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IApril 5-6, 2001 La Quinta Conference CenterArlington, Texas 81716404142 I"ATACKING FORENSIC NDENCE AND DEFENDINGCHID ABUSE ALLEGATIONS' SEMINARTopics Include-Understanding and Using Autopsy ReportsDNACrime Scene Reconstruction &AlternativeTheories including Hair, Fiber & BloodSpatterFingerprint AnalysisDrug Testing & Urine AnalysisSpotting Bad Science & Bad ExpertsEthics in Child Abuse CasesCPS investigationsJury Selection in Child Abuse CasesUse of .Jury Consultant in Child Abuse CasesFalse ConfessionsInvestigation, Discovery & Development ofEvidence in Child Abuse CaseUse of Polygraph in Sexual OffenseAccusationsConfronting the Expert in Child Abuse CasesStatistical Studies of Sentencing in ChildAbuse CasesSpecial EventsCourse DirectorsMark Daniel and Dan HurleyInvited SpeakersJerry Spencer. David Baugh Max Coumey David GuinnCynthia Hujar-Orr William Harris Kelly SwandaRobert Hirschhorn JeRKearney ' Dr. Richard Ofshe Craig JettRick Holden Tim Evans David MontagultPlease complete and send Blis ~Pgistuxtion fo~m by md to TCDIA600 West Utl~ St AustinTX 78701-1700 or by fax to (512)469-9107.NameBar Card #AddressCity, State, ZipPhoneFaxE-mailRegistration0 Current or New MemberO Nan-Member0 InvestigatorsSpecial EventD Bdpark llckets, Friday April 6111.Metnhersb@ FeesUpdate jwr rnernbership orjoin andget the seminar at the memberprice!0 New Member (See Below)O Renew your Membe~sluipCAN'T ATTEND?O Buy the book0 1 am applying for a schola~sIlip0 Donation to TCDLEI (501~3)Your TotalFriday, April 6th: Join TCDLA for a night outat the Ballpark as Texas Rangers playSeattle! Tickets are $11 each and will besold on a first come -first serve basis! Ifinterested, sign up on the registration form!. SEMINAR IS OPEN TO CRIMINAL DEFENSEATTORNEYS ONLYName on CardEAT. DateU I am applwg lor a schoIa1ship by Febrw 19th To apply, send a lener indicatingour need, wluether ,onrr received r rh%nhii before and when as well as twoletters of recommendation, one from a judge an one from a member of TCDW.U Plme check here or call the office if you require specid mistance.We will be happy to help you m my way we can.TOR NEVMBMBERS ONLYNominating Enrlors8)nefiti\s a current member of TCDLA I believe this applicant to be a pelson of professionalcompetency, integri ; md good nu om^ character. The ap licant is licensed to p ice Jaw inTexas and is engagel in the defense of criminal cases, nn!esSignahlre of MemberMember's Namea shldent or dlihate applicant.

COLUMNSEditor's CommentDirector's PerspectiveNominating Committee RepodCapitol CornerFederal CornerA Jury Of Your Peers?By: Mick Mick~k~n- -- -Lessons Learned From Rio Rim, Mexico. or Is It Texas?A@ Nogumas0:Love, Murder, and interstote Commerce: Challenging The Connection@? Renata Ann GowieDEPARTMENTSMotion of the Monh--- -- -New Members ListSchedule of EventsLeiten to he EdibrSignificant Decisions Report

"ATTACKING FORENSIC NDENCE AND DEFENDINGCHID ABUSE AUEGATIONS' SEMINARApril 5-6, 2001 La Quinta Conference CenterArlington, Texas 8 171640-41 4:Topics IncludeUnderstanding and Using Autopsy ReportsDNACrime Scene Reconstruction &AlternativeTheories including Hair, Fiber & BloodSpatterFingerprint AnalysisDrug Testing & Urine AnalysisSpotting Bad Science &Bad ExpertsEthics in Child Abuse CasesCPS investigationsJury Selection in Child Abuse CasesUse olJury Consultant in Child Abuse CasesFalse ConfessionsInvestigation, Discovety & Development ofEvidence in Child Abuse CaseUse of Polygraph in Sexual OffenseAccusationsConfronting the Expert in Child Abuse CasesStatistical Studies of Sentencing in ChildAbuse CasesSpecial Events1Friday, April 6th: Join TCDLA for a night outat the Ballpark as Texas Rangers play -Seattle! Xckets are $11 each and will besold on a first come -first serve basis! Ifinterested, sign up on the registration forml1SEMINAR IS OPEN TO CRIMINAL DEFENSEI AllORNEYS ONLY'RESERVATION FORMPlease complete and send th~s rqhtmhon form by mad to TCDLA600 West 13th St Austin TX 78701-1700 or by fax to (512)469-9107.NameBar Card #Addresscity, state, ZPPhoneFaxE-madRegistratfa%0 Current or New Member $2750 Non-Member $4250 hwstlgators $225Special Event0 Ballpark Tickets, Friday Apn16th @ $11 each $-Membership FeesUpdate your membership orjoin andget tbe semiwr at the noembwprice!0 New Member (See Below) $750 Renew your Memberslup $150Early wgishvrtkwa ends March 22d, after that dare please arld $50.00CAN'T ATTEND?0 Buy the book $89.300 I am applying for a scholarship0 Douahou to TCDW (501~3) $-Your Total -0 Check enclosed (Make Payable to CDLPQChargemy OWsa &mencan rnress0 Mastercard 0 IhscoverName on Cardcard NumberExp DateTo apply, send a letter indicatingbefore and when as well as twofrom a member of TCDLA0 Please check here or call the office if you require specgal asslstauceWe WID be happy to help you m any way we can.FOR NEwMEmERs ONLYNominating EndorsementAs a current member of TCD I beheve th~s apphcant to be a person of professionalcompetency, integd and goo moral character The ap hcant 1s hceused to pratice law m2 "d %as and is engage m the defense of crrminal cases, on f ess a student or abate apphcantgnahlre of Memberember's Name

COLUMNSJW&ident's MessageEditor's CommentDiredor's PerspeaiveVominafing Commiike ReportSapitol CornerFederal CornerA Jury OF Your Peers?By: Mid MickebatLessons Leorned From Rio Rico, Mexico. or Is It Texas?@:Andy NagwasLove, Murder, and lnterstafe Commerce: Challenging The ConnedionBy: RBnata Am GourleMotion of the MonthNew Members List 'Schedule of EventsLetters to the EditorSignificant Decisions Report

~ -FQR THEThe purposesforwhich the corporation is organized are:To protect and ensure by ruleof law those individual rights guaranteed by the Texas and Federal Constitutions incriminal cases; to resistthe constant effoltswhich are now being madeto curtail suchirights;m encourage cooperat on between lawyers engaged in the furtherance of suchobjectives through educational programs and other assistance; and through suchcooperation, education and assistance m promote justice and the common good.OFFICERS--..-- ~mW O36&23Z) Y=mepublished monthly, except forJanuaryiFebq and July/Angust, whichare bimonth% by the Texas CriminalDefenselawym Association Inc., 600 West13th Street, Austin, Texas 78701. Printed inthe USA. Basic subscription rate: $40 peryear when received as a ben& of TCDLAmembership. Non-member subscriptions:$75 annu* Periodicals PosPage Paid atmTw. .COICMIIAITER:- "Send addresschanges to Voice for the Defense, 600 West13th Street, Austin, T m 78701. Voice forthe Defense is pubbhed to educate, trainand support attorneys in the pmtice ofcriminal defense law.Please send all feature article,^ to GregWestfall, 500 W. Throckmorton, #1801,Fort Woetb, Texas 76102-7414, 817/336-5600. Please send aU other materials forpublicatiom to John Carroll or D'hJohnson al the TCDL.4 home office,512/478-2514, fx 5121469-9107 or emailat rljohnson@tcdlacom, Statements andopinions published in the Voice are thoseof the author and do not necessarily representthe positiou of TCDU No materialmay be reprinted without pijor approvaland proper credit to the magazine. 02000Texas Criminal Defense LawyersAssudalzon.CllUllllOl Robert C. "Bob a Hinton, Jr, Dallas---ELECTBetty Blackwell, Austin'1.) 'We-Mark Daniel, Fort WorthV- . .. , T Cynthia Huiar Orr, San Antonio. .lOtrcQrrm .. .._.# , m. ~ R - D'Ann Johnson, Austin.lJUUIn . Dan Huriey, Lubbock..., .. .. . .. . Rady Wibon, AbileneJohn Carroll, San Antoniofa .* -ibm wd m.ebc Report Cynthia Hampton, Austin-.-' -m Michael P. Heirkell, ~ort worthDIRECTORSERIC M. ALBRllTON LHlgvlewG. WRICK BLACK TylerWES BALL MingbnKIMBERLY DEW G m HwstonLANq EVANS R MrAMIKE R GIBSON d PasoDAVID GUINN. JR LubbackRONALD P. GUYER San Anton0KEITH S. HAMPTON AwhnWIUIAMS-HARRIS RWohRODEWQUE S. HOBSON, JR LubbockCHRISTOPPIER N. HOOVER bW.H. "BENNIE" HOUSE, JR. H o bJ. CRAIG JERT DallasJEANEWE KINARD AushnMIRnN LENOIR DollasROBERT ERMA kowm~lle' ASSOCIATE DIRECTORSH.W. "WOODY" LEVERm, JR M~dbrnJESSE MENDEZ lubbockGEORGE MILNER, Ill DabTYRONE MONCRIFFE bustonWALTER "SKIP"WestRIWARD RODRIGUEZ HohgenKARLA J.M. ROGERS VhrKMWERINE SCARDIN0 k&onGEORGE SCHARMEN Son Pdlfon~oSTANLEY G. MHWEIDER HoustonRICHARD SEGURA, JR. AushnRONALD SPRlGGS PmonlloMMY STIUINGER El PoraJ. GARY TRICHTER HousklnMMIDY 'WELCH HoustonGREGWESlFAURMDON WILSON &!wePHlW WISCHKAEMPER lubbockWlUlAM CARTER Madironv~lle DIANNA HOE-N San Anton10MIKE CHlWlON Houston LOUIS E W LOPEZ El PasoCAROLYN DENERO AustmLARRY MOORE Ft WorthALBE#IO GARCIA AurtrnANDY NOGUERAS McAllenMICHAEL C. GROSS Son Anton10 JOE SPENCER El PosoKNOX FIlZPAlWCK DollasJOHN YOUNG Sweetwater

.-.MlbUI cumRon Goranson 214&Bill Harris 81733255Jeff Blackburn 806-37Robert C. Owen 5 12:49551 366 (fax)56060 I&COWllNUlWO UOAL KDUCATIONlim Evans 817-3323822 / 814332-2763 [fax]Gerry Morris 5 12479-8600 / 51 2-4796035 fax)DWH NlurWCynthia Hujar Orr 210226-1463 / 210226-8367 (fox)DKRWUmrneAnoNMike A. Ward 281348-0884 / 281-73M562 (kuJPhilip Wixhkoemper 806-763-9900 / 806-763-9904 [fax)R& -erm@aFronkJ&n 214871-1122 /2148800443 [fox)Clih "SsapW~'' Holm 9037582200 / 90375W864 (fox)lB1UIONSimon Amrkrr 210-736-4143Robert Lerma 95M46-1910 / 95&5&4013 [fax)Imam -0uPaul Looney 281-597-8818 / 281-547-8284 [fax]UWYIRS ASUSTANQRick Haaen 940-566-1001 / 940-757-9878 (faxlDan ~ u l 806-nw700 e ~ j 806-7658199 (faxiStanley G. Schneider 713-951-9555 / 713-951-9854 [fox)-Ron& Wilson 8005884678 / 915677.61 29 /fax)8enn;e House 71 36883398 / 71 368W8O4 [bx]Lydia Clay-Jackson 409.7602889 / 409-756-0901 [foxJVed Rush 940767-7567 / 94a723-9972 lfnxl~~ . - . , ~Sheldon Weisfield 956-546-2727 / 956-5447z6 (fax)mtmRCarolyn benwo 51 2472-lWj / 5 12472.1 3 16 [fax]NOMINATINGBelly Blackwell 51 267901 49 / 5 123208743 (fax)W O U AND MNTKNan6Gary Cohen 5124766201 / 5 12-477-5778 (krx).PUBW MmDR FlbK.RALMo jorie Meyers 713-7184WPatrick Black 903-531-9233STATEJane Roden 214-653-3550Doug Schropmeyer 2146533550RURAL AND S lUU TOWNJohn Smith 4095982744swuu WSON/ iou~cnowsBill Habem '4095942123 / 409-5949100 (fmrJS*@* ,WmJ Y' @Rl$or;i:+amDavid O1f;leil &d2$4~663'14094375293 (fox)Kaherine Scdrdino 7135205223 / 713-520-5455 [fax)MIN0)IIWLydia Cloy-J~~n409-5261171 / 409-7560901 (fax]Craig Jen 214-871-7676John Carroll 210829-7183Hon. Frank Maloney 512476.4306Weldon Holmmb 9035974595George Gilkerson 806-763-7373> .VOICE CONTRIBUTOLRSmuuorD'Ann JohnscDWFUnrllE UnW mmR:.Greg Werifall500 W. Throckmarton #I801Fwf Worth, Texas 76102nqwmon usiRWailSusan Vela RiceTCDLA/Home Office 512478.2514DESIGN & PRODUCTION:Noel MucDonaldMCD Digital 51 2-656-8299PRINTING:MPRESS 5 1 2389-0 140~.~ lUCTCL;U TDlTPrqrCynthia H. Orr 210/226-1463huiaror@aol.com2900 Tower Life Bldg.Son Antonio, Texas 78205W. Regon Wynn 81 7/336-5600120 W. 3rd Ste. 300Forf Worth, Texas 761 02

We criminal defense lawyers tend to beqmck to critiuze the Court of Cruninal Appealswhen it does things which we believe to be unlustand improper. Undeniabb, over the past severalyears the Court has made numerous decisionswhich simply haven't passed the "smell test", atleast to our bloodied noses. But are we being fairand reasonable in our haste to rebuke? After a&ours is to nrovide defense nrotection and advocacyfor society's lowly outcast and damned. Whoare we to judge that august and revered flock of legal scholars, each of whom ascended to that lofty perchby edict of the people of this great state?With cool refleaion, let us struggle to muster some degree of objectivity with which to fairlyexamine one of the Court's latest controversies. The facts, simply stated, are as follows:Fact One: At least seven men are on death row in T&as on the strength, atleast in part, of the testimony of Dr. Walker Qmrdtlo, a clinical psychologistwho tesffied that the race of the defendant was a valid and legtimate factorupon which he could predict future dangerousness.Fact lbo: La~t spring Texas Attorney General John Cornyn concluded thatthese seven death row mates were entitled to new sentencing hearingsbecause of Dr. Quijano's racial remarks during the punishment phases oftheir aals He sad those remarks nolated the conshtutional rights of thesekillers.Fact Three: Just as the Court of Criminal Appeals had previously summarilydisregarded this issue, the coun ignored Attorney General Cornyn.Bob HintonMESSAGEFact Pour: last June Mr. Cornyn admitted to the U.S. Supreme Court thatthe state had erred in using Dr. Qwjano's testimony in the sentencing phaseof the case of condemned killer Victor Saldano. Mr. Cornyn went even furtherto inform the Court that he had identified six other death sentences,including that of Michael Dean Gonzales, which had been rainted by Dr.Quijano's testimony Cmog Mr. Cornyn's admission of error, the U.S.Supreme Court ordered the Court of Criminal Appeals to reconsider itsdecision to deny Saldano a new sentencing hmdng.Fact Five: The Court of Criminal Appeals responded by questioningAttorney General Cornyn's very authority to represent the state before theU.S. Supreme Court in the Saldano case, and ordered dl sides to submitbriefs addressing that issue. A hearing was set for late February, 2001.Okay, what would be a fair and objective interpretation of these facts? Is Attorney GeneralCornyn (formerly a Texas Supreme Court Justice, and a Republican), all wet? Is he some radical bleedingheart liberal? Has he exce'eded his authority as Attorney General? John Colnyn says no. He firmy, believes the law to he clear that the Attorney General is the lawyer for the State of Texas before the U.S.Supreme Court. He also believes that the constitution applies even to killers. He seeks to improve theintqity of our system of criminal justice. "We cannot have a criminal justice system that enjoys theconfidence of the public if race is going to be considered at all in determining whether the ultimatepenalty will be given," he has saidStan Schneiider, Mr. Saldana's Houston lawyer, and one of TCDMs very brightest stars, made aprofound observahon. "The Attorney General made a moral and legal decision, not withstanding the

Court of Criminal App~ls' . decision," he said. Each of us aodauds the&.admilable position Mr. Corn111 has taken. It was not a popular politicalposition, but, as Stan so aptly pointed out, it was a n~oral decision.Again, if our assessment of this entire controvmyca~'t be trustedfor objectivity, where do we look for a viewpoint which speaks to andfor the far right? How about Tlie D.dlas Mon~ing News? Surely there is nomore conselvative voice for law, order and strict enforcement.In early Febmaq the Dallas Morni~~g Rews expressed its editorialopinions on this issue, stating that Attor~~ey Gere~d Cornyn was correctin his opinions and actions, and that the Court of Crinunal Appealswas wrong, and that it uras imprudent for the burl to stage a showdownwith ll~c US. Supreme Court. The editorial concluded that hZ1: Cornyn'sposition should not be ignored by the Court of Crimi1al.4pppeals.Well, there )an ha\re it courts fans. Our hun~ble ooint ofview regarding this latest national embarrassment, suspect as i;luay beto some, happens once again to he shared by the ponwfi~l and conservative.We are not alone.1 think Stan Sclmeider has touched upon the one characteristic,its conspicuous absence being comnlon to all of the controversialdecisions which have rocked our system of c~iruinal justiceover the past seve~al years; it is tl~e characteristic of mo~ality!Tnle enough, the Court of Criminal Appeals is not legallybound to consider momlily in arriving at its decisions. The Court isnot, however, prohibited from being inhenced by some semblance ofmorality in making its decisions, all of wluch profoundly impacts eachof us, not just societ)>s perceived vermin.BobMid#dP.neiskellFortworth (1999-2000)KenthsdKIHerHouston (1998-1999)E.G. "&wy" M dAustin 11997-1998)MdLBoisfodAustin(1996-1997)Bin WdaemperLubbock(1995-1996)RomddLOorrnronDaiias(1994-1995)David R BirwHouston (1993-1994)OerclklH.OddrkinSan Antonio (1992-1993)R i d l m d h ~Dallas (1991-1992)Tim EvansForth Worth (1990-1991)Judge J.A. "Jim" BoboOdessa (13%-192)Edwarl A. MtdkwHouston (1988-1W)axa(er D. BultsSan Antonio (1987-1988)Knox Jones'McAiien (1986.137)Lou& Dugas, Jr.Orange (1985-1986)aii L "Saappy" HdmwLongview (1984-1985)Thomas Gilbert Shqwt, Jr.Brownsvile (1983-1984)aii w. BmwnLubhock(1982-1983)JudgeRoberID.JonesAustin (1980-1981)V i m Walker PeriniDailas(1979-1980)GeorseF-Luquetk'Houston 11378-1979)\Ilkklon HdcombTyler (1976.1977)C. David EvcdSan Antonio (1975-1976)George E. Gilk-Lubhock(1974-1975)Phil Buleson*Dallas (1973-1974)c. Admy hilorrx, Jr:Houston (1972-1973)Hon. hrnk MalolleyAustin (1911-1972)RRSTPRESIDENTSmRCH 200 l ( WWW.TCDLA.COMI VOICE FOR THE DEFENSE I 7 I

