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 →

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 →

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.

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 →