#BaltimoreRiots #BaltimoreProtests #FreddieGray Baltmore Protests

The shit has hit the fan once again.  This time it happened in Baltimore.

In case you live under a rock, there have been days and days of protests and a day or two of riots in Baltimore, Maryland, A.K.A. Charm City.  The civil unrest (the right has figured out long ago it is all about terms and coded language, and I believe the same holds true in court) was "sparked" by the death of Freddie Gray.  Freddie Gray died after the police arrested him.  Why did they arrest him? We are still not sure why.  The allegation is that the police saw Mr. Gray, made eye contact with him, and that he ran.  They then allegedly found a knife on his person.  

The fact of the matter is that running alone does not create probable cause to detain someone.  

Luckily, some bystanders were recording the incident on cell phone video.  The video shows Freddie Gray's legs limp, while he screams in agony.  At some point, his spinal chord became severed.  He died a week later.  One theory is that his injury occurred while being arrested, another theory is that his injury occurred while he was unbuckled in the paddy wagon. There is no doubt that he suffered his injuries in police custody.

It was only after his death that the protests turned into riots.  We have seen this time and time again.

The sad thing is that most white people only care that property is destroyed. 

The fact of the matter is that the problems run much deeper than the death of Freddie Gray.  Yes, police brutality, excessive force, not following proper procedure to ensure the safety of members of the community are a huge problem, but that is not all.  All of these problems can be directly linked to the war on drugs, poor educational systems, and lack of job opportunities. These are the systematic remnants of Jim Crow, which is the systematic remnant of slavery.  The ghettos of Baltimore, Ferguson, Houston, Dallas, and any city in the country are there because a group of people want them to be there so that they can profit from the subjugation of others. 

This country needs strong criminal defense lawyers.  This country needs strong public defenders. This country needs to stop the war on drugs.  This country needs to pay good teacher good money to teach in the ghetto.  This country needs soccer in the ghetto.  This country needs to invest in the ghetto.

Freddie Gray's death was the boiling point.  It was not the cause for the protests.

DWI Second Plead to a First Is Good Result For My Client

My Motto is "Client Centered | Trial Ready."  I am trial ready in the sense that I build every case from day one to take it to trial.  I prepare every case from day one to take it to trial.  Every interaction I have with my client, the prosecutor and witnesses is with an eye towards trial.  I am not afraid to try a case.  I am client centered in the sense that my ultimate goal is to empower my clients to make the decision they think is best for themselves  I don't push clients to do one thing or another and I certainly don't force an issue. 

I won my first trial.  I got a not guilty on a felony sex case.  A few months after that big win I got a call from a guy I will call Martin, who was referred to me by the guy I got a not guilty for, John. Bobby was charged with his second DWI.  He spent 60 days in jail on his first DWI and wouldn't be willing to lose his job and do time in the slammer again.  He hired me because he wanted a trial.

This case was in the notorious Montgomery County.  If you didn't know, virtually every cop car has a dash camera.  The camera turns on automatically when an officer illuminates his lights, and your field sobriety tests will be recorded.  In this particular case, my client was pulled over because his license plate light was not working. 

Word to the Wise:  You can get pulled over for virtually anything that is wrong with your car.  This means make sure your inspection stickers and registration stickers are up to date, and that all of your lights and signals are working.

So my client get's pulled over, and does excellent on the field sobriety tests.  The only problems with my client's performance appears to be as a result of his poor understanding of English.  After the trooper placed my client under arrest for DWI, the trooper decides to play the DIC 24 on his computer.  The DIC 24 is a document that warns people arrested for DWI that they can either consent to a breath or blood test, or if they refuse, their license will be automatically suspended. 

My client requested that the DIC 24 be played in Spanish.  The cop played it in English.  My client then consented, even though he didn't have a license in the first place, which begs the question, why would he even consent if he had understsood the DIC 24 warnings?

I researched the issue and advised my client that we would have a good shot on a motion to suppress. A motion to suppress is a request to the court to exclude the results of a search.  Here, the search would have been his breath results because my client's consent was not freely, knowingly, and voluntarily given.  The problem here is that there is a totality of the circumstances test. In other words, do all of the facts and circumstances demonstrate that my client did not understand the DIC 24?

I felt confident that we would win.  The prosecutor knew that I had a good chance.  Normally, I wouldn't tell the prosecutor that I was thinking about doing a motion to suppress.  I told the prosecutor in this case for two reasons: (1) the remote possibility of a dismissal and (2) to improve my bargaining power since my client began to change his position on trial.