41John CarrollCOMMENTIn college level logiccourses students learn that thereare several types of argumentsthat are not snpported in logicand are not persuasive. For example,tlie ad honrinenr argument(mypersonal favorite), inwhich you seek to convince othersof the merits of you position bypointing out your opponent'scha~xcter and other flaws. Another snch argument is the slippery slope argument. Anexample of tliis type of argument is that if we let Hitler have Austria, next he will wantCzechoslovakia. WIkers over the years have pooli-poohed such argnments as illogical.Logical or not, the slippery slope argument has proved itself right often enough to meritour attention.Several years ago a newly elected District Attorney in my connty established anoffice policy requhing that, in felony cases, the State should recommend a fine of$1000.00. Up to that time, fines were not commonplace in felony cases, most defendantswere indigent and could not afford to pay a fine; however there were cases in which,after a review of the offense and the particular offender, a judge would determine that afine was appropriate as part of the punishment in the case. The criminal defense bar generallyslitQgged its collective sl~oulders over this new policy When it came time to enteran agreed plea, the defendant's lawyer would ask that the h e reconmendation be ontsidethe plea bargain so that he or she could argne the propriety of the fine at the timeof the sentencing. When this policy was first implemented, the tour%' generally kept totheir prior practice of imposing heavy fines in the minority of cases. However, as timewent on and no one strongly opposed the practice of the State unifornlly recommending$1000.00 dollar fines in every felony case, regardless of the circumsfances of the defendantor the offense under consideration, the imposition of such hes became more andmore common and the State began pushing defendants to accept the imposition of afineas a part of the plea bargain. Now, $1000.00 dollar fines are commonplace in felonycases and are often part of the agreed to terns of a plea bargain. It is not unusual to seeindigent defendants required to pay a $1000.00 dollar fine, a $300.00 to $400.00 dollaxreimbnrsement for court appointed attorney fees, court costs and montllly supervisoryfees. Ask local lawyers today and they will say that the fine is one of the basic terms

But For Books,We Could Notmow R@tA complete resolure folcgal books hum Wst,Diswicl ALLorne)~ A%and R:sas Comhuoln I'ublications amonleolhew. Flee tlelive~y and same [lay sl~ip$~gon all o~rle~sCall 210.225.1 107BookstoreI 107 San Patlro r\ve., San Antonio. Texas 7021 1Telephonc:2 10.225.1 107 Fnx:2 10.225.1470

SUPREMEEVENTWba 15,20Q1 mh the date ate fbe tfrst soup inhdicm to bre U W St&BE day aywlll indude tbaimlWn b&re the mn,a emUnW brd&$t in thecouft Buil@bg agtaup phntugmphh and a tour mnWred by tke Cutilor's oBcc Theffip wlll be mW with aptlaad eW incltt(ling 8 tour &the PBl, lfie ~~i~~ Mhmm,andathaeiwer;

Daniel, Mike Helskell, D'Ann Johnson, Dan Hitrley, BobbyLama, Scrappy Holn~es, Rnndy Wilson, '@one MoncMe,and John Cmoll.Danny EaslerhgAlbe~to GarciaMartin kNdrDexter GilfordWes BallJesse m daCynlbia He~ileyGeorge ScharmenSturley SclmeirlerWdter "Sklp" RavesJeff KrnPReyHouslonSan AntonioHoustonWeslFort VorthJoin 50TCDLAMembersat theUnited StatesSupreme CourtOctober 15th,200 1for a groupInduction.Go to www.suprernecourts.gov. for on applicahonSend applications to TCDW.For information call (51 2)478-2514REGIONAL SEMINARS 2001Gmit Scl~eherWB CarterVelsel RushHctuy BeniporadKnox EitzpatrickDianna HoermmnIawy MooreBrian ClcwezAndy NoguemsMicltael Cl~arltonJoe SpencerJohn YoungEou3tonhiadison&Witchita PallasSan &110nioDallassan AntonioFort WoilliOdessaMdenHomlonEl Pas0Sweehvater. and,vnlleqwhe~llandheGwrySprrneMPVadldu&latheTdal~rr~negeayoua&ndoneallh~mgmal~~~,yM1doblain~I nRul~hhiimll~you~Wand IhewwyM1 inadce k.S willneverprartIre Inwin fhe rmn woy 1 didpredouslfi"John F. aovee, Orange Counh~PuM~cDe(emierHUNT, TEXASMa& t932mllhswnrnarwllormara&admsr~Ymlul~dMnrUd~nr~~d~~hm~ ~ ( n ~ ~ ~ a t h ~ n a l l ~ C ~ M d ~ C a n ~ ~ ~ n b o ~ h d c d hExtwMdnnmccon. GEORGIANWmkx15-142031Ihs~nil~rn~~~~dang~LW~bc.erpac6rnaodOSemaM l l h o d ~ k a t h T ~ l a n p c ~ ~ M d w l L a n m ~ ~ i u y l o ~ ~ e ~ b ) aAny qual.Ifienl ilrember in goodstandiag may seek eIecffonfor the pUlon as rm office); other. than President, aDirecfor or Assodate Dbwcfur of fhe Assodatton by follozuingtbe requisites ofArticle VIN See. 36 of the ByyEnws.

WELCOMESMEMBERSMark YoungjoluHoustonTony VrtzMike HadJeanette KiuardPeter LesserJohn Michael Watkins

You know about our training progmms. You k~iow about the Ibicefo. theDeftrse. Youknow about our legislative efforts. But, do you know about the group rates for long distance,credit card processit~g, and malpractice insurance? According to our reeelit sulvey, less thanhalf of the members mho responded know about these perks. Because it is one of our goals toprovide ta~~gible membership benefits, we are now actively seeking new opportunities for groupdiscounts. As new relationships are established with vendors, we will update a "Meo~beushipPerksc;" sectioll it1 the Voice and at TCDW.com. As it c~~rrently stands, the followvi~~g vendorshave made discoulit offels to TCDI.4 ~i~en~bers.LegalEdge Case Management Software is offering a group rateto our ~nenlbels based upon the number of people pnrchasing. The conipany will also person-&e the system to include tbe names, addresses, telephone numbers, and other biograplucali~lfortnatio~~ of evely Judge, Court and i~lvestigating qcncy in the State of Tesas for the database.Cflll LeAm Howocks at 228-872-8429.Loisiaw is offering a 10% discount to our mmnbers.C d Citxl~ IVillirrrrrs flt 1-877-471-5634 s 2470.R & R Bookstore in S;ul ~nto~uo is offering a "match or beat" the lowest price onall legal materials. It will not charge for sluppi~ig a$ has EVERY legal publication imaginable.Cflll Robert Uo~mldson at 210-225-1107.Bestline loq distance sentce is olfering a flat BC per minote for intra and interstate cdingto our members. There is no monthly fee, no time restrictions, and the bill is calculated bythe 6 second intewals. Cd Slrsie P{~ge at 1-800-36j-0038.MI insursoce cotllpany offers low rates for our nlenlbels on malpractice insolxncc.Cnll Bni'hflrn 1Yl,iddet1 at 361-576-2186BEING AMEMBEROFHASIT'S BENEFCrSBrennes-Jones Group offers our me~ilbers the ability to accept credit cardpaymients at wholesale credit card processing rates through the TCDLA Bankcard Program.CollAt~ri Rogers at 1-800-970-2592 .xlOl6.HAS High Speed Access is offering our ~~~e~nbers free installation, free equipment,no deposit, free 100 MB of web hosting, and the first month of sewice free for DSL internetconnections. CnllAttde Estzo ~t 1-877-743-4776DELL.COM is offering TCDIA referral fees for Dell hardware prchased onlii~e throoghthe TCDIA website. Go to TCDW.com for the Dell hk.Subscription Services Inc. is offering up to a 50% discount off the coverprice of nearly evely magazine prhited for our inembers. Cfllldlnri!jor nt 1-800-289-6247.Please call, write or email Kellie Bailey at kbdev@lcdla.com with any inputTo join see membership application on page 21MARCH ZOO1 I \N\NW.TCOIA.COM 1 Vole. FOR THE DEFENSE 1 13 1

As of the wv~iting of tlus coluai~i, the Legislature is passing eniergency legislation regarding a bill ensuringthat defe~idants a ~ ianmtes d WIIO seek to establisli the^ innocence through DM liae access to the testing.Membe~s Bill Allison and Mike Cllarlto~i made outstanding and pe~suasive presentations v to tile HouseConinlittee on IIR 1474 (Himlojosa), and Judge Charlie Bshd dso spoke authoritati ely to the issue. TheSenate, meaiwl~ile, prepares to approw SB 3 (Duncan).Tlie Texas Yaiiily Violence Council has been busy wit11 bills to regulate dating tlu~ougl~ protective orden,aU but elinlinating sudden pnssioli UI ~inurder cases, aid requiring ji~dges to notify prosecutors before theyreduce ball. \Ve ltave opposed all of tliese propos~ls.Senator Du~ican filed Seeate Rill 582, which mould pennit judges to order illat we get copies of vitnessstatements and police reports.life without parole as a tliird option for juries hasn't been called up yet, but prosecutors fro111 Harris andDento~l counties oppose tile bill, wllile many other proseci~to~s either s~~pport it or have no opposition.Bills to ban the execution of the mentally retarded also ltan't been called up, but is expected to be soon.Senator Shapleigh fled Senate Bill 242 ~vluch \vould make pretest searclles and sein~resubject to theexclusio~~a~yrule, but that bill is now expected to be limited to stops made on the basis of communiiycaretaking.Finally, one of the most far.raching biUs to effect 11ow poor people are represented in criaiiod courts isSB 7, filed by Senator Ellis. Tlie biU provides for mininlom sr;in(lards for counsel, a neutral md objectivebnsis for appointing coo~isel, as well as reqiiire~ae~its for prompt determinations of indigency, fasterappointment and fliat appointed counsel contact their clients espetlitiously It could dso create m officeto oversee coi~nty conipliaice wit11 the standards and give grants lo counties who meet the standards. Anindigent assisklnce progixm \vould also be created for lanyen h need hxidling capitd md firstdegreefelonies.CAPClOLCORNERFor tllose with Internet capabilities, you call go lo Tesas Legislatiire O~lline and rmd the bills and niuchmore. i\s idways, feel bee to emd nme nit11 obse~mtioas, concerlis and advice. I certainly absorb it and itis wiy useful. kid tllanks to ewyone who responded to my reqi~est for disco~~y iliforniatiol~: it has beenweU used.Here is a selection of sonie of the bills that are heady being considered for enactmetit:DWIHJR12 McClendon (constihltiond amendment to permit the denid of bail to certain persons charged withconmulling intoxication manshlghter)SB 56 ZafthYni (creating a presumption regarding a person's dcol~ol concentration level for pulyoses ofthe adnlinistntive suspension of the pelson's rlriver's license)SB 57 Z&rini (relating to the e~iorl of the suspension of a driver's license on refi~sd to give a specitnenof the person's breath or blooi 'SB 58 Zafhiai (information provided by ;I peace oficer to a person arrested for certain dcol~ol-relatedoffenses)FIB 63 \VoIens (suspension of a penon's driver's license following the person's arrest for certain iiitoficationoffenses)1 14 1 VOICE FOR THE DEFENSE I M ..TCDIA.COM I hlARCH 2.001

SB 59 Zaffirini (definition of intoxicated iu connection with the offense ofoperating a motor velucle while intoxicated)HB 331 Clark (requiring sex offende~~ released on conununity supe~vision,parole, or rnandato~y supelvision to nlaintain a certain distance bornany remises wherecllilien frequently gather)HB 91 Hill possessi in^ or co!!sqming an alcol~olic bevmge in a motorvehicle and to the ci md cummal consequences of operating a motorvelucle wllile intoxicated)SB 90 Nelson (civil and criminal consequences of operating a motor wluclewllile intoxicated)HB 90 W (civil and criodnal consequences of operating a motor veluclewllile intoxicated)SB 91 Nelson (possessing or cor~suming an alcol~olic bevenge in a motorvelucle)HB 89 W (possessing or consuming an alcol~olic beve~age in a motorvellicle)SB 92 Nelson (reports of intoxication by emergency n~edical senices personnel)HB 314flen (enhanced penalties for ce~l;~in intoxication offenses)HR 21 Carte (punishmo~t for the sale of an alcoholic beverage to a minor)HB 274 Bewan (prosecution of md punisllment for intosication assault)SEX OFFENDERS AND CHILDRENSB 128 Sl~a io (statute of limitations for purposes of prosecuting certainfelony sex o k' enses)SB 117 IVenWorth (statute of limitations for purposes of prosecuting certainfelony sex offenses)HB 121 \Vest (information a elson required to register a a sex offendermust report to a lod law edrcenlent aulhority)HB 147 Wise (use of \isual aids in the prosecution of certain offe~~ses committedagainst or witnessed by a cllild)HB 228 \Vise (leading questions in direct examination of a cllild)HB 229 W'ise (limitation on inte~viening or examining a cldd in a criminalcase)SB 107 Barrientos (requiring sex offende~s released on conu~mnit)vision, parole, or mmdato~y supemision to nlaintain a cert~dist;u~~~f%any premises where children fi.eqoently galher)HB 227 Wise (admissibility of testimony in civil and c r ~ ~ proceedings) a lSB 138 hladla (pu~usl~ment of the offenses of public lavdnluess and indecentexposure)SB 24 Shapiro (manner in wluch the testimonj;of a child ?ho is t!~e victin~of or witness to all alleged offense may be la en III celtm cr~ou~~al proceedings)DRUGSIlD 315 Keel (enbmcen~ent of the penalty for an offender who n~anufachuesor delivers a controlled substance causing death or serious bodilyinju~y)SB 21 Shapiro (crhninal solicitation of certain offenses inral\ing a controlledsubstance; providing a penalty)HB 156 Homer (punisl~ment for certain offenses under the TexasControlled Substances Act committed by R person using a child to facilitatethe commission of theoffense)HR 238 Keffer (amending the definition of "mamifacture" in the ControlledSubstances Act md to defining the possession of the conlponents ofrnethampbetanline asan offense under that Act)CAPITAL PUNISHMENTSB 85 Lucio (life without parole as 3rd option)HR 30 hIcClendon (life without parole as 3rd option)HB 242 Gallego (mental retardation ban)HB 236 Hinojosa (nlental retardation ban)HB 174 Lewis (Board of Pardons and Paroles a ~d parole p;u~els of theBoard of Pardons md Paroles to meet to perform duties)HB 260 8: HJR 21 Gallego (n~oritorium)INDIGENCY DEFENSEHB 267 Gallego (quality of legal representation in capital cases)HB 36 Tangoria (waiver of a trial by juy)HB 211 longoria (wai~er of a trial by jmy)SB 7 EUis (indigency bill)DNA & IllnocenceHB 157 Hocl~berg (postconviction DNA testing)SB 119 \Ventwo~lh (establishing a procedure for postconvictionDNA testing)HB 312 Allen (establislling a procedure for postconriction DNAtesting)W C H2001 ( WWW-KDLA.COM 1 VOICE FOR THE DEFENSE 115 1

HARASSMENTSB 139 Carona (prosecution of the offense of harassment)HE 151 Villacreal (prosecution of the offense of hamn~ent)HB 132 Deshotel (prosecution of the offense of harassment)IBONDSB 17 Nelson (req~li~rment that a magistrate provide reasonable noticeto the attorney representing the state before reducing the amount of bailset for a defendantcharged with or convicted of certain serious offenses)HJ1112 Alc(:lmdon (proposing a conslitutiun:d ;m~cndn~ent to pennit thedenial of b.ul to cetTain persons tl~:aartl with am~n~iltina intoninti~r~~DISCOVERYHB 77 Gallego (reciprocal discovery)SB Duum (582)DOMESTIC VWLENCESB 68 hfoncrief (protective orders will1 regard to dating, viole~lce)SB 16 Nelson (eliminates all hut "terror" in sudden pwion casesMISCEWEOUS: CLONES &"I PLEDGE ALLEGIANCE TO THE FLAG"SB I I d el son (protecting the priwcy of medical records; providingpenalties)SB 102 g el son (regulation of cloning of 11uman beiugs; providing acivil penalty)SB 120 Wenhvorth (sealing of certain &davits ouwluch search warrantsace based)SB 133 West (adnlissibility in a alminal trial of race or ethnicity as apredictor 01 filh~re criminal behavior)HB 293 Thonlpson (grand jury proceedings)Psychological EvaluationsRe-offense Risk Assessments* Video &Audio CritiquesOffender Topology DetermhationFalse Allegations* Severity off OffenseJury ScienceParental Alienation AssessmentAlcohoVDrog AssessmentsChild SugestibilityAdoption Home StndiesAddiction/Dependence DeterminationAssessments of Suitability for Commun ,Refirences Appoinft?r&nts AcceptedHB 54 Cuellar (reporter's privilege)HB 178 luna (longevity pay for certain assistant yrosecuto~s)HB 58Cuellnr (cdn~inal respmsibility is based on the conduct of anotherperson responsible due M age)HB 313 Allen (circun~sta~~ces under which a witness in a criminal casemay be excluded Gom the courtroonl)HB 88 Kiug (recitalion of the pledge of degimce by public scl~ool students)HB 270 Berm (promution of and nnishnlent for ;ul offense in thocommission of wllich the actor intedes with a11 mind used in lawenforcemeat)LMSW-ACE DABFENavarre & Associates313 E. RundbergIane, Suite 103, Austin, Texw 78753Telephone: (512) 836-45671 1 6 1 VOICE FOR THE DEFENSE1 VJlWlV.TCDLA.COMI MARCH 2.001

