Texas Criminal Lawyer Blog

Recently, President Obama signed the STOCK Act, ensuring that members of Congress who did insider trading would be guilty of a federal crime.

The STOCK Act -- or Stop Trading on Congressional Knowledge Act -- was designed to prevent members of the House and Senate from profiting from knowledge that came from working on committees that dealt with certain businesses -- knowledge that was not available to the general public. Normally, profiting from insider knowledge about a company's profits, or other financial information, is considered insider trading and is a white collar crime. But it might not shock anyone to know that Congressmen were able to profit without consequences.

Congressmen like Representative Spencer Bachus of Alabama. In 2008, while the economy was crumbling and Congress was readying a $700 billion bailout, Bachus traded on insider information more than three dozen times. Bachus is now chairman of the House Financial Services Committee and claims that he did nothing improper.

That's because it wasn't improper then. Not until Congress was embarrassed by an expose on 60 Minutes, which mentioned several names in connection with insider trading. Public outrage ensued, and members of Congress rushed to redeem themselves. The STOCK Act will allow the public to see more of government officials' financial transactions. The Act requires that any public report of new transactions of more than $1,000 be posted online -- either 30 days after the individual was notified of a transaction in his or her account, or 45 days after the transaction. The new law applies not only to Congressmen and their staff, but also to the president, vice president, cabinet members, and 28,000 other senior government officials who already must file public disclosures. The House of Representatives already posts disclosure information over the Internet, but the Senate requires those who seek the data to come to a Senate office.

As icing on the cake, the law also blocks bonuses to Fannie Mae (FNMA) and Freddie Mac (FMCC) executives while each company remains under government conservatorship.

For too long, it seemed as though the federal government was eroding Internet privacy at an alarming rate, always in the name of "safety". Now someone is finally fighting back -- surprisingly, it's President Obama.

The National Security Agency (NSA) has been seeking to expand its role in protecting private-sector computers from cyber crimes. Last year, legislation was drafted that would have required companies in charge of providing critical services to allow their Internet traffic to be continuously scanned by computer threat data provided by NSA. If any of these companies found evidence of potential cyber attacks, they would be required to turn over the evidence to the federal government. NSA officials thought that a little more intrusion was a reasonable price to pay for preventing terrorist attacks. The companies would have likely disagreed.

So did President Obama. Both Obama and the Justice Department argued that if enacted, NSA would have unprecedented access to civilians' Internet usage. While NSA claims that the process would have been automated -- with no human involvement until an actual threat was detected -- the Obama administration argued that the Internet providers charged with the scanning would have become vulnerable to cyber threats themselves. This would open them up to needing to be scanned for threats, which would put the entire Internet under government cyber monitoring. A dystopian novel could not have predicted it so well.

The legislation permitting more cyber surveillance has been pulled, for now. However, a revised version is expected to be part of the cyber legislation making its way through Congress. Given the deserved criticism of the last Internet bill, there is little reason to be optimistic. Right now there are two competing bills in Congress -- a Democratic one and a Republican one. The Democratic bill requires infrastructure to meet minimum standards for guarding against a cyber attack, while the Republican bill permits businesses to share information about cyber attacks -- shields them from liability for any actions taken to protect their computer network. Why let the government invade your privacy when your boss can do it so much better?

Cyber space is still an unknown in many respects, with new rules constantly being written to define its borders. On the one hand, the government and businesses have a right to be concerned about certain emerging threats. Russia and China have become more aggressive about launching cyber attacks on other countries, while groups like Anonymous threaten a mass-scale attack on our government's computer network. Then there are the common, everyday white collar crimes committed by hackers and fraudulent dealers. Serious crime that hurts innocent people needs to be stopped. However, as always, the problem is finding the right balance between security and privacy. Constant surveillance for every little threat just opens up the potential for abuse. Relatively innocent behavior suddenly comes under the microscope, and innocent people are accused of things that they never did and never intended to do. You should not need to hire a federal criminal defense attorney after surfing the Internet. Let's hope that NSA's plan for surveillance gets massively scaled down, or dumped altogether.

Although the Federal Sentencing Guidelines were enacted in the 1980s to erase sentencing disparities, sentences passed down by federal courts still vary wildly from district to district. A new study suggests that the problem lies with individual judges, rather than the facts of the case.

