antonio. In 2006 or 2007, Allouche took a job as a contract interpreter for the U.S. Armed Forces in Iraq.

In December 2007, Danko filed for a divorce from Allouche. Later that month, Danko served Allouche with divorce papers after he returned to the United States from Iraq.

According to Danko's petition for divorce and Allouche's counterpetition, they separated and ceased living together in December 2007.

In September 2008, Allouche submitted a naturalization application with the aid of counsel. The Department of Homeland Security (“DHS”) considered Allouche's eligibility to naturalize under two sections of the Immigration and Nationality Act (“INA”): Sections 316 and 319. Section 316 provides in relevant part that a lawful permanent resident may obtain citizenship if: (1) after being lawfully admitted, he has continuously resided in the United States for at least five years immediately preceding the filing of the application, has been physically present in the United States for at least half of that time, and has resided in the state or district of the United States where the application was filed for at least three months; (2) he has continually resided “within the United States from the date of the application up to the time of admission to citizenship”; and (3) the person is “of good moral character.” 8 U.S.C. § 1427(a). Section 319 provides in part that a lawful permanent resident who is married to a U.S. citizen may obtain citizenship if “during the three years immediately preceding the date of filing his application” he “has been living in marital union with the citizen spouse.” 8 U.S.C. § 1430(a). Pursuant to 8 C.F.R. § 319.1(b)(1), “marital union” means that the applicant must “actually reside[ ] with his or her current spouse.” This regulation also provides that “legal separation will break the continuity of the marital union.” Id. § 319.1(b)(2)(ii)(A). “Any informal separation that suggests the possibility of marital disunity,” however, “will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union.” Id. § 319.1(b)(2)(ii)(B).

Stanley Shaffer, a DHS Immigration Adjudication Officer, conducted Allouche's naturalization interview in January 2009. At some point prior to the interview, DHS decided to evaluate Allouche's eligibility under Section 319—the marital provision—but not Section 316. Shaffer found that Allouche met the requirements for naturalization under Section 319, and Allouche obtained citizenship shortly thereafter.

According to Shaffer, Allouche testified under oath that he had been living with his wife, Jennifer Danko, for the prior three years. Allouche did not disclose that he and Danko had not lived together since 2007, that she had filed for divorce, or that they had separated. Shaffer also testified that Allouche answered “No” both orally and in writing to the question: “Have you ever been a member of or in any way associated either

directly or indirectly with a terrorist organization.” Allouche did not disclose that he had been a member of the Amal Militia. According to Shaffer, had Allouche answered these questions honestly, he would have been disqualified from obtaining U.S. citizenship.

In 2009, Allouche applied for security clearance. Dempsie Fuqua, a security clearance background investigator with the Office of Personnel Management, was assigned to investigate Allouche's application. Fuqua testified that on Allouche's SF-86 security clearance application form, Allouche answered “No” to the question whether he had “ever participated in militias, not including official state government militias, or paramilitary groups.” Allouche again did not disclose his prior membership in the Amal Militia. Fuqua also noted that Allouche did not disclose his Lebanese citizenship on the form as required.

Special Agent James Moss, an Army counterintelligence officer who served on the FBI's Joint Terrorism Task Force, testified that he was assigned to investigate Allouche in 2010. This investigation revealed Allouche's involvement with the Amal Militia. Special Agent Moss also discovered that Allouche altered a Department of Defense authorization letter while he was serving as a contract interpreter in Iraq. On the altered letter, Allouche changed his job title; changed his citizenship from German to American; falsely stated that he had Top Secret security clearance; changed his job level from GSE-12 to GSE-14; and changed his weapons authorization from no weapons to being allowed to carry a weapon.

In May 2013, Allouche was indicted by a federal grand jury. Count I charged Allouche with unlawfully procuring citizenship in violation of 18 U.S.C. § 1425(b) by failing to disclose his prior involvement in a terrorist organization. Count II charged Allouche with unlawfully procuring citizenship in violation of 18 U.S.C. § 1425(b) by making false statements regarding his marriage. Count III charged Allouche with violating 18 U.S.C. § 1001 by falsely stating on a federal security clearance form that he had never been a member of a nonstate militia.

The case went to trial in February 2015. Allouche requested a jury instruction regarding his eligibility to naturalize under Section 316, but the district court declined to include this instruction. The jury acquitted Allouche as to Count I and convicted him as to Counts II and III. Allouche moved for acquittal as to Count II, arguing that the Government had failed to prove its case beyond a reasonable doubt. The district court denied this motion. Allouche was sentenced to sixty months' imprisonment and stripped of his U.S. naturalization and citizenship pursuant to 8 U.S.C. § 1451(e). This appeal followed.

II. DISCUSSION While Allouche raises eleven issues on appeal, we address only his challenge to the sufficiency of the evidence supporting his conviction as to Count II.

A. Standard of Review Allouche preserved his challenge to the sufficiency of the evidence by moving for acquittal in the district court. Thus, we review his sufficiency challenge de novo. United States v. Danhach, 815 F.3d 228, 235 (5th Cir.), cert. denied, 137 S. Ct. 119 (2016). A sufficiency challenge requires us to “review[ ] the record to determine whether, considering the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc).

B. Analysis Section 1425 punishes unlawful procurement of naturalization in two ways. First, Section 1425(a) punishes one who “knowingly procures or attempts to procure, contrary to law, the naturalization of any person.” 18 U.S.C. § 1425(a). Second, § 1425(b) punishes one who, “whether for himself or another person not entitled thereto, knowingly issues, procures or obtains or applies for or otherwise attempts to procure or obtain naturalization.” Id. § 1425(b). While “subsection (a) covers illegal means of procurement,” i.e., “an illegality played some role in [the] acquisition” of citizenship, “subsection (b) covers simple lack of qualifications.” Maslenjak v. United States, 137 S. Ct. 1918, 1925 n.2 (2017). The penalties for violating either subsection include both imprisonment and mandatory denaturalization, see 8 U.S.C. § 1451(e).

In United States v. Moses, this Court outlined three elements the Government must prove to sustain a conviction under § 1425(b): “(1) the defendant issued, procured, obtained, applied for, or otherwise attempted to procure naturalization or citizenship; (2) the defendant is not entitled [to] naturalization or citizenship; and (3) the defendant knows that he or she is not entitled to naturalization or citizenship.” 94 F.3d 182, 184 (5th Cir. 1996). The second element is at issue in this case.

At trial, the Government introduced evidence showing that Allouche was not entitled to naturalization under Section 319 because he was separated from his wife. Allouche does not challenge this evidence on appeal. Instead, Allouche argues that he was entitled to naturalization under Section 316.

As discussed above, Section 316 permits a lawful permanent resident to naturalize after five years of continuous residence in the United States, provided that he is physically present in the United States for at least half that time and “is a person of good moral character.” 8 U.S.C. § 1427(a). Absences from the United States for more than six months during that period are presumed to destroy the continuity of residence. Id. § 1427(b). But there is an exception for translators supporting U.S. Armed Forces; these individuals maintain their continuous residence for the duration of their employment abroad. See Admission of Translators and Interpreters as Special Immigrants, Pub. L. No. 110-36, § 1(c)(2), 121 Stat. 227, 228 (2007) (adding subsection (e) to § 1059 of the

National Defense Authorization Act for Fiscal Year 2006) (codified as amended at 8 U.S.C. § 1101 note).

Allouche introduced evidence suggesting he was eligible to naturalize under Section 316. Specifically, Allouche seems to have qualified for the translator exception described above, having served as an interpreter for the U.S. Army in Iraq during his 233-day absence from the United States in 2008. Moreover, after submitting his naturalization application, Allouche filed an N-470 form in order to preserve his continuous residence upon returning to Iraq. The U.S. Government approved this form.

Based on this evidence, Stanley Shaffer—who interviewed Allouche and approved his naturalization—essentially conceded at trial that Allouche could have been eligible to naturalize under Section 316.

The district court treated this evidence as irrelevant because Allouche was naturalized under the marital provision at Section 319. But this is a distinction without a difference.

Citizenship obtained under Section 319 is the same as citizenship obtained under Section 316. Indeed, a naturalized citizen “possess[es] all the rights of a native citizen,” save the right to be eligible for the presidency. Schneider v. Rusk, 377 U.S. 163, 166 (1964) (quoting Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 827 (1824)). Thus, the fact that Allouche was ineligible for naturalization under Section 319 does not prove that he was “not entitled” to naturalization within the meaning of § 1425(b).

The district court alternatively held that Allouche lacked good moral character—and therefore was ineligible to naturalize even under Section 316—because he lied during his naturalization interview. The court based this holding on the fact that “false testimony for the purpose of obtaining [immigration] benefits” destroys a person's good moral character. 8 U.S.C. § 1101(f)(6).

But the district court's holding goes against the approach this Court has taken in previous cases.1 In Moses, the Court first found that the defendant lied about his marital status in his naturalization application. 94 F.3d at 186. But the Court did not immediately conclude that Moses was not entitled to naturalization. Instead, the Court then turned to “[t]he more difficult issue in this case[:] ․ whether the Government presented sufficient evidence that Moses was not entitled to citizenship based on the fact that he and [his wife] did not reside together.” Id. The Court examined evidence showing that “the INS would not have approved Moses's application if he had been truthful about his marital situation.” Id. at 187 (emphasis added). The Court held that there was sufficient evidence, independent of the falsified application, to support the finding that Moses was not entitled to naturalization. Specifically, the evidence indicated that although Moses was still married, his marriage had irrevocably dissolved.

Id. at 187. Thus, Moses no longer lived “in marital union” within the meaning of Section 319.2 8 U.S.C. § 1430(a); 8 C.F.R. § 319.1(b). The Court affirmed Moses's § 1425(b) conviction. Moses, 94 F.3d at 187.

This Court followed a similar approach in United States v. Sodosky, 54 F. App'x 794 (5th Cir. 2002) (per curiam). There, the Court recognized that the defendant had lied during the application process but held that this evidence was “irrelevant” in a prosecution under § 1425(b). Id. The Court explained that lying in a naturalization application violates 18 U.S.C. § 1001, but “Sodosky was not charged under” that statute; “[r]ather, Sodosky was only charged under 18 U.S.C. § 1425(b).” Id. In other words, § 1425(b) only applies when an applicant who is independently ineligible procures citizenship. Turning to whether the defendant was not entitled to naturalization independent of whether she lied during the application process, the Court concluded that the Government had not proved Sodosky was ineligible based on her lack of good moral character. Id. Thus, the Court reversed Sodosky's conviction for lack of sufficient evidence. Id. The approach we took in Moses and Sodosky accords with the Supreme Court's recent opinion in Maslenjak. In that case, the Court addressed whether an immaterial false statement made during a naturalization proceeding could support a § 1425(a) conviction. The Court held that the false statement must bear some causal connection to naturalization. Where “the facts the defendant misrepresented are themselves disqualifying, ․ [t]he Government need only expose that lie to establish that she obtained naturalization illegally—for had she told the truth instead, the official would have promptly denied her application.” 137 S. Ct. at 1928. Alternatively, where “the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials ․ to undertake further investigation, ․ the Government need only establish that the investigation ‘would predictably have disclosed’ some legal disqualification.” Id. at 1929 (quoting Kungys v. United States, 485 U.S. 759, 774 (1988)). But, the Court cautioned, “qualification for citizenship is a complete defense to a prosecution brought under § 1425(a)”—just as it is in a civil denaturalization proceeding. Id. at 1930. This is so “even though she concealed or misrepresented facts that suggested” she was not qualified. Id. “Section 1425(a),” the Court explained, “is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained.” Id. Although the Court's holding was limited to § 1425(a), its cautionary instruction seems even more relevant to § 1425(b)—which explicitly requires that the defendant not be entitled to citizenship.

Following this Court's approach in Moses and Sodosky, the key question is whether Allouche would have been entitled to naturalization had he not lied about his marital status. As discussed above, evidence in the record suggests he would have been eligible under the continuous residence provision at Section 316. The truth about Allouche's marital status would have had no bearing on his eligibility under this section.

In response, the Government points to additional facts that could have undermined Allouche's eligibility under Section 316. For example, Allouche fraudulently altered a Department of Defense authorization letter, which could serve as independent evidence of Allouche's lack of good moral character. But the indictment did not allege this conduct, nor did it allege lack of good moral character more generally. Instead, the

indictment based the § 1425(b) charges on Allouche's allegedly false statements about his marital status and membership in a terrorist organization. Admitting evidence of unrelated facts to support a § 1425(b) conviction would fundamentally alter the Government's theory, thereby constructively amending the indictment. Compare United States v. Adams, 778 F.2d 1117, 1124–25 (5th Cir. 1985) (finding constructive amendment where the government presented an uncharged factual basis for conviction at trial), with United States v. Thompson, 647 F.3d 180, 186 (5th Cir. 2011) (finding no constructive amendment where “the government presented a single, consistent theory of conviction throughout” the case). Accordingly, such facts cannot show that Allouche lacked good moral character and therefore was ineligible to naturalize under Section 316.

In light of Allouche's potential eligibility to naturalize under Section 316, no rational, properly instructed juror could find beyond a reasonable doubt that Allouche was not entitled to naturalization based on the theories presented in the Government's indictment. Thus, insufficient evidence supported Allouche's § 1425(b) conviction.

III. CONCLUSION For the foregoing reasons, we REVERSE Allouche's § 1425(b) conviction and corresponding denaturalization order, and AFFIRM his § 1001 conviction.

FOOTNOTES 1. Indeed, no court has held that a defendant who is otherwise entitled to citizenship violates § 1425(b) merely by lying in a naturalization application.

2. Moreover, it appears that Moses, unlike Allouche, could not have been eligible under any other provision of the INA. PER CURIAM:*

Texas Criminal Defense Lawyers Association

Federal Law Gumbo February 10-11, 2022

Topic: Pre-Trial Motions Speaker:

Mike Heiskell 5601 Bridge St., Ste 220 Fort Worth, TX 76112-2306 (817) 457-2999 Phone (817) 496-1102 Fax mheiskell@johnson-vaughn-heiskell.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

FEDERAL PRE-TRIAL MOTIONS

Michael P. Heiskell, Esq. JOHNSON, VAUGHN, & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 facsimile Website: www.johnson-vaughn-heiskell.com

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION FEBRUARY 2022

Michael P. Heiskell JOHNSON, VAUGHN & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 Facsimile E-mail: mheiskell@johnson-vaughn-heiskell.com Website: www.johnson-vaughn-heiskell.com Rated “AV” and recognized by Martindale-Hubbell in Bar Register of Preeminent Lawyers for 20 consecutive years (1999-2019). Named one of Texas Super Lawyers each year since 2003 Practice Area: Criminal Law (White Collar); Administrative, Government Law and Civil Rights Admitted: 1974, Texas; U.S. District Court, Northern, Southern, Eastern and Western Districts of Texas; U.S. Court of Appeals, Fifth and Federal Circuits; U.S. Supreme Court Law School: Baylor University, J.D., 1974 College: Baylor University, B.A., 1972 Member: First Vice-President of National Association of Criminal Defense Lawyers (NACDL); White Collar Crime Committee of NACDL, as well as the Audit Committee; Former Member, Board of Trustees of the Texas Bar Foundation and Executive Committee Member; Past-Chair, U.S. Court Advisory Committee, Northern District of Texas; Texas Criminal Defense Lawyers (former President); Tarrant County Criminal Defense Lawyers (“TCCDLA”) (former President); former member of the Board of Directors of the Tarrant County Bar Association; 2011Course Director of the State Bar of Texas’ Advanced Criminal Law Course; Past Course Director for three (3) TCDLA “Rusty Duncan” Advanced Criminal Law Courses.”

Biography: Former Galveston County Assistant District Attorney; Former Assistant U.S. Attorney, Northern District of Texas; Recipient, “Lawyer of the Year Award,” Tarrant County Black Bar Association, 1995 and 2000. Frequent author and lecturer on all aspects of State and Federal Court practice, e.g., Attorney Client Privilege Issues, Grand Jury Litigation, Pre-Trial Motions, Plea Negotiations, Opening Statements, Privileges, Confessions, Jury Selection, Handling High Profile Cases, Direct Examination, Cross-Examination and Ethics. 2015 Inductee into Texas Criminal Defense Lawyer’s Association Hall of Fame. 2020 recipient of the Blackstone Award by the Tarrant County Bar Association—its highest honor bestowed upon a member of the Bar. Has spoken frequently before the Advanced Criminal Law Course sponsored by the State Bar of Texas and to numerous seminars sponsored by the Texas Criminal Defense Lawyer’s Association, Texas Center for the Judiciary, and the Federal Public Defender’s Annual Federal Practice Seminar. Has also presented to the NACDL, Louisiana Association of Criminal Defense Lawyers, Dallas County Criminal Defense Lawyers, San Antonio Criminal Defense Lawyers, Mexican-American Bar Association and the Tarrant County Bar Association. He has also been recognized in “Texas Lawyer” as one of the “Extraordinary Minorities in Texas Law.”

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FEDERAL PRETRIAL MOTIONS BY MICHAEL P. HEISKELL I.

INTRODUCTION Thoughtful and aggressive pretrial motions can potentially shift the odds that favor the government in its prosecution.

However, successful motions rarely field any immediate victories. They can play an important role yielding strategic dividends such as obtaining discovery, educating and sensitizing the Court to your defensive positions, or controlling the timing and content of the trial. So, even when the defense loses a motion there are often benefits to litigating it.

Every pretrial motion is, in essence, a discovery motion and it must be treated as such as you seek to gain all the information possible that lies behind the prosecution of your client. In addition it provides the court by virtue of its rulings on how she views your cases. With adequate thought and planning pretrial motions, combined with an overall defensive strategy, can improve trial logistics and procedures in your favor.

II.

III.

PURPOSE OF DEFENSE PRETRIAL MOTIONS A.

To challenge and contest indictments;

B.

To seek discovery of relevant materials; and

C.

To seek suppression of said material when warranted.

D.

To “win” the case.

E.

To make appellate record.

TIME TO FILE PRETRIAL MOTIONS A.

B.

Rule 12(c), Fed. R. Crim. P. 1.

Deadline normally set by court at arraignment or shortly thereafter in its Pretrial Order. If not set at this point then deadline is start of trial.

2.

Court has discretion to extend or reset deadlines for filings.

3.

Rule 12(b)(4)(B) allows a defendant at the arraignment to request notice of government’s intent to use any evidence in its case in chief that the defendant may be entitled to discover under Rule 16.

Rule 47, Fed.R. Crim. P.

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Party must serve a written motion and any hearing notice at least seven (7) days before the hearing unless a rule or the Court sets a different period.

C.

Check Local Rules, (e.g. Western District Local Rule CR-12 (14 days after arraignment)).

D.

Failure to Timely File; Rule 12 (b)(3), Fed.R.Crim.P. Can result in adverse ruling unless good cause is shown for the untimeliness of the filing.

IV.

MOTIONS THAT MUST BE MADE PRIOR TO TRIAL A.

Defect in instituting proceedings, including: 1.

2.

3.

4.

5.

B.

Improper Venue; Pre-Indictment Delay; Speedy Trial Violation; Selective or Vindictive Prosecution; and Grand Jury or Preliminary Hearing Error

Defect in Indictment, including: 1.

2.

3.

4.

5.

Duplicitous indictment (2 or more offenses in same count); Multiplicitous indictment (same offense in more than one count); Lack of specificity; Improper joinder; and Failure to state offense.

C.

Suppression of Evidence

D.

Severance of Charges or Defendants

E.

Discovery (Rule 16) 1.

Reciprocal Allowed under Rule 16(b) 2.

Rule 16.1: Pretrial Discovery Conference (14 days after arraignment the government and defense must confer on a timetable and procedures for Rule 16 disclosures).

V.

SPECIFIC RULES REGARDING ALIBI, INSANITY, PUBLIC AUTHORITY DEFENSES A.

(1) Rule 12.1(a), Fed.R.Crim.P. allows the government to request in writing that the defendant notify it of any intended Alibi Defense. Such request must state the time, place and date of the offense within 14 days of such a request or some other time in the court’s discretion, the defendant must serve written notice of the alibi defense by stating: (1) each specific place where the defendant claims to have been at the time of the alleged offense and (2) the names, addresses and phone numbers of each alibi witness on whom the defendant intends to rely.

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(2) Rule 12.1(b), Fed.R.Crim.P. allows a defendant to serve a 12.1 (a) notice on the government in order to obtain the names, addresses, and phone numbers of each witness—other than the alleged victim unless a need is shown the government intends to rely on to establish the defendant’s presence.

(3) B.

Failure to comply can result in the exclusion of the witness from testifying.

(1) Rule 12.2(a), Fed.R.Crim.P. requires a Notice of Insanity Defense be served on the government in writing within the time for filing pre-trial motions or any later time the court sets. Any failure to do will result in a denial of this defense to be asserted at trial.

(2) Rule 12.2(b), Fed.R.Crim.P. also requires a Notice of Expert Evidence of a Mental Condition be served on the government in writing within the time for filing pretrial motions or any later time the court sets. Failure to do so may result in exclusion of this evidence.

C.

Rule 12.3, Fed.R.Crim.P. requires a Notice of Public Authority Defense be served on the government within the time for filing pre-trial motions or at any later time the court sets.

Such a notice must contain: (1) (2) (3)

the law enforcement agency or federal intelligence agency involved; the agency member on whose behalf the defendant claims to have acted; and the time during which it is claimed the defendant acted with public authority.

The same rules regarding the government’s request and the defendant’s response found in Rule 12.1, Fed.R.Crim.P.(Alibi Defense) applies here as well.

VI.

GOVERNING RULES A.

Substantive Federal Rules (All under Fed. R.Crim. P., except as otherwise noted) 1. Rule 12, (Primary Rule); 2. Rule 16, (Discovery and Inspection); Also see: Rule 16.1 (Pretrial Discovery Conference; Request for Court Action).

3. Rule 5.1(a) (Preliminary Hearing); 4. Rule 7(f) (Bill of Particulars) (must move for same within 14 days after arraignment or at a later time if the court permits); 5. Rule 12(b)(4)(B) (Notice Request of Government’s Intent to Use Evidence); 6. Rule 12(h) (Suppression Hearing Witness Statements); 7. Rule 12.1 (Reciprocal Discovery of Alibi Defense Witnesses); 8. Rule 12.3 (Reciprocal Discovery of Public Authority Defense Witnesses); 4

9. Rule 17 (Subpoena to Third Party); 10. Rule 26.2 (Production of Witness’ statement during trial) 11. Rule 32 (Probation Revocation or Supervised Release Revocation); 12. Rule 46(j) (Detention Hearing Witness Statements); 13. Rule 404(b), Fed. R. Evid. (Notice of other Crimes, Wrongs or Acts); 14. Rules 413 and 414, Fed.R.Evid.; (Notice of Similar Acts Witness Statements or summaries); 15. Rule 807, Fed. R. Evid. (Hearing Statement under Residual Exception); 16. 18 U.S.C.§ 3500 (Jencks Act) 17. Brady & Gigilo B.

Federal Rules (Form and Content) 1. Rule 47, Fed. R. Crim. P.

C. VII

Local Rules (see excerpts, infra.).

POST TRIAL MOTIONS A.

Rule 29 Motion for Judgment of Acquittal (a)

Before submission to Jury: After government closes its evidence or after the close of all the evidence the Court on defendant’s motion must enter a judgment of acquittal for why offense for which the evidence is insufficient. The court may on its own do the same and may reserve the decision. See Rule 29(b)

(b)

After Jury Verdict or Discharge

Defendant may move for same within 14 days. See Rule 29(c) (c)

Conditional Ruling on a Motion for New Trial If the Court enters judgment of acquittal after a guilty verdict the court must conditionally determine whether a new trial should be granted if the judgment is later vacated or reversed. See Rule 29(d)

B.

Rule 33 Motion for New Trial

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Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if required by the interest of justice.

It must be filed within 14 days after the verdict. If newly discovered evidence is the basis then 3 years after the verdict VIII.

PRACTICE TIPS A.

Formulate a trial plan or strategy and use motions to advance same.

B.

Organize legal memo files, checklist and loose leaf notebook so that necessary legal authorities can be readily found.

C.

Avoid Boilerplate Motions—be creative, unique and use affidavits whenever possible

D.

Review Fifth Circuit Pattern Jury Instructions.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA v.

ROGER LYNN RABBIT (1)

§ § § § §

NO: 3:20-MJ-00241-BH-1

MOTION FOR DISCOVERY IN AID OF DEFENDANT’S DETENTION HEARING COMES NOW the accused, ROGER RABBIT, by and through his counsel, and moves this Honorable Court to direct the attorney for the Government to provide him with the following information that is relevant and material to his detention hearing: 1.

Jencks material for any witness that the government intends to call at Mr. Rabbit’s bond hearing;

2.

Jencks material for any witness whose statements have been proffered to the court in the government’s Position on Pretrial Release;

3.

Jencks material for any indicted coconspirators, as well as unindicted coconspirators, whom the government quotes or to whom the government attributes statements;

4.

Documentation of any and all communication, written or unwritten, between law enforcement agents of the U.S. government, plus cooperating individuals, and Mr. Rabbit regarding the allegations in the indictment.;

5.

The basis for the allegation that Mr. Rabbit may a pose serious risk of flight;

6.

The basis for the allegation that Mr. Rabbit would pose a safety risk for any other person or the community.

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Such information is relevant pursuant to 18 U.S.C § 3142(g) to be considered by the Court in determining whether there are conditions of release to be imposed to reasonably assure the defendant’s appearance, as well as requiring the safety of others and the community.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 telephone (817) 496-1102 facsimile E-mail: mheiskell@johnson-vaughn-heiskell.com

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA § § v. § CASE NUMBER § JOHN DOE MOTION FOR EXPEDITED REVIEW OF DETENTION ORDER AND MEMORANDUM COMES NOW the defendant, JOHN DOE, by and through his attorney, MICHAEL P. HEISKELL, who respectfully requests the District Court to review the order of detention entered December 16, 2016. The Defendant files this request pursuant to 18 U.S.C. § 3145(b). Review of the order of detention by the District Court is de novo. United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985) (“. . . the court acts de novo and makes an independent determination . . . . “). The District Court can make the de novo determination based on its independent consideration of the record before the magistrate and the additional record adduced before it ‘as unfettered as it would be if the district court were considering whether to amend its own action.’” Id., at 50 (citation omitted). See also United States.

V. Koenig, 912 F.2d 1190 (9th Cir. 1990).

The two considerations in determining the appropriateness of releasing a presumptively innocent individual without conditions, releasing under certain conditions, and incarceration, are: 1) is the person a flight risk, and 2) is the person a danger to the safety of the community. Indeed, conditions of release may not be set “unless the judicial officer determines that [release without conditions] will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” 18 U.S.C. § 3142(b). Thus, the purpose of setting conditions of release is to achieve the goals of assuring the defendant’s appearance at trial, and to protect the safety of the community.

At the hearing that resulted in the defendant’s incarceration the Magistrate-Judge found, and the record clearly indicated, JOHN DOE was not a flight risk. There was no indication whatsoever that he is a danger to the community. Mr. JOHN DOE’s parents reside in and own a business in Arlington, Texas.

Since JOHN DOE presents no risk of flight, and no danger to society, it is not appropriate to even set conditions on his release. 18 U.S.C. § 3142(b). See United States v. Byrd, 969 F2d 106 (5th Cir. 1992) If conditions are set, they must be “the least restrictive” to “reasonably assure the appearance . . . and the safety of . . . the community.” 18 U.S.C. § 3142. Incarceration is an option only if “no conditions or combination of conditions will reasonably assure the appearance of the person . . . and the safety of . . . the community.” 18 U.S.C. § 3142(e). See also United States v. Minns, 863 F. Supp 360, 363 (N.D. Tex. 1994).

JOHN DOE, through counsel, has requested a copy of the tape recording of the detention hearing, and plans to transcribe that hearing, and provide the transcription, and the tape recording to the Court as soon as possible.

Wherefore, JOHN DOE requests this Court to review the hearing de novo, reverse the decision ordering JOHN DOE detained, and either delete the conditions of release, or amend them to include either daily reporting, and/or electronic monitoring, with home confinement, with the exception of time to go to work and back. JOHN DOE also requests a hearing date be set so that he can present witnesses on the 9

issue of his ability to abide by conditions. One such witness would be Constance Langston, his present employer, who can explain that JOHN DOE’s ability to abide by conditions, but that JOHN DOE is also greatly needed by her to complete his work on her behalf. JOHN DOE would also like other witnesses on his behalf. Witnesses were not presented in the hearing because that hearing was held the same day as JOHN DOE’s arrest.

JOHN DOE asks that this request be expedited because he is in custody. Furthermore, expedition is requested because JOHN DOE would like to be release during the holiday season. JOHN DOE’s trial is scheduled for January 25, 2017, and he would very much like to remain released pending the trial, to be able to assist counsel in preparing for that event.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA } Plaintiff, } } } } -vs} CASE NO: 4: 1000 } (Judge Means) JOHN DOE, } Defendant. } JOHN DOE’S OMNIBUS MOTION FOR DISCOVERY AND INSPECTION The United States has provided the defense thousands of pages of discovery, including the defendant’s post arrest statement. Nevertheless, certain evidence has not been provided as of this date such as Giglio material or any notice of the government’s intent to offer 404(b) evidence. Therefore, in an abundance of caution, John Doe respectfully requests this Honorable Court, pursuant to Rule 16 and16.1(b) of the Federal Rules of Criminal Procedure and the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, order the Government to produce for inspection and copying the following, which are known to, or are in the possession of, the Government or any of its agents, or which through due diligence would become known from the investigating officers or witnesses or persons having knowledge of this case.

A. OTHER STATEMENTS OF THE DEFENDANT 1. Discovery of statements or confessions of John Doe under Rule 16(a)(1), Federal Rules of Criminal Procedure, should include not only written or recorded statements made by John Doe to Government agents, but to other individuals as well. Davis v. United States, 413 F.2d 1226, 1230-1231 (5th Cir. 1969); United States v. Viserto, 596 F.2d 531, 538, 4 Fed. R. Evid. Serv. 32 (2d Cir. 1979).

2. Discovery of John Doe's statements under Rule 16(a)(1) should include not only verbatim statements made by John Doe, but also any summaries or Government reports, notes, or interviews setting out the substance of John Doe's statements or statements attributable to him. United States v. Fioravanti, 412 F.2d 407, 411-412 n.12 (3d Cir. 1969); United States v. Jefferson, 445 F.2d 247, 250 (D.C. Cir. 1971).

3. Even if the oral statement is made to a third party who then makes a statement to the Government, the substance of the John Doe's statement should be discoverable. United States v. Thevis, 84 F.R.D. 47, 55-56 (N.D. Ga. 1979). Although the Jencks Act requires that statements by third parties to the Government be produced prior to cross-examination by the Defendant's attorney, there is authority to allow the Court to order such production earlier, even prior to trial. Id. Davis v. United States, 413 F.2d at 1230-1231 (recordings of conversation between a defendant and a government informant held to be statement of defendant and discoverable).

B. STATEMENTS ALLEGED TO BE ADMISSIBLE UNDER THE COCONSPIRATOR'S EXCEPTION TO THE HEARSAY RULE 1. As a Defendant's agent, statements made by co-conspirators within the scope of that agency and in furtherance of same are said to be impliedly authorized by John Doe as a principal and are, therefore, admissions by John Doe. Given that such co-conspirator's statements are admissible because 11

they are treated as statements of or adopted by John Doe, then such statements should be discoverable as John Doe's own, pursuant to Rule 16(a)(1)(A), on the same theory. United States v. Mays, 460 F. Supp.

573, 575 (E.D. Tex. 1978).

C. CRIMINAL RECORD OF JOHN DOE 1. Rule 16(a)(1)(B), Fed. R. Crim. P., requires in mandatory terms the production by the Government of John Doe's prior criminal record, if any.

D. TANGIBLE OBJECTS 1. Rule 16(a)(1)(C), Federal Rules of Criminal Procedure, authorizes the discovery of all books, papers, documents and tangible objects in the possession or control of the Government. The tangible objects requested, including but not limited to the papers, instruments, writings, and documents herein, are all tangible objects obtained from John Doe and others by seizure.

2. These objects are discoverable since the Government relied upon them in obtaining an indictment against John Doe, and, they are, of necessity, "material" to the cause and the preparation of an adequate defense. United States v. Pascual, 606 F.2d 561, 565-566 (5th Cir. 1979); United States v.

Lambert, 580 F.2d 740, 744 n.4 (5th Cir. 1978).

E. STATEMENTS OF CO-DEFENDANTS 1. The statements of co-defendants are discoverable pursuant to Rule 16(a)(1)(C), Fed. R. Crim.

P.; Wright, Federal Practice and Procedure, Criminal Section 254; United States v. Percevault, 490 F.2d 126, 130-132 (2d Cir. 1974); United States v. McMillen, 489 F.2d 229, 230-232 (7th Cir. 1972).

2. Production of a co-defendant's statement is important not only to adequately prepare a defense and to determine whether or not to advise John Doe to take the stand, but also is critical to the determination of whether or not to seek a severance from any co-defendants under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968).

F. PERSONS HAVING KNOWLEDGE OF CASE 1. The names and addresses of persons known to and interviewed by the Government who have knowledge of facts pertaining to this case are discoverable pursuant to Rule 16(a)(1)(C), Fed. R. Crim. P. 2. The names of persons with knowledge of the facts relevant to the case is the most critical information obtainable for preparation of an adequate defense and to insure a fair trial. United States v.

Cadet, 727 F.2d 1453 (9th Cir. 1984). Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966); United States v. Baum, 482 F.2d 1325, 1331 (2d Cir. 1973): Witnesses, particularly eyewitnesses to a crime, are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them.

Gregory v. United States, 369 F.2d at 188.

3. Upon request, the Government must ordinarily disclose the whereabouts of each government witness unless the Government can show why such disclosure should not be made. The witness' desire not to be interviewed is an insufficient showing of why disclosure should not be made. United States v.

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Opager, 589 F.2d 799, 805, 3 Fed. R. Evid. Serv. 1013 (5th Cir. 1979); United States v. Chaplinski, 579 F.2d 373 (5th Cir. 1978).

G. CRIMINAL RECORDS OF GOVERNMENT WITNESSES 1. The arrest and conviction records, or "rap sheets," of individuals the Government plans to call as witnesses should be discoverable pursuant to Rule 16(a)(1)(B),(C), Fed. R. Crim. P. 2. This information is critically important information for meaningful cross-examination by John Doe's counsel. And John Doe, unlike the Federal Government with its vast data storage and investigative facilities, is at a substantial disadvantage without such information. Wright, Federal Practice and Procedure, Criminal, § 254 at 91-92, (noting that defense counsel is at a "substantial disadvantage" without the criminal records of Government witnesses in advance of trial).

3. In United States v. Auten, 632 F.2d 478 (5th Cir. 1980) the criminal record of a key Government witness was ordered disclosed by the Fifth Circuit Court of Appeals because it was determined to be of value in impeaching that witness' credibility, and favorable to defendant.

H. STATEMENT OF INDIVIDUALS WHO WILL NOT BE GOVERNMENT WITNESSES 1. The written statements in the possession of the Government of individuals who the Government does not plan to call as witnesses are discoverable under the provisions of Rule 16(a)(1)(C), Fed. R. Crim. P., as such statements would not be obtainable at any time under the Jencks Act, since that statute provides for discovery only of statements of witnesses who actually testified at trial. Accordingly, pursuant to Rule 16(a)(1)(C), Fed. R. Crim. P., John Doe should be granted discovery of the statements of any individuals who will not be witnesses at trial. Moore's Federal Practice, Section 16.05 (4). Davis v.

United States, 413 F.2d 1226 (5th Cir. 1969).

I. IDENTITY OF INFORMER 1. The name, identity and whereabouts of an informer who gave information leading to the arrest of John Doe, as well as information as to whether said informer was paid by the Government for such information, is discoverable pursuant to Rule 16(a)(1)(C), Fed. R. Crim. P., where said informant is a witness to or has knowledge of facts relevant to the case. United States v. Barnes, 486 F.2d 776 (8th Cir. 1973); Roviaro v. United States, 353 U.S. 53, 64, 77 S. Ct. 623, 629 (1957); United States v. Nixon, 777 F.2d 958, 19 Fed. R. Evid. Serv. 932 (5th Cir. 1985); United States v. Fischel, 686 F.2d 1082 (5th Cir. 1982).

J. EXAMINATIONS, TESTS AND EXPERIMENTS 1. Discovery of the examinations, tests and experiments requested herein is authorized by Rule 16(a)(1)(D), Fed. R. Crim. P. No specific showing of materiality or reasonableness is required under the mandatory provisions of Rule 16(a), United States v. Hughes, 413 F.2d 1244, 1250 (5th Cir. 1969), cert. granted, 396 U.S. 984, 90 S. Ct. 479 (1969) and judgment vacated as moot, 397 U.S. 93, 90 S. Ct. 817 (1970).

K. TRANSCRIPTS OF GRAND JURY TESTIMONY

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1. The transcript(s) of the testimony of individuals who testified before the Grand Jury in this case, which are requested herein are discoverable pursuant to Rule 16(a)(1)(C), Fed. R. Crim. P., since such transcripts are "documents" under the rule. United States v. Hughes, 413 F.2d at 1255-57.

2. Discovery of recorded testimony of witnesses other than John Doe may be discoverable pursuant to Rule 6(e), Fed. R. Crim. P., which provides for pre-trial discovery of such Grand Jury testimony. Dennis v. United States., 384 U.S. 855, 86 S. Ct. 1840 (1966).

3. Grand Jury testimony should be disclosed any time the Government demonstrates no need for secrecy, Nolan v. United States, 395 F.2d 283, 286 (5th Cir. 1968), and the defense shows a semblance of need (e.g. where said Grand Jury witnesses are individuals the Government intends to call at trial). Allen v. United States, 390 F.2d 476 (D.C. Cir. 1968), opinion supplemented, 404 F.2d 1335 (D.C. Cir. 1968); United States v. Bright, 630 F.2d 804, 6 Fed. R. Evid. Serv. 550 (5th Cir. 1980).

4. Where, as here, the Government's case may depend upon oral, unrecorded statements of John Doe or alleged co-conspirators, any of the Grand Jury testimony regarding the substance of those statements is necessary to adequately prepare a defense and disclosure should be required prior to trial.

Where the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is reasonably available to ascertain the precise substance of the statements. Dennis v. United States, 384 U.S. at 872-873, 86 S.Ct. at 1850-51.

L. EXCULPATORY EVIDENCE 1. The exculpatory or favorable evidence requested herein is discoverable pursuant to the Due Process clause of the Fifth and Fourteenth Amendments to the Constitution. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

2. This right of John Doe to disclosure of "favorable" evidence exists whether such evidence is material to the John Doe's guilt or to mitigation of his punishment, Brady at 1196-97, and regardless of whether such exculpatory evidence would be admissible in John Doe's behalf at trial or in obtaining further evidence.

3. Evidence which may serve to impeach the testimony or credibility of a Government witness is discoverable under Brady since the duty upon the Government to disclose evidence favorable to a defendant under Brady applies to any information favorable to the accused either as direct or impeaching evidence.

4. The Supreme Court has placed upon prosecutor’s the affirmative duty to determine whether exculpatory evidence is in the possession of any agent or agency involved in the investigation of the Defendant. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555 (1995). The United States Attorney or other agents of the United States Government involved in the investigation and preparation of this case have in their possession, custody or control of each of the above requested items and information, or through the exercise of reasonable diligence would be able to obtain such possession or locate the whereabouts of such items or information. Each of these items is material to the preparation of an adequate defense and is reasonable in light of the facts set out herein.

M. PROMISES TO CO-DEFENDANTS OR UNINDICTED COCONSPIRATORS OR OTHER WITNESSES 1. The evidence of any representations which have been made by the Government or which the Government will make at any future time is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution, and the withholding of any such evidence constitutes a denial of due process and fundamental fairness. Giglio v. United States., 405 U.S. 150, 92 S. Ct. 763 (1972). Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the Government may call to testify against the Defendants, Williams v. Dutton, 400 F.2d 14

at 800 (impeachment evidence is exculpatory evidence discoverable under Brady), but also is discoverable by Defendant in order to show such witnesses' bias or prejudice in testifying at such trial.

Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105 (1974).

N. EVIDENCE OF OTHER ACTS 1. Federal Rule of Evidence 404(b) permits the government to introduce: Evidence of other crimes, wrongs, or acts… [other than to prove character] …for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or accident…

However, the government is required to provide notice of its intent to introduce such evidence: [U]pon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

2. Defendant John Doe so requests.

WHEREFORE, John Doe respectfully moves this Honorable Court to Order the production of the above described papers, documents, and information now in the possession of the Government or which through reasonable diligence could be obtained or located, and for such other and further relief as this Honorable Court should deem just and proper.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE ORDER

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA

§ § § § §

v.

JOHN DOE

CASE NUMBER

MOTION TO CONTINUE TRIAL DUE TO COMPLEXITY The defendant, John Doe, by undersigned counsel, hereby moves this Honorable Court, pursuant to 18 U.S.C. § 3161(h)(8)(A) and (B), to continue the trial of this case due to its complexity. As grounds for this motion, defendant states as follows: 1. The defendant, John Doe, along with four others, is charged in a one count indictment (plus a forfeiture count) with conspiracy to export cocaine from the United States to Canada.

2. Of the five defendants, only John Doe is currently before the Court set for trial. Two of the codefendants, Paul Roe and Ashley Boe, have previously pled guilty to the indictment. The other two codefendants, Salvatore Smith and Nelson Jones, have not yet appeared before the Court.

3. This case is set for trial during the trial term set to commence on September 6, 2014.

4. This case is involved and complex. It involves allegations of international negotiations between members of the conspiracy and undercover operatives to bring cocaine from the United States to Canada.

5. In order to provide the defendant with effective representation, more time is needed to prepare for trial.

Witnesses in the United States and Canada need to be located and interviewed. Further, there is a good deal of material that must be reviewed and digested in order to prepare the defense.

6. The stakes in this case for John Doe, who is 51 years old, are extremely high. If he is convicted he will, in all likelihood, spend most if not all of the rest of his life in prison.

7. By this motion, it is the defendant's request that the Court, in the interests of justice, continue this case to the December, 2014 trial term.

8. John Doe understands his constitutional and statutory rights to a speedy trial. For the reasons stated above, he deems it in his best interest to waive those rights. A Waiver of Speedy Trial form, executed by John Doe and undersigned counsel, is attached to this motion.

9. Assistant U.S. Attorney Goode Deal does not oppose this motion.

MEMORANDUM OF LAW Normally, the trial of an individual charged with a criminal offense must commence within 70 days from the filing of the indictment or the defendant's first appearance before a judicial officer of the court, whichever date last occurs. 18 U.S.C. § 3161(c)(1). However, in promulgating the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, the drafters recognized that unusual and complex cases would come before the court requiring more than the ordinary amount of time to prepare. A continuance beyond the 70- day limit is permissible if the court determines that "the ends of justice served by [granting a continuance] outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A).

For the reasons outlined above, this is such a case.

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18 U.S.C. § 3161(h)(8)(B) sets out some of the factors to be considered in determining whether to grant a continuance. These factors, in pertinent part, are as follows: (i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice. (ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section. (iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.

Here, a miscarriage of justice would result if a continuance is not granted because of the lack of available preparation time. This is an unusual and complex case within the meaning of 18 U.S.C. § 3161 (h)(8)(B)(ii). It alleges an international conspiracy involving witnesses in the United States and Canada.

Additionally, a good deal of material must be reviewed and digested in order to effectively prepare for trial. Also, an issue exists regarding whether the defendant was brought to the United States before he had exhausted his Canadian appellate remedies regarding his extradition.

Finally, even if the Court determines that 18 U.S.C. § 3161(h)(8)(B)(ii) does not apply, failure to grant a continuance "would deny counsel for the defendant...the reasonable time necessary for effective preparation, taking into account the exercise of due diligence." 18 U.S.C. § 3161(h)(8)(B)(iv).