Did it work?  You bet!

The offer was originally 75 days in jail on a DWI second, and a $2000 fine. In other words, my client's next DWI arrest would be a felony.   My client ended up taking a plea deal on a DWI 1st, credit for time served, meaning that there would be no jail time, and a $1000 fine.

My client was happy, and that's what client centered lawyering is all about. 

Federal Human Trafficking "Tencha" Case Texas

Well over a year ago, just weeks after I have been sworn into practice law by Judge David Hittner, I was asked by a family friend who practices criminal law to help him write a brief for a federal sex trafficking case.

I jumped at the opportunity to make a few bucks and get some writing experience, in federal court, nonetheless. 

This case was about a massive human trafficking and sex slavery ring in Houston.  The ring was allegedly led by a family matriarch known as "Tencha."  She owned some property off Telephone road and her bars and restaurants as brothels.  Girls would be lured to America by promise of work and freedom, but instead they found themselves as indentured servants never able to pay off their debts, and forced to have sex with Johns to make payments.  The way this works is that guys show up to the bars, pay a door fee, then they pay exorbitant money for a few beers, then pay for a room fee, then pay for a condom, then pay for sex with the girl.  It is really horrible stuff.  It really makes you wonder what would happen to the human trafficking trade if prostitution were legalized.

So, a massive federal task force conducted a 10 year investigation into this brothel.  Can you imagine, they let this shit go on for 10 years?  What a joke.  Finally, they do a bust and arrest everyone at the scene.  Three of the girls who were arrested hire Ellis Munoz, who hires me to write a brief.

The government held our clients in federal custody because the government felt they were material witnesses.  In other words, they were victims of human trafficking and slavery that could help make the government's case. Our stance was that they were just at the wrong place at the wrong time, or just not material.

I wrote a nice long brief explaining the law and why our girls, who just wanted to go back to Mexico, were not material witnesses.  There was a hearing held in the magistrate's courtroom.  The hearing was basically depositions to find out who the material witnesses were. At this point, none of the 24 defendants had plead.  So there were 24 defendants in orange and green jumpsuits, and their high-powered lawyers.  

Then there was Ellis and I.  Examinations were conducted.  I was new and awkward and stupid, so I hurried off too lunch.   Little did I know, the magistrate made her recommendation that the our girls were not material witnesses.  The federal government fought very hard to make sure they were.

The recommendation, army of lawyers, and defendants moved to Judge Hittner's courtroom.  I was stupid and went to lunch.  Judge Hittner looked at Ellis and said something along the lines of "whoever wrote this did an excellent job."  JUDGE HITTNER, THE JUDGE WHO SWORE ME IN AND SAID HE WOULD LIKE TO SEE ME IN FRONT OF HIS COURT SAID THAT ABOUT MY WORK AND I WASN'T THERE TO HEAR IT, AND HE DIDN'T EVEN REALIZE IT WAS ME.

Well, my motion was granted and the girls were allowed to get their live's back.  My first federal case, my first federal victory.  Come to think of it, that was my first case period. Ellis and I have worked together since then, including winning a NOT GUILTY VERDICT in my first trial on a felony solicitation of a minor case in Montgomery County, and motion to suppress that we also won.  I'm undefeated with him.

The Tencha case went to the jury yesterday.  It should be interesting to see what happens.

READ MY MOTION HERE

UNITED STATES DISTRICT COURT  SOUTHERN DISTRICT OF TEXAS  HOUSTON DIVISION  

  

  UNITED STATES OF AMERICA  §   

  Plaintiff   §  CRIMINAL DOCKET 4:13-CR-628      §  HONORABLE NANCY JOHNSON    VS    §   

    §        §    HORTENCIA MEDELES-ARGUELLO  §      Defendant   §   

  

MATERIAL WITNESSES’ RESPONSE TO DEFENDANT’S MOTION REQUESTING DEPOSITION OF MATERIAL WITNESSES 

  TO THE HONORABLE NANCY JOHNSON: 

 The Defendant’s Motion Requesting Deposition of Material Witnesses should be denied 

because the Defendant failed to demonstrate that the Material Witnesses’ testimony will be 

favorable and material to her defense.  Moreover, the anticipated deposition testimony is 

cumulative, and the witnesses will respectfully invoke their Fifth Amendment privilege against 

self-incrimination to any and all incriminating questions.  Should this Honorable Court allow the 

depositions, the Material Witnesses hereby request an inquiry into, and screening of, the proposed 

deposition questions. In support of their position, the Material Witnesses represented by the 

undersigned counsel would show: 

PROCEDURAL HISTORY AND RELEVANT FACTS 

1. On October 9, 2013, the United States indicted Hortencia Medeles-Arguello 

(“Defendant"), and thirteen co-conspirators, on one count of Sex Trafficking Conspiracy, 

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one count of Conspiracy to Harbor Illegal Aliens, four counts of Money Laundering and 

one count of Conspiracy to Commit Money Laundering. 

