Where it’s illegal to possess or sell Phantom ware automatic sale suppression devices. I didn’t even know what these were so I looked them up and they’re devices or software used to falsify sales data on electronic cash registers and I guess businesses have been using these to avoid payments of sales tax. It’s a State Jail Felony if you do that.
The other thing is License Plate Flippers, sorry to let you know that they are now going to be illegal. And a person it’s going to be, with criminal negligence, possess, purchase a license plate flipper you’re going to be subject to a Class B misdemeanor if you possessed, Class A if you manufactured, sold or distributed. The other thing that’s now illegal is Salvia Divinorum; it’s added to penalty group 3.
Victim Input; there are couple of things that are I want to mention that there were something added to the TDCJ, Sunset Belt has nothing to do with TDCJ but, there is going to be two new requirements that: “the judgment must reflect whether a victim impact statement was returned to a prosecutor and a Judge prior to sentencing has to inquire of the prosecutor whether a victim impact statement has been returned, and if so, they must consider that information. This was a big deal with death penalty advocates and the house bill 899 basically tries to make the DIVO which is defense initiative victim outreach, pretty much illegal. It allows now this bill, victim of capital felonies, a right to receive by mail written explanation of DIVO and the right not to be contacted by a victim outreach specialist unless, the victim has consented to in written notice consented to that and if that person has designated a victim services provider to receive all communication.
So I feel bad for people that are in this area of the law because it’s going to be very hard to get around this. I think this also subject to challenges and his right for challenge. On the basis; its illegal, prohibits the defense from investigating and this bills was in response, really to an overreaction of a single episode that was really blown out of proportion and it’s also response in our opinion to excessive DIVO which has had a good impact of decreasing public support for capital punishment, especially by victims. Enhancements!…what time is it?
Audience: you’re ok.
so couple of enhancements I want to talk about. This is a really important one “Life without Parole” as David had mentioned, basically for the second conviction for “sexually violent offense” against a child under 14 or a continuous trafficking of a person, so on a second conviction for either of those it’s auto life without parole. What the bill does is that it defines “sexually violent offense” it’s a references, we previously had a definition of that under 62.001 of Code of Criminal Procedure. So there’s a list of those offenses. So the sexually violent offense requires to be one of those and it requires that the victim be under 14. So how the bill works, by the way it also says sex offenders sorry you don’t get to work at amusement parks, you cannot work as a cab driver, bus driver or limo driver.
So this only applies to defendants who are 18 years or older so it actually excludes Juveniles. One thing I want to mention because this is a hot topic right now is, there is a special session bill added that affects us and that is; Senate Bill 23 and so there was a hearing yesterday in the senate, so essentially the legislator’s currently attempting to work around the Miller decision, the Supreme Court decision that said that; automatic life without parole sentences for 17 years old are unconstitutional. So there is a bill filed last session that did not pass and so the prosecutors have been really freaking out about that and have convinced governor Perry to add this to the special session call. So we’ll see what ends up happening with that.
Accident or injury involving personal injury or death; 2nd degree, now you can get consecutive sentences for injury to a child, elderly or disabled individual, false alarm at university is state jail. Obscenity is now going to be 2nd degree of the material depicts a child younger than 18 engaged in any sexual act. Also, prostitution this is a big deal. This was under House Bill 8 which is a human trafficking bill and a lot of the changes have nothing really to do with human trafficking but if the prostitution, if the victim or the prostitute is a person younger than 18, it bumps to way up to secondary felony. I’m not going to have time to cover the Online Mug shots but it’s in your paper. Essentially every single one of my clients now ask how they can remove their faces from these online mug shot places and there is a provision that the law now is going to allow, it’s an interesting bill so take a look at it but essentially there’s a provision if the information is inaccurate that the law’s now going to allow you to basically try to remove that through a prosecutor or an AJ. So it’s a little bit interesting, the wording of this but anyway we were going to talk about juvenile stuff and money laundering stuff that but we are running out of time all that is going to be in our paper and if you have any questions, our contact information is listed in there as well so thank you so much.
I would really like for you all to understand what all these people have done for us. For the last 40 years Texas Criminal Defense lawyers has tried to improve discovery, for the last 30 I was involved in it and never ever did it get anywhere near what has happened. We were always hammered over and over and over again with reciprocal discovery. You will see the senate bill 1611 does not have, where we have to turn our file over. It is solely on the shoulder of these people.
Immigration consequences for Criminal Convictions
Most importantly you have section 101A43 of the Immigration Nationality Act and section 237A of the immigration and nationality act 101A43 defines aggravated felonies is the list of all offenses that are aggravated felonies and an aggravated felonies was submitted to client to automatic deportation. Section A237 of the act defines other deportable offenses. Other offenses which your client can be deported but for which they may be a waiver available, those includes drug offenses, crime involves moral turpitude, unlawful carrying of a weapon, domestic violence and other offenses. Just a quick recommendation; when you get back to your offices, print out those two section of the act, put them in a folder and have them with…
There are two sections of immigration national act to define aggravated felonies and other deportable offenses. I would recommend printing those out. Having those in your files, anytime you talk to a client who’s not a US citizen, you have that. You also have in your materials two articles I published in the Voice for the Defense; one is on immigration consequences for criminal convictions it’s basically the Cliff note for today’s lecture. The other is an article appeared about 8 months ago, on dealing with immigration hold and ICE detainers who are becoming a very very common problem.
