Sherman Criminal Lawyer Blog

The age old question about whether to consent to a DWI breath or blood test is still the question many people who socially drink and fear a DWI investigation want answered, particularly now that they read in the news that cops will forcefully draw their blood if they refuse. The answer in most situations is still "NO", for several reasons.

First, the breath machine (intoxilyzer machine) has serious reliability issues. Texas still uses the outdated intoxilyzer 5000 machine, although there are numerous better quality machines on the market, in order to save money on machines and parts. The machine assumes that every person has the same breath to blood ratio (X amount of breath equals Y amount of blood, which actually varies greatly). Additionally, simple things like breath temperature, temperature of the machine, proper calibration, etc. can lead to an unreliable result. Also, mouth alcohol could greatly increase the number. Thus, I can see very few circumstances, unless you have not been drinking at all, to consent to a breath test. There are too many scenarios in which you can be under the legal limit, but blow over the legal limit. (Plus, if you are over the legal limit, all you are doing is giving them a "scientific" piece of evidence that will be very damaging to you in court).

The harder question is whether to consent to a blood test now that blood warrants have become so common. A few years ago, blood warrants were unheard of because they were extremely rare in the DWI world. Back then, the officer asked for consent, and you either gave it or you didn't. Your refusal could and still can be used against you, and that is how they investigated and prosecuted driving while intoxicated cases, using video evidence and field sobriety tests along with the refusal.

Now, officers are trained to get blood warrants, i.e. if they have probable cause to arrest you for driving while intoxicated, and you refuse to voluntarily provide a breath or blood test, they can write out a sworn affidavit and get a judge to sign a search warrant based on the affidavit. In Grayson and Fannin County this has become the common practice, so if you refuse a test they will almost certainly get a search warrant for a blood specimen. The hospitals, who always want to be in good with law enforcement and the district attorney's office so they can get more business from the counties, routinely assist law enforcement in these forced blood draws even though they conflict with their oath to not do things harmful or not medically necessary.

So, knowing this, should you consent to a breath or blood test at the time the officer asks? In most situations, almost all, you should refuse. First, they will be using a DPS blood draw kit that has been sitting in the back of the officers car in the Texas heat for the last six months, and it relies on a rubber seal for its integrity. The person drawing your blood will not be a doctor or nurse but probably a phlebotomist (technician) whose last job was at Dairy Queen or somewhere similar. They will give the blood sample back ot the officer who may let it sit in his evidence locker for weeks or months fermenting. Second, when they draw your blood, they will not be looking for just alcohol, but any prescription medication you may be taking. This will put you on the defensive if you take medication, because you will need an expert to come into court and battle the State's argument that, even if you were below the legal limit, the "synergistic effect" of the drugs and alcohol made you intoxicated. You can be intoxicated on prescription drugs alone, and they will argue this. Third, the State is again just trying to get evidence to be used against you. They already believe you are guilty or they wouldn't have arrested you. Blood alcohol levels spike and valley, and chances are that if you consent to a test, it will be taken much quicker than a test where the officer has to get a warrant. Thus, your blood alcohol level will likely be lower on a warrant test.

Again, they can prosecute you for driving while intoxicated no matter what your blood alcohol test reads, so what do you really have to gain by providing a chemical test?

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

The base offense level for a prohibited person in possession of a firearm is relatively low. Advisory Sentencing Guideline 2k2.1 calls for a base offense level of 14 if a person is prohibited by law from firearm possession, which along with a 3 point reduction for acceptance of responsibility yields an advisory base offense level of 11. With no criminal history (category I), that is an advisory guidelines range of 8-14 months in the federal penitentiary.

A common guidelines enhancement, however, is a 4 point enhancement for possession of the firearm "in connection" with another felony offense, which is large for an offense conduct enhancement. Courts have interpreted this enhancement very broadly, so if one were possessing felony drugs at the time of the firearm offense, or committing felony evading arrest, or committing any other felony offense in which a firearm would conceivably contribute, this enhancement applies. These 4 points alone could bump an 8-14 sentence to an 18-24 month sentence, more than doubling the lower end of the guidelines. These 4 points are even more costly for people with higher guidelines ranges.