2. On October 10, 2013, a joint task force composed of several law enforcement agencies 

executed a search warrant at Nuevo Amanecer, 5618 Telephone Rd., Houston, Texas.   

Nuevo Amanecer was once known as Las Palmas Club and/or Las Palmas II.  Although 

that address was once owned by the Defendant, it had not been under her ownership for 

approximately one year before the raid.  Las Palmas Club ceased to exist in November 

2012. 

3. The task force decided to detain dozens of people found inside Nuevo Amanecer on 

October 10, 2013.  The arrested individuals were detained subject to removal proceedings 

by the Department of Homeland Security's Immigration and Customs Enforcement, 

Enforcement Removal Operations.   

4. The federal agencies interrogated all of the arrestees.  None of the arrestees were 

represented by counsel.  None of the arrestees were advised of their Miranda rights.  None 

of the interrogations were conducted under oath or affirmation of perjury.  These 

interrogations form the basis of the Defendant's Motion to which this response addresses. 

5. On October 11, 2013, the Government filed an Affidavit in Support of Detention of 

Material Witnesses. (See, Affidavit in Support of Detention of Material Witnesses).  The 

Government determined that based on the aforementioned interviews, in which the 

arrestees were denied due process, that the "aliens can provide testimony that will be 

material to the prosecution of this case.  Specifically, the aliens can provide testimony 

related to Sex Trafficking, other illegal activities, and the day to day activities occurring at 

Las Palmas II.”   

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6. The Government continued, and requested twenty-five aliens to be detained as "Material 

Witnesses" pursuant to Title 18, United States Code, Section 3144, and order the United 

States Marshal to detain them so that depositions may be taken within thirty (30) days of 

the order.  This Honorable Court granted the order, as well as an extension of that order. 

7. The undersigned counsel was hired to represent six Material Witnesses: (1) Maria Hilda 

Duran Nava; (2) Angelica Lopez Leon; (3) Ana Karin Gutierrez Texis; (4) Elizabeth Martin 

Matias; (5) Maria Esther Casemiro-Deroteo; and (6) Natividad Hernandez Cerino.  Ms. 

Matias has been released from being a Material Witness.   

8. On November 27, 2013, at this Court's order, the Defendant submitted a Motion Requesting 

Deposition of Material Witnesses. (See, Defendant's Motion Requesting Deposition of 

Material Witnesses).   

9. The Defendant’s Motion includes summaries of the information the witnesses could testify 

about.  The summaries are based on the recorded interviews of the Material Witnesses 

conducted by law enforcement after the October 10, 2013, raid of Nuevo Amanecero.  The 

summaries strongly indicate that the Material Witnesses can provide no information that is 

favorable or material for the Defendant. (See, Defendant's Motion Requesting Deposition 

of Material Witnesses, P.5-9).    

10. The Defendant's Motion requests this Court to order the deposition of thirteen witnesses, 

including those represented by the undersigned counsel.  (See above, paragraph 7).   

11. On November 20, 2013, counsel for the Material Witnesses informed the Court that the 

Material Witnesses will invoke their Fifth Amendment privilege against self-incrimination. 

12. Eight (8) of the material witnesses have been released. 

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Material Witnesses Maria Casemiro-Doroteo and Nohemi Homan will be deposed on Friday, 

December 6, 2013. 

ARGUMENT 

I. THE DEFENDANT FAILED TO DEMONSTRATE THAT THE MATERIAL WITNESSES’ TESTIMONY IS RELEVANT, FAVORABLE AND MATERIAL TO HER DEFENSE. 