Padilla v. Kentucky is the Supreme Court case that said, “That a non US citizen who has not been properly admonished on the immigration consequences for his conviction by his defense attorney has had his due process right violated. Now, Padilla v. Kentucky does not require you all become immigration law experts. What it does require you all to do is if you have non US citizen warn him that this offense, if you plead to this, it may result in immigration consequences in your deportation. However, as result of today’s presentation I hope we learnt is that there’s a lot you can do, pro-actively at the pre-trial stage to tailor the offense we’re going to a lesser included defense or tailoring the sentence to offset or erase the client’s removal consequences in a proactive way, that will make you a better attorney. The base line when dealing non US citizen clients is; know your clients immigration status. Is he a permanent resident? Does he having a green card? Is he a lawful permanent resident? If so, find out how long he’s had it. It will stay in front of card “lawful permanent residence since 1999”, “lawful permanent residence since 2003”.
No 2, find out if has any prior convictions, because your client maybe facing a charge now that maybe removed but in fact he already may be subject to deportation. Because six years ago he pled to unlawful of carrying of a weapon or possession of control substance or one of these other offenses we’re going to talk about that may already make him reportable. The other note, did he acquire US citizenship? I’ll talk about that in a little bit more in a minute but just find out this; if your client is in his mid-20 and one his parent’s father or mother naturalized became a US citizen through naturalization before he turned 18, your client may in fact already be a US citizen. So just the quick question to ask your client: if he’s in early 20’s, he’s got his green card? “Is your mom or dad are US citizen? Did they naturalize”, if the answers is yes you in fact may already have a US citizen. He may have acquitted back when mom and dad naturalized. If your client is illegally in US, he doesn’t have papers, doesn’t have green card, does he have a petition pending through a family member? He may tell “no I don’t have my papers but my wife filed this application for me, she is a US citizen; I got this letter from immigration showing I’ve been approved since 2010. I’m in line to get my papers” or maybe his father who is a lawful permanent resident of US citizen filed his papers for him 8 to 10 years ago. But the waiting line is so long he’s still in line to get his paper but he does have an application pending that will help us if he gets immigration hold that will help on that on the other side of it.
It will also tell you in some situation what you need to try to do with the underline offense to try to save him the opportunity give him residency. And the third thing to find out has he be previously deported? Has he been sit back before it’s not his first rodeo? That will effect a lot of things as it has been deported before once it goes back in to ICE custody he may not have a right to abode him may be to automotive deportation again. And in some cases you may find out that he was deported because five years ago he was doing two years in TDC, completion his sentence he got deported back, then he came back illegally in which case if your client has been deported before and had a previous felony conviction he may face felony charges for illegal entry after previous deportation. The US attorneys are cramping down on those especially with people who were deported for aggravated felony convictions. So that’s your baseline. Find out your clients immigration status before you go from there. Two ground rules when dealing with immigration situations, no 1; a deferred adjudication is considered a conviction for immigration purposes. So if your ¬¬client gets deferred or you take a deferred he will have a conviction. Now there are situations where you can use deferred adjudication to medicate or erase removal or deportation consequences. And I am going to talk about that in a few minutes.
There are ways when you can differ to erase a deportation consequence. So just be aware of now that differed adjudication will be a conviction for immigration purposes. The second ground rule, a suspended sentence equals as same as actual sentence imposed. So if your clients get three years TDC for suspended for three years’ probation under the immigration act those three years TD suspended sentence will be the same as three years in TDC. And here’s why that’s important, theft offenses and crimes of violence become aggravated felonies under the immigration act if your client is given a jail sentence of one year or more imposed. So even that suspended three for three will result in an aggravated felony conviction an automatic deportation for your client if he is convicted of crime of violence or theft offense.
This is where you can use a deferred adjudication because the deferred adjudication does not carry that suspended sentence. So if you got a guy who is arrested for burglary of habitation, the prosecutor says,” first offense, I will give you three for three”, if you take that your client will be subject to automated deportation because of the aggravated felony of three years suspended sentence and actual sentence over one year in prison automatic deportation. But if you go back to the prosecutor and say “hey I can’t take that, that’s an aggravated felony under immigration law but how about if we take five years deferred” the prosecutors get its extra pound of flesh and extra year to insist him. The deferred adjudication does not carry that suspended sentence; your client avoids the aggravated felony consequence. He still may be deportable under one of the other sections for crime involving more turpitude but at least in the immigration court by avoiding the aggravated felony conviction you will give them an outback and a chance to maybe stay in the US. So those are two ground rules that you will be aware of.