Also, the price of poker goes up higher if you have one or two previous convictions for a "controlled substance offense" (drug delivery or possession with intent to deliver etc), or a "crime of violence" (a crime involving the use, attempted use or threatened use of physical force, or burglary of a dwelling, arson, extortion, uses explosives, or other conduct that presents serious risk of physical injury). One prior conviction for a crime of violence or controlled substance offense raises the base offense level to 20. Assuming a criminal history II category, although its likely to be III or higher, this yields a base sentencing range of 27-33 months, 30-37 months if category 3. (Assuming acceptance of responsibility points). Two prior convictions for a crime of violence and/or a controlled substance offense raises the base offense level to 24. At criminal history level III that yields a range of 46-57 months, 57-71 months for a category IV, and 70-87 months for a category V.

If you have three or more convictions for controlled substance offenses or crimes of violence, you are considered an "Armed Career Criminal" under section 924 and face a 15 years to life charge. If you possess a firearm "in connection with" a drug trafficking offense, you face a minimum five years which must run consecutive (be stacked on top of) any other sentence. The feds are making the price extremely steep for firearms offenses, so it is very important to hire a lawyer who is highly experienced in federal court and understands the statutes and guidelines.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Lawyer Micah Belden at 903-744-4252.

My two oldest nephews and six of their friends came out and wanted to learn basketball, and drew me as their coach for better or worse. I felt bad when I was too hard on them at times (although I was too easy at others), but they all gave a ton of effort for three months and became one unit. Before our first game, only one had really experienced winning basketball to my knowledge, but by the end they had each taken part in a winning season and we had all advanced tremendously experience-wise. My defensive pride made me teach them man to man defense, which is particularly difficult at a young age due to its requirement of divided attention. In man to man, kids must master focusing on the ball and on their man, never losing sight of or position in relation to either. To see them play this defense very, very well for their age by the end of the year was a real blessing. Along with mastering other parts of the game, it showed how hard they worked and how serious they took basketball. I hope they continue to do so, as they have the foundation talent wise to be very special throughout their school years.
The thing I wish I could have done better this year was to relate more to the kids on their level. I took a "Hoosiers" approach to coaching, as that is the only style I have seen work well consistently in basketball. Sometimes I tried coaching them too much like high schoolers and not like the young kids they were, but for the most part they responded positively to what I was teaching and why I did what I did. Hopefully they learned as much as I did this season.

In life, what I learned on the basketball court has had a whole lot to do with becoming the lawyer and person I am today. I hope these kids learn the same lessons about success and overcoming adversity. The hours of basketball practice and the hard work in the weightroom made a huge difference on the court, so I learned the value of hard work early. I also learned the power of focusing on doing a couple things - defense and rebounding - really well, and that it would dramatically improve the team and my value to the team. We are all role players in our several stations in life. In my law practice, I still focus on doing the everyday, hustle plays, as well as I can. There is no substitute for hard work and preparation in any given career, especially preparing cases for trial. Also, in basketball anyone can win, especially if they give the effort, particularly when an opponent underestimates you, doesn't prepare well for you, or doesn't adjust to the things you do well. Victory is often just a little hard work and a few good decisions away.

This year I had the privilege of coaching eight young men in 5th and 6th grade basketball. I thought that I would descend from the clouds and teach them everything there is to know about basketball, but I believe that I learned a whole lot more about coaching, teaching and humanity through this experience than I was probably able to give back. It was very special to see eight kids learn how to play as one unit, play for each other, and overcome adversity and the ups and downs of a serious basketball season, eventually firing on all cylinders together up and down the basketball floor. This was a special group of kids and part of a special class group at their small town school, and they will achieve big things in the future.

Although I have strayed from the game, basketball was my passion in high school and going into college. I was fortunate to be a part of a special class group at Howe that included some very talented basketball players, and was blessed myself with the gift of height (although I would have appreciated some athletic skill to go along with it). I went from a very skinny 6' 3"-6' 5" sophomore and junior (6' 5" 165 to be exact, kind of like a stick of spaghetti), to being a more rounded 6' 8" senior. What I lacked in weight and athleticism, I had to make up for in hard work and discipline, the latter always being toughest at that tough age. I focused on rebounding and defense, and went from being a bench player to getting a few (very, very few) college looks and having some potential to play at the next level. Fortunately, my academics were always well ahead of my athletics, and I did far better at A&M scholastically than expected. So, basketball became history as I pursued my law career.

