Texas Criminal Lawyer Blog

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.

Back in October, this blog discussed a case called United States v. Jones that was about to be heard by the United States Supreme Court. The question before the Court was where the Fourth Amendment draws a line between a valid search and seizure and one that violates the Constitution. In Jones, FBI agents and local police officers attached a hidden GPS system to a car belonging to Antoine Jones, whom they suspected of trafficking cocaine. They then used the GPS system to track Mr. Jones to a stash house, where he was later arrested. Since in past cases, like United States v. Karo, the Supreme Court found that certain tracking devices did not violate the Fourth Amendment, many wondered if the current Supreme Court Justices would erode the right to be "secure in [our] persons, houses, papers, and effects" even further.

As it turns out, the answer is no. The Supreme Court issued its decision on Monday, unanimously reversing the conviction of Mr. Jones for drug trafficking. All of the justices agreed that the conviction could not stand when the evidence was invalid -- the FBI and police installed the GPS device without the protection of a warrant, having waited too long (beyond the warrant's 10-day window) to install the device. However, the Justices differed on what overturning the conviction meant for Fourth Amendment protections. Five Justices supported the lead opinion, written by Justice Scalia, while four Justices supported Justice Alito's rationale.

Justice Scalia wrote that there was no doubt that the government "physically occupied private property for the purpose of obtaining information," which made the GPS tracking device a search within the meaning of the Fourth Amendment. This notion of unlawful search was based on the common law notion of trespass, as understood by the drafters of the Constitution, rather than the newer Katz v. United States rationale, which states a search is unlawful if it violates the suspect's reasonable expectation of privacy. Scalia argued that the Katz was an addition, not a substitute for, the common law trespass test.

Justice Sotomayor, in her concurrence, agreed with Justice Scalia's rationale and also added: "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Sotomayor gave examples of disclosing your phone number when you text and phone, or an IP address when you surf the Internet. She doubted "people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year." However, their Constitutional protection could only be assured if the courts stopped treating secrecy as a prerequisite to privacy.

In his concurrence, Justice Alito argued that the Katz reasonable-expectation-of-privacy test should be used because there were no eighteenth century situations that could be compared to the technology of today's world. There did not need to be a physical trespass in order for violation of privacy to occur.

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?

At the Sierra Blanca border checkpoint, and at other areas along the United States-Mexico border, vehicle searches and seizures for illegal immigrants or drugs are common occurrences. However, there may be less of a reason for a Border Patrol agent to pull over a vehicle these days. Border apprehensions of illegal immigrants have dropped to just 340,252, one-quarter less than the numbers in 2010 and one-fifth the number of apprehensions in 2000.

Border Patrol officials believe that fewer apprehensions may be due to fewer attempts to cross the border. This may be due to a variety of factors. One factor, of course, is the beefed-up presence of the Border Patrol. This past year, the number of Border Patrol agents reached its highest number ever -- 21,444. The heightened presence has led not only to the greater likelihood of apprehension, but has led to the biggest crackdown on illegal drugs to date: nearly five million pounds of narcotics were caught at the border, an increasing of 20% over 2010. Many people south of the border believe that the heightened presence of Border Patrol agents has made getting smuggled into the country more dangerous than ever, so many don't try it.

Another reason is due to the poor shape of the U.S. economy. Many people who enter this country illegally pay smugglers up to $3,000 to take them across the border. The danger and expense don't seem worth it if there isn't a job on the other side. Add in the fact that the Mexican side of the border has been caught up in drug violence, and the risk may simply be too big to take. Finally, the Mexican economy is actually doing fairly well at the moment, and the overall birth rate in Mexico has declined, creating less of a need to move to the U.S. for a better life. So all of this combined has led to a reduction in illegal border crossings. Still, the number of illegal immigrant apprehensions remains highest in southwestern states, with the biggest hot spots being Arizona (129,118), Texas (118,911), California (72,638) and New Mexico (6,910).

These numbers are likely to convince the Border Patrol that it is on the right path in terms of cracking down on drugs and illegal immigrants. That is not necessarily encouraging when you consider that the Border Patrol's tactics are often heavy-handed and not always lawful. While there have been some encouraging attempts to place limits on the Border Patrol's scope -- such as by preventing them from investigating transit stations without knowledge of a clear threat -- it isn't enough. Too many Border Patrol agents are stopping cars at the border based on prejudice or a hunch -- neither of which amounts to a "reasonable suspicion," the legal standard required. They then come up with a post hoc rationale once they find the evidence that they were looking for -- drugs or people being smuggled. Many of the people they arrest are then taken to the local jail, where it is up to an experienced federal criminal defense attorney to defend their rights.