Removable offenses! Aggravated felonies! Aggravated felonies are automatic grounds for deportation. If your client pleads guilty to an aggravated felony he will subject to automatic deportation and will not matter if he’s had his green card for 25 years. It will not matter if he has his green card for 25 years, it will not matter if its first defense, it will not matter if he has served in the United States marines and honorably discharged after serving the tour in Vietnam and that was Mr. Podia. In Podia vs. Kentucky. He had no prior convictions at had his residence and have green card over 25 years. Honorably served in US Marines at Vietnam but was charge and pled guilty to possession intend to deliver a truck load of marijuana through Kentucky. And his defense attorney told him don’t worry you’ve got your green card all these years, you had no priors, it’s not going to be a problem and it was. Some offenses are aggravated felony by virtues of the offense. Murder, rape, sexual abuse, a minor drug trafficking, money laundering, fraud over $10k, alien smuggling. If any of your practice on the border Laredo, Al Paso, Browns Ville you will see alien smuggling is a common one when you have a situation where it’s a family member; cousin lives in US he got to try bring in couple of cousins
He gets arrested charge with alien smuggling. There’s no money involve, no exchange of money. It’s not a chaotic situation; just helping couple of cousins come over. If he pleads to that he will be deportable for aggravated felony conviction. So other offenses, theft and crimes of violence only become aggravated felonies if there is a prison sentence of 1 year or more imposed. That goes back to where talking about a few minutes ago. Remember a suspended jail sentence is the same as the actual sentence imposed. So if you get a client who is arrested for assault domestic violence. He pleads 365 state jails, suspended for 2 years’ probation. Your client is now an aggravated felon subject to automated deportation. If he takes deferred the suspended sentence does not exist he may still be deported under the section of law. But he will avoid the aggravated felony consequences.
Likewise with theft offenses, your burglary rehabilitation 2 for 2 that’s an aggravated felony. If you get a deferred 5 years deferred you avoid the suspended jail sentence, you avoid the aggravated felony. You may still be deportable but you may at least give him that back. Other deportable offenses 237A2 of the act have other portable offences. These are offences which your client may be deported and will face deportation consequences by the way, about 10 years ago when they were revising the immigration nationality act they changed it, stopped calling it deportation, they call it removal it’s kind of reviling plays on words but I still call it deportation. You remove teeth; you deport people and family, so I’m still going to call it deportation. Other deportable offenses, crimes involving moral turpitude, for a crime involving any kind of theft offense, anything involves fraud, shop lifting. Now there is a patty offense exception, one crime involving moral turpitude. The first offense within 5 years of residency is a deportable crime involving more truancy. The exception is; if it is a C misdemeanor and effect for a crime involving moral turpitude for one crime involving moral turpitude to be a deportable offense. It must carry potential sentence of 1 year or more, so that would make it ‘A’ or higher.
So your client gets arrested from shop lifting at the Wall Mart so B or C mist misdemeanor. So first offense no deportation consequences, it’s there by but that same goes back 6 months later, goes back to same Wall Mart tries to steal Tony Romo Jersey, a second mist miner or theft offense they are now deportable for having 2 crimes involves in moral turpitude. So a crime involving moral turpitude, one crime involving moral turpitude is deportable if it occurs within 5 years of the person getting the residency and he carries the potential sentence of one year or more. Simple assault is not a crime involving moral turpitude. Two guys fighting in a bar; hey you saw looking at my girlfriend, I saw your girlfriend I would look at her and they get into fight, fist fight.
Simple assault not a crime involving moral turpitude. Now half way into the fight they got break some bear bottle puts it in other guy’s throat, now its aggravated assault maybe its assault because of deadly weapon. Now at the very least you have a crime involving moral turpitude. If the judge gives him jail sentence of one year or more or two years TDC suspended for two year probation, now you have an aggravated felony. But if you can keep it simple assault your client has no immigration consequences it was a simple assault is not a crime involving moral turpitude.
Multiple crimes involve more turpitude. You got arrested 2 years ago for trying to steal Tony Romo jersey at Wall Mart. See misty miner, patty offense no problem. You go back two years later you try to steal a CD from same Wall Mart. Now you got two crimes involve in Moral Turpitude, now you are deportable. Weapon offenses, unlawful carrying of a weapon, that is deportable offense on its own even in Texas. I know you can come back with defenses and it’s a common problem. These and domestic violence offense the two most commons one when it comes back and snake bites you and here is why. You know the guy gets taken and he gets pulled over for ticket for speeding there’s a gun on passenger side seat he lives out in west Texas side, he needs the gun to keep the predators from eating his deer, from attacking his cow. He goes in, sees the magistrate judge AP says,” Jorge, what are you doing with the gun?” and Jorge says,” We’re in Texas judge” and the Judge says; “you’re right but here’s the deal, I’m going to give you 6 months suspended takes these guns safety classes you’re good”. He takes it now he is deportable for confronting unlawful carrying of a weapon. Same thing with domestic violence; assault with the finally domestic violence, violation of protected order, these are also other deportable offenses.
Domestic violence situation! The neighbor calls it, hears two people arguing. He says, she says, the police show up and says,” what’s going on” and she says “he is no good selling self” and he slips and cops ask the guy, “what’s going on?” “Well she just don’t listen” so he takes the no good so and so. Takes him in jail, sees the magistrate. Magistrate says,” alright here’s the deal; I’m going to give you time served, I’m going to give you this 3 months’ probation, I’m going to give you this anger management classes and probation classes”. He takes the deal now he is deportable for domestic violence.