I had forgotten much of my love of the game and the reasons I loved basketball so much. One thing I loved is that in basketball, effort is a force multiplier. My competitive nature means that effort is usually not in short supply. While effort can help some in baseball (my first love as a kid), mostly in preparation, baseball is a one-on-one, linear skill sport. You either have it or you don't. I gave a lot of effort in baseball and did well at a young age, but I quickly grew too tall and skinny to play my beloved catcher position. In football, effort goes a longer way, but it is still very much eleven players playing one-on-one with the guy lined up to attack them. In basketball, five players must learn to move together in harmony as one unit, and it almost becomes like music to see true team basketball.

The "prohibited person" statute under federal law, defining who can possess a firearm and who cannot, is pretty straight forward. You will be surprised to learn the many classes of people who cannot possess a firearm, not just convicted felons. If you meet one of these categories, it is a federal felony to possess a firearm or ammunition. I usually don't copy and paste whole statutes, but the statutes are pretty straight forward. 18 U.S.C. 922(g) states, with the assistance of my commentary in caps and parentheses, that:

(g) It shall be unlawful for any person--
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (A CONVICTED FELON)
(2) who is a fugitive from justice; (YOU ARE AVOIDING A COURT ORDER OR HAVE A WARRANT FOR ARREST)
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); (YOU ARE CHEMICALLY DEPENDENT ON UNLAWFUL DRUGS)
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; (A COURT HAS FOUND YOU MENTALLY INCOMPETENT OR YOU HAVE BEEN INVOLUNTARILY COMMITTED TO A MENTAL HOSPITAL)
(5) who, being an alien--
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26))); (YOU ARE ILLEGALLY IN THIS COUNTRY)
(6) who has been discharged from the Armed Forces under dishonorable conditions; (SELF EXPLANATORY)
(7) who, having been a citizen of the United States, has renounced his citizenship; (YES THEY ACCEPT RENUNCIATIONS AND TREAT THEM ACCORDINGLY)
(8) who is subject to a court order that--
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; (YOU ARE UNDER A PROTECTIVE ORDER REGARDING VIOLENCE)
or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (YOU HAVE BEEN CONVICTED OF ASSAULT FAMILY VIOLENCE).

Additionally, 922(n) states: (n) It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (IF YOU ARE CHARGED WITH A FELONY OR ON DEFERRED ADJUDICATION, YOU CANNOT TRANSPORT OR RECEIVE A FIREARM ETC.)

As you can see, Congress has restricted the gun rights not only of convicted felons, but of nine classes of persons in this broad sub-statute alone. Punishment for possessing a firearm or ammunition (or other destructive device) starts at 0-10 years for someone who is a prohibited person as outlined above, but not subject to further enhancement. Firearms prosecution is a priority area for the federal government, and has been since the Clinton administration. These laws are enforceable despite state laws which are more lenient on who can possess a firearm.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

Not to be outdone by the wisdom of the Oklahoma Legislature, our braniacs in Austin last year enacted "aggravated" driving while intoxicated provisions similar to the Sooner state, whereby a first time offender now faces a year in jail if the person 1) commits the offense of driving while intoxicated, and 2) "If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed." The offense is enhanced from a Class B to a Class A misdemeanor.

This is problematic in several respects. First of all, a year punishment range (one day short of the Federal definition of a felony) for a first time, no property damage or injury driving while intoxicated is simply ridiculous. Driving while intoxicated is one of the only offenses above a traffic ticket level that has no mental state. I.e. a person does not have to intentionally, knowingly, recklessly or with criminal negligence drive while intoxicated. If you are driving and you are intoxicated (either with a blood alcohol level above .08 or by not being normal due to alcohol or a drug or a combination thereof), you are committing a crime and face the 180 days in jail and $2,000 fine, both of which can be probated for two years. Many good people are arrested for driving while intoxicated for having one drink too many, or because the arresting officer was less competent in his detection skills than he should be.