For the foregoing reasons, this Court should grant the requested continuance.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 /CERTIFICATE OF CONFERENCE/ /CERTIFICATE OF SERVICE/

17

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA, Plaintiff

§ § § § § § §

vs.

JANE DOE (3) Defendant.

CASE NO. 3:15-CR-XXXX-(3)

MOTION TO DISQUALIFY ASSISTANT UNITED STATES ATTORNEY RICHARD ROE TO THE HONORABLE UNITED STATES DISTRICT JUDGE: COMES NOW, JANE DOE, Defendant in this cause, by and through his counsel of record and moves this Honorable Court to Disqualify Assistant United States Attorney Richard Roe to participate in the prosecution in this cause and would show as follows: I. BACKGROUND On May 1, 2013, a federal search warrant was executed at 305 Lancaster, Dallas, Texas at the home of the defendant’s mother.

The execution of said warrant resulted in the seizure of certain weapons that resulted in the accusation contained in Count One of the indictment. The seizure of certain financial documents, as well as other items, form part of the allegations contained in the remaining counts of said indictment (Money Laundering). While the search was being executed, the defendant, who was present at the scene, was taken by the Agents to the local FBI office. While at the office, the agents conducted an interview of her regarding the allegations involving a drug conspiracy/money laundering case. During the course of the interview, AUSA Ryan Roe arrived and participated in the interview. Mr. Roe is currently lead counsel for the government in this case. The FBI 302 report confirm AUSA Roe’s presence and active participation. See Exhibit “A” the redacted report attached hereto and incorporated herein for all purposes.. Incriminating questions of Ms. Doe were asked during this interview including when the defendant’s alleged dealing in marijuana had ceased. Ms. Doe answered these and other questions before she invoked her right to counsel. These relevant questions go to the heart of Counts 2, 3 and 4 of the indictment alleging the conspiracy to launder financial instruments and the substantive money laundering counts.

This contested issue regarding Ms. Doe’s interview was subsequently explored during Ms. Doe’s deposition held over a year later (2014) in connection with a separate civil forfeiture action by the government against certain real property owned by Ms. Doe. During said deposition, government counsel, AUSA Slick Willie, also of the Eastern District of Texas, questioned Ms. Doe regarding what he allegedly told AUSA Roe and the FBI regarding her alleged cessation of marijuana dealing. Ms. Doe disputed the leading question as follows: 18

“Q(by Mr. Willie): Okay. Do you recall telling Mr. Roe and the FBI shortly after the seizure warrant was executed last spring that your marijuana dealings had only ended one or two years prior to the warrant run last year?

A: No sir. I didn’t recall that. If I did I might have told Michael Jackson that maybe, sir.

Q: But you don’t recall telling Mr. Roe or the FBI agents that were in the meeting then?

A: No sir. I have maybe have said years ago. Maybe I said years ago. I can’t recall that at all, but I know I may have told Jackson, but…”

Deposition of Doe dated July 29, 2014, pages 73 and 74. See Exhibit “B” attached hereto and incorporated herein for all purposes.

II. ADVOCATE-WITNESS RULE SHOULD RESULT IN DISQUALIFICATION The advocate-witness rule, with limited exceptions, bars a lawyer from acting as both an advocate and a witness in the same proceeding. See ABA Model Rules of Professional Conduct Rule 3. 7(a). In the instant case, AUSA Ryan Roe is a witness to the material and relevant answers elicited from Ms. Doe in this non-custodial setting at the FBI office. Ms. Doe has disputed, and continues to dispute, the government’s understanding of his answers to these questions material to the accusations contained in Counts 2, 3 and 4 of the indictment. Indeed, she waived her Fifth Amendment privilege in order to do so. This key contested issue as to when she last engaged in the marijuana trade is inextricably intertwined with the government’s theory that she engaged in said activities only a year or two prior to May 1, 2013. By attempting to establish such, it would bolster the government’s theory that monies received from his alleged marijuana dealings were the funds allegedly laundered during 2012 and 2013—the dates referenced in the indictment.

It “is an almost universally frowned upon practice for a prosecutor to testify at the trial of the case he is prosecuting…” Riddle v. Cockrell, 288 F. 3d 713, 721 (5th Cir. 2002). Even a prosecutor/witness’s presence at counsel table at trial, without participating in questioning, “constitutes an impermissible dual role as both an advocate and witness. United States v. Torres, 503 F.2d 1120 (2nd Cir. 1974). It is evident that a trial involving the oral statements taken by the agents from Mr. Doe on May 1, 2013, would almost certainly involve AUSA Roe as a witness.

Even a hint that he would be a possible witness is sufficient to uphold the disqualification of the lawyer. In a similar case in United States v. Jones, 381 F.3d 114 (2nd Cir. 2004), where defense counsel was deemed a possible witness, the court stated, “[t]he risk that [a lawyer will]become

19

a witness at trial [is] enough alone to….reach this determination [to disqualify] under an abuse of discretion standard.” Jones at 121.

The professional impropriety of assuming a dual role as advocate and witness has long been acknowledged by both the English and the American Bars. 1 The ABA Code of Professional Responsibility states as an “ethical consideration:” “The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” 2 The ABA has also codified disciplinary rules designed to prevent this conflict of roles and to minimize its prejudicial potential when prevention is impossible. The ABA Standards Relating to the Prosecution Function, make clear that these rules of professional propriety are no less applicable to an attorney for the Government. 3 “The code of Professional Responsibility take a firm position that a lawyer should avoid testifying in court, when he is the advocate.

ABA Code DR 5-102.” 4 The courts have shared the legal profession’s disapproval of the double role of advocatewitness. 5 In particular, the federal courts have almost universally frowned upon the practice of a Government prosecutor testifying at the trial of the case he is prosecuting, whether for 6 or against 7 the defendant, and have stated that the practice should be permitted only in extraordinary circumstances or for compelling reasons. 8 Where the prosecutor’s appearance as witness is unavoidable, the courts have stated that, in general, the prosecutor should withdraw from participation in the trial. 9 The reasons that have been cited for this judicial and professional reprehension of the testifying prosecutor include the following. First, there is the risk that the prosecutor will not be a fully objective witness: “It is obvious that the opportunity for tailoring a witness’ testimony to the needs of the Government’s case is maximized if recourse is permitted to the testimony of an experienced trial attorney who is Professor Wigmore finds the first expression of this principle in Anglo-American jurisprudence in Rex v. Milne, 2 B. & Ald. 606, note (ca. 1810), and Rex v. Brice, 2 B. & Ald. 606 (1819). 6. J. Wigmore, Evidence § 1911 n. 4. In this country, he cites (Id. at 787-88 n. 10) Reid v. Colcock, 1 N. & McC. 592, 597 (N.C. 1819), as stating that an attorney is not incompetent to testify, “but it is a matter of much delicacy,” and should be avoided unless indispensable. In Potter v. Inhabitants of Ware, 55 Mass. (1 Cush.) 519, 520 (1848), the principle that an attorney should not testify on behalf of his client was traced to Roman law.

2 American Bar Association, Code of Professional Responsibility EC 5-9 (1978) (hereinafter “ABA Code”). See also id.

EC 5-10.

3 American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function (Approved Draft, 1971)(hereinafter ABA Standards).

4 Id. at 80. Accord. United States v. Alu, 246 F.2d 29, 34 (2d Cir. 1957).

1

5

E.g., United States v. Nobles, 422 U.S. 225, 253, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975) (White, J., concurring); Hickman v.

Taylor, 329 U.S. 495, 517, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (Jackson, J., concurring) 6 Gajewski v. United States, 321 F.2d 261, 268 (8th Cir. 1963), Cert. denied, 375 U.S. 968, 84 S. Ct. 486, 11 L. Ed. 2d 416 (1964).

7 United States v. Alu, supra, 246 F.2d at 33-34.

8 United States v. Torres, supra, 503 F.2d at 1126; United States v. Clancey, supra, 247 F.2d at 636 9 Newman v. Sigler, 421 F.2d 1377, 1379 (8th Cir.), Cert. denied, 399 U.S. 935, 90 S. Ct. 2267, 26 L. Ed. 2d 808 (1970)

20

interested in the successful presentation of that case. Especially in criminal litigation, where so much is at stake for the defendant, must the Bench and Bar demand adherence to a principle that is designed to ensure objectivity in the presentation of evidence” 10 Second, it is feared that the prestige of a Government attorney’s office will artificially enhance his credibility. Although jurors of varying degrees of sophistication will, of course, have different conceptions of the awe due to a public officer, it is widely hypothesized that “(a) jury naturally gives to the evidence of the prosecuting attorney far greater weight than to that of an ordinary witness. 11” A third consideration is that the prosecutor’s testifying might “create…confusion on the part of the jury as to whether he (is) speaking in his capacity of prosecutor or witness.” 12 Such confusion, besides disrupting the normal workings of the judicial mechanism, may result in the fact-finder according testimonial credit to the prosecutor’s closing arguments.” 13 While the above-cited reasons for the advocate-witness rule all reflect a policy of avoiding the slightest risk of prejudice to defendants, the most frequently cited justification for the rule reflects a broader concern for public confidence in the process of justice. The chief fear which underlies the ethical rule, it is commonly acknowledged, is not that the testifying prosecutor actually will overreach a hapless defendant, but that he will appear to a skeptical public to have done do. The legal profession’s disapprobation of the advocate-witness is thus closely to the injunction in Canon 9 of the ABA Code of Professional Responsibility that “(a) lawyer should avoid even the appearance of professional impropriety.” Particularly where the lawyer in question represents the prosecuting arm of the Government, the ethical rule serves to implement the maxim that “justice must satisfy the appearance of justice.” 14 III. CONCLUSION In light of the facts in this case, it is more than a mere possibility that AUSA Roe will become a witness at the trial of this matter on the contested issue referenced above.

Consequently, he should recuse himself at the earliest possible juncture. If he does not, the court should remove him.

Respectfully submitted, /s/ Michael P. Heiskell Michael P. Heiskell Johnson, Vaughn, & Heiskell 5601 Bridge St., Suite 220 Fort Worth, TX 76112 10

United States v. Alu, supra, 246 F.2d at 34.

Robinson v. United States, supra, 32 F.2d at 510. Accord, United States v. Treadway, supra, 445 F. Supp. at 962; Frank v.

State, 150 Neb. 745, 35 N.W.2d 816, 821 (1949); See United States v. Pepe, 247 F.2d 838, 844 (2d Cir. 1957) (prosecutor ″threw his own weight into the scales against defendant″) 12 Newman v. Sigler, supra, 421 F.2d at 1379 (8th Cir. 1970).

13 See, e.g., Note, The Attorney as Both Advocate andWitness, 4 Creighton L.Rev. 128, 144 (1970) (hereinafter, Advocate and Witness); Note, The Advocate-Witness Rule: If Z Then X, But Why?, 52 N.Y.U.L.Rev. 1365, 1370 (1977) (hereinafter, Advocate-Witness Rule).

14 Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11 (1954) (Frankfurter, J.). Accord, 2 J. B. Atlay, Victorian Chancellors 460 (1908) (quoting Lord Herschell): 11

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Telephone: (817) 457-2999 Fax: (817) 496-1102 E-mail: mheiskell@johnson-vaughn-heiskell.com CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

22

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA v.

HONORABLE MENTION

§ § § § §

NO: 3:18-CR-1234

MOTION FOR AN ORDER CONCERNING DISCLOSURE OF EVIDENCE PURSUANT TO TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT RULES 3.09 & 3.094 TO THE HONORABLE UNITED STATES DISTRICT COURT: COMES NOW, defendant HONORABLE MENTION, by and through undersigned counsel, moves this Honorable Court for an order requiring the Government to disclose all evidence that ”tends to negate the guilt of the accused or mitigates the offense,” and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor and in support thereof would show unto this Honorable Court the following: The Defendant is not requesting the disclosure of previously ordered Brady evidence but seeks the required disclosure of evidence or information outside the constitutional scope of Brady that tends to negate the guilt of the accused and is mitigating of the alleged offense. Disclosure of evidence under the Rules of Professional Conduct is not limited solely to “material evidence.”

All prosecutors in the United States Attorney’s Office in the Northern District are bound by the Texas Disciplinary Rules of Professional Conduct. “An attorney for the Government shall be subject to State laws and rules, and local rules, governing attorneys in each where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” 28 USC § 530B(a) (emphasis added). Further the local rules mandate, “[l]awyers who practice before this court are required to act as mature and responsible professionals, and the minimum standard of practice shall be the Texas Disciplinary Rules of Professional Conduct.” Local Rules, p. 25 (emphasis added). Texas Rule of Professional Conduct Rule 3.09, entitled “Special Responsibilities of a Prosecutor”, requires the prosecutor in a criminal case shall: “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating 23

information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”

Tex. R. Prof. Conduct 3.09(d) (emphasis added). Rule 3.09 requires a prosecutor to disclose “all evidence or information” not only material or admissible information. Rule 3.09 disclosure encompasses more evidence than what is constitutionally required to be disclosed under the Brady decision.

A DUTY BROADER THAN BRADY The Board of Disciplinary Appeals appointed by the Supreme Court of Texas (“Board”) stated, “[b]ased on the plain language of Rule 3.09(d) and significant differences between the purpose and application of the duty under the disciplinary rule and the constitutional duty under Brady, we hold that Rule 3.09(d) is broader than Brady.” Schultz v. Comm’n for Lawyer Discipline, p.1 (Tex. Bd. Disp. App. 55649, December 17, 2015) (emphasis added) (attached as Exhibit 1). The goal of Rule 3.09(d) is to impose on a prosecutor a professional obligation to “see that the defendant is accorded procedural justice, that the defendant’s guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information know to the prosecutor.” Tex. Disciplinary Rules Prof’l Conduct R. 3.09(d) cmt. 1.

Rule 3.09(d) is identical to the American Bar Association Model Rule 3.8(d). Model rules of Prof’l Conduct 3.8(d) (2015).

Unlike Brady, the rule imposes this obligation on the prosecutor without regard for the anticipated impact of the information on the outcome of a trial. ABA Comm. On Ethics and Prof’l Responsibility, Formal Op. 09-454 (2009) (attached as Exhibit 2). The ethics rules make clear that there is evidence disclosable under Professional Conduct rules that would not be disclosable under Brady. The U.S. Supreme Court also has recognized the expansive scope of disclosure under the Professional Conduct Rules.

The Court stated, “[t]he rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate.” Kyles v. Whitley, 514 U.S. 419, 437 (1995) (citing ABA Standards for Criminal Justice, Prosecution Function and Defense Function 3-3.11(a)). It is a recognized principle of American jurisprudence that, “the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.” Cone v. Bell, 556 U.S. 449, 470 n. 15 (2009) (citing ABA Model Rule 3.8(d)). The duty of disclosure under the ethical rules are more stringent than under Brady, “Rule 3.8(d) is more demanding than the constitutional case law, in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial’s outcome. The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution.” ABA Formal Op. 09-454.

NO MATERIALITY INQUIRY Ethically, “under Rule 3.09(d) the prosecution must turn over any information that ‘tends to negate the guilt’ or mitigate the offense. There is no materiality requirement. No analysis is 24

necessary to determine whether disclosure would have probably have led to a different outcome of the trial.” Schultz v. Comm’n for Lawyer, p. 10 (Tex. Bd. Disp. App. 55649, December 17, 2015). Moreover, the information does not need to be admissible at trial and the information must be disclosed “timely,” that is “as soon as reasonable practicable so that the defense can make meaningful use of it.” ABA Formal Op. 09-454.

It is the prosecutor’s role to disclose impeachment information. Rule 3.09(d) is specifically intended to advise—and prevent—a prosecutor from making an incorrect judgement call. The clarity of Rule 3.09(d) is a safeguard for prosecutors and citizens alike: if there is any way a piece of information could be viewed as exculpatory, impeaching, or mitigating—err on the side of disclosure. Schultz v. Comm’n for Lawyer Discipline, p. 11 (Tex. Bd. Disp. App. 55649, December 17, 2015) (emphasis added). The Board held “that the materiality standard under Brady does not apply to Rule 3.09(d). We further hold that a failure to disclose information otherwise required by law to be disclosed, regardless of intent, constitutes unlawfully obstructing another party’s access to evidence in violation of Rule 3.04(a).” Schultz v.

Comm’n for Lawyer Discipline, p. 4 (Tex. Bd. Disp. App. 55649, December 17, 2015).

Further, Rule 3.04(a) requires that: “A lawyer shall not unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.” Tex. R. Prof. Conduct 3.04(a). The Texas Rules of Professional Conduct mandate that a prosecutor cannot prevent access to evidence and that a prosecutor must disclose all evidence that tends to mitigate the guilt of the Defendant.

The Court’s rulings and professional ethics opinions demonstrate that there are two classes of evidence that must be disclosed. There is Brady evidence which must be disclosed, that is evidence which is favorable to an accused and is subject to materiality analysis. The second class of evidence, which is required to be disclosed pursuant to Texas Rules of Disciplinary Conduct does not require materiality analysis. The Defendant request all evidence that is in the second tier, evidence that is subject to disclosure under the Texas Rules of Disciplinary Conduct.

Forty-nine states, Guam, the United States Virgin Islands and the District of Columbia have adopted versions of the ABA Model Rule of Professional Conduct 3.8 (Special Responsibilities of a Prosecutor) from which the Texas rule binding prosecutors came. This Texas Rule binds the prosecutors in this court under the Local Rules.

This request for an order is not any personal accusation against a particular prosecutor or office, but is a principled position to address what we now know happens too often. Having a clear order from this court will provide clarity regarding the disclosure obligations of ethical prosecutors. See 96 Judicature 328 and note 32(June 2013).

WHEREFORE, PREMISES CONSIDERED, Defendant prays that this motion for an order to disclose evidence pursuant to Texas Rules of Professional Conduct be granted.

25

Respectfully submitted, /s/ Michael P. Heiskell Michael P. Heiskell Johnson, Vaughn, & Heiskell 5601 Bridge St., Suite 220 Fort Worth, TX 76112 Telephone: (817) 457-2999 Fax: (817) 496-1102 E-mail: mheiskell@johnson-vaughn-heiskell.com CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

26

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA

§ § § §

V. JOHN DOE (3), ET. AL.

CRIMINAL NO. 01:08-XXXXXXXXX

§

DEFENDANT’S MOTION FOR BILL OF PARTICULARS TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: COMES NOW JOHN DOE, defendant, by and through undersigned counsel and moves this court to order that the government, pursuant to Rule 7(f), counsel requests the government to clarify the indictment by filing a bill of particulars. In support of this motion counsel shows as follows: A. BILL OF PARTICULARS (RULE 7(f) Fed. R. Crim. P.) Counsel has finally completed an exhaustive review of the more than 10,000 pages in discovery provided by the government that encompasses alleged transactions in the states of Tennessee and Mississippi. Approximately 100 individuals are identified in the voluminous pages provided. The time frame encompassed in said discovery covers the time frame from 2006 until 2008, as to this alleged conspiracy. However, the indictment alleges a more expansive time frame from 2000 to 2008. In order to avoid any surprise and resulting prejudice as a result of government witnesses whose statements may not be memoralized or recorded in any way, and, thus, at this time not provided to counsel, the defendant respectfully requests this Court to Order the government to file a bill of particulars to inform the defendant more precisely the when, where and to whom the distribution was targeted during the time frame alleged.

WHEREFORE, premise considered, Mr. Doe moves that the Court exercise its discretionary power under Fed. Rule Crim. P. 7(d), 7(f) and order the Government to file a bill of Particulars in this matter as more specifically requested herein by Mr. Doe. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE

27

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA

§ § § §

V. JOHN DOE (3) ET. AL.

CRIMINAL NO. 01:08-CR-XXXX

MEMORANDUM OF LAW IN SUPPORT MOTION FOR BILL OF PARTICULARS TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: I. An indictment must “first, contain[] the elements of the offense charged and fairly inform[] a defendant of the charge against which he must defend, and, second, enable[] him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

An indictment may tract the language of the statute, “but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” Hamling, 418 U.S. at 117–18.

II. A Bill of Particulars should be granted where the matters requested are necessary to inform defendant of the charges against him with sufficient precision to enable him to prepare his defense, and avoid surprise, or necessary to enable defendant to plead a double jeopardy bar of further prosecution for the same offense. United States v. Gorel, 622 F.2d 100 (5th Cir. 1979), cert. denied, 445 U.S. 943 (1980); see also, United States v. Mato-Peralta, 691 F. Supp. 1988 (S.D.N.Y. 1988) (proper function of bill of particulars is to apprise defendant of charges against him with necessary precision so as to avoid unfair surprise at trial, and to preclude second prosecution for the same offense). See also, Grady v. Corbin, 110 S.Ct. 2084 (1990).

Without knowing the specific dates of any alleged conduct in the conspiracy count, Mr. Doe is unable to prepare a defense, unable to receive effective assistance of counsel, and is deprived of a fair trial, due process of law, and protection from double jeopardy. See U.S. v. Bortnousky, 820 F2d 572 (2nd Cir. 1987). It is particularly important to allege dates in this indictment rather than a global reference to a 8 year time span.

Discovery has been expansive. However, of little help to the accused in this regard. It is like searching for a needle in a haystack.

III.

28

With respect to alleged drug conspiracy cases, bills of particulars are especially necessary in order to enable a defendant to adequately meet the charges against him and mount a competent defense.

See United States v. Hughes, 817 F2d 268, 272 (5th Cir. 1987), also see United States v. Taylor, 707 F.Supp. 696 (S.D.N.Y. 1989) (defendant charged with conspiracy to distribute drugs entitled to bill of particulars stating names of all persons government would claim at trial were co-conspirators, dates that each such defendant joined conspiracy, and approximate dates and locations of any meetings or conversations at which government would contend defendant joined conspiracy, in order to allow defendant to prepare defense and to define crime charged sufficiently to bar future prosecution for the same offense; see also, United States v. William, 113 F.R.D. 177 (M.D. Fla 1986) (motion for bill of particulars granted insofar as it sought a list of unindicted co-conspirators, at least when that information was not otherwise known to defendants).

IV. Although the decision to grant a bill of particulars or not is within the sound discretion of the trial court, the Fifth Circuit has ruled that when faced with a conspiracy indictment a bill of particulars is a proper procedure for discovering the names of unindicted co-conspirators who the government plans to use as witnesses. United States v. Barrentine, 591 F2d 1069 (5th Cir. 1979).

If , on the other hand, the government is not aware of other conspirators the language referring to same should be stricken. The prejudice to the accused of including unnecessary and unwarranted allegations is that: (1) the accused will be forced to spend precious time and energy attempting to refute allegations the government may have not intention of attempting to prove; (2) the reading of the allegation to the jury will make it appear that the government has evidence of a far greater conspiracy than that which the government has actual evidence of. Furthermore, the Court should be made aware if this case involves multiple conspiracies involving various individuals, or the single conspiracy alleged herein.

The above requested information necessary to Mr. Doe in order to avoid unfair surprise at trial and to prepare an adequate defense. Without same, he will suffer severe prejudice.

Respectfully Submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700

CERTIFICATE OF SERVICE

29

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA Plaintiff, vs.

JOHN DOE, et. al, Defendants

§ § § § § §

CRIMINAL CASE NO.

DEFENDANT JOHN DOE’S MOTION AND BRIEF IN SUPPORT OF PRE-TRIAL PRODUCTION OF ALL JENCKS ACT MATERIAL TO THE HONORABLE JUDGE OF SAID COURT: Defendant John Doe (“Doe”), by and through his attorney of record, moves this Court for entry of an order directing the Government to produce to Defendant Doe and his counsel at least one week in advance of trial of this matter all “Jencks Act” material pursuant to 18 U.S.C. § 3500 and FED. R. CRIM. P. 26.2.

Defendant Doe is aware that the statute and rule above mentioned do not require delivery of the Jencks Act Materials on the date requested. Nevertheless, early disclosure of such materials would fulfill two goals. First, it would allow counsel for Defendant Doe to better prepare cross-examination of the witnesses, which is consistent with Defendant Doe’s due process rights and his entitlement to effective assistance of counsel. Second it will promote judicial economy and the proper administration of justice by avoiding delays, which would be caused if FED. R. CRIM. P. 26.2 and Section 3500 were strictly followed by having the Government provide such information only after the witness testifies. The fact that FED.R.CRIM.P. 26.2 (g) has been expanded to include production of Jencks material to several proceedings indicates a willingness on Congress’ part to make Jencks material available at an earlier date.

The order requested is within the discretion of the Court.

WHEREFORE, PREMISES CONSIDERED, Defendant John Doe respectfully requests that this motion be granted for the aforementioned reasons.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700

CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

30

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA

§ § § §

V. JOHN DOE (3), ET. AL.

CRIMINAL NO. 01:08-CR-xxxxxxxxxx

MOTION TO STRIKE SURPLUSAGE TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: COMES NOW JOHN DOE, defendant, by and through undersigned counsel and moves this court to order that the government Strike Surplusage from the indictment in this cause pursuant to Fed. Rule Crim. P. Rule 7(d). In support of this motion counsel shows as follows: A. SURPLUSAGE (RULE 7 (d) Fed. R. Crim. P.) 1. As to the Indictment please strike the following language “That starting from on or about sometime in 2000…”since there is no discovery provided to counsel to reflect any transactions from 2000 to 2006 that relates to the alleged conspiracy in our case. Counsel has received over 10,000 pages of discovery and this expansive time frame is not referenced in said discovery as it pertains to this alleged conspiracy.

2. As to the Indictment also strike the following language, “…others both known and unknown to the grand jury…” since it suggests, together with the above language, a greater conspiracy that can be arguably proven.

3. Mr. Doe will suffer great harm and prejudice by allowing the above cited language to remain in our indictment as outlined in the affidavit attached hereto as Exhibit A. WHEREFORE, premise considered, Mr. Doe moves that the Court exercise its discretionary power under Fed. Rule Crim. P. 7(d), 7(f) and order the Government to strike the surplusage referenced above or, in the alternative, file a bill of Particulars in this matter as more specifically requested by Mr. Doe. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE

CERTIFICATE OF CONFERENCE

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EXHIBIT A STATE OF TEXAS

)

COUNTY OF TARRANT

)

AFFIDAVIT OF MICHAEL P. HEISKELL My name is Michael P. Heiskell and I am over the age of eighteen year and of sound mind and state the following under oath: I am the attorney for John Doe, who is accused in Count 1 of this indictment with four other individuals with Conspiracy to Possess with Intent to Distribute Cocaine. Count 1 uses the phrase that other members of said conspiracy are “known and unknown to the grand jury.” The discovery provided by the government in this case only reveals and identifies the accused individuals named in this indictment, and does not allude to any other individuals in any way. This phrase in the indictment will require undersigned counsel together with his investigator to spend countless hours in trying to discover who these individuals are via conferences with the government and co-counsel. If there are no such individuals this is a needless, cumulative, and prejudicial phrase that should be struck. By striking same the court will economize the discovery and shorten the trial of this cause.

Michael P. Heiskell SUBSCRIBED AND SWORN TO BEFORE ME on this the ______ day of __________, 20__.

Notary of Public Texas

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA vs.

JOHN DOE, et. al.

§ § § § §

CRIMINAL DOCKET CASE NO.

DEFENDANT JOHN DOE’S MOTION AND BRIEF FOR PRE-TRIAL DISCLOSURE OF ALL EVIDENCE THE GOVERNMENT INTENDS TO OFFER PURSUANT TO RULE 404(B) OF THE FEDERAL RULES OF EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: Defendant John Doe (“Doe”), by and through his attorney of record, respectfully moves this Court for the entry of an order compelling the Government to disclose, prior to trial of this matter, all evidence that is intends to offer pursuant to Rule 404(b) of the Federal Rules of Evidence. Such disclosure should include, but not be limited to the following: 1.

A description of the other crime, wrong or act the government intends to offer, including the date(s) or place(s) the other crimes, wrongs or acts allegedly occurred; 2.

The names and addresses of all persons who were witnesses to or have knowledge of such crime, wrong or act; 3.

Copies of all documents, materials, or other tangible objects which the government intends to offer into evidence in conjunction with such 404(b) evidence; 4.

All evidence which is exculpatory within the purview of Brady v. Maryland, 373 U.S. 83 (1963), with regard to such other crimes, wrongs or acts evidence., i.e., all evidence which detracts from the probative value of such evidence, or which indicates that the probative value of the evidence might be outweighed by its prejudicial effect; and 5.

A statement of the purpose for which such evidence is offered, i.e., a declaration from the government of whether the evidence is being offered to show motive, or opportunity, or intent, etc.

WHEREFORE, PREMISES CONSIDERED, Defendant John Doe respectfully requests this Court to enter an order consistent with this motion, Respectfully submitted, Attorney for Defendant State Bar No. __________________ /CERTIFICATE OF SERVICE/ /CERTIFICATE OF CONFERENCE/

33

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA vs.

JOHN DOE

§ § § § §

Cause No. ___________________

DEFENDANT JOHN DOE’S MOTION AND BRIEF TO PRESERVE AGENTS’ NOTES AND BRIEF IN SUPPORT TO THE HONORABLE JUDGE OF SAID COURT: Defendant John Doe (“Doe”), by and through his attorney of record, respectfully files this motion to preserve and review agents’ notes and in support thereof would respectfully show the Court as follows: Defendant Doe requests the preservation of all rough notes, memoranda, resumes, synopses, etc. taken by any and all Government agents and others who were present during interviews of Defendant Doe conducted prior to indictment.

Defendant Doe is entitled to any written records containing the substance of relevant oral statements made by him according to FED. R. CRIM. P. 16(a)(1)(A). This Rule was amended in 1991 and effectively expands the earlier Rule, which required the Government to disclose only the “substance” of any oral statement, which the Government intended to offer into evidence at the trial. Thus, although the Defendant can and has presented compelling need for whatever rough notes of his interview might exist in the Government’s files, the Rule itself does not equivocate. The Defendant has requested whatever written records exist and therefore, the Government must disclose those written records to Defendant.

Earlier cases have sometimes determined that the provision of final memoranda is an adequate substitute for rough field notes. See, e.g., United States v. Service Deli, Inc., 151 F.3d 938 (9th Cir. 1998). But the applicability of Brady is irrelevant; the possible inconsistency between the rough notes and final memoranda of interview is not relevant to the absolute disclosure requirements contained in Rule 16(a)(1)(A). Courts have defined the term “any” as used by Congress to be very expansive. See United States v. Gonzales, 520 U.S. 1 (1997) (“Read naturally the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’”); see also Berlanga v. Reno, 56 F.Supp. 2d 751, 760 n.

17 (S.D. Tex. 1999) (“when Congress says ‘any’ it means ‘any.....’”). Accordingly, when the Rule requires the production of “any” written record containing the substance of “any” relevant oral statement made by the Defendant, the Government should be required to produce any and all such written records, including rough notes.

Moreover, some courts before the 1991 amendment of Rule 16 have required the in camera inspection of FBI notes of witness interviews under the dictates of the Jencks Act, 18 U.S.C. § 3500. See, e.g., United States v. Gaston, 608 F.2d 607 (11th Cir. 1979). In any event, such a conclusion is unnecessary given the current language of Rule 16. Here, the notes may assist the jury in deciding whether any of the alleged admissions contained in the typed memoranda of interviews were actual witness statements or merely the agents’ and lawyers’ after-the-fact summaries of what they hoped to be the responses to leading questions.

34

Granting the instant request imposes no undue burden upon the government since, as a matter of policy, FBI agents are already required to preserve all investigative notes until there has been final disposition of a matter.

WHEREFORE, PREMISES CONSIDERED, Defendant Doe respectfully requests this Court to permit the inspection and copying of any handwritten notes taken by Government representatives during their investigation of Defendant Doe. Respectfully submitted, /S/ Attorney for Defendant State Bar No. 09383700 CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE

35

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § Plaintiff § § VS. § CRIMINAL NO. § § JANE DOE (3) § Defendant DEFENDANT’S MOTION AND BRIEF TO REQUIRE THE GOVERNMENT TO COMPLY WITH RULE 106, FEDERAL RULES OF EVIDENCE TO THE HONORABLE JERRY BUCHMEYER, UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION:

COMES NOW, JANE DOE, Defendant in the above styled and numbered cause, and moves this Honorable Court to enter an order requiring the Government to be prepared at trial to comply with the provisions of Rule 106 of the Federal Rules of Evidence and in conformity with the Due Process requirements under the U.S. Constitution would show as follows: I. a. The defense knows that the Government intends to introduce at trial a large number of writings, recorded statements, and portions of same. Which such writings and statements, and what portions, the defense has no way of knowing at this time. b. When the Government introduces any writing or statement or part thereof, Rule 106 gives the defense the right to compel the Government to introduce at that time any other part of such writing or statement, or any other writing or statement which ought in fairness be considered contemporaneously with the offered material. c. To insure that Rule 106 is observed to avoid unfairness from the admission of less than all of a writing or statement when more will establish the proper context, setting, or meaning of same and to prevent delay at trial, the Court should instruct the Government prior to trial, to be prepared to comply with Rule 106 should demand be made.

WHEREFORE, Defendant prays this motion be in all things granted.

Respectfully submitted, Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN, & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 fax CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

36

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA vs.

JOHN DOE

§ § § § §

CRIMINAL NO.:3:00-CR-XXXX

DEFENDANT’S EX PARTE MOTION FOR LEAVE TO SERVE SUBPOENAS DUCES TECUM UNDER RULE 17(C) Pursuant to Federal Rule of Criminal Procedure 17(c), Defendant moves this Court for leave to file subpoenas duces tecum upon non-parties for production of books, papers, documents, or other objects to Defendant’s counsel prior to trial. These subpoenas are needed for defense preparation in this documentintensive case. A proposed order is attached which includes a protective order covering the subpoenaed documents.

Respectfully submitted,

Attorney for Defendant State Bar No. ________________ CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE

37

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA vs.

JOHN DOE

§ § § § §

CRIMINAL NO.:3:00-CR-XXXX

ORDER GRANTING LEAVE TO SERVE SUBPOENAS DUCES TECUM UNDER RULE 17(C) Upon due consideration of the Motion of Defendants for Leave to Serve Subpoenas Duces Tecum upon non-parties for production of books, papers, documents, or other objects to Defendants’ counsel prior to trial, and pursuant to Fed. R. Crim. Proc. 17(c), it is hereby ORDERED THAT: 1.

Defendant is authorized to obtain through his respective attorneys the issuance and service of subpoenas duces tecum upon non-parties, commanding them to produce books, papers, documents or other objects described in such subpoenas for inspection by defense counsel and for use as evidence at trial. Such subpoenas may command the delivery of such materials to an attorney for the defendants on a date or dates prior to the commencement of the trial in this action.

2.

Materials produced by a non-party in response to a subpoena duces tecum served as authorized herein shall be deemed confidential and shall be subject to the restrictions on use and disclosure set forth herein, unless and until otherwise ordered by the Court.

3.

a)

Confidential materials produced in response to a subpoena duces tecum served as authorized herein may be used by the receiving counsel and by any other persons obtaining access to such materials hereunder only for the purposes of preparing for and conducting the trial of this action.

b)

Prior to the trial of this matter, confidential materials produced in response to a subpoena duces tecum served as authorized herein shall not be disclosed by the receiving counsel, not by any other persons obtaining access to such materials hereunder, except that (i) receiving defense counsel may disclose such materials to counsel for the Government if deemed appropriate; and (ii) counsel for the parties may disclose such materials to attorneys, legal assistants, and staff personnel associated with or employed by such counsel, to consulting and/or testifying experts or their employees or agents retained by such counsel to assist in the preparation and defense of this case, and to the individual Defendants represented in this action by such counsel, all for the purpose and to the extent required to assist in counsels’ preparation for and presentation of the case at trial.

Any of the parties may move the Court for an order authorizing disclosure or use of specific confidential materials to persons or for purposes not specified above or determining that specified materials are not confidential and are not subject to the restrictions of this paragraph (c). Any party moving for such an order hereunder shall give notice of its motion to all the parties and to the non-party by whom the materials that are the subject 38

of the motion were produced. Any such motion, or any other pretrial motion which discloses the contents or substance of confidential materials or to which such materials may be attached shall not be required to be disclosed to the Government, subject to further order of the Court.

4.

Nothing herein shall be construed or applied to prohibit or restrict the disclosure or use of any evidence, including evidence comprising, referring to or disclosing otherwise confidential materials, in the course of the trial or other public proceedings in this matter.

IT IS SO ORDERED. ________________________________ United States District Judge Signed at Dallas, Texas on the ____ day of _________________, 20____. ________________________________ United States District Judge

39

IN THE UNITED DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA VS. JOHN DOE

§ § § § §

CRIMINAL NO. 4:00-CR-260-Y

DEFENDANT JOHN DOE’S MOTION FOR AUTHORIZATION TO MAKE LIMITED DISCLOSURE OF CONTENTS OF THE PRESENTENCE INVESTIGATION REPORT OF GOVERNMENT WITNESS RICHARD ROE TO THE HONORABLE JUDGE OF SAID COURT: Defendant John Doe seeks authorization of the Court to make limited disclosure of the contents of the Pre-Sentence investigation reports of the government witness, Richard Roe. In support of the same, the Defendant would show: A. The above named defendant has been convicted in this cause of count one of the indictment and is awaiting sentencing. The United States Probation Office has prepared or is preparing a Presentence Investigation Report to the Court. Within such report, in the portion relating to any adjustment for Acceptance of Responsibility will be a recitation of the defendant’s version of his offense behavior. Within such report (in Part B-Defendant’s Criminal History) will be a detailed recitation of the defendant’s criminal history and a description of any offenses of which the defendant was convicted or the facts relating to an arrest. Within such report (in Part C-Offender Characteristics), will be any information relating to the defendant’s mental and emotional health and any substance abuse, and the defendant’s employment record.

B. The remaining defendant, John Doe, is currently scheduled for trial in this court on June 5, 2017. It is possible that the contents of the “defendant’s version” portion and Parts B and C of the presentence investigation reports of the convicted defendants may contain potential Brady/Giglio information as to John Doe. Under the rules of the Court, the contents of the presentence investigation report are confidential and not subject to disclosure. In order to avoid any potential claim of the suppression of Brady/Giglio material, the defendant seeks authorization to disclose (1) that portion of Part A of the report which contains any recitation of the defendant’s version of the offense conduct and (2) Parts B and C of each presentence investigation report to the undersigned attorney for your defendant.

C. The granting of such authorization will avoid any necessity for the Court to have make an in camera examination of the presentence investigation reports.

WHEREFORE, PREMISES CONSIDERED, the defendant prays that the Court will grant authorization to the Government to disclose (1) that portion of Part A of the report which contains any recitation of the defendant’s version of the offense conduct and (2) Parts B and C of each presentence investigation report to the undersigned attorney.

Respectfully submitted _____________________________ Attorney for Defendant State Bar No.________________

40

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § vs. § CRIMINAL NO. § JOHN DOE § MOTION AND BRIEF TO DISMISS (MISCONDUCT BEFORE GRAND JURY) NOW COMES JOHN DOE, Defendant, and moves to dismiss the indictment in this cause based upon misconduct before the grand jury and shows as follows: I. Undersigned counsel was faxed on Sunday afternoon, May 4, 2013, the grand jury transcript of testimony of case agent Frank Smith. In said transcript, it is apparent that the grand jurors were subjected to false and misleading statements made by agent Smith and the prosecutor. Said false and misleading statements include, but were not limited to the following: I. II. Agent Smith’s statement to the Grand Jury that Probationer Johnson has not been supervised by the defendant and that Johnson had paid “nothing” on his restitution during the 2012 calendar year. (Grand Jury transcript pp. 16-17) In truth and fact, the government’s own exhibit (Government Exhibit 27) reflects payment of $800.00 toward restitution in 2012.

2.

Agent Smith’s contention that Johnson had completed or discharged a state probation, which should have lead to Johnson’s revocation of his federal probation (Grand Jury transcript pp. 17-18) In truth and fact, when a federal probationer discharges or completes a concurrent state probation, as was the situation in the instant case, there is no cause nor justification for the federal court to revoke this federal probation, unless other factors exist to reflect that he violated his federal probation for matters occurring during said probation.

1.

Agent Smith’s allegation that your defendant received Mavericks tickets and other items of gratuities not alleged in the indictment. (Grand Jury transcript pp.19) In truth and fact, the government now claims that Johnson provided Cowboy tickets as opposed to Mavericks tickets. Furthermore, the government has chosen to redact a full page regarding this testimony before the grand jury without representing a compelling reason for doing so. Counsel submits that in redacting said testimony from defendant’s transcript, it is obvious something improper or inappropriate was stated to the grand jury regarding the defendant and/or Johnson that likely implies that the defendant engaged in more criminal activity than alleged in the indictment. Said implication is misconduct. United States v.

Sigma Int’l., 244 F.3d 841, 854 (11th Cir. 2001).

2.

Agent Smith’s statement to the Grand Jury that “....they just hit a lick, which in street terms means something is stolen.” (Grand Jury transcript p. 24) In truth and fact, said phrase “to hit a lick” does not mean something is stolen. It simply means that someone came across a good deal or received good fortune.

3.

Agent Smith’s statement to the Grand Jury that Johnson stated to the defendant that he did not want to go to jail regarding the purchase of the digital camera. (Grand Jury transcript p. 25) In truth and fact, there is no such statement made by Johnson reflected in the taped conversations regarding this transaction as reflected in the government exhibits.

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4.

Agent Smith’s testimony to the Grand Jury that the items the Defendant purchased were believed by him to be “hijacked cargo” after said term was used by the prosecutor.

(Grand Jury transcript p.28) This highly inflammatory term employed before the Grand Jury certainly implies more than the evidence reflects. There is no statement by Johnson, nor the defendant indicating that these matters were hijacked by anyone. Furthermore, once again the government redacts the remaining portion of Smith’ testimony, indicative of inappropriate comments.

5.

Finally, Agent Smith tells the Grand Jury that your defendant “is known to have a lot of other things going on besides receiving stolen property, sexual favors, and other things.” (Grand Jury transcript p.29) This statement accuses the defendant of crimes not being investigated by the grand jury thus prejudicing the defendant. This is prohibited. See United States v. Hogan, 712 F.2d 757, 761-62 (2nd Cir. 1983).

United States v. Feurtado, 191 F.3d 420, 423-25 (4th Cir. 1999).

The cumulative effect of the transgressions committed before the Grand Jury has resulted in an improper influence over said Grand Jury and justifies dismissal.

Respectfully submitted, _______________________ Attorney for Defendant State Bar No. ________________ CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

42

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § vs. § NO. § JOHN DOE § MOTION AND BRIEF TO DISMISS COUNTS EIGHT AND NINE OF THE SUPERCEDING INDICTMENT (MULTIPLICITIOUS INDICTMENT) COMES NOW JOHN DOE, Defendant in the above-entitled and numbered cause and moves this Court to dismiss Counts Eight and Nine of the Superceding Indictment, filed May 20, 2016, for the reason that said counts are multiplicitious to counts Six and Seven of our indictment.

Counts Six and Seven charge your defendant with violations of 18 U.S.C. § 201 (c)(1)(B) (Illegal Gratuity). Counts Eight and Nine charges violations of 18 U.S.C. § 201 (b)(2)(A) (Bribery of a Public Official). Counts Eight and Nine are based upon the identical set of facts as alleged in Counts Six and Seven and, are thus, multiplicitous.

Indictments charging a single offense in different Counts are multiplicitous. See United States v. Miller, 576 F.3d 528, 531 (5th Cir. 2009), where indictment resulting in two (2) separate convictions of running over police officers in a motor vehicle. It is deemed multiplicitous because crime resulted from same conduct. Such indictments result in multiple sentences for a single offense, in violation of constitutional double jeopardy provisions.

WHEREFORE, your defendant requests the Court dismiss Counts Eight and Nine of the Superceding Indictment.

Respectfully submitted

Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN, & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

43

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA vs.

