Aiding and Abetting

Aider and Abettor:

An aider and abettor is defined as one who knowingly assists an illegal activity, wanting it to succeed.  U.S. v. Colon, 549 F.3d 565, 571 (7th Cir. 2008).  See also 18 U.S.C. Section 2.

Let’s see how this general definition works with a hypo below.  [Note:  This hypo is taken from Judge Richard Posner in the case cited above.]

Red Dress Hypo:

Suppose you own a women’s clothing store.  Every month—an attractive young woman comes in and buys a red dress. You happen to know that she’s a prostitute and wears the dress to signal her occupation to prospective customers.

Aider and Abettor
Aider and Abettor

By selling her the dress at your regular price, you are assisting her illegal activity—and you also want her to succeed.  If she succeeds, she will buy more dresses.  If she fails, she will stop buying dresses and you will lose money.

But according to Judge Posner, you are not an aider and abettor of prostitution because you are not really helping her.  If you did not sell to her, then she would go somewhere else to buy her dress.  It would be different if you recommended customers to her in exchange for a commission.  Then—you crossed a line and would be guilty as an aider and abettor.

The Wire Hypo:

Going back to our hypo from the previous post–similar to the red dress hypo–the guy who sells tracfones to drug dealers is not guilty of aiding and abetting.  Even if he knows the buyers are drug dealers.  Like the red dress hypo–if the seller of the tracfones also refers buyers to the drug dealers and asks for a cut of the profits–then he too–has crossed a line and would be criminally liable as an aider and abettor.

Conclusion:

Conspiracy and aiding and abetting are common charges in drug trafficking offenses.  They are powerful tools Congress granted to prosecutors to help stop drug trafficking.

If you are facing a federal drug trafficking offense–it is important to read your indictment carefully to determine which theories the Government will use in its case in chief against you.  It is also important that you contact a qualified attorney who has experience in federal court defending people charged with drug trafficking.


Genaro R. Cortez
Attorney
Phone:  210.733.7575

Criminal Conspiracy and “The Wire”

Intro:

I just finished binge watching the full five seasons of the HBO’s The Wire.  It’s one of the most fascinating shows I’ve seen.  Not quite as good as Breaking Bad . . .  but pretty close.

Omar Little.
Omar Little-The Wire.

In fact, Omar Little maybe the best television villain of all time.  He, in my opinion, edges out Breaking Bad’s Walter White, aka Heisenberg as a villain you hope gets away with the crime.  Kinda makes me want to wear a pork pie hat and whistle “Farmer in the Dell.”

As mentioned by the Wall Street Journal Law Blog, the show raises many criminal law issues and procedures.  One of the reoccurring issues that arise on the show is conspiracy to commit a multitude of offense.  So that raises the question–what is a conspiracy?

Conspiracy:
A conviction for conspiracy under 18 U.S.C. 371 requires the Government to prove:

1.  An agreement between two or more persons to pursue an unlawful objective;
2.  Defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and
3.  An overt act by one or more members of the conspiracy in furtherance of the objective of the conspiracy.

See United States v. Brooks, 681 F.3d 678, 699 (5th Cir. 2013).  Moreover, conspiracy has two intent elements:  intent to further the unlawful purpose and the level of intent for proving the underlying substantive offense.

So going back to the show–Avon Barksdale and Stringer Bell would be guilty of conspiring to distribute drugs in Baltimore.  So would the lower level drug dealers in the neighborhood that is portrayed in The Wire.  They entered into an agreement with Barksdale and Bell to distribute drugs.  In short, all elements of the conspiracy charge are present.  Also, the wire taps will serve as powerful evidence against the co-conspirators if the case goes to trial.  This is all self-evident.

But what about the guy at the convenience store who sells the drug dealers Trac cell phones?  No.  He did not enter into the agreement to distribute drugs and had no intent to further the drug conspiracy or distribute drugs.

But could he be guilty as an aider and abettor?  I will blog on this question next.  Stay tuned.


Genaro R. Cortez
Attorney
Phone:  210.733.7575

 

Double Jeopardy–What does it mean?

Supreme Court Case Update

Martinez v. Illinois.  572 U.S.____(2014).

Facts:

Esteban Martinez was indicted for aggravated robbery and mob action in August 2006.  The victims were Avery Binion and Demarcus Scott, two well know felons in the community.

us courthouse and post officeAfter multiple delays and continuances, the trial started on May 17, 2010.  However, the prosecutors two witnesses–Binion and Scott–did not show up to court to testify for the prosecution.  The Court gave the prosecutors the option to dismiss the case against Martinez prior to the jury being empaneled and sworn in.  However, the prosecutors opted not to dismiss.

Instead, the prosecutors allowed the trial court to empanel and swear in the jury.  Then they elected not to participate in the trial.  They gave no opening statements or presented any witnesses.  As a result, the trial court acquitted Martinez.