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.

At a time when it seems as though the Border Patrol's powers are ever expanding, one limit has finally been put in place: Border Patrol agents no longer get free rein to visit airports and other commercial hubs.

It used to be that if a Border Patrol agent suspected drug smuggling or other illegal border activity, they could visit any airport, bus, or train station where the suspect might be. However, this past October, the Border Patrol implemented a policy that prevented agents from visiting commercial hubs unless they had "intelligence indicating a threat." This policy began along the northern border of the United States, but has now been extended to some sectors along the southern border, including the El Paso sector, which includes part of western Texas.

Officials at U.S. Customs and Border Enforcement, which oversees the Border Patrol, state that this will allow the agency to use its resources more effectively. Local "field commanders" would analyze the intelligence to consider threats and risks and are send out to "mitigate these threats accordingly, using a variety of enforcement techniques." One also senses that this system is in place to promote greater accountability. One spokesman stressed: "There has to be op orders drawn up. It has to be run up the chain of command, sometimes almost all the way up to D.C."

Of course some don't like the changes, particularly the National Border Patrol Council. The Council is a labor union that includes former Border Patrol agents. The Council complains that the latest policy is designed to "handcuff the effectiveness of Border Patrol agents" at performing searches and seizures. Because of "bureaucratic red tape," Border Patrol agents cannot get authorization to operate in certain areas, giving criminals "a free pass to exploit these transit systems."

Yet if you asked people at transit hubs in Texas, you might find that the new policy has made very little difference. Employees at a Greyhound bus terminal in Laerdo, Texas claimed that Border Patrol agents still regularly appeared. One passenger noted that they gave him a "bad feeling," even though he was a citizen and otherwise law abiding.

When you think of "probable cause," you tend to think of dramatic scenarios. Such as a police officer doing a vehicle search for weapons or drugs. Or a police officer obtaining a warrant to search a house for suspicious content. Probable cause is written into the Fourth Amendment of the Constitution, which states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The general definition of probable cause is "a reasonable belief that a person has committed a crime." It is the backbone of the criminal legal system, preventing (in theory) police officers from searching or arresting based on a whim.

However, you don't usually think of probable cause -- or the Fourth Amendment -- clashing with the First Amendment. Yet that appears to be the case in Reichle v. Howards, which the U.S. Supreme Court recently agreed to hear.

In 2006, Steven Howards visited a shopping center at Beaver Creek Mall in Colorado. His visit coincided with that of Vice President Cheney, who brought along a massive security detail, including several Secret Service agents. While talking to a friend on his cell phone, Howards saw Cheney leave a grocery store and stated: "I'm going to ask him how many kids he's killed today." One Secret Service agent decided that it was "unhealthy" and "not quite right" for someone to make this statement (presumably about the Iraq War). He and the other Secret Service agents monitored Howards while Howards waited his turn to speak to the vice president. When Howards reached Cheney, he told him that his "policies in Iraq were disgusting" and touched his right shoulder. The Secret Service agents had seen enough: they believed that they had probable cause for arrest. Howards was later arrested for assaulting Vice President Cheney.

After Howards was detained at the local sheriff's department and the charges against him dropped, he filed suit against the Secret Service agents for violating his both Fourth Amendment rights through an unlawful search and seizure, and his First Amendment rights by retaliating against him for engaging in constitutionally protected speech. The issues that the Supreme Court will consider are whether probable cause to make an arrest bars a First Amendment retaliatory arrest claim and whether the court below erred by denying qualified and absolute immunity to the Secret Service agents.

There are a few places in Texas where one might see Secret Service agents, but Sierra Blanca isn't one of them. Moreover, along the U.S.-Mexico border, free speech issues don't often come up in search and seizure situations. But this case does illustrate how murky "probable cause" can be, and how easily federal and state agents can claim to have it when the situation requires. How many people have performed acts that could be misconstrued as threatening by someone determined to think the worst of them? Fortunately in this case, the county sheriff decided not to pursue harassment charges. In many other cases, though, it is up to a federal criminal defense attorney to stand up for the suspect's rights.

Medical marijuana has been in the spotlight this past month, with a focus on its shaky legality. One of the main reasons is because the federal government, which was tolerant of state medical marijuana laws for the past couple of years, has started cracking down in California. Federal government officials argued that they were only targeting those who took advantage of the medical marijuana law to sell the drug for profit. Now advocates of medical marijuana are suing the federal government.

