Law Blog

Immigration Consequences For Non-Citizens Accused of a Crime

Introduction

Normally, a person accused of a crime who is a United States Citizen must decide whether to plead guilty or go to trial.  This decision is made after careful consultation with his or her attorney and after reviewing the strength of the evidence against the defendant, the likelihood of success at trial, and the amount of jail time he or she will receive.

Non-citizen defendants face a difficult choice–plead guilty and be deported or go to trial and risk additional jail time in order to preserve their immigration status.

But what happens when a non-citizen is charged with a criminal offense?  The non-citizen faces another problem that maybe worse than the jail time he or she receives if convicted—that problem is deportation.

There are plenty of people living in the United States who are not United States Citizens.  These include lawful permanent residents, foreign students, individuals granted asylum, and undocumented individuals.  For defendants in this category—they need to know if a conviction on the charged offense will result in deportation, removal, or denial of reentry into the United States.

Non-citizen’s Dilemma:  Plead guilty and be deported or go to trial and face additional jail time followed by deportation. 

Should a non-citizen go to trial if there is substantial evidence to prove his or her guilt and there is little chance he or she will be acquitted (found not guilty)?  That decision will depend on receiving accurate immigration advice from your criminal-law attorney and the non-citizen’s goals for his or her case.

One final question—what if your criminal law attorney gives you bad advice?  What if your attorney tells you— “don’t worry about deportation . . .  you won’t be deported” when deportation is mandatory for the offense you are pleading guilty to?  That’s the issue the Supreme Court considered in United States vs. Lee.

UNITED STATES v. LEE (No. 16-327).  582 U.S.____ (2017).

Jae Lee, a lawful permanent resident from South Korea, was charged with possession with intent to distribute ecstasy in violation of 21 U.S.C. § 841(a)(1).  The evidence against Lee was strong and Lee had no real defense to the charge.  Lee asked his attorney if he would face deportation if he pleaded guilty to this charge.  His lawyer told him no.  Lee’s lawyer was wrong and Lee faced deportation proceedings.

A non-citizen defendant should consult with his or her lawyer about the immigration consequences of a criminal conviction before he or she enters into a plea agreement or proceeds to trial.

Lee filed a 2255 motion to set aside his conviction based on ineffective assistance of counsel.  Specifically, Lee alleged that had he known he would have been deported he would have proceeded to trial even though he had little chance of being acquitted by a jury.  The Supreme Court agreed with Lee and set aside his conviction.

The Court found that Lee’s trial attorney was ineffective for giving erroneous immigration advice.  Further, the Court said that Lee’s primary motivation in his case was avoiding deportation.  The Court stated that this is a legitimate goal for non-citizen defendants: “Deportation is always a particularly severe penalty . . . and we have recognized that preserving a client’s right to remain in the United States may be more important to the client than any potential jail sentence.”  (Citations omitted.)

So, what does this mean for your case?

If you are a non-citizen accused of a crime—you should ask your attorney directly if you will be deported, excluded, or denied admission if you plead guilty or are found guilty by a jury.

Further, if there is any question or ambiguity about the immigration consequences of a conviction in your case—you (along with your criminal law attorney) should consult an immigration lawyer to discuss (PADILLA Review) these issues BEFORE you plead guilty or proceed to trial.

GENARO CORTEZ
ATTORNEY
PHONE:  210-733-7575

BIRCHFIELD vs. NORTH DAKOTA

BIRCHFIELD vs. NORTH DAKOTA

Highlights of Post

  • Police are required to get a search warrant before taking a blood sample from a DWI suspect.
  • However, no search warrant is needed to obtain a breath sample from a  DWI suspect.
  • States cannot prosecute DWI suspects for refusing to submit to a warrantless blood test.  But states can criminally punish DWI suspects who refuse to take warrantless breath tests.

SO WHAT’S THIS CASE ABOUT . . .

Some background information first:

DWI
The U.S. Supreme Court addressed whether police can obtain breath and blood draws from suspected DWI motorists without a warrant.

All states have Implied Consent Laws  that require drivers arrested for DWI to provide either a blood or breath sample to determine the blood alcohol concentration (BAC) in their system.  If a motorist refuses to provide a specimen, then his or her license is usually suspended.

North Dakota and Minnesota take their DWI laws a step farther.  In these two states (and a few others), a driver who declines to provide a blood or breath specimen after being arrested for DWI is charged with a separate offense—refusal to provide a chemical test.

So what’s the problem?

The Supreme Court heard three DWI cases from North Dakota and Minnesota to determine if search warrants are required before taking either a blood or breath specimen from DWI suspects.

