5th Circuit Court of Appeals
U.S. v. Hagen
No. 21-11273 2/23/23
Issue:
Can the same conduct give rise to sophisticated laundering and improper benefit enhancements in a Medicare kickback prosecution?
Holding:
Yes. The improper benefit enhancement is based on the volume of the fraud, while the sophisticated laundering enhancement is based on the manner in which the fraud was executed. Read opinion.
Commentary:
Because this case involves federal charges and the application of the federal sentencing guidelines (among other issues presented, which were also federal in nature), it will be of use primarily to practitioners in federal court. However, since similar fraudulent schemes perpetrated against Texas entities, such as the Texas Medicaid program, as well as the federal government can also be prosecuted at the state level (see Texas Penal Code § 31.03(f)(2), (4)), this case might be an interesting read for Texas prosecutors who handle such cases.
Texas Courts of Appeals
Tuazon v. State
No. 05-21-00253-CR 02/23/23
Issue:
Did the trial court’s comments during voir dire equating the beyond-a-reasonable-doubt burden with the preponderance-of-the-evidence burden, deprive the defendant of due process?
Holding:
Yes. The trial court’s comments comparing reasonable doubt to a football field and describing the burden of proof as being “just beyond the 50-yard line, a little bit of a fraction”—the standard for preponderance of the evidence—was reasonably calculated to benefit the state or prejudiced the defendant’s rights, which is reversible error. Read opinion.
Commentary:
The parties here agreed that the trial court’s incorrect, de facto definition of reasonable doubt during voir dire was erroneous and that the error impacted the defendant’s right to due process of law. So, if you’re a trial prosecutor, keep in mind that, although the trial court is not required to define reasonable doubt (and probably should avoid attempting to do so entirely), it is most important that the trial court not define reasonable doubt incorrectly.
If you’re an appellate prosecutor, your ears might perk up to learn that an important, threshold issue in this case concerns preservation of error—i.e., whether the defendant must object to the trial court’s erroneous definition of reasonable doubt to complain about the statements for the first time on appeal. The answer to this question turns on which of the three Marin categories the right falls into.
Here, the Fifth Court of Appeals held that the due process right for the trial court to not incorrectly define reasonable doubt is a Marin-category-2 right and, thus, does not require an objection at trial to preserve error. You should anticipate that the State will file a petition for discretionary review with the Court of Criminal Appeals on this issue, and that the CCA may be interested in weighing-in, given that this decision appears to depart from how other appellate courts have treated similar errors and that, in doing so, the intermediate court’s opinion essentially creates a subjective rule—i.e., a trial court’s incorrect reasonable-doubt definition violates a Marin-category-3 right unless a reviewing court finds the error so serious that it rises to the level of violating a Marin-category-2 right. The CCA may also want to review the intermediate court’s decision that no harm analysis is required for this type of error.
Attorney General Opinion
KP-0432 02/27/2023
Issue:
Does Tax Code §6.43(c) authorize a county attorney to also serve as legal counsel to the appraisal district in the same county?
Conclusion:
A court would likely conclude that Tax Code §6.43(c) does not authorize a county attorney to serve as legal counsel to the tax appraisal district. Read opinion.
Requested by:
Rene P. Montalvo, Starr County Attorney