tag:blogger.com,1999:blog-75397412008-06-30T16:02:47.431-07:00Dallas Federal Criminal Defense Lawyer | David FinnDallas Federal Criminal Defense Attorney - David Finnhttp://www.blogger.com/profile/01206855728721121354noreply@blogger.comBlogger164125tag:blogger.com,1999:blog-7539741.post-33799220457247345522008-06-30T15:47:00.000-07:002008-06-30T16:02:47.486-07:00Scrutiny Increased on Payments to Foreign OfficialsAs a result of Watergate, Congress enacted the Foreign Corrupt Practices Act (FCPA)many years ago.<br /><br />Lately, due in part to increasing globalization, the S.E.C. and the Justice Department have ramped up FCPA investigations and prosecutions against U.S. and foreign companies and individuals.<br /><br />FCPA is made up of two parts, an anti-bribery provision and an accounting provision. <br /><br />The anti-bribery provision prohibits the offer, authorization, promise or payment of anything of value to a foreign official, political party, official, or candidate for public office in order to obtain or retain business. It applies to issuers, domestic concerns, or persons acting within the U.S.<br /><br />The accounting provision includes both a books and records provision and an internal control provision, and only applies to companies issuing securities registered on U.S. stock exchanges. <br /><br />The FCPA specifically excludes "grease payments"- payments that expedite or secure the performance of routine governmental action or merely move a particular matter toward an eventual act or decision. These types of nondiscretionary payments could include payments made to obtain permits, licenses or other official documents, and to receive services such as mail, telephone, water, power, etc. <br /><br />The trend over the past few years clearly indicates that the DOJ/SEC focus in the area has intensified. And the fines are increasingly steep, and can include disgorgement. As a result, more and more companies appear to be self-reporting violations before the feds come knocking at their doors.<br /><br />When in doubt, seek out an attorney who has a working knowledge of the FCPA.<br /><br /><a href="http://www.dallascriminallawyer.com"target="_">David Finn</a>Dallas Federal Criminal Defense Attorney - David Finnhttp://www.blogger.com/profile/01206855728721121354noreply@blogger.comtag:blogger.com,1999:blog-7539741.post-83428377960495429862008-05-22T13:16:00.000-07:002008-05-22T13:56:42.536-07:00Texas FLDS Case<strong>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN<br />NO. 03-08-00235-CV<br />In re Sara Steed, et al.</strong><br /><br /><strong>ORIGINAL PROCEEDING FROM SCHLEICHER COUNTY</strong><br />M E M O R A N D U M O P I N I O N<br />PER CURIAM<br /><br />This original mandamus proceeding involves the temporary custody of a number of<br />children who were removed from their homes on an emergency basis from the Yearning For Zion ranch outside of Eldorado, Texas.1 The ranch is associated with the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), and a number of families live there. Relators are thirty-eight women who were living at the ranch and had children taken into custody on an emergency basis by the Texas Department of Family and Protective Services based on allegations by the Department that<br />there was immediate danger to the physical health or safety of the children.<br /><br />Relators seek a writ of mandamus requiring the district court to vacate its temporary<br />orders in which it named the Department the temporary sole managing conservator of their children. Because temporary orders in a suit affecting a parent-child relationship are not subject to interlocutory appeal under the family code, mandamus review is appropriate. Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991); In re Vernor, 94 S.W.3d 201, 210 (Tex. App.—Austin 2002,orig. proceeding).<br /><br />Section 262.201 provides, in relevant part, as follows:<br />(a) Unless the child has already been returned to the parent, managing conservator,<br />possessory conservator, guardian, caretaker, or custodian entitled to possession and<br />the temporary order, if any, has been dissolved, a full adversary hearing shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity. <br /><br />Relators complain that the Department failed to meet its burden under section 262.201<br />of the Texas Family Code to demonstrate (1) that there was a danger to the physical health or safety of their children, (2) that there was an urgent need for protection of the children that required the immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children’s removal from their parents. Tex. Fam. Code Ann.<br />§ 262.201 (West Supp. 2007). Without such proof, Relators argue, the district court was required to return the children to their parents and abused its discretion by failing to do so.<br /><br />Removing children from their homes and parents on an emergency basis before fully<br />litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved. <br /><br />However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. Section 262.201 further requires the Department, when it has taken children into custody (b) At the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian,caretaker, or custodian entitled to possession unless the court finds sufficient<br />evidence to satisfy a person of ordinary prudence and caution that:<br /><br />(1) there was a danger to the physical health or safety of the child<br />which was caused by an act or failure to act of the person entitled to<br />possession and for the child to remain in the home is contrary to the<br />welfare of the child;<br /><br />(2) the urgent need for protection required the immediate removal of<br />the child and reasonable efforts, consistent with the circumstances<br />and providing for the safety of the child, were made to eliminate or<br />prevent the child’s removal; and<br /><br />(3) reasonable efforts have been made to enable the child to return<br />home, but there is a substantial risk of a continuing danger if the child<br />is returned home.<br />. . . .<br />In determining whether there is a continuing danger to the physical health or<br />safety of the child, the court may consider whether the household to which the child<br />would be returned includes a person who:<br /><br />(1) has abused or neglected another child in a manner that caused<br />serious injury to or the death of the other child; or<br /><br />(2) has sexually abused another child.<br />Tex. Fam. Code Ann. § 262.201 (West Supp. 2007).<br /><br /><br />In this case, the Department relied on the following evidence with respect to<br />the children taken into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201:<br /><br />• Interviews with investigators revealed a pattern of girls reporting that “there<br />was no age too young for girls to be married";<br />• Twenty females living at the ranch had become pregnant between the ages of<br />thirteen and seventeen;<br />• Five of the twenty females identified as having become pregnant between the<br />ages of thirteen and seventeen are alleged to be minors, the other fifteen are<br />now adults;<br />• Of the five minors who became pregnant, four are seventeen and one is<br />sixteen, and all five are alleged to have become pregnant at the age of fifteen<br />or sixteen;<br />• The Department’s lead investigator was of the opinion that due to the<br />“pervasive belief system” of the FLDS, the male children are groomed to be<br />perpetrators of sexual abuse and the girls are raised to be victims of sexual<br />abuse;<br />• All 468 children were removed from the ranch under the theory that the<br />ranch community was “essentially one household comprised of extended<br />family subgroups” with a single, common belief system and there was reason<br />to believe that a child had been sexually abused in the ranch “household”; <br />• Department witnesses expressed the opinion that there is a “pervasive belief<br />system” among the residents of the ranch that it is acceptable for girls to<br />marry, engage in sex, and bear children as soon as they reach puberty, and<br />that this “pervasive belief system” poses a danger to the children.<br /><br />In addition, the record demonstrates the following facts, which are undisputed by<br />the Department:<br /><br />• The only danger to the male children or the female children who had not<br />reached puberty identified by the Department was the Department’s assertion<br />that the “pervasive belief system” of the FLDS community groomed the<br />males to be perpetrators of sexual abuse later in life and taught the girls to<br />submit to sexual abuse after reaching puberty;<br />• There was no evidence that the male children, or the female children who had<br />not reached puberty, were victims of sexual or other physical abuse or in<br />danger of being victims of sexual or other physical abuse;<br />• While there was evidence that twenty females had become pregnant between<br />the ages of thirteen and seventeen, there was no evidence regarding the<br />marital status of these girls when they became pregnant or the circumstances<br />under which they became pregnant other than the general allegation that the<br />girls were living in an FLDS community with a belief system that condoned<br />underage marriage and sex;<br />• There was no evidence that any of the female children other than the five<br />identified as having become pregnant between the ages of fifteen and<br />seventeen were victims or potential victims of sexual or other physical abuse;<br />• With the exception of the five female children identified as having become<br />pregnant between the ages of fifteen and seventeen, there was no evidence of<br />any physical abuse or harm to any other child;<br />• The Relators have identified their children among the 468 taken into custody<br />by the Department, and none of the Relators’ children are among the five the<br />Department has identified as being pregnant minors; and<br />• The Department conceded at the hearing that teenage pregnancy, by itself, is<br />not a reason to remove children from their home and parents, but took the<br />position that immediate removal was necessary in this case because “there is<br />a mindset that even the young girls report that they will marry at whatever<br />age, and that it’s the highest blessing they can have to have children.”<br /><br />The Department argues that the fact that there are five minor females living in the<br />ranch community who became pregnant at ages fifteen and sixteen together with the FLDS belief system condoning underage marriage and pregnancy indicates that there is a danger to all of the children that warrants their immediate removal from their homes and parents, and that the need for protection of the children is urgent.<br /><br />The Department also argues that the “household” to which the<br />children would be returned includes persons who have sexually abused another child, because the entire Yearning For Zion ranch community is a “household.” See id. § 262.201(d)(2).<br /><br />The Department failed to carry its burden with respect to the requirements of section<br />262.201(b). Pursuant to section 262.201(b)(1), the danger must be to the physical health or safety of the child. The Department did not present any evidence of danger to the physical health or safety. <br /><br />The Department’s witnesses conceded that there are differences of opinion among the<br />FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children—much as there are differences of opinion regarding the details of religious doctrine among other religious groups.<br /><br />The notion that the entire ranch community constitutes a “household” as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. <br /><br />Nor did the Department offer any evidence that any of Relators’ pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a “pervasive system of belief” that condones polygamous marriage and underage females having children.<br /><br />The existence of the FLDS belief system as described by the Department’s witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. <br /><br />The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger.<br /><br />The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators’ children are pubescent females and whether there is any risk to them other than that they live in a community where there is a “pervasive belief system” that condones marriage and childrearing<br />as soon as females reach puberty.<br /><br />The Department also failed to establish that the need for protection of the Relators’<br />children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. <br /><br />There is no evidence that any of the five pregnant minors live in the same household as the Relators’ children. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a “household” under section 262.201.<br /><br />The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.<br /><br /><br />There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators’children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a “pervasive belief system” that condones underage<br />marriage and underage pregnancy. <br /><br />Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims<br />of sexual abuse as the Department contends,11 there is no evidence that this danger is “immediate” or “urgent” as contemplated by section 262.201 with respect to every child in the community. <br /><br />The legislature has required that there be evidence to support a finding that there is a danger to the physical health or safety of the children in question and that the need for protection is urgent and warrants immediate removal. Id. § 262.201(b). <br /><br />Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior<br />to full litigation of the issue as required by section 262.201.