JOHN DOE

§ § § § §

CRIMINAL NO.:3:00-CR-XXXX

DEFENDANT’S MOTION AND BRIEF IN SUPPORT OF MOTION TO DISMISS COUNT ONE AS DUPLICITOUS JOHN DOE, the defendant, is charged in count one of the indictment, along with four other individuals, with conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base. The conspiracy count incorporates two separate and distinct crimes, one involving cocaine (punishable under 21 U.S.C. §841(b)(1)(A)(ii)) and the other involving cocaine base (punishable under 21 U.S.C. §841(b)(1)(A)(iii)). The sentence for violating the cocaine base statute far exceeds a sentence for violating the cocaine powder statute. Because the count charges [defendant] with two different crimes in a single count, the charge is duplicitous. The duplicity in this charge violates [defendant’s] constitutional rights to due process and a unanimous verdict. Therefore, the Court should dismiss count one.

Duplicity occurs when two or more separate offenses are joined in the same count. An indictment that charges two conspiracies in a single count is duplicitous. See United States v. Robin, 693 F.2d 376, 378 (5th Cir. 1982) (“‘Duplicity’ is the joining in a single count of two or more distinct and separate offenses.”); see also United States v. Klinger, 128 F.3d 705, 708 (9th Cir. 1997) (same); United States v.

Murray, 618 F.2d 892, 896 (2d Cir. 1980) (same). An indictment must be measured in terms of whether it exposes the defendant to any of the inherent dangers present in a duplicitous indictment. United States v. Alsobrook, 620 F.2d 139 (6th Cir. 1980). These dangers are 1) if the indictment count fails to inform the defendant of the charges against him, 2) if the defendant would be subject to double jeopardy, 3) if the defendant would be prejudiced by evidentiary rulings at trial, and 4) if the defendant would be convicted by less than a unanimous verdict. See Robin, 693 F.2d at 378. Here, at least three of the enumerated dangers of a duplicitous indictment are present, thus dismissal is warranted.

First, count one fails to provide [defendant] with sufficient notice of the charges against him. This analysis begins the problems identified in [defendant’s] contemporaneously filed motion to dismiss or in the alternative for a fill of particulars for count one. The broad, vague and conclusory allegations of conspiracy are made even more problematic by fact that there are actually two different conspiracy charges set forth within count one. These problems are magnified because the “conspiracy doctrine is inherently subject to abuse and . . . the government frequently uses conspiracy to cast a wide net that captures many players . . . .” Thus, when evaluating a conspiracy charge courts must be “careful to guard against guilt by association, to ‘scrupulously safeguard each defendant individually, as far as possible, from loss of identity in the mass.” United States v. Evans, 970 F.2d 663, 668 (10th Cir. 1992) (quoting Kotteakos v. United States, 328 U.S. 750, 773 (1946)). Thus, particularly when combined with the other defects found in count one, the duplicitous nature of the count prevents [defendant] from having sufficient notice of the charge against him.

Second, the wording of the indictment may enable the government to re-try [defendant] on nearly the same charge if the jury were to accept him on count one. Count one charges him with a conspiracy to possess and distribute cocaine and cocaine base. If the jury were to acquit [defendant] on this count, the government may re-indict [defendant] and charge him with possession with intent to distribute either cocaine or cocaine base. If [defendant] is acquitted in this case, the government would argue that the jury concluded that [defendant] was not involved in a conspiracy involving both cocaine and cocaine base but just one or 44

the other. Such a scenario would unfairly subject [defendant] to double jeopardy as much of the same evidence in this trial would be used against him in the next trial.

Third, [defendant] is in danger of being convicted by a less than a unanimous jury verdict. Count one of the indictment is sure to confuse jurors as it incorporates several different crimes: a conspiracy, possession with intent to distribute cocaine base, and possession with intent to distribute cocaine powder.

Matters are further complicated because the count involved four different individuals who have varying degrees of involvement. There is a significant likelihood that the jury might convict [defendant] without unanimously agreeing on [defendant’s] guilt of the same offense.

WHEREFORE for the foregoing reasons, the defendant moves this Honorable Court to dismiss count one of the indictment.

Respectfully submitted, [Counsel for Defendant] CERTIFICATE OF SERVICE I hereby certify that the foregoing pleading was served via first class mail upon: [Name/Address]

____________________ [Counsel for Defendant] Dated: ______________

45

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA v.

JOHN DOE

§ § § § §

CASE NUMBER

MOTION AND BRIEF FOR SEVERANCE OF COUNTS COMES NOW, the defendant, JOHN DOE, by and through undersigned counsel, and moves the Court, pursuant to the provisions of Rules 8 and 14 of the Federal Rules of Criminal Procedure, for a severance of count three of the Indictment and for a separate trial as to count one for the reason that count three is misjoinded and the joinder of all three counts is prejudicial.

RULE 8 MISJOINDER The gun the defendant possessed was not the gun used in the robbery and is not alleged in the indictment to be the gun used in the indictment.

Rule 8(a) allows joinder of two or more offenses in a single indictment only if the offenses charged... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

The possession of a gun is not a crime that is the same or similar character as the commission of a robbery. The allegation that the defendant possessed a gun nearly two months after the alleged robbery is not based on the same act or transaction as the any of the robberies, nor can it be said to be based on any common scheme or plan connecting the earlier completed robberies.

RULE 14 PREJUDICIAL JOINDER, AND RULE 404(b) Rule 14 states that "[i]f it appears that a defendant ... is prejudiced by a joinder of offenses .. in an indictment ... , the court may order a separate trial of counts ...".

The alleged offense in count three is not the same or similar character as in counts one and two. The Fourth Circuit has said in U. S. v. Foutz, 540 F.2d 733, that where two or more offenses are joined for trial solely on the theory that offenses were of the same or similar character, three sources of prejudice may justify the granting of a severance: (1) the jury may confuse and cumulate evidence and convict the defendant of one or both crimes when it would not convict him of either if it could keep evidence properly segregated; (2) that the defendant may be confounded in presenting defenses, as where he desires to assert his privilege against self-incrimination with respect to one crime but not to the other; or (3) that the jury may conclude that the defendant is guilty of one crime and then find him guilty of others because of his criminal disposition.

Foutz has an interesting factual basis because it involved two different robberies of the same bank within two and one-half months and the Court reversed for prejudicial joinder. The Court here admonishes at page 738 that "the only real convenience served by permitting joint trial of unrelated offenses against the wishes of the defendant may be the convenience of the prosecution in securing a conviction."

Furthermore, the prejudice to the defendant is clear and unambiguous. By the inclusion of Count three, the jury will be told the defendant is a convicted felon. The distillation of centuries of Anglo-American jurisprudence developed the bedrock principal that a defendant is to be presumed innocent and tried based on evidence relevant to allegation, not based on his character or reputation. Thus, for these and for other reasons, proof of a defendant's prior conviction has been deemed too prejudicial and too lacking in probative value to be admissible against the defendant. The inclusion of count three would violate this fundamental precept of our law. The government would be allowed to present before the jury evidence 46

that would otherwise be admissible on the robbery, and use of a weapon during the commission of a robbery charges, severely prejudicing his right to a fair trial based on admissible evidence.

The defendant is even further prejudiced by the misjoinder as the jury will here evidence that he possessed a weapon on a date subsequent to the robbery. This evidence also would have been inadmissible as to the first two counts absent the prejudicial joinder.

WHEREFORE, the defendant prays that count three be severed from the indictment.

Respectfully submitted, Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 /certificate of service/ /Certificate of Conference/

47

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA V. JOHN DOE (13), et. al.

§ § § § § §

CRIMINAL NO. 03:07XXXXXXXXXX

DEFENDANT’S MOTION AND BRIEF FOR SEVERANCE NOW COMES the defendant, JOHN DOE (hereinafter “Doe”) through counsel, and respectfully moves this Honorable Court for relief from improper and prejudicial joinder of your defendant in the Indictment under Rule 8, and pursuant to Rules 12 and 14 of the Federal Rules of Criminal Procedure, to sever and order a separate trial for this Defendant and certain others, on the following grounds: I. BACKGROUND Our Indictment is lengthy. It consists of six (6) separate conspiracies. The Indictment essentially charges the defendants with separate and unrelated schemes that lack the requisite sameness or commonality to permit their joinder of both offenses and Defendants under Rule 8 of the Federal Rules of Criminal Procedure. For example, Doe is charged with Conspiracy to Extort and Conspiring to Commit Money Laundering pursuant to said Extortion, a scheme that has no commonality in law, or in fact, to the four (4) separate conspiracies involving a combination of other co-defendants. Conversely, the other four (4) separate conspiracies and alleged overt acts involve separate schemes, have no commonality in fact, or in law, to defendant Doe. Yet all are in the same indictment.

II. CUMULATIVE EVIDENCE Joint trail of these six (6) separate conspiracies, and other conspiracies within same, serve only to prejudice Doe by permitting a culmination of evidence on totally unrelated charges and defendants.

Counsel is aware of the fact that evidence against co-defendants that “spill over” on a particular defendant is rarely sufficient to constitute “compelling prejudice.” However, our case is unique due to the extreme complex nature of the allegations, and the anticipated massive jury instructions that will be required to encompass six (6) separate conspiracies, and substantive counts that run the gamut from bribery of state and local officials (separate counts), to tax fraud and evasion (separate counts), to the forfeiture allegations. Our case presents an extreme and serious risk that the jury will be unable to make a reliable judgment about guilt, or innocence, despite any cautionary jury instructions. See Zafiro v. United States, 506 U.S. 534, 539 (1993).

If defendant Doe is tried with the other defendants in this case, charged in the four (4) separate conspiracies and varied substantive counts, he will be materially prejudiced because of the confusion engendered in the minds of the jury as to each defendant’s actual role and activities in the unrelated 48

transactions in this indictment. The jury may cumulate that evidence of the various offenses charged and find guilt, when, if considered separately it would not so find. Doe will be prejudiced by the interacting effect of the cumulative evidence for each offense and each defendant and overburdened by the presentation of simultaneous and separate defenses due to the improper joinder of counts and defendants.

III. CO-DEFENDANTS STATEMENTS Doe will be prejudiced by the admission in evidence of co-defendant statements through audiotapes and other evidence, which prejudice cannot be dispelled by cross-examination if the codefendant does not take the witness stand and testify. Limiting instructions to the jury in this regard will unlikely erase the prejudice. See Bruton v. United States, 391 U.S. 123 (1968), and Fed. R. Ev. 801 which defines a co-conspirator’s statement as not hearsay. The Sixth Amendment guarantees the right of confrontation. When such Bruton problems arises then the trial should be severed. See Richardson v.

Marsh, 481 U.S. 200, 211 (1987).

IV. MISJOINDER The key language for analysis under Rule 8 (b) is that the defendants be charged with having “participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” United States v. Helms, 897 F.2d 1293, 1299-1300 (5th Cir. 1990). To define the “same act or transaction” of a number of defendants is truly to define the concept of a conspiracy, and the courts have so held. See, e.q., United States v. Broussard, 80 F. 3d 1025, 1036 (5th Cir. 1996); United States v. Polk, 56 F. 3d 613, 632 (5th Cir. 1995); United States v. Box, 50 F. 3d 345, 357 (5th Cir. 1995).

Some courts have found it useful to analogize a conspiracy to a wheel: “For a wheel conspiracy to exist those people who form the wheel’s spokes must have been aware of each other and must do something in furtherance of some single, illegal enterprise. Otherwise the conspiracy lacks ‘the rim of the wheel to enclose the spokes.’” Levine, supra at 663, quoting Kotteakos v. United States, 328 U.S. 750, 755, 66 S. Ct. 1239 (1946).

In sum, the essence of a common plan (not “several similar plans”) must be adequately alleged in the indictment for it to pass the test of Rule 8(b), and this indictment manifestly does not.

V. Prejudicial Joinder Rule 14(a) provides, as a separate and additional source of relief available to Doe, that the court may order separate trials of defendants even if they are not misjoined under Rule 8(b): The question of whether to sever the trials is in the sound and broad discretion of the trial judge. United States v. Hernandez, 962 F. 2d 1152, 1157-68 (5th Cir. 1992). See also, Schaffer v. United States, 221 F2d 17(5th Cir. 1955).

Doe cannot receive a fair trial without severance for all reasons cited hereinabove under “Misjoinder.” The injustice and denial of due process would be serious enough if the government could

49

“prove” one offense by merely providing a second offense of similar character (the so-called “spill-over” effect) 15.

WHEREFORE, defendant John Doe prays for severance from each and every defendant indicted in the four (4) separate conspiracies, and the above referenced substantive counts, and for his separate trial as to each conspiracy alleged against him in the indictment.

Respectfully submitted, /S/ Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

15

Illustrated in United States v.Mitchell, 31 F. 3d 271, 276 (5th Cir.),cert.denied, 513 U.S. 977 (1994).

50

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS UNITED STATES OF AMERICA

§ § § § § §

V. JOHN DOE(3), ET. AL.

CRIMINAL NO. 01:08-CR-XXXXX

DEFENDANT JOHN DOE’S MOTION TO SUPPRESS TITLE III COMMUNICATIONS FOR FAILING TO COMPLY WITH REQUIREMENTS TO THE HONORABLE UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF TEXAS: COMES NOW Defendant, JOHN DOE, by and through his attorney of record, and respectfully moves the Court for an order suppressing any and all evidence obtained from applications and orders pursuant to Title III authorizing the interception of wire communications, and all evidence derived therefrom, as a result of the Government’s failure to comply with the necessity requirements, and for cause would show unto the Court the following: I. STATUTORY AUTHORITY The statutory authority for interception of wire, oral, or electronic communications is found in 18 U.S.C. § 2518 et seq. “Necessity” in the Title III context refers to the government’s showing that the goal of the investigation could not be achieved through normal investigative techniques—thus, the wiretap was necessary.

The specific authority relative to the sealing requirements is found in 18 U.S.C § 2518(8)(3)(c)(3) which provides in part as follows: “upon such application the judge may enter an ex parte order… authorizing… interception of… electronic communications…if the judge determines on the basis of the facts submitted by the applicant that… normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”

II. FACTUAL BACKGROUND 51

The wire communications sought to be intercepted and monitored was a cellular telephone number subscribed by Richard Roe of Dallas, Texas, in possession of and utilized by co-defendant, Low Down during the course of this drug trafficking investigation. Your defendant, John Doe has been identified by the Government as having his voice captured on said recordings. He, therefore, has standing as an aggrieved person.

III. NECESSITY REQUIREMENT On April 20, 2018, this court ordered the authorization of a thirty (30) day interception of wire communication based upon an Application for said interception being filed by the Government.

(Appendix: Exhibit A).

On April 20, 2018, the interceptions apparently commenced. Pursuant to 18 U.S.C. 2518 (8)(3)(c)(3), the affidavit in support of these interceptions set forth certain investigative techniques undertaken to justify the “necessity” requirement previously referenced. The techniques employed were in the realm of witness interviews, video surveillance, financial investigations, cooperating informants and mail covers. However, other investigative techniques and procedures were also available such as controlled buys, pen registers, toll registers, trap and trace, as well as infiltration by undercover agents.

None of these appear to have been employed. Furthermore, there is no assertion that either of these, as combination of same would result in a risk of, or acts of, violence.

IV. SUPPRESSION WARRANTED FOR FAILURE TO COMPLY WITH 18 U.S.C. § 2518 (8)(3)(c)(3) Finally, all material intercepted as a result of any subsequent interception Orders including, but not limited to, audio conversations, monitor logs, minimization logs, reports of activity should be suppressed because such interceptions were predicated, in part, on information illegally obtained by the April 20, 2018, Order, (Appendix: Exhibit A). Such material, illegally obtained because it failed to comply with the necessity requirements of 18 U.S.C. § 2518(8)(3)(c)(3), has so tainted any subsequent Orders to intercept, as to make it unsupported by probable cause as a matter of law.

WHEREFORE, it is respectfully prayed that all material seized pursuant to the Orders for interception of wire communications from the cellular phone described above be suppressed, and for such other and further relief to which he may justly entitled. Defendant further prays for the Court to Order a pre-trial hearing on this motion.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700

52

CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS UNITED STATES OF AMERICA

§ § § § § §

V. JOHN DOE (3), ET. AL.

CRIMINAL NO. 01:08-CRXXXXXXX

DEFENDANT JOHN DOE’S MOTION AND BRIEF TO SUPPRESS TITLE III INTERCEPTIONS (SEALING REQUIREMENTS) TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS: Defendant, John Doe (“Doe”), files this his Motion and Brief in Support of Motion to Suppress seeking to suppress all material seized as a result of interceptions pursuant to Title III, 18 U.S.C. § 2510 et. seq., and the Order of April 20, 2018.

TITLE III INTERCEPTIONS The interception of wire, oral and electronic communications is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C § 2510 et. seq. The interception of “Title III” communications requires a court order based upon an application by an authorized applicant that sets forth “a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including” the nature of the crime being committed, the identity of the person committing the offense who is to be intercepted, the types of communications to be intercepted and a particular description of the facilities or place subject to interception. 18 U.S.C. § 2518(1). Title III requires the applicant for an order to provide, “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c).

Title III authorizes the interception of wire, oral or electronic communications for a period up to, but not to exceed thirty (30) days. See 18 U.S.C. § 2518(5). The authorizing court may grant extensions of the original interception order but such extensions may not exceed thirty (30) days in duration. See id.

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DELAY IN OBTAINING SEAL REQUIRES SATISFACTORY EXPLANATION Section 2518(8)(a) provides, “[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” Title III provides and exclusionary rule for failure to comply with the sealing requirements of the statute. It states, “[t]he presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom…” 18 U.S.C. § 2518(8)(a). The purpose of the seal is to ensure that the government has no opportunity to edit or alter the recordings. See id. The government must provide a “satisfactory explanation” both for the complete absence of a seal and for a delay in obtaining the seal. See United States v. Ojeda-Rios, 495 U.S. 263-64 (1990).

WHEN A NEW ORDER IS CONSIDERED AN “EXTENSION” Because Title III’s sealing requirements is triggered by the expiration of the order or any extension thereof, the determination of whether s subsequent order is a new order or an extension of the first is critical to a determination of compliance with Title III’s sealing requirement. Accordingly, the court’s analysis begins with a determination of whether each subsequent order qualifies as an extension of the original. As a threshold matter a subsequent order must authorize surveillance of the same subject, at the same location, regarding the same subject matter as an earlier authorized surveillance in order to be considered an extension. See United States v. Carson, 969 F.2d 1480, 1488 (3rd Cir. 1992). In addition, the subsequent order must cover the same communication facility as the prior order to qualify as an extension of the first. See United States v. Ojeda-Rios 875 F.2d 17, 21 (2nd Cir. 1989), vacated and remanded on other grounds by 495 U.S. 257 (1990).

Though an extension need not be obtained prior to the expiration of the first order, a subsequent authorization qualifies as an extension of the earlier order only if the new authorization is obtained as soon as administratively practical or any delay is satisfactorily explained. See Carson, 969 F.2d at 1488.

Short administrative delays resulting from the process required to comply with the Title III are permissible. See id. Other gaps between original order and extension require an objectively reasonable and satisfactory explanation by the government. See id. Nonetheless, there is a temporal limit and some gaps – even those for which the government has an objectively reasonable and satisfactory explanation – are too long as a matter of law. For example, a subsequent Title III order entered seventeen (17) days after expiration of the first authorization is too long to qualify as an extension. If a subsequent order does not qualify as an extension of the original, then the court must designate the date of the original order as the effective date for sealing purposes. See id. at 1488. “…[n]ot all orders authorizing the surveillance of the same subject, at the same location, concerning the same criminal subject matter can be construed as ‘extension’ of a prior order governing similar surveillace…we hold that an order authorizing surveillance of the same subject, at the same location, regarding the same matter as earlier authorized surveillance, constitutes an ‘extension’ of the earlier authorization for purposes of § 2518(8)(a) if, but only if, the new authorization was obtained as soon as administratively practical or any delay is satisfactorily explained, i.e. is shown to have occurred without fault of bad faith on the part of the Government.”

IMMEDIATE SEALING Once the court has determined the effective date for each order and any extensions, it must next determine whether the government has complied with the immediate sealing mandate of Title III. The 54

requirement that the tapes be sealed immediately means that the tape should be sealed as soon as practical after the surveillance ends or as soon as practical after the final extensions order expires. See id. at 1491.

Generally sealing should not require more than one or two days at most. See United States v. Coney 407 F.3d 871, 873 (7th Cir. 2005). In the case of United States v. Matthews, 411 F.3d 1210, 1221 (11th Cir. 2005) the court noted: “Three circuits have held that the recordings are sealed ‘immediately upon the expiration of the period of the order’ if they are sealed within one or two days of the expiration. United States v.

McGuire, 307 F.3d. 1192, 1204 (9th Cir. 2002); United States v. Wilkinson, 53 F. 3d. 757, 759 (6th Cir. 1995); United States v. Wong, 40 F.3d. 1347, 1375 (2nd Cir. 1994)… we must give the term ‘immediately’ some meaning. That being the case, we agree with the 2nd, 6th, and 9th circuits that ‘within one to two days’ is a reasonable, workable interpretation of the term.”

Courts have found that the following delays do not meet Title III’s immediate sealing requirements and thus the government must provide a satisfactory explanation for the delay: (a) ten (10) days (see Coney, 407 F.3d at 871); (b) fourteen (14) days (see Carson, 969 F.2d at 1490; United States v.

Pedroni, 958 F.2d 262, 265 (9th Cir. 1992)); (c) five (5) calendar days, including an intervening weekend (see United States v. Pitera, 5 F.3d 624, 627 (2nd Cir. 1993); (d) one (1) or two (2) see United States v.

Matthews, 411 F.3d. 1210, 1221 (11th Cir. 2005)). The attorneys supervising this case did have the benefit of Coney and Matthews cases as well as the Ojeda-Rios and Carson cases. However, in the Monitoring instructions given by the Government attorney to the agents there is absolutely no reference to this fundamental requirement. See Attachment to Brief.

SATISFACTORY EXPLANATION If the results of surveillance under Title III are not sealed immediately, the government must provide a satisfactory explanation or the tapes are subject to exclusion. For an explanation of a delay in sealing to be “satisfactory” it must explain both why a delay occurred and why it is excusable. See OjedaRios, 495 U.S. at 265. The explanation proffered must have been “objectively reasonable at the time.” Id. at 267. Under Ojeda-Rios, a good-faith, objectively reasonable misunderstanding of what triggers sealing can constitute a satisfactory explanation for a delay. See id. 266-67. However, even an innocent mistake about the law will not excuse delay when unsupported by an objective reading of the extent of case law.

See Carson, 969 F.2d at 1492: “[T]herefore, the Government [must] explain not only why delay occurred but also why it is excusable…the excuse offered must be ‘objectively reasonable’ and must be the actual reason for the delay, ‘based on evidence presented and submissions made in the District Court, and ‘not merely a post-hoc rationalization.’”

In the instant case, the defendant can find no evidence of actual reasons for delay memorialized and catalogued by the Government at the time the delays were made. A government lawyer may not rely upon the advice of a supervisor, but rather has an affirmative duty to check the status of the law on admissibility of evidence in his case. See id.

In addition, to an objectively reasonable mistake of law, “an extraneous unforeseen emergent situation” may sometimes excuse the delay. Carson, 969 F.2d at 1487 (internal citations omitted). Even so, the government “must prove the actual reason for the sealing delay rather than an excuse for some ulterior purpose or administrative bungle.” United States v. Vastola. 989 F.2d 1318, 1323 (3rd Cir. 1993) (emphasis in original). Thus for example, a prosecutor’s routine duties, no matter how hectic, are not a satisfactory explanation for failing to comply with Title III immediate sealing requirement. See United States v. Quintero, 38 F.3d 1317, 1330 (3rd Cir. 1994).

55

INTEGRITY OF PROCESS COMPROMISED The fact that the statute contains its own exclusionary rule […shall be a prerequisite for the use or disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom…] makes the Government’s evidence derived as a result of the Title III interceptions like the biblical house built upon sand, the illegal foundation of the initial interception tainting all future interceptions, thereby destroying the foundation of the admissibility of any of the interceptions. The delay in sealing of the interception as a result of the May 22, 2007, Order, coupled with the absence of evidence of any sealing as a result of the September 11, 2007, Order from the Tennessee Judge, and the delay in sealing of the interceptions as a result of the October 22, 2007, Order by the Tennessee Judge, reflects a complete failure to comply with the immediacy requirements of 18 U.S.C. § 2518(8)(a), and undermines the integrity of the process that the intercepted material had not been altered or tampered with.

Additionally, as each illegal interception is predicated on information obtained from a prior illegal interception, the entire Title III interceptions must be suppressed.

Respectfully submitted, /s/ Attorney for Defendant State Bar No. ___________________ CERTIFICATE OF SERVICE

56

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH UNITED STATES OF AMERICA ) ) v. ) Case No. 1:19-CR- 133 ) JIMMY JOE. ) Defendant. ) DEFENDANT’S MOTION FOR FRANKS HEARING TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, defendant, JIMMY JOE, by and through undersigned counsel of record and moves this court to conduct a hearing pursuant to Franks v. Delaware,438 U.S. 154 (1978) and his pending Motion to Suppress, due to the case agent having misrepresented a fact in his affidavit to the Magistrate Judge.

I. Legal Standard The Fourth Amendment enshrines “[]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation . . . .” U.S. Const.

Amend. IV. “[W]hen the Fourth Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing . . . in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” Franks v. Delaware, 438 U.S. 154, 164-65 (1978) (internal quotations and citations omitted) (emphasis in original). “It is established law . . . that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter.” Id. at 165. “Because it is the magistrate who must determine independently whether there is probable cause, . . . it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or reckless false statement, were to stand beyond impeachment.” Id. “[W]here the defendant makes a substantial preliminary showing that a false statement 57

knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. at 155-56. At a Franks hearing, if the defendant establishes the affiant’s material false statement or reckless disregard of the truth by a preponderance of the evidence, the warrant “‘must be voided’ and evidence or testimony gathered pursuant to it must be excluded.” United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 2016) (quoting Franks, 438 U.S. at 156). A warrant that is held invalid under these circumstances “is not subject to the good-faith exception to the exclusionary rule pursuant to United States v. Leon, 468 U.S. 897, 923 (1984).” Id. That is because when an officer secures a warrant based on information known to be false, or in reckless disregard of the truthfulness or falsity of the information presented to demonstrate probable cause, he or she has by definition not acted in good faith. And such a person obviously cannot in good faith rely on the magistrate’s issuance of the warrant as an independent judicial finding of probable cause.

II. Analysis The first sentence of paragraph 31 of Agent Doe’s affidavit in support of the search warrant states, “As described above, an iCloud account can be accessed by any device that has internet access capability, including computers, laptops, and cell phones.” ECF No. 25, Def.’s Ex. 1 at 17. This statement is obviously false, and was obviously false at the time of the swearing. See Def. Ex. 1, Affidavit of Jayne Jolly. Now, though, the government has doubled down on materiality.

It scattered its Response pleading with this statement and even went so far as to say Joe has accepted this point. See ECF No. 32, Gov. Resp. in Opp. at 4, 8, 19, 23 (“The Defendant does not refute that the Defendant’s iCloud account can be accessed on any device capable of accessing the internet…”).

A non-exhaustive list of devices that are capable of accessing the internet, but not an iCloud account are as follows: • Credit card processing machines • Mail delivery devices • Check-in kiosks at the airport • Smart lightbulbs in the home • Home alarm systems • Smart car systems • Fitbit fitness watches • Medical devices • Smart doorbells • Basic Kindle • Smart lock systems • Smart air conditioning and heating systems • Smart dog collars • Amazon echo speaker • Nespresso smart coffee maker • Smart outlets • Smart washers and dryers 58

It’s clear that the government is heavily relying on this materially false statement to justify probable cause for the search of all of Joe’s devices. See ECF No. 32, Gov. Resp. in Opp. at 4, 8, 19, 23. Thus, this was a material misrepresentation made to the Magistrate Judge at the time Agent Doe swore out the warrant, and the evidence obtained pursuant to it should be suppressed.

Furthermore, and perhaps more importantly, if this is the assertion the government hinges its case upon—if it continues to maintain that the “iCloud account can be accessed on any device capable of accessing the internet,” then law enforcement did not have probable cause to any device that is not able to access the internet. Thus, at minimum, the contents of the Ironkey thumb drive and the Seagate back-up hard drive should be suppressed from the government’s use at trial, as those devices themselves are not capable of accessing the internet. See Def.’s Ex. 1, Affidavit of Jayne Jolly.

II. Conclusion For the foregoing reasons, and in light of the entire record—including the record to be developed at a hearing on this Motion—Mr. Joe respectfully requests that this Honorable Court enter an order suppressing the evidence seized from the electronic devices and any and all fruits of that search.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE

59

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § CRIMINAL NO. § 3:00-CR-442-R VS. § § MISSY DOGMA (3) § DEFENDANT MISSY DOGMA’S REQUEST FOR ADDITIONAL PEREMPTORY CHALLENGES (Rule 24 (b) Fed. R. Crim. Pro.) TO THE HONORABLE JERRY BUCHMEYER, UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION: COMES NOW, MISSY DOGMA, Defendant, by and through undersigned counsel, and files this her Request for Additional Peremptory Challenges pursuant to Rule 24(b) of the Federal Rules of Criminal Procedures.

I. ARGUMENT Since this is a case involving five defendants, the defendant requests additional peremptory challenges to be exercised separately in order to insure due process.

Respectfully submitted, /s/ Attorney for Defendant State Bar No. _______________ CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

60

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA v.

JOHN DOE (2)

§ § § § §

NO: 4:14-CR-000000

DEFENDANT JOHN DOE’S REQUEST TO SUBMIT A QUESTIONNAIRE TO THE HONORABLE UNITED STATES DISTRICT JUDGE AMOS L. MAZZANT: COMES NOW JOHN DOE, defendant, by and through undersigned counsel, and files the Request to Submit a Juror Questionnaire and respectfully requests the Court to submit the attached questionnaire to prospective jurors, (See Exhibit “A” attached hereto).

I. This is a case regarding allegations of Conspiracy to Manufacture and Distribute a Controlled Substance. Attached hereto is a proposed one (1) page juror questionnaire which the defendant is requesting be submitted to the prospective jurors in the instant case. It is respectfully submitted that the questions contained in the attached questionnaire are either biographical in nature or go directly to revealing potential prejudice. In addition, since the nation has recently experienced a pandemic as a result of the COVID-19 virus, this questionnaire is necessary to determine its effects upon jury service among the prospective jurors. The biographical questions are submitted in the form of a questionnaire in order to save the court time and resources. Furthermore, a questionnaire will help insure honest, private responses to pertinent questions in this case. Instead of the Parties having to repeat each biographical question to each juror over and over again, the questionnaire eliminates this problem. Furthermore, by submitting biographical questions to the jurors in the form of a questionnaire, this procedure assures that each juror is asked the same identical questions in the same fashion.

Regarding the questions, which are designed to reveal bias and prejudice, the Supreme Court has held that trial Judges have broad discretion over jury selection. Skilling v. United States, 130 S. Ct. 2896, 2917 (2010). In addition, Rule 24(a) of the Fed. R. Crim. Proc. Provides for attorney’s to “ask further questions that the court considers proper; or submit further questions that the court may ask if it considers them proper.” This questionnaire satisfies this rule. The case of United States v.

Ible, 630 F2d 389 (5th Cir. 1980) is also instructive: [W]hile federal rules of procedure 24(a) give wide discretion to the trial court, voir dire may have little meaning if it is not conducted at least in part by counsel. The “federal” practice of almost exclusive voir dire examination by the court does not take into account the fact that it is the parties, rather that the court, who have a full grasp of the nuances and the strength and weaknesses of the case. Peremptory challenges are worthless if trial counsel is not afforded an opportunity 61

to gain the necessary information upon which strikes…Experience indicates that a majority questioning by counsel to be more likely to fulfill exclusive examination in general terms by the trial (emphasis added).

to case such of situations the need than court.” Id. 395

Counsel respectfully submits that the following criteria be given weight in deciding this important issue: 1.

The questionnaire is a less threatening or intimidating way to question the jurors; 2.

The questionnaire is the best way to deal with confidential or sensitive issues;

3.

There is a focus on areas of concern regarding potential challenges for cause;

4.

It can identify pre-trial publicity without tainting the panel;

5.

The defense will work with the prosecution to formulate the ultimate questions; and

6.

It will SHORTEN the voir dire.

For the foregoing reasons, it is respectfully requested that this Court submit the attached Questionnaire in its entirety to prospective jurors in order to save court time and to assure the revelation of potential bias or prejudice.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700

CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

62

EXHIBIT A

63

64

65

66

67

68

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA Plaintiff, -vsJOHN DOE, Defendant. ______________________________

} } } } } } }

CASE NO: 4: 1000 (Judge Means)

JOHN DOE’S MOTION FOR SPECIFIC INQUIRY OF PROSPECTIVE JURORS John Doe, by and through his undersigned counsel, pursuant to Federal Rule of Criminal Procedure 24(a), respectfully requests that this Court permit counsel to conduct the following inquiry of prospective jurors. In support of this motion, counsel would show the following: 1.

It is the government’s contention that John Doe distributed hundreds of kilos of cocaine and one thousand of pounds of marijuana in Louisiana and Mississippi. Evidence will be presented that Doe was a contractor who restored homes in Shreveport and raised pit bulls on property adjacent to his home. It is expected that the government will claim that John Doe concealed money and drugs on the property where he raised the dogs and that he used the properties he restored and the dogs he raised to facilitate his unlawful conduct. The government may seek to admit evidence that at the time of John Doe’s arrest the police found two handguns in his residence. (These weapons were lawfully possessed). The government will offer evidence that John Doe deposited $100,000 or more in cash into various bank accounts over a four or five year period. The government will seek to introduce this evidence under a theory of unexplained wealth. The government will also seek to introduce evidence that John Doe raced cars to show payments in cash and unexplained wealth. Finally, the government alleged in the indictment and may introduce evidence at trial that John Doe was referred to by some individuals as “Good.”

2.

Counsel requests permission to ask the following questions of prospective jurors.

(1) Does anyone have any experience with pit bulls.

(2) Does anyone have an opinion about pit bulls.

(3) Does anyone have an opinion about people who own pit bulls.

(4) Does anyone have an opinion about people who raise dogs for sale.

(5) Does anyone own a gun.

(6) Does anyone have any strong opinions about gun ownership.

(7) Has anyone ever remodeled a home.

(8) Has anyone ever hired someone to do work on a home.

(9) Has anyone ever paid cash for a service.

(10) Does anyone have an opinion about people who pay cash for a service.

(11) Does anyone have an opinion about people who keep their saving at home and not in a bank.

(12) Does anyone have a nickname.

69

(13) Does anyone know someone who has a nickname.

(14) Does anyone have any opinion about people who have nicknames.

(15) Has anyone watched live broadcasts of criminal trials on TV. MEMORANDUM OF LAW Federal Rule of Criminal Procedure 24(a)(1) authorizes the District Court to permit the attorneys for the parties to examine prospective jurors. Alternatively, Federal Rule of Criminal Procedure 24(a)(2) authorizes the Court to permit counsel to submit questions for the Court to pose to prospective jurors. As the Supreme Court recently reaffirmed in Skilling v. United States, ___U.S.___, 130 S.Ct. 2896, 2917 (2010), “No hard-and-fast formula dictates the necessary depth or breath of voir dire. Jury selection, we have repeatedly emphasized, is ‘particularly within the province of the trial judge.’”

To the extent that the purpose of voir dire is to determine whether jurors can render a verdict solely upon the basis of the evidence presented, we believe that the questions suggested herein will assist in the process by helping the court to uncover any prejudices a juror might have.

Respectfully submitted, /s/ Attorney for Defendant State Bar No. ________________ CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE ORDER

70

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA § § V. § CRIMINAL NO. § 01:08XXXXXXXXXX JOHN DOE (3), ET. AL.

§ DEFENDANT’S FIRST MOTION IN LIMINE AND INCORPORATED BRIEF

TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: COMES NOW, JOHN DOE, by and through undersigned counsel and moves this Honorable Court to order the prosecuting attorneys and the government witnesses not to mention, allude to, or refer to, in any manner, any extrinsic acts, prior convictions, alleged violations of the law or other crimes, wrongs or acts generally alleged to have been committed by Defendant in particular the pending money laundering indictment in Memphis Tennessee, in the presence of the jury until a hearing has been held outside they jury until a hearing outside the presence of the jury to determined the admissibility of such items Said extrinsic acts, and any prior convictions of alleged violations of the law include, but are not limited to: 1.

Any alleged acts of criminal wrongdoing by the Defendant not alleged in the indictment.

2.

Any alleged prior convictions for any criminal offense until such alleged prior conviction is shown to be admissible in this trial.

3.

Any alleged involvement in any offense not alleged in the indictment.

4.

Any reference to any Defendant or the actions alleged in this indictment being subject to any investigation by any other law enforcement agency.

Rule 401, Federal Rules of Evidence, states: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.

Rule 402, Federal Rules of Evidence, states in part: ...Evidence which is not relevant is not admissible.

Rule 403, Federal Rules of Evidence, states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or, needless presentation of cumulative evidence.

Rule 404, Federal Rules of Evidence, states in part: (a)

Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith or a particular occasion.

(b) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity 71

therewith. It may, however be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The government’s argument that the aforementioned remote prior convictions are “intrinsic” is without merit. The 4th Circuit case of United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994) is clearly distinguishable from our case. Our case involves dissimilar offenses and convictions, which are far more remote than the one to two year time difference in the Kennedy case. The remote convictions involving your defendant during his teen and early twenty years in the state of Minnesota, do not provide any context for the charged offense since the priors involve simple possession charges while the instant case involves a drug distribution conspiracy. Lastly, said priors do not aid the jury in understanding how the defendant obtained drugs—all issues advanced by the government in support of its position.

For extrinsic acts to be relevant to an issue other than character, they must be shown to be offenses and also they must be similar to the charged offense. United States v. Guerrero, 650 F.2d 728, 733 (5th Cir. 1981). See also United States v. Garcia Orozco, 997 F.3d 1302 (9th Cir. 1993), where evidence of defendant’s arrest for possession with intent to distribute heroin was irrelevant in present prosecution for possession with intent to distribute marijuana. The extrinsic evidence, including the money laundering allegations, in our case is dissimilar as well. In addition, the prior convictions are too remote. The remoteness of the extrinsic acts evidence weakens its probative value. See United States v.

Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996).

The Court must follow the Beechum test to determine the admissibility of extrinsic evidence.

United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). First, the Court must determine that the extrinsic offense evidence is relevant to an issue other than the Defendant's character, i.e., motive, opportunity, intent, preparation, and the like. The second step is that "the evidence must possess probative value that is not substantially outweighed by its undue prejudice" and must meet the other requirements of Rule 403, Federal Rules of Criminal Procedure. To determine whether probative value extrinsic offense evidence substantially outweighs any possible unfair prejudice, courts must make common-sense assessments of relevant circumstances surrounding extrinsic evidence, considering such factors as (1) the extent to which the defendant’s unlawful intent is established by other evidence; (2) the overall similarity of the extrinsic and charged offenses and (3) how much time separates the extrinsic and charged offenses. United States v.

Adair, 436 F.3d 520 (5th Cir. 2006), cert denied, 126 S.Ct. 2306. Other Circuits also recognize the remoteness issue as well. See United States v. Van Horn, 277 F.3d 48 (1st Cir. 2002); United States v.

Jourdain, 433 F.3d 652 (8th Cir. 2006). granted.

WHEREFORE, PREMISES CONSIDERED, Defendant prays this motion be in all things Respectfully submitted, /s/ Attorney for Defendant State Bar No.____________________ CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

72

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA

§ § § § § §

V. JOHN DOE (3), ET. AL.

CRIMINAL NO. 01:08XXXXXXXXXXX

DEFENDANT'S SECOND MOTION IN LIMINE AND INCORPORATED MEMORANDUM OF LAW COMES NOW, the defendant, Dr. Doe, and hereby moves this Honorable Court in Limine, as follows: 1. The indictment filed in this cause contains allegations that the doctor's licensed to practice medicine was suspended by the State of Texas from 7/2/2014 through 1/3/2015.

2. Based upon this allegation, it is reasonable to conclude that the government intends to elicit evidence to this effect from one or more witness during the trial in this cause.

3. The status of Dr. Doe's license as alleged in the indictment is not probative of any issue in the government's case.

4. Evidence suggesting that the State of Texas felt compelled to suspend Dr. Doe’s license would be highly prejudicial, and would greatly outweigh any probative value.

The issue regarding the client's license suspension should be treated like any other "other bad acts" case.

Determinations in these matters are similar to those in instances where the government attempts to admit evidence regarding other criminal acts they are attributing to the Defendant. Evidence of extrinsic misconduct is generally not admissible at trial. It can be admitted only upon showing that certain exceptions contained in Fed.R.Evid. 404(b) are met. The test for the admissibility of extrinsic act evidence is whether the evidence is relevant to an issue other than defendant's character and whether its probative value is outweighed by its prejudicial effect. United States vs. Chilcote, 724 F.2d 1498, (llth Cir. 1984). Under Rule 403, the trial judge is to weigh the probative value of the evidence against the danger of unfair prejudice, confusion, misleading the jury, or undue delay or waste of time. United States vs. Beechum, 582 F.2d 898 (5th Cir. 1978).

The common characteristic must be the "significant one for the purpose of the inquiry at hand." Beechum, supra. For example, if the relevant issue is intent, the acts must require similar states of mind. United States vs. Williford, 764 F.2d 1493 (llth Cir.1985), citing United States vs.Guerrero, 650 F.2d 728 (5th Cir. 1981) Going to the facts of this case, it is obvious that except for the issue of the character of the Defendant, the status of his license to practice medicine has no relevance. The government alleges only two acts which even occurred within the time frame of the suspension. The government's theory is that Dr. Doe had unlicensed technicians and others perform services that could only be performed by a licensed medical doctor. There is no indication that the government intends to try and establish that Dr. Doe personally performed services while his license was suspended. There is no characteristic common to the fraud 73

charges and the license suspension which would permit the government to admit such evidence under 404. Notwithstanding, if the Court were to permit such evidence to be admitted, the prejudicial effect on Dr. Doe would be considerable, and would far outweigh the probative value, if any.

WHEREFORE, on behalf of our client, we move this Honorable Court to prohibit the introduction by the government of any evidence or testimony regarding the suspension of his license to practice medical by the State of Texas.

Dated this___ day of September, 1995.

Respectfully submitted, /s/ Attorney for Defendant State Bar No.____________________ CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

74

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA

§ § § § § §

V. JOHN DOE (3), ET. AL.

CRIMINAL NO. 01:08XXXXXXXXXX

DEFENDANT’S MOTION TO PRECLUDE IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR CONVICTIONS TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: Defendant, by and through, undersigned counsel, respectfully moves this Honorable Court for an Order precluding the Government from impeaching him should he testify at trial. In support of this motion, Defendant submits the following: Federal Rule of Evidence 609 provides, inter alia, that “evidence that an accused has been convicted of …a crime [punishable by death or imprisonment in excess of one year] shall be admitted if the court determines that the probative value of admitting this evidence outweighs the prejudicial effect of the accused.” Fed. Rule Evid.

609(a)(I). The Rule also provides that “evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.” Fed. Rule Evid. 609 (a)(2). Under Rule 609(a)(I) “the prosecution must show that the probative value of a prior convction outweighs the prejudice to the defendant.” United States v. Lipscomb, 702 F.2d 1049 (D.C. Cir. 1983). In this case, the Government cannot make the requisite showing with respect to Defendant’s prior convictions.

Respectfully submitted, /s/ Attorney for Defendant State Bar No. _________________

CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE

75

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA § § V. § CRIMINAL NO. § 01:08XXXXXXXXXXX § JOHN DOE (3), ET. AL.

