CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

September 18, 2011

IMPACT OF CRIME VICTIMS RESTITUTION ACTS

Filed under: Child Abuse Crimes Lawyer — Tags: , , , — johntfloyd @ 3:07 pm

Fifth Circuit’s Decision on Restitution in Possession of Child Pornography Cases Creates Sentencing Nightmare

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In theory the criminal justice system has a fundamental obligation to provide restitution to crime victims. In practice this obligation has created a contentious and ongoing legal debate in federal appellate courts as to how this obligation must be met. Two recent decisions emanating out of the Fifth and Second federal circuits underscore the difficulties faced in deciding when and how restitution is appropriate, the level of harm caused to victims, and the statutory standards by which restitution can be awarded. Last year we dealt with the issue of restitution in child pornography cases which, we believe, has run constitutionally amuck (here). We feel it’s time to examine both the legislative history, and the statutory application, of crime victims’ restitution acts, both of which were discussed at some length by the Second Circuit on August 18, 2011 in United States v. Marino.

Matthew Marino was convicted of misprision of a felony, a violation of 18 U.S.C. § 4, in connection with a Ponzi scheme; and following a guilty plea, New York’s Southern District U.S. District Court Judge Stephen C. Robinson ordered Marino to pay $60 million to those defrauded in the scheme. The restitution order was imposed pursuant to the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, which was enacted in 1996 as part of the Anti-Terrorism and Effective Death Penalty (“AEDPA”). In upholding extraordinary restitution order, the Second Circuit informed us that the first crime victims restitution law was passed by Congress in 1982 under the title of Victim Witness Protection Act (“VWPA”), 18 U.S.C. § 3663(a)(2), which was a general, discretionary restitution statute revised in 1986 and which was later “partially superseded” by MVRA. The VWPA was overhauled in 1990 as part of the Crime Control Act of 1990, including authorizing federal courts, when sentencing in certain crimes, to order “that the defendant make restitution to any victims of such offense,’ which was pointed out by the U.S. Supreme Court in Hughey v. United Statesshortly before the 1990 VWPA amendment.

In 2009 the Second Circuit, in United States v. Battista, said “the goal of restitution in the criminal context, is ‘to restore a victim, to the extent money can do so, to the position he occupied before sustaining injury.’” MVRA defines a “victim” as broadly as any of the restitution statutes: It is a “person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered, including in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” VWPA had essentially adopted the same “victim” definition in 1990.

Significantly, the Second Circuit in Marino pointed out that the current version of MVRA and the original version of VWPA included an important provision that limited a federal court’s authority to order restitution where such an order “would unduly complicate or prolong the sentencing process.” The appeals court pointed to a Senate Report that explained “the Committee added this provision to prevent sentencing hearings from becoming prolonged and complicated trials on the question of damages owed the victim.”

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June 12, 2010

TEXAS MAKING FUTURE CRIMINALS

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 12:05 pm

Children in Foster Care Residential Treatment Centers at High Risk of Neglect, Mistreatment and Abuse

By: By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In a 2002 article for Child Trends, Dr. Richard Werthheimer, Ph.d, said there were more than 556,000 children in foster care in this country—many of whom suffered from serious emotional, behavioral, developmental, and other health problems. That figure represented an increase from 302,000 in 1980. While black children at the time accounted for 15 percent of the nation’s children, they represented 30 percent of those entering foster care and 42 percent of those living in foster care. Hispanic children, who represented 16 of the nation’s children, represented just 18 percent entering and living in foster care.

By 2006, as some states began to reform their foster care systems, the number of children in foster care decreased to 510,000, but the prognosis for future success of those children was as bleak as it was in 2002 – 60 percent of them between ages two months and two years were at still at a high risk for developmental delay and neurological impairment. The number of those “aging out” of foster care was increasing and studies were consistently showing that these “aged out” children had serious adjustment problems transitioning to adulthood: 38 percent had emotional problems, 50 percent used drugs, 48 percent did not have a high school education, and 25 percent had prior involvement with legal system. They were the most likely candidates for homelessness, unemployment, and incarceration.

