5th Circuit Archives | Page 2 of 5 | Fort Worth Criminal Defense, Personal Injury, and Family Law

May 03

Strict Monitoring of Juvenile Sex Offender Internet Usage is a “Heavy Burden,” says Fifth Circuit

By Brandon Barnett | Sex Crimes

In United States v. Sealed Juvenile, the 5th Circuit Court of Appeals discusses how much oversight is too much when it comes to juvenile sex offenses.

Please note: This article discusses sexual abuse of a child. Generally speaking, the reason the court system treats juveniles differently from adults is because of the hope of rehabilitation and restoration of the juvenile offender to society. With everything from school to job searching on the internet these days, should juvenile sex offenders be able to be on the internet? Is strictly monitoring a juvenile sex offender’s internet usage, down to the keystroke, an imposition on constitutional rights, or is society providing oversight to a juvenile defendant with the hope of rehabilitation?

A Juvenile Sexual Assault Occurs on a Military Base

While living with his family on a military base, a fifteen-year-old sexually assaulted a four-year-old. He was charged with violating 18 U.S.C. §§2241(c), 5032 (2012), “engaging in a sexual act with a person who had not attained the age of 12 years.” The juvenile defendant had a history of psychiatric illnesses, such as Oppositional Defiant Disorder and Bipolar disorder. He had a pattern of sending sexually explicit letters to classmates at school. Before sentencing the district court ordered a probation officer to render a special report, which concluded, “in the last year the juvenile’s problems transformed from being anger-oriented to being sexually-oriented.” In a plea agreement, the juvenile pleaded guilty to a lesser offense of “abusive sexual conduct with a minor who had not attained the age of 12 years,” violations of 18 U.S.C. § 2244(a)(5) (2012) and §5032.

The District Court Imposes Strict Sex Offender Conditions to Probation

The district court deemed the defendant a “juvenile delinquent” and sentenced him to eighteen months in a juvenile treatment facility and a term of juvenile delinquent supervision until he turned twenty-one. Further, the district court imposed four special conditions to his supervision

a restriction on the defendant’s contact with children,
choice of occupation,
prohibition on loitering in specific places, and
the use of computers and internet.

The juvenile appealed to the Court of Appeals for the Fifth Circuit, arguing that the district court had not provided adequate reasons for imposing the special conditions at the sentencing hearing, and failed to explain how the special conditions were reasonably related to the offense.

Under 18 U.S.C. § 3563(b), courts may place discretionary conditions on probation, so long as the conditions are reasonably related to the factors set forth in such deprivations of liberty or property and are reasonably necessary. In doing so, the sentencing court must consider the nature and circumstances of the offenses and the “history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1)(2) (2012).

The Big Issue Before the Fifth Circuit | Were the Special Conditions of Probation Reasonably Related to the Offense?

The big issue before the Fifth Circuit was whether the conditions imposed by the district court were reasonably related to the offense, and if so, were they reasonably necessary. Did the district court provide adequate reasons for imposing the four special conditions? As the case was a matter of first impression, the Court examined each special condition and concluded in a surprising manner with regard to the internet and computer use.

Condition One: Restriction on Contact with Children

Under the first special condition, the juvenile was “not to have contact with children under the age of sixteen without prior written permission of the Probation Officer.” Further, he was required to “report unauthorized contact with children to the Probation Officer.” On appeal, the juvenile argued that this special condition was a “much greater deprivation of liberty…than reasonably necessary.” However, the Court disagreed with the juvenile. “Considering the threat posed by the juvenile based on his conviction [and other noted behaviors on record], we affirm this condition.” Also noting that the juvenile could attend school with permission of the Probation Officer, the Fifth Circuit agreed with the lower court.

Condition Two: Choice of Occupation

Under the second special condition, the juvenile was “restricted from engaging in an occupation where he has access to children, without prior approval of the Probation Officer.” On appeal, the juvenile argued that the special condition was not reasonable and necessary because the offense was not related to work and that he would run a risk of never being able to be employed. The Court disagreed because the juvenile would be able to work upon prior permission from his Probation Officer. The Court affirmed the district court’s condition.

Condition Three: Prohibition on Loitering in Specific Places

Under the third special condition, the juvenile was not to “loiter within one-hundred feet of schools, parks, playgrounds, arcades, or other places primarily used by children under the age of sixteen.” The juvenile argued that the special condition was not reasonably related to his offense because his offense did not occur at a school. The Court disagreed. “The juvenile’s history of sending sexually explicit letters to girls at school means that he poses a threat to children at school.” The Fifth Circuit affirmed the lower court’s special condition.

Condition Four: Computer and Internet Use

Under the fourth special condition, the juvenile was (1) not to possess a computer with internet access without the prior approval of the Probation Officer; (2) to submit to searches under the direction of the Probation Officer that could include software scans of his technological devices; (3) to consent to a key logger on his personal devices and to consent to a search of each internet query; (4) to inventory and to provide receipts for all devices and bills pertaining to the internet and technology.

The juvenile argued that the restrictions on his computer and internet use were not reasonably related to his offense, and that the special condition would prevent him from job searching, completing homework, and emailing his therapists. The juvenile argued that even though he could access the internet, to do so would place a heavy burden on him to request permission each time he accessed the internet, or to report any misstep such as an errant search or a “pop up” on the internet.