Now, if you are arrested for driving while intoxicated and cooperate with law enforcement, and the state's highly unreliable intoxilyzer machine, or a blood test performed by someone who was working at Dairy Queen a few weeks ago, shows a .15 alcohol concentration at the time of the test, not the time of driving, you are punished twice as harshly. Notice, this new law does not require you to be .15 or above at the time of driving, only that your test reveal a .15 or above at the time of testing.

The flaws of alcohol concentration testing are numerous. The difference in breath and body temperature, lung capacity, the temperature and calibration of the machines doing the testing, the competency of the operator doing the testing, and many other factors can cause a falsely high number - a dramatically high false number, on a chemical test.

This legislation is just further reason why you should JUST SAY NO to breath or blood testing at the request of a police officer who is testing you for intoxication. You have little to gain and very much to lose - your license, your freedom, and now double the loss of your freedom if the test is above a .15.

Mr. Hurd will have a tougher time in his detention hearing and his case because, by his own statements reported to the media, he is the man in charge of his conspiracy. The primo hombre, so to speak. The Federal sentencing scheme punishes this as a "leadership role," which normally increases the amount of time one does in the penitentiary and can block one of the few four-leaf clovers in the Sentencing Guidelines, the "safety valve." (It was reported that Mr. Hurd stated "...his co-conspirator is in charge of doing the majority of the deals as HURD focuses on the 'higher-end' deals. HURD subsequently inquired if the UCA (undercover operative) and the CI (confidential informant involved in the case) could provide him with Mexican cellular telephones, as HURD believed that law enforcement did not have the capability of 'listening' to Mexican telephones.") I have no knowledge of Mexican cellular phones, and won't attempt to go there.

The "safety valve" Guidelines provision allows a person to be sentenced to their actual guideline range, despite the mandatory minimums, if they meet certain criteria - i.e. no gun was involved and nobody got hurt, the person has virtually no previous criminal history, did not act in a leadership role, the person offers to speak with the government about all information you know about the case (an offer is enough, even if the government doesn't take you up on it). This can make a big difference if the advisory Guidelines Range, which judges are not required to follow anymore but do normally follow, comes out around seven years. The "safety valve" allows the judge to go below the ten year minimum and sentence a person to seven years rather than being obligated by statute to sentence him to the ten year minimum.

The trump-card I am waiting to see the Feds play is them moving his case to the Eastern District of Texas, Sherman Division. Since acts in his case occurred in Dallas and likely moved through the Eastern District to Chicago, the Feds could (like they do in most cases), forum shop Mr. Hurd to the Eastern District, where it is far more likely that he would get an all-white jury on his case. However, I bet the Northern District of Texas keeps his case so they can look like they are doing something relative to the backlogged dockets of the Eastern District, a choice forum for prosecution if there ever was one.

Wide receiver Sam Hurd, a well-liked player whose hard work earned him a roster spot on the Dallas Cowboys a few years ago, and eventually landed him a $5.1 million contract with the Chicago Bears, decided to risk it all by investing his money not in the fickle stock market but in cocaine and marijuana. Now, according to the amounts of drugs being discussed on Yahoo and the Dallas Morning News, Mr. Hurd is facing ten to life in the Federal penitentiary for conspiring to distribute five kilograms or more of cocaine in the Northern District of Texas and elsewhere. The five kilograms of cocaine is an important amount as it triggers the mandatory minimum of ten years imprisonment (and up to life).

Mr. Hurd will most likely face a detention hearing in the next few days, at which he will almost certainly be detained due to the (relatively) large drug amounts. In Federal court, it is presumed that if you are dealing with an amount of drugs large enough to trigger the mandatory minimum statutes, that you are a danger to society and bond will be denied. This presumption can be rebutted by clear and convincing evidence to the contrary, which occasionally happens but it is the exception not the rule.

