F. R. Buck Files, Jr.

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Buck Files, a member of TCDLA’s Hall of Fame and the President of the State Bar of Texas, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

Stories from F. R. Buck Files, Jr.

Friday, February 14th, 2020
On November 22, 2019, United States Magistrate Judge Sunil R. Harjani of the Eastern Division of the United States District Court for the Northern District of Illinois entered an order holding that compelling the defendant to place his fingers and thumbs on his iPhone home button in an attempt to unlock the phone would not be testimonial and, therefore, would not violate the defendant’s Fifth Amendment privilege against self-incrimination.
Memories of a Christmas in Vietnam
Thursday, December 12th, 2019

After 44 months as a Marine and 158 weeks as a prosecutor for Smith County, I became a Texas criminal defense lawyer on September 15, 1970, at the age of 32. Three months later, Christmas was approaching and the Vietnam war was escalating. By the end of the year, there would be 184,314 American troops in country and 1,928 Americans would have died there.

Thursday, December 12th, 2019

What is a court to do with an inmate who was sentenced to life without parole for an offense that was committed when he was 16 years old and is now seeking habeas relief? A panel of the United States Court of Appeals for the Fifth Circuit answered that question on October 24, 2019, in United States v. Sparks, ___F.3d___, 2019 WL 5445897 (5th Cir. 2019) [Panel: Circuit Judges Elrod, Graves, and Oldham. (Opinion by Oldham)].

In Sparks, the Court held, as to the life without parole issue, that

Thursday, November 7th, 2019

In a case of first impression in the Circuit, a panel of the United States Court of Appeals for the Fifth Circuit held that—in order to forcibly medicate a criminal defendant against her will—the government bears the burden of satisfying the four-pronged Sell test, 123 S.Ct. 2174, providing clear and convincing evidence under each of these four prongs. United States v. James, ___F.3d___, 2019 WL 4410005 (5th Cir. Sept. 16, 2019) [Panel: Circuit Judges Holly, Ho, and Engelhardt (Opinion by Judge Ho)].

Wednesday, October 2nd, 2019

White supremacist. When I see the term, I can see the faces of the angry white men as they marched in a torchlight parade in Charlottesville, Virginia. When I hear the term, I can hear the chants of these angry white men as they shouted, “Jews shall not replace us.” This could not have been happening in a city in the United States, but it was. What I saw and heard reminded me of the films that I had watched of the torchlight parades that took place in Nuremberg, Germany, 80 years ago.

Saturday, August 24th, 2019

On July 2, 2019, a panel of the United States Court of Appeals for the Fifth Circuit held that the defendant’s rights under the Confrontation Clause were violated when a law enforcement officer testified that he knew that Jones had received a large amount of methamphetamine because of what the officer was told by a confidential informant. This error was not invited by the defense and was not harmless. United States v. Coy Jones, 930 F.3d 366 (5th Cir. 2019)[Panel: Circuit Judges Higginbotham, Smith, and Higginson (Opinion by Judge Higginson)].

Tuesday, July 30th, 2019

In the mid-1980s, we began to hear about the proposed United States Sentencing Guidelines. There were going to be studies done and the United States Sentencing Commission would take into account thousands of cases and the sentences imposed in these cases as they put together a Guidelines table.

As the introduction to the Guidelines notes,

Tuesday, June 4th, 2019

On April 3, 2019, a panel of the United States Court of Appeals for the Fifth Circuit gave us a two-fer. The per curiam opinion begins with a discussion of the Puckett test for plain error review and then analyzes whether the defendant’s description of the mitigating facts that he would have offered at allocution was sufficient to establish a need for remand. United States v. Figueroa-Coello, 920 F.3d 260 (5th Cir. 2019) [Panel: Circuit Judges King, Smith and Willett. Per curiam].

Tuesday, April 30th, 2019

In the olde days, I believed that taking a common sense and fair play approach to any criminal law issue would give you the correct answer. Then, I realized that this did not always work.

Wednesday, March 27th, 2019

As we used to say in the Marine Corps: “Listen up. This is the word.” Ignore it at your own peril!

In every case, state or federal, a lawyer representing a defendant in a criminal case is required to give notice of appeal if the client requests it—even if the court has followed a plea recommendation and the defendant has signed a waiver of appeal.