In the first case, Birchfield vs. North Dakota, Daniel Birchfield crashed his car into a ditch in North Dakota and was arrested for DWI.  He declined to provide a blood sample as required by North Dakota law and was then charged with refusing to provide a chemical test.  He pleaded guilty to refusing to provide a blood sample and appealed arguing that the refusal law violated his Fourth Amendment right against unreasonable searches.

In Bernard v. Minnesota, William Robert Bernard, was arrested for DWI after he got his truck stuck in the St. Paul River while trying to pull a boat onto land.  Officers read Bernard the Minnesota Implied Consent warning notifying him that it is a crime to decline a chemical test.  Bernard refused to provide a breath sample and was prosecuted for refusing to provide a chemical test.  The trial court initially dismissed the charge, but on appeal the charge was reinstated and this appeal follows.

In Beyland v. North Dakota Dept. of Transp., Steve Michael Beyland, was stopped for driving erratically and exhibiting signs of intoxication.  He was arrested for DWI and police read him North Dakota’s Implied Consent law advising him it was a crime to not provide a chemical test.  To avoid being charged with the offense of refusing to provide a chemical sample of his BAC, Beyland gave a blood sample that showed his BAC was .25.  Beyland’s license was administratively suspended (similar to ALR Hearings) for two years and he appealed.   On appeal he argued his consent to provide the blood test was coerced because he consented only to avoid being charged with the offense of refusing to provide a chemical test.

SUPREME COURT RULINGS

ISSUE:  Do police need a search warrant before obtaining a breath or blood specimen from a motorist lawfully arrested on suspicion of DWI?

DWI Car Crashes
Supreme Court determined that police (government) have a strong interest in preventing harm caused by drunk drivers.  This outweighs privacy concerns from obtaining breath specimens from suspected DWI motorists.

To answer this question, the Court balanced the privacy concerns that blood and breath tests raise against the government’s legitimate interest in protecting the public from the dangers caused by drunk drivers.

The Court determined there is a difference between blood tests and breath tests for Fourth Amendment purposes.

The Court found that breath tests are non-invasive acts that are akin to blowing air into a balloon.  Also, breath tests provide only one bit of information–the alcohol concentration in a motorist’s blood stream.

However, unlike breath tests, blood tests are more invasive and require more Fourth Amendment protections since they require a needle to be stuck into the arm of a DWI suspect.  Moreover, blood samples convey potentially more information (such as medical illnesses, genetic traits, or other intimate medical data) than just the blood alcohol concentration in the driver’s system.

These distinctions were the difference in these cases.  The Court held that police do not need warrants to obtain breath tests from drunk drivers because they are non-invasive and communicate only the BAC in the driver’s system.  For this reason, warrantless breath tests are permissible  under the search incident to arrest doctrine (SITA).  The Court also found that because warrantless breath test searches are constitutional, then states can prosecute DWI drivers for refusing to submit to breath tests.

The result was different for blood draws.  As noted above, blood draws are more invasive and communicate more information than just the DWI suspect’s BAC.  This justifies requiring police to obtain a search warrant—absent exigent circumstances—before it can draw a DWI driver’s blood.

Further, states cannot criminalize a DWI driver’s refusal to give a blood sample because warrantless blood draws are unconstitutional.  For similar reasons, a DWI driver’s consent to submit to a blood draw under North Dakota’s Implied Consent law is coercive and invalid because the DWI suspect is threatened with criminal prosecution for declining to provide a warrantless blood draw.

The Court then reversed Birchfield’s conviction for refusing to provide a warrantless blood sample since it violated the Fourth Amendment.  But the Court affirmed Bernard’s conviction for not providing a breath sample because the state was allowed to take a breath sample without a warrant.  The Court also said that states can prosecute DWI suspects for refusing to take a breath test because warrantless breath tests are constitutional.

Finally, the Court reversed the judgment against Beylund to determine if Beylund’s consent was still valid in light of the Court’s rulings in this case.

What does this mean for you?

Police are allowed to take warrantless breath specimens from motorists arrested for DWI.  [NOTE—in Texas a person can still decline the breath test].  However, police must get a warrant—absent exigent circumstances—before they take a blood sample from a suspected drunk driver.

Also, on a related topic—people arrested for DWI should listen carefully to the Implied Consent warnings (Tex. Trans. Code 724.011)  given by the arresting officer.  If the warnings are incorrect or coercive, then it’s possible for your defense attorney to move to suppress the results of the breath or blood test.  But this is a very fact specific inquiry.  Talk to your DWI attorney to cover this issue before you decide to plead guilty.

Finally, don’t abandon hope if you are arrested for DWI.  It’s a difficult, embarrassing, and depressing situation to go through.  However, being arrested does not mean you are guilty.  Most importantly, you have rights and remedies if you believe the officer treated you unfairly or arrested you for DWI when you were actually sober.