This Honorable Court should deny the Defendant's Motion Requesting Deposition of 

Material Witnesses Maria Hilda Duran Nava, Angelica Lopez Leon, Ana Karin Gutierrez Texis, 

Elizabeth Martin Matias, Maria Esther Casemiro-Deroteo, and Natividad Hernandez Cerino.  The 

Defendant's Motion should be denied because she failed to demonstrate that the designated 

witnesses can offer testimony that is relevant, not cumulative, favorable and material to her 

defense. 

A. THE MATERIAL WITNESSES’ TESTIMONY FAILS TO REBUT THE GOVERNMENT’S ALLEGATIONS. 

The testimony of aliens who are not alleged to have any connection to a crime or 

conspiracy, and who cannot rebut the allegations against the defendant is inadmissible. U.S. v. 

Castellanos-Machorro, 512 F.2d 1181, 1184 (9th Cir. 1975).  In Castellanos-Machorro, a husband 

and wife were convicted of transporting, concealing, and conspiracy to transport and conceal 

aliens. Id. at 1182.  A Border Patrol agent, the five aliens they were accused of smuggling, and 

four former co-conspirators who drove the aliens and personally interacted with the defendants 

testified against the defendants.  Id.  (Emphasis added.)The defendants appealed, arguing that they 

were denied due process because they should have been allowed to interview 88 of the 288 aliens 

who we were detained and deported after being found traveling away from, or in the vicinity of 

the hotel managed by the defendants.  Id.     

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The circuit court held that the defendants were not denied due process.  Id. at 1184.  The 

court rationed that because there was no claim the released aliens had any connection to the 

conspiracy, or any transaction that formed the basis of the indictment, that their testimony was not 

“conceivably exculpatory.”  Id. at 1183.  The court continued, stating that the defendant-wife failed 

to offer a "persuasive basis" for concluding that the released aliens' testimony would be admissible.  

Id. (Emphasis added).  The court reasoned that the aliens' proffered testimony—that the defendant

wife did not smuggle them—even if true, would not be admissible because it "would not in any 

way impeach" the testimony of the witnesses who personally dealt with the defendant and her 

conspiracy.  Id. 1183-84. (Emphasis added).  

Here, the Defendant failed to offer a persuasive basis for concluding the testimony of the 

Material Witnesses will be admissible.  Like the deported aliens in Castellanos-Machorro, these 

aliens had no personal interaction with the Defendant, or transactions that formed the basis of her 

indictment.  Because the Material Witnesses had no contact with the Defendant, any testimony 

they might provide would not in any way impeach the sixteen Grand Jury witnesses.  (See, 

Criminal Indictment, P. 8-9).   

The only alleged connection between the Material Witnesses and the Defendant is that they 

were present in a building last owned by the Defendant a year before the raid.  Like the 288 

deported aliens in Castellanos-Macharro, the Material Witnesses here can only testify that the 

Defendant did not smuggle them, force them to prostitute, harbor them, traffic them for sex, aid 

them in laundering money, or any related conspiracy.  Like the deported aliens in Castellanos

Macharro, such testimony is only possible simply because they had little or no connection to Las 

Palmas or the Defendant, and not because they possess exculpatory knowledge.  Like the aliens in 

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Castellanos-Machorro, the Material Witnesses’ testimony is irrelevant, immaterial, and in no way 

rebuts or impeaches the government’s witnesses, as required under Castellanos-Machorro.   

B. THE MATERIAL WITNESSES’ TESTIMONY IS NEITHER FAVORABLE NOR CONSEQUENTIAL FOR THE DEFENDANT. 

The Defendant counterintuitively claims, without citing any authority, that she does not 

need to show that the Material Witnesses possess material knowledge.  (See, Defendant’s Motion 

Requesting Deposition of Material Witnesses, P. 4, Para. 13).  The government, however, is 

justified in promptly deporting alien witnesses after making a good faith determination that the 

witnesses possess no evidence favorable to the defendant in a criminal prosecution.  United States 

v. Romero-Cruz, 217 F.3d 374, 377 (5th Cir. 2000); See, United States v. Valenzuela-Bernal, 458 

U.S. 858, 872, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982).  Romero-Cruz defines materiality in the 

context of material witnesses.  Romero-Cruz, at 378.  Testimony is material if it impeaches another 

witness on a non-collateral matter, or there is a reasonable likelihood the witness’s testimony 

would have affected the judgment of the jury.   Id. 