Wednesday, February 27th, 2019

Domineque Hakim Marcelle Ray was convicted of a capital offense in the State of Alabama and was scheduled to be executed on February 7, 2019. Ten days before his death date, Mr. Ray filed a motion in the United States District Court for the Middle District of Alabama, seeking a stay of his execution. Judge W. Keith Watkins denied the stay. Domineque Hakim Marcelle Ray v. Jefferson Dunn, No. 2:19-CV-88-WKW, 2019 WL 418105 (M.D. Ala. Feb. 1, 2019). His Memorandum Opinion and Order reads, in part, as follows:

Wednesday, January 30th, 2019

Jason Wayne Irving was a Kansas registered sex offender who had child pornography on his Facebook account. Kansas law enforcement officers, acting under the authority of search warrants issued by a Kansas state judge, discovered this pornography. Because of the exceptional work of Assistant Federal Defender Timothy J. Henry of the Federal Public Defenders Office for the District of Kansas, United States District Judge Eric F.

Reflections on a Memorial Service for Robert Kelly Pace
Saturday, December 15th, 2018

n November 11, 2018, I went to a memorial service for Robert Kelly Pace, an outstanding lawyer who loved and supported the Te

Saturday, December 15th, 2018

I thought that I had some understanding of restitution issues in federal criminal cases until I was appointed to represent Doyle Randall Paroline on the restitution issue in a possession of child pornography case. For more than five years, I lived with the issue until the Supreme Court resolved it in Paroline’s favor. Paroline v. United States, 134 S.Ct. 1710 (2014). Stanley Schneider was with me for almost all of those five years, and Casie Gotro joined us later on.

Tuesday, November 6th, 2018

On June 28, 2018, the Supreme Court granted Terance Martez Gamble’s Petition for Writ of Certiorari. The question presented: whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause. Gamble was involved with two sovereigns—the State of Alabama and the United States. He had been convicted of a robbery in an Alabama state prosecution in 2008. Some seven years later, he was prosecuted again in an Alabama state court as a prohibited person in possession of a firearm in violation of Ala.

Wednesday, October 10th, 2018

For all those clients and their lawyers who have Carpenter issues on appeal, August was BAD NEWS MONTH for them. We all remember that on June 22, 2018, the Supreme Court held that the Government must generally obtain a search warrant supported by probable cause before acquiring CSLI from a wireless carrier. Carpenter v. United States, 138 S.Ct. 2206 (2018).

Friday, August 24th, 2018

Over the last several months, I have realized that it has been some time since I wrote a column about a case having an ineffective assistance of counsel issue. Then along came United States v. Aguiar, 894 F.3d 351 (D.C. Cir. 2018) [Panel: Circuit Judges Rogers, Griffith, and Srinivasan (opinion by Rogers, Griffith dissenting)]. In Aguiar, a divided panel of the Circuit held that the defendant’s attorney performed deficiently in failing to advise his client of the clear and easily determinable consequences of rejecting a plea offer.

Thursday, July 26th, 2018

On June 22, May 29, and May 14, 2018, the Supreme Court released opinions in three cases that reversed the judgments of the United States Court of Appeals for the Sixth Circuit, the Supreme Court of Virginia, and the United States Court of Appeals for the Third Circuit. Each of these cases was concerned with a significant search issue. In each case, a motion to suppress evidence was filed by the defendant’s lawyer and denied by the trial judge.

Tuesday, June 5th, 2018

Since I have a dislike for the conducting of judicial proceedings by videoconference, I was pleased to read the opinion of the United States Court of Appeals for the Seventh Circuit in United States v. Bethea, ___F.3d___, 2018 WL 1959638 (April 26, 2018). A panel of the Circuit held that a defendant (Bethea) could not affirmatively consent to a felony plea by videoconference—and, that the error was per se prejudicial error, warranting automatic reversal. [Panel: Circuit Judges Bauer, Flaum, and Manion. Opinion by Judge Flaum.]

Saturday, April 28th, 2018

I have vivid memories of the trial of a conspiracy case that took place 40 years ago. There were seven of us sitting at the defense table representing our clients. Early on, it became obvious that we had almost as much to worry about from one of our brethren as we did from the Government.