The Transactional Records Access Clearinghouse (TRAC) report studied 370,000 sentences imposed by 885 judges from a across the country, between 2007 and 2011. It is the first study of its kind. Before, judicial decisions in criminal cases, for instance, were always too difficult to find because they could not be searched by the judge, only by the defendant or lawyer's name. Also, the United States Sentencing Commission typically excludes judges' names from its sentencing data to prevent individual judges from being singled out. TRAC accessed the data using the Freedom of Information Act.

What the TRAC report showed was that sentences for common crimes, such as drug crimes, could vary dramatically depending upon the district or the judge. Here in Texas, one Northern District judge issued typical sentences of 60 months, while another issued sentences of 160 months. On the other hand, the judges at the district court for Minnesota had little difference between them -- the low was 52 months and the high 64 months. A similar discrepancy was found in white collar cases. Of the discrepancies, the report noted: "[T]o the extent judges' median drug sentences depart from one another within the same district, these differences cannot be explained on the basis of the worthiness of the cases handled by individual judges. One or more other factors -- such as the pre-existing predilections of the judge assigned -- must be the source for these disparities."

TRAC does not go further than this, such as speculating why certain judges issued much greater sentences than another judge in the same district. There is no mention of the judges' age, political bent, childhood background, religious inclination, or other factors. In that respect, the judges' motivations remain a mystery, and only another dedicated examination of the facts could uncover a pattern rooted in ideology. At the very least, the study gives a sense of how suspects would fare throughout the country, and where it would be most unlucky to be caught with drugs or committing a white collar crime. Here in the Western District, the lowest median drug sentence is 12 months, the highest 92 months.

The situation is ironic. The Federal Sentencing Guidelines continue to carry much sway, despite the fact that they failed to meet their objective. The Sentencing Guidelines were set up as part of the Comprehensive Crime Control Act of 1984. They consist of a sentencing grid with 43 levels, four zones, and criminal history. Although the sentences that have resulted from the Sentencing Guidelines could be drastically different for similar crimes (such as the difference between crack cocaine and powder cocaine possession), it has been overlooked so long as the Sentencing Guidelines as a whole made the judges more consistent.

The number of people trying to smuggle illegal drugs across the U.S.-Mexico border every day may include Texas government officials. El Paso County Commissioner Guillermo "Willie" Gandara Jr. was indicted for conspiracy to possess with intent to distribute 50 kilograms of marijuana, as well as possession with intent to distribute. Gandara had previously condemned efforts to legalize marijuana, claiming that he supported "keeping marijuana out of the hands of kids and keeping marijuana proceeds out of the hands of cartels."

Gandara was arrested during a routine traffic stop at the Sierra Blanca border checkpoint. In addition to the conspiracy charges, he stands accused of going by the alias "Godfather" and maintaining property in El Paso for the purpose of distribution since November 2010. Gandara has appeared at the federal court in El Paso and now sits in an El Paso County jail without bond. Gandara's family is well known in El Paso, with his father and brother both having served on the school board or city council. Worth noting is that Gandara's father and brother are no strangers to accusations of law breaking and betraying the public trust. Willie Gandara Sr. was recalled as mayor of Socorro in May 2011 after being indicted in a public corruption investigation, while last month, Jesus Gandara became part of the "largest public corruption case in its history" as a superintendent in San Diego, California. If Gandara Jr. is found guilty, he faces up to 20 years in federal prison for each charge against him.

The Gandara family may be a unique case, but Gandara Jr.'s arrest has raised the question of how many other Texas public officials could be involved in the drug trade. Some have speculated that Mexican drug cartels like the Zetas and Sinaloa could have more public officials on their payroll.

In a situation like this, many would praise the Border Patrol's actions and claim that justice is served. A public official was subjected to the same search and seizure tactics as everyone else. And if the Border Patrol must pull someone over and arrest him at a checkpoint, isn't it right that it should be for the offense of smuggling large quantities of drugs rather than for having a personal stash in the glove compartment?

All of this may be true -- Gandara is innocent until proven guilty, and is entitled to representation by a criminal defense attorney -- and yet it still does not change the Border Patrol's fundamental problems. For all of the large-scale smuggling operations Border Patrol agents have successfully broken up, there are cases where the Border Patrol arrests individuals with negligible amounts of drugs who are otherwise law abiding. Is each success worth the cost of forcing countless people to defend themselves in an overcrowded court system?

