Sherman & Plano, TX Criminal Defense Lawyer Blog

September 15, 2024

Sherman, Texas Criminal Trial Attorney: The Right to A Speedy Trial in Texas (Part 2)

SpeedyTrial-300x149 The 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.

September 15, 2024

Sherman, Texas Criminal Trial Attorney: The Right to A Speedy Trial in Texas (Part 1)

by Micah Belden

TrialAmendment Going 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.”

September 1, 2024

Yes, you can aid and abet a federal conspiracy in the Fifth Circuit (Part Four)

by Micah Belden

Handshake However, in United States v. Walker, 621 F.2d 163 (5^th Cir. 1980), the Fifth Circuit held that there was no error in giving an aiding and abetting instruction in a conspiracy case because the conspiracy counts are substantive counts. Aiding and abetting makes one a party to the crime by the actions that aid and abet the conspiracy. This logic seems flawed as conspiring to commit a substantive crime and aiding and abetting a substantive crime, which does not require an agreement to join in a conspiracy to commit the crime, are different manners and means in themselves. Thus, attorneys in the Fifth Circuit should continue to challenge aiding and abetting jury instructions in conspiracy cases all the way up to the Supreme Court.

This is illogical because one does not aid and abet an agreement. One can aid and abet a substantive crime, but an agreement is between two or more persons to commit a crime. The agreement between the two persons to commit the crime is the focus of the conspiracy count. Whether it is completed or not, two people are guilty of it if the agreement is proven along with an overt act and knowledge of illegality.

Similarly, and abetting can only take place when a completed crime has taken place, and one helps at the beginning or the end with the intent to help out, whether they conspire or do not conspire. If one finds out that their relative has robbed a bank, and they then decide to help launder the money or hide the evidence, they are potentially guilty of aiding and abetting said robbery, but not conspiracy to commit the same robbery. The Fifth Circuit needs to take a harder look at this issue.

August 29, 2024

Yes, you can aid and abet a federal conspiracy in the Fifth Circuit (Part Three)

by Micah Belden

Handshake A plain language reading of the statute and logical sense also show that one cannot aid and abet a conspiracy under section 2. Section 2 and 846 link to the substantive offense in separate manners. 21 USC Section 846 states:

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

This makes it an equal crime to conspire to commit a subchapter violation. And, the crime does not have to be completed for a conspiracy transaction to take place. One must simply make an agreement to commit a federal crime, know that the agreement is unlawful, and one person must take an “overt act” in furtherance of the conspiracy. Even if the substantive crime of the conspiracy is not completed, one can still be convicted of conspiring to commit said crime.

August 20, 2024

Yes, you can aid and abet a federal conspiracy in the Fifth Circuit (Part Two)

by Micah Belden

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 (4^th 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 (6^th 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 (3^rd 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 (7^th 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 (10^th 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.)

August 9, 2024

Yes, you can aid and abet a federal conspiracy in the Fifth Circuit (Part One)

by Micah Belden

Policia2 One of the realities that I must tell clients charged with conspiracy counts in the Eastern District of Texas, most often conspiracy to possess with the intent to distribute narcotics, is that you can aid and abet a conspiracy in the Fifth Circuit Court of Appeals, which includes all Texas Federal District Courts. Thus, the Government will not only submit jury charges for drug conspiracy, which the Fifth Circuit holds to be an independent crime in itself, they will submit a jury charge on aiding and abetting that conspiracy, which will end in the same result if found true beyond a reasonable doubt.

The United States Supreme Court held in the 50s that abetting only applies to substantive counts, not to conspiracy counts. Pereira v. United States, 347 U.S. 1 (1954). The Fifth Circuit noted that:

In Pereira the Court, in affirming one defendant’s conviction for conspiring to commit mail fraud and aiding and abetting the commission of mail fraud, rejected the double jeopardy plea. Petitioners had alleged that their conviction on both the substantive counts and a conspiracy to commit the crimes charged in the substantive counts constituted double jeopardy. ‘The Court found that: The essence of the conspiracy charge is an agreement to use the mails to defraud and/or to transport in interstate commerce property known to have been obtained by fraud…Brading’s conviction does not turn on the agreement. Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy.’

August 2, 2024

Not All Drug Routes Lead to America (Part 4)

by Micah Belden

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.

July 14, 2024

Not All Drug Routes Lead to America (Part 3)

by Micah Belden

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.

June 28, 2024

Not All Drug Routes Lead To America (Part 2)

by Micah Belden

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 (5^th 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.

June 1, 2024

Not All Drug Routes Lead to America (Part 1)

by Micah Belden

Ship1-300x200 The 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.”