In re: Application of the U.S. for Historical Cell Site Data, United States Court of Appeals, 5th Circuit, Docket No. 11-20884

The Government filed three applications under § 2703 of the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701-2712, seeking evidence relevant to three separate criminal investigations. On appeal, the issue before the court was whether court orders authorized by SCA to compel cell phone service providers to produce the historical cell site information of their subscribers were per se unconstitutional. The appellate court concluded that cell site data are business records and should be analyzed under that line of Supreme Court precedent. As such, the appellate court found that, since the magistrate judge and district court treated the data as tracking information, they applied the wrong legal standard. Using the "proper framework," the appellate court found that SCA's authorization of § 2703(d) orders for historical cell site information if an application meets the lesser "specific and articulable facts" standard, rather than the Fourth Amendment probable cause standard, was not per se unconstitutional. Further, as long as the Government met the statutory requirements, SCA did not give the magistrate judge discretion to deny the Government's application for such an order. Accordingly, the court vacated and remanded with instructions to grant the applications.

 

United States v. Marcus D. Hamilton, United States Court of Appeals, 5th Circuit, Docket No. 12-20250

Marcus D. Hamilton was charged with felony possession of a firearm and proceeded to trial. At trial, the Government was allowed to present testimony of Hamilton's alleged gang affiliation on the basis that it displayed a motive for Hamilton to possess of a firearm over Hamilton's objection. After a jury found Hamilton guilty as charged, he timely appealed. The Fifth Circuit reversed and remanded, concluding that the district court abused its discretion in admitting the testimony regarding Hamilton's alleged gang membership and the error was not harmless.

 

Dorsey v. Thaler, United State Court of Appeals, 5th Circuit, Docket No. 11-20682

At trial, Charles Ray Dorsey was convicted of murder; and, in turn, Dorsey subsequently appealed the district court's dismissal of his application for a writ of habeas corpus under 28 U.S.C. § 2254. The thrust of Dorsey's argument concerned the admission of a videotape into evidence to rebut Dorsey's version of facts. Notably, this video tape was created by a detective after the death of victim, and neither Dorsey nor his counsel was present at the time this tape was created. Nonetheless, the court concluded that, even had the state court unreasonably concluded that there was no Confrontation Clause violation, habeas relief could not be granted because Dorsey failed to make a showing of prejudice where the admission of the videotape at issue did not have a substantial or injurious effect on the outcome of the jury's verdict. Furthermore, Dorsey's claim of ineffective assistance of counsel during his intermediate appeal because counsel failed to make a Confrontation Clause argument related to the admission of the videotape also failed.

 

 

United States v. Cong Van Pham, United States Court of Appeals, 5th Circuit, Docket No. 11-50717

Cong Van Pham, who had no criminal record, was convicted of growing over seven hundred marijuana plants. Pham was a refugee from Vietnam who spoke no English and cultivated the marijuana in order to raise money to pay for his wife's medical treatment after she was diagnosed with a brain tumor. The district court sentenced Pham to 60 months in prison.

 

Pham appealed the denial of his 28 U.S.C. § 2255 motion where he alleged ineffective assistance of counsel based on his counsel's failure to consult with him about filing a direct appeal of his sentence. When sentenced, Pham was visibly upset at receiving a prison sentence instead of probation, indicating that a prison sentence would kill his wife who relied on his care. In addition, while his wife cried nearby at sentencing, Pham spoke with his counsel regarding his concern about getting 60 months and his desire to do something to get less time. Consequently, the Fifth Circuit concluded that Pham reasonably expressed an interest in an appeal immediately after he was sentenced and this triggered his counsel's duty to consult. Accordingly, the court reversed and remanded the matter for further proceedings.

 

On Friday, July 5, 2013, from 8 p.m until 2 a.m., the Jefferson Parish Sheriff's Office will conduct a sobriety and seat belt checkpoint in East Jefferson Parrish. The Sheriff's Office is not disclosing the location in advance.

 

Needless to say, drivers should never operate a motor vehicle while impaired, and their passengers should always wear their seat belts. Yet, if you are going out on the town Friday night, please use a designated driver or a cab. Also, please remember to buckle up.

