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					RECENT SIGNIFICANT CRIMINAL LAW DECISIONS
  OF THE UNITED STATES COURT OF APPEALS
          FOR THE FIFTH CIRCUIT




       GEORGE McCALL SECREST, JR.
           Bennett & Secrest, L.L.P.
          808 Travis Street, 24th Floor
            Houston, Texas 77002
                713-757-0679
              713-650-1602 (Fax)




               State Bar of Texas
31ST ANNUAL ADVANCED CRIMINAL LAW COURSE
                July 18-21, 2005
                 Corpus Christi

                CHAPTER 18
                               GEORGE McCALL SECREST, JR.
                                                     Partner
                                             Bennett & Secrest, L.L.P.
                                      The Niels Esperson Building
                                         808 Travis, 24th Floor
                                         Houston, Texas 77002
                                           (713) 757-0679
                                    Board Certified, Criminal Law,
                                   Texas Board of Legal Specialization

                                        Criminal Trials and Appeals, State and Federal Court;
                                   Post-Conviction Remedies; Representation Before Grand Juries.


                 GEORGE McCALL SECREST, JR., born Laredo, Texas, January 5, 1952.

Admitted to State Bar of Texas, 1977; U.S. Court of Appeals for the Fifth Circuit, 1981; U.S. District Court,
Southern District of Texas, 1982; U.S. Supreme Court, 1984; U.S. Court of Appeals for the Eleventh Circuit,
1989; U.S. Court of Appeals for the Sixth Circuit, 1990; U.S. District Court, Northern District of Texas, 1992;
U.S. District Court, Eastern District of Texas, 1994; U.S. District Court, Western District of Texas, 1997.

Education: University of Houston (B.A., 1974); St. Mary's University School of Law (J.D., with distinction,
1977), John Harlan Society.

Briefing Attorney for the Honorable Wendell Odom, Texas Court of Criminal Appeals, 1977-1978; Assistant
District Attorney for Harris County, Texas, 1978-1981; Assistant Federal Public Defender for the Southern
District of Texas, 1981-1983.

Adjunct Professor of Law, Criminal Procedure, South Texas College of Law, 1984; Adjunct Professor of
Law, Appellate Advocacy, University of Houston, 1990; Adjunct Professor of Law, Trial Advocacy,
University of Houston, 1991-1994; Adjunct Professor of Law, Criminal Procedure, University of Houston,
1996; Adjunct Professor of Law, Texas Criminal Procedure, University of Houston, 1994-2003.

Author: "Jury Selection and Criminal Law," and "Texas Criminal Jury Practice," Texas Practice Guide,
Second Edition, 1983; Texas Tech Law Review, Fifth Circuit Survey, Criminal Law, 1995; O'Connor's
Criminal Codes Plus, 1997-2004 eds.

Member: Bar Association of the Fifth Federal Circuit; State Bar of Texas; Houston Bar Association; Harris
County Criminal Lawyers Association, Treasurer 1996-1997; Texas Criminal Defense Lawyer's Association;
National Association of Criminal Defense Lawyers; Governor's Ad Hoc Committee to Revise the Texas
Code of Criminal Procedure, 1995-1996.

In 1998, he was selected as Criminal Defense Lawyer of the Year by the Criminal Justice Section of the
State Bar of Texas.

Since 1997, Mr. Secrest has been included in The Best Lawyers in America, where only 20 criminal
defense attorneys are listed from the Houston area.
Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                                                                                                                                        Chapter 18

                                                              TABLE OF CONTENTS

I.     INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.    PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   1
       A. Motions for New Trial . . . . . . . . . . . . . . . . . . . . . . .                 .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   1
       B. Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . .             .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   1
       C. Plain Error Review of a Denial of the Right to Allocute .                           .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   2

III. FOURTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. FIFTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                           .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   2
    A. Due Process/Parole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                     .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   2
    B. Due Process/Judicial Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                      .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   3
    C. Due Process/Corroboration of Extrajudicial Inculpatory Admissions                                                          .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   3

V.     STATUTORY ANALYSIS AND CONSTRUCTION .                                  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   4
       A. Bank Robbery . . . . . . . . . . . . . . . . . . . . . . . . .      .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   4
       B. Mail Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . .    .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   4
       C. Federal Death Penalty Act . . . . . . . . . . . . . . . . .         .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   4
       D. Commodity Exchange Act (C.E.A.) . . . . . . . . . .                 .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   5
       E. AEDPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   5

VI. SIXTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    A. Right to Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    B. Confrontation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

VII.      SENTENCING . . . . . . . . . . . . . . . . . . . . . . . . . .              .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   7
       A. Review of Booker/Fanfan Error . . . . . . . . . . . . . . .                 .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   7
          B.    Preservation of Error and Plain Error Review                          .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   8
       C. “Crimes of Violence” (U.S.S.G. § 2L1.2) . . . . . . . .                     .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   9
       D. Downward Departures . . . . . . . . . . . . . . . . . . . . .               .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   9
       E. Consecutive Sentences . . . . . . . . . . . . . . . . . . . . .             .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   9




                                                                                  i
Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                                                   Chapter 18

                                                          TABLE OF AUTHORITIES

Bigby v. Dretke,
    402 F.3d 551 (5th Cir. 2005),
    cert. denied, 515 U.S. 1162 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Bracy v. Gramlay,
    520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Brady v. Maryland,
    373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Brecht v. Abrahamson,
    507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Coleman v. Dretke,
    395 F.3d 216 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Crawford v. Washington,
    541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Glover v. United States,
    531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Guidry v. Dretke,
    397 F.3d 306 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Hill v. United States,
      368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Johnson v. United States,
    520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Miranda v. Arizona,
    384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Moran v. Burbine,
    475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Neder v. United States,
    527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Penry v. Lynaugh,
    492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ramirez v. Dretke,
    398 F.3d 691 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Sabri v. United States,
     541 U.S. 600, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Smith v. United States,

                                                                           iii
Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                                                   Chapter 18

      348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. ___ (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Soffar v. Dretke,
     368 F.3d 441 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Acuna-Cuadros,
     385 F.3d 875 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Bellew,
     369 F.3d 450 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Booker,
     ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

