E. X. Martin, III
Attorney at Law
8828 Greenville Avenue
Dallas, Texas 75243
214-343-7400 - Voice ï 214-343-7455 - Fax

exmartin@computek.net

COMPUTER ASSISTED LEGAL RESEARCH

Time Efficient Legal Research

I believe that the computer belongs on the lawyer's desk and on the counsel table in the court room. attorneys should do their own computer assisted legal research from their computerized desk top for the following reasons:

1. accessibility of the computer leads to swift results and accurate opinions or answers to legal questions pertaining to a client's case;
2. frequently the search queries need tweaking and this is best done by the attorney because only he or she knows specifically what is needed for the client's case;
3. while your are using computer assisted legal research you will come across material that is helpful in other cases you are handling, and
4. on line research can be expensive, by performing your own queries you can control the cost of your computer assisted research.

I have been using some form of computer assisted legal research since 1981. I originally started using Westlaw's online service. I found Westlaw to be very powerful legal research tool but it was also expensive. When case law and statutes became available on CD-ROM, I began using this format to avoid the expensive per minute online charges that I had been paying. The only problem that I have had with federal case law in the CD-ROM format has been the large number of CD's. I recently switched back to the Lexis-Nexis on line service. I am paying Lexis-Nexis approximately $ 130 per month for both state and federal case law.

Computer assisted legal research is also available over the internet or world wide web. There are services such as Versus Law that allow you to search state and federal case law databases for a reasonable subscription fee. There are also many locations where you can find case law and other information helpful to attorneys on the world wide web that are free.

FREE LEGAL RESEARCH AVAILABLE OVER THE INTERNET

I recently used the internet to find a federal statute in a criminal case. My law partner had a friend who was charged in federal court with leaving a fire unattended in a National Park. My partner asked me if I know anything about this offense and whether it was a felony or misdemeanor. I told him that I had no idea but would research it for him. I had just seen a web page for the United States Code. I began looking for this link to see if I could find a penal statute that defined the unattended fire situation.

I went to the United States Code search engine by clicking on this link:

http://www.law.cornell.edu/uscode/

There are five ways to access information in the Code:

1. via a listing of all Titles
2. via the Table of Popular Names, which contains the popular names of many laws (eg. the Mann Act)
3. via a form which permits you to look up specific sections. This is particularly useful if you have a cite (eg. 14 USC 1225)
4. via the brand new (as of 02/15/97) and greatly improved search engine
5. via a search of an individual title.

I decided to use the Search Engine. The search engine page allows you to enter your terms in any order you like. You do not need to use Boolean connectors or any other operators. The search engine will return a list of hits which you may refine using the search engines'"Improve" feature, or by checking the checkbox next to the documents which come closest to what you want.

I formulated the following query for my search:

fire_unattended_fine

I included the work fine because I wanted the search limited to criminal offenses. As we know, almost all federal criminal offenses include a fine.

I received the following results from the search:

1-10 of over 1000 documents matching one or more words

18 USC Sec. 1856 (01/16/96)

ß 1856. Fires left unattended and unextinguished Whoever, having kindled or caused to be kindled, a fire in or near any forest, timber, or other inflammable material upon any lands owned, contro... Score: 100%, Matching: fire unattend fine

I was lucky. It appeared that the first statute located by the search engine was the one I needed. I clicked on the statute and retrieved the entire text as show below:

ß 1856. Fires left unattended and unextinguished

Whoever, having kindled or caused to be kindled, a fire in or near any forest, timber, or other inflammable material upon any lands owned, controlled or leased by, or under the partial, concurrent, or exclusive jurisdiction of the United States, including lands under contract for purchase or for the acquisition of which condemnation proceedings have been instituted, and including any Indian reservation or lands belonging to or occupied by any tribe or group of Indians under the authority of the United States, or any Indian allotment while the title to the same is held in trust by the United States, or while the same shall remain inalienable by the allottee without the consent of the United States, leaves said fire without totally extinguishing the same, or permits or suffers said fire to burn or spread beyond his control, or leaves or suffers said fire to burn unattended, shall be fined under this title or imprisoned not more than six months, or both.

In just a few minutes I had the statute I wanted using the internet.