Drug offenses, drug possession offenses with the exception of one time possession of 30 grams of marijuana are a deportable offense. Now let me begin first for 30 grams or less marijuana exception. Most of the time when you all have clients they are arrested for possession of marijuana. The only thing you have is an arrest report saying “pulled over and found a baggie containing two white 5 marijuana cigarettes” because they don’t know what the word ‘joints’ are, but they put 5 marijuana cigarettes now that does not tell you the way to 5 marijuana cigarettes and if your client pleads to that he has no way of proving that those 5 marijuana cigarettes were under 30 grams and burden of proof is going to be with him when he is in front of immigration judge.
So please it is critical when you are dealing with the possession of marijuana offense for an immigration stamp point to get lab report reflecting that the amount of marijuana found in that bag, were in his possession is under 30 grams or less. Cases have been won or lost on that. Number 2, in dealing with drug offenses, it is really critical to know your clients immigration status, and here is why.
If you have your green card and you are convicted of one of these possessions offenses, just possession, a possession within ten which is aggravated felony but possession and you had your green card you may be eligible for the waiver to go back to Judge. Yea but Judge I’ve been here for 10 years my wife, my kids give me a second chance but if your client is in line to get his residency. He has got that letter from immigration show he has got an approved petition to his wife or his dad or his brother or his son or daughter. The only way he can get his residency for drug conviction is possession of 30 grams or less of marijuana. So if your client is in line to get his residency through his and he is charged with possession of control substance, cocaine or meth or any other of those things or possession of marijuana, if he pleads guilty to that offense or any of those drug conviction offenses. Besides possession of marijuana he will never be able to get his residency through his wife, his mom or dad, his children. He will be a permanent bar from coming in to United States. So if he got a possession of a control substance besides marijuana he need to try find some kind of creative plea if you want to give your client the opportunity to get his residency. The flip side of its if its possession of marijuana and it’s under 30 grams and he is trying to get his papers same thing. Get the lab report reflecting that it was under 30 grams of marijuana. That way continue with the process through his wife.
Possible defenses! Negotiating sentence to avoid, this is my favorite line. Justice Steven wrote this and now Padilla V. Kentucky “counsel who possessed the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor to craft a conviction and sentence that reduces the likelihood of deportation,” Here is what that means; your client gets arrested for assault domestic violence. The prosecutor…he has no priors. The prosecutor offers you 2 for 2. Two years suspended for two years TDC suspended for two-year probation because it’s not his first defense. If you take plea what happens, your client is subject to automatic deportation as an aggravated felony because it’s a crime of violence and you got a jail sentence of one year or more imposed.
Now, if you get it reduced deferred to adjudication for assault domestic violence, what happened? He is still deportable under 237, because domestic violence is of the reportable offenses. Now he gets in it bad. But what if it is a weak case, the wife wants to drop the charges the prosecutor doesn’t have much and it willing to reduce it to interfering with 911 call, interfering with a 911 call is not a deportable offense, it is not a crime involving moral turpitude and it is not in other deportable offenses. So if you get reduced to that your client has no deportation consequences on that. Another example your client get arrested for burglary rehabilitation, he has had his green card for 10 years and he has no priors. If the prosecutor gives you three for three and you take that what happened; it’s an aggravated felony. It’s a theft defense you got to jail sentence of over one year imposed so you are subject to automatic deportation. But if you take the deferred you offer,” hey instead of three for three how about if I give you five years deferred you get two extra years in system for him. If you get five years deferred what happens? Burglary retaliation is a crime involving moral turpitude; it does carry a potential sentence of over 1 year. But it’s his first defense and he has had his green card for over 5 years. And for one crime and the first time crime involving, moral turpitude to be a deportable offense, it must have occurred within 5 years of his residency. So if you got a guy who has had his green card for 7 years and no priors and you can work with that in the pretrial stage you can avoid all deportation consequences by virtue of deferred adjudication and by knowing the statue on that.
Possible Defenses; Cancellation of Removal for Permanent Residents! This is for persons who have the residency, who have their green card and have not been convicted of on aggravated felony. They have been convicted of unlawful carrying of weapon, the domestic violence, may be multiple crimes involving moral turpitude may be for couple, for possession of controlled substance. To be eligible for cancellation, you must have had 5 years with the residency and a total of 7 years with legal status now to make that easier, if he has got 7 years there is a green card he has got 7 years of legal status. Some people may be on student visa or something beforehand but if he has got 7 years with his green card and he does not have an aggravated felony then he is going to be out for cancellation removal. Now to know, before the commission of a removable offense, that is why it is important to know if your client has any priors. Because if your client has his green card for 15 years, but 10 years ago he was convicted of unlawful carrying of weapon or possession of cocaine, the clock stopped at that time, so your client will not have the 7 years he needs to be eligible for cancellation or removal. The deportable offense stops the clock for that period so that is why it is important when you are dealing with permanent resident to find how long he has had his green card and if he has any priors; Because those two things will tell you if he is going to be eligible for this defense of cancellation or removal. And if he is then go before the immigration judge at that point you will say “Judge, I’ve my wife my kids I’ve been doing probation, I’ve done everything I need to pay my taxes give me the second chance”. But those are the three things you need to determine beforehand.
