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How to Become a Bounty Hunter

Tag: Texas

Parker: Supreme Court in December Will Hear Case on Texas Businessman Convicted of Illegally Accessing Protected Computer

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

Ross Parker

Ross Parker

By Ross Parker

The only oral argument before the Supreme Court during the last month of 2015 on an issue involving criminal law or procedure is Musacchio v. United States. The case involves the conviction on three counts of a North Texas businessman for conspiracy and for making unauthorized access to a protected computer of a competitor (for which he was previously employed) through a back-door password. He was sentenced to 63 months in prison. The civil case for his conduct was settled for $10 million.

The case presents two issues:

  1. Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment?
  1. Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal?

Sounds like pretty dry stuff, huh? The kind of legal fare appetizing only to criminal lawyers and probably few of them. It, however, should present a meal of delicious irony during oral argument.

Stripped of its legal minutia, the fact is that both parties lapsed at the trial level on different issues and are now seeking appellate forgiveness under an application of the “plain error” rule. But each will want no such forgiveness for their opponent on the other issue. The government offers in addition a multitude of other reasons why the defense legal analysis is erroneous and, in any event, not applicable.

As to the first issue the statute permits alternative theories of proof for conviction. The evidence can establish that the defendant agreed to make unauthorized access (or made such access) or that he conspired to exceed authorized access (or actually exceeded such authorized access). The proofs in this case relied upon the former alternative both as to the conspiracy count and the two substantive counts.

The statute was properly charged in the indictment. But the trial judge, apparently in disregard of the government’s correct requests, presented the erroneous charge to the jury that the evidence had to be proven conjunctively (and) rather than disjunctively (or) as to the two alternative elements in the conspiracy count. The government did not object to the instruction, which it asserts was inadvertent and “clerical.” Now the government argues, among other things, that this was plain error which could be excused on appeal.

The defendant, however, relies on cases holding that the error waived appellate consideration and correction of the issue and that the appellate review of the sufficiency of the evidence requires proof of both alternative theories. Hence, the “law of the case” applies. And the Circuit Courts are somewhat split.

On the second issue, the tables are turned. The defendant, in effect, argues for forgiveness for his counsel’s failure to raise at trial the statute of limitations defense. This was plain error which can, in the view of some Circuit Courts, be raised on appeal. This time the government counters that the issue is not jurisdictional, unreviewable on appeal, and that the defendant waived the issue. And, again, there is some difference in the Circuits on the reviewability of this issue.

Of course few things that find their way to the Court are ever simple. The plain error/waiver rule for the two issues involves different rationales and case law threads. The Court could excuse both parties’ lapses, neither of them, or one and not the other. A decision behind door # 3 might seem anomalous to common sense, but there are a host of related arguments and sub-issues that bear on the analysis of the contexts of both questions.

Prediction: The government should win this round of the litigation. The jury found that both of the alternative methods of proof were established by the evidence, and it is weird to require the Court to, in effect, create a crime requiring both methods to review the sufficiency of the evidence just because the government didn’t object to a single erroneous instruction. As to the statute of limitations issue, the defendant should lose this one, also, since there is no reason to believe that the statute was intended to make the question jurisdictional. To make the question reviewable on appeal would prevent the government from raising factual issues at trial that could convince the jury to reject the claim.

However, in round # 2, the defendant will undoubtedly file a post-conviction, habeas corpus claim that his trial attorney rendered ineffective assistance of counsel in failing to file a statute of limitations objection. He could win a reversal of the conspiracy conviction although, unless he gets a re-sentencing, his concurrent sentence on one of the remaining counts makes it unlikely he will be home to watch the Dallas Cowboys games anytime soon.

Border Patrol Employee Posts Sign That Reserves Halloween Candy for ‘American families’ Only

Border PatrolBy Steve Neavling

A Border Patrol employee posted a sign outside of a government building in the border town of Presidio, Texas, that reserved Halloween candy for “America families” only.

The sign, written in Spanish, translated to, “Only American families will receive candy,” the New Civil Rights Movement reports. 

The town of Presidio is more than 87% Hispanic.

CBP quickly apologized, saying it supports all cultures.

“We respect all people regardless of their culture, nationality or origin. We apologize for any harm this incident may have created in our relationship with the community,” the statement read.

Residents were outraged and offended, including the mayor, John Ferguson, who said he’s never been excluded from holiday celebrations in Mexico.

FBI Agent in Critical Condition After Being Shot by Fellow Law Enforcement Officer

FBI file photo

FBI file photo

By Steve Neavling

An FBI agent was in critical condition Thursday night in the Texas panhandle after he was accidentally shot by a fellow law enforcement officer, Breitbart reports.

Special Agent Mike Orndorff was helping carry out a warrant when he was shot by an officer with the Texas Department of Public Safety.