This is just one example of free legal research that is available over the internet. All of the Federal Courts of Appeal have web pages. Most of the state appellate courts also have web pages. For some useful computer assisted legal research links, check out the Cyberspace Bar Associations link named:

Cyber Surfing - Internet Sites for Legal Resources & Information

I also like the Versus Law service. Versus Law or V. is an internet source for FULL TEXT opinions from Federal and State Appellate Courts. The Versus Law Library has all of these court opinions together in one searchable collection on the Internet. The court opinions can go back as far as 1900 and are updated daily. I believe this particular law library is one of the most comprehensive and current sources for legal research on the Internet. This service is designed for the legal research needs and budgets of the small practitioner. I feel a visit to their web page is well worth the time, especially in light of their free trial subscription offer. Check it out at:

http://www.versuslaw.com/

FEDERAL CRIMINAL CASES

5 Minutes Worth Of Computer Research Saves Client 20 Years

I was retained to represent a person who had been indicted in federal court for conspiracy to deliver marijuana. The government had a strong case and I ultimately advised the client to enter a plea of guilty to one count contained in the indictment. I was able to get the AUSA to agree that, based on my client's role in the conspiracy as a distributor, the amount of marijuana attributable to him and reasonably foreseeable by him was no more than twenty (20) pounds. The client had previously been convicted in state court for two felonies.

I received the Pre-Sentence Investigation Report (PSI) from the probation officer assigned to the case approximately thirty (30) days prior to sentencing. I was shocked to discover that the Total Offense Level had been calculated to be 31 points with a criminal history category of VI. This resulted in a guideline range of imprisonment of 188 to 235 months.

My client had pled guilty in 1990 in state court in Dallas County to the felony offenses of possession of cocaine and burglary of a building. The burglary case was originally indicted as burglary of a habitation, however, the client entered a plea to and was convicted of the lesser included offense of burglary of a building. He was sentenced to three (3) years in each case. These two prior convictions were utilized by the probation officer as predicate offenses in an attempt to characterize my client as a career offender pursuant to U.S.S.G. 4B1.1.

The Federal Sentencing Guidelines mandate that a defendant is a career offender if (1) he was at least eighteen years old at the time of the instant offense, (2) the offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. ' 4B1.2 defines "crime of violence" as follows:
"(1)the term crime of violence means any offense under federal or state law punishable by imprisonment for a term exceeding one year that:
(i) has an element the use, attempted use, or threatened use of physical force against the person of another, or
(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." [Emphasis added.]

It was obvious that my client had not been convicted of burglary of a dwelling. However, the probation officer attempted to circumvent this element by inclusion of the following paragraph in the PSI:

"This offense was originally filed as Burglary of Habitation. The defendant was allowed to plea to Burglary of a Building. Intake information obtained through the Texas Department of Corrections notes that the defendant burglarized a private residence and his fingerprints were found throughout the house."

Without legal authority to support an objection to the career criminal enhancement set forth in the PSI, my client was looking at a minimum sentence of 15.7 years and a maximum of almost 20 years. I used my West Publishing CD ROM program to research this matter. I formulated a query to retrieve all cases dealing with both U.S.S.G. '4B1.1 and prior burglary convictions. The query and two of the cases it retrieved are set forth below.

The query I used was 4B1.1 /p Burglary & Date(after 1987)

I emphasize the query here because I want people to know how easy it is to use computer assisted legal research. The query consists of connectors such as /P for same paragraph. These are easy to learn and use. This query is requesting all cases in which 4B1.1 (The section of the federal sentencing guidelines) is located within the same paragraph (/P) as burglary. I have also included a date limiter requesting that the cases retrieved were decided after 1987. Obviously, I used the date limiter because the quidelines were not effective until November, 1987.

1st Case

954 F.2d 253
UNITED STATES of America, Plaintiff-Appellant,
v.
Mark Lynn FITZHUGH, Defendant-Appellee.
No. 91-8211
United States Court of Appeals,
Fifth Circuit.
Jan. 28, 1992.

Defendant was convicted in the United States District Court for the Western District of Texas, Walter S. Smith, Jr., J., of possession of firearm by a felon. Defendant appealed. The Court of Appeals, Patrick E. Higginbotham, Circuit Judge, held that only conduct charged in indictment could be considered in determining whether possession of firearm by felon was "crime of violence" for purposes of career offender provision of Sentencing Guidelines.
Vacated and remanded.

Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

(1) This case concerns the issue of whether a district court may consider conduct of which the defendant was not charged and convicted in determining whether his offense is a "crime of violence" for the purposes of the career offender provision of the Sentencing Guidelines. Although we have held that such a practice was appropriate under a prior version of this provision, amendments to the Guidelines in 1989 and 1991 make clear that the sentencing court should not consider such conduct. Because the district court considered underlying conduct here, we vacate the defendant's sentence and remand for resentencing.(Emphasis added.)

This case was helpful because it held that the sentencing court could not consider underlying conduct. This case supported my contention that the PSI paragraph pertaining to fingerprints being found in the house was not relevant.