The prosecutors appealed the denial of their request for a continuance.  The intermediate appellate court and the Illinois Supreme Court agreed with the prosecutors and reversed the acquittal.

Martinez appealed to the United States Supreme Court and the Court reversed the Illinois Supreme Court.  Click here or here to read the Court’s opinion.

The US Supreme Court found that Illinois Supreme Court erred because it violated a fundamental rule–that jeopardy attaches when jury is empaneled and sworn.  Once jeopardy attaches, it also prohibits the government from filing an appeal.

Rule:  “A jury trial begins, and jeopardy attaches, when the jury is sworn.” 



Genaro R. Cortez

Attorney
Phone:  210.733.7575

 

FBI To Start Recording Interrogations

FBI Shifts Policy on Interrogation Recording

The New York Times reported today that the FBI and other federal law enforcement agencies will begin recording interrogations of criminal defendants.  Surprisingly, the feds do not record criminal interrogations.

This marks a big shift in policy for the Department of Justice.  The policy will go into effect on July 11, 2014.  Click here to read the memo.


Genaro R. Cortez
Attorney
Phone:  210.733.7575

Court Costs and Fees

cadena reeve justice centerNPR‘s Joseph Shapiro wrote an excellent article on the fees criminal defendants are charged after they are arrested, while they await trial, and during probation.  The fees are used by state and county officials to help finance the criminal justice system.

Mr. Shapiro’s report states the fees lead to harsher treatment for poorer defendants who have difficulty paying fines and court costs.

The fees charged vary between states.  However, some common fees that defendants are charged include (click here for NPR chart of fees charged by state):

  • Electronic Monitoring (ELM) Fees;
  • Fines, court costs, and restitution;
  • Special assessments;
  • Reimbursement for court-appointed attorney fees;
  • Probation and supervisory fees; and
  • Ignition Interlock (II) fees pretrial and while on probation for DWI;

The fees charged above are common in Bexar County and are collected while on probation.

If you are arrested for a crime, you should read Mr. Shapiro’s article to get an idea of the expenses associated with the criminal justice system.


Genaro R. Cortez
Attorney

Phone:  210.733.7575

Click It or Ticket equals DWI Enforcement

Click It or Ticket:

The US Department of Transportation started its “Click It or Ticket” campaign yesterday, May 19, 2014.  It runs through June 1, 2014.  They even created a one-minute video to promote this campaign.  Click above to see video.

The purpose of the campaign is to encourage drivers to buckle up.  Or as USDOT puts it, “[I]f you’re not buckled up, you’ll be ticketed.”  This campaign covers San Antonio.

Why does this matter to me?

Apart from getting a ticket, you may also avoid a trip to the slammer for DWI or another offense.  It is very common for police to pull over a driver for a non-driving infraction such as not wearing a seatbelt, expired registration, or a busted tail light.

Once a violation like this is observed, the officer can conduct a traffic stop.  He is then close enough to “smell” alcohol on your breath, see “blood shot eyes,” and hear “slurred speech.”   This happens to both sober drivers who had a drink with dinner and intoxicated drivers who should not be driving.  At this point, you are in a world of trouble if the officer decides to arrest you for DWI.

Officers also use traffic stops to look in your vehicle for contraband, weapons, etc.  They may even ask for “permission” to look in your trunk—the so called consent search.

All this happens simply because you are not wearing a seatbelt.

Conclusion:

The Fourth Amendment grants everyone the right to be left alone from unwanted police contact.  However, police can make a traffic stop if they have sufficient reason.  So don’t give them any reason to stop you.  ALWAYS wear your seatbelt, make sure your registration and inspection is up to date, and obey all traffic laws.

What do you do if you are stopped and arrest for DWI or another offense?  First, don’t panic.  Arrest does not necessarily mean conviction.  Second, know your rights.  Ask for a lawyer and remain silent until you have had an opportunity to speak with your attorney.

If you are in this situation, then call my office at 210.733.7575.  I handle these types of cases and look forward to defending you in court.

Genaro Cortez
Phone:  210.733.7575

How to obtain a police report. (San Antonio, Bexar County, Texas)

Police and Incident Reports:

Need to obtain a police report?  First, determine the agency that wrote the report.  Then, submit a request along with the appropriate fee, if applicable.

Click below for law enforcement agencies in the San Antonio, Texas area that frequently write reports used in civil and criminal cases:


Genaro R. Cortez
Attorney
Phone:  210.733.7575

 

DWI Jury Selection: Misdemeanor, Bexar County, Texas

DWI Jury Selection:

Michael Vick Jury
Michael Vick Jury

Jury selection maybe the most important part of a jury trial. When done correctly, it can set up your case for a verdict of not guilty.  When done without planning or proper analysis, jury selection can be disastrous.

