T - Voice For The Defense Online

I~FrornAM OverFiftll Circuit NewsThe expansion of federal firarms law took :a1 interesting turn in the Fifth Circuit in UnifedSfnfes u.IVhite, iNo. 00-40393 (5"' Cir., July 13, 2001). The issue on appeal, raised byfor~lier TCDW PresidentGerty Goldstein and TCDW Secreta~y Qntl~ia Orr, was \\.hctller State convictio~ls for reckless co~lduct fork~~owu~gly pointing a firearm at and in the direction of one's spouse or terroristic tl~rats by istcntionallymd knowingly threateni~g to kill one's spouse with intent to place one's spouse ie fear of immineotserious bodily injury constituted a crime of domestic ~iolence as required by the federal statute prollibitingthe possession of firearm by one con\ictetl of a misdeme;o~or invol\u~g :I crime of doluestic violence.18 U.S.C. 5 922(g).The underlying ~nisdemanor otfe~~ses were the bye you ~lonlmdly see ill a County Coun f,ln~ily \iolenceprosecution. In one case, i)L: \VMe had bee11 comicted of reckless cor~rl~lct in violalio~~ of 5 22,05(a) ofthe Texas Penal Code for "recklessly engag[iog] i~ COII~IICI that placed [his spouse1 in itmi~le~~t dat~ger ofserious bodily inju~y by tllen and there knowingly pou~ti~~g afir~rm at and in the direction of [his spouse]."In the second case, hews convicted of terroristic tl~r~tinvioltio~~ of 5 22.07 of the Texa Pen;d Code for"iotentiondly ;uld knowingly tbreaten[ing] to co~lu~iit an offe~~se hvoI\ing violence to [his spouse], aame-Iy, tbreate~~ed to kill [his spouse], wit11 intent to place [her] in fwr of in~mi~~e~~t se~ious bodily inju~y"The Eiftl~ Circ~~it panel of Judges Ganvood and Barksdale, and Judge HaU of the Ninth Circuit, sittingby desigoation, recognized the section 92'2(g)(9), "by its terlns, cat) be violated only by one 'TVIIO hasbeen co~wicted in ally court of a ~~us~le~~iea~~or crime of do~l~estic violence.' Section 92l(a)('33)(.A)defiles 'nustleme:~nor crime of domestic violence' so Illat no offe~lse is inclutled witl~i tht de011itio11uoless it ... 'Ilas, as an element, the use or attempted use of physical force, or threatened use of a deadlyweapon,' agtinst the victio~." After tl~orougl~ly reviewing the statutoly elements of reckless conduct ;o~dterroristic threat from t11e pala1 code, the opinion concl~~detl that ~~eitller offense met tl~e definitio~~ ofcrime of domestic violence.Despite tl~e k t that the issue wns not i~ised at trial, the paoel revelxed tl~e co~~viction l~olding t11:d"jurisdictional defects sncll as an indictment's failure to rllarge an oflense" may be ~ised at any time.Because the imdct~~~el~t on its face reflects as a nlatter of la\\# hat neither of the only hvopredicate oIIenses alleged in the court of co~iviction for viokniog section 922(g)(9) wns a'crime of do~~lestic violence' ns reqoired by that section and sectiou 921(a)(33)(1\), \\l~ite'sconviction is reversed adthe cause re~~~anded for proceedings collsistent Pere\\itl~.Also, significantly, the Fifth Circuit held that the Defendant's appeal wiver co~~tainedlus plea bargillagl~ment did not bar I~im from cl~alle~lging the sufiicie~~cy of the i~ldictlnento allege an offense onappeal. "The gowrnacnt cites no authorit): and we are xv:lre of none, that holds Illat :I defendant can\wive his substantive right to be free of prosecution under an i~~dictment tl~at fails to cllarge an offense."'ARA Tinkering with Ethics RnlesAs the Voice goes to press, tl~e Ao~erican llar Association is consideri~~g a cllange h~ etl~ics rules for1:ln)ers relating to the attorney client privilege. The ~ III~II~III~II~ would expand exceptions to the confidentialityrules wl~icl~ cwrently allow a lanyer to reveal information to prevent a clie~~t from co~luuittioga crime tl~at is likely to result in inlmineol death or serious bodily harm Accortlitlg to a report in tl~ei\'umI'ork Tirires, the proposed chuge would permit more disclosure, allowing Ia\qw.j to report idor~natioato prevent "ressonebly ccrtai~~" death or sobstantial inju~): Tl~ere would be no requirement tl~athe 11armbe il~~lui~~ent or the result of :I crime by the client. \Vl~ilc the ABI\ etl~ics guidehlcs are 11ot binding on theskrtes, they are inflnentiel. \\hetl~er any cllar~ges I)y the ABA may l~are :ra effect OII the Texas "crime-fraudexception" to the lawye~client privilege is doubtful, but a trend a\vay from confidentialit). scel~~s to strikeat tlle nature of our profession.Garbage Offe~iseshly local paper recently featured a stoq about a lwi in :Lnearby coltnty being prosecuted for theft ofsemice for tl~rowiog a few lboses of flash into a dmpster Illat did not beloq to 11in1. The fimt trial errdednfrer the j111-j could not rcacl~ a verdict. The lone holdout for acquittal reportedly slated that the c11;u.ge IKISasinioe. July ~~~~IliEcatio~r is :dive. Relieve it or not, hot11 sides are preparing for a September retrial.COMMENTSEPTEMBER 2001 \Nww.TCDLA.COM VOICE FOR THE DEFENSE 1 I