Over the past several years, use of synthetic drugs -- especially synthetic marijuana -- has been on the rise. Even though 40 states, including Texas, banned synthetic marijuana, recent news on synthetic drugs shows that there is no sign that teens intend to stop using it. As a result, in March 2011, the Drug Enforcement Administration (DEA) moved to ban the chemicals for making synthetic marijuana for at least one year. Now the House and Senate are in the process of making synthetic marijuana use a federal crime. The House passed a ban late last year on a 317 to 98 vote, while Senate passage is currently being blocked by Senator Rand Paul (R-Kentucky). With so much activity surrounding synthetic marijuana, it is worth taking a look at what it is, how it started, and whether it is worth such alarm.

Synthetic marijuana goes by multiple names, including K2 and Spice. It first appeared in gas stations across the United States in 2006, being sold as tea, incense, or herbs. Although manufacturers claim that synthetic marijuana consists of medicinal herbs that combine to create a "mild" hallucinatory effect, studies show that the herbs are actually sprayed with chemicals to create the effect similar to marijuana. It is likely that synthetic marijuana came into being because its manufacturers thought it could skirt prohibition laws by posing as something natural and even healthy.

However, evidence is mounting that synthetic marijuana is far worse than ordinary marijuana. While marijuana remains in your system for a relatively short amount of time, the effects of K2 or Spice remain in your brain and organs longer. Marijuana combined with alcohol has a very mild effect, while synthetic marijuana combined with alcohol can make people extremely ill. Some side effects of synthetic marijuana that you would not find in ordinary marijuana include vomiting, seizures, and trouble breathing. In the first 10 months of 2011, poison control centers handled 5,741 calls about synthetic marijuana, nearly double the calls received in 2010. Worst of all, synthetic marijuana has been linked to psychosis (while the psychosis effect of marijuana remains inconclusive) and suicidal thoughts.

Since synthetic marijuana only became popular six years ago, its long-term effects remain unknown. Still, it is safe to conclude that all of the concern about synthetic marijuana is warranted. Even so, lawmakers need to move cautiously in banning the substance nationwide. Senator Paul and other Senators raised a valid concern that a new law could interfere with legitimate pharmaceutical research, as well as send plenty of otherwise law-abiding users to prison. Federal criminal defense attorneys already have their hands full defending cases of regular marijuana use, let alone cases of synthetic marijuana use.

Also, even if certain synthetic marijuana compounds are banned (which seems inevitable) on the federal level, there will always be experimentation to arrive at new compounds that create the hallucinatory effects of marijuana. Meanwhile, this entire situation just highlights how inoffensive ordinary marijuana is by comparison. It makes one wonder if the best solution wouldn't just be to legalize marijuana, which would automatically make all of these synthetic drug combinations irrelevant.

Back in August, this blog discussed a relatively new trend of prison closures in Texas. After decades of tough-on-crime rhetoric and tougher prison sentences, the cost of running a prison has risen steeply. One reason is because lengthy sentences have resulted in many prisoners reaching senior citizen status, requiring the health care that comes with it.

According to Human Rights Watch, "between 2007 and 2010, the number of state and federal prisoners age 65 or older increased by 63 percent while the overall population of prisoners grew only 0.7 percent in the same period." In Texas, although senior inmates make up only seven percent of the total prison population (approximately 160,000 inmates), they account for one third of the health care costs.

Now Texas officials are scrambling to find ways of providing low-cost health care. It used to be that the University of Texas and Texas Tech treated inmates, but that system may not be in place much longer, given that last year, their bill for service was $400 million. Just recently, the Texas prison board made a deal worth $46 million with Huntsville Memorial Hospital for the hospital staff to serve inmates who are incarcerated nearby. This type of deal might be extended to other regional medical facilities. Texas also has set up geriatric wards in each prison for inmates 60 years and older.

Otherwise, the Texas solution to stemming the costs of old age is to not have so many inmates reach old age. That is, to find alternatives to putting people in prison. This includes putting more money into rehabilitation programs for drug use and other crimes. Yet the effects of that approach won't be felt for many years. Meanwhile, inmates are getting older faster than non-inmate senior citizens of the same age. They have physical and mental health issues that pose a challenge to any medical staff.

