Lindale woman receives probated sentence of 10 years in prison, $10,000 fine for intoxication manslaughter of 2 people on Toll 49, Vass to serve 120 days in Smith County Jail.

By LouAnna Campbell, Tyler Paper

A Smith County jury deliberated for about 5 1/2 hours and returned a unanimous decision in a sentencing hearing for a Lindale woman who killed two people on Toll 49.

Jessica Lauren Vass, 36, received a probated sentence of 10 years in prison and a fine of $10,000 after pleading guilty to intoxication manslaughter in the 2017 deaths of Gary McCrary, 62, of Flint, and Annette Burkhart, 56, of Garland, who were working to change a flat tire on Toll 49, north of Texas Highway 64, in Smith County.

As a condition of her probation, Vass will serve 120 days in the Smith County Jail and the rest of her sentence with the Smith County Community Supervision and Corrections Department. She will have to pay the fine.

The jury was able to consider the deferred adjudication because Vass had no prior felony convictions.

“It was what we asked for,” said Vass’ defense attorney Brett Harrison. “We’re very happy for Jessica and equally happy that the victims’ family members were able to express closure and peace.”

Vass was emotional when 241st District Court Judge Jack Skeen announced her sentence Thursday.

Members of the McCrary and Burkhart families talked with Vass, cried with her and hugged her after court adjourned.

During victim impact statements, McCrary’s stepdaughters expressed their forgiveness and even asked Skeen if it was possible to get up and give Vass a hug.

They both asked Vass to continue telling her story in order to honor McCrary’s memory.
Burkhart’s daughter Jennifer Le read a statement she called a tribute to her mother. It focused on the things her mother is missing.

Le told Vass she wants to get to know her and her family because she is a part of her life now.

“The forgiveness was really something to see,” Harrison said. “This was a tragic event. Not everyone is happy, but I hope this gives them a tiny bit of relief.”

Burkhart’s son Matthew Burkhart told Vass he is not ready to forgive her.

“I feel lost and broken,” he said. “I’m distant to my wife and daughter. I want my mom back. I want to talk to her. I want my daughter to hear her laugh. She can’t do that and that is why I can’t forgive you right now.”

During closing statements, Smith County Assistant District Attorney Jeff Bullock told jurors they are voices of the community.

“Whatever sentence you render the system did what it was supposed to do,” Bullock said. “What we can ask of you is that you remember those victims, remember what happened to them. Remember their family members and who was left behind.”

Vass pleaded guilty Monday to the charges and elected to have a jury decide on her punishment. Testimony began Tuesday and ended Wednesday.

Vass faced up to 20 years in prison for the second-degree felony charges.

Is the Supreme Court About to Limit Habeas Relief Under Padilla?

By Buck Files

Last June, the United States Court of Appeals for the Sixth Circuit held that a non-citizen defendant could not establish prejudice resulting from his lawyer’s deficient performance in advising him that he would not be subject to deportation if he pleaded guilty to a drug offense and affirmed the district court’s denial of Lee’s § 2255 motion to vacate his conviction and sentence. Lee v. United States, 825 F.3d 311 (6th Cir. 2016) [Circuit Judges Norris, Batchelder and Sutton (Opinion by Batchelder)]. See also Lee v. United States, (W.D. Tenn. Mar. 20, 2014), not reported in F. Supp.3d, 2014 WL 1260388.

In December, the Supreme Court granted certiorari in Lee to determine whether overwhelming evidence of guilt can preclude prejudice from a lawyer’s deficient performance about the deportation consequences of a guilty plea. Lee v. United States, 2016 WL 4944484 (December 15, 2016). In deciding this issue, the Supreme Court will resolve a conflict between the Circuits.

This is the first case with a Padilla issue that I have looked at since 2010. Out of curiosity, I did three quick searches on WestLaw and found that 3,634 federal cases and 2,111 state cases (including 231 from Texas courts), in the past seven years, have cited Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

For immigration lawyers, Padilla was a financial boon. Criminal lawyers began to light up their telephones to ask, “If my client pleads guilty, is he going to get deported?” Even before Padilla, we relied on the advice of Richard Fischer, an immigration lawyer from Nacogdoches who has a state wide reputation as a guru on these issues – and we continue to do so.
Continue reading Is the Supreme Court About to Limit Habeas Relief Under Padilla?