The Fifth Circuit points out that the juvenile is mentally ill and needs some internet oversight. “We affirm the monitoring provisions because we recognize [they] ensur[e] that the juvenile complies with the restrictions against accessing sexually explicit materials.”

However, the Fifth Circuit agreed with the juvenile on some of the internet and computer usage restrictions. “We must recognize that access to computers and the Internet is essential to functioning in today’s society.” The Fifth Circuit ordered the district court to construe the special condition so that the juvenile does not have to request permission from a Probation Officer each time he accesses the internet, removing what the Court deemed “a heavy burden” on the juvenile. Next, the Court modified the special condition that required the juvenile to provide receipts and payment records to the Probation Officer, “because the purpose is to verify that there have been no payments to an internet service provider, and payment for proper use should be made by the juvenile…there is no other basis to justify the restriction imposed by the [special condition].”

In sum, while the Fifth Circuit mostly affirmed the district court’s holding, it made some significant modifications where technology is concerned. Speaking to the hope of future rehabilitation, the Court added, “the juvenile may seek modification to any of the conditions, and the district court may lessen the burden of the [special conditions] if [his] behavior improves over time.”

Feb 24

Warrantless Search Mattress Protective Sweep Texas

Warrantless Search Under a Man’s Mattress Held Constitutional

By Brandon Barnett | Search & Seizure

United States v. Garcia-Lopez (5th Circuit, 2016)

FACTS: On February 5, 2014, the Wharton County Deputy Sheriff’s Department served a felony arrest warrant on Yonari Garcia at his father’s trailer home. Yonari’s father told law enforcement that Yonari was not home, however, consented to a search of the trailer. Upon entry, Garcia-Lopez, Yonari’s brother, made a beeline for a bedroom, closing and locking the door. Law enforcement followed Garcia-Lopez and demanded that the door be unlocked. Garcia-Lopez opened the door and the police entered, continuing the search for Yonari. Garcia-Lopez asked if he could sit on his bed and eat his dinner while police searched the room. The police obliged the odd request. A minute later, law enforcement discovered two sets of bullet-proof vests in plain sight, prompting a background check. Garcia-Lopez was a convicted felon and having the body armor was a violation for being a felon in possession of body armor, U.S.C. § 922(g)(1). The police arrested Garcia-Lopez after being in the home a total of three minutes. After the arrest, police continued searching the Garcia-Lopez’s room. Concerned Yonari might be sheltered in a hollowed-out mattress, the police lifted the bed up, discovering ammunition and three handguns sandwiched between the mattress and box springs. After a total of seven minutes inside the trailer, the police left with Garcia-Lopez under arrest.

See the 5th Circuit’s full opinion in United States v Garcia Lopez.

Garcia-Lopez Indicted for Federal Firearms Charges

In March 2014, Garcia-Lopez was indicted on six counts of being a felon in possession of a firearm in violation of USC §§ 922(g)(1) and 924(a)(2). During an evidentiary hearing, the district court denied Garcia-Lopez’s motion to suppress the guns found under the mattress because law enforcement was originally in the trailer for a legitimate purpose and they had a right to search the home pursuant to the valid arrest warrant for Yonari. The court added that upon the valid search of the premises, law enforcement found contraband and arrested Garcia-Lopez. Further the court stated that upon his arrest, law enforcement had the right to make a protective sweep, so long as it did not last an unreasonable amount of time. Additionally, there was testimony that indicated that suspects have been known to hide in hollowed-out mattress to evade arrest. According to the district court, the search for Yonari and seizure of the guns was proper in every way. Garcia-Lopez was sentenced to forty-six years imprisonment and two years of supervised release. Garcia-Lopez appealed to the Fifth Circuit Court of Appeals, arguing that law enforcement’s belief that Yonari might have been hiding in the bed was unreasonable, and thus, unconstitutional.

Was Lifting the Mattress an Unconstitutional Search or a Lawful Protective Sweep?

The Court of Appeals must determine whether the act of “lifting up the mattress” and seizing the guns violated Garcia-Lopez’s constitutional rights. In other words, was lifting the mattress an unconstitutional search under the Fourth Amendment’s protection against unreasonable searches and seizures?

Under the Fourth Amendment, warrantless searches are pre se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971). A protective sweep may be conducted with [a lower threshold of] reasonable suspicion, probable cause is not necessary. Maryland v. Buie, 494 U.S. 325-27 (1990). “There must be articulable facts which, taken together with the rational references from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing danger to those on the arrest scene.” Id. A protective sweep [must be] quick and…limited to the safety of the police. Id. Evidence seen in plain view during a lawful sweep can be seized and admitted into evidence during trial. United States v. Jackson, 596 F. 3d 236, 242 (5th Cir. 2010).

5th Circuit Holds that the Warrantless Search of the Mattress was Reasonable

Here, the Court of Appeals held that the district court’s finding of reasonable suspicion was correct because of the amount of evidence supporting such a claim. First, law enforcement became suspicious because of the standoff over the locked door. Second, Garcia-Lopez’s odd request to sit back down on the bed while the police conducted the search is suspicious in light of the circumstances. Third, the belief that a suspect could be hiding in a hollowed-out mattress is reasonable given police training and data supporting such a claim. Fourth, the search lasted a total of seven minutes—a reasonable amount of time to conduct a protective sweep. In sum, the Court says it was logical under the specific facts of this case to suspect that Yonari might have been hiding in the mattress. The Court affirms the district court’s judgment—the warrantless search under Garcia-Lopez’s mattress was not unconstitutional under the circumstances.