 

People should always avoid driving while intoxicated or impaired.  But, that will especially be the case tomorrow night (i.e.- Thursday June 20, 2013) in New Orleans.  The New Orleans Police Department will conduct a sobriety checkpoint in Orleans Parish, beginning at approximately 9:00 p.m. and ending around 5:00 a.m.  Motorists will experience minimal delays and should have the proper documentation, , such as proof of insurance, driver’s license, registration, etc., available if requested.

 

United States v. Davila, 569 U.S. _____ (2013)

While being prosecuted for tax fraud, Anthony Davila wrote to the district court, expressing dissatisfaction with his court-appointed attorney because the attorney was advising Davila to plea guilty. Hence, Davila requested new counsel. A magistrate judge subsequently held an in camera hearing with Davila and his attorney with no representative of the prosecution present. At that hearing, the magistrate judge told Davila that he would not get another court-appointed attorney and that, given the strength of the prosecution's case, his best course was to plead guilty. Davila later pled guilty three months later to a conspiracy charge in exchange for dismissal of 33 other charges. Davila stated under oath at the time of his plea that he was not forced or pressured to enter the plea and did not mention the hearing. Before sentencing, however, Davila moved to vacate his plea and dismiss the indictment, asserting that he had entered the plea to force the prosecution to acknowledge errors in the indictment. The district judge denied the motion, finding the plea knowing and voluntary. The Eleventh Circuit held that the magistrate's violation of Federal Rule of Criminal Procedure 11(c)(1), prohibiting court participation in plea discussions, required automatic vacatur.

 

By a unanimous opinion by Justice Ginsburg (Justice Scalia filed an opinion concurring in part in which Justice Thomas joined), the Supreme Court reversed the Eleventh Circuit, noting that both Rule 11 and Rule 52(a), governing trial court errors in general, allow for harmless error analysis. The Court explained that vacatur of the plea is not in order if the record shows no prejudice to Davila's decision to plead guilty. Rule 11(c)(1) was adopted as a prophylactic measure, not one impelled by the Due Process Clause or any other constitutional requirement; so its violation does not belong in the highly exceptional category of structural errors, such as the denial of counsel of choice or denial of a public trial, that trigger automatic reversal because they undermine the fairness of the entire criminal proceeding. The Court further noted that three months had elapsed between the in camera meeting and Davila's appearance before the district judge who examined and accepted his guilty plea after an "exemplary" Rule 11 colloquy. Thus, in the absence of prejudice, the Court concluded that Davila's guilty plea should stand.

 

If you are going out in New Orleans tomorrow night (i.e.- Friday, June 14, 2013), please get your designated drivers lined up or use a taxi cab for transportation. The New Orleans Police Department will be conducting a sobriety checkpoint between 7 p.m. and 5 a.m. Motorists will experience minimal delays and should have the proper documentation, such as proof of insurance, driver's license etc. available, with them at all times.

 

 

Peugh v. United States, 569 U.S. _____ (2013)

Marvin Peugh was convicted in federal court in 2009 on five counts of bank fraud for conduct that occurred in 1999 and 2000.  Under the 1998 sentencing guidelines, his sentencing range was 30 to 37 months.  However, the sentencing guidelines were revised in 2009 and provided a range of 70 to 87 months for Peugh’s crimes.  Peugh argued that the Ex Post Facto Clause prohibited the passage of laws that impose a greater punishment than the punishment in effect when the crime was committed and required the court to sentence him using the earlier version of the guidelines.  Nevertheless, the district court rejected Peugh’s ex post facto claim and sentenced Peugh to 70 months in prison. The Seventh Circuit Court of Appeals affirmed.

 

By a 5-4 opinion by Justice Sotomayor joined by Justices Ginsburg, Breyer, Kagan and Kennedy (except as to Part III-C), the Supreme Court reversed, holding that sentencing a defendant to a longer term under guidelines promulgated after the commission of the criminal acts, violates the Ex Post Facto Clause. The Court rejected the government’s argument that the sentencing guidelines lack sufficient legal effect to have the status of “law” within the meaning of the Ex Post Facto Clause.  Thus, the existence of discretion does not displace the constitutional protections.