<br /><br />Finally, there was no evidence that the Department made reasonable efforts to<br />eliminate or prevent the removal of any of Relators’ children.Dallas Federal Criminal Defense Attorney - David Finnhttp://www.blogger.com/profile/01206855728721121354noreply@blogger.comtag:blogger.com,1999:blog-7539741.post-18702255371982055922008-04-23T12:09:00.000-07:002008-04-23T12:12:24.412-07:00New Supreme Court Decision-April 23, 2008<strong>In Virginia v. Moore</strong>, case number 06-1082, the Supreme Court today decided that just because police officers violate state law by arresting a person for an offense that is not subject to arrest, a search incident to that<br />(unlawful) arrest does not violate the Fourth Amendment. And it was a unanimous decision (Justice Ginsburg only concurred in the judgment). <br /><br />Below is Scotusblog's description of the case for those that (like me) can't yet stomach reading the actual decision.<br /><br />In the only decision of the day, the Supreme Court ruled unanimously on Wednesday that police do not act unconstitutionally if they conduct a search following an arrest, even if the arrest violated a state law. The ruling, written by Justice Antonin Scalia, came in Virginia v. Moore (06-1082) involving the discovery of crack cocaine in a search of a driver who had been stopped for driving on a suspended license.<br /><br /><br />So long as the police had probable cause to make the arrest, the Court said, it makes no difference that a state law barred police from making an arrest when the crime involved was only a misdemeanor traffic offense. "An arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure" of evidence after the arrest, the opinion added..<br /><br /><br />In the circumstance that confronted David Lee Moore of Portsmouth, Va., in 2003, police were supposed to give him only a ticket. But, instead, they arrested him, took him to a hotel where they conducted a personal search of Moore, finding about 16grams of cocaine in a jacket pocket and $516 in cash in a pants pocket. The evidence was used to convict Moore of possession of cocaine with intent to distribute it. He was sentenced to five years in prison, with 18 months of the sentence suspended.<br /><br /><br />The Court noted that, with its policy on ticketing only after a traffic offense, "Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires." But, it added, that choice does not make a resulting search invalid under the federal Constitution.<br /><br /><br />"Moore would allow Virginia to accord enhanced protection only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures," Scalia wrote.<br /><br /><br />The opinion was joined by all of the members of the Court except Justice Ruth Bader Ginsburg. She supported the result only, saying she would read the historical record differently.<br /><br /><br /><a href="http://www.dallascriminallawyer.com"target="_">David Finn</a>Dallas Federal Criminal Defense Attorney - David Finnhttp://www.blogger.com/profile/01206855728721121354noreply@blogger.comtag:blogger.com,1999:blog-7539741.post-90819832731627586502008-04-15T08:34:00.001-07:002008-04-15T08:55:31.541-07:00Federal Misdemeanors-List<strong>David Finn: In addition to the individuals named in the following article, credit for the distribution of this material goes to Tony Lacy, Assistant Public Defender, Western District of Oklahoma, Oklahoma City, Oklahoma. <br /><br />It's old, so check the Federal Code before relying on the information.</strong><br /><br />A giant “Thank You” goes out to Sherri Katz, Research and Writing Specialist, Western District of Texas, Del Rio, Texas for her assistance in preparing the original presentation. Another “Thank You” to Sumter Camp, Assistant Federal Defender, Middle District of Tennessee, Nashville, Tennessee for reviewing the Misdemeanor list and updating it in the Winter of 2000. <br /><br /><strong>APPENDIX A <br />MISDEMEANOR OFFENSES </strong><br />The following list of statutes originated from an “ancient” file the saved in Adobe Acrobat. The list was provided by Fred Kay, Federal Public Defender, District of Arizona. The age of the original document is unknown, but appeared to predate 1981. It was reformatted and updated in the Spring of 2000 by the author. It was reviewed and updated again by Sumter Camp, Assistant Federal Defender, Middle District of Tennessee in the Winter of 2000. <br /><br />Code of Federal Regulation offenses and assimilative crimes are not included. <br /><br /><strong>Title 2</strong><br /><br />Title 2 U.S.C. § 167(a): (Library of Congress) - Public Use. 2 U.S.C. § 167(b): (Library of Congress) - Sale of articles; signs; solicitations. 2 U.S.C. § 167(c): (Library of Congress) - injuries to property (if does not exceed $100). 2 U.S.C. § 167(d): (Library of Congress) - Firearms or fireworks; speeches; objectionable language (if no damage which exceeds $100). 2 U.S.C. § 167(e): (Library of Congress) - Parades or assemblages; display of flags (if no damage which exceeds $100). 2 U.S.C. § 167(f): (Library of Congress) - Additional regulations; publication. effective date (if does not exceed $100). 2 U.S.C. § 167(g): (Library of Congress) - prosecution and punishment of offenses. 2 U.S.C. § 390: (Contested elections) - Penalty for failure to appear, testify, or produce documents. <br /><br /><strong>Title 4 </strong><br /><br />4 U.S.C. § 3: (District of Columbia) - Use of flag for advertising purposes; mutilation of flag. <br /><br /><strong>Title 7 </strong><br /><br />7 U.S.C. § 60: (Cotton standards) - Penalties for violations 7 U.S.C. § 86: (Grain standards) - Refusal of inspection and weighing services; civil penalties 7 U.S.C. § 136l(b)(1) & (2): (Pesticide control) - Penalties 7 U.S.C. § 150gg(a): (Plant Pests) - Criminal penalties (violations and altering and defacing documents). 7 U.S.C. § 163: (Nursery stock and other plants and plant products) -Violations; forgery, alterations, etc., of certificates; punishment, civil penalty. 7 U.S.C. § 166: (Agriculture products in U.S. Mails) - transmission of mailed packages for State inspection. 7 U.S.C. § 203: (Registration of stockyard dealer or market agency) - penalty for failure to register. 7 U.S.C. § 207(g): (Packers and Stockyards) - Schedule of rates. <br /><br />7 U.S.C. § 207(h): (Packers and Stockyards) - Schedule of rates; penalties. 7 U.S.C. § 215: (Packers and Stockyards) - Failure to obey orders; Punishment. 7 U.S.C. § 270: (Warehouses) (Fraud etc.) - Punishment for penalties. 7 U.S.C. § 282: (Honeybees) - Punishment for unlawful importation. 7 U.S.C. § 472: (Cotton Statistics and Estimates) - Information furnished of confidential character; penalty for divulging <br />information. <br /><br />7 U.S.C. § 473: (Cotton Statistics and Estimates) - Persons required to furnish information; request; failure to furnish; false information. 7 U.S.C. § 473c-2: (Cotton Statistics and Estimates) - Offenses in relation to sampling of cotton for classification. 7 U.S.C. § 499(c): (Perishable Agricultural Commodities) (Licenses) - penalty for failure to obtain. 7 U.S.C. § 503: (Tobacco Statistics) - Reports necessity; by whom made, penalties. 7 U.S.C. § 511(k): (Tobacco inspection) - penalties. 7 U.S.C. § 620: (Agricultural Adjustment) - Falsely ascribing deductions or charges to taxes; penalty. 7 U.S.C. § 953: (Peanut Statistics) - Reports; by whom made; penalties. 7 U.S.C. § 1596: (Seeds: Foreign Commerce) - Penalties (As applied to first violation only; penalty of up to $2,000 thereafter. 7 U.S.C. § 1642(c): (Stabilization of International Wheat Market) - Enforcement by President - Penalty for violation. <br /><br /><strong>Title 8</strong> <br /><br />8 U.S.C. § 1221(d): Penalties against noncomplying shipments or aircraft (Aliens - entry and exclusions). $300.00 penalty for each person concerning whom list is not prepared. Penalty paid to the Commissioner. 8 U.S.C. § 1281(d): (Alien Crewman) - violations. <br /><br />8 U.S.C. § 1282(c): (Alien Crewman) - conditional permits to land temporarily - penalties. 8 U.S.C. § 1284(a): Control of alien crewmen - penalties for failure. $3000.00 penalty paid to the Commissioner for each alien crewman with respect to which failure occurs. <br /><br />8 U.S.C. §1285: Employment on passenger vessels of aliens with certain disabilities. 8 U.S.C. § 1286: Discharge of alien crewmen; penalties. 8 U.S.C. §1287: Alien crewmen brought into the United States with intent to evade immigration laws. 8 U.S.C. § 1304(e): Personal possession of registration or receipt card; penalties. Up to $1000.00 fine, and/or up to 30 days imprisonment. <br /><br />8 U.S.C. § 1306(a): (Aliens) - Willful failure to register. Penalty is up to $1,000.00 fine and/or up to 6 months imprisonment. 8 U.S.C. § 1306(b): (Aliens) - Failure to notify change of address. Penalty is up to $200.00 fine and/or up to 30 days imprisonment. In addition, a conviction under this section can be cause for removal under Title 8, Chapter 4. 8 U.S.C. § 1306(c): (Aliens) - Fraudulent statements. Penalty is up to $1,000.00 fine and/or up to six months imprisonment. <br /><br />8 U.S.C. § 1321: (Aliens) - Prevention of unauthorized landing of aliens; failure to report; penalties. Penalty is up to $3,000.00 fine for each violation, imposed by the Attorney General. <br /><br />8 U.S.C. § 1324(a)(B)(2)(A): Unlawful bringing of aliens into U.S. Penalty is $3,000.00 fine for each alien, paid to the Commissioner. <br /><br />8 U.S.C. § 1325: Entry of Alien at improper time or place; misrepresentation and concealment of facts (first offense). Penalty is up to six months imprisonment and/or a fine imposed pursuant to Title 18. <br /><br /><strong>Title 12 </strong><br /><br />12 U.S.C. § 164: (Bank Examinations) - Penalty for failure to make reports. 12 U.S.C. § 334:(Federal Reserve System) - State Banks as Members of System 12 U.S.C. § 481: (Bank Examinations) - Appointment of examiners; examination of member banks, State banks, and trust <br /><br />companies; reports”. 12 U.S.C. § 1723a(e): (Federal National Mortgage Association) - Prohibition against use of name; penalty for violation. 12 U.S.C. § 1828(h): (F.D.I.C.) - Penalties. <br /><br /><strong>Title 13 </strong><br /><br />13 U.S.C. § 212: (Census) - Refusal or neglect of employees to perform duties. 13 U.S.C. § 221(a) & (b): (Census) - Refusal or neglect to answer questions; false answers. 13 U.S.C. § 222: (Census) - Giving suggestions or information with intent to cause inaccurate enumeration of population. 13 U.S.C. § 223: (Census) - Refusal, by owners, proprietors, etc. to assist census employees. 13 U.S.C. § 224: (Census) - Failure to answer questions affecting companies, businesses, religious bodies, and other organizations, false answers; (as applied only to failure to answer; willfully false answer has a fine of up to $10,000). 13 U.S.C. § 305: (Census - Collection and Publication of Foreign Commerce and Trade Statistics) -Violations, penalties. <br /><br /><strong>Title 14 </strong><br /><br />14 U.S.C. § 83: (Coast Guard) - Unauthorized aids to maritime navigation; penalty. 14 U.S.C. § 84: (Coast Guard) - Interference with aids to navigation; penalty. 14 U.S.C. § 85: (Coast Guard) - Aids to maritime navigation on fixed structures; penalty. 14 U.S.C. § 639: (Coast Guard) - Penalty for unauthorized use of words "Coast Guard". 14 U.S.C. § 892: (Coast Guard Reserve and Auxiliary) - Penalty. <br /><br /><strong>Title 15 </strong><br /><br />15 U.S.C. § 68(d: (Labeling of Wool Products) - Maintenance of records, penalties. 15 U.S.C. § 69f: (Labeling of Fur Products) - Maintenance of records, penalties). 15 U.S.C. § 78(u): (Securities and Exchanged) - Investigations; injunctions and prosecution of offenses. 15 U.S.C. § 78ff(b): (Securities and Exchanges) (failure to file information) Penalties. <br /><br />15 U.S.C. § 79r(d): (Public Utility Holding Comp.) - Penalty for refusal to testify. <br /><br />15 U.S.C. § 80b-9: (Investment Advisors) - Enforcement; penalties <br /><br />15 U.S.C. § 233: (Standard Barrels) - Penalty for violations. <br /><br />15 U.S.C. § 235: (Standard Barrels) - Sale or shipment of barrel of less capacity than standard; punishment. <br /><br />15 U.S.C. § 241: (Standard Barrels) - Penalty for selling lime in unmarked barrels and containers. <br /><br />15 U.S.C. § 298: (Gold and Silver) - Violations of law; penalty. <br /><br />15 U.S.C. § 717t(b): (Natural Gas) - General penalties. <br /><br />15 U.S.C. § 1004: (Golden Gate Bridge Tolls) - Penalties. <br /><br />15 U.S.C. § 1007: (San Francisco-Oakland Bay Bridge) - Penalties <br /><br />15 U.S.C. § 1212: (Household Refrigerators) - Violations, misdemeanor; penalties. <br /><br />15 U.S.C. § 1233: (Disclosure of Automobile Information) - Violations and penalties. <br /><br /><strong>Title 16 </strong><br /><br />16 U.S.C. § 9a: (National Parks) - Violation of regulations as misdemeanor. 16 U.S.C. § 26: (National Parks - Yellowstone National Park) - Punishment for violations. 16 U.S.C. § 45e: (Sequoia and Yosemite National Parks) - Violations, penalty. 16 U.S.C. § 98: ( Mount Ranier National Historical Park) - forfeitures and punishments. 16 U.S.C. § 117c: (Mesa Verde National Park) - violations of statutes and rules. 16 U.S.C. § 127: (Crater Lake National Park) - rules and regulations; punishment. 16 U.S.C. § 146: (Wind Cave National Park) - Offenses. 16 U.S.C. § 170: (Glacier National Park) - regulations; punishment. 16 U.S.C. § 198c: (Rocky Mountain National Park) - Prohibited Acts; rules . and regulations; penalties. 16 U.S.C. § 204c: (Lassen Volcanic National Park) - Violations of statutes and rules; penalties. 16 U.S.C. § 256b: (Olympic National Park) - violation of statutes or rules; penalties. 16 U.S.C. § 354: (Denali National Park) - offenses; punishments. 16 U.S.C. § 373: (Hot Springs National Park) - injuries to property. 16 U.S.C. § 374: (Hot Springs National Park) - Violations of rules and regulations. 