Feb 04

Who Qualifies as a “Victim” Under the Mandatory Victims Restitution Act?

By Brandon Barnett | Fraud

Definition of “Victim” under the MVRA, leaves HUD out in the Cold | Who Qualifies for Relief Under the Mandatory Victims Restitution Act?

United States v. Benns (5th Circuit, 2016) is a case regarding the Mandatory Victims Restitution Act (MVRA). In this case, the US Court of Appeals for the Fifth Circuit held that HUD is not a victim of the defendant’s crime, even though the HUD was out a considerable amount of money after defendant forged a credit application. Read more about USA v. Benns below.

Anxious Couple Seeks Help for Mortgage Default

Desperate for relief from a mortgage in arrears, Michael and Brenda Arnold conveyed ownership rights of their Arlington home to Rickey Benns. At the time of the conveyance, Benns agreed to rent the home and pay the mortgage from the profits made from future tenants. The mortgage loan, held by Bank of America and insured by the United States Department of Housing and Urban Development (“HUD”), remained in the Arnold family’s name. Unfortunately, Benns reneged on his agreement and failed to pay off the mortgage, triggering foreclosure proceedings against the Arnolds, unbeknownst to them.

Looming Foreclosure Leads to Desperate Acts of Forgery

In an attempt to prevent foreclosure of the property, Benns secretly tried to refinance the property. Benns forged Arnolds’s signatures on loan modification documents and used a false pay stub to trick the bank into believing the Arnolds were creditworthy and still owned the property. After the application was denied by the bank, the property was eventually foreclosed on and sold below market value. Because Bank of America’s mortgage was insured by HUD, HUD paid the bank $54,906.59—the difference between what HUD paid Bank of America following foreclosure and the later sale price of the property.

A Plea is Entered and Restitution is Ordered

Benns plead guilty to one count of making false statement on a credit application, a violation of 18 U.S.C. § 1014. Upon entering the guilty plea, Benns “accepted the accuracy of a factual resume prepared by the government…author[izing] restitution to the victims of the community…includ[ing] restitution arising from all relevant conduct, not limited to that arising from the offense of conviction alone.” Benns was sentenced to twenty-seven months imprisonment, five years of supervised release, and ordered to pay restitution, totaling $544,602.42, under the federal Mandatory Victims Restitution Act (“MVRA”). Benns appealed to the United States Court of Appeals for the Fifth Circuit, arguing that HUD was not a victim of his convicted offense.

What is the Mandatory Victims Restitution Act (“MVRA”)?

The MVRA requires district courts to order restitution payments to crime victims during sentencing. 18 U.S.C. § 3663A. Under federal law, a victim is defined as, “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.” Id. Typically, restitution is limited to losses arising from underlying conduct of a defendant’s offense of conviction. Hughley v. United States, 495 U.S. 411, 412-13 (1990); United States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012); United States v. Maturin, 488 F.3d 657, 660-61 (5th Cir. 2007). To be a considered a victim under the MVRA, a person or organization must “suffer a foreseeable loss as a result of the conduct underlying the convicted offense.” Id. The government must establish, by a preponderance of the evidence, direct or proximate causation between the conduct underlying the offense and the actual loss suffered by the victim. United States v. Reese, 998 F.2d 1275, 1282 (5th Cir. 1993).

The Big Issue: Is HUD really a victim of Benns’s forgery scheme?

The United States Court of Appeals for the Fifth Circuit must determine whether HUD was a victim of Benn’s convicted offense. If the Court finds that HUD was a victim, then HUD will receive restitution under the MVRA. If the Court finds that HUD was not a victim, then Benns’ restitution award, which was imposed by the district court, could be amended or vacated altogether.

The Court of Appeals for the Fifth Circuit Weighs In with a Surprising Twist

Here, the Court weighs the argument made by the government against the facts of the case. The government argues that HUD’s loss was a direct result of Benn’s false credit application because the filing of the application itself delayed the foreclosure, which resulted in HUD selling the property at a loss. However, the Court states that the government did not produce evidence that the false credit application resulted in a delay, or that such a delay resulted in a greater loss for HUD than if HUD had sold the property any sooner than it actually did. The Court holds, because of the lack of evidence connecting the false credit application with the loss incurred by HUD, HUD is not to be considered a “victim” under the MVRA and, accordingly, cannot receive an award of restitution. “Benns was indicted and pleaded guilty to one count of filing a false credit application…it therefore does not follow that the behavior underlying Benn’s offense was the cause of HUD’s loss.”

Restitution could have only been awarded had the government established a direct or proximate causation between Benn’s false credit application and HUD’s loss when HUD sold the property at a foreclosure auction. The Court says the government failed to do so. Even though HUD was out $54,906.59, the Court does not consider HUD to be a victim of Benn’s convicted offense and vacates the restitution award.