§

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO PRECLUDE IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR CONVICTIONS TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: In United States v. Fearwell, 595 F.2d 771 (D.C. Cir. 1978), the D.C. Circuit admonished that, “Rule 609(a)(2) is to be construed narrowly; it is not carte blanche for admission on an undifferentiated basis of all previous convictions for purposes of impeachment; rather, precisely, because it involves no discretion on the part of the trial court in the sense that all crimes meeting its stipulation of dishonesty or false statement must be used for impeachment purposes, Rule 609(a)(2) must be confined…to a ‘narrow subset of crimes’—those that bear directly upon the accused’s propensity to testify truthfully.” Id., at 777, citing United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976) (emphasis in original). In Defendant’s case, his conviction has no bearing upon his propensity to testify truthfully.

In Smith, the D.C. Circuit explained that “[b]y the phrase ‘dishonesty and false statement’ the [Congressional Conference Committee] means no crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.” 551 F.2d at 362, citing H.R. Conf. Rep. No. 9301597, 93d Congo Sess. 9, reprinted in [1974] U.S. Code Congo & Admin. News, pp. 7098, 7103. Further the Smith court noted that even an offense that does not per se bear on credibility may be used to impeach if “the prosecutor has first demonstrated to the court the underlying facts which warrant the dishonesty or false statement description.” Id., at 364. It is the Government’s burden to “produc[e] fact[s] which demonstrat[e] that the particular conviction involved fraud or deceit.” United States v.

Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982), citing United States v. Smith, 551 F.2d 364.

In Defendant’s case the Government has produced no information suggesting that the offenses for which he has been convicted involved fraud or deceit. The D.C. Cirucit has held that the Government bears “the burden of proof in establishing the admissibility of [a] prior conviction[].” United States v. Crawford, 613 F.2d 1045, 1053 (D.C. Cir. 1979) (citations omitted). This Court should not allow the Government to impeach Defendant with his prior conviction absent an “inquiry into the nature and circumstances” of the conviction. Id., at 1053.

WHEREFORE, for all the foregoing and any others which may appear to this Court in a full hearing on this matter, Defendant respectfully requests that the government not me be permitted to impeach him under Federal Rule of Evidence 609 with his prior conviction.

Respectfully submitted, /s/Michael P. Heiskell Attorney for Defendant State Bar No. _____________________ CERTIFICATE OF SERVICE

76

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

UNITED STATES OF AMERICA v.

§ § § § §

Cause No.

MOTION TO PERMIT JURY TO DECIDE CRIMINAL FORFEITURE [Apprendi v. New Jersey and the 6th Amendment Right to Jury Trial] TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW ___________________, Defendant in the above-entitled and numbered cause, by and through undersigned counsel, and respectfully submits this Motion to permit the jury to decide the question of forfeiture as alleged in the indictment. In support of same, Defendant would respectfully show this Honorable Court the following: The Defendant is accused of money laundering under sections 1956 and 1957 of the United States Code. The indictment in this cause gives notice of the Government’s intention to forfeit property pursuant to 18 U.S.C. § 982 and Federal Rule of Criminal Procedure 32.2. The Defense contends that the question of whether or not the assets listed in the indictment are subject to criminal forfeiture is a question for the jury, and that the Government may not forfeit the Defendant’s property without proving to that jury beyond a reasonable doubt that the subject properties were involved in the offense or traceable to property involved in the offense. See Apprendi v. New Jersey, 530 U.S. 466 (2000); see, e.g., United States of America v. GarciaGuizar 160 F.3d 511, 519 (9th Cir. 1998) (acknowledging that the jury considers the forfeiture question, albeit under the lesser preponderance of the evidence standard); United States v.

Pelullo, 14 F.3d 881, 902 (3d Cir. 1994) (holding that the beyond a reasonable doubt standard is appropriate for criminal RICO forfeitures).

The principal basis for rejecting the right to a jury verdict beyond a reasonable doubt on the issue of criminal forfeiture stems from the Supreme Court’s holding in Libretti, which declined to extend Sixth Amendment protections to the issue of forfeiture: Federal Rule of Criminal Procedure 31(e) provides that, ‘if the indictment or the information alleges that an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any.’ [Appellant] would have us equate this statutory 77

right to a jury determination of forfeitability with the familiar Sixth Amendment right to a jury determination of guilt or innocence. . . .Without disparaging the importance of the right provided by Rule 31(e), our analysis of the nature of criminal forfeiture as an aspect of sentencing compels the conclusion that the right to a jury verdict on forfeitability does not fall within the Sixth Amendment’s constitutional protection.

Libretti v. United States, 516 U.S. 29, 48-49 (1995). Critical to the Court’s conclusion in Libretti is the premise that Apprendi’s holding that the 6th Amendment requires a jury determination beyond a reasonable doubt only applies to an increase in punishment beyond a specified range, however, forfeiture has historically been construed as having no previously specified range.

United States v. Stevenson, 834 F.3d 80, 86 (2d Cir. 2016). The merits of this argument fall deeper into question with each passing decade. See Southern Union Co. v. United States, 132 S. Ct. 2344, 2350 (2012) (“thus, while judges may exercise discretion in sentencing, they may not ‘inflic[t] punishment that the jury’s verdict alone does not allow.’” (quoting Blakely v.

Washington, 542 U.S. 296, 304 (2004))); Timbs v. Indiana, 139 S. Ct. 682 (2019) (holding that the Excessive Fines Clause of the Eighth Amendment applies to civil in rem forfeitures and applies to the states via the Fourteenth Amendment).

Moreover, just last term Justice Gorsuch recognized that “[t]oday’s civil laws regularly impose penalties far more severe than those found in many criminal statutes,” including forfeiture provisions. See Sessions v. Dimaya, 138 S. Ct. 1204, 1229 (2018), Gorsuch, J., concurring.

“Today’s civil laws regularly impose penalties fat more severe than those found in many criminal statutes. Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Todays ‘civil’ penalties include confiscator rather compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes – and often harsher than the punishment for felonies. And not only are ‘punitive civil sanctions… rapidly expanding,’ they are ‘sometimes more severely punitive than the parallel criminal sanctions for the same conduct.’” (emphasis supplied) Sessions v. Dimaya, 138 S. Ct. 1204, 1229 (2018). See also: Mann. Punitive Civil Sanction: The Middleground Between Criminal and Civil Law, 101.

Criminal forfeiture is, without question, a form of punishment. Libretti, 516 U.S. at 99. See also United States v. Peters, 732 F.3d 93, 101 (2d Cir. 2013) [“Criminal forfeiture is a form of punishment.”].

When the Supreme Court has considered the application of Apprendi to other forms of monetary punishment, the conclusion has been that such punishments merit implementation only upon a finding beyond a reasonable doubt by a jury. See Southern Union Co., 567 U.S. at 78

352 (“where a fine is substantial enough . . . Apprendi applies in full.”). It appears that the Supreme Court is also poised to extend Apprendi’s protections to other forms of financial punishment. Hester v. United States, 139 S. Ct. 509, 510 (2019) (Gorsuch, J, joined by Sotomayor, dissenting from the denial of certiorari) (In considering the issue of restitution, “it’s hard to see why the right to a jury trial should mean less to the people today than it did to those at the time of the Sixth and Seventh Amendments’ adoption.”).

This Honorable Court should afford the Defendant his Sixth Amendment right to insist that the Government prove any and all essential elements of the criminal forfeiture beyond a reasonable doubt, and that said issues be submitted to the jury. Accordingly, undersigned would respectfully submit Defendant’s following proposed instructions on the issue of forfeiture to the jury in this cause: Defendant’s proposed instruction No. 1: You have found (name) guilty of (state the offense(s)), as charged in Count(s) (No.) of the indictment. You now need to consider a special verdict concerning property that the indictment alleges is subject to forfeiture by (name) to the government. Forfeiture means that (name) would lose any ownership or interest (he) (she) has or claims to have in the specified property, as a part of the penalty for engaging in criminal activity. I instruct you that you are bound by your previous finding that (name) is guilty of (state the offense(s)). Under federal law, any person convicted of (state the offense(s)) shall forfeit to the government any property that is the proceeds of the offense, any property that was derived from the proceeds of the offense, and any property that was used or was intended to be used to commit or to facilitate the commission of the offense.

Your concerns in deciding whether property is subject to forfeiture are (1) whether the government has proven the required connection between the property and the offenses; and (2) whether the accused has an interest in the property by proof beyond a reasonable doubt.

Count (no.) allege(s) that (describe the particular property alleged to be subject to forfeiture) should be forfeited because of the connection between this property and (name’s) commission of (state offense(s) asserted as the basis for forfeiture). [Describe as to each count for which there has been a conviction, the specific property alleged to be subject to forfeiture.].

This property is subject to forfeiture if you find that the government has proved beyond a reasonable doubt the Defendant’s interest in the property and either:13 First: That the property is or was derived from any proceeds (name) obtained, directly or indirectly, as a result of the offense(s) for which you have found (him) (her) guilty; or Second: That the property was used, or was intended to be used, in any manner or part, to commit or to facilitate the commission of an offense(s) for which you have found (name) guilty.

Property is “proceeds” of a controlled substance offense if the property was obtained directly or indirectly, as a result of the offense. Property “was derived” from the proceeds of a controlled substance offense if the property was obtained, directly or indirectly, using money or any other source of wealth gained as a result of the commission of the offense. Property that “was used, or was intended to be used, in any manner or part, to commit or to facilitate the commission of an offense” means property that makes the commission of the offense easier or which is used to assist in the commission of the offense. This includes, but is not limited to, 79

property that is used or intended to be used to purchase, manufacture, transport, store, conceal, or protect the controlled substances used in the offense, or the persons committing the offense. Property that was used or was intended to be used to commit or facilitate the offense is subject to forfeiture even if only a portion of it was so used, or if it was also used for other purposes.

You may, but are not required to, find that the property is subject to forfeiture if you find that the government established beyond a reasonable doubt: (1) that the property was acquired by (name) during the time period when (name) was committing the offense(s) for which you have found (him) (her) guilty, or within a reasonable time after the commission of that (those) offense(s), and (2) that there was no likely source for the property other than the offense(s) for which you have found (name) guilty.

In making this determination, you should consider all of the evidence presented on the subject during this proceeding and during the trial, regardless of who offered it. All of my previous instructions continue to apply, and you should evaluate the evidence and its credibility according to the instructions I gave you earlier. A Special Verdict Form has been prepared for your use. With respect to each item of property, you are asked to decide whether it is subject to forfeiture to the government, based on the reasons I have explained to you. Your decision must be unanimous. Indicate on the verdict form whether you find that the property listed is subject to forfeiture, and then the foreperson should sign and date the form.

80

SPECIAL VERDICT FORM We, the Jury, return the following Special Verdict as to the defendant (name’s)interest in each item of property alleged in Count(s) (insert count number(s)) to be subject to forfeiture by (name) to the United States: (Insert dollar amount in United States currency and description of real property or other tangible or intangible personal property as alleged in indictment.)

Do you unanimously find beyond a reasonable doubt that this property is subject to forfeiture?

YES _ NO _ This _________________day of _____________________, 20 _.

X_________________________________________ Foreperson

WHEREFORE, PREMISES CONSIDERED, Defendant prays this Honorable Court to grant his requested instruction.

Respectfully Submitted, /s/ Gerald H. Goldstein Gerald H. Goldstein State Bar No. 08101000 Goldstein, Goldstein, Hilley, & Orr 310 S. St. Mary’s Street 29th Floor – Tower Life Bldg.

San Antonio, Texas 78201 (210) 226-1463 (210) 861-1900 (cell phone) (210) 226-8367 (telecopier)

81

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA v.

JOHN DOE (2)

§ § § § §

NO: 4:14-CR-000158-ALM-CAN

DEFENSE MOTION AND BRIEF FOR JUDGMENT OF ACQUITTAL RULE 29 (a) AND (c), FED. R. CRIM. PROC. LEGAL PROVISIONS INVOLVED [T]he court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.

Rule 29(a), Federal Rules of Criminal Procedure (emphasis added) [T]he standard of proof beyond a reasonable doubt… “plays a vital role in the American scheme of criminal procedure,” because it operates to give “concrete substance” to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude as to the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself….

The Winship doctrine requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts of evidence…. Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt…. [W]hen such a conviction occurs…., it cannot constitutionally stand.

After Winship, the critical inquiry on review of the sufficiency of evidence to support a criminal conviction must be not simply whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 315-19 (1979) (quoting In re Winship, 397 U.S. 358 (1970))

INTRODUCTION Nearly 37 years ago, in its seminal decision in Jackson v. Virginia, 443 U.S. 307, 317-18 (1979), the Supreme Court recognized that “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt…. [W]hen such a conviction occurs…., it cannot 82

constitutionally stand.” Not surprisingly, Jackson’s constitutional imperative is embodied in Federal Rule of Criminal Procedure 29(a) itself, which provides that a district court “must enter a judgment of acquittal on any offense for which the evidence is insufficient to sustain a conviction.”

The evidence adduced at trial in this case was woefully insufficient on the key element of Mr. Doe’s intent to willfully join in the conspiracy alleged in this single count indictment in order to prove his guilt beyond a reasonable doubt.

The record reflects (1) a glaring absence of evidence that Mr. Doe possessed the requisite mental state to commit this offense, and (2) the government’s theory of Mr. Doe’s criminality being dependent on conjecture and speculation.

Why then did the jury convict John Doe on Count One? As the Court knows, there are many reasons why a jury might improperly render a “guilty” verdict in the face of patently insufficient evidence. This risk of an invalid conviction merely increases where, as here, the defendant had previous administrative sanctions for somewhat similar conduct in evidence against him, and surrendered his pharmacist license when confronted by government agents. Ultimately, however, the Court’s task in adjudicating Mr. Doe’s Rule 29 motion is not to ascertain why the jury rendered a verdict for which the evidence was constitutionally insufficient. Instead, the Court’s sole task is to undertake an independent review of the trial record and to determine, as a matter of law, whether it was constitutionally sufficient to prove Mr. Doe’s guilt beyond a reasonable doubt. See, e.g., United States v. Baker, et al., 544 F. Supp. 2d 522, 529-32 (E.D. La. 2008) (Duval, J.) (vacating jury’s verdict and granting defendant Walter Tardy’s motion for judgment of acquittal), 16See also United States v. Harris, 666, F.3d 905, 907 (5th Cir. 2012) (holding that an appellate court reviews de novo a district court’s decision on a defendant’s Rule 29 motion).

As demonstrated below, the evidence adduced at trial was constitutionally insufficient to prove John Doe’s guilt on Count One beyond a reasonable doubt. Indeed, the defense respectfully submits that, when the trial record is subjected to a careful review, it is clear that the Government does not have a colorable argument in support of the evidentiary sufficiency of its case as it related to the requisite mental state that must be proven beyond a reasonable doubt.

This memorandum of law proceeds as follows: PART ONE summarizes the essential elements of the offense as articulated in the Court’s final instructions to the jury.

PART TWO discusses the standard of review applicable to a defendant’s Rule 29 motion.

PART THREE addresses the evidence at trial with respect the culpable mental state.

PART FOUR then compares the record evidence in this case to federal appellate decisions adjudicating a defendant’s Rule 29 motion. When this comparative analysis is undertaken, entry of a judgment of acquittal is the only outcome consistent with the record and governing law.

In Baker, the government initially appealed the Court’s post-verdict judgment of acquittal but then voluntarily dismissed its appeal a few days before its opening brief was to the Fifth Circuit.

16

83

PART ONE: THE OFFENSE ELEMENTS Because the Court is familiar with its final charge to the jury, the defense will not engage in an extended discussion of the essential elements of the offense. Nevertheless, a brief review of those elements – each of which the Government bore the burden of proving with evidence beyond a reasonable doubt – provides a useful starting point for the balance of this memorandum.

The Court charged the jury that, in order to convict Mr. Doe on Count One, it was required to find that the Government had proven three essential elements beyond a reasonable doubt: First: That two or more persons, directly or indirectly, reached an agreement to distribute or dispense, or to possess with the intent to distribute or dispense, specifically Hydrocodone, outside the usual course of professional practice or not for a legitimate medical purpose; Second: That the defendant knew of the unlawful purpose of the agreement; and Third: That the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose.

It is noteworthy that each of the required elements contain the required culpable mental states to act in a conspiracy to violate the law. The First element refers to the agreement to possess with intent…” The Second element contains the culpable state of knowledge of “the unlawful purpose of the agreement.” The Third element addresses the mental state of acting “unlawfully”… with the intent to further its unlawful purpose.” (emphasis added).

The Court’s instructions further included the definition of “Knowingly” – To Act, as well as “Willfully” – To Act, to assist the trier of fact. These instructions encapsulates the requirement that the government adduce sufficient, substantial evidence that Mr. Doe purposely, with a specific intent to violate the law, entered into an agreement with two individuals to unlawfully dispense and distribute hydrocodone. The government in its opening statements, final arguments, and oral arguments to rebut the Rule 29 motions, repeatedly assert that Mr. Doe’s “confessions,” coupled with his relinquishment of his pharmaceutical licenses is overwhelming evidence of guilt. The government further asserts that the testimony of co-defendant, Remossive Lewis, is additional compelling evidence on the issue of the defendant’s culpable mental state.

As will be addressed more thoroughly in PART THREE of this memorandum, the reliance on such evidence is misguided and misplaced. The Government’s evidence included and is riddled with inferences. Mr. Doe’s written statement to Investigator Jones of the Texas State Board of Pharmacy reflected Mr. Doe’s lack of knowledge of the unlawful agreement. Special Agent Dunn’s testimony revealed two misrepresentations by Mr. Doe regarding his presence, or lack thereof, at the pharmacy during critical operating hours. Dunn also testified that Mr. Doe was aware that his co-defendant “Dr. Sammie Lewis” was not licensed in Texas and that neither 84

Sammie Lewis’ nor Remossive Lewis’ required licenses were displayed in the pharmacy. When asked by Dunn why he turned over the pharmacy to two unlicensed individuals, Mr. Doe replied that he was having problems getting the pharmacy off the ground and that he needed to work at Parkland Hospital. However, these statements and admissions fall far short of confessing to participation in the charged conspiracy. Mr. Doe’s statements are confessions to administrative violations which prompted him to surrender his license for such administrative violations.

Remossive Lewis testified that there was a written agreement between “Dr. Lewis” and Mr. Doe. However, no such agreement was ever produced by the government. She further testified that Mr. Doe would coach Lewis and others on the mixture of certain drugs. She was not present when Lewis and Mr. Doe first met and was unaware of what conversations took place between them at the time. She admitted that she and Lewis received the monetary proceeds from the pharmacy. Indeed, she was the lone signatory on the Capital One bank account (the Accent Pharmacy bank account) and that Lewis directed her as to who and what to pay from said account. She has also agreed to forfeit the luxury autos purchased with the proceeds, and cash seized from the Capital One account. There was no evidence adduced from her that Mr. Doe received any proceeds from this venture. Indeed, the Government failed to directly connect Mr. Doe with any proceeds or financial gain from the operation of the pharmacies. The Government was required to prove the requisite mental states with evidence, not through conjecture, speculation, or piling inference upon inference or by working backwards from the assumption that Mr. Doe is guilty. See, e.g., Evans–Smith v. Taylor, 19 F.3d 899, 910 (4th Cir. 1994) (“To start with the assumption that the crime was committed and then to show that each piece of circumstantial evidence can be explained in a consistent manner is fundamentally different from examining each piece of evidence and finally concluding beyond a reasonable doubt the defendant was guilty.”) The Government failed to satisfy its burden and Mr. Doe is thus constitutionally entitled to a judgment of acquittal.

PART TWO: THE STANDARD OF REVIEW The Due Process Clause requires the government to present evidence sufficient to prove each element of a criminal offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1979); U.S. Const. Amend. V; In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”). “The Standard of proof beyond a reasonable doubt plays a vital role in the American scheme of criminal procedure, because it operates to give ‘concrete substance’ to the presumption of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding… [T]he standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself.” Jackson, 443 U.S. at 315, quoting Winship, 397 U.S. at 363 and 372 (Harlan, J., concurring). The “virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions…reflect[s] a profound judgment about the way in which law should be enforced and justice administered.” Winship, 397 U.S. at 361-362, quoting Duncan v. Louisiana, 391 U.S. 145, 155 (1968); see also Winship, id. at 372 (Harlan, J., concurring) (‘I view the requirement of proof beyond a reasonable doubt in a criminal case as

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bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”).

In Jackson, the Supreme Court held that “[a]fter Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Id. at 318-319. The sufficiency standard thus requires the trier of fact to apply the “fundamental substantive constitutional standard” rationally to the facts in evidence.” Id. Further, “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt.” Id. However, “[u]nder Winship, which established proof beyond a reasonable doubt as an essential to due process,” when such a conviction occurs…, it cannot constitutionally stand.” Id. at 317-318. And “Winship presupposes as an essential of the due process guaranteed by the Fourteenth [and Fifth] Amendment[s] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof – defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Id. Criminal convictions are supported by sufficient evidence “if a reasonable trier of fact could conclude that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the jury’s verdict and drawing all reasonable inferences from the evidence to support the verdict.” United States v. Mmahat, 106 F.3d 89, 97 (5th Cir. 1997), cert. denied, 522 U.S. 977 (1997); United States v. Lewis, 476 F.3d 369, 377 (5th Cir. 2007); United States v. Fountain, 277 F.3d 714, 717 (5th Cir. 2001); United States v.

Cuellar, 478 F.3d 282, 287 (5th Cir. 2007); United States v. Harris, 477 F.3d 241, 244 (5th Cir. 2007). On a defendant’s motion for a judgment of acquittal, the question for the court is whether the evidence adduced at trial, when viewed in the light most favorable to the government, was “sufficient to permit a reasonable jury to conclude beyond a reasonable doubt that” the defendant committed the offense charged in the indictment, Regalado Cuellar v. United States, 553 U.S. 550, 568 & n.8 (2008) (reversing conviction for money laundering because, “[a]lthough … the [g]overnment introduced some evidence regarding the effect of transporting illegally obtained money to Mexico, the [g]overnment has not pointed to any evidence in the record from which it could be inferred beyond a reasonable doubt that petitioner knew that taking the funds to Mexico would have had one of the relevant effects” (italics added)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“[T]he inquiry involved in ruling on a motion for summary judgment or for directed verdict necessarily implicated the substantive evidentiary standard of proof that would apply at the trial on the merits…. [Thus, on] a motion for acquittal in a criminal case, where the beyond-a-reasonable-doubt standard applies[,] … the trial judge asks whether a reasonable jury could find guilt beyond a reasonable doubt.”).

In reviewing the trial record for evidentiary sufficiency, “[a]ll evidence is considered, not just that supporting the verdict ….” United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001); see United States v. Richards, 204 F.3d 177, 206 (5th Cir. 2000) (explaining that the court must “consider ‘the countervailing evidence as well as the evidence that supports the verdict” (quoting United States v. Brown, 186 F.3d 661, 664 (5th Cir. 1999)). Thus, if exculpatory evidence is adduced during the prosecution’s case-in-chief, that evidence must be considered, even though it 86

militates against guilt. See Evans-Smith, 19 F.3d at 909 n.29 (“Favoring the prosecution with all inferences does not mean that [the court] must ignore evidence that is in the record, but which [the prosecution] ignore[s].”). In addition, where, as here, the defendant exercised his right to present a defense, the reviewing court’s sufficiency analysis must take into account the evidence adduced during the defendant’s case-in-chief as well. 17See United States v. White, 611, F.2d 531, 536 (5th Cir. 1980) (holding that, “[i]f a defendant renews his motion for judgment of acquittal at the end of all evidence,” the court is required “to examine all the evidence rather than to restrict its examination to the evidence presented in the [g]overnment’s case-in-chief”) This includes uncontradicted evidence of the defendant’s reputation for good character. See United States v. Toro, 383 F. Supp. 397, 400 (D.P.R. 1974) (considering, inter alia, a defense witness’s uncontradicted testimony that the defendant “was generally of good character” and then granting the defendant’s Rule 29 motion).

The Rule 29 standard of review “does not require complete judicial abdication to the determination of the trier of fact.” United States v. Martinez, 555 F.2d 1269, 1271 (5th Cir. 1977) (holding that a verdict must be reversed if not “supported by ‘substantial evidence”’); see also Mortensen v. United States, 322 U.S. 369, 374 (1944) (‘[W]e have never hesitated to examine a record to determine whether there was any competent and substantial evidence fairly tending to support the verdict.”); United States v. Moreland, 665 F.3d 137, 149 n.6 (5th Cir. 2011) (“We remain highly deferential to jury verdicts, but are obligated, as judges, to reverse a conviction where, having viewed all evidence in the light most favorable to the prosecution, we must conclude that the record cannot support a conclusion that the prosecution established guilt beyond a reasonable doubt.”).

Although the reviewing court is required to draw in the government’s favor all inferences that are reasonably supported by the record evidence, a reviewing court “cannot ‘credit [the prosecution with] inferences within the realm of possibility when those inferences are unreasonable.” Moreland, 665 F.3d at 149 (reversing defendant’s conviction for possession of child pornography). Moreover, if the only reasonable inference to be drawn from a particular constellation of evidence is one that favors the defendant, the court must consider that exculpatory inference. See Evans-Smith, 19 F.3d at 909 n.29.

With respect to the drawing of inferences, it is also important to keep in mind that there is a constitutionally significant distinction between an “evidentiary or “basic’ fact[],” on the one hand, and “an ‘ultimate’ or ‘element’ fact,” on the other. Ulster County Court v. Allen, 442 U.S. 140, 146 (1979). Where the prosecution asks the jury to infer a fact that is also an element of the Consistent with the 1994 amendments to Rule 29, there are actually two pending Rule 29 motions before the court: the initial motion that the defense made immediately after the close of the Government’s case-in-chief, and the renewed motion made after the close of all the evidence. Under the amended Rule 29(b), the court must decide the former motion solely on the basis of the evidence adduced during the Government’s case-in-chief. The latter motion however, must be decided on the basis of the entire trial record. Because no incriminating evidence was adduced during the defense’s case-in-chief – and because the Government did not put on a rebuttal case – this memorandum of law assumes that the Court will resolve Mr. Doe’s Rule 29 motion on the basis of all evidence adduced at trial.

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offense (e.g., that the defendant possessed the requisite mental state), it is not enough that the record evidence reasonably supports the prosecution’s desired inference. Instead, the prosecution’s burden is to adduce evidence sufficient to prove that inference “beyond a reasonable doubt.” Id.; see also e.g., Regalado Cuellar, 553 U.S. at 567 n.8 (reversing conviction because the prosecution failed to adduce evidence “from which it could be inferred beyond a reasonable doubt” that the defendant possessed the requisite mental state for money laundering).

Thus, in United States v. Alvarez, 451 F.3d 320 (5th Cir. 2006) the Fifth Circuit reversed a conviction where the prosecution “attempt[ed] to cobble together inferences from the testimony presented in support of the verdict against [the defendant].” Id. at 337. The Fifth Circuit explained that, even though “a rational jury might make the chain of [evidentiary] inferences” proffered by the prosecution, that inferential chain was too weak to support a rational finding “beyond a reasonable doubt that the elements of the crime [were] proven.” Id. (italics in original); see also Piaskowski v. Casperson, 126 F. Supp. 2d 1149, 1159-60 (E.D. Wis. 2001) (“The ultimate finding of guilt in this case required the jury to pile speculation on top of the inferences drawn from more inferences. Each step along the way required the jury to eliminate one or more alternatives, thus multiplying the risk of error. Such verdict is not rational.”)

A reviewing court may not affirm a conviction that “rest[s] on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference.” Alvarez, 451 F.3d at 333-34 (reversing conviction where the government’s proffered evidence of an essential element of the offense was “both circular and self-serving”); see also Unites States v.

Harris, 420 F.3d 467, 474 (5th Cir. 2005) (“Speculation may resolve the timing of Harris’s intent and the actions that night, but the speculation on the basis if evidence does not a reasonable inference make.”); Martinez, 555 F.2d at 1271 (holding that, where the jury’s verdict “could be reached only as a result of speculations or assumptions about matters not in evidence,” then the jury’s verdict must be reversed). Indeed, “if the evidence at trial raises only a suspicion of guilt, even a strong one, then that evidence is insufficient.” Guidry v. Dretke, 397 F.3d 306, 331 (5th Cir. 2005) (internal quotation marks omitted). “Even under [a] deferential standard of review, a conviction may not be affirmed … based on evidence that merely creates the inference that the defendant might be guilty.” United States v. Elashyi, et al., 554 F. 3d. 480, 492 (5th Cir. 2008) (italics added); see also United States v. Hernandez, 301 F.3d 886, 893 (5th Cir. 2002) (“[T]here is a critical line between suspicion of guilt and guilt beyond a reasonable doubt…. Even looking at the government’s case in the most favorable light possible, the government has not transcended the realm of speculation to the realm of certainty beyond a reasonable doubt.”); Piaskowski v. Bett, 256 F.3d 687, 692-93 (7th Cir. 2001) (“As strong suspicion that someone is involved in criminal activity is no substitute for proof of guilt beyond a reasonable doubt….

Although a jury may infer facts from other facts that are established by inference, each link in the chain of inferences must be sufficiently strong to avoid a lapse into speculation.”). Thus, in Evans-Smith, the Fourth Circuit, in reversing the defendant’s murder conviction, held: “To start with the assumption that the crime was committed and then to show that each piece of circumstantial evidence can be explained in a consistent manner is fundamentally different from explaining each piece of evidence and finally concluding beyond a reasonable doubt that the defendant was guilty. The prosecution has attempted to accomplish only the first alternative, not the second. As the Supreme Court has long taught, “it is the duty of the Government to establish … guilt beyond a reasonable doubt.”

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19 F.3d at 910 (quoting In re Winship, 397 U.S. 358, 362 (1970)).

PART THREE: THE EVIDENCE ADDUCED AT TRIAL For purposes of this matter, the Court’s focus is exclusively on the evidence in support of the indictment. Ultimately, the trial record is most notable for the absence of evidence that can support a rational finding of guilt beyond a reasonable doubt. By the defense’s tally, there were three witnesses called by the Government that provided evidence related to Mr. Doe’s alleged culpable mental state. This memorandum will address these witnesses testimony in the order received by the Court.

I. WAYNE JONES Investigator, Wayne Jones, of the Texas State Board of Pharmacy (“TSPB”) was a Government witness who initially outlined his over 40 years of total law enforcement experience with TSPB, and two municipalities. His testimony initially focused on making undercover purchases from Accent Pharmacy. During one of his undercover trips to the pharmacy, he encountered “Dr. Sammie Lewis” who engaged him in conversation regarding his professional status as a medical doctor. This conversation lead to Lewis offering to evaluate and treat Jones’ relative. Investigator Jones was also present during the execution of the search warrant at the pharmacy and conducted an interview of John Doe. He testified that he documented this interview in his written report and that he also took a handwritten statement from Mr. Doe (Government’s Exhibit No. 11). Jones testified that during his interview, Mr. Doe was surprised by the activities at the pharmacy and would only say that he had no knowledge of the activity at the pharmacy. The handwritten statement of Mr. Doe declared that he was unaware of Lewis’ operation “to this extent” and that he “trusted” Lewis and “the co-workers to run the pharmacy.”

This evidence is exculpatory in nature and reflects Mr. Doe’s lack of knowledge and willful agreement to further the conspiracy’s unlawful purpose. The Government’s take on the evidence is totally different. It parse’s the phrase “to this extent” in order to seek an inference that he was aware of the alleged conspiracy only to a certain point. Investigator Jones also testified that Mr. Doe voluntarily surrendered his license after his interview. This act on Mr. Doe’s part was an initial acknowledgment of an administrative violation that could be imposed and in no way implicates him in a crime. Indeed, Investigator Jones testified under cross-examination that Mr. Doe undertook efforts with his counsel, subsequent to this event, to obtain his license back from TSPB which resulted in proposed rehabilitation efforts in order to do so. He concluded his testimony by discrediting proposed Government witness, Sammie Lewis 18.

II. JOEL DUNN DEA Special Agent, Joel Dunn was the case agent and government witness who testified that he was present at the search warrant and interviewed Mr. Doe. Dunn testified that Mr. Doe initially stated that he would come to the pharmacy daily. However, when confronted with the fact that the pharmacy was under surveillance, his story shifted to stating that he came often.

The Government after having entered a plea agreement with Lewis and placing his name on their witness list chose not to call him to the stand.

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When Dunn asked Mr. Doe about Sammie Lewis and his wife, Remossive Lewis, Mr. Doe indicated that he was aware that Sammie Lewis did not have a pharmacist license in Texas but that he was educated elsewhere. Mr. Doe also acknowledged that the licenses for neither Lewis nor his wife, Remossive, were displayed in the pharmacy. Dunn also testified that Mr. Doe was asked why he turned over the pharmacy to two unlicensed individuals. Mr. Doe responded that he was having trouble getting the pharmacy off the ground and that he needed to work at Parkland Hospital.

Finally Dunn testified that he reminded Mr. Doe of his prior administrative sanction and that Mr. Doe voluntarily surrendered his license for the pharmacies.

Dunn’s testimony provides compelling evidence of administrative violations somewhat similar to Mr. Doe’s previous sanction for allowing an unlicensed individual to operate in a pharmacy. There is no direct evidence, nor admissions from Mr. Doe, that he knowingly and purposely engaged in the conspiracy alleged. Once again, the Government’s stance regarding Dunn’s testimony is one of inference piled on top of inference regarding Mr. Doe’s willfulness in joining the conspiracy alleged. The mental gymnastics engaged in by the Government would require one to pile speculation on top of the inferences drawn from such evidence.

III. REMOSSIVE LEWIS The Government entered into a plea bargain agreement with Remossive Lewis, the wife of Sammie Lewis, and called her as a witness.

Ms. Lewis whose testimony, as instructed by the Court, is to be weighed with great caution and care, testified that her role in the operation of the pharmacy was limited. She testified that despite being the lone signatory on the pharmacy’s bank account at Capital One, she received her instructions for operating the account from Sammie Lewis. She also testified that she was physically separated from Sammie Lewis on at least two occasions during the operation of the pharmacy which resulted in her obtaining a separate home in an apartment. Importantly, she testified that she was not present nor privy to any conversations between Sammie Lewis and John Doe when they first met. However, she curiously recalled a written agreement between Lewis and Doe that she claimed would either be located in she and Lewis’ home, or the pharmacy. No such agreement was ever produced by the Government. Remossive Lewis also testified that from time to time Mr. Doe would coach Lewis on how to mix the pharmaceuticals.

She also testified that Mr. Doe worked at Parkland Hospital at night and would come by the pharmacy tired and sleepy. In fact, she testified that he would sleep while at the pharmacy until Sammie Lewis instructed him to go home and rest.

This testimony from one of the alleged co-conspirators did not offer any direct evidence that Mr. Doe knowingly and intentionally joined the charged conspiracy. Again, one needs to engage in conjecture and inference upon inference to connect the dots to attempt to prove Mr. Doe’s culpable mental state. Faced with an absence of evidence, including the total lack of proof that Mr. Doe received any proceeds, financial gains, nor luxury items for his role in the conspiracy unlike his alleged co-conspirators, the Government engages in conjecture and speculation built on inferences. Mr. Doe’s role and lack thereof at the pharmacy does not come 90

close to satisfying the requisite culpable mental states that must be proven beyond a reasonable doubt. Such a conjectural showing is insufficient to support the conviction.

PART FOUR: COMPARING THE RECORD EVIDENCE TO THE CASE LAW The evidence adduced at trial was insufficient to secure a valid conviction. When the trial record in this case is compared against relevant case law, the patent insufficiency of the Government’s evidence becomes even more strikingly obvious.

As the threshold element, the government was required to prove beyond a reasonable doubt that Mr. Doe knowingly and intentionally joined in the charged conspiracy. The Government’s evidence established no more, and arguably substantially less, than a legally insufficient coin flip on this element. The government repeatedly asserts that Mr. Doe confessed to the crime by his statements and his actions.

I. MR. DOE’S STATEMENTS A. Wayne Jones Investigator Jones of the TSPB interrogation of Mr. Doe revealed evidence that Mr. Doe expressed “surprise” that the pharmacy was being operated in the fashion that it was by “Dr. Sammie Lewis.” Jones further testified that Mr. Doe orally stated that he had “no knowledge” of the activities at the pharmacy. The handwritten statement of Mr. Doe corroborated his oral statements and his surprised demeanor by again asserting that he was “unaware” of the operation of the pharmacy “to this extent” (see Government’s Exhibit No. 11). The last line of the statement outlined that he “trusted” Lewis and the “co-workers” to operate the pharmacy. It is quite evident from the compelling and substantial evidence from the mouth and pen of Mr. Doe that he was not aware of the charged conspiracy and certainly did not join in said conspiracy willfully. The Government’s tortured logic regarding this evidence would involve a suspension of belief that Mr. Doe was “unaware” and had “no knowledge” of the charged conspiracy and that the phrase “to this extent” belies Mr. Doe’s own statements and that he was knowledgeable of the conspiracy only to a certain degree. This logic calls for conjecture and speculation and is not proof beyond a reasonable doubt.

B. Joel Dunn As detailed above in PART THREE, Special Agent Jones testified that Mr. Doe initially misled him regarding his frequency of visits at the pharmacy until confronted with surveillance evidence. Agent Dunn also testified that Mr. Doe admitted that the requisite pharmacy licenses for “Dr. Sammie Lewis” and his wife, Remossive Lewis, were not displayed at the pharmacy.

These admissions certainly invoke administrative violations of the TSPB. However, these were certainly not admissions of involvement in the charged criminal conspiracy.

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II. MR. DOE’S ACTIONS Both Investigator Jones and Agent Dunn testified that Mr. Doe surrendered, respectively, his personal pharmacy licenses issued by the TSPB and the pharmaceutical licenses issued by the DEA. Thus, the Government’s argument that the actus reus – licenses surrendered to the governing agencies – proved the mens rea beyond a reasonable doubt.

The Fifth Circuit, however, already has rejected efforts to prove mens rea in such a “circular and self-serving” fashion. Alvarez at 334. In Alvarez, a jury convicted the defendant of knowingly possessing drugs that were found “in the residence over which [the defendant] exercised custody and control.” Id. at 334. The defendant did not dispute that a “cache of drugs and money” was found “hidden” in the residence (a trailer). Id. The defendant did, however, dispute the allegation the he has “knowledge” of the drugs and money. Id. In support of evidentiary sufficiency of its case, the government pointed to several pieces of circumstantial evidence that, in its view, supported a finding of “knowledge” beyond a reasonable doubt.

Among other things, the government argued “that the existence of the … hidden compartment [in which the drugs and money were found] shows that [the defendant] knew about the compartment’s contents ….” Id. The Fifth Circuit called this argument “both circular and selfserving.” Id. The Fifth Circuit pointed out that, if accepted, the government’s argument “would all but eliminate the knowledge requirement each time a hidden compartment merely existed.”

Id. at 335.

What the Government is seeking to argue in this case – that Mr. Doe’s surrender of his license is evidence that he possessed the requisite intent, and knowledge in willfully joining the conspiracy – is analogous to the “circular and self-serving” argument it unsuccessfully advanced in Alvarez. Rather than adduce actual evidence that Mr. Doe acted with the requisite intent to join the charged conspiracy, the Government started from a presumption of guilt and then made a series of arguments for why Mr. Doe must have been acting with the requisite mens rea when he committed the actus reus. 19 The Government’s evidence in this case was characterized by modest evidentiary showings, equivocal or attenuated evidence of guilt, or a combination of all three. See also, United States v. Cartwright, 359 F.3d 281, 291 (3rd Cir. 2004) (evidence found insufficient where Government asked the jury to make a series of inferences on weak facts where “countless other scenarios that do not lead to the ultimate inference the Government seeks to draw” were also plausible). The issue of mens rea was recently addressed in United States v. Cessa, 785 F.3d 165 (5th Cir. 2015) where it was held that evidence of the defendant’s knowing acceptance of illegal drug proceeds as payment for his services was not sufficient to support his conviction for a money laundering conspiracy notwithstanding that his actions had the effect of concealing the The motive theories advanced by the Government, though unsupported by any evidence, were diverse. One motive theory was that Mr. Doe “believed” that his prior administrative sanction in 2009 resulted in punishment so lenient that he decided to engage in similar conduct. However, the government also infers that he took this similar conduct to the next level by purposely taking a giant step in joining the charged criminal conspiracy. This strained reasoning defies logic. An additional theory advanced is that Mr. Doe obtained monies from the conspiratorial scheme in order to open a second pharmacy. However, there was absolutely no evidence ever proffered on this theory.

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illegal proceeds. The Court reasoned that there was insufficient evidence to prove beyond a reasonable doubt that the defendant joined the conspiracy, “knowing its purpose and with the intent to further the illegal purpose” citing United States v. Fuchs, 467 F.3d 889, 906 (5th Cir. 2006). The Court further stated that additional circumstantial evidence of intent to further the illegal conspiracy must be present. Id. 906. This is the identical and critical third element in our case where the government’s evidence falls woefully short. The Supreme Court decision in Elonis v. United States, 135 5. Ct. 2001 (2015) provides more guidance. The holding in Elonis is based on the principle that “wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. Id. at 2009. This principle does not mean that a defendant must know that his conduct is illegal (i.e., ignorance of the law is no excuse), but rather, he must have knowledge of “the facts that make his conduct fit the definition of the offense.” Id., citing Staples v. United States, 511 U.S. 600, 608, fn.3 (1994).

CONCLUSION The Government’s evidence in this case has failed to satisfy the required element of mens rea on the part of John Doe. The evidentiary record in this case, and for this defendant, clearly suggests that a grant of this Rule 29 motion is just and required.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA

§ § § § §

v.

JOHN DOE (2), Defendant.

NO: 4:14-CR-000000

JOHN DOE’S MOTION FOR NEW TRIAL RULE 33, FED. R. CRIM. PROC. INTRODUCTION

Rule 33 states that upon the Defendant’s motion, “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33; United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004). “The burden of demonstrating that a new trial is warranted ‘in the interest of justice’ rests on the defendant.” United States v. Soto-Silva, 129 F.3d 340, 343 (5th Cir. 1997). Rule 33 motions are not favored and are viewed with great caution. United States v.

Blackthorne, 34 F.3d 449, 452 (5th Cir. 2004). “The grant of a new trial is necessarily an extreme measure, because it is not the role of the judge to sit as a thirteenth member of the jury.” United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997); but see United States v. Robertson, 110 F.3d 1113, 11120 n. 11 (5th Cir. 1997).

“Motions for new trial are based either on the grounds that the verdict was against the weight of the evidence or that some error was committed by the court or the prosecution which substantially affects the rights of the accused.” United States v. Simms, 508 F. Supp. 1188, 1202 (W.D. La. 1980). In the Fifth Circuit, “the generally accepted standard is that a new trial ordinarily should not be granted unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.” United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011)(emphasis added); see Wall, 389 F.3d at 466.

Unlike the Rule 29 motion where the evidence must be viewed in a light most favorable to the verdict, in determining whether to grant a Rule 33 motion, the Court “may weigh the evidence and may assess the credibility of the witnesses during its consideration of the motion for new trial.” United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005) (citing Robertson, 110 F.3d at 1117). Thus, the court has broad discretion to grant a new trial “in the interest of justice.”

United States v. Scroggins, 379 F.3d 233 (5th Cir. 2004), vacated on other grounds, 543 U.S. 1112, 125 S.Ct. 1062, 160 L.Ed.2d 1049 (2005); United States v. Antone, 603 F.2d 566 (5th Cir. 1979). Deference is given to the district court because it actually observed the demeanor of witnesses and their impact on the jury. Wall, 389 F.3d at 465; O’Keefe, 128 F.3d at 893. “[E]vidence which merely discredits or impeaches a witnesses’ testimony does not justify a new trial.” United States v. Blackthorne, 378 F.3d 449, 455 (5th Cir. 2004)(citation omitted). A new trial may be appropriate where the evidence only tangentially supports a guilty verdict and 94

the evidence “preponderates sufficiently heavily against the verdict such that miscarriage of justice may have occurred.” Tarango, 396 F.3d at 672.