16 U.S.C. § 403c-3: (Shenandoah National Park and Great Smoky Mountains National Park) - Criminal offenses concerning hunting, fishing, and property. <br /><br />16 U.S.C. § 403h-3: (Shenandoah National Park and Great Smoky Mountains National Park) - penalties for violating laws and rules. 16 U.S.C. § 404c-3: (Mammoth Cave National Park) - rules and regulations. <br /><br />16 U.S.C. § 408k: (Isle Royale National Park) - violation of statutes or rules; penalties. 16 U.S.C. § 413: (National Military Parks) - Offenses relating to structures and vegetation. 16 U.S.C. § 414: (National Military Parks) - trespassing for hunting, or shooting. 16 U.S.C. § 422d: (Moores Creek National Military Park)' - monuments, etc. protected. 16 U.S.C. § 423f: (Petersburg National Battlefield) - protection of monuments etc. 16 U.S.C. § 425g: (Various Parks in Virginia) - protection of monuments etc. 16 U.S.C. § 426i: (Stones River National Battlefield) - protection of monuments, etc. 16 U.S.C. § 430q: (Monocacy National Military Park) - offenses. 16 U.S.C. § 460k-3: (Nationa1 Conservation Recreation Areas) - Charges and fees; permits; regulations; penalties. 16 U.S.C. § 460n-5: (Lake Mead National Recreation Area) - violations and penalties. 16 U.S.C. § 606: (Cutting timber on certain mineral lands) - offenses; punishment. 16 U.S.C. § 666a: (Game, fur-bearing animals and fish) - penalties. 16 U.S.C. § 668: (Bald and golden eagles) - acts prohibited, penalty. 16 U.S.C. § 668dd(e): (National Wildlife Refuge System) - penalties. 16 U.S.C. § 690g: (Game and Bird Preserves; Protection) - violation of laws and regulations; penalty. 16 U.S.C. § 693a: (Game and Bird Preserves) - Rules and Regulations for administration of Ouachita National Forest; violations; penalties.] 16 U.S.C. § 707(a): (Migratory Bird Treaty) - violations and penalties. 16 U.S.C. § § 730: (Upper Mississippi River Wild Life and Fish Refuge) -violation of law or regulations; punishment. 16 U.S.C. § 773g: (Northern Pacific Halibut Act of 1982) - Crimes and criminal penalties 16 U.S.C. § 783: (Regulation of Sponges) - punishment for violations of law. 16 U.S.C. § 811: (F.P.C.) - operation of navigation facilities; rules and regulations;-penalties. 16 U.S.C. § 825o(b): (F.P.C.) - rules and regulations; penalties. 16 U.S.C. § 916e: (Regulation of Whaling) - failure to keep returns, records, reports. 16 U.S.C. § 957(e): (Tuna Conventions) - violations; fines and forfeitures (as applied only to first violation; $5,000 penalty for subsequent violations). 16 U.S.C. § 3373: (Illegally Taken Fish and Wildlife) - Penalties and sanctions. <br /><br /><strong>Title 17</strong> <br /><br />17 U.S.C. § 407 (Copyrights) - Deposit of copies or phonorecords for Library of Congress. <br /><br />17 U.S.C. § 506 (Copyrights) - Criminal offenses. <br /><br />17 U.S.C. § 506 (Copyrights) - Criminal offenses. <br /><br /><strong>Title 18 </strong><br /><br />18 U.S.C. § 3: Accessory after the fact (One half of the maximum punishment). <br /><br />18 U.S.C. §§ 7 & 13: Special Maritime and territorial jurisdiction & Laws of States adopted for areas within federal jurisdiction <br /><br />Aircraft and Motor Vehicles <br /><br />18 U.S.C. § 35(a): Aircraft and Motcr Vehicles - importing or conveying false information. <br /><br />Animals, Birds, Fish and Plants <br /><br />18 U.S.C. § 41: Hunting, fishing, trapping; disturbance or injury on wildlife refuges 18 U.S.C. § 42(5)(b): Importation or shipment of injurious mammals, birds, fish, amphibia and reptiles 18 U.S.C. § 43(a): Animal enterprise terrorism 18 U.S.C. § 46: Transportation of water hyacinths 18 U.S.C. § 47: Use of aircraft or motor vehicles to hunt certain wild horses or burrows; pollution of watering holes <br /><br />Assault <br /><br />18 U.S.C. § 111: Assaulting, resisting, or impeding certain officers or employees (simple). 18 U.S.C. § 112(b): Protection of foreign officials, official guests, and internationally protected persons 18 U.S.C. § 113(a)(4-5): Assaults within maritime and territorial jurisdiction 18 U.S.C. § 115: Influencing, impeding, or retaliating against a federal official by threatening or injuring a family member (as punishable under 18 U.S.C. § 111). <br /><br /><strong>Bankruptcy </strong><br /><br />18 U.S.C. § 154: Bankruptcy - adverse interest and conduct of referees and other officers. 18 U.S.C. § 155: Fee Agreements in cases under title 11 and receiverships 18 U.S.C. § 156: Knowing disregard of bankruptcy law or rule <br /><br />Bribery, Graft, and Conflicts of Interest <br /><br />18 U.S.C. § 201(c): Bribery of public officials and witnesses (A two year offense. However, accessory after the fact would <br /><br />constitute a misdemeanor) 18 U.S.C. §§ 203-205, 207-209: These bribery and graft crimes provide for misdemeanors where the defendant “engages” in the conduct versus “willfully engages.” <br /><br />18 U.S.C. § 210: Offer to procure appointive public office <br /><br />18 U.S.C. § 211: Acceptance or solicitation to obtain appointive public office <br /><br />18 U.S.C. § 212: Offer of loan or gratuity to bank examiner <br /><br />18 U.S.C. § 213: Acceptance of loan or gratuity by bank examiner <br /><br />18 U.S.C. § 214: Offer for procurement of federal reserve bank loan and discount of commercial paper <br /><br />18 U.S.C. § 215: Receipt of commissions or gifts for procuring loans (under $1,000.00) 18 U.S.C. § 217: Acceptance of consideration for adjustment of farm indebtedness 18 U.S.C. § 219(a): Officers and employees acting as agents of foreign principals (A two year offense. However, accessory <br /><br />after the fact would constitute a misdemeanor) 18 U.S.C. § 217: Acceptance of consideration for adjustment of farm indebtedness. <br /><br /><strong>Child Support </strong><br /><br />18 U.S.C. § 228: Failure to pay legal child support obligations (first offense) <br /><br />Civil Rights <br /><br />18 U.S.C. §§ 242-248: These civil rights crimes provide for misdemeanors, dependent on the type of activity and the gravity of the injury, eg. whether the defendant causes bodily harm. <br /><br />Claims and Services in Matters Affecting Government <br /><br />18 U.S.C. § 288: False claims for postal losses 18 U.S.C. § 290: Discharge papers withheld by claim agent 18 U.S.C. § 291: Purchase of claims for fees by court officials (fine only) 18 U.S.C. § 292: Solicitation of employment and receipt of unapproved fees concerning federal employee’s compensation. <br /><br /><strong>Coins and Currency </strong><br /><br />18 U.S.C. § 333: Mutilation of national bank obligations 18 U.S.C. § 336: Issuance of circulating obligations of less than $1 18 U.S.C. § 337: Coins as security for loans.<br /><br /><strong>Congressional, Cabinet, and Supreme Court Assassination, Kidnapping and Assault </strong><br /><br />18 U.S.C. § 351(e): Congressional, Cabinet, and Supreme Court Assassination, Kidnapping and Assault; penalties (simple assault) <br /><br /><strong>Conspiracy</strong> <br /><br />18 U.S.C. § 371: Conspiracy to commit offense or to defraud U.S. (if the offense, the commission of which is the object of the conspiracy, is a misdemeanor, otherwise, maximum fine may be as much as $10,000). <br /><br /><strong>Contempts </strong><br /><br />18 U.S.C. § 402: Contempts constituting crimes 18 U.S.C. § 403: Protection of the privacy of child victims and child witnesses crimes. <br /><br /><strong>Contracts </strong><br /><br />18 U.S.C. § 435: U.S. employee making contracts in excess of specific appropriation. 18 U.S.C. § 438: Whoever receives money contrary to 25 U.S.C. 81,82 for Indian contracts generally. 18 U.S.C. § 439: (Receipt of money, etc.)- on Indian enrollment contracts. <br /><br />18 U.S.C. § 440: Mail Contracts 18 U.S.C. § 441: Postal Supply contracts. 18 U.S.C. § 442: (Illegal interest in) printing contracts. <br /><br /><strong>Counterfeiting and Forgery</strong> <br /><br />18 U.S.C. § 475: Imitating obligations or securities; advertisements (of U.S.) 18 U.S.C. § 480: Possessing counterfeit foreign obligations or securities. 18 U.S.C. § 483: Uttering counterfeit foreign banknotes. 18 U.S.C. § 489: Making or possessing likeness of coins. 18 U.S.C. § 491: Tokens or paper used as money. 18 U.S.C. § 492: (Custody or control) - forfeiture of counterfeit paraphernalia. 18 U.S.C. § 498: Military or navel discharge papers 18 U.S.C. § 510: Forging endorsements on Treasury checks or bonds or securities of the united states (less than $1,000.00) 18 U.S.C. § 511A: Unauthorized application of theft prevention decal or device. <br /><br /><strong>Customs</strong> <br /><br />(Two year offenses. However, accessory after the fact would constitute a misdemeanor) Elections and Political Activities 18 U.S.C. § 594: Intimidating voters 18 U.S.C. § 595: Interference by administrative employees of Federal, State, or Territorial Governments. 18 U.S.C. § 596: Polling armed forces. 18 U.S.C. § 597: Expenditures to influence voting 18 U.S.C. § 598: (Elections) - coercion by means of relief appropriations 18 U.S.C. § 599: Promise of appointment of candidate (Two years if willful.) 18 U.S.C. § 600: Promise of employment or other benefit for political activity 18 U.S.C. § 601: Deprivation of employment or other benefit for political contribution 18 U.S.C. § 604: Solicitation from persons on relief (for political activity). 18 U.S.C. § 605: Disclosure of names of persons on relief. 18 U.S.C. § 611: Voting by Aliens <br /><br /><strong>Embezzlement and Theft </strong><br /><br />18 U.S.C. § 641: (Embezzlement, etc.) - Public money, property or records (if not in excess of $1,000). 18 U.S.C. § 643: (Embezzlement) - Accounting generally for public money (if does not exceed $1,000). <br /><br />18 U.S.C. § 644: (Embezzlement) - Banker receiving unauthorized deposit of public money (if not in excess or $1,000). 18 U.S.C. § 645: (Embezzlement) - Court officers generally (if amount does not exceed $1,000). 18 U.S.C. § 646: (Embezzlement) - Court officers depositing registry moneys (if amount does not exceed $1,000). 18 U.S.C. § 647: (Embezzlement) - Receiving loan from court officer (if amount does not exceed $1,000). 18 U.S.C. § 648: (Embezzlement) - Custodians, generally, misusing public funds (if amount does not exceed $1,000). 18 U.S.C. § 649: (Embezzlement) - Custodians failing to deposit moneys (if amount does not exceed $1,000). 18 U.S.C. § 650: (Embezzlement) - Depositories failing to safeguard deposits (if amount does not exceed $1,000). 18 U.S.C. § 651: Disbursing officer falsely certifying full-payment . (if amount does not exceed $1,000) 18 U.S.C. § 652: Disbursing officer paying lesser in lieu of lawful amount (if amount does not exceed $1,000. 18 U.S.C. § 653: Disbursing officer misusing public fund (if amount does not exceed $1,000). 18 U.S.C. § 654: Officer or employee of U.S. converting property of another (if does not exceed $1,000). 18 U.S.C. § 655: Theft by bank examiner (if amount does not exceed $1,000). 18 U.S.C. § 656: Theft, embezzlement, or misapplication by bank officer or employee (if amount does not exceed $1,000). 18 U.S.C. § 657: (Embezzlement) - Lending, credit and insurance institutions. (if amount does not exceed $1,000). 18 U.S.C. § 658: (Fraud, etc.) - Property mortgaged or pledged to farm, credit agencies (if amount does not exceed $1,000). <br /><br />18 U.S.C. § 659: (Embezzlement, etc.) - Interstate OK foreign baggage express or freight (if amount does not exceed $1,000). 18 U.S.C. § 661: (Steals, etc. personal property of another) - within special maritime and territorial jurisdiction (if value does not exceed $1,000). <br /><br />18 U.S.C. § 662: Receiving stolen property within special maritime and territorial jurisdiction (if property does not exceed $1,000). 18 U.S.C. § 665: Theft or embezzlement from employment and training funds; improper inducement; obstruction of <br />investigations (if property does not exceed $1,000). 18 U.S.C. § 669: Theft or embezzlement in connection with health care (if sum does not exceed $100) <br /><br /><strong>Emblems, Insignia, and Names</strong> <br /><br />18 U.S.C. § 700: Desecration of the flag 18 U.S.C. § 701: (Mfg., sells, possesses) - official badges, identification cards, other insignia. 18 U.S.C. § 702: (Unlawful wearing, etc.) - uniform of armed forces and public health service. 18 U.S.C. § 703: (Unlawful wearing, etc.) - uniform of a friendly nation. 18 U.S.C. § 704: (Unlawful wearing, etc.) - military medals or decorations. 18 U.S.C. § 705: (Unlawful mfg., possessing, etc.) ,- badge or medal of veterans' organizations. 18 U.S.C. § 706: (Unlawful wearing,' etc.) - sign, insignia of Red Cross. <br /><br />18 U.S.C. § 707: 4-H Club emblem fraudulently used. 18 U.S.C. § 708: (Unlawful use, etc.) - Swiss Confederation Coat of Arms. 18 U.S.C. § 709: False advertising or misuse of names to indicate Federal agency. 18 U.S.C. § 710: (Unlawful use, etc.) - cremation urns for military use. 18 U.S.C. § 711: (Unlawful use, etc.) - "Smokey Bear" character or name. 18 U.S.C. § 711a: (Unlawful use, etc.) - "Woodsy Owl" character, name or slogan.. 18 U.S.C. § 712: Misuse of names by collecting agencies or private detective agencies to indicate Federal Agency. 18 U.S.C. § 713: (Unlawful use, etc.) - Presidential Seal, congressional seals 18 U.S.C. § 715: (Unlawful use, etc.) - "Golden Eagle Insignia” <br /><br /><strong>Escape and Rescue </strong><br /><br />18 U.S.C. § 751(a)(b): (Escape) - Prisoners in custody of institution or officer (if held on misdemeanor). 18 U.S.C. § 752(a)(b): Instigating or assisting escape from Federal Officers (if held on charge of misdemeanor). 18 U.S.C. § 755: Officer (negligently) permitting escape. <br /><br /><strong>Espionage and Censorship </strong><br /><br />18 U.S.C. § 795: Photographing and sketching defense installations. 18 U.S.C. § 796: Use of aircraft for photographing defense installations 18 U.S.C. § 797: Publication and sale of photographs of defense installations. 