For instance, if you are charged with animal cruelty, then the last thing you want to see is Snoopy, Scooby Doo, Astro, and other jurors who are sympathetic to the prosecution sitting in the jury box. So how do we avoid this?  With preparation and planning.

Purpose of Post:

This post provides an overview of DWI Jury selection in misdemeanor prosecutions in Texas state courts, i.e., DWI-1st and DWI-2nd prosecutions.  Actual jury selection will depend on the facts of your case.  This post and blog are not intended as legal advice.  It is IMPORTANT that you speak with a qualified and experienced DWI Attorney before making any decision on your case.

Goals:

Two important goals of jury selection are:  (1) identify favorable and unfavorable jurors; and (2) educate the panel on the theory of your case.

[Note–there are multiple goals in jury selection–but these are the ones I focus on in DWI Defense cases for a variety of reasons including time limitations by the court.] For more information on jury selection in general–I recommend you visit Robert Hirschorn’s website, who is the master of the art and science of jury selection.

One final thought–jury selection is as much art as it is science.  Your lawyer–indeed all lawyers–should know the law of the case they are working on.  But jury trials carry an intangible human component that is unique.  In addition to knowing the law, the best trial lawyers in America know how to tell your story to a jury.

The Law:

In Bexar County, Texas, courts typically give prosecutors and defense attorneys between 20-30 minutes each to conduct jury selection ( voir dire).  Because time is limited, it is extremely important for defense counsel  to target his questions towards the goals of jury selection:  (1) identify favorable/unfavorable jurors; and (2) offer an alternate explanation of why your client was not intoxicated (theory of the case).

A party can challenge a witness for cause for several reasons:  (a) statutory disqualifications under Chapter 62.102 of the Government Code; (b) affinity of the juror with the case, party, or witness-chapter 62.105 of Government Code and (c) for bias and prejudice–see Chapter 35.15 of Texas Code of Criminal Procedure.

Defense counsel also gets three peremptory (Article 35.15 Texas Code of Criminal Procedure) challenges in Bexar County, Texas misdemeanor court.  These are challenges that can be used without assigning a reason.  They are invaluable and should be used wisely.

For instance, a potential juror is not disqualified for cause, but for some reason the juror is not favorable to your client–i.e., potential juror rolls eyes at your client, gives him/her dirty looks, is very prosecutor friendly–the reasons are infinite.

Areas of Inquiry:

The areas of inquiry will vary from case to case.  But defense counsel should inquire about the following in misdemeanor DWI prosecutions:  (1) defendant’s right not to testify; (2) the burden of proof in criminal prosecutions; (3) presumption of innocence; (4) innocent explanations for poor performance on standard field sobriety tests; and (5) issues with breath and blood alcohol testing.

Conclusion:

Jury selection is a critical part of a jury trial that plays an important role in the outcome of the case.  If you are arrested for a misdemeanor (or felony) DWI offense, then it is important that you speak with an experienced DWI Attorney who will properly asses the strengths and weaknesses of your case and has the skill set to successfully defend you at trial.

Genaro R. Cortez
Attorney
Phone:  210.733.7575

The Confrontation Clause–What does it mean?

Right To Confront Witnesses:

The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him.”

But what does this mean?

The Supreme Court, in Crawford v. Washington, 541 U.S. 36, 59 (2004) interpreted the Confrontation Clause to prohibit “testimonial statements” from witnesses who do not testify at trial unless (1) the witness is unavailable; and (2) the defendant had a prior opportunity to cross-examine the witness.

Stated another way, the rule is:  “if an out-of-court statement is testimonial in nature, it may not be introduced at trial unless the witness who made the statement is unavailable and the accused had a prior opportunity to confront that witness.”  Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) (emphasis added).

What is a testimonial statement?

Examples of evidence that is testimonial:

  • prior testimony from a witness at a preliminary hearing;
  • statements made during police interrogations;
  • forensic lab reports stating that a suspected substance is cocaine [or other controlled substance such as heroin, meth, etc.];
  • Reports listing the blood-alcohol analysis in DWI prosecutions.

This is a non-exhaustive list of evidence that is testimonial.  But what other statements are testimonial?  Which witnesses do prosecutors need to call to testify to satisfy the confrontation requirement?  What if the witness (i.e., medical examiner or lab technician) is fired, dies, or is on maternity leave at the time of trial?  Can the autopsy results or blood-alcohol analysis be admitted by someone else?  These and other questions have created problems for lower courts.

Supreme Court Review:

Lyle Denniston of Scotusblog is reporting that the Supreme Court will consider granting certiorari (judicial review) on a host of cases described above to review what constitutes “testimonial” evidence, witnesses that are necessary, and how to review error if testimonial evidence is wrongfully admitted at trial.

The review may happen as soon as May 15, 2014. I will keep you posted on the status of this issue.

Genaro R. Cortez
Phone:  210.733.7575
cortezlawyer.com