Cell-Site Simulators and the Fourth Amendment

By Buck Files

On July 12, 2016, United States District Judge William H. Pauley, III, of the Southern District of New York, granted the defendant’s motion to suppress the narcotics and drug paraphernalia recovered by law enforcement agents in connection with a search of his apartment. Judge Pauley held that (1) the warrantless use of a cell-site simulator to locate the defendant’s apartment as the place of use for the target cell phone, was an unreasonable search; (2) the attenuation doctrine was inapplicable; and, (3) the third-party doctrine was also inapplicable. (emphasis added) United States v. Lambis, ___F.Supp.3d___, 2016 WL 3870940 (July 12, 2016)

Because of space constraints, this column will focus only on that portion of the opinion that discusses the use of the cell-site simulator. Judge Pauley’s opinion reads, in part, as follows:

[The Facts]

In 2015, the Drug Enforcement Administration (the ‘DEA’) conducted an investigation into an international drug-trafficking organization. As a part of that investigation, the DEA sought a warrant for pen register information and cell site location information (‘CSLI’) for a target cell phone. Pen register information is a record from the service provider of the telephone numbers dialed from a specific phone. CSLI is a record of non-content-based location information from the service provider derived from ‘pings’ sent to cell sites by a target cell phone. CSLI allows the target phone’s location to be approximated by providing a record of where the phone has been used.
Continue reading Cell-Site Simulators and the Fourth Amendment

The Most Unbelievable Sentence Ever Imposed in a Child Pornography Case

Written by Buck Files

Only one criminal defense lawyer in America has ever before seen the fact situation that was presented to the United States Court of Appeals for the Sixth Circuit. United States v. Collins, ___F.3d___, 2016 WL 3583999 (6th Cir. 2016) [Panel: Circuit Judges Guy, Batchelder and Cook. Opinion by Judge Guy.] That lawyer was the attorney of record for Mr. Collins.

• The offenses: 18 USC §§ 2252(b)(1) and 2252A(b)(1) [Distributing child pornography and possessing child pornography]
• The jury’s verdicts: Guilty on each count
• The statutory maximum punishment: 20 years
• The advisory Sentencing Guidelines range: 262 – 327 months
• The sentence imposed: Two concurrent five year sentences
• The appellate court’s decision: Affirmed

The Court held, as a matter of first impression in the Circuit, that United States District Judge James S. Gwin’s consideration of a jury sentencing poll was a permissible part of determining the sentence to be imposed.

So, after years of reading opinions of the various United States Courts of Appeal holding that the decision of a district court to grant a departure or a variance from the advisory Sentencing Guidelines range was substantively unreasonable, how did three judges of the Sixth Circuit come to the decision that Collins’ sentence should be affirmed?

[Judge Gwin Polled the Jurors]

Yes, he really did! None of us have ever seen this before. Here, Judge Guy describes Judge Gwin’s polling:

At sentencing, Judge James S. Gwin revealed that, after the verdict, he ‘polled the jury to ask them … “State what you believe an appropriate sentence is.”’ Jurors’ responses ranged from zero to 60 months’ incarceration, with a mean of 14.5 months and median of 8 months. With one exception, every juror recommended a sentence less than half of the five-year mandatory minimum accompanying defendant’s offenses. See 18 U.S.C. §§ 2252(b)(1), 2252A(b)(1). Each juror’s recommendation was but a fraction of defendant’s calculated guidelines range.

[The Government’s Failure to Preserve Error]

Judge Guy notes:

Over the government’s objection, the district judge considered the jury poll as ‘one factor’ in fashioning defendant’s sentence, noting that it ‘reflect [s] … how off the mark the Federal Sentencing Guidelines are.’

* * *
Continue reading The Most Unbelievable Sentence Ever Imposed in a Child Pornography Case

Texas Board of Legal Specialization Appoints Brett Harrison as Board Member

Austin, Texas (August 1, 2016) – Today, the Texas Board of Legal Specialization (TBLS) announced the appointment of Brett Harrison to its Board. Harrison will be working with Board Members in overseeing the organization’s finances, enhancing the value of Board Certification and increasing public awareness of TBLS.

“Brett has been Board Certified for a little over a decade, and has previously served on our Criminal Law Exam Commission and in various state and national associations. We’re pleased to have him on our Board as his commitment and experience in serving TBLS and other associations will be of great value,” said Leo Figueroa, Executive Director of TBLS.

Harrison has been Board Certified in Criminal Law since 2005 and was part of the Criminal Law Exam Commission from 2009-2011. He was part of the National Board of Trial Advocacy Exam Commission from 2006-2007. He served the State Bar of Texas District 2 as Grievance Committee member from 2011-2015 and has been its Chairman since 2014.

He is also a member of the State Bar of Texas Bar Association of the Fifth Federal Circuit, the Texas Criminal Defense Lawyers’ Association, and the National Association of Criminal Defense Lawyers.

“I am excited and grateful to have been appointed to a leadership position in TBLS,” said Harrison. “It is an honor to be a part of this outstanding group of men and women.”

Harrison obtained his BA from Texas Christian University in 1992 and his law degree from St. Mary’s University School of Law in 1995.
Established by the Supreme Court of Texas, TBLS certifies attorneys in 22 specific areas of law. The Board Certification program is administered by a 12-member board appointed by the President of the State Bar of Texas. All members are appointed to three year staggered terms of office, and are eligible for reappointment for one additional term.