In 1991, thirteen years after his original conviction and death sentence, the Supreme Court reversed his conviction due to illegal psychiatric testimony. Although a blatant violation of the right to remain silent and the right to counsel, the prosecution arranged for Mr. Cook to be interviewed by a State psychiatrist in the months following his arrest, the idea being that this psychiatrist would come in and testify that Mr. Cook was a continuing danger to society and needed to die. The second trial resulted in a hung jury. The prosecution tried Mr. Cook a third time and received a second death sentence in 1994, but this conviction was overturned in 1997.

In 1999, DNA from semen found on the victim's clothing completely eliminated Mr. Cook as a possible assailant. Rather than admit their wrongs and dismiss the case in the interest of justice, prosecutors required Mr. Cook to plead "no contest" to the killing, which he did to get out of prison and avoid another trial. He is currently seeking a pardon from the State of Texas, which he certainly deserves. Above being innocent, Mr. Cook endured three trials, abhorrent prosecutorial misconduct, twenty odd years on death row and once coming within 11 days of execution. Justice and prosecution politics generally do not mix well together.

The case of State of Texas v. Kerry Max Cook, the twenty year series of trials and appeals in which the State of Texas through the Smith County District Attorney's Office (Tyler, TX), continually lied, knowingly presented perjured evidence, and did everything evil that rogue prosecutors are able to do, is a tale of one brave individual who survived it all and lives to tell about it today. Tried in 1978 and convicted on the false testimony of a jailhouse snitch, whose motive for testifying - a 2 year sentence in his own murder case - was withheld from the defense, who was personally coached by the prosecution into testifying to a detailed false confession, together with a false opinion of a state "expert" who claimed to be able to judge the age of fingerprints on a door, and the hiding of evidence by the prosecution of exculpatory evidence including evidence that Kerry Cook had been invited to the victim's apartment three days earlier (which explained his fingerprints), were all part of an evil recipe to convict and kill a young boy for the sake of prosecution politics and statistics. Justice be damned.

I wish I could tell you the entire story, but instead I encourage you to read the story of Mr. Cook as only he can tell it, in his book Chasing Justice. It details the investigation and defense of his case, and the sordid details of life on death row as a young boy from East Texas. Mr. Cook vividly details being sexually assaulted in prison and life in Texas prisons in the late 70s and 80s. His appeal sat on the dockets of the Texas Court of Criminal Appeals (where death penalty appeals are directly sent to speed up the killing process), for eight years. Yes, eight years went by before his first appeal could be heard and he could proceed to the United States Supreme Court. Although the Dallas Morning News and other investigative journalists tracked down the "jailhouse snitch," who admitted that his testimony was a total fabrication.

The convict-at-all-costs mentality that surrounds these cases is why many defense lawyers will tell you that aggravated sexual assault of a child trials have become the Salem Witch trials of modern times. One on trial in Texas for aggravated sexual assault of a child might as well be on trial in 17th century Salem, Massachusetts for the charge of consorting with Satan. One's friends, neighbors and even family often come in and bear false witness against the accused for whatever motive or because they believe the child, and when the accused speaks in his defense, well we would expect someone consorting with Satan to deny that they were consorting with Satan.

The State will argue that we should expect no hard evidence or eyewitnesses because we would expect such perpetrators to do their deeds in secret with nobody around, because nobody consorting with Satan would allow there to be any witnesses to their crime lest they reveal themselves as evil doers. So we shouldn't expect any evidence in such cases except the testimony of young children, and we all know that children do not lie (even when a parent prompts them to do so) (in fact, research indicates that a supermajority of children under 6 will repeat to another that uncle Bob put something yucky in their mouth when prompted by a parent). Such are the difficulties of such cases, making some forget that American justice has always placed the burden on the government of providing legitimate evidence to prove beyond any reasonable doubt that a person committed a crime to a fair and impartial jury.

So, when faced with the heinous accusation of aggravated sexual assault of a child, particularly in Texas where politics and religion can intermix with career law enforcement/child welfare workers who commit perjury to protect their jobs, a plea-bargain offer for paroleable time or probation may appear an attractive option to some, even when innocent. But a plea to such a crime or lesser included offense is never really an attractive option. So, if you or your family member faces such a false accusation, you need an attorney highly experienced criminal law specialist and with a winning record in such cases.