Withdrawing the Plea, ineffective assistance counsel of Padilla v. Kentucky. Now we know Padilla v. Kentucky is not retractors. SC came back and says it’s not rhetorically applicable. That does not mean you still can’t go back and do something to withdraw the plea or to retailor the plea. It’s been my experience in Dallas at least that more times than not, I if the prosecutor and the defense attorney can get on board on a guy who obviously there is going to be an injustice. This guy plead guilty, he got 5 for 5 for unlawful carrying for burglary rehabilitation. He got the fiver for five; he is completing the probation fine. Immigration comes in and arrest him,” Hey this is an aggravated felony we didn’t catch you till now. Now you are subject to automatic deportation” and he is in this system for 3 years doing everything which he needs do with this probation. You can go back, we can try it and say we know it’s not rhetorically applicable so you can argue Padilla because its occurred before Padilla but as an equity argument, if the defense attorney can convince the prosecutor,” here is the deal man the guy is doing everything you asked him to do, he has no priors, he is being everything alright and now immigration is going to deport him because of his aggravated felony”. Can you cut a deal with work on this to go from five to five to six years deferred or sever years deferred? And if the prosecutor will agree and the judge will agree and like I say; at least in Dallas county the judges will say “hey I don’t a dog in this hunt, if prosecutor agrees we’ll sign off on this” then it becomes more of a lobbying effort unless of a legal argument. But my point is; even if the offense occurred before Padilla v. Kentucky, there are still ways you can go back and try to retailor the plea withdrawing it and enter into a lesser included offense or turn it into a deferred that will give your client the relief from deportation.
Be careful what you wish for that’s the other part of withdrawing the plea. If you are successful in withdrawing the plea and you still don’t have the deal cut the prosecutor may go back and prosecute the client again. And you need to be care… I had a case just like this in [inaudible] couple of years ago where the defense attorney contacted me on the person accused of indecency with a child which is an aggravated felony; it’s a sex offense, involving a minor. We got the deal reduce to injury to a child, which is another deportable offense because it’s a crime involving moral turpitude but there is a waiver available. I chanced it, “yeah judge gives me a second chance and all this”. Well he takes that deal; immigration comes in and arrest the guy. Put him in deportation proceedings. He decides,” no I don’t want to go through with this” so he hires another defense attorney to withdraw the plea. Well, be careful what you wish for, prosecutor says “Ok, we’ll let you withdraw the plea he didn’t have the deal cut. They withdrew the plea, they found him guilty indecency with the child against 3 years TDC and now he is going to get deported. So be careful what you wish for. You can’t withdraw the plea but it’s do that in a situation where you already have the deal cut.
Derivative Citizenship, as I mentioned earlier in some situations your client may already be a United States citizen if he was under 18 and a lawful permanent resident on Oct 2000 and one of his parents became a United States citizen by birth or by naturalization. Now that is still applies to days so, how many of you have juvenile cases? Right, ok here is the situation why is this important? Let’s say you have a 16 years old sophomore in high school and for his junior achievement project he buys a $100 worth of a commodity. Repackages that commodity into 10 equally size sandwich baggies ad he then sells for $20 per piece in school. Occurring 100% return on his investment. But instead of being applauded for his entrepreneur skills he is charged with a possession intended to deliver. And because he did in the school zone the prosecutor is in no mood to make the deal. Now you know that that is an aggravated felony, possession intend to deliver an aggravated felony, there is no exceptions for juveniles on this. So what can you do? If you can get, first of all you have to find out if his mom or dad are United States citizens. If his mom or his dad naturalized then your client is United States citizen, no immigration consequences. If mom or dad are not United States citizens but they are eligible to naturalize because they have 5 years with their green card.
If you can get to prosecutor to hold off on this for about 6 months. From the time indictment comes down from time get his charge in to tell the conviction. In during that time yet mom and dad file for naturalization and process the waiting time right now is about 6 months from the time you filed your citizenship application to you go to interview, pass the exam and gets one sin is about 4 to 6 months. If you can get the prosecutor hold off for the 4 to 6 months you can get mom or dad naturalized. Your client has won automatically acquired United States citizenship as a matter of law, not because he earned it, not because he deserves it, but because mom and dad did it for him and it’s kind of metaphor for this generation.
So if you have a situation like that where you have a juvenile who is facing an aggravated felony conviction, subject to automatic deportation see if mom or dad have naturalized, if they haven’t see if you can get mom or dad to naturalize while you keep the case pending.
Dealing with Immigration Holds, you get the 2AM jail call,” They have got my husband”, and you say,” what happened” and she say,” well he was driving down the road. He was swerving back and forth and police thought he was drunk and they pull them over but he was drunk, he’d only had five or six beers”. And you go, “is that it” And she goes,” yes! Well accept that after they pulled him over, they were flashing the flash light in the car and on the passenger side seat they found a loaded gun, but it wasn’t his!” and you go,” is that it?” And she goes,” yes, well accept that after police were patting him down they found this little plastic bag in his pocket, containing this white power what’s that called?” I say “cocaine?” she goes, “yes that’s it. You heard of it?” So you get down to the jail and you find your client got all these three charges and you are ready to bond him out but he has got an ICE hold. He’s got an immigration detainer; here is what you need to know about that; first of all, in immigration hold is based on your client’s immigration status. It is not based on depending criminal charges. If your client has an immigration hold either because he is here illegally and that letter show he is in line doesn’t help but he is here illegally or he is here illegally he got his green card but he has been previously convicted to one of these offenses we talked about that makes him deportable. Immigration just didn’t catch him sooner.