18 U.S.C. § 799: Violations of NASA regulations Explosives, etc. 18 U.S.C. § 836: Transportation of fireworks into State prohibiting sale or use. 18 U.S.C. § 844(b): Certain § 842 violations <br /><br /><strong>Extortions and Threats</strong> <br /><br />18 U.S.C. § 872: Extortion by officers or employees of U.S. (if amount does not exceed $100). 18 U.S.C. § 873: Blackmail 18 U.S.C. § 875: Interstate Communications (Two year statute. Accessory after the fact may make it a misdemeanor.) 18 U.S.C. § 876: Mailing threatening communications (Two year statute. Accessory after the fact may make it a misdemeanor.) 18 U.S.C. § 877: Mailing threatening communications from foreign country (Two year statute. Accessory after the fact may make it a misdemeanor.) <br /><br /><strong>False Impersonation </strong><br /><br />18 U.S.C. § 916: (Defrauds, etc.) - 4-H Club Members or Agents. <br /><br />18 U.S.C. § 917: (Defrauds, represents, etc.) - Red Cross Members or Agents. <br /><br /><strong>Firearms</strong> <br /><br />18 U.S.C. §§ 924: Penalties: False statements by dealers, violations of § 922(m), 922(q), 922(s), 922(t), and 922(x). 18 U.S.C. § 930: Possession of firearms and dangerous weapons in Federal Facilities. <br /><br /><strong>Foreign Relations</strong> <br /><br />18 U.S.C. § 961: (Aids, etc.) - Strengthening armed vessel of foreign nation. <br /><br /><strong>Fraud and False Statements</strong> <br /><br />18 U.S.C. § 1003: (Fraudulent, etc.) - Demands against the U.S. (if amount does not exceed $1,000). 18 U.S.C. § 1012: (False, etc.) - HUD transactions. 18 U.S.C. § 1013: (False, etc.) - Farm loan bonds and credit bank debentures. 18 U.S.C. § 1016: Acknowledgment of appearance or oath (Two year offense) 18 U.S.C. § 1018: (False statements, etc.) - Official certificates or writings. 18 U.S.C. § 1024: Purchase or receipt of military, naval, or veteran’s facilities property (Two year offense) 18 U.S.C. § 1025: False pretenses on high seas and other waters (if amount does not exceed $1,000). 18 U.S.C. § 1026: (False statement, etc.) - Compromise, adjustment and cancellation of farm indebtedness. 18 U.S.C. § 1028(b)(6): Certain Identification fraud. 18 U.S.C. § 1030(c)(2)(A): Certain Computer fraud <br /><br /><strong>Gambling </strong><br /><br />18 U.S.C. § 1082: (Gambling Ships). (Two year offense) 18 U.S.C. § 1083: (Gambling). - Transportation between shore and ship. <br /><br /><strong>Indians</strong> <br /><br />18 U.S.C. § 1154: (First offense) - Intoxicants dispensed in Indian country. 18 U.S.C. § 1156: (First offense) - Intoxicants possessed in Indian country. 18 U.S.C. § 1163: Embezzlement and theft from Indian tribal organizations <br /><br />(if amount does not exceed $1,000). 18 U.S.C. § 1164: Destroying (Indian) boundary and warning signs. 18 U.S.C. § 1165: Hunting, trapping, or fishing on Indian land. 18 U.S.C. § 1167: Theft from gaming establishments on Indian Land (sum less than $1,000) 18 U.S.C. § 1168: Theft by officers or employees of gaming establishments on Indian Land (sum less than $1,000) 18 U.S.C. § 1169: Reporting Child Abuse. 18 U.S.C. § 1170: Illegally trafficking in Native American human remains and cultural items (first offense) <br /><br /><strong>Liquor Traffic</strong> <br /><br />18 U.S.C. § 1262: Transportation (liquor, etc.) into State prohibiting sale. 18 U.S.C. § 1263: (Misrepresented, etc.) - marks and labels on packages (liquor). 18 U.S.C. § 1264: (Unlawful) - Delivery to consignee (liquor). 18 U.S.C. § 1265: (Unlawful) - C.O.D. Shipments (liquor). <br /><br /><strong>Lotteries</strong> <br /><br />18 U.S.C. § 1301: Importing or transporting lottery tickets (a two year offense) 18 U.S.C. § 1302: Mailing lottery tickets (a two year offense) 18 U.S.C. § 1303: Postmaster or employee as lottery agent. 18 U.S.C. § 1304: Broadcasting lottery information 18 U.S.C. § 1306: Participation by financial institutions <br /><br /><strong>Malicious mischief</strong> <br /><br />18 U.S.C. § 1361: (Malicious mischief) - Government property or contracts (if damage does not exceed $1,000). <br /><br /><strong>Military and Navy</strong> <br /><br />18 U.S.C. § 1382: Entering military, Naval, or Coast Guard property. 18 U.S.C. § 1384: Prostitution near military and naval establishments. 18 U.S.C. § 1385: Using Army or Navy as pose comitatus. (A two year offense) <br /><br /><strong>Obscenity</strong> <br /><br />18 U.S.C. § 1460: Possession with intent to sell on federal land (A two year offense) 18 U.S.C. § 1464: Broadcasting obscene language (A two year offense) 18 U.S.C. § 1468: Distributing obscene material by cable or subscription TV (A two year offense) <br /><br /><strong>Obstruction of Justice </strong><br /><br />18 U.S.C. § 1501: Assault on Process Server. 18 U.S.C. § 1502: Resistence to extradition agent. 18 U.S.C. § 1503: Influencing or injuring officer or juror. (if offense being prosecuted was a misdemeanor) 18 U.S.C. § 1504: Influencing juror by writing. 18 U.S.C. § 1507: Picketing or parading 18 U.S.C. § 1508: Recording, listening to, or observing proceedings of grad or petit juries while deliberating or voting 18 U.S.C. § 1507: Obstruction of Court Orders 18 U.S.C. § 1512(c): Tampering (harassing) witness, victim or informant 18 U.S.C. § 1507: Retaliating against witness, victim or informant in a misdemeanor case. <br /><br /><strong>Postal Service </strong><br /><br />18 U.S.C. § 1693: (Postal Service) - Carriage of mail generally. 18 U.S.C. § 1694: (Postal Service) - Carriage of matter out of mail over post routes. 18 U.S.C. § 1695: (Postal Service) - Carriage of matter out of mail on vessels. 18 U.S.C. § 1696: (Postal Service) - Private express for letters and packets. 18 U.S.C. § 1697: (Postal Service) - Transportation cf persons acting as private express. 18 U.S.C. § 1698: (Postal Service) - Prompt delivery of mail from vessel. 18 U.S.C. § 1699: (Postal Service) - Certification of delivery from vessel. 18 U.S.C. § 1700: Desertion of mails. 18 U.S.C. § 1701: Obstruction of mails generally. 18 U.S.C. § 1703(b), (c): Delay or destruction of mail or newspapers (employee). 18 U.S.C. § 1707: Theft of property used by postal service (if value does not exceed $1,000). 18 U.S.C. § 1710: (Postal Service) - Theft of newspapers. 18 U.S.C. § 1711: Misappropriation of Postal funds (if value does not exceed $1,000). 18 U.S.C. § 1713: Issuance of money orders without payment 18 U.S.C. § 1716: (Postal Service, Certain -) - Injurious articles as non-mailable (without intent to kill). 18 U.S.C. § 1716A: Nonmailable locksmithing devises and motor vehicle master keys 18 U.S.C. § 1716B: Nonmailable Plants 18 U.S.C. § 1716C: Forged agricultural certificates 18 U.S.C. § 1716D: Nonmailable injurious animals , plants illegally taken fish, animals and plants 18 U.S.C. § 1718 (Postal Service) - Libelous matters on wrappers or envelopes. 18 U.S.C. § 1719 (Misuse) - Franking privilege 18 U.S.C. § 1720 (Misuse of - if not postal employee) - Cancelled stamps and envelopes. 18 U.S.C. § 1721: Sale or pledge of stamps. 18 U.S.C. § 1722:(Postal Service) - False evidence to secure second-class rate 18 U.S.C. § 1723:(Postal Service) - Avoidance of postage by using lower class matter 18 U.S.C. § 1725:(Postal Service) - Postage unpaid on deposited mail matter. 18 U.S.C. § 1726: Postage collected unlawfully. 18 U.S.C. § 1729: Post Office conducted without authority. 18 U.S.C. § 1730: (Postal Service unlawful wearing) - uniforms of carriers 18 U.S.C. § 1731:(Postal Service) - Vehicles falsely labeled as carriers. 18 U.S.C. § 1732:(Postal Service) - Approval of Bonds or sureties by postmaster. 18 U.S.C. § 1733:(Postal Service) - Mailing periodicals without prepayment of postage 18 U.S.C. § 1734:(Postal Service) - Editorials and other matters as "advertisements 18 U.S.C. § 1738:(Postal Service) - Mailing private identification documents without disclaimers <br /><br /><strong>Presidential and Presidential Staff Assassination, Kidnapping and Assault </strong><br /><br />18 U.S.C. § 1751: Simple assault on staff 18 U.S.C. § 1752: Temporary residences and offices -trespass and disruption <br /><br /><strong>Prison Made Goods</strong> <br /><br />18 U.S.C. § 1761: (Unlawful) - Transportation or importation (Two year offense). 18 U.S.C. § 1762: (Prison-made goods) - marking packages <br /><br /><strong>Prisons </strong><br /><br />18 U.S.C. § 1791: Providing or possessing contraband (Certain items) <br /><br /><strong>Professions and Occupations </strong><br /><br />18 U.S.C. § 1821:(Unlawful) - Transportation of dentures. <br /><br /><strong>Public Lands</strong> <br /><br />18 U.S.C. § 1851:(Public Lands) - Coal depredations. <br /><br />18 U.S.C. § 1852:(Public Lands) - Timber removed or transported <br /><br />18 U.S.C. § 1853:(Public Lands) - Trees cut or injured. <br /><br />18 U.S.C. § 1854: (Public Lands) - Trees, boxed for pitch or turpentine. <br /><br />18 U.S.C. § 1856:(Public Lands) - Fires left unattended and unextinguished. <br /><br />18 U.S.C. § 1857:(Public Lands) - Fences destroyed; livestock entering <br /><br />18 U.S.C. § 1858:(Public Lands) - Survey marks destroyed or removed <br /><br />18 U.S.C. § 1860:(Public Lands) - Bids at land sales. <br /><br />18 U.S.C. § 1861:(Public Lands) - Deception of prospective purchasers <br /><br />18 U.S.C. § 1863:(Public Lands) - Trespass on National forest lands. <br /><br />18 U.S.C. § 1864: Hazardous or injurious devises on Federal lands (certain offenses). Public Officers and Employees <br /><br />18 U.S.C. § 1901:(Public Employees) - Collecting or disbursing officer trading in public property 18 U.S.C. § 1903:(Public Employees) - Speculation in stocks or commodities affecting crop insurance (A two year offense) 18 U.S.C. § 1905:(Public Employees) - Disclosure of confidential information generally 18 U.S.C. § 1906: Disclosure of information from bank examination report 18 U.S.C. § 1907: Disclosure of information from farm credit examiner 18 U.S.C. § 1909: Examiner providing other services 18 U.S.C. § 1911: Receiver mismanaging property 18 U.S.C. § 1912: Unauthorized fees for inspection of vessels. 18 U.S.C. § 1913: Lobbying with appropriated moneys 18 U.S.C. § 1915: Compromise of customs liabilities ( a two year offense) 18 U.S.C. § 1916: Unauthorized employment and disposition of lapsed appointments 18 U.S.C. § 1917: Interference with civil service examinations 18 U.S.C. § 1918: Disloyalty and asserting the right to strike against the government (One year and a day) 18 U.S.C. § 1919: False statement to obtain unemployment compensation for federal service 18 U.S.C. § 1920: False statement or fraud to obtain federal employee’s compensation 18 U.S.C. § 1921: Receiving Federal Employee’s compensation after marriage 18 U.S.C. § 1922: False or withheld report concerning Federal employee’s compensation 18 U.S.C. § 1923: Fraudulent receipt of payments of missing persons 18 U.S.C. § 1924: Unauthorized removal and retention of classified documents or material <br /><br /><strong>Railroads </strong><br /><br />18 U.S.C. § 1991: Entering train to commit (certain) crimes <br /><br /><strong>Records and Reports</strong> <br /><br />18 U.S.C. § 2074: False weather reports. 18 U.S.C. § 2075: Officer failing to make returns or reports. 18 U.S.C. § 2076: (Failing to make reports) - Clerk of U.S. District Court. <br /><br /><strong>Robbery and Burglary</strong> <br /><br />18 U.S.C. § 2113(b): Bank robbery and incidental crimes (if does not exceed $1,000). <br /><br /><strong>Seamen and Stowaways</strong> <br /><br />18 U.S.C. § 2194: Shanghaiing sailors. 18 U.S.C. § 2195: Abandonment of sailors. 18 U.S.C. § 2196: Drunkenness or neglect of duty by seamen. 18 U.S.C. § 2199: Stowaways. <br /><br /><strong>Searches and seizures </strong><br /><br />18 U.S.C. § 2233: Rescue of seized property (a two year offense) 18 U.S.C. § 2234: Authority exceeded in executing warrant 18 U.S.C. § 2235: Search warrant procured maliciously 18 U.S.C. § 2236: Searches without warrant <br /><br /><strong>Sexual Abuse</strong> <br /><br />18 U.S.C. § 2243(b): Sexual abuse of a ward 18 U.S.C. § 2244a)(4) & (b): Abusive sexual contact <br /><br /><strong>Sexual Exploitation of children</strong> <br /><br />18 U.S.C. § 2258: Failure to report child abuse <br /><br /><strong>Shipping</strong> <br /><br />18 U.S.C. § 2277: Explosives or dangerous weapons aboard vessels. 18 U.S.C. § 2278: Explosives on vessels carrying steerage passengers. 18 U.S.C. § 2279: Boarding vessels before arrival. <br /><br /><strong>Stolen Property </strong><br /><br />18 U.S.C. § 2319: Criminal infringement of a copyright (less than $2,500.00) <br /><br />Stored Wire and Electronic Communications and Transactional Records Access <br /><br />18 U.S.C. § 2701(b)(2): Unlawful access to stored communications <br /><br />Prohibition on release and use of certain personal information from state motor vehicle records <br /><br />18 U.S.C. § 2723(a): Penalties <br /><br /><strong>Pen Registers and Trap and Trace devices </strong><br /><br />18 U.S.C. § 3121(d): General prohibition on Pen Registers and Trap and Trace device use. <br /><br /><strong>Release and Detention</strong> <br /><br />18 U.S.C. § 3164(b): Penalty for failure to appear on a misdemeanor charge or material witness bond. 18 U.S.C. § 3167: Penalty for a misdemeanor committed while on release on a misdemeanor <br /><br /><strong>Title 19 </strong><br /><br />19 U.S.C. § 81s: (Customs Duties) - offenses. 19 U.S.C. § 1341(b): (Tariff Commission, interference) - penalty. 19 U.S.C. § 1436: (Customs Duties) - Penalties for violations of arrival, reporting, entry, and clearance requirements. 19 U.S.C. § 1454: (Vessels) - Unloading of passengers; penalty. 19 U.S.C. § 1497: (Customs) - Penalties for failure to declare. <br /><br />19 U.S.C. § 1510: (Customs) - Judicial enforcement. 19 U.S.C. § 1584: (Customs) - Falsity or lack of manifest; penalties. 19 U.S.C. § 1595a: (Customs) - Forfeitures and other penalties. <br /><br /><strong>Title 21</strong> <br /><br />21 U.S.C. § 23: (Apples - commerce) -penalty for violations. 21 U.S.C. § 63: (Filled milk) - penalty for violations of law. 21 U.S.C. § 122: (Livestock - diseases) - offense; penalty. 