I. DISCUSSION The Government has failed to present sufficient evidence that John Doe was part of a conspiracy between he and the co-defendants, as alleged in the indictment. See also, John Doe’s MOTION AND BRIEF FOR JUDGMENT OF AQUITTAL (Rule 29 (a) and (c), Fed. R. Crim. Proc.) filed contemporaneously with this motion. The testimony of the government’s witnesses failed to establish a conspiracy but merely supports the conclusion that the Defendant associated with his co-defendants regarding the sale of a pharmacy to said co-defendants who were, as it turned out, unlicensed to operate the pharmacy.

To prove the conspiracy under 21 U.S.C. § 846, the government must prove the offense elements to include, but not limited to, that Mr. Doe joined in the conspiracy willfully, with the intent to further its unlawful purpose.

The evidence adduced at trial only tangentially supported a guilty verdict. The inference upon inference relied upon by the government in its evidence presentation allegedly relied upon “confessions” given orally and in writing by Mr. Doe to the investigating agents. However, close scrutiny of said “confessions” reveal the demeanor of surprise and actual statements reflecting his lack of knowledge of the internal operations of the pharmacy by his co-defendants.

His alleged incriminating statements to special agent Dunn only proved administrative violations of the rules and regulations of the Texas State Pharmacy Board and did not encompass the requisite culpable mental state one must possess to “willfully” join the charged criminal conspiracy with the “intent to further its lawful purpose” (See Court’s instructions on Third essential element of conspiracy).

The evidence regarding Mr. Doe’s surrender of his pharmaceutical licenses reflect his acknowledgment of the administrative rules and his attempt to respond in good faith. This act is not, and should not, be construed as a tacit admission of guilt.

The testimony of co-defendant, Remossive Lewis, whose credibility can be reasonably and honestly questioned, failed to supply the missing link of Mr. Doe’s mens rea. First, her minimization of her role during her testimony belies the documentary evidence (bank records) and her unjust enrichment from the proceeds she and co-defendant, Sammie Lewis, exclusively obtained. Her attempts to provide the link by stating that Mr. Doe and Sammie Lewis memorialized the unlawful conspiracy strains credibility by the nature of this testimony and her statements that she actually observed the contract at her house or office. In addition, this alleged written agreement was never produced and never cited by any other witness. Finally, her plea agreement and her understanding that she is anticipating probation and/or home confinement as a sentence, also deeply compromises her credibility.

This Rule 33 motion invokes the “interest of justice” standard as appropriate where the weight of the evidence preponderates against a verdict. Wall at 466.

The evidence in this case lacks sufficiency and credibility on the issue as to whether Mr. 95

Doe willfully joined in the charged conspiracy with the intent to further its unlawful purpose of distribution and dispensing of hydrocodone.

CONCLUSION For all of the reasons at forth, above and in the defendant’s Motion and Brief for Judgment of Acquittal (Rule 29 (a) and (c), Fed. R. Crim. Proc.), Mr. Doe respectfully requests that the court grants this motion and order a new trial.

Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700

CERTIFICATE OF SERVICE

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Texas Criminal Defense Lawyers Association

Federal Law Gumbo February 10-11, 2022

Topic: Mental Disabilities Speaker:

Elizabeth Kelley 2525 E 29th Ave Ste 10B Spokane, WA 99223-4857 (509) 991-7058 Phone zealousadvocacy@aol.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Federal Law Gumbo February 10-11, 2022

Topic: Professionalism & CJA Vouchers, Budgeting, Resources Speaker:

Margaret Alverson 600 Camp St New Orleans, LA 70130-3425 (504) 310-7799 Phone margaret_alverson@ca5.uscourts.gov email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

1/26/2022

CJA VOUCHER AND FUNDING REQUESTS POLICIES AND BEST PRACTICES

Federal Law Gumbo Seminar February 11, 2022 New Orleans, LA Margaret E. Alverson Circuit CJA Case Budgeting Attorney – Fifth Circuit

VOUCHER REVIEW • Are the services compensable under the CJA? • Were the services actually performed?

• Is the time claimed reasonable for the work performed?

• Mathematical and recording accuracy • Expenses • Are they reimbursable (e.g. client personal expenses – not reimbursable) • Are they reasonable (e.g., travel costs consistent with GSA per diem) • Receipts provided • Travel authorizations for extended or overnight travel

STANDARDS FOR VOUCHER REVIEW § 230.33.10 Standard for Voucher Review Voucher cuts should be limited to: (1) Mathematical errors; (2) Instances in which work billed was not compensable; (3) Instances in which work was not undertaken or completed; and (4) Instances in which the hours billed are clearly in excess of what was reasonably required to complete the task.

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1/26/2022

NOTICE OF PROPOSED REDUCTIONS § 230.33.30 Notification of Proposed Reduction of CJA Compensation Vouchers (a) The CJA provides that the reviewing judge must fix the compensation and reimbursement to be paid to appointed counsel. If the court determines that a claim should be reduced, appointed counsel should be provided: prior notice of the proposed reduction with a brief statement of the reason(s) for it, and an opportunity to address the matter. (b) Notice need not be given to appointed counsel where the reduction is based on mathematical or technical errors. (c) Nothing contained in this guideline should be construed as requiring a hearing or as discouraging the court from communicating informally with counsel about questions or concerns in person, telephonically, or electronically, as deemed appropriate or necessary.

NON-COMPENSABLE – ADMIN/OVERHEAD § 230.66.10 General Office Overhead (a) General office overhead includes general office expenses that would normally be reflected in the fee charged to the client. The statutory fee is intended to include compensation for these general office expenses. (b) Except in extraordinary circumstances (see: Guide, Vol. 7A, § 320.70.30), whether work is performed by counsel or other personnel, the following expenses associated with CJA representation are not reimbursable: • personnel; rent; telephone & internet; and secretarial. § 320.70.30 a) CJA attorneys are expected to use their own office resources, including secretarial help, for work on CJA cases.

ADMIN/OVERHEAD - Examples • Filing, mailing, circulating • Printing and Scanning • Downloading and saving, including ECF notices, pleadings, etc.

• Invoicing, setting up eVoucher accounts • Calendaring and scheduling • Trips to copy center / post office / USAO to copy, scan, mail, pick up discovery etc.

• Not compensable clerical / administrative services

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1/26/2022

VOUCHER RECORDING – BEST PRACTICES • Services:  Avoid block billing  Avoid clumping multiple tasks in one service entry (impossible to assess reasonableness)  Discovery review: add detail (e.g. wiretaps, video, medical records)  Legal research and writing – identify motions or areas of research  Plea – extended negotiations or unique issues / proffer sessions / cooperation  In court time is limited to actual time spent in the court as reflected on the minute entry 

Wait time = other



Time meeting with client, AUSA, etc = interviews and conferences

 Travel time should be separated out  Aggregate multiple ECF notices and emails. Include ECF doc. #

BREAK OUT TASKS

DETAIL TASK DESCRIPTIONS

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1/26/2022

MULTIPLE ECF FILINGS

45 DAY RULE- Guidelines § 230.13 – Vouchers should be submitted within 45 days of conclusion of the case absent a showing of good cause

Contemporaneous time records: Guidelines § 230.76 – counsel are required to keep contemporaneous time and expense records for all work including work by associates and support staff for 3 years.

They are subject to audit.

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1/26/2022

EXCEEDING THE CASE COMPENSATION Maximum $12,300 – district court / $8,800 – appeals § 3006A (d)(3) – judge must certify; circuit approval required § 230.30 Supporting Memorandum Justifying Compensation Claimed In any case in which the total compensation claimed is in excess of the statutory case compensation maximum, counsel will submit with the voucher a detailed memorandum supporting and justifying counsel’s claim that: • the representation given was in an extended or complex case (see: § 230.23.40(b)), and • the excess payment is necessary to provide fair compensation (see: § 230.23.40(c)).

If the legal or factual issues in a case are unusual, thus requiring the expenditure of more time, skill, and effort by the lawyer than would normally be required in an average case, the case is “complex.”

If more time is reasonably required for total processing than the average case, including pre-trial and post-trial hearings, the case is “extended.

LETTER IN SUPPORT OF EXCESS VOUCHER • INTRODUCTION / BACKGROUND OF THE CASE • Summarize the charges, unique or complex challenges, outcome.

• COST DRIVERS • Discovery (describe amount and challenges); • Client (detained in remote location, mental health issues, demanding) • Witnesses or evidence in remote areas • Suppression, evidentiary or issues requiring expert evaluation • TRAVEL • Travel distances office/court/client/USAO • Pro rate when possible • PLEA & SENTENCE • Extended negotiations, eve of trial, cooperation, sentencing hearings • TRIAL • Length, verdict, post-verdict litigation

CJA DOES NOT PAY  Witness fees and expenses - § 230.66.50  DOJ – Rule 17 Subpoenas; § 2254 proceedings – Rule 6; 28 U.S.C. § 1825  If U.S. Marshals n/a, may incur expense; should seek prior approval  But service while incidental to witness interviews o.k.  Competency Exam– DOJ pays CJA Guidelines § 320.20  Travel for non-custodial defendant  18 U.S.C. § 4285: US Marshals  3006A: may be interpreted as “other services necessary to the defense”  Filing Fees / PACER Fees (CJA account)  Defendant clothing, personal items CJA Guidelines § 230.66.20  Assisting with disposition of defendant’s personal property compensable if obtaining the property contributes to a “representational purpose.”

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1/26/2022

ASSOCIATE COUNSEL  CJA Guidelines § 230.53.10 – need prior court approval if seeking associate counsel who is not an associate or partner of appointed counsel’s firm; budget if likely to exceed case comp max

 Voucher / Audit Issues 

Identify tasks performed by associate on voucher



eVoucher now puts both on the same voucher



Separate CJA 20 or 30 if appointed



TO BE AVOIDED: Appointed counsel delegating most of the work to associate

 District CJA Plan – e.g mentoring programs  NOTE – if more than one attorney is appointed in an extremely difficult case, each attorney is entitled to claim the case compensation maximum

INTERIM VOUCHERS  Budgeted Cases  District court authorization to submit interim vouchers  Payments within budget approved and paid by district court; circuit approval not required  20% withheld until final  Expenses paid in full  No Case Budget  District court authorization to submit interim vouchers  District court may approve and pay up to case compensation maximum  Circuit review once case compensation maximum exceeded  100% payment  Audit of Interim Vouchers by District Court  Services – verify court time, duplicate entries, mathematical errors  Expenses – reimbursable and reasonable

Travel Policies     

Per District / Division Need for prior authorization per district CJA Plans or rules Prior authorization advisable, e.g., long trial away from home National Travel authorizations and payment Audit Issues and Red Flags 

Within GSA per diem rates



Alcohol, more than one person on a bill



Change of flight – necessity or convenience

Note: in-person meetings with clients, even when videoconferencing is available, is viewed as important and necessary to high quality representation. § 230.60

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1/26/2022

FUNDING AND BUDGETING

• ATTORNEY FEES • SERVICE PROVIDERS • EXPERTS

EVALUATE THE NEED • INVESTIGATE THE CHARGES • CHALLENGE THE GOVERNTMENT’S EXPERT • DEFENSE EXPERTS • ESI MANAGEMENT • PARALEGAL SUPPORT • DISCOVERY REVIEW • SENTENCING ISSUES / MITIGATION

WHEN TO APPLY FOR FUNDS • Once the need becomes apparent • The sooner the better • Monitor expenditures • Ask for additional funds BEFORE you authorize more work

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AUTHORITY • 18 U.S.C § 3006A • 18 U.S.C § 3599 (CAPITAL CASES) –all capital cases should be budgeted with the assistance of the case budgeting attorney

• CJA GUIDELINES • CJA MODEL PLAN FOR THE DISTRICT

18 U.S.C § 3006A (e) Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application.

Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court shall authorize counsel to obtain the services.

18 U.S.C § 3006A (e) – No Approval Necessary

Total costs for investigative, expert, or other services obtained without prior request:

$900 plus expenses

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18 U.S.C § 3006A (e) – District Court Approval Needed

For each service provider or expert:

$2,700 per provider plus expenses pre-approval may be waived in the interests of justice where judge finds that timely procurement of services could not wait prior authorization

18 U.S.C § 3006A (e) - Circuit Court Approval Needed • Any service provider or expert whose services are expected to exceed $2,700 • Must be certified by the district court as “necessary to provide fair compensation for services of an unusual character or duration” • Must be approved by the Chief Judge of the Circuit or his/her designee

CAPITAL CASES – DIFFERENT RULES • 18 U.S.C § 3005 – Federal Capital Prosecutions • 18 U.S.C § 3599 – Capital Cases and §§ 2254, 2255 • CJA Guidelines Chapter 6 • Model Plans • All capital cases should be budgeted; work with the Circuit CBA. Guidelines § 640.10

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1/26/2022

18 U.S.C § 3599(f) - CAPITAL CASES •

Must demonstrate that investigative, expert or other services are “reasonably necessary”

•

Proper showing of need for confidentiality must be made in order to proceed ex parte.

•

“Any proceeding, communication, or request shall be transcribed and made a part of the record available for appellate review.”

•

Payment for all services combined limited to $7,500 unless district court certifies as necessary

•

Anything over $7,500 requires Circuit approval

CJA GUIDELINES • http://www.uscourts.gov/rulespolicies/judiciarypolicies/criminal-justice-act-cjaguidelines • Chapter 2: Appointment of Counsel • Chapter 3: Authorization for Experts and Service Providers • Chapter 6: Death Penalty Cases

Funds Available to non-CJA appointments • Retained counsel may seek funding • Pro Se defendants / standby counsel

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1/26/2022

RETAINED COUNSEL § 310.10.10 Defendant with retained counsel may seek funding where the defendant’s resources are in excess of the amount needed to provide the defendant and his/her dependents with the necessities of life, defendant’s release on bond, and pay a reasonable fee to retained counsel, but are insufficient to pay for the necessary services.

§ 310.10.20 • (a) the court should inquire into counsel’s fee arrangement • (b) If the court finds the fee arrangement unreasonable in relation to fees customarily paid to qualified practitioners in the community for services in criminal matters of similar duration and complexity, or that it was made with a gross disregard of the defendant’s trial expenses, the court may order the retained attorney to pay out of such fees all or such part of the costs and expenses as the court may direct.

DEFENSE TEAM

Experts and Service Providers - Examples • EXPERTS: • Computer expert // Cell phone / tower expert • DNA // Ballistics // Forensics // CPA // fraud examiner • Mental health experts – guilt / sentence mitigation / competency • SERVICE PROVIDERS • Investigators • Paralegals • Mitigation specialists • Assistance to catalogue and review numerous jail calls

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1/26/2022

Rate Ranges CIRCUIT HAS NOT ADOPTED PRESUMPTIVE RATE RANGES • Point of reference EXPERIENCE BASED HOURLY RATES • Training, experience, specialized skills • Specific skills for specific case needs, e.g. paralegal with training in medical billing in health care fraud cases; paralegal/nurse who can read medical records; investigator who worked in a crime lab and can read/analyze DNA reports • Need for the specialized skill that justifies higher rate must be present in the case • Provide CV or resume and fee schedule where available

Competency – Dual Purpose Examinations DOJ May Pay Expert § 320.20.50 • • • •

who requested the examination the specific purpose(s) of the examination to whom the examination is directed to whom copies of the report are to be given

§ 320.20.60 - Chart

FUNDING MOTION REQUIREMENTS • Factual support for the need for assistance • Description of services to be performed / time required • Resume or CV • Hourly rate or fee schedule • Vet the expert • Shop around for competitive rates • Travel issues • CBA available to discuss / review draft

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1/26/2022

CALCULATING THE EXPERT’S TIME • Document review • Interviews • Client • Witness • Evidence examination and testing • Preparation of reports • Consultation with counsel • Preparation to testify • Testimony • Travel

CIRCUIT ORDER • Order shall be filed under seal unless otherwise ordered by the district court.

• Subject to the district court’s approval, counsel may allocate the total amount approved among experts as needed.

• Counsel shall monitor the work performed by the experts to ensure compliance with the funding order. Requests for an increase in the overall budgeted amounts must again be submitted for circuit approval and should be filed as soon as it becomes apparent that additional funds are likely to be required and before the work is performed.

DISCOVERY MANAGEMENT – RESOURCES o Processing and hosting ESI o Training in accessing, organizing, searching multi-terabytes of discovery o Discovery management tools • CaseMap, CasePoint, dtSearch etc • Call review tools o Costs for computer systems, litigation support products, experts expected to exceeded $10,000: CJA Guidelines require that National Litigation Support be contacted § 320.70.40 o Request appointment of a Coordinating Discovery Attorney

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1/26/2022

COORDINATING DISCOVERY ATTORNEYS

• Coordinating Discovery Attorneys (CDAs): available in multi-defendant cases with voluminous or complicated ESI issues o Appointed by the court o Manage discovery for multiple defendants o Contracts with third party vendor for hosting • Alternatively, designate an appointed attorney to act as the discovery liaison attorney for multiple defendants

LITIGATION SUPPORT SERVICES • Litigation support vendor services available (CJA funded for case) o Processing and hosting o Training and support • Software discounts available (licenses for purchase) o secure cloud storage (box.com) o document and case information tools (Casemap / Docmanager) o document review platform (Casepoint) o document search programs (dtSearch) https://www.fd.org/litigation-support/cja-panel-attorney-software-discounts

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1/26/2022

NATIONAL LITIGATION SUPPORT TEAM Sean Broderick 510.637.1950 sean_broderick@fd.org Kelly Scribner 510.637.1952 Kelly_scribner@fd.org

CONTACT THE CASE BUDGETING ATTORNEY! Margaret Alverson, Circuit CJA Case Budgeting Attorney Laura Cannon, Administrative Attorney – District Garett Cain, Administrative Attorney - Appeals Circuit Mediation and Judicial Support Office 504-310-7799 Margaret_Alverson@ca5.uscourts.gov Laura_Cannon@ca5.uscourts.gov Garrett_Cain@ca5.uscourts.gov

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Texas Criminal Defense Lawyers Association

Federal Law Gumbo February 10-11, 2022

Topic: Forfeitures Speaker:

John Carroll 111 W Olmos Dr San Antonio, TX 78212-1955 (210) 829-7183 Phone (210) 829-0734 Fax jcarrollsatx@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

FOREFEITURE OF INTERESTS IN REAL AND PERSONAL PROPERTY UNDER FEDERAL LAW John F. Carroll 111 West Olmos Drive San Antonio, Texas 78212 210-829-7183 jcarrollsatx@gmail.com

Asset forfeiture is a legal process by which the Government may seize and take, without compensation, privately owned real or personal property that facilitated or was otherwise involved in the commission of certain criminal activities, including property representing or traceable to proceeds of such criminal activity.

(Fisch and Berg, A Field Guide to Asset Forfeiture, New York Law Journal, Vol. 260, No. 32, 8/15/18). The federal government may bring two types of asset forfeiture proceedings-civil or criminal. Asset forfeiture may also be accomplished by a Government Agency through an administrative forfeiture action.

I.

Administrative Forfeiture Administrative forfeiture actions are initiated by the seizing law enforcement

agency. An administrative forfeiture can accomplish the seizure and taking of personal property without judicial process or any type of hearing if it is not contested.

Currency, conveyances, and other personal property in value up to $500,000 can be seized and forfeited administratively. The Department of Justice does not administratively seize real property. DOJ Asset Forfeiture Policy Manual, pp. 68-69 (2021); Forfeiture Overview for the National Seminar for Federal Defenders 1

Baltimore MD, June 2, 2011, Robert W. Biddle. Statutes governing administrative forfeiture proceedings and some related proceedings include: 18 U.S.C. §§981, 983985 and 19 U.S.C. §§1602-1621. Regulations governing administrative forfeitures can be found at 28 CFR Part 8, Subpart A, §§8.1-8.16. a.

Notice

The seizing agency is required to provide notice to potential claimants in an administrative forfeiture case within a statutory time period which is usually 60 days after the seizure of property. 18 U.S.C. §983(a).

An agency seeking to administratively forfeit property is required to provide notice of the administrative forfeiture. 19 U.S.C. §1607(a). Sample Notice APPENDIX A. Notice must be sent to “each party who appears to have an interest in the seized article.” Id. In addition, public notice is required to be provided in a publication of general circulation, such as USA Today. Id. b.

Claim

A claim must be filed within 35 days of the date of a notice letter from the seizing agency. 28 CFR § 8.9. If notice is received by publication, the claim must be filed within 30 days of the date of final publication of the notice. Id. Failure to timely file a claim with the agency will generally bar a person from contesting the forfeiture.

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A claim shall: (1) Identify the specific property being claimed; (2) identify the claimant and state the claimant’s interest in the property; and (3) be made under oath by the claimant, not counsel for the claimant, and recite that it is made under penalty of perjury, consistent with the requirements of 28 U.S.C. § 1746. An acknowledgment, attestation, or certification by a notary public alone is insufficient.

28 CFR §8.10. The Government has claim forms that can be used. APPENDIX B. A claimant is not required to use the Government form, but it is instructive on what type of information a claim should include.

Upon receipt of a claim that meets the requirements of 28 CFR §8.10, the seizing agency shall return the property to the claimant or suspend the administrative forfeiture proceeding and promptly transmit the claim, together with a description of the property and a complete statement of the facts and circumstances surrounding the seizure to the appropriate U.S. Attorney for commencement of judicial forfeiture proceedings. 28 CFR §8.10(e). c.

Petition for Remission or Mitigation

As an alternative to a filing a claim and electing to contest the forfeiture, a claimant may file a petition for remission or mitigation of forfeiture. 19 U.S.C. § 1618; 28 CFR § 9.1 et seq. Such a petition essentially waives the right to contest the forfeiture on the merits. It is a request submitted to the seizing agency for relief from the forfeiture. The ruling official does not consider whether the evidence was 3

sufficient to justify forfeiture, but rather, presumes that the forfeiture was valid. 28 CFR §9.5(a)(4); Juncaj v. United States, 894 F. Supp. 318, 320 (E.D. Mich. 1995); Reinoso v. Drug Enforcement Administration, No. 93-CIV-1516 (KTD), 1994 U.S. Dist. LEXIS 18054. By submitting a petition for remission or mitigation, a claimant effectively stipulates that the forfeiture was lawful and valid for administrative purposes. If the agency does not grant any relief on such a petition, there is no right of appeal.

After a claim is filed and the matter is referred to the U.S. Attorney, the U.S Attorney, upon determining that it is appropriate to proceed with a forfeiture action, will either file a civil forfeiture suit or include criminal forfeiture allegations in a criminal indictment. Civil cases are filed II.

Civil Forfeiture Civil forfeiture cases are governed by 18 U.S.C. §981. The list of violations

of the criminal law that can subject property to civil forfeiture is set forth in 18 U.S.C. §981(a)(1) and includes such federal crimes as money laundering, wire and mail fraud, and acts of terrorism against the United States. In order for the government to seize any real or personal property, it must establish by a preponderance of the evidence that the property is appropriately subject to forfeiture under §981. 18 U.S.C. §981(c). The government must establish that the property was

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involved in the violation of the law or represents proceeds traceable to such violation. 18 U.S.C. §981(a)(1).

Section 981(f) provides: “All right, title, and interest in property described in subsection (a) of this section shall vest in the United States upon commission of the act giving rise to forfeiture under this section.”

Specific procedures applicable to civil forfeiture cases are set forth in: § 983 General rules for civil forfeiture proceedings § 984 Civil forfeiture of fungible property (including cash and monetary instruments) § 985 Civil forfeiture of real property a.

Innocent Owner Defense

18 U.S.C. § 983(d) provides that an innocent owner shall not have its property interest forfeited under any civil forfeiture statute. An individual asserting the innocent owner defense bears the burden of proving, by a preponderance of the evidence, that he is an innocent owner of the forfeited property. 18 U.S.C. § 983(d)(1). An innocent owner is defined as one who (i) did not know of the conduct giving rise to the forfeiture, or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property. 18 U.S.C. § 983(d)(2)(A). Owner is broadly defined to include any person “with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest.” 18 U.S.C. § 983(d)(6).

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b.

Procedural Traps

Civil forfeiture presents a number of procedural requirements that must be followed in order to preserve a claim to ownership. A claimant is subject to the pleading requirements of the Federal Rules of Civil Procedure, including the local rules for the district in which the case is filed. One Judge has described procedure in federal court as “rules heavy.” The rules are strictly applied and need to be complied with in order to present a challenge to the forfeiture petition. One area of difficulty is the application of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. Pleadings in civil forfeiture actions must be filed in accordance with the Supplemental Rules. See 18 U.S.C. Section 983(a)(4)(A) and (B) (“any person claiming an interest in the seized property may file a claim asserting such person’s interest in the property in the manner set forth in the [Supplemental Rules]”).These rules provide for additional procedures in civil forfeiture actions and added pleading requirements. For example, Rule G, entitled “Forfeiture Actions in Rem” provides that a claimant seeking to contest a forfeiture must file a claim in the district court within certain enumerated time periods. Supp. Rule G(5)(a)(ii). This is not the same as the claim originally filed with a seizing agency to contest the administrative forfeiture. The required contents of the claim are set forth in Supp Rule G(5)(a)(i). Similar to the claim required to contest an administrative forfeiture, it must be signed by the claimant (not the lawyer) under penalty of perjury.

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In addition to the requirement of filing a claim, a claimant is also required to file an answer, or a motion under Fed. R. Civ. P. 12, in the civil forfeiture case which is due within 21 days after filing the claim. Failure to file either the claim or the answer, under the mistaken belief that only one or the other was required, will subject a claimant to a default judgment denying any claim to the property and/or a motion to dismiss under Supp. Rule G(8). A default judgment has been entered in cases where a claimant filed an answer but never filed a claim. In United States v. $288,914.00 in U.S. Currency, 722 F. Supp. 267, 271 (E.D. La. 1989), the District Court struck that claimant’s untimely answer and granted the government’s motion for default.

Supplemental Rule G(6) gives the government the right, after a claim has been filed, to submit special interrogatories to the claimant on the question of claimant’s standing to assert a claim: (6) Special Interrogatories. (a) Time and Scope. The government may serve special interrogatories limited to the claimant's identity and relationship to the defendant property without the court's leave at any time after the claim is filed and before discovery is closed. But if the claimant serves a motion to dismiss the action, the government must serve the interrogatories within 21 days after the motion is served. (b) Answers or Objections. Answers or objections to these interrogatories must be served within 21 days after the interrogatories are served.

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(c) Government's Response Deferred. The government need not respond to a claimant's motion to dismiss the action under Rule G(8)(b) until 21 days after the claimant has answered these interrogatories.

As with the claim requirement, the failure to adequately respond to such interrogatories will subject a claimant to a motion to dismiss for lack of standing under Supp Rule G(8).

In United States v. $12,126.00 in U.S. Currency, 337 Fed. Appx. 818, 820 (11th Cir. 2009), the court noted that the Government may move under Rule G(8)(c) to strike a claim for failure to comply with Rule G(5), and affirmed an order striking a claim for lack of statutory standing.

In United States v. Vehicle 2007 Mack 600 Dump Truck, 680 F. Supp.2d 816, 822-25 (E.D. Mich. 2010), the court granted the government’s Rule G(8)(c) motion to strike a claim filed 40 days after the filing deadline in Rule G(5)(a), and held that to have statutory standing, the claimant must “strictly comply” with the rule.

In United States v. $13,970.00 in U.S. Currency, No. 5:06-CV-386, 2007 WL 1231659 (M.D. Ga. 2007), the court held that statutory standing is a threshold issue, and that a claimant who fails to comply with section 983(a)(4) and Rule G(5) lacks standing.

In addition to strict pleading requirements, a claimant is also subject to the disclosure and discovery requirements of the Federal Rules of Civil Procedure. See e.g. Fed. R. Civ. P. 26.

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c.

Defenses to civil forfeiture

In addition to the innocent owner defense, there are many defenses to a civil forfeiture action which should be asserted, including: Excessive fines clause. In rem civil forfeitures must comply with the excessive fines clause of the Eighth Amendment. Austin v. United States, 509 U.S. 602 (1993). This rule is also applicable to state forfeiture actions. Timbs v. Indiana, 586 U.S. ___, No. 17-1091 (Feb. 20, 2019). A forfeiture is unconstitutionally excessive “if it is grossly disproportional to the gravity of a defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 334 (1998). 18 U.S.C. § 983(g) allows a claimant to petition the court to determine whether the forfeiture was constitutionally excessive.

Fed. R. Civ. Proc. 12(b)(6): Failure to state a claim upon which relief can be granted.

This defense must be raised in the Rule 12(b)(6) motion.

Fourth Amendment: The seizure was in violation of the claimant’s Fourth Amendment right to be free from an unreasonable seizure without probable cause.

One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965); United States v. One 1978 Mercedes Benz, Four-Door Sedan, 711 F. 2d 1297 (5th Cir. 1983)(“Improper seizure does not jeopardize the government's right to secure forfeiture if the probable cause to seize the vehicle can be supported with untainted evidence."); See also, State of Texas v. One 2004 Lincoln Navigator, 494 S.W. 3d

9

690 (Tex. 2016)( an illegal seizure does not require exclusion in a civil forfeiture proceeding under Chapter 59, Texas Code of Criminal Procedure).

Failure of the government to meet strict time limits for initiation of forfeiture. 18 U.S.C. § 983. d.

Stay of Civil Forfeiture in light of criminal prosecution

18 U.S.C. § 981(g) provides that the court may stay a civil forfeiture proceeding pending the outcome of a criminal action under certain circumstances upon the request of the government or a claimant: (1) Upon the motion of the United States, the court shall stay the civil forfeiture proceeding if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related criminal investigation or the prosecution of a related criminal case.

(2) Upon the motion of a claimant, the court shall stay the civil forfeiture proceeding with respect to that claimant if the court determines that— (A) the claimant is the subject of a related criminal investigation or case; (B) the claimant has standing to assert a claim in the civil forfeiture proceeding; and (C) continuation of the forfeiture proceeding will burden the right of the claimant against self-incrimination in the related investigation or case. e.

Fines and Sanctions for Asserting a Frivolous Claim

Under 18 U.S.C. § 983(h), “In any civil forfeiture proceeding under a civil forfeiture statute in which the Government prevails, if the court finds that the claimant’s assertion of an interest in the property was frivolous, the court may impose a civil fine on the claimant of an amount equal to 10 percent of the value of 10

the forfeited property, but in no event shall the fine be less than $250 or greater than $5,000.” 18 U.S.C. § 983(h)(1). This is in addition to any sanctions the court may impose under Fed. R. Civ. P. 11. 18 U.S.C. § 983(h)(2).

III.

Criminal Forfeiture Criminal forfeiture actions are brought against persons or legal entities, as

opposed to being brought against the property to be forfeited, as in a civil forfeiture action and compel forfeiture of assets held or formerly held by such defendant person or entity. Criminal forfeiture actions are in personam actions as opposed to in rem actions and are connected to the criminal prosecution. They are governed by Federal Rule of Criminal Procedure 32.2, 18 U.S.C. § 982, and 21 U.S.C. §853.

See also 18 U.S.C §1963 (money laundering). Criminal forfeiture is “an aspect of punishment imposed following conviction of a substantive criminal offense,” Libretti v. United States, 516 U.S. 29, 39 (1995), and thus an “aspect of sentencing,” Id. at 49. a.

Pretrial Seizure of Assets

In a criminal forfeiture action, the government is authorized to restrain or seize assets pending entry of a final judgment of forfeiture. 18 U.S.C. §853(e) and (f), 18 U.S.C. §1963(d). The government may freeze assets by protective orders.

Id. Courts may enter restraining orders or injunctions, require the execution of a

11

satisfactory performance bond, or take other action to preserve the availability of property either before or after an indictment is filed. Id. In Luis v. United States, the Supreme Court held that the federal government cannot, before trial, seize the assets of the accused if those assets are unrelated to the crime and are needed to pay a defense attorney. The Court reviewed 18 U.S.C. §1345 which provides that a court may court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. Those assets include: (1) property “obtained as a result of ” the crime, (2) property “traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In Luis, the Government obtained a court order that froze assets belonging to the third category of property, namely, property that is untainted by the crime, and that belonged fully to the defendant. The Supreme Court held that insofar as the order prevented her from using her property to hire a lawyer, it was a violation of the Sixth Amendment right to counsel.

In Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989, the Supreme Court found that funds for legal fees were not exempted from criminal forfeiture by the Fifth and Sixth Amendments because a defendant “has no Sixth Amendment right to spend another person’s money.” In United States v. Monsanto, 491 U.S. 600 (1989), the Court confirmed that a pretrial freeze of defendant’s assets is constitutional so long as it is “based on a finding of probable cause to believe that 12

the assets are forfeitable. In Kaley v. United States, 134 S. Ct. 1090 (2014), the Court held that defendants have no constitutional right to challenge a grand jury’s finding of probable cause of guilt for the purpose of defeating a pretrial asset freeze, even in such freeze results in the inability to hire one’s attorney of choice.

If a client pays legal fees with property that is identified as subject to forfeiture in a criminal indictment, the lawyer will have trouble holding that fee. b.

Procedure in Criminal Case

The forfeiture allegations are tried following the guilt innocence phase of the trial. A defendant has a right to a jury determination on the forfeiture issues. Fed. R. Crim. P. 32.2(b)(5). After the forfeiture hearing and prior to sentencing the government will move for a preliminary order of forfeiture. c.

Substitute Assets

While the forfeiture statutes generally limit the property or the value of the property which may be forfeited to the property used to commit the offense (facilitating property) and the gross proceeds directly or indirectly derived from the offense (proceeds), the statutes allow the government on a proper showing to forfeit assets belonging to a defendant which are equal in value to the unlawfully used or obtained assets if the unlawfully used or obtained assets have been spent or are otherwise too difficult for the government to readily forfeit. 21 U.S.C § 853(p) and

13

18 U.S.C. § 1963(m); Fed. R. Crim. P. 32.2(e). The substitute assets provisions allow forfeiture of assets totally unrelated to criminal activity. d.

Money Judgment

The term “money judgment” is used to describe a particular kind of directly forfeitable property. In United States v. Olguin, the United States Court of Appeals for the Fifth Circuit held that 21 U.S.C § 853 authorizes personal money judgments as forfeiture for violations within the scope of that statute. 643 F.3d 384, 395 (5th Cir. 2011). A money judgment is a short-hand way of describing the defendant’s continuing obligation to forfeit the money derived from or used to commit his criminal offense whether he has retained the actual dollars in his possession or not.

For example, if the defendant sold a million dollars’ worth of drugs, or laundered a million dollars in drug proceeds, he is required to forfeit the million dollars as directly forfeitable property. The forfeiture is mandatory, and is not excused by the fact that the defendant dissipated the actual money derived from the offense when he plowed it back into his scheme, passed it on to an accomplice, buried it in his garden, or spent it. United States v. Hall, 434 F.3d 42, 59 (1st Cir. 2006) (the district court may order the defendant to forfeit a sum of money equal to the drug proceeds that he earned but did not retain; this reflects the nature of criminal forfeiture as “a sanction against the individual defendant rather than a judgment against the property

14

itself,” and is the only way to truly separate the wrongdoer from the fruits of his crime once he has spent them on “wine, women and song”). e.

Rights of Third Parties

If a court orders criminal forfeiture of property, notice must be given to “any person who reasonably appears to be a potential claimant with standing to contest the forfeiture.” Fed. R. Crim. P. 32.2(b)(6). If third party files a petition asserting an interest in the property to be forfeited the court must conduct an ancillary proceeding to determine the rights of such third parties. Fed. R. Crim. P. 32.2(c). See also 21 U.S.C. §853(n).

Claimants to property cannot oppose a federal forfeiture on the basis of their state homestead law. United States v. Lot 5, Fox Grove, Alachua County, Florida, 23 F.3d 359 (11th Cir. 1994). (Federal civil forfeiture law does preempt local homestead law and permits forfeiture of homestead interests).

15

Texas Criminal Defense Lawyers Association

Federal Law Gumbo February 10-11, 2022

Topic: Plea Bargaining Speaker:

Michael McCrum 404 E Ramsey Rd Ste 102 San Antonio, TX 78216-4665 (210) 225-2285 Phone (210) 225-7045 Fax michael@mccrumlegal.com email www.mccrumlegal.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Examples of Articles re: the Propriety of the Plea Bargaining Process Julian A. Cook, III, Federal Guilty Pleas: Inequities, Indigence, and the Rule 11 Process, 60 B.C. L. Rev. art.

2 (2019); Albert W. Alschuler, A Nearly Perfect System for Convicting the Innocent, 79 Alb. L. Rev. 919 (2015); Stephanos Bibas, The Myth of the Fully Informed Rational Actor, 31 St. Louis Pub. L. Rev. 79 (2011); Stephanos Bibas, Bringing Moral Values into a Flawed Plea-Bargaining System, 88 Cornell L. Rev. 1425 (2003); Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979 (1992); Christopher Slobogin, Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism to Preventative Justice and Hybrid-Inquisitorialism, 57 Wm. & Mary L. Rev. 1505 (2016); Jenny Roberts, Effective Plea Bargaining Counsel, 122 Yale L.J. 2650 (2013); Robert E. Scott & William J. Stuntz, A Reply: Imperfect Bargains, Imperfect Trials, and Innocent Defendants, 101 Yale L.J. 1909 (1992); Julian A. Cook, III, All Aboard! The Supreme Court, Guilty Pleas, and the Railroading of Criminal Defendants, 75 U. Colo. L. Rev. 863 (2004).

Legal Citations Gideon v. Wainwright, 372 U.S. 335 (1963) (6th Amendment right to effective assistance of counsel applies to trials) Hill v. Lockhart, 474 U.S. 52 (1985) (6th Amendment right to effective assistance of counsel applies to pleas) Padilla v. Kentucky, 559 U.S. 356 (2010) (defendant has constitutional right to counsel's advice regarding deportation consequences) Missouri v. Frye, 566 U.S. 134 (2012) (6th Amendment right to effective assistance of counsel extends to right to receive prosecutor's plea offer in determining whether to plead or go to trial) Lafler v. Cooper, 566 U.S. 156 (2012) (6th Amendment right to effective assistance counsel in connection with plea versus trial advice) U.S. v. Parker, 720 F.3d 781 (10th Cir. 2013) (standards of effective assistance in plea bargain process) U.S. Glinsey, 209 F.3d 386 (5th Cir. 2000) (standards for effective assistance in plea bargain process) Boyd v. Warden, State Corr. Inst. Waymart, 579 F.3d 330 (3d Cir. 2009) (standards for effective assistance in plea bargain process) U.S. v. Leonti, 326 F.3d 1111 (9th Cir. 2003) (standards for effective assistance in defendant's cooperation with government) U.S. v. Sincleair, 16 F.4th 471(5th Cir. 2021) (inappropriate upward adjustment for gun possession) U.S. v. McClaren, 13 F.4th 386 (5th Cir. 2021) (drug amount calculation inappropriate) U.S. v. Sutton, No. 20-50597, 2021 U.S. App. LEXIS 22623 (5th Cir. July 30, 2021) (inappropriate upward adjustment for gun possession) U.S. v. White, 842 Fed.Appx. 894 (5th Cir. 2021) (inappropriate adjustments for gun and drugs in co-conspirator's car) U.S. v. Mata, 715 Fed.Appx. 432 (5th Cir. 2018) (reckless endangerment reasonably foresseable standard) U.S. Royas-Mendoza, 456 Fed.Appx. 477 (5th Cir. 2012 (reckless endangerment reasonably foreseeable standard) U.S. v. Mun, 837 Fed.Appx. 293 (5th Cir. 2019) ("but for" standard in migrant's death) U.S. v. Salinas, 918 F.3d 463 (5th Cir. 2019) ("but for" standard in migrant's death)

U.S. v. Aviles-Puentes, 783 Fed.Appx. 472 (5th Cir. 2019) ("but for" standard in migrant's death) U.S. v. Hernandez, 890 F.3d 202 (5th Cir. 2018) ("but for" standard in migrant's death) U.S. v. Moya, No. 20-40393, 2021 U.S. App. LEXIS 34178 (5th Cir. Nov. 17, 2021) (inappropriate joint & several forfeiture judgment) U.S. v. Akiya, 837 F.3d 460 (5th Cir. 2016) (inappropriate forfeiture of all monies in account) U.S. v. Kim, 988 F.3d 803 (5th Cir. 2021) (speculative restitution order reversed)

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MEMORANDUM FOR ALL FEDERAL PROSECUTORS

----

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1{1~)/{_------

FROM:

THE ACTING ATTORNEY GENERAL

SUBJECT:

Interim Guidance on Prosecutorial Discretion, Charging, and Sentencing

The reasoned exercise of prosecutorial discretion is critical to the fairness, effectiveness, and integrity of the criminal justice system. For decades, consistent with the Principles of Federal Prosecution, the Department of Justice has provided guidance to federal prosecutors underscoring the importance of making careful, case-specific assessments as to what matters to investigate, which charges to bring, when to enter into plea agreements, and how to advocate at sentencing.

To ensure that prosecutors are able to exercise this discretion in pursuing justice, I am rescinding, effective immediately, the directive entitled Department Charging and Sentencing Policy (May 10, 2017) and reinstating the guidance articulated in Department Policy on Charging and Sentencing (May 19, 2010) as an interim measure before Senate-confirmed leadership is in place at the Department. The goal of this interim step is to ensure that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts while longer-term policy is formulated. This interim policy supersedes any conflicting Justice Manual provisions.

Together we will work to safeguard the public, maximize the impact of our federal resources, avoid unwarranted disparities, promote fair outcomes in sentencing, and seek justice in every case. Thank you for your continued dedication to achieving those goals.

U.S. Department Office of Justice of the Attorney General Washington, DC 20530

May 19,2010 MEMORANDUM TO ALL FEDERAL PROSECUTORS From:

Eric H. Holder, Jr. Attorney General

Subject:

Department Policy on Charging and Sentencing

The reasoned exercise of prosecutorial discretion is essential to the fair, effective, and even-handed administration of the federal criminal laws. Decisions about whether to initiate charges, what charges and enhancements to pursue, when to accept a negotiated plea, and how to advocate at sentencing, are among the most fundamental duties of federal prosecutors. For nearly three decades, the Principles of Federal Prosecution, as reflected in Title 9 of the U.S. Attorneys' Manual, Chapter 27, have guided federal prosecutors in the discharge of these duties in particular and in their responsibility to seek justice in the enforcement of the federal criminal laws in general. The purpose of this memorandum is to reaffirm the guidance provided by those Principles.

Persons who commit similar crimes and have similar culpability should, to the extent possible, be treated similarly. Unwarranted disparities may result from disregard for this fundamental principle. They can also result, however, from a failure to analyze carefully and distinguish the specific facts and circumstances of each particular case. Indeed, equal justice depends on individualized justice, and smart law enforcement demands it. Accordingly, decisions regarding charging, plea agreements, and advocacy at sentencing must be made on the merits of each case, taking into account an individualized assessment of the defendant's conduct and criminal history and the circumstances relating to commission of the offense (including the impact of the crime on victims), the needs of the communities we serve, and federal resources and priorities. Prosecutors must always be mindful of our duty to ensure that these decisions are made without unwarranted consideration of such factors as race, gender, ethnicity, or sexual orientation.

Charging Decisions: Charging decisions should be informed by reason and by the general purposes of criminal law enforcement: punishment, public safety, deterrence, and rehabilitation. These decisions should also reflect the priorities of the Department and of each district. Charges should ordinarily be brought if there is probable cause to believe that a person has committed a federal offense and there is sufficient admissible evidence to obtain and sustain a conviction, unless "no substantial Federal interest" would be served, the person is subject to

2

"effective prosecution" elsewhere, or there is "an adequate non-criminal alternative to prosecution" [USAM 9-27.200 et seq.].

Moreover, in accordance with long-standing principle, a federal prosecutor should ordinarily charge "the most serious offense that is consistent with the nature of the defendant's conduct, and that is likely to result in a sustainable conviction" [USAM 9-27.300]. This determination, however, must always be made in the context of "an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purpose of the Federal criminal code, and maximize the impact of Federal resources on crime" [USAM 9-27.300]. In all cases, the charges should fairly represent the defendant's criminal conduct, and due consideration should be given to the defendant's substantial assistance in an investigation or prosecution. As a general matter, the decision whether to seek a statutory sentencing enhancement should be guided by these same principles.