False allegations happen all the time but there are only a few attorneys in any jurisdiction who have the background and backbone to stand up to the deck stacked against you, and sort through the complicated mess that is the likely subpar police investigation intermixed with complex family dynamics motivating such a lie. I am one of these attorneys so please feel free to call at 903-744-4252 for a free consultation.

Last session, the Texas Legislature enacted Texas's version "Jessica's Law," which increased the penalties for the crimes of aggravated sexual assault of a child under 6 and continuous sexual assault of a child. While most of us agree that a legitimate charge of such an offense should warrant a harsh punishment, those falsely accused of aggravated sexual assault of a child or continuous sexual assault of a child are painted into an even harder corner simply by being indicted. While these cases can be difficult to prosecute for various reasons, the legislation raises the issue once again of should we create such a stacked deck of state witnesses/false or highly questionable expertise, combined with draconian punishment schemes, whereby we dramatically increase the chance of false convictions to keep more of the guilty from getting away.

Under the new law, if an innocent person is convicted of such a crime, on no more evidence than the false testimony of a child (normally coached by a parent with motive to fabricate, and the children coming to believe the story themselves), he faces a minimum of twenty five years incarceration in the penitentiary. This time is served without the possibility of parole or "good time" credit. Thus, claiming your innocence and going to trial means you face a strong chance of dying in prison if a jury - who does not want to believe that a young child could tell such a story if false - takes the invitation of the prosecutor to rely on their own bias, prejudice and sympathies to convict. We all have strong feelings about such cases, and it is difficult to set aside these feelings and give a defendant the presumption of innocence and true "beyond a reasonable doubt" burden of proof due to our fears of children getting hurt.

Also highly concerning is that political prosecutors (elected in Texas) love to obtain such convictions that they can sell to the voters to show that they are "tough" and protecting your children - regardless of the innocence or strong evidence of innocence of the person accused. When State witnesses are shown to have committed perjury in appeals or subsequent proceedings, such actions are generally swept under the rug and the public is kept unaware. In "he-said/she-said" cases such as these, witnesses fabricating on the State's behalf can be particularly lethal, where juries are searching for testimony to convict on. Jurors often take the "cloak of the State" as carrying more credibility than the average person off the street, and these witnesses know that (and know that they are unlikely to be prosecuted if exposed) when they twist and manipulate to help convict someone accused of such a horrible crime.

How do you or a loved one end up in the Eastern District of Texas, particularly the Sherman division, sitting in the Fannin County Jail in Bonham, Texas on a drug conspiracy charge? Well, the Sherman Division (with courthouses in Sherman and Plano, Texas) is a choice forum for the United States Department of Justice. They are much more likely to get a conviction in the Sherman Division of the Eastern District of Texas than in Dallas, Texas, located in the Northern District of Texas. The Sherman Division is much more white, conservative and affluent than Dallas. The makeup of jury pools is overwhelmingly white (about 85%, compared to less than 50% in Dallas), and the Sherman Division venue contains Collin and Denton counties, wealthy suburban counties in which all persons are more likely to be more white collar and conservative.

To bring a conspiracy case whose acts occur mostly in Dallas into the Sherman Division of the Eastern District of Texas, some connection to the Eastern District (but not a whole lot) is required. The law of venue requires that an agreement be made in, or an "overt act" take place in or through the Eastern District. Venue is an element of the offense, meaning that at trial the Government must prove venue in the Eastern District of Texas beyond a reasonable doubt.

However, only one overt act in the conspiracy must take place in the Eastern District of Texas for venue to lie here for the entire conspiracy. That is how a person who may have never been north of Dallas or Tarrant County has landed in an Eastern District of Texas conspiracy case and now sits in Bonham, Texas in the Fannin County Jail awaiting trial. It's called forum shopping, and it isn't limited to plaintiff's lawyers. However, when boatloads of Hispanics and African Americans are forum shopped from a minority-rich to an extremely conservative white venue, the ends of justice should require more than a distant, tangential act to bring them before a more foreign venue. Federal statutes and Department of Justice policy provide little relief to such activity, so the case will to a virtual certainly be tried in the Eastern District.