 

The Jefferson Parish Sheriff's Office has announced a DWI checkpoint for motorists at an undisclosed location on the East Bank of Jefferson Parish on Friday night (i.e. June 7, 2013) between 8 p.m. to 2 a.m.

 

Indeed, motorists should never drive while under the influence of alcohol or any other substance that could lead to impairment.

 

In any event, please remember to use a designated driver or a cab if you plan to be out on the town tomorrow night.

 

Maryland v. King, 569 U.S. _____ (2013)

Maryland police arrested Alonzo Jay King, Jr., in 2009 for first- and second-degree assault.  King was processed through a Wicomico County, Maryland, facility, where personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act, which authorizes officers to collect DNA samples from persons charged with violent crimes.  When the DNA data was added to the state’s database, it matched a prior set of DNA data collected in a separate, unsolved 2003 rape case.  King unsuccessfully moved to suppress the DNA match; and using the 2009 DNA match as evidence, a Maryland trial court convicted King of the 2003 rape.  The state’s highest court reversed King’s conviction, finding that the DNA evidence was improperly obtained during an unreasonable search.  The court deemed the search unreasonable and thus unconstitutional under the Fourth Amendment because King’s expectation of privacy was greater than Maryland’s interest in using his DNA to identify him.  Yet, the court upheld the constitutionality of the DNA Act overall.  

 

In an 5-4 opinion by Justice Kennedy joined by Chief Justice Roberts and Justices Alito, Thomas and Breyer, the Supreme Court reversed.  The majority reasoned that taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment when officers make an arrest supported by probable cause to hold and bring the suspect to the station to be detained in custody, for a serious offense.  The majority further explained that DNA testing involves minimal intrusion that may significantly improve both the criminal justice system and police investigative practices.  It is quick and painless and requires no intrusion beneath the skin.  When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving interests in properly identifying who has been arrested, ensuring that the custody of an arrestee does not create inordinate risks for staff, for the existing detainee population, and for a new detainee, and in ensuring that persons accused of crimes are available for trials.  Identifying an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned.  The majority also noted that the test does not reveal an arrestee’s genetic traits and is unlikely to reveal any private medical information.

 

But the four dissenting justices, Justice Scalia joined with Justices Ginsburg, Sotomayor and Kagan, said that the court was allowing a major change in police powers.  "Make no mistake about it: Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason," Justice Scalia said in a sharp dissent which he read aloud in the courtroom. "This will solve some extra crimes, to be sure.  But so would taking your DNA when you fly on an airplane -- surely the TSA must know the 'identity' of the flying public.  For that matter, so would taking your children's DNA when they start public school."  Scalia further questioned the majority’s assertion that DNA helps police identify suspects:  "The court's assertion that DNA is being taken, not to solve crimes, but to identify those in the state's custody taxes the credulity of the credulous.”

 

Trevino v. Thaler, 569 U.S. _____ (2013)

Carlos Trevino was convicted of capital murder in Texas state court and sentenced to death. Neither new counsel appointed for direct appeal nor new counsel appointed for state collateral review raised the claim that trial counsel provided ineffective assistance during the penalty phase by failing to adequately investigate and present mitigating circumstances. When that claim was finally raised in Trevino's federal habeas petition, the district court stayed proceedings so Trevino could raise it in state court. The state court found the claim procedurally defaulted. The federal court concluded that this failure was an independent and adequate state ground barring federal courts from considering the claim. The Fifth Circuit affirmed. The Supreme Court vacated and remanded.