United States v. Bringier,
     405 F.3d 310 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Calderon-Pena,
     383 F.3d 254 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Castillo,
     386 F.3d 632 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Davis,
     380 F.3d 821 (5th Cir. 2004),
     cert. denied, ___ S.Ct. ___ (2005), WL 1131206 (May 16, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Delgado,
     401 F.3d 290 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Deville,
     278 F.3d 500 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Dominguez-Benitez,
     542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Dominguez-Ochoa,
     386 F.3d 639 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Gamez-Gonzalez,
     319 F.3d 695, 700 (5th Cir. 2003),
     cert. denied, 538 U.S. 1068 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Grammas,
     376 F.3d 433 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Infante,
     404 F.3d 376 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Izaguirre-Flores,
     405 F.3d 270 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9



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Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                                                   Chapter 18

United States v. Javier-Cruz,
     388 F.3d 150 (5th Cir. 2004),
     reversed, 125 S.Ct. 1969 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Lynch,
     378 F.3d 445 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Mares,
     402 F.3d 511 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

United States v. Martinez-Mata,
     393 F.3d 645 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Medina,
     161 F.3d 867 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Olano,
     507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8

United States v. Rangel,
     319 F.3d 710 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Reyes,
     239 F.3d 722 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Reyna,
     358 F.3d 344 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Reynolds,
     367 F.3d 294 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

United States v. Robinson,
     367 F.3d 278 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Rodriguez,
     398 F.3d 1291 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Rueda-Rivera,
     396 F.3d 678 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Sipe,
     388 F.3d 471 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Strong,
     371 F.3d 225 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Tarango,
     396 F.3d 666 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Valencia,
     394 F.3d 352 (5th Cir. 2004),
     cert. denied, ___ S.Ct. ___ (2005), WLA83530 (May 16, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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United States v. Waldrop,
     404 F.3d 365 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Xcitement Video, Inc.,
     513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATUTES AND RULES

7 U.S.C. § 13(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

18 U.S.C. § 2113(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 U.S.C. § 3553(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 U.S.C. § 3591(a)(2)(A) - (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. § 3742(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

18 U.S.C. § 922(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 924(c)(1)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

21 U.S.C. § 841(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2254(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Fed. R. Crim. P. 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Crim. P. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Fed. R. Evid. 801(d)(2)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fed. R. Evid. 803(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fed. R. Evid. 803(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

U.S.S.G. § 2L1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S.S.G. § 5G1.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

V.T.C.A., Penal Code, § 19.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

V.T.C.A., Penal Code, § 22.04(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

V.T.C.A., Penal Code, § 36.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




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Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                            Chapter 18


RECENT SIGNIFICANT CRIMINAL                                          Tarango from the prejudicial effect of being joined with
                                                                     Potel.” Id. at 671.
LAW DECISIONS OF THE U.S.                                                  The Fifth Circuit held that the district court did not
COURT OF APPEALS FOR THE 5TH                                         abuse its discretion in granting Tarango a new trial based
CIRCUIT                                                              upon “the clear prejudice that resulted from being tried
                                                                     alongside essentially an ‘empty chair’ and due to the jury
I.   INTRODUCTION                                                    being “permitted to hear a great deal of evidence that
     The Fifth Circuit continues its unrelenting march in            was inadmissible against Tarango.” Id. at 674.
continuing to be one of the most conservative courts in                    In United States v. Sipe, 388 F.3d 471 (5th Cir.
the United States with respect to criminal law matters.              2004), the Court grappled with the standard of review
The opinions are uniformly scholarly but nearly                      applic able to a district court’s granting of a new trial
inexorably pro-prosecution.                                          based upon Brady [v. Maryland, 373 U.S. 83, 83 S.Ct.
                                                                     1194, 10 L.Ed.2d 215 (1963)] error. Recognizing that it
II. PROCEDURE                                                        has not always been consistent in its approach, the Court
A. Motions for New Trial                                             concluded that while the district court’s determinations in
       The case of United States v. Tarango, 396 F.3d 666            granting a new trial must be accorded “some degree of
(5th Cir. 2005), offers an excellent overview of Fed. R.             appellate deference,” Brady issues, in turn, will be
Crim. P. 33 and sets out the applicable standard of                  reviewed “with deference to the factual findings
review applicable to government appeals of the district              underlying the district court’s decision,” and the “ultimate
court’s granting of a defendant’s motion for new trial.              constitutional question” will be reviewed “afresh” or de
District courts are empowered to grant a new trial “if it            novo. Id. at 478. The Court ultimately affirmed the
is necessitated by the interest of justic e”; in making that         district court’s granting of a new trial. Id.
determination, the district court “must carefully ‘weigh
the evidence and may assess the credibility of the                   B.     Jury Instructions
witnesses during its consideration of the motion for new                    A profoundly important rule of procedure that
trial.’ ” Id. at 672. The district court must, however, “not         potentially comes into play in the trial of any criminal
entirely usurp the jury’s function” or set aside the verdict         action was discussed in United States v. Javier-Cruz, 388
simply “because it runs counter to result the district court         F.3d 150 (5th Cir. 2004), reversed, on other grounds, 125
believed was more appropriate.” Id.                                  S.Ct. 1969 (2005). In that case, the prosecution alleged
       The jury’s verdict may be set aside in the interest of        in the indictment a specific quantity of cocaine imported
justice “when the evidence brought forth at trial may                from Mexico, namely, “approximately 20 kilos of cocaine
tangentially support a guilty verdict, but in actuality,             . . . . ” Id. at 152. The district court tracked the
‘preponderates sufficiently heavily against the verdict              indictment in its jury charge and instructed the jury, inter
such that a miscarriage of justice may have occurred.’”              alia, that the government had to prove that the substance
Id. The district court’s discretion “should be exercised             was, in fact, cocaine and “weighed 20 kilos, more or less
infrequently” in this regard “unless warranted by                    . . . .” Id. at 154. The Fifth Circuit was of the view that
‘exceptional’ circumstances.” Id. In reviewing the                   21 U.S.C. § 841(b) “ ‘does not make knowledge of drug
district court’s exercise of discretion, an appellate court          type or quantity an element of a § 841 offense,’ ” see
does not “revisit evidence, reevaluate witness credibility,          United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th
or attempt to reconcile seemingly contradictory                      Cir. 2003), cert. denied, 538 U.S. 1068 (2003); however,
evidence”; rather, it merely determines whether the                  “if the indictment charges knowledge, an erroneous
district court’s decision “in granting or denying a motion           instruction based thereon, may become the law of the
for new trial constituted a clear abuse of its discretion.           case if the government fails to object, and may increase
Id.
       In this case, the defendant was indicted, along with
a co-defendant, for conspiracy and various substantive
offenses, but ultimately was tried alone when the co-
defendant (and principle actor) absconded after jury
selection. The district court concluded that much of the
testimony adduced at trial was inadmissible against
Tarango and that the limiting instructions provided to the
jury were “ineffective” in protecting or “insulating