GENARO R. CORTEZ
ATTORNEY
PHONE:  210-733-7575

UTAH v. STRIEFF

UTAH v. STRIEFF

The Supreme Court decided an interesting Fourth Amendment issue this morning:

Supreme Court
Supreme Court

What to do when the only way police learn that a suspect has a valid arrest warrant and is in possession of narcotics is by first violating that suspect’s right to be free from an unreasonable search and seizure under the Fourth Amendment.

A.  IN PLAIN ENGLISH

The fact pattern in Strieff is pretty common.  Police temporarily detain and question a defendant without a valid legal reason—that is, there is no reasonable suspicion or probable cause to stop and question someone, and then during that questioning, discover that the person has an active and unrelated arrest warrant for something minor like unpaid traffic tickets.

Police then arrest that person and search him or her incident to arrest (SITA).  During the search, police find contraband such as pot, coke, meth, or heroin on the arrested person.  The question then becomes—should this evidence be admissible in Court when the only way police learned of the valid pre-existing arrest warrant and narcotics was by illegally detaining the person in the first place.    That’s the issue in Strieff.

B.  JUST THE FACTS

In Utah v. Strieff, police saw Edward Strieff leave a suspected-drug house in Salt Lake City, Utah.  However, police had no reasonable suspicion that Strieff committed any offense.  Nevertheless, police detained Strieff, questioned him about his presence at the house, and then learned he had an arrest warrant for an unrelated traffic citation. Police arrested Strieff for the traffic citation and during the search incident to the arrest found methamphetamine and drug paraphernalia on Strieff.

SEARCH AND SEIZURE
Does a valid arrest warrant attenuate the taint from an illegal and unconstitutional detention?

Strieff was charged with drug possession.  He filed a motion to suppress the drug seizure under the Fourth Amendment, but the trial court denied the motion.  The Utah Supreme Court reversed Strieff’s conviction because it determined that the initial stop violated Strieff’s Fourth Amendment right to be free from an unreasonable search and seizure and that the attenuation doctrine did not cure the initial violation.

The U.S. Supreme Court granted cert. and reversed the Utah Supreme Court.  The U.S. Supreme Court held that the facts in Strieff support allowing the evidence into trial against Strieff under the “attenuation doctrine.”  The attenuation doctrine allows illegally obtained evidence to be admitted under certain facts.  [NOTE:  The Attenuation doctrine has been around for some time–this case is just the latest in a long line of cases applying and clarifying when the doctrine applies.  Thanks to a reader’s comment for this clarification.]

The doctrine directs trial and appellate courts to consider three things before making an attenuation ruling:  (1) temporal proximity between the illegal stop and discovery of evidence; (2) intervening circumstances; and (3) purpose and flagrancy of police misconduct.

A majority of the Supreme Court found that the second and third factors supported applying the “attenuation doctrine” and allowing the illegally obtained evidence to be used against Strieff.  Specifically, the Court characterized the police officer’s conduct as negligent rather than flagrant.  The Court also stated that the valid pre-existing arrest warrant was unrelated and untainted by the officer’s illegal questioning of Strieff.

The Court weighed these factors and determined the arrest warrant for unrelated traffic citations attenuated the taint from the initial illegal detention.  The Court allowed the evidence to be used against Strieff.

C.  WHAT DOES THIS MEAN FOR YOU?

This means that you should make sure that you pay all your traffic tickets and clear up active municipal warrants.  Otherwise, police may use the fact of a valid preexisting arrest warrant to excuse their unlawful police conduct and illegally detain or arrest you.

On a side note, if you have an arrest warrant for unpaid traffic fines or tickets with the City of San Antonio, you can contact the municipal court and make arrangements to pay the fine and have the warrant lifted.  Also, people who go to municipal court with active traffic warrants generally are not arrested.  [CAUTION–this is the policy for the City of San Antonio–make sure to check with the municipal court where your ticket is pending before you show up if you have an active warrant.]

GENARO R. CORTEZ
ATTORNEY
PHONE:  210-733-7575

Mitigating Roles and Lower Federal Sentences

HOW TO GET A LOWER FEDERAL SENTENCE . . . REALLY!

Intro

What if someone is caught with a kilogram of methamphetamine?  And let’s suppose further that they were acting only as a drug mule or courier and that the only job they had was to transport the drugs from location A to location B.  That is, the person arrested for this offense is not the leader or organizer of the conspiracy.