21 U.S.C. § 134e: (Livestock - diseases - regulations) - penalties. 21 U.S.C. § 158: (Viruses, serums, etc.) - offenses; punishment. 21 U.S.C. § 212: (Practice of Pharmacy and Sale of Poisons in Consular Districts of China) - Offenses; punishment. 21 U.S.C. § 333: (Food and Drugs) - penalties (only on first conviction). 21 U.S.C. § 841(b)(3): (Food and Drugs) - Manufacturing, distributing, possessing with intent to distribute Schedule <br /><br />V controlled substances. 21 U.S.C. § 841(b)(4): (Food and Drugs) - Distributing small amount of marihuana for no remuneration. 21 U.S.C. § 842(c)(2)(A): (Food and Drugs) - Dispensing violations. 21 U.S.C. § 844: (Food and Drugs) - Simple possession. 21 U.S.C. § 844a: (Food and Drugs) - Simple possession: Civil Penalty . 21 U.S.C. § 961: (Food and Drugs) - Shipment violations under § 954. <br /><br /><strong>Title 26 </strong><br /><br />26 U.S.C. § 5603(b): (Alcohol, Tobacco, and Other Excise Taxes) - failure to keep certain records. 26 U.S.C. § 5606: (Alcohol, Tobacco, and Other Excise Taxes) - Penalty relating to containers of distilled spirits. 26 U.S.C. § 5661(b): (Alcohol, Tobacco, and Other Excise Taxes) - Penalty and forfeiture for violation of laws, <br /><br />regulations relating to wine, other offenses. 26 U.S.C. § 5662: (Alcohol, Tobacco, and Other Excise Taxes) - Penalty for alteration of wine labels. 26 U.S.C. § 5672: (Alcohol, Tobacco, and Other Excise Taxes) - Penalty for failure of brewers to comply with requirements and failure to keep records and file returns. 26 U.S.C. § 5674: (Alcohol, Tobacco, and Other Excise Taxes) - Penalty for unlawful production or removal of beer. 26 U.S.C. § 5675:(Alcohol, Tobacco, and Other Excise Taxes) - Penalty for intentional removal or defacement of brewers' marks and brand. 26 U.S.C. § 5681(a): (Alcohol, Tobacco, and Other Excise Taxes) - Failure to post required sign. 26 U.S.C. § 5681(b): (Alcohol, Tobacco, and Other Excise Taxes) - Posting or displaying false sign. 26 U.S.C. § 5681(c): (Alcohol, Tobacco, and Other Excise Taxes) - Premises where no sign is placed or kept. <br /><br />26 U.S.C. § 5683: (Alcohol, Tobacco, and Other Excise Taxes) - Penalty and forfeiture for removal of liquors under improper brands. 26 U.S.C. § 5687: (Alcohol, Tobacco, and Other Excise Taxes) - Penalty for offenses not specifically covered. 26 U.S.C. § 5762(b): (Tobacco) - Criminal penalties - other offenses. 26 U.S.C. § 7203: (Taxation) - Willful Failure to file return, supply information, or pay tax 26 U.S.C. § 7204: (Taxation) - Fraudulent statement or failure to make statement to employees. 26 U.S.C. § 7205: (Taxation) - Fraudulent withholding exemption certificate or failure to supply information. 26 U.S.C. § 7207: (Taxation) - Fraudulent returns, statements, or other documents. 26 U.S.C. § 7209: (Taxation) - Unauthorized use or sale of stamps. 26 U.S.C. § 7210: (Taxation) - Failure to obey summons. 26 U.S.C. § 7211: (Taxation) - False statements to purchasers or lessees relating to tax. 26 U.S.C. § 7212: (Taxation) - Attempts to interfere with administration of internal revenue laws (threats only) 26 U.S.C. § 7213(b): (Taxation) - Unauthorized disclosure of information. 26 U.S.C. § 7213A: (Taxation) - Unauthorized inspection of returns or return information 26 U.S.C. § 7214(b): (Taxation) - Interest of Internal Revenue officer or employee in tobacco or liquor production. 26 U.S.C. § 7215: (Taxation) - Offenses with respect to collected taxes 26 U.S.C. § 7216: (Taxation) - Disclosure or use of information by preparers of returns 26 U.S.C. § 7261: (Taxation) - Representation that retailers' excise tax is excluded from price of article. 26 U.S.C. § 7268: (Taxation) - Possession with intent to sell in fraud of law or to evade tax. 26 U.S.C. § 7271: (Taxation) - Penalties for offenses relating to stamps (taxation). 26 U.S.C. § 7272: (Taxation) - Penalty for failure to register. 26 U.S.C. § 7273: (Taxation) - Penalties for offenses relating to special taxes. 26 U.S.C. § 7342: (Taxation) - Penalty for refusal to permit entry or examination (taxation). <br /><br /><strong>Title 27</strong> <br /><br />276 U.S.C. § 207: (Intoxicating Liquors) - Penalties. 26 U.S.C. § 208(d): (Intoxicating Liquors) - Interlocking directorates. <br /><br /><strong>Title 29 </strong><br /><br />29 U.S.C. § 530: (Labor) - Deprivation of rights by violence; penalty. 29 U.S.C. § 1844: (Migrant and Seasonal Agricultural Worker Protection) - Criminal sanctions] <br /><br /><strong>Title 30</strong> <br /><br />30 U.S.C. § 820(d): (Mine Safety and Health) - Criminal penalties. <br /><br />30 U.S.C. § 820(e): (Mine Safety and Health) - Unauthorized advance notice of inspections. <br /><br /><strong>Title 33 </strong><br /><br />33 U.S.C. § 2072: (Navigation) - Violations of Inland Navigational Rules; civil penalties. 33 U.S.C. § 421: (Navigation) - Deposit of refuse, etc.; in Lake Michigan near Chicago. 33 U.S.C. § 443: (Navigation) - Permit for dumping;. penalty for taking or towing boat or scow without permit. 33 U.S.C. § 445: (Navigation) - Equipment and marking of boats or scows. 33 U.S.C. § 447: (Navigation) - Bribery of inspector; penalty. 33 U.S.C. § 448: (Navigation) - Return of permit; penalty for failure to return. 33 U.S.C. § 449: (Navigation) - Disposition of dredged matter; persons liable; penalty. 33 U.S.C. § 452: (Navigation) - Taking shellfish or otherwise interfering with navigation in New York Harbor channels; penalty. 33 U.S.C. § 938: (Longshoremen's and Harbor Workers Compensation) - Penalty for failure to secure payment of compensation. 33 U.S.C. § 1236: (Ports and Waterways Safety Program) - Penalties for violations of regulations. <br /><br /><strong>Title 36 </strong><br /><br />36 U.S.C. § 181: (Service Flags and lapel buttons) - approved by Secretary of Defense; license to manufacture and sell; penalties. <br /><br /><strong>Title 38 </strong><br /><br />38 U.S.C. § 1987: (National Service Life Insurance) - Penalties. <br /><br /><strong>Title 40 </strong><br /><br />40 U.S.C. § 193(h): (U.S. Capitol) - prosecution and punishment of offenses. 40 U.S.C. § 193(s): (Smithsonian Institution) - prosecution and punishment (if does not exceed $100). 40 U.S.C. § 332: (Hours of Labor on Public Works) - Violations; penalties. <br /><br /><strong>Title 42 </strong><br /><br />42 U.S.C. § 262: (Public Health) - Regulation of biological products, penalties for offenses. 42 U.S.C. § 271(a): (Public Health) - Penalties for violation of quarantine laws. 42 U.S.C. § 1307(a): (Social Security Act) - Penalty for fraud. 42 U.S.C. § 1713: (Compensation for injury, death, or detention of employees of contractors with the U.S. outside the U.S.) - Fraud; penalties. 42 U.S.C. § 1714: (Compensation for injury, death, or detention of employees of contractors with the U.S. outside the U.S.)-Legal services. 42 U.S.C. § 1974: (Federal Election Records) - penalty for violation. 42 U.S.C. § 1995: (Civil Rights) - Criminal contempt proceedings - penalties. <br /><br />42 U.S.C. § 2000e-10: (Equal Employment Opportunity) - Posting of notices; penal&es. 42 U.S.C. § 2000e-5: (Equal Employment Opportunity) - Enforcement provisions, penalties. 42 U.S.C. § 2000e-8: (Equal Employment Opportunity) - Prohibited disclosures; penalties. 42 U.S.C. § 2278(a): (Atomic Energy) - Trespass upon Commission installations. 42 U.S.C. § 2278b: (Atomic Energy Act) - Photographing, etc., of Commission Installations; penalty. <br /><br /><strong>Title 43 </strong><br /><br />43 U.S.C. § 315a: (Grazing Lands) - Protection, administration,. regulation, and improvement of district; rules and regulations; offenses. <br /><br />43 U.S.C. § 1064: (Unlawful inclosures or occupancy; obstructing settlement or transit) - violations of chapter; punishment. <br /><br /><strong>Title 45</strong> <br /><br />45 U.S.C. § 60: (Railroads, liability for injuries to employees) - penalty for suppression of voluntary information incident to accidents. <br /><br /><strong>Title 46</strong> <br /><br />46 U.S.C. § 59: (Shipping) - Penalty for neglect by officers. 46 U.S.C. § 163: (Shipping) - Regulations as TV boarding arriving vessels before inspection. 46 U.S.C. § 251: (Vessels of United States) - penalties (fish). 46 U.S.C. § 316: Towing U.S. vessels; fines and penalties. 46 U.S.C. § 319: (Shipping) - fine for trading without license 46 U.S.C. § 321: (Shipping) - penalty for illegal enrollment or license. 46 U.S.C. § 322: (Shipping) - penalty for malfeasance. 46 U.S.C. § 323: (Shipping) - penalty for forgery and alteration. 46 U.S.C. § 324: (Shipping) - penalty for obstructing officers. 46 U.S.C. § 355: (Passports and papers of vessels engaged in Foreign commerce) - penalty for failure. 46 U.S.C. § 738(c): (Shipping) - speed of vessel in ice region; penalty. 46 U.S.C. § 883a: (Merchant Marine Act) - penalty for failure to report. 46 U.S.C. § 3318(a): (Shipping) - Inspection Generally: penalties. 46 U.S.C. § 3502(e): (Shipping) - List or count of passengers. 46 U.S.C. § 6103: (Shipping) - Reporting Marine Casualties: Penalty. 46 U.S.C. § 8102: (Shipping) - Manning of Vessels: Watchmen. 46 U.S.C. § 8103(f): (Shipping) - Manning of Vessels: Citizenship and Naval Reserve requirements. 46 U.S.C. § 8702(e): (Shipping) - Unlicenced Personnel: Certain crew requirements. <br /><br />46 U.S.C. § 10321: (Shipping) - Foreign and Intercoastal Voyages: General penalty. 46 U.S.C. § 10711: (Shipping) - Effects of Deceased Seamen: Penalties. 46 U.S.C. § 11102: (Shipping) - Protection and Relief: Medicine chests. 46 U.S.C. § 11104: (Shipping) - Protection and Relief: Destitute seamen. <br /><br /><strong>Title 47 </strong><br /><br />47 U.S.C. § 22: (Submarine Cable) - negligent injury to; punishment. 47 U.S.C. § 24: (Submarine Cable) - vessels laying cables; signals; avoidance of buoys. 47 U.S.C. § 25: (Submarine Cable) - fishing vessels; duty to keep nets from. cables. 47 U.S.C. § 502: (Wire and radio) - violation of rules and regulations. 47 U.S.C. § 507: (Wire and radio) - violation of Great Lakes Agreement. <br /><br /><strong>Title 49 </strong><br /><br />49 U.S.C. § 11901: (Rail) - General civil penalties. 49 U.S.C. § 11904: (Rail) - Unlawful disclosure of information. 49 U.S.C. § 46316: (Aviation Programs) - General criminal penalty when specific penalty not provided. 49 U.S.C. § 47306: (International Facilities) Criminal Penalty. <br /><br /><strong>Title 50</strong> <br /><br />Append. 473: (Department of Defense) - regulations governing liquor, sales; penalties. Append. 530: Eviction of distress during military service; stay; penalty for noncompliance. Append. 535: (Soldiers and Sailors' Civil Relief Act) - Protection of assignor of life insurance policy; enforcement of storage liens; penalties. <br /><br /><a href="http://www.dallascriminallawyer.com"target="_">David Finn</a>Dallas Federal Criminal Defense Attorney - David Finnhttp://www.blogger.com/profile/01206855728721121354noreply@blogger.comtag:blogger.com,1999:blog-7539741.post-6058435894714463172008-04-10T17:01:00.000-07:002008-04-10T17:04:26.983-07:00Texas Federal/State Comparison: George Milner,III., Milner & Finn, Dallas, Texas<strong>CRIMINAL PRACTICE IN TEXAS<br />STATE AND U.S. DISTRICT COURTS - A COMPARISON</strong><br /><br />by: George R. Milner, III<br />Milner & Finn<br />Dallas, Texas<br />www.milnerfinn.com<br /><br /><br />I. INTRODUCTION<br /><br />Most attorneys will begin their careers practicing in either state or federal court, but<br /><br />rarely both. You might begin as a state prosecutor or public defender, and then become a<br /><br />private defense attorney. Alternatively, you might have begun as a federal prosecutor,<br /><br />public defender or clerking for a district judge. You become immersed in one system to the<br /><br />virtual exclusion of the other. As your practice changes, you start practicing in the other<br /><br />court system and wonder whether the differences are significant. “Hey, it’s the same<br /><br />country with the same federal constitution. How different could they be?” The answer is,<br /><br />plenty. And, the differences are not trivial.<br /><br />This article will analyze and compare federal criminal practice with Texas state<br /><br />criminal practice. It is an overview, and is not intended to be an in-depth analysis. It is<br /><br />designed to be a primer for attorneys who are well versed in one system and are beginning<br /><br />a practice in the other. There are many distinctions between practice in federal and state<br /><br />court. But, the trial procedures are relatively similar. Generally, practice in the federal courts <br /><br />tend to be more formal, whereas practice in state court may be less formal. This will obviously <br /><br />vary depending upon the particular judge, whether it be state or federal court. The federal<br /><br />constitutional principals are obviously identical.<br /><br /><br /> <br />State representation frequently begins with the arrest of your client. The client then hires an attorney to represent him or her in the anticipated criminal case. A federal criminal action could begin the same way. However, it is much more common that the client, known literally as a target, is aware of an on-going criminal investigation. The client should, and frequently does, hire an attorney during this investigative process. If the client has the slightest level of intelligence, he will immediately retain counsel upon learning of the existence of the investigation. Generally speaking, in the state system, the government arrests first, and then prepares a case for trial. In the federal system, the government prepares its case first and then arrests. Representation of a client in a federal criminal case is well beyond the scope of this article. This article is intended to only address the pragmatic distinctions between state and federal practice.