All charging decisions must be reviewed by a supervisory attorney. All but the most routine indictments should be accompanied by a prosecution memorandum that identifies the charging options supported by the evidence and the law and explains the charging decision therein. Each office shall promulgate written guidance describing its internal indictment review process.1 Plea Agreements: Plea agreements should reflect the totality of a defendant's conduct.

These agreements are governed by the same fundamental principle as charging decisions: prosecutors should seek a plea to the most serious offense that is consistent with the nature of the defendant's conduct and likely to result in a sustainable conviction, informed by an individualized assessment of the specific facts and circumstances of each particular case.

Charges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct. All plea agreements should be consistent with the Principles of Federal Prosecution and must be reviewed by a supervisory attorney. Each office shall promulgate written guidance regarding the standard elements required in its plea agreements, including the waivers of a defendant's rights.

Advocacy at Sentencing: As the Supreme Court has recognized, Congress has identified the factors for courts to consider when imposing sentences pursuant to 18 U.S.C. §3553.

Consistent with the statute and with the advisory sentencing guidelines as the touchstone, prosecutors should seek sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford deterrence, protect the public, and offer defendants an opportunity for effective rehabilitation. In the typical case, the appropriate balance among these purposes will continue to be reflected by the applicable guidelines range, and prosecutors should generally continue to advocate for a sentence within that range. The advisory guidelines remain important in furthering the goal of national uniformity throughout the federal system. But consistent with the Principles of Federal Prosecution and given the advisory 1

This memorandum has no impact on the guidance provided in the September 22, 2003 memorandum and elsewhere regarding "fast-track" programs. In those districts where an approved "fast-track" program has been established, charging decisions and disposition of charges must comply with the Department's requirements for that program.

3 nature of the guidelines, advocacy at sentencing—like charging decisions and plea agreements— must also follow from an individualized assessment of the facts and circumstances of each particular case. All prosecutorial requests for departures or variances—upward or downward— must be based upon specific and articulable factors, and require supervisory approval. Each office shall provide training for effective advocacy at sentencing.

With respect to charging decisions, plea agreements, and advocacy at sentencing, the mechanisms established for obtaining supervisory approval should be designed to ensure, as much as possible, adherence to the Principles of Federal Prosecution and the guidance provided by this memorandum, as well as district-wide consistency. Supervisory attorneys selected to review exercises of discretion should be skilled, experienced, and thoroughly familiar with Department and district-specific policies, priorities, and practices. All guidance described above must be shared with the Executive Office for U.S. Attorneys upon promulgation.

This memorandum supersedes previous Department guidance on charging and sentencing including the September 22, 2003 memorandum issued by Attorney General John Ashcroft ("Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing"), the July 2, 2004 memorandum issued by Deputy Attorney General James Comey ("Department Legal Positions and Policies in Light of Blakely v. Washington"), and the January 28, 2005 memorandum issued by Deputy Attorney General James Comey ("Department Policies and Procedures Concerning Sentencing").

Texas Criminal Defense Lawyers Association

Federal Law Gumbo February 10-11, 2022

Topic: White Collar Cases, 5th Circuit & Supreme Court Speaker:

Hon. Henry Bemporad 655 E Cesar E Chavez Blvd San Antonio, TX 78206-1103 (210) 472-6363 Phone (210) 472-4454 Fax henry_bemporad@txwd.uscourts.gov email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Significant Decisions IN THE FIFTH CIRCUIT COURT OF APPEALS, NOVEMBER 2020 TO NOVEMBER 2021

Judy Fulmer Madewell FIRST ASSISTANT FEDERAL PUBLIC DEFENDER

Kristin Kimmelman & Laura Greenberg ASSISTANT FEDERAL PUBLIC DEFENDERS OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TEXAS

TABLE OF CONTENTS I.

Bail and Detention ........................................................................... 2

II.

Search and Seizure........................................................................... 3

III.

Guilty Pleas .................................................................................... 11

IV.

Trial ................................................................................................ 16 ➢ Pretrial Matters ................................................................ 16 ➢ Jury Instructions .............................................................. 19 ➢ Evidentiary Issues ............................................................ 20 ➢ Sufficiency of Evidence/Proving an Offense..................... 23

V.

Miscellaneous Trial Matters .......................................................... 31

VI.

Prosecutorial/Judicial Misconduct ................................................. 33

VII. Categorical Approach ..................................................................... 34 VIII. Sentencing ...................................................................................... 37 ➢ Constitutional Challenges ................................................ 37 ➢ Statutory Challenges ........................................................ 39 ➢ (Selected) Guideline Issues .............................................. 41 ➢ Concurrent/Consecutive Sentencing ................................ 49 ➢ Procedural Reasonableness .............................................. 51 ➢ Substantive Reasonableness ............................................ 53 ➢ Supervised Release/Probation .......................................... 55 ➢ Restitution/Forfeiture....................................................... 59 IX.

Appeals ........................................................................................... 61

VIII. Post-Conviction .............................................................................. 64

1

I.

BAIL AND DETENTION

United States v. Baltazar-Sebastian, 990 F.3d 939 (5th Cir. Mar. 10, 2021). Baltazar was arrested at her place of employment during an ICE worksite enforcement action. She admitted she was not in possession of proper immigration documents, ICE took her into custody, and she was civilly charged with being inadmissible under the INA and was booked into an ICE detention facility. Shortly thereafter, Baltazar was charged with misusing a social-security number, in violation of 42 U.S.C. § 408(a)(7)(B). A warrant was issued for her arrest; and, in response, ICE transferred her to the Southern District of Mississippi for her initial appearance. Before the transfer, ICE lodged a detainer, advising Baltazar would return to immigration detention in the event of her release by the district court. Baltazar pleaded not guilty to her criminal charges, and she was ordered released under the Bail Reform Act (BRA).

Without objection from either party, one condition required that Baltazar remain in the judicial district during the pendency of the criminal proceedings. Despite the condition, ICE took Baltazar back into immigration detention in another judicial district, under its authority under the INA to detain inadmissible people. Upon motion by Baltazar, the district court granted Baltazar’s request to enforce the September release order, precluding ICE detention. The Government appealed that order.

The Fifth Circuit addressed its jurisdiction and held it lacked jurisdiction over the initial release order because it was issued by a magistrate judge and not a district court. The Court, however, had jurisdiction over the district court’s enforcement order. On the merits, the Court held the district court’s order releasing Baltazar pursuant to the BRA pending trial, subject to conditions, did not prevent ICE from exercising its authority under the INA to facilitate Baltazar's removal upon her release, although her criminal case was still pending, given that she was subject to a lawful immigration detainer and a valid, preexisting removal order. The BRA and the INA did not conflict, and pretrial release under the BRA did not preclude pre-removal detention under the INA.

2

II.

SEARCH AND SEIZURE

United States v. Beard, __ F.4th __, 2021 WL 4932992 (5th Cir. Oct. 22, 2021). Beard moved to suppress evidence obtained by law enforcement as a result of the seizure and detention of a package he had mailed from Houston, Texas, to Hammond, Louisiana. Beard conceded there was reasonable suspicion for the initial seizure but argued that the continued detention was unreasonable. The Fifth Circuit disagreed, holding that the detention was reasonable.

A U.S. Postal Service investigator was investigating Beard for sending pills in the mail. Beard had been identified as a supplier by people arrested for drugs that had been mailed to them. The investigator had been informed that a Kelly McAllister in Hammond, La, had wired payments to Beard. The investigator put an alert on McAllister’s address because he believed Beard may mail him drugs. In January 2018, there was an alert that a package had been mailed to McAllister’s address. The investigator saw a picture of the package and it had characteristics of drug activity associated with Beard. The investigator requested that the package be pulled from the mail stream. The USPS was unable to stop the package because did not know where exactly it was. It arrived 3 days later. The package was pulled. This was the initial seizure. The investigator asked that the package be mailed back to Houston. He expected that it would take 1-2 days. Although he could have had a canine sniff done in Hammond, he believed that it would take as much time to accomplish that—and end up with a different USPS investigator and AUSA—as it would to have it sent back to him.

It took 5 days for the package to arrive. When the investigator received the package, he manipulated it and felt what seemed to be 2 separate masses of powder. The next morning, a drug canine alerted on the package. The investigator obtained a search warrant within 24 hours of the package arriving back in Houston.

On appeal, Beard argued that the detention became an unreasonable seizure when it was rerouted back to Houston, which took 5 days, and that they could have done a canine sniff in Hammond. The Fifth Circuit noted that Fourth Amendment protections apply to packages sent via USPS. While in the mail, a package can searched lawfully only with a 3

search warrant. But a package can be detained based on reasonable suspicion. The Court remarked that there is little guidance on how long it takes for the detention to become unreasonable. The Court disagreed that the decision to reroute the package back to Houston was unreasonable. Investigator expected it would take only 1-2 days; the 5 day delay was beyond the investigator’s control. When the package arrived in Houston, it was promptly dealt with.

United States v. Flowers, 6 F.4th 651 (5th Cir. July 30, 2021). The questions were whether Flowers was seized when officers in separate patrol cars surrounded his parked car with flashing lights, and whether the officers had reasonable suspicion to support that seizure. The majority said even if Flowers was seized, there was reasonable suspicion—largely because the car was parked facing the convenience store wall (instead of the glass windows/doors) and it was a high crime neighborhood. The majority argued officers should be allowed to approach persons in cars for questioning in this manner in high crime areas because officers “may well require safety in numbers, while the law-abiding citizens desperately need protection that will be denied if law enforcement officials believe that incriminating evidence will be suppressed or they will be sued for alleged violations of rights.”

Judge Elrod dissented on the Fourth Amendment issue. She thought precedent clearly supported there being a seizure, took issue with the suspicions the officers and majority drew from where Flowers parked in the small parking lot, and found suspicion lacking. She warned that the decision “‘comes dangerously close to declaring that persons in ‘bad parts of town’ enjoy second-class status in regard to the Fourth Amendment.’” (quoting a dissent written by Judge Smith in United States v. Rideau, 969 F.2d 1572, 1577 (5th Cir. 1992), who was part of the majority in this case).

United States v. Norbert, 990 F.3d 968 (5th Cir. 2021), rehearing, en banc, granted, 2021 WL 2641007 (5th Cir. June 25, 2021). The Government appealed the district court’s granting Norbert’s motion to suppress evidence. The Fifth Circuit held the district court did not err in finding that the officers did not have reasonable suspicion to conduct an investigatory stop.

4

The stop was based on a caller, who was unknown to the police, and only identified herself as a manager of the Millsaps Apartments. She did not provide her name, phone number, or any other identifying information, and the police did not take any further steps to verify her identity. All the police had to go on in this case was the bare report of an unknown, unaccountable informant and while an accurate description of a suspect’s readily observable location and appearance will help the police correctly identify the person being accused, the tip does not show that the tipster has knowledge of concealed criminal activity. The Court noted, the reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

Note: In granting en banc review, the Court vacated this opinion. En banc oral argument is set for January 2022.

United States v. Morton, 984 F.3d 421 (5th Cir. 2021), rehearing, en banc, granted, 2021 WL 1990794 (5th Cir. May 18, 2021). A panel of the Fifth Circuit held that officers lacked probable cause to search Morton’s cell phone for photographs. The affidavit in support of the warrant to search for photographs on the phone relied on the officer’s knowledge of the behavior of drug traffickers. The only times Morton's photographs are mentioned in the affidavits are in connection with statements about the behavior of drug traffickers. The Court held that the officer could not rely on these assertions to search the photo contents of the cellphone because Morton was only charged with simple possession. And the officer, in his affidavit, was not allowed to ignore the evidence that negated probable cause as to trafficking, such as the lack of any evidence of trafficking present when the usable quantity of drugs was found on Morton.

The Court also held good faith did not apply because the fact known to the officer and relied on for the search warrant lead to the sensible conclusion that Morton was a consumer of drugs, not a drug dealer.

Under these facts, reasonably well-trained officers would have been aware that searching the digital images on Morton's phone—allegedly for drug trafficking-related evidence—was unsupported by probable cause, 5

despite the magistrate's approval. Any additional assertions in the affidavits were too minimal and generalized to provide probable cause for the magistrate to authorize the search of the photographs.

Note: The Fifth Circuit ordered that the case shall be reheard by the court en banc, and the Court vacated the opinion. En banc argument was heard September 2021.

United States v. Thomas, 997 F.3d 603 (5th Cir. May 17, 2021).

Thomas challenges the district court’s denial of his motion to suppress evidence of a firearm discovered during a stop and frisk. Officers were patrolling an area of Dallas, known for pervasive crime involving drugs and violence. The officers had been informed earlier that day that a vehicle stolen 10 days earlier, in an aggravated robbery, had been identified in the area. The officers saw the stolen vehicle near the entrance to an apartment building. They saw two people sitting inside the stolen vehicle, while another four people, including Thomas, were standing in the immediate vicinity of the car. Thomas was standing closest to the car, by the driver's side.

Relying on what they observed and what they knew from the report of the aggravated robbery, the officers decided to stop and frisk all six people in and around the car. The officers drew their firearms for officer safety because the underlying crime was an aggravated robbery, so a weapon was involved. The officers ordered everybody to get on the ground and all complied. The officers then handcuffed four most of them, including Thomas, behind their backs as they were lying face down. The officers frisked each person for weapons, which they said was necessary even though they were on the ground and handcuffed because it remained possible for them to access a concealed weapon. The officer who frisked Thomas found a loaded firearm in his waist area.

Thomas was indicted for being a felon in possession of a firearm. He filed a motion to suppress evidence, arguing that it was not enough to justify the stop that officers saw him in the vicinity of the stolen vehicle and reportedly saw him speak to the occupants. He also argued that the circumstances of his detention — the officers’ drawing their firearms, ordering him to the ground, and handcuffing him — converted the 6

investigatory stop into an arrest for which the officers lacked probable cause. He also argued that, even if Terry applied, the officers lacked reasonable suspicion to stop him or to frisk him. He pleaded not guilty, had a bench trial in which he stipulated the Government could prove the basic facts necessary for conviction, and reserved the right to appeal the denial of his motion to suppress.

On appeal, the Fifth Circuit held the officers had a particularized and objective basis for suspecting that Thomas was involved in the crime.

Based on his close physical proximity to a car known to be stolen and his conversation with the person in the driver’s seat. It was not objectively unreasonable for the officers to be uncertain how many people had responsibility for the earlier robbery, and it was not unreasonable to suspect that those inside the vehicle might not be the culprits and instead were only being allowed to admire the vehicle stolen by someone standing outside. And the passage of 10 days since the car was stolen did not eliminate the reasonableness of the officers’ suspicions.

The Court also held the frisk was reasonable because the robbery involved the use of a weapon, and the officers were outnumbered six to two and unable to secure all six people because they only had four sets of handcuffs.

The Court also held that the stop was not converted into an arrest prior to Thomas being frisked. the officers were outnumbered six to two in a high-crime area known for drug and violent crime, and the crime they were investigating was an aggravated robbery involving a weapon, and Thomas and the others were kept on the ground for about ten minutes.

Finally, the Court rejected Thomas’s argument that the officers cannot rely on Terry unless they have an investigatory purpose in mind. The testifying officer said Dallas Police Department policy prohibited an officer from asking questions about the underlying crime unless the detective assigned to the investigation was present. Thomas argued lacked the requisite investigatory purpose to justify a Terry stop.

United States v. Bass, 996 F.3d 729 (5th Cir. May 11, 2021). Police officer had reasonable suspicion to conduct a Terry stop of Bass based on 7

a tip by an off-duty officer. The tip reported suspicious activity in a highcrime area known for drug dealing, and that a man was standing next to his vehicle and appeared to be selling items from the trunk. The tip provided reasonable suspicion because it was marked by “indicia of reliability,” and was specific to an area well-known for illegal activity.

When the officer approached him, Bass admitted he was selling CDs; and when the officer asked Bass whether there was anything illegal in the vehicle, Bass answered, Just the CDs. The Fifth Circuit held that Bass’s behavior and response to questions supported the officer’s suspicion, so the Terry stop was justified at its inception. As for the scope of the Terry stop, the officer did not unreasonably prolong Bass’s investigatory stop because within the first minute of questioning, Bass told the officer he had illegal CDs in his car, and acknowledged he was selling CDs and DVDs, that he didn’t have any identification, he didn’t own the vehicle he was driving, and he had previously been charged with illegally selling CDs. Bass’s consent to search was voluntarily given; he was calm and cooperative, the record does not indicate the officer made any threats or intimidation to obtain Bass's consent to search, and Bass was aware he had the right to refuse consent. His consent to search allowed the officers to search the entire vehicle because Bass did not appear to place any limitation on the places to be searched. A consent to search a car will support an officer’s search of unlocked containers within it. The officer found drugs and a gun in the car. Bass was charged and convicted of being a felon in possession of a firearm.

At sentencing, the district court applied the Armed Career Criminal Act’s sentence enhancement for a prior controlled substance offense, under 18 U.S.C. 924(e). The Fifth Circuit rejected Bass’s assertion that his prior Arkansas delivery of controlled substance offenses did not support his ACCA sentence enhancement. Contrary to Bass’s argument, the Arkansas statute does not include an offer to sell within its definition of delivery.

United States v. McKinney, 980 F.3d 485 (5th Cir. Nov. 16, 2020).

McKinney moved to suppress a gun found after officers conducted a patdown search. This occurred after the officers observed gang members 8

hanging out near a gas station. The police report asserts that “[t]he group was wearing red colors,” though in fact only McKinney had red clothing, and that McKinney was wearing a jacket and hat even though “[i]t was quite warm and humid out.” The report also states that when one of the men saw the officers, he “turned and appeared to drop something very small.” Finally, it claims that the officers approached the group and frisked the men “due to the area being a [B]loods gang location and all of [the] [recent] shooting[s] at this location.” The district court denied the motion.

The Court held McKinney and each person in the group was “seized” when the officer jumped out of the police car and approached the group, shined his flashlight on the woman who appeared to be walking away and ordered that she return. No reasonable person would have felt free to walk away. Thus, the initial detention must be justified at its inception, and the issue is whether the officers had reasonable suspicion based on their observations at the time they ordered the woman to stop.

The Court also held the officers lacked reasonable suspicion, noting a person’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. The officers were patrolling the area in response to recent shootings, but those shootings do not justify stopping anyone absent an articulable suspicion about a connection between the person and those crimes. Nothing observed by the officers connected McKinney or anyone else standing on the sidewalk to the recent and nearby shootings that had been made from passing vehicles. Only McKinney was wearing red, identified as a gang color by the officers. The Court declined to accept that there is reasonable suspicion for questioning everyone in a crime-ridden neighborhood wearing one article of clothing that is not an unusual color but happens also to be the color of choice for a gang. Because the record lacked evidence of reasonable suspicion justifying the initial stop, the Court did not need to reach the question of whether the officers had reasonable suspicion justifying the frisk of McKinney that led to the incriminating evidence.

Note: On remand, the district court held a suppression hearing and denied the motion to suppress. The new appeal is pending.

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United States v. Beaudion, 979 F.3d 1092 (5th Cir. Nov. 11, 2020).

The defendant was convicted of drug trafficking. He challenged a search warrant that relayed to officers the GPS coordinates of his girlfriend’s vehicle in real time. Based on this information, officers found the vehicle, stopped it, and found drugs. The Fifth Circuit affirmed the conviction because the defendant lacked Fourth Amendment standing on the basis that the information all pertained to his girlfriend and her vehicle.

United States v. Kendrick, 980 F.3d 432 (5th Cir. Nov. 3, 2020). A defendant was convicted of conspiracy to distribute crack cocaine and felon in possession of a firearm. He challenged a wiretap affidavit as recklessly false and misleading. The Fifth Circuit, applying its analysis from United States v. Ortega, 854 F.3d 818, 826 (5th Cir. 2017), considered what was left of the affidavit after all allegedly false statements were omitted and found probable cause still existed.

United States v. Aguilar, 973 F.3d 445 (5th Cir. Sept. 2, 2020). The defendant was stopped entering the US from Mexico at the POE. He was accompanying two women carrying cans to which a drug-dog alerted and an x-ray displayed anomalies. The Border Patrol (BP) agents suspected the three were involved in drug importation. The BP agents took the defendant’s phone. Nine days later, a BP agent forensically examined the phone’s SIM card without a warrant. The agent discovered cell phone calls to Mexico. Even later, the investigation determined that the cans contained meth. The defendant was charged with conspiring to import and importing meth. He filed a motion to suppress, arguing that, under Riley v. California, 573 U.S. 373 (2014), the officers illegally searched the contents of the phone. The district court denied the motion, holding that the good faith exception applied.

On appeal, the Fifth Circuit agreed with the district court. Even though the cell phone search occurred after Riley, it took place at the border, where the government’s interests are at their zenith. Neither the Supreme Court nor the Fifth Circuit have held that digital border searches require individualized suspicion. At the time of the search, two federal courts of appeal and one federal district court had held that forensic digital searches require reasonable suspicion. See United States 10

v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc); United States v.

Kolsuz, 890 F.3d 133 (4th Cir. 2018); United States v. Saboonchi, 48 F. Supp. 3d 815 (D. Md. 2014). However, no court had required a warrant to conduct a forensic search at the border. The Fifth Circuit panel did note in a footnote that Judge Costa, in a concurring opinion in United States v. Molina-Isidro, 884 F.3d 287 (5th Cir. 2018), had expressed concerns about border cell phone searches for items other than contraband, it was not a holding requiring a warrant. Accordingly, the Border Patrol agents had a good faith, reasonable belief that they could search the defendant’s phone without a warrant. They also had reasonable suspicion for doing so.

United States v. Gallegos-Espinal, 970 F.3d 586 (5th Cir. Aug. 17, 2020), cert. denied, 141 S. Ct. 1247, 208 L. Ed. 2d 634 (2021). Agents suspected Gallegos of participating in his mother’s alien smuggling scheme, and he signed a consent allowing them to search his iPhone.

When they searched the iPhone, they found child pornography. Gallegos moved to dismiss the evidence from the iPhone, and the district court found that Gallegos’s written consent to a “complete search” of the iPhone could not support a review of extracted data three days after the phone was returned. The Government filed an interlocutory appeal. The Fifth Circuit majority found that a typical reasonable person would have interpreted the written consent to allow a forensic search of the phone.

The Court reviewed the totality of the circumstances surrounding the oral and written consent. Judge Graves dissented. He would have found the search exceeded the scope of consent because “the consent form insufficiently explained that the iPhone’s data would be extracted for later review and because the Cellebrite iPhone extraction occurred outside of Gallegos-Espinal’s presence….”

III. GUILTY PLEAS United States v. Gardner, ___ F.4th ___, No. 20-50481, 2021 WL 4570873 (5th Cir. Oct. 6, 2021). The Court vacated the district court’s denial of Gardner’s motion to withdraw his guilty plea and remanded the case for an evidentiary hearing.

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Gardner, through his second attorney, filed a motion to withdraw his guilty plea based on ineffective assistance (IAC) of counsel by his first attorney. The next day, the district court denied the motion without a hearing. The question on appeal was whether Gardner had alleged sufficiently facts showing that his first attorney rendered IAC, such that he was entitled to a hearing on the motion. The Court held that Gardner met both prongs of Strickland v. Washington, 466 U.S. 668 (1984): 1) counsel’s representation fell below an objection standard of reasonableness—the first attorney told Gardner that he could file a motion to suppress after Gardner pleaded guilty. It is well-settled that a guilty plea waives all nonjurisdictional defects in the court proceeding, and Federal Rule of Criminal Procedure 11(a)(2) clearly lays out the procedure for a conditional guilty plea; 2) counsel’s performance affected the outcome—Gardner claimed that he would not have pleaded guilty if he had known that he could not file a suppression motion after the plea. Because the motion alleged facts, that if true, are sufficient to justify relief under Strickland, the district court abused its discretion in denying the motion without a hearing.

The Court also addressed whether the second attorney had taken too long to file the motion to withdraw the guilty plea. See United States v.

Carr, 740 F.2d 339 (5th Cir. 1984) (factors to determine whether defendant has shown a just reason for withdrawal). The Court held that the attorney had not taken too long—“We agree that here where the delay is at the hands of appointed counsel called to trial in other cases, delays of a genre inherent in the dynamic of an active, well moving docket, the delay ought not weigh heavily against the defendant.”

United States v. Escajeda, 8 F.4th 423 (5th Cir. Aug. 11, 2021). The defendant pleaded guilty to, among other things, conspiracy to distribute drugs. On appeal, he argued that the factual basis was insufficient to support the plea. The Fifth Circuit acknowledged that certain case law appeared to provide for colorable arguments. First, a single buy-sell agreement cannot be a conspiracy under the “buyer-seller” exception to drug distribution conspiracies. Here, however, the defendant twice sold drugs to the government informant, so the exception did not apply.

Second, an agreement with a government informant cannot be the basis 12

for a conspiracy because the informant does not share the required criminal intent. Here, the two controlled buys could not serve as proof of a conspiracy since both were with the informant. The Fifth Circuit held, however, that the factual basis was sufficient because of circumstantial evidence of the defendant’s involvement in a drug distribution conspiracy. This evidence included sizeable amounts of cash, large quantities of drugs, and the presence of weapons.

In a footnote, the Court noted a discrepancy in the case law regarding whether a large quantity of drugs alone may serve as sufficient proof of a conspiracy. It did not “wade into the issue” because here there were weapons and cash. However, it suggested that the discrepancy may have to do with the actual quantity of drugs involved.

United States v. Butler, 7 F.4th 408 (5th Cir. Aug. 10, 2021). Butler pleaded guilty pursuant to a plea agreement that waived the right to appeal her sentence. On appeal, she argued that the district court failed to sentence her in accordance with the agreement and that the waiver did not apply to her argument that her federal benefits should not have been denied under 21 U.S.C. § 862. That statute gives courts the discretion to deny federal benefits for up to 5 years after a first drug conviction and up to 10 years after a second drug conviction; after a third drug conviction, a defendant is permanently ineligible for Federal benefits. The Fifth Circuit held that the plea agreement did not delineate all aspects of Butler’s sentence, and the district court could deny benefits under § 862 even though the agreement did not specifically say it could.

The Court also held that Butler knowingly waived her right to appeal her sentence, which included waiving any challenge to how the district court applied § 862.

United States v. Jackson, 7 F.4th 261 (5th Cir. July 28, 2021). On plain error review, the Fifth Circuit vacated Jackson’s RICO conviction that was based on his intent to commit a crime of violence (as defined by 18 U.S.C. § 16), identified as sex trafficking of children under 18 U.S.C. § 1591(a)(1) and (b)(2). After Jackson had pleaded guilty and been sentenced, the Supreme Court ruled that § 16(b) (the residual clause) was unconstitutionally vague. Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The Government conceded the first three prongs of plain error. The Court 13

agreed after conducting its own analysis. First, there was error because, as explained by the Fourth Circuit in United States v. Fuertes, 805 F.3d 485, 499 (4th Cir. 2015), sex trafficking by force, fraud, or coercion can be committed nonviolently and does not qualify as a crime of violence under the § 16(a) force element clause. Second, “the error was clear or obvious because the plain terms of the … statute establish that it does not qualify as a crime of violence.” Third, there is a reasonable probability that Jackson would not have pleaded guilty to that offense if he had known the factual basis failed to show his conduct violated the statute. The Government argued the Court should not exercise its discretion to vacate the conviction under the fourth prong because the Government could prosecute Jackson for other offenses and Jackson would face higher Guidelines and statutory minimum if convicted of those other charges.

The Court chose to exercise its discretion because “to convict someone of a crime on the basis of conduct that does not constitute the crime offends the basic notions of justice and fair play embodied in the Constitution” (cleaned up).

United States v. Smith, 997 F.3d 215 (5th Cir. May 5, 2021). On plain error review, the Fifth Circuit finds there was an insufficient factual basis to support Smith’s guilty plea to being a felon in possession of a firearm. The Court found there was no evidence in the record that Smith had either actual or constructive possession of the firearm. Smith did not control the relevant premises where the gun was located, and there was no evidence in the record that Smith owned the gun or otherwise controlled it or its location. The only evidence regarding Smith’s interaction with firearm was his admission to “touching” the firearm.

But, briefly sampling or handling contraband does not constitute constructive possession.

The Court rejected the government’s argument that Smith’s possession could be inferred from the fact that he knew the caliber of the firearm without officers mentioning it to him. The Court noted that “even if we made the questionable assumption that an individual’s knowledge of an object’s features can imply prior control over the object, the officers here showed Smith the picture of the .38 revolver before he told them its caliber.”

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Judge Smith dissented. He argues the majority “engrafts a requirement reminiscent of constructive possession onto our law about actual possession and splices part of an affirmative defense onto § 922(g)’s possession requirement.” On plain error review, which allows for a complete review of the record, the facts that Smith, by his own admission, is the leader of a street gang that burgles vehicles, sells narcotics, and steals, possesses, and sells firearms, should have supported the factual basis in support of the plea.

United States v. Brune, 991 F.3d 652 (5th Cir. Mar. 22, 2021). In charging Brune with a distribution of methamphetamine offense, the government accidentally cited the penalty provision in 21 U.S.C. §§ 841(b)(l)(C) instead of (b)(1)(B). After Brune had pleaded guilty, the court copied that error into its order accepting his plea but later corrected it.

Brune contended that the court’s correction of the erroneous citation amounted to double jeopardy. The Fifth Circuit held that no doublejeopardy interest “is implicated” in the “acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending.” Thus, double jeopardy did not bar prosecution of a greater offense after a plea of a lesser-included offense.

United States v. Medel-Guadalupe, 987 F.3d 424 (5th Cir. Feb. 8, 2021). The defendant pleaded guilty to one count of harboring illegal aliens. On appeal, he argued that 8 U.S.C. § 1324, which includes a separate provision on aiding and abetting, was duplicitous. The Fifth Circuit held that the defendant waived the argument by pleading guilty.

United States v. Corrall, 831 F. App’x 147 (5th Cir. Dec. 11, 2020).

Corrall challenged the sufficiency of the evidence to support his guilty plea to conspiracy to possess with intent to manufacture and distribute more than 50 grams of actual methamphetamine. Relying on McFadden v. United States, 576 U.S. 186, 194 (2015), he argued that the factual basis was insufficient because there was no indication that he knew the type of controlled substance involved in the offense and no evidence suggesting that he participated in manufacturing methamphetamine.

Because Corrall did not object to the sufficiency of the factual basis, review was for plain error. The Court found the factual basis sufficient, noting that knowledge of the type and quantity of a controlled substance 15

is not an element of a 21 U.S.C. § 841 offense and that it is not clear or obvious that McFadden’s holding extends beyond the Controlled Substance Analogue Enforcement Act or that it changes this court’s precedent in non-analogue cases.

United States v. Cooper, 979 F.3d 1084 (5th Cir. Nov. 9, 2020). The defendant pleaded guilty to drug trafficking as well as one 18 U.S.C. § 924(c) count for possessing a firearm in furtherance of a drug trafficking crime. The defendant argued that there was an insufficient factual basis to show that his firearm possession was in furtherance of drug trafficking because the district court failed to investigate whether he knew about a firearm in the vehicle or knew only about the backpack containing the firearm. The Fifth Circuit affirmed, explaining that the district court’s duty was to compare the facts contained in the factual resume with the elements of the offense. Further, the circumstantial evidence was sufficient to show knowledge of the firearm because the backpack also contained drug paraphernalia and firearms are often used by drug traffickers.

United States v. King, 979 F.3d 1075 (5th Cir. Nov. 6, 2020). The defendant pleaded guilty to production of child pornography. On appeal, he argued, under plain error review, that the magistrate judge committed a Rule 11(b)(1)(M) error during the plea colloquy. The Fifth Circuit affirmed, holding that there was no confusion about the possible sentencing range because it was clearly stated that the range was 15 to 30 years.

IV.

TRIAL

PRETRIAL MATTERS United States v. McClaren, 13 F.4th 386 (5th Cir. Sept. 9, 2021). The defendants in this case were tried by a jury for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Federal Controlled Substances Act, the Federal Gun Control Act, and the Violent Crimes in Aid of Racketeering Act (VICAR).

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The Fifth Circuit held the district court did not clearly err in its determination that the defendants committed Batson error. The district court considered the race-neutral reasons offered by the defense—such as past military service—and concluded that they were pretextual because all eleven strikes were used against white jurors and because many of the reasons given appeared to be “frivolous.”

The Court also held that a defendant’s factual basis was properly used as substantive evidence under the Federal Rules of Evidence as a prior inconsistent statement.

United States v. Torres, 8 F.4th 413 (5th Cir. Aug. 10, 2021). Torres was charged with arson of a church building. He moved to dismiss the 18 U.S.C. § 844(i) count on Commerce-Clause grounds, arguing that the church did not conduct business activities affecting interstate commerce. The district court denied his motion and found him guilty after a bench trial on stipulated facts. On appeal, the Court affirmed. It first clarified that “[a] claim of insufficient connection to interstate commerce is a challenge to one of the elements of the government’s case and is considered a claim about the sufficiency of the evidence[,]” not a challenge to the district court’s jurisdiction to determine the case. Here, the church building was used for commercial purposes: it rented its facilities, operated childcare programs, and processed the paperwork related to funeral services. Those interstate connections are “direct, regular and substantial.”

United States v. Duran-Gomez, 984 F.3d 366 (5th Cir. Dec. 23, 2020).

In 2006, immigration authorities learned that Duran-Gomez directed an international alien-smuggling operation and that there was a report that he had recently killed two smuggled individuals. ICE soon learned that, after entering the United States with a visa, Duran-Gomez committed two crimes involving moral turpitude—rendering his presence in the United States unlawful. On November 21, 2006, Duran-Gomez was arrested for civil immigration violations. A few days later, Duran-Gomez called his family from the immigration detention center and asked them to destroy evidence of his smuggling scheme. He was subsequently charged with obstruction of justice, to which he pleaded guilty in May 2007. In January 2011, he was sentenced to 60 months of imprisonment 17

for that crime. Meanwhile, law enforcement officials continued to investigate Duran-Gomez’s homicide and smuggling offenses.

On July 1, 2010, the government indicted Duran-Gomez with conspiring to smuggle aliens into the United States and harboring aliens resulting in the deaths of two men. On January 10, 2017, Duran-Gomez was charged in a superseding indictment with the additional counts of kidnapping and hostage-taking resulting in the deaths of the two men.

After a lengthy review process, the government informed Duran-Gomez that it would seek his death. A codefendant was a fugitive at the time of the 2010 indictment and was not arrested until April of 2013. After his capture, the government initiated the death penalty review process, but it was protracted at least in part by codefendant’s attempts to dissuade the government from seeking his death based on an alleged intellectual disability. In February 2017, the government filed its Notice of Intent to seek the codefendant’s death.

From when Duran-Gomez was indicted in July 2010 to when he moved to dismiss for speedy trial violations in August 2019, he either moved or joined his co-defendants in moving for continuances on seventeen different occasions. The district court, after ruling on several pretrial motions and adding defense counsel to Duran-Gomez’s case, later adopted the parties’ joint proposed schedule, setting trial for March 8, 2021. A few months later, on August 26, 2019, Duran-Gomez moved to dismiss all charges against him for purported violations of his Sixth Amendment right to a speedy trial. The district court dismissed all charges with prejudice on March 12, 2020 and ordered Duran-Gomez released. Finding that Duran-Gomez’s speedy trial right attached in 2006, the district court held that Duran-Gomez had been severely prejudiced by the delay, warranting dismissal of all charges against him.

The government timely appealed. The Fifth Circuit reversed the district court’s dismissal of charges. The Court found 1) Duran-Gomez's speedy trial right attached no later than 2010, and the at least nine-year delay weighs heavily against the government, under the Barker v. Wingo factors; 2) the continuances sought by Duran-Gomez weighed against him; 3) the time the government took to decide whether to seek 18

codefendant’s death did not weigh against the government, and the government, which maintained an open file policy, was not negligent in its production of 65,000 pages of discovery, despite the length of time it took to produce it in a more organized fashion; 4) Duran-Gomez’s lack of assertion of his speedy trial rights until 2019, after proposing a 2022 trial date weighed heavily against him; 4) because two of the first three Barker factors weighed heavily against Duran-Gomez, the Court would not presume prejudice and Duran-Gomez had failed to prove that he suffered actual prejudice either due to anxiety caused by pretrial incarceration, speculative defense-impairment, or the failure to contact several deported witnesses, some of whom he had deposed prior to his obstruction trial.

JURY INSTRUCTIONS United States v. Muhammad, ___ F.4th ___, 2021 WL 4205213 (5th Cir. Sept. 16, 2021). The issue was whether the district court erred by failing to instruct the jury that the government had to prove, beyond a reasonable doubt, that Muhammad knew he was dealing with a controlled substance. When the controlled substance is an analogue, the government can satisfy the knowledge element in one of two ways, by showing that 1) the defendant knew the substance was controlled under the Analogue Act, or 2) the defendant knew the specific features of the substance that make it a controlled substance analogue. McFadden v.

United States, 576 U.S. 186 (2015). The Fifth Circuit held that the district court erred by failing to properly instruct the jury but that the error was harmless. The Court pointed to Muhammad’s testimony that he had watched YouTube videos to find the chemical structures of the drugs he wanted to sell and compared them with images of known controlled substances, to see “the difference between that is considered substantially similar.”

United States v. Gaspar-Felipe, 4 F.4th 330, 336 (5th Cir. July 13, 2021). Gaspar was tried for transporting “illegal aliens” and challenged this sentence of the “commercial advantage” jury instructions: “The government need not prove that the defendant was going to directly financially benefit from his part in the venture.” He argued this misstated the requirement that the increased punishment applies only if 19

“the offense was done for the purpose of commercial advantage or private financial gain.” 8 U.S.C. § 1324(a)(2)(B)(ii). The Fifth Circuit disagreed.

The Court explained the Government did not have to prove Gaspar directly received payments but instead could prove the financial-purpose element with circumstantial evidence: that someone else in the operation receiving payment supports the inference that Gaspar would be paid as well. “Viewed in that light, the challenged instruction’s statement … accurately stated the law” and was not an abuse of discretion. Note: The Court still requires the defendant to have the intent to profit, but circumstantial evidence that another smuggler profited was enough for the jury to infer that intent.

United States v. Trevino, 989 F.3d 402 (5th Cir. Mar. 2, 2021). Trevino was convicted by a jury of being a felon in possession of a firearm. The Court rejected his argument that the district court erred in failing to instruct the jury that the Government was required to prove he knew he was prohibited from possessing a firearm.

United States v. Barnes, 979 F.3d 283 (5th Cir. Oct. 28, 2020). Doctors and administrators were convicted of conspiracy to commit health care fraud. On appeal, the defendants challenged the district court’s refusal to allow Medicare regulations in the jury instructions. Even if the instructions were substantially correct, they did not impair the defendant’s ability to present his defense. [Note: this is a very lengthy opinion and should be reviewed if going to trial on a Medicare or Medicaid fraud case.]

EVIDENTIARY ISSUES United States v. McClaren, 13 F.4th 386 (5th Cir. Sept. 9, 2021). The defendants in this case were tried by a jury for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Federal Controlled Substances Act, the Federal Gun Control Act, and the Violent Crimes in Aid of Racketeering Act (VICAR).

The Court rejected the defendant’s challenge to the use of uncorroborated testimony of a coconspirator who had accepted a plea bargain. A 20

conviction can be based on such testimony unless the coconspirator’s testimony is incredible. Testimony is incredible as a matter of law only if it relates to facts that the witness could not possibly have observed or to events which could not have occurred under the laws of nature.

United States v. Sims, 11 F.4th 315 (5th Cir. Aug. 24, 2021). Issue of first impression in Fifth Circuit on admissibility, under Federal Rule of Evidence 403, of rap videos. Sims was charged with sex trafficking of a minor, conspiracy to sex traffic, and sex trafficking by force, fraud, or coercion. The jury found Sims’ guilty of the first two charges but not the third. At trial, the district court allowed the government to put into evidence rap videos that Sims, who was a Houston-based rapper, had performed in. Sims argued that the probative value was significantly outweighed by the danger of unfair prejudice. The Fifth Circuit noted that other courts of appeals had dealt with this issue and concluded that explicit rap videos are probative and outweigh substantial prejudice when the defendant performs the song, describes events closely related to the crime charged, and the evidence is not cumulative. Here, the videos portrayed Sims with guns and money while rapping about drug usage, violence, and pimping. The Court noted that the drug usage and weapons in the videos were relevant to the charge that Sims had sex trafficked by force, fraud, or coercion.

United States v. Sharp, 6 F.4th 573 (5th Cir. July 26, 2021). Admission of an informant’s out-of-court statement violated the Confrontation Clause. A detective testified that “another agent … got a call from a confidential informant saying Mr. Sharp was at [the county courthouse], and he was in possession of a large amount of methamphetamine.” The Government argued it introduced the tip for a nonhearsay purpose: to explain the course of the investigation rather than to assert that the informant’s account was true. But the Court explained “the mere existence of a purported nonhearsay purpose does not insulate an out-ofcourt statement from a Confrontation Clause challenge.” The detective “relayed an out-of-court statement of the most damaging kind—that Sharp was committing the crime—and left Sharp with no opportunity to confront his accuser.” Recognizing that “[b]ackdooring highly inculpatory hearsay via an explaining-the-investigation rationale is a recurring problem,” the Court told the Government it “must take care to avoid 21

eliciting this kind of unconstitutional testimony.” This obvious error did not affect the outcome of the proceedings.

United States v. Gaspar-Felipe, 4 F.4th 330, 336 (5th Cir. July 13, 2021). Gaspar was tried for transporting “illegal aliens” and objected, under the Confrontation Clause, to the introduction of videotaped depositions of material witnesses who had since been deported. He argued the Government had not made a good faith effort to secure the witnesses, so they were not “unavailable” and their depositions could not be admitted. The Fifth Circuit disagreed and found the Government’s efforts reasonable. The Government told the witnesses at the depositions that they would need to testify at a later trial and gave them a letter in Spanish explaining how to go to the border to request entry once they received the subpoenas. The Government got their contact information (under oath) and told them their travel, food, and lodging would be paid for. Starting a month after they were deported and until trial, an agent phoned the witnesses approximately nine times without reaching them.

The Court says this was enough effort and rejects arguments the Government needed to promise work permits, advance travel funds, better corroborate contact information, or contact them sooner than one month after deportation.

United States v. Herman, 997 F.3d 251 (5th Cir. May 6, 2021). The Hermans owned and operated three restaurants. This case was based on the IRS’s undercover operation to determine whether the Hermans’ business tax returns understated gross receipts from their restaurants and whether they claimed personal expenses as business expenses on those returns. A jury convicted the Hermans of conspiracy to defraud the United States, and of willfully filing false tax returns. On appeal, they argued the district court erred in excluding audio clips from secretly recorded conversations between the Hermans and the undercover agent, who was posing as a prospective buyer. The Hermans argued that these audio clips were necessary under the Rule of Completeness (Rule of Evidence 106) to put into context inculpatory clips admitted by the government to prove its case. The Government objected to the supplemental recordings as inadmissible hearsay.

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The Fifth Circuit examined each clip and determined that some did not counter the inculpatory clips and some did but were harmless in light of other inculpatory evidence admitted at trial.

The Court also ruled that the district court did not abuse its discretion to exclude a defense expert witness who could have testified that the Hermans also paid some business expenses out of personal accounts, and had overreported some gross receipts, showing a general messiness in their bookkeeping and thus negating the willfulness in their tax offenses.

The Court held the district court properly excluded the testimony as too likely to confuse the jury and so was inadmissible under Rule of Evidence 403.

Finally, the Court rejected the appellant’s attempt to stretch the Supreme Court’s holding in Marinello v. United States, ––– U.S. ––––, 138 S. Ct. 1101 (2018) to the general conspiracy to defraud under 371. In Marinello, the court held that to convict under 26 U.S.C. § 7212(a)’s omnibus clause, the Government must show a “nexus” between the defendant's conduct and a pending or reasonably foreseeable tax-related proceeding, such as an investigation or audit, id. at 1109–10. That nexus is not required to prove a 371 conspiracy to defraud.