PUBLICATIONS SALETCDLA State Forms and "Search Easy" DiskettesO "Search Easy" State Forms in WordPerfectTCDLA MembersOr Microsoft WordNON-MembersVIDEOS0 Ethics - 2.0 CLE Credit0 A Primer for Criminal Defense Trial Practice (CDLP]TAPES0 DWI, January 2001U Federal Law Short Course, September 2000[7 Rusty Duncan, June 2000O Racehorse Haynes [Rusty Duncan - Keynote Speaker)-- -TCDLA PUBLICATIONS0 DWI, January, 2001O Federal Law Short Course, September 2000U Rusty Duncon June 2000O Capitol Murder Trials, March 2000MAGAZINEU Voice for the Defense 1 yr. Nonmember subscription1 yr. State Prisoner RateCDLP PUBLICATIONSO Occupational License Manual Nov. 2000O The Essential Trial Notebook, October 20000 Step By Step Guide To Reprenting Indigent Clients In Criminal Matters, 2000D 2000 Death Penalty Law & Practice in Texas [by Steven Losch) Membersn South Padre - CDLP Hits the Beach, July 2000O El Paso Skills Course, May 20000 Wichita Falls Skills Course, January 2000O 1999 Capital Murder Monuol (by Steven Losch]O CDLP Hits The Beach, July 1999U Practice Tips From the Plains, January 1999U 1998 Capital Murder Manual (by Steven Losch)O Forensics and Habeos Skills Course, 1997*Sales Tax and Shipping cost need to be addedNON-MembersCITY, STATE, ZIPSub TotalPHONE: Shipping $7.50CARD #: exp. Date Sales Tax [add 8.25%)Name on Card:Authorized SignaturePlease add an addrtional$7.50 (512.00 for he Rusfy Duncan Course Book) Per notebook to defray shipping costs $3.00 to mail disks.All material will be moiled hrst class unless othenvire specified; avernight charges extra.TCDLA & CDLP.600 West 13th Street, Ausrin, Texas 51 2/478-2514 FAX: 512/469-9107TotalMARCH 2001 I W.1COLA-COM I VOICe FOR THE DEFENSE 1 1 71

STRETCHINGICLAUSE CONNECTION2001 beganwith a divided en banc court of the F8th Circuil firming the convictions of twodefendants in murder-for-hire cases. United States v. i\larek and United Statesv. Cisneros, - 5t11 Cie-, 2001 WL 10561 (5d1~ic 2001).In each case, the defendant was chazed with a violation of Btle 18 5 1958:(a) Whoever travels in or muses another (uichiding the intendedvictim)to travel in interstate or foreign commerce, or uses ormuses mother (including the intended victim) touse the mail orany facility ill internlate or foreign commerce, with intent that ami~rder be coiuniitted in violation of the laws of any %ate or theUnited States as consideration for the receipt of, or s considerationfor a pro~uise or agmment to pay, anyihh~g of pecunia~ydue, slid be Jined not more tl~an $10,000 or ~ml~riso~ied fornot more than ten pm, or both; ;u~d if personal injmy results,shall be fined not more than $20,000 and imprisoned for notmore than twenty yeam, or hoth; and if death results, shall besubject to implisonn~ent for any Wni of years or for life, or sL2Uhe hed not more than $50,000, or bath.(b) As used hi this sectioli and scclion 1959 ...(2) 'facility of interstate commerce' includes means of timsportationmd comniunic~tio~i.Marek was cm~gltt up in a tlylcd sting ope~xtion in wllich an undercover FBI agent was posingas a "hit man." Marek delivered $500 to a Westem Union Office in llouston for tlmsfer to the uodercov-eragent ir IlarUugen A dividedpanel ofthe circuit heid that ". . .regardless of the place of origin and placeof completion, the use of Western Union, quh~tessentially a facility81 intekmtc conimerce and of interstatecomiierceas well, satisfies the j~uisdictional requirements of 51958." United Statesv. Marek, 198 E3d 532(5lh Cic 1999).Cisneros wanted to have lier daughter's former boyfriend killed. She attempted to armge thismurder with the assistance of Maria hfartinez, a fortune teller. Daniel Garza had gone to the same fortuneteller to get her assistance in sohiug llis marital pmblems. Garza called Martinez four times h mMexico. During the ds, Garza would attempt to discuss Itis marital problems; however, Martinez wouldinterrupt him illid skwhether he had found someone to kill "the boy for "her client." A panel of thecheuit 11eld that these telephone &were s~fldent nidence to meet the interstate/foreign commercerequirement for a federal murder-for-hire conviction. The panel opi~lion included flus si@cant dicta.. . . to satisfy the jurisdictional element, a facihtynmst be used inan inter state fshioa, i.e., that in& state use of a facility wouldnot s~ace, even though that facility is one that genemlly is aninterst~te commerce facility. United State v. Cjsneros, 203 E3d333 (5t'lcic 2000).

In order to reconcile the conflict hehveen &&and Cisneros, the court voted to rehear both cases en bauc. JudgeJolly authored the opinion of the court whicb hduded the following:We now adopt the position taken by the panel majority in and hold that 3 1958'suse of a 'facility in hte~state commerce' is synonymous with the use of an 'interstate commercefacility' and satisfies the jurisdictional element of that federal murder-for-hirestatute, irrespective of the par~cular vansaction in question is itself inter state orwhoUy intra state....When it adopted § 1958, Co~~gress was actingwithinthe second of three broad categoriesidentified by the Supreme Court in United States v. Lopez as conduct appropriately subjectto regulation under the Cnmmerce Clause. Of the second categoly, the Court wrote that'Congress is empowered to regdate and protect the instrumentalities of interstate commerce,or persons or tlungs fi~ intentate conimerce, men thoug11 the threat may comeonly from hitmtate activities.' When Congress regulates and protects under the secondLopez category, therefore, fedenl jurisdictio~is supplied by the nature of the inst~mentalityor facility used, not by sepamte proof of interstate movement. Under statutes similarto 5 1958, federal jmisdiction based on intrastate use of inter state facilities is an approp~iatexerciseof the commerce power, as flus aad other circuit courts repeatedly havefound.We me satisfied &at when Q 1958 is read as a uthble and viewed in context as part of thepower of Congress to regulate and protect the instrumentalities of inklstate commerce,even when the threat comes from inhitate acllvities, it hecames clear that the faciJity, notits use, is what must he "ln interstnte or foreign commerce." In the instant context, then,when afacility employed to advance murder-for-hire is in interstate or foreign commercegenerallg the jurisdictional element of $ 1958 is satisfled even though the particular useof the faciIity on the spec& occasion in quation is only in& state. Thus, both (1)Marek's intrastate use of Western Union-+ quintessential facility in interslate commer-totransfer funds within Texas, and (2) Cisneros's international telephone calls,we sufficient to satislj the jurisdictional element of 3 1958, and-morein~portantly-that jnrisdlctional element is present in the statute through avalid exerciseof congressional Commerce Clause pawer under the second Lopez categoly.Judge Jolly dissented, joined by Judges Jones, Smith, Barkdale and DeMoss This was their thesis:. . . the issue before us is simply stated: what does the phrase 'uses or causes another touse themail or any hiUty in iuterstate or foreign commerce' mean?Does it mean that theparticular use must beininterstateor foreign commerce at the time of the offense, or doesit mean tbat the facility must he one genedy engaged in interstate or foreign commerce?The former is the proper way to read the statute.Over the last several years, the en bauc court has had some difficulties resolving Commerce Clause issues; s, Ustater 179E3d. 230 (5Ih Cir. 1999) (18 U.S.C. 5 1951 -Hobhs'Act violation) andunitedstatesv. Kirk, 105 E3d. 997(5lh Cir 1997) (18 U.S.C. 5 922(0) -machine gun violation). In mch of these mes, fJ~en hauc comwas equally divided andcould not reach a decision.Maybeit was hecause~and~sweremurder cases that it was so easy for theen hanc court to find a CommerceClause connection in eath case - but it looks to me like it required some intenectual stretching for them to get there.See relaedmticle to challenge the Intetstate Commerce Connection o n~e38

letter t@ EditocThe case of- has brought down the pillar ofmany people'svoirdhand finalarnumenc tbstatement of the ludge &about %,hat"reasanable doubt" may he. I have indudedtheNew Jersey DelFCnMIonrA reasonable doubt is an honest and reasonable unccrtninty in your minds ahout theguilt of the defendaut after you lvave been given a full : II~ in~prtid mnslderatior~ to all of theeviience. It is a doubt thata reasanabk peson hearlng the &meevidente would haw.TO THEProof beyund a reasonable doubt is proof, for example, tbat leaves you firmly ronvincdof the defendant'sgoilf. In Illis world we know few things with absnhle certainty. Is criminalcases, thclaw doesmt require ptoof fhat ovek~om~cvery passibfe doubf. If, bmd on your consldmti~ndthevldence,youm~ikmlymnvItle& that the defendant is ~ulilty of the crimecharged, you aust find hin;guilty. If, on-theother hand, you are not firmii co~&inced of defendant'sguilt,you nmt give the defe~~dat~t the benefit of the do~bt and find him not guilty.Florida Definition:Proof beyond a reasenabledoubtis proof fhat leavts you with afira, stable and urn%-vehg conclusion tbat the defmdant is guilty. Pmof beyond a reasomh1e doubtdoes net meanproof beyond all possiblc doubt, Doubts based onspsuiatinnor itnaghation are notre~sonabledoubts,A re:iso~wble dtrubt is a doubt based on rclson and conlnlon sense. A reasonable ioul)tnlay arise from a careful and impartial conside~atio~~ of all the cridcnce, from conflicts ill the evi.dew, or fwmthe lack of evidence.If you should have a reaonable dm~bt, you sl~ould find the defendant not g~~ilty. If youhave no rcasonable doubt, you shtruld find the defendant guilty.Yoursmy truly,Will E. Phillips

LawversASSOCIATIONTCDLA MEMBERSHIP BENEFITSu New Member Application U RenewalAre you also a member of the NACDL?UYes U NoState whether a certificate is desired U yes U noU Mr. 0 Ms.NameLaw FirmMailing AddressCity State- ZipTelephoneFaxEmailCountyBar Card NumberBar Card Date Month YearDate of BirthVOICE for the Defense Your membership includes a 10-issue subscriptionto TCDLA's official iournal. It is packed with detailed articles andmotions, written by and for defense lawyers.EDUCATION Receive timely updates about developments inTexas criminal law, through the Significant Decisions Report, our web site, listservice, and at TCDLA seminars.DISCOUNT PROGRAMS Only our members receivediscounts on seminars and publications.STRIKE FORCE Whenever zealous advocacy results inthreats of contempt against you, the best criminal defense attorneys in thestate will come to your defense.MOTIONS DISK Your membership included a motions disk containing50 commonly neededmotion to make your practice easier.DIRECTORY When you become a member, you will be included inthe annual membership directory, a valuable resource to locate defenselawyers throughout the state.JOIN OVER 2,000 TEXAS DEFENDERS NOW?TCDLA NEEDS YOU! Add your name to the TCDLA rollsto support its programs as it educates the legislature, public and criminaldefense bar!GET INVOLVED! We need your help tosupportthe onlyvoice for the defense in Texas on key constitutional and criminal justice policyquestions. Contribute to a committee such as the Amicus Curiae Committeeand let us know who you know in the legislature.ELIGIBILITY: A member in good standing of the State Bar ofTexas (student and affiliate applicants excepted) who is engaged in thedefense of criminal cases is eligible for membership upon approval ofapplication and receipt ol annual membership dues. An applicationmust be endorsed by a member in good standing. Members of the judiciary(except honorary members) and those regularly employed in aprosecutorial office are not eligible.Please check correct category:Initial membership year, oru Licensed less than 2 years ......................................................................... $75o Renewing membership and licensed more than 2years ...................... $150.. QVoluntary Sustamng ............................................................................... $300n Sustamng. . ................................................................................................... $200o Public Defender ............................................................................................ $50Affiliate (investigator or legal assistant) .................................................. $50o Student ........................................................................................ 20 Members in the firm of a sustaining or charter member. ....................... $50Certif~ed Criminal Law Specialist? U Yes 0 NOSignatureAmount Enclosed $Dateo Am Ex U Visa Mastercard Expiration DateName on CardAuthorized SignatureNOMINATING ENDORSEMENTAs a current member of TCDLA, I believe this applicant to be a person of professionalcompetency, integrity, and good moral character. The applicant islicensed to practice law in Texas and is engaged in the defense of criminalcases, unless a student or an affiliate applicant.Signature of MemberMember's NameMARCH a001 1 WWW.TCDlA.COM( VOICE FOR THE DEFENSE I 2 1 I

Nos. 01-0001THB SATE OF TBWS,Plaintiff,M THE 666th DISllUcTCOURTv.JOHNNY BADGIIY,Defendant.DEFENDANT'S MOTION AND MEMOWDUM IN SUP-PORT TO QUASH THE JURY PANEL ON THE BASIS THAT ITFAILS TO REPRESENT A FAIR CROSS-SECION OF THECOMMUNITYDefe~idait, Joh~iny hdgq requests a hid by a jury representing a fair cross-section of theconmiunity as required by tlie hend~nent VI of the United States Constitutfon.William laCIe~k, the jury master of RI Fenix County, d testify that Ole State of Texas provideshim \vlth a 'qmy poop for El Peni. County Th r'jnrypool" is compliter data "downloaded" ona "c.d.ro~a" that contdns a list of EL Fenix County residents on the basis of voter regishytion informationconipilcd by Uie State, aid drivefs license records compiled by the Texas De$artnient of PublicSafety, who we believed to he qualified jurors. This database of names is programmed to nndomly generatethe naiies which will comprise the jury summons issued for any given week.Stan Sfatiticianis~ tracked tlie issuance of 13,612 sumonsissuedni ELEtenh County for thefirst ~ eek in Marell, 2001. He then ~xmdomly provided a questionnatre to 400 of those people whoresponded to UIC summons and reported for jury duiy, and 400 people who fded to respond Thisanalysis established that 25% of tlie summons issued N~IF to individuals who ideitised thenisehw asHispanic, and that only 7% of those who reported for imy dutyidenti0ed themselves as Hispa~tc.The Amendment VI of tlie United States Constitution gcialmtees that a criminal defendant hasthe right to a speedy and public trial by an impartial ju~y The Suprenie Coiut 11s interpreted die SixUiAmendment's imp;utiality requirement to mean Uiai a july ninst represent a fair cross-section of tliecommunity Eg., Smith u. Taxas, 311 U.S. 128, 130 (1940). The notion of an imprtial jury is synibohedby a gronp composed of people representing tlie various wlues, vievqoints, and expe~iences ofa patTicular comiunity. To satisisfy the rcprescnfative requirement of the Si~lli Amendment, howw;j~iries must be mdondy selected from tlie conun~mity. Tn~n~lor u. Loerisinrra,419 US. 522, 530 (1975).The fair cross-section req~~irenie~it does tiot entitle a defendant to a jwy that minors thecomniunity andreEects the nunierons distinctive goups present in Uie population. Id, at 538. Rather;the ShiZi hnendnieut gnamtees a defendant theopporh~nityfor a representative juty by requiring thatjurywheels, pools of names, panels, or venires from which trial COIIITS draw ji1rie.s must not systematicallycxclude distinctive groqs in the comniunity If a ju~y wheel, pool, panel, or venire systematicallyexcludes distinctive groups, then the resulting jury fails to constitute a fair cross-section of the comniuuiry.Drwn u. hIisotir/, 439 US. 357,363-6't (1979).In Drrmn, the Supreme Court set forth a clar three pat test to estzhlisl a pika facie cmeof theviolation of the fair cross-section requirement: (1) that tlte poop alleged ta be e~cluded is a"distinctWe"group in the com~nunity; (2) that the representation of this group invenires from ~hich juriesure selected is not fair and reaso~iable in relation to the number of snch persons in tlie cunununity; nod(3) that tlus under iepme~italion is due to systenlatic exclnsion of the group in the juiysefectionprocess.If a defendant successii~liy proves that a prima facie hir crowsection lolation has occurred,the burden shifts to the govemnent to show that "those aspects of the ]my selection process. . . thatradt in the disp~'oportionatexclusion of a distinctive group" advance a sigui6~nt state uite~n. Id.,at 367-68.

Tllere is no doubt that the group alleged to be escluded in thiscase is a "disti~~ctive" group in the comn~unit)! hlericm-Americans withSpanis11 suo~;uues are a clearly identifiable class wit11 a Iustoly of subjugationto discriminato~y treatnlent. See Herlrnndez 11. Te.ws, 347 U S475 (1954). There is also no doubt that an absolute slatistical disparit).of 18% eslablishes that Hispal~ics are usderrepreset~ted. Cam% 11averoutinely cullceded that an absolute sralislical disparity of over 10% percentIneels the second prong of the test. See Ur~itedSfates u. Rodrigffer,776 E2d 1509, 1511, (11111 Cir. 1985); UnitedStntes u. Cllford, 6401:2d 150, 155 (8111 Cic 1981); UnifedStntes u Test, 550 E2d 577, 587(10th Cil: 1976).The real issue in tlus case is whether this underrepresentntio~iis due to systematic erclusiol~ of the group in the juryselection process.On first co~~sideratioll one nugbt comider systematic esclusion to be s pUII)TIIUIIS wit11 a juy selectiol~ process duc11 engages in intentiolld discriniioafionTlus notion, 11on~e\w; \!ro~~ld be mistaken. A defendant neednot sl~ow purposeful discrin~ination; 11e "need only sl~om that the julyselection procedure 'systematically esclode[s] distioctiw groups in thecomn~usit). and thereby fail[s] to be reasonable represe~ltati\~e thereof."Cnstarrndn u. P(drtidrr. 430 US. 482 (1977).\Wi respect to tlus issue, a useh~l comparisol~ may be n~atlebehveen this case ;u~d Cerdn u. lkws, 644 S.\F2d 875 (Tr. Ct. App. -Anlardlo 1982). 111 Cerda, the defendant challenged the Hale Countygrand jmy on the bais that it denied l ~ equal u protection of the la\\!. Tl~edefendant cstablisl~ed a prima facie case that there had bee11 a subst;u~tialu~~rlerrepreseatatiol~ of Alesicaa-t\mericans, that went unrebutted. 111Cerda the court of appeals aclu~owvledged that hleuic,u~-h~ericat~s werean identifiable class. The Court of Appeals accepted the defe~ulant's evdcncethe population of Hale Coont). NIS 38.03%, that the venire forgrand jmy sewice was 25% Mexican-h~~erican, but only 16.67% of tliegrand jurors selected were Alexican-Aoericas. Based on the figures theCourt of t\ppeals co~~cluded that the State llatl a burden to rebut the evdenceof apparent discrinunation. Because the State failed lo do so, theCourt ofAppe;~ls rewsed the con\iction ,u~d ordered the indictment tlismissed.LI Cerh, based on absolute disparities sin~ilar to that in ElFetux Count). totlay, tlie Court of Appeals ordered the indictment dismissedin ll~e absence of rebuttal evidence from the Srate. III llus case,tlwe is direct evidence of "q5tematic" problems wlucl giee rise to thedisparit): First, El Fenix County does noll~ilig to ellforce its juy summo~~s.Couasel proffe~s that William Laclerk will testify t11:o it is the practice ofthe District Clerk's office to hke no steps to enforce tl~e summons 1byp1111-ishg violators w11o ignore tl~e summons. The only mecl~anism for thedistrict clerk to e~llorce the solarnuns is to request a district judge to issuea capia for ll~ose \vho fail to report. Tlus actio~~ is virh~dy~~ever taken,:in11 the defendant asks tlus Court itself to aclulowledge for tl~e record,wl~en, if ew; it 11% atten~pted to enforce a juiy sunlnms by issuu~g acapins for someone WIIU failed to report \ v h summo~~sed.In addition, Stm Staticianisky's sum). establisl~ed tllat thoseindividuals w11o fded to report o\rtal~elming did so simply because theycould not &rd to do so. Indi~iduals w11o have 11o11sehold i~~comesunder $35,000 were disproportio~lately Hispanic. El Fe~~is Count). paysjurors only $6.00 per day and State law does not require employen to payemployees ml~o are absent is a result of juiy senice. As a result manyHispanic individual sunui~ol~sed are confronted wit11 the cl~oice of fore-going the earnings uecessary to meet inilumd l~ousehold expenses arereporting for ju~y sewice.In this case tl~ere is no doubt that Hispanics are a "distinctivegroup" within the commnity. Tl~ere is no doubt that the represel~tationof this group in venires fron~ whicl~ juries are selected is not fair md reasonablein relatiol~ to such pelsons in the comnlunit): Finall5 Illis underrepresentaliotl is due to qstematic exclusion oftlus-group:ul the julyselection process a a result of this County's failure to enforce the ju~ysummons and because this County then makes ju~y senice so pe~solmllyand financially onerous that many people call not or will not sere.Ilus Court sllould quash the panel in his case and take masuresto insure that the senire from wl~ich the defendant's wire is selectedrepresent a "fair cross-section" of the Dnllas Countycomruunit).Respectfully subn~itted,Atton~ey for DefendantFOOTNOTES1A defendant does tiot 11:1ve a right to a petit jury that representsa fair cross section of the com~~~o~ut)! Illir~ois u. Hollmrd, 493U.S. 474 (1989). The defendant's right to afair cross section, hovwer, does extend lo the con~position of the array hum whic11 tlie petit ju~yis selected. Id The remedy sought, therefore, is a wire that reflects afair cross section of Dallas Couol)!2 Tile pool is not a wl~eel of ~phfied juron. The smmllonsare sent out to members of the pool are able to reply that they are ~ ~otqudXied and therefore do not have to allswer the summuas.3 Almost 3000 of the !3,612 sumo~or~s were retun~ed as undeliverablel~ecause the addresses in the data hue were no longer current.Texas law only requires that the j111y1~~11eels be generated eveqsis years.An equal protection challenge, as opposed to a Sislbibnenrlmeet cliallellge requires a different sl~owiing. Prima facie sho\\fingsunder ;III "equal protection" challenge may be rebutted by proof ofan absence to discru~~iate. See Justice Kel~nquisl's disse~lt in Ufosu.111 addition, a Si~tl~ Aoendmeot challenge does not require tl~athedefenda~~t be a member of the underrepresented group. See Tfljdor aLotrisinr~a, ((male defe~du~t successh~lly cl~alienges la\\' that permits tl~eexclusion of ~vomen); and IJeters u. KiJ; 407 U.S. 493 ( 1972) (case inwl~ich a \vhite mall was pernutted to rise a challel~ge concerning theesclosion of blacks). In tlus case the defel~da~~t is a wltite male.Those iho violate a ju~y summons are subject to a $100 - $1000 he.W C H2001 1 VJW%KTCDIA.COM I VOICE FOR THE DEFENSE 1231

