Articles Posted in Federal law

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supreme court.jpgIn San Antonio and other courts throughout Texas, many Mexican citizens take plea deals every day. Before 2010 the only requirement for non-U.S. citizens taking pleas was that the defendants must be warned that they may face deportation, removal from the country or denial of U.S. citizenship. However, on March 31, 2010, the United States Supreme Court filed its decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) holding that “counsel must inform her client whether his plea carries a risk of deportation.” Padilla at 1486. “When the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” Padilla at 1483. This means that a defense attorney must adequately advise a non-U.S. citizen of how the plea may affect his or her status in this country.

The U.S. Supreme Court went on to explain: “Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” Id.

But a big debate throughout Texas is whether Padilla announced a new rule of law that bars it from being applied retroactively. Or does Padilla just clarify a longstanding rule of law, allowing it to apply to cases that were final prior to the Padilla opinion?

Texas Courts have been applying Padilla retroactively to cases that were final before the opinion was rendered. In Ex parte Tanklevskaya, 2011 WL 2132722 (Tex. App.–Hous. [1Dist.] 2011), the Court of Appeals denied the State’s claim that “Padilla announced a ‘new constitutional rule of criminal procedure’ that should not be applied retroactively to cases on collateral review.” Id. at *4; citing Teague v. Lane, 489 U.S. 288, 310 (1989). That Court, agreeing with other Courts in Texas and around the country, held that Padilla does not apply new rule of criminal procedure but is an extension of the rule in Strickland v. Washington and therefore applies retroactively. Id. at *7.
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After 85 years, the federal definition of rape is being updated. On December 6, 2011, a Federal Bureau of Investigation advisory board voted to expand the definition and Director Robert Mueller accepted the recommendation. The former definition was established in 1927 and can be found under the FBI’s Uniform Crime Report. The old definition stated that rape was “The carnal knowledge of a female forcibly and against her will.” The old definition excluded oral and anal penetration, the rape of males, the penetration of the vagina or anus with an object or body part other than the penis, the rape of females by females, the rape of children, and non-forcible rape.

The new federal definition of rape can be found on the FBI Uniform Crime Report website. Society has long acknowledged that rape can happen to women, men, and children. The new definition takes out the word “forcible” and includes men and children. It expands to include any nonconsensual penetration, regardless of the gender of the attacker or the victim. It also includes those who are mentally or physically incapable of giving consent.

The women’s rights community has claimed this as a victory for victims of sexual violence. Vice President Joe Biden, who authored the Violence Against Women Act when he was a senator stated that victims have suffered long enough.

Even though 84,767 rapes were reported in 2010, many experts claim that the sexual assault numbers are too low. The underreporting of rape affects the federal funding for resources. The Centers for Disease Control and Prevention report that 1-in-71 men and 1-in-5 women will be raped in their lifetime. For expanded information on sexual violence, refer to the CDC website .
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While most people try their hardest to stay out of a court room, five young Foreign National men were arrested in the early morning hours for breaking into the local courthouse. At about 1 AM on Wednesday, October 19, 2011, alarms at the Bexar County Courthouse in Downtown San Antonio alerted local authorities that someone was on the exterior fire escape. When police arrived, they discovered two of the men outside the building with a rented R.V. and three men inside. Apparently they had used the fire escape to enter through a fourth floor window or rooftop access door. All the men are in their early 20s, were unarmed, and were in custody by 1:30 AM.

The local investigation, which gained national attention, was coordinated with the Federal Bureau of Investigation and the Immigration and Customs Enforcement, which is the investigative branch of the Department of Homeland Security. The suspects were questioned to determine if this was just a prank or a terrorist plot. An unnamed source said that the men inside the building appeared intoxicated on the surveillance footage and at one point they are seen wearing sombreros. Photos released by local news show the men sporting the sombreros and running down the courthouse hallways. A precautionary bomb squad sweep of the building and R.V turned up nothing and the incident is currently being investigated as a burglary. The courthouse was opened and operating for normal business at 7 AM.

Unconfirmed reports claim that the men are Moroccan. Preliminary information states that some of the men flew into New York City and the rest flew into Miami in September. The R.V. was rented in New Jersey, though it has California license plates. Authorities found 90-day visas, maps, cell phones, and computers inside the R.V. It appears that the suspects have been travelling the country as tourists.
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United States Magistrate Judge Robert L. Pitman has been nominated as the United States Attorney for the Western District of Texas. There are seven separate offices in the district, which encompasses 68 counties and serves about 6.5 million people. The main office is located in San Antonio, with branch offices in Austin, Del Rio, Midland, El Paso, Waco, Alpine, and Pecos. Judge Pitman was recommended for United States Attorney in 2009, nominated by President Barack Obama on June 27, 2011, confirmed by the United States Senate on September 26, 2011, and will serve for a four year term after being sworn in.

Born in Fort Worth and now living in Austin, Judge Pitman received his B.S. from Abilene Christian University and his J.D. from the University of Texas at Austin School of Law. From 1988 until 1989 he was a Law Clerk in the United States District Court for the Northern District of Texas. He was the Assistant United States Attorney from 1990 until 2003. In 2001 he served as the interim United States Attorney for the Western District of Texas, and from 2001 until 2003 he was the Deputy United States Attorney. He became the Magistrate Judge of the United States District Court for the Western District of Texas in 2003.

Judge Pitman has received commendations from the Federal Bureau of Investigations, the United States Secret Service, the Department of State, the Bureau of Diplomatic Security, the Drug Enforcement Administration, the Executive Office for United States Attorneys, and the Federal Deposit Insurance Corporation. Furthermore, he is the founding president of the Lloyd Lochridge American Inns of Court in Austin, a board member for the Heritage Society of Austin, has memberships on the United Way Inclusiveness Task Force and on the Hill Country Ride for AIDS Production Team, and serves on the Board of Directors of United Cerebral Palsy.
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