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Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                              Chapter 18

the government’s burden of proof on a particular element                his privacy rights were violated under the “plain view”
of the offense.” Id. 1                                                  doctrine when officers, executing a warrant at his
                                                                        residence to search for oil field tools and other stolen
C.    Plain Error Review of a Denial of the Right to                    property, seized two rifles. Waldrop argued that the
      Allocute                                                          seizure of the rifles “was not justified under the plain
      In United States v. Reyna, 358 F.3d 344, 349 (5th                 view doctrine because the incriminating nature of the
Cir. 2004), en banc, the Court held that although a                     w eapons was not readily apparent to law enforcement
defendant has a right of allocution upon a revocation of                officers who had no prior knowledge of his status as a
supervised release, the failure to object to the denial of              convicted felon.” Id. at 369.
the same is reviewed only for plain error. The Court                          Evidence adduced at the suppression hearing
found the denial of the right to allocute to be error; it also          established that the officers in charge did not learn until
found the error to be “plain” or “obvious.” Id. at 349-                 after they executed the warrant that the defendant’s
350. The Court further, presumed that the error was                     possession of a firearm was unlawful under 18 U.S.C. §
prejudicial due to the reality that “a defendant would have             922(g). However, another officer, Detective Mitch
an onerous burden establishing that he has suffered                     Russell, involved in the execution of the warrant,
prejudice as a result of the Court’s failure to allow him to            informed one of the officers in charge that federal law
allocute.” Id. at 350. But, in applying the final prong of              prohibited the possession of the firearm. “Because
the plain error analysis set forth in United States v.                  Russell was present on the scene and there was
Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508                    communication between the officers, application of the
(1993), the Court found that the district court’s error did             collective knowledge doctrine supports the finding that
not “seriously affect[ ], the fairness, integrity or public             the officers had probable cause to believe that the
reputation of [the] judicial proceedings.” Id. at 352. The              firearms were incriminating.” Id. at 370. The Court
Court relied, in part, on Hill v. United States, 368 U.S.               acknowledged that the Fifth Circuit “has not applied the
424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), wherein the                    collective knowledge doctrine in the specific context of
Supreme Court held, in a habeas case, that denying a                    a seizure justified by the plain view doctrine” but noted
defendant the right to allocute “is not a fundamental                   that other circuits had and that it now would. Id.
defect that inherently results in a complete miscarriage of
justice nor an omission inconsistent with the rudimentary               IV. FIFTH AMENDMENT
demands of fair procedure.” Hill, 368 U.S. at 428. This,                A. Due Process/Parole
coupled with the fact that Reyna had appeared before                          In Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004),
the district court three times and had been warned                      the Fifth Circuit held that an inmate, who had only been
previously that any infraction in the future would result in            convicted of misdemeanor assault (arising out of
the revocation of his supervised release, convinced the                 indictments for aggravated sexual assault and indecency
Court that a reversal of the convictions was not required.              with a child), and whose parole had been revoked for
Reyna, 358 F.3d at 352. As the Court reasoned, “[i]n a                  failure to attend sex related therapy, was entitled to
limited class of cases, a review of the record may reveal,              procedural due process:
despite the presence of disputed sentencing issues, that
the violation of a defendant’s right to allocution does not                  The Department [of Criminal Justice] may
violate the last Olano prong.” Id.                                           condition Coleman’s parole on sex offender
                                                                             registration and therapy only if he is
III. FOURTH AMENDMENT                                                        determined to constitute a threat to society by
     The Fifth Circuit continues not to be the Fourth                        reason of his lack of sexual control. Absent a
Amendment’s friend. United States v. Waldrop, 404                            conviction of a sex offense, the Department
F.3d 365, 369 (5 th Cir. 2005), the defendant argued that                    must afford him an appropriate hearing and
                                                                             find that he possesses the offensive
                                                                             characteristic before imposing such conditions.
     1
       As an aside, defense counsel must be vigilant, of course,
in making sure that each constituent element of a offense is            As the Court reasoned, “the Due Process Claus e . . .
actually covered in the charge.            In submitting proposed       provides Coleman with the liberty interest in freedom
instructions to the Court, however, defense counsel should              from the stigma and compelled treatment on which his
track the actual averment as set forth in the indictment–
                                                                        parole was conditioned, and the state was required to
especially when the government has assumed a greater burden
than the particular statute in question otherwise requires.

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Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                            Chapter 18