Anti-medical marijuana states such as Texas are no more tolerant of other states' medical marijuana laws than are the Feds. Under Article IV of the U.S. Constitution, the "Full Faith and Credit Clause," states have to respect the "public acts, records, and judicial proceedings of every other state." However, there are limits to this respect -- such as if the laws of one state conflict with the laws of another state. Therefore, states do not necessarily need to apply another state's conflicting laws when deciding issues to which their own laws speak. Here in Texas, this has meant direct conflict with other states with medical marijuana laws, and with "prescriptions" written by doctors in California or Oregon or other states in which marijuana is prescribed legally.

Section 481.116(a) of the Texas Health and Safety Code states: "Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice." Penalty Group 2 under the Code includes certain forms of marijuana. Someone who commits an offense under Section 481.116(a) faces punishment ranging from a state jail felony to imprisonment in the institutional division of the Texas Department of Criminal Justice for life-- depending upon the amount of drug in possession. It has been my experience that California medical marijuana tests out as hashish-a second degree felony in Texas.

Texas prosecutors claim that Section 481.116(a) prohibits all possession of marijuana -- even if it was obtained through a valid prescription in a state where medical marijuana is legal, such as California or Washington. Therefore, if a police officer found medical marijuana during a vehicle search and seizure, the owner would be left alone in California, but would be treated just like someone using recreational marijuana in Texas. Yet does Section 481.116(a) really criminalize prescription marijuana from states where it is legal? Given that Texas itself does not legalize medical marijuana, could its silence imply that Section 481.116(a) criminalizes out of state prescriptions?

So far, evidence suggests overwhelmingly that the Texas approach is to prosecute people with medical marijuana. Last year, for instance, two Texans were charged with felonies for possession of medical marijuana in hash and pill form from a California dispensary. One suffered from severe asthma, while the other was a quadriplegic. Meanwhile, Texas legislators have successfully banned K2, a synthetic substance similar to marijuana.

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."

Most experienced federal criminal defense attorneys deal with their fair share of illegal vehicle searches and seizures. In Sierra Blanca, near the United States-Mexico border, most of these searches and seizures come in the form of Border Patrol agents stopping vehicles and seizing drugs and other property inside without justification. These searches violate the Fourth Amendment and a good attorney can often get the evidence thrown out in court. However, what if the one that violates the Fourth Amendment is your car's GPS system? The Supreme Court will have to decide after it hears arguments on United States v. Jones November 8th.

The main issues in United States v. Jones are whether the Constitution permits police officers to install a tracking device in someone's car without first getting a warrant or the car owner's permission, and whether police can legally follow a car's location through the tracking device. In Jones, the facts are as follows: in 2004, a Safe Streets Task Force of the FBI and the Metropolitan Police Department began investigating Antoine Jones, owner of a Washington, D.C. nightclub, for cocaine trafficking. After trying several different surveillance techniques, the agents got a warrant from a federal judge authorizing them to covertly install a GPS system on Jones's car. The warrant authorized the agents to install the GPS system within 10 days and only within the D.C. area, but the agents waited 11 days and did not install it until Jones's car was parked in a public parking lot in Maryland.

The GPS system gave accurate information on the car's whereabouts within 50 to 100 feet and generated information only when the car was moving. The GPS system provided data about the car's location, but not about the car's driver or any of its passengers. Using the GPS system and other surveillance information, agents were able to track Jones to a Fort Washington stash house. After obtaining warrants, they uncovered $70,000 from Jones's car and large amounts of cocaine, firearms, and other drug-related goods. Jones was charged by a federal grand jury with conspiring to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of federal law. Jones sought to suppress evidence obtained through the GPS system.

It's easy to say that any tracking system installed in someone else's car without their knowledge is bad, but the facts show that circumstances are a little more muddled. Police used other (supposedly legal) methods of obtaining information, and did get a warrant before installing the system (even if they basically ignored its restrictions). On the other hand, for police to go to the act of installing a device on your vehicle seems like a great intrusion -- too great.

The Supreme Court has been tolerant of tracking devices in the past, namely in United States v. Karo, where it stated that a beeper in a can did not constitute a search and seizure. However, in Karo the can was accepted knowingly and brought into the house, while the agents installed the GPS system without Jones ever being aware. It would be nice for the Supreme Court to take a hard line against tracking devices, in a pushback against ever-eroding privacy standards. However, this Supreme Court over the past several years has been far too willing to erode personal liberties in the face of security.

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.