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TrialA Defendant formally accused of violating probation also has the right to a speedy revocation hearing. In addition to statutory provisions addressing timeliness in motions to revoke, the Court of Criminal Appeals has historically recognized two sources of law which provide for the right to a speedy revocation hearing: (1) the statutory and former common law doctrine of due diligence, and (2) Constitutional speedy hearing rights under Barker v. Wingo. 407 U.S. 514 (1971).  of due diligence has been superseded by statute in Article 42A.751(d).

In 2015, the Texas Legislature added the statutory due diligence defense to the Code of Criminal Procedure, which overrode the common law defense.  It states:  For the purposes of a hearing under Article 42A.751(d), it is an affirmative defense to revocation for an alleged violation based on a failure to report to a supervision officer as directed or to remain within a specified place that no supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation contacted or attempted to contact the defendant in person at the defendant’s last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of community supervision was entered.

When a motion to revoke is filed, the judge normally issues a warrant for the probationer’s arrest, though they may issue a summons.  After fifty years of recognition by the Court of Criminal Appeals, the common law doctrine of due diligence in executing a warrant in motions to revoke has been eliminated. Compare Peacock v. State, 77 S.W.3d 285, 288-89 (Tex. Crim. App. 2002) (finding it imprudent to overturn 40 years of precedent requiring due diligence by State in executing motion to revoke capias) with Garcia v. State, 387 S.W.3d 20, 22 (Tex. Crim. App. 2012) (“we conclude that the 2003 statutory amendments to the Texas Code of Criminal Procedure Article 42.12 replaced the common-law due-diligence scheme).

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TrialBlocksThe reasons for the delay of a trial are important under the second prong, and the State will be required to put forward their reasons at a dismissal hearing.  Right now, blood and drug results from the State laboratory are taking six months or so to process.   A person sitting in jail on a misdemeanor is heavily prejudiced by waiting that long on a chemical result.   A person awaiting felony trial is not as prejudiced per the caselaw, but after nine months or so prejudice can sometimes be shown.   A lawyer should consider filing a speedy trial motion in any trial that will be lengthily delayed by chemical testing, DNA testing or other factors under the State’s control.

Timely assertion of the right is important as the third factor of the Barker analysis. The Court of Criminal Appeals recognized this in Zamorano when the Court categorized the Defendant’s request for speedy trial as “tardy” but found that the “defendant’s assertion of the right” prong should not weigh against the defendant because it was not a case where the Defendant never asked for a hearing and noted “nothing indicated an affirmative desire for delay” on the part of the defendant. Zamorano, 84 S.W.3d at 652.   There are often reasons that a defendant would want a delay in trial proceedings, especially in the case of a potentially large sentence.   An attorney filing continuances or a defendant continually signing pass slips can be something the Court will look at.  The Dallas Court in Reed stated that a motion to dismiss gets lesser weight than an assertion of the right/motion for speedy hearing in a probation revocation case.

Zamorano also illustrates that very little prejudice need be shown by the Defendant in cases involving considerable delay under the fourth prong of the Barker analysis. In fact, the Texas Court of Criminal Appeals found that missing 11 days of work and having to regularly check in with a bail bond company was sufficient prejudice in light of the delay. Zamorano, 84 S.W.3d at 654.

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SpeedyTrial-300x149The Texas Court of Criminal Appeals analyzes both speedy trial and speedy revocation motion matters under the factors set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). These factors include: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of the right (to a speedy trial), and (4) the possible prejudice to the Defendant as a result of the delay. As applied to this case, the State cannot overcome the presumptive prejudice associated with a thirty eight month delay in executing the capias, a similar delay in hearing from the time of issuance, and at least three of four Barker factors weigh in favor of dismissal.

In Barker, the U.S. Supreme Court stated that the “length of delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 531.  The Texas Court of Criminal Appeals has found a two year and ten month delay between arrest and hearing on a speedy trial motion to be “presumptively prejudicial” in a “plain vanilla DWI case.” Zamorano v. State, 84 S.W. 3d 643, 649, 654 (Tex. Crim. App. 2002). In addition, the Zamorano Court found that the factor of delay, in and of itself, weighed “heavily against the State,” after considering the almost four-year delay between arrest and ultimate resolution of the case. Zamorano, 84 S.W.3d at 649.