In Romero-Cruz, the appellant drove a truck from Harlingen, Texas, to near San Manuel, 

Texas containing ten (10) illegal immigrants.  Id. at 378.  Eight (8) of the aliens were deported, 

while two (2) were deposed as material witnesses.  Id.  One of the deported witnesses, Flores

Martinez, stated that she and one of the deposed witnesses, Delgado, were driven from the border 

to Harlingen by a woman, and not the appellant. Id.  This was inconstant with the deposed witness’s 

testimony.  Id.   

The appellant claimed that the testimony of the deported aliens was favorable and material 

because it would have established he did not knowingly engage in illegal conduct.  Id.  The court 

held that the differing testimony was not material, because while Flores-Martinez’s statement may 

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have impeached Delgado’s testimony, the statement only impeached a collateral matter, and did 

not favorably aid the appellant.  Id.  Ultimately, the court held there was not a reasonable likelihood 

that Flores-Martinez’s statement would not have affected the judgment of the jury.  Id. 

The detained witnesses will not be able to provide material and favorable deposition 

testimony for the Defendant.   The Material Witnesses are simply ignorant of the Defendant, her 

business, and the allegations against her.  They can neither support the government’s allegations, 

nor aid the defense. Nothing the Material Witnesses can say will impeach the government’s 

witnesses on non-collateral matters, nor will anything they can say have a reasonable likelihood 

of affecting the jury’s judgment.  Simply put, anything they can say will be inconsequential and 

favor neither party.  The government is justified in promptly deporting the Material Witnesses 

without compelling their deposition testimony. 

C. ANY ADMISSIBLE TESTIMONY IS CUMULATIVE. 

Even where a deported alien’s testimony may have been favorable to the defense, the 

defendant’s due process and compulsory process rights are not violated where the defendant fails 

to show the testimony is not merely cumulative to the testimony of available witnesses.  United 

States v. Perez, 217 F.3d 323, 326 (5th Cir. 2000); United States v. Romero-Cruz, 201 F.3d 374, 

376 (5th Cir. 2000).  Moreover, the government may deport undocumented alien witnesses upon 

a good faith showing that they do not possess information favorable to the defendant.  Id.  

In Perez, police received a tip that several aliens were being held hostage at a house until 

the smugglers were paid for their services.  Id. at 324.  Law enforcement set up surveillance and, 

after observing people freely come and go, executed a search warrant.  Id.  Twenty-four 

undocumented aliens were arrested.  Id.  The defendant, who lived in an apartment attached to the 

house, was charged with aiding and abetting the harboring of an undocumented alien.  Id. at 325.   

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The victim-daughter of the tipster disappeared after being released on bond, and several 

witnesses were deported.  Id. at 325-26.  Of the eight (8) aliens deported before the indictment was 

returned, six could not identify the defendant from a photo spread, and provided other relatively 

favorable information.  Id. at 236.  The defendant was able to depose six material witnesses.  Id.  

The Court held that although the deported witnesses may have provided favorable testimony, the 

defendant failed to show that their testimony was not merely cumulative.  Id. at 327. 

This Court named twenty-five (25) aliens found at Nuevo Amanecero as “material 

witnesses.”  Eight (8) of the material witnesses in total have been released from their designation 

as material witnesses.  The Defendant motioned to depose thirteen (13).  The undersigned counsel 

represents six (6) of those thirteen, one of whom has been released. Nearly all of the remaining 

witnesses can testify to the same cumulative things.  For example, as per the Defendant’s Motion, 

most of the Material Witnesses can testify: 

 That they did not work for the Defendant; 

 That they did not know the Defendant; 

 That they did not know what the Defendant did; 

 That they owned cell phones; 

 That the Defendant did not force them to buy cell phones; 

 That the Defendant did not take away their cell phones; 

 That the Defendant did not harbor them, 

 And that they had no interaction with the Defendant. 

Two material witness, Maria Casemiro-Doroteo and Nohemi Hogan, will be deposed 

Friday, December 6, 2013.  It follows that considering the circumstances of the raid, and 

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happenstance of the Material Witnesses presence at Nuevo Amanecer, and in light of the precedent 

set by Perez and Romero-Cruz, that all possible testimony they could offer is irrelevant and 

cumulative.   The Defendant has failed her burden of proving the proffered testimony is not 

cumulative.  The Material Witnesses have made a good faith showing that they can only provide 

cumulative testimony, and, per Perez, should be deported without being deposed.    

II. THE MATERIAL WITNESSES HAVE BEEN DENIED DUE PROCESS AND ELECT TO EXERCISE THEIR FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION. 