<br />II. PRE-TRIAL ISSUES<br /><br />A. Arrest<br /><br />1. Texas Law<br /><br /> Texas law imposes no constitutional requirement to affect an arrest. Hulit v. State, 982 S.W 2d 431 (Tex. Crim. App. 1998). Tex. C. Crim P., Art. 14 provides for various situations where a peace office may or shall make a warrantless arrest. Article 14 further provides authority for a private citizen to affect a warrantless arrest.<br /> An individual arrested in Texas is brought before a magistrate who will arraign the accused and set bail. Tex. C. Crim. P., Art. 14.06. This is almost always done in an ex parte manner with information coming almost exclusively from the police. Bail will usually be set at some amount which may be posted in cash or by a bonding company. The bail is posted with the sheriff of the county where the client has been arrested. Or, if the client is arrested pursuant to an out of county warrant, bail may be posted with the sheriff of the county where the warrant has been issued.<br /> 2. Federal Law<br /> A federal arrest may, likewise, be made with or without a warrant. However, there is no statutory provision for a warrantless arrest. An arrest must simply be supported by probable cause. Draper v. United States, 385 U.S. 307 (1959). Most federal arrests are, however, made pursuant to a warrant. Warrantless arrests will be substantially more common in state court prosecutions.<br /> The bail process in federal court is done pursuant to the Bail Reform Act of 1984. The accused is brought before a federal magistrate for an initial appearance. Both the government and citizen may present evidence relevant to bail. However, the court will review a pre-trial services report prepared by the probation department. This report is confidential as a matter of law. 18 U.S.C. § 3153 (c)(1). It is essentially a short background and social history report regarding your client.<br /> Once the judge has considered the pre-trial services report, any evidence presented, and argument of counsel, the magistrate will release the defendant, set bail or detain the defendant. 18 U.S.C. § 3142 (a). Unlike state court, there is a preference for personal recognizance bonds. It is generally the case that your client will be released on his own recognizance or not at all. Again, unlike state court, denial of bail is quite common.<br /> The Eighth Amendment notwithstanding, there is a good chance your client will begin serving his sentence while awaiting his or her trial. See 18 U.S.C. § 3142 (d). Should the magistrate detain your client, you may appeal this to the district court. The procedure is to file a motion to Revoke Detention Order. United States v. Ruben Rueben, 974 F. 2d 580, 585 ( 5th Cir. 1992) Cert. Denied, 507 U.S. 940 (1993). The district court’s review of the magistrate’s order is conducted de novo.<br /> Counsel is well advised to prepare the client for the pre-trial services interview with the officer. The client should dress appropriately and be familiar with the process. The client must fully understand that while he or she may refuse to answer particular questions, the client may not provide false information. Counsel must use sound judgment in determining what information to provide the officer. If the offense is a financial crime, you may not wish to disclose personal financial information to the officer. Although the pre-trial services report is confidential, a copy will be given to the prosecutor. It is reasonable to assume he or she will read it and take notes. Alternatively, if you provide very limited information, the magistrate may not be able to determine your client is not a flight risk. Counsel must use sound judgment.<br />B. Indictment<br /> 1. Texas Law<br /><br /> An indictment is a written statement of a grand jury accusing a person of a crime. Tex. C. <br /><br />Crim. P., Art. 21.01. Although there are some procedural requirements, the offense charged must <br /><br />be set forth in plain and intelligible words. See Tex. C. Crim. P., Art. 21.02. Everything <br /><br />necessary to be proved should be stated in the indictment. Tex. C. Crim. P., Art. 21.03. However, <br /><br />the state is not required to plead evidentiary matters, and generally need only plead the elements <br /><br />constituting the offense. Generally, if the indictment tracks the relevant statute, it will be <br /><br />sufficient. However, the indictment must be sufficiently certain such that it will enable the <br /><br />accused to plead the judgment in bar of any subsequent prosecution of the same offense. Tex. C. <br /><br />Crim. P., Art. 21.04.<br /> <br /> Texas law provides that a grand jury shall be comprised of twelve grand jurors and <br /><br />two alternates. Tex. C. Crim. P., Art. 19.18. A quorum is comprised of nine grand jurors. Tex. C. <br /><br />Crim. P., Art. 19.40. Grand jury proceedings shall be secret. Tex. C. Crim. P., Art. 20.02. <br /><br />Although the concept of the grand jury might be similar under Texas law as compared with <br /><br />federal law, there is vast difference in function. A grand jury in Texas is principally used to <br /><br />screen criminal accusations. Cases are presented and the grand jurors deliberate and vote whether <br /><br />to indict. It is only required that nine jurors vote affirmatively in order to return an indictment. <br /><br />Tex.C. Crim. P., Art. 20.19. Generally speaking, the state grand jury does not pro-actively <br /><br />investigate criminal matters, although it has such authority. Cases are presented to the <br /><br />grand jury by the relevant district attorney, and the grand jury votes whether to return an <br /><br />indictment. Further, Texas law does not proscribe communication with the grand jury by defense <br /><br />counsel. This is commonly done by delivering written information through, and with the consent <br /><br />of, the prosecutor.<br /><br /> 2. Federal Law<br /><br /> A federal indictment may be similar to a state indictment, but it’s usually not. It must contain the essential facts constituting the offense charged. Fed. R. Crim. P. 7 ( c ). The indictment must also state the specific statute, rule, regulation or other provision of law which the defendant is accused of violating. Id. It is quite common for a prosecutor to write an indictment which describes the alleged criminal conduct in a lengthy narrative form. And, as might be expected, it is common for the prosecutor to tell the story in a light most favorable to the government. The court may, upon defendant’s motion, strike surplusage contained in the indictment. Fed. R. Crim. P. 7 (d). And, it is important to carefully examine the indictment because, unlike state court, the indictment goes into the jury room during deliberations.<br /> A federal grand jury is comprised of 16 to 23 members. Fed. R. Crim. P. 6 (a). An indictment required only the concurrence of at least twelve members of the grand jury. Fed. R. Crim. P. 6 (f). The federal grand jury is not a screening mechanism for criminal prosecutions. On the contrary, the federal grand jury is a weapon of the prosecutor. A federal grand jury possesses extremely broad investigative power. A federal grand jury may investigate merely upon suspicion that the law is being violated, or even just because it wants assurance that it is not. United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991). Although the grand jury was at one time designed to protect the individual from the government, those days have clearly passed. The grand jury has the power to subpoena documents and witnesses. Federal prosecutors tend to thoroughly investigate their cases through sworn grand jury testimony and documents obtained pursuant to subpoena. And, contrary to Texas state law, the direct submission of any written materials or documents by the defense to a federal grand jury is, itself, a federal criminal offense. See 18 U.S.C. § 1504.<br />C. Speedy Trial<br /><br /> 1. Texas Law<br /> <br /> There is no valid statutory act requiring a right to a speedy trial. Meshel v. State, <br /><br />739 S.W. 2d 246 (Tex. Crim. App. 1987). Texas law simply applies the Sixth Amendment <br /><br />standard as according to Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 <br /><br />(1972). There is no bright line rule and no inflexible test. However, the court must consider the <br /><br />length of delay, the reason for delay, assertion of the right to a speedy trial by the defendant, and <br /><br />any prejudice to the defendant due to the delay.<br /> <br /> 2. Federal Law<br /><br /> Federal law provides a statutory speedy trial right. See 18 U.S.C. § 3161. This <br /><br />statutory speedy trial right commences upon arrest of the accused for a federal, not state, offense. <br /><br />United States v. Adams, 694 F. 2d 200 (9th Cir 1982). The indictment must be returned within 30 <br /><br />days of arrest. Trial must commence within 70 days of either indictment or initial appearance,<br /><br />whichever occurred later. No trial may commence prior to 30 days from indictment or initial <br /><br />appearance. The court has authority to dismiss, either with or without prejudice, an indictment <br /><br />based upon violations of this statutory speedy trial right. But, there are a number of enumerated <br /><br />factors which the court must consider before dismissing an indictment with prejudice. These<br /><br />include the seriousness of the offense, the facts and circumstances which lead to dismissal, the <br /><br />impact of re-prosecution on administration of the speedy trial right and on the administration of <br /><br />justice. 18 U.S.C. § 3161 (a)(1).<br /><br />The statute provides for the exclusion of time which is due to a number of enumerated <br /><br />factors which the court must consider. These include: 1.) a competency examination of the defendant; 2.) times during which the defendant is mentally or physically incompetent; 3.) time during which the defendant is in drug treatment with a prosecution deferral ; 4.) any time during which an inter-lockatory appeal is proceeding; 5.) pending pre-trial motions; 6.) time caused by transferring the case or removal of a defendant from another district; 7.) time during which the court considers any plea agreement; 8.) time during which prosecution is deferred 9.) time during which the defendant or an essential witness is absent; 10.) A “reasonable period” of delay when the defendant is joined with co-defendants whose speedy trial has not run; 11.) time during which “ the ends of justice ...outweighs the best interest of the public and the defendant in a speedy trial ” because of (a) an unusual or complex case, or (b) because of continuity of counsel for the government or defendant. 18 U.S.C. 3161 (h).It is important to assume in federal court that you may not be able to obtain a continuance of a trial. This is true even if the government does not oppose the defendant’s motion for continuance. The trial court is constrained by the Speedy Trial Act. It is important that you review the statutory provisions thoroughly and address them in your motion for continuance. You should provide supporting material to justify your factual and legal arguments for a continuance. And, at the same time, you must be prepared to try the case on the scheduled trial date.<br /> D. Joinder <br /> 1. Texas Law<br /> <br /> Texas law provides that a defendant may be prosecuted in a single criminal transaction <br /><br />for all offenses rising out of the same criminal episode. Tex. C. Crim. P., Art. 3.02.<br /> <br /> 2. Federal Law<br /><br /> Federal law provides for broader joinder of offenses. An indictment or information may <br /><br />charge a defendant with two or more offenses, whether felonies or misdemeanors or both, if the <br /><br />offenses are of the same or similar character, or are based on the same act or transaction, or are <br /><br />connected with or constitute parts of a common scheme or plan. Fed. R. Crim. P. 8. Rule 8 is <br /><br />broadly construed in favor of initial joinder. United States v. Davis, 752 F. 2d 963 (5th Cir. <br /><br />1985). Essentially, joinder is proper if the offenses occurred over a relatively short time period <br /><br />and share some evidentiary matters. United States v. Lueben, 812 F. 2d 179 (9th Cir. 1987).<br /><br />E. Severance<br /><br /> 1. Texas Law<br /> <br /> Texas law provides a broad right of severance. Generally speaking, a defendant <br /><br />has an absolute right to a severance of offenses which have been consolidated or joined for trial. <br /><br />Tex. Penal C. §.304. However, there is a potential catch. Texas law generally provides that if a <br /><br />defendant is convicted of more than one criminal offense in one trial proceeding, the sentences<br /><br />generally must run concurrently, as opposed to consecutively. Tex. Penal C.§ 3.03 (a). But, if a <br /><br />defendant elects to sever offenses which have been joined for trial, the court in its discretion may <br /><br />order the sentences to run concurrently or consecutively. Tex. Penal C. § 3.04 (b). Counsel must <br /><br />give grave consideration before asking for a severance.<br /><br /> There are other limitations upon the broad right of severance under Texas law. <br /><br />Generally, sex offenses may not be severed. The specific offenses are listed in Tex. Penal C. <br /><br />§ 3.03 (a). If the relevant offenses are enumerated in § 3.03 (b), the court, before ordering a <br /><br />severance, must determine that either the state or the defendant would be unfairly prejudiced<br /><br />by a joinder of the offenses. Tex. Penal C. § 3.04 (c). <br /><br /> 2. Federal Law<br /><br /> Federal law provides a limited right to a severance. If joinder of offenses or <br /><br />defendants appears to prejudice the government or a defendant, the court may sever the <br /><br />defendants’ trials, order separate trials as to separate counts, or provide any other relief that <br /><br />justice requires. Fed. R. Crim. P. 14. Pursuant to Fed. R. Crim. P. 12 (b) (5), a motion to sever <br /><br />must be made prior to trial. Personal observation suggests federal judges do not enjoy trials.