People should never drink and drive.  Nonetheless, please be especially sure to rely on a designated driver or cab service if you plan to be out on the town tonight in New Orleans.


On Thursday, August 14, 2014, the New Orleans Police Department will conduct a sobriety checkpoint, in Orleans Parish on Thursday, August 14, 2014, 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.

In an article recently published by the New Orleans Edition of Attorney at Law Magazine, Criminal Defense Lawyer Stephen Hébert weighs in on marijuana reform in Louisiana.  The full article, Tough on Crime or Smart on Crime?, can be read here.


In the latest issue of the Greater New Orleans Edition of Attorney at Law Magazine, Todd Knight wrote an interesting piece concerning the personal background and practice of criminal defense attorney Stephen Hébert.



Read the article here.


Stephen D. Hébert has been named by New Orleans Magazine as one of New Orleans' top lawyers in personal injury litigation for 2013.


Read the full story here at


State of Louisiana v. Darryl Tate, Supreme Court of Louisiana, Docket No. 2012-OK-2763


In this case, the Louisiana Supreme Court addressed whether Miller v. Alabama, 567 U.S. __ (2012) applied retroactively in state collateral proceedings. Darryl Tate was a juvenile convicted of second degree murder, and, as such, was sentenced to mandatory life without the possibility of parole. His conviction became final in 1984. But, in light of Miller v. Alabama, Tate filed a motion seeking re-sentencing.


The trial court denied his motion. However, the court of appeal granted writs, remanding the matter for a sentencing hearing. The Louisiana Supreme Court then granted writs to address the retroactivity of Miller to those juvenile homicide convictions final at the time Miller was rendered. Upon review, the Louisiana Supreme Court found Miller did not apply retroactively in cases on collateral review as it merely set forth a new rule of criminal constitutional procedure, which is neither substantive nor implicative of the fundamental fairness and accuracy of criminal proceedings. Therefore, the Louisiana Supreme Court reversed the ruling of the court of appeal and reinstated the ruling of the trial court.


Attorney at Law Magazine just published an article written by Stephen Hébert, concerning expunging a misdemeanor conviction under Louisiana law.  The article, Expunging the Misdemeanor Conviction: No Article 894? No Problem, discusses expungement procedures both with and without an Article 894 deferral.  Click here to read the full article.


State of Louisiana v. Anthony Thomas, Supreme Court of Louisiana, Docket No. 2012-KP-1410

At a jury trial for the offense of aggravated burglary, Anthony Thomas was convicted of the responsive verdict of attempted aggravated burglary. Thereafter, the State of Louisiana filed a multiple offender bill and Thomas was adjudicated to be third offender, thereby requiring a mandatory life sentence. However, this conviction was later reversed due to the prosecutor's indirect reference to Thomas' failure to testify. In 2002, the matter was re-tried. Thomas waived the jury and was convicted by the court of the responsive verdict of unauthorized entry of an inhabited dwelling. The State, once again, filed a multiple offender bill; and, as a result, Thomas was sentenced to a mandatory life sentence.


After Thomas exhausted his direct appeals, he filed an application for post-conviction relief alleging ineffective assistance of counsel and/or double jeopardy. More particularly, Thomas argued that, since the jury in the first trial found him guilty of only a responsive verdict of attempted aggravated burglary, he was effectively acquitted on the aggravated burglary charge and should not have been tried for second time for the same offense. As such, Thomas argued that his counsel should have filed a motion to quash prior to the commencement of the second trial. The trial court granted the Thomas' application and the State sought appellate review. The Louisiana Supreme Court reversed.


While the Louisiana Supreme Court found that trial counsel's performance fell below the objective standard, the court also found no prejudice because Thomas was ultimately convicted of an offense that was not barred by double jeopardy. Therefore, the Louisiana Supreme Court concluded that Thomas did not satisfy the "Strickland" standard and that it was in error to grant Thomas post-conviction relief.



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,, 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

• Communication Ability - Lawyer's capability to communicate persuasively and credibly

• 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.



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.”


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