The Material Witnesses respectfully notify the Court that they will invoke their Fifth 

Amendment privilege against self-incrimination to any and all incriminating questioned at any 

deposition.  The Material Witnesses invoke this right because “[n]o person… shall be compelled 

in any criminal case to be a witness against himself.”  U.S. Const., amend. V. (Emphasis added). 

Therefore, a person may legitimately refuse to answer questions asked of her in any proceeding, 

civil or criminal, formal or informal, where the answers might incriminate him in a future criminal 

proceeding.  United States v. Davidson, 2010 WL 3521726 (S.D. Tex., 2010), citing Lefkowitz v. 

Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L. Ed.2d 274 (1973).   

Due process is afforded to all people present in this country.  Arab-American Anti

Discrimination Committee v. Reno, 833 F.Supp. 1365, 1373, (C.D. Cal., 1995).  It is irrelevant that 

the person is here illegally.  Id.  The Fifth Amendment and Fourteenth Amendment protect 

everyone from deprivations of life, liberty and property without due process of law, regardless of 

whether their entry into the country was unlawful, involuntary or transitory.  Mathews v. Diaz, 96 

S.Ct. 1883, 1890 (1976).   The Material Witnesses respectfully request that their liberty be 

reinstated by means of release from their detention as material witnesses. 

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In Davidson, the defendants were charged with two counts of conspiracy to harbor and/or 

induce aliens to come to or reside in the United States., and a tax fraud conspiracy.  Davidson at 

1.  1,200 aliens were arrested and deported as a result of the investigation against the defendants. 

Id.   One witness, Vargas-Sanchez, voluntarily spoke with defense counsel and was able to testify 

that the defendants did not assist his illegal entry into the country, provide him with false paper, 

or encourage his employment.  Id.  The defendants motioned to depose Vargas-Sanchez.  Id.   

Vargas-Sanchez advised that he would assert his Fifth Amendment privilege against self

incrimination.  Id.  The Court ordered the deposition to be taken, and the witness asserted the 

privilege. Id. at 2.   The defendants objected to the assertion, but the Court held that Vargas

Sanchez properly invoked the privilege against self-incrimination, even though his testimony may 

have been exculpatory, because any answer might have given regarding his employment, papers, 

or entry into the country would incriminate him.  Id.  The Material witnesses will invoke their 

privilege against self-incrimination to any question which may incriminate them. 

III. IF THE MATERIAL WITNESSES ARE NOT RELEASED, THEY REQUEST THE COURT TO SCREEN DEPOSITION QUESTIONS. 

This Court should conduct an inquiry into the Material Witnesses’ assertion of privilege.  

See United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980)(“The trial judge must make a 

proper inquiry into the legitimacy and scope of the witness’ assertion of his Fifth Amendment 

privilege.”)  The court may not accept a “blanket assertion of the privilege” without inquiry.  Id.  

The Material Witnesses suggest that the Court conduct a hearing to determine whether their fear 

of self-incrimination is justified and, if so, what the boundaries of his Fifth Amendment rights are 

in relation to the testimony the parties seek.  Id.  The witness may not have a valid claim to a Fifth 

Amendment privilege with respect to relevant questions about which the parties will inquire.  Id.  

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The Court “must make ‘a particularized inquiry, deciding in connection with each specific 

area that the questioning party wished to explore, whether or not the privilege is well-founded.’” 

Id. (quoting United States v. Melchor-Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976)).  The Material 

Witnesses may be totally excused as a witness “only if the court finds that he could ‘legitimately 

refuse to answer essentially all relevant questions.’” Id. (quoting United States v. Gomez-Rojas, 

507 F.2d 1213, 1220 (5th Cir. 1975)).  “Otherwise, ‘only as to genuinely threatening questions 

should their silence (be) sustained.’” Id. (quoting Melchor-Moreno, 536 F.2d at 1049). 

The Court of Appeals for the Fifth Circuit has held that the witness’s privilege claims must 

be judged by the standards of Hoffman v. United States, 341 U.S. 479, 486 (1951).  Id. at 700. 

Under Hoffman, the privilege applies where the witness has “‘reasonable cause to apprehend 

danger from a direct answer.’” Id. (quoting Hoffman, 341 U.S. at 486).   