provide procedural protections before imposing such                        because of the fact of the attack but rather
conditions.” Id. at 221.                                                   must examine the record for indications of
                                                                           actual bias on the part of the trial judge.
B.   Due Process/Judicial Bias
     Bigby v. Dretke, 402 F.3d 551 (5th Cir. 2005), cert.            Id. at 560.
denied, 515 U.S. 1162 (2005), presented a rather unique
and quite disturbing issue. During the trial of a capital                  Although the Fifth Circuit found error in allowing the
murder case, the prosecution was allowed to offer into               state to adduce evidence which established that the trial
evidence testimony concerning the defendant’s attempted              court had been held hostage (as opposed to merely
escape, his acquisition of a pistol from the judge’s bench           establishing that the defendant had attempted to escape
and his later act of holding the pistol to the judge’s head          and had momentarily acquired a firearm), this alone, did
— all of which had occurred outside the jury’s presence.             not overrule “the presumption of fairness on the trial
The issue before the Fifth Circuit was whether the trial             judge’s part and compel[ ] a conclusion that structural
judge was subject to removal per se and whether the                  error inhered in the petitioner’s trial.” Id. at 563. The
defendant’s due process right to fair and impartial                  trial court’s failure to recognize “the prejudicial effect
process was violated. As the Fifth Circuit explained,                s uch evidence might have on the jury,” did not, without
                                                                     more, establish that he was “acting clearly outside the
     [t]he crux of Bigby’s habeas corpus complaint                   bounds of law or reason in a manner that would signal
     is that his assault of Judge Leonard created an                 any bias toward the defendant.” Id.
     impermissible bias that ultimately violated                           Ultimately, because of the admission of
     Bigby’s clearly established constitutional right                “overwhelming evidence that defendant committed the
     to a fair trial.                                                murder,” the Court determined that assuming
                                                                     constitutional error was presented, there had been no
Id. at 557.                                                          showing of a “substantial and injurious effect or
                                                                     influence” on the jury’s verdict at the guilt/innoc e n c e
     [T]he cornerstone of the American judicial system               phase of trial. Id. With respect to whether evidence of
is the right to a fair and impartial process. See e.g.,              the attack affected the punishment phase in a
Bracy v. Gramlay, 520 U.S. 899, 117 S.Ct. 1793, 138                  unconstitutional manner, the Court found that question to
L.Ed.2d 97 (1997). Therefore, any judicial officer                   be “more difficult.” Id. at 554. The issue was not
incapable of presiding in such a manner violates the due             reached, however, in light of Penry v. Lynaugh [492 U.S.
process rights of the party who suffers the resulting                302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)] error
effects of that judicial officer’s bias.” Id. Bias by an             which resulted in reversing the death sentence and
adjudicator, however, is not “lightly established.” Id. It           remanding the case for resentencing.
was incumbent upon Bigby “to establish that a genuine
question exists concerning [the trial judge’s] impartiality.”        C.    Due Process/Corroboration of Extrajudicial
Id. at 558. Although the Fifth Circuit recognized that                     Inculpatory Admissions
“adjudication before a biased judge” constitutes                           T he corroboration rule applicable to extrajudicial
“structural error subject to automatic reversal,” see                confessions announced in Smith v. United States, 348
Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827,             U.S. 147, 152, 75 S.Ct. 194, 99 L.Ed. ___ (1954), was at
144 L.Ed.2d 35 (1999), it refused to adopt a per se rule             issue in United States v. Reynolds, 367 F.3d 294 (5th Cir.
of recusal when a defendant attacks a trial judge.                   2004). Reynolds was charged, in part, with four counts
                                                                     of carrying and possessing a firearm during and in
     A per se rule of recusal would lend itself t o a                relation to a crime of violence, proscribed by 18 U.S.C.
     deliberate manipulation of the judicial system.                 § 924(c)(1)(A)(i). No witnesses testified that Reynolds
     Such an automatic rule would invite recusal                     used or carried a firearm during the bank robberies that
     motions from defendants whose sole purpose                      he allegedly committed. Upon arrest, Reynolds did not
     in attacking a judge or engaging in unruly                      admit to law enforcement officers that he carried or used
     behavior is either to manufacture constitutional                a firearm during the bank robberies but did state that he
     due process violations or to delay trial                        “always” carried the gun that was seized upon his arrest.
     proceedings.         Therefore, contrary to                     Id. at 296. His girlfriend testified that he told her he did
     petitioner’s request, we decline to presume                     not use the gun during any of the bank robberies but that
     prejudice on the part of the trial judge simply                 he also said “the gun was close by, always.” Id. at 297.

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Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                                Chapter 18

The Court was of the view, however, that such                        B.   Mail Fraud
“ambivalent testimony” did not serve “as corroboration                    In United States v. Strong, 371 F.3d 225 (5th Cir.
for the unspecific confession made by Reynolds.” Id.                 2004), the Court was confronted with a “title punching”
      Relying on Smith v. United States, supra, the Fifth            scheme involving certified copies of original titles to
Circuit held that “a defendant generally cannot be                   motor vehicles that were mailed by a local office of the
convicted solely on his uncorroborated confession.” Id.              Texas Department of Transportation “TXDOT” to its
Although the rule does “not apply to every admission by              headquarters in Aus tin. The Court concluded that
a defendant,” it clearly applies where “ ‘the admission is           although the evidence was more than sufficient in
made after the fact to an official charged with                      establishing “both a fraudulent scheme, and the use of the
investigating the possibility of wrongdoing, and the                 mails,” that the evidence was legally insufficient to
statement embraces an element vital to the                           establish that the mailings were sufficiently related to the
Government’s case.’ ” Id.           The rule was found               success of the scheme . . . .” While a mailing, in order
particularly applicable to the present case “given the fact          to satisfy the mail fraud statute, “need merely be
that “(Reynolds) never directly confessed specifically to            ‘incident to an essential part of the scheme,’ . . . [a]
the crime for which he was convicted.” Id. See and                   tangential mailing occurring after the success of a fraud
compare United States v. Deville, 278 F.3d 500 (5th Cir.             scheme is complete would never qualify, even if the
2002).                                                               mailing is ‘incidental’ to a part of the scheme.”
                                                                          The Court noted that “[i]n addition to establishing a
V.   STATUTORY                ANALYSIS            AND                connection between the mailings and the fraud, the
     CONSTRUCTION                                                    government must show that Strong committed ‘an act
     The Fifth Circuit provided guidance with respect to             with knowledge that the use of the mails will follow in the
the meaning and construction of several statutory words              course of business, or where such use can reasonably be
and phrases during the last year.                                    foreseen.” Id. at 232, fn. 5. See United States v. Reyes,
                                                                     239 F.3d 722, 736 (5th Cir. 2001). Although not reaching
A.    Bank Robbery                                                   the question, the Court was doubtful that the government
      In United States v. Bellew, 369 F.3d 450 (5th Cir.             provided legally sufficient evidence of foreseeability. Id.
2004), the defendant went into a bank on two occasions
to rob the same but fortunately for him the manager was              C.    Federal Death Penalty Act (F.D.P.A.)
too busy to see him. On both occasions he carried a                        In United States v. Davis, 380 F.3d 821 (5 th Cir.
briefcase with a pistol inside and even penned                       2004), cert. denied, ___ S.Ct. ___ (2005), WL 1131206
instructions to himself as to how he was going to pull off           (May 16, 2005), the Court held that the failure of the
the heist. He was later apprehended after he was seen                government to include in the indictment the F.D.P.A.
walking towards the bank apparently for a third and final            elements or aggravating factors warranting imposition of
try. The indictment tracked the first paragraph of 18                a death sentence, see 18 U.S.C. § 3591(a)(2)(A) - (D),
U.S.C. § 2113(a) and alleged that he “did by force,                  was constitutional error. See United States v. Robinson,
violence and intimidation, intentionally attempt to take             367 F.3d 278 (5th Cir. 2004). The Court concluded,
from the person and presence of another, money                       however, that the constitutional infraction was harmless
belonging to and in the care, custody, control, and                  in light of the fact that the government had supplied the
management and possession of the [ bank].” Id. at 452.               defendant and his counsel notice of the government’s
The Court reversed the conviction holding that the first             intention to seek the death penalty “and identified the
paragraph of § 2113(a) “requires more than attempted                 applicable F.D.P.A. elements to establish death-eligibility
intimidation for conviction.” Id. at 456. According to the           . . . .” Id. at 829. The fact that the grand jury never
Court, “a defendant must actually commit an act of                   considered whether there was probable cause to justify
intimidation while wrongfully taking or attempting to take           inclusion of F.D.P.A. elements in the indictment posed no
money from the presence of a person at a bank. That is,              problem for the Court. In light of the overt acts that
the attempt only relates to the taking, not the                      were included in the indictment, whic h chronicled the
intimidation.” Id. at 453.2