is al. -, , . ,.based solely on financial grounds. If a county, like Dallas County,r-has an under represented minority group and refuses to increasejury pay, the question remains whether there is any remedy- 7 under the United States Constitution.,Ilic~~Iic~dse,~ grndmt~dfm,,,Ceo'gctonnl UniieniQ lnrv GmIer in1990. He ans llw~limd b~,lIicLmeiS.Pallwr to mist 11, ,IN mpme~~tntio,r of~(~lite-collnr defi~~dntrts. APer tuco~wnzoilh zlfz flfllle4 bejoinedil~ Fedam1P~tblicLJcJe~~der's o$iee in DnIIm. AJersis mtd one ImYjwn in /IN Federn1P~fblicOefi~~der> O$m, Iaforn~edBr&r E211ickclsen wit6 Clint B ~ ~ I I ,nlso n for~,,rer&istmrf PedernIF,tbllcOefe,re~ ~lrpmctice is dewfed tocrimtmld~eme.On October 22,2000, the Dallas Morning News publisheda statistical analysis of the con~position of juries in Dallas CountyThis analysis established, that in relation to their population in thecounty, Hispanics dramatically under report for jury duty. Thestudy also showed that white residents are over represented anlongjurors that report. Moreover, the study showed that the poor are~~nder represented and the rich are over represented in DallasCounty jury pools. The results of this study probably come as nosurprise to sonleone who regularly tries cases in Dallas County.What is significant about the study is now, for the first time, morethan anecdotal evidence exists to establish this under representationof a n~~ority group and lower income residents from the jurypool.In addition, the Dallas Morning News survey establishedthat those individuals who failed to report overwhelming did sosin~ply because they could notafford to report for jury service. Thestudy established that individuals summoned who have l~ouseholdincomes under $35,000 were disproportionately Hispanic. DallasCounty pays jurors only $6.00 per day and State law does notrequire employers to pay employees who are absent as a result ofjury service. As a result, many Hispanic individual summoned areconfronted with the choice of foregoing the earnings necessary tomeet minimal housel~old expenses or reporting for jury service.U~tdoubtedly, the situation in Dallas County is mirrored in nmyother counties throughout the state of Texas.As a matter of basic fairness, it is clear that people shouldnot have to forego putting food on the table in order to exercisetheir right to serve on a jury. Most people would also agree that asa matter of basic fainless, a Hispanic defendant ought to have theopportunity to select a jury from a pool of jurors that reflects theproportion of Irispanics in the community. Evidence exists that ifjurors were paid $40.00 per day for their service, they would showup for jury duty in numbers proportionate to their numbers in thecomn~unity. Iu all likelihood, if any County Comn~issioner's CourtThe Sixth Amendn~eut of the United States Constitutionguarantees that a criminal defeudant has the right to a speedyand public trial by an impartial jury. The Supreme Court hasinterpreted the Sivth Amendment's i~~~partialityreq~~iren~e~~ttomean that a jury niust represent a fair cross-section of the comnlunity.The notionof an inipartial jury is symbolized by agroupcon~posed of people representing the various values, viewpoints,and experiences of a particular community. To satisfy the representativerequiren~ent of the Sixth Amendinent, however, juriesno st be randonlly selected from the commuuity.The fair cross-section requirement does not entitle adefendant to a jury that mirrors the conunnnity and reflects thenumerous distinctive groups present in the population. Ratltel; theSixth Amendment guarantees a defendant the opportunity for arepresentative jury by requiring that jury wlieels, pools of names,panels, or venires from which trial courts draw juries must not systematicallyexclude distinctive groups in the conununity. If a jurywheel, pool, panel, or venire systematically excludes distinctivegroups, then the resulting jury fails to constitute a fair cross-sectionof the community.111 Dwell 'Missouri, the Supreme Court set forth a clearthree part test to establish a prima facie case of the violation of thefair cross-section requirement: (1) that the group alleged to beexcluded is a "distinctive" group in the community; (2) that the representationof this gmup in venires from which juries are selectedis not fair and reasonable in relation to the number of such personsin the community; and (3) that this under representation is due tosystematic exclusion of the group in the jury-selection process.If a defendant successfully proves that a prima facie fair cross-sectionviolation has occurred, the burdenshifts to the government toshow that "those aspects of the jury selection process.. .that resultin the disproportionate exclusio~~ of a distinctive group" advance asiguificant state interest.There is no doubt that the group identified in DallasCounty, nan~ely Hispanics, is a "distinctive" group in the community.Mexican-Americans with Spanish surnames are a clearly identifiableclass with a history of subjugation to discriminatory treatment.There is also no doubtthat an absolute statisticaldisparity of18% between the percentage ofHispanics in the countyand the pepcentage of Hispanics reporting establishes that Hispanics are underrepresented. Courts have routinely conceded that an absolute statisticaldisparity of over 10% perceut meets the second prong of thetest.The real issue in Dallas County is whether this under rep.resentation is due to systen~atic exclusion of the gmup in the juryselectionprocess. On first consideration, one might think systeniaticexclusionto be synonyn~ouswith a jury selection processwhichengages in intentional discrimination. This notion, however, wouldbe mistaken. A defendant need not show purposefi~l discrirnination;he "need only show that the jury selectiou procedure 'systenlaticallyexcludc[s] distinctive groups in the comn~u~lity and therebyfail[s] to be a reasonable representation thereof." It nevertl~eless

Iremains to be seen whether any court will consider either failure toadequately pay jurors to constitute "systematic exclusion."With respect to this issue, an interesting comparison maybe made between the two grand jury cases, Cerrfa u B.ws andHemandezu Tms. Although these two cases involve the compositionof the grand jury, the analysis for determining the constitutioualityof the composition of the grand jury and the petite jury isessentially thesame.In Cerda, the defendant challenged the Hale Countygrand jury on the basis that it denied him equal protection of thelaw. The defendant established a prima facie case that there hadbeen a s~~bstantial under representation of Mexicandinericans thatwent unrebutted. T~I Cerdfl the court of appeals also acknowledgedthat Mexican-Americans were an identifiable class. Tl~e court ofdence:' In Hetnmdez the court of appeals held that the defendantfailed, however, to establish that Brewster County used a selectionprocedure that is susceptible to abuse. The court of appeals heldthat any county thatuses a "jury wheel" uses a racially neutral systemthat will withstand constitutional attack.There are goodreasons, however, to question this conclusion.Although little has been written on what the Supreme Courtmeant by "systematic exclusion" in Duren, the facts hmfrar dogive someindication.InDurm the petitioner chdongd the Missourisystem of procuring a jury pool. At that time Missouri anowed allwomen an automatic exemption. This statntory right to an exemption, coupled with petitioner's statistical evidence, convinced theCourt that "systematic exclusion" was taking place. It is difficult topredict whether any court win consider a county'sfailure to pay a juror an adequate wage to be anal-URYogous to an automatic exemption for a discreteclass of individuals such as oecimed in Duren.'Illere may exist, however, a another argument toestablish "systenlatic exclusion" in addition to theargument that failure to pay jurors a fair wage constitutesGsystematicexinsion?TO swve US a iul.0~ YOU mi& meet ~ualiRcdtions:" " * "beat least 18 years of age;he a citizen of this state and a resident of the county in which you are to serve as aj~u or;be qualified nndcr the Constitution and laws to vote in the county in which you are toserve as ts juror (Note. you DO NOT have to be registered ta vote to be qualified toIn Dallas County, Donna Roach, thejury clerk responsible for all jury summons to theCrowley Crlnbmat Courts building, testified at arecent hearing challengil~g Dallas County Juries 011crossm%ion grounds, that 110 steps are taken toenforce the summons when ignored. One couldplausibly argue this is effectively an exemption forilldividual ,vllo writs to shirk jury an... , option which is nlost often exercised by the poorvolt);he of sound mind and good morA character;be able to read and write;not haw served as a juror for six days during the preceding three months in the countycowt of dnring the preceding six n~ooths in the district court;not have bee11 convicted of tl~eft or any felony; andnot be mder indictn~ent or other legal accusation of a misdemeanor theft, felony theftor any other felony charge.appeals accepted the defendant's evidence tile population of HaleCounty was 38.03%, that theveuirefou grand jury service was 25%Mexican-American, but only 16.67% of the grand jurors selectedwere Mexican-American. Based on these figures the court ofappeals concluded that the State had a burden to rebut the evidenceof apparent cliscrimination. Because the State failed to do so, thecourt of appeals reversed the conviction and ordered the indictmentdismissed. Notably, in CerJrr, the grand jtnors were selectedon the basis of a "key man" jury systeni, which, althongh constih1-tionnlly valid, is subject to abuse.111 Hernflndez, the defendant ~hallenged the cnlistitntionalityof the composition of the grand jury on equal protectiongrounds and Sixth Amendment grounds. In Hertrnnclez the courtof appeals dids not recite the evidence establishing the under representation of a cognizable group, but conceded that the defendantestablished under representation of Hispanics with "statistical evi-and hence a disproportionate numher of Hispanicn~nnle.r--rIn otherwolds .. . 3nneonlv - - - -2haq -to-extend thelogic of m~ren slightly to reach the situation inDallas County. In Duren an e@lICif exemption fora discrete class of individuals resulted in theunderrepresentatiot~ of that class. In Dallas County, anin~plici! exe~nption for aU prospective jurors, as apractical matter, results in the under represeatationof the members of a discrete class on the jurypools. In principle there is little that distingnishesthe system successfully challenged in Duren andthe systeni currently in place in Dalhs County.Althongh the author of tllis articlereceatlychallenged theDallas County jury system on Sixth Amendment fair cross-sectiongrounds, the trial of that case resulted in a hvorable outcomc forthe defendant, and no appeal was taken. As a ~esult, as of the timeof the submission of this article, the Dalhs County jury systemremains ripe for a challenge. As for other counties, the key to makinga similar challenge will be the acquisition of the statistical evidence.In the Dallas Countylitigation, the Dallas Morning News prcpared an affidavit explaining its methodology and attached theunderlying data to that affidavit. For those who might want tomake a similar challenge in thek county, and who cannot afford tohire a statistician to condnct a similar analysis form scratch, a copyof the affidavit and underlying data might be a good workingmodel.

IIf oneis interested in makincafair crnssaection challeneeto the composition of the jury pool, one should raise the issue $awritten motion well in advance of trial. In order for the motion tohe taken seriously, oneshould attach the statistical datain the formof an affidavit to the motion and request a pretrial hearing.Hopefully, the prosecutor will choose the path of least resistance,stipulate to the accuracy of the data, and defend against the challengeon a purely legal basis. This will save one the time andexpense of putting on testimony concerning the stcttisticat data. Inaddition to the statistical evidence one will also have to insure thatevidence is put into the record concerning the manner in which thejury pools are compiled in one's own county, This may also beaccomplished by stipulation. Whether one proceeds by stipulationor live testimony, however, one must be careful to make the recordas complete as possible for appeal. Every appellate court will avoidthis thorny issue on the basis of procedural default if given theopportunity. In that vein, one must also remeo~ber to object to thevenire actually assigned to the case in question, establishing, forexample, that Hispanics are, in fact, under represented in the poolfrom which the defendant actually selected his jurors.Despite the merlts of one's claim and the adequacy ofone's record, no one can reasonably expect a trial judge to declarea countywide system for compiling the jury pools unconstitutional.Nevertheless, for cases which &ht ultimatelv result in a federalhabeas proceeding, especially capkcases, this issue is too good topass up. Perham if this issue is raised in enon& counties throughoutthk state, the state legislature even mi& be motivated t&esome remedial actionIITwo other articles from the Dallas Morning Newsaddressed this issue. One entitled "Duty Calls, Few Answer," piblishedon October 23,2000, reflected some oftheinformation gatheredby the Dallas Morning News concerning the financial dilemmamany individuals are placedin when sununonsed for jury duty. Theother article, entitled "No Excuses; published October 24, 2000,reflected the New Yo& experience in which jury pay was increasedand the sunlmons were enforced. In New York this greatlyincreased the representation of minorities on juries and insuredthat defendants received a jury pool reflecting a "fair crosssection"of the commimity.According to the Dallas Morning News article, 'ExtraMoney Helps El Paso Lure More Prospective Jurors," publishedOctober 24,2000, jury pay was increased to $40.00 per day, andthe percentage of people responding to the summons rose from22% to 46%.Eg., Smith u. Zkws, 311 US. 128,130 (1940).%ybr u. LoiiisMna,419 US. 522,530 (1975).Id,, at 538.Duren u Missouri, 439 U S 357,363-64 (1979).Id, at 367-68.SeeHernandez u. Te.ws, 347 U.8. 475 (1954).See Unifed States u Rodrigues 776 F.2d 1509, 1511,(11th Cii. 1985); Unitedskrtm a Cl@to,d, 640 F.2d 150, 155 (8thCir, 19811 UnitedSf#tm u. Tmt, 550 E2d 577,587 (Mth Cir. 1976).12SeeDur@1,439 U S at 363-6411.26.644 S.W.2d 875 Og. Ct. App. -Amarillo 1982); No. 0&97-00503-Cr @. Ct. App. - El Pam 2000)25% of the population in Dallas is Hispanic whereas only7% of those who report to jury duty in Dallas County are hispanic;19% of the population is AfricanAimerican whereas only 14% ofthose who report are African-American; 51% percent of the populationis white whereas 77% of those who report are wllite. In addition,the household income of 39% of the population is under$35,000 whereas only 13% of those who report have an incomeunder $35,000; the household income of 20% of the population isover $75,000 whereas 41% of those who report have a householdincome over $75,000.In conducting this analysis, the Dallas Morning News interviewedDonna Roach, the individual in charge of issuing the jury summonsfor the Crowley Courts Building. Ms. Roachexplained the State ofTexas provides herwith a "jury poop for Dallas County. This "jurypool" is computer data "downloaded" on a "c.d rom" that containsa List of Dallas County residents on the basis of voter registrationinformation compiled by the State, and driver's license remdscompiled by the Texas Department of Public Safety, who arebelieved to be qualif~ed jurors. This database of names is programmedto randomly generate the names which will comprise thejury snnunotisissuedfor any givenweek. The DallasMorningNewstracked the issuance of 13,612 sumions for the first week inMarch, 2000. It then randomly provided a questionnaire to 400 ofthose people who responded to the summons and reported for juryduty, and 400peoplewho failed torespond. Theresults ofits analysiswere based on this survey.The "key man" system used inTexas at the t ie consistedof the state district judge appoint thtee to Five persons to serve asjury commissioners. These jury commissioners would then selectprospective furors fro01 the community who fulfilled the variousstatutory requirements for being a grand juror. See CiudaAanosUnidmdeSan Juanu. HiMago CounQ Grat~dJ~iiyconmn~is~onms,622 f.2d 807,810-11 (5th Cir. 1980). This system of selection standsin contrast to a "jury wheel'' system by which the jurofs are randomlyselected.Generally, a criminal defendant is better off challengingthe composition of the jury pool under the Sixth Amendment.There are two reason for this. First, a prima facie showings underan "equal protection" challenge may be rebutted $ proof of anabsence to discriminate whereas under a Sixth Amendment challengeonce "systematic exclusion" is shown, the state must show"adequate justification" for the systematic exclnslon. See JusticeRehnquist's dissent inDuren. Because "systematic exclusion" doesnot necessarily entail intentional discrimination, one avoids theproblem of the State simply having the individuals responsible forcompiling the jury pool testify that they do not intentionally discriminateand thereby prevail. Second, a Sixth Amendment challengedoes not require that the defendant beamember of theunderrepresented group. See T'jtor u Louisiana, (male defendant snccessfullychallenges law that permits the exclusion of women); andPeters u. Ki& 407 U.S. 493 ( 1972) (case in which a white man waspermitted to raise a challenge concerning the exclusion of blacks).Duren, at 669.Those who ignore a jury summons are subject to a $100 to$1000 fine. Gov. C. g 62.0141.