To sustain the privilege, it need only be evident from the implications of the questions that 

a responsive answer to the question or an explanation of why it cannot be answered might implicate 

oneself.  The trial judge in appraising the claim “must be governed as much by his personal 

perception of the peculiarities of the case as by the facts actually in evidence.”  The privilege must 

be sustained if it is not “‘perfectly clear, from a careful consideration of all the circumstances in 

the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency’ 

to incriminate.” Goodwin, 625 F.2d at 700-01 (internal citations to Hoffman omitted). 

Consistent with prior Fifth Circuit case law, the Material Witnesses suggests that the Court 

ask the Defense to identify the questions it intends to elicit from them and then inquire of them 

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which questions he would object to on immunity grounds.  The Court may then determine whether 

the witness’s claims are valid as to relevant questions, inquiring further, ex parte, if necessary.1 

CONCLUSION 

The Material Witnesses have been denied due process. They are unable to provide 

testimony that is relevant, material and favorable for the Defendant.  Nothing the Material 

Witnesses can say will impeach the government’s witnesses on non-collateral matters.  Nothing 

the Material Witnesses can say will affect the jury’s deliberations.  Moreover, any admissible 

testimony is merely cumulative.   Should this Honorable Court permit the Defendant to depose the 

Material Witnesses, they ask the Court to screen the proposed questions to weed out incriminating 

questions. 

Respectfully submitte

Appeals Filed and Trials Postponed

What an exhausting week!

First, I was set for a possession of marijuana trial in Harris County on 4/20.  I was so eager to try that case and hopefully get a NOT GUILTY on the marijauna holiday, but it wasn't to be.  For the second time.  The first time the case was set for trial it was reset because the district attorney thought that the day of trial would be a good time to turn over BRADY bodycam video.  I am sure glass I did not push forward without it ;).

This time, the case was reset because the judge wanted to get a two day trial out of the way, whereas mine would only take one day  Although I was disappointed to not try this case, it gave me time to finish up an appeal.  My appeal client was sentenced to life in prison for aggravated sexual assault of a child, which is the legal term for "rape" in Texas.  You'd think that a trial for this type of charge might take quite a while, but this trial only lasted two days and they sent my guy to the slammer for the long haul.

I was not the trial lawyer.  The trial lawyer was a guy who is infamous for being found ineffective multiple times, yet for some reason, the courts keep appointing this guy to cases (in my opinion it is because they way certain defendants locked up for life, and this guy's representation almost guarantees it).  I don't want to get into the details of the case, but I'll tell you what's important.

The complainant (what you might naturally as the victim) claimed my client diddled her.  The complainant also claimed that three boys raped her at a party in another county that were no-billed. Mind you, a prosecutor could indict a ham sandwich.  The prosecutors sent the trial lawyer a motion in limine that indicated the girl made accusations in the other county. (P.S.  This crappy notice is going to be a huge issue and a potential Brady violation if there is a writ filed.)  The trial lawyer didn't read the notice/motion and didn't request a continuance to investigate the allegations to see if they were false, which would be necessary to cross-examine/impeach the complainant at trial.

You might not think her prior false allegations of abuse are all that important, but they are huge, and particularly huge in this case.  Why?  Because the complainant claimed my client penetrated her, and touched her elsewhere.  Well, the nurse recovered my client's DNA everywhere the complainant said my client touched her, except in her vagina, AND the nurse testified that if he really did penetrate her vagina, his DNA should be there under the circumstances.  PHEW!  It's uncomfortable talking about this.  I don't like sex offenders and pedophiles, but if I'm not protecting their rights, your rights wont be protected.

So the point here is that if my client did not penetrate the girl, he is not guilty of aggravated sexual assault, which brings me to my second point, the court committed error by not including a jury charge for the lesser offense of indecency with a child.  

I don't know if my client is guilty, and it wouldn't effect my representation if I did or he was.  I never in a million years thought I would be an appellate lawyer in Texas, but it can be fun at times.  Now it is time to wait and see what happens.

Houston Police Department BodyCams

I have a client who was charged with misdemeanor possession of marijuana.  The offense report stated that one of the Houston Police Department Officers was wearing a body camera, and that he successfully uploaded it to the mainframe.  

Okay, great! Nine months pass from the date of the arrest to the first trial setting, and I had not yet been provided the bodycam footage. It wasn't until that very morning that the police officer brought CDs containing the footage.

Can you believe that?!  Well, unfortunately, you should. I filed a discovery order.  Judge Fields signed the discovery order, but that didn't matter to the State, apparently.