To combat this persistent trend, states like New York, California, Florida, Georgia, Illinois, New Jersey, and Ohio began to make concerted efforts to reform their foster care systems, to aggressively push for adoption over institutionalization—and with significant, albeit surprising results. Associated Press reported recently that the number of children in foster care through 2008 had declined to 463,000, thanks in large part to the reforms implemented by these seven states. That represented an 11 percent decrease in the foster care population since 2002. Of these states implementing reforms, Florida led the way by reducing its foster care population from 29,300 in 2006 to 18,700 as of June 2010.  AP said Florida accomplished this by “obtaining a statewide waiver from federal funding rules. This allows federal foster care money to be used for a variety of child welfare initiatives rather than being limited to out-of-home care – enabling the state to support troubled families with economic aid, parenting classes and substance abuse so a child doesn’t need to be removed.”

Texas, along with Arizona, Nevada, and Indiana, chose not join the reform trends between 2002 and 2008, although Texas did make some strides in reducing its foster care population. As of 2005, Texas had 32,474 children in foster care, by 2008 the number had minimally decreased only to 31,058, but by 2009 the number had decreased significantly to 27,422. As impressive as the 2009 numbers may appear at first glance, Texas nonetheless saw a 45 percent increase in its foster care population since 2001. Worst yet, as of September 2006, the state had identified 3,409 of its foster care children as having “special needs,” second only to California. And all these figures must be measured against the disturbing fact that in 2009 Texas saw 280 of its children die from child abuse and neglect—a shocking 30 percent increase over the previous year.

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February 24, 2010

A TIP OF THE HAT FOR A JOB WELL DONE

Filed under: Homicide Crimes Lawyer — Tags: , , , , — johntfloyd @ 1:18 pm

Court Recommends New Trial for Man Sentenced to Life in Prison for Capital Murder After Finding State’s Expert Testimony Incompetent

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have blogged rather extensively about the “convict at any costs” agenda which has ruled the Harris County District Attorney’s Office for the past three decades. “Convict at any costs” means the frequent use of fabricated forensic evidence, knowingly allowing perjured testimony into a criminal trial, withholding exculpatory evidence from defendants (particularly those known to be innocent), and injecting race in its death penalty decision-making.

These experiences with the Harris County District Attorney’s Office do not give rise to much hope that a District Attorney could be an example of courage. But that is precisely what we found in the recent actions of former Montgomery County District Attorney Michael McDougal, who lost his bid for re-election to Brett Ligon. Nearly 12 years ago McDougal’s office prosecuted Neil Hampton Robbins for capital murder in connection with the death of Robbins’ former girlfriend’s 17-month-old daughter, Tristen Rivet. Robbins was convicted and sentenced to life imprisonment for the toddler’s death.

Robbins’ conviction was based in large part of the testimony then Harris County Medical Examiner, Dr. Patricia Moore. We have also blogged in the past about Dr. Moore’s history of providing false or discredited testimony in child death cases. http://www.johntfloyd.com/comments/september09/17.htm On January 22, 2010, the proverbial chickens came home to roost in the Neil Robbins case. Montgomery County District Court Judge K. Michael Mayes ruled that Dr. Moore had given inept testimony during Robbins’ May 1998 murder trial. Judge Mayes’ concluded the former medical examiner was too incompetent “to offer objective and pathologically sound opinions on the cause and manner of [the] death [of Tristen Rivet].”

In May of 2007 Dr. Moore tried to clean up the testimony she had given in the Robbins case by reviewing her findings that Tristen Rivet’s death was a homicide. Based on unidentified information she said she had not reviewed in her original examination of Rivet’s body (after which she found the toddler’s death was a homicide caused by a compressed skull), Dr. Moore changed her “cause of death” finding from homicide to “undetermined.”