I You may be excusedfrom jury service $you are over 70 years of age;yon have legal custody of a child or children younger than 10 yars of age and service on the jury would require leavingthe child or children without adequate supervision;you are a student at a public or private high school;you are enrolled and attend college;you are an officer or an employee of the senate, the house of representatives, or any department, commission, board,office, or other agency in the legislative branch of state government;you are the primary caretaker of a person who is aninvalid unable to care for himself or herself. (Tlus exemption doesnot apply to health care workers.)*You are not required to claim an exemption. It is you choice.Those willing to utilize an attorney to sit second cl~air in a trial fill out the form below and fax it to us at 512-469-09107.You mst be licensed more than 5 years atid have had a minimum of 5 felo~~y jury trials defending citizens accused of a crime.Name:Address:CountyTelephone #:Prima~y area of practice:e-mail:Those interested it1 assisting an attorney as a second chair please fill out the form beIow and fax it to us at 512-469-9107.You must be licensed less than 5 years or have less than 5 felony juy trials.Name:Address:County:Telephone #:e-mail:W C H 2001 1 WWWLTCDUOOM IVOIR FOR THE DEFl!NSE I27 I

-~ -The Rio Rico Defetzseby Andy NoguerasiM,: i\'ogrterns hns been nnAssistmt Feder~~lP~ibIicDefe~ider for thepost 12yenrs, the Inst three iniMcAilen, fe,~(s. As (1 defeuderof imiige~~t i~~diuiii~iflls, be isresponsible for defendi~~gP"aofls ciWFdlvit~, f l j j / Wothers, illegril re-eutries,drugs, cn~j~ickirrgs,l~nk robberies nrrdfini~d 1111: i\'og~ierns is feotiirednbowli~it his benritiJid ruif, t?nrb(ir(i, (lnd thq8 h~il:e three childre~n.II. HISTORY 01 RIO RICO.In 1884, the United Srates and hlerico ratified the fieay ofGuadah~pe Hidalgo wluch establisl~etl the Rio G~mde riw as the internationalboonda~y line behveen both countries. It \vas agreed Illatboundaly lines could change if the river ch:o~ged in a i~atulxl n~a~~nerHistorical records dating back to 1848, establish that tl~e Rio Grande hasReent~y cases are the bread and butter of publicdefenders and many defense cou~~sel in the private seclor withi~~~lnigratiol~ experience. \Ve see tl~em by tl~e thossa~~ds to thepoint of monotosy in the i\lcrica~~-A111erica11 bordels. The caseI;w is scarce and usually bad. In spite of this, defe~~se cou~~selshould be alert to a son~ctin~es overlooked and not well kno~vndefense Illat can defeat this lye of cliarge. I call it the Rio Ricodefense.I. UNITED STATES CITIZENSHIPArticle 14, scctio~~ 1 of the United States Co~~stitutionstates in part Illat "All pcrso~is bur11 or natur;diletl in the UnitedSrates, and subject to the jurisdiction tl~ereof, are citizens of theUnited States and of the State wl~erein they reside."The first part of section 1 seems quite sia~ple. If you are bornUI any one of the fifty states, yo11 are a United States citizen Aperson n ~ also q l~are a derivative clai~u to United States citizenslup bywayof his parents or grandparents if they were borl~ in the United States orxere i~aturalized. See 8 U.S.C. § 1401. Ilo\vever, nliat I~appens NIICII).our client is bon~ south of the Kio Grnndein what appears to be Mesicansoil, and ludter birth certificate is issued by the Kepublic of Mexico, butyou are told that it is United Stites territoly? \Veil, this is eaactlywlllat 11appenedto lile recentlywl~en I ~vas appointed to represent hll: Juan Garcia-Guerrero, w11o had beell cl~argcd under 8 U.S.C. $ 1325 (a misdemeanor)with entering the United States (Hidalgo Cueor); Texas) thmugha place lot tlesig~~ated by the 1111nugratio11 and Nahlrlizatio~l Senice (hecrossed the river). You see, according lo Mr. Garcia-Guerrero's 11irtl1certiGcale, he \\as born in "R~ncho El Ilorco~~", Tmaulipns, blesico, in1946. Ho\\wer, since 1884 lltis 413 acre parcel of land south of the KioGmde has bee11 in fact part of Texas a~td the United Slates.shifted its course continuo~~sly Some parts of the river cut into Texas,wl~ile anotl~er portio~l c11b tl~rougl~ Ta~~maulipxs, hlesico.l\w~ty-tw (22) years later, in 1906, a private krigntion conpangin Texas k11o\\'11 as he Kio Gnnde Land and lrrigatio~~ Compan~ illegallyaltered the ~nateral course of the river in order lo il~stall an irrigntionPIIIII~ station As a result of this illegal act, a pa11 of United States territo~y(about 413 acres) was cut off RII~ was accessible only tl~rougl~hiesican territol): This part of land is know as "Rancl~o El Horcolt". TheDeparln~ent of Justice sued the irrigation compmy 011 bel~alf of the affectedblesican fanners and obtained a judgment $17,500.00, wl~ich ll~econlpatty pud. All said and done, evel-jone went their sepamte \vqs and11ot11ing was done to rectily the illegal act xtd reestal~lisl~ the origi11:rl nat-~iral course of tlie river,

Consequently, Mexican farme13 moved to this podion of the United Statesthinking they mere in Mexico, and the town of Rio Rico was born, fileledby the Prol~ibitio~~ En. An~ericansrvould go to Rio Rico to buy and drinkliquor, gamble at its dog track, ad enjoy its hst class bordello. AlCapone was a frequent tourist and investoc Business was so good that atoll bridge was erected behveen Rio Rico and Texas in 1929 at a cost of$66,000.00. Within tal months of its construction, the bridge was paidfor by its toll collection. Unfortunately, by the tin~e Prohibition and theSecond World \Var were over, the town's prosperity ended and people settledinto farming.In 1965, a gentlenlan by the name of James E. Hill, Jr., accidentaJydiscovered this anomaly wlde researching a thesis paper on thegeolom of South Texas. His tlndings were later published in the April1966 edition of "The Rocky Mol~ntain Social Science Journal". As a resultof time Endings, the United States and the Republic of Mexico signed atrmty on Novenlber 23, 1970, in which the United States hllned over RioRico (a11 413 acres) to the hIexic,m government. Meanwide, area residentsof El Horcon were completely unaware of their legal status as vUnited States citizens. As hb. HiU, Jr., stated, the residents of El llorconspoke Spanish, none spoke English. The only official of the hiexican go -ernment was a police inspectoc Nobody suspected that their cllurch,school, plaza, and police station were in United Stales tcrritoly.Ill. RECOGNITION OF RIO RICANS ASUNITED STATES CITIZENSIn 1978, the Board of Imnug~xtion Appeals recognized for thefust time that a person born lo Rio Rico, was in fact a United States citizen.Seeillfltter Of Cflt~trr, 1978 \VL 36395 @hi).zIn the Catltu case, an immigration judge denied relief to thepetitiotler, Mr. Cmh~, and ordered his deportation from the United States.The Court of Appeals, in a hvo to one decision, reversed and held that thepetitioner had proven that he was a United States citi en and Ill@ it wasup to the govenunent to prove otl~e~-ivise. The Court placed e~upL?s' , IS onthe fu~dings by Mr. James E. Hill, Jr., and adopted them. The Court furtherl~eld that for hnmig~xtion purposes, alienage is a jorisdictional mattertiat nlust be proven by clear, convincing, and unequivocal evidence.As a result of tbis decision, hundreds of individuals have beenrecognized as United Shtes citizens. Howevel; many are stiU out therewho, for one reason or mothel; do not know that they are United Statescitizens by birth. In the case of my client, Mr. Juan Garcia-Guerrero, hedid not know until now hat he was in fact a U.S. citizen. Like many menlbe13of his family and Mends, he had come to the United States as a childwit11 his family to work in the Eelds. He obtained a legal residence cardthrough marriage to a uniteil Stales citizen in the early 1970% but failedto renew it doring the 1980s. t\s a result of a conviction for NI agglxvatedfelony, 11e was depol?ed to Mexico after seming lus sentence.IV. PROVING UNmD STATES ClTlZENSHlPTO THE GOVERNMENTTl~ere ae four tlungs that you need to establisl~ a prima faciecase of U~ted States citizenship.First, that your client was born in '"El Horcon" wlch. You dothat by obtaining a birth certiEcate from yoor lo& Mexim consulateAthough tilere is no INS written rules on wl~at is a valid bi~Th ce~Tificate,according to custom by INS officials, one will be presumed valid if theperson is registered will& the kt Eve (5) ycars after birth. Any birthcertiEcate registered after Eve yeas of birth will be presumed "suspect"by the INS. In the absence of a birth certificate, the cliurch at Rio Ricohas a book of all births and baptism.Second, presenting a did birth certificate will tlot he enough.The INS has a map Ulat delineates the area tl~at used to be part of theUnited States. Tl~e map sets forth structures and homes that fall withinand outside the old United States boundaly. Obviously, your client musthave been bom witllin that demarcation.Tlurd, the INS has a list of all properly owners of Rio Rico.There nus st be some lype of relationship behveen the propclZy owner andyour client. Tl~e relationship is usually established tl~rougl~ family.lastly, the testimony of fanlily and neighbors will be helpfi~l. Ofparticular inportance is the testimony of the local midndfe ~ I u8as O basicallywsponsible for the birth of all individuals born ~II ttus small camnsnity.V. DISMISSAL OF CHARGESTl~ere was a lqpy ending for my client, Mc Juan Garcia-Guerrero. One day prior to commenceluent of trial, the United States dismissedlus illegal cntly charge, acknowledging that there was reasonabledoubt about his alienage. He has sitlce filed an N-600 form requestingrecognition of his United States citizenship.Next time you have a client born in hhlxicod~o tells you he/shethinks she is a U.S. citizen, do not laugh. Remember Rio Rico, Mexico.Or is it Texas?Ref refteesilffllter Of CN~I~II, 1978 \W. 36395 (BU)United States Constihltion, hticle 14, Section 1Title 8, United States Code, 5 1401James E. IW, Jt, El Horcori: A United Stntar-11Ie.1'icn11 Botrr?dq:l'Atrot~~d]: Tl~e Rocky hlountain Social Science Jounld, Vol N, Numberl,April 1966United States-Mexican Internntional Bounda~y Treaty of GuaddupeHidalgo of 1884WCH aooi I w ww.rcDm.com I VOICE FOR THE DEFENSE I 291

U.S. SUPRB~ COURTNO DOUBLB JEOPARDY OR EX POST PACTO PROBLEM WITH SEX OPPBNDBRCIVIL COMMITMBhT SELlNG, SlIl'ERUvTEW~ SPECL4L COntnuTmCEm v. YOUNG, No. 99-1185, Cert. to gLh Circuit (192 E.3d 870); Reversed&Remanded, 01/17/01; Opinion: O'Connor, joined by Rehnq~list, Scalia, Kemledy,Soutel; Ginsburg, & Breyer; concurring Opinion: Smlia, joined by Soatcr; ConcurvingOpinion: Thon~as; Dissenting Opinion: Stevens.Young was confined to a conunitnlent center under Washington State'sConmunity Protection Act of 1990 (Act), which authorizes the civil commitment of"sexually violent predaton,"persons who suffe~~fivm a mental abno~mality or personalitydisorder tl~at makes them &ly to engage in predato~y acts of sexual violence.YOIIII~ won relief in district court, wlucl~ held the Act was unconstitutional. Duringpendencyof appd Supreme Coo11 upheld constih~tionality of Kaosas' Sexually ViolentPredator Act in Kmm u. H~ndJck, 521 US 346, holding tl~at a similar commitn~entscheme, on its face, met substantive due process requirements, was non punitive, andt1111s did not violate the Double Jeopardy and Ex Post Pacto Clauses. District courtdeaied relief, but Ninth Circuit ren~anded for reconsideration in light of Hondfck.The "lincl~pin" of Young's claims, the court reasoned, was whether the Act was punitive"as applied to Young.DECISIONSREPORTSDR for 11fmcb 2001Held: AII Act, found to be civil, carnot be deemed punitive "asapplied" to a single individual in violation of the Do~~ble Teopardv and ExPost Pacto Clauses and provide muse for release. Respondent mot obt&release throngh an "as-applied challenge to tile Act on double jeopardy and ex postfacto grounds. In Herulvck, Court e~pressly &sapproved of evaluating a1 Act's civilnature by reference to its effect on a shgle iindividoal, holding instead ti~at COIIIIS mostfoc~~s on a vadety of factors considered in relation to the stahlte on its face, and tl~atthe clearest proof is required to ovenide legislative intent and conclude tl~at an Actdenomhated cid is punitive in purpose or effect. Court eval~~ates respondent's allegalionslutder the assumption that tl~e Act is civil, as Washh~gton Supreme Court held andNmtil Cimit achowledged An as-applied anatpis is unworkable bemuse it \muIdnew condusi\ely resolw whether a particular scheme is punilive and would therebyprevent a final detelndnation of the scheme's wdidity under the Double Jeopardy andEx Post Facto Clauses. A confinement sclteme's civil nature mnot be altered basedmerely on vagalies in the authorlzing statute's in~plementation. The Ninth Cu'cuit's "asappliedmalysis does not comport Mth precedents i11 which this Court evduated thevalidity of confi~~eme~~t scliemes. Court goes on to discuss possible remedies, statingthose m be obtained in state coul?, where persons co~ltlned have certain lights understate law. Cou~l also notes that ao action under 42 U.S.C. $ 1983 is pending against theCenter and [hat tl~e Center opelates under an injunction requiring it to take steps toinlprove canfinement conditioes. Fin'inally, C~IIIZ points out that it has not squarelyaddressed the relevance of co~lGnement conditions to a first instance determit~atiou,and that question need not be resolved here.BOP'S REGULATION DENYING BAIUY RELKASE FOR PRIOR INVOLWMENI'WTH FIREARMS HELD PBRMISSIBLB: LOPE u. DAYIS, WARDEN, et st., No.99-7504, Cert to 8th~ircuit (186E3d 1092), AfEmed, 1/10/01; Opiuion: Ghsherg;Dissent: StevensUnder 18 U.S.C 8 3621(e)(2)(B), "[llhe period a [fedelall prisoner convictedof a nonviolent offense rcmnins in ci~stody after soccessh~lly completing a [substanceabuse] treatment p~ogranl may be reduced by the Burau of Prisons" (BOP).The BOP tilerefore ranked ineligible for early release all inmates incarcerated for"crime[s] of violence." Initially, the BOP defined the tern1 "crin~es of violence" toinclude, mong other offenses, a drug t~&lcking conviclion under 21 U.S.C. 8 841 ifthe offender received a two-level sentence enhancement under United States

Sentencing Commission, Guidelines Manual (USSG) gZDl.l(b)(l), forpossessing a dangerous weapon in connection with the drug offense.Courts of Appeals we divided over validity of cl-g drug offensesinvolvhg firearms possession as crimes of violence, and cert was gmtedto resolve this question, Lopez, convicted of possession withintent to distributemed~anlphetamine, possessed a firea~m in connection with hisoffense, and was enl~anced by two levels under USSG §2Dl.l(b)(l).W13e incarcented, lopa requested substance abuse treatment, andalti~ough found qudified for the tmtment prognm, he wm ineligible,under 28 CPR 9 550,58(a)(l)(vi), for early release. Eighth Circsit heldBop's decision to deny early release to drug halfickers who canyfirearm represents a manifestly permissible statutoiy constn~ction andan appropriate exercise of discretion.Held: The regulation at issne is a permissible exerciseof the BOP'S discretion under s36211eWNB). Section3621(e)(2)(B) gives the BOP discretion to glaot or deny a sentencerednction, but leaves open the manner in whihicl~ the discretion is to beexercued. If an inmate meets the two statutory prerequisites for sentencereduction - conviction of a nonviolence offense and succesh~l conlplelion of dnlg treatnlent - lhen $362l(e)(Z)(B) instructs that BOP"may," not that it must, gimt early release. BOP may categoricallyexclude prisoners front early release elipjbilitv - . bed on their oreconvictionconduct. Court rejects Lopez's argument that BOP may take intoaccount only postconviction conduct. BOP need not blind itself to preconvictionconduct that the agency reasonably views as jeopardizing lifeand limb. By denying eligibility to violent offenders, the statute manifestscongressional concern for peeconviction behavior and for the very condnctleading to conviction. BOP may leasonably attend to these factors aswell. The stainte's restriction of early release eligibility to nonviolentoffenders does not cut short the considerations that may guide the BOP inimplementing v53621(e)(2)(B). Wnaiiy, the regulation excluding Lopezis permissible. BOP ~msonably concl~~ded that inmate's prior involvementwith firexms in connection with the commission of a felony suggestshis readiness to resort to life-end;u~gel.ing violence and thereforeappropriately determines the early release decision.COUNSEL'S FAILURE TO OBJECT TO BRRONEOUS SENfBNCEHELD INEPPBCTIVB WITHOUT PORTHBR FINDING OF "SIGNIFI-CANCE CLOWN v. UNITBD SZWE!?, No. 99-8576, Cert. to 7lh Circuit(182 E3d 921), Reversed & Remanded, Y9101: Opiilion: Kemedy(uoanimous)Glo er's federal labor mcketeering, money laondering, and taxevasion convictions wele to be grouped under United Shtes SentencingGuideUnes s3D1.2, which allows the grouping of counts invohing substantiallythe same ham, but Gosernnlent objected to grouping the moneylaundering coonts with the others, wd the hid court agreed. Glover'soffense level was thus increased by two le\ds, resulting in an inc~easedsentence of between 6 and 21 months. Counsel did not complain eitlwat trial or on appeal. Glover then IUed a pro se motion to correct his sentence,arguing that counsel's failure to pursue the issue was ineffectiveassistance, withoutwhicl~ Ids offense level would have been lower. Districtconrt denied the motion, detemg that under Cj~cnit precedent a 6 to21 month sentencing increase was not significant enough to ano~u~t toprejudice, m~d Seventh Circuit amd,relyirg on the Government's theolythateven if counsel had bee11 ineffcctiw, the resulting mcreaseiu snltencewould not consiitute prejudice.Held: The Seventh Circuit erred in en-dng onto the _arqiudicebranch of the Strickland test the requirement that mv increasein sentence must meet a standard of sienifimnce. Government nolonger asserts that a 6 to 21 month prison termincrease is not prejudiceunder Strickland. The Seventh Chcnit relied onlockharl u. FreIwU, 506U S 364,369, which holds that in some circumstances amere differencein outcome will not sufice to establish prejndice. However, in IYilliamsu. Tqtor, 529 US. 362,393, Court explain4 thelockhmf holding doesnot supplant theStrickbndanalysis. Seventh Circnit was incomct to relyon hckharl to deny relief to persons who might show deficient pellormanccin counsel's faihire to object to an error of law alteciing the sentencingcalc~llation because the sentence increase does not meet somebaseline prejudice stanhrd. Smeuth Circ~Ws nlle is not consideredin event, because there is no obvious dividing Une by which to nleasurehow much longer a sentence must be for fhe increase to constitutesubstantial prejudice. Nthougl~ the amount by which a defendant's sentenceis increased by a particular decision may be a factor in determiningwhether counsel's performance in failing to atgue the point constih~tesineffective assistance, under a determinate system of constraineddiscretion such as the Sentencing Guidelines it cannot serve as a bar to ashowing of prejudice Here the Court conside~s the sentencing calculationitself, which resulted from a ruling that had it been error, would havebeen correctable on appeal. The question of deficient performaace is notbefore the Court, but it is clear that p~ejudice flowed from the assertederror in sentencing. Court also refuses to address Gove~uinent's variousargumentsfor &nling the Seventh Circuit's judgment, as those were neitheridsed nor resolved below.NO RBTROACTMTY PROBLEM WXEN STATE COURT DECISIONDID NOT INVOLVE A NEW RULB: PIORE v. VHIlZ, WARDEN, etd., Cert. to 3~~ Circuit (149 E3d 221), Reversed, 1/9/01; Opinion: PerCuliamPiore was convicted in Pennsylvania state tout of opemting ahazardous waste facility udthont a permit. State conceded tlmt Piore didhave a permit, bnt mgned that he had comn~itted a crime beca~tse he haddeviated so dramatically from its terms State S~~preme Court reh~sed togrant revierv, but did review his co-defendant's (Scarpone) case, andreversed that conviction, wllicl~ was the same offense, ca~umitted at thesan~e me. There, the state court held one who deviated from his permit'sterms was not a pelson without apernut, hence, a person who deviatedfrom his pe~mit's terms did not violate the statute Cot1monweaEf6v. Scarpone, 535 Pa. 273,279,634A. 2d 1109, 1112 (1993) (describingState's. ulterp~~tation as "a bald fiction we cannot endorse").Notwithstanding this rag, Piore's state w~it was rejected, but a federalcoua plted relief. The 3rd Ciicuit reversed, howemr, holding thatbecause the nile annomcedin Scarpooe was a "neW ~uleit could not beapplied retroactively to gmnt relief on federal habeas. The SupremeCourt granted cert. to determine whetha the 3rd Circuit ndhg was correct,and certfied the following question to the Pennsylvania Supren~eCourt; "Does the intaptation of Pa Stat. Ann., Tit. 35, $6018.401(a)(Pordon 1993), set forth in Cmnnwt~iuealfh a Swr~pone, 535 Pa. 273,279,634 A. 2d 1109, 1112 (1993), state the correct interpretation of thelaw of Pe~msyl~mia at the date Fiore's cmlviction became final?" (Seeopinion renianding to Slate Supreme Cou~t, 528 U S 23 (1998) for moreinforlnahon ~egarding the certified question.)hARCH 2001 1 IHYYW.TCDLI\.COM I VOlCI FOR THE DEFENSE 1 3 1 1