How did the prison population reach this point? Again, much of it has to do with the tough-on-crime attitude that was prevalent for far too long, since at least the 1970s. It can be seen in the Federal Sentencing Guidelines, which were established in 1984 and have been adopted in many states. They were meant to produce "fairness" in sentencing, but have often had arbitrary, overly harsh results of their own. The most infamous example was the sentencing disparity between crack cocaine and powder cocaine, which persisted until 2010. Although the Sentencing Guidelines are meant to be advisory, they continue to carry great weight with federal judges.

In his State of the Union address, President Obama announced that a new unit had been formed for the purpose of investigating mortgage fraud and other white collar crimes. The new unit -- led by New York Attorney General Eric Schneiderman, known for taking a tough stand against mortgage lenders -- will have 55 prosecutors, FBI agents, and analysts. Together, they will examine what exactly caused the "massive market failures" that led countless people to lose their homes to foreclosure.

The reasons behind the economic collapse that shook the world are almost too complex to sort out. But one basic storyline is as follows: Mortgage lenders began to engage in subprime lending, or lending to individuals with poor credit histories. They did so at a time when home values were rising quickly. It seemed like a win-win situation: mortgage lenders could reap huge profits while the borrowers could buy the house of their dreams. Often, mortgage lenders pushed "adjustable rate mortgages," where the monthly mortgage payment started low, then eventually increased. When housing prices finally started to drop, borrowers found themselves with higher mortgage payments and unable to refinance to pay off the loan. Families everywhere could not make payments and mortgage lenders started to foreclose. To make matters worse, mortgage lenders had packaged loans together as "mortgage-backed securities" and sold them internationally. When the loans failed, the securities became worthless and many of the investment banks that bought them collapsed.

Today many people are still defaulting on their mortgage payments and mortgage lenders are foreclosing on their houses. Many claim that mortgage lenders are going so far as to commit mortgage fraud in order to swindle people out of their homes. Mortgage fraud is a federal crime that consists of a misstatement, misrepresentation, or omission that goes to the heart of the agreement. It isn't just a small oversight -- like saying the monthly payment is $995 when it is actually $1,000 -- but a misrepresentation that intentionally led the borrower to believe something that wasn't true, and to act on that belief. Mortgage lenders have been accused of falsifying information on home loan documents, without the borrowers' knowledge, in order to make it easier for the borrower to get the loan, only to turn the tables once the borrower (inevitably) defaulted.

While the mortgage lending industry desperately needs to be kept honest, for its sake and that of the general public, we need to be careful not to assume that mortgage lenders are always dishonest and after your house. The unfortunate truth is that while there were unscrupulous lenders, there were people on both sides who believed the hype -- that home prices would rise forever and ever and no loan bore too much risk. With hindsight, we can say that that attitude was foolish, that is still far different from peddling mortgages that the lender knew the borrower could not afford. It shouldn't be a reason to hire a criminal defense attorney.

Furthermore, mortgage lenders often don't want to foreclose upon a house. It often involves long months of litigation, while the mortgage goes unpaid. Then, when they try to sell the house, it goes for far below its original value. So while the new investigation unit is long overdue, one hopes that they are able to keep things in perspective -- not lump the foolish in with the truly criminal.

When you think of cyber crimes, several stand out. Cyber pornography. Sending malware to destroy businesses' and individuals' computers. Cyberbullying. Identity theft. Stealing information from people's computers. But does downloading information without paying for it really deserve to be lumped in with the others as a federal crime?

Yes, according to the entertainment industry, which has long been at war with downloaders. One of the first major salvos in the war was the lawsuit against Napster, the first online file sharing service, in 1999. The eventual trial (outcome in 2001), considered whether and how Napster had violated copyrights established under the Digital Millennium Copyright Act. Napster's services involved free file sharing -- especially music files -- and downloading. Napster eventually shut down to comply with an injunction, and new filing sharing services such as Grokster flocked to take its place. Other lawsuits followed -- the Recording Industry Association of America (RIAA), in particular, filed 35,000 lawsuits against individual downloaders between 2003 and 2008.

For a while, services that offered cheap downloads, such as Apple's iTunes, seemed like the solution to the problem. Artists could get paid and consumers hungry for content could have it quickly. But authorized services can't always keep up with consumer demand (consider that it took until 2011 to put Beatles albums on iTunes), especially if the demand is for obscure material that isn't sufficiently "commercial." So downloading persists, and the entertainment industry, in tandem with state and federal government, tries to think of ways to crack down.