Number 2, just because he has immigration hold does not mean he will be deported and it is very difficult sometime for judges to understand and bond company. Judges are hesitant to give people with immigration hold bonds. Bond companies are hesitant to give bonds to people with immigration only. Let’s just be aware that is not mean that your client will be subject to deportation. In fact, in lot of situations your client may be eligible for bond, he may be eligible for a lien but he will not be set back from one day to the next. Secure an immigration law with ICE or immigration judge. An immigration hold is like a lien in a sense that immigration just puts the hold and says,” we will talk to him after you finish but they will not go in to the case, they will not take custody of your client until the charges have been dropped, the bond has been paid or time served “Now that gives you as a defense attoney an opporunity to sit back and talk to the family, get a defense attorney, an immigration attorney on board and try to figure out how you are going to medicate this or offset it when he winds up going to immigration. In most cases if your client has never been deported before and not been convicted, even if he is here illigally he will be eligible for the immigration bond.
And I mentioned that to say this; in a lot of cases defense attorney’s reaction will be; ok he’s got an immigration hold lets plead him out tthrough this get in to immigration we will do it from there. No, what you want to do is the reverse, after you talk to immigration attorney and you figure out there is something that can be done, if your client has no previous convictions, go ahead and bond him out on the criminal case. Get him in to immigration custody and then try to get him bond it out by immigraton that have two opportunies in immigraton bond: Once with the ice agent when they take custody. If he doesn’t want to give him a bond, the second time will be the second decsion will be made by ammigration judge. And even if your client does not have legal status, as long he doesn’t have any prior convictions he will be eligible for a bond. And I mention this because yesterday morning before I flew out here,
I had a cliet no a United States citizen, no status. His girlfriend/common law wife with United States citizen but they haven’t done any thing to start the process. He had an old DWI but he was arrested for shootig off the gun in the backyard of his house in Graland Texas, after drinking fiver or six beers with his child in backyard with him. The charges were dropped and he was placed in the ICE hold.
when we were going through the facts of the case and the judge’s listen to all facts to judge. Number 1, he wasn’t convicted and the charges were dropped and Garland is a very conservative, that’s my word of polite very conservative area. And if the Garland Police Dept and if the prosecutor in Garland and the judge is in Garland heard the fact that I’ve to drop the charges on my got case well your owner I mean there is something said for that. He gave him extersion after what happened. Well when all said and done because the only thing he has prior DWI I mean he didn’t have any papers we got him released on a 5000 bond. Now if it had been reversed, if the charges haven’t been dropped and his attorney had plead him to unlawful carrying of a weapon or discharge of firearm or something like that and then I get him in to immigration he will not be eligible for bond because there is something called mandotary detention on the immigraton law that prohibits person to have certain criminal offenses from being eligible for immigration bond. So the best strategy when dealing with someone who has an immigration hold and no prior convictions is: find out if he has any priors, get the immigration attoney on board, bond him out, get him to immigration to and then bond him out and atleast you have a client who is free and has a lot better chance in negotiating you can work with the prosecutor like even the guy who sits in yell,” Hey get me out of here I don’t care what I’ve to do, just get me out of here.” Expediatery removal that basically means that your client has been previously deported. He got 3 years of go, he got picked up and deported. He came back again 2nd time and your client when you gets back to immigration will be subject to deportation again. Now there are situations where you want your client, subject to expeditery removal.
If your client is facing serious TDC time. Because of the offense he was charged with and it look likes here is the rock here is the hard place, there is no room to menovor but he has subject to already to deportation because he got deported 3 years ago and came back illigaly. Well if you can get him back to ICE custody, bond him out or whatever. ICE in some cases maybe just go ahead and deport him. They don’t care about what he has got pending with the governemt, with the state, that’s not there deal. He is there only just try to deport him and in fact he got hired on a drug case where my client was facing serious TDC time and then they hired us just to do the deportation part of it nothing else. And try to get him deported back to so he wouldn’t do the TDC time.
Well you all, that was kind of a blitz through but it is the morning I am sure if you all have a second cup of coffee and listen to me talking by immigration for another 45 minutes. I have this afternoon at 1 o clock a more extended session, we all can bring your not so hypothetical questions. I will also talk more linked about dealing the immigration holds and with some of the other issues that I really just brushed over. There is one other thing I want to mention that is crimes of voilence and you have a section this afternoon I believe on fifth circuit cases. Crimes of voilence, from an immigration stand point are the lines in the sand that keep shifting. About 10 to 12 years ago the fifth circuit ruled that a felony DWI conviction is a crime of voilence. And for about 3 years, thousands of people were deprorted for aggrevation. And remember a crime of voilence only becomes an aggravated felony if you get a jail sentence of 1 year or more imposed. But we had hundreds may be thousands of people who had taken 3 for 3, 5 for 5’s on a felony DWI or something in subject to automatic deportation. Two years ago the fifth circuit came out with another decision I’m going to talk about more in the next class; A person convicted of evading or fleeing arrest with a vehicle, not on foot but with a vehicle has committed a crime of voilence. So if your guy takes off in the car and if police pulled him over and he is charged with evading arrest and he took off in a car under the 5th circuit definition that will now be considered a crime of voilence and if you get a 3 for 3 or 5 for 5 he will subject to automatic deportation. Its difficult, the law’s changed you know that we know all we can do is best admonished our client based on him light handed just because to be aware. The crime of voilence and the 5th circuit has repeatedly changed the definiton and expanded the definition of crimes of voilence to include a lot of offenses that at first glance would not appear to be a crime of voilence. Alright! Thank you very much.