Jan 24

Child Erotica Defense Attorney Fort Worth

Child Erotica is Not Probable Cause for Possession of Child Pornography

By Brandon Barnett | Computer Crimes

10th Circuit Holds that Possession of Child Erotica Does Not Give Rise to the Likelihood of Possession of Child Pornography

Child Erotica Defense Attorney Fort Worth Paul Edwards was charged with possession of child pornography (which is illegal) after officers executed a search warrant based on his possession of child erotica (which is not illegal). The search of Edwards’s home resulted in the discovery of thousands of images and videos of child pornography. Edwards filed a motion to suppress the images on the grounds that the affidavit failed to prove his possession of child erotica amounted to probable cause to believe that he also possessed child pornography. The court denied this motion and Edwards entered a conditional guilty plea, reserving his right to appeal the denial, and was sentenced to 63 months in jail followed by 7 years of supervised release.

Full Court Opinion: United States v. Edwards (USCA 10th Circuit, 2015)

The Probable Cause Affidavit that Led to the Search and Arrest

Edwards was identified by agents that were investigating a website for individuals suspected of child exploitation as an internet user that had shared 715 images of the same prepubescent girl, approximately 10 years old. In some of the photos the girl was clothed and in others she was “scantily clad.” The government acknowledged that the agents did not observe Edwards posting or viewing child pornography. Instead, the affidavit described the photos as child erotica and only provided evidence that Edwards possessed legal child erotica. The officer explained in the affidavit that those who collect child pornography are likely to collect child erotica but made no distinction that a possessor of child erotica is highly likely to also possess child porn. This opinion was used by the magistrate in issuing the warrant and again by the trial court in denying Edwards’s motion to suppress.

The Legal Significance: Child Erotica vs. Child Pornography

While it is legal to possess child erotica, it is illegal to possess child pornography. Here, child erotica is defined in the affidavit as “materials or items that are sexually arousing to persons having a sexual interest in minors but that are not, in and of themselves, obscene or that do not necessarily depict minors in sexually explicit poses or positions.” The affidavit further explains that child erotica “includes things such as fantasy writings, letters, diaries, books, sexual aids, souvenirs, toys, costumes, drawings, cartoons and non-sexually explicit visual images.”

Child pornography is any visual depiction, whether authentic or computer generated, of a minor engaging in sexually explicit conduct. 18 U.S.C. §2256(8). To cross the line from legal child erotica to prohibited child pornography, there must be nudity that displays the genital area of the child and that display must also be lascivious. United States v. Horn, 187 F.3d 781. A photo is lascivious if it focuses on the genital area of a child and the apparent purpose of the photo is to arouse sexual desire. United States v. Kemmerling, 285 F3d 644.

Participation in Legal Conduct Does Not Prove Participation in Criminal Conduct

In many situations courts are hesitant to presume that defendants are more likely to engage in certain illegal activities based on their participation in a certain legal activity, as they should be. Similarly, here, the appellate court found that there is no sufficient connection between the posting of child erotica, a legal activity, and the possession of child porn that establishes probable cause to believe that child porn will be found in the home of the person who posted child erotica.

While some courts have found that the possession of child erotica is one factor that can be used to support probable cause of the possession of child porn, no court has found that one factor to be probative in making a probable cause determination. Instead, the courts look to the totality of the circumstances surrounding defendant’s said possession of child erotica to prove that such circumstances amount to the high probability that defendant is also in possession of child pornography.

The appellate court found that the affidavit lacked information based on the officer’s experience about the type of materials possessors of child erotica are highly likely to maintain and lacks any evidence to show that Edwards was a collector of child pornography. Further, the court determined that the information in the affidavit failed to provide a “substantial basis” to find probable cause that child porn would be found in Edward’s home.

Ultimately, this case is the perfect example that mere possession of child erotica cannot be used to prove that a defendant has committed the offense of possession of child pornography.

Dec 18

Prosecutor’s Online Comments Did Not Prejudice the Jury

By Brandon Barnett | Ethics

When should online comments made by prosecutors rise to the level of misconduct, so that a ‘presumption of prejudice’ would likely be granted on appeal?

Online Comment US v. Pratt A district court convicted Renee Pratt, a prominent Louisiana politician, of conspiracy to violate the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”). 18 U.S.C. § 1962(d). Pratt’s conviction resulted from a thorough investigation of her long-time friend, Mose Jefferson, a well-known Louisiana community organizer and politician, as well as his family. United States v. Pratt, 728 F.3d 463 (5th Cir. 2013), cert. denied, 134 S. Ct. 1328 (2014). The Jefferson family and Pratt were accused of obtaining community-service grants, and using the money for personal gain. Id. Pratt timely appealed, citing new evidence that several prosecutors from the U.S. Attorney’s Office (“USAO”), made negative and persuasive online comments in public forums, including a local newspaper’s website, regarding her case around the time of trial. Pratt claims that the jury rendered a guilty verdict because of the disparaging and prejudicial comments.

Read the 5th Circuit’s Full Opinion in United States v. Pratt.