                                                                     a bank . . . with intent to commit any felony affecting such bank
     2
       The Court observed that had the government proceeded          . . . or any larceny . . . .”)
against the defendant with respect to the second paragraph of                Of some significance is the fact that the Court’s holding
§ 2113(a) the evidence would have been legally sufficient to         in Bellew is at odds with statutory interpretations of the same
support the conviction. (“Whoever enters or attempts to enter        statute by the Second and Fourth Circuits. Id. at 455.

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Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                            Chapter 18

premeditated killing of the complainant by the defendants,           VI. SIXTH AMENDMENT
the Court concluded that “there is no doubt that a rational          A. Right to Counsel
grand jury would have found probable cause that the                        Guidry v. Dretke, 397 F.3d 306 (5th Cir. 2005) is an
F.D.P.A. intent element and subs tantial planning and                extraordinary case, if for no other reason, than the fact
premeditating aggravating factor were present, had those             that the majority opinion, which granted relief to a death
elements been presented to it.” Id. (Emphasis in                     row inmate, was authored by Judge Barksdale. The
original).                                                           case, along the way, deals with several important
                                                                     constitutional issues, including the right to counsel and the
D.   Commodity Exchange Act (C.E.A.)                                 right of confrontation and also interprets AEDPA in a
     In United States v. Valencia, 394 F. 3d 352 (5th Cir.           favorable way for petitioners. See discussion for the
2004), cert. denied, ___ S.Ct. ___ (2005), WLA83530                  latter propositions, infra.
(May 16, 2005), the Court reversed Judge Nancy Atlas’                      With respect to Guidry’s denial of the right to
order dismissing an indictment, in part, after she found             counsel claim, the Court concluded that the district
that a portion of the C.E.A. was unconstitutionally                  court’s findings were not clearly erroneous and affirmed
overbroad. The Fifth Circuit, in principle reliance on               the granting of relief. Id. at 329. Guidry had twice
United States v. Xcitement Video, Inc., 513 U.S. 64, 115             invoked his right to counsel but later signed and initialed
S.Ct. 464, 130 L.Ed.2d 372 (1994), held that “a scienter             a waiver of his rights and subsequently received a full
requirement should apply to each of the statutory                    Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
elements that criminalize otherwise innocent conduct.”               L.Ed.2d 694 (1966)] warning. The Court concluded,
Id. at 355. Notwithstanding that a commonsense                       however, that Guidry’s waiver of his rights was not
interpretation of Congress’ own words used in the statute            freely and voluntarily given but, rather, was a product of
in question seem to suggest that an individual could be              police deception. Id. Under these circumstances,
held liable “when one knowingly delivers or causes to be             Guidry’s confession was not voluntary and “the state
delivered a report that is unknowingly false or                      court’s adjudication of the claim was based on an
misleading,” Xcitement Video was viewed not just as a                unreasonable determination of the facts.” Id. “In
canon of statutory construction but rather as “a rule of             reviewing whether a waiver of the Fifth Amendment
law.” Id. at 356. The Court held that the knowledge                  right is knowing and voluntary, a court must assess
requirement of the reporting prong of 7 U.S.C. § 13(a)(2)            whether: it was the product of intimidation, coercion, or
applies to the false or misleading character of the reports,         deception; and it was made with full awareness of one’s
as well as to delivery and inaccuracy. Id. Along the                 constitutional rights.” Id. at 328, citing Moran v. Burbine,
way, the Court observed that the Supreme Court had                   475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410
recently “reiterated its hesitance to encourage the facial           (1986).
attack to a statute’s constitutionality on grounds of                      United States v. Infante, 404 F.3d 376 (5th Cir.
overbreadth.” Id. at 355, citing, Sabri v. United States,            2005) presented a classic conflict of counsel claim.
541 U.S. 600, 124 S.Ct. 1941, 1948-1949, 158 L.Ed.2d                 Infante’s trial lawyer also had previously represented two
891 (2004). At least in the criminal law arena scienter              of the key witnesses who testified against him - - and on
must generally be implied “where it is not expressly                 drug smuggling events “about which the witnesses
included.” Id.                                                       testified at Infante’s trial in support of the conspiracy
                                                                     charges.” Id. at 388. Defense counsel cross-examined
E.    AEDPA                                                          each witness and elicited favorable testimony that they
      In Guidry v. Dretke, 397 F.3d 306, 323 (5 t h Cir.             “had no knowledge of any involvement in the conspiracy
2005), the Court held that “if a petitioner develops a               by Infante.” Id. at 390. Defense counsel refrained,
factual basis for a claim in state court (or sufficiently            however, from “contest[ing] their credibility or motive for
attempts to do so), subpart [28 U.S.C. § 2254](e)(2) does            testifying against Infante (by, for example, delving into
not bar an evidentiary hearing in district court.”                   the details of their plea agreements or their hopes of
(Emphasis in original). While subpart (e)(2) “evinced a              receiving a reduction in the sentences for substantial
‘Congres s[ional] intent to avoid unneeded evidentiary               assistance).” Id. Although defense counsel’s
hearings in federal habeas corpus,’ ” where none of the              representation of the witnesses had ended by the time of
bars of subpart (e)(2) apply, federal district courts are            trial, the Court found that the representation was
free to conduct evidentiary hearings. Id. at 324.                    “relatively close in time” to the representation of Infante
                                                                     and that Fed. R. Crim. P. 35 was available for seeking a
                                                                     reduction of sentence by the witnesses (and former