Warrantless Searches/4th Amendment
Mr Otis represented serveral merchantse in court and a young man was sitting in the audience and say listen to him speak for 4 hours about how horrible abstrusive and antithetical to any notion of free civilised people will cherish the celebrity this was. That’s James tombstone, it’s a huge block of granite about I’d say 3 and a half feet wide, two and a half feet tall with a big brass plate on it that says who he was and even its suffers with litle bit of erosion but slowly. His speeches were called ‘the spark of the American revolution’. You’d read about that in 1950 descent by justice Frankfurter that later become the law in Chimel v. California against to point to opening here is the 4th ammendment matters. When you hear about it, roll your eyes back and head and goe,” yeah there’s nothing we can really do and I don’t have the judge with brains or backbone after grand emotion even if it’s on the law or they just going to believe the police office everytime why bother?” You need to bother! Even if it’s a class B or class C bother with it because if you don’t preserve it you don’t protect it it will disappear. See if this language sounds like somethig you might hear not on fox news; there have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantess and give the police the upper hand.
That hydraulic presure ha probably never been great then it is today. That could have been out i imagine any district court jduge with a DA going,” judge if you grant this supression motion and let this drug dealer off your liberal you’re weak. We will run against you, we’ll beat you up”. That’s pressure, the highcourt, the court of criminal appeals or fifth circuit,” you really want to get that nomination of the higher court. Don’t you rule against the police give them the upper hand they are stopping the bad guys right”. Can you hear me now Mr Obama can you hear me now? You know its just give him the upper hand we need the tools tursted. We’re the governemt! Now that was in 1968 hell I was 2. Terry V. Ohio, I think Terry v. Ohio was connected to Marilyn v. King and that you talk some otherwise smart people in it what seems to be a very limited fact bound Okay, I see that decision that comes back later and didn’t bite you in the butt it will bite you at base of your neck. It can be a real bad thing. Persistant pressure of any form gets this Erosion. Things disappers on you, the more you let go the more you lose. We know that if you get older, eat a little more, excercies little less what you thought was a shape beceomes a new shape Erodes in inverse direction. People say and they say to you as cirmial defense lawyer how can you represent somebody who is guilty? You say pretty damn well and not cheaply.
David: they say how do you, I mean gosh they’re guilty and you hear that, remember the expression, motion no descent 1993 had been real busy and find me some cases in El Paso court and some from the court of criminal law appeals and by gully I looked out I was right. They’d illegally seize this evidence and it was the drug case. And so if the drugs are out they got no case. And the assitance DA’s response when judge Mccore says,” well Sir what do you say about these cases?” and he says “I was ready for something lucky here in Mccore law school”. “Well your honor those are distinguishel because of salient facts if you look at foot on note 4…” I was looking for one of those answers. Instead what I heard was,” judge this was cracked cocain”
David: What do you mean? You know its little bit of marijuana, hole lot of child pornography doesn’t matter what it is remove that from logically equation and asks how did the police get to be where they were and seize the item they did. it really desn’t matter what they hell it is. But they did that in map, the criminal must go free if he must but it’s the law that sets him free. Nothing can destroy a government more quickly then its failer to observe its own laws or worse disregard of the character of its own existance. We operate under rule of law liberity is inherit in character to disregard those things for even seemingly good reasons at the moment, never really is!
Looking at what the Supreme Court and other courts have done we see a preference. Other then Marilyn v. King if you gotta a warrant and you’re the police in better shape far and away. Where we in criminal defense bar can seize the most fruit in a warrantless situation. That’s where they gotta scramble a little bit, make it up as they go. The court give greater protection at least this term to the body and home except for poking at your mouth. Now if you want to put nail in your arm then that’s a whole different bail away but apparantly the suave in the mouth is not so big a deal.