iHeld: Because the decision announced in Scamone fid notinvolve not a new rule. no issue of retroactivity is oresent, andPiore's continued incarceration violates due - orocess. The SateSupreme Court's answer to the above question was: "Scdqone did notannounce a new rule of law. Onr nlling merely clariOed the plain Ian-page of the statnte. . . . Our interpretation of [§6018.401(a)I inScarpone fi~rnishes the proper statement of law at the date Fiore's convictionbecame Enal." Piore u. Wte, 562 Pa. 634,646, 757 A. 2d 842,848-4349 (2000) Court reasons that because Smqone was not newlaw, this case presents no issue of retroactivity; mther, question is simplywhether Pennsylvania can, consistently with the Fede~al Due ProcessClause, conviet Fiore for conduct that its criminal statute, as properlyinterpreted, does not prohibit. Court'sprecedents make clear that Piore'sconviction and continned incarceration on this charge violate dueprocess. "We have held that tbe Dne Process Clause of the FourteenthAmendment forbids aState to convict a person of a cdme without pmvingthe elements of that crime beyond a reasonable doubt." Here, Statefalled to prove the essential element that Piore dld not possess a permit.Judgment is therefore reversed, and meis remanded to 3~~ Circuit forfurther proceedings.EfiENSION 0% TRAPPIC STOP - US4 u. JONES baANL7L, No. 9-11z5o (1v2onooo).Defendants were stoppedfor tr&cviolations. A records checkwns run on both the driver and passenger, which was negati~e. The officerreturned the driver's license to I~I, but continued questioning boththe driver md passenger. He then obtained consent to sea~ch the vehicle,and recovered drugs. The ofacer attempted to establish reasonable suspicionfor the continued detention based on the allegedly ioconsistentresponses about employn~ent, and the fact that Daniels admitted he hadbeen previously arrested for a mck cocaine charge The court chamcterizedthe inconsistencies as trivial, and humaterial. The coua alsofound Dauiel's prior arrest did not establish reasonable suspicion.Therefore, the continued detention was illegal. Because of the close temporalproximity between the illegal detention and the consent, the courtEnds it was not volunt~. Court reverses the District Court's order denyingthe defendant's motions to suppress.HABBAS CORPUS - TIMBLINBSS OF NOTICE OP APPEaWIlKBNS u, JOMYSO.V, No. 99-41180 (1/4/2001).On June 18,1999, the Diswict Court entered an order denyingthe petition for writ of habeas corpus. Petitioner's altorney claimed hedid not receive a copy of the order until September 7, 1999, wlten it wasfaxed to him. He srrbsoquentlyBled amotion to Ble alate notice of appealon October 4,1999, whicl~ was granted. No attempt was made to assertthe notice was not timely Bled, but the court tookup the issue on its own.Rule r 4 allows a pwty to file a motion to Ble a late notice of appeal within30 days of the date notice is due. Where noticeis not received, apactymHe such a motion with 7 days of receipt of such notice, or 180 daysafte entry of judgment, wluchever is earlier. Here, the motion was nottimely under either exception. The issue was whether was the bxed copyof the petition was sufficient, which the court l~olds it was. Asa result, theappeal was dismissed far lack of jurisdiction.CONFRONTATION CLAUSE AND THE DENIAL OF COUNSEL:Defendant originally obtained relief based m a confrontationclaw violation. (An ofacer effectively testiM to what a confidentialinformant had told him). COA revnsed, Ending there was no caIh.onta-Uon clanse violation. Not to be detemd the District Court again grantedrelief, this time Ending the state's use of 11eaivay testimony constituted aconstructive denial of counsel, based on tbe failure to object to the teshmonyand move for disclosure of the informant COA holds a fmding ofineffective assistance is foreclosed by the prior decision concluding anyerror was harmless. Constnlctive denial of counsel is limited to thosecases where the ineffectiveness is so egregious that the defendant isdenled any m&~Bful assistance. Since counsel rendered at least somemeaningfd assistance, the District Court was agaio reversed.JURlSDICTrONAL REQUIREMBNT FOR MURDER FOR HIRR USAU. II&QRBKb CIS-, NO. 98-40568 &98-40955 (V4/2001)C~III? gmted rellearing en banc to determine the jurisdictionalrequirementsof the murder for hire statute. The issue was whetherint~wstate use of an interstate facility is snfEcient. Inbfamk, the defendantused Western Union to wire money in state. The eourt holds that is suttlcient,construing the statute to be sati&d as a long as a facility in interstatecommerce is used.PDR OPINIONS:ERRORTO EXCLUDE EVIDENW RBLBVkhTTO DURESS DBEBNSB:DLIL&SLfT?LIGIflWYMILLEU u. State, No. 1939-%,Appellant's PDRfmm Travis County; Reversed, OV17?01; Offense: Deliveq of Less than1 gm Cocaine; Sentence: 6 yrs (2 prior felonies); COA: Mrmed (W-No. 03-99-00040-CR, Austin 9/10/99); Opinion: Holland, joined byKeller, Illeyers, P~ice, Johnson, Keasler, Hervey & Holcomb; ConcurringOpinion: WomackAppellant delivered cocaine to an undermver cop. Herdefense was dnress: she tesaed that a man named James Magee hadthreatened to beat her up if she did not dehr the coke, that she was&id of Magee, and that her Me wasin danger. She wanted to admitfurtherer3dence that shortly dter cdssion of the offense, Magee did infact, assault her. The trial cow sustdned the State's objection that thisevidence was irrelevant because it occurred after commission of theoffense, and COA agreed. Appellant's PDR was gxnted to determinewhether exclusion of this testimony in support of her duress defense wasproperHeld: The-gthe testimony as irrelevant based on when the assault occurred;the evidence w relevant under TRAP 402. Due process guaranteesa defendant "a meaningful opporhmiiy to present a completedefense!' The principle applies to cases not only where witnesses havebeen intimidaied into silence, but where trial courts have eududed evidence.The defendant has a fi~ndamental right present evidence of adefense as long as it is relevant and not excluded by an established evidentlaynde. To be relewt, evidence must be material and probative."Material" means any fact that is of consequence to the determination ofthe action. "Probative" mems it nmst tend to make the existence of thefact more or less probable than it would be without the evidence.

Here, Appellant iaisedthe af$math.c defense ofdoress and thetrial court histructed the jury accordingly. Question is whether Magee'smault on Appellant would have any tendency to make it mom probablethat Appellant reasonably believed that she was compelled to debver thecoke by threat of serious bodily injury or death, or at least more probablethan it would have been wiIhout the evidence of assrmlt, even thoughit occurred &r the deli~q. W telied w a 5th Circuit opinlon, USl v.McClure, 546 EZd 670 t5lh Cir. 1977), which held coercive threatswerenot irrelevaot merely because they took place after the defendant hadconunilted the offensefor which hewas on trial. There, Court found thatthe j~y could not properly convict defendant absent tlie opportunity toI I he ~ proffered testimony bearing on the defeusive theoly and weighits credibility along wnh the other widence presented. Here, CCA concludesthat arational jury could find the evidence that Magee putsued andassaulted Appellant shortly after the offense (as he had threatened)helped prove that Appellant was under a constant state of duress fromMagee when she delivered the coke, that thls duress made her fat forher safety, aud that her fm was reasonable. The testimony that Magee~ssaulted her tended to make the existence of a consequeutial k t moreprobable, namely that Appellant had delivered the coke under durnthan it was without the adu~tssion of the testimony, thus it was relevant.CCA also Finds tlie evidence relevant under TRAP 402 because there wasnothing to impede its admission Even if trial court had held it inadnlissibleunder TRAP 403, that would have been an abuse of discretion.Judgn~ent is revmsed, and causeis remanded to COA for a h m malpis.FINAL CONVICTION REQUIRED TO ENHANCE STBTB JAIL FELONY:BRICKBNYATrA JORl2AN u. Slate, No. 156-99, State's PDR from BellCountr, AJ&mecl, 1/17/00, Meiise: UUMV; Sentence: 2 yrs; COA:Revelxed (9791n5- Ausfin 1998); Opinion: Keller, joined by Holland,Womack, Keasler, Hemey & Holcomb; Concurring Opinion: Price, joinedby Meyen & Johnson.Appellant got deferred in 1995 for delivering less than 4 gmsof cocaine, but der a heating, his connuunity supenision was rwkdIn the same proceeding he pled guilty to Uie instant offense, a state jailfehy, and his delivery offense wvas used under TCCP 42.12 5 15 to authorizea 2-y term of con8nenient. Without the prior conviction, tlie trialcourt would have been required to place Appellant on probation. State'sPDR concerns whether theprioE usedto edimceastate jail felony under42.12 g 15 must be a 'Pinal" couviction, even though that nvrd is notused in the statute.Held: A prior conviction must be final to be used under42.12.&% Using n~les of statuto~y constnlction and an analysis of itsprior case law, CCA deteimines that it \To~~d be illogical to iniposc sentencebased on a pending, non-final conviction. nial courts should notbe placed in a position of having to predictwhat an appellate court woulddo, nor should courts be placed in a position having their judgmentsoverturned because of subsequent events that may occnr in a pendingcase. When the case becomes final, it becon~es "official" in the sense thatagencies and courts can routinely rely on it. Having said this, CCA thenconcludes the prior conviction in tllis case, a probated sentence, notfinal. Generally, a convictiou is not final until the appellate court &msthe conviction and issues its mandate, W~th a probation, however, theconvictioll (for purposes of enhaucemenl) is not hal until revoked.Under Pffl??klin, 523//947 (CCA 1975), if there is an appeal or motionfor new uial pendiug in arevoked "regulaf' probation that does not pertaiuto the original proceedings (ie, appeal of revocation, not impositionof probation), the conviction is Bnd for p~irposes of determining proba-tion in a new weunder TCCP 42.12 $4(a). Such a conviction is consideredfinal even if pmbation is never revoked, or revocation is onappeal. Only an appeal of the originalconviction proceedings (or motionfor new tdal, which has the potential to undo the proceedings) can renderthe conviction nonhal. However, inn deferred case, onlyupon revocationthe conviction become final for purposes of dete mining thedefendant's eliibility for probation io a new we. The defendant m o tappeal the original plea or decision to adjudicate. After revocation, however,he can file a motion for new trial, and ifgrantedithe convictioncould become nonfinal. Hew, when Appellant was sentenced to stace jailfor the primary offense, he still had time to Ble a motton for new trialinthe prior conviction proceeding. Therefore the prior was not final, andcould not be used to deny him community pmbation in the p~imaryoffense,PRESERVATION OF RULING ON SUPPRBSSION MOTION: LOUISAN421ONY GUTlBRRBZ v. State, No. 693.00, Appellant's PDR fromHarris County; Vaeated & Remanded, lI3lIOl; Offensc: FOG;Sentence: (not in opinion); COA: AfGrmed (NP - Houston 114'11999); Opinion: Meyers (unanimous)Appellant pled guilty, but appealed the denfal of his motion tosuppress the evidence. The trial court conducted a hmring, then resetthe case to allow Appellant and the State time to Ble briefs. Appellant'snotice of appeal, dated the same day his pleaw entered, recites that themotion to suppress was ove~ruled by the tdal court on August 8,1996.The notice, signed by defense counsel ad Appellant, also stated that anapped bond had heen set, and the judge's signature appeared below thebond notation. COA held that because the record failed to rellect a rulingon the molio~~ to sappress, Appellant h:td hiled BJ prwne this errorfor purpose of xppcdl, re1)111g on Cltrciu, RX7//862 (CCI\ 1994). PI)Kw&granted to determiue whether this n~ling was co~rect.Held: COA erred in failing to consider whether trfalcourt's ruling was implicit. as provided bv TBx.R.APP.PRo.Gnr~in const~iwdformer Rule 552a), wvhichreq~dred only thaia party obth "a ruling" in order to preserve a con~plaint for npped.Current Rule 33.l(a) allows for a 111ling by the t~lal court that is "eitherqre~sly or impliedlf made. Because COA relied on old law, and didnot consider whether the trial court's ruling was implicit, case is senthck so that COA may consider the question within nmling of Rtde33.16&CHARGIl NOT ERRONEOUS FOR FAILING TO INCLUDE PARTlESUi~UC1'ION: ZBRICKMARWS v. State, No. 1994-99, State's PDRfrom Harris County; Reversed, 1/31/01; Offense: Murder; Sentence: 75yrs; COA: Reversed (3///68 - Houston [14~~'] 1999); Opinion: Johson,joined by Keller, Meyers, Holland, Womack, Ke.lsler, Hervcy & Holconib;Concurring Opinion: Price, joined by Tomack as to pt,IAppellant and another man shot and killed the victim after aguntight involving the three of them. Appellant (who himself was shotduring the fight) clai~ed he shot in se!f-defense. The victim suffered teng~msliot wounds, 4 of which were from Appellant's gun. COA reversedbecause, although the charge contained an abstiact insuuction on the lawof parlia, it did not apply the law to the facts. COA reasoned that actingas apartyrequired more Illan an appeamce of acting together; thus, justbecause Appellant and tlie other shooter appmed to be acting togetherdid not mean theywere actingas parties. Consequently, COA held that theState's burden of proof was lowered, and the evidence was legally insuBicient.As no objection was raised to the charge, COAa~ialyzed the erro-