                                                                 5
Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                               Chapter 18

clients) in return for their testimony for the prosecution.”         had he been correctly advised as to the sentencing range
 Id. at 392.                                                         he was exposed to upon his plea of guilty, was an issue
      The Court found that defense counsel labored under             to be resolved on remand.
a conflict of interest because he “ ‘place[d] himself in a
position conducive to divided loyalties.’ ” Id. at 391,              B.    Confrontation
quoting, United States v. Medina, 161 F.3d 867, n. 1 (5th                  Several Crawford v. Washington, 541 U.S. 36, 124
Cir. 1998). From the record, the Court could not                     S.Ct. 1354, 158 L.Ed.2d 177 (2004), cases were decided
determine if counsel’s conflict adversely affected his               during the last year. In United States v. Rueda-Rivera,
representation of Infante. Id. The case as remanded for              396 F.3d 678 (5th Cir. 2005), a prosecution for being
the conducting of an evidentiary hearing regarding that              found in the United States following deportation and
question. Id.                                                        removal, the Court held that the admission into evidence
      Several ineffective assistance of counsel cases                of a Certificate of Non-Existence of Record (CNR)
were decided by the Court that are worthy of mention                 which reflected that the deported defendant had not
herein. In Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004),           received consent to reenter the United States did not
the Court found that defense counsel’s performance was               violate the Confrontation Clause. In Crawford, the
both deficient and prejudicial in not investigating                  Supreme Court held that “testimonial, out-of-court
discrepancies between ballistic evidence and the state’s             statements by witnesses are barred under the
theory of the case, and in failing to conduct an adequate            Confrontation Clause unless the witnesses are
pre-trial investigation which would have established that            unavailable and the defendant had a prior opportunity to
the surviving victim’s account of the crime was                      cross-examine them.” Id. at 679. Although recognizing
inconsistent with the defendant’s confession, which was              that the Court in Crawford “declined to give a full
the sole evidence of his guilt. Id. at 478. Interestingly,           definition of what ‘testimonial’ statements are,” the
the defendant had a history of confessing falsely to                 Supreme Court provided “two examples of ‘statements
crimes.                                                              that by their nature were not testimonial’ — business
      In United States v. Grammas, 376 F.3d 433 (5th Cir.            records and statements in furtherance of a conspiracy.”
2004), the Court held that erroneous advice from defense             Id. The Fifth Circuit, in reliance on an unpublished
counsel concerning the potential sentence that his client            opinion, likened an immigration file to a business record
was looking at constituted defic ient performance.                   and found that the file in question “contained statements
Defense counsel apparently relied on the wrong section               that by their nature were not testimonial.”3
of the guidelines and advised his client that if he entered                In Guidry v. Dretke, 397 F.3d 306 (5th Cir. 2005),
a plea of guilty that he was facing six to twelve months             the Court held that damaging hearsay testimony admitted
if convicted. Id. at 433. In actuality, Grammas’                     against the defendant as a declaration against penal
guideline range was 70 to 87 months. Id. Defense                     interest — statements made by Gipp at trial as to what
counsel had a professional duty to “ ‘research relevant              Prystash had said which implicated Prystash and Guidry
facts of law, or make an informed decision that certain              — were inadmissible and violated the Sixth
avenues will not be fruitful.’ ” Id. at 436. And, “ ‘(b)y            Amendment’s Confrontation Clause because the witness
grossly underestimating [the defendant’s] sentence                   was unavailable and the defendant had not had a prior
exposure . . . , [counsel] breache[s] his duty as a defense          opportunity for cross-examination. Id. at 329.
lawyer in a criminal case to advise his client fully on              (Amazingly, the Court of Criminal Appeals has found
whether a particular plea to a charge appears                        these statements to be inadmissible but their introduction
desirable.’” Id.                                                     into evidence harmless error.) The Fifth Circuit agreed
      With respect to whether Grammas demonstrated                   with the district court’s determination that the objected-to
prejudice by his counsel’s deficient performance, the                statements “served as an indispensable piece of evidence
Court in reliance on Glover v. United States , 531 U.S.              to convict Guidry of capital murder” and “had both a
198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), held that                substantial and injurious effect in determining the jury’s
any amount of jail time that a defendant received due to             verdict.” Id. at 330, citing Brecht v. Abrahamson, 507
his attorney’s deficient performance has Sixth                       U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
Amendment significance (at least in cases involving
Federal Sentencing Guidelines). Id. at 437, fn. 4. The
Court abrogated the heretofore recognized “significantly                   3
                                                                            See Fed. R. Evid. 803(a) — Public Records and Reports
less harsh” test. Id. That being said, whether or not
                                                                     and 803(10) — Absence of Public Record or Entry which
Grammas would have insisted upon going to trial even                 ostensibly deal with records that are non-testimonial in nature.