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December 19, 2009

THE REAL DANGER OF EXTRANEOUS OFFENSE EVIDENCE

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 9:09 am

Man Convicted on 2 Counts Indecency with a Child Found Actually Innocent After Nearly Two Decades in Prison: Extraneous Evidence False, Expert Testimony Wrong.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written on numerous occasions about the dangers of “extraneous offense evidence” when allowed into evidence in a criminal trial. What is extraneous offense evidence?

Extraneous evidence is evidence of another crime, wrong or bad act that is not relevant to proving the specific allegation made in the charging instrument, information or indictment.  For example, a prior unrelated DWI conviction would be an extraneous crime in an arson case.  It would generally be inadmissible in the guilt/innocence stage of a criminal case because it is irrelevant to the arson charge and has no bearing on any fact that is of consequence in that case.

Evidence of other crimes, wrongs or acts that are extraneous to the underlying charge are specifically inadmissible to prove the character of a person to show that person acted in conformity therewith.  There are exceptions however when it can be shown that the evidence is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Texas Rules of Evidence 404(b).

If a court finds this evidence is admissible for one of the listed exceptions, and after proper defense objection, the judge must conduct a balancing test under which the court weighs the probative value (its relevance to some issue such as motive, intent, opportunity, plan etc.) against the risk of unfair prejudice, confusion of the issues or misleading the jury caused by the evidence.  Texas Rules of Evidence 403. (more…)

September 23, 2009

COURT TAKES HARDLINE STAND IN CHILD EXPLOITATION CASE

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 9:53 am

Video Taped Consensual Sex with Minor Gets Federal Time

By:  Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The federal statute that governs the production of child pornography provides, in part, that “any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e) . . . if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means . . . .” 1/

Most people think of the production of child pornography as child molesters collecting large quantities of the material for their own perverse use or as “smut peddlers” producing the material for profit on the black market. But the statute has the ability to reach into an individual’s bedroom and ensnare him in a web of serious legal consequences if he has consensual sex with a minor and records the event on a video camera.

That is what happened to 28-year-old Rubio Gadea Pliego in September 2006 when he invited four young males, including a 14-year-old, to his Minneapolis apartment for a party. 2/ During the course of the party, Pleigo performed consensual, although illegal, oral sex on the 14-year-old minor. Two days later Pliego called the minor and invited him, as well as the other young men, back over to his apartment for yet another party. This time, however, Pliego had secretly set up a video camera in his bedroom to record some of the party’s activities.

The camera recorded the three of the young men, including the minor, entering Pliego’s bedroom where they voluntarily watched porno movies. At some point the other two young men left the room leaving the minor alone with Pliego in the bedroom. The hidden camera then recorded the two engaged in a series of consensual sexual activities. (more…)

March 25, 2009

FLDS REVISITED: ONE YEAR LATER

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 11:56 pm

Aftermath of the Texas CPS Raid

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

In the fall of 2003 members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) arrived in Eldorado, Texas. They purchased a 1700-acre ranch four miles outside of town. They called it the “Yearn for Zion Ranch” (“YFZ”). More members arrived. They constructed a mammoth temple and created their own community. They lived in peace.

While rumors circulated about in nearby Eldorado that the FLDS was a “polygamist cult” with older men taking multiple teenage girls as wives, there was no evidence of any criminal wrongdoing at the ranch. That is, until March 29, 2008 when a deranged African-American woman pretended to be a 16-year-old former FLDS resident twice impregnated by an older man and called a local domestic violence hotline saying she had been sexually and physically abused at the YFZ ranch. Women at the crisis center took this egregious false report to law enforcement, including the Texas Rangers, and the fires of one of the largest and most costly religious witch-hunts in Texas history were lit. There was no controlling the massive law enforcement and child protective services stampede that ensued.

Five days after the Rosita Swinton false report to the domestic violence hotline, the Texas Rangers and local law enforcement agencies, supported by Texas Child Protective Services (“CPS”), launched a massive, military-style raid on the YFZ compound. They threatened and generally terrorized the approximately 700 people living at the ranch, including more than 400 children. They conducted searches of all the buildings on the compound, including the temple. They seized documents and arrested people—all without any reasonable probable cause.