Around the time of Pratt’s filing a motion for a new trial, the United States Department of Justice (“DOJ”) conducted an investigation to determine whether attorneys working for the DOJ/USAO were making inappropriate statements online about pending cases. Office of Prof. Resp., Dep’t of Justice, Investigation of Allegations of Professional Misconduct Against Former Assistant Attorneys Salvador Perricone and Jan Mann. OPR Report at 2, (2013). The results of the investigation showed that attorneys from the Louisiana division of the USAO and DOJ “anonymously authored dozens of…online comments…posted on nola.com, the website of the widely-read New Orleans Times- Picayune.” Id. Using several pseudonyms, a senior-level prosecutor, “posted his views…of Louisiana politics…refer[ring] to Pratt’s case.” Id. While Pratt’s trial was pending, the prosecutor commented, “If Pratt walks, it’s the judge’s victory…a sad day for justice.” Id. Post-conviction, a second prosecutor, “proclaimed Pratt’s guilt, defended Pratt’s sentence, and characterized Pratt as driven by greed” on nola.com. OPR Report at 42 (reproducing comments posted in Nov. 2011).

A few months later, the district court that convicted Pratt held a limited evidentiary hearing to “develop a clearer record of any [outside] influence the anonymous comments may have had on Pratt’s trial.” Unlike a standard hearing, this ‘limited hearing’ consisted of a questionnaire submitted to two jurors who had previously identified nola.com as their source of news during jury selection. Both jurors reported no influence by the comments on nola.com. Accordingly, the district court denied Pratt’s motion for a new trial, concluding, “[there is] a lack of evidence that…the jury…was tainted by…the [online] comments.” Pratt appealed to the Fifth Circuit Court of Appeals for relief.

The Court of Appeals must determine whether the online comments made by the high-level attorneys rise to the level of prosecutorial misconduct, so that in Pratt’s case, a presumption of prejudice may be granted, relieving Pratt from the district court’s guilty verdict in her RICO case. The Court considered a Rule 33 Motion for New trial, where a court may “vacate a judgment and grant a new trial if the interest of justice so requires” and in the interest of “fairness of the trial.” Fed. R. Crim. P. 33(a); United States v. Turner, 674 F.3d 420, 429 (5th Cir. 2012) (quoting United States v. Severns, 559 F.3d 274, 280 (5th Cir. 2009); United States v. Williams, 613 F.2d 573, 575 (5th Cir. 1980).

A presumption of prejudice may be made in certain extreme cases or pre-trial publicity. Skilling v. United States, 561 U.S. 358, 381 (2010). There is no ground, however, to presume prejudice based on prosecutorial misconduct alone. In affirming a grant of a new trial, reasons for granting a new trial are “novel and extraordinary.” United States v. Bowen, 799 F.3d 336, 339 (5th Cir. 2015). For a new trial to be warranted, the court must normally find that the misconduct in question actually prejudiced the defense.” Id. at 356; United States v. Bowler, 252 F.3d 741, 747 (5th Cir. 2001).

Here, the Court concludeed that the prosecutorial misconduct—the online comments—is “too far removed from the proceedings to support a presumption of prejudice,” as the attorney who made the comment, “did not prosecute or deal with the Pratt trial,” and because, “no one from the trial team posted the comments…while the trial was underway.” Second, the Court states that rulings on Rule 33 Motions are “necessarily deferential to the trial court” in that the facts must be construed in the light most favorable to the lower court’s verdict. United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004). Lastly, the Court opined that in “certain extreme cases, pretrial publicity…can manifestly taint a criminal prosecution, [giving] rise to a presumption of prejudice.” Skilling v. United States, 561 U.S. 358, 379 (2010). The Court says that the comments made regarding Pratt’s trial were not extreme, “this is not such an extraordinary case…this…concerns a handful of anonymous, speculative postings…that lacked the kind of blatantly prejudicial information…that might poison public opinion and entitle the defendant to a presumption of prejudice.” United States v. McRae, 795 F.3d 471, 481-82 (5th Cir. 2015). Even though prosecutorial misconduct did in fact occur, the Court affirms the district court’s verdict and denies Pratt’s motion for new trial. According to the 5th Circuit, the online comments were far too attenuated to apply to Pratt’s trial and did not affect the guilty verdict.

All attorneys are bound by specific ethical protocols and procedures, promulgated and enforced by each state’s bar association. In Texas, lawyers must abide by the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. Texas Prosecutors are held to an even higher standard under the “Special Responsibilities of a Prosecutor” not to make extrajudicial statements that “in the course of representing a client…a reasonable person would [not] expect to be disseminated by means of public communication if the [prosecutor] knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.” Tex. Rules of Disciplinary Procedure §3.09; 3.07(a).

Nov 19

Federal Sentence Enhanced for Presence of Dangerous Weapon Even Though the Defendant Had No Knowledge of the Weapon

By Brandon Barnett | Sentencing

Should a defendant charged with possession of drugs be punished for a “dangerous weapon” found at the scene of the drug trafficking and owned by a co-conspirator, when he did not know about the gun in the first place?

Dangerous Weapon Enhancement The Federal Fifth Circuit Court of Appeals thinks so. See the Court’s opinion in United States v. Guerrero.