neous charge under Alt~~at~za, and held it was egregioosly hamhd.State's PDR was granted to determine: (1) whether COA misapplied thelaw on concurrent causation; and (2) whether COA wrongly held thatunobjected-to error was reve~sible errol:Held: The cl~aree did not relieve the State from burdenof &Irovi~l_e tnem ren element necessary to conviction as a !arty,or authorize the inry to convict Appellant only as a urincioal,and as sucl~, was not egregio~~slv harnIf111. The appkation paragxphauthorkd the juryto convictifit found beyond armonable doubtthat Appellaot, acting either alone or ~4th the co-shooter, intentionally orknowingly caused the death of the victm by sl~ooting 11im with a thearm,or that Appellant intended to cause serious bodily injury to the victim byshooting him with a firearm. Immediately before the application paragraph,the ju~y wm given XI abstract i~~st~uction that stated in part: "AUpersons 2u.e parties of an offet~se who are pmwn bepnd a rmonnMedoubt to be guilty of acting together in the co~nmissio~~ of the offense."The charge vent on to define criminal responsibility by parties, and statedtl~at mere presence alone will not made one a party to ;u~ offense. CCAreasons that use of the ph~xe "acting together'' in the application pawgraph was a reference to the abstract portion, which equates "actingtogethel" with "party." "Party" upas defined in the abstract by tncking theappropriate statutoly la~guage. Tlms, the charge connected "actingtogetl~er" with the con~plete definition of "criminal responsibility" includingthe required cdpable mentd state, and as such did not relieve theState of the burden of proving the rtrens rea elenlent and aUow Appellantto be convicted as a principal. There was no egregious harm, thus State'ssecond ground is sustained. Judgment is reversed and ren~antled to COAso lhat it may address Appellant's ren~aining point of elml:MANDAMUS OPINION:MANDAMUS WILL NOT LIE WEN ACT SOUGHT TO BE COM-PELLED WAS NOT PURELY MINI~RIAL: State ex MI. Bill Hill,Relatot; u. Ffph Cornst of Appeals, No. 73938, I\lmdamus Appealfrom Dallas County; Reversed, 1/12/01; COk Relied Granted (111 reBeck, 26111553 -Dallas 2000); Ophuon: Meye~el's (m~animous)The real partyininterest, Beck, as convicted of sexnal ma111tof a child by a juq, ml~ich gave him 10 yrs and recommended probation.He appealed, and u7as released on bond, After violating bond conditions,the t~ill court refused to again release him, r~~ling that because Beck hadbeen convicted of a 3g offense he was not eligible for at1 appeal bondunder the term of article TCCP 44.04(b). Ile then sought mandanlusrelief in COA, which held that kt. 44.04(b) is uncoastit~~tional. The Statethen msaught mw~da~ios relief in CU.bond pending an appeal fron~ a felony comiction if he has been sentencedto ten or more years of conOl~e~ilent or if he has been convicted ofa 3g offense. rat he^; such defendants "sl~all i~nmediately be placed in custodyand tl~e bail discharged." COA agreed with Beck that 44.04(b) usas~mconstih~tiona as applied to lun~. COA reasoned that when a defendantconvicted of a 3g offense is awarded co~mnunity supe~vision he is placedin the position of choosing to: (1) not appeal Ids conviction in order toavoid incarceration pending the appeal, or (2) appeal his conviction andren~ain incarcerated until the disposition of his appeal. COA held tlusschenie coold cldl such defendant's decision to exercise his right toappeal. Accordingly, COA held Beck mu entitled to relief and ordered thetrial cou~t to consider il~e merits of Beck's application br bond pendingappd. CCA determines this ruling vw incorrect. A COA abuses its discretionin gmnting n~andan~us $Relator fads to den~onstmte in COA that:(1) he has ao other adequate legal remedy; and (2) under the relemntfacts and law, the act sougl~to be compelled is purely niinisterial. COAabused its discretion in issuing the writ hi tlus case beca~~se the act so~~ghtto be compelled was not ministerial. A ministerial act is one which doesnot in olve my discretion. CC4 has also described the ~niniste~ial actrequircn~ent as a requirement that the relator ha\ae "a clear right to therelief so~~gla." Here, COA held that trial court had a ministerial duly tohold 44.04(b), as applied to Beck, unconstitationd. But s11c11 holdingwould require the exercise of judicial discretion, particularly in light ofthe fact that the constitutionality of article 44.04(b), as applied in the circ~~mstancespresentetlin theinstant me, was an issm of fit impression.Certainly where the law is equivocal or unsettled, it ca~not be said thereis a "clear legal righr' thereouder so as to jmtii manda~lls relict Reliefis conditioadly gw~ted. CC4s practice is to withhold issuance of writ toallow COA to conform its actions to tlus decision. [Note: CC\ makcs nodetermination of merits of statute's constitutionality]DEATH PENAITY HABEAS CORPUS:NEW llUAL GRANTED WHERE COUNSEL FAILED M REQUESTINSIRUUIONS ON EXIXANEOUS OPPBNCES: EX P m WL4-GO RANGBL VARELAS, No. 73,632, from Galvestoo Coonty; ReliefGra~~ted, 1/31/01; Opinion: IIollaod, joined by hleye~s, Price, JohnsonPr Holcomb; Dissent: KeUer, joined by Keasler; Dissent: Womack, joinedby Keller 8: Keasler; Dissent: Keasler, joined by IIenreyApplicant \'as co~~victed of killing lus 2-)T-old stepda~ightermd sentenced to death. His co~~viclion rvas alOrmed io 1997, in anunpublished opinion. The victim had been kicked or hit so forcefully inthe abdon~en that her heart was tor11 in four places, and she had beenphysically abused for 6 weeks prior to her death. There was no eyewitnessevidence as to who u7as the pelpetratol: The State introd~~ced e%dence of prior bad ace committed by Applicant against the victim asproof of lus state of mind, intent, relationship and motire: he had dunkedher in a swimn~i~~g pool, thumped her head, poshed her with his foot,made her sit still on a co~~ch for 2 horns, and had hit her the night beforeher dcath. Applicant's defense uras illat the victim's motl~cr had comn~ittedtlie offense. The &straneons offefeoses introduced to show a pattern ofabuse, were crucial to the State's case. However, trial co~~nsel failed toreqnest any instmctions, either burden of proof or limiting iostmctio~~s,e\w~ though counsel had remarked during pretrial henrings that suc11instmctions mere appropriate. In tllis urrit Appplicmt con~plai~s lus tdalattorney uras ineffective for failing to request ju~y instr~~ctions regardingextraneous offenses at the guilWim~ocence portion of trial.Held: Trial counsel was ineffective for failine to requestjury ii~structions on the hnrden of ?roof for consideration ofextraneous offenses, as weU as limitine instructions. UnderHarrell, 88411154 (CU 1994), CCA held that the j~uy should be i~istructednot to consider extraneous offenses unless jurors iielieve beyond areasonable doubt that the defendant conu~utted the act. Tn illitchell,93111950 (CCA l996), CCA held that if the defendant requests ;u~instmctionon the standard of proof required for admining estrancous offensesheis entitled to the instn~ction Hence, in this case, had counsel requestedthe instruction, it shoultl have been given. Moreover, had he requesteda huiting inst~~~ction, the trial court sho111d haw inst111cted juro~s notto consider tl~extra~~co~~s offense evidence ~~nless they belinrd beyonda reasonable doubt that the defendant had committed those offenses.George!, 8901173 (CCA 1994). Trial co1111se1 s~~bnutted an aflidavit staling1 34 1 VOICE FOR THE DEFENSE 1 \N\NW.TCOLA.COM I -CH 200 1

that she uras aware ofHmrel1and Geotge, aid that her failure to requestinst~~~ctions was an oversight, and not the result of trial strategy. After alengthy analysis, CO\ uses the Stricklmdstandard to 6nd that counsel'sperforn~ance as to the lack of instructions was deficient. As to the prejudiceprong, because the charge did uot contai~ the appropriate burdenof proof for the extraneous offenses, it is rewonable to presume that thejmy did not necessa~ily find beyond a reasonable doubt that said actsrwere committed by Applicant. Also, because no limiting instmction wasgiven, juro~s mere likely to consider the extmeous acts as direct e\ideuceof Applimt's guilt, nan~ely, that he acted in confor~nity with hischancter. Consideriog dl evidence p esented by both sides, CC\ concludestliat Applicmt's defense urn prejudiced by the absence of i~~structions:because the juy was not required to find Applicant had conuninedthe o&nses beyond a reasonable doubt, jurors~vere left with no guidanceas to the proper weight to be given those acb. The ju~y niore than likelyassunled tlmt because the ext~aneous acts were part of the evidence surro~mdingthe relationship between Applicant and the victim, they wereproper factors to detemine bis guilt. Also, without the linutulg instmctions,it MIS probable tliat jurors considered them as direct evidence ofApplicant's guilt - propensity evidence - rather than the pulyose forwlvllich they had been offered. Finally, fdure to request LC properinstructions jeopardized tlie jury's ability to convict Applicant of a lwefiuc111ded offense: by not holding tlie jmy to the correct burden of proofmd limiting instroctio~~s, the likeliliood of tlie july fiuding Applicant guiltyof capital murder d~miatically increased. On the facts of this case, if theju~y did not believe that Applicant had engaged ir a pattern of abuse, itwo111d have been ditlcult to find he had intentionally i~lflicted the injuries.Tlms, there was a reasonable probability that he have been convictedof one of the lesser-included offemes such a n11uis1a11gliter ornegligenthomicide (and on wlucb tile jmy \vas inst~~~cted). Thus, tlie harmis sufficient to undernline confidence in the outcome, and there was armonable possibility that but for the errors conuuitted by t~id counsel,the result of his trial would have been different. Relief is granted in theform of a newtrial.DEATH PENALTY OPINION: ROBBRT hlADRlD SALAUR, No.7345 1, from Lubbock County; Atnrmed, 1/17/01; Opinion: MeyenPacts: Appellant beat up the 2-yr-old daughter of lus girlfriend,who he was supposed to be bilbysitting, then lefi with h~s fiiend to buybeer: The girlhiend found the baby in 11er crib unconscious and calledEMS. \%en Appellant saw the a~nbulance on the way back from the store,he did not stop, but went to his mother's house to &ink the beerParamedics noticed the back of the baby's head felt like Jello, aid slie wasbadly beaten dl over her body. She died later that evening. Appellant toldpolice that he had beconie angry and pushed the baby down in the showermid that he had abandoned her because he was scared. The autopsyresults did not support Appelluit's sto~y: she had suffered, anlong otherthings, lie-threatening injuries caused by hard blom to the head, chestand ston~ach, Appellmt had a history of committing assaultive offenses.CMlm no dificultyrejecting his claim that the ewdencewas insufficientto support future dangerousness - prirualily the pa~licularly heinousfacts.Jury discussed and considered parole: At a hearing onAppellant's n~otion for new trial, he presented evidence that juro~s, particularlyjuror Kelly (a cop) discussed parole. Three jurors testiGed thatKelly professed to know the law because he was a cop, and told them thata Me sentence really meant 20 )m. One hold-out said she only changedher mind and wted for death &er Kelly made the statenlents. Kelly testifiedthat he only told the othe~s that life doesn't really mean life, butde~ued holding himself out as some expert on parole. The State present-ed affidavits from 4 jurors who said Kelly did not profess to know the lawbecame he was a cop.Held: CCA. using the test in Sneed. 670//262 (CCA19841, holds that trial court did not abuse its discretion in overrulingtbe motion for new trial . The testimony was conflicting andthere was no consensus that Kelly held hiuselfoul as an expert on parole,or told jurors that Appellant would only sene 20 yrs.Autopsy photos were overly prejudicial: State introducedphotograpluc slides of the baby's autopsy, which showed the victinl'sinternal orgm aid brain after re~uoval from her body These i~~cludedshots of the lungs, heart and intestines, showing mmive internal i~~juries.Held: The trial court did not abuse its discretionbecause the photos were highly mobalive. Appellant told police thathe had pushed the baby down, which had caused her injuries. The photos\we used to show the iutemal injuries were inconsistent withAppellnnt's statement, and were necessary to prove that he had acted withthe requisite inteut.Extraneous offense: A witness testified tliat the victim criedout in p ~ when i she removed the child's coat. The witness then noticed811 inju~y on her shoulder, and upon inqui~y, the child told her that Robert(Appellant) did it. The injo~y was a frachn'ed collarbone and dislocatedshoddec The State claimed, and the trtd court agreed that tlus statenlentwas an excited utterance and did not violate ilppeilait's confro~ontation andhearsay objections. Appellant asserts tlus was not an excited uttewncebeca~~se there was no evidence to show when the hijury occurred, and thecl~ild's statement was hi response to a question. Moreover, the child nrasnot still in the grip of the e\-ent causing the injmy.Held: Trial court did not abuse its discretion. Here, tliedeclamnt \vas a 2-y~old child who was badly injured. Testimony indicatesshe mras upset and iu pain when she made her slatenient. Baed onthis, CG4 cannot say tbe trial court's adnussion of the testiniony under theexcited utteImce exception mas outside the zone of reasonable disagreement.Trial court could have found that the victim's statements related toa starthg event or condition, either the event of sustaining the injuly, orthe pain slie suffered when her coat was remowd and she was under thephpicd and emotional stress of the exitenlent caused by the event orcondition.PDRS GRANTBD THIS WEEK1310-00 DONOVAN, DAVID hi. 01/10/01 A Hanis Aggravated SexualAssault (017///407)1. \Vhetl~er the Court of Appeals erred in finding that the trial court properlydenied Appellant's request for a motion for oew trial on the voluntarinessof his plea for deferred adjudication.1329-00 HROMAD&\, DARLENE,01/10/01 A Harris D\W (NP)1. Whether the Cou~l of Appeals erred in holding that Appellant's claimthat the trial court erred in denying her requested ju~y inst~uction pursuantto kt., 38.23, V.A.C.C.', on the voluntdness of tlie field sobrietytests she performed was \valved when she failed to object to this evidencewhen it was offered at trial.MARCH 2001 1 www.rco~~.cam I vole ron THE DEFENSE 135 1

1485-00 MITCHBLL, WlJLlAhi 01/10/01 S Bexar Aggravated Robbe~y(023///582)1. The Court of Appeals erred in holding that Mitchell's counsel's performancewas deficient in the absence of a record showing counsel's allegederror was not based upon a tactical decision2. The Court of Appeals erred in holding that Aiitcl~ell was prejudiced inthe absence of a record &malively sliowinn that, but for counsel's error,the outcome of tlie proceeding wo~ld have been dBerent.1573-00 VASQUEZ, EVERADO 01/17/01 S Ilarris Aggravated Robber).(NP)1. W~ether tl~e Court of Appeals erred to state that accon~plice witnesstestimony conce~ning the use of a deadly weapon must be corrobo~xtedwhen the ju~y finds the defendant guilty "as cl~arged in tlie indictment."0646-00 AiARBELM, JOSEPH, lU OlI3l/Ol S A'acogdoches Theft (NP)1. Is the refusal of the trial court and the state to agree to the defendant'soffer to stipulate to h o pior convictions, necessaty as jurisdictional elements,error where no additional prior convictions are alleged in theindictment?1442-00 ZAMORMTO, ROSANO 01/31/01 A Bexar hiisdenleanor Dm(02 1///664)1. The Court of Appeals has decided an iniportant question of law in ~OIIllictwith the decisions of the Suprenle Court of the United States, in thattlle coua held that a defendant waives his claim that he was denied aspeedy trial wliere he does not assert the claini wit11 inm~ediaoi, ;u~d thatthe defendant must show more than "some" prejudice when werting hehas been denied his right to a speedy trial.2. The COIII~ of Appeals has sanctioned a depa~hlre from the acceptedand ~ciual course of judicial proceedings by the trial court, so as to caUfor the exercise of the Court of Criminal Appeals pou r er of supe~vision, inthat the Court of Appeals mied the t~ial court's clearly erroneousapplication of the law to the facts, placing an unconstifutional degree ofburden on a defendant who anenipts to assert hat his constitutional rigl~tto a speedy trial was violated.167140 MAXWFLI., ROBERT DANIEL 01/31/01 A Harris AggmvatedRobbe~y (NP)1. Whetl~er the trial coua committed reve~siblerror by failing to pernutAppellant to inipeach a key state witness by showing 11e was selvingdeferred adjudication probation at the time of trial.S.W.2D 835 (Tex. Crim. App. 1995)12. &%ether the Eighth Court of Appeals' opinion that Appellant is notbeing subjected to double jeopardy is an~important question of state andfeded law that should be decided by the Couit of Criminal Appeals?3. Wliether the Eighth Court of Appeals' opinion that the n~istrial gmtedsue sponte by the court below was justified by manifest necessity andtherefore, a retrial is not barred by the double jeopardy provision of t11eUnited States Constih~tion conllicts with the decision of the United StatesSupren~e Court in kizona v. \Vasliingfon, 434 U.S. 497 (1978).PRIOR SENTENCE HELD RELEVANTTO SENTENCING: SUNBURYKSTm,No. 01-98-01357-CR, 11/22/00The defendair is tried seriatim for hvo robberies before standingtrial for the third. All robberies arose out of a sting of offenses wliicl~are tried consecnlively. State prevents the defense fro"; eliciting evidenceabout the sentences received in the h\.o prior cases even though the stateis pernutted to elicit details of those offenses at the punishment phase.Court of Appeals holds that the sentences received are matters "~~clcwtto sentencing" under Art. 37.07 and remands for a new punishment hearing.The defendant was originally ordered to pay $10,000 pern~ontl~ in restitution. Upon the inevihble MRP, the court finds tliat thedefendant is unable to pay the ten grwd and revokes the probation in onecase md, in the scco~~d, amends tlie conditions of probation to read "asmuch restihltion as the defendant an alTord." COA finds that the trialcourt abused its discretion in revoking probation because of defendant'sinability to pay. COA so holds despite evidence that the defendant spentsome of him money on non-essentials, sucli as a gym menibenhip, etc.Court holds that the standard is whether the defendant is unable to paythe ordered amount, not sonic lesser an~ount. As to amended conditions,cou~? hds that they are too vague to withstand scrutinySTANDING FOR DETENTION OF PASSENGER: MORPlh' K S%%,No. 04-99-00055-CR, 11/29/00While a car passenger has no stamling to cliallenge a searcli ofthe car; he does have standing to challenge any tempom~y detention madeof 11im by the police.00-1879/80 FIERRO, ABEL LUNA, 111 OlMUOl A Brewster Agg. Sm~d~lssault of a Child (NP)1. Wletlier the Eighth Court of Appeals' opinion tliat the nustrid grantedsua sponte by the court below was justified by malifest necessity and,therefore, a retrial is not bamed by double jeopardy provision of theUnited States Constitution and the Constitution of the State of Texas is inco~act with tlie opinion of the Court of Criminal Appeals in Ex ParteLittle, 887 S.W.2D 62 (Tes. CiTni. App. 1994) and Brown v. State, 907TheMentioned aboveare synopsesofopinions ofthe appealscourtstistedSignificant Decisions Report was reported byCynthia LHampton, Editor. Mike Charii0n.Assistant EditorWe inde all comments and construclke criticism from our members and VOICEoffhedelense readersPLEASE EMAlL OR FAXO' Ann Johnson -TCOlb Execlmve Director- diohnso~cdla.com. 51269-9107nrJohn Carroll- ~0l~~~ditor.jca~;ol~ntamail.com .21042941?dThe SPKs printing cost is funded byThe Judicial & Court Training Fund andadmiislered by the texas Court of Criminal Appeals

hlARCH 2001 ( W.TCDLA.WM I VOlS FOR THE DEFENSE 1371

state nexus - should slill argue that the federal government m ot prosecuteintrastate crime.11. THE STATUTE'S PLAIN LANGUAGETl~e substantive portion of the federal murder-for-l&estatute, 18 U.S.C. 5 1958(a), provides, in pertinent pan:moever travels in or canses another (including theiulended victim) to travel in interstate or foreigncommerce, or uses or causes another (includingthe intended nctim) to use the mailor any facilivin it~terstrre or fore@ commerce, with intent thata murder he committed in violation of the laws ofany State or the United States as consideration forthe receipt of, or as consideration for a promise oragreenlent to pay, anything of pecuniary value, orwho conspires to do so, shall be h~ed under thistitle or im risoned for not more than ten years, orbo th.... BThus, in v connection with a murder-for-he, the statute prohibits a pe~sonfrom: (1) traveling in interstate comnwce; (2) using the mail; or (3)using a faciltty in interstate commerce. Subsection (b)(2) dehes "facilityof interstate conlmerce" as incll~dhlg Ihe mans of lransportatio~~ andcomm~nicatiou.~~ Oddly, the plme "facility in interstate or foreigncommerce," as used in subsection (a), is not dehed in subsect~on (b),wlde the ph~ase "facility of intentate comme~re," as defined in suhsection(b) (2), is never used h~ snbsection (a).I. INTRODUCTION'Iko Texas women scor~~ed in love and a n~urder-fo~hire plotto exact revenge. Altliough it sounds like a television n~ovie of the week,that is the snbject of two recent cases kom the U.S. Court of App& forthe Fiffh Circuit analyzing the inkrstate nexus requirement of the fede~nlmnrder-fo~hire stah~te.~In tiniferlsfates u. Cisneros, the defendant hired sonleone tokill a young man xho had broken up with her daughtefi Tl~e FikhC~rcuit held that international telephone d s about the murder were sufficientto establish tl~e intentate new required for the federal mnrderfor-hirestatute4 In UnitedStatm u. rllarek, the defendant wired $500iron1 Ibuston, Texas, via Western Union to an nnde~~cover officer inHarlingen, Texas, to kill her boyiiie11d.5 The Fifth Circuit held that theintrastate use of the Western Union was sufficient to establish the rcquislteinterstate nexus under the federal nmrder-for-hire ~tatute.~ The FifthCircuit consolidated the two cases and granted en banc rehming toresolve the intra-circuit conflict?n~e question thus is whetl~er he statute requires interstate useof a facility, as Cisneros held, or whetl~er the ruere intrastate use of afacility \'il suffice, asilln~k held. On Jama~y 4, 2001, the en bane FifthCitruit held, ten to five, that the intrastate use of any facility, even a telephone,sufficiently establishes the federal murder-for-lure s$lute's interstatenexus. 8For the reasons hat follorv, defense l a n nid~ ~ clientschnrged under the statute - or any fcde~zl stahlte that requires inter-The Si~th Circuit in titilted States u. RWthers held illatbecause subsection (a) creates the substantive offense, its language controlso er the definition in subsection (b)(2).11 '?Ience, in order toestablish the court's jurisdiction uncier $ 1958, the government mustshow that the defendant used a 'facility h interstate commc~tc."'~~ TheSixth Circuit previously had exanlined the T~zvel Act, 18 U.S.C. $ 1952, ofwlvllich the murder-for-hire statute was o~iginally a subset, and deterrnh~edthat the use of the tem "instnu~~ent;llitytyinterstate conmn~crce" in theInterstate Incitement of Riot Act, 18 U.S C. $ 2101, which is sinular to theTravel Act, is diflerent from the use of the tern1 "inst~nmentdity of interstateconime~ce."~~ The Sxth Cimit concluded that the phrase "itlshumentalityin interstate conunerce" applies only to interstate acti\it~es.l*The Sixth Circuit likewise reasoned that only interstate activities will SIISfaina prosecution under $ 1958(a).I5In Cisrrems, theFitth C~rcuit similarly concluded that "In thiscontext, 'of means 'lb]elon@~g or connected to,' wl~ile 'in' means'Idlu~~iug tl~e act or process 0 ~ " Thus, ' ~ under ~ 3 1958(a), a "facilityin interstate conimerce" requires that the facllity achldy be used tn theprocess of interstate comnelce, while under subsection (b), "facility ofinterstate conunerce" asonlpasscs intrastate use of facilities connectedto interstate coliinmx, such as cars and telephones The F&h Circuitin Cisrreros held that $ 1958 requ~res tlwt the facility be used intetstate,and thus ~uereint~xstate activity will not suffice.18Further, in tinited States u. Pi~tedes,]udge Scheindtin of theSouthern Disttict of New York held that the intrastate IW of an illte~statepaging systenl was insufficient under 3 1958 because "the intemtatenehus requirement hlmS not 011 the facility's interstate capacit): but ilsactual use in the particular case."l9Nevertheless, contw-j to IVeatheis, IJ~redes, and its own

