NOTABLE RESULTS

Trial (all jurisdictions):

Possession with intent to deliver cocaine, as a repeat offender; District Court of Bexar County, Texas.

  • Bench Trial Result: State dismissed charge after acknowledging fatal “bare bones” error on affidavit supporting search warrant for Defendant’s residence.

Injury to a child; County Court at Law, San Antonio, Texas.

  • Jury Trial Verdict: Not Guilty.

Assault w/ bodily injury; County Court at Law, San Antonio, Texas.

  • Jury Trial Verdict: Not Guilty.

Possession with intent to distribute cocaine (4,569 pounds valued at approximately $150,000,000.00, “a record border patrol seizure in Texas”; San Antonio Express News, 01/14/95. ). U.S. Dist. Ct. for the Southern District of Texas, Laredo Division.

  • Set for Jury Trial; Case dismissed on motion by the Government one day before jury selection.

Aggravated Sexual Assault; District Court, San Antonio, Texas.

  • Jury Trial Verdict: Convicted but sentenced to ten years probation by jury.

Conspiracy to Possess with Intent to Distribute Cocaine; U. S. Dist. Ct. for the Western District of Texas, San Antonio Division.

  • Jury Trial Verdict: Not Guilty.

Deadly Conduct; County Court at Law, San Antonio, Texas.

  • Jury Trial Verdict: Not Guilty.

Assault w/bodily injury; County Court at Law, San Antonio, Texas

  • Jury Trial Verdict: Not Guilty.

Illegal transportation of aliens; U.S. Dist. Ct. for the Southern District of Texas, Laredo Division.

  • Jury Trial Verdict: Not Guilty.

Aggravated Assault with a deadly weapon against a public servant (police officer); District Court, San Antonio, Texas.

  • Jury Trial Verdict: Not Guilty.

Conspiracy to Possess and Possession with Intent to Distribute cocaine, marijuana and heroin. United States District Court for the Western District of Texas, San Antonio Division.

  • Jury Trial Result: Government dismissed all charges after two weeks of trial.

Federal and State pretrial practice:

Motion to Dismiss Indictment; District Court of Bexar County, Texas.

  • Court granted motion to dismiss seven count indictment for charges of aggravated sexual assault of a child and indecency with a child, based on violation of both Due Process and Sixth Amendment violation of Speedy Trial.

Possession with intent to deliver cocaine and marijuana; District Court of Bexar County, Texas.

  • Court granted motion to suppress on grounds that each of the confidential sources that provided the basis for probable cause in the affidavit in support of the search warrant for the search of a residence was insufficient, as a matter of law to support its search, thus rendering the warrant “bare bones.”

Bruton-based severance motion, in case involving possession of approximately 300 pounds of marijuana. United States District Court for the Southern District of Texas, Laredo Division.

  • Case dismissed by the government after Bruton challenge, following jury selection.

“Motion for Specific Enforcement of Plea Agreement and for Dismissal of Indictment”. United States District Court for the Southern District of Texas, Laredo Division.

  • Motion granted (plea agreement ordered enforced, required dismissal “of all offenses arising out of the same criminal transaction.”). Indictment ordered dismissed with prejudice.

“Motion to Suppress” approximately 1.0 kilogram of Cocaine found in Defendant’s groin during immigration check inside Greyhound bus at an immigration checkpoint. United States District Court for the Southern District of Texas, Laredo Division.

  • Motion granted. Case dismissed.

“Motion to Suppress” approximately 7,900 pounds of Marijuana, following Miranda – questioning after request for lawyer – violation. United States District Court for the Southern District of Texas, Laredo Division.

  • Motion granted by agreement with the Government. Case dismissed.

“Motion to Suppress” approximately 40 pounds of Marijuana. United States District Court for the Southern District of Texas, Laredo Division.

  • Motion granted (no consent to search). Case dismissed.

“Motion to Suppress” discovery of illegal aliens in vehicle. United States District Court for the Southern District of Texas, Laredo Division.

  • Motion granted (no reasonable suspicion for the stop of the vehicle by border patrol agents). Case dismissed.

Argued “Motion to Suppress” discovery of 33 pounds of cocaine following canine sniff, following referral to secondary inspection at immigration checkpoint. Court found that government lacked reasonable suspicion to refer vehicle to secondary, after agent admitted that he was assured that the Defendant was a United States citizen, following United States v. Portillo-Aguirre, 311 F.3d 647 (5th Cir. 2002). United States District Court for the Southern District of Texas, Laredo Division.

  • Motion granted after reconsideration. Case dismissed.

Request to dismiss charges of possession with intent to distribute Cocaine, arguing insufficient evidence of Mr. Barrera-Leyva’s guilt. United States District Court for the Southern District of Texas, Corpus Christi Division.

  • Motion granted – by agreement with the Government. Case dismissed.