The latest effort is the Stop Online Piracy Act, currently working its way through the House Judiciary Committee. The bill would expand the powers of federal law enforcement and copyright holders to go after anyone who violated copyright laws or sold counterfeit goods online. Supporters claim that the Act is exactly what is needed, since other efforts have not stopped the flood. We have copyright laws for a reason: so people who create a work of art can, for a period of time, be the only ones to benefit from that creation. What would motivate people to create and sell their works if they could just be stolen and used without the creator's permission? People who want content should just pay more, rather than expect to have everything they want, when they want it, for free.

The counter arguments are that copyright laws in this country don't conform with the current reality. For too long, entertainment companies controlled how and when people received a product. So if you wanted one song, you needed to pay for the whole CD. If you wanted to watch an obscure film from your childhood, you needed to wait until one of the entertainment companies remembered that it existed and put it on video. Now, you can find the most obscure content easily because someone else has put it online. Artists long forgotten are suddenly talked about again, and inspiring other people to create their own works. Should people pay huge fines and go to jail for that? Should file-sharing websites like YouTube have to carry the burden of checking every single file once it is uploaded? Should college students have to hire criminal defense attorneys just for sharing music?

As it stands, the Stop Online Piracy Act is winning few friends and plenty of critics. One such critic came in the unlikely form of Republican Congressman Darrell Issa, who called the Act unconstitutional. He stated: "SOPA was ill-conceived, written in Hollywood, and included all kinds of things that physically can't be done, including the DNS blocking." To placate critics, the House has already stripped out the Domain Name System (DNS) blocking provision, which would have required ISPs to block overseas websites accused of piracy.

Even if the Stop Online Piracy Act is enacted, the issue of illegal downloading will surely be with us for years to come. Both sides have some merit, and it remains to be seen which side (if any) prevails.

Congressmen from Texas vow to tackle security issues in 2012, specifically border security and cyber space protection. They intend to introduce a bill to the House Homeland Security Committee that would add new technology to the border patrol, such as unmanned aerial vehicles, as well as standard airplanes and helicopters.

Congressmen such as Lamar Smith and Francisco Canseco argue that the bill is necessary because "only 44 percent of the Southwest border is under operational control of the Border Patrol." They criticize the Obama administration for reducing the number of National Guardsmen along the 2,000-mile border shared with Mexico.

Meanwhile, Texans in Congress are also hoping to advance a bill that heightened security over the Internet. Texas is home to several important government institutions and private groups, including the 24th Air Force and the University of Texas at San Antonio, which make security their business. Congressmen want to continue protecting sensitive information that the federal government stores online, and to make sure that "no enemy ever turns the Internet against the United States."

The cyber space security bill would create a quasi-governmental entity to oversee any information shared with the private sector. Private firms would be encouraged to share information on cyber threats without mandating new security measures. The Department of Homeland Security would evaluate all cyber space security risks and then determine the best way to mitigate them.

While the concern of Texas congressmen is heartening (and of course none of it has to do with the fact that San Antonio gets an economic boost from greater cyber space security measures), as usual, the legislation has the potential to go too far if Congress isn't careful. For one thing, there is the question of why the border needs so much more security when the number of crossings has plummeted, and there is no real evidence that violence from Mexican drug gangs has spilled over into the United States. If the southern border is as vulnerable as the Texas congressmen claim, why haven't there been more instances of terrorists smuggling bombs, biological chemicals, or other weapons across it? Who is to say that if they chose to, they couldn't do so even with greater security measures in place?

Cyber crimes represent a challenge for prosecutors and criminal defense attorneys alike. They are forever pushing the boundaries of cyber space and brushing against the line between free speech and criminal acts. It is easy for innocent net surfers to be caught in an investigator's net, just as it is easy for many cyber criminals to evade detection.

A recent decision in a case of Twitter "cyber stalking" demonstrates the challenge of defining what makes a cyber crime. William Lawrence Cassidy, a resident of California, began posting thousands of messages about a Buddhist religious leader named Alice Zeoli who lived in Maryland. Cassidy was once involved with Zeoli on a romantic and professional level. After their relationship went sour, Cassidy began posting on Twitter under numerous pseudonyms, leaving cheerful messages such as: "Do the world a favor and go kill yourself." Cassidy was later charged with violating a federal stalking statute. However, a federal judge in Maryland, Roger Titus, ruled that Cassidy's messages were speech protected by the First Amendment.