MITIGATING ROLE ADJUSTMENTS
MITIGATING ROLE ADJUSTMENTS:  Low-level drug offenders may qualify for lower sentencing ranges if they can prove to the court that their conduct was substantially  less culpable than the average participant in the criminal offense they are charged with.

Should this low-level offender be treated differently than the more sophisticated defendant who organized the drug conspiracy, recruited members into the criminal enterprise, set the price, and marketed the drugs to end users?  Yes.

But how does it work in federal court? That’s what this post is about. More importantly, we will talk about changes to the sentencing guidelines that took effect on November 1, 2015.  These changes make it easier for certain low-level drug offenders (or defendants in other types of crimes like fraud, Ponzi schemes, or other economic crimes) to receive role adjustment that may may lead to a lower federal sentence.

The Mitigating Role Adjustment:

BernardMadoff
The mitigating-role adjustment reflects the idea that offenders who are “substantially less culpable than the average participant in a criminal activity” should receive a lower sentence.  It is not intended to apply to more culpable offenders  like Bernie Madoff–who orchestrate Ponzi schemes, recruit victims to give money, and then take extraordinary efforts to camouflage their criminal behavior.

The mitigating-role adjustment is found in U.S.S.G. § 3B1.2. This provision allows a district court to take into account the minor or minimal role, if any, a defendant played in a conspiracy—and then reduce his or her base offense level by 2, 3, or 4 levels.  This decision is based on the totality of the circumstances of the offense.

For example, let’s assume a defendant has a base offense level of 30 and a criminal history category of I. (Click here to view the sentencing table with corresponding sentencing ranges.)  The sentencing range for this category is 97-121 months imprisonment.

Now, what if the sentencing court determines that the defendant was only a “minimal” participant in the drug conspiracy and grants a 4 level reduction to the base offense level?  This corresponds to a sentencing range of 63-78 months imprisonment, which is a more favorable sentencing range for a defendant. This is a HUGE benefit if you can get the reduction.

[CAUTION: THIS IS ONLY ONE OF SEVERAL ADJUSTMENTS THAT ARE MADE TO A BASE OFFENSE LEVEL. THERE ARE MANY OTHER ADJUSTMENTS THAT MAY APPLY AND ARE FACT SPECIFIC TO EACH CASE.]

So how do you get this benefit?  To answer that, we need to look at the law before November 1, 2015 and then discuss the changes that were made.  [Click here to read the changes that were made by the Commission to Section 3B1.2.]

Prior to November 1, 2015:

Before November 1, 2015, getting a mitigating-role reduction was darn near impossible.  That’s because of how district court’s evaluated this request. Specifically, in the Fifth Circuit—which includes Texas—courts were required to evaluate a defendant’s conduct relative to “average participants.” The meaning of “average participants” was interpreted broadly—to include the “entire universe of persons participating in similar crimes.”  Under this interpretation—district courts rarely granted mitigating role adjustments.

After November 1, 2015:

On April 30, 2015, the United States Sentencing Commission (USSC) changed how district courts should evaluate a defendant’s eligibility for a mitigating-role adjustment at sentencing. These changes became effective on November 1, 2015.

Now, district courts are directed to compare a defendant’s conduct to the conduct of his co-defendants rather than the “entire universe of persons participating in similar crimes.”   This makes it much easier for criminal defense attorneys to show their clients played either a minor or minimal role in an offense.

The USSC also provided district courts, prosecutors, probation officers, and defense counsel with a framework on how to analyze a mitigating-role adjustment. They did this by inserting the following factors to help trial courts make this determination:

1. The degree to which the defendant understood the scope and structure of the criminal activity;

2. The degree to which the defendant participated in planning or organizing the criminal activity;

3. The degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;

4. The nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and

5. The degree to which the defendant stood to benefit from the criminal activity.

So what does this mean for you?

Minimal (or minor) participation in an offense by a defendant is a sophisticated-factual determination to be made by the sentencing judge.  The defendant bears the burden at sentencing to prove to the court that he or she was substantially less culpable than the average participant in the conspiracy.

This means that your attorney needs to aggressively use the five factors listed above to show the court that you had a minor or minimal role in the offense.  (If in fact you did.)  If your lawyer is successful, then your sentencing range could drop significantly.

But beware–court’s have authority to depart from this range and go either up or down depending on the facts of the  case.  But it is almost always better to start off with a lower sentencing range.  That’s what the mitigating role-adjustment does–it discounts a defendants culpability based on his or her role in the offense.   And the changes announced by the USSC make it more likely that this adjustment will be granted in appropriate cases.

GENARO R. CORTEZ
Attorney
210-733-7575

 

RIGHT TO HIRE ATTORNEY

RIGHT TO HIRE ATTORNEY

Why should I hire an attorney? That’s one of the most frequent questions I get from prospective clients. The short answer to this question in my opinion has two parts.