Request to dismiss charges of possession with intent to distribute 48 lbs. of Cocaine, in lieu of motion to suppress, arguing lack of consent or probable cause to search Tello’s vehicle, following stop for speeding. United States District Court for the Western District of Texas, San Antonio Division.

  • Motion granted – by agreement with the Government. Case dismissed with prejudice.

Charges of Possession with Intent to Distribute Cocaine and Methamphetamine dismissed against a San Antonio Police Officer, in exchange for plea to a misprision of a felony sentence of 15 months. United States District Court for the Western District of Texas, San Antonio Division.

Charges of Conspiracy to Commit Aggravated Kidnapping of a man who was kidnapped across the border into Mexico dismissed in exchange for Defendant’s plea to a misprision of a felony charge, for which received a seventeen month sentence, with his prison judgment satisfied. United States District Court for the Western District of Texas, San Antonio Division.

Argued for and obtained a sentence of probation after a conviction for charge of possession with intent to distribute methamphetamine by a defendant with one prior felony drug possession conviction, where guidelines called for a sentence of imprisonment, and which did not involve a 5K1.0, “substantial cooperation” (or any other) motion for downward departure by the government. United States District Court for the Western District of Texas, San Antonio Division.

Appeals (all jurisdictions):

State v. Arrington; The San Antonio Fourth Court of Appeals found egregious, Almanza error, and reversed a 60-year aggravated sexual assault of a child conviction based on the trial court’s failure to instruct the jury that it must be unanimous if it elected to convict, as to each separate incident alleged in each separate count in the indictment.  A concurring opinion chided the State for directing its efforts at convicting the Appellant instead of pursuing justice.  Arrington v. State, No. 04-12-00430-CR (Ct. App. – San Antonio)(Aug. 14, 2013)(Published)

State v. Villarreal; The San Antonio Fourth Court of Appeals found egregious, Almanza error, and reversed a 99-year murder conviction based on the trial court’s erroneous self-defense instruction to the jury. Villarreal v. State, No. 04-11-00771-CR (Ct. App. – San Antonio)(Dec. 5, 2012)(Published)

United States v. Santos-Sanchez; On direct appeal, the Fifth Circuit ruled that Mr. Santos-Sanchez’ lawyers did not have the affirmative duty to warn him that his plea to a federal misdemeanor conviction for aiding and abetting the transportation of illegal aliens would result in his automatic deportation. See United States v. Santos-Sanchez, 548 F.3d 327 (5th Cir. 2008)(Vacated by, Remanded by, Motion granted by Santos-Sanchez v. United States, 2010 U.S. LEXIS 3004 (U.S., Apr. 5, 2010).  Mr. Santos-Sanchez filed a petition for writ of certiorari with the United States Supreme Court. Following the Supreme Court’s landmark ruling in Padilla v. Kentucky, which held that a lawyer has an affirmative duty to warn of deportation consequences under the Sixth Amendment’s requirement to render effective assistance of counsel, See http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/08-651.htm , the Supreme Court reversed Mr. Santos-Sanchez’ conviction for the Fifth Circuit to reconsider his appeal in light of Padilla’s holding. See www.supremecourt.gov/Search.aspx?FileName=/docketfiles/08-9888.htm.

United States v. Garcia; Appealed imposition of 97 month sentence, at bottom of the guideline range in case of transportation of child pornography, after trial court applied cross reference to a higher guideline sentence involving production. On appeal, Mr. Garcia argued that sentence was imposed in violation of the 6th Amendment to the United States Constitution. The Government conceded Booker, “constitutional” error. The Tenth Circuit agreed, vacated Mr. Garcia’s sentence, and remanded to the trial court for resentencing. See United States v. Garcia, 2005 U.S. App. LEXIS 11259 (10th Cir. June 15, 2005). Citing United States v. Yazzie (407 F.3d 1139 (10th Cir. 2005)(en banc)), the Circuit also recognized Booker’s application, and with it, a trial judge’s discretion to depart downward, in cases covered by the “Protect Act.” On remand, the district court sentenced Mr. Garcia to 60 months, the minimum possible sentence under the statute.

United States v. Garcia-Garcia; Prepared and argued “Motion to Suppress” discovery of marijuana taped to body of Defendant in Greyhound bus, at immigration checkpoint denied trial court. On appeal, 5th Circuit recognizes a canine “sniff-and-contact” of a person as a Fourth Amendment search, and recognizes that probable cause to search a vehicle as a result of a canine alert, “does not automatically also provide probable cause to search the individuals in the vehicle,”relying on the Supreme Court opinion in Ybarra v. Illinois, 444 U.S. 85 (1979). See United States v. Garcia-Garcia, 2003 WL 176441(5th Cir. 2003).

United States v. Martinez-Espinoza; Prepared and argued “Motion to Dismiss Superseding Indictment” as a result of violation of the 30-day Speedy Trial Act denied by trial court. Trial court’s order reversed and remanded by the 5th Circuit Court of Appeals. See United States v. Martin Martinez-Espinoza, 299 F.3d 414 (5th Cir. 2002).