On September 5, 2012, police were investigating a ranch in McAllen, Texas as a possible stash house for drug-trafficking. Officers observed Adrian Rodriguez-Guerrero coming and going from the ranch along with three other men in a caravan. When the officers stopped the caravan, “because the vehicles appeared weighed down,” a dog alerted to the presence of drugs. The police found “boxes of limes with bundles of marijuana concealed among the limes.” The defendants subsequently consented to a search of the McAllen ranch. (I’m always left wondering why people, especially those in possession of drugs, consent to a search.) “There the [police] found…clothing…a loaded shotgun and 125 shotgun shells…plastic cellophane, limes, packing tape…lime boxes, latex gloves, a large scale, and several bundles of marijuana.” In a written statement accepting responsibility, Rodriguez-Guerrero said he was hired to do landscaping at the residence, but was asked to “load the marijuana into a truck at the [ranch]…acknowledg[ing] the [ranch] as a stash house [for drugs].”

Conspiracy to Possess and Distribute Marijuana Enhanced for Possession of a Dangerous Weapon

At trial, he pled guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, receiving a “guidelines-range sentence of 104 months” imprisonment and four years of supervised release. His sentence included a two-level enhancement for possession of a dangerous weapon—the shotgun found at the McAllen ranch. The district court noted, “[the Court] is not finding Rodriguez-Guerrero possessed the shotgun; rather, it was reasonably foreseeable…that there would be a weapon involved in…the… drug trafficking crime.” The district court added, “the shotgun was a tool of the trade and it [is] reasonably foreseeable to [Rodriguez-Guerrero] that there would have been a weapon, especially [to] a person with the experience that he has in drug trafficking.” Rodriguez-Guerrero appeals to the Fifth Circuit Court of Appeals, stating that there was no evidence to support a finding that either he or a co-conspirator possessed the shotgun—possession which lengthened his prison sentence.

U.S. Federal Sentencing Guidelines Application When a Dangerous Weapon is a “Tool of the Trade”

The United States Sentencing Guidelines Manual provides a two-level sentencing enhancement if “a dangerous weapon was present, unless it is clearly improbable that the weapon is connected with the offense.” U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The government must prove weapon possession by a preponderance of the evidence…[and can do so] by showing a temporal and spatial relationship of the weapon, the drug trafficking activity, and the defendant.” United States v. Zapata-Lara, 615 F.3d 388-90.

Here, the Fifth Circuit Court reasons, the McAllen ranch was a stash house for drug-trafficking, used to “package and transport marijuana.” The ranch was a warehouse to store and move drugs, not a residence “in which drugs were also stored.” Next, several bundles of marijuana were found in the ranch’s master bathroom, making it “plausible [the Court reasons] to find that either Rodriguez-Guerrero or another co-defendant accessed the master bedroom, where the shotgun was found.” Further, the rounds of ammunition suggest that the gun was connected with the drug trade. Lastly, the gun and rounds of ammunition were found on the same day that police observed Rodriguez-Guerrero and the co-defendants at the ranch.

The Court concludes that the “facts identified by the [district] court plausibly establish a temporal and spatial relationship between the weapon, the drug-trafficking activity, and Rodriguez-Guerrero.” The purpose of the sentencing enhancement is to punish because of increased danger and violence when drug traffickers possess weapons. U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The mere fact that a weapon cannot be attributable to any specific drug trafficker does not decrease the danger of violence.” Even though Rodgriguez-Guerrero may not have possessed shotgun, or that he may not have known about the shotgun is irrelevant. The Court states, “there was [sufficient] evidence to support that the weapon must have been possessed by one of the conspirators in furtherance of the conspiracy.”

In short, the Court says that establishing the “temporal and spatial” relationship is enough for possession in these types of drug trafficking cases; and, possession of a weapon could lead to enhanced, or increased prison sentences in federal courts.

Nov 16

Possession of Methamphetamine in Fort Worth

Federal Courts No Longer Distinguish Between Pure Meth and Botched Meth When Calculating Weight

By Brandon Barnett | Drug Crimes

Possession of Methamphetamine in Fort Worth Here’s a Breaking Bad question for you: If Walt lets Jesse cook a batch of Meth and Jesse screws it up, such that it is unsellable, can they be punished for the amount of bad methamphetamine that they cooked in addition to the amount of good methamphetamine (if there were such a thing)? This 5th Circuit tells us in United States v. Ramirez-Olvera.

Antonio Ramirez-Olvera was convicted of possessing methamphetamine (meth) with the intent to distribute, violating 21 U.S.C. § 841(a)(1) and (b)(1)(B); he received a sentence of 240 months imprisonment, which is ten years below the bottom of the federal sentencing guidelines range for this offense. Arguing that the district court excessively punished him, as the court did not distinguish between d-methamphetamine (“d-meth”) and l-methamphetamine (“l-meth”) for the sentencing guidelines’ equivalency table, Ramirez-Olvera appealed to the United States Court of Appeals for the Fifth District.

See the opinion in United States v. Ramirez-Olvera (5th Circuit, 2015)

How Should the Court Determine the Weight of Meth in a Possession Case?

The issue before the Court is whether federal courts must distinguish between the types of meth when deciding punishment, or, whether courts can punish based on a “lump sum” of the meth. As you can imagine, higher amounts generally mean a longer prison sentence.

Had the district court used only the d-meth in its calculations, Ramirez-Olvera’s prison sentence might have, in theory, been shorter. Relying on DEA lab reports,Ramirez-Olvera’s probation officer generated a presentence report that recommended, he “should be held responsible for 7.7 [total] grams,” combining both the l-meth and d-meth seized fromRamirez-Olvera’s home and car.