If you or a loved one is facing criminal charges or a federal drug conspiracy charge in the Eastern District of Texas, you need a board certified criminal law specialist like Micah Belden helping you every step of the way. Please feel free to call me at 903-744-4252 immediately to discuss your case.

Federal prosecutors use the power of "conspiracy" prosecutions to obtain convictions all over the United States without the burden of proving that an individual committed the actual, substantive crime. Many people finding themselves charged in kilogram or multi-kilogram conspiracies although they may have simply been innocent or a user (innocent of conspiring to distribute), aggravated user (selling enough to support a habit), street dealer or trafficker. To understand conspiracy law, the best place to start with is the Fifth Circuit Court of Appeals pattern jury charge. If you go to trial in the Eastern District of Texas federal court on a drug conspiracy indictment, the jury will be given the following instruction:

Title 21, United States Code, Section 846, makes it a crime for anyone to conspire with someone else to commit a violation of certain controlled substances laws of the United States. In this case, the defendant is charged with conspiring to (distribute controlled substance(s), namely ____ or possess with the intent to distribute controlled substance(s), namely ____.)
A "conspiracy" is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of "partnership in crime" in which each member becomes the agent of every other member.
For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: That two or more persons, directly or indirectly, reached an agreement to (distribute controlled substance(s), namely ____ or possess with the intent to distribute controlled substance(s), namely ____.)
Second: That the defendant knew of the unlawful purpose of the agreement;
Third: That the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose; and
Fourth: That the overall scope of the conspiracy involved at least [___ amount] of [substance].
One may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If a defendant understands the unlawful nature of a plan or scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict him for conspiracy even though the defendant had not participated before and even though the defendant played only a minor part.
The government need not prove that the alleged conspirators entered into any formal agreement, nor that they directly stated between themselves all the details of the scheme. Similarly, the government need not prove that all of the details of the scheme alleged in the indictment were actually agreed upon or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.
Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator.

Notice, drug conspiracy law does not require that you actually ever possess or deliver drugs. It does require 1) that you agree to distribute or possess with the intent to distribute drugs, 2) that you knew such was illegal, 3) that you joined the agreement with intent to carry it out, and 4) that one or more persons took an overt act in furtherance of the agreement (to carry out the crime).

"Is your commitment to life as deep as your commitment to the truth?" This is the question I was forced to ask myself this past week as I worked through an exercise at the 2011 Death Penalty Seminar at Gerry Spence's Trial Lawyers College. Truth and life seem to be pretty equally essential values, in my opinion, but as trial lawyers our commitment to the truth must be unquestionable - lest our case be exposed as unbelievable or even contrived. The credibility of our cases as criminal defense lawyers is the key ingredient for success, so we go overboard to sift through the evidence to find the emotional and physical truth of each case. We spend long hours with our clients to truly know and love them and as individuals. Must we also abhor the death penalty and all its inconsistencies and injustices so recently exposed?

A capital lawyer has the unique burden and duty to show that a defendant's life is worth saving in every case. Period. The high-profile cases overturned in recently years are typically due to the capital defendant's lawyer not doing the legwork (even basic legwork such as looking at readily available files), in order to tell the true story of how their client went from being a precious baby to becoming "the defendant." What can cause such an injustice except for the lawyer not caring about his client's life enough? If the image of him being strapped to the gurney and three doses of lethal drugs being injected into his veins (one to knock him out, one to stop the air, and one to stop the breathing), does not make you lose sleep at night and feel overburdened, one should probably not be doing capital defense. But must one be opposed to the death penalty in every case, or just in their own cases? Such are the deep questions that can only be answered in the heart.

How else are we to overcome some of the most gruesome facts to show that life in prison is a real punishment - even for the most unspeakable crimes? How can we truly connect with the client who committed such acts, and form a working relationship in order to fight through to a not guilty or a life sentence. The condemned are often persons for whom their lawyers made virtually no effort to connect with as individuals at any emotional level. If so, how could their story really be told to a jury of twelve people who stated they could impose the death penalty? And if their lawyer supports the death penalty, how can that lawyer fight his hardest against an institution and a result for which he supports in theory?