 

The Supreme Court held, in Martinez v. Ryan, that "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State's] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez concerned a prisoner from Arizona, where state law required the prisoner to raise the claim during his first state collateral review proceeding. Texas law does not require a defendant to raise his ineffective-assistance claim on collateral review and the Fifth Circuit subsequently held that Martinez was inapplicable to Texas cases. Where, as here, state procedures make it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective-¬assistance-of-trial-counsel claim on direct appeal, the Martinez exception applies. Texas procedures make it nearly impossible for an ineffective-assistance claim to be presented on direct review; a writ of habeas corpus is normally needed to gather the facts necessary for evaluating such claims. Were Martinez not to apply, the Texas procedural system would create significant unfairness. The Court noted Texas courts' own "well-supported determination that collateral review normally is the preferred procedural route for raising an ineffective-assistance-of-trial-counsel claim." Failure to consider a lawyer's "ineffectiveness" during an initial-review collateral proceeding as a potential "cause" for excusing a procedural default will deprive the defendant of any opportunity for review of an ineffective-assistance-of-trial-counsel claim.

 

Drivers should always avoid drinking and driving. Nonetheless, if you are going out tonight in New Orleans, please be particularly sure to either use a designated driver or simply call a cab.

 

The New Orleans Police Department will be conducting a sobriety checkpoint tonight (i.e.- Friday May 24, 2013) in Orleans Parish, beginning at approximately 9:00 P.M. and will conclude at approximately 5:00 A.M. Motorists will experience minimal delays and should have the proper documentation available if requested (i.e.- proof of insurance, driver's license, etc.).

 

 

United States v. Andrew Kelly, United States Court of Appeals, 5th Circuit, Docket No. 12-30936

After Andrew Kelly pled guilty to possession with intent to distribute fifty (50) grams or more of cocaine base substance and possession of a firearm during a drug-trafficking offense, he appealed his sentence arguing that, pursuant to 18 U.S.C. 3582(c)(2), he was entitled to benefit from all of the changes wrought by the Fair Sentencing Act (FSA), Pub. L. No. 111-120, 124 Stat. 2372. As such, Kelly contended that the district court erred in declining to reduce his sentence below the original mandatory minimum sentence of 10 years. However, other courts had previously ruled that where a defendant was subject to a 10-year mandatory minimum sentence, the district court was not authorized to grant a reduction below that minimum. In light of this persuasive authority, the Fifth Circuit declined to treat a section 3582(c)(2) modification hearing as the equivalent of an original sentencing under Dorsey v. United States. Accordingly, the court affirmed Kelly's sentence.

 

State of Louisiana v. Timothy Bazile, Supreme Court of Louisiana, Docket No. 2012-KA-2243

Timothy Bazile was indicted by a grand jury for the second degree murder of his wife, Kendra. On May 18, 2011, the district court first set an October 3, 2011 trial date and notice was given to Bazile and his counsel in open court. Bazile subsequently attempted to waive his right to a jury trial after a colloquy with the district judge at a hearing on September 19, 2011. However, the State objected, arguing that Bazile's waiver was made in less than forty-five days prior to trial in violation of an newly enacted amendment to the Louisiana Constitution, La. Const. art. I, sec. 17(A). The district judge made no ruling on the State's objection at that time.

 

On the first day of trial, Bazile asked for a continuance on the ground that the State had failed to fully comply with discovery requests. Overruling the State's objection, the district court set a new trial date of October 11, 2011. Further, giving effect to Bazile's September 19, 2011 jury trial waiver, the new trial was set to proceed before the district judge alone without a jury. The State again objected, arguing the Bazile failed to waive trial by jury within the required time limitations under La. Const. art. I, sec. 17(A). In an attempt to overcome the State's objection, Bazile offered to re-set trial beyond forty-five days from the earlier waiver. But, the State objected to this offer as well, arguing a continuance does not extend the forty-five day period. It was the State's position that, whenever Bazile's trial was held, the mode of trial would be a trial before a jury because the forty-five day period contemplated by La. Const. art. I, sec. 17(A) had already run before the original October 3, 2011 trial date. The district judge ruled that Bazile had a right to waive a jury trial at any time before trial under the federal constitution; and, in turn, the Louisiana constitutional provision which imposed limits on that right was unconstitutional. The State sought a writ for review but was given no relief from the First Circuit Court of Appeal. The State then applied to the Louisiana Supreme Court for review.