The Court discusses types of methamphetamine, highlighting the differences scientifically and practically. “D-meth and l-meth are stereoisomers of meth…consist[ing] of identical molecules [that are] differently arranged.” United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). D-meth causes psychological and physical changes in humans. L-meth, on the other hand, “produces little or no physiological effect when ingested.” Id. Further, L-meth is a “weak form of [meth], is rarely seen and is not made intentionally, but rather results from a botched attempt to produce d-meth.” U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)(2014). In other words, l-meth is an accidental byproduct when creating d-meth goes awry; L-meth has little to no cash value.

The Court reviews this case anew, focusing on the plain meaning of the Federal Sentencing Guidelines for drug crimes; the Guidelines are the authoritative, controlling source of law. United States v. Moore, 733 F.3d 161-63 (5th Cir. 2013). Amendment 518, “a 1995 amendment to § 2D1.1, indicates that courts need not distinguish between d-meth and l-meth when determining the quantity of…meth attributable to a defendant.” U.S. Sentencing Guidelines, [Sentencing Commission Dicta], §2D1.1(c)(1)(2004). Under this amendment, “l-meth [is to] be treated the same as d-meth…thereby simplifying guideline application [from this point forward].” Id. Further, the Court “ha[s] relied on Amendment 518 to hold [in an unpublished case] that any distinction between d-meth and l-meth is now immaterial when calculating drug quantity under the guidelines. United States v. Beltran, 91 F. App’x 349 (5th Cir. 2004).

The Court affirms the district court’s opinion, holding that under Amendment 518 to the sentencing guidelines, meth no longer is to be categorized for sentencing purposes; l-meth and d-meth are to be added together to render the quantity courts will use in assessing punishment. All meth created, pure and botched, will be added together to determine a defendant’s prison sentence.

Oct 29

“Attempted Sexting” Lands 24 Year-Old on Sex Offender Registry

By Brandon Barnett | Sex Crimes

Attempted Transfer of Explicit Video of Self to a Minor (Sexting) Amounts to a ‘Sexual Act’ Resulting in Registration on the Sex Offender Registry

United States v. Schofield – (5th Circuit Court of Appeals, 2015)

Should a person be ordered to register as a sex offender for sending explicit video to a minor (sexting), but never physically touching the victim? The Fifth Circuit Court of Appeals says yes.

In November 2013, twenty-four year old Nick Schofield began sending text messages to a fifteen-year-old girl. They sent text messages for four months, when an undercover federal agent assumed the girl’s side of the conversation. Believing he was still communicating with the girl, Schofield sent the undercover agent sexually explicit photos and videos of himself. A grand jury indicted Schofield on one count of transfer of obscene material to a minor and four counts of attempted transfer of obscene material to a minor, violations of 18 U.S.C. § 1470. In his plea agreement, Schofield pleaded guilty to one count of attempted transfer of obscene material to a minor, and the other counts were dismissed at sentencing.

The district court sentenced Schofield to two years imprisonment and ordered him to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”). The purpose of SORNA is to establish a national sex offender registry, “to protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. Under SORNA, a convicted sex offender must register his current address and employer’s address.

At trial, Schofield objected to the registration requirement of his sentencing. Schofield appealed to the Fifth Circuit Court of Appeals, contending (1) that the crime of attempted transfer of obscene material to a minor was not a sex act under SORNA and (2) that the statutory definition of a sex offense as a “criminal offense against a minor” was an unconstitutionally vague, all-encompassing residual clause.

First, the Court stated the purpose of SORNA is to “cast a wide net to ensnare as many child offenders as possible.” United States v Dodge, 597 F.3d 1347. The wide net was meant to apply to as many offenses against children that make sense according to the plain language and plain meaning of the statute. The Court also quoted an Eleventh Circuit case dealing with similar facts and charges. The Eleventh Circuit held that the 18 U.S.C. § 1470 intended “[not] to exclude certain offenses but rather to expand the scope of offenses that meet the statutory criteria.” Id. In short, the Fifth Circuit Court of Appeals held that the crime of attempted transfer of obscene material to a minor, was in fact, a sex act under SORNA’s plain language, structure, legislative history, and purpose.

Second, the Court found that Schofield’s conduct in sending the explicit video to a fifteen-year-old girl falls within the SORNA residual clause, noting, “the key is conduct that contains a sexual component toward a minor.” Because Schofield’s conduct “engaged with” a young girl in a sexual manner, the Court held that his conduct includes a sexual component toward a minor, falling under SORNA’s residual clause. The Court reiterated, “Judges do not need a statute to spell out every instance of conduct that is a sexual offense against a minor.” Id.

The Fifth Circuit Court of Appeals held that the language of SORNA’s residual clause was intentionally vague, with the purpose of including as many criminal offenses as possible. Even though the Defendant did not have physical contact with the girl, he was deemed by the Court to have behaved in a sexual manner, which amounted to a sexual act requiring registry on the sex offender registry. If you or a loved one is facing a sexual or computer crimes charge in Tarrant County, Texas, please call our experienced criminal defense attorneys today at (817) 993-9249.