But worst of all, CPS seized and removed 439 FLDS children from the lawful custody of their parents. CPS had no legitimate cause, and certainly no legal authority, to sever the cherished child-parent relationship. While a local judge, apparently influenced by local politics and a mindset similar to CPS workers, held that the removal of the children was legal, she was quickly reversed by a state appeals court that pointed out just how flagrantly she had violated Texas family law. (more…)

March 22, 2009

THE RACHELL REPORT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 1:09 pm

Harris County District Attorney’s Office Discloses “Cascading, System-Wide Breakdown” Led to Wrongful Conviction and 6 Years Imprisonment of Innocent Man

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

On December 14, 2008, we posted a blog titled The Conflicting Faces of Crime. One of those faces involved the wrongful conviction of Ricardo Rachell in 2003 for the aggravated sexual assault of an eight year old boy. Rachell was released from custody in December 2008 after he was exonerated by DNA evidence. The Harris County District Attorney’s Office and the Houston Police Department undertook a joint investigation to determine what went wrong in the Rachell case. On March 12, 2009, the two law enforcement agencies released the “Rachell Report” (“report”) which concluded that Rachell’s wrongful conviction was the result of a “cascading, system-wide breakdown.”

The “breakdown” in the Rachell case actually began outside the system. The report states that on Sunday, October 20, 2002, the eight year old boy “was observed running down Griggs Road, waving his hands in the air and crying.” An elderly man went to the child’s aid by taking him to Wyatt’s Cafeteria. Two women then took the boy home. The child did not convey to any of these people that he had been sexually assaulted. “He just stated that a man had a knife and was trying to kill him,” the report said. He did not provide a description of the attacker to these witnesses either.

Once home, patrol officers from the police department were summoned. The boy told these officers that a man had tried to kill him. The report does not indicate if the boy told these patrol officers the man had either tried or had actually sexually assaulted him. The report only stated that:

“The details he gave officers that night was that he was offered ten dollars to pick up trash and the man took him on the man’s bicycle. The location where he was abducted was the 3700 block of Southlawn. Those first officers did speak with the Complainant’s six year old friend who was with him just before the suspect took Complainant on his bike. The six year old also conveyed that the Complainant was offered ten dollars to pick up trash and was on a bicycle. The only description of the suspect in the offense report is that he was an unknown black male, age 30.” (more…)

February 14, 2009

OBJECTIONS, BOLSTERING, AND APPELLATE REVIEW

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 6:33 pm

Objections to Bolstering Testimony Should Communicate Evidentiary Basis

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The Texas Rules of Evidence, Article 103, requires that a timely objection be based on a specific ground in order to preserve for appellate review an alleged trial error concerning the admissibility of evidence.

An en banc Texas Court of Criminal Appeals seventeen years ago held that “… all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.” See: Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim. App. 1992).

The Court of Criminal Appeals recently reaffirmed the Lankston principle that objections to the admissibility of evidence must be both timely and specific to preserve an issue for appellate review. See: Rivas v. State, 2009 Tex. Crim. App. LEXIS 98 (Jan. 28, 2009). The Rivas court rejuvenated the language of Lankston to set the stage for its ultimate ruling, saying:

“Our system of justice is characteristically adversarial. One consequence is that many substantive and procedural features, especially most evidentiary rules, are really optional with the parties. Although we may speak of evidence as inadmissible, it is more precise, if not more correct, to say that the rules make such evidence objectionable. Indeed, this is just another way of calling attention to the fact that no issue concerning the admissibility of evidence ever arises unless one of the parties objects to it.

”It follows that the trial judge’s role in the admission and exclusion of evidence is generally not called into play unless a dispute develops between the parties concerning the proper application of an evidentiary rule. And because, absent any such dispute, our system generally expects him not to interfere with the presentation of evidence, it likewise does not fault him for refusing to interfere when a party fails to make the basis for his objection known. Beyond this, there are no technical considerations or form of words to be used. Straightforward communication in plain English will always suffice.” Id., at LEXIS 1-2. (more…)

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