SUFFICIENCY OF EVIDENCE/PROVING AN OFFENSE United States v. McClaren, 13 F.4th 386 (5th Cir. Sept. 9, 2021). The defendants in this case were tried by a jury for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Federal Controlled Substances Act, the Federal Gun Control Act, and the Violent Crimes in Aid of Racketeering Act (VICAR).

1) The evidence was insufficient to prove co-defendant Fortia was aware of the drug amount scope of the conspiracy. Simple participation in the conspiracy did not prove Fortia was aware. Unlike the other Defendants, the government did not establish that Fortia saw or knew of drug sales by other gang members with sufficient regularity that the jury could

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surmise foreseeability. The Court affirmed Fortia’s conviction under § 846 but vacated his sentence and remanded for resentencing.

2) The Defendants argued their convictions under 18 U.S.C. § 924(c), which prohibits the use of a firearm during or in furtherance of a crime of violence or drug trafficking offense, must be reversed because they are predicated on a RICO conspiracy, which is not a crime of violence under United States v. Jones, 935 F.3d 266, 271 (5th Cir. 2019). The Court found, as in Jones, it could not be determined whether the jury relied on the RICO or drug-trafficking predicate, and because a RICO conspiracy is not a crime of violence, the basis for conviction may have been improper. The Court concluded that it was plain error to permit the jury to convict defendants and reversed the firearms convictions.

United States v. Aguirre-Rivera, 8 F.4th 405 (5th Cir. Aug. 10, 2021).

Aguirre was charged with conspiring to possess with intent to distribute 1kg or more of heroin. The district court instructed the jury that, to find Aguirre guilty, they had to find that the Government proved beyond a reasonable doubt 5 elements: (1) two or more people reached an agreement to possess heroin with intent to distribute it, (2) Aguirre knew the unlawful purpose of the agreement, (3) he joined in the agreement willfully, (4) that the overall scope of the conspiracy involved at least 1kg of heroin mixture, and (5) that he “knew, or reasonably should have known, that the scope of the conspiracy involved at least 1kg or more of” heroin mixture. The court also provided the jury with two special interrogatories. One restated the fourth element, and the other restated the fifth one. The jury returned forms finding Aguirre guilty of the offense, answering “yes” to the conspiracy involving at least 1kg of heroin, but “no” to whether Aguirre knew or reasonably should have known that scope. The court denied his motion for judgment of acquittal and, over his objection, adopted the presentence report which concluded he should be sentenced under the penalty provision for an offense involving 100 grams or more of heroin. He was sentenced to 60 months’ imprisonment.

On appeal, Aguirre argued the conviction should be vacated because of the conflicting jury answers. The Fifth Circuit disagreed, concluding that the jury’s special interrogatory only negated the fifth element, that Aguirre knew the scope of the conspiracy involved 1kg or more. Under 24

United States v. Daniels, 723 F.3d 562 (5th Cir. 2013), that is just a “sentencing element,” and not an “essential element” of the drug conspiracy conviction. Thus, the conviction stands, but he was not subject to the 10-year mandatory minimum.

Aguirre also challenged the 60-month sentence, arguing that the district court unconstitutionally imposed a mandatory minimum sentence even though the jury did not find he knew the conspiracy involved 100 grams or more of heroin. The Fifth Circuit agreed and vacated the sentence. On remand, he was sentenced to 27 months’ imprisonment.

United States v. Michaelis, 860 F. App’x 350 (5th Cir. June 30, 2021).

Michaelis was tried by a jury on a charge of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. The evidence showed that, during an execution of a search warrant, detectives found a locked safe in a motel room that contained 101 grams of a substance that contained methamphetamine. A witness testified that Michaelis had been in the motel room earlier that day, that the methamphetamine in the safe was Michaelis’s, and that Michaelis had sold drugs from that room. An officer also testified that Michaelis admitted to ownership of the methamphetamine. Laboratory tests confirmed that the substance contained methamphetamine, but the substance was not tested for purity or concentration.

Michaelis moved for judgment of acquittal, arguing the Government had not proved that he was the one who conspired to sell the specific methamphetamine found in the search, and that the evidence did not indicate he ever possessed those drugs. The jury convicted Michaelis of conspiring to possess with intent to distribute actual methamphetamine.

On appeal, Michaelis argued a different sufficiency point: that the government failed to show the purity and concentration of the methamphetamine and due to this failure, his conviction for conspiracy to deliver actual methamphetamine was based on insufficient evidence.

As an initial matter, the Court found that, because Michaelis, in his motion for judgment of acquittal, urged a specific challenge as to the evidence of the conspiracy and possession of the seized drugs, and not a 25

general sufficiency argument, he failed to preserve his current challenge as to the purity and concentration of the methamphetamine.

The Court held, however, regardless of the standard of review, Michaelis’s argument failed. Drug quantity and type are not “formal” elements of a conspiracy or a possession offense; any failure by the Government to prove quantity and type affects only the statutorily prescribed sentence that the court may or must impose under § 841(b).

However, the Court found plain sentencing error because the district court calculated the guidelines based on a quantity of actual methamphetamine instead of a mixture or substance containing methamphetamine.

United States v. Gas Pipe, Inc., 997 F.3d 231 (5th Cir. May 6, 2021).

The Appellants’ stores sold synthetic cannabinoids branded as “herbal incense,” “potpourri,” or “aroma therapy products,” products, commonly known as “spice.” The products were labeled “not for human consumption” even though the appellants intended them for exactly that.

A jury convicted the appellants of one count of conspiracy to defraud the United States, based on their efforts to defraud the FDA and to misbrand drugs. The Fifth Circuit found the evidence was sufficient to show defendants intended to defraud the FDA. In a conspiracy to defraud the FDA under 18 U.S.C.. 371, the Government is not required to establish the FDA's participation in the underlying criminal investigation or the appellants’ knowledge of any such participation. “The defraud clause of § 371 reaches ... any conspiracy designed to impair, obstruct, or defeat the lawful function of any department of the government.” In this case, a conspiracy to avoid contact with the FDA to avoid regulation. The appellants’ supplier and their employee both testified that the appellants labeled these products “not for human consumption” to avoid scrutiny or regulation by the FDA. United States v. Onyeri, 996 F.3d 274 (5th Cir. Apr. 28, 2021). The Court found the evidence sufficient to support the defendant’s RICO convictions based on evidence that he engaged associates to assist him in carrying out his many fraudulent schemes, and that they met to discuss the organization and plan activities in furtherance of the enterprise, including mail fraud, wire fraud, and murdering a state judge.

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Finally, the district court did not err in denying Onyeri’s suppression motion based on the police officer’s testimony that he saw Onyeri make too wide a right turn, which gave him probable cause to make the stop.

United States v. Hernandez, 841 F. App’x 736 (5th Cir. Apr. 1, 2021).

Hernandez was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, he raised a novel argument: whether the district court plainly erred by accepting his guilty pleas absent evidence that he personally moved a firearm in interstate commerce or that a firearm was moved in interstate commerce in the recent past, which he argued are required elements of a § 922(g)(1) offense. Hernandez acknowledged that the Court’s precedent, United States v. Fitzhugh, 984 F.2d 143 (5th Cir. 1993) forecloses his argument, but he asserts that the Supreme Court’s intervening decision in in United States v. Bond, 572 U.S. 844 (2014), abrogated Fitzhugh. The Court denied the Government motion for summary affirmance because neither party cites published authority addressing Bond’s effect on the interpretation of § 922(g)(1). Because it cannot be said that the Government’s position is “clearly right as a matter of law,” summary affirmance is inappropriate in this case. For the same reason, however, the Court held Hernandez cannot show plain error.

United States v. Knowlton, 993 F.3d 354 (5th Cir. Apr. 1, 2021).

Knowlton possessed 3,469 images and 249 videos of child pornography on various devices in his house. He was convicted of one count of possession of child pornography and one count of receiving material containing child pornography. He appealed his conviction on the receipt count.

Knowlton argues that the computer files he downloaded are themselves child pornography punishable under § 2252A(a)(2)(A), and so he cannot be found guilty of receiving “material that contains child pornography” under § 2252A(a)(2)(B). The Court concluded that the computer files themselves are plainly material containing child pornography. The term “material” in the receipt offense is not limited to only tangible units of storage like books, magazines, boxes, and computer disks.

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Second, Knowlton argues that the dates of child-pornography downloads proven at trial materially varied from the dates alleged in his indictment.

The Court concluded that the dates of receipt Knowlton points to for those files do not materially vary from the dates alleged in the indictment.

When the evidence at trial varies from the facts alleged in an indictment, the question is whether the defendant was fairly put on notice to defend himself. If an indictment uses the term “on or about” to allege a date, the government is not required to prove the exact date; it suffices if a date reasonably near is established. The 2.5-month variance from date alleged and date proved was reasonably near the date alleged to put Knowlton on notice.

United States v. Masha, 990 F.3d 436 (5th Cir. Mar. 8, 2021). Masha was indicted on eight counts of false use of a passport, violations of 18 U.S.C. § 1543, and eight counts of misuse of a passport, violations of 18 U.S.C. § 1544. Evidence at trial demonstrated that Masha used passports that looked like they were issued by Nigeria and the United Kingdom.

However, the testifying agent acknowledged he could not testify as to whether or not the passports had been actually issued by those nations.

The Government's case centered on the passports being counterfeit. The Court held there was insufficient evidence at trial to demonstrate that the passports used by Masha were in fact issued by a government entity for someone else. Thus, the convictions for misuse of a passport under 1544 are vacated. The remaining convictions and sentences for false use of a passport are affirmed.

United States v. Nora, 988 F.3d 823 (5th Cir. Feb. 24, 2021). A jury convicted Nora of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349; conspiracy to pay or receive illegal health care kickbacks, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1320a-7b(b)(2); and aiding and abetting health care fraud, in violation of 18 U.S.C. §§ 1347 and 2. The Court reversed Nora’s convictions and sentences based on insufficient evidence. This case involved a multi-defendant health care fraud involving a home-health care company called Abide. Nora’s role at Abide was extensive. It implicated him in three practices that were central to Abide’s fraud and kickback schemes. First was Abide’s use of house doctors to approve medically unnecessary plans of care so that it could bill Medicare for patients who would otherwise not qualify for home 28

health services. Second was Abide’s pay-for-referral system, which the government deemed an illegal kickback scheme. Third was Abide’s practice of unnecessarily recertifying patients for additional 60-day episodes of care.

The Court, after defining the term “willfully,” as used in the various charged fraud offenses, held that, while the Government presented evidence at trial detailing Nora’s role at Abide and his work responsibilities, the evidence did not prove that Nora understood Abide’s various practices and schemes to be fraudulent or unlawful, and thus there was insufficient evidence to conclude that Nora acted with “bad purpose” in carrying out his responsibilities at Abide.

United States v. Delgado, 984 F.3d 435 (5th Cir. Jan. 5, 2021). Delgado was convicted by a jury of numerous bribery-related offenses carried out in connection with his duties as a state judge in Hidalgo County, Texas.

The jury found that over the course of a decade, attorney Noe Perez would routinely bribe Delgado in order to secure Personal Recognizance (“PR”) bonds for his clients who had pending criminal matters before Delgado, when Delgado still presided as a judge. The jury convicted Delgado on eight felony counts including conspiracy under 18 U.S.C. § 371 to commit federal program bribery in violation of 18 U.S.C. § 666(a)(1)(B) and federal program bribery in violation of 18 U.S.C. § 666(a)(1)(B). The bribery statutes under which Delgado was convicted required a showing of a “transactional value” of at least $5,000.

The Court affirmed the jury’s findings that Delgado’s offense involved this transactional value. The Court noted that it is not only the amount paid as a bribe that determines the transactional value; instead, multiple valuation methods are used. Here, rather than looking to the bribe amount, the trial evidence focused on the value of the PR bonds to Perez's clients, who qualify as interested third parties to the transactions between Delgado and Perez. Delgado effectively acknowledged the benefit to be worth at least $5,000 by setting that amount as the face value of the bonds. The Court held that “a rational juror could conclude that an individual who was willing to risk forfeiting $5,000 in order to secure a PR bond valued the benefit of that bond (the “thing of value”) to be at least $5,000. And to the extent the jury also considered the value of 29

difficult-to-quantify benefits such as the clients’ liberty interests, that is precisely where the wisdom of the jury is most useful and where courts should be reluctant to step in on review.”

United States v. LaBrandon Gill, 830 F. App’x 745 (5th Cir. Dec. 8, 2020). Gill was convicted by a jury of two counts of bank robbery by intimidation per 18 U.S.C. § 2113(a). On appeal, Gill argued that the evidence was insufficient to satisfy the intimidation element of § 2113(a) for each robbery. Applying a plain error standard of review, the Fifth Circuit affirmed finding no clear or obvious error in the sufficiency of the evidence. The evidence was that 1) Gill gave a note to a teller that said “$10,000 in bundles” and orally told her to “just make this easy,” and 2) he gave a note to a teller instructing her to “go to the vault and get $10,000” and not to “make this harder than it has to be.”

Note: Gill argued the sufficiency challenge was preserved despite no motion for judgment of acquittal because he moved for a mistrial. The Fifth Circuit rejected that argument because the mistrial request was about an alleged perjurious witness, not a sufficiency challenge. The Court applied a plain error standard and did not mention “manifest miscarriage of justice,” which is a standard typically applied when no judgment of acquittal is requested.

United States v. Dubin, 982 F.3d 318 (5th Cir. Mar. 12, 2020), reh’g en banc granted, opinion vacated, 989 F.3d 1068 (5th Cir. 2021). The defendants were convicted of conspiracy to pay and receive healthcare kickbacks, offering to pay, and paying, illegal remuneration for patients, and aiding and abetting and aggravated identity theft. In a matter of first impression, the Court held the defendant’s fraudulently billing Medicaid for services not rendered constituted an illegal “use” of a means of identification of another person, in violation of the identity-theft statute.

The defendant used a patient’s Medicaid reimbursement number in submissions to Medicaid, asserting the patient received services he did not receive.

Note: reh’g en banc granted, opinion vacated, 989 F.3d 1068 (5th Cir. March 12, 2021). Oral argument was heard in May 2021.

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United States v. Anderson, 980 F.3d 423 (5th Cir. Nov. 6, 2020).

Defendants were convicted, at trial, of multiple counts of health care fraud and identity theft. All issues on appeal concerned the sufficiency of the evidence. The defendants argued, in a motion to judgment of acquittal and on appeal, that BCBS was not a health care benefit program. Based on the statutory text and two out-of-circuit opinions, the Fifth Circuit concluded that BCBS was such a program.

United States v. King, 979 F.3d 1075 (5th Cir. Nov. 6, 2020). The defendant pleaded guilty to production of child pornography. On appeal, he argued, under plain error review, that there was insufficient evidence to establish the jurisdictional hook of 18 U.S.C. § 2251(a), i.e., that “materials” used in the production of child pornography were moved in interstate commerce. The Fifth Circuit affirmed, holding that the defendant’s argument was defeated because the signed factual resume stated that the electronic device was manufactured outside of Texas.

V.

MISCELLANEOUS TRIAL MATTERS

United States v. Torres, 997 F.3d 624 (5th Cir. May 19, 2021). The district court plainly violated the Geders rule by prohibiting Torres from speaking with his counsel during a 13-hour overnight recess declared in the middle of his direct examination, right before the end of the trial the next day. In Geders v. United States, 425 U.S. 80, 91 (1976), the Supreme Court held that an order preventing a testifying defendant from consulting with his counsel “about anything” during a 17-hour overnight recess between his direct and cross-examination violated his Sixth Amendment right to the assistance of counsel. Discussions during an overnight recess may encompass “matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain.” By contrast, barring discussion with counsel during a short recess is not prohibited. Even under plain error review, the Geders violation requires reversal.

United States v. Kieffer, 991 F.3d 630 (5th Cir. Mar. 19, 2021). The district court (Judge Lemelle) did not abuse its discretion by allowing 31

jurors to submit questions that the court asked witnesses, without advance notice to counsel. On appeal, the parties did not identify any inappropriate questions or prejudice. The Court suggested courts should adopt the following procedure (from the D.C. Circuit) when allowing jurors to submit questions: 1. The court should inform counsel in advance that juror questions will be allowed.

2. The court should require that all juror questions be submitted in writing.

3. The court should review the questions with counsel out of the presence of the jury (evaluating objections, if any).

4. If it finds the question proper, the court should itself ask the question of the witness.

5. Before any questioning begins, the court should instruct the jurors about the function of the questioning procedure in clarifying factual (not legal) issues and should direct them to remain neutral and, if the judge fails to ask a particular question, not to take offense or to speculate as to the reasons therefor or what answer might have been given.

6. After a particular witness has responded to the questions, the court should permit counsel to re-question the witness.

7. The court should also repeat the instructions in the closing charge.

United States v. Arayatanon, 980 F.3d 444 (5th Cir. Nov. 13, 2020).

The defendant was convicted by a jury of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine under 21 U.S.C. § 846 and sentenced as a career offender to life in prison. On appeal, the defendant argued that during his trial, the district court abused its discretion by excusing two case agents from sequestration under Federal Rule of Evidence 615, and by admitting jailhouse telephone calls that he argues undermined his presumption of innocence before the jury. The Fifth Circuit affirmed. As to sequestration, two case agents were allowed to remain in the courtroom over the defendant’s objection. The government argued that both were essential and the defendant did not overcome that argument. At any rate, according to the Fifth Circuit, the district court’s decision did not prejudice the defendant enough to warrant a reversal. As to the jail calls, the Fifth Circuit held 32

that their admission did not pose the same constant and visible risk of prejudice as shackling, prison garb or other external signs of a defendant’s incarceration or perceived threat to the community at large.

VI.

PROSECUTORIAL/JUDICIAL MISCONDUCT

United States v. Brocato, 4 F.4th 296 (5th Cir. July 9, 2020). The Court found that the judge’s refusal to recuse herself after relying on extrajudicial information to increase the defendant’s bond did not violate due process, and recusal was not warranted. The defendants, a husband and wife, were charged with conspiracy to commit tax fraud and filing false tax returns. During the jury trial, a government witness testified that the wife had had purchased a Maserati in 2013, putting down $9,000 in cash. The wife took the stand and, on crossexamination, testified that she got the $9,000 from her mother, who had passed away. When asked if it was from the estate, she answered yes. The next day, in an unrecorded, in-chambers conference, the judge informed defense counsel not to argue that the $9,000 came from the wife’s mother because her testimony was “perjury.” The judge’s staff had conducted an Internet search and found that the mother had died in 2015, two years after the Maserati was bought. After the defendants were convicted, the judge increased their bond because of the “perjury.” The PSR noted the wife’s testimony as a possible grounds for an obstruction-of-justice enhancement but did not apply one, finding the “misinformation did not appear to be purposeful.” The wife had told the probation officer that her mother had given her the money before she died and that she was nervous during cross-examination. Before sentencing, the judge requested a certified copy of the mother’s death certificate from the defense. Defense counsel filed a motion to recuse based on bias. With the motion were two affidavits supporting the wife’s version of the $9,000. The motion was denied.

The Fifth Circuit began by discussing the two relevant statutes: 28 U.S.C. § 144 – actual judicial bias – and 28 U.S.C. 455(a) – the appearance of judicial bias. In this analysis, the Court noted that, under either statute, a judge is not generally required to recuse for bias, even if “exceedingly ill disposed toward the defendant,” when the 33

judge’s opinion was properly acquired in the course of the judicial proceedings. Here, however, the judge’s opinion was derived not from within the proceedings but from an extrajudicial source—the staff’s Internet search. The Court found that the Internet search, or any type of ex parte fact-gathering, was improper. The Court also found the judge’s use of the term “perjury” to be “regrettable.” However, the Court concluded that a reasonable and objective observer would not have doubts about the judge’s impartiality. The Court pointed to: the judge’s not applying the obstruction enhancement, adopting the PSR with its “misinformation not being purposeful,” and sentencing the defendants to the bottom of the guideline range. The Court also pointed to the defendants failure to challenge their sentences on appeal or identify any specific error made by the judge at sentencing.

VII. CATEGORICAL APPROACH United States v. Adair, __ F.4th __, No. 21-50218, 2021 WL 4962976 (5th Cir. Oct. 26, 2021). Adair was convicted of possessing a firearm after a felony conviction and argued his prior Texas robbery conviction is not a 4B1.2 “crime of violence” for increasing his 2K2.1 base offense level. The 4B1.2 COV is defined by both a force clause and by enumerated offenses, including “robbery.” The Fifth Circuit held Texas robbery substantially corresponds to generic robbery, citing United States v. Santiesteban-Hernandez, 469 F3d 376 (5th Cir. 2006), overruled on other grounds by United States v. Rodriguez, 711 F.3d 541, 554-55 (5th Cir. 2013) (en banc). The Court rejected the argument that Santiesteban-Hernandez left open the possibility that generic robbery has a narrower mens rea element than Texas robbery. Note: The Fifth Circuit held in an unpublished opinion that Texas robbery does not have a force element because it can be committed recklessly.

US v. Ybarra, 2021 WL 3276471 (5th Cir. 2021) (per curiam). But the Court didn’t address the force clause in Adair because finding Texas robbery was an enumerated offense was sufficient.

Ochoa-Salgado v. Garland, 5 F.4th 615 (5th Cir. July 16, 2021). The Court held that a § 481.112 offense is a felony punishable under the CSA because “an offer to sell under § 481.112 constitutes attempted 34

delivery under the CSA.” The Ninth Circuit came to a different conclusion in United States v. Rivera-Sanchez, 247 F.3d 905, 908–09 (9th Cir. 2001) (en banc), finding “an offer to sell ‘criminalizes solicitation’—as distinct from attempt—which doesn’t fall within the CSA.” Note: One of the confusing aspects of the categorical approach is that there are so many federal definitions that sound similar but are different. After the Supreme Court clarified the divisibility analysis in Mathis v. United States, 136 S. Ct. 2243 (2016), the Fifth Circuit held that a conviction under Texas Health and Safety Code § 481.112 for delivery of a controlled substance is not a controlled substance offense (CSO) under guideline §4B1.2 because the Texas offense includes offer to sell, which is not covered in the CSO definition. United States v.

Tanksley, 848 F.3d 347 (5th Cir. 2017); United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). But the definition of “drug trafficking crime” in 18 U.S.C. § 924(c)(2), which is also cross-referenced as an aggravated felony for immigration purposes in 8 U.S.C. § 1101(a)(43)(B), is different. A “drug trafficking crime” is “any felony punishable under the Controlled Substances Act (CSA).

In United States v. Prentice, the Fifth Circuit held that § 481.112 is a “serious drug offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii) for the Armed Career Criminal Act. The Court applied Shular v. United States, 140 S. Ct. 779 (2020), finding that Shular “broadens the understanding of ‘a serious drug offense’” to “whether the elements of the state law offense involve the generic conduct specified in the federal statute.” The question becomes whether a § 481.112 conviction involves conduct “that is a part of a process of distribution.” It does because offering to sell a controlled substance is part of that process.

United States v. Trujillo, 4 F.4th 287 (5th Cir. July 9, 2021). Trujillo was convicted of illegal reentry and sentenced under the provision in 8 U.S.C. 1326(b)(2) for having an aggravated felony conviction prior to his removal. The term “aggravated felony” includes a “crime of violence,” under 18 U.S.C. § 16. The Court held that Trujillo’s conviction under Texas’s intoxication manslaughter statute, Texas Penal Code § 49.08(a), does not constitute a “crime of violence” under 18 U.S.C. § 16. As a 35

result, the district court erred when it convicted and sentenced Trujillo under 8 U.S.C. § 1326(b)(2) based on this prior conviction. But the error did not ultimately affect his sentence. The Court reformed the judgment to correct the error under 8 U.S.C. § 1326(b)(2) and affirmed the sentence as reformed.

United States v. Bass, 996 F.3d 729 (5th Cir. May 11, 2021). Bass was charged and convicted of being a felon in possession of a firearm. At sentencing, the district court applied the Armed Career Criminal Act’s sentence enhancement for a prior controlled substance offense, under 18 U.S.C. § 924(e). The Fifth Circuit rejected Bass’s assertion that his prior Arkansas delivery of controlled substance offenses did not support his ACCA sentence enhancement. Contrary to Bass’s argument, the Arkansas statute does not include an offer to sell within its definition of delivery.

United States v. Kieffer, 991 F.3d 630 (5th Cir. Mar. 19, 2021). For purposes of 18 U.S.C. § 924(c)(1)(A), which proscribes the use of a firearm during a “crime of violence,” bank robbery in violation of § 2113(a) is a crime of violence, but conspiracy to commit bank robbery in violation of § 371 is not.

United States v. Frierson, 981 F.3d 314 (5th Cir. Nov. 11, 2020). The defendant argued he was not a career offender because his prior Louisiana conviction for possession with intent to distribute cocaine was broader than the generic offense. The Fifth Circuit affirmed under the modified categorical approach because the Louisiana statute was divisible.

In re Hall, 979 F.3d 339 (5th Cir. Oct. 30, 2020). A death penalty defendant challenged one of his 18 U.S.C. § 924(c) convictions as infirm in light of United States v. Davis, 139 S. Ct. 2319 (2019), because its predicate (kidnapping) was a residual-clause offense. The Fifth Circuit affirmed, holding that kidnapping resulting in death qualifies under the § 924(c) elements clause. But, the Court continued, even a residual-clause offense would likely still stand in a successive habeas action because the Supreme Court has yet to expressly make Davis retroactive.

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Judge Dennis dissented, arguing the majority’s holding that Davis has not been made retroactive is contrary to Fifth Circuit precedent, United States v. Reece, 938 F.3d 630 (5th Cir. 2019), and In re Sparks, 657 F.3d 258 (5th Cir. 2011), as well as the holdings of four other federal courts of appeals.

VIII. SENTENCING CONSTITUTIONAL CHALLENGES United States v. Contreras-Rojas, __ F.4th __, No. 21-50500, 2021 WL 5027456 (5th Cir. Oct. 29, 2021). The 5C says to stop raising appeals based on Almendarez-Torres v. US, 523 US 224 (1998) – which held that the fact of a prior conviction does not have to be in an indictment or found beyond a reasonable doubt for a statutory sentencing enhancement (e.g., 1326(b) or 924(e)) – because they are “virtually all frivolous.” The Court had cautioned defense attorneys back in 2007 to stop raising the issue.

But then Justice Thomas kept arguing (in dissents and concurrences) that Almendarez-Torres was incorrectly decided. And three Alleyne concurring justices (Sotomayor, Ginsburg, Kagan) noted that Apprendi is now firmly rooted precedent that must be given full effect. We had been raising this issue as a pass-through brief (conceding the issue is foreclosed but preserving it for review) for years. But the Court re-urges “‘appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments.’” (quoting United States v.

Pineda-Arrellano, 492 F.3d 624, 626 (5th Cir. 2007)). While the per curiam opinion does not explicitly threaten sanction, it ends, “We meant it then and mean it now.”

United States v. Bonilla-Romero, 984 F.3d 414 (5th Cir. Dec. 30, 2020). In sentencing juvenile offender, tried as an adult, for first degree murder, district court could impose sentence of imprisonment for any term of years, despite that the statue carried a sentence of death or of mandatory life imprisonment without possibility of parole. Both of those sentences are unconstitutional as applied to a juvenile offender under Miller v. Alabama, 567 U.S. 460 (2012) (holding mandatory life without parole unconstitutional for juveniles); and Roper v. Simmons, 543 U.S. 551, 575 (2005) (holding the same for the death penalty). Excising 37

mandatory minimum nature of life sentence was all that is needed to satisfy constitutional issue for juveniles, and substituting punishment provision for second degree murder under statute was proper because elements of second degree murder were met by pleading to first degree murder.

United States v. Leontaritis, 977 F.3d 447 (5th Cir. Oct. 9, 2020).

Leontaritis was convicted by a jury of conspiracy to commit money laundering and conspiracy to distribute methamphetamine. The jury returned a special verdict finding that the conspiracy involved 500 grams or more, but the jury also found that Leontaritis was only responsible for less than 50 grams as the amount reasonably foreseeable to him. At sentencing, the district court found by a preponderance of the evidence that Leontaritis was responsible for 176 kilograms and sentenced him to 240 months’ imprisonment. On appeal, he argued the court’s disregard of the jury’s finding violated the Fifth and Sixth Amendments.

The Fifth Circuit explained that the jury found that the Government failed to prove 50 or more grams beyond a reasonable doubt, not that the jury found beyond a reasonable doubt that Leontratis was accountable for less than 50 grams. The district court’s findings at sentencing did not conflict with the jury’s conclusions. Plus, the court gets to decide the Guidelines and sentence within the statutory minimums and maximums, whereas the jury is tasked with making statutory findings.

Judge Elrod dissented to that part of the opinion. She believed the interrogatory asked the jury to determine the actual amount of methamphetamine for which Leontratis was accountable beyond a reasonable doubt. The district court’s finding at sentencing contradicted the jury’s finding and cannot be reasoned away by the division of labor.

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STATUTORY CHALLENGES United States v. Aguirre-Rivera, 8 F.4th 405 (5th Cir. Aug. 10, 2021).

Aguirre was charged with conspiring to possess with intent to distribute 1 kilogram or more of heroin. The district court instructed the jury that, to find Aguirre guilty, they had to find that the Government proved beyond a reasonable doubt five elements: (1) two or more people reached an agreement to possess heroin with intent to distribute it, (2) Aguirre knew the unlawful purpose of the agreement, (3) he joined in the agreement willfully, (4) that the overall scope of the conspiracy involved at least 1 kilogram of heroin mixture, and (5) that he knew, or reasonably should have known, that the scope of the conspiracy involved at least 1 kilogram or more of heroin mixture. The court also provided the jury with two special interrogatories. One restated the fourth element, and the other restated the fifth one. The jury returned forms finding Aguirre guilty of the offense, answering “yes” to the conspiracy involving at least 1 kilogram of heroin, but “no” to whether Aguirre knew or reasonably should have known that scope. The court denied his motion for judgment of acquittal and, over his objection, adopted the presentence report which concluded he should be sentenced under the penalty provision for an offense involving 100 grams or more of heroin. He was sentenced to 60 months’ imprisonment.

Aguirre challenged the 60-month sentence, arguing that the district court unconstitutionally imposed a mandatory minimum sentence even though the jury did not find he knew the conspiracy involved 100 grams or more of heroin. The Fifth Circuit agreed and vacated the sentence.

United States v. Naidoo, 995 F.3d 367 (5th Cir. Apr. 19, 2021). Under 18 U.S.C. § 2252(a)(4)(B), which prohibits the possession of “1 or more” matters containing child pornography, the simultaneous possession of multiple images of or matters containing child pornography constitutes a single violation of the statute.

United States v. Diaz, 989 F.3d 390 (5th Cir. Mar. 1, 2021). Diaz was convicted of conspiring to acquire a firearm from a licensed firearms dealer by false or fictitious statement, in violation of 18 U.S.C. §§ 371 and 922(a)(6). She sought to extend Rehaif’s reasoning to § 922(a)(6). The 39

Court rejected her argument, and held that, to convict for conspiracy to violate § 922(a)(6), the government does not need to prove that the defendant knew the seller was a licensed dealer.

United States v. Cline, 986 F.3d 873 (5th Cir. Jan. 29, 2021). Cline was convicted of violating the Violence Against Women Act. The Act creates a criminal offense for a person who travels in interstate or foreign commerce with intent to violate certain portions of a “protection order” that protect against “violence, threats, or harassment against, contact or communication with, or physical proximity to, another person.” 18 U.S.C. § 2262(a)(1). The Court rejected Cline’s argument that his Colorado mandatory domestic violence protection order does not fit within the Act’s definition of protection order. Cline argued that any protection order, under the Act, must have been “issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection,” 18 U.S.C. § 2266(5)(A), and that the Colorado protection orders to which he was subject were mandatory and issued pursuant to state statute without the victim's request. The Court held that the fact that the protection order at issue was not issued pursuant to the victim’s request did not exclude such an order from The Act’s definition of “protection order.”

The Court also held that Cline's violation of each protection order, although through one continuous course of conduct, gave rise to two separate offenses. The Court based this conclusion of the text of the statute, which refers to “a” protection order in the singular when describing the offense, and specifies that an offense occurs when a person engages in conduct that violates a particular “portion” of a protection order.

United States v. Warren, 986 F.3d 557 (5th Cir. Jan. 22, 2021). Warren and Martinez were convicted under various fraud statutes for their roles in a timeshare resale telemarketing scam. The scam involved falsely representing to timeshare owners that there was a buyer for their timeshare. The timeshare owner was then billed for closing fees and other costs. Part of the scam was getting the timeshare owner to sign a verification letter acknowledging that the scammer had no buyer. To get the owners to sign this “false” verification, the scammers would explain 40

that it was necessary because, as marketing and advertising agents, they could not commit a buyer until a property was listed. In addition to finding the evidence sufficient to support the convictions, the Fifth Circuit addressed two sentencing issues. First, both Warren and Martinez argued that the district court erred by imposing consecutive six-month sentences under 18 U.S.C. § 2326(1). That statute provides that a person convicted of certain enumerated fraud offenses, “in connection with the conduct of telemarketing or email marketing ... shall be imprisoned for a term of up to 5 years in addition to any term of imprisonment imposed under any of [the enumerated offenses].” They argued that that statute only raised the statutory maximums for the underlying fraud offenses, it did not require a consecutive sentence to be imposed on top of the sentence for the underlying fraud offense. The Court disagreed and noted that “[a]s a matter of common usage, we have regularly described consecutive sentences as being ‘in addition to’ the sentence for the underlying or other offense.” “As written, § 2326 authorizes a consecutive sentence to be imposed on top of the sentence for the underlying fraud offense.”

The Court also held that the district court did not clearly err in assigning a “manager or organizer” role for Warren, despite that the district court’s findings suggested that Warren, in fact, did not manage or supervise any other participant. The Court noted that, although they disagreed with its precedent, the Court was bound by cases that uphold the manager/supervisor adjustment based solely on management of property, assets or activities. Because the evidence showed that Warren controlled the telemarketing operations’ technology, it was not clear error in light of precedent which applied the adjustment based on management of property. The Court referenced United States v. Ochoa-Gomez, 777 F.3d 278, 284-86 (5th Cir. 2015) (Prado, J., concurring), in which Judge Prado in a concurring opinion stated his belief that this precedent is wrong and merits en banc review.

(SELECTED) GUIDELINE ISSUES United States v. Sincleair, __ F.4th __, No. 20-10495, 2021 WL 5001783 (5th Cir. Oct. 28, 2021). Sincleair challenged the application of the +2 firearm enhancement under 2D1.1(b)(1). The enhancement can 41

apply if (1) the defendant personally possessed the weapon, “by showing that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant”; or (2) a “co-conspirator involved in the commission of an offense possessed the weapon and the defendant could have reasonably foreseen that possession.” The Court vacated and remanded for resentencing because it was not clear which basis the district court used to apply the enhancement. The majority also found there were not enough facts in the PSR or addendum to support the enhancement under either theory. The PSR established that Sincleair was a drug dealer who supplied Ilczyszyn, and Ilczyszyn supplied Wood with drugs. They all were at Wood’s house, where Ilczyszyn was distributing drugs to Wood, and there was a gun on the table. Sincleair objected to the PSR, explaining he went to Woods house to use drugs and was not part of any conspiracy with Ilczyszyn and Wood, and that it the firearm’s presence wasn’t reasonably foreseeable.

The Court said there aren’t enough facts to support Sincleair was engaged in a drug trafficking conspiracy with Ilczyszyn and Wood, and there were not enough facts to establish temporal proximity between Sincleair’s drug trafficking activity and the firearm found in Wood’s house.

Judge Oldham dissented. For him it is enough that “(1) There was a drug deal, (2) Sincleair was there, and (3) there was a gun on the table for the duration of the deal.” Sincleair was Ilczyszyn’s supplier – that made the drug deal at Wood’s house part of his offense, and the firearm had a temporal and spatial relation to the deal and the defendant. He thinks the majority gave too much credit to Sincleair’s PSR objections reframing the event at Woods house as a social gathering and not a drug deal, because Sincleair offered no evidence to this effect, so the district court could disregard his unsworn assertions – which Judge Oldham says it did by adopting the PSR. He also thinks the district court’s basis for the enhancement was “pellucid” – easy to understand: Sincleair possessed the weapon by being so close to it during the drug deal.

United States v. Johnson, 14 F.4th 342 (5th Cir. Sept. 16, 2021).

Officers had executed a search warrant at a home and found Johnson sitting in the kitchen with cocaine base and cash stashed throughout 42

the home. He pleaded guilty to possession with intent to distribute cocaine base. When the PSR tried to convert all the cash to cocaine base, Johnson objected that he did not know about the cash hidden in the walls or in the bedroom (but did not challenge the cash in his pocket or in the kitchen), and he disputed the cash conversion rate. The Government agreed with Johnson about the conversion rate (and so did the officer who testified at sentencing) but argued he should be responsible for all the cash because the home was a “trap house” used for narcotics trafficking. Johnson offered no rebuttal evidence. In the first appeal, the Court held the district court failed to make an express finding whether Johnson was directly or indirectly responsible for the disputed currency. On remand and without additional fact-finding, the district court found Johnson was indirectly responsible, restating the relevant conduct factors for being held responsible for third party sales: 1) Johnson agreed to participate jointly in drug sales with a third party; 2) The drug sales were within the scope of that joint activity; and 3) Johnson could have reasonably foreseen the quantity of drugs represented in connection with the joint undertaking.

The Fifth Circuit rejected Johnson’s argument that the district court failed to comply with the Court’s mandate by not making underlying factual findings. The Court just asked for the findings, not the underlying factual basis.

The Fifth Circuit also found that this finding of indirect liability was plausible in light of the record. Johnson lived in a home used by multiple drug dealers to distribute drugs. He did not demonstrate that the only proper inference from the facts is that he operated alone, and the sales were foreseeable because Johnson claimed ownership of all the property in the house (and he, himself, was distributing cocaine from the trap house).

United States v. Martinez, 12 F.4th 473 (5th Cir. Aug. 27, 2021).

Martinez pleaded guilty to a drug conspiracy charge. The charge was based on a search of his tobacco shop, which occurred after undercover agents conducted five controlled buys of cocaine there. The search 43

discovered cocaine, marijuana, THC, and Xanax pills. Cash in the sum of $12,424 was also found. The issue on appeal was whether the district court clearly erred in treating all the cash as proceeds of cocaine sales.

The Fifth Circuit held that it was clear error.

The presentence report (PSR) had originally treated the cash as the proceeds of marijuana sales. It was amended later to change that to cocaine sales, which resulted in a higher guideline range. At sentencing, Martinez objected to the cash conversion and argued that there were other possible sources for the money. The district court overruled the objection and adopted the PSR. In holding that the district court erred, the Fifth Circuit pointed to the other possible sources, including legal tobacco sales and illegal sales of marijuana, THC, or Xanax, any of which would have resulted in a lower guideline range. Martinez’s tax records and revenue reports supported his argument that at least some of the money came from tobacco sales. The cocaine controlled buys, on which the PSR based the cash conversion, amounted to no more than a few hundred dollars total and were for cocaine because that is what the agents asked for. The Court vacated the sentence and remanded for resentencing.

United States v. Gaspar-Felipe, 4 F.4th 330, 336 (5th Cir. July 13, 2021). A jury convicted Gaspar transporting “illegal aliens” but found— by answering a special interrogatory—that his offense did not result in the death of one of the migrants. He objected to not receiving a reduction for accepting responsibility since he had been willing to plead to the lesser charges. The Court found Gaspar had challenged other elements of the offenses at trial and thus did not warrant acceptance. “Nothing stopped him from pleading guilty to those charges and going to trial only on Count Three.”

Gaspar also objected to the 10-level death enhancement under guideline §2L1.1(b)(7)(D). The Court affirmed, citing the Government’s easy burden: “the government need show only that the defendant’s aliensmuggling conduct was a but-for cause of someone’s death.” The death did not have to be a foreseeable consequence of Gaspar’s offense. Without Gaspar guiding the victim from Mexico, the victim would not have been in a car fleeing from police who then shot him. The Court also rejected 44

Gaspar’s arguments that the within-Guidelines 78-month sentence was procedurally and substantively unreasonable.

United States v. Abrego, 997 F.3d 309 (5th Cir. May 11, 2021). Abrego pleaded guilty to making false statements regarding firearm records, in violation of 18 U.S.C. § 924(a)(1)(A). At sentencing and on appeal, Abrego challenged the district court's determination of his base offense level pursuant to U.S.S.G. §2K2.1(a)(4)(B), which provides for a higher offense level if the offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine.”

The Fifth Circuit held that the district court erred by not applying section §2K2.1(a)(4)(B) of the Guidelines in light of the accompanying commentary. The commentary defines a “semiautomatic firearm that is capable of accepting a large capacity magazine” as “a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense” a “magazine or similar device that could accept more than 15 rounds of ammunition” was “attached to” the firearm or was “in close proximity to” it. The Court noted, “neither the PSR nor the Government even acknowledged the language of the commentary—let alone gave the district court a basis for applying it.”

The addendum to the PSR relied on the website of the firearm manufacturer as evidence of what kind of magazines come standard with that firearm. The Court said that might have been sufficient if the Government had demonstrated that Abrego bought the firearm either directly from the manufacturer or in the exact same condition as marketed on the manufacturer’s website. Abrego is entitled to be resentenced in compliance with both the Guidelines and the accompanying commentary.

United States v. Reyna-Aragon, 992 F.3d 381 (5th Cir. Mar. 26, 2021).

Reyna-Aragon argued that the district court violated the rule that it is error to consider a defendant’s “bare arrest record” at sentencing by considering his no-billed Texas sexual assault arrest. The Court held that, despite the no-bill of the charge, there was more than a bare arrest record. In addition to the date, charge, jurisdiction, and disposition of the Reyna-Aragon’s sexual assault arrest, the presentence report described 45

the allegations contained in the criminal complaint, including the identity of the alleged victim and the specific conduct of the alleged offense.

Note: Reyna-Aragon argued his claim of error was preserved by defense counsel’s statements at sentencing, that without a more complete record of what occurred, it is hard to gauge this conduct. The Court held that was insufficient to preserve an objection that the district court was erring by relying on a bare arrest record.

United States v. Masha, 990 F.3d 436 (5th Cir. Mar. 8, 2021). Masha was indicted on eight counts of false use of a passport, violations of 18 U.S.C. § 1543, and eight counts of misuse of a passport, violations of 18 U.S.C. § 1544. The Court held the district court’s loss calculation, which was based on total amount of funds that passed through the accounts Masha opened using false passports, was not clearly erroneous. It was plausible that the total amount of funds deposited was from fraudulent activity given the examples of fraudulent transfers involving the accounts, as well as to the fact that Masha used fake names, addresses, phone numbers, and counterfeit passports to open the accounts. Given this evidence, coupled with the fact that Masha failed to offer any rebuttal evidence legitimizing the remaining funds, the district court concluded that a preponderance of the evidence supported the conclusion that Masha's purpose and motivation in opening the accounts was fraud and that the PSR’s loss amount calculation was correct.

United States v. Deckert, 993 F.3d 399 (5th Cir. Apr. 8, 2021). At sentencing and on appeal, Deckert challenged the application of the 2level reckless endangerment enhancement in U.S.S.G. § 3C1.2. The enhancement was based on his high-speed flight from police when they were trying to stop him for a traffic violation. After Deckert was caught and searched, the police found a distributable quantity of methamphetamine. Deckert was indicted for possession with the intent to distribute that methamphetamine, but he was also charged with a PWID methamphetamine that occurred a few days prior to this stop.