                                                                 6
Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                            Chapter 18

No finding of a “particularized guarantee of                         125 S.Ct. at 756. In Justice Breyer’s” remedy opinion,”
trustworthiness” was found because the out-of-court                  the Court held that in order to implement the “substantive
declarant “had ‘every reason’ to attempt to spread the               opinion” two provisions of the Sentencing Reform Act
blame” for the deceased’s death and inculpate the                    ([18 U.S.C. §] 3553(b)(1), which makes the use of the
defendant. Id. at 329.                                               Guidelines mandatory, and § 3742(e) which sets out
      In Ramirez v. Dretke, 398 F.3d 691 (5th Cir. 2005),            standards of review on appeal) had to be “severed and
however, the Court brushed aside the petitioner’s                    excised.” 125 S.Ct. at 764. The effect is to transform
Crawford claim, finding no confrontation problem with                “the Guidelines from a mandatory regime to a
the admission into evidence of an out-of-court statement             discretionary regime.” Mares, at 518. Appellate review
by a witness (Bell) which implicated the witness and the             of sentences is now governed by “a practical standard,”
petitioner in the murder. The state conceded that the                namely, “review for ‘unreasonableness.’ ” Mares, at 518.
out-of-court statement did not “fall within a firmly routed               District judges still have the duty under § 3553(a) to
exception” to the Hearsay Rule but argued that these                 consider the guidelines and, therefore, will ordinarily
statements were “supported by particularized guarantees              determine the applicable Guidelines range even though
of trustworthiness” — an argument that Judge Emilio                  the judge is not required to sentence within that range.”
Garza had no problem, whatsoever, in accepting. Id. at               Id. at 519. With respect to what is an “unreasonable”
635. Judge Garza reasoned that “[t]here is nothing in                sentence, the Mares Court offered the following analysis:
Crawford to suggest that ‘testimonial’ evidence includes
spontaneous out-of-court statements made outside any                            If the sentencing judge exercises her
arguably judicial or investigatory context.” Id. at 694-                   discretion to impose a sentence within a
695.4                                                                      properly calculated Guideline range, in our
      In United States v. Delgado, 401 F.3d 290 (5th Cir.                  reasonableness review we will infer that the
2005), the Court held that co-conspirator statements,                      judge has considered all the factors for a fair
otherwise admissible as an exception to the Hearsay                        sentence set forth in the Guidelines. Given the
Rule, pursuant to Fed. R. Evid. 801(d)(2)(E), do not                       deference due the sentencing judge's discretion
offend Crawford “because they are not testimonial                          under the Booker/Fanfan regime, it will be rare
hearsay statements.” Id. at 299.                                           for a reviewing court to say such a sentence is
                                                                           “unreasonable.”
VII.    SENTENCING                                                              When the judge exercises her discretion to
A. Review of Booker/Fanfan Error                                           impose a sentence within the Guideline range
     In United States v. Mares, 402 F.3d 511 (5 th Cir.                    and states for the record that she is doing so,
2005), the Court set forth standards of review of                          little explanation is required. However, when
sentences imposed in violation of United States v.                         the judge elects to give a non-Guideline
Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621                       sentence, 5 she should carefully articulate the
(2005).    In Booker, Justice Stevens’ “substantive                        reasons she concludes that the sentence she
opinion” held that                                                         has selected is appropriate for that defendant.
                                                                           These reasons should be fact specific and
     Any fact (other than a prior conviction) which                        include, for example, aggravating or mitigating
     is necessary to support a sentence exceeding                          circumstances relating to personal
     the maximum authorized by the facts                                   characteristics of the defendant, his offense
     established by a plea of guilty or a jury verdict                     conduct, his criminal history, relevant conduct
     must be admitted by the defendant or proved to                        or other facts spec ific to the case at hand
     a jury beyond a reasonable doubt.                                     which led the court to conclude that the
                                                                           sentence imposed was fair and reasonable.
                                                                           Such reasons are essential to permit this court
                                                                           to review the sentence for reasonableness as
     4
       One of the statements attributable to the out-of-court              directed by Booker.
declarant was made before the murder; the other was made
prior to his arrest. According to the Court, “Bell had no
                                                                           5
apparent incentive at the time of these statements to risk                  The Court used the term “ ‘non-Guideline’ sentence to
implicating himself and no apparent reason to believe that his       distinguish it from a Guidelines sentence which includes a
statements might result in leniency in any subsequent criminal       sentence that has been adjusted by applying a ‘departure’ as
prosecution.” Id.                                                    allowed by the Guidelines.” Fn. 7

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Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                                  Chapter 18

                        * * *                                              the error is uncertain so that we do not know
         As indicated above, Booker directs us to                          which, if either, side it helped the defendant
     review the ultimate sentence for                                      loses.
     “reasonableness”. The Remedy Opinion in
     Booker places the primary sentencing                            Rodriguez, at 1299.
     obligation squarely on the district court. If the
     sentencing judge follows the principles set forth                    In applying the third prong of Olano to the
     above, commits no legal error in the procedure                  sentencing record, the Court determined that
     followed in arriving at the sentence, and gives
     appropriate reasons for her sentence, we will                         [w]e do not know what the trial judge would
     give great deference to that sentence.                                have done had the Guidelines been advisory.
                                                                           Except for the fact that the sentencing judge
Id. at 519-520.                                                            imposed the statutory maximum sentence of
                                                                           120 months (when bottom of the Guideline
B.    Preservation of Error and Plain Error Review                         range was 110 months), there is no indication
      Upon timely, specific objection in the district court                in the record from the sentencing judge’s
which raises the Sixth Amendment issues addressed in                       remarks or otherwise that gives us any clue as
Booker, the Fifth Circuit “will ordinarily vacate the                      to whether she would have reached a different
sentence and remand, unless [it] can say the error is                      conclusion. Under these circumstances the
harmless under Rule 52(a) of the Federal Rules of                          defendant cannot carry his burden of
Criminal Procedure.” Id., fn. 9. If, however, there is no                  demonstrating that the result would have likely
contemporaneous objection timely lodged in the district                    been different had the judge been sentencing
court, review will be for plain error. Id. See United                      under the Booker advisory regime rather than
States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123                    the pre-Booker mandatory regime. Because
L.Ed.2d 508 (1993). The Court reasoned that the district                   the defendant cannot carry the burden of proof
court’s sentencing decision was erroneous — the district                   he cannot satisfy the third prong of the plain
court enhanced Mares’ sentence “under a mandatory                          error test.
Guidelines system based on facts found by the judge that
were neither admitted by him nor found by the jury.” Id.             Id. at 522.6
The error was “plain” or “obvious” under Booker even
though “an objection at trial was not warranted under                      The bottom line is that for those cases wherein the
existing law,” in light of the “superseding decision before          defendant was sentenced prior to the Booker/Fanfan
appeal (which) reverse(d) that well-settled law.” Id.;               decision — and where no Sixth Amendment objection
citing Johnson v. United States, 520 U.S. 461, 468, 117              was lodged at the time of sentencing — plain error
S.Ct. 1544, 137 L.Ed.2d 718 (1997). As the Mares                     analysis will normally eviscerate the defendant’s
Court reasoned, “[i]t is enough that the law was settled             Booker/Fanfan argument unless there is some indication
at the time of appellate consideration to make the error             in the record which gives the appellate court “any clue as
‘plain.’ ” Id.                                                       to whether [the district court] would have reached a
      With respect to Olano’s third prong of the plain               different conclusion” had the district court known that the
error test — that the error affected substantial rights,”            Guidelines were merely advisory.           For all other
the proponent (the defendant) “must demonstrate a                    defendants who are sentenced post-Booker/Fanfan, a
probability ‘sufficient to undermine confidence in the
outcome.’ ” Id., citing United States v. Dominguez-
Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d                    6
                                                                             In United States v. Bringier, 405 F.3d 310, 318 (5th Cir.
157 (2004). The Mares Court adopted the rationale and                2005), a review of the sentencing transcript established that t h e
reasoning of the Eleventh Circuit in United States v.                district court remarked that the sentence he was imposing was
Rodriguez, 398 F.3d 1291, 1296-1297 (11th Cir. 2005):                “harsh.” In addition, the district court imposed a minimum
                                                                     sentence applicable under the Guidelines range (360 months).
         The defendant [must] show that the error                    Id. The Court found, however, that these factors “are not
     actually did make a difference: if it is equally                sufficient to raise a reasonable probability that [the district
                                                                     court] would have reached a different conclusion under an
     plausible that the error worked in favor of the
                                                                     advisory scheme.” Id.
     defense, the defendant loses; if the effect of

