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 →

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” →

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”? →

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 →

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 →

More than forty years ago, United States District Judge William Wayne Justice appointed me to represent a pro se petitioner who was seeking habeas relief in his court. This petitioner had also appeared pro se in a divorce proceeding and had been called to the stand by his wife’s lawyer. While testifying, he admitted to many acts of sexual intercourse with his young daughter. After that case was concluded, the trial judge had a statement of facts prepared and sent it to the local district attorney. Continue reading Judge Delgado-Colon “Skirted Near the Line” But Didn’t Cross It →