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United States v. José Garza, United States Court of Appeals, 5th Circuit, Docket No. 12-40530

After an officer noticed that José Garza's truck matched a description given over dispatch, the officer stopped Garza in a tiny border town called Fronton, Texas (only 5 miles from the Rio Grande and the U.S.-Mexico border) when Garza tried to leave a gas station. This stop would lead to an alleged consensual search, which revealed undocumented aliens in the truck's flatbed.

Garza subsequently pled to trafficking aliens for financial gain, but he reserved the right to appeal his motion to suppress the search of his vehicle that resulted from the officer's Terry stop.

Although the information that lead to Garza's arrest was based on a CI, the Fifth Circuit never addressed the issue. Rather, the court relied on Brignoni-Ponce factors, concluding that the officer had enough information to support an inference of reasonable suspicion of criminal activity.

In border cases, like in all Terry cases, there must be "specific articulable facts" that form the basis for reasonable suspicion, not just a hunch.

While the Brignoni-Ponce case mentions eight factors, the Garza court notes that in considering the totality of circumstances of a near-border stop, it need only find a couple of the factors weighing in favor of the stop, not all.

The Fifth Circuit placed considerable importance on these factors:

1. The characteristics of the area. Fronton was known to have a high frequency of illegal drug and human trafficking activity.

2. Agent experience. The border agent had more than two years' experience in the Fronton area and knew the kind of traffic that passed through.

3. Proximity to the border. The gas station was only 5 miles from the U.S.-Mexico border; citing case precedent, the Fifth Circuit explained that "Anything less than 50 miles ... implicates the proximity factor."

4. The vehicle's appearance. Plywood boards are often used to hide illegal cargo and can be a sign of possible trafficking.

5. The driver's appearance. When the agent approached in his vehicle, Garza nervously finished pumping his gas and quickly moved into his vehicle, giving the agent reason to suspect his nervous evasive behavior."

Taken together, without mention of the CI's tip, the Garza court concluded there was reasonable suspicion for an investigatory stop.

The Martindale-Hubbell Law Directory has awarded attorney Stephen Hébert the peer review legal rating of AV-Preeminent (4.9 out of 5.0). Martindale-Hubbell peer review ratings are an objective indicator of a lawyer's high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary.

LexisNexis facilitates secure online Martindale-Hubbell Peer Review Ratings surveys of lawyers across multiple jurisdictions and geographic locations, in similar areas of practice as the lawyer being rated. Reviewers are asked to assess their colleagues' general ethical standards and legal ability in a specific area of practice. The ratings appear in all formats of the Martindale-Hubbell Law Directory, in the online listings on martindale.com, Lawyers.com, on the LexisNexis services, on LexisNexis mobile apps.

Martindale-Hubbell peer review ratings reflect a combination of achieving a very high general ethical standards rating and a legal ability numerical rating. A threshold number of responses is required to achieve a rating.

The general ethical standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities. Those lawyers who meet the "very high" criteria of general ethical standards can proceed to the next step in the ratings process - legal ability.

Legal ability ratings are based on performance in five key areas, rated on a scale of 1 to 5 (with 1 being the lowest and 5 being the highest). These areas are:

• Legal Knowledge - Lawyer's familiarity with the laws governing his/her specific area of practice(s)

• Analytical Capabilities - Lawyer's creativity in analyzing legal issues and applying technical knowledge

• Judgment - Lawyer's demonstration of the salient factors that drive the outcome of a given case or issue

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• Legal Experience - Lawyer's degree of experience in his/her specific area of practice(s)

The numeric ratings range may coincide with the appropriate Certification Mark:

• AV Preeminent (4.5-5.0) - AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence.

• BV Distinguished (3.0-4.4) - BV Distinguished is an excellent rating for a lawyer with some experience. A widely respected mark of achievement, it differentiates a lawyer from his or her competition.

• Rated (1.0-2.9) - The Peer Review Rated designation demonstrates that the lawyer has met the very high criteria of General Ethical Standing.

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.