<br /> <br />Likewise, federal judges appear to enjoy multiple trials substantially less. Accordingly, unless <br /><br />you can make a firm showing of overwhelming prejudice, you should expect to have all criminal <br /><br />offenses and defendants tried together in one proceeding.<br /><br />F. Discovery<br /><br /> 1. Texas Law<br /><br /> Discovery in Texas state courts is generally covered by Chapter 39 of the Code of <br /><br />Criminal Procedure. A state court defendant’s right to discovery is, in most situations, provided <br /><br />by Tex. C. Crim. P., Art. 39.14. The defendant in state court, generally has right to examine <br /><br />physical evidence. The defendant has no right to discover witness statements, until after the <br /><br />witness has testified. See Tex. C. Crim. P., Art. 39.14 (a); Tex. R. Evid. 615 (a).<br /><br /> Texas law also provides both the state and defendant a right to notice of expert <br /><br />witnesses. See Tex. C. Crim. P. Art.39.14 (b).The court upon motion of either party, may order a <br /><br />party or parties to disclose the name and address of each witness the party may use to present <br /><br />evidence pursuant to Texas Rules of Evidence 702, 703, and 705. Texas law also provides a<br /><br />defendant reasonable notice upon request, not a motion, to the state’s intention to offer evidence <br /><br />of extraneous wrongs, crimes or bad acts, either at the guilty/not guilty phase or the punishment <br /><br />phase. See Tex. R. Evid. 404 (b) and Tex. C. Crim. P., Art. 37.07.<br /> <br /> 2. Federal Law<br /><br /> Discovery in federal court is pursuant to Fed. R. Crim. P., 16. However, it is <br /><br />important to completely familiarize yourself with the relevant judge’s pre-trial order. Frequently, <br /><br />a judge will enter a pre-trial order which addresses discovery issues. Filing a motion for <br /><br />discovery might advise the court you have not read the court’s order. If there is no discovery <br /><br />order issued by the court, the right to discovery is triggered by defense motion. However,<br /><br />counsel should be aware this will trigger reciprocal discovery requirements. Generally, the <br /><br />defense is entitled to the defendant’s written or oral statements, the defendant’s prior record, any <br /><br />documents and objects which the government either possesses or controls, if they are material to <br /><br />preparing the defense, or the government intends to use them in its case in chief at trial, or the <br /><br />item was obtained or belongs to the defendant; the reports of examinations and tests; expert <br /><br />witnesses. Fed. R. Crim. P., 16. The defense is not entitled to witness statements, except as <br /><br />provided by 18 U. S. C. § 3500. And, the defense is not entitled to grand jury transcripts, except <br /><br />as provided by Fed. R. Crim. P. 6, 12 (h), 16 (a)(1), and 26.2.<br /><br />G. Plea Negotiation<br /><br /> 1. Texas Law<br /><br /> Plea negotiations in Texas courts are incredibly different than in federal court. At <br /><br />the outset, plea negotiation in state court is almost universally conducted post indictment. <br /><br />Additionally, plea negotiations in Texas courts are quite similar to contractual negotiations. The <br /><br />state and defense may, and typically do, negotiate the precise sentence which the defendant will <br /><br />receive based upon his plea of guilty or no contest. The court is not bound by the agreement. <br /><br />Tex. C. Crim. P., Art. 26.13. However, the defendant has the right to withdraw his plea if the <br /><br />court advises that it will not follow the agreement between the parties. Tex. C. Crim. P., Art. <br /><br />26.13. This fact alone makes state plea bargaining vastly different than federal plea bargaining. <br /><br />And, in the vast majority of the cases, the trial court will follow an agreement between the state <br /><br />and the defendant.<br /><br /> 2. Federal Law<br /><br /> On the other hand, plea negotiations are frequently done prior to indictment in <br /><br />federal representations. If a satisfactory plea agreement is going to be reached in federal court, it <br /><br />generally must be consummated prior to indictment. An indictment reduces the number of <br /><br />sentencing options. At the outset, counsel may negotiate a “charge bargain.” This means defense<br /><br />counsel negotiates an agreement with the government to only charge the defendant with a <br /><br />specific criminal offense. Generally, this is done in order to charge the defendant with a criminal <br /><br />offense which has a lower statutory maximum punishment than other offenses which could be <br /><br />charged by the government. However, charge bargaining is not as readily available as it once <br /><br />was. Former Attorney General John Ashcroft directed prosecutors to charge defendants with the <br /><br />most severe, readily provable offense. Charge bargaining, accordingly, may be limited <br /><br />depending upon the particular prosecutor’s adherence to this directive. This directive was originally set forth in the Ashcroft Sentencing Memorandum, and this was reaffirmed in the Comey Sentencing Memorandum issued in 2005.<br /> Contrary to Texas law, there is rarely an agreement to a specific sentence in <br /><br />federal court. Federal sentences are determined by giving extreme deference to the now <br /><br />“advisory” United States Sentencing Guidelines. See United States v. Booker, 543 U.S. 220, 125 <br /><br />S. Ct. 738, 160 L. Ed. 2d 621 (2005). Essentially, the defendant will plead guilty to one or <br /> <br />more criminal offenses. The court will advise the defendant that sentencing will be determined <br /><br />by consideration of the “advisory” United States Sentencing Guidelines. The court must also <br /><br />consider all matters relevant to sentencing pursuant to 18 U.S.C. § 3553 (a). The defendant will <br /><br />be advised that except for the statutory maximum, no one can determine what the specific <br /><br />sentence will be. The defendant will be advised that if the sentence is substantially higher than <br /><br />the defendant expected, he will not be able to withdraw his plea.<br /><br /> Your client will then meet with a probation officer for a pre-sentence interview. <br /><br />The probation officer will do a thorough background report on the client. The probation officer <br /><br />will also communicate with the prosecutor and relevant enforcement agents. The probation <br /><br />officer will then prepare a pre-sentence report which will advise the court of the relevant <br /><br />sentencing guidelines and will provide the court with a specific guideline range of punishment. <br /><br />Both counsel for the government and the defendant will have the right to object to this report. In <br /><br />the end, the judge will make the final decision as to which guideline range is applicable. <br /><br />Although not binding, a sentence in his range will be deemed “reasonable.” The court may then <br /><br />consider other matters, if applicable. Then, the court will sentence the defendant.<br /><br /> It is important to understand the probation officer has been well trained to <br /><br />understand every conceivable way to increase, not decrease, the guideline range. The client <br /><br />should be made to understand this. You must go to the interview with your client. The client <br /><br />should dress appropriately. If there are matters outside the guidelines which may affect <br /><br />sentencing, you must start laying the groundwork for these at the pre-sentence interview. If your <br /><br />client has a substance abuse issue, he or she may qualify for the Comprehensive Residential <br /><br />Drug Abuse Program. See 18 U.S.C. § 3621 (e). You should provide information to the probation <br /><br />officer which demonstrates a genuine substance abuse problem. Ultimately, your client may <br /><br />shave a year off his sentence for successful completion of the program.<br /><br />H. Pre-trial Motions<br /><br /> 1. Texas Law<br /><br /> The filing and urging of pre-trial motions in state court is reasonably similar to the <br /><br />process in federal court. Whether you are in state or federal court, it is imperative that you be <br /><br />familiar with the particular court’s scheduling, orders, and/or procedures. Many courts, both in <br /><br />state and federal court, have standing pre-trial orders. Many state courts will have an informal <br /><br />process, and will not require that pre-trial motions be filed and/or scheduled by any particular <br /><br />day. Some state courts will schedule a pre-trial hearing. If there is a pre-trial hearing date, and <br /><br />the court has not ordered that motions be filed by a particular day, then all pre-trial motions <br /><br />should be filed at least seven days prior to that date. Tex. C. Crim. P., Art. 28.10 § 2. Although <br /><br />the practice should be discouraged, it is acceptable to file boiler plate motions in many state <br /><br />cases. A state court motion should be tailored to the case. And, although not required, it may be <br /><br />helpful to file a brief in support of your motion.<br /><br /> 2. Federal Law<br /><br /> The substantial difference in federal court is that the process will be somewhat <br /><br />more formal. You will almost always be given a scheduling order imposing a deadline or the <br /><br />filing of pre-trial motions. It is common to never afford the defendant a live hearing on the <br /><br />motions. And, unlike state court, boiler plate motions should not be used.<br /><br /> The practice in federal court is more time consuming. All pre-trial motions should <br /><br />be tailored specifically to the relevant facts and legal issues raised by the particular case. <br /><br />Additionally, counsel should carefully review the local rules of the district. Many pre-trial <br /><br />motions require submission of a brief or memorandum of law in support of a motion. Counsel <br /><br />should understand the pre-trial motion and supporting brief may be the only argument you will<br /><br />make to the court. Never assume that you will be permitted a live hearing or oral argument. If <br /><br />factual support is necessary, you should attach supporting documents and/or affidavits.<br /><br /> Additionally, most federal districts require the moving party to consult with the <br /><br />attorney for the opposing side. This means all pre-trial motions must be discussed with the <br /><br />opposing attorney. You are generally required to ask whether the opposing attorney agrees to the <br /><br />granting of the motion. You will then attach a “Certificate of Conference” to your pre-trial <br /><br />motion. The Certificate of Conference will verify that you have discussed the motion with<br /><br />the opposing attorney, and state whether the opposing attorney agrees to or opposes the motion.<br /><br /> There is another fundamental distinction between state court and federal court. Unlike <br /><br />state court, motions filed in federal court will be thoroughly read. If they are not completely read <br /><br />by the judge, they certainly will be read carefully by the clerks. You should proof read the <br /><br />motion and supporting memoranda or brief.<br /><br />I. Change of Venue<br /><br /> 1. Texas Law<br /><br /> If the judge determines either party cannot receive a fair and impartial trial in the county, <br /><br />the judge may sua sponte order venue transferred to any county within the district. Tex. C. Crim. <br /><br />P., Art. 31.01. The court must provide notice to the parties and conduct a hearing on the issue. Id.<br /><br />The state may move for a change of venue for existing influences favoring the accused, general <br /><br />lawlessness in the county, or potential risk to the lives of the defendant or a witness. Tex. C. <br /><br />Crim. P., Art. 31.02. The defendant may move to change venue by filing a written motion along <br /><br />with the defendant’s affidavit and the affidavits of at least two credible persons who are residents <br /><br />of the county where the prosecution is instituted. Tex. C. Crim. P., Art. 31.03. The affidavits <br /><br />must show either there is so great a prejudice against the defendant in the county that he or she <br /><br />cannot get a fair trial, or there is a dangerous combination against the defendant instigated by <br /><br />influential persons such that he cannot expect a fair trial. Id.<br /><br /> Texas law also permits a forum non conveniens change of venue. This may be done upon <br /><br />motion of the defendant for convenience of parties and witnesses. But, such a motion is <br /><br />discretionary and requires the consent of the state. Tex. C. Crim. P., Art. 31.03 (b).<br /><br /> 2. Federal Law<br /><br /> Federal law is more restrictive. A transfer of venue based upon prejudice must be made <br /><br />upon the defendant’s motion. Fed. C. Crim. P. 21 (a). It cannot be ordered sua sponte or on <br /><br />motion by the government. Id. Federal law also permits a forum non conveniens change of <br /><br />venue. See Fed. R. Crim. P. 21 (b). The state and federal standards are essentially the same, <br /><br />except the federal rule does not require consent of the government. See Id.