Deckert pleaded guilty to the prior PWID, but not the one related to his traffic stop. The issue on appeal was whether the reckless endangerment 46

that occurred during a different offense, which was not “during, in preparation for, or while covering up the offense for which he was convicted” could be used to apply this Chapter Three enhancement. After a careful parsing of the relevant conduct policy statement in U.S.S.G. §1B1.3, the Court held the application was proper. The Court relied on Section 1B1.3(a)(2), which defines the defendant’s relevant conduct for a groupable offense as “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Because the reckless endangerment flight occurred during an offense that was of the sort that would be grouped with Deckert’s offense of conviction–the prior PWID offense–it was relevant conduct, and the enhancement was proper.

This decision drew a strong dissent from Judge Dennis, who concluded that the majority decision was “inconsistent with our circuit precedent, United States v. Southerland, 405 F.3d 263 (5th Cir. 2005) and the sentencing guidelines.” Judge Dennis found, “because the flight did not have a nexus to Deckert’s offense of conviction of possessing methamphetamines on a separate date, the adjustment was not permissible under the United States Sentencing Guidelines.” (cleaned up).

United States v. Crosby, 838 F. App’x 891 (5th Cir. Mar. 8, 2021).

District court did not plainly err in counting Crosby’s prior convictions for attempted simple robbery and attempted distribution of methamphetamine under Louisiana law as predicates for the career offender enhancement. Crosby argued that the career offender guideline does not list these “attempted” offenses as enumerated offenses and that the commentary improperly expands the definition beyond the language of the Guideline itself. He cites case law from the D.C. Circuit, which held that the commentary to § 4B1.2 impermissibly expanded the definition of “crime of violence.” See United States v. Winstead, 890 F.3d 1082, 1090–92 (D.C. Cir. 2018). The Court held that “[g]iven the lack of precedent in our circuit, we conclude that Crosby has failed to show that any error is plain.”

United States v. Zuniga, 831 F. App’x 124 (5th Cir. Dec. 8, 2020).

Zuniga was convicted of maintaining a drug-involved premises, in 47

violation of 18 U.S.C. § 856(a)(1). She argued in the district court and on appeal that the court erred in imposing the enhancement in Guideline §2D1.1(b)(12) for maintaining-a-drug-premises, asserting the act of maintaining a drug premises is already factored into the base offense level for violating 18 U.S.C. § 856(a)(1) and applying the enhancement constituted impermissible double counting. The Fifth Circuit affirmed, applying the law that “[d]ouble counting is prohibited only if the particular guidelines at issue specifically forbid it.” (citing United States v. Jimenez-Elvirez, 862 F.3d 527, 541 (5th Cir. 2017)). The Court found no error because neither Guideline §2D1.1 nor §2D1.8 expressly prohibit double counting.

United States v. Dubin, 982 F.3d 318 (5th Cir. Dec. 4, 2020), reh’g en banc granted, opinion vacated, 989 F.3d 1068 (5th Cir. March 12, 2021).

The defendants were convicted of conspiracy to pay and receive healthcare kickbacks, offering to pay, and paying, illegal remuneration for patients, and aiding and abetting and aggravated identity theft. In a challenge to the district court’s calculation of the amount of loss, the Dubins claimed they were entitled to an offset calculated at actual value of services provided. The Court disagreed, noting the defendant carries the burden to establish two prongs to prove a valid offset: (1) that the services provided to Medicare beneficiaries were legitimate and (2) that Medicare would have paid for those services but for his fraud. In this case, the Government provided substantial evidence that the purported services were illegitimate: poor record keeping by the Dubins, improper billing based on who performed the services, and services performed by individuals who were not employees at the time they provided services.

Thus, the Court concluded the Dubins fell short of carrying their burden.

United States v. Arayatanon, 980 F.3d 444 (5th Cir. Nov. 13, 2020).

The defendant was convicted by a jury of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine under 21 U.S.C. § 846 and sentenced as a career offender to life in prison. On appeal, the defendant argued that the district court erred at sentencing in calculating his offense level based on an incorrect drug quantity, imposing a two-level enhancement because the drugs were imported, and applying the career offender enhancement. The Fifth Circuit affirmed. As to the drug quantity, the Fifth Circuit held that the PSR was sufficiently 48

reliable even if based on a co-conspirator’s “imprecise” testimony, especially absent any competent rebuttal evidence from the defendant.

As to the importation enhancement, it was effectively foreclosed by prior precedent in United States v. Serfass, 684 F.3d 548 (5th Cir. 2012). As to the career offender enhancement, the district court did not clearly err in concluding that the prior California convictions occurred even though copies of the judgments were not provided.

United States v. Kendrick, 980 F.3d 432 (5th Cir. Nov. 3, 2020). A defendant was convicted of conspiracy to distribute crack cocaine and felon in possession of a firearm. The Fifth Circuit upheld a sentencing enhancement for in connection with a drug offense based on the presence of mannitol and a digital scale. The Court also affirmed the classification of Kendrick as a career offender even though his prior drug convictions were conspiracies. The commentary to §4B1.2 added conspiracies to the controlled substance offense definition, and a prior case said the addition was lawful. See United States v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997). [Note: other circuits disagree, see United States v. Nasir, 982 F.3d 144, 160 (3d Cir. 2020), and a panel noted it was inclined to agree with the Third Circuit but for Lightbourn, see United States v. Goodin, 835 F. App’x 771, 782 n.1 (5th Cir. Feb. 10, 2021).]

CONCURRENT/CONSECUTIVE SENTENCING United States v. Freeman, ___ F. App’x ___, No. 20-50181, 2021 WL 2908510 (5th Cir. July 9, 2021). Freeman was convicted of possession of a firearm by a convicted felon. The district court sentenced him to 96 months of imprisonment but did not make a finding as to whether the sentence would run concurrently to any pending state offense. On appeal, Freeman argued the district court plainly erred by not applying Guideline §5G1.3(c) to order his sentence to run concurrently with any state sentence to be imposed on “related” offenses. Section 5G1.3(c) provides that when “a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.” (cleaned up). The presentence report listed three pending state charges “related” to Freeman’s federal offense. The district court adopted the report and its 49

factual findings. The Court held that, because of these facts, §5G1.3(c) applied to Freeman’s sentencing. The district court, however, failed to mention §5G1.3(c) when determining Freeman’s sentence.

In its initial opinion, that was enough to find plain error and warrant vacating the sentence. But then the panel withdrew that opinion and substituted one finding no error—emphasizing that it was the defendant’s burden to show entitlement to relief for plain error and claiming that he did not meet this burden. In the reply brief, he cited only out-of-circuit cases addressing the applicability of §5G1.3(c), and that is insufficient.

United States v. Horton, 993 F.3d 370 (5th Cir. Apr. 6, 2021). The Supreme Court remanded this case in light of Davis v. United States, –– U.S. ––, 140 S. Ct. 1060, 1061 (2020), which reversed Fifth Circuit’s prior rule that unpreserved claims of factual error are unreviewable on appeal.

Instead, under Davis, unpreserved claims of factual error are reviewed under the full plain error test. The claim of plain error in this case was that the district court failed to treat Horton’s prior and pending state cases as relevant conduct to his federal offense. Horton was convicted of possession with intent to distribute methamphetamine, which involved acting as a courier for a large-scale trafficking operation. Horton argued that the relevant conduct to the instant offense should have included his two prior state convictions, which were possession of 6.3 grams of methamphetamine, and possession of drug paraphernalia. He argued that the underlying conduct of these convictions was part of regular and repetitive conduct as the instant offense and was similar and in close temporal proximity to it as well. Horton asserted that because these offenses should have been treated as relevant conduct, he should not have received criminal history points and his federal sentence should run concurrently to the undischarged state sentences.

The Fifth Circuit agreed that Horton’s offenses were in close temporal proximity to the instant federal offense, but the Court held that neither offense involved similar conduct because they involved either no drugs or only small, personal use amounts of methamphetamine, whereas the conduct underlying his instant offense involved trafficking large quantities of methamphetamine. The court also found no plain error in 50

the district court’s holding that pending state charges, which also involved only small amounts of methamphetamine, were not relevant conduct.

In addressing Horton’s procedural error claims, the Court rejected his argument that he had not had a reasonable opportunity to object because the district court told him “you may stand aside,” and further objection would be futile. The Court found the record did not reflect that the district court gave the impression that a request for further explanation of the sentence would not be entertained or that any objection would have been futile.

United States v. Ochoa, 977 F.3d 354 (5th Cir. Oct. 2, 2020). Guideline §5G1.3(c) provides that the sentence “shall be imposed to run concurrently” to an anticipated state term of imprisonment from an offense that is relevant conduct to the instant offense of conviction. But Ochoa did not present evidence that the pending state cases were part of the same course of conduct or common scheme or plan as the offense of conviction. Defense counsel’s proffer that “there may be some scattered state prosecutions of relevant conduct” was insufficient. The Fifth Circuit found the district court did not err by concluding the state cases were unrelated.

PROCEDURAL REASONABLENESS United States v. Burney, 992 F.3d 398 (5th Cir. Mar. 29, 2021). The Fifth Circuit held the district court appropriately considered a defendant’s “good childhood” as an aggravating sentencing factor. While a defendant’s socioeconomic status “is never relevant at sentencing,” a defendant’s childhood—disadvantaged or good—is an appropriate consideration of his background and characteristics.

United States v. Coto-Mendoza, 986 F.3d 583 (5th Cir. Jan. 25, 2021).

Coto-Mendoza argued that the district court did not adequately respond to his arguments for a below-Guidelines sentence when it merely stated that the sentence was imposed pursuant to 18 U.S.C. § 3553. The Court addressed whether Coto-Mendoza’s procedural unreasonableness claim was preserved, despite that he made no objection at sentencing. The 51

Court held the rule in Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020), that a defendant does not need to object to the unreasonableness of a sentence for a claim of substantive unreasonableness to be preserved does not apply to claims of procedural unreasonableness.

United States v. Bostic, 970 F.3d 607 (5th Cir. Aug. 18, 2020). The defendant, Bostic, pleaded guilty without a plea agreement to conspiracy to possess with intent to distribute meth. The guideline range was 21-27 months, but the district court imposed a 235-month sentence of imprisonment. The Fifth Circuit, in a 2/1 decision, held that the district court needed to better explain the reason for that sentence or impose a lower one. Facts: AF was a 24-year-old woman with an enlarged heart who had recently had heart surgery. Her boyfriend gave her some heroin.

When she complained about the effects, he called Bostic, a drug dealer, and asked for some meth. Bostic came over, saw the AF was having a drug overdose, and gave the boyfriend the meth. AF died. The medical examiner determined that “while it was likely that drug use contributed to AF’s death, her preexisting health condition prevented a showing of but-for causation.” Bostic was indicted under 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). He was not indicted for death resulting because the meth was not the but-for cause of AF’s death. See Burrage v. United States, 571 U.S. 204 (2014). At sentencing, the guideline range was 21-27 months.

Bostic argued that the 3553(a) factors counseled against a sentence outside of the range. The government argued for a “modest upward departure” because while it “can’t in good faith say Bostic caused a death … he stood by and watched it and did nothing.” The district court adopted the PSR but found the guideline range “wanting.” The court noted that if the government had been able to charge Bostic for death resulting, he would have faced a mandatory minimum 20-year sentence.

The court then sentenced Bostic to 235 months’ imprisonment. Defense counsel objected that the sentence was procedurally and substantively unreasonable. The court responded “noted.” The Statement of Reasons incorrectly indicated that the sentence was within the guideline range.

The Fifth Circuit majority held that the district court had procedurally erred by “failing to adequately explain the chosen sentence.” Gall v.

United States, 552 U.S. 38, 51 (2007). When the sentence is outside of 52

the guideline range, the district court must state on the record the specific reason for the sentence. This explanation allows for meaningful appellate review. A major difference from the range requires a more significant and compelling justification. Because the district court offered an inadequate explanation, it abused its discretion. The majority noted that its decision should not be read as taking a position on the sentence itself.

Judge Ho dissented. He would have held that there was neither procedural nor substantive error. But he took “heart in the majority’s invitation to the district court to impose precisely the same sentence on remand.”

And he stated that there was “nothing substantively unreasonable” about a sentence that was half of the maximum 40-year sentence set by Congress.

SUBSTANTIVE REASONABLENESS United States v. Hudgens, 4 F.4th 352 (5th Cir. July 16, 2021).

Hudgens was one of Bostic’s co-defendants in a drug case that involved the death of AF, although the Government did not pursue the enhanced penalty for drug distribution resulting in death—a 240-month mandatory minimum—because the drugs distributed were not a but for cause of AF’s death. Bostic’s Guidelines range was 21 to 27 months, and he was sentenced to 235 months. The Fifth Circuit remanded based on procedural unreasonableness—the district court failed to adequately explain that drastic increase. On remand, Bostic was sentenced to 168 months’ imprisonment. Meanwhile, Hudgens’s case was pending before a different panel and had been placed in abeyance pending the decision in Bostic. Hudgens’s Guidelines range was 120 to 121 months, and he was sentenced to 240 months.

Unlike in Bostic, the Court did not review Hudgens’s sentence for procedural reasonableness because that was not raised in the opening brief. The review for substantive reasonableness depends on the totality of the circumstances, and the district court should articulate its reasons more thoroughly for a non-Guidelines sentence. “A non-Guidelines sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not account for a factor that should have received 53

significant weight, (2) gives significant eight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” The Court held the district court did not improperly punish Hudgens for causing AF’s death; instead, the court properly considered Hudgens’s behavior: bringing heroin to AF’s house, allowing her to ingest it even though he knew of her heart problems, recording a cell phone video instead of helping her, and disposing of evidence instead of calling 911 after she stopped breathing.

Judge Graves dissented. He argued the majority, consistent with Gall v.

United States, 552 U.S. 38 (2007), and United States v. Fraga, 704 F.3d 432 (5th Cir. 2013), should have considered procedural unreasonableness even if it was not briefed. And he thought Hudgens was arguing procedural unreasonableness even if the argument heading referred to substantive unreasonableness. He would have found an improper emphasis on AF’s death.

United States v. Khan, 997 F.3d 242 (5th Cir. May 6, 2021). Khan pled guilty to a terrorism charge. Khan increasingly became radicalized through internet propaganda. He decided to move to the Middle East to join ISIS. Around the same time, he got in touch with Garcia. Khan told Garcia that he was planning to join ISIS in Syria and invited Garcia to come along. Garcia said that he wanted to travel with Khan to join ISIS. Khan’s family found out about Khan’s plans and tricked him into returning home. Meanwhile, Garcia, through contacts provided by Khan, joined ISIS, and died in Iraq fighting for ISIS. At Khan’s initial sentencing for providing material support to a terrorist organization, the district court imposed an 18-month sentence and declined to apply the terrorism adjustment. The Fifth Circuit reversed and remanded for resentencing. The government sought a 180month sentence, which was the statutory maximum. Khan asked the court to reimpose the same sentence as before. Judge Hughes sentenced Khan to the same 18-month sentence. After finding the terrorism enhancement applicable, the judge gave reasons to depart downward, including Khan’s lack of criminal history, studies, work, volunteering, steps toward rehabilitation, and age.

54

The Fifth Circuit found the 18-month sentence substantively unreasonable. The Court held that the district court failed to give “significant weight” to the seriousness of Khan’s offense. Contrary to the district court’s finding at sentencing, in his plea agreement, Khan explicitly agreed that the material support he provided to ISIS included his friend, Garcia. Khan agreed to the fact that he “began recruiting” Garcia to join ISIS. They were not equally enthusiastic to join.

The Court reversed Khan’s sentence as substantively unreasonable and remanded for a second resentencing. And because the sentencing judge seemed immovable and displayed bias against the government, the Court reassigned the case to a different judge.

SUPERVISED RELEASE/PROBATION United States v. Martinez, __ F.4th __, No. 20-50984, 2021 WL 4890241 (5th Cir. Oct. 20, 2021). Martinez’s appointed appellate counsel filed an Anders brief and moved to withdraw. The Court asked counsel to address whether the oral pronouncement of supervised release conditions conflicted with the written judgment setting forth those conditions.

Counsel filed a supplemental Anders brief addressing that issue maintaining an appeal was not warranted, and the Court ultimately agreed and explained why, under United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc), the oral pronouncement presented no nonfrivolous issue for appeal in this published opinion.

The PSR recommended that the district court impose mandatory and standard conditions of supervised release and a special search condition.

Martinez did not object. At sentencing, the court adopted the PSR and announced it was imposing the mandatory and standard conditions of supervision as well as the recommended search condition. The written judgment included the 17 conditions listed in the WDTX’s Order on Conditions of Probation and Supervised Release. “The only conceivable pronouncement problem is that the district court did not cite the district's standing order when it orally imposed the ‘standard conditions.’” But this is not a basis for appeal when Martinez did not object. He had notice and ample opportunity to object. “Given the longstanding existence of the Western District’s standing order, defense counsel certainly knew that 55

the standard conditions being imposed were the ones listed in the standing order and included in the judgment form created by the Administrative Office of the United States Courts.” The court complied with Diggles.

United States v. Tinney, 3 F.4th 147 (5th Cir. June 29, 2021). On appeal, Tinney argued the district court improperly delegated its sentencing authority in imposing a special condition of supervised release requiring him to follow all instructions of the probation officer. He relies on cases that hold a district court may not require a criminal defendant to follow lifestyle restrictions or treatment requirements imposed by a private therapist as a condition of supervised release. But, the Court noted, that rule does not control Tinney’s challenge.

Unlike the unfettered authority of a private therapist, a probation officer’s authority to “instruct” a criminal supervisee is substantially limited by statute. See 18 U.S.C. § 3603(1) (providing that a probation officer “shall instruct a probationer or a person on supervised release, who is under his supervision, as to the conditions specified by the sentencing court”) (cleaned up). And unlike private therapists, probation officers are appointed by, and serve at the pleasure of, the district courts.

18 U.S.C. § 3602(a). Thus, the Court finds no plain error in the district court’s imposition of this special condition.

United States v. Aldridge, 858 F. App’x 738 (5th Cir. June 16, 2021).

This appeal involved a factual inquiry: whether Aldridge was previously sentenced to five terms of supervised release stemming from five different convictions, or only one term—a result supported by the written judgment/s in the prior cases. The Fifth Circuit held that, even if Aldridge could establish on plain error that he was serving only one supervised release term, he could not show the district court plainly erred in imposing five consecutive terms of imprisonment upon the revocation of that one term. The Court noted it had not yet determined whether revocation of a single term of supervised release followed by imposition of multiple consecutive terms of imprisonment is erroneous, so no plain error.

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United States v. Medel-Guadalupe, 987 F.3d 424 (5th Cir. Feb. 8, 2021), withdrawing opinion at 979 F.3d 1019 (5th Cir. Oct. 27, 2020). The defendant pleaded guilty to one count of harboring illegal aliens. On appeal, he argued that the district court impermissibly delegated judicial authority through the wording of two special conditions of supervised release. Specifically, he argued there was improper delegation by allowing the probation officer to decide whether the treatment will be “inpatient or outpatient” and the “modality, duration, intensity” of that treatment. The Court held no improper delegation because the district court expressly required that Medel-Guadalupe participate in the treatment program. The probation officer was not tasked with decisions regarding the core feature of the special condition. Instead, “inpatient or outpatient” and “modality, intensity, duration” are all details of the conditions, which can be properly delegated. The Court also noted that because Medel-Guadalupe’s imprisonment term is lengthy—10 years—a court cannot predict what the need for substance abuse treatment during supervised release will be. If, upon his release nearly a decade from now, Medel-Guadalupe disagrees with the inpatient/outpatient determination, the district court will have the final say over the decision.

The Court contrasted this case with United States v. Martinez, 987 F.3d 432, 435–25 (5th Cir. Feb. 8, 2021), issued the same day, which prohibited delegation of the inpatient–outpatient decision after a shorter, 10-month sentence.

United States v. Martinez, 987 F.3d 432 (5th Cir. Feb. 8, 2021), withdrawing opinion at 979 F.3d 271 (5th Cir. Oct. 27, 2020). As noted above, in Martinez, the Court held the condition allowing a probation officer to decide whether a defendant’s treatment will be inpatient or outpatient is an improper judicial delegation. The Court addressed Medel-Guadalupe and distinguished it based on length of sentence imposed. If a sentence is short, like the 10-month sentence in Martinez, the delegation is improper, but if the sentence is long, like the 10-year sentence in Medel-Guadalupe then the delegation is not improper.

Note: In a subsequent case, United States v. Mena Martinez, 850 F. App’x 924 (5th Cir. June 24, 2021), the Court noted the simultaneously issued decisions in Martinez and Medel-Guadalupe. Without much 57

analysis, the Court held that the district court plainly erred in delegating authority to the probation officer to determine whether Martinez should participate in inpatient or outpatient treatment.

United States v. Huerta, 994 F.3d 711 (5th Cir. Apr. 21, 2021). District court orally pronounced special supervised release condition requiring substance abuse treatment by adopting presentence report, which recommended the condition. District court did not clearly err by delegating supervision of the “modality, duration, intensity, etc.” of treatment to the probation officer. In reaching its holding, the Court compares and discusses the original decisions in Martinez and MedelGuadalupe. In Huerta’s case, the Court noted the 52-month sentence was relatively short but found no indication of improper delegation because there is no indication the probation officer will be able to independently decide “to lock Huerta up” for inpatient treatment, without the district court having the “final say” over that matter, and that to do so would be improper.

United States v. Johnson, 850 F. App’x 894 (5th Cir. Mar. 31, 2021).

Appellant challenged imposition of two special supervised release conditions that were recommended in an appendix to the presentence report. At sentencing the district court did not orally pronounce those conditions and did not specifically adopt the presentence report. Under Diggles, the district court was required to either orally pronounce the conditions, or orally adopt the PSR and its appendix. The district court did neither. The Court concluded that, under its precedent, the district court’s failure to do either constitutes an abuse of discretion, and the case must be remanded so that the unpronounced conditions can be stricken from the judgment.

United States v. Cano, 981 F.3d 422, 426 (5th Cir. Dec. 2, 2020).

District court’s passing reference to Cano’s lack of respect for the law does not make it plain that the district court impermissibly used Cano’s history of absconding to impose an upward departure revocation sentence. A defendant’s history is one of the factors that informs sentencing when supervised release is revoked. Here, whether the district court was attempting to promote respect for the law—a factor a court is not to consider in imposing a supervised release revocation 58

sentence—by varying upward is uncertain. Cano's speculation is insufficient to show plain error.

United States v. Cartagena-Lopez, 979 F.3d 356 (5th Cir. Nov. 2, 2020). The Fifth Circuit considered, as an issue of first impression, whether a defendant’s status as a fugitive tolled his period of supervision.

The court held that the fugitive tolling doctrine applies to supervised release and therefore affirmed the revocation of the defendant’s supervision even though his term of supervised release would have otherwise expired.

RESTITUTION/FORFEITURE United States v. Kim, 988 F.3d 803 (5th Cir. Feb. 19, 2021). The Court addressed the issue of whether a defendant may appeal a restitution order in excess of the statutory maximum where he has broadly waived his right to appeal and his appeal waiver contains no provision requiring his sentence to be within the statutory maximum. The Court held that that the appeal waiver did not bar Kim’s challenge to the restitution order. An otherwise valid appeal waiver is not enforceable to bar a defendant’s challenge on appeal that his sentence, including the amount of a restitution order, exceeds the statutory maximum, notwithstanding the lack of an express reservation to bring such a challenge.

United States v. Madrid, 978 F.3d 201 (5th Cir. Oct. 15, 2020). A child pornography defendant challenged a series of monetary penalties, arguing that the district court erroneously assessed him a monetary penalty under the “Amy, Vicky, and Andy Child Pornography Victim Assistance Act,” (AVAA) and erroneously appears to have imposed two “Justice for Victims of Trafficking Act” (JVTA) special assessments.

Additionally, the defendant argued that the district court erroneously believed the Bureau of Prisons (BOP) would give him credit for time incarcerated on state charges prior to going into federal custody. Despite the presence of an appeal waiver, the Fifth Circuit decided to reach the merits and affirmed. Regarding the AVAA, the court held that a monetary penalty under the AVAA is separate and distinct from restitution, and a special assessment under 18 U.S.C. § 2259A does not require identification of a victim and proof of losses, the district court did 59

not err in assessing a monetary penalty under the AVAA. Regarding the two JVTA assessments, the Court held that the judgment only reflected one such assessment. Regarding the district court view of BOP credit, the Court interpreted the record as showing that the district court was aware that it lacked authority to determine if time in state custody should be credited towards a sentence. The district court did, however, have the authority to vary downward at sentencing and declined to do so.

United States v. Comstock, 974 F.3d 551 (5th Cir. Sept. 9, 2020). The defendant and others were charged with conspiracy to commit wire fraud and six counts of aiding and abetting wire fraud. These charges were the result of Comstock ordering his employees to fabricate time sheets to justify his company’s billings to the City of San Antonio, with whom his company had a contract to provide janitorial services at the Alamodome.

The jury convicted Comstock on all charges, and he was sentenced to 25 months in prison and over $350,000 in restitution. On appeal, Comstock challenged his sentence, arguing that the district court erred in its loss calculation and its restitution amount, which was the same as the loss calculation. Because the loss calculation was a very conservative estimate, the Fifth Circuit held there was no error. As to restitution, the Court noted that the district court had offered to hold a separate restitution hearing, but defense said no.

United States v. Penn, 969 F.3d 450 (5th Cir. Aug. 5, 2020). The defendant was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g). The defendant argued that the district court erred by ordering him to pay restitution for damages during an associated shoot out and automobile crash. Restitution can be imposed only by statute.

18 U.S.C. § 3663 allows for restitution to the victim of the defendant’s offense. The Supreme Court has held that the statute authorizes restitution “only for the loss caused by the specific conduct that is the basis for the offense of conviction.” Hughey v. United States, 495 U.S. 411, 413 (1990). This is known as the “Hughey rule.” The 5th Cir held that the court erred in imposing the restitution order under § 3663 because the victim’s losses were not caused by the § 922(g) offense conduct. The Court also held that the restitution could not be imposed as a condition of supervised release because the Hughey rule applies to 18 U.S.C. 3583(d) as well. Note: Lucien B. Campbell, former Federal Public 60

Defender for the Western District of Texas, argued and won Hughey before the Supreme Court.

IX.

APPEALS

United States v. Muhammad, 14 F.4th 352 (5th Cir. Sept. 16, 2021).

The issue was whether the district court erred by failing to instruct the jury that the government had to prove, beyond a reasonable doubt, that Muhammad knew he was dealing with a controlled substance. When the controlled substance is an analogue, the government can satisfy the knowledge element in one of two ways, by showing that 1) the defendant knew the substance was controlled under the Analogue Act, or 2) the defendant knew the specific features of the substance that make it a controlled substance analogue. McFadden v. United States, 576 U.S. 186 (2015).

The Fifth Circuit held that the district court erred by failing to properly instruct the jury. But this was not, as Muhammad argued, structural error. Neder v. United States, 527 U.S. 1 (1999). The Court held that any indications otherwise in its opinion in United States v. Stanford, 823 F.3d 814 (5th Cir. 2016), squarely conflicted with the Supreme Court precedent.

United States v. Onyeri, 996 F.3d 274 (5th Cir. Apr. 28, 2021). As a matter of first impression, the Fifth Circuit holds that the defendant was required to file second timely notice of appeal in order to obtain review of the final order of garnishment. In Onyeri’s case, the final order of garnishment arose when the government sought to enforce the restitution order via the Fair Debt Collection Practices Act. The order was issued several months after the initial judgment and followed a proceeding that looked more civil than criminal, even though it proceeded under the same criminal docket number as the underlying criminal prosecution.

The Court also found the evidence sufficient to support the defendant’s RICO convictions based on evidence that he engaged associates to assist him in carrying out his many fraudulent schemes, and that they met to 61

discuss the organization and plan activities in furtherance of the enterprise, including mail fraud, wire fraud, and murdering a state judge.

Finally, the district court did not err in denying Onyeri’s suppression motion based on the police officer’s testimony that he saw Onyeri make too wide a right turn, which gave him probable cause to make the stop.

United States v. Emakoji, 990 F.3d 885 (5th Cir. Mar. 9, 2021).

Emakoji entered a plea agreement to plead guilty to fraud charges. He was living in Alabama at the time he entered into the plea agreement.

He requested two continuances of the plea hearing, citing fears about traveling to the courthouse during the Covid pandemic. The district court declined and sua sponte ordered Emakoji to obtain housing in the Northern District of Texas. Emakoji appealed the court’s pretrial housing order.

The Court noted the collateral order doctrine allows an appeal before final judgment where the district court’s order (1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. It is generally limited to the denial of: (1) motions to reduce bail; (2) motions to dismiss on double jeopardy grounds, and (3) motions to dismiss under the Speech or Debate Clause. The district court’s pretrial housing order did not fall within the grounds for a collateral appeal. The Court declined to extend the collateral order doctrine’s reach to societal interests such as preventing spread of Covid-19.

United States v. LaBrandon Gill, 830 F. App’x 745 (5th Cir. Dec. 8, 2020). Gill was convicted by a jury of two counts of bank robbery by intimidation per 18 U.S.C. § 2113(a). On appeal, Gill argued that the evidence was insufficient to satisfy the intimidation element of § 2113(a) for each robbery. Applying a plain error standard of review, the Fifth Circuit affirmed finding no clear or obvious error in the sufficiency of the evidence. Gill argued the sufficiency challenge was preserved despite no motion for judgment of acquittal because he moved for a mistrial. The Fifth Circuit rejected that argument because the mistrial request was 62

about an alleged perjurious witness, not a sufficiency challenge. The Court applied a plain error standard and did not mention the “devoid-ofevidence” standard, which is typically applied when there is no timely judgment of acquittal requested.

Note: Some members of the Court believe that the devoid-of-evidence standard is inadequate, even under a plain-error standard of review, on grounds rooted in protecting the constitutional standard of reasonable doubt in convicting criminal defendants. See United States v. Delgado, 672 F.3d 320, 349–54 (5th Cir. 2012) (finding that the devoid-of-evidence standard will result in criminal convictions supported by proof much less sufficient than required under a reasonable-doubt standard—less sufficient than required by due process of law) (Dennis, J., with Wiener, J., dissenting). The Ninth Circuit held that even when using plain-error review, a court should overturn conviction “if the record clearly show[s] that the evidence was insufficient.” See United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011). The Second Circuit rejected application of the devoid-of-evidence standard, holding a failure of the government to provide sufficient evidence affects substantial rights cognizable under Rule 52(b). See United States v. Draper, 553 F.3d 174, 181 (2d Cir. 2009).

United States v. Bostic, 970 F.3d 607 (5th Cir. Aug. 18, 2020). The defendant, Bostic, pleaded guilty without a plea agreement to conspiracy to possess with intent to distribute meth. The guideline range was 21 – 27 months, but the district court imposed a 235-month sentence of imprisonment. Bostic objected that the sentence was procedurally and substantively unreasonable. The Fifth Circuit, in a 2/1 decision, held that the district court procedurally erred by failing to adequately explain the reasons for the sentence significantly outside of the guideline range.

Judge Ho dissented. He would have held that there was no procedural or substantive error. Judge Ho also noted that he would have reviewed for plain error. At sentencing, defense counsel argued for a within guideline sentence, citing the “nature and circumstances of the offense,” which is under 18 U.S.C. § 3553(a)(1). After the sentence was imposed, defense counsel objected that the sentence was procedurally unreasonable— “Specifically, we object to the imposition of this sentence of the 3553(a)(2) factor as not considering [ ] the nature and circumstances of the offense, 63

the health and use of the decedent in this particular case.” According to Judge Ho, plain error review should apply because defense counsel cited § 3553(a)(2) when “nature and circumstances of the offense” is under § 3553(a)(1).

VIII. POST-CONVICTION United States v. Davis, __ F.4th __, No. 20-30593, 2021 WL 5044855 (5th Cir. Nov. 1, 2021). The Court reversed Davis’s convictions for conspiracy to commit health care fraud and health care fraud. She then filed a motion for issuance of certificate of innocence under 28 U.S.C. § 2513 because she was trying to get damages for her incarceration under 28 U.S.C. § 1495. To get a certificate of evidence, the defendant must prove by a preponderance of the evidence that she did not commit any of the acts charged and that her misconduct or neglect did not cause the prosecution. Davis argued she met that standard, but the Court affirmed the district court’s finding that she did not. In so doing, the Court held that the standard of review was abuse of discretion, and it side-stepped a circuit split interpreting “misconduct or neglect” after finding Davis did not prove her actual innocence.

Davis also challenged the statute as unconstitutional, relying on Nelson v. Colorado, 137 S. Ct. 1249 (2017). Nelson held that the Colorado statutes violated due process by requiring defendants whose convictions have been reversed or vacated to prove their innocence by clear and convincing evidence to obtain refund of costs, fees, and restitution paid pursuant to the invalid conviction. The Court held Nelson did not apply here, where Davis was trying to obtain damages, not a refund. The Court affirmed the district court.

United States v. Garrett, 15 F.4th 335 (5th Cir. Sept. 24, 2021).

Garrett, an inmate at BOP, filed a motion for compassionate release (CR) with the district court in May 2020, based on the pandemic and his health conditions making him more susceptible to serious illness from the virus.

In the motion, he stated that he had requested CR from the BOP warden in April and May 2020. He also requested in June 2020, and the BOP acknowledged receipt of this request and denied it in July. The district 64

court denied Garrett’s CR for failing to exhaust administrative remedies.

He filed a motion for reconsideration in October 2020 that the district court denied for failure to exhaust. Garrett appealed.

Under 18 U.S.C. § 3582(c)(1)(A), a prisoner can file his CR motion in the district court upon expiration of one of two events: 1) full exhaustion of administrative remedies, or 2) after the lapse of 30 days from the receipt of such a request by the warden. In denying the CR, the district court held that so long as the BOP responds to the prisoner’s request within 30 days, the inmate is required to pursue the administrative remedies process with the BOP to its conclusion before filing a CR with the court.

The Fifth Circuit held that the district court was incorrect.

However, the majority held that the district court was correct in its initial ruling, that Garrett had failed to exhaust because the requisite 30-day period had not yet lapsed. Although at the time of the motion for reconsideration the 30 days had lapsed, the Fifth Circuit held that reconsideration was not the proper vehicle. Garrett should have filed a new CR motion instead. Therefore, the district court was affirmed.

Judge Graves dissented. He agreed with that the district court had misinterpreted the exhaustion requirement. However, he disagreed that the court arrived at the correct outcome. He noted that there is a circuit split on the question of whether a prisoner may file a CR motion in federal court 30 days after submitting his request to BOP, regardless of whether the warden responds during that period. See United States v. Harris, 973 F.3d 170 (3d Cir. 2020); United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020). See also United States v. Ward, 832 F. App’x 334 (5th Cir. 2020) (discussing split).

Ward v. United States, 11 F.4th 354 (5th Cir. Aug. 26, 2021). The Fifth Circuit reiterated that, when considering a compassionate release motion under 18 U.S.C. § 3582(c)(1)(A), the district court errs by treating policy statement §1B1.13 as binding. But the Court affirmed the district court’s discretionary decision that a reduction was not warranted under the statutory sentencing factors. The Court held the district court was obligated to consider those factors even though the Government did not raise them.

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United States v. Castro, 4 F.4th 345 (5th Cir. July 14, 2021). The Fifth Circuit held, as a matter of first impression, that the grant of a certificate of appealability (COA) that did not raise a constitutional claim was a patent error warranting vacatur of the COA and dismissal of the appeal. Even when the district court identifies relief on a procedural ground, the COA must identify a constitutional issue to be valid. See Gonzalez v. Thaler, 565 U.S. 134 (2012). The parties agreed the COA was invalid, but Castro argued that once a COA is issued, it cannot be vacated. The Court rejected that argument. The Court also refused to issue a COA on whether the residual clause of § 924(c) is unconstitutional post-Davis. That was not the argument Castro raised in his first habeas petition, and COA cannot issue on an argument different than the one presented to the district court. And his prior conviction under 18 U.S.C. § 2114(a) satisfies the elements clause because it has as an element putting another’s life at risk by using a dangerous weapon, which, in his case, was a firearm.

United States v. Clark, 852 F. App’x 812 (5th Cir. April 27, 2021) (per curiam). The Fifth Circuit granted relief on a successive § 2255 based on United States v. Davis, 139 S. Ct. 2319 (2019), which held that the residual clause in the definition of crime of violence in 18 U.S.C. § 924(c) was unconstitutionally vague. The Court held Clark passed the jurisdictional hurdle to successive § 2255 relief because he proved the relief he sought relied on a new, retroactive rule of constitutional law and that it was more likely than not that the district court sentenced him under the part of § 924(c)’s crime-of-violence definition rendered unconstitutional. Clark’s § 924(c) conviction was premised on a theft of firearms from a federal firearms licensee offense. Because the offense lacks an element of force, the § 924(c) conviction must have been premised on the now invalidated residual clause.

The Fifth Circuit also held that the district court abused its discretion by sua sponte denying relief based on a finding of procedural bar, where the government intentionally waived that defense and Clark had minimal notice regarding the procedural bar issue.

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United States v. Cooper, 996 F.3d 283 (5th Cir. Apr. 28, 2021).

Cooper, who was serving a 40-year sentence for drug-trafficking and firearms convictions, filed a motion for compassionate release under the First Step Act, based on extraordinary and compelling reasons, including the non-retroactive changes to the way firearms offenses under 18 U.S.C. § 924(c) are punished. The district court agreed that if Cooper were sentenced today, he would be subjected to a significantly lower sentence because of the non-retroactive changes to § 924(c). But, the district court noted the unsettled caselaw as to whether it had discretion to consider “extraordinary and compelling reasons” not articulated by the Sentencing Commission's corresponding policy statement, §1B1.13.

After the district court denied the sentence reduction motion and while the case was pending on appeal, the Fifth Circuit held in United States v. Shkambi, 993 F.3d 388, 392–93 (5th Cir. 2021) that the district court is not bound by § 1B1.13 when considering compassionate release motions brought by prisoners like Cooper. The Court rejected the government’s argument that the district court denied Cooper’s motion based exclusively on the sentencing factors under 18 U.S.C. § 3553(a), which courts are still required to consider when either a prisoner or the BOP moves for compassionate release. Instead, the district court expressly invited Cooper to renew his motion if the Fifth Circuit clarified the scope of its discretion under the First Step Act, which the Court did in Shkambi. Case remanded so that the district court could reassess Cooper's motion for compassionate release.

Note: This is an important decision for compassionate release practitioners in the Fifth Circuit because it allows the district court to consider non-retroactive changes in sentencing law as an extraordinary and compelling reason for a sentence reduction; Cooper would have faced a mandatory minimum of 10 years, instead of the 30-year MM imposed because of the First Step Act’s non-retroactive changes to 924(c).

United States v. Shkambi, 993 F.3d 388 (5th Cir. Apr. 7, 2021). The Fifth Circuit reverses a district court’s determination that it lacked jurisdiction to modify Shkambi’s sentence based on the “compassionate 67

release” provisions in 18 U.S.C. § 3582(c)(1)(A). The key portion of the decision is the Court’s determination that a district court is not bound by the old pre-First Step Act of 2018 (FSA) policy statement in U.S.S.G §1B1.13 that limited compassionate release sentence reductions to those based on motion by the Bureau of Prisons. The FSA eliminated the requirement for a § 3582 motion to be brought by the BOP. For the first time, prisoners like Shkambi could move on their own accord. The Court concluded that the limitations in policy statement §1B1.13 pertain only to motions filed by BOP, not to motions filed by a prisoner on his or her own behalf. The district court on remand is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a).

United States v. Winters, 986 F.3d 942 (5th Cir. Feb. 3, 2021). Winter’s conviction for a dual-object conspiracy involving both crack cocaine and powder cocaine was a covered offense under the First Step Act. United States v. Batiste, 980 F.3d 466 (5th Cir. Nov. 13, 2020). The defendant sought to reduce his sentence for crack cocaine under the First Step Act. The effect of the First Step Act was to reduce his statutory range from 20 years to life to 10 years to life. He argued that a reduction was warranted in light of post-sentencing conduct, the circumstances of his case, and the 18 U.S.C. § 3553(a) factors. The Fifth Circuit affirmed the sentence, emphasizing that the district court has discretion under the First Step Act and that it did not rely on a misinterpretation of either prior precedent or the Act itself. The Court, however, remanded for the district court to consider the proper term of supervised release.

United States v. Robinson, 980 F.3d 454 (5th Cir. Nov. 13, 2020). The defendant, who was convicted of trafficking crack cocaine, sought a sentencing reduction under the First Step Act. He argued that the district court erred by refusing to consider a lower, non-career-offender sentencing range if he had been convicted in 2019 rather than 2010. The Fifth Circuit affirmed, believing the most plausible explanation for the district court’s decision was an exercise of its discretion after considering all relevant sentencing factors. [Note: this opinion is largely a copy-andpaste of United States v. Batiste, described above.]

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Atkins v. Hooper, 979 F.3d 1035 (5th Cir. Nov. 3, 2020), withdrawing opinion at 969 F.3d 200 (5th Cir. Aug. 7, 2020). Atkins argued that the state court’s decision denying his Sixth Amendment right to confrontation was contrary to and involved an unreasonable application of Supreme Court precedent. The Fifth Circuit initially agreed but, after rehearing, decided any error was harmless. In Louisiana state court, Atkins was charged with robbery. At his jury trial, in opening statement, the prosecutor stated that a Lawrence Horton was also involved in the robbery and would testify that he met Atkins the morning of the robbery and they went over to the victim’s house; Atkins kicked in the door and robbed and beat the victim. During trial, the prosecutor questioned Detective Dowdy (really): Q: Did you speak with Horton? A: Yes Q: Did he provide a statement? A: Yes Q: was the statement inculpatory? A: Yes Q: did he implicate somebody else? A: Yes Q: Alright, he implicated someone else. What did you do next with regard to your investigation?

A: Based on the information that Horton provided, I was able to obtain a warrant.

Q: For whom? A: Atkins.

The State rested without calling Horton. In closing argument, the prosecutor stated that Detective Dowdy interviewed Horton and then obtained an arrest warrant for Atkins. Atkins was convicted. The state courts denied Atkins’ applications for post-conviction relief. The federal district court denied his § 2254 application and certificate of appealability. The Fifth Circuit granted certificate of appealability.

1) The Fifth Circuit will not consider procedural default when the government intentionally waived the procedural defense, as it did here.

2) To determine whether the state court decision was contrary to or involved an unreasonable application of Supreme Court precedent, the Fifth Circuit must first identify the “last reasoned decision” by the state courts. The LA Supreme Court decision referred only to a state procedural provision in apparently addressing this issue as well as Atkins’ IAC claims. It was not sufficient for the needed analysis. The LA court of appeals decision listed a string cite and failed to provide sufficient reasoning. So, the Fifth Circuit reviewed the decision of the state district court.

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The district court denied Atkins post-conviction application, holding that 1) Atkins right to confrontation was not violated because Det. Dowdy’s testimony did not refer to Horton’s actual out of court statements and so was not hearsay, and 2) Det. Dowdy’s testimony was permissibly used to explain the events that led up to Atkins arrest. The Fifth Circuit held, as to the first reason, that it was an unreasonable application of the holding in Gray v. Maryland, 523 U.S. 185 (1998), in which the Supreme Court held that the defendant’s confrontation clause rights were violated by admission of redacted statements that obviously refer to the defendant.

The Court did not go further (in its revised opinion) because, even though the State did not raise harmlessness, the Court did. It found the challenged testimony was harmless.

Judge Costa dissented. He argued that considering the State’s harmlessness argument, raised in the petition for rehearing but not in the earlier briefing, was unfair—particularly after the panel had decided after full briefing and oral argument not to sua sponte raise harmlessness even though it recognized it had the discretion to do so. “[T]he leniency the majority affords the government’s forfeiture is hardly, if ever, shown when habeas prisoners fail to raise an issue in the district court.” He took issue with the majority’s claim it is “desirable in most AEDPA cases to consider harmlessness”: “A presumption that excuses the state, but not pro se litigants, for failing to raise an issue in the district court is not consistent with equal justice under law.”

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