SCOTUSbuildingFirst, the consequences of a criminal conviction are extreme.  That’s why every criminal defendant in America has the right to hire and “be represented by an otherwise qualified attorney whom that defendant can afford to hire.” This right is embedded in your Sixth Amendment Right to Effective Assistance of Counsel.

Apart from facing jail time, convicted defendants also face fines, loss of the right to purchase firearms, possible deportation if you are not a U.S. Citizen, and loss of certain government benefits–just to name a few of the collateral consequences of a criminal conviction.

Hiring an attorney gives criminal defendants the opportunity to use their  resources to help establish their innocence and avoid and unjust conviction.

The second reason is trust. Trust is the most important element in any relationship. When you hire an attorney of your choice, you are taking control of your case and hiring a professional who not only has the skill, experience, and expertise to represent you in court, but also the temperament and personality to work with you to help resolve your case in a favorable manner.

These issues were addressed by the Supreme Court on Wednesday, March 30, 2016, in its opinion styled Silas v. United States, Case No. 14-419.

If you are facing a felony or misdemeanor charge and are considering hiring an attorney—you should definitely read this opinion. Click here for a link to that case.

Click here (scotusblog) and here (NYTimes article) for discussions on the case by ScotusBlog and the NYTimes. Below is also a summary of the case and why it is important.

SILA LUIS v. UNITED STATES (Docket No. 14-419)

FACTS:

A federal grand jury indicted Sila Luis (hereinafter “Luis”) on charges of committing a $ 45 million dollar healthcare fraud. However, before Luis was charged with the crime, she spent the $45 million. After she was arrested and indicted, Luis had $2 million that was unrelated (and untainted) to the healthcare fraud. That is the $2 million dollars was from legitimate and legal income and therefore “innocent” property that she wanted to use to hire an attorney of her choice.

But the trial court, at the Government’s request, prohibited Luis from using the $ 2 million dollars to hire an attorney of her choice, which effectively barred her from hiring an attorney to defend her of the serious charges. The Eleventh Circuit Court of Appeals affirmed this ruling. Luis then appealed to the United States Supreme Court.

The issue on appeal was: whether the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violate the Fifth and Sixth Amendments of the United States Constitution.

The Supreme Court reversed the trial and lower appellate court and ruled for Luis and allowed her to use the $ 2 million to hire an attorney of her choice. The Supreme Court cited Gideon v. Wainwright, 372 U.S. 335 (1963) which explained the important role defense counsel plays in the criminal justice system:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.

Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.

Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one.

He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not … know how to establish his innocence.’” Id., at 344– 345 (quoting Powell v. Alabama, 287 U. S. 45, 68–69 (1932)) “

This is very powerful stuff. The idea that a criminal defendant needs a skilled lawyer to defend him or her in court is strongly embedded in our constitution and case law. (By the way—for the reasons stated above—this is also a good explanation of why it is almost always a bad idea to represent yourself (i.e., go pro se) if you are accused of a crime.  This is also why the Gideon court held that a defendant has a right to a court-appointed attorney if he or she cannot afford to hire one)

The Court also noted the limitations of court-appointed counsel. They are at times overworked, underpaid, and lack the resources to adequately defend a defendant accused of a crime.

[IMPORTANT NOTE: The Supreme Court was not bashing or knocking the role of court-appointed counsel.  It was only explaining why the right of a criminal defendant to hire counsel of his or her choice should be scrupulously guarded and defended. Further, this post is not intended as an attack on court-appointed counsel. They do important work and successfully defend criminal defendants every day.]

The Court also explained that the consequences of a criminal conviction can be severe—in addition to jail time—Luis also faced substantial fines, fees, and restitution. This was another reason that the Court found should favor her ability to use the $ 2 million dollars to hire an attorney of her choice.

In short, the Supreme Court held that a defendant accused of a crime has a Sixth Amendment Right to use “innocent” property to pay a reasonable fee for the assistance of counsel.

CONCLUSION

What does this case mean for me?

“[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” Untainted assets can be used by a Defendant to hire counsel of his or her choice.

What if I cannot afford an attorney?

If you are charged with a crime and cannot afford to hire your own attorney—DO NOT PANIC! The law is clear on what happens in these situations: the right to counsel is “fundamental” and the Government is required to provide a criminal defendant an attorney in all but “the least serious of crimes.”

What if I can afford to hire an attorney?

If you are charged with a crime and are able to hire an attorney of your choice—I strongly urge you to consider this option for the reasons stated in Luis v. United States.