To learn more about Harrison, TBLS or other Board Members, visit: www.tbls.org

About TBLS
Texas Board of Legal Specialization (TBLS) is authorized by the Supreme Court of Texas. It certifies attorneys in 22 specific areas of law and paralegals in seven specific areas. TBLS serves as a resource by listing all certified attorneys and paralegals online. TBLS works to ensure that the
citizens of Texas receive the highest quality legal services.

THE FIFTH AMENDMENT AND SEXUAL HISTORY POLYGRAPHS

By Buck Files

On May 10, 2016, a panel of the United States Court of Appeals for the Tenth Circuit held that a defendant faced some danger of self-incrimination if he was required to answer mandatory questions during a sex offender history polygraph; and, the government’s threat to seek revocation of the defendant’s supervised release constituted an unconstitutional compulsion to submit to such a polygraph under the Fifth Amendment. [The panel: Circuit Judges Briscoe, Seymour and Lucero (opinion by Seymour)] United States v. Von Behren, ___F.3d___, 2016 WL 2641270 (10th Cir. 2016)

A Synopsis of the Facts of the Case

I thought I heard you say, “Hold still little catfish — all I want to do is gut ya!” That could have been the reaction of Bureau of Prisons inmate Brian Von Behren when he learned that the government had requested several new conditions of supervised release and that one of them would require him to participate and successfully complete a sex offender treatment program. At the time that he received this news, Von Behren was close to completing a 121 month sentence for the receipt and distribution of child pornography and faced a term of three years supervised release.

After returning to the free world, Von Behren learned that he was to be assigned to Redirecting Sexual Aggression (RSA), a certified treatment provider mandated by the Colorado Sex Offender Management Board (SOMB). One of the SOMB Guidelines mandated that Von Behren sign a non-negotiable treatment agreement requiring him to complete a non-deceptive sexual history polygraph. A failure to complete this requirement would cause him to be removed from the program. And then there was the cherry on the sundae of the SOMB Guidelines: Von Behren would be required to sign this agreement concerning any crimes committed by him. Continue reading THE FIFTH AMENDMENT AND SEXUAL HISTORY POLYGRAPHS

JUDGE ROBERT C NALLEY FINALLY GETS HIS “COMEUPPANACE”

By Buck Files

This column is about Robert C. Nalley, a Maryland state judge who committed a federal criminal offense in a courtroom where he was hearing pre-trial matters before jury selection began. You will see in real time what the judge does and how it impacted the defendant, Delvon King-Ali, who was standing before him. VIDEO
Then, we will look at what took place in the federal system as Nalley is prosecuted and sentenced for this offense.

My research for this column consisted of reviewing newspaper articles about these events, searching for a YouTube video, locating the case on Pacer, reviewing all the documents that were not filed under seal, obtaining a copy of the 39 page statement of facts from the sentencing hearing and reviewing it for excerpts to include in this column. Continue reading JUDGE ROBERT C NALLEY FINALLY GETS HIS “COMEUPPANACE”

WAS IT A “SUSPICION” OR A “REASONABLE SUSPICION”?

By Buck Files

The event has occurred on thousands of occasions. Terry Trooper sees Danny Defendant driving on his highway. Something catches Terry’s attention that causes him to believe that Danny has committed or is committing a criminal offense. Terry initiates a traffic stop that leads to a conversation with Danny, a seizure of something and a warrantless arrest. The issue for the trial court or the appellate court is always the same: Did Terry have probable cause or a reasonable suspicion that Danny had committed or was committing a criminal offense? Continue reading WAS IT A “SUSPICION” OR A “REASONABLE SUSPICION”?

A JUDGE, A PROSECUTOR AND A DEFENSE LAWYER WORK TOGETHER TO GIVE THE JUDGES OF THE THIRD CIRCUIT AND UNBELIEVABLE CASE

By Buck Files

A prosecutor who is overly aggressive can introduce error into the trial of a case. A defense lawyer who sits on his hands and does not object can limit the appellate court’s consideration of an issue to a plain error standard. A trial judge who considers testimony improperly adduced by an aggressive prosecutor in determining what sentence to impose can make the case difficult for an appellate court to affirm. Continue reading A JUDGE, A PROSECUTOR AND A DEFENSE LAWYER WORK TOGETHER TO GIVE THE JUDGES OF THE THIRD CIRCUIT AND UNBELIEVABLE CASE

A Non-Routine Border Search Issue

Sometimes words don’t mean what they should. Consider, for example, the words “border search.” Where would a border search be conducted? At the border. Wrong. If you go to WestLaw’s ALLFEDS database and type in the query “international airport” & “border search,” you will see that there have been 337 cases that arose out of border searches conducted at international airports. Continue reading A Non-Routine Border Search Issue