Although Cassidy's speech may have caused substantial emotional distress, the judge wrote, it covered time-honored First Amendment subject matter such as anonymous "uncomfortable" speech addressing religious issues. Judge Titus drew an analogy between a modern-day blog and a bulletin board during colonial times. A blog was like a bulletin board that a person in those days would have put in his front yard. If a colonist wanted to see what was on a neighbor's board, he or she had to go over and look at what was posted. A Twitter post was like news from one colonist's board showing up on another colonist's board. The other person could simply turn it off and "disregard" the message. It lacked the impact of a telephone call or email that is directed at a specific person.

Whether or not the analogy works (and it's debatable), the bottom line is that Judge Titus thinks that Cassidy's behavior is not stalking, with the intent to harass and cause substantial emotional distress. Cassidy's behavior was venting -- in perhaps some very nasty ways, but still ways that do not amount to a criminal act.

This episode just demonstrates, as a law professor from University of California at Los Angeles noted, that there is very little case law surrounding cyber stalking. Many believe that the Cassidy case will set the tone for cases to come. It is heartening to see that at least some case law will take the position that free speech on the Internet is important, even when it's the kind that no one wants to defend.

Maybe the term "white collar crimes" needs to be changed, to something like "blue-and-red collar crimes." That's because white collar crimes are branching out -- or rather, other groups are branching into crimes once thought to be limited to business executives in their offices. Recently, it was revealed that national gangs like the Bloods and the Crips are committing their drive-by shootings through cyber space crimes that are white collar in nature.

Both gangs have increasingly committed financial cyber space crimes that not only threaten Corporate America, but also pose a risk to the rest of us. Their white collar schemes range from mortgage fraud to counterfeiting to identity theft to credit card fraud. These crimes offer less risk than "traditional" crimes like murder and drug trafficking -- and the reward is potentially much greater.

The FBI warns that besides the Bloods and Crips, other gangs like the Latin Kings and Aryan Brotherhood are getting involved in online white collar crimes. More importantly, these gangs are growing in size, as they purposely go out and recruit people with high-tech computer skills. The gangs have even been recruiting through social network sites like Facebook and Twitter. (One would think that people with high-tech backgrounds would know better than to tangle with the Bloods and Crips, but in this economy, maybe any job is better than none.) FBI agents claim that some of these criminal gangs are as large and sophisticated as any corporation. That sounds a bit rich, but it is an indication that gang activity has gone beyond the smash and grab punch -in -the -mouth tactics of pre -cyberspace days.

These reports serve as a reminder to never let your guard down when you are online. If a complete stranger claims that you will win a big prize if only you provide personal information like your birth date, Social Security number, or mother's maiden name, you will probably just hit the delete button. On the other hand, not every white collar crime is a big and sophisticated scheme run by a conspiracy of gang related thugs. A criminal defense attorney may defend many small white collar suspects who simply misunderstood their situations. For instance, there have been several cases where a suspect in a cyber chat thought that he was talking to someone of legal age; or cases where the suspect was just a mid-level manager doing work that his superiors wanted him to do, not realizing that the work was fraud. Then there are cases where the suspect was not even involved with the crime. On more than one occasion, people who use shared computers have been accused of crimes they knew nothing about. That is because the computer's ISP just records that the computer was being used at a given time -- not who was using it. Therefore, your nice but secretive uncle who came to visit for two weeks and used your computer late at night might never be charged, but you might not be so lucky.

And then there are white collar suspects who -- it turns out -- masterminded big schemes and were completely aware of their illegal activity, like members of the Bloods and Crips. Believe it or not, even those suspects have the right to be represented by a defense attorney in a criminal trial.

Judges are supposed to make decisions on federal crimes, not commit them. Yet Judge William Adams, a county court judge in Aransas County, Texas, very nearly did. The judge got into some serious trouble when his 23-year old daughter, Hillary, posted a video on YouTube of some family bonding from 2004. Only instead of bonding, the video footage showed Judge Adams lashing his then 16-year old daughter with a belt as she begged him to stop. Within a few days, the video got more than four million views.