GENARO R. CORTEZ
CRIMINAL DEFENSE ATTORNEY
PHONE: 210-733-7575

The “Classified” Defendant

The WSJ’s Devlin Barrett wrote an excellent article (subscription required) on the Department of Justice’s (DOJ) use of cell-site simulators to locate suspects and fugitives from justice. The U.S. Marshals Service, which is a subset of the DOJ, spent more than $10 million from 2009 to 2014 to purchase cell-site simulators.

SO WHAT ARE CELL-SITE SIMULATORS?

Stingray
Stingray

Cell-site simulators go by different names such as “dirtboxes” or “Stingrays.”

Stingrays trick cell-phones in a scanned area to send their signals to the Stingray instead of a cell-site tower. The Stingray then uses the signal it receives from a suspect’s cellphone to locate a suspect. It acts like a GPS signal that police use to find a suspect.

According to the article, the Marshals Service use Stingrays in tandem. First, an airplane flies over an area and scans the entire region for a suspect’s cell-phone signal. Once it locates the signal, a ground unit uses a second Stingray device to pinpoint the location and then arrest a suspect or fugitive.

WHY DOES THIS MATTER?

UTAH DATA CENTER
“IF YOU HAVE NOTHING TO HIDE  YOU HAVE NOTHING TO FEAR. ”   UTAH DATA CENTER/NSA

In short, because the Government has been so secretive about its use of this technology.

Until 2015, law enforcement refused to discuss the technology or its use. Then, once the technology was reported by the WSJ and other news organizations, DOJ said its use of this method was legally approved by the courts. It specifically stated the US Marshals service does not engage in spying, espionage, or intelligence activities.

However, that last statement is inconsistent with its own actions because according to the article, the Marshals Service describes its technical operations and use of Stingrays as “classified.”

Classified information is generally associated with espionage or other intelligence gathering agencies. Further, Stingrays were developed in conjunction with the Central Intelligence Agency (C.I.A.) and have been used to locate high-value drug suspects in Mexico as well as espionage operations in Iraq and overseas.

In short, the article indicates that law enforcement is using technology meant for espionage purposes to apprehend and prosecute suspects and fugitives from justice.

This use of Stingrays and classified techniques make it difficult, if not impossible, for defense lawyers to conduct discovery and to present violations of the Fourth Amendment to a trial court.   In other words, defendants must rely on the Government’s assertions that it complied with the law because the technology the government uses is “classified.”

CONCLUSION

The DOJ’s use of Stingrays may be legitimate and constitutional. However, the lengths the Government has gone to keep this technology secret raises serious concerns: (1) Who is overseeing this technology to make sure it is not being abused? (2) Does it violate the Fourth Amendment’s prohibition against unreasonable search and seizure; (3) What information (and from what cell phone) is being captured by the cell-site simulator? and (4) What information should be disclosed during discovery to a defendant who is apprehended using Stingray technology?

I will keep you posted if new information develops.

GENARO R. CORTEZ
Attorney
Phone:  210-733-7575

ELECTRONIC COURTROOM PRESENTATIONS

SHOW . . . DON’T TELL

The Administrative Office of U.S. Courts-Defender Service Division offered a seminar (Feb. 4th-6th) on how criminal-defense lawyers can present electronic data to judges and jurors at trial to help secure “Not Guilty” verdicts.

ELECTRONIC PRESENTATION WORKSHOP
ELECTRONIC PRESENTATION WORKSHOP

Today, much of the evidence used in court is in electronic form. This includes pictures taken on digital cameras, discovery documents provided in pdf format, and videos of incidents or arrests taken from cameras on police officers. It is powerful evidence that is always exploited by prosecutors to help convict defendants.

Movies and reality TV show us how persuasive electronic data is to securing verdicts in criminal cases. Prosecutors will often play video confessions of a defendant admitting that he did the crime. Prosecutors will show video surveillance footage of bank robberies and then tell the jury that the defendant (who is wearing a ski mask) is the person in the video.

These documents and data—when presented to jurors in an appropriate way—can be powerful evidence to help convict a defendant.

But there is also a flip side to this type of electronic data. Frequently, there is evidence that either casts doubt on the prosecutor’s case, or establishes that the defendant did not commit the crime. And that is what this seminar in Houston was about—how to use electronic evidence in court to help acquit a defendant.

Instructors and Participants:

SMALL GROUP SESSION
SMALL GROUP SESSION

Our instructors were terrific. Penny Marshall and Debbie Allen showed us how to use TrialDirector and PowerPoint to cross-examine witness, conduct direct examination, and enhance closing arguments. Penny is an attorney from Delaware and Debbie works for the Federal Defender’s Office in Wichita, Kansas. I felt lucky to be in their group.