“The preliminary information indicates that the FBI agent was accidentally shot by a Texas Department of Public Safety (DPS) Criminal Investigations Division (CID) special agent,” Sgt. Witt wrote in a statement obtained by Breitbart Texas Friday night. “DPS Texas Rangers, DPS CID special agents and FBI agents were all on scene as part of the investigation.”

The suspect wanted in the warrant was arrested on undisclosed charges.

No updates were immediately available.

Mexican Man Arrested After Allegedly Attacking Border Patrol Agent

border patrol 3By Steve Neavling

A Mexican man who attacked a Border Patrol agent last week near Donna, Texas, has been arrested, Valley Central reports. 

The attack allegedly occurred following a high-speed chase after a Chevrolet Tahoe nearly struck a Border Patrol vehicle in an area “notorious for undocumented aliens and narcotic crossing,” federal record show.

The high-speed chase ended with Roberto Flores-Cayetano leaping out of the Tahoe and running, officials said in a criminal complaint.

“Agent Hernandez advised Flores-Cayetano to stay on the ground and to put his hands behind his back, but he refused,” according to the criminal complaint.

A struggle ensued, and the agent used a Taser to subdue the suspect.

A passenger got away and left behind about 524 pounds of marijuana.

The passenger remains on the loose.

Teacher, Her Husband Arrested on Methamphetamine-Related Charges

Theresa Stroud

Theresa Stroud

By Steve Neavling

Parents have enough to worry about when sending their children off to school.

In Midland, Texas, a teacher and her husband were arrested over the weekend on methamphetamine-related charges, My San Antonio report.

DEA agents arrested the couple, Theresa Renee Stroud, 47, and Stacy Stroud, 52, who were being held in jail awaiting bond.

Federal officials were staking out the couple for more than a moth before making the arrest.

The good news: Officials don’t believe Theresa Stroud brought the drugs into her classroom.

“I know that when they apprehended her that she had narcotics on her,” Sheriff Gary Painter said. “She was booked into jail and they found some more during the booking process.”

Stroud resigned from Lee High School.

“MISD was made aware of the arrest of Lee High School teacher, Mrs. Theresa Stroud, over the weekend,” MISD Superintendent Ryder Warren said in the release. “I have accepted a resignation from Mrs. Stroud this morning, so she is no longer an employee of the district.”

Authorities Found 37 Undocumented Immigrants Stuck inside Sweltering Truck

Border PatrolBy Steve Neavling

Sheriff’s deputies found 37 undocumented immigrants crammed inside a sweltering hot 18-wheeler at a San Antonio truck stop and unable to get out.

Fox News reports that the Frio County Sheriff’s Office made the discovery after receiving a call about people trapped inside a tractor-trailer.

“We checked the trailer of the truck and we noticed a small little door on the back of the trailer and there were hands sticking out trying to open up the door,” Sergeant Jerry Reyna of the Frio County Sheriff’s Office told KSAT 12.

Many of the immigrants were “in various stages of heat exhaustion and dehydration” and had been trapped inside the truck for at least four hours, Fox News reported.

“They were real sweaty, dehydrated, heat exhaustion,” Reyna said. “Some of them we had to literally drag out of the back of the trailer because they couldn’t walk for themselves.”

FBI Investigates Fatal Shooting by Sheriff Deputies After It Was Caught on Video

By Steve Neavling

The FBI is investigating the fatal shooting of a man by two sheriff’s deputies in Texas after the incident was caught on cellphone video.

Two Bexar County Sheriff’s deputies shot Gilbert Flores, 41, in his front lawn while it appeared he had his hands raised in the air, My San Antonio reports. 

“We coordinate our investigation to ensure that we are not interfering with (BSCO’s) investigation,” said FBI spokeswoman Michelle Lee. “They have been extremely cooperative and transparent.”

It’s unclear whether Flores was carrying a weapon, and authorities have declined to release records on the incident.

Partnership Between Sheriff’s Office, Homeland Security Leads to Arrests for Human Trafficking

Sheriff/Photo via McLennan County Sheriff's Office

Sheriff Parnell McNamara/Photo via McLennan County Sheriff’s Office

By Steve Neavling

A partnership between a sheriff’s office in Texas and Homeland Security has paid off so far, the Waco Tribune reports.

Just one week after the McLennan County Sheriff’s Office partnered with Homeland Security, officials announced the arrest of two people accused of human trafficking.

Homeland Security approached Sheriff Parnell McNamara to help crack down on human trafficking.

It was the first such partnership, the sheriff said.

“After I talked to commissioners court, we put everything in motion, and by noon we had run search warrants on this creep and found all sorts of child pornography in his house,” McNamara said of the first arrest made in connection to the partnership. “We had him thrown in jail. That’s how quick it worked.”