Judge Adams responded with the maturity that one would expect of someone in his position. When confronted with the video evidence, he claimed that his daughter was trying to get back at him for reducing her financial support and threatening to take away her Mercedes. The Aransas County District Attorney investigated the matter and concluded that the Texas statute of limitations had already expired. He claims that he would have pressed charges if that hadn't been the case. That meant that the only way Judge Adams could be prosecuted for a crime was if a U.S. attorney pressed charges. After viewing the video footage, the U.S. attorney's office found that no federal crime had been committed.

Ironically, the judge oversaw a lot of juvenile abuse cases. The Texas Department of Family and Protective Services, which is conducting its own investigation, has asked that he be removed from hearing these cases until the investigation is concluded. Judge Adams is already taking a two-week leave, while an interim judge has come in to hear all of his cases.

It's never pleasant to read stories about judges behaving badly. At least this judge seems to have kept his darker side private -- unlike a certain judge in Pennsylvania who abused his position at the expense of dozens of young people who appeared before his court. Still, it does raise the question of whether a judge who commits violence in private is an unfit judge -- even if his violence is not illegal (under federal law, at least). Judges in general are held to a higher standard because they hold our lives in their hands, so to speak. While many of them began their careers as prosecutors or criminal defense attorneys, when they become judges, they "cross over." Texas judges must abide by a code of conduct, as do federal judges. While the letter of the Texas code of conduct does not prohibit violence against family members, it is hard to imagine that anyone would be able to overlook it. Especially when it could color the judge's view of cases that come before his court every day. So the answer to the earlier question -- is a judge unfit even if his violence does not break laws? -- is likely yes.

At least there is one consolation to the Judge Adams situation. Unlike a federal judge, who can stay in office forever unless he is impeached, Judge Adams must periodically run for office, as Texas judges are selected at the ballot box. If he is not removed or does not resign, his term will be up in three years. And then the voters can choose whether to keep him or kick him out.

Gun trafficking is a serious federal crime -- especially when it is associated with drug trafficking. Under Title 18, Section 924(h), a person who knowingly transfers a firearm, "knowing that such firearm will be used to commit a crime of violence (as defined in subsection (c)(3)) or drug trafficking crime (as defined in subsection (c)(2)) shall be imprisoned not more than 10 years, fined in accordance with this title, or both." (The laws could get tighter if specific legislation aimed at stopping gun smuggling to Mexico is passed.) The Bureau of Alcohol, Tobacco, and Firearms (ATF) also prohibits illegal purchases of firearms over the Internet. Yet because of weak state laws, firearms often travel freely from state to state without repercussions.

Here in Texas, gun laws tend to be on the weak side. Most rural Texans have some sort of firearm aboard, and get hopping mad when challenged about their right to have whatever gun they choose wherever they choose to have it. This is in sharp contrast to California, where the governor just signed a law banning the open carrying of weapons. What researchers have found is that because of the discrepancies between states, guns tend to flow from states with weak gun laws to states with strong gun laws. In New York, for instance, it was discovered that two out of three guns found were purchased in other states. While federal law prohibits selling guns to felons, it's not so difficult to find a gun show where gun sales are largely unregulated. Gun regulation has become even harder since the Supreme Court decision District of Columbia v. Heller. The result is that a lot of guns from unregulated states commit crimes in the regulated states.

No federal criminal defense attorney can view unchecked gun smuggling as a good thing -- even if he or she represents clients involved in gun crimes. First, the obvious reason: guns commit crimes and cause death. Maybe not so much in border cities, but definitely in cities like Austin and Houston. Another reason is -- if you live and commute along the United States-Mexico border -- it gives Border Patrol agents another reason to search your car. As this blog has stated repeatedly, if Border Patrol agents have a reason to look for something, they will find a way to do it illegally. That is not to say that Border Patrol agents always conduct illegal searches, but they do it frequently enough to provide a criminal defense attorney with a lot of business. Border Patrol agents need to have a "reasonable suspicion" in order to stop a car going across the border, and "probable cause" to search. This includes highway stops considered "functional equivalents" to the border, like the much publicized Sierra Blanca checkpoint .Yet too often agents will invent reasons like these. If Border Patrol agents suspect you are smuggling firearms along with drugs, they will stop your car.

Contrary to the tone of this article, however, most Texans are not smuggling firearms anywhere--they are simply exercising their right to carry a pistol or rifle when traveling the roads of the state. And they take that right seriously.