The participants in the seminar were broken into small groups so that we could learn how to use TrialDirector and PowerPoint in a classroom setting. The photo to the left is our group. I enjoyed meeting everyone and learning from the questions they posed to our instructors.

TRIALDIRECTOR:

So what is TrialDirector? Before this seminar, I had no idea what it was. But in short—TrialDirector is a software package that allows attorneys to present electronic evidence and video to jurors in a way that makes it easy for jurors to process and absorb.

For instance, if a witness made two contradictory statements prior to trial, then the attorney can put both of those images on a screen side-by-side and highlight the inconsistencies for both the jury and the witness. It makes the cross-examination more dynamic. Also, TrialDirector allows attorneys to make video snippets from discovery provided by the Government and highlight the parts of the video that are consistent with the defendant’s version of events.

Using TrialDirector gives the criminal defense attorneys the tools to even the playing field against prosecutors who have all the resources in the world to prosecute defendants.

PowerPoint:

We have all been to talks where the speaker ran amok with PowerPoint. (Below is a classic Jon Stewart clip on how PowerPoint can be abused.)

The training showed us the dos and don’ts of preparing and using PowerPoint during direct examination and closing argument. When done properly—PowerPoint can help jurors remember evidence during the trial and adopt the defendant’s version of events during jury deliberation.

CONCLUSION

In today’s jury trial, attorneys must “show and not tell” the jury why their client is not guilty.  The training described above taught me how to do that.

GENARO R. CORTEZ
ATTORNEY
PHONE: 210-733-7575

probation and drug use

DEATH BY DRUG OVERDOSE

In 2014, 125 Americans died every day from drug overdoses.  This is according to an article published in the New York Times.  These deaths are being fueled by an “explosion in addiction to prescription painkillers and heroin[,]” and  the death toll is being compared to the HIV epidemic of the late 1980’s.

New Hampshire is being hit particularly hard by this epidemic.  326 people died from drug overdoses in that state in 2014.  These deaths are linked to both heroin and fentanyl.  Fentanyl is a painkiller 100 times more powerful than morphine.

Fentanyl plays a big role in death from overdoses in New Hampshire.  That’s because many of the drug dealers lace heroin with fentanyl.  This makes it more difficult for medical professionals to revive a person who has overdosed on fentanyl laced heroin.

PRESCRIPTION DRUG ABUSE

NPR  is also reporting that employers are struggling to deal with employees who abuse prescription drugs.  It seems that people get prescription painkillers from their health care providers for an injury they suffered–and then develop an addiction to opiods without realizing they are addicted.

ARRESTS FOR DRUG POSSESSION

The increase in drug use has also lead to more people being arrested and charged with drug possession. This raises an important question: How should the criminal justice system deal with a defendant who is dealing with substance abuse?

BEXAR COUNTY PROBATION
BEXAR COUNTY PROBATION LOCATED 207 NORTH COMAL, SAN ANTONIO, TEXAS 78207.

Bexar County probation has several programs for people with substance abuse issues. This includes Felony Drug Court, Substance Abuse Felony Treatment Facility (SAFPF), and intensive supervision (ISP).

The goal of these programs and conditions is to provide a defendant with treatment (rehab) so that person does not re-offend or relapse into drug use.

However, these programs have conditions that are substantially burdensome and onerous. Some of these conditions include submitting to random UA’s, inpatient treatment, and intensive supervision that may interfere with your work schedule, daycare availability, or both.

If a defendant violates one or more conditions imposed by the court, then the probation department files a motion to revoke probation (MTR) that could lead to more intense probation supervision or even prison time.

[Note–one of the most common probation violations I deal with are testing positive for cocaine, heroin, or meth.  Other common violations are failing to report and committing a new offense.]

ARE THESE CONDITIONS RIGHT FOR ME?

These conditions may or may not be right for each offender. It is important to talk to your attorney before you enter a plea of guilty (assuming you do not want to fight the charge), so that your attorney can help you work through the probation system with as little pain as possible.

One potential option to explore is whether rehabilitation is available privately through your employer or insurance provider–this option may (most likely) provide for more individualized attention from your medical provider and a rehab program tailored to your situation.

Your attorney should work to learn the facts of your individual situation so that he can argue to the judge that it impose only the least-restrictive probation conditions to help you receive treatment and successfully complete your probation.

WHAT SHOULD I DO IF I AM CHARGED WITH A DRUG OFFENSE?

Substance abuse is a deeply personal issue to deal with.  If you are arrested for a drug offense and are dealing with substance abuse, then contact my office today for a free in-person consultation.  Your consultation is protected by the attorney-client privilege and will remain confidential.