precedent ill Gisueros, the Fifth Circuit panel in illnrck strained to read"uses . . . any faciliv in inte~statc or foreign conmerce," as nsed in subsection(a), to man that the facility and not the use IIIIN be in interstateconllnerce and that because Western Union has tile capability to be ininterstate comnlerce, it is al\vays a facility "I interstate con~n~erce.~~ TheAlmek pmel essentially interpreted "facility in interstate con~n~elre" tonlm "facility of interstate con~n~erce,"~~ and held tllal the stahltereached tl~e "~trasas$te use of a\Vesten~ ~ nion.~~The en banc FiIti~ Circuit adopted tl~e~llarek paml's positionand l~eld that "5 1958's use of a 'facility in interstate comnlerce' is syo~l)lnouswith the use of an 'interstate con~nlerce facility,"' and illusintraslate use of a facilitysatisfies the requisite kte~slate nen~s.~~ ll~enbanc court found no conflict between subsections (a) and (b)(2)11ecause (b)(2) merely clarifies tl~at a facility can include a means oftranspo~~ation.~~ In andying the statute's plain meaning, the en banccourt concluded that the pl~nse "in interstate or foreign commerce"111odies "facility; \vl~icll inunediately precedes the pl~rase, nther thanthe more remote "11se."~5 However, as the dissent pointed out, then~ajoriq's rule of proximity fails because if Congress 11ad sdd, "wl~oevercauses a~lotl~er to use, in interstate or foreig~~ conlmerce, thc mail or anyfacilit):" the constn~ction wold have been $\vkward a~ld \vould I~verequired interstate use of the nlail, cor~tca~y to legislative intent. 26hloreores, not only does the majority's interpretation conflictwit11 granunar and case lay but it also conflicts with the legislatiw histo-~y of both 3 1952 and § 1958, which require that the use actuauy be inirlte~slate comnlerce.Ill. THE LEGISLATIVE HISTORYA. Section 1952 (The Tr.wel Act)Becanse the murder-fo~i~ire statnte was intended to supplementthe Tr:i\d Act, 18 U.S.C. § 1952 , tile legislative history of the Tra\pelAct is relemnt to the interpretation of § 1958.2' The Trml Act ponis11-es, inter din, anyone TVIIO uses any faciliy in interstate or foreign COIIIrnercewit11 the intent to distribute the proceeds of unla\\fd activit): corn-Init a criloe of viole~lce to fi~rll~er u~da\hl activit): or otheivise pronloteonl;~\\fi~l activity28111 1961, Congress enacted the Travel Act as part of Attorneytie~~e~:~l Robert Kennedy's progcml to combat organized crime and mckete~ring.~9h a letter to the Speaker of the House, dated April 9, 1961,the Atlort~ey Generd wrote about the need for the federal goverllnlent toprosecute crime tlnt crosses slate lines:Over the years :III e\wincre,lsing portiouof our national resources b;~s been tlircrted intoillicit cI~;tnnels. Becausc ~n~any rackets are conductedby highly organized sy~dicatcs whose infl~~cnceextends over State and Natio~lal borders, tile FederalGo\~ernn~enl sl~oulrl come to the aid of local lawenforcement :~othorities in a11 effort to slenl s11c11activilyenterprises involving ganlulmg, liquor, narcotics, orprostitl~tion activities wl~icli are offenses u~~derFederal law or the Imv of the State wllere they areconln~ined, and extortion and bribeq. * * *The effect of this legislation wodd be toimpede the clandestine now of pl.ofits from crin~inalventures and to bring about a serious disruption inthe far-Uong orgmiution and nlanagei~ent of coordinatedcriminal enterprises. it u~orrld thus be ofnmterial anssista~~ce to the States in co1116atingperrricior~s irndertrrkirrgs which cross Statelirres.30The House Report summarized the Attorney General'stestimony before Congress:He spoke of racketeers ltui~rg in oneState and cotrtrolling the rackets nrld reaping theproJ7ts 90111 those rackets located in arrotherState. The rwketeer ruorddhe 6q01rd the controlof fhepolice it1 the State of opercrlion and liuingas a respected citimr in the St&e of his abode.The iirrtersiate tentacies of this octoprrskrtorrrrr as "orgmrized crirrre" or "fbe ~pridicate"cmr o~r(y 60 cut hy nrakurg it a Pederd ofeme touse the facilities of interstate commerce iri ihecarrying o~r of these uefariorrs (rciiuities.This biU \dl mist locd law enforcementby de~qingintentate facilities to indi~idoals engngedin illegal gambling, liqoor, narcotics, or prostitutionbusiness enterprises. Testimony ymdl~ced at the11e.1rings clearly demonstlxtetl the interstate networkof crulklals eng~ged in such unlanful activities.It further demonstnled the need for tile assistanceof he Federal Go\'enlnlent in view of the factthat law enforcement mtl~oritics are limited andl~inderetl by lllc interstate nature of time activities.Your con~nliltee wislles to clearly pointout ti~athis bill, because of tl~e very nature of thetlefinitiou of tile crime, will not preenlpt the areacovered by it. Those violations of State law involringnarcotics, gambling, liqaor, and prostitution, as wellas tile crimes of extortion or brihcq wl~en theyoccur ia connection with the fo~~r categories ofcrime, \\dl be subject to State and locd prosecutionby State and local a~~thorilies. h'otl~ing in this hili isto be construed as imnlunizing any violator of SIatelaw fro111 State prosecutio~~.31Tllos, Coqress intended to conlhat organized crinle and racketceri~lgwhere the perperraton lived in one stale hut conducted illegalacti\

IIVI. RULE OF ~ ~ H WAt the very least, 3 1958 is ambiguous.bl Indeed, the factthat two different Pinh Circuit panels interpreted g 1958 differently62and that the en banc Fifth Circuit disagreed ten to five, as to § 1958'smeaning show that 8 1958 is ambignot1s.6~ If a statute is reasonablysusceptible to hvo different interpretations, one of which raises seriousconstitutional concerns, it is tlte court's duty to adopt the constructionthat will save the statute from constitutional in!i~mity~~ This ivle oflenity is com elled by the Due Process Clause of the FifthAniendmer~t!~ Thus, any ambiguity in the scope of $ 1958 must beresolved in favor of a narrow construction that tvquires interstate activityCourts should apply the rule of lenity and hold that 5 1958 appliesonly to interstate activii):b6 Consequently, the government must prove1beyond a reasonable doubt that the caller/sender and the recipient werenot in the same s1ate.~7REFERENCES1. Assistant Eedeid Public Defender, Southern District of Texas, Houston,Texxs. BA., University of Texas at Austin; J.D , University of Houston lawCenter. The author, a former briehg attorney to the Honorxble FmnkMaloney, Judge, Texas Court of Ctlmi~ial Appeals, now specializes in fedenlc~imi!id app&.2. United States v. Cisneros, 194 E3d 626 (5th Cir. 19991, ~(~mrerl, 203E3d 333 (5th Cir.), reb'gen bancgranted, 206 E3d 449 (5th Cic 2000);United States v. bhrek, 198 E3d 532 (5th Cir. 19991, reb'g en bmcgraftfed, 206 E3d 449 (5th Cir. 2000).3. Cismms, 203 E3d at 337.4. Id at 343-45.5.11Iawk, 198 E3d at 533.6. Id at 537.7. United States v. Marek, 206 E3d 449 (5th Cir. 2000). On May 22,2000, the author argued Ms. Marek's case before the US. Court ofAppeals for the Fifth Circuit sitting en banc.8. UnitedStatesx Marek, No. 98-40568, 2001 WL 10561 (Rh Cir. Jan. 4,2001) (en banc).9. 18 U.S.C. g 1958(a) (emphasis added).10. 18 U.S.C. 6 195Nb) (2) (emulmis added).11. United ~taies v. Weathers, 16j E3d 336,342 (6th Cir.), cer~ denied,120 S. Ct. 101 (1999).12. Id13. Id at 341 (citing United Stales v. Bany, 888 EZd 1092, 1095 (6th a.14. Weathers, 169 E3d at 341;Barry, 888 E2d at 1095.15. lYenthers, 169 E3d at 341-42.16. Cisi~eiw, 203 K3d at 340(citing WP~R's11 Nw COLLEGED ~ m 557, w 759 (HoughtonMBhl Co. 1995)); see UnitedStates v. Miles, 122 E3d 235,246 (5th Cir, 1997) (DeMoss,J., specially concl~rring) (distinguishingbetween "of' and "in"interstate commerce), cert.denied, 523 U.S. 1011 (1998).17. Cisnems, 203 F.3d at 333.18. Id at 33943.19 United States v. Paredes,950 E Supp. 584,587 (S.D.N.Y.1996).20. illarek, 198 R3d at 535.21. Id.22. Id at 537.23. Alarek, 2001 WI. 10561, at*l.24. Id at *7. The dissent similarlyfound that subsections (a)and (b1(2) do not conflict. Idat *11 (Jolly, Jones, Smith,Barksdale, and Dehfoss,JJ., dissenting).25. ~TIarek, 2001 WL 10561, atY.26. fd at *ll (Jolly, Jones, Sniitii, Bathdale, and DeMoss, JJ., dissenting);see infiff tex! accompanying notes 47-52.27. United Statesv. Edelman, 873 E2d 791, 794 (5th Cir. 1989).28. I8 U.S.C. 3 1952.29. Bnq: 888 E2d at 1092; H.R. Rep. No. 87-966 (1961), ~epifnted in1961 U.S.C C.A.N 2664,2665.30. H.R. Rep. No. 87-966 (196l), reprinled in 1961 U3.C CAN. 2664,2666 (emphasis added).31. 1I.R. Rep. No. 87-966 (1961), reprinfedin 1961 U.S.C.CA.N. 2664,2665 (emphasis added).32. H.R Rep. No. 87-966 (19611, reprinfedifi 1961 U.S.C.C.A.N. 2664,2666.

33. S. Rep. No. 98-225, at 306 (19831, reprinted in 1984 U.S.C.C.A.N.3182,3485.34. Krantz v. United States, 1999 WL 557524, at '3 n.1 (E.D.N.Y. July 27,19991, appenld~smissedas moot, 224 E3d 125 (2d Cir. 2000).35. S. Rep. No. 98-225, at 304-05 (19831, reprinted in 1984U.S.C.C.AN. 3182, 3484. Certainly, the State of Texas could have prosecutedMs. Marek for attempted capital murder by means of solicitation.See kt. P w CODE Am. 5 7.02(a) (2) (1997) (a person is criminallyresponsible for a crime if he acts with the intent to promote the crime andhe solicits or attempts to aid another to commit the offense); id 519.03(a) (3) (morde~for-hire is capital murder).36. S. Rep. No. 98-225, at 305 (19831, reprinted in 1984 U.S.C.C.A.N.3182.3484 (emphasis added).37. S. Rep. No. 98-225, at 306 (19831, reprinted in 1984 U.S.C.C.A.N.3182,3485.38.Marek, 2001 WL 10561, at *7.39. Id40. Id at *13 (Jolly, Jones, Smith, Barksdale, and DeMoss, JJ., dissenting).41. S. Rep. No. 98-225, at 306 (19831, %printed in 1984 U.S.C.C.A.N.3182, 3485; see Marek, 2001 WL 10561, at *13 (Jolly, Jones, Smith,Barksdale, and DeMoss, JJ., dissenting).42.Marek, 2001 10561, at *13 (Jollx Jones, Smith, Barksdale, andDeMoss, JJ., dissenting); see United States v. De Sapio, 299 E Supp. 436,448 (S.D.N.Y. 1969) (reviewing legislative llistory and concluding that $1952 requires interstate telephone calls because "the words 'uses anyfacility in interstate or foreign commerce' were intended to embrace telephonecalls made only in interstate or foreign commerce"); see alsoUnited States v. Stevens, 842 E Supp. 96, 98 (S.D.N.Y. 1994) (distinguishingthe use of an interstate pager system from the use of a regulartelephone, which would require the caller and recipient to be in differentstates); I$ United States v. Izydore, 167 E3d 213,219-20 (5th Cir. 1999)(intrastate telephone calls were insuf6cient for fedeinl jurisdiction underthe Wefraud statute, 18 U.S.C. 5 1343, which like 8 1958(a), requiresthat the conununication be in interstate or foreign commerce).43. Chneros, 203 E3d at 339 n.2, 342.44. Id at342.45. Mnrek, 198 E3d at 537-38.46. Afamk, 2001 \VL 10561, at *5.47. 18 U.S.C. $ 1958 ("Wlioever. .. uses the mail or any facility in interstateor foreigi co~mnerce ..."); Cisnems, 203 E3d at 342 (noting that5 1958 "plalnly and unmistakenly" treats the niail differently from allother facilities); Krnntz, 1999 WL 557524, at *3 (because tl~e interstateor foreign conunerce requirement modiGes only the facility and not tliemail, interstate mailing is not required).48. SeedIarek, 2001 WL 10561, at * 11 (Jolly, Jones, Smith, Barksdale,aid DeMoss,JJ., dissenting); see also wpm text accompanyingnote 26.49; See United States 4 Heacock, 31 E3d 249 (5th Cir. 1994); UnitedStates v. Riccardelli, 794 E2d 829 (2d Ck 1986). Hencock andRlcurrdlli interpreted a foroier version of 5 1958, which read,'1Vhoever. . . uses any facility in interstate or foreign commerce, includingthe mail, . . . ." As the Fifth Circuit in Cisneros noted, the reasoningin those cases is limited to the mail, especially dter the current version of5 1958. Cisneros, 203 E3d at 342; see also dlnrek, 2001 WL 10561, at'13 (Jolly, Jones, Smith, Barksdale, and DeMoss,JJ., dissenting).50. Riccnrdelli, 794 E2d at 831.51. U.S. Cosx art. I, 5 8, cl. 7.52. Cisneros, 203 E3d at 341; RiC~rdeIli, 794 E3d at 83031; Krnnfz,1999 WL 557524, at *6.53. See Cisneros, 203 E3d at 342; see nlso Pareda, 950 E Supp. at 588(noting that the "spread of innovative interstate comniunications technology,"combined with a broad interpretation of $1958 "sweeps within tlieprovince of federal jurisdiction crimes previously considered to beentirely local in nature.").54. See United States v. Morrison, 120 S. Ct. 1740, 1754 (2000); UnitedStates v, Lopez, 514 U.S. 549,561 n.3 (1995); NewYo1.k~. United States,505 U.S. 144, 156 (1992).55. Pare&, 950 E Supp. at 585.56. Morrison, 120 S. Ct. at 1751.57. Id. at 1754.58. See Morrison, 120 S. Ct. at 1754; Lopez, 551 US. at 559-68;Pareda, 950 P. Supp. at 588-90 (apply@ Lopez's reasoning to $ 1958).59. See, e.g., United States v. Baker, 82 E2d 273,275 (8th Cir.) (holdingthat intrastate use of an interstate ATM network was sufficient under §19581, cert. denied, 519 U.S. 1020 (1996).60. hfanek, 2001 WL 10561, at *5-*6, "9.61. See Cisnems, 203 E3d at 339 n.2 (noting that Congress luistakenlyinterchanged the terms "in" and "of," but that it is not obvious whichterm reflects congressionalintent); Mmk, 198 E3d at 538 (Jolly, J., dissenthg)(noting that the statute's plain nieaning is unclear and tlle legislativehistory suggests a narrow interpretation); Weafhers, 169 E3d at342-43 (noting that congressional intent is "far from clear"); Paredes,950 E Supp. at 587 ("The phrase 'use . . . any facility in interstate or foreigncommerce' is inherently anibiguous. As discussed, there are at leasttwo grammatically cognizable inteqreiations - one stressing 'use' andthe other stressing 'facility."').62. Compare Cisneros, 203 P.3d at 340-43 (holding Uiat 5 1958 requiresinterstate use) with Mnrek, 198 E3d at 534-38 (declining to followCisneros and holding that intrastate use is sufficient).63. See THB RiWWhf How DICIION~RY OF TM ENGLISH JAGUAGE 64 (2d ed.1987) (unabridged) (defining"ambiguous" as "open to or having severalpossible meanings or interpretations"); see nlso Deal v. United States,508 U.S. 129, 142 (1993) (Stevens, J., dissenting) (noting that a statuteis ambiguous unless "its text admits of only one reading").64. Edward J. DeBartolo Carp. v. Florida Gulf Coast Bldg. & Constr. TradesCouncil, 485 U.S. 568, 575 (1988); Unitedstates exrel. Attorney Generalv. Delaware & Hudson Co., 213 U.S. 366,408 (1909).65. See Durn v. United States, 442 U.S. 100, 112 (1979).66. United States v. Gmnderson, 511 U.S. 39,54 (1994); see also Iadnerv. United States, 358 U.S. 169, 177-78 (1958).67. Cisneros, 203 E3d at 343 (holding that 5 1958's interstate nexusrequirerent is not only jurisdictional, but is also an element of tlieoffense).

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