United States v. Kelly; Prepared and argued “Motion to Suppress” discovery of rohyphnol pills in groin of Defendant denied by trial court. On appeal, 5th Circuit affirmed, but recognized for the first time that a canine sniff by contact with a humans at the border is a search subject to Fourth Amendment scrutiny. See United States v. James Patrick Kelly, 128 F.Supp.2d 1021, (S.D. Texas 2001); United States v. Kelly, 302 F.3d 291 (5th Cir. 2002), cert. den. 123 S.Ct. 707 (2002). One of the three worst decisions on Henry Bemporad’s Fifth Circuit review at the 40th Annual Criminal Law Institute, San Antonio, Texas, April 11-12, 2003.

United States v. Gutierrez-Farias; Prepared and argued “Motion in Limine” as co-trial counsel to exclude any testimony from so-called expert in drug trade, about whether the driver of a tractor-trailer found with drugs in the trailer had knowledge of its contents denied by trial court. On appeal, the 5th Circuit finds harmless error by the court, but not before warning the government to refrain from this practice in the future. See United States v. Gutierrez-Farias, 294 F.3d 657 (5th Cir. 2002), cert. den. 2003WL97587 (January 3, 2003). One of the three best evidentiary decisions on Henry Bemporad’s Fifth Circuit review at the 40th Annual Criminal Law Institute, San Antonio, Texas, April 11-12, 2003.

Collateral Attacks (Writ of Habeas Corpus):

Motion to set aside conviction for possession of cocaine for former legal permanent resident, on the grounds that he is incompetent to stand trial by virtue of his mental retardation.  The writ was granted by the district court, his case was set aside and his immigration status was restored.

Motion to set aside two convictions for misdemeanor possession of marijuana for Spanish speaking resident alien that was ordered removed to Mexico, and was held in custody pending his removal there. County Court at Law granted both motions, and set aside the convictions on the grounds that the pleas were not made voluntarily by a Spanish speaking defendant, thus eliminating client’s automatic deportation from this country. Mr. Client’s resident alien status was restored, he was released from custody, and rejoined his family.

Motion to Vacate, Set Aside or Correct Sentence” pursuant to 28 U.S.C. § 2255, granted by agreement with the government. United States District Court vacated original sentence of 151 months, and resentenced Mr. Sandoval to 77 months.

Mentally retarded resident alien under care of his mother faced automatic deportation after he pleaded guilty to, and received deferred adjudication for the offense of delivery of cocaine under 28 grams. State District Court of Nueces County first granted a “Writ of Habeas Corpus (Tex. Code Crim. Proc. art. 11.05),” and then granted client’s “Motion for New Trial,” on the ground that his plea was involuntary. The case was thereafter dismissed by the District Attorney. The immigration hold on client was removed, and all arrest records were ordered expunged.

District Court of Bexar County granted a 11.072. Intoxication assault charge, and after granting writ, to 4 years and 11 months, in order to salvage the client’s immigration status and avoid his deportation.

County Court at Law, Bell County Texas, granted an 11.072 writ of habeas corpus, vacating prostitution charge, and allowing, with consent of the state, for client to replead to disorderly conduct, Class C., thus salvaging his immigration status and avoiding his deportation.

County Court at Law, Bexar County, Texas, granted an 11.072 writ of habeas corpus vacating a conviction for misdemeanor possession of marijuana, which also terminated client’s imminent deportation. Client, a legal permanent resident since age 3, was subsequently released from a lengthy immigration detention, and he has rejoined his family.

District Court in the State of Georgia, granted an order to vacate a conviction for possession of cocaine, and nolle prosequi (dismiss prosecution). My representation, which involved preparation of the legal pleadings, with the very important assistance of Atty. Sam Dennis, of Valdosta, Georgia, resulted in this huge win for a man already ordered deported, and who was awaiting his imminent removal to Haiti. Client’s deportation was set aside, and he has rejoined his family in Texas. This victory helped prevent client’s deportation to an earthquake devastated nation, which claimed many lives to recent outbreaks of cholera.

District Court in Texas granted a writ of habeas corpus, and vacated convictions for felony theft and delivery of controlled substance convictions that occurred in 1987 and 2000, and thus removed two offenses categorized as aggravated felonies that would have resulted in the deportation of a 43 year old lawful permanent alien, who had lived in this country since 1974. On June 30, a United States Immigration Judge granted client cancellation from removal to Mexico, thus allowing him to rejoin his family with legal status in this country, and his release after more than one year of immigration incarceration. Indeed, a moving scene in immigration court.

Obtained what is probably the first Padilla-based coram nobis victory in Texas, when the United States District Court for the Western District of Texas, in San Antonio, Texas, vacated a 2001 fraud conviction for a non-citizen, and granted him a new trial on the grounds that his plea was rendered involuntary, more than 7 years after he was first ordered removed by immigration authorities.