NOTABLE RESULTS
USA Defense Attorney
Federal & State Criminal Charges Lawyer
Trial (all jurisdictions):
State v. Bowie;
Possession with intent to deliver cocaine, as a repeat
offender; 290th 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.
State v. Marztall
; Injury to a child; County Court at Law # 9, San Antonio,
Texas.
Jury Trial Verdict: Not Guilty.
State v. Rozier; Assault w/ bodily injury; County Court at Law # 9, San
Antonio, Texas.
Jury Trial Verdict: Not Guilty.
United States v. Capelo; 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.
State v. Salazar, et.
al. ; Aggravated Sexual Assault; 226th District Court, San Antonio, Texas.
Jury Trial Verdict: Guilty. Sentenced to ten years probation
by jury.
United States v. Moreno,
et. al .; 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.
State v. Melendrez; Deadly Conduct; County Court at Law # 5, San Antonio,
Texas.
Jury Trial Verdict: Not Guilty.
United States v. Dartez; Illegal transportation of aliens; U.S. Dist. Ct. for
the Southern District of Texas, Laredo Division.
Jury Trial Verdict: Not Guilty.
State v.
Quintanilla.; Aggravated Assault with a deadly weapon against a public
servant (police officer); 290th District Court, San Antonio, Texas.
Jury Trial Verdict: Not Guilty.
United
States v. Moncada, et. al.; 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:
State v.
Rubio; Possession with intent to deliver cocaine and marijuana; 175th
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 of Rubio’s home was insufficient, as a matter of law to support its
search, thus rendering the warrant "bare bones."
United States v. Deberry-Miller, et. al;
Raised Bruton challenge via motion in limine, 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.
United States v. Perez-Salazar; "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.
United States v. Garcia-Garcia; "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.
United States v. Jara; "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.
United States v. Garza-Gomez; "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.
United States v. Espinoza; "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.
United States v. Arce-Jasso; 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.
United States v. Barrera-Leyva; 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.
United States v. Tello; 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.
Appeals (all jurisdictions):
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 Mr. Santos-Sanchez’ case will now be
the authority in the Fifth Circuit on a lawyer's affirmative obligation to warn
a criminal defendant client of the immigration consequences of a plea of guilty.
United States v. Garcia; Appeal of 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; "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; "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; "Motion to Suppress" discovery of rohyphnol pills in
groin of Defendant denied by trial court. On appeal, 5th Circuit affirmed, but recognized
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):
"Ex Parte Charles Bresiac"
On December 6, 2011, the District Court of Lowndes County, 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 is now awaiting removal to Haiti. Since the granting of this order, Mr. Bresiac was released on bond, and it is anticipated that his deportation order will be set aside, and that he will soon be allowed to rejoin his family in Round Rock, Texas. An immigration victory will help to prevent the specter of having Mr. Bresiac removed to and incarcerated in an earthquake devastated nation, which has claimed many lives to recent outbreaks of cholera.
"Ex Parte Muniz; On November 4, 2011,"
obtained an order from the 227th Judicial District Court of Bexar County, Texas, recommending that the Texas Court of Criminal Appeals (TCCA) vacate a conviction for delivery of a controlled substance, for which Mr. Muniz served a ten years TDC sentence, on the grounds that the trial lawyer committed Padilla error. The case has been forwarded to the TCCA and is awaiting final disposition by that Court.
"Ex Parte Navarro,"
On June 28, 2011, I obtained an order vacating 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 almost certainly 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 Mr. Navarro cancellation from removal to Mexico, thus allowing Mr. Navarro 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. 49th Judicial District Court of Zapata County, Texas.
“Petition for a Writ of Coram Nobis,”
granted by the United States District Court for the Western District
of Texas, San Antonio Division. Court vacated 2001 federal fraud-related conviction on
Padilla v. Kentucky grounds. Probably the first of its kind for a federal case in Texas.
State v. Contreras;
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. Bexar County County Court at
Law # 1. The Court 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
Mr. Contreras’ automatic deportation from this country. Mr. Contreras’
resident alien status was restored, he was released from custody, and rejoined his
family.
Sandoval v. United States;
"Motion to Vacate, Set Aside or Correct Sentence" pursuant
to 28 U.S.C. § 2255, granted by agreement with the government. Trial Court
vacated original sentence of 151 months, and resentenced Mr. Sandoval to 77 months.
Ex Parte
Adolfo Fregoso; 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. The 214th Judicial District Court of Nueces County, Texas
first granted a "Writ of Habeas Corpus (Tex. Code Crim. Proc. art. 11.05)," and
then granted Mr. Fregoso'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 Mr. Fregoso was removed, and all arrest records were ordered expunged.