                                                                 8
Recent Significant Criminal Law Decisions of the U.S. Court of Appeals for the 5th Circuit                           Chapter 18

timely, specific objection will require the appellate court          indecent liberties with a child,” under North Carolina law,
to review the sentence in light of Booker/Fanfan.                    constituted “sexual abuse of a minor” for purposes of
      It is noteworthy to point out, as the Fifth Circuit in         U.S.S.G. § 2L1.2. The Court affirmed the district
Mares acknowledges, that the various circuit courts are              court’s employment of a “common sense” approach as
all over the map with respect to the approach employed               to whether a violation of the state statute in question
in reviewing unobjected-to Booker/Fanfan error. See                  constituted “sexual abuse of a minor.” Id. at 273-274.
Mares at 522, fn. 10.
                                                                     D.    Downward Departures
C.    “Crimes of Violence” (U.S.S.G. § 2L1.2)                              In United States v. Castillo, 386 F.3d 632 (5th Cir.
      The Fifth Circuit continues to grapple with what               2004), the Court affirmed the district court’s downward
crimes come within the “crimes of violence” provision of             departure on the basis of cultural assimilation. The Court
the Sentencing Guidelines which warrant a 16-level                   acknowledged that while the PROTECT Act did not alter
increase in the base offense level at sentencing after               its standard of review with respect to factual findings,
pleading guilty or being found guilty of an underlying               see 18 U.S.C. § 3742(e), the act did impose a de novo
federal offense. See § 2L1.2. In United States v.                    standard of review with respect to downward
Acuna-Cuadros, 385 F.3d 875, 877 (5th Cir. 2004), the                departures.     Id.   Of particular importance to the
Court held that the defendant’s prior conviction for the             outcome of this case is the fact that since the
Texas offense of retaliation, proscribed § 36.01 of the              government did not preserve its objection to the basis for
Texas Penal Code, did not “have as an element the use,               downward departure below, review on appeal de novo
attempted use, or threatened use of physical force to                pursuant to the PROTECT Act was not warranted. Id.
maintain a conviction.” Although a district court can look           at 634. Rather, the Court reviewed the district court’s
to the underlying indictment “to determine which of the              downward departure for plain error and found none.
dispositive elements (of the offense) a defendant’s
conviction satisfies,” even if “the actual conduct                   E.   Consecutive Sentences
described in the indictment could be construed to involve                 In United States v. Lynch, 378 F.3d 445 (5th Cir.
the use of physical force against the person or another,”            2004), the Court dealt with the issue of whether the
that determination is “ ‘irrelevant’ in determining whether          defendant, an armed career criminal, should have been
physical force is in fact an element of the offense.” Id.            sentenced to a concurrent as opposed to a sentence
See also United States v. Martinez-Mata, 393 F.3d 645,               running consecutive to an undischarged state sentence,
648 (5th Cir. 2004) (“Neither the facts in the indictment            wherein the state sentence “resulted from ‘offense(s)
nor the definitions of terms outside of the statutory                that have been fully taken into account in the
language are relevant in determining whether retaliation             determination of the offense level’ for the federal
is a crime of violence.”)                                            offense.” Id. at 447. The Court found that both state
      In United States v. Dominguez-Ochoa, 386 F.3d 639              and federal convictions arose out of “the same series of
   th
(5 Cir. 2004), the Court held that a conviction for                  events.” See U.S.S.G. § 5G1.3(b). Id. The case was
criminally negligent homicide, pursuant to § 19.04 of the            remanded, however, because although § 5G1.3(b) is
Texas Penal Code, does not constitute a “crime of                    mandatory, the district court could still decide to further
violence” under § 2L1.2 of the Sentencing Guidelines.                whack the defendant by upwardly departing, thereby, in
      In United States v. Calderon-Pena, 383 F.3d 254                effect, stacking the federal sentence to the state
(5th Cir. 2004), the Court held that a conviction for the            sentence. Id. See United States v. Rangel, 319 F.3d
offense or child-endangerment, proscribed by § 22.04(c)              710, 715 (5th Cir. 2003).
of the Texas Penal Code, does not constitute a “crime of
violence” for purpose of § 2L1.2. Again, the Court
confirmed that “[a]lthough the actual conduct proscribed
in the indictment could be construed to involve the use of
physical force against the person or another, that is
irrelevant for purposes of this case. Inquiry under ¶(l)
looks to the elements of the crime, not to the defendant’s
actual conduct in committing it.” Id. at 256. (Emphasis
in original).
      In United States v. Izaguirre-Flores, 405 F.3d 270
   th
(5 Cir. 2005), the Court held that the offense of “taking

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