 

After its review of the record, the Louisiana Supreme Court concluded the constitutionality of La. Const. art. I, sec. 17(A) was raised by the district court sua sponte, not the parties. When the matter was once more before the district court, Bazile did file a "Motion to Declare Constitutional Amendment Unconstitutional," claiming La. Const. art. I, sec. 17(A), as amended in 2010, violated the United States Constitution. Nonetheless, the Louisiana Supreme Court found that, since there is no explicit or implicit federal or state constitutional right to demand trial before a judge sitting alone, the district court's ruling was erroneous. Accordingly, the Louisiana Supreme Court reversed and remanded the case for further proceedings.

 

State of Louisiana v. Giovanni Brown, Supreme Court of Louisiana, Docket No. 2012-KP-0872

The Louisiana Supreme Court granted certiorari in this case to consider whether the United States Supreme Court's decision in Graham v. Florida, 130 S.Ct. 2011 (2010), applied in a case in which the juvenile offender committed multiple offenses resulting in cumulative sentences matching or exceeding his life expectancy without the opportunity of securing early release from confinement. Giovanni Brown, 29, was serving mandatory life in prison for a Jefferson Parish aggravated kidnapping conviction, and another 40 years for his convictions of four armed robberies, which were originally set to run consecutively. Brown committed the crimes in 1999, when he was 16 years old.

 

After Graham v. Florida, Judge Robert Murphy of the 24th Judicial District Court ruled last year that Brown is eligible for parole for the aggravated kidnapping conviction. Yet, Judge Murphy also took the Graham's mandate a step further and applied it to Brown's 40-year sentence for the armed robberies, making Brown eligible for parole at age 46. Without the extension of Graham's mandate, Brown would not be eligible for parole until he is 86 years old. Judge Murphy stated: "To impose 40 years of additional time without benefits after a parole review of a life sentence would effectively negate Graham's ultimate directive to provide an opportunity for rehabilitation for the juvenile." The Jefferson Parish District Attorney's Office appealed and argued its position to the Supreme Court of Louisiana in December 2012.

 

Having reviewed the record and the applicable law, the Louisiana Supreme Court found Graham's holding that the Eighth Amendment's prohibition of cruel and unusual punishment forbids the imposition of life in prison without parole for juveniles committing non-homicide crimes, applied only to sentences of life in prison without parole, and did not apply to a sentence of years without the possibility of parole. Therefore, the Louisiana Supreme Court reversed the decision of the trial court, which amended Brown's four 10-year sentences for four armed robberies.

 

Prior to passage by Louisiana's citizens, Amendment 2 to the Louisiana Constitution pitted Governor Bobby Jindal and New Orleans District Attorney Leon Cannizzaro against one another, with Jindal in favor of the Amendment and Cannizzaro in opposition.  Seventy-four percent of Louisiana's citizens apparently sided with Jindal, voting in favor of Amendment 2 in November 2012.  As a result, criminal defendants have begun challenging the constitutionally of many of Louisiana’s gun laws just as Cannizzaro warned.  Attorney Stephen Hébert recently published an article in Attorney at Law Magazine on this issue, which presently appears headed to the Louisiana Supreme Court.  Click here to read the full article, New Orleans District Attorney Leon Cannizzaro: I told you so?

 

Moncrieffe v. Holder, 569 U.S. _____ (2013)

Adrian Moncrieffe, a Jamaican citizen, entered the United States legally in 1984 when he was three (3) years old. During a 2007 traffic stop, police found 1.3 grams of marijuana (i.e. the equivalent of approximately two (2) or three (3) marijuana cigarettes) in Moncrieffe's car. Thereafter, Moncrieffe pleaded guilty under Georgia law to possession of marijuana with intent to distribute marijuana.

 

This conviction would later lead to other consequences for Moncrieffe. Under the Immigration and Nationality Act ("INA"), a noncitizen convicted of an "aggravated felony" is deportable, 8 U.S.C. § 227(a)(2)(A)(iii), and ineligible for discretionary relief. The INA lists as an "aggravated felony" "illicit trafficking in a controlled substance," including conviction of an offense that the Controlled Substances Act ("CSA") makes punishable as a felony (i.e.- by more than one year's imprisonment). A state conviction is a felony punishable under the CSA only if it involves conduct punishable as a felony under federal law. Possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. § 841(a), punishable by up to five years' imprisonment.