GENARO CORTEZ
ATTORNEY
PHONE: 210.733.7575

MOLINA-MARTINEZ v. UNITED STATES

MOLINA-MARTINEZ v. UNITED STATES

The Supreme Court heard oral arguments yesterday in Molina-Martinez v. United States, Cause # 14-8913. The case deals with plain-error review of a federal sentence.

WHY IS THIS CASE IMPORTANT?

The most common question clients ask me is: “How much time am I going to get?” The unsatisfying answer I give is: “It depends.” There are simply too many factors and variables that affect the final sentence the trial court will hand down. That’s why I always say it depends. But you can get an idea of how much time you may get by looking at the Pre-Sentence Report (PSR) prepared by the U.S. Probation Department.

GUIDELINES MANUAL
GUIDELINES MANUAL

The PSR contains two important variables that are used to calculate a sentencing range for each defendant: total offense level and criminal history category. Generally speaking, the more serious the crime committed, the higher the offense level. Likewise, the more criminal history a defendant has, the higher his criminal history score.

Once the probation department calculates these two variables (among other information contained in the PSR), it then looks to a sentencing table to determine a sentencing range for a defendant.  On the vertical access of the table is the offense level. On the horizontal axis of the table is the criminal history category. The sentencing range is then determined by looking at where these two points on the table meet. Click here to see the sentencing table.

This case deals with how appellate courts should review errors in the calculation of the criminal-history score in the PSR when defense counsel does not object. The legal term for this appellate review is called “plain-error review.” In short, lawyers and judges make mistakes—this case will provide guidance on how appellate courts should review these errors.

FACTS OF MOLINA-MARTINEZ CASE

Molina-Martinez was convicted of Illegal Re-Entry into the United States. Prior to this conviction, he had been previously convicted of five aggravated burglaries in Tennessee from 2009-2010. Based on these convictions, Molina-Martinez’s PSR improperly scored his criminal history at a category VI instead of a category V, which resulted in a higher projected guideline range. (Click here for a more detailed look at the legal issues being reviewed.)

Whatever the Court decides, this case will provide trial and appellate lawyers a framework for dealing with these types of issues in the future. I will publish a follow-up post once the Court hands down a ruling.

GENARO R. CORTEZ
ATTORNEY
PHONE: 210-733-7575

HURST v. FLORIDA

FLORIDA DEATH PENALTY STATUTE STRUCK DOWN

Today (January 12, 2016), the Supreme Court struck down Florida’s death penalty statute in Hurst v. Florida-Case # 14-7505 because it violates a defendant’s Sixth Amendment right to a trial by jury.

SUMMARY OF FACTS

On May 2, 1998, Cynthia Harrison’s body was found in a freezer of the Popeye’s Fried Chicken restaurant where she worked in Escambia County, Florida. She was bound, gagged, and stabbed over 60 times–likely with a box cutter.  (click here for the facts surrounding the murder.) Police arrested her co-worker, Timothy Lee Hurst, and charged him with first-degree murder.  A jury then found him guilty of murder.   Hurst was then sentenced to death by a trial judge under Florida’s hybrid-sentencing scheme.

Under  Florida’s death penalty statute, a jury only issues an advisory verdict or recommendation on whether a defendant should get life imprisonment or the death penalty. But the trial judge, rather than the jury, makes the final determination on whether a defendant should get life imprisonment or receive the death penalty.

[Note–Hurst’s original death penalty sentence was overturned by the Florida Supreme Court for reasons unrelated to this blog post.  At re-sentencing, Hurst again was sentenced to death by the trial judge rather than the jury.]

ISSUE:

Whether a defendant’s Sixth Amendment Right to a jury trial allows a trial judge, rather than a jury, to make the factual determinations to support a death sentence?

HOLDING:

Court said a jury, and not a judge, must decide whether a defendant gets the death penalty. It then struck down Florida’s death penalty sentencing scheme.

WHAT THIS RULING MEANS:

DEATH PENALTY STATES IN RED.
DEATH PENALTY STATES IN RED.

It means that Florida’s death penalty statute is unconstitutional. The Florida legislature must rework its death penalty statute to allow a jury—rather than a judge—to make ultimate determination on whether a defendant receives the death penalty.

What is unclear is whether other defendants who are already sentenced to death and awaiting execution in Florida will be eligible for relief. Click here for a New York Times article on this issue. Also, click here for a discussion from ScotusBlog on this case.

ODDS AND ENDS:

An issue that was raised but not decided in this case is whether a death penalty verdict must be unanimous. That is—whether all 12 jurors must agree—or if only 10 of the 12 jurors must agree. That’s an interesting question too.

GENARO R. CORTEZ
ATTORNEY
PHONE: 210-733-7575