<br /><br />III. FOURTH AMENDMENT ISSUES<br /> <br /> Arguably, Texas provides greater protection from unreasonable search and seizure <br /><br />than the Fourth Amendment. See Heitman v. State, 815 S.W.2d 681(Tex. Crim. App. 1991). In <br /><br />any given case, counsel should thoroughly research whether evidence was obtained in violation <br /><br />of either the Texas or U.S. Constitutions. However, there are some general distinctions between <br /><br />Texas law and U.S. law in the area of search and seizure. Additionally, there is significant and <br /><br />pervasive distinction between state and federal court in this area. State law generally permits the <br /><br />defendant to argue the exclusionary rule to the jury. If a fact is raised, the defendant can request <br /><br />the jury be instructed to not consider evidence if the state fails to prove beyond a reasonable <br /><br />doubt the evidence was lawfully obtained.<br /><br /> Federal law, on the other hand, does not permit this. Application of the exclusionary rule <br /><br />is purely a question of law for the court. The jury in a federal trial will not be instructed to <br /><br />disregard any evidence admitted based upon a Fourth Amendment violation.<br /><br />A. Good Faith<br /><br /> If a search warrant is found to be defective, Texas does not permit a good faith exception <br /><br />to the exclusionary rule. See Tex. C. Crim. P., Art. 38.23 (b). A search warrant affidavit must <br /><br />provide probable cause. Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990). On the other <br /><br />hand, federal law permits a good faith exception to the exclusionary rule. See United States v. <br /><br />Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).<br /><br />B. Inevitable Discovery<br /><br /> In federal court, there is an inevitable discovery doctrine permitting an exception to the <br /><br />exclusionary rule. See Nix v. Williams 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). <br /><br />However, Texas law does not permit inevitable discovery as an exception to the exclusionary <br /><br />rule. See Garcia v. State, 829 S. W. 2d 796 (Tex. Crim App. 1992).; State v. Daugherty, 931 <br /><br />S.W. 2d 268 (Tex. Crim App. 1996) (Reh’g. Denied).<br /><br />C. Illegal Conduct by Private Citizen<br /><br /> The exclusionary rule in Texas courts applies to the conduct of government agents and <br /><br />private citizens. See Tex. C. Crim P., Art. 38.23 State v. Johnson, 939 S. W. 2d 586 (Tex. Crim <br /><br />App. 1996). The exclusionary rule in federal court does not apply to the conduct of private <br /><br />citizens.<br /><br />D. Consent<br /><br /> The burden on the government is different when consent to search is at issue. In Texas <br /><br />courts, the state must prove consent by clear and convincing evidence. State v. Ibarra, 953 <br /><br />S.W.2d 242 (Tex. Crim App. 1997). However, in federal courts, the government must only prove <br /><br />consent by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 94 S. Ct. <br /><br />988, 39 L. Ed. 2d 242 (1974).<br /><br />IV. CONFESSIONS<br /> <br /> 1. Texas Law<br /><br /> Texas law provides that the admissibility of confessions is controlled by the Fifth <br /><br />Amendment and Tex. C. Crim P., Art. 38.22. Generally speaking, in order to admit a statement <br /><br />resulting from custodial interrogation, the state must prove the statement was voluntarily made, <br /><br />the defendant was advised of his or her rights pursuant to Art. 38.22, and the statement was <br /><br />either written or electronically recorded. See Tex. C. Crim. P., Art. 38.22. Counsel should <br /><br />thoroughly review 38.22 as there are other potential requirements and exceptions which might <br /><br />apply. <br /><br /> The defendant may initially challenge the voluntariness of any statement outside the <br /><br />jury’s presence by objecting or requesting such a hearing. See Jackson v. Denno, 378 U.S. 368, <br /><br />84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The defendant must initially produce some evidence <br /><br />which controverts the presumption of proper police conduct, thus shifting the burden to the state. <br /><br />The state then bears the burden of proving the confession was voluntarily given. Munoz v. State, <br /><br />851 S.W.2d 238 (Tex. Crim. App. 1993); (overruled on other grounds). Dunn v. State, 721 <br /><br />S.W.2d 325 (Tex. Crim. App. 1986). The judge must determine the confession to be voluntary <br /><br />before it may be admitted before the jury. Implicit in these cases is the conclusion the judge must <br /><br />determine that a rational trier of fact could find beyond a reasonable doubt that the confession <br /><br />was voluntary.<br /><br /> A significant distinction is that once you lose the Jackson v. Denno hearing (and you <br /><br />will), Texas law affords the defendant the right to challenge the confession in front of the jury. <br /><br />Tex. C. Crim. P., Art. 38.22 § 6. The defendant may present evidence regarding the voluntariness <br /><br />of the confession. And, the jury will be instructed that unless it believes beyond a reasonable <br /><br />doubt that the confession was voluntarily given, the jury may not consider it for any purpose <br /><br />whatsoever. Id. Moreover, the exclusionary instruction directs the jury to not consider any <br /><br />evidence which was derived from the statement by the accused.<br /><br /> 2. Federal Law<br /><br /> On the other hand, there is no such requirement for a confession to be admitted in federal <br /><br />court. The issue to be determined by the court is whether the statement was freely and <br /><br />voluntarily made, and whether the agents complied with Miranda. Generally speaking, if the <br /><br />agents complied with Miranda and did not beat the defendant senseless, a court will usually find <br /><br />the statement to have been made freely and voluntarily. And, unlike state court, the government <br /><br />must prove voluntariness only by a preponderance of the evidence. Colorado v. Connelly, 479 <br /><br />U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). But, as is true in state court, the defendant is <br /><br />entitled to a hearing outside the jury’s presence to determine whether the confession was <br /><br />voluntary. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).<br /><br /><br /><br /><br /><br />V. DOUBLE JEAPARDY<br /><br /> 1. Texas Law<br /><br /> Jeopardy attaches in a jury trial when the jury is sworn. State v. Proctor, 841 S.W. 2d 1 (Tex. Crim. App. 1991). In a trial without a jury, jeopardy attaches when the accused pleads to the charging instrument. State v. Torres, 805 S.W. 2d 418 (Tex. Crim. App. 1991). This holding is not based upon the Fifth Amendment, but is required by Tex. Const., Art. I § 14.<br /> 2. Federal Law<br /><br /> The rule is the same in a jury trial. Jeopardy attaches when the jury is impaneled and sworn. Donum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963). However, the rule is different in a bench trial. Jeopardy attaches in a trial to the court when the court begins to hear evidence. Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055, 1062, 43 L. Ed. 2d 265 (1975). The Supreme Court later, in dicta, interpreted this to mean jeopardy attaches when the first witness is sworn. See Crist v. Bretz, 437 U.S. 28, 37, 98 S. Ct. 2156, 2162 n 15, 57 L. Ed. 2d 24 (1978).<br />VI. DISCLOSURE OF DEFENSES<br /><br />A. Alibi<br /><br /> 1. Texas Law<br /><br /> Texas law does not regard alibi as a defense. This is simply a factual scenario which is <br /><br />inconsistent with the state’s case. An alibi is simply offered to rebut the state’s case. There is no <br /><br />requirement that the defendant provide notice to the state of his or her intention to assert an alibi.<br /><br /> 2. Federal Law<br /><br /> However, the defendant in federal court may have to provide notice to the government of <br /><br />the defendant’s intention to assert alibi as a defense. See Fed. R. Crim. P. 12.1. The government <br /><br />must request said notice in writing. The request must state the time, date, and place of the alleged <br /><br />offense. Fed. R. Crim. P. 12.1 (a)(1). Upon such request, the defendant must, within 10 days of <br /><br />the request or any time designated by the court, serve written notice on the government of any <br /><br />intended alibi defense. The defendant’s notice must state each specific place where the defendant <br /><br />claims to have been and the name, address, and telephone number of each alibi witness on whom <br /><br />the defendant will rely. Fed. R. Crim P. 12.1 (a)(2). The defendant may then request information <br /><br />pertaining to witnesses who establish the defendant’s presence at the scene of the alleged offense <br /><br />and government rebuttal witnesses. If either party fails to comply, the court may exclude <br /><br />testimony of undisclosed witnesses.<br /><br />B. Insanity<br /><br /> 1. Texas Law<br /><br /> Insanity is an affirmative defense under Texas law. Tex. C. Crim. P., Art. 46C.051.<br /><br />The defendant must provide notice at least twenty days prior to trial, unless the trial Court <br /><br />schedules a pre-trial hearing more than twenty days prior to trial. Tex. C. Crim. P., Art. 46C.051.<br /><br />Should the court schedule a pre-trial hearing more than twenty days in advance of trial, the <br /><br />defendant must provide notice at the pre-trial hearing. If the defendant fails to provide the <br /><br />required notice, the court will not admit evidence on the insanity defense unless the court finds <br /><br />good cause exists for the failure to give notice. Tex. C. Crim. P., Art. 46C.052.<br /><br /> 2. Federal Law<br /><br /> A defendant in federal court must provide written notice to the government of his<br /><br />intention to assert an insanity defense. This notice must be provided at the time pre-trial<br /><br />motions are filed, or at any time designated by the court. Fed. R. Crim P. 12.2 (a). The<br /><br />government may then compel, pursuant to Rule 12.2 (c), the defendant to submit to a<br /><br />competency examination under 18 U.S.C. § 4241 (statute pertaining to determination of<br /><br />mental competency to stand trial).<br /><br />C. Duress<br /><br /> 1. Texas Law<br /><br /> Texas law provides that duress is an affirmative defense which the defendant must prove <br /><br />by a preponderance of the evidence. Charles v. State, 636 S.W. 2d 5, 6 (Tex. App. Dallas 1992) <br /><br />(pet. ref’d).<br /><br /> 2. Federal Law<br /><br /> The federal law is substantially different. The initial burden of production rests upon the <br /><br />defendant. The defendant must make a prima facie showing of duress. However, once that is <br /><br />done the burden shifts to the government to affirmatively disprove duress beyond a reasonable <br /><br />doubt. United States v. Falcon, 766 F.2d 1469, 1477 (10th Cir. 1985).<br /><br />VII. TRIAL<br /><br />A. Jury Selection<br /><br /> 1. Texas Law<br /><br /> Each side is permitted ten peremptory challenges in a non-capital felony trial in<br /><br />Texas. Tex. C. Crim P., Art. 35.15 (b). Both parties are entitled to three peremptory<br /><br />challenges in a misdemeanor case tried in a county court. Tex. C. Crim. P., Art. 35.15<br /><br />(c). The parties are entitled to five peremptory challenges in a misdemeanor case tried<br /><br />in a district court. Id. Additionally, Tex. Const., Art. I § 10 provides the right of counsel<br /><br />to question the venire in order to intelligently exercise peremptory challenges. Ex parte<br /><br />McKay, 819 S.W.2d 478 (Tex. Crim App. 1990). The ability to properly question the<br /><br />jurors will be the fundamental distinction between the state and federal court. Counsel<br /><br />for both the state and defendant are generally permitted to adequately question the<br /><br />panel.<br /><br /> 2. Federal Law<br /><br /> Federal law provides the defendant with ten peremptory challenges, and the<br /><br />government is entitled to six. Fed. R. Crim. P. 24. However, if there are multiple<br /><br />defendants, the defense will still only be entitled to ten peremptory challenges which<br /><br />must be shared among the defendants. The court has the authority to grant additional<br /><br />peremptory challenges. The court may empanel up to six alternates, and each side will<br /><br />be entitled to one additional peremptory challenge in the alternate zone. The court is<br /><br />not required to permit individual questioning by the attorneys. United States v. Segal,<br /><br />534 F.2d 578 (5th Cir.1976). <br /><br /> Many federal judges will not permit attorney voir dire. And, those federal judges who <br /><br />permit it generally impose severe time limitations. The trial court has almost limitless discretion <br /><br />in the conducting of voir dire. Mu’Min v. Virginia 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d <br /><br />493 (1991). You will generally provide the court with a list of requested voir dire questions. The <br /><br />judge will then determine which questions will be asked. The court may ask questions which <br /><br />were not submitted by either party. Typically, the judges will tend to ask questions which elicit <br /><br />yes or no answers, as opposed to questions designed to elicit opinions. In short, the information <br /><br />upon which you base your challenges will be very limited in federal court, as opposed to state <br /><br />court.<br /><br /><br /><br /><br /><br />B. Witness Statements<br /><br /> 1. Texas Law<br /><br /> Tex. R. Ev. 615 controls the production of witness statements in criminal cases,<br /><br />except for situations which raise Brady issues. The rule generally allows a party which did<br /><br />not call a witness to compel the production of any statement given by the witness which<br /><br />relates to the subject matter about which the witness testified. The party requesting<br /><br />production of the statement has the right to a recess of the proceedings in order to<br /><br />examine the statement for use in the trial. Tex. R. Ev. 615 (d). If either party fails to produce <br /><br />such a statement, the court shall strike the testimony of the witness