2nd Case

954 F.2d 1005
UNITED STATES of America, Plaintiff-Appellee,
v.
Mario R. GAITAN, Defendant-Appellant.
Nos. 91-5524, 91-5613.
United States Court of Appeals,
Fifth Circuit.
Feb. 11, 1992
.

In first case, defendant was convicted before the United States District Court for the Western District of Texas, H.F. Garcia, J., of conspiracy to possess and attempted possession of more than 1,000 kilograms of marijuana with intent to distribute and he appealed. In second case, defendant was convicted before the District Court, Emilio Miller Garza, J., of distribution of heroin, and he appealed. The Court of Appeals, Barksdale, Circuit Judge, held that:(1)in determining whether prior convictions constituted "controlled substance offenses" for purposes of career offender enhancement, district court in each case erred in considering conduct underlying state possession convictions in order to expand them to possession with intent to distribute, to bring them within enhancement definition of "controlled substance offenses," (Emphasis added.) and (2) in second case, district court did not abuse its discretion in denying motion to withdraw guilty plea.

The significance of United States v. Gaitan was that the Court of Appeals for the Fifth Circuit held that a district court erred in considering conduct underlying state possession convictions, instead of only the offense of conviction, in order classify the defendant as a career offender.

In five (5) minutes I had at least two cases that were right on point and could help me attack the career offender enhancement as contained in my client's PSI. I prepared the following motion:

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
No. 3:93-CR-263-X (04)
UNITED STATES OF AMERICA,
Plaintiff
VS.
DEFENDANT,

OBJECTIONS TO PRESENTENCE REPORT

The Defendant, submits the following written objection to the Presentence Investigation Report that has been prepared with respect to his case.

I.
[Career Criminal Provisions Inapplicable]

The issue pertains to the Defendant's prior conviction in state court for burglary of a building. The Pre-sentence Investigation Report (PSI) recommends that the Defendant be sentenced as a career offender under U.S.S.G. '' 4B1.1 and 4B1.2, because of prior convictions in state court in Dallas County, Texas for Possession With Intent to Deliver Cocaine and for Burglary of a Building. The prior conviction for burglary of a building does not qualify as one of the two requisite predicate offenses for enhancement purposes.

(1) the defendant was at least eighteen years old at the time of the instant offense,
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. ' 4B1.1.

The term "crime of violence" is defined in U.S.S.G. ' 4B1.2. Crime of violence is defined in U.S.S.G. ' 4B1.2 as any offense under federal or state law punishable by imprisonment for a term exceeding one year that -- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

The Defendant's prior conviction for burglary of a building does not qualify as a crime of violence. The PSI attempts to qualify the prior burglary of a building conviction as a crime of violence by considering conduct underlying this conviction. The Court of Appeals for the Fifth Circuit in United States v. Gaitan, 954 F2d. 1005, 1008 (5th Cir.1992), held that a district court erred in considering conduct underlying state possession convictions, instead of only the offense of conviction, in order classify the defendant as a career offender.

In United States v. Fitzhugh, 954 F.2d 253 (5th Cir.1992) the court held: "By amending ' 4B1.2, the Sentencing Commission made clear that only conduct `set forth in the count of which the defendant was convicted' may be considered in determining whether the offense is a crime of violence. We think this amendment shows that '4B1.2 does not intend to define `crime of violence' by reference to conduct underlying the offense when the defendant is not charged and convicted of such conduct. In short, the Commission has repudiated Goodman and other cases which held that a sentencing court can look beyond the face of the indictment in considering this issue." 954 F.2d at 254. [Emphasis added.]

For this reason the career offender guideline provisions should not be applied to this case.

Respectfully submitted,
E. X. Martin, III
Attorney for Defendant
8828 Greenville Avenue
Dallas, Texas 75243

The Probation Officer prepared and submitted this enlightened response to my objection to the career criminal classification:

"RESPONSE: The career criminal enhancement is applicable in this case. As noted in the PSI, the defendant was arrested and charged with burglary of a habitation. The offense report prepared by the Irving Police Department stated the subjects fingerprints were found throughout the house. On October 5, 1990, the defendant was allowed to plead to the lesser included offense of Burglary of a Building and was sentenced to 3 years confinement in the Texas Department of Corrections. The defendant cites United States v. Fitzhugh, 954 F.2d 253 (5th Cir. 1992) in supporting his position. The Fifth Circuit case cited by the defendant ruled that conduct underlying the offense is not applicable `when the defendant is not charged (emphasis added) and convicted of such conduct.' In this case, Defendant was charged with a crime of violence. As a result, the defendant qualifies as a career criminal and no change is required to the Presentence Investigation Report." [Emphasis added.]

The learned trial judge granted my motion and made a downward adjustment in excess of 18 points under the federal sentencing guidelines.

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