Aug 29

Limiting Consent – Your 4th Amendment Right

By Brandon Barnett | Warrantless Search

Is it a violation of one’s Fourth Amendment rights against unreasonable warrantless search and seizure if an officer finds drugs in a vehicle through a nonconsensual search? The United States Court of Appeals for the 5th Circuit said YES in United States v. Cotton.

U.S. v. Cotton– In February 2011, Appellant was driving his rental car when he was pulled over by a police officer who had received a tip that Appellant may be carrying drugs. The officer conducted a traffic stop and asked Appellant twice for consent to search his car. Appellant replied both times that the officer could search only his luggage. After searching through Appellant’s luggage, the officer examined the driver side rear door, which had loose screws and tool marks. The officer pried back the door panel and discovered crack cocaine inside. The officer arrested Appellant who then made incriminating statements to the officer.

The 5th Circuit held that the officer impermissibly extended his search beyond the scope of the Appellant’s consent and therefore violated the Appellant’s Fourth Amendment right. According to the 5th Circuit, “when conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by consent.” Appellant’s consent allowed the officer to only search luggage in areas of the car where luggage might be found. The officer exceeded the bounds of his limited consent when, instead of only searching the luggage, he searched the entire vehicle for drugs.

The 5th Circuit compared Cotton to U.S. v. Solis, which involved an officer who unexpectedly came across heroin during a consensual search of a defendant’s bedroom. When the officer moved a cooler to use as a step, heroin was revealed. The defendant sought to suppress the evidence but the 5th Circuit held that because the cooler was moved only to effectuate the search for the gun, for which consent had been voluntarily given, the officer did not exceed the scope of the consent. Therefore, the heroin was admissible evidence.

However, in Cotton, after searching Appellant’s luggage, the officer expanded his search by examining other parts of the car. The 5th Circuit held that because the officer did not have authority to search discrete locations where luggage would not likely be found, evidence of the crack cocaine must be suppressed as the officer violated Appellant’s Fourth Amendment right.

If your 4th Amendment rights have been violated and you are facing criminal prosecution, give us a call for a free consultation. Our attorneys will aggressively defend your rights against government intrusion.

Jul 01

Endless Justifications for Warrantless Search & Seizure

By Brandon Barnett | Search & Seizure

Warrantless Search & Seizure Upheld Under Exception to the Constitutional Warrant Requirement

Fort Worth Warrantless Search The Fourth Amendment to the U.S. Constitution protects people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable search & seizure.” Most people believe that a search without a warrant is an automatic violation of the 4th Amendment. Not so. Through years of criminal cases, the courts have crafted numerous exceptions to the warrant requirement. Below is a case brief from a recent federal case in which several of these exceptions to the warrant requirement were employed against the defendant.

United States v. Conlan – U.S. Court of Appeals for the 5th Circuit

Over a one-year period, defendant Conlan sent a series of threatening emails and text messages to a woman he dated as a teenager. The police issued an arrest warrant for Conlan for harassment, and learned that he was registered in a local motel. After the officers saw Conlan’s vehicle in the parking lot, they had the motel manager call Conlan to the front desk where they arrested him. When an officer asked Conlan if he wished to get anything from his room before being taken to the police station, Conlan said yes. Officers accompanied Conlan to his room and retrieved his wallet. While in Conlan’s room, the lead investigator saw a laptop computer and two cell phones lying on the bed and ordered another officer to seize them. A subsequent search revealed the cell phones had been used to call the victim’s workplace and obtain directions to her house, and the laptop used to conduct Internet searches for the victim’s name. The officers also searched Conlan’s car, which was located in the motel parking lot and seized a loaded handgun and riot stick.

A trial, Conlan filed a motion to suppress the items seized from his motel room. By having the manager summon him to the front desk, Conlan argued the officers created the situation where he would be without his effects and forced into requesting a return to his room. Conlan also argued the officers unlawfully searched his car without a warrant.

First, the court held that if the officers wanted access to Conlan’s room, they could have executed the arrest warrant there. In addition, the court found there was no evidence to suggest the officers pressured Conlan into returning to his room. Finally, when Conlan told the officers he wanted to return to his room, the officers did not violate the Fourth Amendment by accompanying him there.

Next, the court held the officers made a lawful plain view seizure of Conlan’s cell phones and laptop computer because the incriminating nature of these items was immediately apparent. The incriminating nature of an item is “immediately apparent” if an officer has probable cause to believe that the item is either evidence of a crime or contraband. Here, the lead investigator who ordered the seizure of Conlan’s laptop and cell phones had first-hand knowledge of Conlan’s harassing electronic communications; therefore, he had probable cause to believe these items constituted evidence of the crime of harassment.

Finally, the court held the warrantless search of Conlan’s vehicle was lawful. Before locating Conlan at the motel, the officers knew that Conlan had recently driven his car past the victim’s house. This act formed part of Conlan’s course of criminal conduct and provided the officers with probable cause to believe the vehicle was evidence and an instrumentality of the crime of harassment. Consequently, the officers were entitled to impound and search Conlan’s vehicle.

Warrantless Search Defense Attorneys – Fort Worth, Texas

If you believe that you have been the victim of an unlawful search and you are currently under investigation or charged with a crime in Texas, contact a criminal defense attorney today. Barnett Howard & Williams PLLC offers free consultations on all criminal cases.