Florida v. Jardines came out this spring take a loot at that. Its significant not because I mean I don’t know about you all I like in town called Adloo that don’t even have drug dog in Luback they have few. I didn’t think this was that bigger case until I read it and thought about it while. Its in Miami they hear the Mr. Hardines might be pervior of a currently illegal agricultural comodity its kinda green and leafy and you can put it in the store room in the bag and they go watch his place and they see a little eye traffic. So they just take Fido the Big Belgian [inaudible] that was is 95 pounds and get it up on his porch. Back and forth back and forth yeah we got a hit. And they backout and they got a search warrant. And I think wel,” hell I will realise this just like a car on the side of the road. Dog’s deaf not a search, its passed that the dog’s credible and reliable. We got that from Florida v. Herra she can’t even markup that tree, yeah I intended a pun. And they went back and got a warrant which is preferred Mr Hardines about to have a nice little
David: Probably desiring not to return, here’s what significant about Florida v. hardine. We have a spilit opinon and you got interesting bed fellow so do Mccor is in majority on it and Scalia writes the big part of the opinion and he hauls often says, he says,” look I do it on straight property right. You bring a dog on my porch. I am calling the police, that’s tresspass that’s common law of tresspass. There is a real good concurring opinon that says look property asides I do this on priviacy and the decent came back and said no no no look there is a liscense of the public, The Avon lady, the boys Scouts, the girls Scout, It is not offense to people to have someone come and just knock on your doors. Scalia says,” yea but you brought that big damn dog. And he was going back and forth” can you imagine people you know layn’ there watching the rangers got your boxers and a t shirt on. Wifes on cellphone, kids are playing on floor. That’s song kind of like that lazy inaudible used to be on heehaw when they’re haivng the routine. All of suddent they hear this big dog barking and the door shaking. No body moves whats that! Ah, just police helping catching smell of that one hitter you had last night. “Ahh” “Don’t worry about it not big thing”.
No it would shock to snore out of you. Here is whats significant about Florida v. Jardines. Marina v. cats, you know forever we fought this fourth ammendments was grounded in property and then Kathes came in and says no it’s a reasonable expection of privacy. You don’t have to own the place which will be property no just an expectation of privacy. You maybe a guest in a home of a friend, it might be the area immediately around you and a car but you do a privacy expections so everthing was reasonably expectation of privacy. Floria v. Jardines says; no, you put them together its privacy plus property so it expands our 4th ammendement protection at least electionally or expedentially it was kind of like a sign. Hey folks don’t forget this. Florida v. Jardines matters. This going to matter a other cases later. Missori v. McNeely, Mr McNeely was driving along mind his onw business got pulled over for speeding and then lock the check list every report in your office to take this strong alcoholic beaverage, had red blood shot eyes. [inaudible] a car where he stumble when he did. Wanted an extend search took him immediately to hospital. He didn’t want to get blood or she didn’t want to get blood so told them to put the needle in and she did them in to nail and they did. Justice Thomas is this sole descense at the other end that takes the governemt position which was at the disappearence of blood within the body.
Always constitutes an emergency exception to do away with the warrant requirement. And factors leading up to the stop or always going to be your problem that will cause because its alcohol we’re concerned to about what we’re told about. Mattabelisation and the simulation and elimination in the human body its always an emergency exception. That’s what Thomas said and that ain’t the law, that’s what Missouri wanted it to be. The rest of the descendent Robertson there kind of through almost reasonable purposal out and they said well look don’t go to this case by case basis but lets kind of break traditional 4th ammendment thinking here and have a little more bright line rule that just do traditional emergency exception analysis and say look its time to get a warrant. And if there is time to get a warrant you got a go get one and if there is not time to get warrant and you can provev that well well let it slide. And you could see that being workable and find it out but here they came out and said you gotta wash because people read this case wrong. It doesn’t mean per say that all warrant less blood draws mean admissible evidence. You do get to know the notion that if you have a warrant on a blood draw the state say in a whole lot better shap assuming the warrant is sufficient. They say its still going to be totallity of the circumstances case by case basis. So what a prosecutor is kind of try to do if they were card in a woodchair is get in there and really add some stuff that cop didn’t put the police report.
That’s going to say pushing it towards an emergency that in this case they needed to. But in Missouri v. McNeely they said no that dissipation of blood does not automatically create emergency. They didn’t preclude the possibility that it could happened in the future but they said it might. So there is still going to plenty of litigation here but Missouri v. McNeely does give the defense significantly and upper hand here espacially when you look at how many judges are available. I don’t care if you are here in Wood County, Upton County or Young County or a Up pass where one of those county in which there is 2000 people in it. You know every trooper must have a sheriff a cell phone, they’ve got a computer. You can rattle a judge out of bed and do regularly because I know some of them told me about it. Judge want some coffee this morning make it two. They called me a one in the morning for a search warrant. It happeneds so when you get a warrant though how do you start evaluating it. Well ask yourself, what are they searching for and where? When did who say it was there and why? We come back to confidential sources. I remember being in law school and learn about inaudible aguilar spinelli and having to do this dance of really proving up which you had to do and the search warrant when you were talking about a confidential source. And then they came out with a case and said,” well no its gates” [inaudible] and it’s a totality of the circumstances and the message got out wrong in the legal community. It happeneds a lot, like McNeely doesn’t stand for rule that; all warrantless blood draws are inadmissible but people don’t say that just like they are going to say on Marilyn v. King,” Ok, swab inside the mouth is not a search we can do it to whoever we want whenever we want. You know we are about to get a drivers license or there are a lot of places that could get real slippery with and go down on hill in a hurry. But within formats all those aguilar spinelli rules still apply, they just fit within the broader totality of the circumstances approach. Some cases did help you with it has got a of teaching and talking about everything, let me give you best two I can think of. You don’t need to know 30 cases on it. If you are making notes learn these two; The Huddleston case actually I think with all due respect Judge Cockern who is a real…