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TrialAmendmentGoing back to the Constitution of the United States, American citizens are guaranteed a speedy and public trial.   The public part is why a Court cannot bar you from entering to watch a trial unless you are a witness, but the speedy part has been developed over the years.  I will concentrate on the State of Texas right to a Speedy Trial this week, which is overwhelmingly similar to the Federal Right but without a few federal specific statutes that can effect federal criminal cases. Additionally, citizens also have a right to a speedy hearing if the State of Texas files a motion to adjudicate or revoke probation, which is the procedure upon an alleged probation violation to impose sentence or modification.

The Sixth Amendment to the United States Constitution says that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”  Article I, Section 10 of the Texas Constitution states that “[i]n In all criminal prosecutions the accused shall hav† a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.”

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Rear view of police detective standing and looking at the paper in front of the wall with map, pictures and sticky notes at office

The Fifth Circuit in Cowart and sister Courts of Appeals note that conspiracy is a distinct offense from that of aiding and abetting, and involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting.  United States v. Peterson, 524 F.2d 167, 174 (4th Cir.1975) (“Conspiracy” is a separate and distinct offense from that of aiding and abetting, and involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting.)  United States v. Townes, 512 F.2d 1057, 1058 (6th Cir. 1975) (Conspiring to commit crime with another and aiding and abetting in its substantive commission were distinct crimes, and Government should not have been forced to choose between deleting the aiding and abetting element of second count of indictment or dropping conspiracy charge under third count.)   United States v. Krogstad, 576 F.2d 22 (3rd Cir. 1978) (Even where it is apparent that if one is guilty of aiding and abetting, that person of necessity must also have been a conspirator, the cases are clear that a jury may acquit on the conspiracy and convict on aiding and abetting.)  United States v. Krol, 374 F.2d 776 (7th Cir. 1976) (Aiding and abetting the commission of a substantive offense is a crime different from a conspiracy to commit the same substantive offense.)  Colosacco v. United States, 196 F.2d 165  (10th Cir. 1952) (Evidence justified conviction for aiding, abetting, counseling, commanding, inducing and procuring another to falsely assume and pretend to another to be an agent of internal revenue bureau and to demand money of such other person in such pretended character, and for conspiring to commit such substantive offense.)

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Brightly Red Colored Semi-Truck Speeding on a Two-Lane Highway with Cars in Background Under a Stunning Sunset in the American Southwest

You must be prepared for the Government continuing to say that all or most drugs coming through Mexico or Central America are bound by the United States.  This is an overstatement, and the cartels are always changing up routes and tactics to avoid law enforcement.  The Government will present a litany of evidence of Federal and foreign agents, cooperating witnesses and law enforcement experts on decoding alleged drug conversations to tie the drug shipment to the United States.  But, if you can create a reasonable doubt that the drugs were just as likely to be bound for Europe or Asia than the United States, you could walk your client home.   There is additional doubt that the drugs are to be consumed locally where they are found, but this is not likely enough to overcome the Government testimony by itself.

Look closely for how the testifying conspirators and others were paid.  Were they paid in US Dollars or in pesos or other currency?  What was the historical destination background of the conspiracy as presented?  What can your investigator dig up regarding any relevant flight paths or ports of call related to boats and planes alleged to be used?  Even if you don’t end up going to trial, such information can help you negotiate a much better agreement, perhaps even down to a telephone count or a misprision.

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Private jet flies past sun – in blue sky above the clouds

The cocaine in Rojas was a million-dollar deal that was paid in American dollars by the Zetas, a Mexican drug cartel that a codefendant had seen sending drugs in vans towards the United States, and a meeting was held in Matamoros on the border with Texas to smooth things over when a large drug shipment fell through. Id.