 

Citing the INA and the CSA, an immigration judge ordered Moncrieffe removed from the United States. The Board of Immigration Appeals subsequently affirmed, and the Fifth Circuit Court of Appeals denied a petition for review, rejecting Moncrieffe's reliance on § 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration.

 

Rejecting the government's contention that that § 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense, the Supreme Court reversed and remanded. The Court employed the "categorical approach," examining what the state conviction necessarily involved and not the facts underlying the case. Since a conviction under the Georgia's statute, alone, did not reveal whether either remuneration or more than a small amount was involved, Moncrieffe's conviction could correspond to either the CSA felony or the CSA misdemeanor. The Court also found that the government's proposal that noncitizens be allowed, during immigration proceedings, to demonstrate that their convictions involved only a small amount of marijuana and no remuneration was inconsistent with the INA's text and the categorical approach and would unduly burden immigration courts and the noncitizens involved. The Court further explained that escaping aggravated felony treatment does not necessarily mean escaping deportation, because any marijuana distribution offense renders a noncitizen deportable as a controlled substances offender, but with an opportunity seek relief from removal. Accordingly, the Court held that, if a noncitizen's conviction for marijuana distribution fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA.

 

Missouri v. Tyler McNeely, 569 U.S. _____ (2013)

Missouri police stopped Tyler McNeely's truck for speeding and crossing the center line. Thereafter, McNeeely declined to take a breath test to measure his blood alcohol concentration ("BAC"). McNeeely was then arrested and taken to a hospital. McNeely refused to consent to have his blood drawn at the hospital, but the officer directed a lab technician to take a sample of McNeely's blood, without any attempt to secure a search warrant. McNeely's BAC tested above the legal limit; and, in turn, McNeely was charged with driving while intoxicated.

 

The trial court held that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely's blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency; consequently, the test results were suppressed. The Missouri Supreme Court later affirmed.

 

Declining to announce a per se rule, the U.S. Supreme Court looked to the "totality of circumstances." The Court found that blood testing is different in critical respects from other destruction-of-evidence cases because BAC evidence naturally dissipates in a gradual and relatively predictable manner. Since an officer must typically obtain a trained medical professional's assistance before having a blood test conducted, some delay between the time of the arrest and time of the test is inevitable regardless of whether a warrant is obtained. As such, the Court stated that circumstances may make obtaining a warrant impractical such that dissipation will support an exigency, but such analysis should nonetheless be done on a fact specific, case by case basis. Therefore, the Court held that, when officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. In light of the specific facts of McNeely's case, the Court affirmed the trial court's suppression of the test result.

 

United States v. Richard Scruggs, Untied States Court of Appeals, 5th Circuit, Docket No. 12-60423

Richard "Dickie" Scruggs, an attorney and brother-in-law of Senator Trent Lott, was convicted in connection with a bribe of a state circuit court judge in a lawsuit involving a fee-sharing dispute with his co-counsel (the "Wilson Case"). More particularly, Scruggs offered to recommend the judge to Lott for a federal district court judgeship in exchange for the judge's help in winning the Wilson Case. Scruggs appealed from the denial of his 28 U.S.C.§ 2255 motion. However, the U.S. 5th Circuit Court of Appeal concluded that Skilling v. United States, which addressed the constitutionality of the honest-services statute (i.e.- 18 U.S.C. § 1346), had no effect on the district court's subject matter jurisdiction over Scruggs' guilty plea. Scruggs had shown neither his actual innocence of post-Skilling honest-services fraud nor that there was cause and prejudice for failing to raise a constitutional-vagueness challenge to § 1346. Accordingly, Scruggs procedurally defaulted on his claim and the district court correctly denied his § 2255 motion. The appellate court also rejected Scruggs' First Amendment overbreadth challenge to § 1346. Accordingly, the U.S. 5th Circuit Court of Appeal affirmed Scruggs' conviction.

 

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