The research done on gun smuggling throughout the states shows that greater cohesion might be needed in order to prevent more crime. When neighboring states have comparable laws, the smuggling tends to occur less frequently. In the case of Texas, since all of Texas's neighbors have weak gun laws, fewer guns are smuggled from Texas into other U.S. states than one might think. (Mexico, however, is a different story.)

Most Texans, however, keep their guns to themselves, or as the old law used to say," on or about their persons, or in their saddlebags."

The Supreme Court has started its latest term, and one of the first items on its agenda is whether prisoners have Miranda rights.

As this blog noted earlier, Miranda v. Arizona turned 45 this year. It enshrined the Fifth Amendment right to receive a warning before being interrogated by the police: "You have the right to remain silent. Anything you say can and will be held against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be appointed for you." The idea is to prevent an individual from saying something incriminating that could put him or her behind bars.

But what if you are already in prison for a state or federal crime? Does a Miranda warning still have any relevance, or do the convicted leave their Fifth Amendment right at the jailhouse door? That is what the Supreme Court will consider after October 4th arguments on Howes v. Fields.

In 2002, Randall Lee Fields was convicted in Michigan of two counts of third-degree sexual conduct. He was sentenced to 10 to 15 years in prison. Before trial, Fields sought to suppress an incriminating statement that he made to police while in a county jail on an unrelated charge. A police officer had taken Fields into a conference room in the sheriff's department to answer questions. Fields was wearing a prison uniform, but was not handcuffed or restrained in any way. Without first reading him his Miranda rights, two sheriff's deputies proceeded to question Fields for seven hours about his relationship with a minor. Fields was told that he could leave at any time, but he felt that he had to stay and answer. Fields never asked for an attorney or to be returned to his cell.

His motion was denied and the incriminating statement was brought in as evidence. Fields made a federal appeal, and his case was eventually heard by the Sixth Circuit Court of Appeals. The Sixth Circuit found that the state court decision was contrary to Mathis v. United States (1961), which created the rule that "a Miranda warning is required whenever an incarcerated individual is isolated from the general prison population and interrogated . . . about conduct occurring outside of the prison." Just last year, the Supreme Court found in Maryland v. Shatzer that an inmate removed from his cell and interrogated about an unrelated crime should have a Miranda warning.

If you need a reason to believe drug smugglers deserve a fair trial like anyone else, this is the story for you. A number of people have been used as unwitting vehicles to smuggle marijuana, cocaine, and other drugs across the Texas border into Mexico and vice versa.

For example, Ricardo Magallanes, a United States citizen and El Paso college student, was crossing the border into Mexico when the U.S. Border Patrol stopped his car and performed a search and seizure. The Border Patrol agent found 112 pounds of marijuana that had been stuffed into duffle bags sitting in his car trunk. Magallenes was shocked to learn about the marijuana and terrified about his fate. "I was wondering if I was going to spend years and years in prison." The same thing happened to Jose Molina, a Mexican citizen with a long employment record and clean criminal history. He was given a free bus ride across the border to Houston; in exchange, he brought some saddles through U.S. customs. It turned out that the saddles were filled with cocaine worth $20,000.

Over and over, respectable people who crossed the border every day to earn a living were arrested for possessing drugs that they never knew were there. Of the five people arrested in El Paso, one was convicted by a jury and two pleaded guilty in order to face a reduced prison sentence.

According to Houston attorney Norm Silverman, "[t]his has been going on as long as there has been smuggling." For a drug trafficker, having an unwitting courier is the best possible situation because that person won't show the signs of nervousness that could be a tip off to law enforcement officials. The Department of Justice doesn't keep track of how many federal cases involve unwitting couriers. However, 2009 figures show that of the 3,846 defendants charged with drug trafficking in the Houston to El Paso area, 126 were dismissed.

Magallanes was lucky. After refusing to plead guilty, he was convicted by a jury, and would have gone to prison if District Judge David Briones hadn't stepped in. Judge Briones said that there was no evidence that Magallanes knew that the duffle bags were in his trunk. The judge might not have ever voiced his concerns if he hadn't spoken to a colleague who presided over the same situation. The suspect in that case was found not guilty. Judge Briones's suspicion led to a new federal investigation, where a confidential informant finally told the truth about what happened.