I ask to approach on the record.  I tell Judge Fields what has and has not happened.  He said that since bodycams are new technologies, he will give the prosecutor a break for not turning over potential Brady evidence in a timely manner. Shocking, but not surprising.  The baby ADA had the misguided judgement to tell Judge Fields that "defense counsel did not do his due diligence."  For any prosecutors who might be reading this, or defense attorneys for that matter, IT IS THE PROSECUTOR'S BURDEN TO PRODUCE EVIDENCE.  All you have to do, arguably, is file a discovery order and get it signed by the judge. 

As far as bodycams go, apparently they are not uploaded the same way or to the same place as dashcam videos.   I will trial to get some policy on the record at trial.

The case is set for trial on 4/20! How appropriate?!   Hopefully we can get a two word verdict along with a side of JUSTICE!  

Deadly Conduct Case Dismissed

TEXAS DEADLY CONDUCT LAWYER

We have a statute in Texas called "Deadly Conduct."

Sec. 22.05.  DEADLY CONDUCT.  (a)  A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

(b)  A person commits an offense if he knowingly discharges a firearm at or in the direction of:

(1)  one or more individuals;  or

(2)  a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.

(c)  Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.

(d)  For purposes of this section, "building," "habitation," and "vehicle" have the meanings assigned those terms by Section 30.01.

(e)  An offense under Subsection (a) is a Class A misdemeanor.  An offense under Subsection (b) is a felony of the third degree.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.  Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

If you're acting a fool, but didn't actually hurt anyone, you might get a deadly conduct charge.  In my opinion, some deadly conduct shouldn't be illegal because there is no act that harms anyone or anything.

Although I do not have nearly as many trials under my belt as I would like, I consider myself a trial lawyer.  As a trial lawyer, it is my duty to know my case better than my opponent.  I need to out work my opponent. Moreover, I need to get extremely cozy with my case early on so that I can make a game plan for the entire case, and by that I mean:  What will I tell the prosecutor about the case? What will I tell the prosecutor about my client?  What will I tell the prosecutor about the complainant?  What will I tell the prosecutor about the witness?  What will I tell the prosecutor about the evidence?  

In this particular case, my client was charged with Deadly Conduct for allegedly waving a knife around in a threatening manner while making verbal threats.  One this particular day, she had delivered some groceries to an elderly lady who had trouble getting around.  As my client was leaving the old lady's apartment, she had seen her kids run off with some of the neighbor's kids.   The neighbor (the complainant) runs downstairs and starts yelling at my client.  My client allegedly took out her knife.  The complainant was sleeping with the old lady's husband.  The old lady's daughter lived upstairs with the neighbor.  Several witnesses say just about the exact same thing.  This was some Jerry Springer shit! 

The complainant called the cops.  The cops never found a knife.  All they found was pepper spray.

My client came to my office for a free consultation.  After doing the standard client interview, I had my client draw out a scene diagram.  Next, after my client left and made a down payment, I had her reenact exactly what happened, using the same space constraints as at the actual scene.  Next, I "visited" the scene via Google Maps and took screen shots of the scene. Finally, I spent a significant amount of time researching the background of each witness.  Lo and behold, each witness/complainant had multiple convictions for crimes of dishonesty, aka theft and fraud.

So now that I have all this information what do I do?  In this particular case, I thought it best to not show any of my cards.  Let's see what the prosecutor can come up with.  Will the knife show up? Will the witnesses make different statements to the state?  Should I speak to the complainant?  In this particular case, I chose not to speak to the complainant.  Why?  Because I have dealt with these types of girls before, and usually, they are only more motivated to lie, testify, and prosecute if you speak to them.

So, I show up to our third or fourth setting anticipating that we can resolve the case.  The prosecutor tells me she hasn't looked at my client's 4 month old file yet.  I ask to approach the judge to set the case for trial.  The judge says "give her a chance" and gives us a short two week reset; a reset that requires my client to be hauled back into court.

Guess what I see on top of the file as soon as a pick it up? MOTION TO DISMISS!

I read the RIP call, and apparently the prosecutor called the complaining witness, and the complaining witness said "Nah I ain't doing that shit!" and hung up in response to the prosecutor identifying herself.  There is a good chance I would have had the same attitude, but different response if I was the one that called.

I was very eager to take this case to trial in order to expose just how reckless the police and district attorney can be in charging a member of our community with a crime without conduct a half-decent investigation.  However, I know my clients would prefer a dismissal any day over the stress of trial.

That was one HAPPY CLIENT!

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