There was no evidence in Rojas that the plane had capacity to fly to Europe.  Rojas, at 400.  One conspirator built the organization in Rojas specifically to import drugs into the United States.  Id., at 402.  Rojas also involved intercepted calls with coded language used by an air traffic controller, but someone like a controller would have much more inside information about a flight’s destination.

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However, the Mexican cartels who control the overland routes for drug trafficking are routinely sending loads of cocaine and methamphetamine into Europe, several of which large loads have been seized in ports like Amsterdam.   This development has grown since the Fifth Circuit Court of Appeals Rojas case and particularly in the last few years.  The government must distinguish between drugs that are intended for the United States and those intended for Europe and Asia, where profits per load can be much higher.  In an importation case, “[t]he government ha[s] to show that each defendant intended or knew that the ‘conspiracy to import was directed at the United States.’” United States v. Conroy, 589 F.2d 1258, 1270 (5th Cir.1979).

Sherman and Plano Federal Courts are bound to review such cases under the light of Rojas, but Rojas was based on the presentation of a Colombian and Mexico conspiracy that ended in 2009, itself reviewed under the standard of United States v. Martinez, 476 F.3d 961 (D.C. Cir. 2007) (citing DEA testimony that almost all drugs coming through Central America are bound for the United States), a time in which the illegal drug market in Europe was undeveloped. See Rojas v. United States, 812 F.3d 382, 400-401 (5th Cir. 2016).  Codefendants in Rojas testified that they knew the cocaine was specifically going to the United States.   Id., at 401.   The more profitable European market was not even considered in Rojas, only the significantly less profitable Central American market, there was no testimony that you could potentially make more money in Europe with less law enforcement risk.  Id.

If you or a loved one has been charged with a crime, call Micah Belden at 903-744-4252 now.

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Ship1-300x200The Sherman and Plano Federal Courts are full of extradition cases from Latin America regarding drug smuggling.  These individuals have often never set foot into the United States, so how can they be prosecuted here.   Like the previous blog on airplane jurisdiction, the United States Congress has passed laws to make their global land jurisdiction as broad as possible.  U.S.C. 959(c) states:

(a) Manufacture or distribution for purpose of unlawful importation

“It shall be unlawful for any person to manufacture or distribute a controlled substance in schedule I or II or flunitrazepam or a listed chemical intending, knowing, or having reasonable cause to believe that such substance or chemical will be unlawfully imported into the United States or into waters within a distance of 12 miles of the coast of the United States.”

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UKbust-300x200In Morrison v. National Australia Bank, 561 U.S. 247 (2010), the Supreme Court applied the presumption against extraterritoriality to securities fraud statutes. Again in Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013), the Supreme Court applied the presumption and held the plaintiff lacked extraterritorial jurisdiction under the Alien Tort Statute.  In 2016, however, in RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090 (2016), the Court held the Racketeer Influenced and Corrupt Organizations Act (RICO) could apply extraterritorially. But the Court severely limited the application of RICO to foreign conduct that violates “a predicate statute that manifests an unmistakable congressional intent to apply extraterritorially.” Still, the Court held RICO’s private right of action does not overcome the presumption. Thus, the Supreme Court has revived the presumption against extraterritoriality and reinforced a high burden to overtake the canon to apply a law extraterritorially.

Under 959(c)(2) cases, a member of a drug conspiracy who are actually on board the aircraft have had their convictions upheld. See United States v. Epskamp F.3d 154 (2nd. Cir. 2016) (conspirators on board aircraft with cocaine on runway); United States v. Knowles,  197 F. Supp. 3d 143 (D.D.C. 2016), later affirmed by United States v. Thompson 921 F.3d 263 (D.C. Cir. 2019) (pilot and primary trafficker arrested in Haiti when US-registered aircraft was detained);  United States v. Bodye, 172 F. Supp.3d 15 (D.C. Cir. 2016) (conspirators actually flew cocaine on US-registered planes); United States v. Lawrence, 727 F.3d 386 (5th Cir. 2019) (United States citizen defendants personally transported drugs on commercial airplanes from South America to United Kingdom); United States v. Rojas, 812 F.3d 382 (5th Cir. 2016) (one defendant piloted plane with 600 kilograms of cocaine).

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